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Criminal Appeal No. 182 of 1979, decided on 17th October, 1985.

‑‑‑S. 302‑‑Evidence of eye‑witnesses, supporting prosecution case, corroborated by medical evidence‑‑Recovery not believed by trial Court on ground that as per Chemical Examiner's report blood was not found on knife‑‑No enmity existing between parties‑‑Evidence of eye‑witnesses not challenged by defence‑‑Case against accused proved beyond any shadow of doubt‑‑Fight taking place suddenly on exchange of harsh words between deceased and accused, who gave single blow to deceased which proved fatal‑‑Witnesses nowhere stating that accused attempted to repeat blow‑‑Conviction of accused altered from S. 302, P.P.C. to S. 304, Part I, Penal Code.

1975 P Cr. L J 820; 1976 S C M R 497; 1979 P Cr. L J 536; 1979 P Cr. L J 197 and 1971 S C M R 476 ref.

‑‑‑Ss. 302 & 304, Part I‑‑Sentence‑‑Accused remaining in jail for four years before conviction‑‑Accused also remained in jail for two years after conviction before he was released on bail‑‑Sentence reduced to period already undergone.

Sharafuddin Ada for Appellant.

Gul Bahar Korai for the State.

Date of hearing: 6th October, 1985.

Mr. Manzoor Ahmed Shaikh ex‑officio, Additional Sessions Judge, Sukkur, vide his judgment, dated 17th May, 1979, convicted the appellant Muhammad Ali under section 302, P.P.C. and sentenced him to imprisonment for life and a fine of Rs.1,000 or in default to suffer further imprisonment for six months. The convict has filed this appeal.

2. The occurrence is stated to have taken place at 11‑00 p.m. or 11‑2‑1975 in the house of appellant, situated in Mohalla Tando Billand, Ghotki town. The report was lodged by Muhammad Murad, maternal‑uncle of appellant on the same night at 11‑30 p.m. He has stated that on the day of incident he and his brother Alif had gone to Sukkur from where they returned in the evening. At about 10‑00 p.m. he came to the town where Alif and his cousins Mehrab and Abdul Aziz met him. While they were talking there came his brother Jagan and complained that their sister's son Muhammad Ali (appellant) is harrassing him daily. On knowing this they all went to the house of appellant in a Tonga of Jagan, where they met Serdaro and asked him to prevent his son from fighting with Jagan. In the meanwhile appellant came and he was asked to be ashamed as he being sister's son is fighting with Jagan, upon this Muhammad Ali and Alif while talking exchanged harsh words. Muhammad Ali (appellant) went inside the house and brought knife and gave blow to Alif which hit him on stomach and he fell down. Complainant and others brought Alif to hospital where he died.

3. Prosecution in support of its case examined P.W.1 Muhammad Murad complainant, P.W.2. Jagan, P.W.3. Abdul Aziz as eye‑witnesses. P.W.4. Muhammad Sharif is corpse bearer. P.W.5. Muhammad Amin H.C. was incharge at Police Station, Ghotki. He recorded F.I.R. Exh.8 of Muhammad Murad P.W.6, Shaft Muhammad Shah acted as Mashir of inquest of dead body of Alif. The Mashirnama and inquest are Exhs. 18 and 19. He made Mashir of Vardat and produced Mashirnama as Exh.20. He acted as Mashir of arrest of appellant and produced Mashirnama Exh.21. He has stated that appellant produced knife having some blood. Mashirnama is at Exh.22. P.W.7 Muhammad Ali was Medical Officer, Ghotki. He conducted post‑mortem on the dead body of Alif on 12‑2‑1975 at 10 a.m. and found one incised stab wound 3/4" x 1/2" on the left side of abdomen 3" on the left of umblicus caused by a sharp‑cutting weapon such as knife. He has stated that injury was sufficient in the ordinary course of nature to cause death and injury was anti‑mortem. P.W. Nadir Shah is second Mashir P.W.9 Tapedar Gohar Ali prepared sketch and produced it as Exh. 29, P.W.10 Tajamul Hassan was S.H.O. Ghotki Police Station. He investigated the case and challaned the appellant. He has produced chemical examiner's report Exh.31. which shows that blood was not detected on knife.

4. Appellant in his statement under section 342. Cr.P.C. Exh.34 has denied the allegations and stated that witnesses are interested and have deposed due to Sangebandi disputes. He has not examined any witnesses in his defence.

5. The evidence of these eye‑witnesses Muhammad Murad, Jagan and Abdul Aziz have been believed by the trial Court and convicted the appellant.

6. Mr. Sharafuddin Ads, appearing for the appellant contended that the incident took place all of sudden on the spur of the moment therefore offence will fall under section 304, P.P.C. He argued that appellant has remained in Jail for more than 6 years. Therefore, lenient view may be taken. He has cited cases reported as 1975 P Cr. L J 820, 1976 S C M R 497; 1979 P Cr. L J 536; 1979 P Cr: L J t97 and 1971 S C M R 476. He does not press the appeal on the merits.

Mr. Gul Bahar Korai appearing for the: State argued that eye‑witnesses have fully supported the case. His contention is that incident took place after appellant and deceased exchanged harsh words therefore, offence comes under the preview of section 304, P.P.C.

The material evidence in this case is of these eye‑witnesses corroborated by medical evidence.

Complainant Muhammad Murad Exh. 7 has stated that deceased Alif was his brother while appellant is his sister's son. On the night of incident he alongwith his brother Jagan cousins Abdul Aziz and Mahrab went to the house of appellant where they met his father and told him to prevent upon appellant not to fight with Jagar They were about to return when appellant arrived there and deceased Alif told him that he should be ashamed of his attitude as he was unnecessarily fighting with his maternal‑uncle. On this appellant straightaway entered his house and returned in a moment and stabbed deceased Alif and ran away with his knife. P.W. Jagan has stated that he ply Tonga at Ghotki. Appellant fought with him before the incident. On the day of incident he alongwith Muhammad Murad, Abdul Aziz, Mehrab and deceased Alif went to the house of parents of appellant to complaint against him. They met Sardaro father of appellant who promised to reprimand appellant, while they were returning there came appellant. The deceased Alif told him that it was unfair on his part to quarrel with Jagan. On that they exchanged hot words thereafter appellant went inside the house. He returned with knife in his hand and gave blow to Alif and ran away. Eye‑witness‑Abdul, Aziz Exh.12 has corroborated the version given by Muhammad Murad and Jagan. He has stated that on complaint of Jagan they went and met Sardaro the father of appellant who promised to reprimand Muhammad Ali. Soon after appellant came and started talking roughly on which Alif asked him to feel ashamed of his action as he twos misbehaving with his maternal‑uncle. On this appellant went inside his house and came out with a knife and gave blow to Alif. he has stated that appellant is son of his cousin.

The other evidence is of formal nature. The recovery has not been believed by the trial Judge on the ground as per, Chemical Report that the blood was not found on knife.

Complainant Muhammad Mured, P.W. Jagan are real maternal uncles of appellant P.W., Abdul Aziz is cousin of complainant and appellant is his cousin's son. The deceased Alif was brother of complainant and Jagan and maternal uncle of the appellant. The witnesses 'have fully supported the case and their evidence has been fully corroborated by medical evidence as already discussed in the above para. of this judgment. There is no enmity between the parties as such the witnesses have no reason to implicate their own nephew falsely in a murder case. The evidence of eye‑witnesses has not been challenged by the defence. The case against the appellant hag been proved beyond any shadow of doubt.

This appeal has only been 'pressed on the ground that fight was sudden and there was exchange of harsh words between deceased Alit and appellant thereafter he gave single blow to Alif which resulted‑in his death, Their before the offence will fall under section 304, P.P.C. There is force in the arguments as there was no other motive except that deceased and appellant exchanged harsh words. This has been admitted by witnesses that deceased asked appellant to be ashamed of fighting with maternal‑uncle thereafter he "went inside his house and trough knife and caused single blow to Alif deceased due to which he died. The witnesses have nowhere stated that appellant attempted to repeat the injury. In case o: Talib Hussain and 2 others v. The State reported in 1979 P Cr. L J 197, the death sentence of accused Talib was not confirmed as allegation against him was that he caused single blow 'to deceased. He was convicted under section 304‑II, P.P.C.

In case of Muhammad Ayyub alias Ayuba v. The State reported in 1979 P Cr. L J 536: The conviction under section 302, P.P.C. was altered to under section 304(1) as the fight was sudden without, premeditation as one blow was caused to deceased‑on‑neck. The appellant was sentenced to 7 years.

The case of Masoom Bag v. Muhammad Munir and another reported in 1971 S C M R 476 is also relevant. In that case quarrel was sudden arid it was held that case falls under exception 4 to section 300 and conviction was rightly altered by High Court from section 302 to 304, Part I, P.P.C.

For the aforesaid reasons, the conviction of appellant Muhammad Ali is altered from 302 P.P.C. to 304(1), P.P.C. The record shows that appellant was arrested on 11‑2‑197.5 and was in jail upto 1‑6‑1979 till he was convicted. He also remained in Jail for two yeas after conviction and eras ordered to be released on bail on 1‑6‑1981. Accordingly he remained in Jail for 6 years and more than 3 months. This case is of ten‑years bid: The appellant is given benefit of section 382‑B, Cr.P.C. He is sentenced to period already undergone and ordered to pay fine of Rs.1,000 or in default td suffer R.I. for .6 months and in addition he should pay Rs.5,000 as‑compensation as provided under section 544‑A, Cr.P.C. to heirs of Alif, in default to undergo six months' R.I.

M. Y. H. Appeal partly accepted.

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