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Criminal Appeal No.741 of 1986, decided on 22nd August, 1987

---S.304, Part II--Rivalry between deceased and accused over a trade deal--Occurrence, result of a sudden quarrel without premeditation-Accused delivering one fatal kick on testicles of deceased resulting in his death--Conviction of accused under S.304, Part II, P.P.C. held, was correct and sentence of five years' R.I. commensurate with, gravity of offence.

---S.304, Part II--Occurrence taking place right in front of factory of eye-witnesses- -Witnesses being natural, their evidence could not be thrown away merely on ground of their relationship with the deceased.

Rana Badar Munir for Appellant.

Ch. Imtiaz Ahmad for the State.

Malik Saeed Hassan for the Complainant.

Date of hearing: 6th July, 1987.

Naukar Hussain and his brother Muhammad Hussain sons of Nawab Din were tried for the murder of Muhammad Anwar deceased by the learned Sessions Judge, Gujranwala who vide judgment, dated 11-11-1986 convicted Naukar Hussain under section 304, Part II, P.P.C. and sentenced him to 5 years R.I. plus a fine of Rs.2,000 or in default to undergo 6 months R.I. He was further directed to pay of sum of Rs.10,000 as compensation to the legal heirs of the deceased or in default to undergo further R.I. for 6 months with benefit of Section 382-B, Cr.P.C. Muhammad Hussain co-accused was, however, given the benefit of doubt and acquitted.

2. Naukar Hussain appellant has filed appeal (Crl. A.No. 741-86) challenging his conviction and sentence while Muzaffar Hussain complainant has filed (Crl. R.No.593-86) for enhancement of his sentence and (C.rl. R.No.59-87) has been filed by him challenging the acquittal of Muhammad Hussain respondent. All the matters are being disposed of by this judgment.

3. The prosecution case is that 8 days prior to the occurrence the accused had purchased earth of one killa of land from one Muhammad Hussain Haider Walia for a consideration of Rs.8,000. After 3/4 days of the said purchase Muhammad Anwar deceased and Muzaffar Hussain P.W.6 (complainant) had also purchased the earth of contiguous killa from the same person for a consideration of Rs.11,000. A day before the occurrence the accused had picked up an altercation with Muzaffar Hussain complainant and Muhammad Anwar deceased for purchasing earth at a higher rate. Both the parties had grappled with each other. Baqar P.W.8 and Manzoor Hussain P.W. (not produced) separated them. It is alleged that while leaving that place the accused had threatened the complainant and the deceased with dire consequences.

On 24-2-1986 at 7.30 A.M. Muzaffar Hussain P.W.6 and his brother Zulfiqar P.W.7 were present in their factory in Mukhtar Colony, Gujranwala while their cousin Muhammad Anwar deceased was standing outside near a tractor trolly. On hearing noise Muzaffar Hussain and Zulfiqar P.Ws. came out and saw Muhammad Hussain respondent holding Muhammad Anwar deceased while Naukar Hussain appellant had given a kick blow on his testicles. He became unconscious and fell down. Meanwhile, both the accused ran away. The deceased was carried to Civil Hospital, Gujranwala but he expired before any medical aid could be given to him. Muzaffar Hussain left for Police Station and lodged the F.I.R. Exh. PE on the same day at 9 A.M.

4. After recording the F.I.R. Muhammad Aslam S.I. P.W.10 proceeded to the hospital and prepared inquest report Exh.PF and injury statement Exh.PG in respect of the deceased. He arrested the accused on 26-2-1986.

5. Dr. Haji Ata-ul-Mustafa Chatha, P.W.1 conducted post-mortem examination on the dead body of Muhammad Anwar deceased and found slight swelling on the scrotum. He, however, did not find any marks of external injuries on the body. Both the testis were sent to the Pathologist for expert opinion. According to him the time between injury and death was immediate and that between death and post-mortem about 24 to 48 hours. Dr. Abdur Rashid P.W.2 after examination of the testis opined that those were indicative of the receipt of injuries. The death was due to shock and injury to testis which was sufficient to cause death in the ordinary course of nature.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations.

7. To prove the ocular account the prosecution examined Muzaffar Hussain P.W.6 and Zulfiqar P.W.7. Shamas Uddin was, however, given up.

8. The learned trial Court did not consider the dispute taking place between the parties a day prior to the occurrence as proved and came to the conclusion that the incident culminating in the death of Muhammad Anwar had taken place suddenly at the spur of moment while Naukar Hussain appellant was passing in front of the factory of the complainant party over digging of earth. The learned trial Court was further of the view that Muhammad Hussain respondent had been falsely roped in due to his relationship with Naukar Hussain appellant and that he had no concern with the earth business of his brother.

9. It is contended that both the eye-witnesses are first cousins of the deceased and as such should not have been relied upon without any independent corroboration. It is next contended that no independent witnesses from the locality had been examined.

10. On the other hand, learned counsel for the State and the complainant have argued that the F.I.R. was prompt, the tine of occurrence is confirmed by the medical evidence and the injury inflicted on the deceased was sufficient to cause death. The defence plea that the complainant party had attacked him (Naukan Hussain appellant) with Chhuri and had ran after him and in that process the complainant had struck against the deceased as a result of which he suffered injury was an afterthought, it is added.

11. The occurrence had taken place right in front of the factory of Muzaffar Hussain P.W.6 and Zulfiqat P.W.7, therefore, being the natural witnesses their evidence cannot be thrown away merely on the ground of their relationship with the deceased. There was no serious background of enmity between the parties persuading the complainant party to implicate the appellant in a case involving capital punishment. Their testimony finds support from the medical evidence. There was no time at their disposal to make consultations and deliberations for the false involvement of the accused. There was a solitary fatal blow on the person of the deceased which is attributed to Naukar Hussain appellant. There was a rivalry between the parties over doing the same business. It has been rightly observed by the learned trial Court that the occurrence was the result of sudden quarrel without any pre-meditation. Some hot words might have been exchanged between the appellant and the deceased who was employed as a driver by Muzaffar Hussain complainant on his tractor trolly and in the course of the said quarrel Naukar Hussain appellant had given a kick blow hitting on the testis of the deceased which later resulted in his death. The defence plea that the deceased had received the said injury by striking against the complainant while running after him does not appeal .to reason. Had the complainant party run after him while armed with Chhuri they would not have allowed him to escape unhurt.

12. It is borne out from the record that it was only Naukar Hussain appellant who was dealing in the earth business and Muhammad Hussain respondent had no concern with it. Furthermore, he is not alleged to have caused any injury to the deceased. The role attributed to him also appears to be improbable. If he had actually held the deceased it could not have been possible for Naukar Hussain appellant to give a kick blow on the testis. He was, therefore, rightly given the benefit of doubt and acquitted by the trial Court. As the occurrence's had taken place at the spur of moment without any pre-meditation or Naukar Hussain appellant taking any undue advantage of the situation he was, therefore, rightly convicted under section 304, Part II P.P.C. and sentence awarded to him is also quite commensurate with the gravity of the offence and does not call for any interference Accordingly, the appeal filed by him (Naukar, Hussain) fails and is dismissed.

The revision for enhancement of sentence of Naukar Hussain appellant and the revision for setting aside the acquittal of Muhammad Hussain also fail and are dismissed accordingly.

K.B.A./N-58/L Appeal dismissed.

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