' Maqsood has preferred this appeal, through the Jail authorities, against his conviction and sentence of transportation for life recorded under section 302, P. P. C. By the Sessions Judge, Multan.
2. The appellant was a vendor of edibles (papers) at the bus stand, Khanewal. Next to his was the stall of Sharafat deceased where he sold light drinks. Two days before the occurrence, at 11 a.m.
Shaukat, brother of the deceased, while serving light drinks to a customer, spilled some of it on the paper of the appellant, whereupon the latter gave him 2/3 slaps Shaukat informed the deceased upon his arrival at 4 p.m. At the time the appellant was not present. The next day, i,e,, the day before the occurrence, the deceased gave the appellant a beating in retaliation for his having slapped Shaukat.
3. The occurrence took place on 26-5-72, at about maghribwela, at Chowk Loharan in Khanewal fown. The deceased accompanied by Abdur Rashid P. W. a fruit-vendor at the bus stand, came there. The appellant, who was also present there, on seeing the deceased, started abusing him and shouted that he would teach him a lesson for the previous day's beating. He grappled with the deceased during which he took out a chhuri from the pocket of his saluka and gave two blows, one, at the loft arm and the other on the left side of the chest of the deceased. The deceased fell down.
Siddiq and Shaukat P. Ws. Who had also come in the meantime, saw the occurrence. The appellant, who started to run, was chased and caught by Abdur Rashid and Siddiq P. Ws. They also secured his chhuri. Muhammad Hussain and Anwar took the deceased to the hospital, while Siddiq and Rashid proceeded to the Police Station, but while they were still on the way, Muhammad Hussain came and informed them that the deceased had expired before reaching the hospital. Siddiq P. W.
Lodged report at the police post at 8 p.m. He also produced the appellant and the chhuri (Exh. P. 1) before the police. The saluka (Exh. P. 2) and shirt (Exh. P. 3) which the appellant was wearing on his person, which were blood-stained, were removed and sealed into a parcel.
4. The post-mortem examination disclosed the presence of the following two injuries on the person of the deceased :- (i)An ante-mortem stab wound x on the front of left side of the chest 5" from midline, 3' from the left nipple.
(ii) An ante-mortem incised wound 1" x x 1' on the lower part of the posterior surface of left arm from the left elbow-joint.
' Injury No, 1 was found dangerous and sufficient in the ordinary course of nature to cause death.
Both the injuries had been caused by a sharp-edged weapon.
5. The appellant, too, was medically examined, on 27-5-1972, at 6 p.m., and a contusion mark it" x }" from right eyebrow was found on his person. The injury, which was simple, had been caused by w blunt weapon.
6. Apart from the medical evidence the prosecution had relied on the ocular testimony of Muhammad Siddiq (P.W. 7) the complainant in the case, Abdur Rashid (P. W. 8) and Abdul Shakur (P. W. 9). The recoveries were proved by Muhammad Ishaq (P.W. 5). The prosecution also examined Shaukat (P. W. 6) brother of the deceased, to prove the incident which took place two days before the occurrence in which he was given slaps by the appellant.
7. The appellant contended himself by a simple denial of the allegations. He admitted that the deceased used to sell light drinks at the bus stand but denied that he (appellant) used to sell papers there. He denied the incident relating to his slapping Shaukat or his getting beating from the deceased. He also denied the recoveries. As to the injury on his person, his explanation was that the same was the result of beating received by him at the hands of the police. The learned trial Judge found evidence of motive weak and not satisfactorily proved. He also held that the recoveries were of no evidentiary value for the reason that the movement of the sealed parcel of chhuri to the Moharrir A. S. I. Had not been established and that the clothes of the appellant had not been sealed into a parcel in the presence of the recovery witness Muhammad Ishaq. He, however, believed the ocular testimony and in the result held the appellant guilty.
8. In this memorandum of appeal the appellant has now admitted that he had a stall near that of the deceased where he used to sell papers, but has denied that he had any enmity with the deceased. He has stated that on the day of the occurrence he was going to his relative Sadiq Ali who lived in Block No, 9, but as he was passing by the dead body of the deceased, the police arrested him and implicated him in the murder. He has alleged that the case has been foisted upon him by the relations of the deceased.
9. I have carefully examined the material on record with the help of Maj. Waheed-ud-Din, learned counsel for the State. The ocular testimony inspires confidence. Muhammad Saddiq had been returning from the house of one Akbar, which was about 300 yards from the place of occurrence.
He is a resident of same town, Abdur Rashid P. W. Has a fruit stall at the bus stand. He had been coming with the deceased when the occurrence took place. Abdul Shakur P. W. Is a resident of the neighbourhood, his house being 220 yards from the place of occurrence and 150 yards from the house of the deceased. He was returning from Colony No, 1 at the time of the occurrence and had been attracted to the scene by the alarm raised by the appellant, None of these witnesses stand in any close relationship with the deceased or in any enmity towards the appellant to cast doubt about his veracity.
10. The incidents which had taken place on the two days previous to the occurrence find mention in the F. I. R. But, since Muhammad Siddiq the maker of the F. I. R. Had himself not seed any of the incidents, his evidence on the question of motive cannot be accepted. Shaukat, aged 13 years, the younger brother of the deceased, has however, deposed to the incident which took place two days before the occurrence in which he had received slaps from the appellant about which he had later informed the deceased. The prosecution somehow did not produce any direct evidence to prove the incident of the previous day. Abdur Rashid who had accompanied the deceased, however, stated that the appellant had, before engaging in the fight, shouted that he would teach the deceased a lesson for the previous day's fight. This is supported by Abdul Shakur P. W. There is, therefore good reason to believe that the deceased has given the appellant a beating the day before the occurrence. I, therefore, do not agree that the motive is not proved.
11. As regards the recoveries, there is ample evidence to show that the chhuri (Exh. P. 1) as well as the clothes of the appellant viz. Saluka (Exh. P. 2) and shirt (Exh. P. 3) were blood-stained at the time of the recovery. The lapse on the part of the police officials, if any need not detract from the evidentiary value of the recoveries. The appellant had been produced before the police and the recoveries had been effected promptly. In these circumstances, the case against the appellant is well established.
12. Learned counsel for the State urged, and I am inclined to agree with him, that in the circumstance of the case, the offence committed was not under section 302, P. P. C. In the first instance, there is no premeditation. The appellant had no way to anticipate the arrival of the deceased at Chowk Loharan. He came upon him accidentally and aggrieved, by the beating of the previous day he challenged and engaged in fight with him. There is no material to justify the view that he had brought the chhuri for the purpose of committing the crime. It may be noted that although the chhuri was with him he did not use it until he received an injury on the forehead. The fact that he had received beating at the hands of the deceased on the previous day and that he was younger in age, shows that he was not equally matched in strength with the deceased.
According to the appellant's statement, he was 14 years of age on 30-1-1973, i,e, about 13 years on the date of occurrence (the doctor at the time of examining him medically, gave his age as 17 years). The deceased, on the other hand, was 18 years of age. The appellant had inflicted only two blows and started to run. Only one blow proved fatal, the other being simple. In the circumstance, the case will come under section 304, Part I, P. P. C. This is supported by the view taken in Masoom Beg v. Muhammad Munir and another (1) and Muhammad Salim v. The State (2).
13. I, therefore, alter his conviction from section 302 to section 304 Part I, P. P. C. And reduce his sentence from transportation for life to rigorous imprisonment for 10 years plus a fine of Rs, 500 or in default in payment thereof to further R.
1. For one year. The fine, if realized, shall be paid to the heirs of the deceased. The appellant shall be informed through the Jail authorities. {{FOOT NOTE}}
(1) 1971 SC'M R 476 (2) 1969 SCM R 653 {{FOOT NOTE}}