1. B. G. N. KAZI, J.---The two appellants alongwith co-accused Muhammad Bachal and Mst. Hajra were tried by the Sessions Judge, Thatta for the murder of Ahmed and for causing hurt with knife to Abdul Rehman and Ilyas and simple hurt to Mst. Rahima in furtherance of their common intention.
2. Co-accused Muhammad Bachal and Mst. Hajra were acquitted of all the charges and the appellants were convicted as under :- Mamoon son of Gul Muhammad was convicted under section 302 read with section 34, P. P. C. And sentenced to death by hanging and also to pay a fine of Rs. 2,000 or in default to suffer R. I. For two years with the direc--t to that if the fine is recovered the same shall be paid to the legal heirs of the deceased. He was also convicted under section 324, P. P. C. And sentenced to suffer R. I. For six months. Appellant Abdul Rashid was convicted under section 302 read with section 34, P. P. C. To R.
3. I. For 10 years: and to pay a fine of Rs. 2,000 or in default to stiffer R. I. For further two years with the direction that fine, is recovered, be paid to the legal heirs of the deceased.
4. Both, the appellants have filed the instant appeal against their convic--tjog and sentences. Since appellant Mamoon son of Ghulam Muhammad Kumbhar was sentenced to death there is also a reference for confirmation of the aforesaid sentence: Both the appeals and the reference for confirma--tion of death sentence are being dealt with in this judgment.
5. The facts of the case are as under: Abdul Rehman son of Ahmed Kumhar, resident of Chuhar Jamali lodged report with the Police on 26th September, 1974 at 2-30 p. m. Stating that he along with his father Ahmad live with their family in Chuhar Jamali Town in a house which is adjacent to the house of Muhammad Bachal Kumbbar who is a teacher. His brother Achar aged about 5-6 years came and complained to him that he had been standing at the kiln of their pottery when he was given a beating by wife of Muhammad Bachal. On receiving the complaint of his young brother, Abdul Rehmar4 desired to complain to Muhammad Bachal about the behaviour of his wife. He found Muhammad Bachal near his house and complained .To him whereupon Muhammad Bachal assaulted him and felled, him on the ground. In the meantime, appellants Mamoon and Rashid Kumbhar arrived there and Mamoon gave him a blow with his knife on the forehead while Muhammad Bachal and Rashid also gave him blows. Abdul Rehman raised cries on hearing which his father deceased Ahmad came out running and tried to rescue him. Mamoon then rushed and inflicted knife injury in the abdomen of Ahmed who fell down. Muhammad Bachal and Rashid gave him blows. On their cries Achar Manganhar.
6. Ghulam Hussain Kehar, Dr. Fakhruddin, Muhammad Juman and Moosa arrived there and rescued them. The accused then ran away. It was the case of the first informant that he- bad taken his father in the jeep of Usman Kehar driven by Juman Shidi and had come to Police Post accompanied by Mohammad Moosa and Achar Manganhar, while alighting from the jeep his father had succumbed to injuries in front of the, Police post. A. S. I. Saiudad who was incharge of the Police Post, Cuhar JBmali recorded the F. I. R. In the Roznamcha at 2-30 p. m. And sent copy of the - -same to S. H. O., Ladiun. He then prepared mashirnama of injuries of the deceased Ahmed before mashirs Muhammad Ismail son of Achar and Muhammad Ismail son of Allahdino Memon. He also prepared inquest report before mashirs Lahne and Umer and then sent the dead body for post- mortem examination through Police Constable Nawabdin to the Medical Officer Sujawal. He next proceeded to the scene of offence and saw it at the pointation of P. W. Muhammad Juman in the presence of mashirs Muhammad Ismail son of Achar and Muhammad Ismail Memon. He recorded statement of Mst. Rahima, wife of deceased. Statements of injuries of the witness Rahima wife of Ahmed, and Ilyas son of Ahmed were also prepared before the same mashirs, and the inured were referred to the Medical Officer for examination, treatment and certificate. He then recorded the statements of P. Ws. Muhammad Ilyas, Achar, Achar son of Bakhsho, Muhammad Juman, Muhammad Moosa, Ghulam Hussain and Dr. Fakhruddin. Dr. Fakhruddin produced a knife which he stated that he had secured from accused Mamoon. The A: S. I. Then secured the aforesaid knife in presence of mashir4 Muhammad Ismail and Muhammad Ismail son of Allahdino Memon, and prepared mashirnama. He recorded statements of Muhammad Usman and Muhammad Hassan and made enquiries from Mst. Hajra, wife of accused Muhammad Bachal teacher. The S. H. O.
7. Arrived and Saindad handed over the case papers to him. Saindad on 2nd October, 1974 had got statements of witnesses Mst. Rahima, Ilyas, Achar, Manganhar, Muhammad Moosa, Gbulam Hussain, Muhammad Hassan and Dr. Fakhruddin recorded under section 164, Cr. P. C. By the Mukhtiarkar & F. C. M. Sujawal on the instructions of S. H. O.
8. Syed Jaffer Raza who was S. H. O. Ladiun Police Station on 26th September, 1974 received F. I. R.
9. From Police Post, Chuhar Jamali for registration and entered it in the book kept under section 154, Cr. F. C: Muhammad Zaman Additional Deputy Superintendent of Police who was present at the Police Station at that time went with the S. H. O. To Policy Post, Chuhar Jamali. A. S. I. Saindad had then produced the investigation papers before him which were verified by him. He then proceeded to the scone of offence in company of the D. S. P. And saw it at the showing of A. S. I. Saindad. On 27th September, 1974 he arrested accused Muhammad Bachal, Mamoon and Rashid in the presence of mashirs Muhammad Ismail son of Achar and Muhammad Ismail son of Allahdino Memon. Accused Muhammad Bachal produced bloodstained shirt, accused appellant Mamoon produced blood-stained shalwar and shirt while accused Abdul Rashid produced blood-stained shirt and shalwar. The aforesaid clothes were secured and separately sealed before the same mashirs in whose presence the accused had been arrested. The S. H. O. Later despatched the same to the Chemical Analyser for examination and report. As accused appellant Mamoon had injuries he was on the following day sent to Medical Officer for examination and report. On 4th October, 1974 the S. H. O. Received the post-mortem report of deceased Ahmed and the medical certificate in respect of injuries of appellant Mamoon. On 13th October, 197.4 he sent up an interim challan to the Court and on 23 October, 1974 he sent the final challan.
10. Abdul Rehman son of deceased was not satisfied with the investiga--tion of the case by the Police.
11. It was his case that when he and others carried injured Ahmed in the jeep to the Police Station, Chuhar Jamali Lahno Faqir was present, injured Ahmed who was yet alive asked the Sub-- Inspector to record his statement, but the Sub-inspector had abused him and told him that he was not dying. Ultimately, the S. I. P. Recorded statement of injured Ahmed who, after making the statement, died within 10 minutes. It is the case of Abdul Rahman that Lahno Faqir put his thumb- impression on the statement of Ahmed and the S. I. P, had also signed it. Thereafter he was given letter to the Medical Officer, Sujawal for post-mortem examination of the dead body of Ahmed. The Medical Officer, Sujawal had also examined injuries on his person. It was further the case of Abdul Rehman that his brother Ilyas had not been given any letter for Medical Officer. It was also his case that he had lodged report with Chuhar Jamali Police Station but they had not recorded it at his dictation and only his signature `had been obtained. It was further his grievance that the dying declaration made by the deceased had not been brought on record. Three or four days after the incident Syed Bashir Ahmed, the then Food Minister, came to Chuhar Jamali, Abdul Rehman and his mother, had appeared before him and complained on the Qur'an that they had been denied justice. The Minister ordered transfer of the Sub-Inspector Chuhar Jamali, Abdul Rehman then filed direct complaint before the Deputy Commissioner, Thatta who forwarded complaint to the Civil Judge & F. C. M., Sujawal, who after holding the preliminary enquiry, issued process not only against Mamoon, Muhammad Bachat and Abdul Rashid, but also against Mst. Hajra, wife of accused Muhammad Bachal.
12. The direct complaint was filed on 22nd November, 1974 before the District Magistrate, Thatta who forwarded it to the Civil Judge & F. C. M., Sujawal for disposal according to law. After holding the neces--sary preliminary enquiry, the learned Magistrate issued process against all the four accused, including Mst. Hajra who had not been challaned by the Police.
13. The State case as well as the direct complaint were ordered to be amalgamated and consolidated by order dated 16th March, 1977 and the charge was framed against all the four accused on 16th July, 1978 under section 302 read with sections 34aand 324 read with section 34 and 323 read with section 34, P. P. C. All the four accused pleaded not guilty. Accused Muhammad Bachal in his statement denied that he' had the common intention to commit the murder or that he had attacked the deceased. He also denied that he had produced, a blood-stained shirt before the Police. He further stated that he is a school teacher of village Muhammad Juman Samoon about four miles away from Chuhar Jamali and on that day he was on duty in the School. According to him, it takes about two hours to cover the distance between the school and the scene of offence.
14. He further stated that Mst. Hajra co-accused is his wife while accused Mamoon is his brother-in- law and co-accused Rashid is his son. He stated that the complainant party is also Kumbhar by caste and they have dispute with him over the business of pottery. The accused examined in his defence witness Pirdino son of Manthar resident of Muhammad Juman Samoon to prove alibi `that he was at the time of the incident working in the School which closes at 2 p. m. Accused Mamoon, Abdul Rashid and Mst. Hajra also denied all allegations and Mst. Hajra adopted the statement of her husband Muhammad Bachal.
15. A perusal of the record shows that there was ocular evidence of first informant Abdul Rehman who was also injured, Mst. Rahima, wife of the dec6ased and mother of Abdul Rehman, 11yas son of the deceased and Mst. Rahima, supported and corroborated by the evidence of Muhammad Moosa, a local shopkeeper whose shop is near the scene of offence ; P. W. Fakhruddin, a compounder who runs a private dispensary at Chuhar Jamali and is a close neighbour ; Achar son of Panjord Manganhar, another very near neighbour who are all independent witnesses in the sense that they are admittedly not related to any of the parties. With regard to eye-witnesses Abdul Rehman, Rahima and Ilyas, although they are very near relatives of the deceased, they are natural witnesses of the incident whose presence at the scene of offence is also proved by the fact that undoubtedly all of them received injuries. At the same time it may be stated that neither there is any evidence on record nor has a serious effort been made in the cross examination to dispute their presence on the spot. It is apparent that their evidence is supported by not only the medical evidence but also the evidence of independent witnesses with regard to the occurrence. It is also apparent that there was no enmity between the parties which could be considered as the motive for the murder. The allegation on the part of accused Muhammad Bachal Kumbhar about business rivalry cannot be considered sufficient to serve as motive for murder. As a matter of fact Muhammad Bachal has conceded that they belong to the same caste and have the same type of business. There being obviously no reason for falsely implicating the accused per--sons in a case of murder the version given, even though somewhat exagge--rated in certain respects, cannot be considered to be wholly untrue or not worthy of credit. The version that Muhammad Bachal and Mst. Hajra incited the two appellants to attack the deceased and the injured under the circumstances of the case cannot be considered as instigation to murder. As is apparent from the evidence on record, there was hardly any motive for committing murder and the incident is result of a quarrel over the beating and admonition of Achar, a boy aged about 5-6 years by accused Mst. Hajra, wife of accused Muhammad Bachal. There is nothing on record to show that the factum of the cause of the quarrel was seriously denied. The version that the elder brother got enraged on receiving complaint from the boy and wanted to remonstrate to Muhammad Bachal is quite understandable: The quarrel that took place and the end result of it are fully corroborated by independent witnesses, namely, shopkeeper Muhammad Moosa; Compounder Fakhruddin and Achar son of Panjo motor driver, who are all close neighbours and who all noticed the injury on the person of the first informant and the injuries on his father who had fallen in the street.
16. The evidence of the eye-witnesses and the corroboratory independent evidence of the neighbours is fully supported by the medical evidence about the deceased having received the knife injury in his abdomen.
17. The incident, as alleged which resulted in the death of Ahmed and causing of injuries to Abdul Rehman; Mst. Rahima and Ilyas has been suffciently proved beyond doubt. The question to be considered is as to what offences were committed and by which of the four accused with regard to accused Mamoon all the eye-witnesses stated that he caused the injury to Abdul Rehman above his eye-brew with the knife and further that after Ahmed deceased had come out to rescue his son he had given the fatal knife blow in his abdomen. The doctor who performed the post--mortem examination has given evidence to show that the injury caused was sufficient in the ordinary course of nature to cause death. He has also given evidence about another injury inflicted by the same knife which was not so dangerous as the first one. The aforesaid evidence of the eye- witnesses is fully corroborated by the evidence of the neighbours who immediately came on the spot and either saw or were told that Mamoon bad caused injuries.
18. With regard to accused Abdul Rashid also there is evidence of each one of the eye-witnesses that he was concerned in either holding or felling down deceased Ahmed before accused Mamoon inflicted the knife injuries. The question whether he incurred the liability for injuries caused by Mamoon by virtue of section 34, P. P. C. Therefore, can be answered in the affirmative.
19. With regard to Mst. Hajra who is stated to have given a beating to young boy Achar and to have used filthy abuse, no further active part is ascribed to her except of instigating the other accused.
20. In view of the fact however that the instigation was not to cause death of the adversary and probably all that she had in mind was the chastisement of persons who had complained against her it cannot be said that she had common intention for the commission of murder or for injury or injuries caused.
21. As against accused Muhammad Bachal there is some evidence on record that he caught hold of and threw the first informant down when he complained to him about the behaviour of his wife. But beyond that there is no further evidence that he actually participated in the acts which resulted in causing of death of Ahmed and injuries to others. His position therefore, is as that of his wife Mst.
22. Hajra, and there can be no cavil with the learned Sessions Judge giving benefit of doubt to these two acquitted accused.
23. There remains the point for determination as to what offence accused. Mamoon and Abdul Rashid have committed. As already stated, there is no old family feud or any sort of serious enmity between the parties who are close neighbours having their houses adjacent to each other and who belong to the same caste. It is apparent froth the evidence on record that the incident was the result of quarrel over the beating and abuses given to the boy Achar. There was no premeditation and no planning of any cold-blooded murder. The fracas which ended in the death of Ahmed and causing of injuries was therefore, the result of a sudden quarrel on the spur of the moment so that even though, as already found, there was common intention on the part of accused Abdul Rashid, it could not be taken beyond the offence committed by the main accused Mamoon.
24. We have given anxious thought to the question of conviction for the offence and the sentence to be awarded. It is obvious that the conviction of appellant Abdul Rashid under section 302, P. P. C.
25. Read with section 34 to imprisonment for 10 years is erroneous as the offence is punishable with death or imprisonment for life. In Farooq and another v. The State (1979 P Cr. L J 1074) where the occurrence was not a premeditated affair the parties meeting on road side by chance and involving in altercation proceeding fight, conviction under section 302, P. P. C. Was altered to one under section 304, Part I, P. P., C. In the circumstances. In Hangal alias Ali Nawaz v. The State (1980 P Cr. L J 1275) in a case of sudden fight when only one serious blow was caused to the deceased and the circumstances indicated that the fight was over abusive language uttered the case was held to be one of sudden incident, and in the absence of previous enmity it was held that the accused could not be burdened with intentionally causing of death of deceased and conviction under section 302, P. P. C. Was altered to one under section 304, P. P. C.
26. The instant case falls within Exception IV of section 300, P. P. C. As the culpable homicide was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, there is nothing to indicate that the act was done in a cruel or unusual manner. We would, A therefore, alter the conviction of accused Mamoon from section 302 to section 304, P. P. C. And the conviction of Abdul Rashid from section 302 read with section 34 to one under section 304 read with section 34, P. P. C. Taking into consideration the period during which the accused were confined in Jail as under trial prisoners as provided for by section 382-B, Cr. P. C. Two accused appellants are sentenced to suffer R. I. For 7 years each. We maintain the conviction of accused Mamoon under section 324, P. P. C. For causing knife injuries to complainant. Abdul Rehman and P.
27. W. Ilyas and also maintain his sentence for six months on the count. The sentences to run concurrently.