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Criminal Appeal No. 612 of 1982, heard on 16th April, 1985.

‑‑‑S. 302/34‑‑Plea of substituting accused in place of real culprit‑‑First Information Report lodged promptly wherein name of accused, names of eye‑witnesses, weapon used and manner of occurrence detailed‑‑Nothing on record available to show that First Information Report was not written at time and place as it indicated‑‑Eye‑witnesses naming single accused giving probable cause of their presence on spot at time of occurrence, standing test of cross‑examination and no inherent infirmity existing in their statement‑‑Number of injuries found on person of deceased and injured witness commensurating with number of assailants‑‑Weapon of offence (Khanjar) recovered from accused stained with human blood and recovery supported by statement of a witness who had no serious enmity with accused‑‑Investigating Officer also having no animus against accused‑‑No material contradiction existing in statement of recovery witnesses‑‑Held, for all such reasons, accused and none else caused injury on person of deceased which resulted in his death.

‑‑‑S. 302/34‑‑Plea of substitution of accused in place of real culprit‑ Accused though stating that a large number of people collected at scene of occurrence yet producing not a single person to prove his plea that deceased might have received injuries by some of his supporters‑‑No reasonable possibility of version of accused being true existed‑‑Plea rejected.

‑‑‑S. 302/34‑‑No previous enmity existing between parties, occurrence taking place all of a sudden over quarrel between children wherein accused also received injuries at hands of a prosecution witness Accused inflicting only one injury to deceased‑‑Accused, held, committed offence of culpable homicide without premeditation in heat of passion and without having taken undue advantage or having acted in a cruel or unusual manner‑‑Conviction of accused .under S. 302, Penal Code set aside and instead he was awarded conviction under S. 304, Part I, Penal Code and sentence reduced.

Ch. Rafiq Ahmad Bajwa for Appellant.

Sh. Ehsan Ahmad for the State.

Date of hearing: 16th April, 1985.

This criminal appeal arises from the judgment of the learned Additional Sessions Judge, Faisalabad whereby he on 20‑9‑1982 convicted Ghulam Muhammad appellant under section 302/34, P.P.C. for causing death of Mubarik Ali and under section 324, P.P.C. for causing hurt to Shaukat Ali P.W.9 and sentenced him as under:‑

(i) Under section 302, P.P.C. to imprisonment for life and a fine of Rs.5,000 in default thereof further R.I. for two years with the direction that the fine if recovered, half of it be paid to the legal heirs of the deceased as compensation;

(ii) Under section 324, P.P.C. to two years' R.I.

It was directed that the sentences shall run concurrently.

2. The occurrence took place on the night between 22/23‑8‑1980 near Heera Mosque of Chak No. 232/R.B. within the limits of Police Station, Sadar, Faisalabad. The F.I.R. is statement Exh.P.A. of Muhammad Tufail P.W.6, recorded by Muhammad Shafi A.S.I. P.W.11 near Irfan Mills on Samundari Road at 2 a.m. on 23‑8‑1980. Formal F.I.R. Exh.P.A./1 was drawn up by Muhammad Ayub P.W.1 at 2‑45 a.m. on 23‑8‑1980. The distance between the place of occurrence and the police station is six miles.

3. There was no enmity between the deceased and the accused before the occurrence. Just before the occurrence there was Mehfil‑i‑Smah in Heera Mosque of Chak No. 232/R.B. Mubarik Ali deceased, Muhammad Tufail complainant, Shaukat Ali, Muhammad Aslam and Sardar Muhammad P.Ws. were present in that Mehfil. Some children including Riasat Ali brother of the deceased, Yaseen brother of Ghulam Muhammad appellant were playing near the mosque. A quarrel ensued between the brother of the deceased and the brother of the appellant. A child went inside the mosque and informed Mubarik Ali deceased about the quarrel. On this Shaukat Ali deceased and others came out of the mosque. They found Yaseen brother of the appellant quarrelling with Riasat Ali brother of the deceased. Mubarik Ali slapped Yaseen. Ghulam Muhammad appellant who was present nearby took ill of it. He declared that he will take revenge from the deceased and took out knife from the folds and stabbed Mubarik Ali. Before he could repeat the blow, Shaukat Ali P.W. gave him stick blow on the forehead whereupon Ghulam Muhammad appellant inflicted dagger blow on Shaukat Ali hitting on his right hand causing injuries to two fingers. Ghulam Muhammad appellant then ran away from spot. Mubarik Ali chased him x 6'rt fell down at a distance of 20/25 Karams and expired. The occurrence was seen by Muhammad Tufail complainant, Shaukat Ali, Sardar Muhammad P.Ws. and Muhammad Aslam (not produced).

4. On 23‑8‑1980 Dr. Imtiaz Ahmad Gill P.W.14 conducted post‑mortem examination on the dead body of Mubarik Ali and found following injury on his body.

"A stab wound 4 c.m. x 3 c.m. leading‑into the chest between 3rd and 4th ribs. The left lung was cut 3 c.m. x, 3 c.m. through and through. The heart and pericordium was cut. The stomach contained about 6 ounces of semi‑digested food."

In his opinion, the death was due to shock and haemorrhage. The injury was sufficient to cause death in the ordinary course of nature. The death was immediate. The duration between the death and the post‑mortem was 12 hours. The injury .was caused by sharp‑edged weapon. On the same day, the doctor examined Shaukat Ali P.W. and found two incised wounds on right thumb and right little finger. The injuries were caused by sharp‑edged weapon and were simple in nature. On 28‑8‑1980 Dr. A.A. Khalid P.W.5 examined Ghulam Muhammad appellant. He found one lacerated wound 3 c.m. x c.m. bone deep on centre of forehead. The injury was simple in nature caused by the blunt weapon, within 5 to 7 days of the examination.

5. The appellant was arrested on 28‑8‑1980. On 1‑9‑1980, he led to the recovery of blood‑stained Khanjar Exh.P.3 from his Baithak which was taken into possession vide memo. P.H. attested by Abdullah P.W.8 and Muhammad Aslam (not produced). The recovery was effected by Muhammad Shafi A.S.I. P.W.11.

6. To prove its cases the prosecution examined 11 witnesses. Dr. Imtiaz Ahmad Gill P.W.4 has proved post‑mortem report and medico‑legal report of Shaukat Ali P.W.10. Dr. A.A. Khalid P.W.5 has proved medico‑legal report of the injuries on the person of the appellant. Muhammad Tufail P.W.9 and Shaukat Ali P.W. 10 have given the ocular account of the occurrence. They claimed to have seen Ghulam Muhammad appellant giving dagger blow to Mubarik Ali resulting in his death and Khanjar blow to Shaukat Ali P.W. causing hurt to him. Abdullah P.W.8 stated that blood‑stained Khanjar P.3 was recovered at the instance of Ghulam Muhammad appellant. The serologist report Exh.P.M. reveals that the dagger was stained with human blood.

7. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He raised plea of false implication. His version was:‑

"On the night of occurrence there was a Mehfil‑e‑Samah in the Heera Mosque situated in Chak No. 233/R.B. There were hundreds peoples present, from the villages. Accidentally a quarrel took place between the brother of deceased and my brother. Mubarik Ali deceased gave a slap to my younger brother namely Yaseen whereupon I made a protest to the deceased, whereupon we exchanged abuses to each other. Mubarik Ali deceased gave a Sota blow on my forehead and I began to bleed. Mubarik Ali deceased was going to give me another blow with his Sota when some fellow of myself intervened and gave a knife blow to Mubarik Ali deceased in my self‑defence: A large number of people collected at the scene of occurrence. The complainant party in collusion with the police set up a false case against me. All the P.Ws. are related to the deceased, who were not present at the time of occurrence: The dagger P.3 has been planted upon me at the instance of the complainant party. I had also been challaned under section 13 of the Arms Ordinance, 1965 for illicit possession of the aforesaid charge under section 13 of Arms Ordinance, 1965. I shall produce certified copy of the order passed by Rana Abdul Ghaffar M.I.C., Faisalabad, dated 25‑2‑1982."

In defence no witness was produced. The trial Court has believed motive, ocular evidence and recovery witnesses. The trial Court was however of the opinion that it was not a pre‑meditated or pre‑planned murder.

8. The learned counsel for the appellant contended that the eye‑witnesses are not reliable; that the recovery of dagger is fake; that the recovery witnesses are not dependable; that the occurrence in fact took place in the manner as stated by the appellant. In the alternative, the learned counsel argued that the offence committed by the appellant is covered by exception‑IV to section 300, P.P.C. Conversely, the learned counsel for the State supported the judgment of the trial Court.

9. I have considered the arguments advanced by the learned counsel for the parties with care. I find ‑that the F.I.R. was promptly lodged. The name of the appellant, the name of the eye‑witnesses; the weapon used by the appellant and the manner of the occurrence are detailed therein. There is nothing on record to show that F.I.R. Exh.P.A. was not written at the time and place as it indicates. The two eye‑witnesses have given probable cause of their presence on the spot at the time of occurrence and by the fact of injury on the person of Shaukat, his presence on the spot is very much established. They have stood the test of cross‑examination. I do not see any inherent infirmity in their statements. They have named single accused. The number of the injuries found on the person of the deceased and Shaukat Ali injured witness do commensurate with the number of the assailant told by them. The recovery of Khanjar P.3 stained with human blood is supported by the statement of Abdullah P.W. who had no serious enmity with the appellant. The Investigating Officer had also no animus against the appellant. I do not see any material contradiction in the statement of the recovery witnesses. For ail these reasons, the prosecution case and its evidence cannot be excluded from consideration.

10. This brings me to the plea raised by the appellant that the deceased had received injuries by some of his supporters. It merits rejection inasmuch as the appellant has not been able to lay down any foundation for his substitution in the place of real culprit. Although B he has stated that a large number of people had collected at the scene of occurrence yet he did not care to produce a single person to prove the plea taken by him. In his statement, he has not explained the injuries found on Shaukat Ali P.W. The appellant has thus not only failed to establish his version but also there is no reasonable possibility of its being true. For all these reasons I am of the view that Ghulam Muhammad appellant and none else had caused injury on the person of the deceased which resulted in his death.

11. This brings me to the nature of offence committed by the appellant. Having carefully considered this question, I am of the view that the act of the accused is covered by Exception‑IV to section 300, P. P. C. which reads as follows:‑

"Exception 4.‑‑ Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

In the case in hand, I find that there was no previous enmity between the parties; that the occurrence took place all of a sudden over quarrel between the children; that the appellant has also received injury at the hands of Shaukat Ali P.W. and that the appellant inflicted only one injury to the deceased. It is thus very much obvious that culpable homicide was committed without pre‑meditation in a sudden quarrel in the heat of passion and without the appellant having taken undue advantage or having acted in a cruel or unusual manner.

12. The upshot of the discussion is that there being no satisfactory basis to uphold the conviction of the appellant under section 302,1 P.P.C. the same is set aside and instead the appellant is convicted under section 304, Part I, P.P.C. and sentenced to ten years' R.I. and a fine of Rs.5,000 in default thereof further R.I. for two years. The amount of fine when recovered be paid to the legal heirs of Mubarik Ali deceased as compensation. The conviction of the appellant under section 324, P.P.C. for causing hurt to Shaukat Ali P.W. is maintained. The sentence shall run concurrently. The appellant will also get the benefit of section 382‑B, Cr.P.C.

M. Y. H.

Appeal partly accepted.

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