1. The appellants Nos. 1 and 2 namely Isso and Shahan were convicted by the learned Sessions Judge, Nawabshah under section 302/34, P.P.C. And sentenced each of them imprisonment for life and also to pay fine of Rs.1,000 or in default of payment of fine to undergo R.I. For one year more.
2. The appellant No.3 Kadan was found guilty of offence punishable four months and also to pay fine of Rs.500 or in default of payment of fine to undergo R.I. For one month more.
3. The facts in brief are that the complainant Urs and his maternal---grandfather Soomar Kumbhars lived together and they used to make earthen pots in their village. The accused also resided in the same village. The accused were annoyed with them on account of children and were not even on talking terms with each other. On 15-6-1983 at about 5-00 p.m. The complainant and his maternal- grandfather Soomar were working at their oven for baking earthen pots, when Saddar, Masat of the complainant aged about 8 years came there. On the enquiry made by Soomar, he told him that he had been given slaps by Isso. Isso also came there and Soomar admonished him. On this Isso abused Soomar and went away to his house. It is the prosecution case that thereafter accused Isso, Shahan and Kadan came there. Isso had a Biyano in his hand accused Shahan had a Danda while accused Kadan had a hatchet. They abused the complainant and his maternal-grandfather Soomar. Accused Isso gave blows with Biyano to Soomar on his head. Accused Shahan gave Danda blows on his mouth receiving these blows Soomar fell down. Complainant Urs tried to save Soomar, when accused Kadan gave him blows with the back side of the hatchet on his leg. On cries and commotion P.Ws. Ibrahim and Kadan Kumbhars reached at the spot and saw the incident. Thereafter, the accused went away to their houses. The report was lodged at Police Post Bhirya by the complainant. After the usual investigation the original case was registered under sections 307, 325, 323, 504 and 34, P.P.C. But on the death of the deceased, section 302, P.P.C. Was applied in the case. During the investigation the accused Isso voluntarily led the police to his house and produced one Biyano from the jungle adjacent to the east of his house. Accused Shahan also voluntarily led the police and Mashirs and produced the Danda from the jungle adjacent to his house. Common Mashirnama was prepared. The accused denied the charge at the trial. The prosecution examined P.Ws Mohram Ali, complainant Muhammad Urs, Kadan, Muhammad Ibrahim, Nizamdin, Dr. Khaliquz Zaman, Ali Nawaz Tapedar and A.S.I.P. Qamaruddin. The learned trial Judge held the appellants Isso and Shahan guilty of offence under section 302/34, P.P.C. And came to the conclusion that the 3rd appellant Kadan son of Shahan is not constructively liable alongwith the accused under section 302 and sentenced him under section 323, P.P.C.
4. I have heard the learned counsel for the appellants and Mr. Agha Ghulam Ali for the State. The entire case of the prosecution rests on the ocular testimony of P.Ws. Urs, Kadan and Muhammad Ibrahim. They are consistent in their statements that the present accused Isso after abusing Soomar went to his house and he alongwith co-accused came to the Wardat and attacked the deceased. These witnesses have stated that Isso gave blows with Biyano to Soomar and the accused Shahan gave blow with Danda which hit Soomar on his mouth. The accused Kadan gave back side hatchet blow to complainant P.W. Kadan has stated that accused Isso gave blow with wooden Biyano to Soomar and it hit him on his head. The wooden Biyano was made of wood having handle of wood, while the top was made of iron. Similar is the statement of P.W. Muhammad Ibrahim. The Mashirnama of the injuries shows that there was one injury on the mouth and two injuries at the head. According to the doctor there were five injuries on the person of the deceased.
5. They are:- "(1)Contusion with swelling 5 c.m. x 2J c.m. x fracture of the bones on top of head.
6. (2)Contusion with swelling 41 c.m. x 2J c.m. x fracture of bone on frontal region.
7. Eyes economosed, conjected and swollen.
8. (3)Two upper incised teeth dislocated. Gums swollen and conjested upper lip also swollen.
9. (4)Skull and brain fracture of frontal and right parietal bones.
10. (5)Intracronial haemorrhage present."
11. Injury No.1 was individually and all the injuries collectively were sufficient to cause death of the deceased in the ordinary course of nature. He has further stated that injuries Nos.1 and 2 could not be caused at the same time by single blow. Both injuries are result of two blows and injury could not be caused by top of the Biyano, which is covered with iron. The nature of the injuries and the conduct of the accused would clearly show that there was no intention of the accused to take the life of the deceased. Had there been such intention of the accused to cause fatal blow to the deceased, the iron part of the Biyano would have been used to inflict the injuries which would have caused more grievous injuries on the person of the deceased. Only one blow was given by each of the accused. There was no premeditation on the part of the accused. There were exchange of harsh words between accused and the deceased and thereafter, accused left her Wardat and came alongwith co-accused. One of them was armed with hatchet and the other accused had used the Danda and wooden Biyano. The third accused who was armed with hatchet did not give any injury to the deceased. There was no common intention on their part. Otherwise the accused who was armed with hatchet should have used the hatchet. The learned trial Judge has himself held the appellant Kadan guilty under section 323, P.P C. These facts would establish that there was no common intention on the part of the accused to cause such injuries which would result in the death of the deceased. There was sudden quarrel as a boy had complained to the deceased that he had been beaten by accused. The learned trial Judge has sought the corroboration from the recovery of the Biyano from accused Isso and recovery of Danda from accused Shahar but the weapons were not stained with blood as Mashirnama does not show so. However, Mashir Nizamdin has stated that they were stained with blood but there is no report from chemical analyser and there is nothing on record to show that these articles were stained with blood. These recoveries are immaterial. It has been observed by the trial Judge that the complainant Urs had sustained only one simple injury on his foot. This fact also establishes that the accused had not intention to inflict such injuries which could result in the death of the deceased. The learned trial Judge has also accepted the motive that the accused were already nursing a grudge against Soomar and the complainant on account of children dispute, but in the judgment the objection of the defence that interested witnesses have been produced by the prosecution was rejected by the trial Court, and it has been observed that the complainant and the eye-witnesses have no enmity with the accused party. The prosecution cannot blow hot and cold in the same breath. It cannot be said that there was a motive on the part of the accused but the persons against whom they had motive have no enmity with the accused. The motive has not been established. In fact the case of prosecution rests on the evidence of 3 P.Ws. Which has been discussed above. They are consistent and coherent in their evidence and have been supported by the medical evidence. The deceased has received the injuries but as the offence under section 302, P.P.C. Has not been established against the appellants, they are responsible for causing grievous injuries to the deceased which is punishable under section 325, P.P.C.
12. The learned counsel has referred to cases Muhammad Haroon Rashid and 2 others v. The State reported in 1975 P Cr. L J 264 and Hangle alias Ali Nawaz. v. The State reported in 1980 P Cr. L J 1275 in the first case the conviction was altered from one under section 302, P.P.C. To one under section 325, P.P.C. And in the second case the conviction under section 302, P.P.C. Was altered to section 304, P.P.C. But taking into consideration all the facts I am of the opinion that from the facts of the present case, the case falls under section 325, P.P.C. Therefore, while setting aside the conviction of the appellants Nos. 1 and 2 namely Isso and Shahan under section 302, P.P.C., they are convicted under section 325/34, P.P.C. As regards the sentence, they are sentenced to suffer R.I. For 5 years and fine of Rs.1,000 each and in default of payment of fine to undergo R.I. For one year more. The conviction of appellant Kadan is maintained under section 323, P.P.C. But his sentence is reduced to one already undergone and to pay fine of Rs.500 or in default of payment of fine to undergo R.I. For one month more. With this modification the appeal is dismissed. The benefit of section 382-B, Cr.P.C. Should be given to the appellants.