GHAUS ALI SHAH, J.-This appeal under section 410, Cr. P. C. Is directed against the judgment dated 8th December, 1977 of the learned Sessions Judge, Tharparkar at Mirpurkhas whereby he convicted the appellant under section 302, P. P. C. And sentenced him to suffer imprisonment for life.
2. The facts of the case are that complainant Allahdad son of Mehrab resident of Deh 140, Taluka Dhigree of District Tharparkar lodged his F. I. R. On 24th July, 1976 at Police Station Dhigree which reads as under:- ---I am Zamindar by profession My son Mehrab is also residing with me. Few days back my son Mehrab had lent Rs. 20 to Shadoo Nuhani. Today at about 16-00 hours, I was standing outside my house and Dino Nuhani was also standing there with his buffalo, when Shadoo Nuhani armed with hatchet passed from there. On seeing Shadoo, my son Mehrab told him that so many days have passed and that he should return his Rs.
20. Upon this Shadoo exchanged harsh words with Mehrab. Upon this their quarrel took place, Shadoo gave sharp-sided hatchet blow to Mehrab on his head within our sight. Mehrab fell down, as a result of receiving blow. We gave Hakkal, whereupon accused Shadoo ran away with hatchet towards his house. I, Dito and other people of the village saw Mehrab and found that he had received sharp-sided hatchet blows on his head and was un--conscious. Thereafter I have got injured Mehrab carried and come here to lodge report that accused Shadoo has given sharp-sided hatchet blow to my son Mehrab with intention to kill him. I lodge complaint. Action be taken.
3. The F. I. R. Exh. 9 was recorded by P. W. 13 Wasim Ahmed S. H. O. Dhigree who also prepared mashirnama of injury Exh. 9 on person of Mehrab in presence of mashirs Ali Mohammad and Soomar and referred the injured to Medical Officer for treatment and certificate. He then proceeded to scene of offence, which was situated in Deh 140, of Taluka Dhigree in an uncultivated land near the house of the complainant. He inspected it in the morning on 25July, 1976 and found blood on vardat and secured the blood-stained earth from there. He sealed it in a parcel and prepared such mashirnama Exh. 20 in presence of mashirs Soomar and Abdullah. He thereafter examined P. Ws. Dino, Khano, Ibrahim and Buxo. He sent for the appellant from his house at 10-30 p. m. And arrested him under mashirnama Exh. 21 in presence of mashirs Ali Mohammad and Abdullah. The appellant then volunteered to produce the hatchet used by him in commission of offence, from his house. He led the S. H. O. And mashirs to his house and produced a blood Stained hatchet from the corner of a room of his house. The S. H. O. Secured it and sealed it in presence of mashirs Ali Mohammad and Abdullah under mashirnama Exh.
22. He then got the statements of the witnesses recorded under section 164, Cr. P. C. Before the Mukhtiarkar and F. C: M. Dhigree on 29th July, 1976. He sent the blood-stained articles to the Chemical Examiner and challaned the appellant to face trial on 9August, 1976. The A. S. I. P. Muzaffar Hussain P. W. 11, received information from Town P. S. Mirpurkhas on 27July, 1976 that the injured Mehrab son of Allahdad had expired in the hospital. He under directions of the S. H. O. Visited the hospital and found the dead body lying in the mortuary. He prepared such mashirnama Exh. 16 of dead body and inquest report Exh. 17 in presence of mashirs Feroz Khan and Shahoo. He then handed over the dead body to Medical Officer through P. C. Abdul Ghani for post-mortem examination.
4. There is no doubt that deceased Mehrab died as a result of injuries received by him as stated in the F. I. R. Dr. Sultan Mahmood who performed autopsy on his body has been examined who has deposed as under:- "On 24July, 1976, I, was incharge Civil Hospital Mirpurkhas when Mehrab son of Allahdad was brought to me as referred from M. O. Digri for treatment. He was unconscious and admitted as indoor patient. I have not noted down the time when he was received by me. He died at 4.30 a. m.
On 26July, 1976 and I informed the S. H. O. Town. In turn, they informed S. H. O. Digri, who sent g constable Abdul Ghani who after performing the formalities handed over the body to me at 12 noon on the same day and I commenced post-mortem at 12-30 p. m. And finished it at 1-30 p. m.
On the same day. The body was identified to me by Allahdad, the father of the deceased. The dead body was of a Muslim male aged about 30 years well nourished. On external examination, I, found one incised wound 3--" x --" x --" x over the centre of parietal region. The internal examination revealed the following damage Clotted blood lying under the scalp. The parietal bone fractured. Clotted blood lying under the membranes. Heart was full of blood. Semi-digested food was found in the stomach. All other organs were normal.
5. The prosecution has led evidence of eye-witnesses Allahdad complainant P. W. 2 who is father of the deceased and Ibrahim P. W. 3, Bakhsho P. W. 4 who is a corroborative witness, Dr. Sultan Mehmood, mashirs Ali Mohammad and Abdullah, Sono-Mal Tapedar and Waseem Ahmed, Investigating Officer.
6. We will first of all examine the ocular testimony. The complainant Allahdad has stated that Mehrab (deceased) was his son who was helping him in cultivation work. The appellant is son of his paternal nephew and lives about an acre away from his house. He is also a Zamindar and his land is adjacent to his land. It was at about 4-00 p. m. On the day of incident when he was sitting on a cot about 20 paces away from his house under a tree as it was his turn of water for his lands.
Ibrahim who is his hari was watering the lands. The appellant Shadoo came there and took a 'Bedi' from him. The deceased Mehrab asked Shadoo (appellant) to pay him Rs. 20 which he had taken as a loan from him. Shadoo replied to him that he had no money at that time. The complainant then went away to pass urine at a distance of 20 paces and heard commotion. He gave them `Hakal' not to fight but Shadoo gave a hatchet blow to Mehrab on his head. He was bare-headed.th th th th th He found Mehrab lying semi-conscious and not in a position to talk and the appellant made his escape good. Bakhsho and Dito also came there. It was raining on the day of incident. He, Ibrahim and Dito then carried the injured to Mirwah from where he hired a taxi and took him to Police Station. The injured was sent to Dhigree dispensary from where he was referred to Mirpurkhas hospital after giving first-aid to him there he succumbed to his injuries on 3rd day at " fajr time".
Ibrahim P. W. 3 who is an other eye-witness supports the complainant. He has stated that the deceased Mehrab demanded Rs. 20 from the appellant which he had advanced to him as a loan.
The appellant replied to him that he had no money at that time. Then there was exchange of harsh words between them and the appellant who was having a hatchet in his hand inflicted a hatchet blow to the deceased on his bead who was bare-headed and started running away. He has also stated that he had accompanied the complainant and Mehrab (deceased) first to Dhigree and thereafter to Mirpurkhas hospital where he died on 3rd day of the incident.
7. Bakhsho P. W. 4 who is a `tonga' driver has supported the complainant and P. W. Ibrahim. He has stated that be heard commotion and came out from his house which is situated about half an acre away from the village of complainant. He saw appellant Shadoo running away to his house, carrying a blood-stained hatchet in his hand. While he was running away, his face was towards him and he had passed by him from a distance of about 30-35 paces. He then went to the scene of offence and found Mehrab (deceased) lying injured at a distance of 25 paces away from his house and was unconscious. He found complainant Allahdad, Ibrahim and Dito there. The complainant, on his inquiry informed him that Mehrab (deceased) had demanded Rs. 20 from the appellant accused who gave him a hatchet blow. The complainant Allahdad and Dito then took away the injured in a bullock-cart to Dhigree.
8. As far as medical evidence is concerned, the death of the deceased has been proved to be a result of a shock and haemorrhage due to injury on his head which was sufficient in ordinary course of nature to cause death.
9. Mashirs Ali Mohammad and Abdullah who have been examined as P. Ws. By the prosecution have not supported the production of a blood-stained hatchet by the appellant before the police.
The S. H. O. Wasim Ahmed has however stated that the appellant led him and mashirs to his house and produced a blood-stained hatchet from a corner of a room of his house.
10. Sonomal, Tapedar has been examined to prove scene of offence which is undoubtedly an open place under a shade of a "Babul" tree.
11. Mr. Mohammad Hayat Junejo, the learned counsel for the appellant contends that there is no independent witness against the appellant. The complainant who is father of the deceased and his hari P. W. Ibrahim have stated that there was no prior enmity between the deceased and the appellant and the incident has resulted from an un--premeditated fight. The appellant and the deceased were on good terms with each other so much so that the deceased had even advanced a loan of Rs. 20 to him. The appellant is admitted to have been armed with a hatchet at the time when the deceased made a demand of return of loan from him. It is also admitted by the prosecution that there was exchange of harsh words before the incident occurred. It can safely be concluded from the circumstances that the appellant struck a blow to the deceased on provocation in a sudden quarrel in the heat of passion. Therefore his case fell under section 304 (II), P. P. C. And not under section 302, P. P. C. For which he has been convicted and sentenced. He has relied upon Mahiwal v. State (1975 P Cr. L J 1121) and Masoom Beg v. Muhammad Munir (1971 SCMR 476). He has also pointed out that the production of hatchet by the appellant has not been supported by both the mashirs, and therefore becomes a doubtful.
13, Mr. Murtaza Hussain; the learned counsel for the State, concedes that the appellant has no doubt inflicted a hatchet blow on head of the deceased without premeditation and in the heat of passion. The evidence produced by the prosecution is such which does not warrant a conviction under section 302, P. P. C. The case falls under section 304 (II), P. P. C.
14. We have heard the learned counsel for the appellant as well as State. We have carefully examined the evidence against the appellant and considered the contentions of the learned counsel. We are in agreement with the learned counsel for the appellant that the offence has undoubtedly occurred without premeditation and in the heat of passion. We have also gone through the above authorities and feel that the appellant's case falls under section 304 (II), P. P. C.
And his conviction under section 302. P. P. C. Is not borne-cut by the evidence on the record. We therefore alter his conviction from 302 to 304 (II), P. P. C. And sentence him to suffer R. I. For 7 years.
15. We have announced the judgment earlier by a short order and foregoing are the reasons for it.
16. In the result the appeal is accepted to the above extent only.