This appeal is directed against the judgment, dated 12-12-1993 passed by learned Sessions Judge, Nawabshah whereby the appellants have been convicted in Sessions Case No.90/91 (State v.
Ghulam Nabi and 3 others) under sections 302/34, 114, P.P.C. Arid sentenced to imprisonment for life and to pay compensation of Rs.10,000 each and in default to suffer R.I. For 6 months more.
2. Briefly stated the facts which give rise to this appeal are that on 31-3-1991 complainant Muhammad Yakub lodged F.I.R. With Sakrand Police Station that today he alongwith his brother Shafi Muhammad Lashari had come to Sarkand Town with their routine work and that after finishing their work, they came to Suzuki Stand for returning to their village. At that time P.Ws.
Ghulam and Atta Hussain were also present there and that at about 2-45 p.m. Accused Ghulam Nabi, Mir, Khair Muhammad and Dholio came there. Ghulam Nabi and Mir were having Lathis while the remaining accused were empty-handed. Accused Khair Muhammad Dholio instigated the accused Ghulam Nabi and Mir on which they gave Danda blows to Shafi Muhammad, who fell down and on their cries other persons were also attracted and, therefore, the accused persons went away. Shari Muhammad died on the spot. The motive of this crime is alleged to be that Nazar Muhammad, the sister's son of accused Ghulam Nabi and Savan the sister's son of deceased Shafi Muhammad had abused each other before this incident and the Faisla for the said incident was yet to be made by their Nekmard and Zamindar Abdul Jabbar Magsi and that before any Faisla could be made, the present incident has taken place.
2. That after recording the above report, the police started the investigations, arrested the accused and recovered the Dandas used in the commission of the offence and challaned the above named appellants alongwith Khair Muhammad and Dholio to stand their trial.
4. That the prosecution examined in all (9) nine witnesses in support of its case i.e. P.W.1 complainant Muhammad Yakub (Exh.12), P.W.2 Dr. Inayat A.I (Exh.13), who conducted post-mortem on the dead body of deceased Muhammad Shafi, P.W3 Gullan (Exh.14), P.W.4 Atta Hussain (Exh.15), P.W.5 Ghulam Hussain Tapedar (Exh.17), P.W.6 Zulfiqar A.I, A.S.I. (Exh.18), P.W.7 Nazeer Ahmed, Mashir (Exh.21), P.W.8 Muhammad Maroof, corpse---bearer (Exh.22) and P.W.9 Muhammad Ashraf, the S.H.O. (Exh.23). The statements of the accused were recorded (Exhs.25 to 28) and the accused neither examined themselves nor any witness in their defence.
5. That the learned Sessions Judge after determining the following points, convicted the above named appellants namely Ghulam Nabi and Mir and sentenced them to suffer imprisonment for life and to pay a fine of Rs.10,000 each failing wherein to undergo R.I. For 6 months more, while the co-accused Khair Muhammad and Dholio were acquitted of the charge. Hence this appeal.
Points determined by Sessions Judge:
(1) Whether deceased Shafi Muhammad met violent death? If yes what ' was the cause of death?
(2) Whether all or any of the accused killed deceased Shafi Muhammad? If yes, what offence they/he did commit?
6. I have heard Mr. Azizullah K. Shaikh, Advocate for the appellants and Mr. Habib Ahmed, Advocate for the State, and with their assistance have gone through the entire record, on 30-5-1995 and after hearing the valuable arguments of both the learned Advocates appearing in the above matter, by my short order, I allowed the appeal of appellant Mir son of Dholio, by giving him' benefit of doubt and acquitted him, if not required in any other case. As far appellant Ghulam Nabi is concerned, his appeal was dismissed with modification that I altered the conviction from section 302, P.P.C. To section 304, P.P.C. And reduced his sentence from life imprisonment to R.I. For 10 years, with the benefit of section 382-B, Cr.P.C. With reasons to be given subsequently, which follow now.
7. The conclusion and determination of the point No.(1) by the learned Sessions Judge, Nawabshah is not disputed by either of the parties' Advocates, hence the finding of the learned Sessions Judge, Nawabshah is maintained.
8. As regards Point No.2, wherein it is to be determined as to who is responsible for the death of deceased Shafi Muhammad and what offence, if any, is committed. There is ocular evidence of complainant Muhammad Yakub, P.xV. Atta Hussain and P.W. Gullan. Complainant Muhammad Yakub and P.W. Atta Hussain implicated both the appellants for causing Danda blows to the deceased Shafi Muhammad, while P.W. Gullan has implicated only accused/appellant Ghulam Nabi who is said to have caused Danda blow to the deceased on his head. The version of this witness Gullan is corroborated by the medical evidence as there was only one injury on the dead body caused by some hard and blunt substance. P.W. Gullan has not assigned any part to appellant Mir. The evidence of P.W. Gullan appears to be truthful and very convincing while the evidence of complainant Muhammad Yakub and P.W. Atta Hussain in respect of appellant Mir is not believable as it is not corroborated by the medical evidence, as such the learned Sessions Judge was 6 not justified to award sentence to appellant Mir, hence, in the light of the above submissions I am satisfied that there is no positive evidence that Mir has caused any injury or given any blow, though armed with Danda, to the deceased Shafi Muhammad, as such by giving benefit of doubt, I set aside the sentence awarded to appellant Mir and acquit him of the charge of murder of deceased Muhammad Shafi. The learned Advocate appearing for the State E very rightly did not support the conviction of appellant Mir. He shall be released forthwith if not required in any other case.
9. Now there remains the case of appellant Ghulam Nabi for whom the learned Advocate Mr. Azizullah K. Shaikh submitted that the complainant and P.W. Atta Hussain, who are admittedly related to the deceased, have been proved false by the evidence of the Medical Officer Dr. Inayat AIL who found only one injury on the dead body of deceased Shari Muhammad, while the complainant and Atta Hussain attributed injuries to appellants Ghulam Nabi and Mir. For P.W.
Gullan he submitted that he is though not related to the deceased but he has deposed under the influence of his Zamindar Abdul Jabbar, who wanted that the appellants should vacate their houses so that he may be able to occupy the same, as such he may also not be relied upon. It is an admitted position that the appellants were also Haris like P.W. Gullan of Zamindar Abdul Jabbar and nothing is brought on record to establish that said Abdul Jabbar ever tried to dispossess the appellants from their houses and to occupy the same. Against appellant Ghulam Nabi, the complainant, P.Ws. Atta Hussain and Gullan are consistence in their evidence. Lastly, Mr. Azizullah Shaikh, the learned Advocate for the appellants submitted that in the manner and in the circumstances the offence is committed, it falls, if any, under section 325, P.P.C. And not under section 302, P.P.C. In support of his above contention he relied upon (1) 1975 PCr.LJ 264, (2) 1981 PCr.LJ 498, (3) 1972 PCr.LJ 993 and (4) PLD 1980 Kar. 246. In reply to the arguments of appellants'
Advocate, Mr. Habib Ahmed, Advocate for the State submitted that the guilt of the appellant Ghulam Nabi has been proved without any reasonable doubt. He contended that the manner in which the above offence is committed it will fall under section 304, P.P.C. And he suggested the modification of sentence from section 302, P.P.C. To 304, P.P,C.
10. I have applied my mind to the circumstances of the case, the manner I in which the offence is committed, the weapon which is used in the commission of the above crime, and the contentions raised by learned Advocates for the parties, I am satisfied that the offence, if any, committed, falls under section 304, P.P.C. And not under section 302, P.P.C. And consequent thereupon the sentence of Ghulam Nabi is modified from imprisonment for life to 10 (ten) years and to pay Rs.10,000 as compensation to the heirs of deceased. In default of compensation, he shall suffer R.I. For 6 months more which is to run after expiry of sentence of ten years with the benefit of section 382-B, Cr.P.C.
The appeal of Ghulam Nabi is dismissed with the modification of the sentence mentioned above.