1986 P Cr (PLP)

In cross‑examination, it was stated by the Medical Officer that the paralysis was a disease of nerves. The organs would not function when paralysed. When an organ is suffering from paralysis, it would be diseased and not a healthy organ. The heart of Abdul Qayyum was healthy but paralysed. It was further stated by him that internal viscera were not effected by the injury on the person of Abdul Qayyum.

5. The Investigating Officer during inspection of spot on 30‑5‑1984 collected 18 pieces of mirror (not marked or exhibited), vide memo. Exh. P.D. in the presence of Naeem Ahmad Khan, (P.W. 7) and Muhammad Aslam P.W. (not examined). The accused Akhlaq Ahmad was arrested on 2‑6‑1984. At the time of his arrest, he produced walking stick (Chhuri) P. 1 which was taken in possession by S.I. Salabat Khan vide Memo. Exh. P.E. in presence of the same witnesses. The accused was challaned after completion of the investigation.

6. The prosecution, during the trial, examined eight witnesses in all. P.W. 5 Yasmin Kausar and P.W. 6 Shahid Butt were examined as eye‑witnesses in support of the prosecution case. Muhammad Aslam and Mst. Balqees Begum, eye‑witnesses named in the F.I.R., were given up as unnecessary. The recovery of stick P. 1 from the accused and recovery of 18 pieces of glass from the place of occurrence was witnessed by Naeem Ahmad (P.W. 7), a son of Abdul Qayyum deceased. The case was investigated by S.I. Salabat Khan (P.W. 8). The evidence of rest of the witnesses was of formal nature. The accused when examined under section 342, Cr.P.C., denied the charge and pleaded innocence. He admitted the differences between his mother and his wife Yasmin Kausar on account of which she did not want to reside with him. He stated that on account of this quarrel with his mother, the complainant Yasmin Kausar wanted divorce from him and, therefore, involved him in this case. He did not produce any evidence in defence. The learned trial Judge placed reliance on the evidence of eye‑witnesses, recoveries, motive, and convicted the accused as stated above. He did not agree with learned counsel appearing on behalf of the accused during the trial that the case against the accused was at the most a case under section 323, P.P.C. and convicted him under section 302, P.P.C. as stated above.

7. I have gone through the record of this case with the assistance of learned counsel appearing on behalf of the appellant and the learned Assistant Advocate‑General. It was contended on behalf of the appellant that even if the entire prosecution case is accepted, then also it could not be said from the facts and circumstances of this case that the accused intended to murder Abdul Qayyum or even had a knowledge that by his act the deceased would meet his death. It was, therefore, argued that, on legal premises, the case of Akhlaq Ahmad appellant would fall at the most within the ambit of section 323, P.P.C. The learned Assistant Advocate‑General felt difficulty in opposing this contention. I have examined the evidence on record. It is the case of prosecution that the accused first gave two stick blows to Abdul Qayyum deceased and thereafter, caused injury on the chest of the deceased by throwing a looking glass, lying nearby at him. A perusal of the medical evidence would show that the deceased did not have any injury of stick or by any blunt weapon on his back. The occurrence took place at 11‑00 p.m. on 29‑5‑1984. Mst. Yasmin kausar (P.W. 5) informed her brother at Rawalpindi who reached the place of occurrence at Sehiwal on 30‑5‑1984. He, as stated by him during the trial, informed the Police whereafter S.I. Salabat Khan reached the place of occurrence and recorded statement of Yasmin Kausar at 7‑30 p.m. It, therefore, appears that the story that the accused caused two Chhuri blows on the back of Abdul Qayyum deceased was fabricated to make out a case of intentional murder against the accused. The delay in lodging of the F.I.R. was material. The police station was only two furlongs away. The dead body remained lying in the house for many hours but the F.I.R. was lodged next day in the evening after arrival of Naeem Ahmad Khan P.W. who informed the S.H.O. of the occurrence. Thereafter, the police arrived at the spot and recorded the statement of Yasmin Kausar. The police should have recorded the statement of Naeem Ahmad Khan immediately at police station which was not done. The delay and the manner of reporting the matter to the police cast doubt on the prosecution case. The mirror was lying in the room where the present occurrence took place. There was exchange of hot words between the accused and the deceased whereafter he allegedly picked up the said mirror and threw the same on Abdul Qayyum deceased. It struck his chest. The mirror did not cause fracture of any bone. It in ‑fact did not cause any injury which could have resulted in the death of the deceased. No internal organ of Abdul Qayyum deceased got injured as a result of the said injury by mirror. The death occurred due to paralysis of heart. The accused, therefore, could not know that his act of throwing mirror at the deceased would result in the paralysis of heart. He did not repeat any injury on the person of the deceased. He did not use the alleged stick for causing more injuries to the deceased after throwing mirror on him. As such I am of the view that the accused neither intended to cause the death of Abdul Qayyum deceased nor had any knowledge that his act would cause paralysis of heart resulting in the death of deceased. Only a simple injury resulted by the act of the accused.

8. I have examined the case‑law on the subject. In Dayal Singh v. Emperor A I R 1926 Lah. 419 the accused was charged under section 302, P.P.C. and convicted for having caused the death of Harnam Sings. It was held by a Division Bench that the majority of injuries inflicted 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. In Darya Khan v. The Crown 1969 P Cr. L J 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. In Pehalwan v. Crown 1969 S C M R 641 the' accused were sentenced to imprisonment for life under section 302/149, P.P.C. for causing the death of Saif Ali by inflicting 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 leer 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. In Devraj v. The State P L D 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 302, P.P.C. to one under section 325, P.P.C. In the instant case it will be noted that the deceased was aged about 66 years. The accused did not use any weapon of offence but in the heat of passions threw a looking glass, which was lying nearby, at the deceased which caused only a simple injury. The accused did not inflict any other injury to the deceased. He did not know that the said injury could result in paralysis of heart. The injury did not fracture any bone or damage any internal viscera or organ.

9. In view of above, it cannot be said that the accused intended or even had a knowledge that his act would result in death of Abdul Qayyum deceased. He can, therefore, be only held guilty of causing simple hurt to the deceased punishable under section 323, P.P.C.

10. Am a result of the above discussion, I set aside the conviction and sentence of Akhlaq Ahmad appellant under section 302, P.P.C. and instead convict him under section 323, P.P.C. The appellant was arrested on 2‑6‑1984. He was not allowed bail during the trial or by suspension of his sentence after filing this appeal. This means that he is in prison since 2‑6‑1984. I, therefore, sentence him to imprisonment already undergone by him under section 323, P.P.C. With the above modification this appeal is dismissed. M. A. K. Appeal dismissed.