1. ' The appellants were charged under sections 302, 307, 148, 149, P.P.C. And tried alongwith co- accused Amir Bux, Ali Sher, Manzoor and Idrees before the learned 1st Additional Sessions Judge, Nawabshah, who has convicted appellant Ibrahim under section 304, P.P.C. And sentenced him to suffer imprisonment for life and to pay fine of Rs,5,000 or in default to suffer further R.I. For six months. The appellant Amir Bux was convicted under section 323, P.P.C. And sentenced to one month's simple imprisonment and fine of Rs,100 in default, he was to suffer further S.I. For 5 days. If the fine was recovered from the appellant Muhammad Ibrahim half of the same was to be paid to legal heirs of Dharohn, and 50% of fine amount recovered from Amir Bux, was to be paid to injured Abdul Ghafoor. The appellants were given benefit of provisions of section 382-B, Cr.P.C. While co- accused were acquitted vide judgment, dated 30th June, 1987. .
2. ' The brief facts of the prosecution case are that on 2-6-1984 complainant Makhan Khan lodged a report at Police Station Daur, District Nawabshah, alleging therein that about 2/3 days back injured Abdul Ghafoor was passing by railway crossing of Bucheri at night, when Ibrahim, Amir Bux, Ali Sher, Manzoor and Idrees insulted him, and accused Abdul Ghafoor slapped Ibrahim and others, who were annoyed. Today at about 7-30 p.m. The complainant, his father Darhoon, and Abdul Ghafoor were sitting at the hotel of his brother Darhoon Khan at Bucheri. That all of a sudden Ibrahim son of Suleman armed with big knife, Amir Bux son of Suleman armed with hatchet, Ali Sher, Manzoor and Idrees all armed with Lathis, all caste by Brohi came there. On their arrival they caught Abdul Ghafoor saying that they will kill him as he had slapped and insulted them. They further observed that they will kill whoever tried to intervene, saying so Amir Bux gave blunt side of hatchet blow to Abdul Ghafoor on his head, Darhoon Khan came forward to rescue him, on which Ibrahim stabbed on his chest, Dharhon fell down raising cries; Ali Sher, Manzoor, and Idrees gave Lathi blows to Abdul Ghafoor and Darhoon. The complainant tried to rescue them and raised cries of 'murder murder' on which Muhammad Siddique, Qasim and other persons came there. On seeing they coming, the above accused ran away towards east alongwith their weapons. Thereafter the complainant and others saw Darhoon who had already expired. Abdul Ghafoor was seriously injured. Leaving the P.Ws. At Wardat, complainant went to the police station and lodged the report. The report was recorded by A.S.I. Fida Hussain P.W. 10 and the F.I.R. Has been produced as Exh.17. After recording F.I.R. A.S.I. Fida Hussain visited place of incident of this case, he found dead body of deceased Darhoon lying there, one B.S. Knife, near hand pump at the place of incident, he secured the same and sealed in presence of Mashirs, the Mashirnama was prepared in presence of Mashir Ghulab Khan and Abdul Majid, which has been produced as Exh.23. He prepared inquest report and the same has been produced as Exh.24. He then referred the dead body through P.C. Mehrab Khan to Civil Hospital, Nawabshah for post-mortem. He then examined P.Ws. Abdul Ghafoor, Muhammad Siddique and Muhammad Qasim P.W. Abdul Ghafoor had injuries, and therefore, he was referred to Civil Hospital. On the following day in the morning accused Ibrahim and Amir Bux appeared at Police Station Daur. Accused Amir Bux lodged report against Abdul Ghafoor which he recorded and Photostat copy of the same has been produced as Exh.38, (as original was produced in the counter-case). He arrested accused Ibrahim and Amir Bux, their clothes were stained with blood which he secured and sealed under Mashirnama, which has been produced as Exh.5. He prepared memo. Of injuries of their persons, and they were also referred to Medical Officer. On 6-6-1984, he arrested accused Manzoor, Idrees, and Ali Sher in presence of same Mashirs, and prepared such Mashirnama which has been produced as Exh.28. The accused had produced Lathis which were also secured. He got 164, Cr.P.C. Statements of P.W. Muhammad Siddique, Muhammad Qasim and Abdul Ghafoor recorded. Thereafter, he handed over the case papers to S.H.O. Mashirnama of injuries on the person of Abdul Ghafoor has been produced as Exh.26. Chemical report has been produced Exh.39. Thereafter, he had handed over the case papers to S.H.O. Who challaned the accused.
3. ' A formal charge was framed against the accused to which they pleaded not guilty.
4. ' At the trial prosecution examined P.C. Mehrab Khan P.W.1, he was given the body for taking to Civil Hospital, complainant Makhan Khan P.W.2, he has produced the F.I.R. As Exh.17, Abdul Ghafoor P.W.3, he has produced his statement recorded under section 164, Cr.P.C. As Exh.19, Misri Khan Tapedar P.W.4, he has produced the sketch as Exh.21, Gullan Khan Mashir P.W.5, he has produced the Mashirnama of Wardat Exh.23, inquest report Exh.24, Mashirnama of arrest and securing of blood- stained clothes of accused Amir Bux and Ibrahim Exh.25, Mashirnama of injuries on P.W. Abdul Ghafoor as Exh.26, recovery of hatchet from Amir Bux as Exh.27, arrest of accused Manzoor, Idrees, and Ali Sher, and recovery of Lathis from them as Exh.28. Qasim P.W.6, an eye-witness, he has produced his 164, Cr.P.C. Statement as Exh.30, Muhammad Siddiq an eyewitness P.W.7, he had produced his 164, Cr.P.C. Statement as Exh.32, Dr. Hassan Dost P.W.8, he had examined injured Abdul Ghafoor, and has produced the medical certificate as Exh.34. Medical Officer Dr. Tariq P.W.9, he had conducted post-mortem on the dead body of deceased Darhoon Khan, and has produced the post-mortem report as Exh.36, A.S.I. Fida Hussain P.W.10, he has produced chemical report as Exh.39, Abdul Ghafoor P.W.1 1, he has produced the medical certificate regarding injuries on accused Muhammad Ibrahim, and Amir Bux as Exh.41, and Exh.43, Zafaruddin Ahmad Farooqui, D.S.P. Witness No,12.
5. ' After close of prosecution case, the statement of the appellants and co-accused were recorded under section 342, Cr.P.C., in which they have denied the allegations.
6. ' I have heard Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellants, Mr. Rashid Tariq Khan, learned counsel appearing for the State, and have also gone through the R&P of the case.
7. ' It was contended by Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellants that he does not challenge the conviction of the appellants on merits, but according to him, it was a case of sudden fight, and the appellant Ibrahim had no intention to kill deceased Dharhon and, therefore, the offence if any committed by the appellant Ibrahim will fall under section 304, Part II, P.P.C. And not under section 302, P.P.C. That the appellant Amir Bux had suffered agony of protracted trial and had already remained in jail for long time.
8. ' Mr. Rashid Tariq Khan, learned counsel appearing for the State has contended that the prosecution had proved its case beyond reasonable doubt and the appellants were rightly convicted. However, he conceded that there was no motive to kill the deceased Dharhon and, therefore, the conviction of appellant Muhammad Ibrahim may be altered from section 304, P.P.C.
9. To section 304, Part H, P.P.C. As far as appellant Amir Bux was concerned, according to him, he had already remained in custody for sufficient period and, therefore, the sentence already undergone will meet the ends of justice.
10. I have considered the contentions of the learned counsel. As far as the incident was concerned, there is overwhelming evidence of Makhan Khan P.W.2, Abdul Ghafoor, injured P.W.3, Qasim P.W.6, and Muhammad Siddiq P.W.7. The complainant Makhan Khan has fully supported the contents of the F.I.R. And he is further supported by P.Ws. Abdul Ghafoor injured, Qasim and Muhammad Siddiq.
11. Even learned counsel appearing for the appellant has not challenged the evidence of the above witnesses and the incident itself, their evidence appears to be natural, straightforward and reliable.
12. It has not been shaken in any way in cross-examination. The presence of the appellants is also proved by the injuries which they had on their persons. Therefore, I am of the considered view that the prosecution had proved its case beyond reasonable doubt.
13. ' Adverting to the question of nature of offence as contended by Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellant, it is an admitted position that there was no between the appellant and deceased Dharhon. It is the prosecution case that the appellants and co- accused wanted to attack injured Abdul Ghafoor when deceased Makhan intervened to save Abdul Ghafoor on which he was given blow. However, the fact remains that the appellant did not repeat the attack. The learned Judge, himself has given benefit to appellant Ibrahim and convicted him under section 304, P.P.C. From the evidence adduced by the prosecution it is clear that the appellants had no intention to kill deceased and the fight was sudden, in which both the parties had received injuries. No undue advantage was taken by the appellant.
14. ' In the case of Emmanuel Bahadur Joseph v. Paul Jackson and another 1981 SCM R 663, it was observed by their Lordships of Supreme Court that:- "Section 302 applied only when accused is proved beyond doubt to have struck blow with intent to kill deceased. If in the circumstances it is more proper to impute to accused knowledge rather than intention, offence would fall under section 304, Part II and not under section 302 or 304, Part I of Penal Code."
15. In view of the above discussion, I alter the conviction of appellant from section 304, P.P.C. To section 304, Part II, P.P.C. And reduce the substantive sentence from imprisonment for life to five years.
16. However, sentence of fine is maintained, and in default the appellant shall suffer further R.I. For six months. The fine if recovered shall be paid to the heirs of deceased. So far as the appellant Amir Bux was concerned, the sentence already undergone will meet the ends of justice and I . Appellant Amir Bux if in custody shall be released forthwith if not required in any other case.
17. ' Before parting with this case, I would like to point out that number of cases have come up before me in appeal in which the learned Judge Mr. S. Mahmoodul Hassan Naqvi, 1st Additional Sessions Judge, Nawabshah, has been convicting the accused under section 304, P.P.C. Without clarifying whether the accused are convicted under Part I or Part II of section 304, P.P.C. I hope that the learned Judge will find out sometime, and go through the provisions of section 304, P.P.C., and will be specific in applying the provisions of law in future.