1. ABDUL HAFEEZ MEMON, J.--Appellant Abdul Rehman son of Muhammad Wali has been convicted by the learned Sessions Judge, Badin, for an offence under section 302, P. P. C. And sentenced to suffer imprisonment for life and a fine of Rs. 1,000 or in default further R. I. For six months. In addition, be has also been convicted under section 13-D of the Arms Ordinance and sentenced to R. I. For 6 months, the two sentences to run concurrently.
2. The appellant and deceased Abdul Rehman son of Hoti were said to be friends but some time before the incident they had fallen out on account of some differences. It is alleged that on 12-11- 1974 at about 1 I-30 a. m. The deceased was sitting outside the shop of P. W. Shabbir, a cycle dealer, when the appellant came there and attacked him with a knife as a result of which the deceased died later. F. I. R. Relating to the incident was lodged by complainant Umar at 11-55 a. m. The same day at Tando Ghulam Ali Police Station 1-- furlongs away. In the course of investigation, the Police arrested the appellant and secured a blood-stained shirt and shalwar from his person. The appellant was also having an injury on his left knee and he is alleged to have produced a blood- stained knife. On 13- 11-1974, the appellant was produced before Mr. Arshad Ali Khan, Civil Judge and F. C. M., Matli who recorded his confession, After the usual investigations were concluded, the appellant was challaned, tried and convicted as stated above.
3. Dr. Abdul Hameed, Medical Officer, Rural Health Centre, Tando Ghulam Ali, conducted the autopsy on the body of deceased and found two knife injuries on his person. He also examined the appellant and found an incised in' jury on his left knee which was caused by a sharp cutting weapon and was of the same duration as the injuries on the deceased.
4. The defence of the appellant was that he was himself attacked by the deceased and the latter sustained injuries in the course of the struggle. He stuck to his judicial confession, wherein also he bad stated that it was the deceased who attacked him first. No evidence was however, led in defence.
5. At the trial the prosecution examined 3 eye-witnesses to support their case and they further relied on the recovery of blood-stained clothes and knife from the appellant as also a chit alleged to have been written by the deceased, wherein he had threatened the appellant because "he had not fulfilled his terms of friendship". Of the 3 eye-witnesses, P. Ws. Shabbir and Moolchand did not support the prosecution case. The learned trial Judge also did not rely on the evidence of P. W.
6. Umar, cousin of the deceased as the other witnesses had stated that he was not there at the relevant material time. The learned trial Judge, however, relied on the deposition of P. W. Shabbir before the Committing Magistrate brought on record under section 288, Cr. P. C. This was to the effect that when he carne out of the shop on the noise of falling of his cycle, he saw the appellant and deceased grappling with each other. He tried to separate them but before he could do so, the appellant, caused injuries to the deceased as a result of which the latter fell down and the appellant ran away. This being the only direct evidence relied; upon by the learned trial Judge, there was no evidence at all as to how the incident developed and who was the aggressor. Be that as it may, the fact remains that appellant also had an incised injury caused by a sharp-cutting weapon on his person and, according to the Doctor, it was' of the same duration as the injuries en the deceased. There was also grappling between the appellant and the deceased immediately before the injuries were caused. In this view of the matter there was a sudden fight and the question of who attacked whom is totally immaterial. The case of the appellant, therefore, falls under Exception IV to section 30U,J P. P. C. This position was very rightly conceded by Mr. Manzoor Hussain, learned counsel appearing for the State at the very outset, and the learned counsel suggested a sentence of R. I. For 5 years as sufficient, to meet the ends of justice in this case.
7. 1n view of this position, the evidence of recoveries is hardly of aryl significance. The appellant had also one incised injury on his person and' the blood on his clothes may be due; to his own injury.
8. The recovery of, the chit from the appellant also does not advance the case of either side in the view taken, namely, this was a case of a sudden fight and neither aside could be said to have taken an undue; advantage or acted in a cruel or unusual manner. The injury on the appellant shows that deceased was also armed with a sharp-cutting weapon and may be it was he who caused the first blow. The question is, however, totally immaterial once it is held that the case was one of a sudden fight.
9. This being the position, also taken by the State, the conviction of the appellant under section 302, P.
10. P. C. Is altered to one under section 304, Part I, P. P. C. And he is sentenced to R. I. For 5 years under the said section, as suggested by the learned counsel for the State and his conviction and sentence under section 302, P. P. C. Is set aside accordingly. His conviction and the sentence under section 13-D of the Arms Ordinance is also maintained. With the above modification, this appeal is dismissed.