P (PLP)

JUDGMENT. ‑Harder, aged 25 years, and his brother Mughal, aged 50 years, Shana, aged 21 years, and Bati aged 18 years; sons of Mughal, were tried by the Additional Sessions Judge, Gujrat for the murder of one Khawaja, an old man of about 60 years and. for causing simple hurts to Khawaja and two persons who have appeared as prosecution witnesses and convicted under sections 302/34 and 323/34 of the Pakistan Penal Code. For the offence of murder. Haider was sentenced to death while the 3 others were sentenced to' transportation for life and all the four were sentenced to six months' rigorous imprisonment under section 323/34. The sentence under section 323/34 was to run concurrently with the sentence under section 302 and in the case of Harder was to come into operation if the sentence of death passed on him was not confirmed by this Court. Haider, Shana, and Batti have put in a joint appeal against their convictions, which is Criminal Appeal No. 739 of 1949 and Mughal, has put in a ‑separate appeal, Criminal Appeal No. 778 of 1949. We have to consider these appeals and the record is also before us for confirmation of the death sentence imposed upon Haider. The two appeals and the reference under section 374 of the Code of Criminal Procedure will be disposed of by this judgment. The prosecution case, in brief is that Khawaia, the victim of the incident, out of which this case has arisen, had a brother Raja, who died leaving a widow and a daughter, 141st. Bibi by name, who is P. W. 10 in this case. The mother of 141st. Bibi remarried Khawaja, and gave birth to a boy, Shera by name, who had appeared as P. W. 11 in this case. The mother of Mst. Bibi and Shera died some time after the birth of Shera, and Khawaja married lost. Bhage, a sister of Mughal and Haider appellants and in exchange gave Mst. Bibi (P. W. 10) in marriage to Mutalli, their brother. Mutalli died issueless about a year and a half before the occurrence and Mst. Bibi succeeded to the property left by him on the usual widow's life estate under the customary law. She was living in a kotha in village Majhi, which was adjacent to the kotha of the appellants and in the same compound. It appears that Mughal appellant wanted that Bati appellant should get married to Mst. Bibi (P. W. 10), but she refused to marry the boy, who was youner to her by about 12 years. The agricultural land, which Mutalli left and of which lust. Bibi was in possession, was being managed by Khawaja deceased, who was her paternal uncle and step‑father and this was resented by the appellants. On the 20th of January 1949, at about 5 P. hr. Khawaja came to Mgt. Bibi's hous3 and told her that the cotton seed which he had purchased for her from Mandi Bahauddin had been left by him .at Railway Station Ahla and that she should make arrangements to take its delivery from there. At that time the appellants who were present in the common compound asked Khawaja why he had come there. Khawaja replied that as Mst. Bibi was his niece and his step‑daughter, he would visit her as often as he liked. This exasperated Haider who went inside his kotha and from there brought out three dangs and a bahi. Keeping the bahi for himself and giving one dang each to the other three appellants, he struck Khawaja or the head who fell down and then the other three appellants started beating him while he lay on the ground lust. Bibi (P. W. 10) and Shera (P. W. 11) attempted to help the old man by falling on ,him, and in this attempt them3elves received injuries. A first information report about the incident was made on the 21st of January 1949 at about 6 A. M. by Mst. Bibi (P. W. 10) at Police Station Malakwal which is at a distance of about nine miles from the village. This report gives most of the details of the prosecution case mentioned above. The defence case was twofold. At first, after some of the witnesses for the prosecution had been examined on the first day of the trial, Haider confessed that the allegations made by the prosecution were correct but that there was no premeditation and that the young boy Bati had no common intention and knowledge with the others and had just‑been led away by his elders. After making the statement Haider resiled from it, and no other accused person made any statement on that day. When examined under section 342 of the Code of Criminal Procedure at the conclusion of the prosecution evidence Haider, who had on the previous day admitted the prosecution case, denied all knowledge of the incident, and so did Shana and Bati appellants. Mughal appellant, however, took up the plea that on the day of the occurrence he was at his house in front of his door, while Mst. Bibi was in front of her kotha and they were talking when they abruptly quarrelled Harder with each other: Just then Khawaja came there, lie said,' with drown a dang and struck him on the head. He admitted that after this he picked up a sota from nearby and with it gave some blows Muhammad to Khawaja in self‑defence. Then many persons assembled men there and he was taken into his kotha and while there he learnt and Shabir that Khawaja had died of the injuries. He asserted that the Ahmad, other three appellants were not present at the time of the incident. No evidence was led support of this defence, and after giving due consideration to all the circumstances of the case and hearing learned counsel for the appellants, we' have arrived at the conclusion that the defence case put up by Mughal has not at all been established. It may be mentioned that Khawaja received no less then seven injuries; Mst. Bibi (P. W. 10) received six injuries, all simple in character; and Shera (P. W. 11) suffered no less than twenty‑one simple injuries, while out of, the appellants Mughal bore five injuries, all simple in nature. Harder three, all minor and simple in nature, and Shana ,two minor. injuries. The number of injuries on the parties makes it clear that the defence case put forth by Mughal appellant has no semblance of truth in it and that the injuries caused to Khawaja were not inflicted in the exercise of the right of self‑defence of person; as claimed by Mughal appellant. Before dealing with the prosecution case, we might dispose of a legal point raised by Mr. Hamid‑ud‑Din, learned counsel for the appellant. It was contended by him that, as the case was tried As. a summons case, the trial Judge, by recording the statements of Haider before the prosecution evidence had concluded, had committed an illegality. Relying on section 244 of the Code of Criminal Procedure, it was argued by him that the statement of an accused ,person cannot be recorded before the, conclusion of the prosecution evidence. Subsection (1) of section 244, Criminal Procedure Code, reads as follows :‑ "If the Magistrate does not convict the accused under the preceding section or, if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence". We are of the view that the power given by this section to the trial Court to hear the accused can be exercised at any time when the accused wants to be heard. In the present case, the note of the trial Court makes it clear that the accused person had themselves offered to make statements, and ,that it was because they wished to make statements that the Court proceeded to examine Haider on the first day of the trial. In acceding to their request the Court committed no illegality or irregularity. In fact, if the Court had refused to record what the accused wished to be recorded at that stage, it would obviously have exposed itself to criticism. We must, however, remark that the involved question put by the Court, which was a jumble of facts, inferences and assumptions, was an extremely improper question and the accused should have been permitted to make his statement in his own way, or merely asked to reply to the question, What have you to say?". We have not, therefore, taken into consideration the reply to the question in arriving at our findings. Coming to the prosecution case, we have, after hearing learned counsel and going through the record, come to the conclusion that the version of the incident which resulted in the death of Khawaja and injuries to Mst. Bibi (P. W. 10) and Shera (P. W. 11) being caused, as given by P. W. 10 and P. W. 11, is correct. This version was given in the first information report, which in the circumstances of this case, cannot be considered to have been made with any appreciable delay and is supported by the deposition of Mirza (P. W. 12), who was mentioned. in that report as one of the persons who came to the scene when the incident was in progress. It cannot be overlooked that Mst. Bibi is not distantly related to the appellants and has no reason to exaggerate the case against them. Moreover, the number of the injuries on the persons of the murdered man and Mst. Bibi (P W. 10) and Shera (P. W 11) is a circumstance which proves that the version given by these witnesses is true. The question that now arises is whether the conviction of the appellants under section 302 of the Pakistan Penal Code was justified. As has already been mentioned, all the injuries on the persons of Mst. Bibi (P. W. 10) and Shera (P. W. 11) were simple in nature. Out of the seven injuries on the person of Khawaja, only one was serious in character. 'This injury, which resulted in the death of Khawaja, is alleged to have been inflicted by Haider. There is no direct evidence that the common intention of the appellants was to commit the murder of Khawaja, and we are of the view that the circumstances of the case also do not point to all the appellants having common intention to murder Khawaja. Had the appellants other than Haider any intention to cause the death of Khawaja, they would have inflicted more serious injuries on him which we know they did not. In view of this, we are of the opinion that Mughal, Shana and Bati could not, on the evidence led by the prosecution have been convicted of an offence under section 302 read with section 34 of the Pakistan Penal Code. We are, however, of the view that the circumstances point to a common intention of all the appellants to cause grievous hurt to Khawaja, because if that were not their common intention, it was not necessary for Haider to go into his own kotha and bring out the four weapons of offence, one to be used by each of the appellants. The conviction of Mughal, Shana and Bati appellants, under section 302/34 of the. Pakistan Penal Code is, therefore, set aside and they are convicted under section 325 read ‑with section 34 of the Pakistan Penal Code. We have now to decide what offence is Haider proved guilty of. The contention of the learned counsel for the appellants was that the acts done by Haider would ,not make his case fail within the ambit of section 302 of the Pakistan Penal Code end that the offence would fall either under section 3114, fart 1, or section 304, Part II or section 325 of the Pakistan Venal Code Part I of secticn304 is applicable if the act is done with the intention of causing death or of causing such bodily injury as is likely to cause death. The case, in which the act by which, death is caused is done with the intention of causing death, will fall within section 300 (Firstly) and section 304 Part I, will apply to such a case only if one of the Exceptions to section 300 is proved to be applicable. If, however, none of exceptions is applicable, the offence will fall under section 300 and be punishable under section 302 of the Pakistan Penal Code. The second case in which section 304, Part I, is applicable is the one in which the act by which death is caused is done with the intention of causing such bodily injury as is likely to cause death. If, however, the act which results in death is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or if 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 offence committed is murder, unless one of the Exceptions to section 300 be applicable in which case again it is reduced to culpable homicide not amounting to murder. As regards section 304, Part II, of the Pakistan Penal Code, it will not apply if the Court comes to the conclusion that the intention of the person causing death was either to cause death or to cause such bodily injury as will bring the case either under Part I of section 304, or under section 302 of the Pakistan Penal Code. In case the Court comes to the conclusion that there was no intention of any of the kinds mentioned above, but there was knowledge that the act was likely to cause death, the offence will fall under Part II of section 304 only if the Court finds that the offender did not know that the act was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death and the offender had not committed the act without an excuse for incurring the risk of causing death or the bodily injury But if the Court is unable to come to such finding, the offence would still be murder unless an Exception to section 300 be applicable. The learned counsel for the appellants quoted Walia v. Emperor (A. I. R. 1932 Lah. 372) and Indian Rulings Khuda Bakhsh v. Emperor (1932 Lahore 625) in support of his contention that the offence committed by Haider appellant did not fall under section 302 of the Pakistan Penal Code. We are aware that there are a number of cases which have dealt with the question whether the offence committed fell tinder section 302 or not; but we do not consider it necessary to discuss any of these decisions. In order to decide that the offence falls within the ambit of section 300 the Court has to find that the offender had a particular intention or a particular knowledge and as intention and knowledge are entirely questions of fact in each case, no decision in any other case could be of much assistance. Questions of fact in each case being different, they must be determined by the tribunal which has those facts before it and it cannot be told to come to a certain finding, because another tribunal came to that finding on the facts before it. The facts it the present case are that Haider appellant, who is a young man of 25 armed himself with a bahi, which was a formidable weapon, and with it caused an injury on the back of the head of Khawaja which resulted in his death. Dr. Muhammad Rashid Bajwa, Assistant Surgeon, Gujrat, who performed the post‑mortem examination, found a vertical contused wound, 1" x 1/8" and bone deep over the back of the head of Khawaja and on dissection found that there was a linear fracture of left parietal and temporal bones starting from fronto parietal suture and going to the base of the skull. There was about 4 ounces of subdural collection of clotted blood and compression of left parietal lobe of brain and the left middle meningeal blood vessels were ruptured. It was the opinion of the doctor that the injury which resulted in the fracture, etc., was fatal and that death must have resulted soon after the injury was caused. The statement of the doctor leaves no doubt that the injury on the head of Khawaja was very serious in character, and the evidence of the eye‑witnesses proves that Khawaja died soon after the receipt of the injury. As a young man, 25 years old, dealt a blow as severe as was dealt in this case on the head of an old man, about 60 years of age, who was at that time unarmed, the intention of the assailant must have been to cause the death of the victim or to cause such bodily injury as he knew to be likely to cause the death of the victim. In any case, he " must have known that the act was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death and as he committed the act without any excuse for incurring the risk of 'causing death or such injury, the case falls under section 300 of the Pakistan Penal Code and the offence committed is murder, learned counsel contended that as only one severe blow was given, the offence should .not be held to fall under section 302 of the Pakistan Penal Code, but with that contention we cannot agree. The most relevant point in the case, in which a person is charged with an offence punishable under section 302 of the Pakistan Penal Code, is whether or not he had any such intention or knowledge as is mentioned in section 300 and though the number of the injuries is one of the circumstances which the Court may take into account for coming to a finding about the intention or knowledge of the offender, it is not the only circumstance that is to be considered. The mere fact that only one blow, fatal by itself, is given cannot take the case out of the provisions of section 300 of the Pakistan Penal Code if the requisite in gredients of that section are proved as they are in the present case. Haider's act therefore, amounts to murder and is punish able under section 302 of the Pakistan Penal Code. The only question left is that of sentences that should be imposed on the appellants. In the case of Haider appellant, we think that the extreme penalty should not be exacted, because, though the offence committed by him falls under section 302 of the Pakistan Penal Code, the fatal blow was given by him in the course of a sudden quarrel. We, therefore, while maintain ing the conviction of this appellant under section 302 of the Pakistan Penal Code reduce his sentence to transportation for life. As regards Mughal and Shana, we think that a sentence of two years' rigorous imprisonment will meet the ends of justice for the offence under section 325/34 committed by them. In the case of Bati appellant, a sentence of two years is not palled for. He is, as mentioned already, a boy of 18 years and it appears that he was acting entirely under the influence of his father Mughal, his uncle Haider and his elder brother Shana, and we think that a sentence of one year's rigorous imprison ment in his case for the offence under section 325/34 will suffice. The convictions of the appellants under section 323/34 are upheld and the sentences awarded by the trial Court for that offence maintained. A. H.