' The appellant along with 4 others was tried on a charge under section 302/148/149, P.P.C. Arising out of F.I.R. No,146, dated 7-9-1989 Police Station Saddar, District Layyah recorded on the statement of Atta Muhammad P.W., brother of the deceased Abdul Aziz Nazar son of Jamal and Nazar son of Noor were convicted under section 323, P.P.C. For causing simple injury to Manzoor P.W. And sentenced to pay fine of Rs,5,000. Ghulam Yasin another accused was also convicted under section 323, P.P.C. For causing injury to the deceased and was sentenced to undergo 6 months' R.I.
It is stated that these convicts did not challenge their conviction, have already suffered the sentences, and therefore, their case has no relevance to this appeal. The 4th co-accused namely Muhammad Baksh was acquitted and this acquittal has attained finality inasmuch as neither the State nor the complainant has challenged the same. The present appellant was convicted under section 302, P.P.C. And sentenced to imprisonment for life, a fine of Rs,10,000 in default to suffer 3 months' R.I.
2. According to the complainant on 6-9-1989, he alongwith Abdul Aziz (deceased), Abdul Rashid, Manzoor Hussain, injured and Ghulam Yasin went for fishing in River Indus, Hafiz Gul Muhammad, the present appellant came there and asked the complainant party not to catch fish within his area. The complainant group did not agree. The appellant went back by saying that he would teach them a lesson. After some time the complainant claims to have left the place to fetch meals from the house of Allah Bakhsh. He had hardly covered a little distance when he heard the fired shot. He saw Muhammad Bakhsh, accused was carrying a gun and smoke was coming out from its barrel. Hafiz Gul Muhammad armed with gun, Ghulam Yasin, Manzoor Hussain and the other Manzoor Hussain accused were carrying sticks. Hafiz Gul Muhammad, accused gave a blow with the barrel of his gun on the head of Abdul Aziz. Ghulam Yasin gave a stick blow on the left hand of Abdul Aziz. Abdul Rashid tried to intervene and Nazar Hussain, accused gave a stick blow on his head. Manzoor Hussain P.W. Also intervened and received stick blow on his right hand at the hands of Nazar Hussain accused. Manzoor Hussain fell on the ground and Nazar Hussain, accused gave stick blows on his shoulder and buttock. Muhammad Bakhsh accused caused injuries to Ghulam Yasin with the butt of his gun. Thereafter, Ghulam Yasin, accused gave a stick blow on the shoulder of Ghulam Yasin P.W. F.I.R. Was recorded on 7-9-1989 at 9-45 a.m. At the police station which was at a distance of 12 miles. The delay of about 16/17 hours was explained by saying that the accused party was trying to compromise and therefore, the occurrence was not reported.
3. At the trial to describe the motive and the occurrence prosecution produced Atta Muhammad, complainant P.W.7 and injured Manzoor Hussain as P.W.B. Abdul Rashid, injured P.W. Was given up as hostile while Ghulam Yasin was not produced as being unnecessary according to the District Attorney. Medical evidence was furnished by Doctor Sakhawat Ali, P.W.11 who initially examined the,deceased at 11-30 p.m. In the hospital and Doctor Zia-ud-Din, P.W.10, who performed the post- mortem examination of deceased, Abdul Aziz on 14-9-1989, the deceased having died a day earlier on 13-9-1989, in the hospital. Only licensed gun Exh.P.2 was recovered vide Exh.P.D. Which was deposed to by Ghulam Akbar P.W.S. No recovery of blood-stained earth or the items relating to fishing were either alleged by prosecution or anything produced at the time of trial. The Investigating Officer Roshan Din, A.S.-I. Appeared as P.W.9 while another police official Amir Baig, Inspector Police appeared as P.W.3 who deposed about the arrest of appellant on 15-9-1989.
4. Sahibzada Farooq Ali Khan, Advocate learned counsel for the appellant has seriously questioned the conviction of the appellant under section 302, P.P.C. And had submitted that at the most and if the prosecution story is believed it would be the case falling under Part H of section 304, P.P.C. In support he has cited the following facts which are either apparent or safely inferable from the prosecution evidence:--
(i) No previous enmity between the parties, in fact parties do not claim to have known each other prior to the occurrence.
(ii) Appellant even though armed with gun did not use it and hit the deceased with the barrel which caused injury 4 c.m. Into 4 c.m. Into bone deep on the head, not very grave.
(iii) No repetition of the blow. Delay of 16 hours in lodging the F.I.R. And explanation given for it not asserted at the time of trial. In fact both P.Ws.7 and 8, are silent about it.
(iv) No blood-stained earth nor any item or instrument relating to fishing taken into possession.
(v) No community of interest between the members of the complainant party. In fact all the members of the complainant party got together for the first time for purposes of fishing.
(vi) No friendship or other relationship claimed inter se the members of the complainant party.
(vii) Serious contradictions in the statement of P.Ws. Nos.7 and 8, the two eye-witnesses.
5. On the other hand the learned State Counsel has attempted to argue that the judgment under appeal is correct and need not be interfered with.
6. After going through the evidence and noting important features of the prosecution case I find that there is force in the submission of the learned counsel for the appellant. Serious contradictions appeared in the statements of eye-witnesses as to their getting together, their reaching at the place of fishing, while one maintained that they reached at 4-00 p.m. The other stated that they reached noon time. The defence has been suggesting that actually the complainant group was not there for fishing but was on an expedition for women hunting and it was the ladies of Kehal tribe which beat the complainant party. No evidence was produced by the defence and therefore, what the defence has stated may not be actually correct. The attack of the learned counsel on the oral account based on the strength of contradictions is not fatal to prosecution case. The P.Ws.
Have been consistently maintaining the launching and manner of attack and the various injuries caused by the assailants to various members of the complainant party. Therefore, I am not inclined to totally exclude their evidence.
7. However, for the points enumerated above it does seem that the affair in fact was sudden and there was no premeditation. The deceased only received one injury which unfortunately proved fatal. It was not so grave as to cause the death instantly. The deceased died after about 7 days in the hospital. The blow was not repeated. The appellant cannot be said to have acted in a brutal and cold-blooded manner. There is unexplained delay of 16 hours in the lodging of the report.
8. For all these reasons I hold that it is a case which falls within the parameters of Part II of section 304, P.P.C. Accordingly I alter the conviction of the appellant from the one under section 302, P.P.C.
To under section 304, P.P.C. Part II.
9. Regarding the quantum of sentence the learned counsel has relied on 1989 SCMR 1343 and 1989 SCM R 256 to show that even though under this section sentence up to 10 years is provided but the convicts, depending upon facts of the case, have been sentenced from 4 years to 8 years.
Considering everything I impose the sentence of 6 years' R.I. Upon the appellant under section 304, Part II, P.P.C. The sentence of fine is also reduced to Rs,5,000. In default of payment of fine the appellant shall suffer additional sentence of three months' R.I. The benefit of section 382-B, Cr.P.C. Is also awarded to the appellant.
' With the above modification, this appeal is dismissed.