P L D 1969 Karachi 162 (PLP)

NAZEER AHMAD MAHMOOD, J.‑Muhammad Siddiq accused and his step‑brother Muhammad Hasan were tried by Additional Sessions Judge, Karachi, the former under section 302, P. P. C. and section 324, P. P. C. for causing the murder of Abdul Karim deceased and for causing hurt with knife to Abdul Ghafoor P. W., and the latter under sections302/34, and 324/34 P.P.C. for murder ing Abdul Karim deceased and causing hurt to Abdul Ghafoor P. W., on 30th of May 1965, at about 7‑00 or 7‑30 p.m., near Shamma Hotel in Malir City. The learned Additional Sessions Judge acquitted Muhammad Hasan accused of both the charges and convicted Muhammad Siddiq accused under section 326, P. P. C. for causing grievous hurt with a knife to Abdul Karim deceased and sentenced him to 5 years' R.I. Muhammad Siddiq accused has come up in appeal against his conviction and sentence under section 326, P. P. C. On the other hand State has filed an appeal against the acquittal of Muhammad Siddiq appellant of the charge under section 302, P. P. C. and has prayed that he be convicted 'under section 302, P. P. C. This judgment will dispose of Criminal Appeal No. 229/1966 of Muhammad Siddiq and Acquittal Appeal No. 5/1967.

2. Briefly stated the prosecution case is that Muhammad Siddiq and his co‑accused Muhammad Hasan are step‑brothers. Muhammad Hasan has a cabin rear Shamma Hotel in Malir City in which cabin Muhammad Hasan has an ice cart. On 30‑5‑1955 at about 7‑00 p.m. Muhammad Hasan accuse (since acquitted) and Muhammad Siddiq appellant were sitting on the ice cart. At that time Abdul Ghafoor (P. W. 2) who is brother of Abdul Kaim deceased returned front the, play ground and stood at the shop of Qasim Phool Wala (flower seller) (P. W. 7). On seeing him Muhammad Siddique appellant started abusing him. In the mean time Abdul Karim deceased turned up and enquired of Siddiq as to why he was abusing his brother. Thereupon Muhammad Siddiq pushed Abdul Karim and took out a knife from the fold of his trousers anti gave a blow with it on the arm of Abdul Karim deceased who fell down on the ground on receiving the injury. Thereafter Muhammad Siddiq advanced toward Abdul Ghafoor to attack him. The latter threw a water bucket towards Muhammad Siddiq but it hit Muhammad Hasan accused (since acquitted). Thereafter Muhammad Siddiq gave a knife blow to Abdul Ghafoor P. W., in the region of his arm‑pit. Thereafter both the accused ran away. At the time of the above mentioned incident Abdul Aziz, Milkseller (P. W. 4), Nur Bakhsh, Beteseller (P. W. 5), Abdul Rashid, Sweetmeat seller (P.W. 6) and Muhammad Kasim (P. W. 7), were present at their prospective shops near the place of the occurrence. Hashim (P. W. 1) saw the occurrence from Shamma Hotel where he was standing at the time of the occurrence. Hashim P. W., removed Abdul Karim deceased and Abdul Ghafoor P. W., from the spot in a rickshaw to Malir Police Station where he lodged the F. I. R., Exh. No. 4 at 8‑00 p.m. which was recorded by Muhammad Hayat A. S. I. P. W. From the Police Station armed with a letter by the police address ed to the doctor, Hashim P. W., brought Abdul Karim deceased and Abdul Ghafoor P. W., the two injured persons, to Jinnah Hospital where Dr. Yahya Khalid Siddiq, R. M. O. examined the injuries of Abdul Karim deceased and Abdul Ghafoor P. W. As in the meantime Muhammad Hasan had also been forwarded to the hospital for his medical examination Dr. Yahya Khalid examined him also. The doctor found the following injuries on the person of Abdul Karim: "An incised wound on the right forearm 3" x 2" x 1 " with fresh blood on the shirt, pants and Banyan with corresponding cut mark on the right sleeve." The doctor was of the opinion that the injury was fresh and caused by a sharp‑edged weapon and was collectively dangerous to life, hence grievous. The doctor found the following injuries on the person of Abdul Ghafoor P. W. (1) Incised wound left axilla " x " x " with correspond ing cut mark on the shirt. (2) Incised wound on the left middle finger 2" x 1/6" x 1/6". The injury was fresh caused by a sharp‑edged weapon and was simple in nature. On examination of Muhammad Hasan he found an abraded contusion on his right temple " x " and left cheek 1" x 1". The nature of the injury was simple and had been caused by a hard weapon.

3. The place of the occurrence was visited by Abdus Sattar, Sub‑Inspector of Police (P. W. 9) after he had received the copy of the F. I. R., that had been forwarded to him by the A. S. I. at the Air port. He collected blood‑stained earth from the spot and proceeded to Jinnah Hospital for recording the statement of Abdul Karim but since he was unconscious he could not record his statement. He thereafter returned to the spot after having recorded the statements of Hashim and Abdul Ghafoor P. Ws. in the hospital and after recording the statements of Nur Bakhsh, Rashid, Abdul Aziz, Ismail, Kasim and Yousuf at the spot, he proceeded to Malir City Police Station to take police force with him for apprehending the culprits but at the police station he learned that Abdul Karim had died. Thereafter Pir Bukhsh, S. H. O. came to the spot for verifying the investigation. Abdus Sattar, S. I. also learnt from Muhammad Hayat, A. S. I. on the phone that Muhammad Hasan had also come to the police station and made a report. After the death of Abdul Karim deceased his dead body was referred to Dr. Anwar‑ul‑Hasan for post‑mortem examination. The doctor performed the post‑mortem examina tion of the dead body on 31‑5‑1965 and found the following: "Stitched incised wound 3" long and 2" deep situated obliquely in front of right elbow‑joint and lower part of arm. On removal of stitches, tissues, muscles and brachial blood vessels were found cut. This injury was caused by a sharp‑edged weapon like a knife and was sufficient to cause death in the ordinary course of nature. On internal examination all the organs of the body were found pale looking and normal. Heart was empty and contracted. Cause of death in the opinion of the doctor was the haemorrhage and shock as a result of incised wound of the arm." He further expressed the opinion that if immediate medical aid could be given to the deceased his life could be saved. The accused‑pleaded not guilty and denied the allegations of the prosecution. It is unnecessary to examine the statement of Muhammad Hasan since his acquittal has not been called into question by any appeal or revision petition. Muhammad Siddiq denied his presence at the spot and participation in the occurrence both before the Committing Magistrate and the Additional Sessions Judge. He denied the allegations of the prosecution in the following words "I was not present in the fight. I was in my house at the time of fight. Next day I came to know that the police had come to my house and I learnt that my name has been mention ed in the first report. I then came and surrendered myself to the Court (which) remanded me to the jail. From the jail the police took me away." When asked why Hashim, Abdul Ghafoor and Nur Bakhsh P.Ws. had deposed against him, he contented himself with saying "I cannot say why" Similarly when asked why Muhammad Kasim and Rashid had mentioned his presence at the time of the occurrence he stated that he could not say why they had made such statements. Neither Muhammad Siddiq nor his co‑accused produced any evidence in defence.

5. Of the persons produced by the prosecution as eyewit nesses of the occurrence Hashim (P.W. 1) Abdul Ghafoor (1'.W. 2), and blur Bakhsh (P.W. 5) have given a substantially identical account of the occurrence wherein they have ascribed the knife blows received by Abdul Karim deceased arid Abdul Ghafoor P.W., to Muhammad Siddiq appellant. Muhammad Kasim (P.W. 7) made no mention in his statement of any knife blow that might have been given by Siddiq to Abdul Karim deceased or Abdul Ghafoor P. W., but he did mention that Siddiq caught hold of Abdul Karim by his collar arid Karim caught hold of his collar and that both fought with each other and Hasan tried to intervene to separate Siddiq.4) and Rashid (P. W. 6) made no mention in their statements of the attack on the deceased by Siddiq. Indeed Abdul Aziz P. W., disclaimed having witnessed the occurrence. He claimed to have merely heard abuses outside Shamma Hotel and having come out after the crowd outside had dispersed and as having seen Abdul Karim deceased and Hasan lying in injured condition on the ground and Abdul Ghafoor bleeding from near the arm‑pit. He further stated that Hashim, the maternal‑uncle of Abdul Karim and Abdul Ghafoor removed them from the spot. Rashid (P.W. 6) also stated that he himself did not see the fight but admitted that both the accused were sitting on the ice the la while Ghafoor P. W., was standing near the shop of Kasim. He was cross examined by the Public Prosecutor as having turned hostile and was confronted with his statement before the Committing Magis trate wherein he had mentioned that when Siddiq was abusing Ghafoor, Abdul Karim had asked him why he was abusing him and that on this Siddiq had taken out his knife and given a blow to Karim. But he explained that he had made this statement at the instance of the police. He, however, admitted that his statement before the Committing Magistrate that he had seen Ghafoor hurling the bucket and that Siddiq had given a knife blow to Ghafoor and this P. W., had then got down from the shop and seen the incident, was true and in his cross‑examination by the defence counsel he protested that it way incorrect that Siddiq was not present in the fight. The statements of Rashid and Kasim P. Ws., therefore, also do show that Muhammad Siddiq appellant was present at the spot at the time of the occurrence.

6. I see no good ground for disbelieving Hashim P. W. Abdul Ghafoor, the injured P. W., and Nur Bakhsh P. W., in their statements that Muhammad Siddiq had caused a stab wound on the arm of the deceased. It is true that Hashim P. W., is the maternal‑uncle of Abdul Karim deceased and Abdul Ghafoor P. W., and as such not altogether a disinterested person but it is noteworthy that he had no enmity with Siddiq appellant either, so as gratituously to implicate him as the assailant of Abdul Karim deceased and Abdul Ghafoor P. W. Within half an hour of the occurrence, the occurrence was reported at the police station, a place about one mile from the place of the occurrence, wherein Siddiq appellant was mentioned as having assaulted Abdul Karim deceased with a knife. I have already referred to the circumstance that Muhammad Siddiq was unable to ascribe any comity to the prosecution witnesses who had mentioned him as the assailant of Abdul Karim deceased or had mentioned him as having participated in the fight. I am, therefore, satisfied that the appellant is responsible for the stab wound received by Abdul Karim deceased. The question, however, remains as to what offence the appellant has committed; as to whether he has been rightly convicted under section 326, P. P. C. by the Additional Sessions Judge or he should have been convicted under section 302, P. P. C. as urged by the learned Assistant Advocate‑General. It need hardly be pointed out that a person can be convicted under section 302, P. P. C. only if it is a case of culpable homicide. What acts constitute culpable homicide have been described in section 299, P. P. C. Culpable homicide is murder when it is characterized by features specified or amplified in section 300, P. P. C. The first thing, therefore, to be examined is whether the case of the appellant can be said to be covered by section 299, P. P. C. Section 299, P. P. C. reads as follows: "Whoever caused 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. " Section 300, P. P. C. makes it clear that when the act by which the death is caused is done with the intention of causing death, culpable homicide is murder. It is not contended before us that the solitary knife injury to the deceased was caused with the intention of causing his death. What, therefore, has to be seen in the present case is whether the appellant caused the death by doing an act with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he was likely by such act to cause death. The circumstance that the appellant caused a solitary injury to the deceased on the forearm with a knife which for aught we know was a small knife, may be a pen knife, and then had altogether abstained from repeating his attack, to my mind rules out his intention of causing such bodily injury as was likely to cause death or the knowledge that by causing this injury he was likely to cause the deceased's death. It is true that the Civil Surgeon who performed the post‑mortem examination described the injury as sufficient in the ordinary course of nature to cause death but that the injury was such which was sufficient in the ordinary course of nature to cause death, does not necessarily mean that the appellant had given the knife blow with the intention of causing a bodily injury which was likely to result in death or had the knowledge that his knife blow was likely to result in death. The appellant is a young fisher man of about 30 years of age. He cannot be credited with the knowledge that an injury with a knife on the part of the body of the deceased where it was inflicted was likely to result in death. The injury obviously was inflicted by the appellant on the spur of the moment and the fact that it was directed on the arm which is ordinarily not considered as one of the vital and vulnerable parts of a human body would rather show that the appellant was; not intending to cause any injury which was likely to prove fatal. The further circumstances that after causing one injury he did not repeat his attack further points to his being innocent of a design to bring about the death of the deceased. For, if indeed he intended to cause such bodily injury as was likely to result in the death of the deceased, there was apparently nothing to prevent him from following up his first blow on the arm of the deceased with other blows in other more vital parts of the person of the deceased.

7. Learned counsel for the State has urged that the case is covered by clause 3rdly of section 300, P. P. C. This clause reads as follows: "if it (the act) is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." The words "intended to be inflicted" appear to me to be very important. If instead of "bodily injury intended to be inflicted", the words were "bodily injury inflicted", then one could say in the present case that since the doctor had described the injury found on the body of the deceased as sufficient in the ordinary course of nature to cause death, the present case would be covered by clause 3rdly of section 300, P. P. C. and the appellant would be considered as having been guilty of murder. But as it is, the words are "bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death". Clause 3rdly of section 300, P. P. C. appears to me actually to be an amplification of the second ingredient o culpable homicide given in section 299, P. P. C. namely "or wit the intention of causing such bodily injury as is likely to cause death." I do not think that in the circumstances of the case it can be definitely held that the appellant aimed at the brachial vessels of the forearm, the knife blow that he caused to the deceased. For, the deceased was not an inanimate object who can be supposed to have admitted of a precise aim at brachial blood vessels by his assailant. It seems to me that the appellant made only a rough sort of aim on the arm of the deceased and because of the reactive movements of the deceased the blow by accident landed on the brachial blood vessels of the deceased.

8. Nor can it be said that the appellant, a layman, had the knowledge while making the attack on the forearm of the deceased that the injury he would cause to the deceased was likely to result in death and as such would fall within section 299, P.P.C. or within clause 4thly of section 300, P.P.C. S. 300, P.P.C. fourthly, lays down that "the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as foresaid". Learned counsel for the appellant has cited Kottengadan AM v. The Crown (A I R 1939 Mad. 269) in support of his contention that if the prosecution evidence in the case was accepted as correct the case of the appellant would fall only within section 326, P.P.C. This case arose out of an attack made by the accused with a knife on the left forearm of the deceased with the result that the radial artery was pierced and the deceased died of haemorrhage soon after. It was held in this case that the forearm not being a vital part, stabbing with knife on it which resulted in death of the victim by haemorrhage did not amount to murder or culpable homicide not amounting to murder, but to causing grievous hurt with a deadly weapon. The essential circumstances of that case appear to me to be similar to the present case that find myself in agreement with the above‑mentioned view expressed by the learned Judge. Learned counsel for the State cited The State v. Dost Muhammad (P L D 1962 Lah. 793), in support of his contention that the act of the appellant fell within section 300, P.P.C. But the facts of that case were different from those of the present case. The attack in that case was made by a .12 bore gun and it was held that the case of the accused fell within clause 4thly of section 300, P.P.C. I do not think that the finding that the learned Judges arrived at in that case, would be justified on the facts of the present case.

9. In view of the above I am of opinion that the appellant has been rightly convicted under section 326, P.P.C. At all events, in view of the fact that some of the High Courts, in circumstances assentially like the present, have taken the view that the case of the accused would fall within section 326, P.P.C. and not under section 302, P.P.C. or 299, P.P.C. the order of the learned Addi tional Sessions Judge cannot be pronounced to be perverse. There appears to me, therefore, no merit in the appeal against acquittal made by the State. The same is accordingly dismissed. I would dismiss Muhammad Siddiq appellant's appeal also. His convic tion and sentence is maintained. A. E./S. A. H. Appeal dismissed.