' G. M. SHAH, J.-Appellant Mohammad Hussain was tried along with Allandino, Mohammad Aslam and Sharif for offences under section 302/34, P. P. C. By the learned IInd Additional Sessions Judge, Nawabshah, for the murder of Sultan aged about 60 years. The learned Judge was pleased to convict the appellant under section 302, P. P. C. And sentenced him to imprisonment for life and also to pay a fine of Rs. 1,000 or in default of payment of fine to undergo R. I. For six months by the judgment dated 12-5-1976. The fine if recovered was directed to be paid to the legal heirs of the deceased Sultan. The remaining two co-accused Allahdito and A slam were given the benefit of doubt and were acquitted : whereas accused Sharif died in jail during the proceedings.
2. The appellant was not awarded death sentence by the learned Judge, on the ground that there was an exchange of harsh words and abuses, between the appellant and the deceased, whereafter the appellant had inflicted a single blow with the back side of the hatchet on the head of the deceased which subsequently proved fatal. The learned Judge had appreciated this aspect of the evidence that one blow was given in the heat of passion, in a sudden impulse, which included an element of provocation, which was considered as a mitigating circumstance for taking a lenient view in awarding the lesser sentence.
3. The appellant has appealed to impugn his conviction and sentence awarded by the learned IInd Additional Sessions Judge. According to the prosecution case the incident took place on 20.5-1974, at about 6 a.m. (sunrise time) when the deceased Sultan and his son Inayat were ploughing the land for sugar-cane cultivation, when the appellant alongwith the acquitted accused, Allabdino, Mohammad Aslam and Sharif, who all were his relatives, came running and reached the spot. The appellant was armed with a hatchet and the rest had lathis in their hands. On their arrival, they abused the deceased and his son and asked them to leave ploughing the land, as they had no concern to be there. There was an exchange of harsh words between the parties. The acquitted accused and Sharif are stated to have instigated the appellant not to spare the deceased and his son. The incident was witnessed by Rahmat and his brother Mohammad Sharif, who were present and were ploughing their field close by. They had reached there and had separated the parties.
The eye-witness account as well as the dying declaration speak of one blow inflicted with the sharp side of the hatchet but the medical evidence certifies the injury to have been caused by the back side of the hatchet. On receipt of the injuries, Sultan fell down and the appellant and his companions went away. The complainant went and narrated the incident to the Nekmard, Haji Ali Bux Narejo, who directed him to lodge the report.
4. The motive for committing the crime was that the deceased Sultan and his son Inayat were the haris of the appellant. The deceased and the complainant had raised the sugar-cane crop in the land of the appellant at the time of the occurrence. There was a dispute between the appellant and the deceased and his son regarding the harpa. The appellant had, therefore, asked the deceased to vacate the land, which he refused. The deceased, being apprehensive, had made an application, against the appellant, to the Mukhtiarkar, which fact had annoyed the appellant, who was insisting that the deceased should vacate his land. When it was found that the deceased and the complainant had started ploughing the land, the appellant and the co-accused reached the place of occurrence and assaulted the deceased.
5. On the same day, the complainant reached the police station Kazi Ahmad, where his report was recorded at 10-00 a.m. By Head Constable Tunar Khan (P. W. 7). Since the injured Sultan was also brought to the police station and was conscious, his statement, Exh. 26, was recorded verbatim by P. W. Tunar Khan Head Constable. The Mashirnama, in respect of the injuries on Sultan, was also prepared Exh.
27. The injured was sent for medical examination, treatment and certificate to the dispensary at Kazi Ahmad. Statement of P. Ws. Rahmat All and his brother Mohammad Sharif, who were also present at the police station, were recorded. The police party headed by P. W.. Tunar Khan, reached the vardat and prepared the inspection memo. In presence of the Mashirs Umer Draz and Ghulam Mohammad. The vardat was situated in the land of the appellant in deh Kungo. The sugar-cane crop about 2i feet in length was seen standing in the land at the vardat. There were struggling marks also visible. Search for the accused was made by the police, but they could not be arrested on that day. On the following day 21-5-1974, the injured Sultan died in the Hospital.
6. On receipt of the information that the appellant was present in his house, the police party reached there and arrested him. The appellant was wearing a blood-stained shirt which was secured in presence of the Mashirs, from his possession under the Mashirnama Exh.
21. After his arrest the appellant voluntarily led the police party and the Mashirs to his house and produced a hatchet, which was lying underneath his cot and appeared to have been washed. It was secured under the Mashirnama Exh.
22. Subsequently the remaining accused were also arrested. The statements of Haji Ali Bux Nekmard and witnesses Mohammad Yaqoob and others, were also recorded. After completing the investigation, the case was challaned in the Court.
7. Dr. Fazal Mohammad who was the Medical Officer, Incharge of the Civil Hospital, Nawabshah, on 21-5-1974, performed the autopsy on the dead body of deceased Sultan son of Karamdad and found the following injuries: (1)Lacerated wound 3"x 1# x bone deep on the vertext slightly right side right parietal bone fractured.
(2)Swelling 2i' x 24, on the left temporal region.
' From the internal examination of the deceased, the doctor noticed that right parietal bone was fractured, brain was congested and big haemotoma was present on both the sides of the brain.
8. From the internal, as well as external examination,' the doctor was of the opinion that the death was caused due to the injury to the brain matter, shock and haemorrhage, as a result of blunt injury caused to the deceased, with the back side of the hatchet or a lathi. The Injury No. 1 was found individually sufficient to cause the death of the deceased in the ordinary course of nature.
9. The case of the appellant was of denial. It was contended by the appellant that there was enmity between him and his family members with Haji Ali Bux Narejo, who was the influential Zamindar of Kungo and as such, he was falsely implicated by him, other witnesses who are related inter se and the police.
10. The only contention of the learned counsel appearing for the appellent is that the act of the appellant was not intended to cause the death but could, at the most, if admitted, would be that he had the knowledge that his act was liable to cause death. He, has, therefore, argued that the offence, if at all, would fall under section 304 (II) of P. P. C.
We have also had the benefit of the arguments of Mr. Manzoor Hussain, the learned counsel appearing for A.-G. For the State, who candidly conceded that the offence would not fall under section 302, P. P. C. But would be under section 304 (II), P. P. C.
11. The evidence in this case consists of the ocular evidence of the complainant Inayat son of the deceased Sultan and P. W. Rehmat as well as the production of the blood-stained hatchet by the appellant coupled with the dying declaration of the deceased Sultan.
12. The evidence of Inayat complainant is clear on the point that his father had a dispute with the appellant, who had asked him to leave the land. On the day of occurrence, when the appellant, accompanied by the co-accused, had reached there, an exchange of hot words between the parties took place and the appellant gave one blow with the back side of the hatchet on the head of the deceased which proved fatal. If the intention of the appellant was to commit murder, he could conveniently have used the right side of the hatchet, in order to finish the deceased at the spot. The evidence goes to show that after causing one injury with the back side of the hatchet, no further assault was made on the deceased which fact indicated that the act of the appellant was not intended to cause murder ; but only to cause him such bodily injury to teach him a lesson to persuade him to vacate the land. We feel inclined to accept his contention. The appellant had inflicted only one hatchet injury which was lacerated wound 3" x 1" x bone deep and had caused the fracture of the bone. The second injury was only the swelling 24' x 24" on the left temporal region, which it is possible, could have been caused by a fall. The fact of inflicting one injury by the appellant on the deceased is supported by the F. I. R. Lodged by the complainant and is earliest in time and speaks only of one blow. In the dying declaration also the deceased himself had mentioned only one blow being given to him. Finally this version is corroborated by the Dr. Fazal Mohammad, who had referred to the Injury No. 1 only, that it was caused by the back side of the hatchet or a lath: and had made no mention how Injury No. 2, which was only a swelling was caused to the deceased. There was no cross-examination of the doctor to clarify this aspect of the evidence. However, the evidence of the eye-witness Rahmat also speaks of one injury in his statement before the lower Court, when he was confronted in his cross-examination. The extract of the lower Court is Exh.
18. It is therefore quite clear that the appellant had no intention to kill the deceased. It is true that as a result of one injury, the right parietal bone was fractured and the brain was congested on both the sides and this injury was opined to be individually sufficient to cause the death of the deceased in the ordinary course of nature. In order to ascertain the intention of the appellant, we have to see to the motive in this case, for committing the crime. The appellant wanted the deceased to vacate his land and on his refusal had given him only one injury on his head. Under the circumstances, we feel that the motive in this case was not sufficiently strong to pursue the appellant to commit the murder of the deceased. This leads us to the irresistible inference that the appellant did not intend to cause the murder of the deceased but had the knowledge that the injury inflicted on the head of the deceased, was likely A to cause his death. Raliance can safely be placed on the case of Mohammad Sharif (1) and also on 1975 P Cr. L J 1121, paragraph 8 at page 1124.
13. Under the circumstances, we substitute for the sentence of imprisonment for life awarded to the appellant under section 302, P. P. C. The sentence of 7 years' R. I. Under section 304 (II), P. P. C. The sentence of fine and the direction that the fine if realised, should be paid to the heirs of the deceased Sultan, are maintained.
(1) 1972 SCMR 872