2001 P Cr (PLP)

Barkhurdar Ahmad Khan, S.H.O. P.W.9 who was present on patrol duty at Bus Stand, Shah Jamal, Where on 11-5-1994 at 2-00 p.m., he recorded the statement Exh.P.F. of Muhammad Akram, P.W. and got formal F.I.R. recorded at Police Station through Muhammad Ayub, H.C. P.W.1. After recording the case, he arrived at Hospital, Shah Jamal took into possession the dead body of Nazar Hussain, prepared the injury statement vide memo. Exh.P.D. and inquest report vide memo. Exh.P.E. handed over the dead body to Zafar Hussain Constable for autopsy. On 11-5-1994 the post-mortem examination on the dead body of Nazar Hussain was conducted by Dr. Riaz Hussain, P.W.4, who found the following injuries on the person of deceased:-- (1) Contusion 2 x l c.m on upper part of outer side of right upper arm. (2) Area of contusion 16 x 12 c.m. with swelling on front of lateral side of left lower chest. (3) Contusion 12 x 7 c.m. over left lower abdomen on front, Then the Investigating Officer arrived at the place of occurrence, wherefrom he took into possession two bricks 'Exh.P.431-2 and four brick bats Exh.P.5/1-4, vide memo. Exh.P.B. He prepared the rough sketch of place of occurrence vide memo. Exh.P.H. On 18-5-1994, 4shiq Hussain landlord produced before him the accused Fazla and Riaz Hussain. They, were arrested and sent in judicial lock-up. After completion of the investigation and recording of statements of the witnesses under section 161, Cr.P.C., he submitted the challan. The accused denied the allegations and claimed the trial. During the trial, the prosecution examined as many as 10 witnesses to prove the guilt of the accused. Muhammad Akram, complainant appeared as P.W.5. He supported the version of F.I.R. and prosecution story as an eye-witness of the occurrence Mst. Kalsoom appeared as P.W.6. She supported the prosecution story as an eye-witness. Zafar Hussain son of Nazar Hussain deceased was examined as P. W.7. He also gave ocular account as an eye-witness of the occurrence. Barkhurdar Ahmad Khan, Inspector appeared as P. W.9. -He recorded the statement of the complainant and investigated the case, challaned the accused. P.W.10 Muhammad Iqbal, H. C. recorded the formal F. I. R. Exh. P. F./1. At the end of trial, the accused were examined under section 342, Cr.P.C. and all the evidence produced by the prosecution was put to them. They denied the allegation and Fazla accused to the relevant question as to why this case against him, he made the following statement:-- "The children of the Basti were throwing brick-bats from outside the Haveli at the pigeon sitting on the house of the complainant and the brick-bats accidentally hit Nazar Hussain deceased who was sitting inside the Haveli. The private P.Ws. are related inter se and with the deceased, hence they have a motive to falsely implicate me and co-accused. The hitting of Zafar P. W. with the brick-bats is also as concocted and false story. " The trial culminated in conviction vide impugned judgment as mentioned above which has been challenged through this appeal. The learned counsel for the appellants has raised the following contentions in support of the appeal:-- (a) Riaz Hussain appellant even according to the prosecution case is less than 12 years and under section 83, P.P.C., he cannot be convicted. According to the school leaving certificate produced before the learned Sessions Judge, and according to entries in the said certificate Riaz Hussain was admittedly below 12 years. Fazla appellant was also 16/17 years of age at the time of occurrence. (b) That it is not an intentional murder. Admittedly, the occurrence took place over flying of pigeon. The children were throwing brick bats towards the pigeon who sat at the roof of the complainant party. Nazar Hussain was lying on a cot in his Courtyard and a brick-bat hit him on his chest which resulted into fracture of ribs. Due to tile delay in providing medical aid, he succumbed to the injuries. It was not a Qatl-e-Amd, but Qatl-e-Khata and the same falls under section 318, P.P.C. and is punishable under section 319, P.P.C. wherein maximum sentence is five years in addition to Diyat. (c) The accused and the complainant party are closely related inter se. The deceased was sister's son of Muhammad Shafi, father of the present appellants. The occurrence took place over a petty matter after quarrel among the children of the family. The accused are young. They deserve that lenient view to be taken. The learned counsel for the State- assisted by counsel for the complainant has opposed the appeal and argued that although the occurrence took place over a pigeon, but later on, the accused caused grievous injuries on the deceased and committed intentional murder. They supported the impugned judgment by arguing that the appellants have been rightly convicted by the learned trial Court. It was a daylight occurrence and the eye-witnesses have supported the prosecution version. Heard. Record perused. From the perusal of the F.I.R, the statements of complainant Muhammad Akram P.W.5, Mst. Kalsoom, P.W.6 and Zafar Hussain, P. W .7. who was aged 8/9 years all are consistent. They all are truthful witnesses. Ocular account is fully corroborated by medical evidence, but it is certain that the occurrence took place over flying of pigeon. The parties are very closely related to each other. The occurrence took place over a petty matter. It cannot be termed as intentional murder. The Investigating Officer also admitted that he saw brick-bats scattered outside the Haveli wherefrom the accused threw the brick-bats into Haveli. The prosecution has not produced and examined any independent witnesses of the occurrence. It was a daylight occurrence. The house of the complainant party is located in thickly populated locality surrounded by different houses, but none of them came forward to support the prosecution witnesses i.e. the intentional murder of Nazar Hussain by the appellants. From the circumstances of the case, possibility cannot be overruled that Nazar Hussain received the injury by hitting brick-bat while he was inside the Haveli. Zarar Hussain, P.W.7 although he has stated that was given beating by the appellants, but he was not medically examined. The facts otherwise are almost admitted between the parties. The only controversy is that at what place Nazar Hussain received injuries whether inside the Haveli or outside wherefrom the appellants were throwing the brick-bats. In absence of some independent witnesses of tile occurrence, it can safely be inferred: that Nazar Hussain received injury while he was present in his house and in this regard the statement of Faz1a appellant/accused appears to be more plausible. He has' himself admitted the occurrence, therefore, he is rightly held guilty in the commission of murder of Nazar Hussain. Now I attend to the contention of conviction and sentence and what offence has beenl committed by the accused. Riaz Hussain, appellant is less 12 years, therefore, he is given benefit of section 83, P.P.C. and, he is acquitted as such. The case of Fazla, appellant clearly falls under section 318, P.P.C. A as it was not intentional murder to attract the provision of section 302, P.P.C. His conviction in the circumstances of the case is altered to section 319, P.P.C. which is punishable upto five years' R.I. in addition to Diyat. He was arrested on 18-5-1994 and had already undergone sentence for a period of more than two years, which I consider is sufficient to meet the ends of justice. As far as the Diyat is concerned at the relevant time, the same is determined as Rs.2,20,000 which was fixed as per notification by the Government in the year 1994. The learned counsel for the appellant has contended that Fazla appellant does not own any property and his father is owner of small piece of land, therefore, I consider it proper that out of Rs.2,20.000 amount of rupees one lac, Fazla appellant is allowed to pay within two months in the trial 8 Court from today and the remaining amount of Rs.1,20,000 he is allowed to make the payment in two equal six monthly instalments to complete the payment within a period of one year after two months, subject to furnishing his security for making the payment of Diyat. The learned trial Court will' disburse this amount when paid, among the legal heirs of deceased Nazar Hussain in accordance with their shares under the law. The appeal is decided in the above terms. The revision petition filed by complainant is dismissed. Q.M.H./M.A.K./F-23/L Order accordingly.