The appellant above-named being aggrieved by judgment dated 31st August, 1981 of the learned Sessions Judge, Tharparker at Mirpurkhas in Sessions Case No. 107/1978, by which appellant has been convicted under section 302 of P. P. C. And sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000 or in default to suffer further R. I. For 3 months and further been ordered to pay compensation .Of Rs. 2,000 to the heirs of the deceased and in default of such payment to suffer further R. I. For 6 months, has preferred the above appeal, on the following facts and grounds.
2. Case of the- prosecution as unfolded in the F. I. R. Is, that on 17-I1-1978 complainant Maqarab Khan was sitting in his house, when at 10 p. m. Yamin Khan came running to him and told him, that appellant Tofique had given knife blows to his (complainant's) nephew Hidayat and further told him, that he (Yamin), Nizam and others were sitting on the hotel of Abbas and appellant was taking meals on that hotel. After taking meals when Tofique came out, Hidayat came there, whom, Tofique appellant asked not to abuse. Then Tofique grappled with Hidayat and fighting, they came outside ~ the hotel on the road. There Tofique took out dagger from the fold of his shalwar and struck Hidayat on his abdomen and his intestines protruded out. Hidayat went unconscious and dagger fell down from hands of Tofique. Nizam picked it up. Other persons caught hold of Tofique.
Complainant then having received such information came to the scene of offence and found his nephew lying unconscious. P. C. Iqbal was taking accused to police station and then complainant came to police station and lodged report.
3. S. H. O. Irshad Ali who had come to the Outpost Jhudo on surprise visit having received information of this incident directly came to Naukot dispensary. He saw injured Hidayat Ali and prepared Mashirnama of his injuries in presence of Mashirs Mushtaq and Zubair and Mashirnama Exh.
29. He then returned to the Outpost, where complainant was sitting and he recorded his F.' I. R., in Station Diary Exh. 12, while he was recording the F.
1. R., Nizam and other persons including P. C.
Iqbal brought appellant Tofique at Police post and S. H. O. Arrested him under Mashirnama Exh. 30.
P. W. Nizamuddin produced before him a dagger, which he-secured in presence of Mashirs Mushtaque and Khajoo Khan. The dagger was stained with blood. He secured and sealed it under Mashirnama Exh.
31. The S. H: O. Then came to scene of offence and saw the same in presence of Mashirs Mushtaq and Zubair. He found blood there which he secured and sealed and prepared Mashirnama exh.
28. He recorded statements of Abbas, Yamin, Shamsher Ali, Nicamuddin and Muhammad Bux. On 18th he recorded statements of Ali Muhammad, Mehboob Ali and Abdur Rashid. On 26th he sent witnesses Nizamuddin, Yamin, Ali Muhammad and Muhammad Bux for their 164 statements before S. D. M., Digri. Finally the appellant was sent up for trial.
4. The prosecution in support of its case had examined the following witnesses: - Dr. Muhammad Iqbal, who in the first instance examined the injured P. W. 1, P. C. Abdul Haq, P. W. 2, Tapedar Thanumal, who prepared sketch of scene of offence P. W. 3, complainant Muqarab P. W. 4, Dr. Aijaz Ahmed, who performed post-mortem examination on the dead body P. W.
5. Nizam P. W. 6, Muhammad Yamin P. W. 7, Ali Bux P. W. 8, Muhammad Bux P. W. 9, Ali Muhammad P. W. 10, Mushtaq Ahmed. P. W. 11 and S. H. O. Irshad Ali P. W. 12.
5. Appellant Tofique in his statement recorded on 28th May, 1981, denied the allegations of the prosecution and stated that he, Younus and Sarwar were sitting on hotel of Abbas and taking meals. Hidayat was known to him: He heard commotion on the road. He; Younus and Sarwar ran out to see as to what had happened. Hajan Shah was with them. He saw Hidayat lying on the road injured and P. W, Nizamuddin standing there with dagger in his band. With regard to the witnesses appellant said that they had deposed against him to save their own skin. The appellant further said, that after he saw Hidayat injured on the ground he tried to help him being his friend. Then Nizam and Yamir raised cries, that Tofique had given blows to Hidayat. He went to police station and brought P. C. Iqbal. Then Nizamuddin and Yamin told P. C Iqbal, that Tofique had given blows to Hidayat Ali. Iqbal took him to police station. He was made to sit there for an hour. In the meantime supporters of complainant party reached police station. S. H. O. Jhudo also came and he arrested him. Ten days before this incident Hidayat Ali had told him, that he was residing with Nizamuddin in his house. He further said that Nizamuddin deals in charas. He asked Nizamuddin to desist from such activities. On that their relations, got strained. He further said to him, that Nizamuddin had levelled false allegations against him (Hidayat), that he; (Hidayat Ali) was on illicit terms with his wife (Nizamuddin's wife). Hidayat Ali further told him, that Nizamuddin wanted him to leave his house. Then he (appellant Tofique) came away to Jhudo. He returned to. Naukot on the day prior to the day of incident. On the day of incident all of a sudden this incident took place. He had no enmity with deceased Hidayat and had no reason to fight with him or give him knife blow. A day prior to the day of incident at night, while he and Hidayat were sitting in the hotel of Abbas Ali, P. W.
Yamin came and told him that he was resident of Jhudo and should return to Jhudo and he had no reason to stay at Naukot. He told him, that he had been posted there by his employers. On that Yamin fought with him. He went to lodge report, but the same was not recorded by police. On the next day the incident took place. He had been falsely implicated. All the witnesses were related inter se. At the relevant time he was residing above hotel of Abbas Ali. P. W. Yamin was a bad character and a case under section 307, P. P. C. Was pending against him before Additional Sessions Judge, Mirpurkhas.
6. The appellant gave his written statement signed by him and by his Advocate, when his further statement was recorded after his counsel was permitted to re-cross examine some of the prosecution witnesses. This statement reads as follows: - ---My further statement is, that on the night of incident I went to the hotel of Abbas Ali to take meals. I took meals in verandah and was about to leave the hotel, when deceased Hidayat Ali came there. He immediately started abusing me on which he requested him to behave properly.
He started giving me kicks and fist blows then we grappled and came to the road. He took out a knife from the fold of his shalwar and wanted to attack me. I twisted his hand to give up knife, when it suddenly injured him and the knife fell down from his hands.---
7. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
8. The learned Advocate, for the appellant at the outset submitted, that he was pressing. The above appeal in respect of appellant's conviction under section 302, P. P. C,. As it is very clear even from the F. I. R. And evidence of the prosecution. Witnesses, that there was sudden fight and in the course of that sudden fight appellant gave only one blow to the deceased and consequently the offence committed by the appellant would at the most fall under section 304 (II), P. P. C. And not under section 302, P. P. C. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1980 P Cr. L J 1275 and 1981 SCMR 663.
9. The learned Advocate appearing for the State on the other hand submitted, that he was supporting the impugned judgment to the extent, that the appellant had given injuries to the deceased, which resulted in his death, but in view of the facts and circumstances on record, the offence committed by the appellant would fall under section 304 (1), P. P. C., and not under section 302, P. P. C. As held by the learned trial Court and con--sequently the conviction of the appellant be altered from section 302, P. P. C. To section 304 (I), P. P. C.
10. I have carefully considered the above submission made by the learned Advocates before me and have gone through the R. & P. Of the learned trial Court as well as the impugned judgment and cases cited by the Advocate for the appellant.
11. It is clear from the statement of all P. Ws. Who saw the incident as well as from F. I. R. That there was a sudden quarrel between the deceased and appellant in which both of them grappled and appellant gave one knife injury to the deceased, which proved fatal. It is also admitted fact, prior to incident, appellant was having meals in the hotel and there--after deceased came to the hotel and as such question of premeditation for commission of offence on the part of the appellant does not arise. Inde--pendent eye-witness P. W. Muhammad Bux in his examination-in-chief before the learned trial Court stated, that deceased started arguments with the appellant on entering the hotel and then both of them-grappled and fight started. P. W. 9 Muhammad Bux's statement in this connection is corroborated to some extent by another independent P. W. 10 Ali Muhammad. P. W. 10 Ali Muhammad in his cross-examination admitted, that deceased gave fist blow to the appellant first and then appellant took out knife from shalwar and gave one blow to the deceased.
12. It is clear from the above facts on record, that offence committed by appellant would fall under section 304, P. P. C. And not under section 302, P. P. C. In my opinion. According to medical evidence on record injury received by the deceased was sufficient in ordinary course of nature to cause death. Keeping in view this aspect, offence committed by appel--lant in my opinion would fall under section 304 (1), P. P. C. And not under section 304 (II), P. P. C. As urged by the learned Advocate for the appellant, as the authorities cited by the learned Advocate for the appellant in support of this contention, are based on different facts and not applicable to the present case, as the injury to the deceased was caused on the vital part of his body and according to medical evidence on record, the said injury was sufficient in ordinary course of nature to cause death.
Appellant has given two versions of the incident which are con--tradictory and no reliance can be placed on his statements. Therefore, in view of my above-conclusions, while dismissing the above appeal on merits, I alter the conviction of the appellant from section 302, P. P. C. To one under section 304 (1), P. P. C. And taking into consideration the manner in which the incident took place, according to P.W. 9 and P.W. 1 in my opinion the maximum sentence under section 304 (I), is not called for and consequently I reduce the sentence awarded to the appellant fro life imprisonment to R. I. For 8 years and maintain the fine of Rs. 1,0 and in default of payment of fine appellant to undergo further R. I. For three months as well as direct the appellant to pay compensation of Rs.
2,000 to the heirs of the deceased and in default of such payment to suffer further R.
1. For 6 months. However, I 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 be given to him, after due verification towards his substantive sentence, in addition to all other remissions to which the appellant may be entitled, in accordance with the rules.