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Criminal Appeal No. 383 of 1983, decided on 29th April, 1987,

‑‑‑Ss. 302 & 307‑‑Ocular testimony‑‑Related witnesses‑‑Occurrence not disputed‑‑Evidence of witnesses not challenged‑‑Witnesses having no enmity to falsely implicate accused‑‑Dispute over watering of lands near fields of parties‑‑Witnesses natural‑‑F.I.R. promptly lodged‑‑ Recovery of Kassi, not stained with blood‑‑Evidence of eye‑witnesses, held, could not be excluded from consideration but recovery of Kassi would be of no avail to prosecution as Kassi was commonly found with farmers.

‑‑‑Ss. 302 & 307‑‑Nature of offence‑‑Accused armed with Kassi, not using it from sharp side‑‑Injuries to deceased caused with blunt weapon, simple in nature‑‑No internal organ of deceased injured‑‑ Quarrel between accused and deceased flared up suddenly during watering of fields‑‑No premeditation to commit crime existing‑‑Injuries being on non‑vital parts of body accused, held, were not intended to cause death of deceased by giving pushes with handle of Kassi, though he had knowledge that death could likely be caused by such bodily injuries‑‑ Conviction and sentence altered to one under S. 304, Part II, P.P.C. in circumstances.

Dr. Khalid Ranjha for Appellant.

Altaf Muhammad Khan for the State.

Kh. Sarfraz Ahmad for the Complainant.

Date of hearing: 29th April, 1987.

The facts of this case, as gathered from evidence on record, are briefly stated below:‑

Jalal Din father of Muhammad Aslam deceased owned 15 acres of land in village Kul Bajwa, Tehsil Pasrur, District Sialkot. Their turn of water commenced at 6‑00 a.m. on every Tuesday and continued till evening. The land of Sultan Mahmood accused also was watered from a Khal (watercourse) which originated from the Khal of Jalal Din. At 6‑00 a.m. on 27‑7‑1982, Muhammad Aslam deceased started watering his field. Sultan Mahmood accused with Kassi in hand came there. He abused Muhammad Aslam. He stopped the flow of water in the field of complainant and left the spot saying that if again the water is allowed to flow in the land, he would teach lesson to him. At this, Muhammad Aslam deceased went to his village and informed of the happening to his brother Allah Rehm P.W. They both came to their field at about 7‑30 a.m. Sultan Mahmood accused also came there abusing. In the meanwhile, Muhammad Aslam again let the water flow in his field. At this, Sultan Mahmood gave push with the handle of Kassi to Muhammad Aslam who got injury near his right eye. Sultan Mahmood gave more pushes with the handle of Kassi to Muhammad Aslam who fell down and died shortly thereafter. The occurrence was witnessed by Ghulam Qadir and Javaid Iqbal P.Ws. as well.

Allah Rehm P.W.1 leaving the dead body at the place of occurrence went to Police Station Pasrur, District Sialkot, about 6 miles from the place of occurrence, and lodged report on the same day at 8‑30 a.m. which was recorded by S.I. Mushtaq Ahmad P.W.10.

2. The dead body of Muhammad Aslam aged about 25 years was sent for post‑mortem examination which was conducted at 4‑00 p.m. on the day of occurrence by Dr. Muhammad Sarwar P.W.8. On external examination, the Medical Officer found eight bruises of various dimensions on the right side of nose, right eye‑brow, front of right side of chest, below right shoulder, right side of the chest, front of abdomen above the level of umblicus and left side of chest. All these injuries had been caused by blunt weapon. On internal examination, the Medical Officer found extra vasation of blood in the subcutaneous tissues under the injuries. Muscles under the chest and abdominal injury were deeply congested. Pleura and abdominal organs were congested. In the opinion of Medical Officer, the death was due to extra vasation of blood in subcutaneous tissues and shock due to injuries 2 to 8, which were sufficient in ordinary course of nature to cause death. The time between injuries and death was half an hour and post‑mortem was conducted after about 6 to 12 hours of death. The Medical Officer in cross‑examination admitted that all bruises were individually simple in nature; that bruise may be the result of any blunt object including a stick, stone or a fist blow and that no internal organ was found to have been injuriously effected.

3. The Investigating Officer did not find any blood‑stained earth at the spot during inspection.

The Warabandi Exh.P.B. was taken in possession.

Sultan Mahmood accused was arrested on 3‑8‑1982. He, while in police custody on 9‑8‑1982, led to the recovery of Kassi P.I from his house which was taken in possession by S.I. Saeed Ahmad P.W.9 vide memo. Exh.P.D. (wrongly mentioned in his statement as Exh.P.B.) in presence of Shamas Din P.W.6 and Muhammad Bashir P.W., not examined. Kassi P.1 was not stained with blood.

The accused was challaned after completion of the investigation. He denied charge and pleaded innocence. No defence was examined.

4. The learned Sessions Judge, Sialkot, placed reliance on the prosecution evidence. He, therefore, vide impugned judgment, dated 17‑ 4‑ 1983, sentenced Sultan Mahmood 27 to imprisonment for life and fine of Rs.10,000 or in default two years' R.I. under section 302, P.P.C. He was sentenced to one month's R.I. under section 352, P.P.C. It was ordered that sentences of imprisonment shall run concurrently and half of the fine, if recovered, will be paid as compensation to the heirs of the deceased. Hence this appeal.

Allah Rehm complainant filed Criminal Revision No. 497 of 1983 for enhancement of sentence. It was not admitted. It was ordered to be heard alongwith the connected appeal. This judgment will decide both the matters together.

5. The learned counsel for the appellant did not dispute the, occurrence. He also did not challenge the evidence of Allah Rehm P. W.1 and Chulam Qadir P.W.2. I have carefully gone through the record of this case. Allah Rehm P.W.1 is real brother of Muhammad Aslam deceased. Ghulam Qadir P.W.2 is maternal cousin of the deceased while Javaid Iqbal, given up P.W., was son of sister of the deceased. Though related, these witnesses had not enmity to falsely implicate the accused in this case.

The occurrence took place on water dispute near the lands of the parties. The witnesses were, therefore, natural witnesses. The F.I.R. was recorded within one hour of the occurrence at the police station. I, therefore; do not find anything to exclude the evidence of the two eye‑witnesses from consideration against the accused. Kassi P.1 was not stained with blood. It is a common weapon found with every Zamindar. The recovery of this Kassi is, therefore, of no avail to the prosecution in support of its case.

6. It was however, contended by the learned counsel that in view of the medical evidence, no offence under section 302, P.P.C. could be said to have been made out against the accused. I have considered this argument in the light of the evidence of the Medical Officer.

The prosecution case is that the accused was armed with Kassi. He did not use it from its sharp side. If the accused had intended to murder) Muhammad Aslam, he could have given blows with sharp side of Kassi. According to the Medical Officer, all the injuries on the person of. Muhammad Aslam deceased had been caused by blunt weapon and were individually simple in nature. No internal organ was found to have been injured during internal examination of the dead body. There was no fracture of any bone of the deceased. According to the F.I.R., all the injuries were received by Muhammad Aslam while standing at the place of occurrence. It appears that Muhammad Aslam deceased and Sultan Mahmood accused picked up quarrel all of a sudden during watering of the field. There was, therefore, no premeditation on behalf of the accused the commit the present crime, The injuries were not inflicted on any vital, apart of the body. This would mean that the accused did not intend to cause death of Muhammad Aslam by giving pushes with the handle of the Kassi Ahough he had the knowledge that death was likely to be caused by such bodily injuries. As such, he cannot be convicted under section 302, P.P.C.

7. In view of the above discussion, the conviction of appellant under section 302, P.P.C. is set aside and instead he is sentenced to five years' R.I. plus fine of Rs.10,000 or in default two years' R.I. under section 304(II), P.P.C. The entire fine, if recovered, will be paid as compensation to heirs of the deceased. The conviction and sentence under section 352, P.P.C. is maintained. The sentences of imprisonment shall run concurrently. The appellant will be allowed benefit of section 382‑B, Cr.P.C.

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

S.A./S‑45/L Order accordingly.

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