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Criminal Appeal No. 46 of 1983/BWP, heard on 9th February, 1985.

‑‑‑Ss. 302 & 304, Part I‑‑Single accused involved in case‑‑No other reason present for substitution of accused for real culprit especially when he being closely related to complainant‑‑Incident taking place at spur of moment out of a sudden quarrel and sudden fight ensued‑‑Case of accused falling under Exception 4 to S. 300, P.P.C. and punishable under S.304, Part I, P.P.C.‑‑Conviction of accused altered from 5.302, P.P.C. to one under S. 304, Part I, P.P.C. and sentence reduced from life imprisonment to 10 years in circumstances.

Appellant through Jail.

Nazir Ahmad Bhatti, .A.A.‑G. for the State.

Date of hearing: 9th February, 1985.

Shah Muhammad the appellant has preferred this appeal through jail against his conviction under section 302, P.P.C. and the sentence of life imprisonment ordered by the learned Additional Sessions Judge‑141, Bahawalnagar, on 21‑4‑1983. The appellant was directed to pay a fine of Rs.3,000 or in default thereof to undergo one year's R.I. Out of this fine, if recovered, Rs.2,000 were directed to be paid to the heirs of the deceased by way of compensation as envisaged under section 544‑A Cr.P.C.

2. The facts, which led to the detection of this crime in substance are that on 26‑3‑1977, at about 9‑00 a.m., Mst. Zulaikhan, the sister of Abdus Sattar complainant went to the village pond in order to bring clay for the purpose of plastering their house. Shah Muhammad, who happens to be her maternal‑uncle's son cut obscene jokes with her. She complained this matter to her brother Abdus Sattar, who went to the village pond in the company of Muhammad Nazir, his uncle. Both of them asked as to why he had pestered Mst. Zulaikhan and had obscene talk with her. Shah Muhammad replied that he would repeat his nefarious act and, the complainant and Muhammad Nazir abraided him. Shah Muhammad felt incensed and gave a hatchet blow on the head of Muhammad Nazir, who fell down and. died in the hospital on 1‑10‑1977.

3. The appellant was arrested, who led to the recovery of a hatchet Exh.P.1 from his Bajra crop. The police got examined Muhammad Nazir and Dr. Muhammad Rafiq P.W.6 found the following injury on his head:‑

"(1) An incised wound 9 c.m. x 1 c.m. x skull bone cut completely on the left side of the head."

The autopsy was performed by Dr. Wahid Bakhsh P.W.8, who also found the same injury on the head of Muhammad Nazir. The injury, according to this doctor was ante‑mortem and was sufficient to cause death in the ordinary course of nature. After the completion of the investigation, the appellant was challaned and as a sequel to the impugned trial, he was awarded the aforementioned punishment.

4. In this case, Abdus Sattar P.W.2, who is the complainant has stated that the appellant happens to be their maternal cousin and he had cut indecent jokes with Mst. Zulaikhan and when he and Muhammad Nazir went to the village pond to ask him why he had made disgraceful remarks, the appellant replied that he was motivated by the sense of revenge as his wife was also dishonoured in the same fashion. Abdus Sattar P.W.2 has added that an altercation took place and the appellant gave a hatchet blow on the head of Muhammad Nazir, who subsequently died in the hospital. Noor Hassan P.W.3 was present in the village pond at the time of: this occurrence and he has completely corroborated the prosecution version put forth by the complainant. He" is also a recovery witness of the hatchet P.1. This recovery' stands endorsed by Rana Imdad Ali P.W.9, who got recovered the weapon of offence on the pointation of the appellant.

5. It is a case of single accused. There was no other reason why the appellant was substituted for the real culprit especially when he was closely related to the complainant. It appears that the incident took place at the spur of the moment out' of a sudden quarrel and sudden fight ensued. The case of the appellant falls under Exception IV to section 300, P.P.C. and is punishable under section 304, Part I, A P.P.C. as he had intended to take the life of Muhammad Nazir. I, th6refore, alter the conviction from section 302, P.P.C. to one under section 304, Part I, P.P.C. and sentence him to ten years' R.I. The amount of fine and compensation as ordered by the learned trial Court remains unaltered. The appellant can have the benefit of section 382‑B, Cr.P.C. The appeal is partly accepted. The result of this appeal may be communicated to the appellant in jail.

H. A

Appeal partly accepted

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