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Criminal Appeal No.177 of 1987, decided on 15th June, 1987.

---S.304, Part 1--Culpable homicide--Conviction of accused found to have been rightly recorded--Counsel for appellant also not questioning the conviction but contending that sentence awarded to appellant was excessive and uncalled for--Appellant found to have taken his defence plea for first time before Investigating Officer which could not be considered as an afterthought--Perusal of prosecution as well as defence evidence showing that defence version was more plausible- Sentence of accused, in facts and circumstances of case, reduced from ten years to five years and sentence of fine set aside.

Sardar Muhammad Latif Khan Khosa for Appellant.

Nemo for the State.

Date of hearing: 15th June, 1987.

In brief the prosecution case is that Muhammad Nazir complainant and his brother Muhammad Tufail deceased used to sell milk in Mohallah Islampura. The house of Sufi Abdul Razzaq who lived alongwith his sons Muzaffar and Qaisar accused, was near their Phata. Muzaffar accused -used to tease women whenever they came to purchase milk from the complainant. This was objected to by Muhammad Tufail deceased who quarrelled with Muzaffar accused. On 30-6-1985 at about 6.30 a. m. Muhammad Nazir complainant and Tufail deceased were selling milk. Mazhar Farooq was present there to purchase milk. Sufi Abdul Razzak and his sons Muzaffar and Qaisar accused were standing in the door of their house. Muhammad Tufail went to purchase cigarette from the shop of Sarwar Sheikh. The accused followed him. A short, while thereafter Nazir Ahmad complainant on hearing the alarm rushed to that side. Mazhar Farooq and Muhammad Yaqub PWs accompanied him. Muzaffar accused gave Khanjar blow in the chest of Muhammad Tufail. The second Khanjar blow was given by Qaisar on the left shoulder of Tufail. Thereafter Muzaffar accused gave another Khanjar blow on the left shoulder of Muhammad Tufail who fell down. The accused ran away. Muhammad Tufail was taken to Mayo Hospital where he died before any medical aid could be rendered to him. S.I. Muhammad Yaqub PW 11, coming to know of the occurrence, went to Mayo Hospital. Lahore where Nazir Ahmad PW 8 made statement Ex. PE at about 9 a.m. on the basis of which formal FIR Ex.PE/1 was recorded at police station Shad Bagh District Lahore by S.I. Abdul Hameed PW 10 on the same day at 9.30 a.m.

2. The police during investigation arrested. the accused on 7-7-1.985. On 12-7-1985 Muzaffar accused while in Police custody led to the recovery of Khanjar P.1 vide memo Ex. PA attested by PW 1. Khushi Muhammad and S.I. Muhammad Yaqub PW 11.

3. The prosecution in support of its case examined 13 witnesses in all. The eye-witness account was furnished by PW 8 Nazir Ahmad and PW 9 Muhammad Yaqub. The medical evidence was furnished by Dr. Z.A. Sherazi PW 13 who on 30-6-1985 at 2.45 p.m. conducted post-mortem examination on the dead body of Muhammad Tufail aged about 25/26 years. On external examination the medical officer found one stab wound 3 c.m. x 1.5 c.m. x cavity deep on left chest and three incised wounds of various dimensions on left shoulder and left side of front of upper neck. All the injuries had been caused by sharp edged weapon. Injury No.l on left side of chest was sufficient, in the ordinary course of nature, to cause death which occurred within 15 minutes of receipt of injuries. The post-mortem was conducted after about 6 to 12 hours of death.

4. I have carefully gone through the statements of the eye witnesses with the assistance of learned counsel for the appellant who denied the charge and pleaded innocence in his statement after close of prosecution evidence. It was stated by Muzaffar appellant in W his written statement that on the day of occurrence he was going out of his house for job. Muhammad Tufail alongwith Naseer and Majeed came there shouting lalkaras. They attacked him. Tufail tried to press his throat. He, therefore, gave him one/two chhuri blows in self-defence. He examined Muhammad Yaqub Draftsman D.W.1 who prepared site plan Ex. PB. He also examined Mst. Rehana, his sister in support of his defence.

5. The learned Additional Sessions Judge Lahore vide the impugned judgment dated 11-2-1987 sentenced Muzaffar appellant aged about 26 years' to suffer 10 years R.I. plus fine of Rs.5000 or in ,default one year R.I. under section 304 (I) PPC. It was ordered that half of the fine if recovered. will be paid as compensation to heirs of the deceased. The appellant was allowed benefit of section 382-B Cr.P.C. Qaiser aged 18 years was however, acquitted by the same judgment.

6. On perusal of the evidence on record I am of the view that the conviction of Muzaffar appellant under section 304(I) PPC was rightly recorded. The learned counsel for the appellant has also not questioned the conviction of the appellant under section 304(I) PPC which is accordingly maintained.

7. It is, however, contended that in the facts and circumstances of this case the sentence awarded to the appellant was excessive and uncalled for.

I have considered the above contention. Muzaffar accused took up his defence plea for the first time before the investigating officer which could, therefore, not be considered as an afterthought. On' perusal of the prosecution as well as defence evidence it appears that the defence version was more plausible. Keeping in view the facts and circumstances of this case the sentence of Muzaffar appellant is reduced from 10 to 5(five) years. The sentence of fine is set aside.

With the above modification this appeal fails and is accordingly dismissed.

S.Q./M-265/L Sentence reduced.

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