1. ' Appellant above named, being aggrieved by judgment, dated 5-9-1982 of the Vth Additional Sessions Judge, Karachi, in Sessions Case No, 6361 of 1976, by which appellant has been convicted under section 302, P.P.C. and sentenced to suffer imprisonment for life and pay fine of Rs,2,000 or in default to suffer further R.I. for 2 years, 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 about 23 years back deceased Prem Jee had married his daughter Mst. Bhanri Bai to appellant Bhudaji alias Vithal. About 5 years after the marriage, appellant Bhudaje developed habit of taking alcohol and he did not do any work to earn his livelihood. He was advised by his wife to give up the habit of taking alcohol, but it had no effect on him. He left his wife and children at the house of deceased Premji, who was his father-in- law and kept on roaming in the city. On 28-7-1975 appellant went to deceased Premji, under the influence of alcohol, when the prayers were being offered and Premji told him to go away which annoyed the appellant and while going away, he threatened deceased Premji, that he would not spare him. On 30-7-1975 at about 2-30 p.m. Premji was sleeping outside his house alongwith his son Govind and daughter Mst. Bhanri Bai, when appellant appeared there. P.Ws. Govind and Mst.
2. Bhanri Bai tried to prevent him from causing any injury, but the appellant inflicted two knife blows to Premji on his stomach and ran away. Premji went to Police Station Nabi Bux and lodged the report under section 307, P.P.C., which was recorded by S.I.P. Abu Zakeria. He sent injured Premji to Civil Hospital for examination, treatment and certificate. He proceeded to the Vardat which was shown to him by P.W. Govind. It was situated in Peeru Budha Street, Ranchore Lines, Karachi. The cost of the complainant and the witnesses were lying there. There was blood on the quilt of injured Premji. Clothes of injured were also lying there on the cot which were blood-stained. He secured the stained clothes and quilt. There was also blood on the ground, but he could not secure the blood- stained earth as the ground was hard. He prepared Mashirnama in presence of Masher's, He then examined P.Ws. Mst. Bhadi wife of injured Premji Govind, Arjan, Sooma, Mst. Jethi, Abdul Ghani and Daya Lal. On 7-8-1975 he examined contractor Muhammad Akber. On the same day, he also arrested the appellant from Gaddani Sea Beach. The appellant voluntarily led him and the Mashirs to a garden near Bohrapir, Choona Bhatti, Karachi, from where appellant took out a knife lying in the bushes and produced it before him. He secured the knife and prepared such Mashirnama. On 11-8-1975 be received information from Civil Hospital, that injured Premji had died in the hospital. He made entry in the Roznamcha and proceeded to the hospital, where he prepared memo. of inspection of dead body and inquest report. He then handed over the dead body to M.O. Civil Hospital, Karachi for post-mortem examination and certificate through Constable Niaz Hussain. In view of the death of injured Premji, he applied section 302, P.P.C. on 18-8-1975, he got 164, Cr.P.C. statements of P.Ws. Govind, Arjan, Mst. Bhanri and Sooma recorded in the Court of A.C.M. No,9. After completing the investigation, he handed over the police papers to S.H.O. Malik Ghulam Hussain, who submitted the challan in the Court. He had sent the blood-stained articles to the chemical analyzer for examination and report. He has produced the Chemical Analyzer's Report which is in positive.
3. ' Charge under section 302, P.P.C. was framed and read over to the appellant who pleaded not guilty and claimed to be tried. In his statement recorded under section 342, Cr.P.C. appellant denied the case of the prosecution and claimed to be innocent. He has stated that the witnesses have been set up against him by the police.
4. ' Prosecution examined Govind (P.W.1), Mst. Bhanri Bai (P.W. 2), Arjan (P.W.3), Ramji (P.W.4), Devji (P.W.5), Nathalal (P.W.6), Dr. Hadi Ali (P.W.7), F.C. Niaz Hussain (P.W.8), Allahrakha (P.W.9), Muhammad Jaffar (P.W.10), Dr. Syed lqbal Ahmed (P.W.11), Inspector Ghulam Hussain (P.W.12), S.I.P.
5. Abu Zakaria (P.W.13), Nawab Din (P.W.14) and Nazar Muhammad, A.C.M. Karachi (P.W.15). P.Ws. Mst.
6. Jethi and Moosa were given up. P.Ws. Dinalal and Abdul Ghani could not be examined as they were reported to be dead while P.Ws Muhammad Akbar and Muhammad Bux are said to have been shifted to some unknown place. Hence they also could not be examined on account of that reason.
7. ' Learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant the above named as hereinbefore mentioned and consequently appellant has filed the above appeal on the grounds mentioned in the memo. of appeal.
8. ' Learned Advocate for applicant in support of the above appeal submitted as under:-- ' That in view of the statement of P.W. Dr. Hadi Ali, the offence if any committed by appellant would fall under section 304-11, P.P.C. and since appellant has remained in custody for nearly six years, said imprisonment may be considered as sufficient, in view of the facts and circumstances of the present case.
9. ' Learned Advocate appearing for the State, conceded to above submissions of the learned Advocate for appellant.
10. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as impugned judgment.
11. Learned Advocate for appellant has not pressed the above appeal on merits. I also find from R & P of the case, that prosecution by statements of P.Ws. has established beyond reasonable doubt that appellant did cause the injuries in question to deceased's Premix, who ultimately died after 11 days, due to his wounds becoming septic. P.W.7 Dr. Hadi Ali in his statement before the learned trial Court stated, that deceased wounds became septic due to non-giving of suitable medicines to the deceased, although according to medical certificate Exh.29, both the injuries caused by appellant were simple. Appellant has remained in custody from 7-8-1975 to 14-1-1980 and from 5-9-1982 till today.
12. Therefore, while dismissing above appeal on merits, I alter the conviction of appellant from section 302, P.P.C. to one under section 304-11, P.P.C. and reduce his sentence from life imprisonment to one already undergone by the appellant and maintain the fine of Rs,2,000 imposed on him by impugned judgment, but in case of failure of the appellant to pay said fine, to suffer R.I. for three months only.
13. ' Above appeal stands dispose of in terms of the above judgment.
THE END