' This judgment shall decide Criminal Appeal No.350 of 2001 and Criminal Revision No.140 of 2001.
2. On 12-7-1997 Fateh Khan complainant in an injured condition alongwith Farzand Ali injured person vide Report No.7 at 8-10 a.m. Stated at Police Station Jand, District Attock, that he is a resident of Bhinder and his left leg is incapacitated. The same day at 6-30 a.m. He alongwith his son Farzand Ali was present in his house when Mian Ghulam Raza armed with a Soti, Sajjad Raza armed with a Pistol, Taj and Amir sons of Hadyat Khan armed with Sotis came there and in the open space where they had made mangers for their cattle started collecting stones to raise a wall.
The complainant stopped them whereupon Sajjad Raza stated that he should be taught a lesson for stopping them. Ghulam Raza hit the complainant with Soti on his head and left bicep. His son Farzand Ali tried to rescue him when Taj and Amir hit him with Sotis on his head, right hand, right shoulder and left knee. They raised hue and cry whereupon the persons mentioned in the F.I.R.
Came there and rescued them. The motive stated was that the disputed land belongs to the father of the complainant and his uncle Mehr Khan whereupon Ghulam Raza, etc. Wanted to raise a wall.
Initially, a case under sections 337-A(ii)/34, P.P.C. Was registered vide F.I.R. No.96 of the same date at the said Police Station (Exh.J/2). On 18-7-1997 Fateh Khan the said complainant died.
Consequently, sections 302/34, P.P.C. Were added. Upon the completion of investigations, the appellants alongwith one Taj Muhammad were sent up for trial. The learned trial Court framed charge under sections 302/34 and 324, P.P.C. The accused persons pleaded not guilty. Evidence of the prosecution was recorded. The statements of the accused persons were recorded under section 342, Cr.P.C. No defence evidence was produced neither did they make statements on oath under section 340(2), Cr.P.C. Vide judgment dated 17-9-2001, a learned A.S.J., Attock, acquitted Sajjad Raza accused. He proceeded to convict Ghulam Raza appellant No.1 under section 302(b), P.P.C. And sentenced him to undergo life imprisonment and to pay a compensation of Rs.50,000 to the legal heirs of the deceased or in default to further undergo six months S.I. Benefit of section 382-B, Cr.P.C. Was granted. Muhammad Amir Khan and Taj Muhammad Khan appellants were found to have caused simple injuries to Farzand Ali P.W. They were convicted and sentenced for the period already undergone.
3. Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the appellants while stating that appeal is not being pressed to the extent of appellants Nos.2 and 3 (Muhammad Amir Khan and Taj Muhammad Khan) who had already undergone the sentence awarded, has argued that the learned trial Court has itself recorded a categorical finding that the injury was not caused by Ghulam Raza appellant to Fateh Khan deceased with an intent to commit his murder. The precise contention is that while so holding, the said appellant was not at all liable to be convicted under section 302, P.P.C. He has also referred to the M.L.R. And the P.M. Report prepared by doctors in respect of Fateh Khan to urge that the injury which was found to be the cause of death could not have been caused by a stick. Mr. Waqar Azim Siddiqui learned counsel for the complainant while assisting the learned counsel for the State, on the other hand, contends that the said finding recorded by the learned trial Court would not be binding upon by this Court and either the matter be remanded or this Court should itself examine the evidence to reach a proper conclusion. He is of the opinion that even going by the conclusions of the learned trial Court, the said appellant was liable to be convicted and sentenced under section 316, P.P.C. He has, however, not much to say in support of Criminal Revision No.140 of 2001 praying for the enhancement of the sentence awarded to the said appellant.
4. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. Now I have already reproduced above the contents of the first report made by the said deceased person, namely, Fateh Khan himself. His son Farzand Ali who according to him was present and was also injured has appeared as P.W.10. Now the background for the said unfortunate incident as stated by the deceased complainant and his son is that the accused persons including the said appellant tried to raise a wall the space reserved for mangers for the cattle of the complainant party. They were stopped whereupon Ghulam Raza appellant gave a Soti blow to the head of Fateh Khan who fell down and the second blow was given hitting the left arm of Fateh Khan. He was then given Soti blows by Taj and Amir. Now Dr. Zafar Iqbal P. W.2 examined Fateh Khan on 12-7-1997 at 8-30 a.m. And found the following injuries on his person:--
(1) A lacerated wound 1 c.m. In length .3 c.m. In width and .7 c.m. In depth on left occipital protuberance on head. There was 2 x 2 c.m. Swelling around the wound and the wound was bone deep.
(2) A 4 c.m. x 1 c.m. Contusion on left upper arm lateral side.
' According to the Doctor the injuries were caused by blunt weapon. He proved MLR Exh.P.C. In his cross-examination, regarding the said Injury No.1 he stated that it could have been caused as a result of fall on a hard surface which is on the head of Fateh Khan and Injury No.2 can also be similarly caused. Dr. Faiz Muhammad Farooq P.W.3 conducted the post-mortem on 18-7-1997. He found the following injuries on the dead body of Fateh Khan:--
(1) A stitched wound 8 c.m. In length on left occipital protuberance (on head).
(2) A stitched wound 3.5 c.m. In length at the base of front Of neck (tracheostomy wound).
(3) A healed contusion 4 x 1 c.m. On lateral side of left upper arm.
' He opined that the death was caused by Injury No.1 which alone was sufficient to cause death in the ordinary course of nature. He proved the P.M. Report Exh.P.D. Dr. Asif Mehmood, a Private Practitioner, P.W.8 proved the death certificate Exh.P.F. Dated 18-7-1997. According to this witness he had issued the said certificate on the said date. In his cross-examination he stated that he has no document available with regard to the treatment given to the deceased. According to him, the deceased was treated by Dr. Irfan Elahi and Professor Arif Malik and that the witness had only issued the death certificate.
5. It will thus be seen that whereas the evidence is there that the stick blows were caused by the said appellant to the deceased person on 12-7-1997 as stated in Exh.P.J.1 and according to Dr. Zafar lqbal P.W.2 his death was the result of the said Injury No. 1 . However, as to what happened between 12-7-1997 and 18-7-1997 when Fateh Khan was certified to be dead, there is no evidence on record.
6. Now the learned A.S.J. Has observed as follows in para.52 of the impugned judgment:-- "At the time of occurrence Ghulam Raza did not repeat Soti blow upon head of Fateh Khan deceased. But since Ghulam Raza accused is responsible for. The death of Fateh Khan due to Injury No.1 but as he did not want to murder him then and there rather wanted to give him injury only. So there are mitigating circumstances for lesser sentence awarded to him."
' To my mind the learned trial Court has made the said observations correctly upon a proper reading of entire evidence on record. However, it has committed an error while proceeding to convict the said appellant under section 302(b), P.P.C. The reason being that any of the punishments mentioned in clauses (a), (b) or (c) of section 302, P.P.C. Can be awarded only to a person who has committed Qatl-i-Amd. Now as per definition of Qatl-i-Amd in section 300, P.P.C., the primary condition is that bodily injury is caused or an act is done which in the ordinary course of nature is likely to cause death is committed with the intention of causing death or with the knowledge that the act is imminently dangerous that it must in all probability cause death. In the present case, the two A injuries caused by a stick in the circumstances even narrated by the prosecution cannot be said to constitute the said offence as these do not disclose an intention on the part of the said appellant to cause death of Fateh Khan. However, I do agree with Mr. Waqar Azim Siddiqui that the said act done by Ghulam Raza appellant is covered by the definition of Qatl- Shibh-iAmd. The punishment for the said offence is prescribed in section 316, P.P.C.
7. As a result of the above discussion, the appeal filed by the appellants Nos.2 and 3 is dismissed.
However, the Criminal Appeal to the extent of Ghulam Raza appellant No.1 is disposed of in a manner that he is convicted under section 316, P.P.C. He shall be liable to pay Diyat in the sum of Rs.2,02,158 to the legal heirs of the deceased Fateh Khan in terms of section 330, P.P.C. The amount of Diyat shall be paid to the said legal heirs within 30 days of this judgment failing which provisions of section 331, P.P.C. Shall apply. From the perusal of the trial records I fmd that the said Ghulam Raza appellant was arrested on 21-7-1997. He was granted bail vide Order dated 30-9-1999 of this Court in Criminal Miscellaneous No.843-B of 1999. He was convicted on 17-9-2001 and was taken into custody. Thus, he has undergone a substantive sentence of four years and about six months.
By way of Tazir he is sentenced for the said period already undergone by him. Criminal Revision No.140 of 2001 is dismissed.