1. Appellant above named, being aggrieved by judgment dated 23rd November 1976 of the learned Sessions Judge Thatta, in Sessions Case No. 15/76, by which appellant has been convicted under section 304(11), P.P.C. And sentenced to suffer R, I. For 3 years and also to pay a fine of Rs. 1,000 or in default of payment of fine to suffer further R.I. For six months, has preferred the above appeal, on the following facts and grounds.
2. The brief facts of the prosecution case are, that deceased Yasin a about 15 or 16 years student of 6th class Government Middle School Makli was the younger brother of complainant Mohammad Hussain and used to reside with him. That on 10th January 1976 brother-in-law of complainant, Muhammad Ashraf, who resides at Makli alongwith his family had gone out on duty and had requested complainant Muhammad Hassan to direct Muhammad Yasin to stay for the night at Makli with sister and accordingly Muhammad Yasin went to Makli. On the same date at about 7.00 p.m. Complainant and his elder brother Muhammad Siddique were in their house and that P.Ws.
3. Amir Ali Shah, Khanzado, Imamdino and Karo brought deceased Muhammad Yasin to the house in the Rickshaw and that deceased Muhammad Yasin was unconscious and that Amir Ali Shah informed them, that deceased Yasin was playing Gillidanda near Sim Nali at Makli alongwith Ali Raza, 1qba1, appellant Muhammad Saleem, Natho, Khalik, Noroo, Ramoon, alongwith himself and that he, deceased Yasin, Iqbal and Natho were on one side and that appellant Muhammd Saleem.
4. Ali Raza, Khalil, Bachayo, Nooro and others were on the other side. They were still playing that sunset time came and deceased Yasin wanted to go, as he had to go to the house of his sister. On this appellant Saleem abused Yasin that he will not be allowed to go, until the game is over and then appellant Saleem caught hold of the neck of deceased Yasin and struck his head against his head and gave two Takars and also gave fist blows on his stomach. Then deceased Yasin fell down and appellant Mohd. Saleem again gave fist and kicks blows on the stomach and other parts of the body of Yasin. Then he (Amir Ali Shah) and others intervened and entreated Muhammad Saleecn not to give further injuries to Yasin and separated both of them On com--motion P. Ws. Imamdino, Karo and Khanzada also came and that deceased Yasin told them, that appellant Muhammad Saleem had caused him injuries and then they brought Muhammad Yasin. Then complainant and his brother Siddique brought Muhammad Yasin in the same Rickshaw to Civil Hospital Thatta and that after examination Muhammad Yasin was declared dead. Then complainant went to police Thatta and lodged his F. I. R. At 9-00 p. m., on the same date. S. H. O. Mr. Sanwan Khan on 10-1-1976 was S. H. O. Thatta. At 8-15 p.m. On the same date, he received telephonic message from Civil Hospital Thatta, that they had received dead body. He made such entry in the dairy vide entry No.
2. Then he went to Civil Hospital and saw the dead body of deceased Yasin. Then he prepared mashirnama of the dead body and inquest report Exh. Nos. 12 and 13. Then he handed over the dead body to P. C. Allahdino Shah for post-mortem examination. Then he went to police station, alongwith complainant Muhammad Hussain, who lodged the F. I. R. Which he recorded at his dictation and got him thumb mark, after reading it over to him. On 11-1-1976 he went to wardat and saw it on showing of P. W. Amir Ali Shah. It was near Sim Nali on National High Way at Makli. There were-marks of playing Gillidanda. He prepared mashirnama in presence of mashirs Pir Muhammad and Saffar Exh.
18. He also secured two Gillis from wardat. Then he examined Amir Ali Shah, Natho, Muhammad Siddique, Muhammad Ashraf, Ali Raza, Imamdino, Karo, Khanzada, Bachayo, Iqbal and Ramoon. Then he also examined Abdullah Rickshaw driver. On the same date, father of appellant Saleem produced him and he interrogated him and arrested him to presence of mashirs Allah Warayo and Ahmed Ali and prepared Mashirnama Exh 14. Then he produced the appellant before Mukhtiarkar and F. C. M. Thatta on 12-1-1976 for recording his 164, Cr. P. C.
5. Statement, which w recorded. He also got 164 Cr. P. C. Statements of P. Ws. Amir Ali Shah, Natho, Imamdino, Karo, Khanzada Ali Raza recorded before the same Magistrate. He also examined Nooro and Khaliq. On 20-1- 1976 he challaned the appellant.
6. Appellant in his statement under section 342, Cr. P. C. Ha; said, that he is innocent and he has not committed any offence and that he never caused injuries to deceased Yasin. He has further said, that he was produced before Mukhtiarkar and F. C. M. Thatta on 12-1-1976 and he gave the confession due to the maltreatment threats of the police. It was neither true or voluntarily and that the S. H. O. Was waiting outside the Court till his confession was recorded and that S. H. O. Has threatened him even before producing the Magistrate and that he gave the confession due to fear of the police and that all the P. Ws. Are related to Amir Ali Shah, who is not on good terms with him and that Amir Ali Shah had fought with him six or seven days prior to this incident, while playing Gili Danda. He has further said, that on the day of incident they played the game of Gili Danda and it was over at about sunset time and while they dispersed P. W. Amir Ali Shah had quarrelled with deceased Yasin and that he went away to his house and that Amir Ali Shah in order to save himself has foisted this case on him after consulting his relations and that it was Amir Ali Shah, who had fought with deceased Yasin and he is innocent.
7. Prosecution in support of their case have examined R. M. O. Thatta Mr. Moinuddin Exh. 2, complainant Muhammad Hussain Exh.
4. P. Ws. Amir Ali Shah Exh. 6, Imamdino Exh. 7, Khanzada Exh.
8. 8, Ali Raza Shah Exh. 9, Natho Exh. 10 Allah Warayo Exh. 11, Muhammad Khan Tapedar Exh. 15, Sanwan Khan S. H. O. Exh. 17, Haji Shafi Muhammad Mukhtiarkar and First Class Magistrate Exh.20, Pir Muhammad Exh. 22, Gul Muhammad Shah Exh. 23, appellant has also examined D. W. Abdul Samad Exh. 31.
9. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named as herein--before mentioned and consequently the appellant above named has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
10. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That in view of the medical evidence on record and in view of the facts of the incident in question, the offence committed by the appellant would fall under section 323, P. P. C. And under sec--tion 304 (II), P. P. C.
(b) That this was a sudden fight without any motive and premedita--tion and only fist blows were given by the appellant, according to prosecution witnesses as such the sentence awarded to the appellant is harsh.
11. In support of the above contentions the learned Advocate for the appellant relied upon cases reported in 1972 S M C R 419 and 1969 SCMR641.
12. The learned Advocate appearing for the State on the other hand submitted, that the conviction of the appellant under section 304(II), P. P. C. Is fully justified, on account of the prosecution evidence brought on record. However, he submitted that in view of the facts and circumstances of the incident in question, ends of justice will be met, if the sentence of imprisonment awarded to the appellant is reduced to the term already undergone by him.
13. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the P & R of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for the appellant.
14. I have carefully gone through the statements of P. W. Amir Ali Shah and P. W. Ali Raza Shah, who both are brothers inter se, who have fully supported prosecution case. Appellant has alleged enmity with P. W. Amir Ali Shah of earlier fight, but has not denied that he was playing on that day with P. W. Amir All Shah and as such the alleged enmity is not such as to discard his evidence. In addition to this, statements of these two eye-- witnesses has been corroborated by P. W. Natho regarding grappling between deceased and appellant over deceased's desire to go away without giving turn to appellants side. In addition to this P Ws. Imamdino and Khanzada have also corroborated the statements of P. Ws. Amir Ali Shah and Ali Raza, on the basis of alleged dying- declaration of the deceased made to them. Even retracted judicial confession of the appellant admits fight between himself and deceased, over stopping of game. This retracted confession is corroborated by statement of P. Ws. Amir Ali Shah, Ali Raza Shah and dying declaration of the deceased, by P. Ws. Imamdino and Khanzada. P. W. Haji Shafi Muhammad Mukhtiarkar by his statement has proved the judicial confession of the appellant, which he recorded after observing all the necessary formalities and warnings to the appellant and this proved volunteer ness of the said confession. I see no to disbelieve that P. Ws. Haji Shafi, against whom no enmity is alleged nor his statement was shaken in his cross. I see no reason to disbelieve P. W. Amir Ali Shah and P.W. Ali Raza and P. W. Natho, whose statements are straight forward and were not shaken in their cross- examination. No specific enmity is alleged against these witnesses, except it is alleged, that they in order to shield P. W. Amir Ali Shah, have falsely involved appellant. In support of this appellant examined D. W. Abdul Samad. I have gone through his statement very carefully. His statement does not inspire confidence, as if he was there, he would have not left deceased after his alleged fall, at the instance P. W. Amir Ali Shah and go home without informing complainant and/or attending to the deceased and helping him. His conduct look unnatural and as such no reliance can be placed on his statement at all.
15. Therefore in my opinion, prosecution has established its case against the appellant, that he gave fist blow etc. To the deceased, in the manner as stated by P. Ws. And F. I. R. Beyond reasonable doubt.
16. The only question which requires consideration, is whether offence, committed by appellant falls under section 304(11), P. P. C. Or under section z23. P. P. C., as alleged by the learned counsel for the appellant.
17. In view of the statement of P. W. Dr. Mohiuddin, that deceased was suffering from enlarged spleen and liver and further internal injuries received by the deceased could also be caused by his fall only and this fact about enlarged spleen and liver was not within the knowledge of the appellant and as such offence if any committed by appellant would fall under section 323, P.P.C. Only. In support of this contention, the learned Advocate for appellant has relied upon cases reported in 1972 SCMR 419 and 1969 SCMR 641. I have carefully considered these submissions made by learned Advocate for appellant. I find great force in this contention of the learned Advocate for appellant. In my opinion, appellant's offence would fall under section 323, P. P. C. Only, as he was not aware of the enlarged spleen or liver of deceased and as such giving of fist blows in sudden quarrel over petty dispute, would not fall under section 304 (II), P. P. C.
18. Therefore while dismissing above appeal on merits, I alter the con--viction of the appellant from section 304 (II), P.P.C. To one under section 323, P.P.C. And consequently reduce his sentence of imprisonment to one already undergone by him. However, I maintain fine of Rs. 1,000 impos--ed on him by impugned judgment and in default of payment of said fine to suffer further R.I. For six months. However I give three weeks' time to appellant to pay the said fine. In case appellant fails to pay fine within this period, I direct the learned trial Court to issue non-bailable warrants for arrest of the appellant, who is on bail and on his arrest to remand him back to judicial custody to serve .Out sentence in lieu of fine, imposed on him by impugned judgment.