Appellant above named, being aggrieved by Judgment dated 29-11-1979 of the learned Sessions Judge, Hyderabad, in Sessions Case No. 2314/76, by which appellant has been convicted under section 302, P. P. C. And sentenced to suffer imprisonment for life and fire of Rs. 1,000 or in default to suffer further R. I. For six months and to pay compensation of Rs. 1,000 to the heirs of the deceased or in default to suffer further R. I. For six months and under section 411, P. P. C. And sentenced to suffer R.1. For one year, has preferred the above appeal, on the following facts and grounds :-
2. The case against the appellant as outlined by the prosecution succinctly is, that appellant Firdous is employed as a cleaner in Sind Road Transport Corporation, Hyderabad, which among others consists of workshop, yard, place for parking of unserviceable and other buses and the hockey ground. No wall however intervenes between the hockey ground and the space meant for parking the buses. There is also one petrol pump in the corporation. On 19-8-1976 at about 3 p. m., the appellant stealthily was taking away a battery of the bus. In the hockey ground he was confronted by deceased Noor Muhammad Chowkidar of the S. R. T. C., who was on duty. The appellant on such intervention started striking knife blows to the deceased.. The cries of the deceased attracted Abdul Rahman and Badruddin, the two other watchmen of the S. R. T. C. On duty, to the wardat and they also witnessed the appellant dealing knife injuries to the deceased.
After causing as many as six injuries to the deceased, the appellant scaled over the compound wall of the hockey ground and alongwith the knife made his escape good. Some other employees of the Corporation also reached there. Abdul Rahman then went to Atta Muhammad, Security Officer and Inspector Watch and Ward, who was working in the office and informed him about the incident. Atta Muhammad came to the wardat and found Noor Muhammad having knife injuries.
Meanwhile, Lawrence Works Manager, Anwar and Suleman also arrived and they along with Atta Muhammad took the injured in a bus to L. M. C. Hospital, Hyderabad. In the bus injured Noor Muhammad informed Atta Muhammad within the hearing of Lawrence, that the appellant was stealing away a battery and on his objection, he had caused knife injuries to him. The deceased, however, on arrival in the hospital breathed his last. Complainant Atta Muhammad then reached P.
S. Cantonment, Hyderabad and lodged the report (Exh. 11). S. H. O. Noor Abroad took up the investigation. He reached the hospital and prepared the Mashirnama of the dead body, which was lying in the dead house (Exh. 18) and the inquest report (Exh. 19). Suleman and Abdul Karim acted as Mashirs. He also recorded the statements of Abdul Rahman, Badruddin, Suleman and Anwar. He referred the dead body for post-mortem examination. The autopsy over the dead body was conducted by Dr. Saifuddin. The S. H. O. Also inspected the wardat in presence of Masbirs Muhammad Bostan and Muhammad Saeed. One battery, pair of chappals belonging to the deceased and a basket were lying at the wardat. The S. H. O. Secured these articles and also collected blood from the wardat under Mashirnama (Exh. 8). He also recorded the statement of Lawrence, Works Manager. On 20-8-1976, the appellant voluntarily appeared before the S. H. O. And he ar;psted him under Mashir--nama (Exh. 25) A. S. I. Ghulam Rasul and H. C. Adalat Khan acted as Mashirs. After his arrest, the appellant led the S. H. O. And Mashirs Muhammad Bostan and Muhammad Sated to his house and produced blood--stained clothes and blood-stained knife and the S. H. O. Secured and sealed these articles and prepared Mashirnama (Exh..9). On 21-8-1976 the appellant was produced before Mr. Muhammad Iftikhar, A. C. M. Hyderabad, who recorded judicial confession of the appellant lExh. 27) On 24-8-1976, the A. C. M. Also recorded under section 164, Cr. P. C. Statements of Abdul Rahman, Lawrence, Badruddin, Anwar Ahmed, Muhammad Suleman and Ahmed Ali. The crime weapon and the blood-stained clothes of the appellant were sent to the Chemical Analyser and his report (Exh. 29) is positive and shows that these articles were stained with human blood. On completion of the investigation, the appellant was challaned in Court.
3. At the trial, the prosecution examined Dr. Saifuddin Saif (Exh. 3), Taj Muhammad Tapedar (Exh. 5), Muhammad Bostan Mashir (Exh.7), Atta Muhammad complainant (Exh. 10), Abdul Rahman (Exh. 12), Badruddin (Exh. 16), Suleman (Exh. 17), Lawrence (Exh. 21), Muhammad Sated Mashir (Exh. 22) A. S. I.
Ghulam Rasul (Exh. 24), Mr. Muhammad Iftikhar A. C. M. (Exh. 26), and Noor Ahmad S.H.O. (Exh. 28).
4. The appellant pleaded not guilty to the charge. His case is of bare denial and innocence. In his statement before the trial court he projected the plea, that on the eventful day be was on leave.
The deceased died as a result of fight between themselves and the P. Ws. In order to save themselves involved him falsely. Regarding judicial confession the appellant alleged, that it is incorrect and false. The suggestion made by the defence to P. W. Abdul Rahman is that the P. Ws.
And the appellant belong to rival groups of the employees and on that account the P. Ws. Brought about false implica--tion of the appellant. The appellant also produced four defence witnesses, and they are Rafiqur Rahman (Exhs. 36 and 42). He has been examined twice as on his first examination he had not brought the requisite registers and sub--sequently the S. R. T. C. Authorities sent him again with the registers and he was examined as (Exh. 42). Muhammad Hanif (Exh. 41)
Sarfraz Nabr (Exh. 45) and Abdul Karim (Exh. 46).
5. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named as hereinbefore mentioned and consequently appellant filed the above appeal on the facts and grounds mentioned in the memo. Of appeal.
6. The learned Advocate now appearing for the appellant, submitted as under
(a) That offence, if any committed by appellant would fall under sec--tion 326, P. P. C. Or at the most under section 304 (I), P. P. C. In view of prosecution evidence brought on record, which clearly shows, that appellant without premeditation and in sudden fight inflicted the injuries in question to the deceased. In support of his contention, the learned Advocate for appellant relied upon case reported in PLD 1980 Kar. 246 and PLD 1982 Kar. 288.
(b) That appellant has remained in custody right from 19-8-1976 till today and as such this may be taken into consideration, while awarding sentence to the appellant.
7. The learned Advocate for the State, at the outset submitted, that although he supports the impugned Judgment on merits, but the offence committed by appellant would fall under section 304 (1), P. P. C. And not under section 302, P. P. C. As far as the death of Noor Muhammad is concerned.
8. I have carefully considered the above submissions made by the learned counsel before me and have gone through the R & P of the learned trial Court as well as through impugned Judgment and cases cited by the learned Advocate for the appellant:
9. Prosecution by statements of P. W. 4 Atta Muhammad I Complainant), P. W. 5 Abdul Rahman (eye-witness) and P. W. 6 Badruddin (eye-witness), who all are independent and no enmity is alleged against them, has established its case against the appellant beyond reasonable doubt, in my opinion. I find statements of these three eye-witnesses straightforward and convincing. Even the learned counsel for the appellant has not challenged the conviction of the appellant on merits.
10. The only question which requires consideration, is whether offence in respect of death of Noor Muhammad, would fall under section 302, P. P. C. Or under section 304 (1), P. P. C.
11. I have carefully considered the statement of P. W. 1 Dr. Saifuddin Saif who performed the post- mortem on the body of the deceased. According to this witness injuries Nos. 2, 3 and 4 were sufficient in ordinary nature to cause death of the deceased. Keeping in view this statement of Doctor and the statements of these eye-witnesses examined before the learned trial Court, which clearly show, that appellant in the course of committing theft, in sudden A fight inflicted the said injuries on deceased Noor Muhammad and a:, such question of premeditation and/or intention to cause the death of the deceased, as a result thereof does not arise at all.
12. Keeping in view my above conclusions and the retracted judicial confession of the appellant (Exh. 28), which has been duly proved as voluntarily, by P. W, 11 Muhammad Iftikhar, A. C. No. 7, Hyderabad, who has deposed, that be observed all the formalities, before recording of the said confession, I see no reason to disbelieve his statement, which is straightforward and no enmity is alleged against this witness. In my opinion offence committed by appellant falls under section 304 (I), P. P. C. And not under section 302, P.P.C. As held by the learned trial Court.
13. Therefore, while dismissing the above appeal on merits, I alter the conviction of appellant as far as murder of Noor Muhammad is concerned from section 302, P. P. C. To one under section 304 (1), P. P. C. And consequently reduce his sentence of life imprisonment to 8 years' R. I. And impose a fine of Rs. 1,000 and in default of payment of fine to suffer further R. I. For six months and also direct him to pay Rs. 1,000 as compensation under section 544-A, Cr. P. C. To the heirs of the deceased and in default of said payment of compensation to suffer R. I. For six months. I also maintain the conviction of appellant under section 411, P. P. C. As given in the impugned judgment and direct that all substantive sentences to run concurrently.
14. I further direct, that the benefit of provisions of section 382-B, Cr. P. C. In respect of period of detention of the appellant as under-trial prisoner from 10-8-1976 till 29-11-1979, after the verification, be given to him, towards his substantive sentence, in addition to all other remissions to which appellant may be entitled in accordance with rules.
15. The above appeal stands dismissed in terms of the above judgment.