1. The F.I.R. In this case was registered on 13-12-1988 at Police Station Market Hyderabad for offence under sections 302/34, P.P.C. Complainant Bundoo stated in the F.I.R. That on the day of incident he was present in. His house when there was a quarral between children of Umer Daraz and his children. He rebuked the children and they went away. . Thereafter, Umer Daraz started quarrelling with his son Muhammad Yaqoob, but on his intervention it was settled. The complainant has further stated in the F.I.R. That he was sitting in the shop of Abdul Ghafoor and Muhammad Ayub.
2. Iqbal and Majeed were talking to each other. At that time Mukhtar Ahmed brought an iron rod from the workshop of Jaffar. The complainant followed Mukhtat Ahmed who asked his son Ayub as to why they had beaten his father Umar Daraz. On intervention of complainant accused Mukhtar went away threatening that he will not spare Ayub. The complainant went to the shop of Abdul Ghafoor at about 4.00 p.m. Accused Mukhtar and his father Umer Daraz came there. Accused Mukhtar was carrying a Pistol in his hand. The complainant's son Muhammad Ayub was standing with Nasaruudin and Iqbal as they were conversing with each other.
3. At that time Umer Daraz instigated accused Mukhtar and on his instigation accused Mukhtar fired at Muhammad Ayub causing injury on the right side of his abdomen. Muhammad Ayub fell down.
4. Complainant, Nasaruddin, Iqbal and Majeed removed him and were taking him to the hospital but he succumbed to his injuries.
5. On 13-12-1988 Raqeebullah was posted at Police Station Market. He was duty officer at the police station when complainant Bundoo carne and lodged his report. After registering the F.I.R. He proceeded to Civil Hospital where he prepared inquest report of dead body. He examined P.Ws.
6. And on 14-12-1988 he arrested accused Mukhtar. Accused Umer Daraz had got bail before arrest from Sessions Court. On 18-12-1988 accused Mukhtar produced pistol alongwith two cartridges. He handed over case papers to S. H. O. Who challaned the accused."
7. On 26-3-1992 charge was framed against the accused for offences punishable under section 302 read with section 34, P.P.C. During trial proceedings prosecution examined complainant Bundoo Exh.5, the F.I.R. Was produced as Exh.6, P.W. Nasaruddin was examined as Exh.8, P.W. Muhammad Iqbal was examined as Exh.10, P.W. Islamuddin was examined as Exh.13, P.W. Muhammad Hanif was examined as Exh.15, Sulleman Qureshi was examined as Exh.17, P.W. Ahmed Khan Tapedar was examined as Exh.21, Medical Officer Mushtaq A.I was examined as Exh.22, post--mortem report was produced as Exh.23, S.I.P. Raqeebullah was examined as Exh.24. The learned A.P.P. Closed the side of prosecution vide statement as Exh.26.
8. The accused in their statements under section 342, Cr.P.C. Denied the allegations of prosecution.
9. The learned VIth Additional Sessions Judge Hyderabad convicted the accused Mukhtar Ahmed and Umer Daraz for offence punishable under section 302, P.P.C. Read with section 34, P.P.C. And sentenced them to suffer life imprisonment and each of the accused was fined to pay rupees ten thousand (Rs.10,000) and in case of. Default ,in payment of fine each of the accused had to undergo further imprisonment for six months more.
10. Learned Advocate for the appellants submitted that there is no evidence to justify conviction.
11. According to him that offence punishable under section 302(b), P.P.C. Is not made out. The evidence of complainant is not supported by any other independent evidence. The witnesses were interested and there was enmity between the parties. There was contradiction between ocular and medical evidence. The offence under section 304, Part II had been committed as it was a sudden fight and it was not a premeditated murder. The accused appellants have already suffered the imprisonment which is normal sentence for such offence: The learned State Counsel submitted that the offence under section 302, Part B was made out. The proof as required under section 304 is not available and the offence will fall under section 318, P.P.C. i.e. Qatl-e---Khata and punishment for such offence is mentioned in section 319 which is up to five years.
12. The learned Advocate for appellants has submitted that as regards case of appellant Mukhtar Ahmed his period of detention comes to five years and this was usual punishment for offence under section 304, Part 11, P.P.C.
13. The complainant Bundoo Exh.5 stated before the Court asunder:-- "The incident was result of the fight between the children. Accused Umer Daraz caused fist blow to my younger son Nisar alias Kaloo on, the flying of kite. This incident took place some time prior to this incident and it was 3.30 p.m. The fight was brought to an end and accused went away.
14. Thereafter, accused Umeer Daraz and Mukhtar came up to stairs of our house. Accused Mukhtar was armed with Saria (iron rod) while accused Umer Daraz was empty handed at that time.
15. Accused Mukhtar had told his son Muhammad Ayub that he had insulted his father. Accused Umer instigated accused Mukhtar that, what for he was looking, he should hit Ayub and on such instigation accused Mukhtar fired from his Pistol which hit Muhammad Ayub on his stomach. Ayub fell down. Accused then left place of incident."
16. P.W.Nasaruddin Exh.8 has stated before the Court as under:-- "There was exchange of hot words in between son of complainant, complainant and the accused at his shop. They had separated them-- Accused went towards their house so also complainant.
17. After 15 minutes of the incident accused Umer Daraz instigated accused Mukhtar that what for he is seeing, fire at Ayub. Mukhtar fired from his Pistol which hit Ayub."
18. Similar is statement of P. W. Muhammad Iqbal Exh.10. In view of these statements it becomes clear that there was quarrel between the children and thereafter the incident in question had taken place. Accused Umer Daraz was empty-handed and he did not cause any injury to deceased. He is father of accused, Mukhtar who caused the fatal injury.
19. "I know Chuttan. He is father-in-law of accused Umer Daraz and also his maternal uncle. It is a fact that I have purchased a thella from Chuttan in Rs.300. It is incorrect to suggest that police had secured stolen thella from my house at any time. It is incorrect to suggest that on that account we were annoyed with accused. It is incorrect to say that any faisla had taken place in respect of said thella between Mohallah people."
20. The learned Advocate for the complainant was also present and he conceded that he will be satisfied if the conviction of accused Mukhatar is converted to the period of imprisonment he has already suffered. The case of accused/appellant Umer Daraz is on different footing because he did not cause any injury to the deceased but he is said to have instigated accused Mukhtar who caused fatal injury. He is father of accused Mukhtar and aggrieved parties usually give role of instigation to close relative or relatives of the main offender. Since no injury was caused by accused Umer Daraz and there is possibility of false implication, I give him benefit of doubt and hereby acquit him.
21. On 21-4-1997 this Court had passed short order which is as under:-- "Keeping in view the facts that the proof as required under section 304 is not available and it was not a premeditated act the period of sentence is modified to the period of detention already suffered by appellant Mukhtar Ahmed. The appellant Mukhtar Ahmed will have to pay the fine and in case of default he will suffer the imprisonment as already ordered. With this modification in sentence the appeal is dismissed. The appellant Mukhtar Ahmed be released forthwith if not required in any other case."
22. The short order was passed under misconception of law. The learned A.A.-G. Has submitted that offence under section 302, Part B was made out and the proof as required under section 304, P.P.C.
23. Is not available and the offence will fall under section 318, P.P.C. Le, Qatl-e-Khata and punishment is provided under section 319. This is not correct view because the F.I.R was registered on 13-12-1988 for offence under sections 302/34, P.P.C Charge was framed on 26-3-1992 for offence under section 302 read with section 34, P.P.C. And conviction has also been made for offence punishable under section 302 read with section 34, P.P.C. The provisions of Qisas and Diyat Ordinance cannot be applied because the offence was registered under section 302, P.P.C. And conviction was also made for offence under the same section. The provision of Qisas and Diyat Ordinance is not attracted but in any case the result will be the same. For offence under section 318 i.e. Qatl--e- Khata punishment of imprisonment may extend to five years is provided. In decision reported in 1976 SCM R 191 similar question was involved. The relevant on page 193 is as under:-- "We find ourselves in agreement with the view taken by the High Court. There was no satisfactory reason to discard the ocular evidence of as many as five witnesses, two of whom bore marks of injuries as proof of their presence at the spot. We are further of the view that the learned Judges in the High Court rightly extended the benefit of Exception I to section 300 of the Pakistan Penal Code to the appellants, as it is clear that the assault launched by the appellants on the deceased was a sequel to an alteration and fight which had already taken place between the elders of the parties.
24. Oil this view of the matter, the appellants could be convicted only under Part I of section 304 of the Code:"
25. "As noticed above, there was no previous enmity between the parties and a petty quarrel over the children resulted in this unfortunate incident in which one human life was lost and persons on both sides including an elderly lady have received injuries. It i4 manifest, therefore, that the incident was the result of a sudden flare up without any intention or premeditation. In this view of the matter and following the principle laid down in Bahar Khan and 2 others v, the State (1) we set aside all the convictions of Inayatullah appellant i.e., under section 302, P.P.C., and convict him under section 304, Part II, P.P.C., and keeping in view the period of detention during trial, he is sentenced to five years' R.I. And a fine of Rs.1,000 (Rupees One Thousand only) or in default to further rigorous imprisonment for three months. The amount of fine if realised, will be paid to the heirs of the deceased as compensation. His death sentence is not accordingly confirmed."
26. Thus, the sentence of five years for offence as is alleged is sufficient as the facts reveal that offence under section 304, Part II, P.P.C., wk committed. For Qatl-e-Khata also sentence of imprisonment for five years i4 provided under section 319, P.P.C. Appellant Mukhtar has already suffered imprisonment for five years if remissions are included. I, therefore, reduce the period of sentence to period of imprisonment already undergone by appellant Mukhtar. One of the reasons of taking lenient view is that he acted because his father was insulted before the main incident. On page 2 of the judgment of trial Court while discussing facts of F.I.R. The trial Judge has mentioned the following facts:-- "The complainant followed Mukhtar Ahmed who asked his son Ayub that they had beaten his father (accused Umer Daraz)."
27. This fact suggests that Mukhtar Ahmed had acted because his father was beaten: Accordingly accused Umer Daraz is given benefit of doubt and acquitted. The, sentence of appellant Mukhtar Ahmed is reduced to the period which he has suffered since the day of his arrest. Thus, benefit of section 382-B, Cr.P.C., is given to him. With this modification in sentence the appeal is dismissed.
28. These are the reasons for short order, dated 21-4-1997. The appellant Mukhtar Ahmed will have to pay the fine and in case of default he was to suffer imprisonment as mentioned in the judgment of trial Court.