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Criminal Appeals Nos. 41 (Sukkur) and 114 (Karachi) of 1983, decided on 4th December, 1983.

---Ss.302 8 304(I)--Sudden quarrel--Accused inflicting only one knife injury to deceased as a result of sudden quarrel--Accused armed with knife and in a position to inflict more knife blows, if he had intention to kill accused--Offence, held, falls under S. 304(I), P.P.C.--Sentence reduced to 9 years' R.I. in circumstances.

1978 P Cr. L J 803 ref.

Azizullah Shaikh for Appellant.

Imam Bux for the State.

Date of hearing: 28th November, 1983.

Appellant abovenamed, being aggrieved by judgment, dated 23rd April, 1983 of learned Ist Additional Sessions Judge Jacobabad, in Sessions Case No.18-118/79, by which appellant has been convicted under sections 302 and 307, P.P.C. and sentenced to imprisonment for life and fine of Rs. 10,000 or in default to suffer further R.I. for six months and also sentenced to suffer R.I. for 5 years' and to fine of Rs.2,000 or default to suffer further R.I. for 2 months, respectively, has preferred the above appeal, on the following facts and grounds:-

Prosecution story, as per F.I.R. was that complainant was sitting in his house alongwith his wife Mst. Badshahzadi and P.Ws. Haji and A. Nawaz when, at about 4.00 p.m. appellant and co-accused entered in house. Appellant Guloo had knife in his hand and co-accused Shahda was armed with a Lathi. Appellant challenged the complainant that was 'Karol. Then appellant Guloo inflicted knife blow to Mst. Badshahzad and Shahdad gave Lathi blow to complainant. In order to save his wife complainant grappled with appellant Guloo, who diverted his attack complainant and later received knife injuries from appellant Guloo. Complainant succeeded in securing one shoe of Guloo in the struggle. P.Ws. Haji and Ali Nawaz grappled with co-accused Shahdad, but both the appellant as well as co-accused persons succeeded in making their escape good.

The motive for the offence, as alleged in the F.I.R, is that complainant had married Mst. Badshahzadi 10 years ago and had paid compensation in the form of cash and land to her father. Appellant Guloo, wk, is brother of deceased Mst. Badshahzadi, was quite young at that time Ten days before this incident appellant Guloo came to the house of complainant where he was sitting with his wife. On that occasion, Guloo ssid to complainant, that he had abducted his sister Mst. Badshahzadi and married her. He, therefore, demanded the hand of complainant's daughter as compensation. Complainant refused and told him that compensation was already paid to his father. Then Guloo left in annoyance.

Since the appellant pleaded "Not guilty" to the charge against him, prosecution adduced evidence to prove their guilt. They examined witnesses including complainant Muhammad lqbal (Exh.B), Ali Nawaz (Exh.9), Mr. Nisar Ahmed Assistant Mukhtiarkar and Illrd Class Magistrate (Exh.12) Dr., Goda Hussain (Exh.14), Lai Bux (Exh.19), Keley Dino (Exh.23) Tapdar Qadir Bux (Exh.27), Noor Muhammad (Exh.29), and Investigation Officer Rehmatullah (Exh.32). Learned A.P.P. conducting the case on behalf of prosecution gave up evidence of P.Ws. Wazir (Exh.11) and Kamal (Exh.26). After examination of the above-mentioned witnesses, learned A.P.P. closed prosecution side (Exh.33), whereafter statements of appellant as well as co-accused persons were recorded (Exhs.34 8 35).

The complainant produced F.I.R. (Exh.7) and copy of one agreement (Exh.8) P.W. Ali Nawaz produced his statement under section 164, Cr.P.C. (Exh.10). P.W. Mr. Nisar Ahmad produced dying declaration of Mst. Badshahzadi, which he had recorded in the compacity of Magistrate (Exh.13) P.W. Dr. Goda Hussain has produced Medical Certificate in respect of injuries on the persons of Mst. Badshahzadi (Exh.15), comp lainant Muhammad lqbal (Exh.16), co-accused Shahdad (Exh.17) and also post-mortem examination notes in respect of deceased Mst. Badshahzadi (Exh.18). All these certificates were issued by Dr.Moolchand about whom Dr. Goda Hussain has stated that he has migrated to India. Dr. Goda Hussain has deposed that he is well-conversant with signatures and handwriting of Dr. Moolchand,. and that above-mentioned certificates and post-mortem notes are in his handwriting, and bear his signatures. P.W. Lai Bux has produced Mashirnamas (Fxhs. 20, 21 3 22). P.W. Kaley Dino has also produced Mashirnamas (Exhs.24 8 25). Tapedar has produced sketch of Vardat prepared by him (Exh.28) P.W. Noor Muhammad has produced Mashirnama (Exh.30) and inquest report (Exh.31).

Learned trial Court taking into consideration the evidence adduced before it while acquitting co-accused Shahdad convicted arid sentenced the appellant abovenamed as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo of appeal.

The learned Advocate for appellant at the outset submitted, that he was pressing the above appeal on the ground that offence committed by appellant falls under section 304 (1) , P . P. C. and not under section 2, P.P.C. and, therefore, keeping in view, that there was a sudden quarrel and only one stab wound was given, the sentences awarded to appellant are rather harsh.

The learned Advocate appearing for the State on the other hand submitted, that from prosecution evidence on record offence committed by the appellant would fall under section 302, P.P.C. and not under section 304(1), P.P.C.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the Record and proceedings of the learned trial Court as well as the impugned judgment.

I find that prosecution by the statements of P.W.1 Muhammad lqbal and the dying declaration of deceased Mst. Badshahzadi Exh.13, has established beyond doubt that the present appellant gave knife injury to the deceased. However, P.W.1 alleged more than one injuries, but the post-mortem report clearly shows, that the deceased had received only one knife injury, which fact is also corroborated by dying declaration Exh.13. In view of this it is an admitted position, that appellant gave one knife injury to the deceased. It is further clear from the statement of P.W.1 as well as dying declaration Exh.13, that there were certain disputes between the parties inter se and as a result thereof it seems that appellant demanded Rs.500 and ornaments from the deceased just before the incident in question and on her refusal there arose a sudden quarrel between the parties in which appellant gave one injury to his sister Mst. Badshahzadi and to P.W.1 Muhammad lqbal. Although it is on record, that the appellant was armed with knife and as such was in position to give more knife blows to his sister if he had intention to kill her but the medical evidence clearly show, that deceased had received only one knife injury and deceased was real sister of the appellant and no enmity is alleged and as such it seems to be case of sudden quarrel and provocation. In view of this contention of the learned Advocate for the appellant, that the offence committed by the appellant does not fall under section 302, P.P.C. has force, keeping in view the statement of P.W.1 Muhammad lqbal and dying declaration of the deceased, and the admitted fact that there was only one knife injury on the person of the deceased in my opinion. The case reported in 1978 P Cr. L J 803 fully supports my conclusion and I am in respectful agreement with this judgment for reason given therein.

Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellant under section 302, P.P.C. to one under section 304(1), P.P.C. and consequently the sentence awarded to him from life imprisonment to 9 years' R.I. and maintain the fine of Rs. 10,000 imposed on him and in defat7t of payment of said fine to suffer further R.I. for 6 months under section 304(1), P.P.C. and alter his conviction under section 307, P.P.C. to one under section 326, P.P.C. in respect of the injuries caused by the appellant to P.W.1 Muhammad Iqbal and maintain the sentence of imprisonment and fine imposed on this account for causing injuries to P.W.1 as given in the impugned judgment. I further direct that both the substantive sentences awarded to the appellant under sections 304(1) and 326, P.P.C. shall run concurrently. I further direct that the benefits of the provisions of section 302-B, Cr.P.C., in respect of period of detention of the appellant as under-trial prisoner be given to him, towards his substantive sentences in addition to all other remissions to which he may be entitled in accordance with the rules.

The above appeal stands dismissed in the terms of the above judgment.

M.Y.H. Appeal dismissed.

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