1984 P Cr (PLP)

Ss. 302 & 304 (1)-Sudden quarrel --Murder--Mashir of arrest of accused fully supporting prosecution case--No enmity alleged against such Mashir and his evidence not shaken in cross-examination--Evidence of prosecution witnesses establishing that sudden quarrel took place between parties over an allegation of theft levelled against accused--Accused giving fourteen injuries by hatchet to deceased who died as a result thereof--Accused exceeding right of private defence--Offence committed by accused culpable homicide not amounting to murder--Conviction altered from S. 302 to S. 304(1) and sentence of life imprisonment reduced to eight years. Agha Ghulam Ali for the State. The case of the prosecution is, that complainant Muhammad Soomar and deceased Sakhidad were brothers and resided in the same house in village Bhadar. Village of appellant Lai Khan is at a distance of three furlongs from the village of complainant. About 20 days prior to this incident she-goat of deceased Sakhidad was stolen. He suspected the appellant to have stolen this goat. The matter was brought before "Bratheri" but the appellant refused to attend the.call of "Bratheri". On 12th day of October, 1973 in the morning, deceased Sakhidad left his house for cutting grass in field cultivated by Muhammad. P. W. Kadro and Juman were also cutting grass in the same field and P.W. Talao was picking cotton pods there, when at about 9-00 a.m. appellant Lai Khan armed with hatchet came to Sakhidad and challenged him, telling him that he had falsely accused him of theft of goat. He then showered hatchet blows on Sakhidad. Sakhidad also gave him two hatchet blows in self-defence. P.Ws. Kadro, Juman and Talao tried to rescue Sakhidad, but appellant threatened them to keep aside. Sakhidad fell on the ground and appellant Lai Khan then went away, carrying with himself his own hatchet and also that of Sakhidad. Sakhidad died instantaneously. Kadro left Talao and Juman over dead body of Sakhidad and himself went and informed complainant Soomar in his house and brought him to the place of incident. Talao and Juman also narrated the same facts to Soomar and then Soomar went and lodged report at P.P. Berani. The same was recorded by A.S.I. Inayat Khan in the station diary. Exh.

14. He intimated Police Station Tando Adam on telephone about this crime and then proceeded to the scene of offence and saw the same on showing of the complainant in presence of Mashirs Kadir Bux and Pir Bux. He found dead body of Sakhidad lying there in a pool of blood. He secured blood-stained earth, Slippers and Ajrak and sealed them. He found a sickle and cut grass lying in Ajrak and secured that grass and sickle. He prepared such Mashirnama Exh.

8. He prepared inquest report of the dead body Exh. 9, which had 14 injuries on it. Then S.H.O. Mr. Shamimur Rehman arrived and he handed over papers to him. S.H.O. verified investigation of A.S.I. Inayat and recorded statements of Kadro, Juman and Talao. He sent a letter to medical officer Tando Adam to come at the scene of offence and perform post-mortem examination on the dead body at the spot as the body had many injuries and there was no suitable conveyance for transporting the body. The medical officer came at the scene of offence and performed post-mortem examination there and thereafter the S.H.O. delivered the dead body to its heirs and kept clothes with himself. The S.H.O. then came to the house of appellant and arrested him in presence of Mashirs Kadir Bux and Pir Bux. The clothes on the person of appellant were stained with blood and he secured them under Mashirnama Exh.

10. The S.H.O. sealed these clothes. The appellant then volunteered to produce hatchet the weapon of offence and took him and Mashirs inside of his house and produced hatchet lying in the corner of the house which was stained with blood. The S.H.O. secured and sealed it under Mashirnama Exh.

11. The appellant then voluteered to produce hatchet of deceased and then led S.H.O. and Mashirs at a distance of 5 to 6 hundred yards in north of the scene of offence and from amongst bushes produced a blood-stained hatchet which he secured and sealed under Mashirnama Exh.

12. The S.H.O. referred appellant for examination, treatment and certificate to medical officer, as he had injuries on his person. The S.H.O. sent witnesses Kadro, Juman and Talao to Resident Magistrate, Tando Adam for 164, Cr.P.C. statements. Blood-stained articles were referred to chemical analyser and as per report of chemical analyser Exh. 2 all the articles were stained with human blood. The prosecution had led evidence of. Tapedar Khan Muhammad, who has prepared sketch of scene of offence (P.W. 1) Mashir Kadir Bux (P.W. 2) complainant Muhammad Soomar (P.W. 3), Kadro (P.W. 4), Juman (P.W. 5) deposition of Dr. Muhammad Ismail who had performed post-mortem examination on deceased Sakhidad has been brought on record Exh. 24 and deposition of Dr. Rustam who had examined the injuries on the person of appellant Lai Khan has been brought on record Exh.

25. The appellant in his statement has admited, that deceased Sakhidad suspected him to have stolen his goat, but has denied that on that account he (appellant) was annoyed with him (Sakhidad). The appellant has denied, that any meeting of "Bratheri" had taken place. He has admitted to have given hatchet blows to Sakhidad in self-defence, but has denied to have taken away his hatchet and hatchet of Sakhidad after the incident. He has admitted, that at the time of his arrest, he had injuries on his person and was referred to M.O. In reply to the question, whether at the time of his arrest he was wearing blood-stained clothes and that his shirt had cut at site of injury on his arm, he had replied, that he could not say if he was wearing blood-stained clothes or that his shirt had cut as he had gone unconscious after the incident and was arrested in the hospital. He had denied to have volunteered to produce the hatchet the weapon of offence to have produced the same before police. With regard to the witnesses he has said that they are related inter se and further has said in his statement that he had given blows to Sakhidad in his self-defence, who had come prepared to fight with him at the place, where he was grazing his cattle. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant above-named as hereinbefore mentioned and consequently appellant has filed the above appeal on the grounds mentioned in the memo of appeal. (a) That obviously appellant was given two incised injuries before he gave injuries to the deceased in self-defence. Mere fact that deceased received more injuries, would not take the case of appellant out of plea of self-defence. (b) That there is nothing on record to suggest, that appellant exceeded his right of self-defence. (c) In the alternative, offence committed by appellant would fall under section 3040), P.P.C. and not under section 302, P.P.C. as held by the learned trial Court, on account of sudden quarrel. (d) That appellant has remained in custody from 12th October, 1973 upto 24th December, 1980 and as such this period be considered as sufficient punishment. In support of his above contentions the learned Advocate for the appellant relied upon case P L D 1965 Quetta

33. The learned counsel appearing for the State at the outset submitted, that offence committed by appellant would fall under section 3040), P.P.C. and not under section 302, P.P.C. as held by learned trial Court, on account of sudden quarrel, as appellant exceeded right of self-defence, by causing 21 injuries to the deceased, even after deceased had fallen down. I have carefully considered the above submissions made by the learned Advocates before me and have gone through R 8 P of the learned trial Court as well as through impugned judgment and cases cited by the learned Advocate for the appellant. Prosecution case rests on the statement of P.W. 3 Muhammad Sumar (complainant), and P.W. 4 Kadro and P.W. 5 Juman. P.W. 3 Muhammad Sumar (Complainant) is brother of the deceased and stated, that P.W. 4 Kadro came and informed him that his brother Sakhidad was murdered in field, on the day of incident at 9-30 a.m. on account of some false allegations made by deceased against the appellant. He further informed him, that P.W. 5 Juman was also present at the time of incident. He, therefore, went to Vardat and saw deceased body of his brother and then went and lodged F.I.R. P.W. 4 Kadro in his statement before the learned trial Court stated, that he was related to deceased and stated that appellant after accusing the deceased for false allegations, he gave hatchet blows to deceased, who also gave hatchet blows in return to appellant. P.W. 5 Juman corroborated the statement of P.W. 4 in toto. He however, admitted in his cross, that appellant used to graze his cattle on Vardat site. He also admitted exchange of harsh words between deceased and 'appellant before the actual incident. P.W. 6 Inayat Khan is SHO. He has confirmed investigation done by him in the beginning. P.W. 7 Shamimur Rehman is 1.0. of the case. His statement before the learned trial Court was formal. He stated that he arrested appellant from his house and appellant voluntarily produced hatchets and his clothes were blood-stained and he secured the same also and sealed them separately in presence of Mashirs Kadir Bux and Pir Bux. This witness admitted injuries on person of appellant and sending him for treatment and certi?ficate. He also stated that he sent seized articles to chemical examiner and produced his report as Exh. 23, which was positive. No enmity at all is alleged against this witness. P.W. 8 Dr. Ismail had produced post-mortem report of deceased and stated injuries Nos. I, 2, 3, and 6 were sufficient in ordinary nature to cause death. Deceased had in all 14 hatchet injuries. P.W. Dr. Rustum Khan was examined before committal Court and his evidence was brought on record as Exh.

26. He had produced medical certificate in respect of injuries by appellant, which were two and simple, though caused by hatchet. He further stated, that injury No. 2 could have proved fatal. P.W.2 Kadar Bux was Mashir of arrest of appellant. He has fully supported prosecution case. No enmity was alleged against this witness nor his evidence was shaken in cross-examination. Keeping in view the statements of P.Ws. recorded before the learned trial Court it is clear that before the incident in question, there was exchange of harsh words between appellant and deceased and thereafter o incident took place, in which appellants received two injuries by hatchet and he gave 14 injuries by hatchet to deceased. These statements establish sudden, quarrel between the parties, over alleged false allegations of theft levelled against the appellant. P.Ws. have proved prosecution case, that appellant gave 14 injuries to deceased and deceased died as a result thereof. Keeping in view the number of injuries on person of deceased and only two simple injuries on person of deceased, it is very clear, that) even if appellant had a right of private defence, he exceeded the same, and as such offence committed by him on this account and sudden quarrel $ will fall under section 304(1), P.P.C. and not under section 302, P.P.C, as held by the learned trial Court. Stand of appellant also was that he gave injuries to deceased in self-defence, as deceased came to fight with him, where he was grazing cattle. I find no merits in above appeal, but hold that offence committed by appellant is culpable homicide not amounting to murder. Therefore, while dismissing above appeal on merits, I alter the conviction of appellant from section 302, P.P.C. to one under section D 304(1), P.P.C.and consequently alter his conviction from life imprisonment to 8 years' R.I. and also impose fine of Rs. 1,000 and in default of payment of said fine to-stiffer further R.1 for one year and also to pay compensation of Rs. 1,000 to the legal heirs of deceased and in default to suffer further R.I. for one year. I also direct that benefit of provisions of section 382-B, Cr.P.C. in respect of period of detention of the appellant as under-trial prisoner be given to him towards his substantive sentence, in addition to all other remissions to which he may be entitled in accordance with rules. Appellant is on bail and as such his bail is cancelled and learned trial Court is directed to issue non-bailable warrants for his arrest and on his arrest to remand him to judicial custody to serve out remaining sentences awarded to him by this judgment. M. Y. H.????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.