ABDUL HAYEE KURESHI, J.-The appellant Ghulam Ghous was tried by the Additional Sessions Judge, Nawabshah for an offence under section 302. P. P. C. He was convicted for the said offence and sentenced to death on 30-9-1971. He has filed an appeal through Mr. Khalid Ishaque, whereas the State was represented before us by Mr. Hassan Inamullah, The learned Additional Sessions Judge has also referred the case to this Court for con--firmation of the sentence of death imposed on the appellant.
2. Briefly stated the facts of the case are that the deceased Mst. Pyari lived with her husband, the complainant Iqbal, at Saeedabad village in Naushahro Feroze Taluka within the District of Nawabshah. On 19th June 1970, two donkeys belonging to the appellant had entered into the cotton cultivation of complainant Iqbal and damaged the crop. There was an altercation and the appellant gave some fist blows to complainant which resulted in the latter lodging a report at the police station. After lodging the report the complainant returned to his village and narrated the facts relating to the said report to Lai, the father of the deceased, and at that time the appellant came and abused the complainant. It seems that there was some rough talk between the complainant and the appellant which attracted Pyari deceased, Daulat, and uncle of the deceased and one Rehmat Issai, besides co-villagers. While all these persons started pacifying the appellant he hit the deceased with a dorna (a wooden stick commonly used for tethering cattle). The blow pierced the stomach of Mst. Pyari, who fell down due to the injury. Mst. Pyari was not taken to the hospital and no report was lodged. However, she was given some local treatment, which worsened her condition so that she expired on the next day at 5 p.m. The complainant, Daulat, Lal and Rehmat brought her dead body to Darya Khan Mari Police Station and lodged the report (Exh. 13) which was recorded by A. S. I. Muhammad Bashir.
3. The police officer sent the dead body to Dr. Abdul Hakim, Medical Officer, Padidan for post- mortem examination and himself started investiga--petition of the case. He reached the scene of occurrence on 21-6-1970 and arrested the appellant alongwith the weapon of the offence. The appellant had in the meantime gone to Muhammad Fazil Khan, the local zamindar, and confessed the crime before him and he had produced the appellant and the weapon of crime before the police officer. After the conclusion of the investigation the appellant was sent up to stand his trial which has resulted in his conviction and sentence as stated above.
4. At the trial the prosecution examined complainant lqbal (P. W. 4); Daulat (P. W. 5); and Lai (P. W.
6) as eye-witnesses of the occurrence. All these three witnesses are respectively the husband, uncle and father of the deceased. The prosecution also examined Muhammad Fazil (P. W. 7) to whom the appellant had made the extra-judicial confession and who had produced the appellant before the police. The other witnesses were the police officers, mashirs and other formal witnesses.
The deposition of Dr. Abdul Hakim was also recorded in the Sessions Court.
While the appellant led no defence he had denied the prosecution case and stated that he had been implicated on account of enmity of witnesses Daulat and Muhammad Fazil. He did not specify the nature of the enmity.
5. The prosecution case mainly hinges on the evidence of the three eye-witnesses namely Iqbal, Daulat and Lai. Each one of these witnesses has given a similar account in regard to the occurrence. They have stated about the quarrel that had taken place between the appellant and the com--plainant on the day of the occurrence and have also deposed to the fact of complainant lodging a report at the police station. This report has also been brought on record as Exh.
12. In cross-examination of these witnesses nothing substantial has emerged as to their veracity. In fact the cross-examination is full of conflicting and contradictory suggestions with regard to the incident itself. It was suggested to P. W. Iqbal that there had been a quarrel between the deceased and the wife of the appellant in which quarrel the wife of the appellant had given blows to the deceased. It was further suggested in cross-examination of complainant Iqbal that the deceased had fallen down on the ground and was thereby injured by the cattle peg piercing her. It was also suggested that there was some dispute between the appellant and P. W. Daulat. All such suggestions were denied by the complainant. The other two witnesses namely Daulat and Lai were also cross-examined in the same manner but nothing substantial has emerged in cross- examination and I have no hesitation in accepting the evidence of these eye-witnesses.
The learned Advocate for the appellant has contended, and in my opinion rightly, that the F. I. R.
Was lodged after 24 hours of the incident. There can be no doubt that the F. I. R. Is belated but it appears that the injuries caused to the deceased were considered by the witnesses to be of so minor in nature that the complainant did not anticipate that the deceased would die on account of these injuries. In fact the evidence discloses the, the complainant tried to treat the deceased by application of some medicine --on the wound. It was only when the condition of the deceased grew worse on the day following the incident that they realised the seriousness of the injury and thereafter lodged the report.
The next point urged by the learned Advocate for the appellant is that all the three eye-witnesses were related to the deceased and very closely. It is no doubt true that all the three eye-witnesses are related to the deceased but there appears to be no enmity between the parties as may have impelled the complainant to lodge a false report against the appellant. The parties were living in the same village and the only cause of the quarrel was the trespass of two donkeys belonging to the appellant into the land of the deceased. In respect of this incident of trespass a report had been lodged. The mere fact of the witnesses being relatives of the deceased will not make them interested witnesses or inimical witnesses.
Besides the evidence of eye-witnesses there is also the evidence of Muhammad Fazil. He has stated that the appellant had come to him and confessed having injured the deceased. He further stated that he kept the appellant in his custody till such time that the police arrived when he made over the appellant to the police officer. In his cross-examination he had admitted that his nephew had filed a case against the appellant under section 326, P. P. C., in which case the appellant had been acquitted. Apart from that he has made certain admissions in his evidence which go to show that he bore enmity to the appellant and for that reason it appears to be very improbable that the appellant would have gone to this witness and made a confession to him or having surrendered himself in his custody. However even if this witness is considered to be interested the fact of arrest of the appellant by the police from the `Otaq' of this witness is sufficiently corroborated by the evidence of the police officer. Even in statement under section 342, Cr. P. C. The appellant has only denied this allegation and has not stated anything to show that he was not arrested under the circumstances under which he is said to have been arrested. The evidence of Muhammad Fazil, therefore, is also reliable.
6. The ocular evidence of the three eye-witnesses corroborated by the evidence of Muhammad Fazil conclusively establishes that it was the appellant, who had caused the injury to the deceased.
7. The next point which deserves consideration in this case is in regard to the medical evidence. Dr. Abdul Hakim had examined the dead body on 21st June 1970, at 7 a.m. And found the following two injuries on the person of the deceased:- "(1) Lacerated wound on the abdomen 2' below the umbilicus slightly on the left side 1--' x --' going deep into the abdominal cavity with the lower and left side of the wound blackened.
(2) Contusion on back below left shoulder blade 4' x 1'."
The medical officer further went on to say that the large intestine was cut at several places. With regard to the weapon of offence which was shown to the medical officer in the Curt, he stated that injuries appear to have been caused by the same weapon. The medical officer, however stated that the wound had a black hue. He explained that this blackening was a result of some external application and could not be caused by the injury of the weapon that has been used for the commission of this offence. In cross-examination the medical officer stated that blackening could be the result of some strong acid just like sulphuricacid.
At the time of hearing before us the learned Advocate for the appellant made a grievance in regard to the medical evidence on the ground that the same was inconclusive. He made an application for re-calling the medical officer and since we were also of the view that the medical evidence was not clear, we allowed the application and re-called Dr. Abdul Hakim for further evidence in this Court. At the request of Mr. Khalid Ishaq we also examined Dr. Ghazala Akhtar Burni, a specialist in abdominal surgery. Dr. Ghazala was examined as an expert witness.
The complainant had stated in his evidence that he had applied some antiseptic to the wound. He further stated in cross-examination that the medicine which be had applied to the wound was white in colour and the same had been applied two or three times. He did not give the name of that medicine nor had the police attempted to secure the same during the investigation. However, Dr. Abdul Hakim had made enquiries from the relations of the deceased in regard to the blackening around the wound and he had been told that some local medicine had been applied.
In this Court, Dr. Abdul Hakim has clearly stated that the wound in its depth was black in colour and that would indicate that it had come in contact with some acid. He has also stated that when soft tissues come in contact with acid, they acquire a black or brown hue. The medical officer has also been strenuously cross-examined on the point of the number of injuries to the intestine. In his evidence he had stated that the large intestine was cut at several places. There was only one external injury and the question that then arose was as to how the deceased had several cuts on the intestine. The medical officer had completely failed to explain this phenomenon. In this Court he went on to say that since the intestine is a colly and loop like organ, several cuts could be caused by one blow in case the deceased had bent forward. However, this appears to be a belated explanation in regard to the injuries in this case and the anxiety of the medical officer to make his evidence in this Court conform to the evidence given by him in the Sessions Court is understandable. The medical officer had said in the Sessions Court that the injuries on the person of the deceased had been caused by the crime weapon viz. a dorna or a piece of stick to which the cattle is tied. He had admitted in that context that the crime weapon which was not sharp would not be capable of causing the injuries that had occurred, but qualified that statement by saying that if the crime weapon was used with great force, such injuries could be the result. In my opinion this does not advance the value of the medical evidence. Admittedly there were several cuts on the intestine and only one injury had been given. The cuts were on the large intestine which surrounds the small intestine and stands in the shape of a column without loops in the abdomen.
Since there are no loops in the large intestine, it is very improbable that several cuts could have been caused by a single blow. Dr. Ghazala Ahmed has also stated that the black hue around the wound could not have been caused either by a bullet or by application of chemicals. She has stated that antimony cannot cause the blackening on the wound.
8. On a consideration of the above medical evidence the position that emerges is that there was only one external injury and several cuts on the large intestine. It is also established that there was blackening on the wound. We have seen the crime weapon in Court which is a wooden stick tapered and pointed at one end and measures about 2' in length and 2' in diameter. The point at that end is also flattened. This weapon is not likely to cut the intestine at more than one place especially when the cuts are only on the large intestine. If the cuts were on the small intestine which is wily and loop like, more than one cut might have resulted from a single blow. But such will not be the case when the large intestine receives a single blow. In my opinion the blackening on the wound is the result of the application of some corrosive substance like acid. It is admitted in evidence that the deceased was given some local treatment by her illiterate husband. The medicine that had been applied is not available so that there is no means of knowing as to what substance was used for the treatment of the deceased. However, it appears that the injury that had been received by the deceased at the hands of the appellant was not sufficient in ordinary course of nature to cause her death.
9. In that view of the matter the question is whether the appellant could be held to be guilty of committing the murder of the deceased. All the injuries cannot be directly ascribed to the single blow given by the appellant. There is a possibility that the injury was aggravated by applica-- petition of some local medicine. Under such circumstances it could not be safely found that the death of the deceased was the direct result of the blow given by the appellant. The medical evidence also does not appear to be clear whether death was caused on account of a single blow given by the appellant. A similar position arose in the case of Muhammad Rahim v. Khjeerullah and another (1969 P Cr. L J 18) and his Lordship Mr. Justice Yaqub A.I while concluding the judgment and upholding the conviction which the High Court had altered from section 302, P. P. C. To section 326, P. P. C. Observed as follows:- "In this state of evidence it could not be safely found that peritonitis was caused by the abdominal injury inflicted on the deceased by the respondent."
The above passage will show that whenever it cannot be safely found that the injury which caused the death may not be the result of the original blow, it would not be proper to convict under section 302, P. P. C.
10. For all these reasons, I am of the view that the conviction of the appellant under section 302, P. P.
C. Is not justified. His conviction is set aside and he is instead convicted under section 325, P. P. C.
And sentenced to R. I. For four years. The sentence of death is not confirmed.
DORAB PATEL, J.-I agree.