1976 P Cr (PLP)

Riaz Anwar for Appellant. Ch. Ghulam Qadir for A: G. for the State. Date of hearing : 1st August 1974. This is the convict's appeal against the sentence of transportation for life awarded to him upon his conviction under section 302, P. P. C., for the murder of his brother Imam Bakhsh.

2. The occurrence involving the murder, took place at deegarwela, on 24‑9‑1970, Jan Muhammad P. W. was at that time watering his fields and the deceased was waiting there for his turn. The appellant also came and asked for taking water first. The deceased however, refused to let him have the water first, at which the appellant abused him, calling him beghairat and, at the same time, dealt him a kassi blow on the left side of the head Ghaus Bakhsh and Ghulam Haider P. Ws., who were passing nearby, also .saw the occurrence. They tried to apprehend the appellant but he managed to escape by threatening them. The deceased who had fallen on the ground was brought by the witnesses to his house where he lost consciousness. The witnesses, being unable to make any arrangement in the night for removing the deceased, brought him to the hospital at Lodhran 11 miles away, the next .day where he was examined in respect of the injuries at 1‑45 p.m. (25‑9‑1970). In response to a message sent by, Medical Officer. Sher Ahmad A. S. I, came to the hospital at 2 p.m. where he recorded the statement Exh. P. A. of Ghaus Bakhsh P. W., at 3‑30 p.m. This statement formed the basis of the formal F. I. R. which was entered at the Police Station, Lodbran at 3‑35 p.m., the same day. The Police Officer duly enquired about the condi tion of the deceased, for recording his statement, but got a negative reply from the Medical Officer. The deceased expired on 26‑9‑1970 at 8‑45 a.m., whereupon the offence was altered from section 307 to section 302, P. P. C. The appellant who had been absconding, appeared before Ata Muhammad Lambardar and in his presence and that of Rahim Bakhsh P. W., made extra judicial confession. Ata Muhammad produced him before the Police on 26‑9‑1970. While in custody, the appellant led to the recovery of blood‑stained kassi (Exh. P. 5) lying concealed inside a brick kiln.

3. The medical evidence is in support of the prosecution case. The Medical Officer who had examined the deceased at the time of his admission in the hospital in injured condition, had found an incised wound 2 x " crescent‑shaped with left temporal bone cut and depressed onto the brain matter. The presence of the injury was confirmed during the autopsy. The injury. in the opinion of the Medical Officer, was ante‑mortem, had been .caused by sharp‑edged weapon, and was sufficient in the ordinary course of nature to cause death.

4. In support of its case, the prosecution examined all the three ocular witnesses, namely Ghaus Bakhsh (P. W. 6), Ghulam Haider (P. W. 8) and Jan Muhammad (P. W. 9). Ghaus Bakhsh made some concessions and was allowed to be cross‑examined by the Public Prosecutor, On the whole, he supported the prosecution case. Ghulam Haider completely resiled from his previous statement by saying that he did not save any body injuring the deceased. He was, therefore, allowed to be cross‑examined by the P. P. and his statement made during the inquiry was transferred under section 288, Cr. P. C. Jan Muhammad though he had supported the prosecution case in his examination‑in‑chief made material concessions in his cross‑examination. He, too, vas, thereupon, allowed to be cross‑examined by the P. P., and his statement made before the committal Court was likewise transferred under section 288, Cr. P. C. In their those statements both the witnesses had supported the prosecution case. Ata Muhammad (P. W. 10) and Rahim Bakhsh (P. W. 11) testified that the appellant had made an extra judicial confession before them. Both these witnesses alongwith Ghulam Rasul (P. W. 12) proved the recovery of the blood‑stained kassi (P. W. 15) at the pointing of the appellant.

5. The appellant's case was a bare denial of the allegations made against him. He denied that he had any land near the place of the occurrence. He also denied to have made extra judicial confession or to have been produced before the police by Ata Muhammad and Rahim Bakhsh P.W. and stated that he had beers called by the police to the spot from where he had been arrested on 25‑9‑1970.

6. Mr. Riaz Anwar learned counsel appearing for the appellant, in the first instance, contended that the case against the appellant was false, and that was the reason why the eye‑witnesses had not fully supported the prosecution version during the trial. I, however, find no material in support of such contention. There is no reason why Ghaus Bakhsh and Ghulam Raider, who are closely related to the appellant (they being his brothers‑in -law) should substitute him for the actual killer. It was urged that Ghaus Bakhsh P. W. had a motive against the appellant, who bad opposed the witness's marriage with his sister. This, in my view, cannot be a sufficient motive for falsely implicating the appellant. Jan Muhammad, however, is an independent person and bas no motive against the appellant. The reason for ‑the witnesses' reluctance to support the case against the appellant is obvious. 'In a case of fratricide the bereaved family which had already lost one of the brothers was not interested in pursuing the case against the other.

7. Learned counsel, next contended that the statements of Ghulam Haider and Jan Muhammad P. Ws. having been transferred prematurely could not be read as evidence under section 288, Cr. P. C. The statement of Ghulam Haider had been allowed to be transferred under section 288, Cr. P. C. at the conclusion of his cross‑examination by the Public Prosecutor and before the cross‑examination by the defence counsel. The objection could not apply to the evidence of Jan Muhammad who had been allowed to be cross‑examined by the P. P. after the close of his examination‑in‑chief by the P. P. and cross‑examination by the defence. It was after the cross -examination by the P. P. that his prayer for transferring under section 288, Cr. P. C. the witness's previous statement had been allowed, the defence had, thereafter, been allowed to further cross‑examine the witness. Under section 288, Cr. P. C. the previous statement could be transferred after the witness is "produced and examined". "Examined" would obviously mean the conclusion of the recording of the evidence of the witness which will include his examination‑in‑chief, his cross‑examination and re‑examination, if any. Only at this stage, decision to transfer the witness's previous statement under section 288, Cr. P. C. can be made. The defence will then be entitled to further cross‑examine the witness. In the case of Ghulam Haider P. W., therefore, the transfer had been ordered rather prematurely, but, I am note inflicted to accept the contention because, firstly, no objection had been raised by the defence at the appropriate time, to the orders passed by the trial Court, and, instead, the defence had proceeded to cross‑examine the witness, and secondly it hay not been shown that any material prejudice had even caused to the appellant who had availed of the opportunity to fully cross‑examine the witness with notice of the decision to treat the witness's previous state ment as evidence. But even if the evidence of Ghulam Haider were to be excluded, such exclusion would not affect the case against the appellant for the evidence of the other two eye‑witnesses stands against him.

8. The evidence of the ocular witnesses (as deposed by Ghaus Bakhsh during the trial and as transferred under section 288, Cr. P. C. in the case of the other two) is supported by the recovery of the crime weapon, i.e. kassf (Exh. P. 5) from a place which was within the special knowledge of the appellant. I am satisfied that the appellant had inflicted the fatal blow. I am, however, inclined to discard from consideration the extra judicial con fession because the same had been made before a Lambardar who, in this Province, has been held to be a person in authority vide Monir's Law of Evidence, Fourth Edn., p. 160.

9. Learned counsel for the appellant, however, urged that upon the facts on record, the appellant could not be held guilty of murder under section 302, P. P. C. His grounds were that the occurrence was without premeditation and on the spur of the moment in the course of altercation between the appellant and the deceased, and that only one blow had been given. For this he relied on Riaz Beg v. The State (1973 P Cr. L J 111:), Allah Bakhsh v. The State (1973 P Cr. L J 680), Muhammad Hussain v. The State (P L D 1966 Lah. 375). The view taken in these authorities is that if an accused person in the heat of the moment, without premeditation, and in the absence of deep‑seated enmity, strikes a single blow, the offence would fall not under section 302, P. P. C. but under section 304, P. P. C. Similar view has been taken in Masoom Beg v. Muhammad Munir and another (1971 S C M R 476) and Muhammad Salim v. The State (1969 S C M R 653). In the present case, the appellant was the real brother of the deceased and although he had resented the deceased's agreeing to the marriage of their sister with Ghaus Bakhsh P. W. but that resentment could not be a sufficient motive for causing the death. The evidence shows that there was no premeditation. The presence of kassi with the appellant was natural as he had come for watering his field. He had last his temper at the refusal of the deceased to let him have the water first, and in that state of mind, had inflicted the solitary blow. The fact that he had immediately run away from the spot also show, that he had no predetermination for causing the deceased's death. I, there fore, agree, and the authorities cited above support, that the offence would fall not under section 302 but under section 304, P. P. C. since the blow had been directed at the head of the deceased with a kassi, the appellant can be attributed with the intention of causing the death. He is, therefore, liable under Part I of section 304, P. P. C.

10. I accordingly alter the appellant's conviction from section 302 to section 304, Part 1, P. P. C., and reduce his sentence from transportation for life to R. I. for 10 years, plus a fine of Rs. 1,900 or in default of payment thereof to further R. I. for one year. The fine, if realized, shall be paid to the heirs of the deceased. The appeal is disposed of in these terms. Order accordingly.