' This criminal appeal arises from the judgment of learned Additional Sessions Judge, Multan whereby he on 31st March, 1982 convicted Boota appellant under section 302, P. P. C. For the murder of Muhammad Sharif and sentenced him to imprisonment for life and a fine of Rs, 500. In default of the payment of fine to further R. I. For 4 months. Under section 544-A, Cr. P. C. He was directed to pay Rs, 500 as compensation to the heirs of the deceased, in default thereof to further R. I. For 4 months. The co-accused namely Zahoor Ahmad, brother of the appellant was, however, acquitted.
2. This occurrence took place on 25th March, 1981 at 10-00 a. m. In Chah Ram Kali Dakhli. Village Amirgarh. Muhammad Sharif succumbed to the injury at 1-00 p. m. On the same day.
3. The F. I. R. Exh P. C. Is a report lodged by Mst. Amanat Bibi P. W. 5, the sister of the deceased at P. S. Alapa at 3-00 p m. On 25th March, 1981 and the same was recorded by Salabat Khan A. S.-I. P. W.
8. The distance between the place of occurrence and the police station is 14 miles.
4. The prosecution case is that on 25th March, 1981, Mst. Amanat Bibi P. W. 5 weeded out the grass from wheat field of Shan Muhammad P. W. Situate at Chah Ram Kali, village Amirgarh. At about 10.00 a. m. When she picked up the same, the appellant came there. Since according to the appellant, the grass was weeded out from his land, he not only abused Mst. Amanat Bibi but also slapped her. The alarm raised by her attracted her brother Muhammad Sharif deceased who happened to be present nearby. The appellant when admonished by the deceased, ran inside the Bhaini situate nearby and brought out a dang. In the meantime Zahoor, brother of the appellant also reached there who slapped the deceased and took him into his jappha. Thereafter Boota appellant gave a sota blow on the head of the deceased who fell down. The occurrence was witnessed by Shan Muhammad P. W. 6 and Muhammad Akbar P. W. 7 who allegedly were present near the place of occurrence. The appellant and Zahoor Ahmad co-accused made good their escape. Shan Muhammad P. W. Was sent to manage a wagon for taking Muhammad Sharif injured to the hospital. The injured, however, expired on the spot at about 1.00 p. m. Before the arrival of the wagon. Leaving the P. Ws. With the dead body Mst. Amanat Bibi left for police station to lodge a report.
' On 26th March, 1981, Dr. Riaz-ud-Din P. W. 4 conducted the postmortem examination on the dead body of Muhammad Sharif and found the following injuries on his person :
(1) A contused wound on the tight side of upper part of forehead l c. m. x c. m. Bone deep about 5 c, m. Above the right eye-brow and 10 c. m. From the ear.
(2) A contused wound on the right forehead about 1 c. m. Towards right of injury No, 1.
(3) There was depression of bone 8 c. m. 5 c. m. Above injuries Nos. 1 and 2 on the right side of head.
(4) Right upper eyelid accutely bruised and swollen.
' On dissection, he found considerable amount of clotted blood under the scalp muscles. There was depressed fracture of right side of frontal bone 8 c. m. x 5 c. m. Under the depression already mentioned. There was fracture of right temporal, right parietal and left temporal bone. The cause of death in the opinion of the doctor was due to shock and haemorrhage. All the injuries were caused with blunt weapon. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature individually and collectively.
6. On 28th March, 1981, P.W. 8 Salabat Khan arrested the appellant. On the same day, the appellant got recovered blood-stained sota Exh. P.3 vide memo. Exh. P. F. Attested by Shan Muhammad P. W.
6 and Muhammad Akbar P. W.
7. The Chemical Examiner's report Exh. P. L. And Serologist report Exh. P. M. Are positive. It is remarkable that this recovery has not been believed by the trial Court in para. No, 13 of its judgment.
7. The appellant when examined under section 342, Cr. P. C. Denied the incriminating circumstances. He took the plea of false implication and substitution. He explained that he was a lease-holder of one square of land jointly owned by Abdul Aziz, Muhammad Sharif deceased and Mst. Amanat Bibi P. W. 5 and others whereas co-accused Zahoor was lessee under Muhammad Akbar P. W. 7 and that in order to eject them from their land, the complainant and the P. Ws. Have falsely involved them in the case. According to defence version, the deceased was killed by his family members on account of family disputes and the appellant was substituted for the real culprits. In defence two witnesses namely Abdul Rashid and Abdul Haq were produced. Abdul Rashid D. W. 1 is Reader of Naib-Tehsildar. He brought original file in case Abdul Aziz v. Boota pertaining to application regarding the division of produce of village Amirgarh. He proved the correct copy Exhs. D. E. And D. F. Abdul Haq P. W. 2 is a Petition Writer. He has proved document Exh.
D. G. Executed by Muhammad Akbar.
8. In order to prove its case, the prosecution examined as many as 8 P. Ws. Out of whom Mst.
Amant Bibi P. W. 5, Shan Muhammad P. W. 6 and Muhammad Akbar P. W. 7 have given the ocular account of the occurrence. Mst. Amanat Bibi has repeated the same version as given by her in the F.
1. R with the addition that both the accused had obtained land on lease from the deceased and when asked by the deceased to vacate the same on the termination of lease, the accused became annoyed with him, Shan Muhammad P. W. 6 and Muhammad Akbar P. Ws. 7 have supported the prosecution case as stated above. They have fully supported Mst. Amanat Bibi on all material particulars. They also supported the recovery of blood-stained sota Exh. P. 5 from the appellent..
9. Before me, the learned counsel for the appellant has not challenged the conviction of the appellant and rightly so because it is a day time occurrence; the name of the appellant is mentioned in the F. I. R. The weapon used by him and the part played by him are also given therein; the eye-witnesses are not inimical and the defence failed to elicit .Any material infirmity which may shake the credit of the eye-witnesses.
9-A. The learned counsel has however, challenged the nature of the offence committed by the appellant. According to him, the allegation in the circumstances of the case accepted as true, the offence committed by the appellant would fail within the purview of section 304-11, P. P. C. And not section 302, P. P. C.
' The learned counsel for the State has half-heartedly opposed the arguments of the learned counsel, on the ground that since the injury was inflicted on the head, the appellant can be safely burdened with intention to kill the deceased.
10. After having attended to the arguments presented by the learned counsel for the parties, I am inclined to agree with the learned counsel for the appellant for the reasons that there was no previous enmity between the parties; the occurrence appears to have taken place all of a sudden and over ordinary quarrel and upon the deceased having repremanded the appellant immediately proceeding the infliction of injury on his person and although the deceased had been completely overpowered by Zahoor co-accused yet the appellant did not repeat his blow as according to the eye-witnesses, he inflicted only one blow to the deceased.
' In these circumstances, I am of the opinion that it would be to much to burden the appellant with intention to kill the deceased, no he had intention to cause such bodily injury as was likely to cause death but at the sametime it can be safely held that he had the knowledge that his act was likely to cause death. His case, therefore, falls within the purview of Part-11 of section 304, P.P.C.
11. For what has been stated above, the appeal is partly accepted. The conviction of the appellant under section 302, P.P.C. Is set asideic and in lieu thereof, he is convicted under section 304-11 and sentenced to 7 years' R. I. He would also get the benefit of section 382-B, Cr. P. C. .