Appellant above-named, being aggrieved by judgment dated 4 September, 1976 of the learned Ist Additional Sessions Judge, Karachi in Sessions Case No. 5265 of 1976, by which the appellant has been con--victed under- section 325, P. P. C. And sentenced to suffer R.I. For 3 years and to pay fine of Rs. 1,000 and in case of default to undergo further R.I. For three months, has preferred the above appeal, on the following, facts and Grounds
2. Brief facts of the case as alleged by the prosecution are, that on 29th- January, 1976 at about 1900 hours in Issa Nagri Karachi there was a quarrel and exchange of abuses between Mst. Rehmat Bibi wife of Sadiq Masih and Mst. Hussain Bibi wife of Sultan alias Shana Masih in the lane near the house, of the appellant. All these persons are witnesses in this case. On hearing the noise the appellant is stated to have come out of his house and further that the deceased Daniel in this case also reached the place of incident and intervened to prevent the ladies from fighting, who in return abused him. In the meanwhile the appellant, who was also there abused the deceased Daniel and on his taking objection to this the appellant is alleged to have caused him fist and kick blows. Apart from this the appellant is stated to have caused a blow on the head of Mst. Rahmat Bibi with a broken piece of danda. After this incident the deceased Daniel and Mst: Rehmat were taken to the Civil Hospital from where after due treatment the injured persons came to Police Station New Town Karachi where they lodged a complaint. The Police wrote a non cogn report under section 323/504, P. P. C:, vide station diary No. 64 at 21-20 hours.
3. That on 30th January, 1976, I.e. The day after the alleged incident at about 7-30 or 8-00 P.m. The deceased Daniel felt a severe pain in his abdomen and was removed to Civil Hospital where heth expired before he could be given any medical, treatment.
4. That on the report of the C. M. O., Civil Hospital Mr. Karamat the Investigating Officer came to the Civil Hospital and after completion of formalities handed over the dead body for post-mortem. The post-mortem vas conducted by P. W. 8 Dr. Pretum, who opined vide Exh. 19, that the cause of death of deceased was due to cardio respiratory arrest caused by Toxaemia and peritonitis secondary due to perforation in small intestine, as a result of abdominal injury caused by a hard and blunt substance such as a fist blow or a kick of foot as alleged. On this report a case under section 304, P.
P. C., was registered against the appellant on 31st January, 1976 at 01-15 hours at Police Station New Town, Karachi and he was arrested in this case. After the completion of the investigation, challan was submitted under section 304/324, P. P. C. In the VII th Court of Additional City Magistrate, Karachi from where it was sent up to the Sessions Court and transferred to the learned Ist Additional Sessions Judge, Karachi for trial. As the appellant pleaded not guilty to the charges framed against them under section 304/344, P. P. C., the proceedings commenced in the said Court and during the proceedings the prosecution examined the following witnesses :-
(1) P. W. 1 Mst. Rehmat Bibi Exh. 4.
(2) P. W. 2 Mst. Hussain Bibi Exh. 5.
(3) P. W. 3 Sadiq Masih Exh. 6.
(4) P. W. 4 Siddique Masih Exh. 7.
(5) P. W. 5 Khurshid Masih Exh. 10.
(6) P. W. 6 Aziz Masih Exh. 12.
(7) P. W. 7 Dr. Syed Iqbal Ahmed Exh. 13.
(8) P. W. 8 Dr. Pretum Exh. 17.
(9) P. W. 9 Sultan alias Shana Exh. 20.
(10) P. W. JO Younus Masih Exb. 21.
(11) P. W. I1 S. T.T. Karamat Ali Exh. 22.
(12) P. W. 12 Bukhtawar Head Constable Exh.
29. And after the close of prosecution evidence and statement of the appellant under section 342, Cr. P. C. He was directed to produce his defence. The appellant through an application apart from himself submitted the names of the two persons, who were examined.
5. The learned trial Court taking into consideration the evidence adduced by the prosecution, convicted and sentenced the appellant above--named as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
6. The learned Advocate for the appellant in support of the above appeal submitted as under :---.
(a)That on the basis of the evidence led by the prosecution, the offence if any, committed by the appellant would fall under section 323; P. P. C. And not under section 325, P. P. C. In support of this contention the learned Advocate for the appellant, relied upon case reported in 1969 P Cr. L J 113.
(b)That it is an admitted position that the appellant did not use any weapon and it was a sudden quarrel and from the facts on record, it is clear that appellant had no intention to cause either the death of the deceased or any grievous injuries to him. Further--more the medical evidence brought on record, does not prove an offence under section 325, P. P. C. At all, and consequently the conviction of the appellant under section 325 was not warranted.
The learned Advocate appearing for the State at the outset submitted, that conviction of the appellant under section 325, P. P. C. In view of the facts brought on record was not warranted. The learned Advocate further submitted, that the offence committed by the appellant would fall under section 323, P. P. C. Only, as suggested by the learned Advocate for the appellant.
8. I have taken into consideration the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court as well as through the impugned judgment.
9. It is an admitted position, that appellant did not use any weapon to cause injury to the deceased and as such the contention of the learned Advocate for the appellant, that offence committed by the appellant would fall under section 323, P. P. C. Has great force, specially when there was a sudden quarrel and obviously the appellant has no intention to cause death of the deceased nor any injury likely to cause his death. In support of this contention the learned Advocate for the appellant relied upon case reported in 1969 P Cr. L J 113, which in my opinion is fully applicable to the appellant's case in view of the facts brought off-record of the learned trial Court through the statements of the P. Ws. In addition to this the learned Advocate for the appellant submitted, that the medical evidence also does not prove that the offence committed by the appellant would fall under section 325, P. P. C. In this connection statement of P. W. 7 is material. In his statement P. W. 7 Dr. Said Iqbal Ahmad stated that deceased, although he was advised to get himself X-Ray did not do so and consequently the injury received by him could not be properly treated.
10. The learned Advocate for the State has also conceded the above position.
11. Keeping in view the above facts and the statements of, the prosecution witnesses brought on record before the learned trial Court, I am of the opinion, that the offence committed by the appellant falls under section 323, P. P. C. And not under section 325, P. P. C.
12. Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellant from section 325, P. P. C. To section 323, P. P. C. And consequently reduce the sentence awarded to him from three years to one already undergone by him and maintain the fine of Rs. 1,000 imposed on the appellant and in default of payment of the said fine direct that the appellant should suffer further R.I. For 3 months. However, the appellant is allowed to deposit the fine imposed on him within one week from today. In case the appellant fails to deposit the fine in ques--tion the learned trial Court is directed to issue non-bailable warrant for the arrest of the appellant and for remanding the appellant to judicial custody to serve out sentence imposed on him in default of payment of fine.