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Criminal Appeal No.66 of 1985 (through Jail), decided on 4th May, 1986.

---Ss.302 & 304, Part I--Sudden quarrel developing between complainant and accused parties--Accused whilst receiving beating at hands of complainant party picking up a knife and delivering solitary blow to deceased--Circumstances and evidence in case negatived charge of intentional murder--Conviction under S.302, P.P.C. altered to one under S.304, Part I, P.P.C.--Sentence of life imprisonment reduced to 10 years' R.I.

Abdul Aziz Khan Niazi for the Complainant.

Akbar Farid for the State.

Date of hearing: 4th May, 1986.

This is an appeal by Allah Ditta son of Rab Nawab 66 through Jail against his conviction under section 302 PPC by learned Additional Sessions Judge, Multan who vide judgment dated 4-3-1985 sentenced him to imprisonment for life plus fine of Rs.5,000 or in default one year R.I. It was ordered that half of the fine, if recovered, will be paid as compensation under section 544-A, Cr.P. C. to heirs of Muhammad Aslam deceased.

Allah Ditta son of Gaman 19, a co-accused of the appellant, was however acquitted by the same judgment.

Sher Khan complainant filed Crl. Revision 96 of 1985 seeking enhancement of sentence of the appellant and retrial of the acquitted accused. This petition was not admitted and ordered to be heard alongwith the appeal. Both the matters being directed against one judgment will be disposed of together.

2. The occurrence in this case took place on 20-8-1983 at Degarwela in the house of Sher Khan complainant at Chah Ratawala in village Tibba Masoodpur about 7 miles from police station Mumtazab4d district Multan. The formal FIR Ex.PC/1 was recorded at the police station by H.C. Muhammad Ashraf P.W.10 on 20-8-1983 at 8 P.M. on the basis of the statement Ex.PC recorded at police post, Muzaffarabad by S.I. Zahid Ali Sherazi PW 11 on the same day at 7 P.M. at the instance of Sher Khan PW 7.

3. It was stated by Sher Khan complainant in his first information report that on 20-8-1983 he returned home from duty at about 7 A.M. and found his son Muhammad Hussain quarrelling with his wife Mst. Shamshad Begum because she was insisting to visit the house of her parents. Muhammad Hussain, his son, took away his daughter Mst. Rehana Bibi aged about six months from his wife who then accompanied by her brother-in-law (husband of her sister) Allah Ditta son of Gaman accused went away. At about Degarwela on the same day he and his son Muhammad Hussain PW, his wife Mst.Siddiqan Bibi, Bashir Ahmad PW and Hussaina Bibi were present in their house. Allah Ditta son of Rab Nawaz, Allah Ditta son of Gaman, Shamshad Begum and Mst.Sakina Bibi came there. They demanded the custody of infant Rehana Bibi. Simultaneously MSt.Shamshad Begum and Sakina Bibi started abusing the womenfolk. At this Muhammad Aslam deceased told Allah Ditta son of Rab Nawaz that their womenfolk should not be insulted in their own house. He refused to hand over the infant child to the accused. At this Allah Ditta son of Rab Nawaz took out a knife from his Dab and gave a blow on the left side of chest of Muhammad Aslam who fell down. Mst.Shamshad Begum and Mst.Sakina Bibi had left the place of occurrence before infliction of injury on Muhammad Aslam while Allah Ditta son of Rab Nawaz and Allah Ditta son of Gaman ran away after the occurrence. Muhammad Aslam died at the spot as a result of the injury on his person. Sher Khan complainant, leaving the dead body at the place of occurrence went to police post Muzaffarabad and made statement of Ex.PC.

4. S.I. Zahid Ali Sherazi, PW.11 after registration of the case under took investigation.

On 20-8-1983 he collected blood-stained earth from the place of occurrence vide memo Exh.PD. Allah Ditta son of Rab Nawaz accused was arrested on 22-8-1983. He, on 23-8-1983 while in police custody led to the recovery of blood-stained knife EX.P.1 from a place in graveyard which was taken in possession vide memo Ex.PE by S.I. Zahid Ali Sherazi in presence of Bashir Ahmad PW.8 and Zafar PW.6 (Muhammad Zafar PW while appearing as witness said nothing about this recovery).

5. The dead body of Muhammad Aslam aged 25/26 years was sent for post-mortem examination which was conducted on 21-8-1983 at 10 A.M. by Dr.Zisuddin Zaidi PW.5.

On external examination of medical officer found "a stab wound on the front of chest on its left 1 cm from mid-line and 7 cm from left nipple, 1 cm x 3/4 cm x going in the chest cavity vertically" .

On dissection 5th costal cartilage was found cut through and through cutting the pericardium and right aurical of heart which was punctured vertically. There was cut in the right origin and pericardium. The pericardial cavity was full of blood.

The death as due to the abovementioned injury by sharp-edged weapon, which was sufficient to cause death in ordinary course of nature. The death occurred immediately after receipt of injury and post-mortem was conducted after about 16 hours of death.

The knife P.1 was found stained with human blood vide report of Chemical Examiner Ex.PH and that of Serologist EX.PJ.

The accused was challaned after completion of investigation.

6. In support of its case prosecution examined 12 witnesses in all. PW 7 Sher Khan, PW 8 Bashir Ahmad and PW 9 Muhammad Hussain were examined as eye-witnesses. Mst. Hussain Bibi and Mst. Siddiqan Bibi, two eye-witnesses named in the FIR were given up as unnecessary. The recovery of knife P 1 was witnessed by Bashir Ahmad PW 8. The medical evidence was furnished by Dr.Zia-ud-Din Zaidi PW 5 as given in detail above. The case was investigated by S.I. Zahid Ali Sherazi PW 11. The evidence of the rest of the witnesses was of formal nature.

Both the accused in their statements after completion of evidence denied the charge and pleaded innocence. The recovery of knife P1 was also denied. It was stated by Allah Ditta son of Rab Nawaz appellant that his daughter Mst.Shamshad Begum was married to Muhammad Hussain PW. She had a daughter named Rehana from him. On the morning of the day of occurrence she was allowed to visit his house but her husband snatched the suckling child from her. She complained to him. He advised her to be patient. He went to the

house of Sher Khan complainant for return of Mst. Rehana being the eldest person of the family. Sher Khan and Aslam deceased refused to hand over the baby whereupon he abused them. At this they felt annoyed caught hold of him and started beating him. He further stated that Hussaina Bibi at the asking of her husband Muhammad Aslam deceased brought chhuri from the nearby kitchen. He caught hold of the chhuri from her hand in order to save himself by snatching the same. In the meantime Muhammad Aslam deceased pounced upon him and got injured. He examined three witnesses in defence.

D.W. 1 Sufi Mehboob Hussain, Councilor stated that Allah Ditta son of Rab Nawaz accused was resident of his ward. He came to him next day of the occurrence and sought his help by saying that he has been falsely implicated. It was stated by him that the accused at the time had injuries on his person and his clothes were stained with mud. He produced him before the police. In cross -examination he stated that due to lapse of time he could not give detail of the story told to him by the accused.

D.W.2 Khizar Hayat, Dispenser District Jail Hospital brought register No.l which contained entries from serial No.1463, dated 26-5-1983 to 2985, dated 29-8-1983. This register contained entries regarding medical examination of Allah Ditta son of Rab Nawaz at serial No.2907 dated 26-8-1983.

D.W. 3 Dr. Imtiaz Ahmad Khan on 26-8-1983 medically examined Allah Ditta son of Rab Nawaz when he was brought to Jail and found four blunt weapon injuries on his person. These were of about five days duration. All the injuries were kept under observation. Injuries1 and 2 were swellings on the right and left gluteal regions and also on middle of head. Injuries Nos.3 and 4 indicated that he complained of pain in head, chest, abdomen limbs and waist The result of under observation injuries was not available.

7. The learned trial Judge disbelieved the defence version of the accused. It was held by him that the accused received chose injuries during the occurrence. He placed reliance on the evidence of motive, recovery of knife P.1 and the three eye-witnesses and convicted the appellant as stated above.

8. I have minutely gone through the evidence on record with the assistance of learned counsel for the State and the complainant.

9. Sher Khan P.W. was father of Muhammad Aslam deceased. A sister of Bashir Ahmad P.W. was married to Muhammad Aslam deceased. The wife of Sher Khan P.W. was maternal-aunt (Khala) of Bashir Ahmad P.W. Muhammad Hussain P.W. was brother of Aslam deceased.

Allah Ditta son of Rab Nawaz accused was father of Mst. Shamahad Begum wife of Muhammad Hussain P.W. Allah Ditta son of Gaman accused was married to another daughter of Allah Ditta son of Rab Nawaz accused.

The parties did not have any other enmity or dispute inter se. The only dispute which resulted in the present occurrence took place on the morning of the day of occurrence when Mst. Shamshad Begum insisted to visit the house of her parents. Muhammad Hussain did not allow her to leave his house. But as Mst. Shamshad Begum was adament to go, he snatched his infant daughter Mst. Rehana and allowed Mat. Shamshad Begum to visit the house of her parents alongwith Allah Ditta son of Gaman accused. During the trial Muhammad Hussain P.W. changed his statement and stated that he had not snatched Mst. Rehana but while leaving his house Mst. Shamshad Begum had herself left Mst. Rehhana with him. This is a material change in the prosecution case which appears to have been made in order to strengthen the evidence on motive. In my view the story put forth by the prosecution in F.I.R. and during investigation was correct that Muhammad Hussain in fact had snatched his infant daughter from Mst. Shamshad Begum when she went to the house of her parents. This fact supports the defence version of Allah Ditta accused. It was natural for him, being eldest in the family, to come to the house of Sher Khan complainant to bring back the suckling child of his daughter. In my view the evidence on motive does not support the prosecution case. It, on the other hand lends support to the defence version.

The recovery of knife P.1 is immaterial in this case because it is admitted by the accused that Muhammad Aslam was killed during the occurrence with chhuri.

It is in evidence of the three eye-witnesses that when the accused came to the place of occurrence Sher Khan, Bashir Ahmad and Muhammad Hussain P.Ws. remained sitting in the courtyard and it was Muhammad Aslam deceased who went forward firstly to ask the womenfolk of the accused not to abuse his womenfolk in their house and secondly to tell them that infant child will not be handed over to them. Bashir Ahmad P. W. stated in cross-examination that "it is correct that I myself and Sher Khan P.W. did not protest against the abu-ins of Sakina and Shamshad. Mst. Sakina and Shamshad remained abusing for five seven minutes. Allah Ditta son of Rab Nawaz did not buse. Aslam deceased had himself started exchange of hot words with Allah Ditta son of Rab Nawaz accused and he was not exhorted by Sher Khan or any other P.W." Sher Khan P.W. in cross-examination stated that "the talk between Allah Ditta son of Rab Nawaz and Aslam deceased, about Mst. Rehana, remained up to ten minutes". On a perusal of the evidence of the eye-witnesses I am of the view that the parties suddenly picked up quarrel during the compromise talk. As stated by Bashir Ahmad P.W.8 kitchen was only 2/3 paces away. As such when Allah Ditta appellant was given beating by the complainant party, he picked up a knife from the nearby kitchen and gave solitary blow to Muhammad Aslam deceased, who was the only person quarrelling with the appellant.

The accused was found injured when he entered prison premises. He was medically examined by Dr.Imtiaz Ahmad D.W.3. The accused went to Mehboob Hussain D,W.1 for help who also found him injured next day of the occurrence. The prosecution witnesses did not at all the mention or explain the injuries on the person of the appellant. The Investigating Officer also suppressed these injuries. On a perusal of the statement of D.W.3 Dr. Imtiaz Ahmad I find that in cross-examination the prosecution did not challenge the correctness or genuineness of medical certificate. It was not suggested to this witness that he gave a false certificate. The cross-examination was confined to the point that he did not send any report to the District Magistrate. In the end it was suggested to him that he gave duration of injuries not by his own observation but as told to him by the accused. He denied the suggestion. The learned trial Judge also did not hold that the certificate Ex. DB regarding injuries of the appellant was a false certificate. He came to the conclusion that there is no evidence to prove that these injuries were received by the appellant during this occurrence. I am not prepared to agree with the learned trial Judge. The duration of these injuries was about five days prior to his examination on 26-8-1983. The occurrence took place on 20-8-1983. In my view the accused suffered these injuries at the time of occurrence which took place all of a sudden during compromise talk regarding return of the infant child. It was in these circumstances that he gave solitary blow to Muhammad Aslam deceased.

10. As a result of the above discussion I am of the view that the charge of intentional murder against Allah Ditta son of Rab Nawaz appellant is not proved. I, therefore, set aside his conviction under section 302, P.P.C. and instead convict him under section 304(1), P.P.C. Allah Ditta son of Rab Nawaz is sentenced to suffer 10 years' R.I. plus fine of Rs.5,000/- or in default one year R.I. under section 304(1), P.P.C. The entire amount of fine, if recovered, will be paid as compensation to heirs of Muhammad Aslam deceased. He will be given benefit of section 382-B, Cr.P.C.

11. With the above modification this appeal fails and is dismissed. The appellant will be informed of the result of this appeal in prison.

12. In view of the above decision in appeal, the connected revision is dismissed in limine.

K.B.A. /A-129/L Conviction and sentence, altered.

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