P L D 1983 Peshawar 87 (PLP)

(5) Abrasions " x " on the right side back of the chest alongwith 1/3rd of the medial border of the right shoulder blade. (6) Abrasions " x " placed on the lobe of the left ear. (7) Two abrasions each " x " on the upper end of the left leg just below the knee joint. (8) Abrasions " x " on the front of right knee joint. (9) Signs of development bed sore on the sacrum. On internal examination, he found the chest wall injured. Right and left lungs were congested. Stomach contained fluid. The injuries were reported to have been caused by blunt means and the death in the opinion of the doctor was caused by the injuries on the person of the deceased, which collectively were sufficient to cause death in the ordinary course of nature.

5. The accused when charged under section 302/34, P. P. C. pleaded not guilty and claimed trial.

6. In order to prove its case the prosecution in addition to the other witnesses got examined Mst. Badar Jan widow of Jabbar Khan (P. W. 7) and Imran Khan (P. W. 8) son of the deceased as ocular witnesses.

7. On completion of the prosecution evidence the accused were examined under section 342, Cr. P. C. wherein they denied the charge and pleaded innocence. They, however, did not deem it necessary to produce evidence in their defence.

8. On consideration of the recorded evidence, the learned trial Court found guilty the appellants for putting to death the deceased but was of the view that the offence falls within the ambit of section 326/34, P. P. C. and consequently passed the impugned order. The said order was assailed on two‑fold grounds namely that the prosecution has failed to bring home the charge to the appellants and secondly that even if proved the offence falls under section 323, P. P. C. as all the injuries on the person of the deceased were found simple.

9. I heard Mr. Khan Afsar, Advocate for the appellants, Mr. Bashir ullah Khan, the learned Assistant Advocate‑General that for State and Sardar Mumtaz Alam, Advocate for Mst. Badre Khatoon, the petitioner of the revision petition.

10. The first question falls for determination would be if the evidence on the record would connect the appellants with the commission of the assault which ultimately resulted in the death of the victim.

11. It was argued by the learned counsel for the appellants that there is inordinate delay in reporting the matter to the police and it would show that a was after consultation and deliberation that the accused were falsely implicated. The perusal of the record would, however, show a valid reason for the delay. The victim had a small male issue and two females in the house. They out of fear could not leave their house to go to the Police Station. It may be necessary to state that it is not per se in all cases which would give rise to an adverse presumption against the prosecution but delay in particular circumstances of a case implied with possibility of fabrication or exaggeration of facts of conference and consultation that would lend to militate against the prosecution. The parties being close relations, there fore, the possibility of mistaken identity would not arise.

12. The learned counsel for the appellants then contended that the ocular evidence could not be credited with credence as it was not accepted with regard to one of the assailants.

13. The plea would have no force as it is now well‑settled that the evidence which has not been accepted as regard culpability of a co‑accused can be taken into consideration against the other.

14. It is clear from the statements of the eye‑witnesses that the deceased was subjected to kicks and fists blows. There can be no reason for false implication. The medical evidence also support this contention. It, is thus proved that the deceased who was an aged person and suffering from asthma succumbed to the injuries caused by fists and kicks. Though the injuries were simple in nature but they ultimately resulted in his death.

15. The question of importance for determination would, however, be under which provision of the Pakistan Penal Code, the offence committed falls. It was contended on behalf of the appellants, that keeping in view the nature of the injuries and the intention of the appellants, the offence is covered by section 323, P. P. C. On the other hand, it was urged that keeping in view the circumstances of the case, the accused have committed offence of murder and that as such, they should have been convicted and sentenced under section 302, P. P. C. In support, my attention was drawn to the medical evidence, wherein the doctor who conducted the post‑mortem examination, reported that individually each injury on the person of the deceased was simple but commulatively, they were sufficient to cause death. The learned counsel for the appellants replied that the expert opinion, no doubt deserves respect but in view of the proved facts, the argument of the learned counsel for the opposite‑party is not tenable. It was argued that the medical expert has lost sight of the fact that the deceased was kept in the house unattended by any doctor, after the occurrence till his death and that the death was the direct result of this negligence. The injuries on the person of the deceased, it was further stated were simple and as such, the appellants could not be held to have either committed murder or grievous hurt resulting in the death of the victim find myself in agreement with the learned counsel for the appellants. `The fact of death supervening upon infliction of hurt is not imputable to the person who inflicted the hurt, if all he intended or knew to be likely was hurt. The conviction in such cases must be for hurt only.' The law is well‑settled that when the injury is not serious and there was no intention to cause death or grievous hurt nor had the accused knowledge that it was likely to cause grievous hurt or death, a B man 'is guilty of hurt and not death. In other words, to constitute the offence of voluntarily causing hurt, there must be complete correspondence between the result and the intention or the knowledge of the accused. If the injury inflicted are not grievous, the offender cannot be credited with the knowledge that the injuries were likely to cause death and he could only be convicted under section 323, P. P. C.

16. In the absence of evidence to establish that the accused had the intention to kill and knowledge that the kicks and fists would result in death, the offence committed shall fall under section 323, P. P. C. The learned trial Court has evidently erred in convicting the‑appellants under section 326, P. P. C. for grievous hurt. Similarly I find no force in the arguments of the learned counsel for the complainant that the offence falls under section 302, P. P. C.

17. The next question would be that of punishment. Section 323, P.P.C. provide one year's R. I. or fine which may extend to Rs. 1,000 or both.

18. The appellants were convicted and sentenced under section 326, P. P. C. which is not tenable in law and is to be altered. The accused are held guilty under section 323, P. P. C. and sentenced to one year's R. I. In addition, they are to pay fine of Rs. 1,000 each, which amount on recovery is to be paid to the heirs of the deceased, as provided by section 544‑A, Cr. P. C. In case of failure the appellants are to undergo further 3 months' R. I. With this modification the appeal otherwise stands dismissed. The revision petition also fails and is dismissed accordingly. S. Q. Appeal partly accepted.