The appellant above-named, being aggrieved by judgment dated 10th June, 1980 of the learned Ex Ofcio Vth Additional Sessions Judge, Karachi by which he has been convicted under section 302, P.P.C. And sentenced to suffer transportation for life and fine of Rs. 2,G00 and in default to suffer further R. I. For period of 6 months, has filed the above appeal on the following facts and grounds :-
2. F. I. R. In this case was lodged by one Farooq Muhajir P. W. 3 on 16-2-1973 at 2-30 p. m. At Police- Station Korangi about 1-- miles from Wardat. According to, the F. I. R. He resided near quarter No. 3 occupied by appellant. Deceased Habib Ahmad resided with him. At about SO or 10-30 p. m. On the previous night Habib Ahmad was pressing appellant to return his money. There was a quarrel between the two. On account of this, Habib Ahmed went away weeping. At about 2 p.m.
On the day of incident, Habib Ahmed came to the Wardat in a taxi. Two persons were sitting with him in it. Both of them kept sitting in the taxi, while Habib Ahmed went to the house of 'appellant and demanded his money. This resulted in quarrel between the two. All of a sudden Habib Ahmed ran out of the house crying for help. Appellant who had a open knife in his band, rushed out behind the deceased saying that he would finish him. Mst. Noor Jehan wife of appellant also came out of the house, with an iron bar in her hand. Both the husband and the wife surrounded the deceased, in the ground of `J' Area Market Korangi, wife of appellant was giving blows to the deceased with the iron bar, while appellant was causing him knife blows repeatedly. The persons sitting in the taxi took to flight in the same taxi seeing that the situation had taken an unpleasant turn. The incident was witnessed by his wife Mst. Saleh Begum and other persons of the muhalla.
3. F. I. R. Exh. 8 Was registered in this case by Muhammad Sulleman P. W. 5, A. S. I. And duty officer Police Station Korangi at 2.30 p.m. He sent it to Aqib Shah S. H. O. Korangi for investigation.
4. On receipt of R I. R. S. H. O. Shah Muhammad Aqib proceeded to the Wardat and prepared its memo. Exh. 4 in presence of mashirs Rais Ahmed and Salahuddin. From there he proceeded to Jinnah Hospital, where he learnt, that victim had died. He held inquest over the dead body and prepared report Exh. 11 in presence of mashirs Musbtaq Ali mad and Ahmed Khan. He also prepared memo. Of dead body Exh. 10, in presence of same mashirs. He arrested the appellant at 3.20 p. m. And secured blood-stained shirt, blood-stained banyan, blood stained pajama and an iron bar, at the pointation of the appellant by memo. Exh. 21 to presence of mashirs Manzoor Ahmad and Noor Muhammad. On 17-2-1973 at 4 p. m. Appellant led him to the roof of his quarter and produced a blood-stained knife before him, which he secured by memo. Exh. 37, in presence of mashirs Maqsood Butt and Muhammad Umar Bux. He traced the sketch of the churri on the reverse of this mashirnarna. He got sketch of the Wardat Exh. 38 prepared, through Tapedar. He then examined P. Ws. Farooq Muhajir, Mst. Saleh Begum, Mazhar Hussain, Muhammad Yasin, Ishtique All, Raiz Ahmed and Mushtaq Ahmed. He also examined all the mashirs. He then fell ill and entrusted the investigation to S. I. Din Muhammad, who challaned the appellant in Court.
5. S. 1. Din Muhammad P. W. 7 was setting S. H. O. At Police Station Korangi on 23-2-1973, when he assumed further investigation of the case. He verified the sketch of the Wardat prepared by tapedar. Ultimately, he challaned the appellant.
6. Appellant in his statement under section 342, Cr. P. C. Stated, that he had received injuries, when he intervened in the fight going on between 5/6 persons. The blood-stained clothes were secured from his person, but the same were stained with blood in that incident. He has alleged enmity with P. W. Muhammad Yasin, due to dispute between their children. He did not allege enmity with other P. Ws.
7. The prosecution had examined Raiz Ahmed P. W.
1. Muhammad Yasin P. W. 2, Farooq Muhajir, complainant P. W.
3. Ahmed Khan, P. W. 4, Noor Muhammad P. W. 5, Muhammad Sulleman A. S. I.
P. W. 8, Abdul Ghaffar H. C. P. W. 9, Manzoor Ahmed P. W. 10 and Shah Muhammad Aqib, Investigation Officer, P. W.
11. Evidence of doctor M. S. A. Farooqui has been brought on record as Exh. 28 and doctor Abrar Hussain as Exh. 30, under section 509, Cr. P. C. Evidence of Mst. Saleh Begum, Mazhar Hussain, Maqsood Butt and Ishtiaq Ali has been brought on record under section 33 of the Evidence Act, as Exhs. 42, 43, 44 and 45, as they are not traceable,, as reported by Sayed Usman Ali C. W. 1 and Bashir Ahmed C. W. 2.
8. The learned trial Court taking into consideration the evidence adduced by the prosecution, while acquitting Mst. Noor Jehan wife of appellant, convicted and sentenced the appellant as hereinabove mentioned, vide its judgment dated 10th June, 1980. The appellant being aggrieved by the impugned judgment dated 10th June, 1980, has preferred the above appeal, as the grounds mentioned in the memo. Of appeal.
9. The learned counsel for the appellant in support of above appeal submitted as under :- (a)That prosecution case rests on the sole evidence of P.W. 2 Muhammad Yasin, but in view of material contradictions in his evidence, the same cannot be relied upon without independent corroboration, which is not at all available in present case. In support of this contention, learned counsel relied on cases reported, in 1980 SCMR 216 and 231, 1982 P Cr. L J 403 and 1979 P Cr. L J 158 and 571.
(b) That on account of injury on person of the appellant, and taking into consideration the admitted fact, that deceased went to the house of appellant on the day of incident and quarrel took place, which resulted in incident in question, the plea of appellant in respect of right of private defence cannot be overlooked. In support of this contention, learned counsel relied on case reported in 1982 P Cr. L J 138 and 51.
(c) That in view of admitted sudden quarrel between the parties, the offence if any committed by appellant at the most would fall under section 304 (I), P. P. C. And not under section 302, P. P. C.
As held by the trial Court, even if plea of self-defence is not accepted.
(d)That appellant has remained in judicial custody from 16-2-1973 to 17-8-1977 .As under trial prisoner and after conviction from 10-6-1980 which period works out to nearly 6 years and 7 months, be taken into consideration, while awarding sentence to appellant under section 304(1), P. P. C. If appellant's plea of self-defence is rejected.
10. Learned counsel appearing for the State submitted, that he supports the impugned judgment, but the offence committed by appellant would fall under section 304 (I), P. P. C. As there was a sudden quarrel between, appellant and deceased, in which appellant also received injuries and not under section 302, P. P. C. As held by the trial Court.
11. I have taken into consideration the above submissions made by the learned Advocates before me. I have gone through the statements of P. Ws. And impugned judgment and authorities cited by learned counsel for the appellant.
12. Prosecution examined in all 14 P. Ws. Plus 3 Court witnesses and evidence of Mst. Saleh Begum, Mazhar Hussain, Maqsood Butt and Ashiq Ali were brought on record as Exhs. 42, 43, 44 and 45 under section 33 of the Evidence Act and statements of P. Ws. Dr. Farooqui and Dr. Abrar Hussain were brought on record as Exhs. 20 and 30, under section 509, Cr. P. C.
13. Out of above witnesses, P. W. 2 Muhammad Yasin, P. W. 3 Farooq Muhajir and P. W. Saleh Begum were alleged eye-witnesses of the incident in question. Out of these 3 witnesses, P. W. 2 Muhammad Yasin alone has supported the prosecution case, whereas P. W. 3 Farooq Muhajir, complainant, who was also examined before the trial Court was declared hostile by the prosecution, whereas P. W. Mst. Saleh Begum, who was examined before the Committal Court and whose evidence was brought on record under section 33 of the Evidence Act as Exh. 42 was declared hostile in the Committal Court.
14. P. W. 2 Muhammad Yasin in his statement before the learned trial Court stated that he knew deceased Habib as well as appellant and his wife Mst. Noor Jehan (acquitted accuse). He further stated, that a day prior to incident there was a quarrel between deceased and appellant and his wife Mst. Noor Jehan and both parties came to his house and stated, that the said quarrel was due to money dispute and consequently he brought about compromise between the parties.
According to this witness appellant Usman returned to his house and deceased stayed over with him has it was late night. In the next morning, deceased before leaving his house had told him, that he would bring Diary Khan and then, decide about compromise brought about by this witness. According to this witness deceased Habib did not return till 12 noon as such he went upstairs to sleep. He further stated, that at about 1 or 1.30 p.m. He woke up on commotion in the house of appellant and saw appellant Usman giving knife injury to the deceased and his wife Mst. Noor Jehan, who had iron bar in her hand, but she did not see her giving any blows to the deceased. Deceased fell down. The witness further stated, that P. W. Farooq, his wife and other Muhalla people witnessed the incident in question also. He further stated, that police came on spot and arrested appellant and his wife and also recorded statements under section 161, Cr. P.
C. And his statement was also recorded under section 164, Cr. P. C. Which he produced at Exh. 6.
In his cross-examination, he admitted, that on the day of incident at about 11.00 or 12 noon deceased, alongwith Mazbar Hussain and Ashik Ali had come to his house and told him, that appellant has done injustice to deceased Habib, by throwing him out from his house as well as failed to return his Rs.
40. He further in his cross-examination admitted, that appellant was also bleeding, when he saw him after the incident. He further said, he watched the incident from his house and come down after J hour of the incident. He further stated, that as he had left for police station, he did not see police taking away appellant and his wife. However, in his further cross, he admitted, that in his statement under section 161, Cr. P. C. He has stated, that police took appellant and his wife and deceased in taxi and deceased died on his way to police station.
15. Learned trial Court has come to the conclusion that evidence of S . W. 2 Muhammad Yasin is corroborated by P. W. Ashik Ali, whose evidence recorded by committal Court, was brought on record and by recovery of blood stained clothes and blood-stained churri, at appellant's pointation, in spite of the fact, that P. W. 5 Noor Muhammad and P. W. 10 Manzoor Ahmed mashirs of said recoveries have not supported prosecution, in view of statement of appellant under section 342, Cr. P. C. And Chemical Analyser's Report Exh. 24 and statement of P. W. 11 Shah Muhammad Aqib, Investi--gating Officer.
16. I find statement of P. W. Ashik Ali was brought on record, under section 33 of the Evidence Act however, in this statement P. W. Ashik Ali stated that deceased had just given call to P. W. 2 Muhammad Yasin, but before, that he saw quarrel and fight between appellant, his wife and deceased and all of them were bleeding and as Each he and his companion Mazhar Hussain left the scene. He further stated that appellant had churri in his hand. I also find, that appellant in his statement under section 342, Cr. P. C. Admitted that blood-stained clothes were recovered, from his person, but he denied recovery of churri at his pointation, He, however, stated, that his clothes got blood-stained, as he intervened in fight. He denied having received injuries at the hands of deceased, by Tazar. He further stated, that he has enmity with P. W. 2 Muhammad Yasin, because of children's disputes. In my opinion, statement of P. W. Ashik Ali does not categorically corrobo--rate P. W. 2 Muhammad Yasin, about appellant having given knife blows to deceased. He only says, that there was quarrel and fight between appellant, his wife and deceased and ail of them had blood on their persons and appellant had churri in his hand.
However, his statement does corroborate sudden fight between appellant, his wife and deceased, in which all the three persons were found bleeding and appellant had churri in his hand. It is clear from his evidence, that fight was between these 3 persons and as such statement P. W. 2 Muhammad Yasin is corroborated to this extent. 1t was in this fight that deceased received injuries and fell down and as such I see nothing wrong with the conclusion of the trial Court, that deceased received injuries by Churri from appellant, who alone was armed with Churri, in this fight. Besides this, appellant has admitted, that his clothes were blood-- stained, when they were recovered from his persons, but this fact does not establish, that they were blood-stained with the blood of deceased, as appellant himself had injury on his person.
17. Keeping in view above facts and statements of P. Ws. On record. I am of the opinion that statement of P: W. 2 Muhammad Yas in on material points has been corroborated by statement of P. W. Ashik Ali. Further I do not find any material contradiction in the statement of P. W. 2 Muhammad Yasin, so as to discard his evidence completely. P. W. 2 Muhammad Yasin is friend of both appellant and deceased, which is evident from the statement of P. W. The alleged enmity of the appellant with P. W. 2 Muhammad Yasin was not even put to Muhammad Yasin in his cross-examination. In view of this, I find evidence of P. W.
2. Muhammad Yasiin convincing and straightforward and has been to great extent corroborated by statement of P. W. Ashik Ali, about incident in question, in which deceased received injuries and as such I agree with the conclusion and findings of the trial Court, that deceased died, on account of injuries caused to him by appellant in the incident in question, which has been established by evidence of P. W. 2 Muhammad Yasin and P. W. Ashik Ali. The authorities cited by the learned counsel for the appellant are based on different facts and as such not applicable to the present case.
18. The only question which requires consideration is, whether offence committed by appellant would fall under section 302, P. P. C. As held by the trial Court or under section 304(1), P. P. C. As urged by the learned counsel for the appellant before this Court. In my opinion, in view of the statement of P. W. Ashik Ali which is accepted by the trial Court as well as by me, as corroborative evidence in respect of the statement of P. W. 2 Muhammad Yasin, it is clear, that there was sudden fight between the appellant and his wife on one hand and deceased on the other, in which appellant also received injuries, therefore, offence committed by appellant would fall under section 304(I), -P. P. C. As rightly admitted by the learned counsel for the State.
19. Therefore, keeping in view my above conclusions and finding, while dismissing the above appeal, I would alter the conviction of the appellant under section 302, P. P. C. To one under section 304(1), P. P. C. And in my A opinion, keeping in view the fact, that appellant also received injuries in said incident, I would sentence him to 8 years R. I. And impose fine of Rs. 2,000 on him by way of compensation, under section 544-A., Cr. P. C. And in default of payment of said fine to suffer further R. I. For a period of 6 months. In case, fine is received, the same be paid as compensation to the legal heirs of the deceased. I further direct, that benefit of section 382-B, Cr.
P. C. In respect of period of detention of the appellant, as under trial prisoner, be computed towards his substantive sentence, in addition to all other remissions to which he may be entitled, according to rules.
20. The above appeal stands dismissed, with above modifications in respect of conviction and sentence awarded to the appellant, vide impugned judgment dated 10th June, 1980.