1986 PLP (2) (MLD)

On external examination, the Medical Officer found "an incised penetrating wound 31 c. m. x 1 cm. going deep on the front of lower abdomen on left side just above the root of thigh." On internal examination, blood vessels of left lower limb were found cut. The lower left abdomen wall was cut. The bladder was cut on left side. The death was due to shock and haemorrhage due to the abovementioned injury and cut to main blood vessels. The injury had been caused by a sharp‑edged penetrating weapon and was fatal to life. It was individually sufficient to cause death in ordinary course of nature. The death was "immediate or possibly within the duration of half an hour" of receipt of injury and post‑mortem was conducted after about 20 hours of the death. The Investigating Officer on spot inspection collected blood‑stained earth vide memo. Exh. P.G. The accused was arrested on 15‑8‑1984 and on the same day, he led the police to a grove of date trees near Primary School and got recovered blood‑stained Chhuri P.4 which was taken in possession by S.I. Muhammad Yar P.W.8 in presence of Allah Wasaya P.W.6 and Mushtaq Hussain P.W.7. Chhuri P.4 was found stained with human blood vide report of Chemical Examiner Exh. P.J. and that ‑of Serologist Exh. P.K. The accused was challaned after completion of the investi gation.

5. The prosecution during the trial examined 8 witnesses in all. Allah Wasaya P.W.6, a brother of the deceased and Mushtaq Hussain 4P.W.7, not related, were examined as eye‑witnesses. Fida Hussain and Ghulam Shabbir P.Ws. named as eye‑witnesses in the F.I.R. were given up as unnecessary. The two eye‑witnesses also testified to the recovery of Chhuri P.4 at the instance of the accused. The medical evidence was furnished by Dr. Faiz Ali Jiskani P.W.1 in this case which was investigated by S.I. Muhammad Yar P.W.8. The accused when examined under section 342, Cr.P.C. denied the charge. He pleaded innocence. He admitted that Ghulam Akbar Shah deceased had come to attend the marriage of his relative Ghulam Abbas. He denied recovery of Chhuri P.4. It was stated by him that on the day of occurrence he was entrusted with arrangement of meals in connection with the marriage of his brother‑in‑law. There was delay in preparation of meals as a result of which Ghulam Akbar Shah deceased started abusing him. He gave a slap to the deceased who in' return gave Juta blow to him and also caught his neck after giving filthy abuses. He further stated that he picked up a Chhuri lying nearby and in order to free himself gave a Chhuri blow on the limb of the deceased. He tendered in evidence copy of his complaint against Akhtar Abbas etc. Exh. D.C., copy of statement of Walayat Hussain D.W.1 in the said complaint Exh. D.D. and copy of judgment in this complaint dated 31‑3‑1983 Exh. D.E. This complaint was a cross case of the case registered against Ishtiaq accused. He filed copy of the police report under section 173.Cr.P.C. against him Exh. D.F. and the statement of one Ghulam Akbar Shah in that case Exh. D.G. He did not produce any other evidence in defence. It may be stated that the learned counsel for the appellant did not place reliance on these documents and considered them as of no help to the accused. The learned trial Judge disbelieved Mushtaq Hussain P.W.7. He placed reliance on the statement of Allah Wasaya P.W.6 and the statement of accused under section 342, Cr.P.C. and convicted him as stated above. The learned trial Judge did not give a clear cut finding on the motive.

6. I have gone through the evidence on record of this case. It is contended by the learned counsel for the appellant that the fight took place all of a sudden; that the accused gave only one blow; and that there being no intention to murder, the case of Ishtiaq Hussain appellant would only fall under section 304(I), P.P.C. The learned Assistant Advocate‑General and the learned counsel appearing on behalf of the complainant controverted the contentions on behalf of the appellant and argued that the case against the appellant squarely came within the ambit of section 302, P.P.C.

7. The occurrence in this case is not denied by Ishtiaq Hussain accused. The place of occurrence and the time of occurrence is also not disputed. It is in evidence and is also admitted by the accused that Ghulam Akbar Shah deceased had come to attend the marriage of Abbas, a brother of his wife. The presence of the eye‑witnesses appears to have not been challenged by the accused. Allah Wasaya P.W. is a brother of the deceased but has no enmity against the accused to falsely implicate him in this case. , Even no enmity was suggested to this witness. I am not prepared to agree with the learned counsel that the trouble started with the delay in cooking of the meals in the said marriage. Ghulam Akbar Shah deceased had been invited by Ghulam Abbas with whom he had friendly relations. There was some litigation between Akhtar Abbas etc. and Ishtiaq Hussain accused as is clear from the documents placed on record by the accused. It is in evidence of Allah Wasaya P.W.6 that Ghulam Akbar deceased used to help Akhtar Abbas on account of which Ishtiaq Hussain accused was annoyed. The occurrence took place in the marriage ceremony of Ghulam Abbas. The trouble was initiated by Ishtiaq accused himself when he objected to the presence of Ghulam Akbar deceased at the. said marriage ceremony. It cannot, therefore, be said that the occurrence took place all of a sudden. However the fact remains that the accused gave only one Chhuri blow to the deceased. This blow was inflicted on a vital part of the body with sufficient force resulting in instantaneous death of Ghulam Akbar. It could not, therefore, be said that the accused did not have any intention to murder the deceased. As such, it could not be said that the facts and circumstances of the case do not bring the case within the ambit of the. provisions of section 302, P.P.C. or that the case against the appellant was covered by provisions of section 3040), P.P.C. The learned counsel for the appellant referred to Arshad Javaid v. State 1984 P Cr. L J 2669 and Daleel v. State 1984 P Cr. L J 2783 in support of his abovementioned contention. I have gone through these judgments. In my view, these cases were not applicable to the facts of this case. In the case of Arshad Javaid, the prosecution had alleged two different occurrences. One occurrence took place on 25‑7‑1980 at 8‑00 a. m. when there was quarrel between Shahid and Afzal which resulted in exchange of abuses between Javaid Arshad on one side and Mat. Safia on the other. The second occurrence took place on the same day at 2‑30 p.m when Muhammad Asif deceased alongwith Ghulam Mustafa complainant was on way to the house of Mst. Safia and they were attacked by Riaz and his co‑accused Muhammad Ashraf in which occurrence Javaid had given one Chhuri blow to Asif resulting in his death. The learned Judges of the Division Bench came to the conclusion that it was not a case of two occurrences and that there was only one occurrence between the parties which ensued all of a sudden over children's fight in which Arshad Javaid accused was injured and he inflicted solitary blow to the deceased. In the case of Daleel, the occurrence took place in a marriage ceremony. His Lordship came to the conclusion that firstly the fight took place without premeditation and suddenly between the parties in a marriage and additionally the Medical Officer who had performed post‑mortem examination on the dead body of the deceased had not stated that the injury received by deceased was sufficient in ordinary course of nature to cause death. In the case in hand, the doctor has clearly stated that the injury was sufficient in the ordinary‑course of nature to cause death. In view of the above, both the cases cited at the Bar were not attracted to the facts of the present case and were of no help to the accused. The learned Assistant Advocate‑General placed reliance or Haider Zamar v. State 1972 S C M R 666 to argue that even if it was a case of single blow, then also the injury having been caused with a deadly weapon, on vital part of the body and with force, the accused would be held guilty under section 302, P.P.C. In the instant case, the injury was caused by Chhuri, a deadly weapon on the vital part of the body. This solitary blow was sufficient in the ordinary course of nature to cause death which occurred immediately after receipt of injury. I am, therefore, of the view that the case against the appellant fell squarely within the ambit of section 302, P.P.C., for which he was rightly convicted, The accused inflicted only one injury. There was no serious enmity between the accused and the deceased before the present occurrence. He did not repeat blow on the person of the deceased and as such, was awarded lesser punishment. 8.As a result of the above discussion, I find no merits in this appeal which is accordingly dismissed. The conviction and sentence of the appellant Ishtiaq Hussain is maintained

9. In view of the above decision, Criminal Revision No. 76 of 1985 is dismissed in limine. M.Y.H. Appeal dismissed.