MUHAMMAD HALEEM, J.-Appellant Mahiwal stands convicted under section 301, P. P. C. And sentenced to transportation for life for the murder of his nephew, Sabar. He was tried and convicted as above by the learned Sessions Judge, Nawabshah vide judgment dated 18th March 1969. He has appealed from jail to challenge his conviction.
2. According to the prosecution case, Rahimdad, his father Sohbat, and his two brothers, Sabar and Loung, lived together in village Mavali Dairyo in Taluka Kandiaro. They had cultivated four acres of land with wheat crop belonging to the appellant, the brother of Sohbat. On 9th June 1968 at 'tipahri' time they made ready wheat grain for 'batai' and called the appellant, who lived in an adjacent house in the same village, to the dera which was about 35-40 paces from their house for sharing the produce. The wheat grain weighed 45 maunds and one-half of it was their share and the remaining was that of the appellant as representing his zamindari share. After the distribution the deceased demanded Rs. 100 from the appellant which he owed to him, but the appellant refused to pay it at that moment, upon which there was exchange of harsh words between them, and the appellant, who was armed with hatchet, thereupon caused a hatchet blow to the deceased on his head who fell down and the appellant ran away. The deceased was then taken to Police Station Kandiaro and from there he was removed to Kandiaro dispensary. The F. I. R. Was lodged by Rahimdad at 10-00 hours on 10th June 1968 which was recorded by writer Head Constable,' Bashir Ahmed. Head Constable Ghulam Hussain proceeded to the dispensary where he found the deceased lying injured and senseless. , There he recorded the statements of Loung and Sohbat, and from there alongwith Rahimdad he went to the wardat and secured blood-stained earth from a place, 35 paces away, from the stored wheat grain. He next went to the house of the appellant to arrest him but he was not there. He thereafter handed over the investigation to Ziauddin S. H. O. On 11th June 1968 the deceased expired. Ziauddin on coming to know of it went to the dispensary, where he handed over the dead body for post-mortem examination. He deputed constables to arrest the appellant from his house but the appellant was not available as he had absconded.
Again on 13th June 1968 he himself went to the house of the appellant but could not arrest him as he was not there. However, on 15th June 1968 on receipt of spy information about the presence of the appellant in his house he went and arrested him from there in the presence of mashirs, Sadarin and Ilmuddin. The appellant produced a hatchet from the thatched roof of his but it had no blood on it. However, it was secured under Mashirnama (Exh. 23).
3. The autopsy on the dead body was performed by Dr. Abdul Khaliq who noticed the following injury: - "Incised wound 6" x --" x bone deep on medial side of left front parietal region with fracture of frontal and left parietal bones". which, in his opinion, was grievous in nature and appeared to have been caused by a sharp cutting weapon, such as hatchet. According to him death resulted due to intracranial haemorrhage as a result of the above injury.
4. The appellant denied the prosecution case. He also denied the recovery of the hatchet and that that he had absconded. He alleged that the land on which the incident occurred was given to him by his father, which the prosecution witnesses themselves wanted to grab and it was for this reason that they were inimical towards him.
5. The prosecution examined Rahimdad and Sohbat in support of its case. Both the witnesses and the appellant are closely related, while the former is his nephew and the latter, his brother.
Rabimdad has stated that after the distribution of the respective shares there was a heated argument, in which harsh words were exchanged for the return of Rs. 100, which the appellant owed to the deceased, and this altercation impelled the appellant to inflict a hatchet blow on the head of the deceased, as a result of which he fell down and became unconscious. Only one suggestion was made to the witness and that was whether he had demanded the hand of a girl for himself from the appellant, which he denied. No other cause for malice appears on record. In the context of the relationship of the appellant with the deceased and the other prosecution witnesses, it is not possible to accept that the appellant was falsely implicated in the absence of any material to lay a plausible foundation for it. On the same footing is the evidence of Sohbat, but in one respect he was not consistent namely, while in the committal Court he supported the prosecution version as stated in the narration of facts yet in the trial Court he stated that it was the deceased v, ho had first fired his pistol at the appellant but the shot missed him as he fell on one side, and as he was trying to reload the pistol the appellant got up, and gave a hatchet blow on his head. He, however, maintained that he spoke of this admission in his statement before the inquiry Magistrate but since it was not there and its effect would have been to mitigate the offence, the District Public Prosecutor requested that his lower Court statement be brought on record under section 288, Cr. P.
C., which prayer was allowed. The learned counsel for the appellant took exception to that transfer of this statement to the Sessions file as in his view, there was non-compliance of section 145, Cr. P.
C. Inasmuch as this statement was not confronted to the witness before its transfer. However, he did not press this plea as no foundation existed for inferring that the deceased had fired the pistol at the appellant, for neither the pistol was recovered nor was it produced by Sohbat, nor was any crime empty found at the wardat. Additionally, if at all this was the version of the fight then it should have been mentioned in the F. I. R. Which is not the case. It was only at the stage of the trial that this plea was made known for the first time which cannot be but an afterthought.
6. It may be pointed out that even at the stage of the trial Sohbat has named the appellant for having caused the hatchet blow and there cannot, therefore, be any doubt as to his participation.
There is an attempt on the part of Sohbat to show that their relations were strained, but having regard to the note, which reads: "Note.-The witness has been behaving in a very peculiar manner as he has not been replying to the questions promptly and has been thinking over the answers for a long time. With great difficulty he has been answering the questions put to him."
We are inclined to view that what was said to found bad relations had no real basis but was manipulated to make himself partial. This is under--standable, for being a brother he wanted to save him from punishment.
We have no doubt, however, having regard to the evidence on record, that it was the appellant who was responsible for causing the hatchet blow.
7. This is, however, not the end of the matter. The learned counsel for the appellant urged that the offence at best would fall under sec--petition 304, Part II, P. P. C. In support of this contention he relied on Ghulam Hyder Imam Baksh v. Crown (31 S L R 480), Ghulam Rasool v. State (Confirmation Case No. 51 of 1964), Mahboob and another v. State (Confirmation Case No. 77 of 1966), and Abdul Karim v. State (Criminal Appeal No. 109 of 1965), and contended that even though the blow was caused by the sharp side of the hatchet on the head yet in the absence of intention to kill the deceased, the offence would fall under section 304, Part II, P. P. C.
8. We have noticed that In these cases the appellant had caused a single blow with a hatchet or a blunt weapon on the head but there was no motive and the causing of the injury was the result of a sudden altercation and it was accordingly held that in the absence of motive, the appellant could only be saddled with the knowledge that death was likely to ensue and, therefore, his conviction was altered from murder to culpable homicide not amounting to murder. This principle is equally applicable to the instant case and, therefore, the contention of the learned counsel for the appellant has substance. The deceased had cultivated the land of the appellant and head called him to give his share of the produce, and it was thereafter that the appellant caused hatchet blow on his head upon a sudden altercation over the return of the money that he owed to the deceased and that too from a hatchet which was lying at the dera. There being no malice and having felt insulted by the behaviour ofthe deceased, the appellant who was his uncle, in a fit of temper, caused the hatchet blow which in our view cannot be said to be with the intention to kill the deceased, for he could never have meant to kill his own nephew, Additionally, although medical evidence shows that the deceased died of intracranial is no certain expression that the injury was sufficient is the ordinary course of nature to cause death. All that is said is that the injury was grievous in nature. These factors lead us to conclude that there was no intention to kill but the appellant intended to cause such injury which was likely to cause death. The learnedState counsel also fairly conceded that the offence was not murder but culpable homocide notamounting to murder. Accordingly we would alter his conviction from section 302 to section 304, Part II, P. P. C.
And substitute a sentence of seven years' rigorous imprisonment. Subject to this modification the appeal is dismissed.