MUHAMMAD AFZAL KHAN, J.--Rahim Bakhsh (55), resident al Rakh Chhabri Zerin, was convicted on the 25th July 1967 by the Sessions Judge, Dera Ghazi Khan, under section 302, P. P. C. For the murder of Haji (40 or 45) alleged to have been committed by him on the 17th July 1966, at about 9-00 a. m, in the area of Chah Mali Wala by strangulating, and was sentenced to transpor--tation for life. He preferred this appeal to have his conviction and sentence set aside.
2. The prosecution case, briefly stated, is as follows :-- Haji resident of Jhok Yar Shah had to bring a beam of wood Wahid Bakhsh Arain of Chah Mali Wala Dakhli, Rakh chhabri Zerin to his own village. For this purpose he started from his village, riding a she-ass. He was accompanied by his maternal uncle Mahmud (P. W. 2) and nephew, Hussain Bakhsh (P. W. 3). In the course of the journey, the party was going along the eastern bank of Nur Wah Canal. As they reached in the vicinity of Chah Mali Wala, they overtook Rahim Bakhsh appellant, who was leading his camel laden with fodder. Haji and his party wanted to by-pass him and demanded the right of way. The appellant retorted saying that the way did not belong to their mother. Haji returned the retort saying that, true, it did not belong to their mother, but it did not belong to the appellant's father either. The appellant gave 2 or 3 slaps to Haji and then, gripping him by the neck, threw him in the field. The companions of Haji rescued him. Haji and party proceeded ahead.
As Haji and party reached the outlet close to Chah Mali Wala, the appellant overtook them.
Addressing the appellant, Haji again protested that he had given him beating although he was not blameworthy. Then Haji added "Let God's wrath overtake you". The appellant forthwith caught hold of Haji by the neck and threw him on the ground, without relaxing his grip occurrence was witnessed by Mahmud, Hussain Bakhsh, Muhammad Bakhsh and Wahid Bakhsh. The witnesses tried to rescue Haji but found that he had breathed his last.
The aforesaid witnesses secured the appellant on the spot. Hussain Bakhsh went to inform Ghulam Haider Shah, Lambardar of Jhok Yar Shah (P. W. 4). Ghulam Haider Shah and others took the appellant to the Police Station Saddar, Dera Ghazi Khan. Mahmud lodged the first information report (Exh. P. A) which was recorded by Sub-Inspector Ghulam Rasul (P. W. 9), the same day at 2- 00 p. m.
3. Sub-Inspector Ghulam Rasul` proceeded to the spot to investigate the case. He prepared the injury statement (Exh. P.C/1) and the inquest report C/2) and sent the dead body for post-mortem examination took into possession, from the spot, a camel and a she-ass vide memo. Exh. P. B. He took into possession the fodder (Exh. P. 6). He also took into possession the beam of wood, 14 spank x 1 span, from Wahid Bakhsh vide memo. Exh. P. G. He got prepared the site plan (Exh. P. F) by Muhammad Musa Patwari (P. W. 8).
4. On the 18th July 1966, at 12-00 noon, Dr. Muhammad Bashir Chauhan (P. W. 1) performed autopsy on the dead body of Haji. "There was no mark of ligature present. Neck was swollen. On dissection the underlying parts were not congested and were healthy." On external examination he found-
(1) an abrasion covered with red scab --" x --" on the back of left elbow ; and
(2) an abrasion 1"x 1/3' covered with red scab on the back of right elbow.
On internal examination he found that all the organs of the body were healthy except as follows :-
(i) Pleurae of both lungs were adhered.'
(ii)' Trachea was congested and contained bloody forth.
(i.e) Right lung was consolidated. On cutting the section it was partly congested at other places pus oozed out.
(iv) Left lung was consolidated. On cutting the section it was part;., congested at other places pus oozed out.
(v)
(vi)
(vii)
(viii)
(ix) Liner was unhealthy hard and had five fibrotic nodules all over the surface,
(x) Spleen was enlarged- 1-- Pounds.
(xi)
In the opinion of the doctor, the cause of death was asphyxia (suffocation), which, was sufficient to cause death in the ordinary course of nature. The death was instantaneous. Interval between death and post-mortem, examination was 24 hours.
4. At the trial, Mahmud (P. W. 2) and Hussain Bakhsh (P. W. 3) gave the details of the occurrence as set out above. Wahid Bakhsh was examined before the Committing Magistrate on the 21st November 1966. He, however, died before the commencement of trial in the Court of Session. His statement was brought on record in pursuance of section 33 of the Evidence Act. Wahid Bakhsh, in his statement, corroborated Mahmud and Hussain Bakhsh. Muhammad Bakhsh (P. W. 5) stated that he was bathing at a distance of 5 or 6 karams from the place of occurrence. He saw the appellant throttling the deceased. According to him, Mahmud and Hussain Bakhsh P: Ws. Had witnessed the occurrence and Wahid Bakhsh had accompanied him to the spot. He repelled the suggestion that Mahmud and Hussain Bakhsh P. Ws. Were grappling with the appellant.
5. The Appellant, in his statement under section 342, Cr. P. C., denied the alleged occurrence and urged that he had been falsely implicated. His defence plea was as follows :- "I had purchased some land from a Muhajir in Mauza Chhabri. Ghulam Haider Shah P. W. Wanted to purchase it and got a suit of pre-emption filed by his relations and hence is was falsely involved."
He did not adduce any evidence in defence.
6. The learned Sessions Judge believed the eye-witnesses and convicted and sentenced the appellant, as stated above.
7. Mr. S. M. Almas Ali, learned counsel for the appellant raised the following contentions:- Mahmud and Hussain Bakhsh, eye-witnesses, were closely related to the deceased. Haji did not require their assistance in transporting the beam of wood, 14 spans x 1 span, from Chah Mali Wala to Jhok Yar' Shah. There was no reliable evidence to establish that Muhammad Bakhsh (P. W. 5) had purchased dates from Wahid Bakhsh and, therefore, was a natural witness. Wahid Bakhsh did' not state that Muhammad Bakhsh had purchased dates from him. The deceased was a friend mid moeen of Wahid Bakhsh. The direct evidence was unreliable.
(b) The first part of the incident having ended, Haji made a provocative protest when he invited the wrath of God on the appellant.
(c) Haji had critically diseased organs. His death was due to his diseased condition rather than the assault by e he appellant. A slight jerk might have accelerated the death. For any swell jerk, the appellant could not be convicted for homicide amounting to murder.
8. It is true that Mahmud (P. W. 2) is maternal uncle of Haji deceased, while Hussain Bakhsh (P. W. 3) is nephew of the deceased (Kumhar by caste). They are residents of Jhok Yar Shah. Muhammad Bakhsh (P. W. 5) is a Kumhar and a resident of Yaru. He, however, is not shown to be, in any way, related the deceased. Wahid Bakhsh Arain is not related to them and resident of village Chahri Zerin situated at a distance wore than 3 miles from Jhok Yar Shah. The presence of the dead body of Haji and the presence of his she-ass in the vicinity of Chah Mali Wala would indicate that, at the the of death he was coming with his she-ass towards Chah Mali Wala Wahid Bakhsh stated that the deceased had to carry a beam of wood from his village to Jhok Yar Shah. He produced the beam before the police. Mahmud stated that Haji was friend of Wahid Bakhsh and was his moeen.
The to might as well have struck the deal relating to the beam. Wahid Bakhsh mentioned that when he witnessed the occurrence, Muhammad Bakhsh was also present there anal had witnessed the occurrence. He also mentioned the presence of Mahmud and Hussain Bakhsh. Thus the evidence of Mahmud and Hussain Bakhsh (related eye-witness) is corroborated by the evidence of Wahid Bakhsh arid Muhammad Bakhsh. Independent witnesses. The appellant failed to bring on record any material which could justify rejection of their testimony.
Mahmud, Hussain Bakhsh and Muhammad Bakhsh had been cross-examined to suggest that in the course of the fatal occurrence, they had caught hold of the appellant "who in self-defence held the deceased and in the grappling the deceased met his death being weak and emaciated." This suggestion signified that, even according to the appellant, these eye-witnesses were present at the the of the occurrence and had witnessed the same. The conten--tion raised by the learned counsel for the appellant is without force.
9. It is conceded that Haji provoked the appellant who, in consequence, made the assault which proved fatal.
10. The medical evidence would show that Haji had several diseased organs. For instance, the pleurae of both lungs was adhered. Both lungs were consolidated and pus oozed out of them. The liver was unhealthy and hard. Spleen was enlarged 11 pounds in weight. The medical evidence further shows that there was no mark of ligature at the neck. Although the neck was swollen, the underlying parts were congested but were healthy. In the opinion of the doctor, the cause of death was asphyxia (suffocation). It is remarkable that the cause of death was not "strangulation". R.I Bahadur Jaising P. Modi in his Medical Jurisprudence and Toxicology (Eighth Edition) at page 1 52 writes :- "The term `suffocation' is applied to that form of death which results from the exclusion of air from the lungs by means other than compression of the neck.
Causes.-The causes of suffocation are-
(1) Smothering or closure of the mouth and nostrils.
(2) Obstruction of the air passages from within. (3) Pressure on the chest.
(4) Inhalation of irrespirable gases."
Thus "suffocation" is distinct front "strangulation". The above evidence negatived the assertion that the appellant gripped the neck of Haji and pressed him to death. He might have held him by the neck but must not have pressed it so hard as to cause technical "strangulation": Learned counsel for the appellant, therefore, rightly contended that the evidence on record did not show that death of Haji was due to hard-pressing of his neck by the appellant.
11. We have accepted the ocular evidence and have concluded that on the 17th July 1966, at about 9-00 a. m., in the; area of Chah Mali Wala, the appellant held Haji by the neck and pushed him to the ground. This rude shake resulted in the death of Haji. This certainly did not amount to "strangulation". ' Haji had pocketed previous insult and beating ; now, like a weak aggrieved person, he cursed the appellant. Certainly, the appellant g did not feel so much offended as to intend the causing of his death Perhaps, he wanted to give him another rude shake for inviting the wrath of God on him (appellant). The appellant must have used ordinary force. But the result, namely the death of Haji, was out of all proportions to the force applied. It is true that ordinarily a person is presumed to intend the consequences of his at. But in the instant case, the appellant could not be credited with any knowledge of the diseased condition of various internal organs of Haji. He cannot, therefore, be held to intend the consequences of his at. It is, therefore, legitimate to conclude that the appellant merely wanted to cause simple hurt to Haji. Notwithstanding, the fatal consequences, his case falls under section 323, P. P. C.
12. In view of what has been stated above, we accept the appeal, set aside his conviction under section 302, P.. P. C. And alter it to one under section 323; P. P. C. We reduce his sentence of transportation for life to rigorous imprisonment for one year. The appellant was sentenced on the 25th July 1967, and by now has suffered imprisonment for more than one year. He be released forthwith, if not wanted in any other case.