MUHAMMAD ARIF Versus STATE

The appellant above-named has filed the above appeal against judgment dated 12th September, 1978 of the learned 1st Additional Sessions Judge, Larkana in Sessions Case No.3/78, whereby he has been convicted under section 302, P.P.C. and sentenced to suffer imprisonment for Life and to pay a fine of Rs.2,000 and in default to suffer R.I. for 6 months more, has preferred the above appeal, on the facts and grounds mentioned in the memo of appeal.

2. The learned Advocate for the appellant in support of the above appeal submitted that in view of the statement of P.W.4 Dr. Niaz Hussain it is clear that the death of the deceased was due to diseased spleen and not only on account of the blow received at that spot by him, which blow according to this witness caused only simple injury. In view of this the learned Advocate for the appellant submitted, that in the absence of any evidence on record, that the appellant knew about the condition of the spleen of the deceased the offence committed by the appellant would fall under section 323, P.P.C. only, and not under section 302, P.P.C, as held by the learned trial. Court. In support of this, the learned Advocate for the appellant relied upon case reported in 1971 P Cr. L J 269.

3. The learned Advocate appearing for the State conceded to the above legal position and submitted that the conviction of the appellant may be altered from 302, P.P.C to section 323, P.P.C. and in view of the fact, that the appellant has already remained in custody for over 2 years, the sentence may be reduced to one already undergone by the appellant.

4. I have taken into consideration the above submission made by the learned Advocates before me and have gone through the R 8 P of the learned trial Court as well as the impugned judgment. It is clear from the statement of P.W.4 Dr.Niaz Hussain,that if the spleeny of deceased was not inflicted with any disease the injury caused by the appellant could not have resulted in his death. There is nothing in the prosecution evidence to show, that the appellant was aware of this fact and consequently a since the injury in question is described by P.W.4 Dr. Niaz Hussain as simple injury and rest of the injuries also are described as simple, I agree with the contention of the learned Advocates, that the offence committed by the appellant would fall under section 323, P.P.C. and not under section 302 P.P.C. as held by the learned trial Court.

5. On merits the learned Advocate for the appellant has not advanced any arguments. However, I find that prosecution by evidence on record, has established, that the injuries to the deceased, though simple were caused by the appellant and as such I see no reason to disagree with the conclusions and findings of the learned trial Court, that appellant in fact did give the said injuries to the deceased and as such I do not find any merits in the above appeal, as far as the factum of appellant having caused injuries in question.

6. However, as far as the offence the appellant is committed, I am of the opinion, that taking into consideration the case cited' by the learned Advocate for the appellant and keeping in view the evidence of P.W.4 " Dr. Niaz Hussain, the offence committed by the appellant would fall 323, P.P.C. and not under section 302, P.P.C.

7. Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellant from section 302 P.P.C. to one under section 323, P.P.C. and consequently alter the sentences awarded to him from life imprisonment and fine to one already undergone by him and discharge the bail bonds executed by the appellant.

M. Y. H. Appeal dismissed .