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Criminal Revision No. 755 and Criminal Appeal No. 532 of 1980, decided on 7th February, 1984.

Penal Code (XLV of 1860)--

---Ss. 302 a 304, Part I- -ocular testimony truthful and corroborated by a witness who had no direct motive against accused and who gave x, cogent reason for his presence at spot -Occurrence taking place in a broad daylight and accused known to witness previously who felt no difficulty in identifying him--Accused and deceased quarrelling with E ,lch other and accused in heat of passion suddenly causing a solitary blow to deceased which proved fatal--Case of accused falling within Exception 4 to S. 300, Pedal Code--Conviction of accused altered from S. 302, Penal Code, to S. 304, Part I, Penal Code, and sentence of imprisonment reduced to ten years.

Nasir Ali Khan for Petitioners.

Mohammad Akram Ranjha for Respondent

Abdus Sattar for the State.

Date of hearing: 7th February, 1984.

Zafar son of Sardara, caste Kalyar,, aged 15 years, resident of village Wan Miana, has been convicted by the learned Additional Sessions Judge., Sargodha under section 302, P.P.C. and sentenced to life imprisonment and a fine of Rs.5,000 or in default to undergo further R.I . for two years, for the murder of Fateh- Muhammad alias Fatta deceased, on 27-7-1979, at about Peshiwela, with a hatchet in the area of village Wan Miana, P.S. Kotmoman, District Sargodha.

Zafar has filed an appeal while Bashir Ahmad has filed a revision for enhancement of the sentence of the appellant. The,appeal as well as the revision will be disposed of by this order.

2. The prosecution case is that a month prior to the occurrence the goats of Sardara father of the appellant had damaged Bajra crop of the complainant party which led to a physical altercation between the deceased and the appellant.

3. On the day of occurrence at noon time Zafar appellant let loose his cattle in the field of the complainant party. The deceased turned out the cattle and abused the appellant which led to an exchange of abuses between the appellant and the deceased.. The appellant. while leaving that place. challenged the deceased with dire consequences. After the departure . of ..the appellant the deceased and his brother Bashir Ahmad P.W. 7 left for their Betrk. The deceased slept on a cot while Bashir Ahmad, his mother Mst. Mehran and .Sate Y.Ws. started planting paddy. In the meantime the appellant armed with a hatchet came there and gave a hatchet blow on the head of the deceased. The P.Ws. raised an alarm on which the appellant fled away. They saw Baqir (acquitted accused) standing nearby Zafar' appellant. According to the prosecution the appellant had. committed the offence with his connivance. Bashir Ahmad P.W. left 'for the police station and lodged the F.I.R. Exh.P.E. at 5-30 p.m. The distance between the, spot and the police station, being 9 miles.

After recording the F.I.R., S.I, Nazar Hussain Shah P.W.9 reached the spot. He prepared the injury statement Exh. P.H. and the inquest report Exh. P.J. of the deceased. lie effected recoveries from the spot and at-rested the appellant on the following day of occurrence i.e. on 28-7-1979. The appellant was wearing blood-stained shirt P.1 which was secured through memo. Exh.P.B. On the same day the appellant led to the recovery of, blood-stained hatchet P:2 from his Dera which was secured through memo Exh.P.C. attested by Nazra P.W.5 and Saee P.W.8. He got prepared the site plans Exhs. P.A. and P.AII and after completing the investigation challaned the appellant and Baqir accused.

The shirt P.1 and hatchet' P.2 were found to be stained with blood vide. serologist's report Exh.P.L.

3. Dr. Mumtaz Ahmad Malik P. W.6 conducted post-mortem examination on the dead body of Fateh Muhammad deceased (38) on 28-7-1979 aat7-00 a.m. and found the following injuries on his person.

"An incised wound 11 c.m. x 2 c.m. x brain deep on the left side of head 3 c.m. above left ear underlying bone was cut through and through and brain substance was coming out."

The injury was ante-mortem and was caused by a sharp-edged weapon and was sufficient to cause death. The death occurred due to shock and haemorrhage. The time between injury and death was immediate and that between death and post-mortem 24 hours. Exh.P.D. is the post-mortem report. Stomach was empty. Small intestines contained partially digested food. Large intestines contained faecal matter. Bladder contained 2 ounces of urine.

4. The appellant denied the prosecution allegations and attributed the case to enmity. He did not lead any oral evidence in defence but tendered copy of Jamabandi Exh.D.B of Square No. 52 hills No. 5 to show that the said land was lying vacant at the relevant time.

5. The prosecution examined Bashir Ahmad P.W.7 and Saee P.W.8 as eye-witnesses. Nazra P.W.5 testified to the recoveries from the appellant. Nazar Hussain S.I. carried out the investigation.

6. Relying upon the ocular testimony and the recovery witnesses the learned Additional Sessions Judge convicted and sentenced the appellant as stated above.

7. Criticising the judgment, the learned counsel for the appellant contends that the trial Court has erred in relying upon interested testimony without any corroboration and further that there was no motive to commit the crime and the appellant had been challaned merely on suspicion. On the other hand, the learned counsel for the respondent has argued that the attack by the appellant was unprovoked and premeditated and in view of the force used by the appellant in causing the injury he did not deserve any leniency in the matter of sentence.

8. We have carefully examined the ocular testimony. Bashir Ahmad P.W.7 though related to the deceased appears to be a truthful witness. He stands corroborted by Saee P.W.8 who had no direct motive against the appellant. The latter has given a cogent reason for his presence at the spot. According to him he had gone to the field of Bashir Ahmad P.W. to assist him in planting Paddy. Since the occurrence took place in broad daylight and the appellant was known to the P.Ws. previously they would not have felt any difficulty in identifying him. Even otherwise it does not appear to be a case of substitution. There was no reason for the P.Ws. to have let off the real assailant and instead implicated the appellant falsely.

9. The question that calls for determination is as to the manner in which the occurrence had taken place. According to the prosecution the appellant had let loose his buffaloes in the field of the complainant party at noon time which led to an exchange of abuses between the appellant and the deceased and it was at late Peshiwela that the appellant came to the spot and attacked the deceased. In cross-examination Bashir Ahmad P.W. stated that it was the month of Ramazan and he and the deceased were fasting but the presence of partly digested food in small, intestines of the deceased throws a suspicion on the prosecution story' with regard to the time of occurrence. In the month of July when the occurrence took place, the Sehri time would have ended by 3-30 a.m.

and if the deceased was fasting, the food taken by him must have been completely digested within 6 to 7 hours and under no circumstance partly digested food could be found in the small intestines till late Peshiwela, the alleged time of occurrence. This circumstance shows that the P.W. are not coming out with complete truth and have intentionally changed the time of occurrence to show that the accused appellant had come prepared with the intention of committing the murder, but the medical evidence contradicts them. In all probability it appears that at noon time the appellant and the deceased had quarrelled with each other and _ the appellant in the heat of passion, on a sudden quarrel caused a solitary blow to the deceased which proved fatal. Accordingly, we hold that the case would fall within Exception 4 to section 300, P.P.C. and in consequence alter the conviction of the appellant from section 302 to section 304, part I Pakistan Penal Code and sentence him to ten years' R.I. with benefit of section 382-B, Cr. P. C. With the above modification in the sentence one appeal is otherwise dismissed.

10. So far as the revision for enhancement of the sentence is concerned, we think that the ends of justice will be met if the amount of fine is enhanced. We order accordingly, and increase the fine from its.5,000 to Rs.30,000 (Thirty thousand) or in default to undergo three years' R.I.

The entire amount of fine shall be paid to the legal heirs of the deceased as compensation. The Collector concerned is directed to take necessary steps for its realization and payment.

The appeal and the revision stand disposed of in the above terms.

M . Y . H .

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