' The appellant abovenamed, being aggrieved by judgment dated 29th September, 1981 of the learned Additional Sessions Judge, Dadu, at Kotri, in Sessions Case No,15/79, by which appellant has been convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life and fine of Rs,5,000 in default to suffer further R.I. For 6 months and further ordered to pay compensation of Rs,5,000 or in default to suffer further R. I. For six months, has preferred the above appeal, on the following facts and grounds:-
2. Muhammad Hashim, brother of deceased Muhammad Saleh lodged F,I.R. On 11th January, 1979 and stated therein that:- "I am living in Khanpur I and my brother Muhammad Saleh are Beldars on K.B. Feeder. At about 8.20 p.m. On 10th January, 1979, I was at the hotel of Muhammad Bux in Khanpur and my brother was also there. He went away towards K.B. Feeder. Wali Muhammad s/o Ibrahim Punjabi was also with him. At about 11.00 p.m., when I was in my house, Habib son of Haji Shoro came to me and told me that while he and Muhammad All were on fields they heard cries towards the motor (Water Pumping machine) of Dr. Aqeel, hence they went running to that place. They saw that Wali Muhammad was giving sharp side hatchet blows to Muhammad Saleh, who fell down as a result of the injuries received by him. That accused Wall Muhammad was dragging him towards the water.
That they also got to Wall Muhammad caught, alongwith the bloodstained hatchet. That, just then, on the noise Muhammad Bux Khashkheli and others also came (there). That leaving the accused in the custody of the abovesaid witnesses, he had come to inform me. That on receiving this information I went to the place of the incident with Habib and saw that my brother Saleh had died due to hatchet injuries. Then, on my inquiry Wall Muhammad told me, that he had murdered him (Muhammad Saleh). My brother was 55 years old. He had with him a sum of about Rs,200. Seeing my brother to be old and alone, accused Wall Muhammad killed him in order to rob him of the said amount of money. I. Habib and Muhammad Ali have now brought accused Wall Muhammad alongwith the blood-stained hatchet and produce him. We have left behind others with the dead body of my brother. Justice is prayed for."
3. After recording the F.I.R. (Exh.5-A), A.S.I. Ziaul Haq secured from the appellant his blood-stained clothes and blood-stained hatchet and sealed the same in presence of Mashirs Khuda Bux and Peer Bux under Mashirnama Exh.10-A. He then handed over the case papers to S.H.O. Abdul Razzaq, Further investigation was done by the said S.H.O, who visited the place of the incident on the morning of 11th January, 1979. At the place of the incident the S.H.O. Prepared the Mashirnama of Vardat (Exh.7-A) and the Inquest Report (Exh.7-B), in presence of Mashirs Allah Bachayo and timer Khan. He sent the dead body of deceased Muhammad Saleh to the Medical Officer Kotri, through P.0 Mehboob Ali for post-mortem examination and report. He examined P.Ws. Habib Muhammad Bux and Muhammad All at the place of incident. On the same day, he got recorded the confession of the appellant by the Additional City Magistrate Kotri. Later on, he was transferred, so he handed over the case papers to his successor S.H.O. Muhammad Ali, who challaned the appellant in the Court of Civil Judge and F.C.M., Kotri, to stand his trial for an offence punishable under section 302, P.P.C. The said offence being exclusively triable by the Court of Session, the learned Magistrate sent the case to Supreme Court for trial of the appellant.
4. At his trial before trial Court, a charge against the appellant for an offence under section 302, P.P.C. Was framed. He pleaded not guilty to the said charge against him and claimed to be tried.
5. In support of its case, the prosecution examined the following witnesses:-
(1) Muhammad Hashim (Informant) Exh.5
(2) Muhammad Bux (Came on cries) Exh.6
(3) Allah Bachayp (Mashir) ..... Exh.7
(4) Habibullah (Eye-Witness).... Exh.8
(5) Muhammad All (Eye-Witness) Exh.9
(6) Khuda Bux (Mashir) ............ Exh.10
(7) Ziaul Hag (I/O) ............... Exh.11
(8) Dr. Saifuddin (M.0) .............. Exh .12
(9) Muhakamuddin (Magistrate) Exh.13
(10) Haji Muhammad Waris (Tapedar) Exh.15
(11) P.C. Mehboob All (Corpse-bearer)...Exh.16
(12) S.H.O. Abdul Razzaq (I/O) ....... Exh.18 ' In his statement under section 342, Cr P.C. Appellant Wall Muhammad envied all the allegations levelled against him by the prosecution. He tated that Shoras wanted him to leave working on the machine of Dr. qeel. He pleaded his ignorance about the murder of Muhammd Saleh. He elledged, that he was beaten by the police and was forced to make a onfession before a Magistrate. ' He further alleged, that the confession as not read over and explained to him. He claimed to be innocent. He owever did not adduce any evidence in his defence.
' The learned trial Court taking into consideration the evidence dduced by the prosecution, convicted and sentenced the appellant as hereinbefore mentioned, vide its judgment dated 29th September, 1981 and consequently appellant has preferred the above appeal, on the grounds mentioned in memo, of aDoeal.
8. The learned Advocate in support of the above appeal submitted as under:-
(a) That conviction of the appellant under section 302, P.P.C. Was not at all warranted, in view of his judicial confession Exh.14-A, though retracted, as the learned trial Court has relied upon the said judicial confession.
(b) That learned trial Court itself has come to conclusion, that on spur of the moment in sudden fight as disclosed in judicial confession appellant killed the deceased and as such the offence if any committed by appellant, on the basis of impugned judgment would also fall under section 304(1), P.P.C.
9. In support of above contentions, the learned Advocate for the appellant, relied upon cases PLD 1977 Lah. 1253 and 1980 P Cr. L J 898.
10. The learned Advocate appearing for the State on the other hand submitted that appellant has been rightly convicted under section 302, P.P.C, as even if it is held that there was a sudden quarrel, still appellant took undue advantage in fight, by using hatchet.
11. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the statements of all P.Ws, F.1. R. And judicial confession of the appellant as well as through the authorities cited by the learned Advocate for the appellant.
12. I find that the learned trial Court has relied upon the judicial confession of the appellant for cogent reason, in spite of the fact, that appellant had retracted the same. I also find P.W.
Habibullah, P.W.5 Muhammad Ali eye-witnesses have corroborated the said judicial confession.
The judicial confession clearly states, that there was a sudden quarrel between the deceased and appellant over return of money, which first resulted in scuffle and when deceased abused him and started fighting, appellant gave hatchet blows, although he had not intentions to kill him. In the face of this confession, which is held by the learned trial Court to be voluntarily and true, in my opinion the offence committed by appellant would fall under section 304(1), P.P.C. And not under section 302, P.P.C. And authorities cited by the learned counsel for the appellant are fully applicable to appellant's case.
13. Therefore, while dismissing the above appeal, as I agree with the conclusions and findings of the learned trial Court, that appellant caused the injuries in question to the deceased, which resulted in the death of the deceased, I alter the conviction of the appellant from section 302. P.P.C. To 304(1), P.P.C. And alter his sentence from life imprisonment to 8 years R.I. And maintain the sentences of fine and compensation imposed on him, by the learned trial Court, as mentioned in the impugned judgment. I further direct, that the benefit of section 382-B, Cr.P.C., in respect of the 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 he may be entitled, in accordance with rules.
14. The above appeal stands dismissed, in terms of the above judgment.