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Criminal Appeal No.58 of 1986, decided on 10th November, 1986.

------S.302 read with S.300, Exception 4 & S. 304, Part II--Sudden fight--No previous enmity between accused and deceased and actual occurrence took place all of a sudden after exchange of hot words between them‑‑Accused caused a single injury on hip of deceased with an ordinary knife‑‑Accused having no intention to take life of deceased, conviction under S. 302, P.P.C. altered for offence under S. 304, Part II, P.P.C. in circumstances.

Muhammad Rauf for Appellant.

A.I. Qarni for the State.

Mustahsan Siddiqui for the Complainant

Date of hearing; 10th November, 1986.

Complainant Abdullah lodged a report on 1‑2‑1979 at about 4‑30 p.m. alleging therein that a quarrel took place between the accused and the deceased on which the accused took out a knife and gave knife blow on the right thigh of the deceased in presence of P.W.s. Ibrahim and Haji Yaqoob P.W.s. Faqir Muhammad, Shakil and Kaloo also arrived at the spot, The accused made good his escape. The injured was shifted to the hospital where he died on the same day. A.S.I. Shah Nazar registered the cane. Investigation was conducted by the S.H.O. The accused was arrested on the same day. He was wearing blood‑stained shirt which was secured in presence of Mashire Shakil Ahmed and Ramzan vide Exh.s/A. Thereafter, the accused led the police to his house from where knife was recovered from the courtyard of the house. Knife was sent to the Chemical Examiner. After usual investigation the case was challaned. P.W. Syed lqbal examined the injured and found the following injuries on his person,‑---

"One incised wound on right thigh upper 1/3 measuring 2" x 1/4" muscle deep".

After the death of the deceased post‑mortem was conducted and the opinion of the doctor is recorded as under:‑---

"The injury was dangerous to life in nature. Duration of the injury was fresh. The wound seemed to have been caused by sharp‑edged weapon ouch as knife, Churri or dagger, External injury No.1 was sufficient to cause death in normal course of nature."

2. At the trial, the prosecution examined complainant Abdullah P.W.1, Hag Yaqoob P.W.2, Ibrahim P.W.3, Muhammad Ramzan P.W.4, Muhammad Aslam P.W.5, Jiand alias Kaloo P.W.6, Islamul Haq S.I. P.W,7, Shah Nazar A.S.I, P.W.8, Syed lqbal Ahmed P.W.B and Imdad Ali P.W,10.

The accused was examined under section 342, Cr P. C. and he denied the prosecution allegation. The accused produced two witnesses in defence D.W.1 Abdul Rasheed and D.W.2 Malik Abdul Aziz.

The death of the deceased has not been denied. It has been established through the ocular testimony as well as medical evidence.

The learned trial Judge on the assessment of the evidence convicted the appellant under section 302, P.P.C. and sentenced him to life imprisonment and fine of Rs.5,000 and in default of payment of fine to suffer R.I. for six months. It was further ordered that the appellant should pay compensation of Rs.10,000 to the heirs of the deceased Hussain and in default to suffer R.I. for six months.

In order to bring home, the charge against the appellant, the prosecution relied upon the ocular testimony of P.W. Abdullah, Haji Yaqoob and Ibrahim, recovery of the knife at the pointation of the accused and the motive. The trial Court accepted the ocular testimony and the recovery but discarded the motive. The trial Court has observed that the murder has been committed due to sudden quarrel and without any long standing enmity, moreover the knife used in the crime is small one and the injury caused to the deceased is on the thigh. These circumstances were considered as mitigating circumstances for awarding lesser penalty as he was not awarded the capital punishment.

3. The learned counsel for the appellant has contended that the learned trial Judge has mis-assessed the evidence because the evidence on record clearly establishes that the case falls under section 304‑II. There is considerable force in the contention of the learned counsel. To appreciate the contention, it would be necessary to refer to the ocular testimony. P.W.1 Abdullah has deposed that on the day of occurrence he saw the deceased and the accused. They were exchanging hot words. He and Ibrahim asked them not to quarrel. Accused gave a fist blow to the deceased and then stabbed him with knife on chest. In the meantime Yaqoob also arrived at the spot. P.W. Haji Yaqoob has corroborated the statement of the complainant. He has deposed that there was quarrel between the accused and the deceased and the accused gave a knife blow on the hip of the deceased. P.W. Ibrahim has also corroborated the statements of these two witnesses. According to this witness Hussain told him that Abdul Aziz was unnecessarily abusing him. He separated them and he had gone hardly 10 paces when he heard noise and saw that accused gave knife injuries to the deceased. There is only one knife injury on the person of the deceased and that injury was also not on the vital part of the body. Fight was sudden. There was exchange of hot words between the accused and the deceased. Thus, prior to the occurrence, there was no previous enmity between the parties and the learned trial Judge has also observed these facts in the judgment. The blade of the knife was also considered by the learned trial Court in awarding the sentence of life imprisonment. In these circumstances, the appellant could not be saddled with the charge of murder.

Learned counsel appearing on behalf of the State has conceded that the offence falls under section 304‑II. The circumstances given above would clearly indicate that the accused had no intention to take the life of the deceased. The size of the knife was small as observed by the trial Court. There was only one injury and it is also not on the vital part, though the injury proved fatal. However, as the accused has caused the injury with a sharp cutting weapon, therefore, he had the knowledge that the injury might result into the death of the deceased, therefore, while maintaining the conviction, I alter the same to section 304, Part II and sentence him to R.I. for seven years and fine of Rs.1,000 in default of payment of fine to suffer six months more. The appellant should also pay Rs.5,OC0 as compensation to the heirs of the deceased and in default six months more. The appellant will also be entitled to the benefit of section 382‑B, Cr.P.C.

S . G . D . ( 5110/ K) Order accordingly.

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