Zulfiqar, Inayat, Ghulam Rasool and Iqbal were tried by an Additional Sessions Judge of Toba Tek Singh under section 302/34, P.P.C. For the murder of Allah Ditta, deceased. Zulfiqar was convicted under section 302, P.P.C., whereas the rest were acquitted. Zulfiqar was sentenced to suffer imprisonment for life and to pay a fine of Rupees five thousand (Rs.5,000) or in default thereof to undergo further rigorous imprisonment for six months. The fine, if recovered, was ordered to be paid as compensation to the legal heirs of Allah Ditta, deceased.
2. The brief facts of the case are that on 6-1-1980 at 10 a.m. Allah Ditta, deceased, alongwith his son Muhammad Nawaz; Riaz, Ashraf and two other persons, namely, Rehmat Masih and Khurshid, was coming on a tractor and he was sitting on the top of trolly which was loaded with sand. When they reached at Mitha Wali Pulli in the area of Chak No. 418/J.B. Zulfiqar and Iqbal, accused armed with spears, Ghulam Rasool, accused armed with hatchet and Inayat, accused armed with Ghandala, appeared there. They raised a Lalkara and asked them to stop the tractor. Meanwhile, Zulfiqar, accused, gave a spear blow to Allah Ditta, deceased on the left side of his belly. Ghulam Rasool, Iqbal and Inayat, accused, also tried to inflict blows to Allah Ditta, deceased, but Nawaz son of Allah Ditta, deceased rushed the tractor and saved him from being attacked. Allah Ditta, deceased, was brought to Civil Hospital, Gojra in an injured condition, where he was got admitted. On the statement (dying declaration) Exh.P.F. Made by the deceased before Muhammad Nawaz A.S.I.
Formal F.I.R. Exh.P.F./1 was lodged with Gojra police under section 307/34, P.P.C. Initially and latter on, on his death, offence was amended under section 302/34, P.P.C.
3. The motive for the murder was that early in the morning on the day of occurrence, Allah Ditta, deceased, was coming on the tractor alongwith his son towards Chak No. 419. He came across Zulfiqar, accused, in the way alongwith his sheep. Zulfiqar, accused asked Muhammad Nawaz P.W.
To keep his tractor aside and away from sheep and hurled an abuse, on which Allah Ditta, deceased, got down from the tractor and gave a slap to Zulfiqar, accused. Due to this grievance, Zulfiqar, accused, alongwith his companions attacked Allah Ditta, deceased, and caused him injuries with a spear.
4. According to Nawaz P.W.7 and Muhammad Riaz P.W.8, the earlier incident, which constituted the motive, took place at about 7/8 a.m., whereas the latter occurrence, which resulted in the murder of Allah Ditta, deceased, took place at about 10 a.m. The learned trial Judge, after appraising the evidence, came to the conclusion that the latter occurrence relating to the murder took place much earlier than 9 a.m., as Ahmad Din P.W.5, the brother of Allah Ditta, deceased, had come to the Civil Hospital, Gojra at 9 a. m. Which obviously meant that the occurrence had taken place before his arrival. The learned trial Judge, relying upon the motive, the ocular account and the medical testimony, convicted and sentenced Zulfiqar accused as stated above. The learned trial Judge did not accept the dying declaration made by Allah Ditta, deceased, of the evidence as regards the recoveries.
5. I have heard the arguments of the learned counsel for the appellant and the State. Mr. Jari Ullah Khan, learned counsel for the appellant, does not challenge the prosecution story, but submits that the case falls under section 304, P.P.C. And not under section 302, P.P.C. In this connection, he submits that there were no two different occurrences at two different times, but that both the occurrences took place at the same time in the early morning at 7/8 a.m. And that even if we accept that the deceased slapped Zulfiqar, appellant, when the latter had abused his son Muhammad Nawaz to drive his tractor aside, the said appellant having given the deceased a.
Single blow with. His spear in the heat of the moment, the case, at best, would be covered by section 304, P.P.C. Learned counsel for the State supports the submission of the learned counsel for the appellant. The learned trial Judge did find that the injury inflicted by Zulfiqar, appellant, to the deceased was at about 7-30/8 a.m. On the day of occurrence. This corresponds with the alleged time regarding the motive. It is, therefore, obvious that both the incidents took place at one and the same time. It is admitted that the deceased abused the complainant's son and that the deceased jumped down from the tractor and assaulted the appellant. A fair inference also can be drawn that some scuffle and exchange of abuse also took place. The case, therefore, is one, which stands covered by exception 4 to section 300 of the Pakistan Penal Code. The-appellant, therefore, appear to have committed an offence under section 304-1, P. P. C. And not under section 302, P. P. C. The conviction and sentences of Zulfiqar, appellant, under section 302, P.P.C. 'is set aside. He is convicted under section 304-1. P.P.C. And sentenced to seven years rigorous imprisonment and to pay a fine of Rupees five thousand (Rs.5,000) or in default thereof to undergo further rigorous imprisonment for six months. The fine, if recovered: shall be paid to the legal heirs of Allah Ditta.
Deceased, as compensation. The benefit of section 382-B. Cr.P.C. Shall be granted to the appellant when calculating his sentence.
6. For the foregoing reasons, this appeal stands partly accepted, in terms of alteration in conviction and reduction in sentence, as stated above.