' SALEEM AKHTAR, J.---This appeal with the leave of the Court challenges the judgment passed by the learned Judges of the High Court whereby the appellant's conviction under section 302, P.P.C.
Was altered to that under section 304, P.P.C. And his sentence was reduced from life imprisonment to 14 years, R.I. With fine of Rs,20,000 and in default of payment of fine to suffer imprisonment for a period of one year. Benefit of section 382-B, Cr.P.C. Was also granted.
2. According to the F.I.R. On 8-8-1989 complainant Kahar P.W.1 lodged a report at 7-30 a.m. Alleging that he and his family members reside in Goth Hazar Khan and cultivate lands. On the previous night when the complainant his cousin Abdullah and son Miskan were present in their house, Nawaz All son of Gul Muhammad, Adam son of Nawaz Ali, Sanjar son of Rind Ali, Muhammad Panah son of Dad Ali, Rind All son of Khan Muhammad and Dost Muhammad son of Jin, all Jhakrani by caste, came there and started unloading wooden poles from the bullock cart at a distance of about 100 yards in front of his house. On inquiry being made, Nawaz Ali stated that they intended to construct a house there. The complainant asked them not to do so as it was being used by his children for urination but the accused insisted to construct the house and ultimately attacked the complainant with Dandas (sota). Abdullah and Miskan were beaten with Dandas as a result whereof both of them received injuries on their heads and became unconscious. P.Ws. Abdul Karim and Subedar are stated to be witnesses of the incident. During investigation as no evidence was produced against Nawaz Ali, Sanjar, Rind Ali and Dost Muhammad, they were discharged from the case under section 169, Cr.P.C. It so happened that on 9-8-1989 Abdullah, who was injured, died.
The prosecution charged the appellant and Muhammad Panah under section 302/307/34, P.P.C.
Who pleaded not guilty. The medical opinion of deceased Abdullah certified that he had suffered a bruise wound 3" long and 1" in breadth on the right side of head 4" above the right eyebrow laterally.
There was fracture of skull bone at the side of wound. Due to this injury internal injuries were suffered, namely, the blood vessels had been punctured and the death was caused due to the head injury and haemorrhage of brain matter. The appellant pleaded not guilty and stated that he had been implicated in the case falsely because Momin brother of accused Adam, was declared Siahkar with Mst. Nazan daughter of Abdul Karim. However, no defence was led by the appellant.
The learned trial Court sentenced the appellant to life imprisonment. However, the High Court modified it as stated above. On assessment of the evidence the learned Judges of the High Court did not rely on the confession which was not admissible due to non-compliance with the provisions of law. Referring to the arguments of the appellant's counsel that he had no intention to kill deceased Abdullah, it was observed as follows:- "In this context it has been observed in above paras that fight had taken place without any motive at the spur of moments for which no preparation was made by accused; and inflicting of single blow of Danda to deceased does not prove intention to commit offence of murder by the accused; and evidently there was no common intention on the part of accused for committing this offence, therefore, it would not be safe to hold appellant Adam responsible for the commission of offence of culpable homicide amounting to murder."
3. We have examined the statements of the prosecution witnesses and the F.I.R. And are of the view that there was no premeditation by the appellant to commit murder of Abdullah. The incident happened on the spur of the moment perhaps due to the sudden fight as the accused were insisting on constructing a house at a place to which the complainant party had objected. In such a situation the learned Judges were justified in invoking section 304, P.P.C. Instead of convicting him under section 302, P.P.C.
4. Mr. M. Bilal, the learned counsel for the appellant contended that in the facts and circumstances of the case and the findings of the Court the appellant could not be convicted for 14 years under section 304, P.P.C. In our view the present case falls under last part of section 304, P.P.C. Which provides imprisonment of either description for a term which may extend to 10 years or with fine or with both 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. As observed earlier the appellant had no intention to cause death or to cause such bodily injury as was likely to cause death. The incident happened in the heat of the moment and there was no motive to commit the murder. In these circumstances, in our view 14 years' imprisonment should be reduced to 7 years' rigorous imprisonment, but the fine as imposed by the learned Judges of the High Court is maintained. With this modification in sentence the appeal is dismissed. The appellant, as ordered by the High Court would be entitled to the benefit of section 382-B, Cr.P.C.