AFRASIAB KHAN, J.--The appellant, Muhammad Jameel, alias Jeela, son of Muhammad Sardar, aged 25 years, was convicted and sentenced to death under section 302, P. P.C. By the learned Additional Sessions Judge Faisalabad, vide his judgment dated 20-2-1984 for the murder of Ali Ahmad, son of Barkat Ali. He; was also fined a sum of Rs.4,000 or in default thereof to suffer two years' rigorous imprisonment. The appellant was also ordered to pay a sum of Rs.6,000 as compensation under section 544-A, Cr. P.C. To the legal heirs of the deceased Ali Ahmad or in default thereof to suffer further six months' rigorous imprisonment. The appellant has come in appeal against his conviction and sentence and reference has also been sent by the trial Court under section 374, Cr.P.C. For confirmation of the death sentence awarded to the appellant. The complainant Rashid Ahmad, has filed Criminal Revision No.253 of 1985, in which it is prayed that the amount of compensation to be paid to the legal heirs of the deceased may be enhanced and the sentence of death awarded to the appellant be confirmed. We propose to dispose of all these matters together by this judgment.
2. Briefly stated, the prosecution case is that Rashid Ahmad, the complainant, while making the complaint (Ex.PF) submitted that he was the resident of Chak No.232/GB, and towards the East of his village, in square No.46, four days ago, a cyclist was showing the feats of his cycling. On 20-10- 1981, at 9.00 p. m. The complainant and his brother Ali Ahmad deceased along with many other people from the village were enjoying the feats of the cyclist. In the middle 2 petromax lamps were burning wherefrom sufficient light was available. The complainant stated that the appellant, Muhammad Jameel alias Jeela, armed with a spear, was also roaming there. Suddenly the appellant came where the complainant and his brother were sitting. Immediately after his arrival, the appellant started abusing the deceased, Ali Ahmad, and addressed him by, saying "you will be taught a lesson for abuses you hurled day before yesterday and for beating me with fists". In reply, the deceased also gave abuses whereupon the appellant caused a spear blow in his chest on the receipt of which the deceased fell on the ground. The incident was witnessed by Muhammad Rafique, Nasir Ahmad, sons of Abdul Ghani, and Muhammad Aslam son of Fateh Muhammad. The witnesses tried to save the deceased from the appellant and in this process, Muhammad Rafique and Naseer Ahmad P.W. Also received injuries at their hands. The said two witnesses also caused stick injuries to the appellant. When they tried to snatch the spear from the appellant, in this struggle he received an injury on his neck. Ali Ahmad deceased succumbed to his injuries at the spot. However, the appellant was apprehended at the spot along with the weapon of offence.
3. The motive, as alleged by the prosecution, is that on 26-10-1981, during the display of the cyclist, the deceased Ali Ahmad, and the appellant had a quarrel on the ground of giving prize money to the cyclist. For this grudge, the complainant concluded by saying that Ali Ahmad had been done to death:
4. Muhammad Ashraf S.I. (P.W.10) on 28-10-1981, recorded the F.I.R. (Ex.P.F) on the statement of complainant Rashid Ahmad at 10.30 p.m. The witness proceeded to the place of occurrence immediately and prepared the injury statement (Ex.P.M.) and the inquest report (Ex.P.N.) of the dead body of Ali Ahmad. He entrusted the dead body to Mushtaq Ahmad F.C. (P.W.3) for taking the same to the mortuary for post-mortem examination. The appellant was produced before the witness by Muhammad Salim (P.W. 8), while in an injured condition. The injury statement (Ex. P.C.) of the appellant was also prepared. Witnesses Muhammad Rafique and Naseer Ahmad were also found injured and their injury statements (Exs.P.A. And P.B) were also prepared. The investigating officer recorded the statements of the witnesses. Kurta (Ex.P.6) and Chadar (Ex.P7), blood-stained clothes of the appellant, were taken into possession vide Memo Ex.P.K. And were placed in a sealed parcel. The recovery memo was attested by Muhammad Salim (P.W.8), Abdul Rahman (not produced) and Muhammad Ashraf SI (P.W.10), Blood-stained earth from the spot was taken into possession and sealed into a parcel vide Memo Ex.P.H. Two petromax lamps (Exs.P.4 and P.5) were taken into possession vide Memo. Ex. P.J. Blood-stained spear (Ex.P.3) was produced by Muhammad Salim P.W. Which was sealed into a parcel vide Memo Ex.P.G. The memo was attested by Rashid Ahmad (P.W. 6) and Muhammad Salim (P.W.8). On 29-10-1981, Mushtaq Ahmad P.W.
Produced the blood-stained shirt (EX.P.1) and chadar (Ex.P.2), the last worn clothes of the deceased which were taken into possession vide Memo Ex.P.E. And the same was attested by Nisar Ahmad (P.W. 5) and Muhammad Anwar (not produced). These blood-stained articles were sent to the Chemical Examiner through Muhammad Ashraf MHC. The site plan (Ex.P.D) was prepared by Azizuddin Patwari (P.W.2). According to the report (Ex.P.Q) of the Serologist, the articles sent to him were found to be stained with human blood.
5. Dr. Muhammad Sadiq (P.W. 9) on 29-10-1981, at 8.30 a.m. Conducted the post-mortem examination on the dead body of Ali Ahmad and found the following solitary injury on his person:- A stab wound 5 cm. x 3 cm. x penetrating the front of left side of chest 4 cm. Above the left nipple.
According to the doctor the left lung and left ventricle of heart were found cut and penetrated. In his opinion, death took place because of haemorrhage and shock as a result of the injury aforesaid.
Dr. S.M. Mohsin Hashmi (P.W.1) on 29-10-1981, at 11.35 a.m. Medically examined Muhammad Rafique and found on his person two injuries on his right little finger and on the roots of two fingers i.e. Little and ring fingers. Both the injuries were caused by a sharp-edged weapon and were simple in nature.
On the same date at 11.50 a.m, the same medical officer examined Naseer Ahmad P.W.7 and found on his person as many as five injuries. The injuries were on the right little finger, left hand, in its outer part, palm of left hand inner side, left little finger and on the back of left hand near the root of little finger. The injuries were simple in nature. Injuries Nos. 2, 3 and 4 were caused by a sharp-edged weapon and the rest were caused by a blunt weapon.
The same doctor on the same date at 11.00 a.m. Medically examined Muhammad Jameel alias Jeela appellant and found on his person 14 injuries, including two grievous injuries, namely injuries Nos. 5 and 13. Injury No. 5 was on the back of the right forearm, middle part, whereas Injury No.13 was on the back and front of the left hand. It was opined by the doctor that injuries Nos. 3 and 3-A were caused by a sharp-edged weapon and the rest were caused by a blunt weapon.
6. The eye-witness account was given by Rashid Ahmad complainant (P.W. 6), Naseer Ahmad (P.W.
7) and Muhammad Salim (P.W. 8), Rashid Ahmad (P.W. 6) in support of the prosecution story stated that about 21 years ago, a person was making a display cycling in Chak No.232/GB for about four days. The witness along with his deceased brother Ali Ahmad, was there. He stated that two gas-lamps were burning and were providing a lot of light. Muhammad Rafique (not produced), Naseer Ahmad and Muhammad Salim P.Ws. Were also present there. He stated that the appellant while armed with a spear (Ex.P 3) came in front of the deceased and started abusing him declaring that he will teach him a lesson for hurling abuses on him 2 days ago. In return, the deceased also abused the appellant. Upon this, the appellant caused an injury with his spear which landed on the left side of the chest of the deceased and upon the receipt of the injury, he fell down on the ground.
The witnesses aforesaid tried to rescue the deceased and in that process, Naseer Ahmad P.W. And Muhammad Rafique (not produced) also suffered injuries at the hands of the appellant. The witness submitted that Naseer Ahmad P. W. And Muhammad Rafique also caused stick injuries to the appellant. The witness submitted that Muhammad Rafique and Naseer Ahmad P.W. Were trying to catch hold of the appellant and in that process the appellant was trying to cause injuries to them with his, weapon. The witness stated that the appellant also suffered an injury on his neck with the spear during that struggle. However, the appellant was overpowered and was apprehended along with the weapon of offence. The deceased had died at the spot on account of the injuries, which he received at the hands of the appellant. The witness has also supported the motive by saying that two days earlier, there was a quarrel between the deceased and the appellant. Naseer Ahmad P.W.7 and Muhammad Salim P.W.8 have supported the prosecution version in all material particulars. The learned trial Court placing reliance on the eye-witnesses, motive and the recovery of spear Exh.P.3 found the appellant guilty under section 302, P.P.C. And convicted him as stated earlier.
7. The appellant in his statement made under section 342, Cr.P.C., denied the prosecution allegations and gave his own version and submitted that Rashid Ahmad, Muhammad Rafique, Naseer Ahmad and Muhammad Salim P. Ws. Are closely related to the deceased. He submitted that he had been asking for the hand of Mst. Ghafooran, a sister of Rashid Ahmad P.W. And Ali Ahmad deceased. Upon this proposal, the complainant party got annoyed and they suspected some illicit relations between him and Mst. Ghafooran. The appellant admitted the occurrence by saying that a cyclist was busy in making a display of cycling outside the village and he had gone there to see the display. The appellant deposed that Muhammad Rafique and Naeem Ahmad P.W.
While armed with sticks and Ali Ahmad deceased armed with a spear, attacked him and caused injuries with their respective weapons, on his person. The appellant stated that the deceased had the intention to cause a spear blow on his chest, which blow he avoided by adopting a trick.
However, the said blow landed on his shoulder. The appellant admitted that he received a spear injury on his neck in the process of snatching the same from the deceased. The appellant conceded 'that in that struggle the deceased got a spear injury on his chest as a result of which he died at the spot. The appellant stated that he had suffered simple as well as grievous injuries at the hands of the P.Ws. And the deceased and he remained in the hospital till 4-11-1981.He admitted that at the time of his arrest, the police secured blood-stained Kurta Exh.P.6 and blood---stained chadar Exh.P.7 from his possession. The appellant admitted by saying that spear Exh.P.3 was stained with human blood.
8. The learned counsel for the appellant submitted that the motive as set up by the prosecution has not been proved and that Muhammad Rafique, an eye-witness was not produced. It is forcefully contended that the appellant had suffered as many as 14 injuries; including the two grievous injuries, caused by a sharp-edged weapon as well as by a blunt weapon. Learned counsel for the appellant states that it was the complainant party who had opened aggression upon the appellant. The learned counsel for the State has half-heartedly supported the conviction and sentence imposed upon the appellant under section 302, P.P.C.
9. After hearing the learned counsel for the parties and scrutinizing the evidence on the record, we are of the view that the complainant party as well as the appellant were present outside the village where the cyclist was showing the feats of cycling. This is a case of two versions. According to the version of the prosecution, the appellant while armed with his spear, opened an attack upon the deceased and caused a single injury on . His vital part and did not repeat the same. This version of the prosecution stands supported in material terms by the statements of the eye-witnesses, namely, Rashid Ahmad, Naseer Ahmad and Muhammad Salim P.Ws. So far as the motive part of the prosecution story is concerned, that has rightly been discarded by the learned trial Court. It appears from the evidence on record that both the parties were present at the spot and they fought with each other on account of exchange of abuses having taken place between them.
Rashid Ahmad P.W.6, Naseer Ahmad, P.W.7 and Muhammad Salim, P.W.8 have unanimously deposed that the appellant while armed with spear attacked the deceased by hurling abuses.
These witnesses have stated that the abuses given by the appellant were also returned by the deceased. All the eye-witnesses have clearly stated that the appellant abused the deceased whereupon I in return the deceased also abused him. This fact which is established on record by the prosecution story, proves to be an immediate cause of a fight between them. It is established that both the parties were flared up because of the exchange of abuses and as a result thereof the fight between them ensued. The appellant who was armed with a spear, caused a solitary injury on the chest of the deceased Ali Ahmad, whereupon he died at the spot. It is proved on the record that there was no previous enmity between the parties. There was absolutely no motive on the part of the appellant to commit the offence. The death of the deceased, of course, took place as a result of sudden fight between them in the heat of passion upon a sudden quarrel on the occasion of prize giving ceremony to the cyclist. It may also be noted that the appellant caused only one injury on the person of the deceased and decidedly he did not take any undue advantage of the situation nor acted in a cruel or unusual manner. He could cause more injuries to the deceased, but he did not do so. This shows that the appellant had no intention to cause the death of the deceased.
10. In our considered view, this is not a case of culpable homicide amounting to murder. We, therefore, for the reasons stated above alter the conviction and sentence of the appellant from section 302, P.P.C. To section 304 Part I, P.P.C. And sentence him to seven years' rigorous imprisonment plus fine of Rs.15,000 and in default thereof the appellant shall suffer one year's further rigorous imprisonment. The fine, if recovered, shall be paid as compensation to the heirs of the deceased. The appeal is partly accepted to the extent noted. Above and the death sentence of the appellant is not confirmed.
Since the amount of compensation has already been enhanced, the revision has become infructuous and is accordingly filed.