This judgment will dispose of Criminal Appeal No.216-J of 2002 and Criminal Revision No.444 of 2002 directed against the judgment dated 15-3-2002 passed by the learned Additional Sessions Judge, Bhalwal, District Sargodha, whereby he convicted the appellants under section 316, P.P.C.
And sentenced them to undergo 14 years' R.I. Each with Diyat. Benefit of section 382-B, Cr.P.C. Was also granted to the appellants.
2. Brief facts of the instant case as narrated by the complainant Muhammad Akram in the F. I. R. Are that on 25-4-2000 he alongwith his sons Zeeshan Akram and Imran Akram went to the house of Muhammad Amir. At about 6 p.m. Imran Akram deceased said that he is going to see his Phophi.
After a short time, the complainant and his son Zeeshan Akram heard hue and cry of Imran Akram deceased upon which they both came out and witnessed that Badil Masih accused had grappled Imran Akram deceased in his Japha, while accused Jahangir and Shabbir were giving fist blows upon right and left side of the neck and also upon his chest. Complainant and his son when reached near to the place of occurrence seeing the occurrence, all the three accused/appellants made good their escape to their houses. Imran Akram deceased succumbed to the injuries on the way to the hospital. The motive behind this occurrence was that hot words were exchanged between Imran Akram deceased and Jahangir appellant some days prior to the present occurrence.
3. After getting information about the occurrence the local police completed all the necessary formalities. On the same day the complainant of the F.I.R. Also made a supplementary statement in which he involved Badil Masih with specific role. After recording said statement Dost Muhammad, S.-I. Proceeded to the spot. He prepared injury statement Exh. P.E and inquest report Exh.P.F. Last- worn clothes were also received by him vide memo. Exh.P.A. All the accused were arrested on 2-5- 2000. Ultimately the investigation of the case was completed and the challan was submitted before the trial Court for trial.
4. Prosecution in order to prove its case produced as many as 7 witnesses including Doctor, Investigating Officer, eye-witnesses and other relevant persons. On 6-2-2002 learned DDA closed the prosecution evidence. Thereafter statements of the accused/appellants were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial Court after going through the record and hearing the arguments advanced by both the parties convicted and sentenced the appellants as mentioned above. Hence this appeal.
5. Learned counsel for the appellants in support of this appeal submits that all the appellants are minor and less than 18 years, that Jehangir Masih and Shabbir Masih had produced their birth certificates and School Leaving Certificates according to which they were less than 18 years of age.
Learned counsel submits that no weapon was used in this occurrence and the only allegations levelled against the appellants Jehangir Masih and Shabbir Masih were that they caused fist blows on the person of the deceased, that as far as Badil Masih appellant is concerned, he according to the F.I.R, caught hold the deceased in his 'Japha' while his other co--accused mentioned above gave fist blows to deceased. Learned counsel further submits that during the trial injuries were also attributed to Badil Masih and the statements of the eye-witnesses were duly confronted in this regard. Learned counsel adds that maximum sentence which has been provided under section 316, P.P.C. Has been awarded to the present appellants which is unjust in the circumstances of the case.
He submits that according to section 316, P.P.C., Diyat amount is mandatory provision of law if the offence is proved but as far as sentence of imprisonment is concerned, the word 'may' has been used. Learned counsel submits that no case is made out against the appellants because even the conduct of the two eye--witnesses who are father and brother of the deceased was most unnatural.
6. On the other hand learned counsel for the State submits that already a lenient view has been taken and the appellants have not been convicted under section 302(b), P.P.C. Adds that there was no reason of false implication of all the appellants, that Jehangir Masih and Shabbir Masih caused injuries on the person of the deceased while Badil Masih facilitated the murder of the deceased by holding the deceased in his Japha, that motive has also been proved by the prosecution and that the ocular account is also proved by the prosecution. She supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. In the instant case this jail appeal was filed through jail while Criminal Revision bearing No.444 of 2002 was also filed by Muhammad Akram against Jehangir Masih etc. In which following prayer was made:-- "It is therefore, most respectfully prayed that the instant revision petition may very kindly be allowed and the sentence awarded to the respondents Nos. 1 to 3 may very kindly be enhanced and also may very graciously be punished under section 302(b), P.P.C. And a major penalty of death accordingly be imposed upon them and the judgment of the learned Additional Sessions Judge Bhalwal, District Sargodha dated 15-3-2002 may very kindly be modified so as to meet the ends of justice."
8. In the instant case according to the F.I.R. Occurrence had taken place on 25-4-2000 at 6 p.m.
Matter was reported to the police on the same day at 7 p.m. The allegations against Jehangir Masih and Shabbir Masih were that both of them gave fist blows on the neck and both sides of his chest while Badal Masih had caught hold the deceased in his Japha, though, both the eye-- witnesses namely Muhammad Akram and Zeeshan Akram are father and brother of the deceased but they had got no enmity whatsoever against the appellants so it is not a case of false implication. However, case of Badil Masih is different to that of Jehangir Masih and Shabbir Masih but according to the F.I.R. He has held the deceased in his Japha while Jehangir Masih and Shabbir Masih gave fist blows. Had Badil Masih caught hold the deceased in Japha the injuries on the chest and neck of the deceased could not have been caused by Jehangir Masih and Shabbir Masih and even otherwise there was no need of holding the deceased in Japha by Badil Masih. Even otherwise the anxiety of the complainant party can be shown from the fact that before the trial Court they also attributed the injuries to Badil Masih, that portion of the evidence of the witnesses was duly confronted by the defence counsel so far as Badil Masih is concerned, he is granted benefit of doubt and is acquitted of the charge. He is behind the bars. He shall be released if not required in any case.
9. As far as Jehangir Masih and Shabbir Masih appellants are concerned, they are real brothers, they both have produced their Birth Certificate and School Leaving Certificates before the learned trial Court to prove that they were minors but on their application a Medical Board was constituted and it was observed by the M.S. That they are not minors and are more than 18 years but fact remains that none of the appellant was armed with any weapon, they had only given fist blows on the person of the deceased. They both are real brothers. For the just decision I would like to reproduce the definition of Qatl-Shibh-i-Amd which is given in section 315, P.P.C.:---
315. Qatl Shibh-i-Amd.--- Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit Qatl-Shibh-i-Amd.
Illustration.--- A in order strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death Z dies as a result of such hurt. A shall be guilty of Qatl---Shibh-i-Amd.
10. A bare perusal of the above section would show that neither the stick or stone was used in this case. According to section 316, P.P.C. i.e. Punishable with Qatl---Shibh-i-Amd which is also reproduced below:--
316. Punishment for Qatl-Shibh-i-Amd.----Whoever commits Qatl Shibh-i-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.
As far as Diyat amount is concerned, word 'shall' has been used. As far as imprisonment is concerned word 'may' has been used. Learned trial Court has not only awarded Diyat amount but also convicted and sentenced Jehangir Masih and Shabbir Masih to undergo 14 years which is maximum sentence provided under the law. In the circumstances of the case, reduce the sentence from 14 years to 10 years' R.I. But Diyat shall remain intact. They are also granted benefit of section 382-B, Cr.P.C.
11. As far as criminal revision is concerned, that is not maintainable. I have mentioned the prayer made by the learned counsel for the petitioner in his revision petition in the earlier paragraph of the judgment. This Court cannot convict the accused persons in a revision petition under section 302(b), P.P.C. If he is acquitted of the said charge. The proper course for the learned counsel for the petitioner was that he should have filed a criminal appeal under section 417 (2-A), Cr.P.C. Against the acquittal of the said respondents under section 302(b), P.P.C so this criminal revision is dismissed being not maintainable under the law. With these observations this appeal as well criminal revision are disposed of.