1969 PLP 735 (SCMR)

MUHAMMAD YAQUB ALI, J.‑The facts leading to this appeal from the judgment and order of a learned Single Judge of the High Court of West Pakistan, Lahore Bench, arc not in dispute. Mr. Samuel the deceased person in the case Worked as a mechanic in the Diesel Electric Workshop in the Pakistan Western Railway, Mughalpura. He was in the habit of criticising and ridiculing Islam and the Holy Prophet in the presence of his Muslim colleagues. Some time before the occurrence he brought to the workshop a printed book by the name of ahdullah wald Ismail Hashmi Ka Khat Hushtamil Dawat‑i‑Islam Banam ,Abdus Sami Wald Ishaq Kundi and would read from it extracts highly derogatory of the Holy Prophet. Some employees working with the deceased thereupon made‑a written complaint to their superior officers and took the said took into custody. The matter was taken notice of and the deceased apologised for his misconduct, but in spite of it he continued to make objectionable remarks about Islam and tile Holy Prophet regardless of the feelings of his fellow, workers. On the 22nd May 1961, the deecased uttered highly provocative remarks about the Holy Prophet in the presence of Zahid Hussain respondent who took objection to it. On this the deceased called the respondent, the maternal uncle of the Holy Prophet, who thereupon lost his self‑control, picked up an iron pipe lying nearby and gave a number of blows with it on the head of the deceased causing multiple fractures of the skull as a result of which the deceased collapsed. Abdul Majid, P.W.3 incharge of the Feul Pomp Section, and Siraj Din, P. N. 9 who were working nearby caught hold of the eespondent, disarmed him of the iron pipe and later on produced ;m1 before the police. The deceased expired on the way to t ti‑a :1ospitA rind the autopsy performed on his person by Dr. A. H. Nizami replaced the follow ing injuries: (1) A lacerated wound 2" x " deep to the bone, bone bare on the left side of forehead " above the left eye brow. (2) A lacuated wound 2' x ' bone deep, bone bare and fracture on the front of the head 2" above the injury No. 1. (3) A lacerated wound 1 x " deep to the skin on the top of head 2 back to injury No. 2. (4) A lacerated wound 1 " x " deep to the bone. Bone bare and fracutres. On the back of head 1" back to injury No. 3. (5) A lacerated wound 1" x " skin deep on the back of head in the middle. All the membranes of the brain were ruptured at the site of the injuries. Blood was clotted on the surface and the brain was damaged. Death was due to the injuries resulting in intracranial haemorrhage, shock and injury to the brain matter as a result of extensive fractures of skull bones. On receiving the intimation about the occurrence the police arrived on the spot and undertook usual investigation in the case. Eventually a challan under section 302, P. P. C. was put in against the respondent and the case entrusted to Mr. Aftab Farrukh, Magistrate 1st Class, Lahore, for holding inquiry under section 209, Cr. P. C. The sum total of the evidence led by the prosecution was that the respondent had caused fatal injuries to the deceased at the result of grave and sudden provoca. tion in the circumstances as aforesaid. The Inquiry Magistrate ac cordingly did not commit the respondent to the Court of Sessions, but sent the file of the case to the District Magistrate for bringing the respondent to trial under section 304, P. P. C. Mr. Muhammad Nawaz Cheema, Special Railway Magistrate, with Section 30 Powers, eventually tried the respondent and had recorded the statement of only one eye‑witness AIR Muhammad, P. W. 1 when the respondent offered to make a statement confessing his guilt, the material portion of his statement read as follows:- "The fact that as the deceased used insolent language with regard to the Holy Prophet 1 became furious and instantly picked up the pipe lying on the ground and gave him blows on the head. I never intended to kill him. However, I had the feeling to chastise him. Again said that in fact I had lost my senses and whatever I did, did in rashness." In consequence of the confession and the ocular evidence of Ali Muhammad, P. W. Mr. Cheema found the respondent guilty of the offence under Part (lI) of section 304, P. P. C. and as he had remained in the judicial lock‑up for about six months awarded him a sentence of Rs. 1,000 or in default to undergo a simple imprisonment for six months. Feeling aggrieved by the conviction and sentence of the respondent Mst. Sheila the widow of Mr. Samuel deceased moved the High Court of West Pakistan, Lahore Bench, in exercise of its revisional jurisdiction under section 439, Cr. P. C. on the grounds that (i) the offence committed by the respondent amount ed to murder animas he was charged with an offence punishable with death and there was prima facie evidence in support of it, the trial Magistrate was in law bound to commit him to the Court of Sessions and (ii) the proceeding in which the respondent had been found guilty under section 304, P. P. C. by Mr. Chcema was without jurisdiction. In support of the revision petition reliance was placed on an old decision of the Chief Court of Punjab reported in Queen‑Empress v. Gurdit Singh and others (3 P R 1891). The respondent was accused in that case of causing the death of Waryama, the father of the complainant‑petitioner. The District Magistrate found that the deceased was struck down by blows on the head with a hatchet in the course of a fight, and died after an hour or two and that he undoubtedly used the hatchet. The accused was charged thus: "that he struck Waryama on the head and caused his death and therefore committed an offence punish able under section 304, Indian Penal Code". The finding was that the accused had caused the death of the deceased by a blow which he must have known was likely to cause death, even though that blow was given in sudden heat of passion in a fight without accused necessarily having intention to cause deceased's death.. The sentence was four years' rigorous imprisonment and fine of Rs.

50. The trial was set aside by Plowden, J. and the District Magistrate directed to commit the accused to the Court of Sessions on the interpretation that "the first part of section 304, Indian Penal Code, applies only to acts which are prima facie acts of murder punishable under section 302, Indian Penal Code, as falling under the first, second or third clauses of the definition of murder in section 300, but which are reduced to culpable homicide not amounting to murder by reason of an Exception to section 300 being proved". The counsel for the respondent relied on Ghula,n Ahmad v. The State (P L D 1958 Posh. 20), Hari Ballav Shaha Roy v. Gopi Ballar Shaha (P L D 1959 S C (Ind.) 347) and a decision from a foreign jurisdiction. In the first case it was held that according to section 28, Cr. P. C. a case under section 304, P. P. C. is triable by the Court of Sessions, but section 28 is subject to section 30 and the effect of reading them together is that all offences not punishable with death including the offence under section 304, P. P. C. are triable by a Magistrate of the 1st Class invested with enhanced powers under that section though in accordance with the provisions of section 210 of the Criminal Procedure Code a Magistrate should commit the accused to the Court of Sessions unless he is clearly of the opinion that charge under section 304, P. P. C. has been made out and that no Court would convict the accused under section 302, P. P. C. In the second case on noticing the functions and duties of Inquiry Magistrate under Chapter XVIII of the Criminal Procedure Code which deals with cases ?triable by the Court of Sessions it was observed that:‑ "A Magistrate holding the preliminary inquiry has power to sift and weigh evidence only for the purpose of determining whether or not it is a fit case for committal and not for decid ing about the guilt of the accused. No hard and fast rule can be laid down regarding the distinction to be made between the duty of a committing Magistrate and that of a Sessions Court, but the test is . . . . . that if there is on the evidence even a possibility of conviction the accused should be committed for trial though the Magistrate thinks that a conviction is not probable or the matter is not free from doubt, but that he should discharge the accused if on the evidence he comes to the conclusion that no Court or Jury could reasonably be expected to convict the accused." Relying on the concluding part of the observations the learned Single Judge in the light of the evidence led by the prosecution held the trial of the respondent under section 304, P. P. C. legal and dismissed the revision petition. Leave to appeal was granted to consider "whether the Magistrate had used the discre tion in the matter judicially after considering the evidence that was adduced before him in the course of inquiry". During the hearing the question whether the offence proved to have been committed by the respondent fell under the First Part of sec tion 304, P. P. C. or the Second Part under which the conviction was recorded and the legality of the sentence imposed on the respondent also came up for consideration. Besides the case of Queen‑Empress v. Gurdit Singh noticed above Mr. R. A. Jeremy who appeared for the appellant relied on a recent decision of this Court Mazharul Haq v. Ishaque Sardar (P L D 1962 S C 480). In this case it was said, "that it was essential for the proper maintenance of the criminal jurisdiction that a serious crime involving death should be brought to trial before a competent Court and that questions of fact arrived therein should not be allowed to be decided by a Court of inquiry whose only function is to satisfy itself that there is a prima facie case against the accused person and to set out the case so found in a committing order, supported by a formal charge on which the charge can proceed". We do not see how this decision helps the appellant. The question whether the offence committed by the respondent fell under section 302, P. P. C. or section 304, P. P. C. was not in issue in the present case. The entire evidence led by the prose cution before the trial Magistrate as discussed above was to the effect that the respondent had in causing the death of Mr. Samuel deceased acted under grave and sudden provocation. It is only if the defence sets up a different version on a question of fact) that forms an ingredient of the charge that the jurisdiction of the Inquiry Magistrate to record a finding thereon is excluded and the question arising therein should be left to be decided by the Court of Sessions. That is also the ratio decedendi in Queen Empress v. Gurdit Singh. In the instant case the prosecution and A the defence version agreed that the respondent had been guilty of the offence under section 300, P. P. C. The Inquiry Magistrate had therefore used his discretion in the matter judicially otherwise it would have been a futile and unnecessary exercise to commit the respondent to the Court of Sessions. The principal ground raised in support of this appeal has thus no merit. The nature of the offence proved to have been committed by the respondent and the legality of the sentence awarded to him, however, requires consideration. The facts found are that the respondent gave five blows with an iron pipe measuring 3"‑2" and weighing g 61, pounds on the head of the deceased causing extensive fractures of the skull. As noticed in the autopsy the membranes of the brain were ruptured and blood was clotted over the surface of the brain on the site of the fractures. In the opinion of the doctor the injuries were sufficient to cause death in the ordinary course of nature. The damage caused shows that considerable force was used in inflicting the injuries to the deceased and keeping in view their locale it cannot he reasonably said that the respon dent did not have the intention to cause such bodily injuries as were likely to cause death, the rule being that a person is presumed to intend the necessary or the natural and probable. consequences of his acts. We are accordinnly of the view that the offence committed by the respondent was covered by the First Part of section 304, P. P. C. and not the Second Part under which conviction has been recorded. The sentence awarded to the respondent is therefore not legal for under section 304, Part I, P. P. C. a sentence of fine may be awarded in addition to a sentence of imprisonment and not in the alternative. We would accordingly allow this appeal and remand the case to the Court, of the Additional District Magistrate, Lahore for awarding to the respondent such sentence under section 304, Part I, P. P. C. as he may in the circumstances of the case deem fit. Appeal partly accepted. Case remanded.