P L D 1988 Lahore 581 (PLP)

The appellant, Abdul Karim son of Sabir Din, was convicted under section 325 P.P.C. and was sentenced to suffer five years' R.I. plus a fine of Rs.10,000 and in default thereof to undergo further two years' R.I. for causing the death of Muhammad Afsar aged 64 years, by the learned Sessions Judge, Jhelum vide his judgment dated 25‑6‑1987.

2. The prosecution case in brief as is evident from F.I.R Ex.PE is that on 25‑1‑1987 at about 5.00 p.m. Mst. Walayat Bibi, the mother of the complainant Muhammad Aslam, was going out towards her field for the purpose of throwing cow‑dung there. She passed through the field of Abdul Karim appellant when she found some cow‑dung lying in the way and she picked up the same. While returning from her field, she was intercepted by the appellant, who started hurling abuses upon her because she had picked up his cow‑dung from his field. On the noise being raised, Muhammad Afsar father of the complainant, reached the spot and reprimanded him as to why he was giving abuses to the lady without justification. The appellant was armed with a hatchet with which he. caused injury from its wrong side which landed on the right parietal side of Muhammad Afsar and consequently he fell down on the ground. Apart from the complainant Muhammad Aslam, the occurrence was witnessed by Ghazanfar Ali PW. The appellant, thereafter, ran away from the spot. The injured was brought to the house where he was made to take milk. After about 2/2J hours the victim died on account of the injury, he received in the occurrence.

3. Mushtaq Ahmad Mirza, Inspector PW.7 recorded the F.I.R. Ex.PE on 26‑1‑1987. He visited the spot at about 4.00 a.m. on the same day and prepared the inquest report Ex.PF. He also prepared the injury statement Ex.PG. The dead body was sent to mortuary through Muhammad Ashraf, Muhammad Akram and Abdul Khaliq P.Ws. Rough site plan of the place of occurrence was prepared by the witness. The last worn clothes of the deceased P1 to P3 were taken into possession vide memo Ex.PC. The witness arrested the appellant on 28‑1‑1987. He got the site plans Ex.PB and Ex.PB/1 prepared from Muhammad Sabir Patwari PW.2 on 9‑2‑1987. On 1‑2‑1987 the appellant led to the recovery of hatchet P4 which was taken into possession vide memo Ex.PD.

4. Mr. Asad Mahmood Mirza M.O. DHQ Hospital, Jhelum PW.1 conducted the post‑mortem examination upon the dead body of Muhammad Afsar on 26‑1‑1987 and found the following injury on his person:‑ "A contusion 3" x 2" on right parietal region about 3 above the right ear, surrounded by an area of depression in 3" diameter. It was observed by the doctor that the scalp was depressed as described in the injury. Skull was depressed of the right parietal bone. In the opinion of the doctor, death occurred due to the above‑referred injury which led to brain damage and haemorrhage. It was opined that the injury was sufficient to cause death in the ordinary course of nature. The injury was ante‑ mortem and caused by blunt weapon. The probable time between the injury and death was within eight ,hours and that between death and post‑mortem examination was approximately 14 hours.

5. The eye‑witness account has been provided by Muhammad Aslam PW 5 and Mst. Walayat Bibi PW.6 The evidence of Muhammad Aslam PW 5 shows that the appellant inflicted a hatchet blow from its wrong side on the right side of head of Muhammad Afsar and on the receipt of the injury the victim fell down on the ground. To the same effect is the statement of Mst. Walayat Bibi PW.6. Another eye‑witness. namely, Ghazanfar was not produced by the prosecution. The appellant while making a statement under section 342 Cr.P.C. denied the charge‑levelled against him and instead he took the plea of his own in defence. He has given a detailed reply to the question No.7. In nutshell he states that on the day of occurrence when the sun had already set and it was becoming dark, he was going towards his field with some fodder where his camels were tethered. From some distance he saw that three buffaloes belonging to the deceased were eating and damaging his fodder lying there for his camels. The deceased Muhammad Afsar was also coming from his house to take back his buffaloes to his house. The deceased at that time was at a distance of about three to four yards away from his buffaloes. The appellant picked up a stone and threw the same towards the buffaloes referred to above so that the animals may be driven off. Incidentally, the stone thrown by the appellant hit the head of the deceased and on the receipt of the injury he fell down there. The appellant immediately ran towards him and raised an alarm for help. Many people of the village reached the spot and Thereafter the injured was taken to the house of Mst. Gulzar Begum, 'his third wife.

6. The learned trial Court after discussing the evidence came to the conclusion that Muhammad Aslam PW.5 and Mst.Walayat Bibi PW6 were not present at the spot. He also placed reliance on the medical evidence. Consequently, the prosecution version was totally rejected by the learned trial Court. The defence version was accepted as the same was highly plausible under the circumstances. However, the learned trial Court, as observed earlier, convicted and sentenced the appellant under section 325 PPC vide his judgment dated 25‑6‑1987.

7. Learned counsel for the appellant contended that after there ejection of the entire prosecution version, there was no alternative left with the trial Court but to acquit the appellant in the case. It is argued forcefully that the defence version has been accepted by the learned trial Court and as such the appellant should have been acquitted on the basis of his statement. Learned counsel maintained that in fact in view of the provision contained in section 80 P. P.C. , no offence has been committed by the appellant. Mr, Muhammad Nawaz Abbasi, learned Assistant Advocate‑ General has supported the conviction and sentence awarded to the appellant by the learned trial Court. He submitted that the provisions contained in section 80 P.P.C. are not at all attracted to the facts and circumstances of the case.

8. I have heard the learned counsel for the parties and have perused the record. At the very outset, it may be noted that the State did not decide to file any criminal proceedings against the appellant for the enhancement of his sentence. The learned trial Court has disbelieved the statements of Muhammad Aslam PW 5 and Mst. Walayat Bibi PW.6. Ghazanfar Ali was another witness in the case who was not produced by the prosecution in evidence. The A non‑production of this witness in the case will draw an inference against the prosecution that in case he would have been produced he would not have supported the case of the prosecution and rather he would have deposed evidence in favour of the defence. After the rejection of the prosecution case in its entirety by the learned this Court and after the acceptance of the defence version as a whole arm of the view that the learned trial Court should have decided the fate of, the case in accordance with the statement made by the appellant under section 342 Cr.P.C. The statement of the appellant shows that in fact he threw a stone towards the three buffaloes of the deceased so that they may not cause further damage to the fodder kept by, him for his camels. He went on to say that the stone thrown by him incidentally hit the deceased on his head. Thus in my considered view, the facts, circumstances and the available evidence on record will amply show that the provisions contained in section 80 P.P.C. are attracted in the case. Section 80 of the P.P.C. is reproduced below for ready reference:‑ Nothing is an offence which is done by incident ok misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution." By misfortune occurrence appears to have taken place. The stone, incidentally hit the deceased otherwise, the appellant did not throw, the stone at hand. The appellant had no criminal intention or knowledge whatsoever in causing say harm to the deceased by his Act of stone. The evidence in the case is that the buffaloes of the deceased were eating and causing carriage to the fodder at the appellant at the, spot and he wanted the animals to run away by frightening them with stone pelting. Admittedly, there is no animosity or illwill existing between the appellant and the deceased Muhammad Afsar. There is evidence to show that the camels of the appellant were present at the spot and quite close to the camels fodder was lying. The appellant, therefore, had no intention whatsoever to cause any injury to the deceased. What he did at the spot was that he threw a stone for the purpose of driving away the buffaloes of the deceased‑ It is just an accident that the stone hit the deceased instead of the buffaloes. Thus, the provisions of section 80 P.P.C. are attracted with full force to the facts of the case in hand. The trial Court has failed to consider the above‑referred provisions of section 80 P.P.C. The appellant has, therefore, committed no offence whatsoever.

9. The upshot of the above discussion is that the appeal is accepted and the appellant is acquitted forthwith and is released provided of course he is not needed in any other criminal case. M.Y.H./A-386/L Appeal allowed.