Sardar Muhammad Iqbal, J.--Bahar Khan was convicted by the learned Sessions Judge, Mianwali, under section 302 of the Pakistan Panal Code and sentenced to transportation for life by his order dated the 9th of March 1968. Muhammad Iqbal and Abdul Ghafoor appellants were both convicted under section 323/34, P.P.C. and sentenced to fine of Rs. 100.00 each, in default whereof, they were to undergo three months' rigorous imprisonment each.
2. The prosecution case briefly is that Khuda Dad deceased and Khaliq Dad were attacked near their house at about Iftar time (it was the month of Ramazan) on the 26th of December 1966 by the appellants, Bahar Khan, Abdul Chafoor and Muhammad Iqbal, armed with sotas. They, on seeing them, came out of their house. Ghafoor gave Khaliq Dad a sota blow on his right arm and Muhammad Iqbal gave him another blow on the left arm. Bahar Khan gave a sota blow to the deceased which hit him on the left side of the head and he fell down. Mst. Hayat Bibi P. W., Allah Dad and Ahmad Nawaz P. Ws., saw the occurrence. Khuda Dad was carried to his house where he died at Sehriwela on the 27th of December 1966.
3. There was no previous enmity between the parties but on the morning of the 26th of December 1966 Sanaullah, the younger son of the deceased was playing walnuts with Muhammad Iqbal appellant and won. Iqbal insisted to continue the game and on re fusal of Sanaullah snatched the walnuts from him. Sanaullah com plained about it to his mother Mst. Hayat Bibi, P. W. who protested about this to Mst. Rehmat Bibi, the mother of Iqbal appellant. Rehmat Bibi did not respond favourably and she started quarrelling with Mst. Hayat Bibi. This continued till about the afternoon when Khuda Dad deceased and Khaliq Dad returned to their house. They tried to dissuade Mst.
Rehmat Bibi but she continued abusing on which the deceased and Khaliq Dad also reacted and abused her. The appellants felt aggrieved by this and attacked the deceased and Khaliq Dad.
Bahar Khan and Iqbal are both the sons of Abdul Ghafoor.
4. Khaliq Dad lodged the first information report (Exh. P. A.) at Police Station Mamar Mashani at 6- 30 in the morning of the 27th of December. Khan Muhammad Mokarram Khan, S. H. O. came to the spot. He prepared the injury statement Exh. P. E. of Khaliq Dad P. W., and injury statement P. F. and Inquest Report P. G. of Khuda Dad. He also prepared the site plan Exh. P. H. He despatched the dead body for, post-mortem examination through Faiz Muhammad, F. C. P. W. 2, Dr. Mansoor P. W. 7 conducted the post-mortem examination and observed "a contusion 1 x * J* two inches to the left of middle line and 3 J' from the top of left ear pinna and 3 % above the left eye-brow on the skull. The post-mortem report is Exh. P. C. He also examined Khaiiq Dad. P. W. on the 29th of December 1966 and found the following injuries on his person:-- "(1) An abraided area 1|' x on the lateral aspect of the right elbow-joint.
(2) A contusion 2" x on the medical aspect of the right forearm in the middle one-third.
3. Complaint of tenderness on the left shoulder."
The accused were arrested on the 31 st of December 1966 by Khan Hahzur Rahman, Inspector C. I. A.
Bahar Khan accused produced sota P. 1, before him which was taken into possession vide memo.
Exh. P. E. The sota was not s,ent for examination and so it is not known whether it was stained with blood or not.
5. The prosecution in support of its case examined eight witnesses. The statement of Dr. Mansoor recorded by the committing Court was transferred to the Sessions file under section 509, Cr. P. C.
His supplementary statement was, however, recorded on the 9th of May 1967 to prove injuries suffered by Khaiiq Dad P. W. Faiz Muhammad F. C. P. W. 2 tscorted the dead body to the mortuary.
Khan Hafizur Rahman J. W. 3, Inspector C. I. A., deposed about the production of sota P. 1 by Bahar Khan. Muhammad Abdullah P. W. 4 prepared the site plan. Khaiiq Dad P. W. 5, Ahmad Nawaz P. W. 6, and Mst. Hayat Bibi P. W. 7, are the eye-witnesses. Khan Mokarram Khan S. H. O., P. W. 8, is the Investigating Officer.
6. The accused pleaded not guilty and denied all the vrosecution allegations. They also lead no defence evidence.
7. The case of the prosecution depends on the testimony if the eye-witnesses, Khaiiq Dad P. W. 5, Ahmad Nawaz P. W. 6 tnd Mst. Hayat Bibi P. W.
7. Khaiiq Dad in his examination- n-chief narrated the incident just as he had stated in the F.I.R. ixh. P. A. He, however, in the cross-examination stated that he tad not seen Bahar Khan accused giving sota blows to the leceased and further deposed that the visibility where the leceased was standing was very limited. The Public Prosecutor ;ross- examined him with the permission of the Court and he was :onfronted with his earlier statement which he made before the tommitting Court where he had unmistakably implicated Bahar Chan appellant as assailant of the deceased Khuda Dad. The tatement of the witness recorded by the committing Court was ransferred under section 288, Cr. P. C. to the Sessions file. hmad Nawaz P. W. 6 and Mst. Hayat Bibi also resiled from [heir earlier statements made before the committing Court. The ublic Prosecutor was permitted to cross-examine them and heir statements were also transferred under section 288, Cr. P. C. o the Sessions file.
8. It was contended on behalf of the appellants that there vas no reason for the eye-witnesses to have introduced variations Into their statements unless they had decided to speak the truth, and that there did not exist any valid justification for the learned Sessions Judge to have transferred their statements under sec tion 288, Cr. P. C.
It is a Fundamental Principle of Law of Evidence that an earlier statement of a witness is ordinarily admissible only to corroborate or contradict him in respect of a statement made by him at the trial, and it is not used as a substantive evidence. The provisions contained in section 288 providing for transferring the statements to the file of Sessions Court is an exception to the rule. The statements recorded by the committing Court should, therefore, only be transferred for being used as substantive evidence when there is reason to believe that a witness at the trial is deliberately departing from the evidence which he gave before the Magistrate and as held in Alim v. State (1) "the facility afforded by section 288, Cr. P. C. is not to be mechanically emlpoyed." We may, therefore, examine whether there was any valid justification for resorting to the provisions of section 288, Cr. P. C. in this case. There was no quarrel between the parties prior to the incident.
They had no enmity whatsoever. They were in fact, living in cordiality. Mst. Hayat Bibi went to lodge a protest with the mother of Iqbal accused complaining of the conduct of the latter and have snatched the walnuts, which she would not have done, in view of the trival and insigniticant matter, unless she was sure of her relationship. They were living in the neighbourhood of each other without any complaint in the past. In the circumstances, it is possible that people may have intended to bring out reapprochment. It is not uncommon in these circumstances that the parties make up their differences and in order to ensure a pleasant neighbourly relations for the future risk from their earlier statements in order to secure an acquittal. The presence of Habib Ullah, a neighbour of the parties in the Court of Session is significant. He was not related to cither of the parties. His presence lends support to the possibility that a compromise had been brought about between the rival factums.
The occurrence took place in front of the house of Khuda Dad deceased and Khalicj Dad his son and Hayat Bibi his wife P. Ws., were present in the house. The time was of Iftari, and it is a matter of common knowledge that the fact is broken just after the sunset and there is sufficient light for identification. Khaliq Dad and Mst. Hayat Bibi had unmistakably stated before the committing Court that they had seen the accused and Khaliq Dad. There cannot be the slightest reason for suspecting that Khaliq Dad and Hayat Bibi P. Ws.' evidence when they said that Bahar appellant struck a lathi blow on the head of Khuda Dad and that Iqbal and Ghafoor gave beating to Khaliq Dad. The variation in their evidence at the trial is easily understandable and is no more than a crude attempt to oblige the appellants. The learned Sessions Judge was justified to transfer, under section 288, Cr. P. C., the evidence of these witnesses, recorded before the committing Court. [7]
9. It was vehemently contended that reliance should not be placed on these witnesses for the reason that they are closely related to the deceased. Khaliq Dad is the son of the deceased, Hayat Bibi is wife and Ahmad Nawaz (P. W. 6) is the brother of Hayat Bibi. The relationship is by itself not sufficient to discredit their testimony unless circumstances were shown to exist which would make unsafe to rely testimony. They have no previous enmity with the appellants and only because they were related to the deceased would not be sufficient to infer that they would falsely implicate innocent persons. The occurrence took place just outside the house of the deceased. Khaliq Dad was with him at that time and his presence is proved by the injuries which he suffered on his person. Hayat Bibi being the inmate of the house would naturally have been attracted to the scene on hearing the outcry. Ahmad Nawaz is living very near to that place. Not a single circumstance has been brought out on the record that these witnesses have any motive to falsely implicate the appellants. The Sessions Judge has correctly appraised the evi dence of these witnesses and rightly decided to act upon their depo sition before the committing Court which had been duly transferred to his record under section 288, Cr. P. C. It is unmistakably proved by the evidence of these witnesses that Bahar Khan appellant gave a sota blow which hit him on the head of Khuda Dad deceased and that Iqbal and Ghaffur assaulted Khaliq Dad.
10. It now falls for determination as to what offence they have committed. Where a single knife blow, or a blow with a dang, or some such weapon, is given on a vital part of the body, resulting in the death of the victim, it may not be so easy to determine what the intention or knowledge of the offender was in causing the injury and whether in so doing he was guilty of the offence of murder, or that of culpable homicide not amounting to murder. For finding out the intention, or knowledge, of the offender, the only safe method which can be followed to look at all the surrounding circumstances.
Bahar accused admittedly gave only one blow on the head of the deceased. He did not give any other blow to him or to Khaliq Dad, nor did he make any attempt to inflict an other blow. Ghafoor and Iqbal who had accompanied him to the scene of occurrence, also gave one blow each, which hit on the arms of Khaliq Dad. If they wanted to cause greater harm to him, there was nothing to stop them to do so. The deceased and Khaliq Dad both were empty-handed, and it is not the case of the prosccu tiou that any person intervened and but for interven tion the greater harm would have fallen Khaliq Dad. The parties had no enmity as we have already observed. There was, prior to the occurrence, only exchange of hot words over ordinary quarrel between Iqbal appellant and Sanaullah the younger brother of Khaliq Dad It is manifest from what happened that appellants had no intention except to give beating. The part assigned to the deceased that he abused Rehmat Bibi, the mother of Iqbal, is also attributed to Khaliq Dad P. W. If they had really intended to cause the death or such bodily injured as was likely to cause death, the conduct of the appellants would haye been the same in respect of both the deceased and his son Khaliq Dad. Khaliq Dad suffered one injury on bis each arm. The learned Sessions Judge convicted Ghafoor and Iqbal under section 323/34, P. P. C. for causing simple hurt, and thus held that appellants shared a common intention to cause only the simple hurt. It is for this reason that Ghafoor and Iqbal have not been held guilty for an offence under section 302, P. P. C. Bahar, when he inflicted the blow on the head of the deceased did not have, in our opinion, any intention to cause death of Khuda Dad nor did he have intention to cause such bodily injury, as was likely to cause death, but it cannot be said that he did not have the knowledge that his act was likely to cause death. His case falls within the purview of Second Part of section 304, P. P. C.
11. We, therefore accept the appeal of Bahar, appellant, set aside his conviction and sentence under section 302, P. P. C. and is lieu thereof convict him under section 304, Part II, and sentence him to five years' R. I. The appeal of Iqbal and Ghafoor is dismissed. .