1981 P Cr (PLP)

Habib Subhani for A.-G. for the State. Date of hearing : 1st June, 1981. Muhammad Anwar was tried by Mr. Saadat Ali Chaudhry, Magistrate Section 30, Faisalabad, under section 304, P. P. C. for causing the death of Abdul Latif deceased. The said Magistrate, by his judgment dated 8thFebruary, 1981 held Muhammad Anwar guilty under section 304, P. P. C. sentenced him to 7 years' rigorous imprisonment and to pay a fine of Rs. 1,000 or in default of payment of fine to further undergo rigorous imprisonment for 3 months.

2. The brief facts of the case are that on 31stMarch, 1979 at about 5-00 in the evening, Barkat Ali P. W. 2, the grand father of the deceased Abdul Latif, was cutting fodder in his field, while the deceased Abdul Latif was present at the dera situate nearby. Zulfiqar accused (not challaned by the police) took the deceased Abdul Latif along towards the dera of Nab; Ahmad P. W. 3, where Muhammad Anwar accused and Abdul Hameed were present. Muhammad Anwar accused asked the deceased Abdul Latif to wrestle with him. He refused. On his refusal, Muhammad Anwar accused grappled with him, lifted him and threw him on the ground. Abdul Latif deceased aged.15 years received injury on the neck and lost his senses. On his cries, Fazal Ahmad P. D. 1, Barkat Ali P. W. 2, Nabi Ahmad P. W. 3 and Fazal Ahmad son of Abdullah P. W. 5 rushed to wards the spot and witnessed the occurrence. Accused Muhammad Anwar along with Abdul Hameed and Zulfiqar ran away. Abdul Latif deceased was removed to the Civil Hospital Khurrianwala on 1st April, 1979 where he succumbed to his injuries. The post-mortem examination report revealed that the death had occurred due to shock (nervous) and paralysis of higher centre as a result of fracture of 3rd cervical vertebra.

3. At the trial, Muhammad Anwar accused admitted the occurrence, but stated that Abdul Latif deceased received injury on his neck during a wrestling bout with him, that there was no foul play and that the accused had himself wrestled with him voluntarily.

4. I have heard the arguments of the learned counsel for the appellant and the State and have perused the record. The only question that arises is whether Abdul Latif wrestled with the appellant voluntarily and, if not, whether the appellant is liable for any offence and, if so, which offence. The evidence of the eye-witnesses, namely, Fazal Ahmad P. W. 1, Barkat Ali P. W. 2, Nabi Ahmad P. W. 3 and Fazal Ahmad P. W. 5 does not sup port the fact that Abdul Latif deceased at any stage consented to wrestle with Muhammad Anwar appellant, but the evidence does show that the deceased was previously wrestling with another boy named Abdul Hameed, which bout remained undecisive, and the appellant invited the deceased to wrestle with him, who having refused, the appellant out of youthful bravado lifted up the deceased and threw him on the ground, head downwards, as a result of which the deceased's neck got fractured and he died. Abdul Latif deceased was aged 15 years and Muhammad Anwar appellant was aged 24 years at the time of the incident. Both were young boys. The evidence does not show that the appellant, when he picked up the deceased and threw him head downward. He died so with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death, or with the knowledge that he was likely, by such act to cause death. The appellant only wanted to wrestle with the deceased and defeat him and since the deceased refused to wrestle with him, he picked up the liberty of showing his prowess uninvited. At no stage the appellant wanted to cause the death of the deceased or such bodily injury as was likely to cause death and it appears that at that stage the appellant did not even have the knowledge that what he was doing was likely to cause death. In these circumstances, the case is not one of culpable homicide not amounting to murder. If any authority is required for this view, Faqir Muhammad's case (1976 P Cr. L J 1318) may be referred with advantage. The conviction and sentence of the appellant under section 304, P. P. C., therefore, appear to be incorrect and is set aside. The appellant is laible under section 325, P. P. C. for causing grievous hurt to Abdul Latif deceased.

5. The only question that now remains is that relating to sentence. It appears that the appellant at the time of this unfortunate incident, was aged

24. The appellant did not have any motive to cause any grievous injury to the deceased when he wrestled with him. However, it cannot be forgotten that the deceased did not want to wrestle with the appellant and appellant by picking up the deceased and felling him to the ground head downward, invaded the privacy of the deceased and caused him grievous hurt. Taking all circumstances into consideration, the appellant is convict ed under section 325, P. P. C. and sentenced to one year's rigorous im prisonment and to pay a fine of Rupees One Thousand (Rs. 1,000) or in lieu thereof to suffer further rigorous imprisonment for three months. The tine, if realised, shall be paid to the legal heirs of Abdul Latif deceased. The appellant shall also pay Rupees One Thousand (Rs. 1,000) to the heirs of Abdul Latif deceased as compensation under section 544-A, Cr. P. C. or in lieu thereof suffer rigorous imprisonment for three months. This appeal, therefore, stands partly accepted in terms of alteration of conviction and reduction of sentence as stated above. Order accordingly.