' Appellant abovenamed, being aggrieved by judgment dated 5th September, 1981 of the learned Vth Additional Sessions Judge, Karachi, in Sessions case No, 6407/76, by which appellant has been convicted under section 302, P. P. C., and sentenced to suffer imprisonment for life, has preferred the above appeal on the following facts and grounds :- ' The case of the prosecution as disclosed in the F. I. R. Is, that the complainant Inayatullah had got his daughter Msr. Munawar Sultana alias Najma married to appellant Anwar Pasha, about 5 years prior to the lodging of the F. I. R. About 5-6 months prior to the incident Mst. Munawar Sultana came and resided with the complainant due to the strained relations with her husband. Appellant Anwar Pasha tried to take his wife to his house, but she always refused. On 18th March, 1975 at about 6 p. m. Mst. Munawar Sultana, who was employed in Philips Co. Was returning to her house from duty.
When she reached near Mahmoodabad No, 1, appellant Anwar Pasha met her and wanted to take her to his house and on her refusal, he lost his temper and caused her number of injuries with a knife. She was taken to Jinnah Hospital, but she died on the way. The incident was witnessed by P.
Ws. Abdullah, Maqsood Ali and Muhammad Ayub.
' At the time of incident, Hassan Kaisar, Sub-Inspector C. I. A., who was on patrolling duty, happened to pass from there on a mobile vaxual car, when he reached near street No, 2 Mahmoodabad, he saw hundreds of persons standing there. He saw one person holding blood-stained knife in his hand and one girl lying injured on the ground in front of him. He caught hold of the appellant and secured the blood-stained knife from him. He put the injured lady in a taxi, which was standing there. He brought the appellant to Police Station, Mahmoodabad. The injured lady was also taken to the Police Station from where she was sent to Jinnah Hospital. He handed over the appellant, alongwith blood-stained knife to S. H.
0. Mahmoodabad, in presence of mashirs.
' Complainant Inayatullab, father of deceased lady lodged the F. I. R. At P. S. Mahmoodabad, which was recorded by S. H.
0. Zaffar Iqbal. S. H.
0. Arrested the appellant and secured the blood-stained knife in presence of mashirs. S. H.
0. Then proceeded to Jinnah Hospital as injured Mst. Munawar Sultana had died on the way to the hospital. He prepared memo of inspection of dead body as well as inquest report, in presence of mash irs. He sent the dead body to Civil Hospital for postmortem examination and certificate. He proceeded to the vardat, which was shown to him by the complainant. He secured the blood- stained earth from there and prepared such mashirnama. He recorded statements of P. W.
Abdullah, Maqsood, Ayub, Muhammad Iqbal, Irfan, Karam Illahi, Muhammad Ashraf, Shaukat Ali and Sub-Inspector Hassan Kaiser. He sent the blood-stained knife secured from the appellant and the bloodstained clothes of deceased to the chemical analyser for examination and report. He has produced the chemical analyser's report as Exh.
45. After usual investigation, he challaned the appellant on 2nd September, 1975.
' The appellant pleaded not guilty to the charge, when read out to him in the Court. In his statement under section 342, Cr. P. C. He disputed the allegations and professed innocence. The statement of the appellant in his own words is as follows- "P. W. Irfan wanted to marry Mst. Munawar Sultana prior to my marriage with her. He was on visiting terms with my in-laws. Even after my marriage with Mst. Munawar Sultana, P. W. Wan used to visit the house of my in-laws. One day Irfan was seen by my wife at the house of her parents and she had complained to her mother, that he should not be allowed to visit them. This had annoyed P. W.
Irfan. At the time when I was caught by the witnesses P. W. Irfan and P. W. Abdullah were present."
Prosecution examined Inayatullah (P. W. 1), Muhammad, Irfan (P. W. 2), Muhammad Ayub (P. W. 3), Dr. Abdul Hadi. (P. W. 4), Karam Illahi (P. W. 5), Muhammad Ashraf (P. W. 6), Maqsood Ali (P. W. 7), Shaukat Ali (P. W. 8), Abdullah (P. W. 9), Hassan Kaisar (P. W. 10) and S. H.
0. Zaffar Iqbal (P. W. 11). Appellant led no defence.
' The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed as herein-before mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of above appeal.
' The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That prosecution case rests on the sole testimony of P. W. Ayub, a boy of 15 years, who is a real brother of the deceased. This P. W. Was unable to identify the knife alleged to have been used by the appellant in Court and consequently no reliance can be placed on his sole testimony, without independent corroboration.
(b) That prosecution for purposes of above-mentiond corroboration relied upon the statements of P. W. 5 Karam Illahi, P. W. 7 Maqsood Ali and P.W. 9 Abdullah, out of these three witnesses P.W. 7 Maqsood All and P. W. 9 Abdullah were declared hostile by the prosecution, as they did not support the prosecution case and as such statement of P. W. 5 Karam Illahi was only available, which in his opinion does not corroborate the statement of P. W. Ayub.
That recovery of the knife from the alleged possession of the apppellant on the spot at the time of his arrest, is also not free from doubt.
(d) That in the alternative the facts of the incident as disclosed in the F. I. R. Clearly show a sudden quarrel between the deceased and the appellant, without any premeditation and consequently the offence, if any, committed by the appellant would fall under 304 (I), P. P. C. And not under section 302, P. P. C., as held by the learned trial Court.
(e) That the statements of the P. Ws. Recorded under S. 164, Cr. P. C. Cannot be taken into consideration, as the learned Magistrate, who recorded the said statements in Urdu did not know Urdu and further more these P. Ws. Have denied having made the statements, which according to them were dictated by Police and noted down by the reader of the learned Magistrate.
' In support of his above contentions the learned Advocate for the appellant relied upon cases reported in 1980 Pak. Cr. L J 40/264/309/450, PLD 1978 SC (A J& K) 102, 1981 SCM R 260, 4982 P Cr. L J 808, 1983 P Cr. LA 488 and 628.
' The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment, as the statement of P. W. Ayub is straightforward and convincing and further more his statement has been duly corroborated by P. W. 5 Karam Ilahi as well as by recovery of the blood-stained knife from his possession and his arrest on the spot according to the statement of P. W. Hassan Kaiser, against whom no enmity is alleged.
' I have taken into consideration the above submissions 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 learned Advocate for the appellant before me.
It is true, that the prosecution case rests upon the sole testimony of eyewitness P.W. Ayub, who is real brother of the deceased. I find his statement straightforward and convincing and further more the same has been fully corroborated by the statements of P. W. 5 Karam Illahi as well as by the statements of P. W. 7 Maqsood Ali and P. W. 9 Abdullah, who no doubt were declared hostile by the prosecution, for the reasons best known to the prosecution. P. W. Ayub had in his statement before the learned trial Court stated, that the clothes of the appellant were blood stained, but unfortunately the police did not seize said clothes and consequently his corroborative piece of evidence is not available. However, the statement of P. W. 10 Hassan Kaiser S.-I., who actually arrested the appellant on the spot. Alongwith knife is straightforward and convincing and no enmity at all has been alleged against this P. W. In view of this, in my opinion, prosecution has established its case beyond reasonable doubt against the present appellant, on the basis of the statement of P. W. Ayub, P. W. Karam Illahi, P. W. Maqsood Ali, P. W. Abdullah and P. W. Hassan Kaiser and the cases cited by the learned Advocate for the appellant are not at all applicable to the facts of the present case and as such of no help to the appellant. In view of this, even if the statements of P. W. 7 and P. W. 9 under section 164, Cr. P. C. Are discarded, still prosecution has brought on record evidence which clearly establishes the fact, that the appellant gave knife injuries to the deceased on account of her refusal to go home with him, on the public road and as such in my opinion prosecution has established its case against the appellant abovenamed beyond reasonable doubt.
' The only question which requires consideration is. Whether the offence committed by the appellant falls under section 302, P. P. C. Or under section 3041(1), P. P. C. In this connection it is clear from the F. I. R. Of the incident, that the meeting between the appellant and deceased took place on the road, when the appellant asked the deceased to go home with him, which deceased refused and consequently obviously a quarrel took place between appellant and the deceased in which the appellant in heat of passion, without premeditation gave the knife injuries to the deceased, which proved fatal. In view of this the offence committed by the appellant in my opinion would fall under section 304(1), P. P. C. And not under section 302, P. P. C., as held by the learned trial Court.
' Therefore, I find no merits in the above appeal and consequently the above appeal is dismissed.
However, I alter the conviction of the appellant from section 302, P. P. C., to one under section 304 (I), P. P. C. And c consequently reduce the sentence of life imprisonment awarded to th appellant to one for 8 years' R. I. And also impose fine of Rs, 3,000 on the appellant and in default of payment of said fine to suffer further R. I. For 2 years.
I also direct that the benefits 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, towards his substantive sentence, in addition to all other remissions to which may be entitled, in accordance with rules.