' This appeal challenges the impugned judgment dated 22-5-1988 of the learned Additional Sessions Judge, Lahore by which he convicted and sentenced the appellant under section 302, P.P.C. For life imprisonment and a fine of Rs,10,000, or in default in the payment thereof to undergo further R.I. For 2 years. The fine if realised was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The appellant was also extended the concession of section 382-B, Cr.P.C. The revision filed by the complainant shall also be disposed of by this judgment.
2. On 4-9-1986 at 10-30 a.m. P.W.6 Arshad Mahmood, complainant made his statement Exh.P.C.
Before P.W.10 Inamullah Khan S.I. In the Emergency Ward of Mayo Hospital, Lahore, that he was running a tarpaulin manufacturing factory and on 4-9-1986 (Thursday) went to the graveyard of his late father for Fateha Khawani in Kot Khawaja Saeed graveyard and usually he used to pass from near Adda Wagon, Kot Khawaja Saeed. After offering Fateha P.W.6 was going to his house on the same way at about 10-30 a.m. And reached Adda Wagon Kot Khawaja Saeed, he witnessed that the appellant who used to receive from the Wagonwalas Adda-fee, was grappling with Muhammad Zahid deceased. The appellant was separated by P.W.9 Shahid Pervaiz, P.W.8 Muhammad Youths and P.W. Bilal Saeed (given up), and stopped them from quarrelling with each other. They saved Muhammad Zahid deceased with great difficulty from the clutches of the appellant, but the appellant was abusing again and again and was also threatening to kill him. The appellant was declaring that he would not allow the deceased Muhammad Zahid to park his wagon at the Adda. The complainant asked the deceased to take the wagon and talk with Kala Butt contractor Adda. The matter was patched up, and when they were about to leave, the appellant abused the deceased and attacked him, and after taking out a sharp-edged Rambi type weapon P.5 inflicted its blow on the chest of the deceased Muhammad Zahid, who became injured and fell down. The blood started oozing out from the chest of the deceased, who was taken by the complainant P.W.6 in injured condition in his wagon to the Mayo Hospital, and on the way near Aikmorya Pull, Muhammad Zahid succumbed to his injuries. Near the gate of Mayo Hospital Sultan, brother of deceased Muhammad Zahid met. P.W.10 Inamullah Khan, S.I. Recorded the statement Exh.P.C. Of P.W.6 Hafiz Arshad Mahmood, complainant and on its basis P.W.4 Ghulam Abbas, S.I., recorded formal F.I.R. Exh.P.C./1.
3. The medical evidence was furnished by the statement of P.W.1 Dr. Saleh Yousuf, who performed autopsy of the deceased and found the following injuries:-
(1) 3.5 x 1.5 c.m. Elliptical stab wound going cavity deep on the front of left side of chest starting just to the left of midline and 6 c.m. Below supra sternal notch. Both ends of wounds having rounded angles and the wound was directed from above downwards.
(1-A) After passing through skin, facia, muscles of 4th left intercostal space, cutting through sternal perforated the pericardial sac and entered the right ventricle of the heart. About 2 litres of blood and clots were present in the pericardial sect. ' The injury was ante-mortem and caused by a sharp-edged weapon. In his opinion cause of death was injury No,1 damaging the heart leading to profused haemorrhage and shock. Probable time between the injury and death was a few minutes and between death and post-mortem was 24 to 36 hours.
4. The prosecution examined 10 P.Ws. In all to substantiate its case. P.W.6 Arshad Mahmood, complainant, P.W.8 Muhammad Younus and P.W.9 Shahid Pervaiz, eye-witnesses corroborated each other and supported the prosecution version. The appellant was arrested on 6-9-1986 by P.W.10 Inamullah Khan, S.I., who made a disclosure and led to the recovery of bloodstained Rambi P.5 from the hole of southern wall of the kitchen of his house, secured by P.W.10 vide memo. Exh.P.F.
Attested by P.Ws. 8 and 9. P.5 was found stained with human blood vide Chemical Examiner's report Exh.P.L. And Serologist's report Exh.P.M. The statements made by P.Ws.8 and 9 pertaining to the recovery of blood-stained Rambi P.5 were not seriously challenged, and otherwise also the factum of recovery of P.5 has been proved on record.
5. The accused when examined under section 342, Cr.P.C. Denied the prosecution evidence against him, the recovery of blood-stained Rambi P.5 at his instance and had stated that he had been falsely implicated in the case. The P.Ws. Had deposed against him due to their friendship with the deceased. In answer to the question have you anything else to say, he replied:- "I am innocent. I was serving at Adda Wagons, Kot Khawaja Saeed, Lahore. I am duty bound to get the wagons parked in line in order of their turn. On the day of occurrence at about 10-00 a.m. The deceased parked his wagon ahead of the other wagons already parked in the Adda. I during the discharge of my duty restrained him doing so. He started abusing me. I asked the deceased he shall park his wagon at his own turn, but he became annoyed. He then picked up a Rambi from the Thara of Mehr Din cobbler and extended threats to my life and attacked upon me. I in order to save my life, caught hold of the hand of the deceased, with which he was holding the Rambi. We then grappled with each other. During the scuffle both of us fell down on the ground. Meanwhile, deceased was holding the Rambi in his hand, which incidentally, hit the deceased." ' and produced D.W.1 Mehr Din cobbler in his defence, but he himself did not make statement on oath as envisaged under section 340(2), Cr.P.C.
6. Placing in juxtaposition the plea raised by the appellant, it is not spelt out from the circumstances, and the evidence appearing in the case, and a case is made out against the appellant. P.Ws.6, 8 and 9 have no animus and no motive whatsoever to involve the accused- appellant Muhammad Bashir in the present case. They are not in any manner connected with the deceased or against the appellant. The names of the eye-witnesses were mentioned in the F.I.R.
Which was promptly lodged. Therefore, their presence at the spot cannot be doubted. The ocular testimony furnished by their statements is confidence inspiring and is in conformity with the medical evidence furnished by the statement of P.W.1 and is also corroborated by the recovery of blood-stained Rambi P.5 at the instance of the appellant.
7. It is visualised in this case that the appellant add the deceased had started quarrelling and grappling with each other and the exchange of abuses on the part of both of them continued, and passions in such circumstances would obviously rise high resulting in a sudden fight. The case of the appellant in such circumstances, in my view, will fall within the ambit of Exception 4 to section 300, P.P.C. The appellant had not acted in a cruel manner as he gave only one injury to the deceased. The fight in this case seems to be a sudden and what happened, was the result of high passions. The upshot of the discussion is that I am convinced from the evidence and circumstances appearing in the case that the appellant is entitled to the benefit of 4th Exception to section 300, P.P.C. I alter the conviction of the appellant from section 302, P.P.C. To section 304, Part II, P.P.C. And reduce the sentence from imprisonment for life to 10 years' R.I. However, the sentence of fine is maintained. The amount of fine, if realised shall be paid to the legal heirs of the deceased.
The appeal succeeds to the above extent. The appellant is on bail and is present in Court. He may be taken into custody and sent to jail to complete his sentence. However, he shall be entitled to the benefit of section 382-B, Cr.P.C.
8. The connected criminal revision had not been formally admitted. Since the appellant's appeal has been accepted to the above extent, the revision petition fails and is, therefore, dismissed.