1984 P Cr (PLP)

On 26th March, 1981, Dr. Riaz-ud-Din P. W. 4 conducted the post. mortem examination on the dead body of Muhammad Sharif and found the following injuries on his person (1) A contused wound on the right side of upper part of forehead Ii c. m. x f c. m. bone deep about 5 c, m. above the right eye-brow and 10 c. m. from the ear. (2) A contused wound on the right forehead about 1 c. m. towards right of injury No. I. (3) There was depression of bone 8 c. m. x 5 c. m. above injuries Nos. 1 and 2 on the right side of head. (4) Right upper eyelid accutely bruised and swollen. On dissection, he found considerable amount of clotted blood under the scalp muscles. There was depressed fracture of right side of frontal bone 8 c. m. x 5 c. m. under the depression already mentioned. There was fracture of right temporal, right parietal and left temporal bone. The cause of death in the opinion of the doctor was due to shock and haemorrhage. All the injuries were caused with blunt weapon. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature individually and collectively.

6. On 28th March, 1981, P.W. 8 Salabat Khan arrested the appellant. On the same day, the appellant got recovered blood-stained sota Exh. P.3 vide memo. Exh. P. F. attested by Shan Muhammad P. W. 6 and Muhammad Akbar P. W.

7. The Chemical Examiner's report Exh. P. L. and Serologist report Exh. P. M. are positive. It is remarkable that this recovery has not been believed by the trial Court in para. .No. 13 of its judgment.

7. The appellant when examined under section 342, Cr. P. C. denied the incriminating circumstances. He took the plea of false implication and substitution. He explained that he was a lease-holder of one square of land jointly owned by Abdul Aziz, Muhammad Sharif deceased and Mst. Amanat Bibi P. W.-5 and others whereas co-accused Zahoor was lessee under Muhammad Akbar P. W. 7 and that in order to eject them from their land, the complainant and the P. Ws. have falsely involved them in the case. According to defence version, the deceased was killed by his family members on account of family disputes and the appellant was substituted for the real culprits. In defence two witnesses namely Abdul Rashid and Abdul Haq were produced. Abdul Rashid D. W. I is Reader of Naib-Tehsildar. He brought original file in case Abdul Aziz v. Boota pertaining to application regarding the division of produce of village Amirgarh. He proved the correct copy Exhs. D. E. and D. F. Abdul Haq P. W. 2 is a Petition Writer. He has proved docu ment Exh. D. G. executed by Muhammad Akbar.

8. In order to prove its case, the prosecution examined as many as 8 P. Ws. out of whom Mst. Amant Bibi P. W. 5, Shan Muhammad P. W. 6 and Muhammad Akbar P. W. 7 have given the ocular account of the occurrence. Mst. Amanat Bibi has repeated the same version as given by her in the F.

1. R with the addition that both the accused had obtained land on lease from the deceased and when asked by the deceased to vacate the same on the termination of lease, the accused became annoyed with him. Shan Muhammad P. W. 6 and Muhammad Akbar P. Ws. 7 have supported the prosecution case as stated above. They have fully supported lust. Amanat Bibi on all material particulars. They also supported the recovery of blood-stained sota Exh. P. 5 from the appellant.

9. Before me, the learned counsel for the appellant has not chal lenged the conviction of the appellant and rightly so because it is a day time occurrence; the name of the appellant is mentioned in the F.

1. R. the weapon used by him and the part played by him are also given therein; the eye-witnesses are not inimical and the defence failed to elicit any material infirmity which may- shake the credit of the eye-witnesses. 9-A. The learned counsel has however, challenged the nature of the offence committed by the appellant. According to him, the allegation in .the circumstances of the case accepted as true, the offence committed by the appellant would fall within the purview of section 304- I1, P. P. C. and not section 302, P. P. C. The learned counsel for the State has half-heartedly opposed the arguments of the learned counsel, on the ground that since the injury was inflicted on the head, the appellant can be safely burdened with intention to kill the deceased.

10. After having attended to the arguments presented by the learned counsel for the parties, I am inclined to agree with the learned counsel for the appellant for the reasons that there was no previous enmity between the parties; the occurrence appears to have ,q taken place all of a sudden and over ordinary quarrel and upon the deceased having repremanded the appellant immediately proceeding the infliction of injury on his person and ,although the deceased had been completely overpowered by Zahoor co-accused' yet the appellant did not repeat his blow as according to the eye-witnesses, he inflicted only on blow to the deceased. In these circumstances, I am of the opinion that it would be to much to burden the appellant with intention to kill the deceased, no he had intention to cause such, bodily injury as was likely to cause death but at the same time it can be safely held that he had the knowledge that his act was likely to cause death. His case, therefore, falls within the purview of Part-II of section 304, P.P.C.

11. For what has been stated above, the appeal is partly accepted. The conviction of the appellant under section 302, P. P.C. is set aside and in lieu thereof, he is convicted under section 304-II and sentenced to 7 years' R. I. He would also get the benefit of section 382-B, Cr. P. C. M. Y. H. Appeal partly accepted.