' Noor Muhammad, aged 22 years, son of Fateh Din was tried for the murder of his wife, Mst.
Farzana, aged 22 years. The Sessions Judge, Sheikhupura, on 12th July, 1971, convicting him under section 325, P. P. C. Sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs, 1,000 or in default of payment to further suffer rigorous imprisonment for one year. If realized, the fine was ordered to be paid to the parents of the deceased. Noor Muhammad challenged his conviction and sentence by appeal which shall be disposed of by this judgment.
2. Appellant wanted to contract second marriage because the deceased had not given him any issue. The deceased did not consent to it due to which appellant caused her murder on 11th April, 1970 at about 11/12 noon in a field in the area of village Buttar, District Sheikhupura by giving her kick blow on the abdomen. The occurrence was witnessed by P Ws. Zulaf Din and Sher Muhammad. Sufi Umar Bakhsh (P. W.) and Jan Muhammad not examined saw the appellant running away after committing the murder.
3. Zulaf Din made a statement at the Police Station, Chuharkana, five miles away from the spot, on which F. I. R. Was registered by Sultan Ali, S.-I. (P. W.) on 1 1 th April, 1970 at 4-00 p. m. The case was investigated by Sultan Ali, S.I. (P. W.) who challaned the appellant in Court.
4. Post-mortem examination on the dead body of Mst. Farzana was conducted by Dr. Shafiq Ahmad (P. W.) on 12th April, 1970 at 10-09 a. m. The doctor found one contusion 3" X 1" on the right side of lower part of abdomen close to the iliac crest. All other parts of the body were healthy. In the opinion of the doctor, Mst. Farzana died as a result of primary nervous shock due to blunt injury on the abdomen within two to three minutes of her suffering the injury. The doctor did not find any injury on the viscera under the injury which was probably a naked kick with human foot.
5. The appellant pleaded not guilty to the charge and stated that he had been falsely implicated due to enmity because he did not agree with father of the deceased to divorce her. He examined Naib-Subedar Shah Din (D. W.) who deposed that about 2i months before the occurrence the appellant gave dang blows to Sher Muhammad (P. W.) due to which relations between them became strained.
6. The trial Court believed the testimony of Zulaf Din eye-witnesses and came to the conclusion that deceased died as a result of kick blow given by the appellant in the abdomen of the Jeceased.
It was found that his testimony was corroborated by Sufi Umar Bakhsh who reached the spot immediately after the occurrence and saw the appellant running away. The trial Court found that no offence under section 302, P. P. C. Was made out because the evidence did not disclose any intention or knowledge of the appellant to cause murder of his wife nor any offence under section 304, Part 11, P. P. C. Was made out in the circumstances of the case. I agree with that finding. The trial Court convicted the appellant under section 325, P. P. C. Because the injury given to the deceased was treated by it as grievous according to the definition in section 320, P. P. C.
7. On the conclusion arrived at by the trial Court the appellant gave one kick blow on the abdomen of the deceased. Appellant had no knowledge that the deceased suffered from any ailment nor is there any evidence medical or otherwise for arriving at such a conclusion. The kick blow did not even injure the viscera under the injury. According to the opinion of Medical Officer deceased died by primary nervous shock which resulted by the kick blow on the abdomen. Such an injury cannot be treated as grievous. The word "hurt which endangers life" in section 320 eighthly P. P. C. Has to be applied with reference to normal conditions and any hurt which endangers human life must also be likely to cause death. Where death is caused as a result of an injury which is not intended to cause death and which in normal conditions was not likely to cause death the offence committed can neither be grievous hurt nor culpable homicide not amounting to murder. The motive alleged in the case has not been believed. There is no evidence to show what transpired before appellant hit the deceased. Only one kick on abdomen of deceased was given and the medical evidence does not support the view that appellant intended or bad knowledge to cause grievous hurt.
Therefore, I find that the evidence did not establish an offence under section 325, P. P. C. Against the appellant but he had committed offence under section 323, P. P. C. He was arrested on 11th April, 1970, was allowed bail on 5th October, 1970 which was cancelled on 28th December, 1970 and thereafter he was detained in custody till after his conviction on 12th July, 1971 the sentence of appellant was suspended by this Court on 22nd September, 1971. As such he has suffered substantive sentence of about one year and three months.
For the foregoing reasons conviction of the appellant is altered to under section 323, P. P. C. And his sentence is reduced to already undergone but sentence of fine is upheld. It the appellant fails to pay the fine c within one month he shall surrender himself to serve the sentence of one year in lieu of fine otherwise his bail bonds shall stand discharged. Notice for enhancement of sentence is recalled. The appeal is accepted to this extent. .