Lai Din alias Lai Shah aged 75 years has preferred this appeal from the jail. As nobody represents him, I therefore, proceed to decide the same with the assistance of the learned counsel for the State.
2. Appeal is directed against the judgment dated 16th December, 1979 passed by Mr. Sh. Ijaz Nisar, Sessions Judge, Lahore, whereby he convicted the appellant under S. 302, P. P. C. For causing the death of Muhammad Yousaf alias Mastana, sentenced him to undergo imprisonment for life and a fine of Rs. 5000, in default whereof to suffer one year further R. I. The whole of the fine, if realized, was ordered to be paid to the heirs of the deceased.
3. The occurrence took place on 24th May, 1979 at 9/10 a. m. At the Darbar of Baba Lal Shah situated in the grave-yard of village Duloo Kalan P. S. Kahna, District Lahore. Muhammad Hussain P. W. 4 (complainant) made a statement Exh. P. A. To Ashfaq Hussain A. S. I. P. W. 9 who met Ashfaq Hussain on the Ferozepur Road near Glaxo Factory at 11. a. m. While going to the Police Station leaving Muhammad Siddique and Jamaat Ali near the dead body of the deceased. Formal F. I. R.
Exh. P. A. 1 was recorded by Muhammad Yasin Muharrir A. S. I. P. W. l at Police Station Kahna at 11. 50 a. m. On 24th May, 1979 on the receipt of statement Exh. P. A.
4. The A. S. I. After recording the statement Exh. P. A. Proceeded to the spot. He prepared injury statement Exh. P. F. And inquest report Exh. P. G. On the dead body of Muhammad Yousaf deceased and sent the dead body for post-mortem examination in the custody of Abdul Ghafoor F. C. He took into possession blood-stained earth from the spot vide Memo. Exh. P. C. The appellant was arrested on 27th May, 1979. On the following day be led to the recovery of blood-stained danda P. 1 from a jawar and moth field near the place of occurrence. The same was taken into possession vide Memo Exh. P. D. The recovery memo. Exh. P. D. Was attested by- Sufi Ali Ahmad P. W. 7 and Nazir Hussain P. W. (not produced) in addition to Ashfaq Hussain A. S. I. P. W. 9: After necessary investigation; the challan was put in the Court.
5. According to the statement Exh. P. A., the prosecution case briefly is that the appellant and the deceased bad taken up residence 2/3 days earlier in the grave-yard of village Duloo Kalan. At ishawela previous to the day of occurrence, the appellant was quarrelling with the deceased as to why he had gone for begging to his village. Muhammad Hussain P. W. 4 who happened to be present there, got the matter patched up. On 24th May, 1979 at 9/10 a. m. The appellant told.
Muhammad Yousaf deceased to go out for begging. On the refusal of the deceased, the appellant picked up a danda from nearby and gave him injury on the left side of the head who fell down.
Muhammad Hussain P. W. 4, Muhammad Siddique P. W. 5 and Jamaat Ali P. W. 6 who happened to be present there went forward to look after the deceased. Muhammad Yousaf died a shortwhile later. The appellant in the meantime slipped away. Muhammad Hussain P. W. 4 leaving the dead body of Yousaf in the care of Muhammad Siddique and Jamaat Ali P. Ws. Proceeded to the Police Station. He met Ashfaq Hussain A. S. I. P. W. 9 on the way and made statement Exh. P. A.
6. At the trial, the prosecution produced ten witnesses in all. Muhammad Hussain P. W. 4, Muhammad Siddique P. W. 5 and Sain Jamaat Ali P. W. 6 have been produced for eye-witness account.
7. Muhammad Hussain P. W. 4 has stated that he alongwith Muhammad Siddique P. W. 5 and Jamaat Ali P. W. 6, was present in the grave-yard of village Duloo Kalan. He saw Lai Din appellant quarrelling with Muhammad Yousaf deceased who abused him, as a result of which the appellant give a danda blow on the left side of the head of the deceased, who fell down. . The accused ran away and took his sota alongwith him. The deceased expired soon after. He has stated that leaving Jamaat Ali and Muhammad Siddique P. Ws. At the spot, he proceeded to the Police Station Kalan.
He met the Police near the Glaxo Factory and made statement Exh. P. A. In cross-examination he has stated that :-- "I do not know the cause of the quarrel between the accused and the deceased."
His statement is corroborated by the statements of Muhammad Siddique P. W. 5 and Jamaat Ali P.
W. 6 on all material counts. However Muhammad Siddique P. W. 5 has stated specifically that the accused had asked the deceased to go for begging but the deceased had refused and also abused the appellant. As a result of which he gave him the lathi blow. Jamaat Ali P. W. 6 has stated that before the infliction of injury by the appellant, he had seen the deceased and the appellant quarrelling. The eye-witness account finds support from the evidence of recovery of blood-stained sota P. 1 at the instance of the accused, the evidence of which has been given by Sufi Ali Ahmad P.
W. 7 and Ashfaq Hussain A. S. I. P. W.
9. The doctor who had performed the post-mortem examination was not available. Post-mortem examination Exh. P. H. Of the dead body of the deceased Muhammad Yousaf was proved by Abdul Sattar Shah dispenser P. W. It.
8. The accused when examined under S. 342, Cr. P. C. Denied the occurrence. He has stated that he has been involved falsely.
9. None of the eye-witnesses or witnesses of recovery is related to the deceased. There is no allegation of their being inimical to the appellant. They are independent witnesses, neither connected with the deceased nor appellant. There is no reason to disbelieve their evidence, the evidence on record is conclusive on the point that the appellant had given injury to the deceased as a result of which he had died. There is no clear evidence of motive. The eye-witnesses have given discrepant account regarding the motive. Two of them including the complainant have stated that they heard the deceased and the appellant quarrelling and abusing each other. While one of them Muhammad Siddique P. W. 5 had stated that the reason for the occurrence was that the deceased had refused to go for begging on the asking of the appellant. Obviously there was no malice between the appellant and the deceased. There was no pre-meditation. It was a sudden affair where a junior partner in begging had refused to abide by the wish of senior partner in begging. The deceased was 42 and the appellant was aged 74 at the time of the occurrence. No intention of committing the murder can be gathered from the act of the appellant. Therefore, his conviction and sentence under S. 302, P. P. C. Is set aside.
10. He is however held guilty under section 304, Part II, P. P. C. Consequently he is convicted under S. 304 Part II P. P. C. And sentenced to seven years R. I. And a fine of Rs. 1000 in default to suffer six months R. I. The whole of the fine, if recovered, shall be paid as compensation to the heirs of the deceased. The appellant shall however be given the benefit of the provisions of section 382-B, Cr. P.
C. The appeal is disposed of in the light of the above alteration.