SHAMEEM HUSSAIN KADRI, J.---Appellant Shah Muhammad was tried by the learned Sessions Judge, Lyallpur for the murder of Muhammad Saleem. On 4-6-1968, he convicted him under section 302, P. P. C. And sentenced him to transportation for life and a fine of Rs. 2,000 or in default of payment, to undergo further R. I. For three years.
2. Appellant Shah Muhammad brought up his nephew Muhammad Saleem and arranged for his marriage with Mst. Hamida. They were living together in the same courtyard. Shah Muhammad's wife had been sick for the last one year and he suspected Muhammad Saleem deceased and his wife Mst. Hamida to have played some black magic on her and on that account he was annoyed with them. On 27-9-1967 at about 6 p. m. Mst. Hamida was plastering the walls of her cattle shed and Muhammad Saleem, her husband, was helping her. The appellant came at the spot and remarked that they were plastering the walls of the cattle shed while his wife was sick on account of their bad act of black magic. Shah Muhammad immediately went in his house, brought a stick and gave a blow on the head of Muhammad Saleem who fell down unconscious. The occurrence was witnessed by Abdul Majid (P. W. 8) and Shadi (P. W. 9). They later took the deceased on a cot to Civil Hospital, Gojra, where he died at 4 p. m. On 28-9-1967.
3. P. W. 2 Dr. Muhammad Rafiq, A. M. O., Civil Hospital, Gojra, attended to Muhammad Saleem when he was brought as a patient on 27-9-1967 at 10-30 p. m. He found a contusion mark 1--" x 1", 4--" above the left ear on the skull along the mid-line. The injury was dangerous to life and was caused by a blunt weapon.
Dr. Masood Farooqi, Medical Superintendent, Civil Hospital, Gojra (P. W. 1) performed post-mortem examination on the dead body of Muhammad Saleem on 29-9-1967 at 6-45 a.m. And found the same injury on the head of the deceased which was noticed earlier by Dr. Muhammad Rafiq (P. W.
2). On opening the scalp a fissured fracture of the skull was visible extending from the site of the external injury backward and downward with oozing of the blood. A contra-lateral fissured fracture was present on the left middle cranial fossa. There was large collec--petition of blood inside the dura in the right side. There was collection of blood around the area of pons under the tentorium cerebri. Death in the opinion of the doctor was due to head injury caused with a blunt weapon leading to fracture of skull and intra-cranial haemorrhage. The injury was sufficient in the ordinary course of nature to cause death, probable time between injury and death was 12 to 36 hours and between death and post-mortem was about three hours patient having died in the hospital at 4 p.m. On 28-9-1967.
4. Statement of Mst. Hamida was recorded by Ch. Abdul Majid, Sub-Inspector (P. W. 11) on 28-9- 1967 at 7-40 a.m. He also recorded the formal F. I. R. (Exh. P. C. 1) at Police Station Gojra. The distance between the place of occurrence and Police Station is about 5 miles. The hospital is situated nearby the police station in the town of Gojra.
5. Shah Muhammad appellant was arrested on 29-9-1967 by Abdul Majid Sub-Inspector (P. W. 11).
He produced stick (Exh. P. 1) from his kotha which was taken into possession vide memo. Exh. P. A.
The recovery memo was attested by Muhammad Yaqub (P. W. 5) and Muhammad Ashraf brother- in-law of the deceased who has not been produced. The recovery in this case is immaterial since the dang was not found to be stained with blood.
6. The ocular evidence in this case consists of widow of the deceased Mst. Hamida (P. W. 7), Abdul Majid (P. W. 8) and Shadi Chowkidar (P. W. 9). Minor discrepancies were pointed out in their statements. We, however, feel that these discrepancies do not affect the prosecution case. It was further submitted that two witnesses other than Mst. Hamida were chance witnesses and not the real eve-witnesses of the occurrence. Regarding Mst. Hamida it was submitted that the relations between the appellant and Mst. Hamida had become strained on account of the appellant asking her to get her share of the property from her father. We are, however, not persuaded to agree with the submissions made before us by the learned counsel for the appellant. We are equally not impressed that :here was any motive for the appellant to kill the deceased. The appellant, who had brought up the deceased and arranged his marriage, would not have killed Muhammad Saleem on a mere suspicion that he and his wife were responsible for witchcraft influence on the wife of the appellant. We feel that someth--ing had happened before the occurrence which created circumstance for the appellant to beat the deceased. Shadi Cliowkidar (P. W. 9) who is one of the eye-witnesses of the occurrence, admitted before the Committing Magistrate that there was some altercation between the appellant and the deceased which lasted for 10 or 15 minutes. Although he had resiled from his statement at the trial but we feel inclined to hold that the statement made by this witness before the Committing Magistrate seems to be correct. In these circumstances the intention to kill the deceased cannot be inferred. At the most the appellant wanted to give him some beating for his mis--behaviour which resulted in his death.
7. The question now remains as to what offence the appellant has committed in the circumstances of this case. We know that the appellant gave a single blow with the stick on the head of the deceased which proved fatal. There was no intention of the appellant to kill the deceased. But the appellant cannot escape that he had not the knowledge that such an injury was likely to cause death of Muhammad Saleem. Anwar and another v. The State (PLD 1965 Lah. 378), a Division Bench case was cited by the learned counsel to bring his case within the ambit of section 325, P. P.
C. 1n the case two persons gave head injuries to the deceased one of which was grievous and the other was simple. The learned Judges in view of the relationship of the appellants with the deceased and the absence of intention to kill altered their convic--petition from section 302, P. P. C.
To section 325, P. P. C. With respect we do not feel inclined to follow the case cited above. In our view the conviction under section 304, Part II, P. P. C. Would be appropriate in the instant case. We would therefore, alter the conviction of the appellant from section 302 to section 304, Part II, P. P. C.
Owing to the relationship of the appellant with the deceased, we feel that sentence of three years R. I. Would meet the ends of justice in this case. This appeal is, therefore, accepted to the above extent.