1. ' This appeal is directed against the judgment dated 28-3-2002 passed by learned Sessions Judge, Mirpurkhas, in Sessions Case No, 144 of 1992 arising out of Crime No,47 of 1992, Police Station, Kot Ghulam Muhammad, under sections 302, 324 and 34, P.P.C. The appellants were charged for causing Qatl-eAmd of deceased Athar Ali and causing injuries to P. Ws. Zahid Hussain and Hashmat Ali.
2. ' The deceased as well as the injured at the first instance sustained injuries and a report was entered in the daily diary for non-cognizable offence and the injured were referred to the hospital.
3. It seems that subsequently injured Athar Ali succumbed to the injuries and died in the hospital.
4. ' The police after usual investigation submitted the challan.
5. ' The appellants pleaded "not guilty" to the charge and claimed to be tried.
6. ' In order to prove the case prosecution examined as many as fourteen witnesses including injured Zahid Hussain and Hashmat Ali.
7. ' After closure of the prosecution side the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocent.
8. ' On the basis of the evidence adduced the learned Sessions Judge, Mirpurkhas convicted all the appellants/ accused and' sentenced them to suffer life imprisonment under section 302(a), P.P.C.
9. And to pay fine of Rs,50,000 each. They were also required to pay compensation to the legal heirs of deceased Athar to the tune of Rs,50,000 each. In case of non-payment of fine, the accused persons were to suffer imprisonment of six months more and likewise they were to suffer six months more imprisonment in case of non-payment of compensation to the legal heirs of deceased Athar Ali. All the accused persons were also convicted under section 324, P.P.C. And sentenced to suffer imprisonment of ten years and a fine of Rs,10,000 each. In case of default in payment of fine they were to suffer three months more imprisonment. The appellants/accused were however, granted benefit of section 382-B, Cr.P.C.
10. ' I have heard Mr. Madad Ali Shah, Advocate for the appellant and Mr. Muhammad Azeem Panhwar learned Counsel for the State.
11. ' It was contended by the learned counsel for the appellants that no offence under section 302, P.P.C. Was made out. Even there was no intention on part of the appellants to kill the deceased as such the punishment awarded to the appellants under sections 302 and 324, P.P.C. Was not sustainable in law. It was contended by learned counsel for the appellants that only appellant Ashraf was responsible for causing injury to deceased Athar Ali. According to learned counsel at the best the only intention, which can be deduced from the evidence, was to cause injury to all the victims.
12. ' Mr. Muhammad Azeem Panhwar learned counsel for the State has very frankly conceded to the above proposition. He submits that the judgment was against evidence and violative of law.
13. ' According to learned State Counsel appellant Anwar, Riaz and Ghulam Muhammad caused injuries to the P.Ws. And that it was borne out from the record that the injuries sustained by the above P.Ws. Call for punishment provided under section 337-A(i), P.P.C. He further stated that appellant Ashraf was not liable for Qatl-e-Amd of the deceased but he has committed Qatl Shibh- I-Amd of the deceased which is punishable under section 316, P.P.C.
14. ' I have considered the arguments advanced at the bar and have also perused the record..
15. ' The deceased alongwith P.Ws. Sustained injuries on 4-8-1992 in which a non-cognizable report was entered in daily diary and injured Athar Ali was referred to Hyderabad Hospital. While being admitted in the hospital he succumbed to the injuries on his head and expired on 8-8-1992.
16. According to the contents of the F.I.R. 3/4 days before the registration of F.I.R. Some unknown persons allegedly committed theft from the shop of the complainant. He suspected Anwar Shaikh and Aziz Shaikh for such theft. On the date of incident at about 4-00 p.m. There was Niaz near mosque in the village of the complainant. Complainant alongwith deceased and the injured persons as well as many other people were present there. The appellants duly armed with hatchet and Lathis came there and attacked the deceased and the P.Ws. In spite of the fact that they were having hatchets they inflicted blows from the wrong side of hatchet. There appears no strong motive for causing murder of anybody. Even otherwise the appellant Ashraf who caused blow on the head of the deceased did not use the sharp side of hatchet. Doctor who was produced in evidence deposed that it was a case of Neurology and the deceased remained in hospital for 4 days but because of lack of Neurological treatment he expired.
17. 'According to P.W. Maqbool Leghari, appellant Anwar had hatchet in his hand and he attacked Athar with hatchet which hit him on his head. P.W. Manzoor Ali in his deposition has stated that accused Ashraf has inflicted backside hatchet blow to Athar. According to P.W. Zahid Hussain, Ashraf gave hatchet blow from its backside to Athar whereas accused Riaz and Anwar attacked and caused hatchet blows from its backside on the person of Hashmat and that P.W. Himself was caused Lathi blow by Ghulam Muhammad.
18. ' On close examination of the above it could hardly be established that there was any intention on the part of appellants to cause Qatl-e-Amd of the deceased. Learned State Counsel has rightly pointed out that the case of the appellant Ashraf was covered by the provisions of section 315 punishable by section 316, P.P.C. It will be advantageous to reproduce below section 315, P.P.C.
19. Alongwith illustrations: "315. Qatl Shibh-i-Arnd.---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-iAmd.
20. Illustration ' A in order to cause hurt strikes Z with a 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."
21. 'Since the appellant used the backside of the hatchet which in the ordinary course of nature was not likely to cause death but only to cause harm to the body. The offence is thus punishable under section 316, P . P. C . `So far as the case of othei three appellants is concerned, the element of vicarious liability is conspicuously missing as there is no evidence to that effect. The evidence is not sufficient to show that there was any intention to kill the deceased. According to the evidence on record they caused injuries to P.Ws. The injuries sustained by the P.Ws. Were simple in nature and covered by section 337-A(i), P.PC. According to the punishment provided they are liable to Daman and punishment to the extent of two years as Tazir.
22. ' In the above circumstances the conviction awarded to the appellants is modified as under:--
(i) The sentence awarded to the appellants under sections 302 and 324, P.P.C. Is hereby set aside and all the appellants are acquitted of the charges under sections 302(a) and 324, P.P.C.
(ii) Appellant Ashraf is convicted under section 316, P. P . C . And sentenced to suffer R.I. For 5 (five) years. He shall also be liable to payment of Diyat in accordance with law. The amount of Diyat shall be paid in equal installments spread over a period of three years. The payment of Diyat shall be deposited on quarterly basis and shall be deposited in the first month of every quarter by 10th day of that month before the Additional Registrar of this Court. The Additional Registrar will be competent to extend the time by one week on the application of the party and shall record reasons for the said extension. The first instalment shall be payable on 10th of September, 2002.
(iii) The appellants Nos.2, 3 and 4 namely Anwar, Riaz and Ghulam Muhammad are convicted under section 337-A(i), P. P.0 and sentenced to suffer R.I. For six months. Besides they are made liable to make payment of Daman. Accordingly they shall be liable to pay compensation of Rs,7,500 each. In case of failure to pay the amount of compensation they shall suffer R.I. For three months more. The appellants shall be entitled to the benefit under section 382-B, Cr.P.C. As granted by the learned trial Court. The appeal is disposed of with the above modification in the sentence.