' MUHAMMAD ISHAQ KHAN, J.--The State has filed the instant appeal against the judgment dated 8- 5-1986 of the learned Sessions Judge Kohat, whereby he tried Gul Rehman son of Gul Zaman, accused-respondent, under section 302, P.P.C. For the murder of Noormat Khan (brother-in-law of the accused-respondent), but acquitted him of the charge under section 302, P.P.C. And instead convicted and sentenced him under section 304. Part-II of the Pakistan Penal Code to 7 years' R.I with a fine of Rs, 1,000 or in default of payment of fine to undergo six months R.I. The learned trial Judge also ordered that a sum of Rs, 1,000 out of the amount of fine, if realised, shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. The prosecution case, in brief, is that on 29-5-1985 at 2000 hours Mst. Raisham Jana, complainant, lodged a report with Nizam Khan, ASI, in Civil Hospital, Hangu wherein she stated that on the eventful day at Deegarvela she was present in her house alongwith her father-in-law Haji Yar Khan and. Nawab Khan son of Gulab Khan, who were making ablution to prepare themselves for Deegar prayers. Her husband Noormat Khan, deceased, went outside the house for making water. She also went out of the house after her husband and saw Gul Rehman alias Gul son of Gul Zaman duly armed with an axe. The complainant asked her husband to go inside the house but he did not care. When Gul Rehman reached near her husband, he asked Gul Rehman about his visit, but Gul Rehman started giving axe blows at the head of her husband. She made a noise to her father-in-law Haji Yar Khan and Nawab Khan thereby informing them about the incident. Both the P.W.s thus were attracted to the spot. They saw Gul Rehman accused decamping from the spot.
Thereafter, the complainant went to the nearby Police Post and informed the Police officials present there, out of whom two of the Constables ran after the accused and apprehended him on the way alongwith the weapon of offence.
' About motive the complainant disclosed in her report that Gul Rehman accused was not keeping fast and he was also restraining his wife Mst. Wakil Zadi from doing so. For this reason the wife of the accused had left the house of her husband and came to the house of her parents on the day of occurrence.
3. Nizam Khan, A.S.I., P.W.10, on receipt of information about the murder in the vicinity of Police Post Kahi left for the hospital where the dead body of the deceased was taken. On arrival at the Hospital he met with Mst. Raisham Janan, PW7, who narrated the occurrence to him. He, therefore, recorded her report in the shape of a murasila, Ex.PA/1, and sent the same to Police Station Hangu for registration of the case. Thereafter, he prepared the injury-sheet, Ex.PM/2 and inquest report, Ex.PM/1 of the deceased and despatched the dead body to the local mortuary for post-mortem examination. The I.O. Was still in the hospital, when a constable of Police Post Kahi brought with him Gul Rehman accused to the hospital in injured condition. The I.O. First recorded his report in the shape of a murasila, Ex.PA/2, and then prepared his injury-sheet, Ex.PM/4, whereafter the accused was also referred to the doctor for medical examination and treatment. As by then sufficient darkness had spread over, therefore, the I.O. Postponed the investigation of the case till next day.
On the following morning the I.O. Left for the spot and prepared the site-plan, Ex.PB, at the instance and pointation of the eye-witnesses. The I.O. Was still inspecting the spot when the Moharrir of Police Post Kahi produced to him the weapon of offence (axe) which the I.O. Took into possession vide recovery memo Ex.PC/1. The I.O. Also collected from the spot blood-stained earth and a few pieces of small stones vide recovery memo. Ex.PC. Thereafter, he examined the witnesses and on completion of the investigation handed over the case to S.H.O. Noor Hassan Khan (now dead) for submitting challan against the accused.
4. Dr. Mohammad Salim Javed, P.W.1, on 30-5-1985 at 4-45 a.m. Conducted the post-mortem examination on the dead body of deceased Noormat Khan and found the followng injuries on external examination:--
(1) One incised wound 1" x 1/4" slightly to the right of mid line and 2" below the top of the head.
(2) One incised wound 1/2" x 1/4" and 2" to the left of the wound No,1.
' On internal examination the skull occipital bone and scalp of the deceased was found injured.
Brain was also injured. The doctor also found the perietal bone of the deceased fractured. And death was within 15 minutes whereas between death and post-mortem examination was 12 hours.
5. On 29-5-1985 at 8-25 p.m. The very doctor had examined Gul Rehman accused for his injuries and his report is to the followng effect:--
(1) One vertical lacerated wound 2-1/2" x 1/4" on left side of the head and 5" above left ear.
(2) One contusion 3" x 1" transverse on left upper arm.
' In the opinion of the doctor the injured accused had sustained injuries by blunt means.
6. The prosecution examined as many as 10 witnesses in support of its case out of whom Mst.
Raisham Jana, P.W.7, Nawab Khan, P.W.8, and Haji Yar Khan, P.W.9, are the alleged eye-witnesses of the occurrence. The accused-respondent was also examined under section 342 as well as 340, Cr.P.C. After the close of the prosecution evidence and hearing the learned counsel for the parties, the learned trial Judge accordingly convicted the accused-respondent under section 304, Part II, P.P.C. And awarded him the sentences already mentioned in the first paragraph of this judgment.
' It may also be mentioned here that though the accused-respondent had also lodged a report against the complainant party but keeping in view the circumstances of the case, no action was taken on the same.
7. We have heard the learned counsel for the parties and have also gone through the record of the case.
8. The main objection of the learned Assistant Advocate-General appearing on behalf of the appellant (State) is that the learned trial Judge while altering the section of law from section 302, P.P.C. To section 304, P.P.C. Has given no cogent reasons for the same and has also ignored the fact that the prosecution had succeeded in proving through oral evidence that the accused respondent had done the act of murder in a preplanned manner with obvious intention of killing the deceased. According to him there was no sense in acquitting the accused-respondent under section 302, P.P.C.
9. Before going further we must take note of the fact that so far as the guilt of the accused- respondent is concerned, no doubt, the same stood established from the evidence available on record, and even the accused-respondent himself has admitted his guilt in his statement at the trial. The relevant portion from his statement recorded at the trial under section 340, Cr.P.C. Reads as under:-- "In fact on the. An of occurrence I met my brother-in-law by chance. He was carrying an axe in his hands. On seeing me he absued me and said that I have beaten his sister for nothing and now he will take the revenge. Saying this he gave an axe blow with which I got injured. To save my skin I tried to snatch axe from him. During this grappling he got injured. I had not intentionally injured him. I then proceeded to the Police Station for report where I was arrested."
' Now, let us see as to whether the prosecution has been able to bring home charge against the accused-respondent under section 302, P.P.C.
10. Mst. Raisham Jana, P.W.7, Nawab Khan, PW8, and Haji Yar Khan, P.W.9, have alleged to have witnessed the occurrence. So far as Nawab Khan and Haji Yar Khan, P.Ws., are concerned, admittedly they have not seen the act of murder with their own eyes, because both of them have admitted in their statements that they were present inside the house when Mst.Raisham Jana informed them that Gul Rehman, accused-respondent, had murdered Noormat Khan, outside the house. It is also the version of Mst. Raisham Jana, P.W.7, in her First Information Report wherein she has stated that her father-in-law Haji Yar Khan and Nawab Khan were making ablution in the house wheras Noormat Khan deceased proceeded outside the house for easing himself. Of course, Mst. Raisham Jana, P.W.7, being wife of the deceased is a natural witness, but by her giving two different versions of the incident she has made her statement doubtful, so far as her deposition with regard to the arrival of- the accused-respondent at the spot is concerned. On the one hand, she has deposed in her First Information Report that when her husband went outside the house for urination, she followed him and saw Gul Rehman, accused-respondent, duly armed with an exe proceeding towards the deceased. But on the other hand, during the course of her furnishing oral account of incident at the trial, she has given an expression as if all the inmates of the house including her husband were inside the house when the accused-respondent came there and gave axe blows to her deceased husband in presence of Haji Yar Mohammad, Nawab Khan and Mst.
Wakil Zadi, P.Ws. The other two eye-witnesses have, however, contradicted the complainant on this point. This contradiction between the eye-witnesses would lead us to the conclusion that no one had seen Gul Rehman, accused-respondent, while appearing at the scene. However, it can be said that it was after his inflicting axe blows to the deceased when the P.Ws. Were attracted to the spot and noticed Gul Rehman, accused-respondent, decamping from the spot duly armed with hatchet. So, evidently when the accused-respondent was coming to the place of occurrence, he was not armed with the alleged weapon of offence. Besides this, if it is presumed that the accused- respondent came to the place of occurrence duly armed with an axe, even then it cannot be said that he had come there for killing the deceased because the accused-respondent also received blunt injuries on his head during the course of said transaction which could not be possible for the deceased to cause after the receipt of the injuries on his head at the hands of the accused- respondent. Hence, it was the deceased who first attacked the accused-respondent otherwise the accused-respondent would not have received such injuries because, neither the eye-witnesses have stated that after inflicting axe blows to the deceased, the accused as well as the deceased had grappled with each other, nor it is the case of the prosecution. It is also important to note here that the prosecution has kept mum over the injuries received by the accused- respondent on his head, coupled with the fact that according to Doctor Mohammad Salim, P.W.1, the injuries on the person of the deceased as well as the accused-respondent appear to have been caused at the same time. Admittedly, the creation of doubt in the story of the prosecution or suppression of any material fact to be brought on record is considered in favour of the accused. Keeping in view this circumstance of the case, obviously the prosecution has failed to prow, that the accused- respondent had come to the spot with clear intention of murder. As against this, it can be safely inferred from the material available on record that at the spur of momunt the deceased and the accused-respondent fell out in which the accused got injured on his head by blunt means whereas the deceased also sustained head injuries caused by sharp-edged weapon, meaning thereby that the accused had no intention to cause the death and it was only at the spur of moment when the accused-respondent under the heat of passion gave axe blows to the deceased on his head. The guilt of the accused-respondent, therefore, amounts to culpable homicide not amounting to murder and his case would be fully covered within the ambit of section 304, P.P.C. However, the learned trial Judge has not taken proper care while fixing the liability on the accused-respondent under one of the two Parts of section 304, P.P.C. Section 304, P.P.C. Provides that whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as. Is likely to cause death. Under Part II of the said section it is further provided that if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death, then a maximum punishment of 10 years with fine or with both, would be awarded to an accused person guilty .Of the offence. To us, the guilt of the accused-respondent falls under Part I of section 304, P.P.C., as the accused-respondent while giving axe blows at the head of the deceased was in the know that such bodily injury with a 'sharp-edged weapon would likely cause the death of the deceased. As such, the learned trial Judge was not right in holding the appellant guilty of the charge under section 304, Part II, P.P.C.
12. For the aforesaid reasons, we partially accept the appeal and the conviction of the accused- respondent under section 304, Part II P.P.C. Is altered to section 304, Part I, P.P.C. And the respective conviction and sentences there under from 7 years, R.I is enhanced to 10 years, R.I with a fine of Rs, 1,000 or in default to suffer six months R.I. He is also to pay compensation of Rs, 1,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment to undergo R.I for 6 months. The accused-respondent shall be entitled to the benefit of section 382-B, Cr.P.C. The appeal in hand is disposed of accordingly.