ILLAHI BUX Versus THE STATE

1. The appellants were charged under section 302/34, P.P.C. for committing murder of deceased Mohammad Aslam and were tried before the learned IIIrd Additional Sessions Judge, Nawabshah who has convicted them under section 302 read with section 34, P.P.C. and sentenced them to suffer imprisonment for life and to pay fine of Rs. 10,000 each or in default to suffer R.I. for one month-more. The fine if recovered, the half of it was to be paid to the heirs of the deceased vide judgment dated 8-6-1987.

2. The brief facts giving rise to the present appeal are that on 24-5-1984 one Noor Mohammad lodged a report at P.S. Daur District Nawabshah inter alia alleging therein that he resides in town of Daur. Mohammad Aslam is his grandson who also resides with him. Rasheed Sheikh was bad character, and he was forbidden from passing from the street in front of the house of the complainant by Mohammad Aslam about a month before on which Rasheed Sheikh had issued threats that he will see him. That at 10.00 a.m. he and Aslam were going to Daur Station and when they reached at Pucca road in front of the shop of Dr. Aslam and cloth shop of Aziz, they found Rasheed Shaikh armed with hatchet, Ellahi Bux Shah armed with pistol while Imam Shah was empty handed, standing there. When complainant and Aslam reached near them, Rasheed Sheikh abused and asked Aslam that he had forbidden him from passing from the street and therefore he would not leave him and kill him. Thereafter Rasheed Sheikh ordered Imam Shah and Ellahi Bux not to spare him. On which Imam Shah and Ellahi Bux Shah caught hold of Aslam while Abdul Rashid gave him hatchet blow on the head of Aslam which hit him and he fell down. The complainant raised cries of "murder-murder" on which Tahir son of Jumma, Aijaz by caste Khanzada and other persons came there running, who also saw accused Rasheed Sheikh armed with hatchet, Imam Shah empty handed and Ellahi Bux Shah armed with pistol running away and disappearing in the town. This report was recorded by S.H.O. Zaffaruddin Farooqui, and the F.I.R. has been produced as Ex.9-A. After recording the F.I.R. S.H.O. Zafaruddin Farooqui proceeded to the Wardat and prepared Mashirnama of Wardat and injuries in presence of Mashirs Ghulam Mustafa and Mohammad Ishaque. He secured the blood-stain earth and sealed the same, Mashirnamas have been produced as Exs. 11-A and 11-B, He then examined PWs Aijaz and Mohammed Tahir. Thereafter, he came to know that accused Rasheed Sheikh had appeared before Police at the Police Station with the crime weapon (hatchet). He then went to the P.S. where A.S.I. Fida Hussain had already arrested accused Rasheed Sheikh and secured hatchet from his possession under Mashirnama which has been produced as Ex.14-A, Thereafter, accused Ellahi Bux Shah and Imam Shah appeared at the P.S. before him, he arrested them in presence of Mashirs Qadir Bux and Mohammad Iqbal and the Mashirnama has been produced as Ex.17-A. He then got statements of PWs Tahir and Mohammad Aijaz recorded under section 164, Cr.P.C. On 4-6-1984 he examined the defence witnesses of accused Imam Shah and Ellahi Bux Shah. Accused Ellahi Bux Shah and Imam Shah were let off under orders of S.P. while accused Rasheed was challaned. Injured Aslam died in the hospital after six days and therefore, the case was challaned under section 302, P.P.C.

3. The complainant being dissatisfied with Police investigation filed a direct complainant before the Court in which the process was issued against appellants Ellahi Bux Shah and Imam Shah also.

4. At the trial the case challaned by Police and the direct complaint filed by the complainant were amalgamated. A formal charge was framed against the appellants to which he pleaded not guilty.

5. At the trial prosecution examined complainant Noor Mohammad PW. 1, he has produced F.I.R. as Ex.9-A, direct complaint as Ex.9-B and his statement recorded under section 200, Cr.P.C. as Ex.9-C, Muhammad Tahir PW-2, he has produced his statement recorded by ACM Nawabshah as Ex.10-A, Mashir Ghulam Mustafa PW.3, he has produced Mashirnama of injured as Ex.11-A and Mashirnama of Wardat as Ex.11-B, Mashir Khursheed Alam PW.4 who has produced Mashirnama of dead body as Ex,12-A and inquest report as Ex.12-B, Aijaz Khan eye-witness PW-5, Muhammad Ashraf HC Police PW.6 who had acted as mashir of arrest of accused Rasheed Sheikh and recovery of blood-stained hatchet and clothes from him and the Mashirnama has been produced as Ex.14-A. He has also produced a letter addressed to the M.O. Daur as Ex.14-B, Dr. Mohammad Ismail PW-7 who had examined injured Mohammad Aslam initially, and has produced the Medical Certificate as Ex.15-A, Dr. Mohammad Tariq PW-8 who had carried on the post-mortem of deceased Mohammad Aslam and has produced the post-mortem report as Ex.16-A, S.H.O. Zafaruddin Farooqui PW-9 who had conducted the investigation and had sent the blood-stained articles to the Chemical Analyser and the report has been produced as Ex.17-B.

6. Complainant Noor Mohammad has fully supported the contents of his F.I.R. and has further deposed that injured Aslam was first admitted at Daur Hospital, from where he was referred to Civil Hospital, Nawabshah, and, thereafter, he was referred to Karachi where he died after 5/6 days of the incident. In cross-examination he has deposed that accused Ellahi Bux Shah and Imam Shah were let off by the Police during the investigation and then he filed the direct complaint. Mukhtiar father of deceased was alive and was residing at Karachi. Deceased Aslam was student and had passed his Matriculation examination at Nawabshah. He did not know accused Rasheed Sheikh prior to the incident. He was not present at the time when deceased Aslam had asked Rasheed Sheikh not to pass in front of their house, but Aslam had informed him about this fact on which accused Rasheed Sheikh was annoyed. He denied that the street where the incident took, place was thoroughfare but it was street in the town. Deceased Islam had stopped accused Rasheed because he was not of good character. Deceased Aslam was beautiful to some extent. He denied that Aslam was also not of good reputation. He has admitted that about 5/6 days prior to this incident, Aslam had received knife injuries, but he denied that Jamalies had given him the injuries. He could not say if the F.I.R. of this incident was lodged. He has admitted that there is Police Station, Health Centre, High School and other facilities in Daur Town. The incident took place in the main Bazar of Daur. He denied that PW Ishaque was his nephew but in fact he was his caste fellows. He denied that PW Tahir, Aijaz, Ghulam Mustafa and Khursheed Alam were maternal-uncles of deceased Aslam. His house was two furlongs away from the place of incident. Houses of PWs Tahir, Aijaz, Ghulam Mustafa and Khursheed Alam were about half furlong away from the place of incident. He was going to the Bank while the deceased was going to purchase medicine. Many other persons were standing in the bazar at that time. Aslam informed him that those persons were Rasheed Sheikh and other accused persons. At the time of incident hotels and shops were open. Many other persons had come to intervene from Daur town. He has admitted that all the witnesses are Khanzadas by caste. He has denied that. he was not present at the time of incident. He raised cries while deceased Aslam received injuries. About 4 days prior to this incident accused Imam Shah had also fought with Aslam. This incident did not take place in his presence. Accused Imam Shah and Ellahi Bux Shah had caught hold of deceased Aslam but they did not give any injuries to him. They had caught him from the arms and other parts of the body Dr. Aslam is a Nekmard. His shop was just near the place of Wardat He has denied that on the day of incident accused Imam Shah was ill and was under treatment of some Hakeem while Elahi Bux was present at his land situated in Deh 70 Nusrat.

7. Muhammad Tahir PW2 has deposed that he knows the parties. About two years back at 9.30 a.m. he had gone to the bazar to purchase medicines for his father PW Aijaz was also with him, who also met him in the bazar. When they reached the Cabin of Munshi Khan they heard cries of complainant Noor Muhammad of "murder murder". He saw that accused Ellahi Bux Shah and Imam Shah had caught hold of deceased Aslam, accused Rasheed gave hatchet blows to Aslam on back side of his head. They went running there and when they reached near the accused Ellahi Bux Shah showed them pistol and threatened them that they should not go near them and thereafter the accused ran away. Deceased Aslam fell down on the ground and his brain matter had come out and he was bleeding. Thereafter, they arranged the Datsun, the complainant and Aijaz took him to the hospital where Doctor directed them to first go to the Police Station and bring letter from there, on which complainant Noor Mohammad went to the Police Station for lodging the F.I.R. and letter. Police came to the hospital and recorded his statement. Six seven days prior to the incident deceased Aslam had stopped accused Rasheed Sheikh not to pass from their street on which accused Rasheed Sheikh was annoyed and there was also a case under section 117, Cr.P.C. between the parties. Aslam died at Karachi after 3/4 days of the incident. In cross-examination he deposed that he is caste-fellow of the complainant but not his nephew. Accused Rasheed was not known to him prior to this incident. He (witness) is Zamindar by profession. He denied that deceased Aslam was not of good character. About 100-150 persons came at the place of incident, Aijaz had met him in the Bazar. They did not follow the accused. PW Aijaz was neither related to him nor to the complainant. He has admitted that accused Imam Shah and Ellahi Bux Shah were not on inimical terms with deceased, but they were friends of co-accused Rasheed Sheikh. Both the accused had caught hold of the deceased Aslam from both the sides of the body, from one side one accused had caught hold of him and from other side the other accused had caught hold. He has denied that Ellahi Bux Shah and Imam Shah were not present at the Wardat.

8. Mashir Ghulam Mustafa PW-3 has deposed that about two years back police had seen the injuries on the person of injured Mohammad Aslam and had also seen the Wardat. He has produced Mashirnamas as Exs. 11-A and 11-B. In cross-examination he has deposed that he is Khanzada by caste so also the co-mashir. He has admitted that 15-20 thousand persons reside in Daur town. The place of incident was on pucca road in the Bazar of Daur. There were shops and hotels on both the sides of the road belonging to the Sindhis, Punjabis, and other castes. The shops and hotels were open at the time of incident. He has admitted that prior to this incident also there was a quarrel with deceased and he had received knife injuries but he could not say whether this quarrel was with Jamalies.

9. Mashir Khurshid Alam PW-4 has deposed that police had made him Mashir of dead body and inquest. He has produced Mashirnama and inquest report as Exs.12-A and 12-B.

10. Aijaz Khan PW-5 has deposed that about two years back he and PW Mohammad Tahir were present in the Bazar of Daur. At about 9.30 a.m. he had heard cries of murder-murder. They saw that deceased Aslam received hatchet injuries and accused Rasheed Sheikh was removing his hatchet from the head of deceased Aslam while accused Imam Shah and Ellahi Bux Shah had caught hold of deceased Aslam. Thereafter accused Ellahi Bux Shah took out pistol and showed to the people there and threatened them that they should not go near them otherwise he will kill them. Thereafter accused ran away. Thereafter they took the injured to the hospital, Doctor advised them to lodge the report first, therefore, complainant Noor Mohammad went to lodge report. The injured was ultimately referred to Karachi hospital where he died. His statement was recorded by ACM. He has also examined in preliminary enquiry before Magistrate. In cross-examination he has denied that he had stated before the police that he and Noor Mohammad were residing in the same Mohallah. He has denied that the accused Rasheed Sheikh had also gone to the hospital. He has admitted that he has stated in his 164, Cr.P.C. statement that Rasheed Sheikh was also with them when they removed the deceased to the hospital, but this Rasheed was not with them but that Rasheed Sheikh was another man. That he had stated in 164, Cr.P.C. statement that accused Rasheed Sheikh had given hatchet injury to the deceased Aslam and he was removing the hatchet and that complainant Noor Mohammad was standing there. He could hot give the motive for the murder of deceased Aslam. He could not say if there had been despite and quarrel with the deceased Aslam twice or thrice prior to this incident as he was a beautiful boy. He was admitted that about 1 or 12 years back deceased Aslam had received knife injuries. He denied a suggestion that he was maternal-uncle of deceased Aslam. He could not say whether Imam Shah and Ellahi Bux Shah had any enmity with the deceased. He denied a suggestion that Imam Shah and Ellahi Bux Shah were not present at the time of incident.

11. Mohammad Ashraf HC Police PW-6 has deposited that on 24-5-1984 he was Head Constable at P.S. Daur. On that day accused Abdur Rasheed Sheikh came at P.S. and produced blood-stained hatchet before him. He was also wearing blood-stained clothes. Thereafter, S.H.O. Zafaruddin Farooqui secured the clothes and sealed the articles it his presence and prepared such Mashirnama. He has produced Mashirnama Ex.14-A. He had referred injured Aslam to the Doctor and letter has been produced as Ex.15-B. In cross-examination to Advocate of accused Abdur Rasheed Sheikh he deposed 'that accused appeared before them at 5.00 p.m. S.H.O. had tried for the arrest of the accused prior to his arrival. There were other cases filed under section 107, Cr.P.C. between the accused and deceased prior to this incident.

12. Dr. Mohammad Ismail PW-7 has deposed that on 24-5-1984 he was C.M.O. in Nawabshah, Medical College Hospital. On that day he received injured Mohammad Aslam from S.H.O. Daur for examination, treatment and certificate. He examined the injured and found the following injuries on his person:

13. Incised wound 10 cm x 4 cm x bone deep at right parito occipital region with brain matter out from injury. Meninges were cut. X-ray skull shows fracture of parito occipital bone on right side. '

14. According to him the injury was grievous in 7 nature and was caused by sharp cutting weapon such as hatchet. The injury was about 12 hours old at the time of examination, He has produced the certificate as Ex. 15-A .

15. Dr. Mohammad Tariq PQ-8 who carried on the post-mortem on the dead body of Mohammad Aslam has deposed that on 29-5-1984 he was C.M.O. at Nawabshah Medical College Hospital on external examination, he found the following injuries on the person of deceased.

16. An incised wound 10 cm x 4 cm x bone deep with brain matter out from the injury at right parito occipital region.

17. On internal examination he found fracture of skull at right parito occipital bone. Membrane was ruptured, brain matter was ruptured.

18. On external as well as internal examination he was of the opinion that the death of deceased was due to haemorrhage and shock which was caused by injury to vital organ such as brain. Injury was caused by sharp cutting weapon and was ante-mortem. The time which elapsed between death and post-mortem was about 9 hours. He issued such report which has been produced as Ex.16-A.

19. S.H.O. Zaffaruddin Farooqui PW-9 has deposed that on 24-5-1984 he was SHO Daur. On that day complainant Noor Mohammad came at the P.S. and lodged his F.I.R. which he had recorded and obtained his signature. The rest of the investigation carried on by him has already been mentioned in the earlier part of this judgment, He has produced Mashirnama of arrest of accused Ellahi Bux Shah and Imam Shah as Ex.17-A. He has produced the chemical report as Ex.17-B. In cross-examination he has deposed that Police Station was half furlong away from the place of incident. The Wardat was in the middle of Bazar. There are hotels and shops belonging to people of different castes around the place of Wardat. When he reached at the Wardat there were 100-200 persons present at the Wardat. He examined DWs. Ghulam Hussain, Ayoob, Ghulam Hyder and others who had the shops near the Wardat. He did not remember whether in his tenure deceased Aslam had received knife injurios and such report was lodged. He has admitted that from his investigation he came to know that accused Ellahi Bux Shah and Imam Shah were innocent and thereafter he recommended that they should be let off.

20. After the close of prosecution case the statements of the appellants were recorded under section 342, Cr.P.C. in which they denied the allegations. However, accused Abdur Rasheed examined Abdul Ghafoor DW-1 and Nek Mohammad DW-2 while appellants Ellahi Bux and Imam Shah examined Hafiz Mohammad Falak Sher DW-3 and Haji Mohammad Essa DW-4.

21. Abdul Ghafoor DW-1 had deposed that he is vegetable seller. He knew the parties. PWs Aijaz and Mohammad Tahir are related to the complainant Noor Mohammad. His shop was 3/4 paces away from the place of Wardat. The present incident took place about 3 years back. He knew accused Abdur Rasheed. He saw deceased while he was being given injuries and was raising cries. There were five persons who were causing injuries to Aslam. They were with muffeled faces. He did not identify those persons but Abdur Rasheed Sheikh was not present amongst those persons. PWs Aijaz, Tahir Mohammad and Noor Mohammad were not present at the time of incident. After sometime complainant Noor Mohammad alone came there. In cross-examination he had deposed that he had not brought the identity card. He denied that he was not residing at Daur town. He denied that he was resident of Pirjo Goth District Khairpur. It was not a fact that accused Abdur Rasheed Sheikh was son of his sister but he was related to him. He denied a suggestion that accused Rasheed Sheikh was his son-in-law. He denied that he was not present at the Wardat. On the day of incident Nek Mohammad DW-2 has deposed that he knows the parties. He runs a hotel in Daur Town and his hotel is situated 4/5 paces away from the place of incident. There were five persons who committed murder of Aslam. PWs Tahir Mohammad, Aijaz and complainant were not present at the time of incident. The accused were not known to him. At the time accused Abdur Rasheed Sheikh was not present there. In cross-examination he has deposed that he is residing at village Lyari which was 10 miles away from the place of incident. He was not a Nekmard. There were 20-22 persons present at the time of incident. He has denied a suggestion that actually accused Rasheed Sheikh had committed murder and that he was giving false evidence.

22. Hafiz Mohammad Falak Sher DW-3 has deposed that he is Hafiz-e-Quran. On 24-5-1984 murder of deceased Aslam was committed about 20 feet away from his shop. At the time of incident at about 9.30 a.m, he was present at the shop. He did not see accused Ellahi Bux Shah and Imam Shah at the place of Wardat at the time of incident. He only saw one person with a muffled face running away. He saw that Aslam was lying injured there and his heirs came and took him away. In cross-examination he has deposed that he had seen accused Rasheed Sheikh at P.S. He did not make any application to Police authorities that accused Imam .Shah and Ellahi Bux Shah were not present at the place of Wardat. He has denied a suggestion that he was man of Ch. Lateef and that he was giving false evidence.

23. Haji Mohammad Essa DW-4 has deposed that he is Hakeem and has a shop in Daur town. On 24-5-1984 at about 8-30 p.m. he was sitting at his shop when Imam Shah came to him as he was suffering from stomach ache for taking medicines. He gave him medicine and after a while he vomitted. He again gave him medicine and asked him to sleep in the shop. Thereafter, accused Imam Shah left his shop at 12.00 noon Police had examined him. In cross-examination he has deposed that sometime he used to enter the name and parentage of his patient in his register and some time not. He did not keep any register of patients at his shop. Accused Imam Shah was known to him prior to this incident. He is resident of Daur town. The place of incident was one and half furlongs away from his shop. He came to know that Imam Shah was arrested in a murder case. He did not make any application to police that Imam Shah had been implicated falsely. He did not remember as to when his statement was recorded by police. He denied a suggestion that he was on visiting terms with accused Imam Shah and was therefore giving false evidence.

24. The learned trial Judge while relying upon the occular evidence and recovery of blood-stained clothes and hatchet from the appellant Abdur Rasheed convicted the appellants as described above and the present appeal is directed against the above judgment of conviction.

25. It has been contended by Mr. Mohammad Hayat Junejo learned counsel appearing for the appellants that the appellants Ellahi Bux Shah and Imam Shah had no motive to be party to the murder of deceased Mohammad Aslam. That Ellahi Bux Shah and Imam Shah had no concern with co-accused Rasheed Sheikh, and the prosecution story that the two appellants caught hold of the deceased under the orders of Rasheed Sheikh was absurd. It was further contended that the incident had taken place in the town and the place of incident was surrounded by shops and hotels, but not a single independent witness was cited or examined by the prosecution. That since there was no corroboration of interested testimony the conviction of the appellants was bad in law. As far as the two appellants were concerned, their conviction was liable to be set aside.

26. That as far as appellant Rasheed was concerned it was contended by Mr. Mohammad Hayat Junejo that it was a chance meeting and there was no evidence that there was any pre-planning on the part of the appellant. He has further contended that there was no evidence that the injury caused by appellant Rasheed Sheikh was of grievans nature, and therefore, the offence if any will fall under section 304 Part II, P.P.C.

27. Mr, Rasheed Tariq Khan learned counsel appearing for the State has contended that there was motive on the part of appellant Rasheed Sheikh which was mentioned even in the F.I.R. That there was ocular evidence of independent witnesses who had no enmity with the appellants, therefore, the case against the appellants was proved beyond reasonable doubt, and the judgment of the learned trial Judge does not call for any interference.

28. Mr. S. Murtaza Hussain learned counsel appearing for the complainant has contended that the ocular evidence was natural, straightforward, and was free from any doubt. That the witnesses had no enmity against the appellants and therefore, their evidence itself was enough to form basis for conviction. Even there was recovery from appellant Rasheed.

29. I have considered the contentions of the learned counsel, and have gone through the R & P of the case. The incident had admittedly taken place in the town of Daur and there is a Town Committee. The place of Wardat was surrounded by shops and hotels on both sides but not a single witness from the shop-keepers has been cited or examined as a witness in this case. The F.I.R. as well as the evidence of witness in examination-in-chief does not show that appellants Ellahi Bux Shah and Imam Shah had any motive to kill deceased Mohammad Aslam. Even there was no allegation that the two appellants were connected in any way with appellant Rasheed Sheikh. According to the prosecution Ellahi Bux Shah was armed with pistol while Imam Shah was empty handed. There was no allegation that Ellahi Bux Shah fired at the deceased. From the circumstances of the case it appears that there was a chance meeting between the parties, and it was appellant Rasheed Sheikh who gave a single hatchet blow on the head of Mohammad Aslam. The very fact that accused Imam Shah was empty handed, while accused Ellahi Bux Shah though armed with pistol did not fire at the deceased goes a long way to show that there was no common intention on the part of the two appellants to kill deceased Mohammad Aslam. The allegation of catching hold is further falsified by the fact that no blood-stained clothes were secured from the two appellants. It was also admitted by P.W. Mohammad Tahir that accused Imam Shah and Elahi Bux Shah were not on inimical terms with deceased. Ever the police had found the appellants Ellahi Bux Shah and Imam Shah innocent during the investigation, and therefore, they were let off. It was on the direct complainant filed by the complainant that the process was issued against the appellants, and they were tried along with main accused Rasheed Sheikh P.W. Mohammad Tahir and P.W. Aijaz were persons who had come on cries of the complainant, and they did not know how the incident took place. There was no corroborative evidence against appellants Imam Shah and Ellahi Bux Shah except the ocular evidence of complainant, Aijaz and Mohammad Tahir. I am, therefore, of the considered view that looking to the circumstances of the case, the prosecution had failed to prove its case against appellants Imam Shah and Ellahi Bux Shah beyond reasonable doubt. I, therefore, allow this appeal, set aside the conviction and sentence of the appellants, and acquit them. They shall be set at liberty forthwith if not required in any other case.

30. As far as appellant Rasheed Sheikh was concerned there was evidence of motive, ocular evidence of complainant, PWs. Mohammad Tahir and Aijaz, subsequent conduct in appearing at the police station alongwith blood-stained hatchet and clothes. The Chemical Report, regarding the hatchet and clothes is also in positive. The ocular evidence is fully corroborated by circumstantial evidence including the motive and medical evidence. Even the learned counsel appearing for appellant Rasheed Sheikh has not seriously challenged the evidence mentioned above as far as this appellant was concerned. The only contention raised by the learned counsel for the appellant Rasheed -Shaikh was that the medical evidence does not show that the injury caused by him to deceased Mohammad Aslam was sufficient in ordinary course of nature to cause death. In this connection the evidence of Dr. Mohammad Ismail P.W.7, Dr. Mohammad Tariq PW.8, initial Medical, Certificate as well as post-mortem Report Ex.15-A and Ex.16-A do not show that the injury received by deceased Mohammad Aslam was sufficient in ordinary course of nature to cause death.

31. In Mahinwal v. The State 1975 P Cr. L J 1121 it was held by a Division Bench of this Court of which his Lordship Mr. Justice Mohammad Haleem the present Chief Justice of Pakistan was a member, was pleased to observe that the "appellant had caused a single blow with hatchet and that there was no motive to kill deceased. In addition thereto it was observed that although the medical evidence shows that the deceased died of intracranial haemorrhage yet there is no such an expression that the injury was sufficient in the ordinary course of nature to cause death. Therefore the conviction of the appellant was altered from section 302 to section 304 Part 11, C.P.C. and sentence of imprisonment for life was substituted by a sentence of seven years' R .I .

32. In Emmonuel Bahadur Joseph v. Paul Jackson and another 1981 SCMR 663 it was observed by their Lordships of the Supreme Court that "Section 302 P.P.C. will apply only if it is beyond any doubt established, that accused struck the blow with intent to .kill deceased , If in the circumstances it is more proper to impute to accused's knowledge rather than intention, the offence would fall under Section 304, Part II, P.P.C. than under section 302 or section 304, Part 1, P.P.C. In this case Ahmed and three others v. The State P L D 1971 SC 720 was also relied upon.

33. Reported case of Yaqoob Shah v. The State P L D 1976 S.C. 32 relied upon by the learned counsel for the complainant was with utmost respect distinguishable and was not applicable to the facts of the present case regarding the nature of offence committed by one of the appellants. In the above-cited case the question which was under consideration before their Lordships was regarding treatment of evidence of eye-witnesses who were police officials and the deceased was brother of another police official posted in a distant place.

34. In view of the above legal position and the circumstances of the case the motive alleged against the appellant Rasheed Sheikh was not such which could prompt him to cause death of deceased Mohammad Aslam. That there was a chance meeting between the parties and that the appellant gave only one blow on the head of the deceased and did not repeat the same. That the medical evidence did not show that the injury was sufficient to cause death in ordinary course of nature. Even the witnesses supporting the prosecution case were chance witnesses and two of them namely Aijaz Ahmed and Tahir had come after the deceased was attacked and therefore they could not say as to how the fight started. That although the place of incident was surrounded by shops and hotels but not a single person from the Bazar was cited or examined as a witness.

35. I am, therefore, of the considered view that the offence committed by appellant Rasheed Sheikh would fall under section 304, Part II, P.P.C. and accordingly his conviction is altered from section 302, P.P.C. to section 304 and sentence is reduced from imprisonment for life to seven years' R.I. However, the sentence of fine is maintained and in default he shall suffer R.I. for one month more. The fine if, recovered shall be paid to the heirs of the deceased.

36. I have decided the above appeal on 16-11-1987 by a short order and these are the reasons for the same

37. M.Y.H/I-35/K Order accordingly.