1982 P Cr (PLP)

Abdur Rehman for A.-G. for the State. Date of hearing : 10th March, 1982. Ali Muhammad son of Chanan and Ali Muhammad son of Ahmad Yar were tried by an Additional Sessions Judge of Sargodha under section 302/34, P. P. C. for the murder of Surkhru Khan, Ali Muhammad son of Chanan was convicted under section 304-II, P. P. C. for the said murder and sentenced to ten years rigorous imprisonment with a fine of Rs. 5,000 or in default of payment of fine to suffer further rigorous imprisonment for one year. Fine, if realised, was ordered to be paid to the heirs of Surkhru Khan, deceased. Ali Muhammad son of Ahmad Yar was acquitted. The appeal of Ali Muhammad son of Chanan convict is now before me for disposal.

2. The occurrence in this case took place on. 23rd April, .1979 at about degarwela in the area of village Narri at a distance of ten miles from Police Station Katha Saghral, and the F. I. R. Exh. P. F. was lodged the same day at 10.45 p. m. on the night. Since the present occurrence was reported in the lifetime of the deceased, initially the case was registered under section 307/34, P. P. C. On.27th April, 1979 the injured. Surkhru Khan died and the offence was amended to one under section 302/ 34, P. P. C.

3. The case for the prosecution, as it emerges at the trial from the statement of Fateh Khan P. W. 4, who is son-in-law of the deceased, is that about ten months ago at about degarwela time he was busy in loading gram over the back of his camel in his fields near to that of the deceased. He deposed that the lands belonging to the accused are also adjacent to the lands of the deceased. Muhammad Nawaz P. W. 5 was also present near and was busy in grazing the animals there. Surkhru Khan deceased and his wife, Mst. Mughlan (given up P. W.) were busy in cutting grams. Both the accused were grazing their animals in their own fields nearby. Twice or thrice the cattle belonging to the accused entered the fields of the deceased, who turned them out. For the fourth time the cattle of the accused again entered the fields of Surkhru deceased, who turned them out with his stick, whereupon the accused took offence, abused the deceased and attacked him. Ali Muhammad son of Ahmad Yar, accused, held Surkhru deceased in his japha, whilst Ali Muhammad son of Chanan, accused, gave him a dang blow, which hit him on the head and he fell down. He himself rushed to the spot, raised hue and cry, but before he actually reached there, the accused managed to escape. Muhammad Nawaz P. W. 5 and Mst. Mughlan (given up P. W.) witnessed the occurrence.

4. On the day of incident at 8-00 p. m. Surkhru deceased was medically examined by Dr. Muhammad Riaz Ali P. W. 1 who found a swelling 3? x 2?? on the left side of his head, which injury was kept under observation and X-Ray was advised. Surkhru deceased died on 27th April, 1979, whereafter his post-morterm examination revealed that death was due to shock resulting from internal bleeding and compression of the brain which had resulted from the head injury.

5. On 29th April, 1979 both the accused were arrested by Malik Ali Muhammad S. I. P. W.

6. Ali Muhammad son of Chanan, accused, presented dang p. 3 to the Police Officer, which was taken into possession vide memo. Exh. P. G. in the presence of Fateh Khan P. W. 4, Ali Muhammad S. I. P. W. 6 and Sher Muhammad (given up P. W.).

6. Both the accused at the trial denied the accusations that were levelled against them and imputed their false implication to enmity. They did not produce any defence.

7. The learned trial Judge, relying upon the ocular account, the recovery and the medical testimony, convicted Ali Muhammad son of Chanan accused, and acquitted the other, as stated in para 1 above.

8. I have heard the arguments of the learned counsel for the appel?lant and the State. The only submission made by the learned counsel for the appellant is that the offence does not fall under section 304-II, P. P. C., but under section 325, P, P. C. The learned counsel for the appellant does not challenge the ocular or medical testimony or that relating to the recovery. With his assistance, I have been taken through the evidence and also the judgment of the learned trial Judge. The learned trial Judge held the implication of Ali Muhammad son of Ahmad Yar, acquitted accused, to be doubtful, which finding appears to be correct. As regards the case of Ali Muhammad son of Chanan, the present appellant, the learned trial Judge held that the occurrence .was the result of a sudden flare up as a result of the cattle of the appellant trespassing into the field of the deceased; which had compelled the deceased to use a stick for turning them out. The learned trial Judge also held that Ali Muhammad, appellant, seeing his cattle being driven out by the deceased with a stick, came there and he used the same and inflicted a solitary blow on," the deceased and, therefore, his case fell under section 304-1I of the Pakistan Penal Code. The learned trial Judge did not apply his mind to the question whether an offence under section 325, P. P. C. stood made out on the basis of the evidence recorded. His finding that the incident arose as a result of a sudden flare up, appears to be correct. Muhammad Nawaz p. W. 5 in cross-examination referred to the fact that when on the third occasion the cattle of the appellant entered the field of the deceased, he gave stick blows to them to drive them out, whereafter there was an altercation between the parties in which the accused gave blows to the deceased after abusing him. The inference that the deceased also abused the appellant and/or the acquitted accused, cannot be totally excluded. The memo. Exh. P. G. which relates to the recovery of dang P. 3 at the instance of All' Muhammad, appellant, shows that the same was 3?-8" long and about 3?? in circumference. It means that it was 1" in diameter. Dang P. 3 apparently, therefore, is a small sota, with which very likely the appellant had to tend his cattle. No previous enmity exists between the parties. The case does not appear to be one where the appellant inflicted the solitary injury on the head with the intention of causing death or such bodily injury which was sufficient in the ordinary course of nature to cause death or in committing the act he knew that it was so imminently dangerous that it would, in all probability, cause death or such bodily injury as was likely to cause death. It appears that the appellant was provoked when the deceased drove out his cattle after beating them with a stick and when he went up to reprimand him, some abuses led to a sudden flare up, which infuriated the appellant to give a stick blow to the deceased, with no greater intention than to cause grievous hurt. The fact that he did not repeat the injury also confirms this position. In the instant case, there is also no motive to show that the appellant had any motive to cause the death of the deceased. In Anwar's case (P L D 1965 Lab. 378) where a slight altercation between the deceased and the appellant led to the deceased being beaten by the two appellants, each one of whom inflicted one injury on the head of the deceased, of which one proved fatal, and there was no motive in the case to show that the appellants had a motive to murder the deceased, it was held that the offence committed by the appellants was one under section 325/34, P. P. C. and not 302/34, P. P. C. In the present case there appears to be no motive to show that the appellant would have made a murderous assault on the deceased. The occurrence arose over a sudden flare up. 1n these circumstances, the conviction of the appellant under section 304-II, P. P. C. is not correct and is altered to that under section 32.5/34, P. P. C -and Ali Muhammad appellant, is sentenced to five years' rigorous imprisonment with a fine of A Rupees Five Hundred (Rs. 500) or in default of payment of fine, to suffer further six months' rigorous imprisonment. The appellant shall also pay Rupees One Thousand (Rs. 1,000) to the heirs of the deceased as com?pensation under section 544-A, Cr. P. C. The fine, if recovered shall also be paid to the legal heirs of Surkhru, deceased. In view of section 382-B, Cr. P. C., the period of detention undergone by Ali Muhammad, appellant, as an under-trial prisoner, shall be treated as period of detention undergone by him as a convict. This appeal, therefore, stands partly allowed in terms of alteration of conviction and reduction of sentence, as stated above. Order accordingly.