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Criminal Appeal No. 947 and Murder Reference No. 237 of 1980, decided on 14th December, 1982.

--S. 302 read with S. 326-Murder-Offence, alteration of-Accused responsible for causing an injury on buttock and another on band of deceased-Deceased, however, discharged, from hospital after his injuries were healed and stayed for nearly a month before being re-admitted for treatment-According to medical evidence deceased died as a result of Toxaemia due to septic process in abdomen complication of injury but no evidence to establish conviction between injury on buttock of deceased and Toxaemia in stomach--Accused, held, not responsible for causing death of deceased-Conviction of accused under S. 302, P. P. C. altered to one under S. 326, P. P. C., in circum stances.

Muzaffar Aslam and Afzal Haidar for Appellant.

Kh. Shaukat Ali for the State.

Date of hearing : 14th December, 1982.

-Naeem Mahmood received two injuries with sharp edged weapon, one on his buttock and the other on his hand on 29-7-1979 at 4-00 p.m. in Soha Bazar, Lahore. He was removed to the hospital by his friend Ghulam Nabi P. W. 8 where he was medically examined. The same evening at 10'20 p.m. Ghulam Nabi P. W. 8 was met by Nazar Hussain A. S. I, in Chowk Gowalmandi when the witness was looking for blood for his friend and he reported the matter to him vide memo Exh. P.E. This was later on registered as Exh. P.E./1 at 10:30 p.m. at Police Station Lohari, Lahore. Naeem Mahmood stayed in the hospital for some time and was later on discharged. He was, however, again admitted to the hospital where he died on 14-1-1980. The case, initially registered under S. 326, P. P. C. was then converted to section 302, P. P. C.

2. Muhammad Nasir appellant was an employee at the shop of the deceased but had been turned out by the deceased a week before the present occurrence. According to the prosecution, this was the cause of occurrence resulting in injuries to the deceased. The deceased was attacked from behind when the deceased was going to Rang Mahal with his friends Ghulam Nabi and Riaz P. Ws. The appellant disappeared after the occurrence and was arrested only on 9-11-1979 after being declared a proclaimed offender. He then led to the recovery of Chhuri P-I on 13-I 1-80 from the house of a friend in Saidpur, Multan Road, Lahore. The recovery of Chhuri was; however, not believed by the trial Court and nothing more needs to be said about it.

3. Ghulam Nabi and Muhammad Riaz P. Ws. 8 and 9 appeared as eye-witnesses. The F. I. R. was lodged by Ghulam Nabi P. W. These eye-witnesses supported the story of the prosecution, though Ghulam Nabi gave certain concessions to the accused when he made his statement before the Court. He did not know about the previous employment of the appellant with the deceased, yet he makes no mistake about the fact that it was the appellant who attacked the deceased. Muhammad Riaz P. W. 9 on the other hand supports the story of the prosecution in its entirety. The learned counsel, however, argues that Muhammad Riaz should not be believed because of his bias against the appellant on account of an attempt on his part of committing sodomy with the appellant. This argument has no force because there is nothing on record to show such a bias except for bald suggestion which was denied.

4. The two eye-witnesses have no enmity with the accused. It is true that the first blow was given to the deceased in the buttock and, there fore, from behind but at that moment the deceased and the witnesses were only couple of yards apart. They clearly saw the second blow on the hand of the deceased and in view of the close proximity there is no reason believe that there was any mistake regarding identity of the assailant. The testimony of the eye-witnesses, therefore, cannot he rejected. The fact that it was the appellant who caused injuries on the person of the deceased, therefore, stands adequately proved.

5. The death occurred nearly six months after the occurrence. According to medical evidence the death was the result of "toxaemia due to septic process in the abdomen complication of the injury which proved fatal". The connection between the injury on the buttock and the toxaemia in the stomach has, however, not been established. The injuries caused on 29-7-1979 had obviously healed as only scars could be seen on 14-1-1980 when post-mortem examination was conducted. The scars of a previous operation were also seen. This means that the deceased had been operated upon more than once. The incision given during the last surgery had however not healed as it was gaping at the lower end. The record also shows that the deceased was discharged from the hospital, before being re-admitted for treatment. He stayed at home for nearly a month, according to the inquest report. The injuries inflicted by the appellant having healed, the re-admission of the appellant to the hospital and the toxaemia in the stomach could, therefore, not reasonably be related to the injuries caused by the appellant. The appellant is, therefore, not responsible for causing the death of Naeem Mahmood. He is, however, guilty of causing grievous hurt with a dangerous weapon.

In view of the above circumstances, the conviction and sentence of the appellant under section 302, P.P.C. is set aside. He is convicted instead far an offence under section 326, P.P.C. and sentenced to R.I. for a period of five years and to a fine of Rs. 2,000 or in default to undergo further R. I. for a period of one year. The fine, if realised, shall be paid as compensation to the heirs of the deceased. The sentence of death is not confirmed.

Order accordingly.

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