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Criminal Appeal No. 12/J of 1986, decided on 11th March, 1987.

‑‑‑S. 304, Part II‑‑Nature of offence‑‑Time, place of occurrence and infliction of injury by accused admitted‑‑Accused giving one injury with blunt weapon on head of deceased‑‑Blow not repeated‑‑Sharp side of Takwa not used to inflict injury‑‑Quarrel over damage of crops of accused by goats of deceased‑‑Deceased not taken to hospital who died after 7/8 hours in his house‑‑Injury to deceased, held, was caused by accused with knowledge that it might cause death but without any intention to cause death or such bodily injury as was likely to cause death‑‑Conviction and sentence was maintained in circumstances.

Appellant through Jail.

Ashfaq Ullah Khan for the State.

Ahmad Hussain Shah Bokhari for the Complainant.

Dates of hearing: 4th and 11th March, 1987.

This is an appeal by Muhammad Hayat 25 through Jail to challenge his conviction under section 304(II), P.P.C. by learned Sessions Judge, Kasur who vide judgment, dated 27‑3‑1984 sentenced him to seven years' R.I. plus fine of Rs.5,000 or in default one year R.I. It was ordered that the fine, if realised, be paid to heirs of the deceased as compensation. The benefit of section 382‑B, Cr.P.C. was also allowed. This appeal was filed through jail after about two years of conviction. It was admitted on 25‑ 6‑ 1984 and has now been placed before me for final hearing.

Hameeda complainant filed Criminal Revision No. 592 of 1984 for enhancement of the sentence and conviction of Muhammad Hayat under section 302, P.P.C. This revision was admitted on 21‑1‑1985 with notice to Muhammad Hayat accused. The learned counsel for the complainant on my query formulated two points in support of the revision; firstly, that the case against Muhammad Hayat be remanded for retrial according to law; and secondly, the sentence awarded to the appellant be enhanced. This judgment will dispose of both these matters together.

2. The occurrence in this case took place at 4‑30 p.m. on 14‑2‑1983 in a field in village Baghail Singh Wala, about 10 miles from Police Station Raiwind, District Kasur. The formal F.I.R. Exh. P.A/1 was recorded by H.C. Abdul Hameed P.W. 1 at the police station on 15‑ 2‑ 1983, at 8‑20 a.m. on the basis of statement Exh. P.A. recorded by A.S.I. Muhammad Rafiq P.W.9 at the instance of Hameeda P.W.6 at 8‑00 a.m. on 15‑2‑1984 in village Boheliana.

It was stated by Hameeda in Exh. P.A. that he cultivated land of Muhammad Salim Naul in village Baghail Singh Wala. This land adjoined the lands of Haji Muhammad Siddiq P.W. and Muhammad Hayat accused. It was stated by him that on 14‑2‑1983 he was working in the wheat field. Haji Muhammad Siddiq was watering his field nearby. Nazir Ahmad and Shaukat were grazing their goats. The goats of Nazir Ahmad strayed in the field of Muhammad Hayat and damaged the crop. Nazir Ahmad deceased and Shaukat P.W. took away their goats and proceeded towards the village. When they reached near his sugarcane field, all of a sudden, Muhammad Hayat armed with Takwa (small hatchet) came there. It was stated by Hameeda complainant that on seeing Muhammad Hayat coming to that side, he and Muhammad Siddiq P.W. tried to apprehend him but before they could succeed, he gave a Takwa blow on the head of Nazir Ahmad deceased. They again tried to catch hold of the accused but he managed to run away. Nazir Ahmad fell in the sugarcane crop. He was then taken to his house where he died at about 11‑00 p.m. as a result of the injury. The occurrence was witnessed by Haji Muhammad Siddiq and Shaukat P.Ws. as well.

Hameeda complainant leaving the dead body in the care of Jamal Din and Faqir Muhammad proceeded to the Police Station to report the matter. He met A.S.I. Muhammad Rafiq and made statement Exh. P.A.

3. The police after registration of the case undertook investigation. The dead body of Nazir Ahmad aged about 30 years was sent for post mortem examination which was conducted by Dr. Captain Muhammad Anwar P.W. 10 at 10 a.m. on 16‑2‑1983. On external examination, the Medical Officer found "a lacerated wound on parietal temporal bone 6 c.m. x 3 c.m. x scalp deep:" On dissection, the left parietal and temporal bones were found fractured. Blood had clotted on menenges. All other organs were healthy. The injury had been caused by blunt weapon and was grievous in nature. The death was due to shock and internal haemorrhage due to above injury which was sufficient in ordinary course of nature to cause death. The time between injury and death was 10 to 12 hours and post‑mortem was conducted after about 36 hours of death.

4. The Investigation Officer A.S.I. Muhammad Rafiq P.W.,9 during inspection of the spot on 15‑2‑1983 collected blood‑stained earth vide memo. Ex. P.D,

Muhammad Hayat accused was arrested on 16‑2‑1983 and was remanded to police custody.

On 22‑2‑1983, Muhammad Hayat accused while in police custody led to the recovery of Takwa P.6 (small hatchet) from his house which was taken in possession vide memo. Exh. P.E. by A.S.I. Muhammad Rafiq P.W.9 in presence of Ghulam Haider P.W.5 and Faqir Muhammad P.W. not examined. The report of Chemical Examiner Exh. P.K. is on file of this case. The report of Serologist was not tendered in evidence.

The accused was challaned after completion of investigation.

5. In support of its case, prosecution examined eleven witnesses in all. Hameeda P.W.6, Haji Muhammad Siddiq P.W. 7 and Shaukat P.W.8 were examined as eye‑witnesses. The recovery of Takwa P.6 was witnessed by Ghulam Haider P.W.5. The medical evidence was furnished by Dr. Captain Muhammad Anwar P.W.10 as given in detail above. The case was investigated by A.S.I. Muhammad Rafiq P.W.9. The evidence of the rest of the witnesses was of formal nature.

Muhammad Hayat accused when examined after close of prosecution evidence denied the charge and pleaded innocence. In answer to question as to why this case against him, he stated that on 14‑2‑1983, at about 4‑00 p.m. he came to have a round of his field and saw goats of Nazir Ahmad damaging his crop. He protested with the deceased and asked him to take out his goats but he refused. At this he himself tried to drive out the goats. The deceased who had a stick attacked him. He saved himself. He was also holding a small stick and gave a blow to protect his person and property on the head of the deceased. He further stated that the eye witnesses were not present at that time. No evidence was examined in defence.

The learned trial Judge placed reliance on the evidence of eye witnesses, motive and recovery of Takwa P.6 and convicted the accused as stated above.

6. I have carefully gone through the evidence on record and have also heard learned counsel appearing for the parties.

The accused in his statement under section 342, Cr. P.C. admitted the time and place of occurrence. He stated that he gave one stick blow on the head of the deceased. Thus, the occurrence and infliction of injury by the accused on the person of deceased is not disputed. It is prosecution's own case that a short while before the occurrence, the goats of Nazir deceased had strayed in the field of Muhammad Hayat accused. The time of damage of crop by the goats of the deceased is given as 4‑00 p.m. i.e. about half an hour before the second occurrence in which Nazir Ahmad deceased was injured. In my view, both the occurrences took place at one and the same time. The learned Sessions Judge convicted the accused under section 304(11), P.P.C. for different reasons. The accused gave one blunt weapon injury on the head of the deceased. According to the prosecution, this injury had been caused by a Takwa while according to the accused himself he gave this injury with a stick. In any case, even if the accused had Takwa in his hand, then also he did not use the same from its sharp side. Thus, it is clear that he never intended to cause the murder of Nazir Ahmad, deceased. He gave one injury on the head of Nazir Ahmad. He did not repeat blows. The trouble started with damage of crop of the accused by goats of the deceased. The deceased was not immediately taken to hospital. He died after about 7/8 hours of the occurrence in his own house. This indicates that even the complainant party was not sure about the seriousness of the injury on the person of the deceased. The accused, therefore, could at the most be said to have caused the injury on the person of the deceased with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. As such, the conviction under section 304(II), P.P.C. was rightly recorded by the lower Court.

7. In view of the above discussion, I find no merits in this appeal which is accordingly dismissed. The conviction and sentence of Muhammad Hayat is maintained. He will be informed of the result of this appeal in person.

8. In view of the above decision in appeal, the connected criminal revision is dismissed.

S.A./M‑105/L Conviction maintained.

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