TUFAIL ALI A. REHMAN, C. J.--The deceased in this case, one Ghulam Muhammad, was, like the first informant Kamaluddin, a water supplier, that is to say, he used to carry water in leather containers after filling them from a community tap to the houses where they were required in Pak Colony on Mangho Pir Road and on 16th of June, 1968 at about 3 p.m. The first informant was engaged in his task and was upon that day deputising also for the deceased Ghulam Muhammad who was not then on duty. Apparently he had supplied water to various houses when at about 3-45 p.m. The appellant Haroon Rashid called him and asked him why his own house had not yet been supplied with water whereupon the first informant replied that he was about to do so. Nevertheless an altercation ensued between the first informant and Haroon Rashid and, in the meantime, it is said that three other persons, namely, Liaquat, Ayub and Hamid came up and witnessed what thereafter occurred: Ghulam Muhammad himself also came up in the meantime and attempted to prohibit Haroon Rashid from abusing whereupon the two other appellants, namely, Amin Sharif and Muhammad Mian, are alleged to have caught hold of deceased Ghulam Muhammad while Haroon Rashid went to his house which was nearby and brought an iron pipe which he struck upon the heal of Ghulam Muhammad who then fell on the ground. The first informant then took Ghulam Muhammad, who was bleeding, to the Pak Colon, Police Outpost where the statement of Kamaluddin was recorded at 3.05 p.m. By police constable Dilawar who was the Roznamcha Moharir at the police outpost on that day. The constable then sent the injured Ghulam Muhammad to the hospital with a letter through Kamaluddin and also sent the statement which he had recorded to the Golimar Police Station where the due course it was registered as a first information report. At about 5-15 p.m. Upon the same day prosecution witness Muhammad Munir the A. S. I. P.
Incharge of the outpost having been informed by the Roznamcha Moharir that he had received the report mentioned went to the Civil Hospital with the object of recording the statement of the injured but the doctor stated that the injured was not in a position to give any statement. Upon the question whether in the few days which elapsed between the date of the offence and the date upon which the deceased died, namely the 24th June 1968, the record does not specifically state whether the injured was ever in a position to have a statement recorded but there is certainly no statement of his upon the record and it is to be presumed therefore that he never regained sufficient consciousness to be able to make a statement. The Sub-Inspector then went to the scene and, besides such matters as making a mashirnama of the scene of offence, he also recorded the statements of the witnesses by which presumably is meant the witnesses whose names have transpired in the first information report, that is to say Liaquat, Hamid and Ayub. Of these witnesses Hamid and Ayub besides the first informant were examined at the trial as eye- witnesses but Liaquat was not and in addition to these two, others namely, Arif and Ibrahim were examined; as to these last two mentioned, however, Muhammad Munir clearly states that they were examined by him upon the 24th June, 1968. While at the scene the Sub---Inspector recovered the iron pipe with which the offence is alleged to have been committed and, according to the deposition of the Sub-Inspector, this was recovered from "their house" which in the context means the house of the appellants. The mashirnamas, however, is somewhat more specific and states that it was recovered from the house of the appellant Amin Sharif and others while the witness Abdul Ahad who is a signatory to this mashirnama says that it was recovered from the house of Amin Sharif and was pointed out by the same Amin Sharif. After the death of the deceased his clothes which were blood-stained were recovered by the police and these clothes as well as the iron pipe already recovered were sent for the purposes of chemical examination. All the appellants were then arrested and in due course were sent up to the Court of a Magistrate from which they were committed to the Court of Sessions on a charge of murder. They were tried by the Additional Sessions Judge, Karachi who convicted them of an offence under section 302 read with section 34 of the Pakistan Penal Code and sentenced them to transportation for life and to pay a fine of Rs.
100 each or in default to suffer rigorous imprisonment for one month more. Against these convictions and sentences the appellants have appealed. At the close of arguments in this case my learned brother and I did not feel that the convictions of appellants 2 and 3, that is to say, Amin Sharif and Muhammad Mian, could be sustained and therefore allowed their appeals and acquitted them while in the case of Muhammad Haroon Rashid, having come to the conclusion that he was guilty of an offence under section 325, we reduced the sentence to cane of five years' rigorous imprisonment leaving our reasons to be recorded later. I am accordingly stating the reasons which persuaded me to follow this course.
2. Now apart from the evidence as to the production of the iron pipe the case against the appellants rested upon the ocular testimony of the witnesses Kamal uddin, Hameed, Arif, Ayub and Ibrahim. Of these Kamalud--din is the first informant land Hamid and Ayub are mentioned in the first information report which was clearly recorded without any loss of time, and, regard being had to the fact that Hamid is a water-carrier whose ordinary work requires him to be in the locality and that Ayub, although not a water-carrier, is admittedly a resident of the same locality, I think they were witnesses whose presence was natural and may therefore be accepted. The witnesses Arif and Ibrahim however stand in another category. Their statements were not recorded by the police until after 7 days and therefore, in regard to the witness Muhammad Ibrahim the learned Judge thought, I think quite rightly, that his presence on the day of the incident at the scene was doubtful.
The same criticism however applied to the witness; Muhammad Arif also but to regard to this witness the learned Judge pointed out that there was a difference inasmuch as Arif was a resident of the place and, therefore, he saw no reason why his presence at the scene should not be accepted. There is undoubtedly a difference between these two witnesses and so far as the naturalness of their presence is concerned I think that the learned Judge was quite right in saying that Muhammad Arif being a resident of the place could be regarded as a natural witness. The fact remains, however, that he was not examined for 7 days and I think it would be unsafe to take the testimony of this witness into account. I am not meaning to lay flown drat merely because the witness has been examined 7 days after the incident his evidence is necessarily false but I think it can hardly be doubted that that it is a circumstance which reflects upon the likelihood of his being a genuine witness. At least the safer course would be riot to rely upon this witness and I propose therefore not to take into account the evidence either of Arif or Muhammad Ibrahim. In truth, however, it makes very little difference whether these witnesses are to be taken into account or not for the evidence of Kamaluddin, Hamid and Ayub who are mentioned in the first information report and who live in the locality was much to the same effect as that of Arif and Ibrahim and, if their evidence is to be believed, then the presence and participation of all the appellants would stand established while if that is not accepted that of Arif and Ibrahim could hardly improve-matters for the prosecution.
3. The appellants denied the incident in its entirety and claimed that because the deceased was a Kashmiri as were all the prosecution witnesses, they were interested in him while the appellants themselves were Bengalies and it was the desire of the prosecution witnesses that they should leave the colony. It is an admitted position in this case, however, that there was no previous enmity between the parties and according to the prosecution also the altercation which took place upon that day was a sudden one. The bond bet--ween the prosecution witnesses inter se on the one hand and the appellants amongst themselves upon the other is after all not of relationship but merely a matter of belonging to the came part of the country and I can hardly believe that that would be sufficient reason for false implication in a case of this kind. I am therefore willing to accept the prosecution case to the extent that Ghulam Muhammad received an injury upon the day alleged and much in the fashion alleged. The question however is as to what precisely the prosecution has established as having occurred upon that day and, as a result of considering what did occur, who among the appellants can be held to be guilty and of what offence.
4. The case put forward in the depositions of the witnesses was that after Haroon Rashid had protested to the first informant for not yet having carried water to his house, Haroon Rashid started abusing him and in this altercation the deceased Ghulam Muhammad intervened. It is then said that Haroon Rashid went to his house and brought an iron pipe while the other two caught hold of the deceased. Now this entire sequence of events appeared to me wholly unlikely. There was no deep seated grudge against the deceased prior to the incident and certainly nothing occurred upon that day which could seem sufficient provocation for Haroon Rashid to go to his house and bring an iron pipe with the intention of causing death or at any rate very serious injury. Besides it is to be remembered that the altercation was primarily with the first informant and not the deceased; upon the other hand, the person who was annoyed at the water not having been delivered at his house was Haroon Rashid and not the other two appellants. Indeed that is not the case put forward in the first information report where the first informant stated that Haroon Rashid picked up an iron pipe which, presumably, was lying there and struck the same upon the head of Ghulam Muhammad. In the context of the incident as it has occurred quite clearly this is much the likelier story. Going to the house and bringing back an iron pipe would show far more premeditation than appears natural in an incident of this kind. The prosecution witnesses have indeed, or at least some of them have, tried to develop an even more serious case by saying that the appellant Haroon Rashid said that he would kill him namely Ghulam Muhammad while one or two others have said "I will see you". In English of course the idiom does not sound correct and the words seem meaningless but it is apparently a literal translation of the Urdu which would be something like "Main Tumko Deko Lunga" which again could mean a threat of an injury immediately or could mean a threat of dire consequences later. In the circumstances I cannot but regard the attribution of these statements to the appellant Haroon Rashid as an embellishment, even a crude embellishment, of the story as originally given in the first information report. In the context of his picking up an iron pipe at the spot hardly credible that the other two appellants would catch hold of the deceased more particularly because animus which engendered by the incident would be directed against the first informant or at least against both the first informant and the deceased and in consequence therefore if the three appellants were picking up a quarrel on this account it would be more likely that the two appellants other than Haroon Rashid would attack the first informant particularly if they saw that Haroon Rashid himself was attacking the deceased. In any case it is difficult to see how these facts make out a common intention between Haroon Rashid and the other two appellants. There was admittedly no question of a preconcert before the incident started and, while of" course it is entirely possible that reconcert may develop at the spot the inference has after all to be drawn from the circumstances, there being no question in the instant case e of any exchange of words between the appellants which would show such an agreement as would attract the provisions of section 34 of the Penal Code. While therefore the witnesses may well be believed that the other 2 appellants were present at the scene and might even have taken part in the oral alterca--petition I am unable to say in the present case that their allegation that they caught hold of the deceased is definitely established and that in any case there was any pre-concert between the three appellants such as would suffice to attribute to them a common intention. Admittedly the blow struck upon that deceased was by Haroon Rashid and Haroon Rashid alone and therefore, whatever view be taken of the liability of Haroon Rashid, clearly the prosecution has made out no case against the other two appellants.
5. Turning next to the case of the appellant Haroon Rashid I have already given my reasons for disbelieving the story of his having gone to his house for the purpose of picking up a weapon which he could use and there--fore, whatever happened, happened spontaneously upon the spot.
Although there are two injuries upon the, deceased it is an admitted position that the appellant gave him one blow and one blow only. Dr. Muhammad Ramzan who examined the deceased while he was still alive gave the following description of the, injuries upon his person:- "(1) Lacerated wound top of skull 2--' x --' x tissue deep.
(2) Haematoma right side forehead 1" x 1".
The injury I was kept reserve and plat film X-Ray No. II shows fracture pf skull bone. Nature of injury grievous."
The question was not asked from the Doctor whether these two injuries are necessarily the result of two separate blows. But the doctor did say that the second injury could have; been caused by a fall and by coming in contact with a hard substance. The evidence of the witnesses is unanimous that Haroon Rashid caused only one injury with the iron pipe and indeed the first informant in the course of his first information report very clearly said that when the deceased fell down he received an injury on his forehead due to the falling down. The intention with which a person causes an injury is, normally a matter which can be inferred only from the injuries themselves an cases where there is no evidence of any prior motivation. The weapon with which the injury was caused in the present case is not one which one normally selects for the purpose of causing death and was one which happened to be at hand. 'The incident was a sudden one arid only one blow r was given and in these circumstances I am unable to say that any of the various states of mind which are contemplated by section 299 of the Penal Code existed. I do not think therefore that this is a case which falls under the definition of culpable homicide much less of murder.
6. Clearly however when a person causes an injury to another with an iron pipe upon the head and grievous injury is the result' he must be held voluntarily to have caused grievous hurt. The learned Assistant Advocate---General also supports this view but claims that the offence falls not under section 325 of the Penal Code but under section 326. This argument is based upon the language of section 326 under which provision the offence would be punishable, if, among other things, the grievous hurt is caused "by means of . . . . . . . . . . . . . Any instrument which, used as a weapon of offence, is likely to cause death." Now clearly this does not mean that the weapon must be of a kind which is normally used for killing but then it would have been unnecessary for the Legislature to, have used the words "used as a weapon of offence." I am therefore prepared to agree with the learned Assistant Advocate-General that merely because the weapon is not one which one normally associates with a homicidal attack the section is not attracted. On the other hand I am unwilling to go so far as to say that whenever death is caused then, ex-hypothesi, the weapon must be regarded as one which is likely to cause death since death has in fact occurred. The various ways in which death can ultimately occur are so diverse that what is apparently the most innocuous of instruments might yet have this result, possibly even a pin inserted in an artery so as to cause a sufficient opening might result in enough bleeding to result in death. Between the two extremes I think a reasonable construction is required to be placed upon the phrase used by the Legislature. I conceive, therefore, that the Legislature intended to include such instruments which, though they are not ordinarily regarded as instruments suitable for killing, are in their nature such as, if used offensively, would probably ensure death. It must therefore be a question of fact in each particular case and it is therefore, necessary to examine what the weapon in this case was. So far as the length of the weapon is concerned it is described in the mashirnama as being 3-- spans.
Nowhere in the evidence is the precise length stated. Not even in the mashirnama is the width of the weapon stated. I do think greater care should have been taken to page stated the dimensions of the pipe; the length should have been described in feet and inches and the width should also have been mentioned. A span however being about 8" the length may be taken as being between 2 feet and 2-- feet. So far as the width is concerned the only indication that we have is from the medical evidence which describes the resultant wound as being quarter of an inch wide. Since the weapon is described as a pipe one assumes that it must have been hollow. It should not have been necessary to make all these assumptions; even if it was not described in the mashirnama or not stated in the evidence as to what the actual dimensions were; the pipe itself was in Court and the learned Judge might well have made a note of what the actual dimensions were. As it is upon the evidence one can only hold that the pipe was about 2-- ft. In length and about quarter of an inch in width and was hollow. This would therefore be a comparatively light weapon and I cannot in the entire circumstances of the case regard it, as such a weapon as is mentioned in section 326, P. P. C. I, therefore, consider the conviction of the appellant Haroon Rashid under section 325, P. P. C. Rather than under section 302 to be the proper conviction. For that offence a sentence of five years' rigorous imprisonment seems to me to be proper and adequate.
ABDUL HAYEE KURESHI, J.---I agree.