1981 P Cr (PLP)

NASIR ASLAM ZAHID, J.-This appeal under section 410, Cr. P. C. has been filed by the convict-appellant Loung son of Allahdino Solangi against the judgment dated 10thSeptember, 1979 of the learned III Additional Sessions Judge, Hyderabad, whereby the appellant has been convicted under section 302, P. P. C. and sentenced to imprisonment for life. This appeal was admitted by order dated 22nd September, 1979 of this Court and while admitting the appeal this Court ordered issuance of notice to the appellant for enhancement of sentence.

2. The prosecution case is that the deceased, Mohammad Rahim son of Wasaro Solangi, had been hit by the appellant with a `pahori' (a wooden spade) on 19th March, 1973 and initially a case was registered against the appellant under sections 324 and 323, P. P. C. and the offence being bailable the appellant was enlarged on bail by the Police, but later on the deceased died on 7th June, 1973 and, as according to the prosecu tion case the death of the deceased was the direct result of the injury caused by the appellant on 19thMarch, 1973, the appellant was arrested again and prosecuted under section 302, P. P. C.

3. The time of occurrence as given in the F. I. R. is 10 a. m. on 19th March, 1973 in the open cattle-pen, Deh Gujho, Taluka Hyderabad, 3 miles south of Police Station Hatri where the F. I. R. was lodged the same day at 14-00 hours by the complainant Nabi Bux son of Ahmed Khan Solangi, brother-in-law of the deceased. According to the F. I. R. the complainant and his deceased brother-in-law lived in village Bachal Solangi. The deceased had brought 3 buffaloes from somewhere for milking purposes and on the day of the incident the complainant received a telephonic message at about 10-30 a. m. that the appellant had quarrelled with the deceased in the village and had given him a blow. On receipt of such information, the complainant went to the scene of offence in the village where eye-witness Khair Mohammad (P. W. 2), nephew of the deceased, informed the complainant that at 10 a. m. the deceased was standing at, his cattle-pen when brothers Mohammad Bux and Loung (the appellant) both sons of Allahdino, came there and told him that the owner of the buffaloes had asked the two brothers to take the buffaloes away for milking purposes, whereupon the deceased told them that he would not hand over the buffaloes to them until he obtained confirmation from the owner. This resulted in exchange of heated arguments between them-and according to the F. I. R. both the brothers pounced upon the deceased and tied both his arms behind his back and gave the deceased blows with a rake on his head which started bleeding. Commotion being raised Khair Mohammad (P. W. 2), Haji son of Haji Uris (P. W. 3) nephew of the complainant, and Bajhoo son of Wasaro came running and rescued the deceased and untied his arms. Thereafter Khair Mohammad telephoned the complainant. After this the complainant took the deceased to Civil Hospital, Hyderabad and got him admitted and then came to make the report at the police station. Mohammad Bux brother of the appellant, was also directly involved in the F. I. R. but he could not be brought to trial as he died before the trial Court commence. Only the appellant has faced the trial.

4. According to Dr. Iqtedar Hamid Bhatti (P. W. 8) who was at the time Assistant Professor in the Department of Neurosurgery at Jinnah Post Graduate Medical Centre, Karachi, the history as recorded in the hospital notes was that the injured Mohammad' Rahim had been assaulted with a sharp-edged object on 19th March, 1973 at Hyderabad and he was reported to be unconscious for 7 days. After his treatment in Hyderabad when his condition had improved Mohammad Rahim was discharged from the hospital on 4th April, 1973. About 7 days after his discharge, the deceased developed headache and weakness on the right side. He was then admitted in Karachi in Ward 16 of Jinnah Hospital where his condi tion was poor with signs of weakness in the right side of the body and difficulty in speech. X-ray of the skull showed multiple fracture including depressed fracture of the left frontal temporal bone. On 26thMay, 1973 Dr. Bhatti operated on the deceased, elevated the depressed fracture in the left frontal temporal region removing parts of the bone. In his evi dence Dr. Bhatti has stated that after the operation, the patient improved initially but on 2ndJune, 1973 his condition deteriorated. Following this, needle exploration was carried out and this showed a chronic abscess in the left frontal part of the brain. This was treated with antibiotics but the patient did not improve. According to Dr. Bhatti there was evidence that the absence had ruptured in the cavity of the brain. The patient died on 7th June, 1973. After the death of Mohammad Rahim on 7th June, 1973 the appellant was arrested on 2nd July, 1973.

5. According to the prosecution, the case against the appellant is based on the ocular evidence of P. W. 2 Khair Mohammad, corroboratory evidence of P. W. 3 Haji and the complainant P. W. 1 Nabi Bux, the recoveries and the medical evidence.

6. The only eye-witness is P. W. 2 Khair Mohammad, who is the nephew of the deceased. According to his evidence on the day of the incident at about 10 a. m. the witness was in his house, when he heard cries on which he went running out of the house and reached the cattle-pen of the deceased and saw that Mohammad Bux was standing there while the appellant was causing injuries with a `pahori' (wooden spade) on the body of the deceased. Haji and Bajhoo (brother of deceased) also came running there whereupon the appellant and his brother Mohammad Bux ran away. The deceased was found to be unconscious and wounded and his hands were also found to be tied by a towel from behind but none of the witnesses had seen as to who had tied this. Khair Mohammad then went to a nearby petrol pump and from there he informed his uncle Nabi Bux, the complainant, who was at Hyderabad. Khair Mohammad then shifted the deceased to Hyderabad where Nabi Bux also reached to whom he related the facts. Nabi Bux then went to lodge the report with the Police. According to P. W. Khair Mohammad the deceased died on 7thJune, 1973 in Jinnah Hospital, Karachi. According to this witness, before the incident he had heard the appellant and the deceased quarrelling over a buffaloe. They were quarrelling in the. cattle-pen which was separated from Khair Mohammad's house by a wall. In cross-examina tion the witness admitted that the `pahori' was of wood. He further stated that the appellant had inflicted 2-3 blows by `pahori' and on the deceased in the presence of the witness although the other evidence was to the effect that only one blow was inflicted.

7. The evidence of the eye-witness Khair Mohammad is corroborated by the evidence of P. W. 3 Haji. According to this witness, he had not seen the appellant inflicting any blow by `pahori' to the deceased as according to this witness, the appellant had already inflicted a blow by pahori' to the deceased on his head and this was told to Haji by Khair Mohammad. According to Haji, the deceased remained as an indoor patient for about one month in Liaquat Medical Hospital at Hyderabad, from where he was discharged after about a month, and thereafter he was again admitted in the hospital and was then sent to Jinnah Hospital, Karachi where he died. In his cross-examination he stated that Nabi Bux complainant had come to their village alongwith him and then shifted the deceased to the hospital.

8. P. W. 1 Nabi Bux is the complainant and he confirms the facts stated by him in the F. I. R. In his statement, Nabi Bux has stated that Haji son of Uris (P. W. 3) was the husband of his sister and his house was about half a mile away from the house of Nabi Bux. This witness also stated that the deceased was discharged from the Hyderabad Hospital after about a month and after some time he fell seriously ill and after examination in Hyderabad Hospital he was advised to go for treatment to Jinnah Hospital, Karachi.

9. P. W. 6 is Head Constable Gohar Rahman of Market Police Station who was on duty in Hyderabad Hospital on 19thMarch, 1973 where Khair Mohammad had brought injured Muhammad Rahim. Gohar Rahman had requested the Medical Officer for examination, treatment and certificate of the injured. He also prepared a mashirnama of the injuries which is Exh.

17. According to the mashirnama dated 19th March, 1973 prepared at 11 a. in. by Gohar Rahman and signed by the mashirs Nabi Bux and Khair Mohammad, the injuries noted were two injuries above forehead on the left side of the head which were bleeding.

10. The Medical Officer Dr. Mohammad Taqi of Liaquat Medical College, Hyderabad was examined as P. W.

10. According to this witness, the .deceased was examined by him and he found an incised wound of 1" x 1-1/3" x " on forehead about 2' above left eye-brow with fracture on the frontal bone. According to him, the nature of the injury was grievous and. the weapon used was sharp-cutting. He had issued a certificate Exh. 12-A to that effect on 19th March, 1973. The witness was at that time incharge of the Medico-Legal Department and on the same day he had referred the injured to the X-Ray Department from where he got the report that the injured had a fracture on the front position. He admitted that after 19th March, 1973 he had not examined the injured. The `Medical-Legal' Certificate which is dated 19th March, 1973 shows the same injury and further mentions fracture of bone vide X-Ray Report No. 3-4-11053-54 dated 12th April, 1973. In his cross-examination he admitted that he had issued the Medical Certificate on 19th March, 1973 when X-Ray Report was not available although his certificate refers to the X-Ray Report dated 12th April, 1973.

11. Exhibit 11 dated 9th March, 1973 is the mashirnama of wardat and Exh. 12 of the same date is the mashirnama of recovery of the `pahori' according to which mashirnama there was no bloodstains on the pahori'. Exh. 14 dated 19thMarch, 1973 is another mashirnama of the dirty old towel with a square print which was recovered from the scene of incident. This towel as supposed to be on the head of the injured Mohammad Rahim from where it was removed and the arms of Mohammad Rahim were tied by the two accused. The towel was secured by the Police but no bloodstains were found. The Chemical Examiner's report is dated 6thJuly, 1979 although the sealed parcel containing the blood-stained earth secured from the scene of the wardat was received by the Chemical Examiner on 8th April, 1974. This report has been given by the Chemical Examiner after nearly 5 years and 3 months and no explanation for the delay has been given. According to this report, the earth was found to be stained with human-blood.

12. Mr. Azizullah Shaikh, the learned counsel for the appellant, has raised two-fold contention before us. Firstly he has argued that from the evidence on record it has not been established by the prosecution that the person who died in Jinnah Hospital, Karachi on 7th June, 1973 was Mohammad Rahim son of Wasaro. In support of his contention in this regard he contended that no one had identified the body and further no post-mortem of the body of the deceased took place. Further he argued that none of the witnesses have given any evidence that they had taken the deceased to Karachi and got him admitted there and that it had also been established that the body of the person who died at Jinnah Hospital, Karachi on 7th June, 1973 and was shown as Mohammad Rahim in the hospital records was handed over to unknown persons. According to the learned counsel, the statements made by the witnesses in their depositions before the trial Court that Mohammad Rahim son of Wasaro had died in Karachi on 7th June, 1973 are all hearsay evidence.

13. The second contention of the learned counsel is that the case against the appellant in any case has not been made out for his conviction under section 302, P. P. C. but at best the appellant could have been convicted under section 325, P. P. C. for the injury caused by the one blow with, the wooden pahori' given by him to Muhammad Rahim. In respect of his second contention that this was a case under section 325 and not 302, P. P. C. the learned counsel has made two submissions: Firstly, according to him, in the circumstances of the case, the blow inflicted by the appellant with the `pahori' even if it directly resulted in the death of Mohammad Rahim after the expiry of more than 21 months, did not make out a case under section 302, P. P. C. inasmuch as neither there was any intention on the part of the appellant to cause the death of Mohammad Rahim nor could he have realised that the blow that he was inflicting upon the deceased would have caused his death. His second submission was that it has not been proved that the death on 7th June, 1973 of Mohammad Rahim was the direct result of the injury caused by the appellant on the deceased 21 months earlier on 19thMarch, 1973.

14. Before we take up the contentions raised by the counsel for the appellants, we may observe that from the evidence of P. W. 2 Khair Mohammad and P. W. 3 Haji, who have no enmity with the appellant, it has been established that after exchange of heated arguments, the appellant hit the deceased with a wooden 'pahori'. We find no reason for disbelieving the evidence of these witnesses on this point.

15. We now take up the first submission made by the learned counsel for the appellant in support of his second contention that at best the prosecution case against the appellant before this Court falls under section 325 and section 302, P. P. C. is not attracted. Front the evidence on record we are satisfied that only one blow was given by the appellant to the deceased on his forehead with a wooden `pahori'. It is also established from the evidence that there was no enmity between the accused and deceased Muhammad Rahim and that there was a quarrel on the milking of buffaloes and heated arguments between the two sides, after which the injury was caused by the appellant. Apparently from the evidence it transpires that the appellant had neither any intention to kill Muhammad Rahim nor could we have realised that the one blow which he was giving was likely to cause the death of the injured. In this connection there are 4 pieces of evidence which form the basis of our conclusion in this regard. The first is the evidence of P. W. 6 Head Constable Gohar Rahman that while he was on duty in the Hyderabad Hospital on 19th March, 1973, the injured was brought by Khair Mohammad to him and he requested the Medical Officer for examination and also prepared a mashirnama of injuries, which mashirnama shows two injuries above forehead on the left side of the head, which injuries were bleeding. This witness does not say whether the injuries were grievous. Then there is the evidence of P. W. 10 Dr. Mohammad Taqi, who examined the injured on 19th March, 1973 and he detected only one wound on the forehead which he described as an incised wound. He also gave a certificate (Exh. 33) dated 19th March, 1973, in which he gives the nature of injury as grievous. In his cross-examination he states that he had examined the injured on 19thMarch, 1973 and had also issued the certificate (Exh. 33) on the same day but surprisingly the certificate makes reference of the X-ray report dated 12th April. 1973. He also stated in his examination-in-chief that he had not examined Mohammad Rahim after 19th March, 1973. It is obvious that the medical certificate could not have been issued on 19th March, 1973 as it makes reference of the X-Ray Report dated 12th April, 1973. Mr. Murtaza Hussain, the learned counsel for the State, was at pains to convince us that a part of this medical certificate regarding the injury was prepared by Dr. Taqi on 19th March, 1973 and then the reference to the fracture of the bone on the basis of the X-Ray Report was inserted in the certificate on or after 12th April, 1970 when the X-Ray Report became available to- the Medical Officer concerned. We regret, it is not possible for us to accept this explanation of the learned counsel for the State. On account of this material contradiction in his testimony Dr. Mohammad Taqi's evidence cannot be accepted and in the circumstances it must be rejected for the purposes of coming to the conclusion as to the nature of injury caused to Mohammad Rahim. The other relevant evidence is that of A. S. I. Mohammad Jaffer (P. W. 5) who was posted at Police Post Hatri on 19th March, 1973 and had recorded the F. I. R. at about 14-00 hours lodged by complainant Nabi Bux. He states that on 24thMarch, 1973 after 5 days of the incident, the appellant and his deceased brother Mohammad Bux appeared before the A. S. I. at Karachi Hotel, Hydera bad and he arrested them and "released them on bail, as still then the offence was bailable." Now on 24th March, 1973, the Police must be aware of the medical report of Dr. Mohammad Taqi but in spite of that, this witness states that he released the two accused on bail after arresting them as according to him, till thin the offence was bailable. If Dr. Taqi's evidence is to be believed, the injury was grievous and the offence could. not be bailable, but this witness even 5 days after the incident considers the offence to be bailable. This fact further creates serious doubt about the evidence of Dr. Muhammad Taqi. Lastly is the evidence of Dr. Iqtedar Hamid who had operated upon the deceased at Jinnah Hospital. He has given an undated certificate titled "To whom it may concern" (Exh. 27) in which he gives the history of the patient, but this certificate as well as the evidence of Dr. Iqtedar Hamid relating to the injuries caused, the treatment given to the deceased at Hyderabad, his discharge from Hospital and again his re-admission in the Hyderabad Hospital, then his reference to the Casualty Department, Civil Hospital, Karachi and then his admission to the Jinnah Hospital, is all hearsay evidence. He has stated in his cross-examination that he could not recollect as to whether he had seen the past history of the patient in writing before examining him and he also did not know the source of recording the history of the patient. He has further stated that he could not say with which weapon the scar was caused on the forehead of the patient and he also stated that if the deceased had received adequate surgical treatment soon after the incident the injuries to the brain might have been reduced.

16. The learned counsel for the appellant in support of his conten tion that the case falls under sections 325 and not, 302, P. P. C. has referred to the cases of Ahmed v. State (P L D 1971 S C 720), Anwar v. State (P L D 1965 Lah. 378) and Ghulam Mohammad v. State (1972 P Cr. L J 993). Then there is the case of Devraj v. State (P L D 1980 Kar. 246), decided recently by a Division Bench of this Court. These reported judgments support the contention of the learned counsel.

17. From an examination of the evidence relating to the injury and on account of the inadequacy of motive we have come to the conclusion, as stated hereinabove that it has not been established that the appellant had any intention to cause the death of deceased Rahim when he gave the blow with his wooden 'pahori' nor could he have realised at the time he gave the blow that it was likely to cause the death of the deceased. The appellant at the most intended to cause grievous hurt to the deceased. This finds support from the further fact that the instrument used was made entirely of wood. The case, therefore, falls under section 325, P. P. C.

18. As we have reached the conclusion that the offence committed by the appellant falls under section 325 and not 302, P. P. C. it is not necessary to deal with the other contentions of the learned counsel for the appellant. The next question is of sentence The appellant has remained in custody since 4th July, 1973 tilt 28th October, 1973 when he was granted bail by this Court. He accordingly remained in custody for over 5 years before his conviction on 10th September, 1979 when he was again taken the custody to undergo his sentence. He has been in custody for 10 months since his conviction, by the trial Court. Taking into consideration In period of his detention before and after his conviction, we are of the view that ends of justice will be met if the sentence is reduced to the period already undergone by him. We accordingly alter the conviction of the appellant from section 302 to section 325, P. P. C. and reduce his sentence to the period already undergone by him and with this modification the appeal is dismissed. As according to this judgment in appeal, the appel lant has completed his term of imprisonment, he will be released forthwith from custody if not required in any other case. Order accordingly,