1. The appellant has been convicted under section 302, P.P.C. By the learned Additional Sessions Judge, Sukkur by means of order, dated 26-1-1985 by which he was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000 in case of default of payment of fine he was to undergo R.I. For two years. It was further directed that the accused shall pay compensation of Rs.10,000 to the heirs of the deceased and in case of default to suffer R.I. For six months. He was allowed to avail benefit of section 382-B, Cr P.C.
2. The First Information Report was lodged by P.W. 1 Jethoo at the Police Station Tando Adam, District Sanghar at about 2-20 p.m. On 17-2-1980. According to the prosecution story the deceased alongwith his father P.W. Jethoo were attending the marriage ceremony of the daughter of one Yousif Masih. The appellant Baboo and other persons were also there. The deceased Batt had asked the accused to return his 'Ajrak'. There was change of hot words and the deceased gave a fist blow on the eye of the accused. They were separated. On 17-2-1980 i.e. Next day at about 2-00 p.m. The complainant heard cries in front of the street. He alongwith P.Ws. Nazir Masih, Mubarak Masih and Gulab Masih saw the accused Baboo who was having dagger in his hand. The accused gave 'hakal' to the deceased and said that on preceding night he had given him a fist blow in the marriage ceremony and thus had insulted him and so he would not spare him. Complainant had prosecution witnesses gave 'hakal' to the accused. Deceased also tried to run away but the accused inflicted blows to him and he fell down on the spot. Accused then ran away from the Wardat. The F.I.R. Was recorded by S.H.O. Abdul Hakim. He proceeded to hospital and prepared Mashirnama of the dead body and inquest report. He visited Wardat and secured blood-stained earth from there. On the same day he arrested the accused, who voluntarily produced dagger before him.
2. A separate case under section 13-D of the Arms Ordinance was also registered against him.
3. At the trial the prosecution examined P.W. 1 complainant Jethoo, P.W. 2 Mubarak, P.W. 3 Nazir, P.W. 4 Gulab, the abovenamed four persons are eye-witnesses. Dr. Ghulam Nabi P.W. 5 conducted the post-mortem examination, P.W. 6 Mehrab Khan is Corpse bearer, P.W. 7 Ilyas Masih is Mashir, P.W. 8 Ghulam Muhammad, First Class Magistrate who had recorded statements of witnesses under section 164, P.W. 8 Nazir Ahmad is Tapedar and P.W. 10 S.H.O. Abdul Hakim is Investigating Officer.
4. The accused was examined under section 342, Cr.P.C. And he denied the allegations. According to him the case was lodged against him due to enmity between him and P.W. Mubarak on account of abduction of were of his maternal-uncle. The complainant and the other P.Ws. Are related to Mubarak.
5. The learned Additional Sessions Judge on the assessment of the evidence came to the conclusion that the death of the deceased has been established and the evidence led by the prosecution is sufficient to connect the accused with the offence. Apart from the ocular testimony the injuries on the person of the deceased and the recovery of crime weapon and the motive were considered to be corroborative piece of evidence.
6. Dr. Ghulam Nabi conducted the post-mortem examination and found the following injuries on the person of the deceased.
7. (1)A stab wound on the apigision 1 -- " x 1" into cavity with sharp-- edges.
8. (2)Incised wound on back left side lumber region at the eleventh rib 3" lateral of the midvertiberal level, 1" x -- " deep.
9. According to the opinion of the doctor the injuries were anti-mortem and appeared to have been caused by some sharp and cutting weapon such as the dagger. Injury No. 1 was individually and both collectively were sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the death of the deceased was the result of shock and haemorrhage consequent upon injury No. 1.
10. P.W. Jethoo in his deposition has materially corroborated the contents of the first information report. He has deposed that his son was wearing the Chadar which belonged to accused. The accused demanded his Chadar from his son which was not given to him. During this altercation his son Batt gave Baboo a fist blow on his eye. They were separated and Baboo stated that he would see him in the day. On the next day P.W. Mubarak, he (Jethoo), Gulab, Nazir and others were present in the marriage. The deceased Batt and accused Baboo were also present in the marriage.
11. Baboo accused took away his son in the street at the distance of about 40-50 paces when all of a sudden they heard cries and he alongwith P.Ws. Nazir, Gulab and Mubarak rushed towards the cries and saw accused Baboo giving dagger blows to his son Batt. He caused him first blow on his side and the other in the stomach. The accused then ran away with his dagger. P.W. Mubarak has supported P.W. 1 Jethoo on material particulars but P.Ws. Nazir and Gulab did not support the case of the prosecution. In they examination-in-chief they were declared hostile and cross-examined by the Public Prosecutor. Their statements recorded by the First Class Magistrate under section 164 were brought on record and they were confronted with their statements.
12. Now the conviction of the appellant rests on the ocular testimony of two eye-witnesses coupled with the recovery of blood-stained dagger and the injuries on the person of accused Baboo which he had received a night prior to the incident. The motive as alleged by P.W. 1 in his deposition has not been stated in the first information report. It is not stated by the complainant in the F.I.R. That the accused had threatened the deceased when there was exchange of harsh words between them and deceased hack given a fist blow on his eye. However, motive is immaterial because there is ocular testimony of the two eye-witnesses. The other two eye-witnesses though have turned hostile but they supported the other witnesses about the actual incident. The medical evidence also fits in the circumstances of the case and it corroborates the ocular testimony.
13. There are minor contradictions to the evidence of these witnesses which do occur as the evidence has been recorded after a lapse of about two years. The fact remains that the appellant had been seen by the witnesses. It has also been established that the deceased had received the injuries by means of dagger and the accused had inflicted such injuries, at least two witnesses have so stated. There is no reason to falsely implicate the accused. There was no deep rooted enmity between the parties. But having examined the facts of the case, I am of the opinion that the punishment awarded to the accused under section 302 cannot be sustained. P.W. 1 Jethoo in his deposition has stated that he and his witnesses were first to reach the Wardat and other people had come afterwards. Ode and P.Ws. Arrived in the street and they saw the accused and the deceased from the distance of 40 to 50 paces. When they saw them the accused and the deceased were standing near each other. They were talking to each other. When accused stabbed the deceased they were at a distance of 80-90 paces. It is thus clear that the witnesses had not heard the talk between the accused and the deceased before accused had stabbed the deceased. P.W. 2 Mubarak has stated that cries and commotion on which they were attracted to the Wardat were raised by children. The children were crying that Batt was dying. In his deposition this witness has stated that he alongwith complainant and P.Ws. Nazir and Gulab rushed towards the street and saw accused Baboo giving one dagger blow to Batt. If I accept the statement of Mubarak then the position would be that whatever transpired between the deceased and the accused had not been heard by the witnesses. The facts borne out from the record would clearly show that there was no previous enmity between the parties. They belong to the same community.
14. They had attended the marriage party on the previous night where the accused and the deceased were also present. The deceased had given fist blow to the accused and they were separated by the elders of the community. On the next day they both were present in the marriage party and they had taken the meals and thereafter the accused and the deceased left that party. All these facts would indicate that the grudge created in the previous night had subsided by that 'time. The learned trial Judge has also observed that since the motive as alleged is not immediate but is remotely concerned and the possibility cannot be rejected that on the day of incident there has been again harsh arguments between the deceased and the accused and probably followed by abuses and the accused who was already harbouring, grudge against him felt provoked by some act of the deceased. This observation would also show that it is not a case of culpable homicide amounting to murder. Each and every conceivable doubt must go in favour of the accused. The circumstances explained above would show that the case falls under section 304, II and the learned Assistant Advocate-General, Mr. A.G. Mangi has also frankly conceded to this proposition.
15. The relevant facts which are considered in taking this view has been pointed out earlier and-need no repetition.
16. For all the aforesaid reasons, I convert the conviction of the appellant to section 304, II and sentence him to eight years' R.I. And fine of Rs.1,000 and in default to suffer six months' R.I. The appellant shall also pay compensation of Rs.3,000 to the heirs of the deceased and in default thereof to suffer further R.I. For six months. The trial Court has already allowed the benefit of section 382, Cr.P.C. And that allowance the appellant is entitled to get.
17. With this modification in the sentence and the conviction the " appeal stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.