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Criminal Appeal No.1404 of 1980, decided on 21st April, 1984.

---Ss.302, 300, Exception 4 & 304, Part I--Sudden fight--Admittedly before using knife both accused and deceased entering into altercation and abusing each other but who abused first not known--Conviction under S.302, P.P.C. altered to one under S. 304, Part I, P.P.C. in circumstances.

Dr. Khalid Ranjha for Appellant.

S. Zulfiqar Haider for the State.

Syed Sajjad Raja Jafery for the Complainant.

Date of hearing: 29th February, 1984.

Muhammad Inayat son of Ghulam Muhammad and Ijaz Ahmad son of Allah Ditta, Jat by caste, residents of Mauza Thatta Musa, District Gujrat, were tried for the house trespass as well as murder of Muhammad Aslam, by the Additional Sessions Judge, Gujrat. The trial Judge, by judgment dated 30-10-1980, found Ijaz Ahmad guilty under sections 452 and 302, P . P. C . He was sentenced to one year R.I. for the former offence and for the latter he was awarded imprisonment for life and a fine of Rs.3,000; or in default one year R.I. He was also directed to pay Rs.3,000 as compensation to the legal heirs of the deceased; or, in default further R.I. for one year. Muhammad Inayat was acquitted.

2. The convict has filed appeal against his conviction and sentence. Javed Iqbal has filed revision (Crl. Revision No.609/82) against the acquittal of Muhammad Inayat. Both the matters shall stand disposed of by this judgment.

3. The occurrence took place on 22-6-1976 at Mari Degarwela in front of the house of Muhammad Aslam in village Thatta Musa, three miles away from Police Station Jalalpur Jattan. Report (Exh.P.B.) was lodged by Ali Ahmad. It was recorded by Manzoor Hussain, Sub- Inspector.

4. The dispute between the deceased and the accused pertained to a drain which passed in front of the house of deceased. It contained sullage water. The water from the handpump of the complainant used to flow near the house of the accused. Muhammad Aslam told Ijaz Ahmad and Inayat not to fill the drain. They did not listen to that. This was the motive for the occurrence.

5. Ali Ahmad who lodged the F.I.R. died before the trial commenced, Prosecution examined Mst. Irshad Bibi wife of the deceased; Amjad Parvez son of the deceased and Ghulam Rasul uncle of the deceased as eye-witnesses. Blood-stained knife P.4 was also recovered at the pointing out of the appellant which was found to be stained with human blood.

This evidence was also used against him, and finally the post-mortem report of the deceased.

6. The appellant denied the charge. He pleaded not guilty. He said that he had been falsely implicated due to strained relations with the complainant. However, no evidence was led in defence.

7. Irshad Bibi's statement before the Trial Court was that she alongwith her husband Muhammad Aslam deceased, her son Ahmad Pervez and Ali Ahmad maternal-uncle of her deceased husband were coming to their house from the Dera. When they reached near their house they found the accused filling the drain. It contained sullage water which used to pass in front of the house of the accused. Muhammad Aslam objected to that. Thereafter, the appellant and the deceased exchanged abuses. Ghulam Rasul, neighbour of Irshad Bibi turned up. Irshad Bibi, Amjad Parvez and Ali Ahmad went inside the Haveli. When Muhammad Aslam was trying to step in and had just entered the threshold, Inayat challenged him and caught hold of him from behind. Ijaz gave a knife blow. He was hit in the left side of the chest. Aslam fell down. Appellant and the acquitted accused ran away towards their house. The appellant took the knife with him.

8. Amjad Parvez supported her mother. He gave the same story. He also deposed that when his father just entered the door, Inayat caught hold of him from behind and the appellant inflicted a knife blow in the left side of his chest. He fell down and breathed his last. The accused ran away.

9. Mother and the son are further supported by Ghulam Rasul. His house was adjacent to the house of the deceased. He heard some noise from the lane; came out; went to the door of deceased's house and saw that acquitted accused Inayat was holding Muhammad Aslam while Ijaz gave a knife blow in his chest. Ghulam Rasul also found Irshad Bibi, Amjad Parvez and Ali Ahmad there. Muhammad Aslam died instantaneously in his presence.

10. Ijaz Ahmed when examined by the trial Court admitted that his co-accused (acquitted) was son of his step-uncle. He denied the occurrence and when questioned that after the occurrence he was not available at his house and had left for Karachi where he was employed in the Army and was arrested from there by Zulifqar A.S.I. on 28-6-1976, he admitted that he was arrested from Karachi but said that he was not present at the spot. He denied the recovery of knife. He said that it had been planted upon him in order to strengthen the prosecution case. He further said that he had been falsely implicated due to enmity. His relatives belong to the opposite group of Ch. Muhammad Yousaf, a retired D.S.P. who was politically opposed to Ch.Zahoor Elahi. The D.S.P. falsely implicated him in this case. He said that he had come to his village but on account of expiry of the leave period he left his village on the morning of the day of occurrence. He further stated that he had been involved by the complainant under the impression that he was still in the village.

11. Learned counsel for the appellant, at first tried to argue for the acquittal of the appellant, on the ground that all the three eye witnesses were blood relations. They were interested. Relations of the parties were strained. No independent evidence was produced. In the alternate, he took up the plea of sudden fight. He submitted that there was no premeditation. The fact that one blow was given to the deceased shows that he had no intention to kill but being enraged he lost control over him and attacked the deceased.

12. Learned counsel also tried to take some benefit of the altercation and the abuses between the deceased and the appellant.

13. I am certain that it is not a fit case for acquittal because the ocular evidence leaves no room for doubt that Muhammad Aslam was knifed to death by the appellant.

14. At the same time I think there is good deal of force in the submission of Dr.Khalid Ranjha that it was a sudden fight. Prosecution's own case is that before the knife was used, the appellant and the deceased abused each other. An altercation took place. Who abused first, it is not known. I am, therefore, of the view that conviction and sentence under section 302, P . P. C . , is not called for in this case.

Lesser sentence would meet the ends of justice.

15. The conviction under section 302, P.P.C., is accordingly altered to section 304, Part I, P.P.C., and the sentence is reduced to ten years' R . I .

16. The period of his detention as under-trial prisoner shall be deducted from the term of his sentence.

17. The conviction and sentence under section 452, P.P.C., is maintained. It shall run concurrently.

18. The fine imposed by the trial Court was not reasonable. I, therefore, give notice to the appellant's counsel to show cause why the amount be not enhanced. Learned counsel accepted the notice. The fine is accordingly enhanced to Rs.20,000 (twenty thousand) which shall be paid in full, as compensation to the legal heirs of the deceased.

19. The Collector concerned shall take immediate steps for realization of the amount and its payment. On payment, he shall inform the Registrar of this Court.

20. The revision filed by the complainant has no merit. It is dismissed in limine.

S. G. D. Appeal dismissed.

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