NASIR ASLAM ZAHID, J.--This appeal under section 410, Cr. p. C. Has been filed by the convict- appellant Loung son of Allahdino Solangi against the Judgment dated 10-9-1979 of the learned III Additional Sessions Judge, Hyderabad, whereby the appellant has been convicted under section 302, P. P. C. And sentenced to imprisonment for life. This appeal was admitted by order dated 22-9- 1979 of this Court and while admitting the appeal this Court ordered issuance of notice to the appellant for enhancement of sentence.
2. The prosecution case is that the deceased, Muhammad Rahim son of Wasaro Salangi, had been hit by the appellant with a 'paharl' (a wooden spade) on 19-2-1973 and initially a case was registered against the appellant under sections 324 and 323, P. P. C. And the offence being bailable the appellant was enlarged on bail by the police, but later on the deceased died on 7-6-1973 and, as according to the prosecution case the death of the deceased was the direct result of the injury cause by the appellant on 19-3-1973, the appellant was arrested. Again and prosecuted under section 302, P. P. C.
3. The time of occurrence as given in the F. I. R. Is 10 a.m. Era 19-3-1971 in the open cattlepen, deh Gujho, Taluka Hyderabad 3 miles south of Police Station Hatri where the F. I. R. Was lodged the same day at 14-00 hours by the complainant Nabi Bux son of Ahmad Khan Salangi, brother-in---law of the deceased. According to the F.
1. R. The complainant and his deceased brother-in-law lived in village Bachal Solangi. The deceased had brought 3 buffaloes from somewhere for milking purposes and on the day of the incident the complainant received a telephonic message at about 10-30 a.m. That the appellant had quarelled with the deceased in the village and bad given him a blow. On receipt of such information the complainant went to the scene of offence in the village where eye-witness Khair Muhammad (P. W. 2), nephew of the deceased, informed the complainant that at 10 am. The deceased was standing at his cattlepen when brother Muhammad Buz and Loung (the appellant) both sons of Allahdino, came there and told him that the owner of the buffaloes had asked the two brothers to take the buffaloes away for milking purposes, whereupon the deceased told them that he would not band over the buffaloes to them until he obtained confirmation from the owner. This resulted in exchange of heated . Arguments between them and according to the F. I. R. Both the brothers pounced upon the deceased and tied both his arms behind his back and gave the deceased blows with araks on his bead which started bleeding.
Commotion being raised Khair Muhammad (P. W. 2). Haji son of Haji Unis (P. W. 3) nephew of the complainant, and Bajboo son of Wasaro came running and rescued the deceased and untied his arms. Thereafter Khair Muhammad telephoned the complainant. After this the complainant took the deceased to Civil Hospital, Hyderabad and got him admitted and then came to make the report at the Police Station. Muhammad Bux brother of toes appellant, was also directly involved in the F. I R. But he could not be brought to trial as he died before the trial could commence. Only the appellant has faced the trial.
4. According to Dr. Iqtadar Hamid Bhatti (P. W. 8) who was at the time Assistant Professor in the Department of Neuro-surgery at Jinnah Post Graduate Medical Centre, Karachi, the history as recorded in the hospital notes was that the injured Muhammad Rahim had been assaulted with a sharp-edged object on 19-3-1973 at Hyderabad and he was reported to be unconscious for 7 days.
After his treatment in Hyderabad when his condition had improved Muhammad Rahim was discharged from the hospital on 4-4-1973. About 7 days after his discharge, the deceased developed headache and weakness on the right side. He was then admitted in Karachi in Ward 16 of Jinnah Hospital where his condition was poor with signes of weakness in the right side of the body and difficulty in speech. X-ray of the skull showed multiple fracture including depressed fracture of the left frontal temporal bone. On 26-5-1973 Dr. Bhatti operated on the deceased, elevated' the depressed fracture in the left frontal temporal region removing parts of the bone. In his evidence Dr. Bhatti has stated that after the operation, the patient improved initially but on 2-6- 1973 his condition deteriorated. Following this, needle exploration was carried out and this showed a chronic abscess in the left frontal part of the brain. This was treated with antibiotics but the patent did not improve. According to Dr. Bhatti there was evidence that the abscess had ruptured in the cavity of the brain. The patient died on 7-6-1976. After the death of Muhammad Rahim an 7-6-1973 the appellant was arrested on 2-7-1973.
5. According to the prosecution, the case against the appellant is based on the ocular evidence of P. W. 2 Khair Muhammad, corroboratory evidence of P. W. 3 Haji and the complainant P. W. 1 Nabi Bux, the recoveries and the medical evidence.
6. The only eye-witness is P. W. 2 Khair Muhammad, who is the nephew of the deceased. According to his evidence on the day of the incident at about 10 a.m. The witness was in his house, when he heard cries on which he a, went running out of the house and reached the cattle pen of the deceased and saw that Muhammad- Bux was standing there while the appellant was causing injuries with a `pahori' (wooden spade) on body of the deceased. Haji and Bajho (brother of deceased) also came running there whereupon the appellant and his brother Muhammad ran away. The deceased was found to be unconscious and wounded and his hands were also found to be tied by a towel from behind but none of the witnesses had seen as to who had tied this. Khair Muhammad then went to a nearby petrol pump and from there he informed his uncle Nabi Bux, the complainant, who was at Hyderabad. Khair Muhammad then shifted the deceased to Hyderabad where Nabi Bux also reached to whom he related the facts. Nabi Bux then went to lodge. The report with the police. According to P. W. .Khair Muhammad the deceased died on 7-6-1973 in Jinnah Hospital, Karachi. According to ibis witness, before the incident he bad heard the appellant and the decease! Quarrelling over a buffalo. They were quarrelling in the cattlepen which was separated from Khair Muhammad's house by a wall. In cross-examination the witness admitted that the `Pahori' was of wood. He further stated that the appellant bad inflicted 2-3 blows by `Pahori' on the deceased in the presence of the witness although the other evidence was to the affect that only one blow was inflicted.
7. The evidence of the eye-witness Khair Muhammad is corroborated by the evidence of P. W. 3 Haji. According to this witness, he had not seen the appellant inflicting any blow by `Pahori' to the deceased as according to this witness, the appellant had already inflicted a blow by 'Pahori' to the deceased on his head this was told to Haji by Khair Muhammad. According to Haji, the deceased remained as an indoor patient for about one month in Liaquat Medical Hospital at Hyderabad, from where he was discharg--ed after about a month, and thereafter he was again admitted in the hospital and was then sent to Jinnah Hospital, Karachi where be died. In his cross--examination he stated that Nabi Bux complainant had come to their village along with him and then shifted the deceased to the hospital.
8. P. W. 1 Nabi Bux is the complainant and he confirms the facts stated by him in the F. I. R. In his statement Nabi Bux has stated that Haji son of Uris (P. W. 3) was the husband of his sister and his house was about half a mile away from the house of Nabi Bux. This witness also stated that the deceased was discharged from the Hyderabad Hospital after about a month and after some time he fell seriously ill and after examination in Hyderabad Hospital he was advised to go for treatment to Jinnah Hospital, Karachi.
9. P. W. 6 is Head Constable Gohar Rahman of Market Police Station who was on duty in Hyderabad Hospital on 19-3-1973 where Khair Muhammad had brought injured Muhammad Rahim. Gohar Rahman had requested the Medical Officer for examination, treatment and certificate of the injured. He also prepared a mashirnama of the injuries which is Exh.
17. According to the mashirnama dated 19-3-1973 prepared at 11 a.m. By Gohar Rehman and signed by the mashir Nabi Bux and Khair Muhammad, the injuries noted were two injuries above forehead on the left side of the head which were bleeding.
10. The Medical Officer Dr. Muhammad Taqi of Liaquat Medical College, Hyderabad was examined as P. W.
10. According to this witness, the deceased was examined by him and he found an incised wound of 1' X 1/3' x -- ' on forehead about 2-- above left eye-brew with fracture on the frontal bone.
According to him, the nature of the injury was grievous and the weapon used was sharp-cutting.
He had issued a certificate Exh. 12-A to that effect on 19-3-1973. The witness was at that time incharge of the Medico-Legal Department and on the same day he had referred the injured to the X-Ray Department from where he got the report that the injured had a fracture on the front position. He admitted that after 19-3-1973 he had not examined the injured. The 'Medical-Legal'
Certificate which is dated 19-3-1973 shows the same injury and further mentions fracture of bone vide X-ray report No. 3-4-11053 dated 12..4-1973. In his cross--examination he admitted that he had issued the Medical Certificate on 19-3-1973 when X-ray report was not available although his certificate refers to the X-ray report dated 12-4-1973.
11. Exh. 11 dated 19-3-1973 is the mashirnama of wardat and Exh. 12 of the same date is the mashirnama of recovery of the `Pahori' according to which mashirnama there was no blood stains on the Pahori'. Exh. 14 dated 19-3-1973 is another mashirnama of the dirty old towel with a square print which was recovered from the scene of accident. This towel was supposed to be on the head of the injured Muhammad Rahim from where it was removed and the arms of Muhammad Rahim were tied by the two accused. The towel was secured by the police but no blood stains were found.
The Chemical Examiner's report is dated 6-7-1979 although the sealed parcel containing the blood-stained earth secured from the scene of the wardat was received by the Chemical Examiner on 8-4-1974. This report has been given by the Chemical Examiner after nearly 5 years and 3 months and no explana--petition for the delay has been given. According to this report, the earth was found to be stained with human blood.
12. Mr. Azizullah Shaikh, the learned counsel for the appellant, has raised two-fold contention before us. Firstly he has argued that from the evidence on record it has not been established by the prosecution that the person who died in Jinnah Hospital, Karachi on 7-6-1973 was Muhammad Rahim son of Wasaro. In support of his contention in this regard he contended that no one had identified the body and further no post-mortem of the body of the deceased took place. Further he argued that none of the witnesses have given any evidence that they had taken the deceased to Karachi and got him admitted there and that it had also been established that the body of the person who died at Jinnah Hospital, Karachi on 7-6-1973 and was shown as Muhammad Rahim in the hospital records was handed over to unknown persons. According to the learned counsel, the statements made by the witnesses in their depositions before the trial Court that Muhammad Rahim son of Wasaro had died in Karachi on 7-6-1973 are all here say evidence.
13. The second contention of the learned counsel is that the case against the appellant in any case has hot been made out for his conviction under sec--petition 302, P. P. C. But at best the appellant could have been convicted under section 325, P. P. C. For the injury caused by the one blow with the wooden 'Pahori given by him to Muhammad Rahim: In respect of his second contention that this was a case under section 325 and not 302, P. P. C., the learned counsel has made two submissions: .Firstly, according to him, in the circumstances of the case, the blow inflicted by the appellant with the 'Pahori', even if it directly resulted in the death of Muhammad Rahim after the expiry of more than 2i months, did not make out case under section 302, P. P. C. Inasmuch as neither there was any intention on the part of the appellant to cause the death of Muhammad Rahim nor could he have realised that the blow that he was inflicting upon the deceased would have caused his death.
His second submission is that it has not been proved that the death on 7-6-1973 of Muhammad Rahim was the direct result of the injury caused by the appellant on the deceased 2J months earlier on 19-3-1973.
14. Before we take up the contention raised by. The counsel for the appellant, we may observe that from the evidence of P. W. 2 Khair Muhammadand P. W. 3 Haji, who have no enemity with the appellant, it has been established that after exchange of heated arguments, the appellant hit the deceased with a wooden 'Pahort'. We find no reason for disbelieving the evidence of these witnesses on this point.
15. We now take up the first submission made by the learned counsel for the appellant in support of his second contention that at best the prosecution case against the appellant before this Court falls under section 325 and section 302, P. P. C. Is not attracted. From the evidence on record we are satisfied that only one blow was given by the appellant to the deceased on his forehead with a wooden 'Pahori'. It is also established from the evidence that there was no enmity between the accused and deceased Muhammad Rahim and that there was a quarrel on the milking of buffaloes and heated arguments between the two sides, after which the injury was caused by the appellant. Apparently from the evidence it transpires that the appellant bad neither any intention to kill Muhammad Rahim nor could we have realised that the one blow which he was giving was likely to cause the death of the injured. In this connection there are 4 pieces of evidence which form the basis of our conclusion in this regard. The first is the evidence of P. W. 6 Head Constable Gohar Rehman that while he was on duty in the Hyderabad Hospital on 19-3-1973, the injured was brought by Khair Muhammad to him and he requested the Medical Officer for examination also prepared a Mashirnama of injuries, which mashirnama shows two injuries above forehead on the left side of the- head, which injuries were bleeding. This witness does not say whether the injuries were grievous. Then there is the evidence P. W. 10 Dr. Muhammad Taqi, who examined the injured on 19- 3-1973 and he detected only one wound on the forehead which he described as an incised wound.
He also gave a certificate (Exh. 33) dated 19-3-1973, in which he gives the nature of injury as grievous. In his cross-examination he states that he had examined the injured on 19-3-1973 and had also issued the certificate (Exh. 33) on the same day but surprisingly the certificate makes reference of the X-ray report dated 12-4-1973. He also stated in his examination-in-chief that he bad not examined Muhammad Rahim after 19-3-1973. It is obvious that the medical certificate could not have been issued on 19-3-1973 as it makes reference of the X-ray report dated 12-4-1973.
Mr. Murtaza Hussain, the learned counsel for State, was at pains to convince us that a part of this medical certificate regarding the injury was prepared by Dr. Taqi on 10-3-1973 and then the reference to the fracture of the bone on the basis of the X-ray report was inserted in the certificate on or after 12-4-1973 when the X-ray report became available to the Medical Officer concerned. We regret, it is not possible for us to accept this explanation of the learned counsel for the State. On account of this material contradiction in his testimony Dr. Muhammad Taqi's evidence cannot be accepted and in the circumstances it must be rejected for the purposes of coming to the conclu-- sion as to the nature of injury caused to Muhammad Rahim. The other relevant evidence is that of A. S. I. Muhammad Jaffer (P. W. 5) who was posted at Police Post Hatri on 19-3-1973 and had recorded the F.
1. R. At about 1400 hours lodged by complainant Nabi Bug. He states that on 24-3- 1973, after 5 days of .The incident, the appellant and his deceased brother Muhammad Bux appeared before the A S. I. At Karachi Hotel, Hyderabad and he arrested them and "released them on bail, as still then the offence was bailable." Now on 24-3-1973, the police must be aware of the medical report -of Dr. Muhammad Taqi but in spite of that witness states that he released the two accused on bail after arresting them as, according to him, till then the offence was bailable. If Dr. Taqi 's evidence is to be believed, the injury was grievous and the offence could not be bailable, but this witness even 5 days after the incident considers the offence to be bailable. This fact further creates serious doubt about the evidence of Dr. Muhammad Taqi. Lastly is the evidence of Dr. Iqtedar Hamid who had operated upon the deceased at Jinnah Hospital. He has given an undated certificate titled "To whom it may concern" (Exh. 27) in which he gives the history of the patient, but this certificate as well as the evidence of Dr. Iqtedar Hamid relating to the injuries caused, the treatment given to the deceased at Hyderabad, his discharge from Hospital, and again his readmission in the Hyderabad Hospital, then his reference. To the Casualty Department, Civil Hospital, Karachi and then his admission to the Jinnah Hospital, is all hearesay evidence. He has stated in his cross-examination that he could not recollect as to whether he had seen the past history of the patient in writing before examining him and he also did not know the source of recording the history of the patient. He has further stated that 0 he could not say with which weapon the scar was caused on the forehead of the partient and he also stated that if the deceased had received adequate surgical treatment soon after the incident the injuries to the brain might have been reduced.
16. The learned counsel for the appellant in support of his contention that the case falls under section 325 and not 302, P. P. C. Has referred to the case of Ahmed v. State (1), Anwar v. State (2) and Ghulam Muhammad v. State (3). Then there is the case of Devraj v. State (4), decided recently by a Division Bench of this Court. These reported judgments support the contention of the learned counsel.
17. From an examination of the evidence relating to the injury and on account of the indequacy of motive we have come to the conclusion, as stated hereinabove, that it has not been established that the appellant had an intention to cause the death of deceased Rahim when he gave the blow with his wooden 'Pahori' nor could he have realised at the time he gave theblow that it was likely to cause the death of the deceased. The appellant at the most intended to cause grievous hurt to the deceased. This finds support from the further fact that the instrument used was made entirely of wood. This case, therefore, falls under section 325, P. P. C.
18. As we have reached the conclusion that the offence committed b the appellant falls under section 325 and not 302, P. P. C., it is not necessary to deal with the other contentions of the learned counsel for the appellant. A The next question is of sentence. The appellant has remained in custody since 4-7-1973 till 28-10-1979 when he was granted bail, by this Court. He accordingly remained in custody for over 5 years before his conviction on 10-9-1979 when he was again taken into custody to undergo his sentence. He has been in custody for 10 months since his. Conviction by the trial Court. Taking into consideration the period of his detention before an after his conviction, we are of the view that ends of justice will be met if the sentence is reduced to the period already undergone by him. We accordingly alter the conviction! Of the appellant from section 30 al to section 325, P. P. C. And reduce his sentence to the period already under gone by him and with this modification the appeal is dismissed. As according to this judgment in appeal, the appellant has completed his term of imprison--ment, he will be released forthwith from custody if not required in an other case.
(1) PLD 1971 SC 720 (2) PLD 1965 Lah. 378
(3) 1972 P Cr. L J 993(4) PLD .1980 Kar. 246