This appeal is directed against the conviction and sentences recorded against the appellants by the IInd Additional Sessions Judge, Larkana by means of an order, dated 25-4-1985 by which he found the appellants guilty under section 302134, P.P.C. And sentenced them to suffer R.I. For life and to pay a fine of Rs.2,000 in default whereof to further undergo R.I. For one year more. They were also convicted under sections 323 and 324, P.P.C. And sentenced to suffer R.I. For three months. All the sentences were directed to run concurrently. It was further ordered that amount of fine if realised half of the same 'be paid to the heirs of the deceased. Learned trial Judge has not separately recorded the sentences under sections 323 and 324, P.P.C.
2. The charge was framed against the appellants for committing the murder of deceased Khasho son of Allah Rakhio by giving him hatchet and Lathi injuries punishable under section 302/34, P.P.C.
They were further charged for causing simple injuries to P.W. Shahan by means of sharp-cutting weapon and hard blunt substance and also causing simple injuries to P.W. Niaz Hussain by means of hard blunt substance punishable under sections 324, and 323, P.P.C.
3. The facts in brief are that the first information report was lodged by Allah Rakhio father of the deceased. On 11-1-1981 at about 6-45 p.m. At Police Station Warah, District Larkana. The police station was at a distance of 12 miles from the place of occurrence. According to the prosecution case the complainant alongwith the deceased Khasho had gone on bullock cart on 11-1-1981 at about 2-00 p. m. To his fields to collect the Palal. They took one bundle of Paled in a bullock cart.
The bullock cart was followed by their dogs. The dogs of the accused persons came there and fought with the dogs of the complainant. On this the complainant told the accused as to why they had untied their dogs? On this both the accused abused the complainant party. The deceased Khasho also abused them. The accused became angry and they came running towards the complainant party. Accused Ilyas was armed with hatchet while accused Allahando was armed with Killa. Accused was caused hatchet injury with its back side on the head of Khasho deceased while accused Allahando caused Kills injury on the head of Khasho. P.W. Allah Rakhio and the deceased raised cries and on their cries the other two sons of the complainant namely Shahan and Niaz Hussain came to the Wardat but the accused persons also caused them injuries with their respective weapons. In the meantime some villagers attracted to the scene. They inervened and, rescued the complainant party from the accused persons. The accused thereafter went towards their houses. Injured Khasho was taken to house and then P.W. Allah Rakhio complainant went to inform about the incident to Nekmard Haji Abdul Rasool Solangi, who advised him to lodge the report. The complainant took all the three injured persons in a bullock cart to the police post. Gaji and Khuhawar were injured and Khasho died. Then the dead body was brought to the Police Station Warah where the report was lodged. The dead body was sent to the doctor for post- mortem examination. Injured were also referred to the Medical Officer for examination and treatment. The statements of the witnesses were recorded. S.H.O. Shamim Ahmad after taking over the investigation from A.S.I. Arrested the accused Ilyas and Allahando. He also secured hatchet from Ilyas and Killa from accused Allahando. After usual investigation the accused were put up for trial.
4. The prosecution examined P.W.1 Allah Rakhio, complainant, P.W.2 injured Shahan, P.W.3 injured Niaz Hussain, P.W.4 Mashir Ghulam Nabi, P.W.5 Mashir Hajan, P.W.6 Mohammad Punhal Tapedar who prepared the sketch of Wardat (Exh.21), P.W.7 Dr. Shahbeg who conducted the post-mortem on the dead body of deceased Khasho (Exh.23). P.W.8 1)r. Nooruddin, Medical Officer Rural Health Centre, Warah, who examined injured Niaz Hussain and Shahan, P.W.9 P.C. Pir Bux corpse-bearer, P.W.10 Shamim Ahmad S.H.O. And P.W.11 Habibullah A.S:I.
5. The accused were examined under section 342, Cr.P.C. And they totally denied the charge. No witness in defence was examined by the accused. The learned Additional Sessions Judge on the assessm ent of the evidence convicted the appellants as stated above. The learned Sessions Judge believed the ocular testimony of P.Ws. Allah Rakhio, Niaz Hussain and Shahan. The Court also believed the recovery of the weapons recovered from the two accused. The medical evidence was considered as corroborative piece of evidence.
6. The death of the deceased has not been denied and it has been established through ocular as well as medical evidence. The injuries on the persons of the. Two P.Ws. Have also been established through the medical evidence as well as through the depositions of the two injured and the complainant. P.W.7 Dr. Shahbeg performed autopsy on the dead body of deceased Khasho and found the following injuries:- (1)One bruise 1" x -- on left cheek.
(2)One lacerated injury about 1-- " x -- " x skull deep over right parietal region.
(3)Swelling on mid occipital region.
From external as well as internal examinations of the deceased the doctor was of the opinion that death was due to fracture of occipital bone due to injury No.3 caused by hard blunt substance which ,was ante-mortem in .Nature.
Dr. Nooruddin P.W.8 examined the injured Niaz Hussain and found the following injuries on his person:- (1)Contused wound 1-- " x --" x scalp deep at the right parieta region.
(2)Contusion 1" x -- " at the right aide of face (Temporal region)
(3)Contusion 3" x 1" at the upper part of left scapula.
According to the doctor the injuries were simple in nature and caused by hard blunt substance such as Lathi.
He also examined injured Shahan and found the following injuries oil his person:- (1)Incised wound 1" x 1/3" x skin deep at the left ring finger palm on aspect.
(2)An abrasion 1" in diameter at the posterior aspect of left shoulder.
(3)An abrasion 1" x -- x skin deep at the left side of chest.
According to the doctor all the injuries were simple in nature caused by hard substance except injury No. 1 which was caused by sharp-cutting weapon such as knife. It is also possible that such injury could be caused' by steel plate 'Patti' wrapped on wooden Lathi.
7. Mr. Mohammad Hayat Junejo learned counsel for the appellants has not challenged the death of the deceased and the injuries caused to the P.Ws. At the hands of the appellants but stated that only three interested witnesses have been examined and no independent witness has been examined in spite of the fact that many villagers collected at the Wardat. Even the Nekmard has not been examined. But with his usual frankness the learned counsel admits that there was no previous enmity between the parties and there was no motive to falsely implicate the accused.
However, he has contended that the conviction recorded against the appellants under section 302134. P.P.C. Is against all canons of law. The learned Additional Advocate-General, Mr. Abdul Ghafoor Mangi has firstly contended that the offence falls under section 304. Part II but after going through the record and after assessing the evidence in its true perspective agreed that the offence falls under section 325, P.P.C.
8. In order to appreciate the contention of the learned counsel for the appellants it has to be noted that the learned trial Judge erred in law in relying upon the recovery of weapons as a corroborative piece of evidence. The two weapons allegedly recovered from the appellants were not stained with human blood and, therefore, they were not sent to the expert for opinion. The entire prosecution case rests on the ocular testimony of the three witnesses. There was no previous enmity between the parties. The quarrel was sudden on account of fighting of dogs. The accused abused the deceased and in turn the deceased also abused the accused persons. The accused did not make any preparation for taking the life of the deceased. They were already armed with hatchet and Killa. Accused Ilyas gave injuries by back side, of the hatchet and if they had intention to take the life of the deceased then the sharp side of the hatchet could have been easily used by the appellant. This very fact would indicate that there was no intention on the part of the appellants to cause such injury which could result into the death of the deceased. This fact is further strengthened by the evidence of P.Ws. Shahan and Niaz Hussain who sustained only simple injuries and accused Ilyas did not use the sharp-edged side of the weapon. According to Dr. Shahbeg the death was due to fracture of occipital bone due to injury No.3. The injury No.3 is only a swelling on mid occipital region. Injury No.2 was lacerated injury skull deep and injury No. 1 was only a, bruise on the left cheek. The nature of the injuries on the person of the deceased and the report of the doctors would prove beyond all reasonable doubt that the offence under section 302 could not be made in .The circumstances of the case. So also the second part of section 304 is not attracted where the basic ingredient of the offence is that if the act is done with the knowledge that it is likely to cause death but without any intention to cause death. The injuries were caused at the spur of moment on a sudden fight. The sharp side of the hatchet was not used and, therefore, it would be only deduced that there was no intention on the part of the accused to perform such act which was likely to cause the death. Thus, neither the offence under section 302 nor under section 304, Part II is established. It is now to be seen that offence has been committed by the appellants? The grievous injury has been described under section 320, P.P.C. And the deceased has received grievous injuries by means of blunt weapon which is punishable under section 325, P.P.C.
Learned counsel for the appellants has referred to the case of Muhammad Haroon Rashid and 2 others v. The State reported in 1975 P Cr. L J 264 where the conviction was recorded under section
325. The present case is on better footing than the reported case cited by the learned counsel. In that case also there was no deep seated grudge against deceased prior to the incident and the incident was a sudden one.
9. The facts and the circumstances of the case narrated above would bring to this conclusion that the appellants had committed offence under section 325/34 in regard to the injuries caused to the deceased Khasho. As regards the conviction of the appellants for causing injuries to Shahan and Niaz Hussain, the learned trial Judge has convicted them under sections 323 and 324. There is force in the contention of the learned counsel that the conviction cannot be recorded on both counts and the evidence on record does not establish that the case against the appellants has been established under section 324, P.P.C. And the learned A. A. -G. Has also frankly conceded this fact.
The nature of the injuries and the weapons used by the appellants would bring to the conclusion that the case falls under section 323/34, P.P.C.
10. For the aforesaid reasons the sentence recorded 'under section 302/34, P.P.C is converted into one under section 325/34, P.P.C. And each of the appellant is sentenced to five years' R.I. And fine of Rs.2,000 and in default further R.I. For six months each. The amount of fine if recovered may be paid to the heirs of the deceased. Each of the appellants is also convicted under section 323, P.P.C. And sentenced to three months' R.I. All the sentences are to run concurrently. The learned trial Judge has not given the benefit of section 381-B of the Code of Criminal Procedure. The appellants shall have the benefit of the period of detention in custody during the -trial, under section 382-B,' Cr.P.C.
With this modification the appeal is dismissed.