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Criminal Appeal No. 204 of 1986, decided on 11th March, 1987.

‑‑S. 304, Part I‑‑Case against accused resting on ocular testimony of complainant who corroborated statement given by him to police which formed basis of first information report‑‑Statements of prosecution witnesses coherent, without ambiguity and not open to objection‑ Accused gave fatal Chhuri blow to deceased who was not armed with any lethal weapon and only gave a Danda blow to accused‑‑Conviction maintained.

P L D 1953 FC 93 ref.

‑‑S. 304, Part I‑‑Sentence‑‑Deceased coming to Wardat armed with a Danda and gave a Danda blow to accused who protected blow on his arms and thereafter gave Chhuri blow to deceased‑‑Accused also received contusion and abrasion‑‑Fight taking place suddenly and there was no previous enmity between parties‑‑Sentence of imprisonment reduced from ten years to five years in circumstances.

1987 P Cr. L J 100.rel.

Azizullah K. Shaikh for Appellant.

Murtaza Hussain for the State.

Date of hearing: 8th March, 1987.

The appellant has filed this appeal against the conviction recorded by an Additional Sessions Judge, Karachi whereby he convicted the appellant under section 304‑1, P.P.C. and sentenced him to undergo R.I. for 10 years and to pay fine of Rs.6,000 in default of payment of fine to undergo R.I. for six months more.

2. The facts in brief are that the first information report was lodged by Farooqur Rehman son of Abdul Rehman deceased wherein it was stated that he used to reside in Jacob Lines alongwith his parents. On 30‑4‑1979 at about 8‑30 p.m. boys of Mohallah were playing in front of his house. Some of the boys fell on the door of his house. He came out of the house and slapped one boy known as Altaf upon which all the boys went away. On the day of occurrence at about 8‑30 a.m. he was sitting m the shop of Yasin Barber, the mother of Altaf approached him and enquired as to why he had slapped Altaf. The complainant narrated the incident to her upon which she went away. In the meanwhile Hyder who was sitting in his Pan Shop said that you are in the habit of beating every one; beat some one before me'. The complainant asked him to be quiet and not to create dispute. When complainant went near accused Hyder, he brought a Chhuri and attacked the complainant which hit him on the back of the right hand. In the meanwhile his brothers Laddan and Razi Hyder alias Challan came there. Laddan caught hold of the complainant and Razi Hyder started causing Danda blows. Upon the cries of the complainant his father Abdul Rehman came there to rescue his son. Challan and Laddan asked Hyder to kill them upon which Hyder gave Chhuri blow on the neck of Abdul Rehman father of the complainant. The report of the complainant was recorded by A.S.I. Mohammad Younis in Jinnah Hospital. After usual investigations the appellant alongwith Wazir Hyder and Razi Hyder was challaned under section 302/307/34, P.P.C. The trial Court acquitted Wazir Hyder and Razi Hyder and convicted the appellant as stated above.

3. At the trial the prosecution examined Farooqur Rehman, first informant, Mohammad Yasin, Qutbuddin, Shahid Ali, Mazhar Khan, Mohammad Ahmad, Mohammad Ghafoor, Ishtiaq Ali, Abdul Shakoor, Shah Ferozuddin, A.S.I. Mohammad Younus, Gul Salam, Dr. Captain Pir Bux, Ghulam Askar Jan, S.I. Mohammad Ayub Bhatti, Barkat Hussain, S.H.O. Chaudhry Mohammad Ashraf. The Court also examined Mohammad Bashir C.W.1 in place of Dr. Mohammad Mujahid Salim as he could not be traced. Two prosecution witnesses Shakeel Ahmad and Usman Ali were given up by the prosecution. The accused in their 342, Cr.P.C. statements denied the allegations. Accused Razi Hyder and Wazir Hyder have taken the plea of alibi. The present appellant Mohammad Hyder took the plea of self‑defence. The death of the deceased is not disputed. It has been established through the statements of the witnesses and supported by the medical evidence. The deceased had received one incised wound 1" x 1/2" x 1/2" penetrating left side neck. The case against the appellant rests on the ocular testimony of the complainant Farooqur Rehman who has corroborated the statement given by him to the police which formed the basis of the first information report. Mohammad Yaseen, Mohammad Ghafoor and Ishtiaq Ali have corroborated the statement of the first informant. There is no ambiguity in the statements of these witnesses. Their statements are coherent and not open to any objection. The plea of self‑defence is not attracted in the present case because the accused had given fatal blow to the deceased. The deceased was not armed with any lethal weapon. He had caused Danda blow to the appellant and in these circumstances the principles laid down in P L D 1953 FC 93 are not applicable in the present case. The appellant has been rightly convicted under section 304‑I.

4. Learned counsel for the appellant has submitted that in the circumstances of the case the sentence is harsh. He has referred to various pieces of evidence in support of his contention. It is recorded by the learned trial Judge that P.Ws. Mohammad Ghafoor and Ishtiaq Ali are independent witnesses and their presence at the scene of offence is not disputed by the defence. The trial Court has also observed that attack on Abdul Rehman was preceded by altercation and exchange of hot words between Farooqur Rehman and Haider. The fight developed between the parties as a result of sudden quarrel. The two parts of incident must have occurred almost simultaneously. The murder of Abdul Rahman must have been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. The defence of the appellant was also considered by the trial Court and it has been observed that it is clear that Abdul Rehman had put himself on wrong side of law and thus Haider was justified in using necessary amount of force for the right of his self -defence, but in view of the medical evidence the learned trial Judge came to the conclusion that the offence falls under section 304‑I.

Abdul Ghafoor in his evidence has stated that deceased had given Danda blow to Haider and he was going backward. He has further stated that Haider had received Danda blows.

P.W. Ishtiaq has deposed that accused Haider was armed with Chhuri and gave blow to Abdul Rehman. Prior to this deceased Abdul Rehman gave Danda blow to accused Haider who protected the blow on his arms and thereafter he gave Chhuri blow to deceased Abdul Rehman. The appellant has received contusion on right arm transverse 5" x 1/2" and abrasion right wrist 1/4" x 1/4". All these facts would clearly show that the fight was sudden. There was no previous enmity between the parties. The deceased came to the Wardat and he was armed with a Danda. He had given Danda blow to the appellant and thereafter the appellant caused knife blow to the deceased. In such circumstances it cannot be weighed in the golden scale as to the gravity of the attack. Learned counsel for the appellant has referred to 1987 P Cr. L J 100 where the sentence was reduced to five years.

5. Keeping in view all the facts of the case the interest of justice would be met if the sentence is reduced to five years. I accordingly reduce the sentence to five years' R.I. and fine of Rs.6,000 in default of payment of fine to further undergo R.I. for six months. If the amount of fine if recovered the same shall be paid to the heirs of the deceased as compensation. The appellant shall also be entitled to the benefit of section 382‑B, Cr.P.C.

With this modification in sentence the appeal is dismissed. The appeal was disposed of by the short order, dated 8‑3‑1987 and the aforesaid are the reasons for the same.

M.Y.H./M‑143/K Appeal partly accepted.

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