' Appellant alongwith one Nasir Ali was tried by Sessions Judge, Faisalabad in case F.I.R. No,399, dated 12-12-1999 under sections 302/ 324/34, P.P.C. Registered at Police Station Mamukanian, District Faisalabad, who vide judgment, dated 20-12-2000 convicted appellant under section 302(b). P.P.C. And sentenced him to imprisonment for life as well as to pay compensation of Rs,1,00,000 to the, legal heirs of the deceased under section 544-A, Cr.P.C. Or in default whereof to further undergo 6 months' R.I.
2. Being aggrieved by the said judgment appellant has filed instant appeal.
3. In brief, the facts of prosecution case are that on 12-12-1999 at about 1-30 p.m. Muhammad Ali, complainant was going towards his land on a bicycle when his bicycle struck against Intizar Hussain son of Yaseen Purbana, who was playing in the street. The complainant lifted Intizar Hussain from the ground and cleaned% his clothes. In the meanwhile Mst. Mumtaz Bibi wife of appellant came out of her house on hearing noise and started hurling filthy abuses to the complainant. At the same time appellant Wali Muhammad also came at the spot and gave slaps to the complainant who raised hue and cry, whereupon father of the complainant namely Noor Muhammad also came at the spot. Statedly, Ghulam Farid P.W.7 and Muhammad Yaseen P.W.8 tried to intervene when Wali Muhammad (appellant) gave Sota blow to Noor Muhammad on the head who fell down on the ground. At the same time Nasir Ali (co-accused) gave Sota blow to Muhammad Ali (complainant) on the head as well a Sota blow to Ghulam Farid (P.W.7) on the back. On hearing the noise, people of the village also gathered there and both the accused ran away.
4. On the same day complainant Muhammad Ali appeared before Maqsood Ahmad, S.-I., who was present at Chungi No,5, Mamukanjan in connection with patrol duty, and made statement Exh.P.K.
Copy of the same was sent to the police station for the registration of F.I.R. The said Police Officer thereafter proceeded to the hospital and made application to the Medical Officer for permission to record the statements of both the injured. The Medical Officer, vide report Exh.P.D./A opined that injured Noor Muhammad was not in a position to make the statement but allowed the Police Officer to record the statement of Ghulam Farid only. The Investigating Officer after recording the statement of Ghulam Farid visited the place of occurrence and prepared rough site plan Exh.P.M.
The file of this case reveals that this case was also investigated by Muhammad Umar Hayat, A.S.-I., P.W.10. This Police Officer during the investigation made three different applications to the Medical Officer for recording the statement of Noor Muhammad injured but the permission was not granted. On 23-12-1999, appellant was arrested and on 26-12-1999, he led to the recovery of Sota P.1 which was taken into possession vide Exh.P.L. On the same day, Nasir Ali co-accused led to the recovery of Sota P.2, which was also taken into possession vide recovery memo. Exh.P.M. On 2-1- 2000 after the death of Noor Muhammad. The said Investigating Officer after preparing necessary documents dispatched the dead body to the mortuary for post-mortem examination in the escort of F.C. Muhammad Sharif and on the same day last-worn clothes of the deceased were produced before him which were taken into custody vide Exh.P.S. This Police Officer during investigation also got prepared scaled site plan Exh.P.J./A-B through Draftsman and after complying with the legal formalities submitted challan before the trial Court.
5. In order to prove its case against he appellant and co-accused prosecution produced 11 witnesses before the trial Court. P.W.1 Dr. Muhammad Amjad, prepared medico-legal report of Noor Muhammad (when he was alive) and observed the following injury:-- ' Lacerated wound 4.2 x 1.2 c.m. On the top of head. Bone crepitation present. Swelling around both the eyes, Echymosis present. Bleeding present. The patient was unconscious. X-Ray advised.
Referred to the Allied Hospital, Faisalabad.
' The witness also stated abo t his reports on the applications moved by the police for recording statement of Noor Muhammad. Dr. Muhammad Munir P.W.2 conducted the post-mortem examination on the dead body of Noor Muhammad and observed the following injuries:-- "1(a) A lacerated healed wound 5.2 x 2 c.m. On to of the head, slightly right side 8 c.m. Above the right eye.
(b) with 2 c.m. Sharp healed wound.
2. A healed abrasion 1.7 x 1.4 c.m. On left upper arm, deltoid region.
' Babar Nadim P.W.3 Draftsman prepared scaled site plan Exh.P.J./A-B, Asim Muhammad Arshad, P.W.4 entered formal F.I.R. Exh.P.K./A, Muhammad Irfan, F.C., P.W.5, took parcels (case property) to the Office of Chemical Examiner, Lahore and delivered the same intact, Muhammad Ali, P.W.6 Ghulam Farid P.W.7 and Muhammad Yasin, P.W.8, being eye-witnesses of the occurrence had narrated the circumstances under which appellant and his co-accused gave injuries to Noor Muhammad and Ghulam Farid. All the said witnesses supported the prosecution case in verbatim.
P.W.9 Maqsood Ahmad. S.-I. And P.W.10 Umar Hayat, A.S.-I. Conducted the investigation as narrated earlier. Aman Ullah, Head Constable P.W.11 reported that Foot Constable Muhammad Sharif had suffered an attack of paralysis and was not in a position to attend the Court. He produced copy of Rapt No,29, dated 28-8-2000 (Mark A) in this regard.
6. Learned trial Court after recording the statements of prosecution witnesses also examined the appellant under section 342, Cr.P.C. While answering to the question "why this case against you"?
The appellant replied as under:- "The case as registered against me and the co-accused is totally false. The fact of the matter is that there was huge crowed gathered at the spot on complainant Muhammad Ali striking his bicycle against Intizar Hussain. It was when the people gathering at the spot started separating the quarrelling parties that Noor Muhammad, a weak and aged person, and Ghulam Farid, also an aged person, fell on the ground and thus sustained their injuries. Neither I nor accused Nasir Ali inflicted any injury to the deceased or to the P.Ws. We have got no previous enmity either with the deceased or with the P.Ws. The P.Ws. Gave affidavit at the time of our bail application before Additional Sessions Judge, Faisalabad, and therein declared and affirmed that no incident, as stated in the F.I.R., ever took place and that I and accused Nasir were innocent. The P.Ws. Always knew that factually they got the case registered against us under the pressure of the police just to save them from the legal consequences."
7. Neither the appellant nor co-accused made any statement under section 340(2), Cr.P.C. Or produced any witness in the defence.
8. Learned trial Court after appraisal of evidence available on record, vide judgment dated 20-12- 2000 convicted and sentenced the appellant as narrated earlier.
9. Learned counsel for the appellant at the very outset submitted that it was not a pre-planned murder and whatever happened, was in the spur of moment and in the circumstances, the conviction of the appellant under section 302(b), P.P.C. Would not be sustainable. On the other hand the learned. State Counsel very candidly conceded to the position put forward by the learned counsel for the appellant.
10. With the assistance of the learned counsel for the parties I have gone through the record minutely and carefully.
' A bare perusal of the F.I.R. Reveals that the whole occurrence started when the bicycle of the complainant struck with one Intizar Hussain son of Yaseen Purbana and the matter aggravated due to interference of the accused party and in this affair single injury was caused by the appellant to Noor Muhammad deceased on the head, as a result of which he died after 20 days of the occurrence. The statements of all the three eye-witnesses namely Muhammad Ali P.W.6, Ghulam Farid P.W.7 and P.W.8 Muhammad Yasin are also to the same effect and show that this occurrence took place in a spur of moment and it was not a case of pre-planned or intentional murder. The presence of the witnesses stands established from the record. It is evident from the statement of eye-witnesses that at the time of occurrence both the appellant and his co-accused were armed with Sotas, whereas the complainant party was empty-handed. If the appellant had any intention to commit the murder he could have caused more injuries to Noor Muhammad (deceased) but the facts of this case reveal that appellant felt contented by causing only single injury as a result of which Noor Muhammad died after twenty days. In this view of the matter. I find force in the argument of the learned counsel that conviction of the appellant under section 302(b), P.P.C. Is not sustainable. Accordingly, while setting aside the conviction of appellant under section 302(b), P.P.C.
He stands convicted under section 302(c), P.P.C. And is sentenced to 14 years' R.I. He is also directed to pay compensation of Rs,50,000 to the legal heirs of Noor Muhammad deceased as required under section 544-A, Cr.P.C. Or in default whereof, to further undergo S.1. For 6 months. The appellant shall also get the benefit of section 382-B, Cr.P.C.
11. With the above modifications, this appeal otherwise stands dismissed.