' Khizar Hayat son of Yara alongwith yara son of Lal, Anwar son of Shamas alias Shamshal and Shamas alias Shamshal son of Kalu, cultivators, caste Gandi Baluch, residents of Chak No, 164/N.B., P.S. Sillanwali were tried for the murder of Ghazanfar son of Zulfiqar by the learned Sessions Judge, Sargodha. The trial Judge by judgment dated 14-7-1980, acquitted Yara, Anwar and Shamas alias Shamshal and convicted Khizar Hayat under section 302, P.P.C. He was sentenced to life imprisonment and a fine of Rs, 5,000. The convict has appealed to this Court.
2. The occurrence in which he was involved along with others was alleged to have taken place on 29-1-1980, at 8-00/9-00 a.m. In Chak No, 164/N.B., Tehsil and District Sargodha. Report Exh. P.D. Was lodged by Amir P.W.7 recorded by Muhammad Mumtaz Akbar, Moharrir Head Constable.
3. The motive was that 15/20 days prior to the occurrence, the appellant passed in front of the house of the deceased. He had a radio with him. At that time some objectionable music was on.
Ghazanfar deceased objected to that. He abused the appellant and gave fist blows.
4. Then on the day of occurrence the appellant along with three others turned up. The appellant had a Danda. Others were empty handed. The appellant gave a blow on the head of Ghazanfar. He fell down and was removed to District Headquarters Hospital, Sargodha. The injured expired at mid-night.
5. The prosecution relied on ocular version of Amir as well as Mst. Sattan, recovery of Danda P.3 from the accused Khizar Hayat and post-mortem report of the deceased.
6. Dr. Muhammad Alta Hussain, Senior Medical Officer, District Headquarters Hospital, Sargodha, conducted the post-mortem examination. He found a swelling 10 c.m. x 8 c.m. With contusion on the left side of head, temporal part which was sufficient to cause death in the ordinary course of nature.
7. The appellant pleaded not guilty. He declined to produce any evidence in defence.
8. Before proceeding further, I would like to observe that the learned counsel for the appellant, at the very outset, submitted that the parties have compromised. He placed original compromise on the record. As a matter of fact he wanted me to acquit the accused on the basis of the compromise. It is not possible because it is not permissible under the law. The offence is not compoundable.
9. I called upon the learned counsel to argue the case on merits. He has taken me through the evidence of the two eye-witnesses and, thereafter contended that both of them are interested.
Their evidence as such is not reliable. Learned counsel also took up the stance that they were actually not present at the spot but were brought on the scene to fill in the gap in the prosecution case.
10. Both the eye-witnesses gave sound explanation of their presence at the spot. Each one of them attributed one solitary blow to the deceased. If they wanted to falsely implicate, they could have easily A involved other persons as well but they did not accuse any body else for the murder of Ghazanfar.
I am not prepared to discard their evidence. The ocular evidence coupled with the recovery of Danda P.3 and the post-mortem report proves the case against the appellant beyond doubt.
However, I think that the conviction under section 302, P.P.C. Is not maintainable. One solitary blow was given. That too with a Danda. The possibility cannot be ruled out that the appellant having been offended had come to teach a lesson and not to take the life of the deceased. But as the blow landed on the head, the injury proved fatal. I am of the view that the conviction needs to be altered to 304, Part-II, P.P.C. I order accordingly. Although the compromise cannot be given effect to under the law, nevertheless it cannot be lost sight of. Therefore, I think the appellant is entitled to leniency in the quantum of sentence. The sentence already undergone would meet the ends of justice. The amount of the fine in full shall be paid to the legal heirs of the deceased. The appeal is disposed of with this modification. The appellant shall be set at liberty forthwith, if not required in any other case.
' The Collector concerned shall take immediate steps for realization of fine and its payment.