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S. 382-B-Sentence, reduction in-Conviction of accused under S. 302, P. P. C., altered to one under S. 325, P. P. C.-Accused in Jail for last 5 years-Sentence reduced to imprisonment already under gone.-[Sentence].

Shahid Hussain Kadri for Appellants.

Nemo for the State.

Date of hearing : 11th August, 1980.

This appeal is directed against the judgment of learned Additional Ses sions Judge, Vehari, dated 30-1-1979, whereby Falak Sher and his brother Ghulam Jafar appellants were convicted under section 302/34, P. P. C. and sentenced to life imprisonment and a fine of Rs. 3,000 each or in default in payment of fine to undergo further rigorous imprisonment for one year. The amount of fine, if recovered, was ordered to be paid to the legal heirs of the deceased by way of compensation under section 544, Cr. P. C.

2. On 28-8-1975, in the evening, Muhammad Iqbal, deceased was returning to his house from the tube-well of Ramzan Lambardar. When he reached near the sugarcane field of the appellants, the appellants came out of the sugarcane field and caught hold of the decreed. Falak Sher appellant put the turban around the neck of the deceased and pressed it while Ghulam Jafar appellant felled him on the ground with the result that the deceased sustained injuries on the back side of neck and the back. Khurshid Ahmad (P. W. 10) and Ghulam Muhammad (P. W. 11) were attracted to the spot on the noise raised by the deceased. They rescue the deceased from the appellants. After the occurrence, the appellants left for their houses. Khursbid Ahmad, P. W. informed Muhammad Fazil com plainant (father of the deceased) at his house. He returned to the spot in the company of said Khurshid Ahmad and Muhammad Zaman. The deceased narrated the entire occurrence to his father Muhammad Fazil complainant. Thereafter, the deceased was carried to his house as the deceased could not move his legs and arms. The complainant took the deceased to Civil Hospital, where he was medically examined.

3. Motive in the case was that some days before the present occurrence, the deceased had given beating to Muhammad Ishaq, a brother of the two appellants and the appellants bore grudge on that account and avenged that beating.

4. Muhammad Fazil lodged F. I. R. at Police Station, Luddan, on the following day at 12-30 p.m. The case was registered under section 307/34, P. P. C. The case was investigated and challan submitted under section 307/34, P. P. C. Muhammad Iqbal expired on 25-4-1976, i.e., after about eight months of the occurrence. An incomplete statement of Muhammad Iqbal had been recorded by Magistrate, Section 30, Vehari, on 14-4-1976. The deceased was under cross-examination when he became senseless. He was sent to the hospital.

5. The prosecution examined eleven witnesses at the trial. The two eye-witnesses, namely, Khurshid Ahmad and Ghulam Muhammad fully supported the prosecution case. They were disinterested witnesses. They had no grouse or ill-will against the appellants. Their statements could not be smashed inspite of lengthy cross-examination. I have no reason to dis believe them. The learned counsel for the appellants feeling the difficulty did not challenge those statements.

6. It was contended by the learned counsel for the appellants that the learned Additional Sessions Judge was not justified in recording the conviction under section 302/34, P. P. C. According to the learned counsel for the appellants, the case of the appellants was covered under Exception 1V of sec tion 300, P. P. C. It was also submitted that there was no previous enmity between the appellants and the deceased and the only motive was that some days prior to the occurrence, the deceased had given beating to Muhammad Ishaq and it could not furnish a motive to the appellants to commit his murder, and the only intention was to teach him a lesson by giving him beating and had it been the intention of the appellants to commit murder, they would have gone armed with some lethal weapons. It was further contended that the only part attributed was that Falak Sher pressed the neck with turban while Ghutam Jafar felled him on the ground and by these acts, it could not be legitimately held that the intention was to commit murder.

7. The deceased was medically examined on 29-8-1975 at mid-day and the following injuries were found on his person :--

(1) A swelling measuring 5' x 4' on the back neck.

(2) An oblique bruise measuring 3" x 1' with swelling on lumber region of verteberal column.

Both lower legs and pareses of both upper arms were completely paralysed. The doctor did not find any ligature mark round the neck of the deceased. The deceased was referred to Nishtar Hospital, on 3-11-1975. Dr. Muhammad Zubari X-Rayed the injuries. Dislocation of sixth cervical vertebra was seen in the X-Ray films. Post-mortem examination was conducted by Dr. Wasim Akhtar, on 26-4-1976. The doctor noticed nineteen old necrotic ulcers on the body of the deceased. The deceased was long bed-ridden and on that account, necrotic ulcers had been caused. The doctor also found dislocation of sixth cervical vertebrae which was projecting backward with fibrous adhe sions formed around. The dislocated vertebrae was firmly fixed a the dislocated place. The posteriorly projecting sixth cervical vertebrae was pressing the spinal card below head. Fibrous adhesions were formed all around the area.

In the opinion of the doctor, the death was due to gradually progressing generised debility, oaehxia and emaciated alongwith pleural and pericardial effusion which all were the complications due to long--standing bed-ridden condition as a result of dislocation of 6th cervical vertebrae, causing pressure and loss of functions of spinal cord due to pressure and the dislocated vertebrae. The injuries were sufficient to cause death in the ordinary course of nature. The dislocation of sixth cervical vertebrae was the result of some blunt object. The deceased died after about eight months of the occurrence. On account of the dislocation of the sixth cervical vertebrae, the legs and arms of the deceased were paralysed. He remained bed-ridden, which caused necrotic ulcers on the entire body and those ulcers also contributed towards the death. The death was not the result of any direct blow nor was it brought on the record as to which of the appellants was responsible for causing the disloca tion of sixth cervical vertebrae. According to the prosecution version, Falak Sher. appellant had only pressed the neck of the deceased with turban but the doctor did not find any ligature mark. It would show that the neck of the deceased had not been pressed so hard as to cause the dislocation of sixth cervical vertebrae. The allegation against Ghulam Jafar appellant is that he had thrown the deceased on the ground by catching hold of the legs of the deceased. It is to be seen as to what offence had been committed by the appellants. Culpable homicide has been defined under section 299, P. P. C. It is stated in the said section that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Intention can be gathered from the surrounding circumstances. There was no bad blood between the deceased and the appellants. Some days before the present occurrence, the deceased had given beating to a brother of the appellants. This was not a sufficient motive to commit the murder. The appellants had not gone armed with any lethal weapon like fire-arm, hatchet, spear, knife etc. They had not even carried a stick, which is an ordinary weapon. Falak Sher had put turban around the neck of the deceased. From medical evidence, it appeared that he did not strangulate the deceased as no ligature mark was found on the neck. The part which has been assigned to Ghulam Jafar appellant was that he had felled the deceased by holding his legs. There was a dislocation of the sixth cervical vertebrae. The deceased remained alive for a period of about eight months, after the occurrence. He remained bed-ridden and on that account, necrotic ulcers had been formed on the body, which contributed towards the death. From these circumstances, it was quite obvious that the appellants had not the intention of causing death nor had intention of causing such bodily injury as was likely to cause death. The appellants had no knowledge that by their act they were likely to cause the death of Muhammad Iqbal deceased. The case of the appellants was not covered under the definition of culpable homicide. Culpable homicide not amounting to murder presupposes that the party inflicting the injury does it either with intention that it should cause death, or with the knowledge that it may do so. When there is neither intention nor knowledge nor likelihood that the injury inflicted will or can cause death, the offence will be voluntarily causing grievous hurt falling under section 325, P. P. C. In view of the above discussion, I hold that the appellants were not guilty of murder but had committed the offence under section 325, P. P. C. The conviction of the appellants is altered from sections 302/34, P. P. C. to 325/34, P. P. C.