1987 PLP 3169 (MLD)

The appellant was arrested by the ASI on 17-10-1982. On the same day, the appellant led to the recovery of blood-stained Danda (P.4) from near bridge of Ganda Nullah. It was taken into possession vide memo. Ex. P.F. After completion of necessary investigation, challan was put to Court.

4. At the trial prosecution in all examined nine witnesses. Positive reports (Exs. PJ and PK) from the offices of the Chemical Examiner and the Serologist respectively were also tendered in evidence. Sardar Ali PW was given up as unnecessary.

5. The ocular account in this case was deposed to by Muhammad Ramzan (PW.7) and Qazi Muhammad Sharif (P.W.8). Muhammad Ramzan re-narrated the facts given by him in the F.I.R. He, however, added that when the appellant had demanded Rs. 20 from the deceased at 4 p.m., the latter had replied that he owed him nothing: According to him, same reply was given by his deceased brother even at the time the demand was made by the appellant from the deceased at the time of occurrence in hand. This witness also claimed that the appellant was his nephew During cross?-examination, he stated that the incident of quarrel which took place at 4 p. m. was narrated to him by his deceased brother in the house, in the presence of his wife. He admitted that Qazi Muhammad Sharif P.W.8 was his first cousin and so was given up P.W. Sardar Ali. He denied the suggestion that the appellant was engaged to a daughter of Sardar Ali (given up P.W.) and that the same was broken, as a result of which relations between the families became strained. Qazi Muhammad Sharif (P.W.8), corroborated the statement made by Muhammad Ramzan (P.W.7). He also deposed about having witnessed the recovery of blood-stained Danda (P.4), from near bridge of Ganda Nullah and of having attested the recovery memo. He also claimed that the appellant was related to him. Both the witnesses denied the suggestions that they had not witnessed the occurrence and that they had learnt about the deceased having suffered injuries at the hangs of some unknown person, after the occurrence. Abdur Rehman (P.W.5) stated about being present at the time of quarrel of the appellant with the deceased at 4 p m. on the day of occurrence. According to him, the appellant had demanded money from the deceased, but the latter had replied that he owed him nothing and thereupon the appellant had threatened him that he would recover the money. He also stated that the appellant was son of his first cousin. He admitted that prior to that deceased and appellant had no dispute amongst themselves.

6. Dr. Ashfaq Ahmad Khan, who had performed the autopsy on the dead body of the deceased Abdullah, appeared as P.W.6. He had noted a lacerated wound, 41 c.m. x 11 c.m. x bone deep, on left side of head, 7 c.m. about the left ear, and swelling 6 c.m. x 4 c. m. on right side of fore-head and head. Right parietal and temporal bones were found fractured into pieces. According to his opinion, the deceased had died as a result of injury No. 2, which was grievous in nature and was sufficient to cause death in the ordinary course of nature.

7. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. In answer to the question, "Why this case against you and why the F.Ws. have deposed against you," he stated as under:- "My relations were strained with P.Ws. due to my disengagement with the daughter of Sardar Muhammad P.W. The deceased was injured by some unknown person during night time and I have been falsely implicated in this case due to enmity with the P.Ws." He did not produce any evidence in defence.

8. Arguments heard,--record perused. The contention of the learned counsel for the appellant that the eye-witnesses as well as Abdur Rehman (P.W.5), who deposed about the incident that allegedly took place at 4 p.m. between the appellant and the deceased, were related and interested and so no reliance can be placed on their testimonies, has not impressed me. No doubt both the eye-witnesses, i.e. complainant and Qazi Muhammad Sharif, were related to the deceased, but they had absolutely no enmity with the appellant. The suggestion made on behalf of the appellant that he was engaged with a daughter of Sardar Ali (given up P.W.) and the same had been broken before the occurrence, in order to prove his strained relations of the two families, was denied by P.W.7 as well as P.W.8. (Even otherwise considering the age of the daughter of Sardar Ali, which was given to be 14 years at the time of trial, and should therefore, have been about 12 years before the occurrence, does not look probable). There is absolutely nothing on record to lend even remote idea that the complainants had any sort of annoyance or enmity with the appellant prior to the occurrence, The statements of the eye-witnesses, which are confidence inspiring, corroborated by the evidence of recovery of blood-stained Danda at the instance of the appellant and the medical evidence, are enough evidence to prove the commission of occurrence by the appellant.

9. The evidence of incident, which took place at 4 p.m. between the appellant and the deceased, deposed to by Abdur Rehman (P.W.5), giving time, the date and place of occurrence as well, also seems t be reliable and true and lends sufficient support to the statement o Muhammad Ramzan complainant (P.W.7) in that regard.

10. The question which remains to be examined is, whether the appellant has been rightly convicted under section 302, P.P.C. or his case falls within the provisions of section 304 Part-1, P . P . C . The stance of the learned counsel for the appellant in this regard, is, that facts and circumstances of the case even if .... believed, as they are, .... do not disclose the occurrence to be the result of pre-meditation and so the case of the appellant falls within the ambit of section 304, Part I,. P.P.C. The case of an accused would fall within the ambit of section 304, Part I, P.P.C. if'it is covered by Exception 4 to section 300~C P.P.C., requirements of which are suddenness of the occurrence, absence of pre-meditation and of having not taken undue advantage.

11. Keeping in view the evidence that the appellant had give only one Danda blow, it can safely be assumed that the appellant had not taken any undue advantage. It is not the case of the prosecution that the appellant straightaway attacked the deceased on coming in contact with him. The case of the prosecution is that h demanded the return of the money, which was refused by the deceased. Thereupon, he abused him and it was on return of abuses by the deceased that he had given the blow. These circumstances do ... lend support to the argument of the learned counsel for the appellant that the appellant had not come with pre-meditated mind to kill the deceased. His purpose was to have the money back, and the blow he gave to the deceased was in retaliation to the abuses by the deceased. The occurrence, therefore, cannot be held to be a pre-meditated one Elements of suddenness of the occurrence are also decipherable from the occurrence. This being the position, I find weight in the argument of the learned counsel for the appellant that the case of the appellant falls under section 304 Part-I, P.P.C. The other aspect which has weighed with me in this regard is, that the two youngsters had quarrelled over the return of a petty amount of Rs. 20 and the one took the step of causing injury to the other, which resulted in the death of the other. In the circumstances, the conviction and sentence of the appellant under section 302, P.P. C. is set aside. His conviction instead is altered to section 304 Part-I, P.P.C. He is sentenced to undergo R.I. for ten years, plus to pay a fine o Rs. 5,000, in default whereof to suffer R.I. for two years Whole of the fine, on recovery, shall be paid as compensation to the heirs for the deceased. S.A. /M-420/L???????????????????????????????????????????????????????????????????????????????????? Sentence altered.