1981 P Cr (PLP)

NASIR ASLAM ZAHID, J.-By judgment dated 31-1-1978 the appellant Faiz Muhammad Magsi has been convicted and sentenced by the I Additional Sessions Judge, Hyderabad for the following offences: (1) under section 302, P. P. C. for the murder of Ramzan son of Bux Ali Khaskhali which was the direct result of the hatchet injury caused on 26-6-1975 and sentenced to rigorous imprisonment for life and also to pay a fine of Rs.3,OOO.or in default of payment to suffer R.I. for 6 months ; (ii) under section 326, P. P. C. for causing grievous hurt to Hussain Bux son of Laiq Dino the same day and sentenced to I. R. for 5 years and to pay a fine of Rs. 1,000 or in default to suffer further R. I. for 2 months; (iii) under section 324, P. P. C. for causing simple hurt to the aforesaid Hussain Bux and sentenced to R. I. for 2 years; (iv) under section 544-A, Cr. P. C. the appellant was further ordered to pay compensation of Rs.3,000 to the heirs of the deceased Ramzan and Rs.2,000 to the injured Hussain Bux. All the sentences were ordered to run concurrently. The learned Additional Sessions Judge did not award the capital sentence to the appellant for killing Ramzan as he found that there was no motive on the part of the appellant to kill Ramzari and which, according to him, was a mitigating circumstance for awarding the lesser sentence. The appellant has filed this appeal under section 410, Cr. P. C. against his convictions and sentences as aforesaid by the trial Court.

2. The prosecution version as unfolded by the F. I. R. lodged by injured Hussain Bux (P. W. 1) on 27-6-1975 at 2 a.m. at Police Station, Tando Jam is that on 26. 6-1975 at 9 p.m. the complainant, who was a hari of Khan Sahib Abdul Rashid, after finishing his work was sitting with his father, Zamindar Abdul Rashid and one Abdul Latif, when his Zamindar asked the complainant to bring leveller from the land of Qazi Faiz Muhammad. The complainant accordingly started for the land of Faiz Muhammad and when he reached his own village, Village Imam Bux Pusio, Deh Bheempur, Taluka Hyderabad (at a distance of one mile from P. S. Tandu Jam), he found one person armed with hatchet standing behind the house of his uncle. On this the complainant gave him a `hakal' as to who he was, on which this person came near the complainant and was identified to be the appellant. According to the complainant, the appellant abused him and gave a sharp-sided hatchet blow on his hand, on which he raised cries of "thief! thief"! On the cries, the complainant's uncle Allah Obbayo (P. W. 2) and another uncle Moharram (P. W. 3) came running who also saw the appellant and identified him. The appellant on seeing these people started running and was chased and after covering some distance deceased Ramzan was seen to be coming in front. The deceased tried to capture the appellant but the appellant also gave him a sharp-sided hatchet blow, upon which he fell down. The chase ended here and the appellant ran away. The prosecution witnesses then went to their Nekmard Vikyo Khan, who advised them to lodge report at the police station. The F. I. R. was accordingly lodged by injured Hussain Bux 4 hours after the incident at 2 a.m. at Police Station Tando Jam. The appellant was arrested on 27-6-1975 at 8 a:m. from Hotel Mohabat Khaskheli, village Mooso Kbatian, Hyderabad by P. W. 9 Muhammad Ibrahim, Additional S. H. O., Tando Jam Police Station. On his search, however, nothing incriminating was found. The appellant then led the Additional S. H. O. and the two mashirs Abdul Rashid and Abdul Latif to Mooso Kbatian on the pucca road and produced the hatchet without the handle used in the crime from a Lai tree which was secured and sealed on the spot vide mashirnama dated 27-6-1975 (Exh. 9-C).

3. The case of the prosecution is based on the ocular testimony of complainant Hussain Bux (P. W. 1), Allah Obhayo (P. W. 2) and Moharram (P. W. 3) and corroboration through Nekmard Vikyo (P. W. 5) and the report of the chemical examiner, which found the blade of the hatchet produced by the appellant to be stained with human blood. The prosecution version is further corroborated by the medical evidence. Dr. Rafiq Ahmad (P. W. 8) who was then the Medical Officer, Rural' Health Centre, Tando Jam, had examined both Hussain Bux and deceased Ramzan on 27-6-1975 at about 1-30 a.m. and the following injuries were found on their person:- "Injured Hussain Bux- (1) Incised wound 3" x " x muscle deep over the left palm at the root of the fingers. (2) Incised wound ' in diameter x whole thickness of finger cutting away and separating completely the tip of the left middle finger. The finger (vie). (3) Incised wound 1' in diameter x whole thickness of finger cutting off obliquely and completely separately the terminal part of the left ring finger alone with the underlying bone of the finger also completely. The finger is shortened in length by half inch and the divided part is absent. (4) Incised wound " x " a skin deep over the tip of left index finger." Injured Ramzan (1) Incised wound 4' x 1" x 3/4' over the upper part of the front of right side of the chest with suspected injury due to the internal organs. The patient was having difficulty in breathing and shock."

4. Out of the 4 injuries found on the person of the injured Hussain Bux, 2 injuries according to the doctor were grievous and 2 simple and the weapon used was sharp-cutting. Only one injury was found on the body of Ramzan which was an incised wound 4" x 1' x ' over the upper part of the front of right side of chest and the doctor suspected injury to the internal organs. According to his certificate dated 27-6-1975 (Exh. 14-B) patient Ramzan was having difficulty' in breathing and was in shock. The weapon used, according to the doctor; was sharp-cutting. According to P. W. 8 Dr. Rafiq Ahmed, injured Hussain Bux was treated as an indoor patient and was discharged as cured after 3 weeks. As regards the case of Ramzan, Dr. Rafiq Ahmed says that he was admitted as an indoor patient for a period of 2 weeks and appeared to have progressed satisfactorily during this period and was given every possible treatment at the hospital and it was not considered necessary to refer his case to Liaquat Medical College Hospital, Hyderabad. However, after about 2 weeks, Ramzan developed a late, complication during the night and had to be referred in emergency P. W. 8 to the Hyderabad Hospital, where he was reported to have died.

5. Injured Ramzan died 2 weeks after the occurrence on 11-7-1975 at Liaquat Medical College Hospital, Hyderabad and his autopsy was performed on 12-7-1975 by P. W. 6 Dr. Abdul Majid, who was at the time Medical Officer, Medico Legal Section of the Hospital. According to this witness, the external injury found on the body of the deceased could have been caused by hatchet and death was due to shock, haemorrhage and respiratory failure caused by lung injury, which resulted from external injury. Dr. Abdul Majid deposed that the injury on the person of the deceased was a dangerous one and, according to him, in such cases some people survive and some people died even with the best treatment.

6. The other piece of evidence which corroborates the ocular testimony is the dying declaration by deceased Ramzan recorded by P. W. 9 Muhammad Ibrahim, Additional S. H. O. on 27-6-19115 at the hospital where the two injured had been admitted. The statement of deceased Ramzan (Exh. 15-B) recorded by P. W. Muhammad Ibrahim is in the following words:-- "I Muhammad Ramzan son of Bakhsh Ali, caste Khaskheli, resident of Arif Khatian, Taluka Hala, do hereby state as under:- On 26-6-1975 I had gone to my Zamindar Rais Allan Khan at Hyderabad. I took money from him for the expenses of the land and after purchasing provision from the town, I reached Tando Jam, There was no conveyance, therefore I was coming to my village on foot. At about 10 p.m. I reached at the road at a distance of 2 furlongs from the hotel of Nawa-Khatian, one man was coming running alongwith road. Other persons were chasing him, while raising cries "thief! thief"! Considering him a thief, I tried to capture him, he gave me a hatchet blow. I identified him to be Faizoo Mangsi. I received the blow on my chest, as a result of which I fell down. Faizoo went running along the road. The person coming behind carried me and brought me here at the police station. On enquiry I narrate these facts."

7. We have heard Mr. Muhammad Hayat Junejo, learned counsel for the appellant and Mr. Ghulam Ali Agha learned counsel appearing for the State. Mr. Junejo has pointed out certain improvements and contradictions in the statements of the eye-witnesses. However, these improvements and contradictions are not material and do not affect or demolish the prosecution case that the appellant had caused injuries to Hussain Bux and deceased Ramzan. No enmity has been alleged or proved on the part of these three eyewitnesses against the appellant. The trial Court has rightly believed their testimony and we see no reason to take a different view.

8. The ocular evidence is corroborated by the recovery of the blood stained hatchet blade, the medical evidence and the evidence of P. W. Vikyo, the Nekmard of the village. Although the Nekmard admitted himself to be the grandfather of injured Hussain 'Bux and also related to P. Ws. 2 and 3, but them is no reason to disbelieve his evidence. According to him, Hussain Bux had come and narrated the entire incident immediately after the occurrence.

9. The case against the appellant as regards the injuries caused to Hussain Bux hits been proved by the ocular testimony and other corroboratory evidence. As regards the injury to deceased Ramzan, there is the additional piece of evidence in the shape of his dying declaration. In his dying declaration, which has been reproduced hereinabove, the deceased fully implicated the appellant and in very clear terms stated that it was the appellant who had caused the injury on the chest of the deceased. No enmity has been alleged by the appellant with the deceased. The dying declaration was recorded by P. W. 9 Muhammad Ibrahim, Additional S. H. O. and again this witness also no enmity has been alleged or proved. In fact, at the time the appellant had been arrested, the Additional S. H. O. had himself granted ball to the appellant considering the offence to be under section 324, P. P. C. and accordingly bailable. If the Additional S. H. O. had any enmity against or wanted to unduly implicate the appellant, he could have registered a case under section 326 and/or 307, P. P. C. which art non-bailable offences. The trial Court has believed the testimony of the Additional S. H. O. and we also find no infirmity or weakness in his testimony to persuade us to take a different view.

10. On the basis of the evidence on record we hold that it has been proved beyond reasonable doubt that on 26-6-1973 the appellant caused grievous and simple injuries to Hussain Bux and also caused injury with hatchet on the chest of Ramzan and which injury was the direct cause of the death of Ramzan two weeks later.

11. As regards the charge under section 302, P. P. C. against the appellant for causing the death of Ramzan, Mr. Muhammad Hayat Junejo, learned counsel for the appellant very strongly contended that no case has been made out under section 302, P. P. C. against the appellant for causing the death of Ramzan but this was a rose where section 304, Part II, P. P. C. was attracted. According to the learned counsel, the facts as have been deposed to by the prosecution witnesses do not make out a case of intentional killing on the part of the appellant. The appellant was being chased by the prosecu tion witnesses and on their shouting the deceased tried to stop the appellant who gave one blow to the deceased obviously with the intention that he should not be caught. He has relied upon two judgments of this Court, the first being the judgment-dated 10-10-1977 in Confirmation Case No. 32/76 decided by Z.A. Channa and G. M. Shah, JJ. and the other being the judgment dated 17-5-1979 in Confirmation Case No. 34/78, decided by Z. A. Channa and Sajjad Ali Shah, JJ.

12. The judgment dated 10-10-1977 of this Court in Confirmation Case No. 32/76 has also been reported in 1978 P Cr. L J

534. In that case, the deceased was standing at a bus stop with his friends when a bus arrived and stopped at the bus stop and two men got down from the bus. In the meanwhile cries were heard from passengers in the bus "catch them, they are thieves." Thereupon, the deceased and his friends chased the two men and others also joined them in the chase. However, when the deceased came very close to the two men running away, one of the accused, at the instigation of the other, turned round and with a chhuri stabbed the deceased in the chest who immediately fell down and later on died. The Division Bench which decided that case rejected the plea of self-defence raised on behalf of the accused but held that the accused, who had killed the deceased, had no intention to kill. We may reproduce para. 16 of the judgment dated 10-10-1977 which deals with the question whether in such circumstances it was a case under section 302 of Part II, P. P. C.:- "

16. Though in our opinion the appellant does not appear to have had any right of private defence against the deceased, we are of the view that he had no intention to kill the deceased. Admittedly only one blow with knife was given by the appellant to the deceased. No doubt, the blow was given on a vital part of the body and apparently was with considerable force, for the knife penetrated the chest cavity and punctured the lung as well as cut into the heart of the deceased, but we are of the view that the blow was given without any premeditation, in the chest of the moment and for the purpose of detering pursuit and avoiding capture. The appellant cannot in those circumstances be credited with the intention of deliberately seeking out a vital part of the body for the knife attack. He apparently struck wildly but the blow unfortunately caused fatal injuries to the deceased. Though the appellant did not appear to have the requisite intention, we consider that he must be saddled with the knowledge that a knife blow, struck with such force as was used by the appellant, was likely to result in death, specially as the blow was aimed at the upper part of the body which houses the lungs and the heart. We would accordingly alter his conviction and sentence of death under section 302, P. P. C. to a conviction and sentence of seven years' R.I. under section 304, Part II, and allow his appeal to that extent."

13. The other case decided by this Court and relied upon by Mr. Muhammad Hayat Junejo in Confirmation Case No. 34/78. In this case the accused had suspected the deceased of having an illicit affair with his wife and on the day of the incident the accused' saw the deceased hiding behind some bushes close to his house, on which he gave a `hakal' to the accused who started running away. The accused was chased by the deceased and other persons and when the deceased was about to catch the accused, the , latter, who was armed with a gun, fired at the deceased hitting him in the abdomen. The deceased fell dead on the ground. Relying upon the earlier judgment in Confirmation Case No. 32/76, mentioned hereinabove, a Division Bench of this Court held that the circumstances did not warrant the inference that the accused had the requisite intention to commit murder but could only be saddled with the knowledge that his act of firing at the deceased from close quarters was likely to result in death and accordingly the Division Bench substituted for the sentence of death under section 302, P. P. C. a sentence of 7 years R.I. under section 304, Part II, P.P.C.

14. In the instant case also we have come to the conclusion that the appellant did not have the intention to kill deceased Ramzan. The evidence shows that the appellant was running away from the pursuers and the deceased Ramzan came in the way of the appellant who gave him cane blow with the hatchet, which resulted in the death of Ramzan. There was no premeditation on the part of the appellant to kill Ramzan and the decision to give a blow to Ramzan was taken by the appellant on the spur of the moment apparently with the sole intention of avoiding capture. From the deposition of Dr. Rafiq Ahmed who had examined the injuries on Hussain Bux and Ramzan on 26-6-1975 only one injury was found on the body of Ramzan being an incised wound 4' x 1" x ' on the chest. The fact that only one injury was given also confirms our conclusion that there was no intention to kill Ramzan but the blows had been given by the appellant to get the deceased out of the way. However, from the nature of the blow and the fact that it was given by the sharp side of the hatchet on a vital organ of the deceased, the appellant must be saddled with the knowledge that his blow was likely to cause death. In the circumstances, we would substitute the conviction of the appellant in respect of the death of Ramzan from section 302 to section 304, Part II, P. P. C.

15. The appellant had caused both grievous and simple injuries to Hussain Bux and the learned Additional Sessions Judge, Hyderabad has convicted the appellant under both sections 326 and 324, P. P. C. and separate sentences have been awarded. The trial Court was clearly in error in giving two separate convictions and sentences for injuries given to Hussain Bux. Under the law, in these circumstances, the appellant could have been convicted only under section 326, P. P. C. and given one sentence and not two convictions and two sentences. Section 71, P. P. C. and the illustrations to this section leave no room for any doubt on this point and the same may be reproduced here:- "

71. Limit of punishment of offences made up of several offences.

Where anything which is an offence is made up of parts, any of which part is itself an offence, the offender shall not be punished with the punishment of more than one such his offences, unless it be so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or Where several acts, of which one or more' than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished ,with a more severe punishment than Court which tries him could award for any one of such offences. Illustrations (a) A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, arid also by each of the blow which make up the whole beating. If A were liable to punishment for every blow he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating. (b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y."

16. We accordingly alter the conviction of the appellant for the death; of Ramzan under section 302 to section 304, Part 11, P. P. C. and substitute as sentence of R. I. for 7 years with no fine. For the injuries caused to Hussain Bux the appellant is convicted under section 3Z6, P. P. C. only; and sentenced to R. I. for 5 years with no fine. The conviction and- sentence of the appellant under section 324, P. P. C. for causing simple injuries to Hussain Bux are set aside. Award of compensation under section 544-A Cr. P. C. is also set aside. Both the sentences will run concurrently and in view of section 382-B, Cr. P. C. as amended by Ordinance LXXI of 1979, the entire period the appellant has remained in custody shall be taken into consideration for the purposes of serving, out of sentence. With the above modifications, the appeal is dismissed. Order accordingly.