1985 PLP 1064 (MLD)

MUHAMMAD MUNIR KHAN, J,--This Criminal Appeal No. 95/82, connected Murder Reference No. 42/82 and Criminal Revision No. 82/1983 filed by Abdul Hamid for the enhancement of the amount of fine arise from the judgment of learned Additional Sessions Judge, Faisalabad whereby he on 16-1-1982 convicted Muhammad Saleem (18) under section 302, P.P.C. for causing death of Abdur Rehman and sentenced him to death and a fine of Rs.10,000 in default thereof two year' R.I. It was directed that the fine when recovered be paid to the heirs of the deceased.

2. The occurrence took place on 3-11-1979 at 9-30 a.m. in Plot No 46, Chak No. 213/R.B. of Police Station Peoples Colony, Faisalabad. The distance between the place of occurrence and the Police Station is 1) miles. F.I.R. is statement P.W. 3/I of Haji Abdur Karim P.W.8 father of the deceased which was recorded by Muharamad Hayat S.H.O. P.W. 10 in District Headquarter Hospital, Faisalabad at 12 noon on the same day. Formal F.I.R. P.W. 3/2 was drawn up at 12-20 p.m. on the same day by Mastan Ali Moharrar Head Constable P.W. 3.

3. The motive as alleged by the prosecution was that six months before the occurrence Gul Muhammad, Saadat Mand, Fazal Ameen, Saleoh Khan and others had given beating to Haji Abdul Karim P.W. 8, his wife and his son, the deceased. A case under section 307, P.P.C. was registered at the instance of Haji Abdul Karim against Gul Hameed and others. Muhammad Saleem appellant is a friend of Gul Hameed and others accused in case under section 307, P.P.C. so he wanted that the deceased and his father Haji Abdul Karim P.W. 8 should not pursue that case, hence this occurrence.

4. As far the main occurrence, it has been stated that at the eventful time Abdul Karim complainant was present in his house. He heard noise and came out. He saw Mubammad Saleem appellant quarrelling with his son Abdur Rehman deceased and it was within his view that Muhammad Saleem took out knife from his 'Dub' and gave one blow on the thigh of the deceased who fell down. The occurrence was seen by Abdul Karim P.W. 8, Ghulam Abbas P.W. 9 and one Bali (not produced), The deceased was removed to District Headquarter Hospital, Faisalabad but he succumbed to the injuries on reaching the hospital, before any medical aid could be given to him.

5. Doctor Major Yousaf Ali conducted post-mortem examination on the dead body of Abdur Rehman. He found following injuries :- (1) A stab wound 7 c.m. x 3 c.m. x deep upto femoral vessels which were cut on the medial part of the right thigh. (2) An incised wound 1 c.m. x c.m. x skin deep in front of left ankle joint. In his opinion death was due to shock and haemorrhage as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. The injuries were caused by sharp-edged weapon. The time between the injuries and the death was about one hour and between death and post-mortem examination was 3J hours.

6. Muhammad Saleem appellant was arrested on 4-11-1979 by Muhammad Hayat S.H.O. P.W.

10. On 6-11-1979 lie led to the recovery of blood-stained knife P. 4 from a graveyard which was taken into possession vide memo. P.W. 4/1 attested by Muhammad Sharif P.W. 4 and Atta-ur-Rehman (not produced).

7. To prove its case, prosecution examined 10 witnesses. Dr. Major Yousaf Ali P.W. 5 has proved the post-mortem examination report. Abdul Karim P.W. 8 and Ghulam Abbas P.W. 9 have given the ocular account of the occurrence. They claim to have seen the appellant causing injury on the thigh of Abdur Rehman resulting in his death. Muhammad Sharif P.W. 4 and Muhammad Hayat S.H.O. P.W. 10 have stated that on 6-11-1979 Muhammad Saleem appellant had got recovered blood-stained knife P.

4. Serologist report Exh. P.C. reveals that the knife was stained with human blood. Abdul Karim has also deposed about the background of the occurrence. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C.. the appellant denied all incriminating circumstances. In reply to the question as to why the case against him he stated-:- "I have absolutely no connection with Gul Hameed etc. nor in any way I interfered in their affairs nor I accompanied them to the complainant party to make a request not to proceed with the case against them. Before the present occurrence I was working at Lahore as a Paledar for about 4/6 months and had come to my house on the occasion of Eid. On the day of occurrence at about sunrise time I came out of my house and found the deceased cutting a joke with my sister. I was greatly and suddenly provoked by this act of the deceased and ran after him and caught him I had no weapon with me at that time so I threw him on the ground where a broken bottle was lying which injured the deceased on his thigh." In defence he did not produce any witness.

9. The trial Court while disbelieving the plea of grave and sudden provocation raised by the appellant in his statement under section 342, Cr.P.C., has believed prosecution version, the account given by the two eye-witnesses and recovery of blood-stained knife from the appellant.

10. Mr. M. B. Zaman, the learned counsel for the appellant while frankly and very rightly conceding that Abdur Rehman deceased had died at the hands of Muhammad Saleem appellant, has challenged the nature of the offence. According to him since Muhammad Saleem appellant who is a layman cannot be burdened with knowledge of the location of different arteries in the human body therefore, no case of intentional murder punishable under section 302, P.P.C. is made out. On the other hand the learned counsel for the State has supported the conviction of the appellant under section 302, P.P.C. He maintained that from the nature of the injuries and the damage done by it, there can be no two opinions that the appellant had an intention to cause the death or such bodily injury which was most likely to cause the death of the deceased. The learned counsel for the petitioner in the connected revision prayed that the amount of fine awarded by the trial Court be enhanced.

11. We have considered the arguments advanced by the learned counsel for the parties with care. We find that the occurrence was seen by Abdul Karim P.W. 8 and Ghulam Abbas P.W. 9 who having a probable cause of their presence near the place of occurrence, are quite natural witnesses. They had no enmity with Muhammad Saleem appellant and as such they are completely disinterested witnesses. The recovery of blood-stained knife P. 4 supported by dependable evidence of P.W. 4 Muhammad Sharif and Muhammad Hayat S.H.O. P.W. 10 also connects the appellant with the injuries resulting in the death of Abdur Rehman. We are, therefore, convinced that Muhammad Saleem appellant and none else was responsible for the injury resulting in the death of the deceased.

12. This brings us to the question of the nature of offence committed by the appellant. We find that the origin of the attack at the eventful time is shrouded in mystery. When Haji Abdur Karim heard the alarm, he was sitting in his house. When he came out of the house, he found I the appellant quarrelling with the deceased and as such it cannot be said as to how the quarrel started and who initiated it. It was during the quarrel that the appellant took out knife and inflicted one blow on the leg of the deceased as stated by the eye-witnesses. No doubt the Doctor found two injuries but injury No. 2 has not contributed towards the death. Injury No. 1 was deep upto femoral vessels which were cut on the middle part of the right thigh. The appellant is a layman. He is not expected to have known the exact location of the femoral vessels. It would, therefore, be too much to burden him with the intention to murder the deceased or with the knowledge of the location of different vessles in the human body. In case Muhammad Feroze v. Muhammad Arif and another 1976 S C M R 498 reference has been made to a case Public Prosecutor v. Ramaswami Nadar, wherein it was observed:- "If a stab with a knife or a dagger aimed at an arm or a leg severs any artery and the injured man dies as a result, it might be quite reasonable to argue that the offence was not one of culpable homicide and that the assailant could only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon." In the aforesaid case reported as 1976 S C M R 498, femoral arteries and veins were cut and the death was result of shock and haemorrhage from that injury. The High Court has altered the conviction of the accused /appellant from 302, P.P.C. to one under section 326, P.P.C. which was upheld by the Honourable Supreme Court. Since in the instant case the injury which proved fatal was on leg and femoral vessels were cut resulting in shock and haemorrhage, therefore, following the view taken by the Supreme Court in the aforesaid case, we feel inclined to hold that from the nature of the injury caused upon the deceased it is legitimate to infer that it was a grievous hurt caused by the appellant which endangered the life of Abdur Rehman.

13. The upshot of the discussion is that while setting aside the conviction of the appellant under section 302, P.P.C. the same is altered to one under section 326, P.P.C. The appellant is sentenced to 10 years' R.1. and a fine of Rs.10,000 in default thereof two years' R. I. D The fine if realized shall be paid to the legal heirs of the deceased. We do not see any reason to enhance the amount of fine. Resultantly the connected revision is dismissed. The death sentence is not confirmed. M. Y . H Appeal partly accepted.