Ejaz Ahmad and his father Mehboob Beg were tried by an Additional Sessions Judge of Gujranwala under section 302/34, P. P. C. For the murder of Muhammad Anwar, deceased. The learned trial Judge, by his judgment dated 31-8-1981, convicted Ejaz Ahmad under section 302, P. P. C. And sentenced him to life imprisonment with a fine of Rupees Five Thousand (Rs. 5,000) or in default thereof to further rigorous imprisonment for one year. Mehboob Beg, accused, was however acquitted of the charge. Out of the fine, if realized, 2/3rd of the amount was directed to be paid to the legal heirs of Muhammad Anwar, deceased. The appeal (Cr. A. 497 of 1981) preferred by Ejaz Ahmad, convict, is now before me for disposal.
2. The brief facts of the case according to the F. I. R. Exh. P. G/1, which was got recorded by Lal Muhammad P. W. 11, the real brother of the deceased, are that on the eventful day i.e. 17-5-1977 at about shamwela (evening time) somebody knocked at his door, when he alongwith his brother Muhammad Anwar, deceased, were present inside the house. The call was for his brother. The complainant alongwith his brother Muhammad Anwar, deceased, came out and saw Ejaz, accused, armed with a knife, and Mehboob Beg, accused, standing outside their house. Mehboob, accused, asked Ejaz, accused, to teach a lesson to Muhammad Anwar, deceased, for abusing their womenfolk the day before yesterday. Ejaz, accused, then attacked and inflicted a knife blow on the left flank of the deceased. The complainant went ahead to save his brother, but he was pushed back by Mehboob, accused. Both the accused then made good their escape alongwith the weapon of offence. The deceased was taken to the hospital in injured condition in Qila Dedar Singh, from there the complainant obtained M. I. R. Of the deceased. The doctor advised the complainant to take the injured to the Civil Hospital, Gujranwala, due to his precarious condition. The injured was taken to Gujranwala hospital, where he died later on. The motive for the occurrence was that 2/3 days before the occurrence, the deceased had abused the womenfolk of the accused for having allowed faecal matter to pass through their drain, which also passed through the courtyard of the house of the deceased.
3. At the trial, Mehboob Beg, accused, denied all the accusations that were levelled against him and imputed his false involvement due to misunderstanding on the part, of the Police. However, Ejaz, accused, admitted the occurrence, but stated that he did it on provocation when Muhammad Anwar, deceased, abused and used filthy language.-against his mother and unmarried sisters saying that he would seal their vaginas and anuses and abruptly picked up a knife from a vendor who was selling watermelons outside his house in order to attack him. Apprehending danger to his life, he snatched the knife, but Muhammad Anwar, deceased, tried to regain it, whereupon, apprehending danger, be thrust the knife into the abdomen of Muhammad Anwar, deceased.
4. In view of the admission of the occurrence by Ejaz Ahmad, accused, the learned trial Judge, after appraising the evidence on the record, came to the conclusion that the story of the prosecution was true and that of the defence was false and he thereupon convicted and sentenced Ejaz Ahmad, accused, as stated in para. 1 above.
5. I have heard the arguments of the appellant and the State and have also perused the record.
The occurrence is admitted by Ejaz Ahmad, appellant. The only question that arises is, whether, after placing in juxta--position the story of the prosecution and that of the defence, the evidence on the record proves the case of the prosecution beyond every shadow of doubt or leads to the reasonable inference that the defence story is true or reasonably probable. In the first instance, the motive, as suggested, does not ring true. According to the Prosecution version, 2/3 days before the occurrence Muhammad Anwar, deceased, had abused the womenfolk of the appellant for having allowed faecal matter to pass through their drain, which also passed through the courtyard of the deceased's house, and that both the appellants and his father turned up on the date of occurrence and took their revenge for the said insult. It is the case of the appellant that the deceased abused and used filthy language against his mother and unmarried sisters on the very date of the incident, which provoked him to come up to the doorsteps of the complainant party and to pick up a quarrel with the deceased and there stab him under grave and sudden provocation. Taking both the stories into consideration, the inference that can be drawn from the record and the surrounding circumstances is that there was a dispute between the two parties over the faecal matter of the appellant party passing through the drain that passed through the courtyard of the complainant's house, which annoyed them, and abusive language was exchanged on the day of occurrence by both the sides, resulting in Ejaz Ahmad, appellant, rushing out of his house and picking up a quarrel with the deceased outside his doorstep. The story of the prosecution that the motive incident took place 2/3 days before the occurrence, cannot be accepted. Had the same been true, Ahmad Shuja A. S. L, P. W. 17, the investigating officer, would have investigated into the matter. However, in his cross-examination he admitted that apart from Lal Muhammad P. W. 11, he did not examine any other witness regarding the motive of the occurrence. In these circumstances, the inference is clear that no dispute took place 2/3 days earlier, as suggested by the prosecution. Even otherwise, the motive as suggested by the prosecution, does not ring true. After a lapse of 2/3 days, passions would die down and unless some further incident occurred on the date of incident, there would be little motivation to avenge the earlier insult. In this view of the matter, the fact that some quarrel took place on the date of incident, where abusive language was hurled, which prompted the appellant to pick up a quarrel with the deceased and injure him, appears to be more probable and the correct version. Ehsan-ul-Haq A. S. I., P. W. 15, who had arrested Ejaz Ahmad, appellant, admitted in cross-examination that the appellant's first version before him was that his mother and unmarried sisters had been abused by the deceased and he could not tolerate it. The true inference that can be drawn from the evidence on the record and the surrounding circumstances is that some quarrel took place between both the parties, abusive language was very likely used by the deceased or some member of the complainant's household, as they were the aggrieved party, that Ejaz Ahmad, appellant, being a young by of 15 years and a 10th Class student, on grave and sudden provocation, rushed out from his house with a knife and picked up a quarrel with Muhammad Anwar, deceased, in the lane outside his house and there gave him one knife blow in the heat of 4 passion. It appears that he did not have any intention to kill the deceased. Very likely, as suggested by the appellant himself, very foul language had been used by the deceased against his mother and sisters. In these circumstances, the offence is not under section 302, P. P. C. But that under section 304-I, P. P. C. If any authority is required for this view Bahar Khan rind others v. The State (1972 P Cr. L J 411),Ghulam Abbas v. The State (1978 P Cr. L J 905) and Mahiwal v. The State (1975 P Cr. L J 1121), have been cited.
6. For the foregoing reasons, the conviction of Ejaz Ahmad, appellant, under section 302, P. P. C. Is not correct and is set aside. His conviction is altered to that under section 304-1, P. P. C. And he is sentenced to five years' rigorous imprisonment with a fine of Rupees Five Thousand (Rs. 5,000 or in default thereof to suffer further rigorous imprisonment for one year. The fine, if realized, shall be paid to the legal heirs of Muhammad Anwar) deceased, as compensation under section 544-A, Cr.
P. C. In view of section 382-B, Cr. P. C. The full period of detention undergone by the appellant as an under trial prisoner shall be taken into consideration by the Jail Authorities, when calculating his sentence. This appeal, therefore, stands partly accepted, in terms of alteration of conviction and reduction in sentence, as stated above.