1990 PLP 1154 (SCMR)

Ss.304, Part I & 326

Criminal Procedure Code (V of 1898), S.544-A-- Constitution of Pakistan (1973), Arl.185(3)

Accused was convicted under S.304, Part I, P.P.C., by Sessions Court

High Court in appeal attired conviction from S304, Part I to 326, P.P.C. and reduced sentence

Petitioner's contention was that accused had inflicted two chhuri blows on the abdomen and flank of deceased; accused's intention was clear; death had followed; intervening complication did not detract from the culpability under S.304, Part 1 Penal Code; and that mandatory provisions of S.544-A, Criminal Procedure Code were also omitted from being given effect to

Contentions raised required consideration-- Leave to appeal was granted. Rashid Murtaza Qureshi, Advocate Supreme Court and Tanvir Ahmad Khan Advocate-on-Record for Petitioner. Nemo for Respondents. ABDUL SHAKURUL SALAM, J.--Respondent alongwith his brother was tried under section 302/3114, P.P.C. for the murder of Rashid Qamar. His brother was acquitted. Respondent was convicted under section 304, Part I P.P.C., by the learned Sessions Judge, Toba Tek Singh and was sentenced to 10 years' rigorous imprisonment and a fine of Rs.1,000, in default to undergo one year rigorous imprisonment. Under section 544-A, Cr.P.C., he was ordered to pay compensation of Rs.10,000 to the heirs of the deceased and in default thereof to undergo six months' rigorous imprisonment. It is vide order dated 30-8-1986. On his appeal, his conviction and sentences were set aside and he was found guilty under section 326, P.P.C. and sentenced to undergo rigorous imprisonment for three years plus a fine of Rs.1,000, in default to suffer six months' rigorous imprisonment. He was given benefit of section 382-B, Cr.P.C. This is vide order of the learned single Judge of the Lahore High Court dated 16-9-1987. 2.The learned counsel for the complainant contended that the learned Judge having observed that "the statement made by the complainant has beer corroborated by Samuel P.W. There was no previous enmity between the parties nor there was any hostility between the witnesses and the accused. The infliction of injury by the appellant to the deceased stands proved", there was no justification to set aside the conviction recorded by the trial Court. Learned counsel submitted that the learned Judge considered the crucial question to be "whether the prosecution has been able to prove beyond reasonable shadow of doubt that death of Rashid Qamar was direct result of the injuries suffered by him at the hands of the appellants." The learned Judge referred to the opinion of the doctor who had said that "the cause of death in this case was shock as a result of peritonitis and intestinal obstruction, which might be complication of old abdominal injuries". It was observed that since the doctor had "failed to give an express opinion as to which healed injury caused his death", the conviction of the respondent under section 304, Part 1, P.P.C could not be maintained. The learned counsel submitted that the respondent had given two Chhuri blows on the abdomen and flank of Rashid Qamar. The intention was clear. Death followed. Intervening complications did not detract from the culpability under section 304, Part I, P.P.C. Further, mandatory provisions of section 544-A, Cr.P.C. were also omitted from being given effect to. Contentions raised require consideration. Leave is granted. Bailable warrants shall be issued against the respondent in the sum of Rs.20,000 with two sureties in the like amount to the satisfaction of the District Magistrate, Toba Tek Singh. A.A./Z-103/S Leave granted.