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Criminal Appeal No. 694 of 1975, decided on 6th April 1976.

‑‑ S. 304 read with S. 323‑Culpable homicide not amounting to murder‑Accused grappling with deceased, giving him a fist, blow and pushing him aside‑Deceased falling down and receiving head injury resulting in his death‑‑Conviction under S. 304 altered to one under S. 323, P. P. C. in circumstances.‑[Culpable homicide not amounting to murder].

Rahim Bux v. The State 1971 P Cr. L J 269 ref.

Noor Muhammad Chandia for Appellant.

Farrakh Amin for A.‑G. for the State.

Date of hearing : 6th April 19 76.

This is an appeal by Faqir Muhammad who has been convicted of culpable homicide not amounting to murder of Murid Hussain son of Wahid 3akhsh aged 24/25 years then resident of village Dinpur, Police Station, Leiah District Muzaffargarh under Section 304, Part 11, P. P. C. and sentenc ed to rigorous imprisonment for 7 years by the learned Sessions Judge, Muzaffargarh vide order dated 16‑7‑1975.

2. Facts leading to this appeal are that Ghulam Hussain P W 5 lodged a report to the effect that he and his brother Murid Hussain (named as Murid Abbas in the judgment under appeal) deceased were living in the same house. His sister's husband Faqir Muhammad the appellant also came the previous evening and was staying with them. On the fateful evening, his brother Murid Hussain deceased came with one Mulazim Hussain. The latter stayed for a few minutes and went away. After the later's departure, Faqir Muhammad appellant said rather cruelty to Murid Hussain deceased as to why had hr brought Mulazim Hussain to the house as these people go and talk ill, on which Murid Hussain deceased and Faqir Muhammad, appellant abused each other and grappled. Faqir Muhammad gave a list blow to Murid Hussain and pushed him. Murid Hussain fell down and became unconscious. He was picked up, placed on the Charpai and was massaged but did not survive. The report Exh. P. B. was recorded by Mohammad Ali S. H. O, P. W. 7 at Naz Cinema, Lieah at 8‑15 p. m on 4‑9‑19 72 who sent it on for registration of a case under section 304, P. P. C. to the Police Station. The formal F. I. R. Exh. P. B. 1 was recorded by the Moharrir at the Police Station at 8‑45 i.e., the same day. Mirza Muhammad Ali Baig, S. H. O., Investigating Officer went to the spot and prepared injury statement Exh. P. C. and inquest report Exh. P. D. of the deceased Murid Hussain and despatched the dead body to the mortuary for post‑mortem examination. The accused was arrested the same day. After completion of the investigation, Muhammad Ali Baig, S. H. O. P. W. 7 challaned the accused appellant, Faqir Muhammad under section 304, P P. C: Dr. Muhammad Saeed, Medical Officer, Leiah conducted the post‑mortem examination of the deceased Murid Hussain on 5‑9‑1972 at 8‑45 a. m. He appeared before Committing Magistrate and made tae following state ment: "It was dead body f a young weak man . . . . " I found the following injuries on the dead body :‑‑‑

(1) Abrasion and contusion mark 1' x 3/4' on the chin.

(2) Slight swelling on the occipital region of the head.

There was a little blood under scalp in the occipital region. A little efusion of blood was on both careberal hemisphere, membrain and brain matter was little congested. On section there was capilary haemorrhage in the substance of brain . . . . In my opinion the cause of death was concussion of brain due to injury No. 2. This injury in its ordinary course of nature was sufficient to cause death . . . The injuries could be sustained by failing on the back side . . . Injury No. 1 was simple". After preliminary enquiry, the Com mitting Magistrate, to use his own words, "to be on the safe side" commit ted the accused appellant under section 302, P. P. C. to stand his trial before the learned Sessions Judge.

3. At the trial, Ghulam Hussain appeared as P. W. 5 and supported the prosecution case substantially as given in the F. I. R. Ghulam Sarwar appeared as P. W. 6 but was declared hostile and his statement before the Committing Magistrate was transferred on the Sessions file under section 288, Cr. P. C. wherein he had supported the prosecution case. It was read in the evidence. The Investigating Officer appeared as P. W. 7 and stated in the cross‑examination that the case against the appellant was registered by him under section 304, P. P. C. and he also challaned the appellant under the said section. In his statement under section 342, Cr. P. C., the accused appellant stated as under :‑ "There was an altercation between me and Murid Hussain deceased on the day of occurrence. Ghulam Hussain caught hold the deceased and Nawaz caught hold of me. Nawaz pushed me while the deceased was pushed by Ghulam Hussain. No blow was given by me to the deceased. Ghulam Hussain in order to avoid his own liability has falsely involved me in this case". At the conclusion of the trial, the learned Sessions Judge found the accused appellant not guilty under sec tion 302, P. P. C. but under Section 304, Part 11, P. P. C. and sentenced him to 7 years' rigorous imprisonment, as stated above.

4. Learned counsel for the appellant has submitted that out of the two eye‑witnesses Ghulam Hussain P. W. 5 is not to be believed as the later had tried to throw away the blame from his own shoulders on to the appellant and, secondly that in the F. I. R. the said witness said that Murid Hussain deceased was his brother whereas in the cross‑examination it has been admitted that the deceased was not his brother but only a person from the brotherhood. It is, next, contended that the other witness, Ghulam Sarwar P. W. 6 has been declared hostile and, is therefore, not reliable. Consequen tly, his statement before the Committing Magistrate cannot be read in evidence or relied upon. Lastly, the learned counsel has contended that the appellant had neither any intention, nor, knowledge that the fist blow, even if given by him, was likely to cause death of the deceased. It is submitted that the deceased fell down and it was on account of the fall that the injury No.2, was caused on the head resulting in the death. Learned counsel has submitted that, in the circumstances of the case, section 304, Part II, P. P. C. had no application to the facts of the case.

5. Learned counsel for the State has not seriously or successfully supported the conviction ear the sentence recorded by the learned trial Court.

6. From the evidence on the record I am satisfied that Ghulam Hussain P. W. 5 has truthfully stated the facts of the case and the learned Sessions Judge rightly read the transferred statement of Ghulam Sarwar. Further, that there is no truth in the defence plea as it was not only belated at the last stage but there is nothing on the record to warrant its acceptance, It is, therefore, established that the accused appellant had given a fist blow to the deceased and pushed him. The deceased fell down. According to the medical evidence, injury No. 2 which has caused the death could come about by a fall. It is not the case of the prosecution that this injury way caused by the accused appellant. The deceased was, according to the medical evidence, a weak man. The death, it appears, has ensued by misfortune. The accused appellant, on the evidence on record, cannot be attributed the intention or knowledge that his fist blow was likely to cause the death of the deceased. In somewhat similar circumstances, in the case of Rahim Bakhsh v. the State (1971 P Cr. L J 269) a Division Bench judgment of this Court delivered by Mr. Justice Muhammad Afzal Khan, it was observed at page 773 that "the appellant held Haji by the neck and pushed him to the ground. This rude shake resulted in the death of Haji. This certainly did not amount to "strangulation". Haji had pocketed previous insult and beating ; now like a weak aggrieved person, he cursed the appellant. Certainly, the appellant did not feel so much offended as to intend the causing of his death. Perhaps, he wanted to give him another rude shake for inviting the wrath of God on him (appellant). The appellant must have used ordinary force. But the result, namely, the death of Haji, was out of all, proportions to the force applied. It is trust that ordinarily a person is presumed to intend the consequences of his act. But in the instant case, the appellant could not be credited with any knowledge of the diseased condition of various internal organs of Haji. He cannot, therefore, be held to intend the consequence of his act. It is, therefore legitimate to conclude that the appellant merely wanted to cause simple hurt to Haji. Notwithstanding the fatal consequences, his case falls under Section 323, P. P. C." In the present case, the appellant is not stated to have given the fist blow on the head of the deceased. He is said to have given fist blow and pushed him only. The deceased fell down, received injury on the head and died thereof. In this view, the case of the accused appellant is better than that of Rahim Bakhsh. It, therefore, falls under Section 323, P. P. C. Consequently, the conviction of the accused appellant is altered from Section 304, Part II, P. P. C. to one under section 323, P. P. C. He is sentenced to one year's rigorous imprisonment and a fine of Rs. 1,000 (Rupees one thousand) which, if realised, shall be paid to the heirs of the deceased. In case of default, the appellant shall suffer further rigorous imprisonment for a period of three months. This appeal, thus, stands disposed of.

Order accordingly.

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