2000 PLP 2909 (YLR)

3. Dr. Aamer Bashir, P.W.9 conducted the post‑mortem examination on 30‑7‑1996 and stated that the death had been caused as a result of intra‑cranial haemorrhage leading to coma and death.

4. The prosecution in support of its case examined seven witnesses. Out of them P.W.2 Faiz Ahmad son of the deceased who was the complainant, P.W.4 Zahoor Ahmad and P.W.5 Muhammad Jamil furnished the eye‑witness account of the occurrence. They all stated the facts what had been reiterated by the complainant as in the F.I.R.

5. After the close of the prosecution evidence the appellant denied the occurrence and pleaded that she has been falsely involved due to enmity. She examined two witnesses i.e. Dr: Muhammad Matin and Dr. Abdul Hameed as D.W. I and D.W.2 in her defence but their statements do not in any manner create any dent in the prosecution case. The learned trial Judge on the conclusion of the trial convicted the appellant under section 302(b), P.P.C. and sentenced her to undergo imprisonment for life. A compensation of Rs.20,(00 was also ordered to be paid to the legal heirs of the deceased, in default thereof to undergo six months' S.I. The appellant was on bail and was taken into custody to serve out the remaining term of her sentence.

6. The learned counsel for the appellant in the first instance tried to argue that the prosecution did not come forward with any independent witness and the witnesses were close relations of the deceased and appellant. But realising that mere relationship of a witness does not in any manner affect his or their evidence provided the same inspires confidence, he therefore, did not seriously challenge the fact that Mst. Rashidan‑died on account of receipt of brick bat blow at the hand of the appellant. He has rightly done so because the prosecution has produced credible evidence which is supported by the medical evidence and also finds some support from the defence evidence itself.

7. The fact that the deceased died as a result of receipt of brick bat injury inflicted by the appellant stands proved. However, the question remains to be determined as to which of the offence is constituted. Admitted facts are that an altercation took place in? between the appellant on one hand and Mst. Rashidan deceased on the other hand. During the course of altercation a blow with brick bat was caused on the top of head of Mst. Rashidan deceased, as a result of which she fell down, became unconscious and subsequently succumbed to the injury received by her. Whether on the basis of these facts section 302, P.P.C. is attracted, the answer obviously would be in negative. Section 315, P.P.C. enacted as a result of Qisas and Diyat Ordinance introduces a new offence titled as 'Qatl Shibh‑i‑Amd' which is defined as follows:‑‑‑ 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." It is supplemented with an illustration in the following words: "A in order to cause hurt 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."

8. Section 316, P.P.C. prescribes the punishment for Qatl Shibh‑i‑Amd laying down that 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.

9. After going through section 315, P.P.C. and its supplementing illustration there remains no doubt that the facts of the instant case fully attract section 315, P.P.C. the sentence of which has been prescribed in section 316, P.P.C. If the facts of a case attract a specific section of the Code, as in the present case sections 315 and 316, P.P.C. are fully attracted then conviction cannot be recorded under any of the part of section 302, P.P.C. As noted above as per the prosecution case itself a brick bat blow was inflicted on the head of the deceased by .the appellant and brick bat is not ordinarily a weapon of offence but in this case it proved fatal and unfortunately a poor woman lost her life. The conviction, therefore, has to be recorded under section 316, P.P.C. and not under section 302, P.P.C. The conviction recorded by the learned trial Judge under section 302(bj, P.P.C., is therefore, against E law and same is set aside and altering the same conviction is recorded under section 316, P.P.C.

10. Considering the quantum of sentence it has been mandated by this section that offender shall be liable to pay Diyat, therefore, no discretion is left with the Court and the offender has to pay Diyat to the legal heirs of the deceased. Alongwith the payment of Diyat maximum term of imprisonment extending up to fourteen years has also been prescribed. The learned counsel has argued that the appellant has a suckling baby with her and that she did not act in any cruel or brutal manner. She is a woman and as such leniency should be shown to her. The contention is not without substance. By taking into consideration .the acts and circumstances of the case I am of the view that imprisonment for a period of seven years will meet the ends of justice. Accordingly, the appellant's conviction and sentence under section 302(b), P.P.C. is set aside. The appellant is convicted under section 316, P.P.C. who will pay Diyat as calculated on the day of occurrence it comes to Rs.2,12,664 to the legal heirs of the deceased and will also undergo R.1. for a period of seven years. The benefit of section 382‑B, Cr.P.C. will be extended to her.

11. The appeal is disposed of subject to above modification qua the appellant's conviction and sentence. H.B.T./A‑ 10/L ??????????