Appellant Muhammad Ayub alias Ayuba was tried for the murder of Muhammad Bashir by the learned Additional Sessions Judge, Gujranwala who on 4th November 1975, sentenced him to life imprisonment with a fine of Rs. 5,000 or in default of payment of fine to undergo R. I. For further five years. The amount of fine if realised was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C.
2. According to the statement of Munawar Hussain (P. W. 7), which was recorded by Noroze Ali (P.
W. 11) in Civil Hospital, Hafizabad, he had placed a Bench and a chair outside the power-looms factory of Dilawar so as to shave or cut the heir of people. On the day of occurrence i.e. 15th October 1973, at about 11 a.m. Ayub accused came to him to get himself shaved. Bashir deceased who was sitting in the factory called the appellant dog potter. The appellant abused him in the name of his sister. Muhammad Bashir deceased forbade the appellant from calling bad name.
Upon this there was quarrel between them. The matter was patched up by Habibullah brother of owner of the power-looms. The appellant left saying that he will teach him a lesson. By 3-30 p.m.
Muhammad Ayub again came to the shop of the complainant, picked up a razor and gave a blow on the neck of Bashir who died in the factory. The appellant decamped from the place of occurrence. The occurrence was witnessed by Siraj Din (P. W. 8) as well. Formal F. I. R. Exh. P. A./ 1 was recorded by Mehdi Zaman A. S. 1. (P. W. 6) at Police Station, Hafizabad.
3. The eye-witnesses in this case are Munawar Hussain Barber (P. W. 7) and Siraj Din (P. W. 8) father of the deceased. Noroze Ali (P. W. 11) in the presence of Dilawar (P. W. 10) recovered razor (P. 1) from the appellant which was taken into possession vide Memo. Exh. P. B. Attested by Muhammad Nazir also. The report of the Chemical Examiner (Exh. P. L.) reveals that razor was blood-stained, but the report of the Serologist; (Exh. P. N.) shows that the origin of the blood could not be determined since the stains of blood had disintegrated. The recovery in these circum stances is of no consequence.
4. We are now left with the statements of the witnesses one of whom is absolutely independent. The father of the deceased had no animus against the appellant to involve him falsely in the murder.
The appellant denied the occurrence and recovery. He stated that P. W. Munawar had concocted a story to save his own skin. He pleaded innocence and declined to produce any defence.
5. Sheikh Maqbool Ahmad II learned counsel for the appellant frankly conceded that he could not .Rely on the defence of the accused and it was difficult to discard the veracity of the eye-witnesses.
He, however,. Said that something must have happened which the prosecution has withheld and probably the incident is one and the same which has been bifurcated into two parts m order to bring the case within the ambit of section 302, P. P. C, Even if the facts are admitted, as they are, since there is no premeditation and enmity it is a sudden affair in which-the appellant and the deceased abused each other and the appellant picked up a razor from the shop of barber and in the heat of passions gave a blow on the neck of the deceased. Thus the case falls within Exception I to section 300, P. P. C. Reliance is place on a Division Bench judgment Sher Shah v. The State (1978 P Cr. L J 541) wherein conviction was altered in somewhat similar circumstances from section 302 to section 304, Part I and the sentence was reduced to seven years' R. I. Learned counsel also cited Masoom Beg v. Muhammad Munir and another (1971 SCMR 476) in which the judgment of the High Court of West Pakistan, Lahore, was approved wherein sentence in similar circumstances was altered from section 302 to Part I of section 304, P. P. C. And the accused was sentenced o five years' R. I. Relying on this principle the conviction is altered to section 304, Part I and the appellant is sentenced to. Seven years' R. I. The mount of fine shall remain the same which shall be realised under section 386, C. P. C. So as to be paid to the heirs of the deceased as compensation. The appeal is accepted to the above extent.