1995 PLP 1771 (MLD)

3. The police after registration of the case undertook the, investigation; Munir Ahmad Inspector P.W.6 after recording the F.I.R. visited Chiniot Hospital; where he prepared injury statement Exh.P.D. and inquest report Exh.P.E. of the deceased. The dead body of the deceased was handed over to Muhammad Ram7an, Constable for post‑mortem.

4. On 5‑9‑1990 Muhammad Ramzan, Constable produced before him last worn clothes of the deceased i.e. blood‑stained shirt P.2 and Shalwar P.3 which he took into possession vide memo. Exh.P.F. He got prepared the site plan Exh.P.C. and Exh.P.C./1 of the place of occurrence. On 14‑9‑1990 he arrested the accused who while in police custody got recovered Danda P.1 which was taken into possession vide memo. Exh.PA. After completion of the investigation he challaned the accused and sent him to Court to face the trial.

5. The prosecution during the trials examined as many as, eight witnesses in all. P.W.3 Muhammad and P.W.4 Yara were examined as eye‑witnesses in support of the prosecution version while P.W. Riaz was given up as won over by the appellant/accused. The recovery of Danda P.1 from ‑the appellant/accused was witnessed by P.W.1 Bashir. The case was investigated by Munir Ahmad, Inspector P.W.6; P.W.7 Dr. Javed Iqbal Qamar conducted the post‑mortem; while P.W. Lal Khan, P.W.5 Abid Sherazi and P.W.8 Muhammad)Ramzan are the formal witnesses who have fully supported the prosecution‑version.

6. The accused/appellant when examined under section 342, Cr.P.C. denied the charge and pleaded, innocence by stating that on 4‑9‑1990 at about 9/10 a.m. he had an altercation with the deceased on the question of turn of tonga but they were separated by the other tonga drivers; further stated that on the same day at about 4‑00 p.m. they again fell out with each other at Bus Stand Lalian where he gave one or two slaps to the deceased and they were separated by the people present there. The accused/appellant alleged that the complainant party tried to get medico‑legal report from the Medical Officer, Lalian Hospital with the help of one Saleem Lali but they did not succeed‑ as there was no injury on the person of the deceased. Further stated that the deceased was an ulcer patient and was in abdominal trouble due to change of season. He stated that the death occurred due to ulcer and not by any injury, allegedly caused by him.

7. The learned trial Judge placed reliance on the evidence of eye?witnesses, recovery of Danda P.1, motive; medical evidence and convicted the accused/appellant as stated above.

8. The learned Additional Sessions Judge observed that Danda P.1 is of common patron and was not stained with blood. It was not sent to the office of Chemical Examiner and, therefore, it cannot be linked with the commission of the offence allegedly committed by the accused and considering the recovery of P.1 of no help to the prosecution further observed that there was no previous enmity between the parties and agreed to the defence counsel version that it was not a premeditated murder but the accused took undue advantage of his robust physique against a boy of 12/14 years of age. The learned trial Judge did not agree with the learned counsel appearing on behalf of the accused during the trial that the case against the accused was at the most of a case under section 323, P.P.C. and convicted him under section 302, P.P.C. by observing that as the occurrence took place on the spur of moment, therefore, the accused deserved leniency; hence sentenced to life imprisonment.

9. I have gone through the record of this case with the assistance of learned counsel appearing on behalf of the appellant and the learned counsel for the State.

10. The learned counsel for the appellant contended that even if the entire prosecution version is accepted; then also it could not be said from the facts and circumstances or the case that the accused/appellant had any intention to murder the deceased or even had a knowledge that by his act the deceased would die. The learned counsel vehemently stressed on legal premises that the case in hand of appellant/accused would fall .at the most within the ambit of section 323, P.P.C. and by no stretch of imagination the ingredients of section 302, P.P.C. would be attracted.

11. Conversely, the learned counsel for the State controverted the arguments of learned counsel but felt difficulty to rebut the contention of learned counsel that the case would fall within the ambit of section 323, P.P.C.

12. I have examined the evidence on record. It is the case of prosecution that the accused/appellant abused Iqbal deceased on the question of turn of his tonga; Iqbal deceased also abused the appellant; whereupon the appellant gave a Danda blow which hit him on the left side of deceased's head and the deceased fell down; then the accused gave kick blows to the deceased in his abdomen. A perusal of the medical evidence would show abrasion 0.5 x 0.2 c.m. on later aspect of left ear was observed by the doctor on 4‑9‑1990 on the first examination of the deceased and complaint of pain in abdomen. The injury was found simple and caused by blunt weapon. During the post‑mortem the doctor observed in addition tip aforementioned injury; two contusion 6 x 4 c.m. each on lower abdomen. According to him death was due to internal haemorrhage injury to vital organ and shock. The blow of Danda did not cause fracture or caused any head injury. According to doctor that there was no contusion or abrasion on the abdomen of the injured (deceased) when he medically examined him before death and even injury of abrasion 0.5 x 0.2 c.m. on later aspect of left ear could be caused by a fall. Further stated that contusion mark could occur even after 8/10 hours if there is internal bleedings. The manner death caused, the accused, therefore, could not know that his act of kicking on abdomen would result in the death of deceased. He did not use the alleged stick for causing more injuries on the person of deceased. As such I am of the view that the accused neither intended to cause the death of Iqbal deceased nor had any knowledge that his act would cause internal haemorrhage injury to vital organ and shock.

13. I have examined the case‑law on the subject. In Dayal Singh v. Emperor AIR 1926 Lah. 419 the accused was charged under section 302, I.P.C. and convicted for having caused the death of Harnam Sing. It was held by a Division Bench that the majority of injuries infected being slight, the safer inference to draw in such a case was that the assailants of the deceased neither intended to cause death nor knew that they were likely to cause death. They were accordingly convicted under section 325, P.P.C.

14. In Darya Khan v. The Crown 1969 PCr.LJ 1233 the accused was sentenced to death under section 302, P.P.C. and also to 3 years' R.I. under section 382, P.P.C. for causing the death of Yar Muhammad by giving a hatchet blow on his head. It was held by their Lordships that the presence of requisite knowledge or intention under section 300, being not clear, conviction under section 302, P.P.C. could not be maintained and the same was altered to one under section 326, P.P.C.

15. In Pehalwan v. Crown 1969 SCMR 641 the accused were sentenced to imprisonment for life under section 302/149, P.P.C. for causing the death of Saif Ali by injuries on his head and other parts of the body. In post-?mortem report it was stated that the spleen which was of normal size showed a teer 3" long on postal surface while rest of the organs were healthy. The death was due to rupture of spleen and fracture of skull, due to‑ injuries Nos.2 and 1 respectively. It .was held by their Lordships that the intention is to be gathered from the nature of injury caused and the conduct of the assailants and the surrounding circumstances of the case. The appeal of Pehalwan was allowed and his conviction under section 302, P.P.C. was altered to section 325/149, P.P.C.

16. In Devraj v. The State PLD 1980 Kar. 246 the accused was sentenced under section 302, P.P.C. to imprisonment for life for causing the death of Mir Muhammad by inflicting only one Lathi blow on head. There was no previous enmity between the parties and their Lordships altered the conviction of the appellant from section 302, P.P.C. to one under section 325, P.P.C.

17. In view of the above, it cannot be said that the accused intended or IA even had a knowledge that his act would result in death of Iqbal deceased.

18. As a result of the above discussion, I set aside the conviction and e sentence of appellant and accept the appeal. The appellant shall be released forthwith if not required in any other case. N.H.Q./A‑843/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.