1. SHAHABUDDIN, J.-This is an appeal by special leave from a judgment of the Chief Court of Sind by which the convic--tion for murder and sentence of death, passed on the appel--lant Karoo by the Sessions Judge of Hyderabad in respect of the death of one Mst. Bako, were confirmed.
2. Along with the appellant, his brother, Miandad and cousin Punhoon were tried, the charge against the three being that in furtherance of their common intention to kill Mst. Bako, the appellant struck her on the head with a hatchet and Miandad and Punhoon threw her in a canal and that there-- fore they were guilty under section 302 read with section 34, P. P. C. But the Sessions Judge convicted the other two accused only of an offence under section 201, P. P. C., and sentenced them to rigorous imprisonment for three years each. These convictions and sentences also were confirmed and the joint appeal of all the three was dismissed by the Chief Court. Miandad and Punhoon also petitioned this Court for Special Leave to Appeal from the judgment of the Chief Court, but special leave was refused to them on the 3rd April 1952.
3. The case for the prosecution was to the following effect: Mst. Bako was a cousin of the accused. She was first married to one Gallo, but while he was alive she eloped with P. W. 2 and married him on Gallo's death which occurred within a year of the elopement. This happened about 5 or 6 years prior to the occurrence and since then the accused were not on visiting terms with Bako. On the 24th June 1948 Bako had gone to the canal which passes through the village to wash clothes. P. Ws.
4. 3 and 4 who were working in a field close by ran towards the canal hearing cries and saw the appellant striking Bako on the head with a hatchet and the other two accused pushing her into the canal where the water was five feet deep. The accused then ran away. P. W. 3 went to P. W. 2 and informed him of what had happened and then the corpse of Bako was recovered at a distance of 700 ft. From where she had been thrown into water. First information was given by P. W. 2 mentioning P. W. 3 as his informant.
5. On the deceased there was an incised wound 6" long and brain deep. The parietal bones were fractured, the covering of the brain was torn and there was sand in the wind pipe. P. W. 8 who held the post-mortem deposed that death was caused by shock and haemorrhage resulting from the injury and as phyxiadue to drowning, that the injury on the head was sufficient in the ordinary course of nature to cause death, but that the drowning was definitely ante-mortem. He was of the opinion that the deceased was thrown into water while she was still alive.
6. The defence was that of innocence and enmity. The Sessions Judge believed the eye-witnesses but he did not accept the opinion of the doctor that drowning was ante-mortem, He took the view that the possibility of sand having got into the wind pipe soon after death could not be excluded and therefore held that death was caused by the injury inflicted by the appellant.
7. As regards the other two accused he declined to apply section 34 as it was not clear from evidence as to how the three came and bow the attack was started.
8. The learned Judges of the Chief Court accepted not only the evidence of the eye-witnesses but also the opinion of the doctor that the woman was still alive when thrown into the canal. They, nevertheless, observed `whether death was due to asphyxia created by drowning or to shock and haemorrhage created by injury it is impossible to say but section 35 of the Cr. P. C. Makes it clear that whoever inflicted the injury on the head of the decreased is responsible in law for the death of the deceased, whether the immediate cause of death was injury or drowning. Later in the judgment while dealing with the contention that the motive alleged by the prosecution had become weak by lapse of time, they observed that the argument was convincing in so far as it excluded any pre--sumption that there was a pre-concerted plan by the accused to murder the deceased. They took the view that estrangement between her and her relatives continued and it was probable that exchange of abuse might have taken place and the appel--lant Karoo lost his temper and struck her with his hatchet. There is no discussion about the other two accused in the judgment. The only reference to them is in the last sentence where their convictions and sentences are confirmed.
9. It is not easy to follow the reasoning of the learned Judges. If the opinion of the doctor that the woman was alive when she was thrown into water is accepted, it seems difficult to avoid the inference that death was caused by drowning. As argued by Mr. Muhammad Ali counsel for the appellant the injury on the head, though it was sufficient in the ordinary course of nature to cause death, may not have resulted in death immediately or later, as the chances of recovery, however slender, cannot be definitely excluded. In the circum--stances the appellant cannot be found guilty of murder unless he can be brought under one of the sections of joint liability and is thus connected with the act of throwing the woman into water. But as pointed out by Mr. Muhammad Ali the learned Judges findings of fact rule out the application of section 34. Section 35, Cr. P. C.
10. Referred to in the above observation of the learned Judges is apparently a mistake for section 35 of the Penal Code. It is difficult to see how section 35, P. P. C., would apply to this case. As far as the causing of the injury is concerned the appellant is solely responsible in view of the findings of the Courts below. As for the act of throwing the woman into water which according to the medical evidence resulted in death the persons who participated in it were the other two accused.
11. According to the findings of the trial Court which the learned Judges have confirmed those two accused did not have the intention to kill or knowledge that act would cause death. They were in effect held to have acted under the belief that the woman they were throwing into water was already dead. Further there was no evidence that the appellant took part in that act. On the other hand the theory of the learned Judges that in an exchange of abuse the appellant lost his temper and cut the deceased with a hatchet negatives any connection between the appellant and the other two accused with regard to the act of throwing the woman into water.
12. Apparently realizing this difficulty Mr. Yaqub Ali Khan appearing for the Government of Sind pressed for the appli--cation of section 37 but for that section to apply there should have been intentional co-operation between the accused to commit murder by throwing the woman into the canal: The findings of the learned Judges, especially the finding that the appellant acted in a fit of temper, makes the causing of the injury and the throwing of the woman into water two separate acts, done independently and not in intentional co-operation.
13. Mr. Yaqub Ali Khan then argued that on the evidence accepted by the Courts below section 34 did apply and we should in this appeal proceed on that basis. We are unable to accept this contention.
14. The Sessions Judge has given his reasons for declining to apply section 34 and the learned Judges of the Chief Court have recorded findings negative a pre-concerted plan to murder. This, they have done on a full consideration of the evidence, and we have not been shown that they have omitted to consider or have misread any material portion of the evidence or that they acted on any inadmissible evidence. That being so, we cannot reassess the evidence to determine whether their findings, of fact are correct. We should proceed on those findings and doing so we find that the appellant can be convicted only of the offence of attempt to murder.
15. We therefore set aside the conviction for murder and the sentence of death imposed on the appellant, and convict him instead of an offence punishable under section 307, P. P. C. A In view of the seriousness of the injury he inflicted on the deceased we sentence him to transportation for life.