' This criminal appeal arises from the judgment of learned Sub Divisional Magistrate Section 30, Pind Dadan Khan, whereby he on 26-4-1968 convicted Ghulam Rasool appellant under section 307, P.P.C. for murderous assault upon Allah Ditta and sentenced him to 5 years R.I. and a fine of Rs, 1,000 in default thereof to further R.I. for one year.
2. The prosecution case is that on the night between 9/10-10-1965 in the early hours, Allah Ditta P.W. was sleeping on a cot outside his goat-shed when Ghulam Rasool appellant armed with hatchet launched murderous assault and caused injuries to him. The occurrence was allegedly seen by Ghulam Rasool and Khan Muhammad P.Ws. The medical evidence shows that Allah Ditta received 3 injuries out of which injury No,3 was dangerous to life.
3. The appellant when examined under section 342, Cr.P.C. denied all the incriminating circumstances and produced 4 witnesses in his defence.
4. The learned counsel for the appellant has not challenged the occurrence and identity of the appellant. He, however, contended that the conviction of the appellant under section 307, P.P.C. is not maintainable. The learned counsel for the State has supported the judgment of the trial Court.
5. After hearing the learned counsel for the appellant and going through record I find that the bones underneath injuries were not cut through and through and that the doctor has not given any opinion as to whether Allah Ditta could speak or not and that none of the injuries can be termed as grievous under section 320, P.P.C. Furthermore, the Radiologist has not been examined.
6. For what has been found above, I am of the opinion that the conviction of the appellant under section 307, P.P.C. cannot be maintained and has to be altered into one under section 324, P.P.C.
Coming to the question of sentence, I find that the appellant has suffered agony of protracted trial, inasmuch as, the case was registered against him in October, 1965 and that he remained in Jail as prisoner for 5 months. In the circumstances, I am of the view that the sentence already served out by the appellant would meet the case. He is on bail. The bail-bounds stand discharged.