' Appellant Noor Muhammad has preferred this appeal through the jail authorities from his conviction and the sentence recorded under section 304, Part II, P. P. C. By the Sessions Judge, Sahiwal vide judgment dated 7-6-1975.
2. The case against the appellant arose from an occurrence which took 1 place on 30-10-1973 at 9- 00 a.m. In village Sarai Amar Singh, Tehsil Dipalpur, District Sahiwal. He inflicted two blows with a brickbat at the head of Chiragh deceased at which the latter fell down and then he gave a few kicks before departing from the scene. The occurrence was seen by Nawab, brother of the deceased, Jan Muhammad and Sultan P. Ws. Who all had their houses nearby. According to the prosecution, the occurrence was preceded by an altercation over the payment of Rs. 3 which the deceased had owed to the appellant. The deceased in injured condition was removed to the hospital. He was medically examined at 2.30 p.m. After obtaining the medical report, Nawab went to the Police Station and lodged report under section 307, P. P. C. At 2-45 p.m. A few minutes thereafter, the deceased died and upon receipt of a not: to that effect, the offence was changed to 302, P. P. C. The police recovered the blood-stained brick-piece bah. P. 4 from the spot.
3. During the trial, the prosecution relied on the ocular testimony of Nawab (P. W. 7) and Jan Muhammad (P. W. 8). The third witness viz. Sultan was given up as unnecessary. The recovery of the brick-piece was proved by Jan Muhammad (P. W. 8) and S. H.
0. Zia Ahmed Bokhari (P. W. 9).
4. The medical examination of the deceased at the time of his entry at the hospital disclosed the presence of the person :-
(i) A contused wound on the left side of the bone deep.
(ii) A lacerated wound on the right side of the head (forehead) X deep.
(iii) Tenderness all over the abdomen.
' The first two injuries were found dangerous to life. The deceased was at that time in unconscious state. The post-mortem examination was held on 1-11-i973 at 1-00 p.m. The death was, in the medical opinion, due to concussion of the brain resulting from injury No. 1, which was sufficient to cause death in the ordinary course of nature. The post-mortem examination report, in the absence of the relevant Medical Officer, was proved by Abdur Rashid (P. W. 6) Dispenser of the Municipal Hospital, Okara.
5. It appears that the appellant had also been medically examined on 30-10-1973 at 2-30 p.m. And the following injuries had been found on his person -
(i) A contused wound on the right side of the head 21" x 1/3" x bone deep.
(II) An abrasion on the left knee joint 1/5' x 1/7'.
(iii) A contusion mark on the left buttock 4' 1'.
(iv) A contusion mark on the right side of the lumber region 5' x I".
' The injuries in the medical opinion had been caused by blunt weapon and were found to be of simple nature. Although there was no explanation for these injuries in the F. I. R., the eye-witnesses subsequently deposed that while trying to run away from the spot, the appellant had stumbled over a piece of wood and had thereby sustained the injuries.
6. The appellant had before the committing Court admitted that there had been an altercation between him and the deceased on the question of payment of Rs. 3 but he had denied the other allegations. In regard to his own injuries, he had stated that he bad been given sota blows by the deceased. On 6-6-1975, while pleading to the amended charge in the trial Court he explained that "he was to recover his labour charges from Chiragh and when he went there, Chiragh deceased abused him and both of them grappled with each other". He further explained that "Chirgah hit the phala on his head and he sat down and thereafter some other Pir gave a blow with the brickbat which caused the death of Chiragh". In his statement under section 342, Cr. P. C. Recorded the next day I.e. 7-6-1976 he again admitted the dispute regarding payment of Rs. 3 but denied that any altercation had taken place between him and the deceased. For explanation of his injuries, to stated that "Chiragh deceased was teased by the street Urchins who called him as 'Kana. The deceased bad thought that I had instigated those boys to tease Chiragh. Chiragh gave a blow on my head with his lath! On the end of which there was an iron-shod. The deceased, gave me the first blow on my head and then he repeated the other blows.' Be stated that he was innocent and that he had been implicated on account of "mere suspicion". The learned Sessions Judge ruled out any chance of substitution of the real culprit and found the appellant guilty but considering that the incident had taken place in a sudden fight, be held that the offence was culpable homicide not amounting to murder. He, therefore, convinced the appellant under section 304, Part H, P. P. C. And sentenced him to R. I. For 10 years and to pay a fine of Rs. 2000 or in default in payment thereof to suffer simple imprisonment for 6 months. The fine, if recovered, was ordered to be paid to the heirs of the deceased by way of compensation under section 544-A, Cr. P. C.
6. In his memorandum of appeal, the appellant has come out with the plea that he suffers from fits of mental derangement, that he had one such fit, when he had been going in the bazar and that he does not know as to what had actually happened. This plea is not only belated but there is also no -material to sustain it. I have, however, examined the record with the help of ear. Ehsan Ullah Khan Lilla, Advocate for the State. There is no reason to doubt the presence of the eye-witnesses, namely, Nawab and Jan Muhammad because their houses are closeby. Nawab is the brother of he deceased while Jan Muhammad is distantly relate 1 to him but that would not detract from the value of their testimony because they are the natural witnesses and had no motive for falsely implicating the appellant. It was a daylight occurrence in a public place and as such substitution of the actual culprit, if any, is out of the question. But the ocular witnesses are fully corroborated by the medical evidence as regards the injuries suffered by the deceased and the recovery of the blood-stained brick-piece.
7. The appellant, as already shown above, has given verying versions of the occurrence. He has produced no defence. There is, therefore, no reason to accept the same. However, one thing is clear that an altercation over the payment of Rs. 3 had taken place between the deceased and the appellant. There is, however, no reason to accept the prosecution case tha the occurrence had been a one-sided affair. The eye-witnesses had explained that the injuries found on the person of the appellant had been on account of his having stumbled over a piece of wood but this had not been mentioned in the F. I. R. Which is totally silent in regard to these injuries. Moreover, the piece of wood is not in evidence, nor is its location shown in the site plan. The Investigating, Officer, too, has not made any mention of this piece of wood. There is therefore, reason to believe that the appellant had sustained the injuries at the hands of the deceased in the course of the altercation.
Since the deceased had collapsed on receipt of the brick-injuries, it can be reasonably assumed that the A blow sustained by the appellant nal preceded the inflicting of the brick-injuries. This constitutes a mitigating circumstance. Moreover, the fact remains that the appellant had no motive, nor premeditation, that the occurrence had been the result of a sudden fight and that the appellant had taken no unfair advantage. Though his conviction under section 304, Part II, P. P. C. Is fully merited, the award of the maximum penalty prescribed therein would not be justified. I, therefore, reduce the sentence from R. I. For ten years to R. I. For five years. The sentence of fine and the order passed for payment of compensation are maintained. With this modification in the sentences, the appellant's appeal is hereby dismissed. He shall be informed through the jail authorities.