' Appellant abovenamed, being aggrieved by judgment dated 12th January, 1978 of the learned Sessions Judge, Sanghar, in Sessions case No, 407 of 1976, by which the appellant has been convicted under section 302, P. P. C. And sentenced to imprisonment for life, has preferred the above appeal, on the following facts and grounds :-
2. On 21st May, 1972 at 4-50 p. m. Complainant Saidal lodged report Exh. 6 at Police Station, Shahpur Chakar which reads as follows :- "It is complained that I deal in cattle. Dilawar and Sherdil are my cousins. We reside in the same village. Today in the morning I, Dilawar and Sherdil went to purchase goats and sheep from villages. After purchasing 10 heads of goats and sheep when we reached field cultivated by Dadlo Shar in deh 8 Jamro, I Rahim Shar was standing there and told us, why we had passed cattle from there and damaged their crop. He abused us. In return we also abused him. Rahim was armed with hatchet,, who gave blow with back side of hatchet to Dilawar on his head. We raised "cries when Dadlo, Pado and Sultan Shar relatives of Rahim came running armed with lath is and hatchets.
Pado gave blow with sharp side of hatchet to Sher Dil and Dadlo gave lathi blow to Sher Dil on the upper part of his left arm. Sultan Shar gave me lathi blow, which struck me on the left wrist. .Then Ali Dad, Sulamon and Mitho Maris came running giving hakals and many other people of the village by caste Shars and Mari reached there. They entreated and averted fight. Then I went to report my Nek Mard Surat Khan Mari who directed me to lodge report. I have brought injured Dilawar and Sher Dil to lodge report. Justice be done."
3, A. S.-I. Muhammad Shafi after recording the report of the complainant Saidal saw injuries on person of complianant Saidal and P. Ws. Dilawar and Sher Dil in presence of mashirs Shadmir and Soorat Khan and prepared mashirnamas Exhs. 34, 35 and 36. He recorded statement of Sher Dil, but could not record statement of Dilawar, as he was not in condition to give statement. He referred injured to Medical Officer for examination, treatment and certificate. He then proceeded to the scene of offence and saw the same in presence of mashirs Shadmir and Soorat Khan. The scene of offence was in land cultivated by Dadlo Shar and there he found blood. He prepared mashirnama Exh.
37. He recorded statement of Ali Dad and Soorat Khan. At 5 or 6-00 p. m. On the same day appellant Rahim surrendered before him and he arrested him, released him on bail and interrogated him. Appellant Rahim voluntered to produce hatchet the weapon of offence and took the A. S.-I. And mashirs Nabi Bux and Ali Nawaz to his house and produced hatchet lying under the cot in the corner of the house. It was not blood-stained. The A. S.-I, secured it under mashirnama Exh.
20. He searched houses of appellants Pado, Dadlo and Sultan but nothing incriminating was found.
The A. S.-I. Then came to Civil Hospital, Sanghar to record statement of Dilawar, but the incharge M.
0. Told him that he was not in a condition to give statement. On 26th at 9-55 p. m. The A. S.-I.
Received telephone from Civil Hospital, Sanghar, that injured Dilawar had died. He sent P. C.
Ghulam Rasool to keep guard over the body and next morning came to Civil Hospital and prepared mashirnama of dead body in the dead house in presence of mashirs Ali Nawaz and Soorat Khan Exh.
39. He prepared inquest report of the dead body in presence of the same mashirs Exh.
38. He then gave dead body to M.
0. For post-mortem examination. The A. S.-I. Arrested appellant Dadlo in hospital in presence of mashir Ali Nawaz and Muhammad Achar, under mashirnama Exh.
40. He then came to deh Jamrao and arrested appellants Rahim, Pado and Sultan and prepared mashirnama in presence of mashir Ali Nawaz and Jian Exh.
42. On 30th he sent witnesses Ali Dad, Salamon, Sher Dil and Mitho Adam. He then handed over papers to S. H.
0., who sent up the appellant and other co-accused persons for trial.
4. The prosecution in support of its case has led evidence of complainant Saidal (P. W. 1), All Dad (P.
W. 2). Salmon (P. W. 3), Sher Dil (P. W. 4). Nabi Bux (P. W. 5) A. S.-1. Muhammad Shafi (P. W. 7), Soorat Khan (P. W. 8) Deposition of Tapedar Muhammad Usman who was examined before lower Court but died before he could be examined before this Court, has been brought on record Exh. 29 and deposition of Dr. Abdul Ghani Shah, who has examined in the first instance injured in this case and Dr. Faiz Muhammad, who performed post-mortem report on dead body, of Dilawar, have been brought on record as Exhs. 46 and 50.
5. Appellant Rahim in his statement has admitted, that scene of offence of this case is situated in land owned by Sultan and cultivated by Dadlo. He has denied that there was no cultivation as the scene of offence and has stated that there was melon crop cultivation. This appellant has denied, that he and his co-accused had acted under common intention. He has admitted to have given blow to deceased Dilawar, but has stated that Dilawar had given him blow first, while rescuing cattle, that he was taking to pound from him and then he gave him blow in self-defence. He has admitted, that he had sustained injuries in this incident and was referred to M.
0. For examination, treatment and certificate. With regard to the witnesses he has stated, that they were all accused in the counter-case. This appellant has further stated that cattle of Dilawar, Sher Dil, Salamon, Ali Dad and Mitho had entered their crop and damaged it. He had taken the cattle out and was leading them to cattle pound and when he reached at the scene of offence, prosecution witnesses came there and asked him to leave cattle. He refused hence Dilawar gave him blow. He also in self-defence gave blow to Dilawar. Then Sher Dil, Saidal, Mitho and others gave him blows.
He raised cries when Dadlo, Pado and Sultan came to his rescue. The prosecution witnesses gave them blows and then took away cattle. His father-in-law Pado had lodged report of the incident.
6. Co-accused Dadlo in his statement had also stated, that the scene of offence is in land of Sultan cultivated by him. There was melon crop. He has admitted to have given lathi-blow to Saidal in self-defence, after Saidal had given blow to him and that he was referred to M.
0. He has further stated, that his statement was same as that was of Rahim, who is his cousin. He, Pado and Sultan had come from their house on cries of Rahim. Who was being given blows by P.
Ws.
7. Co-accused Sultan had also admitted to have given blows to P. W. Sher Dil in self-defence, after he had been given blows. He has further stated, that appellant Rahim was his nephew and his further statement was same as that of appellant Rahim. Further according to him co accused Dadlo was his brother.
8. Co-accused Pado had also admitted to have given blow in self-defence, after he was given blows and has stated that his further statement was same as that of Rahim and Dadlo. He had lodged report of the counter-case.
9. The counter-report lodged by appellant Pado has been brought on record through A. S.-I. Shafi Muhammad Exh. 44 and it reads as follows :- "it is complained that I am hari of Rais Sultan Khan Sitar and cultivate land in deh, 8 Jamrao. My uncle Dadlo also resides with me. He is also hari of Sultan Khan. Today in the morning I and my uncle Dadlo were working in the field and there Rahim my son-in-law also came and worked and my relative Sultan, also came and we all were working there when at 12 mid-day goats and sheep of Mans trespassed in melon crop of Dadlo and damaged it. Rahim took out cattle for impounding them when Sher Dil armed with hatchet, Mitho, Ali Daci, Salamo and Ali armed with lathis came and attacked. Sher Dil gave hatchet blow to Rahim. We intervened to rescue him, but Saidal gave me hatchet blow, Mitho and All gave me lathi blows, Dilawar gave hatchet blow to Dadlo and Salamo and Ali Dad gave lathi blows to Dadlo. We raised cries when 'Jado and Akbar Chandio came running and the appellant seeing them left us and took away cattle. Jado and Akbar made enquiries from us and I told them the whole incident and they said that they had seen the appellant giving us blows. Then I and my uncle Dadlo came to lodge report and Rahim and Sultan had gone to inform Rais Sultan Khan in his village. I am reporting and justice be done."
10. The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Dadlo, Sultan and Pado convicted the appellant abovenamed as hereinbefore mentioned and consequently the appellant abovenamed has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
11. The learned Advocate appearing for the appellant in support of the above appeal submitted as under
(a) That it was a sudden fight between both the parties and in view of counter F. I. R. Lodged by co- accused, there are two versions of the incident in question and accordingly the appellant's stand, that he exercised right of private self-defence, cannot be ignored.
(b) That all prosecution witnesses are related, inter se and as such their statements cannot be relied upon, without independent corroboration, which is not available in the present case.
(c) In the alternative the learned Advocate for the appellant submitted, that, appellant remained in custody from 26th May, 1973 till 1st March, 1981 when he was ordered to be released on bail. Keeping in view this and the facts of the present case, the sentence awarded to the appellant is harsh.
12. The learned Advocate appearing for the state on the other hand submitted, he fully supports the impugned judgment on merits, but, in view of the facts on record, the offence committed by the appellant would fall under section 304 (i), P. P. C. And not under section 302, P. P. C. And consequently the sentence awarded to the appellant may be reduced to one already undergone by him.
13. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court, as well as the impugned judgment.
14. Incident in question is not denied by the appellant nor causing of injury to the deceased is denied by the appellant. It is admitted position, that there was sudden quarrel between the parties, without premeditation, on account of alleged cattle trespass. There was only one injury, by blunt weapon on the body of the deceased, which according to medical evidence on record was sufficient in ordinary course of nature to cause death. In view of this, I agree with the contention of the learned Advocate for the State, that offence committed by appellant would fall under section 304 (I), P. P. C. And not under section 302, P. P. C., as appellant obviously did not use sharp side of hatchet and consequently it cannot be presumed that he had intention to kill the deceased.
15. 1 have gone through the statements of P. Ws. Which I find straightforward and convincing. No doubt all P. Ws. Are inter-related, but in the absence of any enmity suggested by the appellant, their statements do not require independant corroboration, in the face of the statement of appellant under section 342, Cr. P. C. Plea of self-defence, in my opinion has not been successfully raised nor prima facie proved. Hence I see no force in the contentions raised by the learned Advocate for the appellant. In view of this, I find no substance in the above appeal, as far as merits of the case against the appellant are concerned.
16. Therefore, while dismissing the above appeal on merits I alter the conviction of the appellant from section 302, P. P. C. To section 304 (I), P. P. C. And reduce his sentence from life imprisonment to one already undergone by him and consequently discharge the bail bonds executed by the appellant.