' This is jail appeal by accused Dost Muhammad son of Qadir Bakhsh Caste Muslim Sheikh, resident of Sahiba District Sargodha, at present confined to Central Jail, Mianwali.
2. The facts relevant for the disposal of this appeal are that a case under section 307, P.P.C. Was registered against the appellant with Police Station Sahiwal District Sargodha. The F.I.R. Was recorded on 21-1-1987 at 4-30 p.m. At the instance of Khushi Muhammad, who alleged that appellant attacked his father Shamsher with blunt side of the Kassi. The blow landed on the head of the deceased as a result thereof, the deceased was injured and fell on watercourse. The occurrence was allegedly witnessed by Muhammad Khan and Mumtaz in addition to Khushi Muhammad, the complainant. The alleged motive of this attack was that the cattle of the appellant damaged the crops of the deceased, who admonished the appellant. This incident is alleged to have taken place 15/20 days before the present occurrence.
3. The deceased was taken to Sahiwal hospital in the first instance and from there he was removed to Mayo Hospital, Lahore, where he died on 26-1-1987. The police thereafter converted the offence from section 307, P.P.C. To section 302, P.P.C. Muhammad Amir S.I. Completed the investigation and submitted the challah against the accused in the Court of Sessions Judge, Sargodha.
4. The prosecution in order to prove its case, examined Muhammad Ashraf Patwari as P.W. 1 who has prepared the site plan of the occurrence, Muhammad Amir F.C. Who escorted the dead body to mortuary for post-mortem as P.W.2. Muhammad Khan P.W.3 witnessed the recovery of the weapon of offence i,e, Kassi Exh.P.1. The same was taken into possession through Exh.P.2. P.W.4 Khushi Muhammad was the complainant, who is real son of the deceased. He supported the evidence. Muhammad Khan P.W.5 supported Khushi Muhammad as to the occurrence. Dr. Safdar Ali P.W.7 proved the medico-legal report of the deceased. Dr. Saleh Yousaf appeared as P.W.7 to prove the post-mortem report. The last witness was Muhammad Amir S.I., who had investigated the case, while Mumtaz one of the eye-witnesses mentioned in the F.I.R. Was given up. The appellant produced Dr. Rifat Chaudhary as D.W.1 in order to prove injuries on his person. Learned Sessions Judge, Sargodha after completion of the trial proceeded to convict the appellant under section 302, P.P.C. And sentenced him to life imprisonment in addition to payment of fine Rs,20,000 and in default thereof to undergo 4 years' R.I. The order of the Sessions Judge is dated 7-5-1988.
5. I have heard Mr. Irshad Ahmad Khan, Advocate for State and I have gone through the file. The learned counsel has argued that it was fairly and squarely a case under section 302, P.P.C. And rightly convicted by the trial Court. He has pointed out that the prosecution version was fully supported by Khushi Muhammad P.W.4 and Muhammad Khan P.W.5 and corroborated by medical evidence as well as recovery of the Kassi.
6. I have given my anxious considerations to the arguments of the learned counsel and gone through the record myself. The real cause of the occurrence remained shrouded in mystery. The prosecution has failed to produce any evidence of motive. P.W.4 Khushi Muhammad has clearly admitted that he did not witness that occurrence. The statement of P.W.5, who happened to be the landlord of the deceased as well as the complainant does not inspire any confidence. The only independent wintess namely, Mumtaz though mentioned in the F.I.R. Yet was given up at the trial.
This also will be a strong factor which will heavily weigh against the prosecution. Above all the prosecution has failed to pinpoint the place of occurrence.
7. The defence of the appellant was that the deceased attacked him at his residence and he inflicted the injury in self-defence. I have gone through the site plan Exh.PA. With the assistance of the learned counsel. The prosecution has failed to point out the place of occurrence. Note No,1 appearing at the foot of this document only mentions the place where the deceased fell after receiving the injury. This clearly shows the lack of interest on the part of the Investigating Officer. I am not at all impressed by the version of the prosecution in respect of the manner the occurrence took place. The same have inherent defects, which remained unexplained namely; it is not clear as to how the accused came in the way of the appellant on the fateful day and if the accused had the intention to kill then why he took Kassi and not any better weapon. In my view, Kassi was not at all a good weapon of offence. It is true that the Kassi has been used in score of occurrences but mainly in the occurrences taking place at the spur of moment. The P.Ws. Have failed to render explanation for their presence at the time.
8. The deceased was accompanied or at least followed by three otherIc persons whereas the accused was admittedly all alone but still he escaped.
9. The motive has not been proved. The place of occurrence has not been specified. The result is that it is not a case covered by section 302, P.P.C. It will be a case under section 304, P.P.C.
10. The learned counsel has pointed out that the appellant has been allowed due credit for not repeating the blow in spite of the fact that the deceased fell after receiving the first and the only blow. There was nothing to prevent him to repeat the attack. The learned counsel has argued that the defiance version that the accused was also injured is not probable. It is added that the accused got himself medically examined from a Dispensary, which clearly fell out of the way and did not go to the hospital.
11. Be that as it may, the vital questions how the occurrence started and which is the place of occurrence remained unanswered. This is sufficient to convert the offence under section 304, P.P.C.
The result is that I allow this appeal to the extent that conviction under section 302, P.P.C. Is altered to one under section 304, P.P.C. And the accused is sentenced to 5 years' R.I. It is also held that he is entitled to the benefit of section 382-B, Cr.P.C.