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Criminal Appeal No. 248 of 1981, decided on 7th November, 1982.

S. 302 read with Ss. 304, Part I & 300, Exception IV‑Murder--- Sudden quarrel‑Offence, alteration of‑Both accused and deceased involving in sudden quarrel and fight and in course of such quarrel accused giving knife blows to deceased‑Admittedly accused also having injuries on his person when arrested soon after incident--- Offence committed by accused, held, would fall under S. 304, Part I, P. P. C. and not under S. 302, P. P. C., in circumstances‑ Sentence of imprisonment for life also reduced to 8 years' rigorous imprisonment.

1976 S C M R 191 ref.

I. A. Hashmi for Appellant.

Sohail Muzafar for the State.

Date of hearing : 1st November, 1982.

The appellant above‑named, being aggrieved by judgment dated 4th November, 1981, of the learned Vth Additional Sessions Judge, Karachi, in Sessions Case No. 34 of 1977, by which appellant has been convicted under section 302, P. P. C. and sentenced to suffer life imprisonment, has preferred the above appeal, on the following facts and grounds :‑

2. The facts of the case as disclosed in the F. L ‑R. are, that comp lainant R. M. James is employed as a driver in P. I. A. On 27th November, 1976, at about 5 p. m., he was returning to his house and when he reached at the crossing of Streets Nos. 2 and 3, he saw a crowd of people standing there. He saw his nephew Rashid lying injured on the ground: He also saw appellant Ilyas son of Jalal Din running away towards his house, with a knife in his hand. P. Ws. Saleem, Bashir, Yousuf and others, who were standing at the place, of occurrence, told him, that appellant Ilyas was abusing deceased Rashid and when Rashid told him not to abuse him, appellant Ilyas gave him knife blows on his chest, at the location of heart, as a result of Which Rashid fell down. He carried injured Rashid to the hospital, but he died on the way. Complainant then lodged such report at ‑Police Station, Mehmoodabad, which was recorded by S. H. O. Nisar Ahmed. S. H. O. proceeded to the scene of offence which was, shown to him, by the complainant in presence of Mashirs Saleem and Bashir. He then proceeded to Jinnah Hospital where dead body of deceased Rashid was lying. He prepared the Mashirnama of inspection of dead body and inquest report in presence of same Mashirs. He sent the dead body to Civil Hospital, Karachi, for post‑mortem examination and certificate through Constable Khudadad. He then returned to the place of occurrence, where he recorded statements of P. Ws. Saleem, Bashir, Muhammad Zartaj, Nazir, ‑Yousuf and Shafqat. On the same day at about 11 p. m., he arrested appellant Ilyas. Appellant was wearing a shirt and a pant which were stained with blood. He secured his blood‑stained shirt and pant in presence of Mashir Muhammad Zartaj and Nazir and prepared such Mashirnama. The appellant then voluntarily led the S. H. O. and Mashirs to his house situated at Azam Basti, Karachi, from where he took out a blood‑stained knife lying under a T. V. set which was placed on the table and produced it before S. H. O. S. H. O. secured the knife and prepared such Mashirnama in presence of Mashirs Saleem and Bashir. On 9th December, 1976, he got 164, Cr. P. C. statements of P. Ws. Saleem, Bashir, Muhammad Zartaj and Shafqat recorded in the Court of A. C. M. No. 13, South Karachi. He had sent the blood‑stained knife and blood stained clothes of the appellant to the Chemical Analyser. He has pro duced the Chemical Analyser's report which shows, that the above articles were stained with human blood. On 9th December, 1976 he challaned the appellant in Court.

3. The appellant pleaded not guilty to the charge and claimed to be tried. In his statement under section 342, Cr. P. C: he denied the case of the prosecution and professed his innocence.

4. Prosecution examined complainant R. M. James (P. W. 1), Muhammad Zartaj (P. W. 2), Bashir (P. W. 3), Saleem Masih (P. W. 4), Dr. Hassan Javeed (P. W. 5), Shafqat Mash (P. W. 6), Khudadad (P. W. 7), Investigating Officer Nisar Ahmed (P. W. 8) and Dr. Naimat ullah (P. W. 9).

5. Appellant did not lead any defence.

6. The learned trial Court taking into consideration the evidence adduced by the prosecution convicted the appellant above‑named, as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. of appeal.

7. The learned Advocate for the appellant in support of the above appeal submitted as under :‑

(a) That the conviction of the appellant under section 302, P. P. C. was not at all warranted and the case against the appellant would fall under section 304 (I), P. P. C. only, in view of the facts of the incident as disclosed in F. I. R. as well as by the prosecution witnesses. In support of this contention the learned Advocate for the appellant relied upon case reported in 1976 S C M R 191.

8. The learned Advocate appearing for the State supported the above contention of the learned Advocate for the appellant and submitted that the appellant ought to have been convicted under section 304 (I), P. P. C. and not under section 302, P. P. C. and in view of the facts and circum stances of the incident in question, the sentence awarded to the appellant may be reduced, as it may be deemed fit by this honourable Court.

8‑A. I have taken into consideration the .above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as through the impugned judgment and the case cited by the Advocate for the appellant.

10. It is very clear from the statements of P. Ws. Muhammad Zartaj, Inayat Masih and Saleem Masih, that there was sudden quarrel and fight between the deceased and the appellant and in the course of said quarrel appellant gave knife blows to the deceased. It is also admitted position that appellant also had injuries on his person, when be was arrested soon after the incident. Keeping in view these facts, which are on record, I final great force in the contention of the learned Advocate for the appellant., that offence committed by appellant would fall under section 304 (I)',1 P. P. C. and not under section 302, P. P. C., as held by the learned trial Court. The case reported in 1976 S ‑C M R 191, on which the learned Advocate for the appellant has relied in this connection, fully suppors his, contentions in this connection.

11. The learned Advocate for the appellant has not attacked impugned judgment on merits. I also find that prosecution by evidence of P. Ws. examined before the learned trial Court established its case; that appellant gave injuries in question to the deceased, which resulted in his death.

12. Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellant from under section 304 (I), P. P. C. and keeping in view the evidence of prosecution witnesses brought on record regarding the manner in which incident took place and the length of the trial, in my opinion maximum punishment is not called for in the present case and consequently I alter the sentence of the appellant from life imp risonment to one for 8 year's R. I. and impose fine of Rs. 2,000 in default to suffer further R. I. for six months. I further direct that the benefit of provisions of section 382‑B, Cr. P. C. be given to the appellant in respect of his period of detention as undertrial prisoner, after due verifications, towards his substantive sentence, in addition to all other remissions to which appellant may be entitled in accordance with rules.

Order accordingly.

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