1977 PLP 33 (SCMR)

MUHAMMAD YAQUB ALI ACTG C. J.‑Arif Shah, appellant, was charged under sections 302 and 307, P. P. C. for committing the murder of one Ghulam Farid and making murderous assault on Abdul Hamid P. W. 15, but the trial Judge found him guilty only of the offences under section 324, P. P. C. and by order dated 13th February, 1967, awarded him sentence of 3 years' rigorous imprisonment on each count. Both the sentences were ordered to run concurrently. On appeal by the State, the High Court altered the conviction for injuries caused to the deceased from section 324 to 326, P. P. C. and by order dated 10‑12‑1968, enhanced the sentence to 10 years' R. I. Leave to appeal was granted on 13th November, 1969, as the High Court had given no reasons for converting the conviction from sections 324 to 326, P. P. C. On examining the evidence and hearing the learned counsel for the appellant and the Advocate‑General, N. W. F. P., we have come to the con. session that the High Court has taken a lenient view of the offence committed by the appellant by holding him guilty only of the offence under section 326, P. P. C. He was, on the facts found clearly guilty of the offence of murder. The occurrence took place on 13th January, 1966, at about degarwela, in Mochi Bazar, Hazro, in the following circumstances:‑ Abdul Majid, P. W. 14, a cobbler, was present in his shop, while his son, Ghulam Farid deceased was standing in front of the shop. Abdul Hamid (P. W. 15), son of Abdul Rashid, brother of Abdul Majid, was also present in front of his nearby shop. In the meantime, Arif Shah came there and asked Abdul Majid to give him five pairs of Zarri Chappals on credit. Abdul Majid, P. W., however, told him that he would give him Chappals provided he paid him Rs. 400 already due from him. Arif Shah abused Abdul Majid P. W. and the latter told him to control his tongue. Arif Shah retaliated that he had Sayyed's blood in his veins and took out a knife. He was going to attack Abdul Majid when Ghulam Farid deceased intervened and caught hold of Arif Shah. At that the latter stabbed him with a knife on t die upper part of the abdomen 5" from the left nipple and 5' from the umbillicus in the membrane line 1' x " going in to the abdominal cavity. Ghulam Farid fell on the ground. Abdul Hameed (P. W. 15) on seeing the deceased being stabbed came to the spot from his shop and asked the respon dent to desist from stabbing Ghulam Farid but Arif Shah caused him also injuries with the knife on the abdomen and shoulder. Muhammad Siddiq, w. W. 16), Rehmutullah (P. W. 17) and Ghulam Sarwar (P. W. 18) present on the spot witnessed the occurrence. Arif Shah then returned to his shop. The injured was placed on a cot and was on the way to the Civil Hospital, Hazro, when near the office of the Town Committed, they met Ch. Nur Sultan (P. W. 19), S. H. O., Hazro, who recorded the report (Exh. P.A.) of Abdul Majid P. W. at 4‑30 p.m. and sent it to police station, where it was incorporate ding the F. I. R. (Exh. P. A./1). He then went to the Civil Hospital, where he recorded the dying declaration (Exh. P. B.) of Ghulam i'arid on the same day. Ghulam Farid stated that on the day of occurrence it about digar time he was standing in front of his shop in the street and his father, Abdul Majid, P. W. was present in the shop. Arif Shah, son of Hussain Shah Sayyed, resident of Hazro came to his shop and asked his father to give him five pairs of Zarri Chappals on credit, but his father declined to do so. At this Arif Shah after abusing his father told him that he had Sayyed's blood in his veins and would put an end to his life. His father old him to control his tongue. At this Arif Shah after whipping out a clasp life from the right pocket of his coat aimed a blow on his father but he Brought him and then he (Arif Shah) gave him a knife blow on the abdomen, end so he fell on the ground. The above version was fully corroborated at the trial by Abdul Majid, P. W. 14, Abdul Hamid, P. W. 15, Muhammad Siddiq, P. W. 16, Rehmatullah P. W. 17 and Ghulam Sarwar, P. W.

18. The appellant did not deny that he had caused injuries with a knife to Ghulam Farid and Abdul Hamid P. W. 15, but claimed that he had acted in the exercise of the right of private defence of his person. The plea was not believed by either Court and it is unnecessary to dwell on it any more. Dr. Fida Muhammad, who performed the autopsy on the dead body of (Ghulam Farid found that the deceased suffered from Tuberculosis in advanced stage. A big clot of coagulated blood was found on the right side of the heart but the left side was empty. The hemorrhage from the wound caused by the appellant had accelerated the death. On the basis of the medical evidence, the trial Judge concluded: "Dr. Fida Muhammad has however admitted that the deceased was an advance case of T. B. i. e., the deceased died of T. B. and the stab injury only accelerated his death. Thus the offence would be under section 324, P. P. C. so far the murder of the deceased is concerned. I consequently find the accused guilty under section 324 P. P. C. for causing one stab injury to Ghulam Farid, deceased and convict him there under." In the High Court, the learned Judges after noticing the nature of the injuries suffered by the deceased at the hands of the appellant and referring t he arguments addressed by the learned counsel for the State and the convict found as follows:‑ "After carefully going through the evidence on the record and hearing the learned counsel for the respondent and the learned Assistant Advocate General for the State, we are of the opinion that the offence of culpable homicide had not been made out by the prosecution, because it can be committed only if death is caused by the doing of an act with the requisite intention or knowledge. In the instant case, the medical evidence shows that death was not the result of stab injury caused by the respondent to the deceased, but it was the result of Tuberculosis from which the deceased was suffering, and so we hold that the offence committed by the respondent is covered by section 326, P. P. C. while that committed by him in giving knife blows to Abdul Hameed P. W. is covered by section 324, P. P. C." In arriving at this conclusion, the learned Judges in the High Court and the trial Judge omitted from their consideration the provisions of section 299, P. P. C. which defines culpable homicide in these terms: whoever causes 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. Explanation 1 to the section amplifies that a person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Ghulam Farid deceased, no doubt, suffered from Tuberculosis in advanced stage but he did not die because of that disease. The death was accelerated by the injury caused to the deceased with a knife by the appellant on a delicate part of his body. The weapon used was not an ordinary pen‑knife but a clasp knife with a blade 4 " long and' " wide. Including the handle the knife measured 10 ". The force with which the appellant gave the blood in the region of the heart of the deceased, is borne our by the injury caused inside the abdominal cavity. A big clot of coagulated blood was present the right side of the heart while the left side was empty. This was due hemorrhage from the wound and became the immediate cause of death. The doctor had expressed his opinion that the `patient' would have died in al month if he had not received the injuries and alternatively he would have survived if he was not suffering from Tuberculosis but this did not take offence committed by the appellant outside the ambit of section 299, P. P. C reproduced above. In dealing with this aspect of the case, the learned Judges in the High Court reproduced the following note under Explanation 1 of section 299, P. P. C. Commentary by Rattan Lal:‑ "A person causing bodily injury to another who is labouring under a disorder, disease, or bodily infirmity, and thereby accelerating the death of that other, is deemed to have caused his death. But one of the elements of the offence of culpable homicide must be present, The Explanation assumed that the bodily injury was inflicted with, the intention of causing death, or the knowledge that it would be likely to cause death. Where there is no such intention or knowledge, the offence is not culpable homicide, under the first two parts of this section." In the present case, intention to kill was quite manifest from the weapon used, the locale of the injury caused and the force with which the blow was' struck. To say the least, the appellant had the knowledge that by giving a' b blow with the knife (P. 1) in the region of Ghulam Farid's heart, he was likely to cause death. Another aspect of the case which escaped the notice of the learned Judges in the High Court and the trial Judge is that assuming the offence committed did not fall under section 302, P. P. C. it was amply covered by section

307. P. P. C. which lays down :‑ "

307. Whoever does any act with such intention or knowledge, and under such circumstances that if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either descrip tion for a term which may extend to ten years, and shall also be liable to fine and, if hurt is caused to any person by such act, the offender shall be liable either imprisonment for life, or to such punishment as is hereinbefore mentioned." On the findings reached, though quite erroneously, by the trial Judge and the learned Judges of the High Court that the injury caused by the appellant to Ghulam Farid did not cause his death, the circumstances in which the injury was caused clearly made out that if death was caused thereby, the appellant would have been guilty of the offence of murder. Under this section, the appellant was liable to be punished with life imprisonment. The appellant thus has hardly any reason to complain against the order, passed by the High Court but as he was allowed bail by this Court as far back as 13th November, 1969, we do riot consider it necessary to send him back to Jail. His sentence is accordingly reduced to the period already under‑ D gone with a fine of Rs. 2,000 which amount, if realized, will be paid to the heirs of Ghulam Farid, deceased. In default of payment of fine, the appellant will undergo further imprisonment for 2 years. Orders accordingly. Appeal dismissed. Sentence reduced.