This appeal under section 410, Cr. P. C. Is directed against the judgment dated 19th April, 1980 of the learned 1st Additional Sessions Judge. Sukkur, whereby he convicted the appellant under section 302, P. P. C. And sentenced him to suffer imprisonment for life and also to pay a compensation of Rs. 2,000 to the heirs of the deceased or in default of payment of Rs 2.000 to suffer further R. I. For six months. At the time, when this appeal was admitted, a notice on suo moto side was also issued to the appellant to show cause as to why compensation should not be enhanced. I will dispose of the appeal as well as the S. M. R. By this judgment.
2. The facts of the prosecution case are that one Mansoor Ahmed son of Azeem Khan, by caste Awan, resident of `Waritar' Road, Sukkur lodged his F. I. R. On 18th August, 1978 .At Police Station `A'
Section, Sukkur, which reads as under :- "I and my brother Mohammad Iqbal have a tea hotel in the name of `Khan Hotel' on Waritar Road.
Ghulam Rasool has a shop adja--cent to our hotel, who used to do packing business. He used to purchase tea, etc. On credit basis from our hotel. Ghulam Rasool had purchased Tea etc. On credit basis of about Rs.
150. Today in the evening at about 5-45 O'clock' I, my brother Mohammad Iqbal and Syed Sajid Hussain were standing at the hotel that Ghulam Rasool who had wooden ---patti" of a cot passed by the hotel. My brother Mohammad Iqbal got down from hotel and demanded the money of credit from him (Ghulam Rasool). Whereupon they exchanged hash words with each other. All of a sudden, Ghulam Rasool gave blows of wooden "patti" of cot to Mohammad Iqbal on his head and other parts of his body. On receipt of blows, Mohammad Iqbal fell down on the ground forthwith. We raising challenges rushed towards the accused. The accused escaped away through streets alongwith the wooden `patti' of cot. We went to Mohammad Iqbal and found him unconscious on account of injuries. He was bleeding from head and aria injuries. Taking him (Mohammad Iqbal) in horse-cart, d have come to P. S. To lodge report that accused Ghulam Rasool had given blows of wooden 'Patti' of cot to my brother Mohammad Iqbal on account of demand--ing credit money from him. Ghulam Rasool after giving blows of wooden 'Patti' of cot, had escaped away." I lodge, complaint, Justice be done."
3. Shoukat Abbasi A.S.I.P. P. W 8 who was Incharge of the Police Station, recorded the F. I. R Exh.
5. He found injuries on person of the injured Iqbal and prepared such mashirnama Exh.
18. He therefore referred him to Civil Hospital, Sukkur for treatment and proceeded to scene of offence which was shown to him by the complainant. It was situated in front of ---Khan Hotel' Waritar Road, Sukkur, He prepared such mashirnama Exh.
15. He also secured blood-stained earth from there, sealed the same, and returned to the police station where he received the telephonic message about death of Iqbal from the Civil Hospital Sukkur. He went to the hospital where he saw the dead body of Iqbal lying in the emergency ward there. He prepared such mashirnama Exh.
11. He then prepared inquest report Exh.
12. He arrested the accused Ghulam Rasool and prepared such mashirnama Exh.
16. He thereafter exa--mined P. W. Sajid and recorded the statements of Khushi Mohammad P.
W. 5 and Mohammad Akram P. W.
3. The accused voluntarily led police to his shop which was closed at that time. He opened it and pro--duced a `wooden Patti, of cot lying in the corner of the shop. He secured it under mashirnama Exh. 17 and sent it to the Chemical Analyser for report at Karachi. He also produced the report of the Chemical Analyser as Exh.
23. He then handed over the papers to the S. H. O. Who challaned the accused.
4. The prosecution case is mainly based on the ocular testimony of the complainant Mansoor Ahmed P. W. 1, Syed Sajid Hussain P. W. 2, Mohammad Akram P. W. 3, Khushee Mohammad P. W. 5.
Recovery of ---wooden Patti', the report of the chemical analyser in respect of it, medi--cal evidence and the evidence of the Investigating Officer.
5. The accused, however, denied the allegations and did not examine any one in defence.
6. The Medical evidence shows that deceased Iqbal died as a result of injuries caused to him by some hard and blunt weapon. Dr. Liaquat Ali Shah, who preformed the autopsy has been examined and he has stated as under :- "On 18th August, 1978, I was Medical Officer, Civil Hospital, Sukkur. On that day, at 10.30 p. m. I received dead body of Iqbal Ahmed son of Mohammad Azeem, by caste Awan, resident of "Waritar Road" Sukkur, sent by A. S. I. P. `A' Section Sukkur. This was a body of male, Muslim, aged about 35 years, who expired in Civil Hospital, Sukkur. On external examination of the body I found as under :-
(1) Bleeding from both nostrils.
(2) Laceration 1`x 1- x bone deep on the back of right elbow.
(3) A heamaoma 2" in diameter on the right temporal region of scalp.
(4) Laceration 1" x ----- on the right accipital region of the scalp. On internal examination I found the following damages :-
(1) Membrane of the brain were ruptured posteriorly.
(2) Occipital lobes of the brain were compressed by the fractured piece of bone i. e. Occipital and brain matter was ruptured.
(3) Skull cavity was full of blood clots. The other organs were nor--mal, and healthy.
From the external and internal examination of the dead body, I am of the opinion that death of Iqbal was due to shock and haemorrhage due to injuries on the vital organs. The injury of the brain was individually sufficient and all the injuries collectively were sufficient to cause the death of the deceased in the ordinary course of nature. The injuries were ante-mortem. The time between injuries and death was about six hours and between death and post--mortem were within 12 hours, I issued such post-mortem notes which I produce as Exh.
20. It is same, correct and bears my signature."
7. At the trial, the prosecution has examined the complainant Mansoor Ahmed brother of the deceased Iqbal. He has stated that his brother demanded money from the accused Ghulam Rasool when their employees Mohammad Akram, Khushi Mohammad and Syed Sajid Hussain were also sitting at the hotel. The amount was a balance of Rs. 150 outstanding against the accused Ghulam Rasool. The accused Ghulam Rasool replied to him that alright, he was giving him. He had a lath (stick of cot) in his hand. The deceased Iqbal was keeping utensils when accused came from his back and inflicted 5/7 `danda' blows on him which he received on his head and other parts of his body and he fell down as a result of it. He has also stated that accused Ghulam Rasool was their customer and was used to purchase tea on credit basis. About 17 months back at 4-45 p. m.
He alongwith their employee Akram, Khushi Mohammad and Sajid Hussain were sitting at the hotel.
They were in need of money as the `Eid' was approaching near and due to it Iqbal (deceased) demanded money from accused Ghulam Rasool in front of their shop. He used to make payment and also take tea on credit basis. The relations between the accused and the complainant side were cordial prior to the incident.
8. Syed Sajid Hussain P. W. 2 who has been named in the F. I. R: as an eye-witness has, however, not supported the prosecution case and has, therefore, been declared hostile.
9. Mohammad Akram P. W.3 and Khusbi Mohammad P. W1 5 have supported the complainant and have stated that the accused Ghulam Rasool gave `danda' blows to the deceased Iqbal from his back side and they witnessed the occurrence. Mohammad Akram is working as a bearer in the hotel whereas Khushi Mohammad works at the place where the complainant works. Mohammad Hanif P. W. 6 is a mashir, who has supported the recovery of a "wooden Patti" of the cot from the accused Ghulam Rasool.
11. Mr. Azizullah K. Shaikh, the learned counsel for the appellant has contended that the appellant has inflicted the injuries on person of the deceased without any premeditation. He was carrying a `wooden path' at the time of incident when the deceased demanded money from him. The incident being unpremeditated one and the injuries caused to the deceased are from a `wooden patti' with no animosity between the accused and the deceased who were on the contrary having cordial relations bet--ween them, the offence therefore would fall under section 325, P. P. C. And not under section 302, P. P. C. He places his reliance on 1972 P Cr. L J 264.
12. Mr. A A. Dareshani, the learned counsel appearing for the State is also of the view that there being not intention for causing death of the deceased Iqbal, the offence would fall under section 325: P. P. C. And not under section 302, P. P. C. It would be therefore proper to alter the conviction from section 302, P. P. C. To one under section 325, P. P. C. And sentence of 5 years' R. I. Would meet the ends of justice under the circumstances of the case.
13. I have heard the learned counsel for the appellant as well as State. I have carefully read the evidence on record and have gone through the citation referred to above by the learned counsel .For the appellant. There is no denial of the fact that the appellant and the deceased were having cordial relations with each other. The incident is of course with--out any intention on part of the appellant for causing death of the deceas--ed which has occurred at the spur of moment and the case put forward even by the prosecution witnesses is of this nature. Moreover the weapon is a `wooden patti' which cannot be considered as a weapon ordinarily used for causing death.
Therefore taking all the facts and circumstances into consideration, the appellant cannot be saddled with intention of causing death of the deceased. The injuries caused to the deceased under no circumstances were with intention of causing his death. I therefore consider the conviction of the appellant under section 325, P. P. C. To be proper conviction rather than under section 302, P. P. C. Therefore con--viction under section 302, P. P. C. Is altered to one under section 325, P. P. C The appellant has remained in custody as a4 under-trial priso--ner from 18th August, 1978 to 19th April, 1980, when he was convicted by the trial Court. Therefore taking into consideration, the period of his detention in terms of section 382-B, P. P. C. a sentence of 5 years R. I will be adequate under the circumstances which is awarded to him.
1.4. In the result, this appeal is allowed only to the-extent of altera--tion of conviction under section 302, P. P. C. To one under section 325, P. P. C. And in the mo4ification of the sentence of life imprisonment to 5 years' R. I. And fine of Rs. 2,000 only and in default of payment of fine to suffer R. I.
For six months more. In case the fine is recovered, it A has got to be given to the heirs of the deceased as compensation. The suo Motu notice issued to the appellant for enhancement of compensation is also vacated under the circumstances of the case. The judgment for alteration of conviction and modification of sentences was announced ear--lier and these are the reasons for it.