P L D 1962 (W (PLP)

A. R. CHANGEZ, J.-This is an appeal by the Provincial Government from the judgment of Mr. M. Anwar, Sessions Judge, Mianwali, who, by his order dated the 27th of September, 961, convicted the respondent under section 326, P. P. C., and sentenced him to rigorous imprisonment for seven years. The facts of the case giving rise to this appeal briefly are that on the 20th of February, 1961, Amir Qalam deceased, son of Mughal Khan, Pathan Maddokhel, resident of Manda Khel, within the limits of Police Station Qamar Mashani, was cutting a log of wood lying unclaimed in the land of non-Muslims. Hakam and Fatta, brothers of Dost Muhammad respondent, objected to the cutting of the wood by the deceased, claiming it to be their property. This led to an altercation between them and during the course of it Amir Qalam deceased is said to have beaten Hakam Khan and Fatta. On the 22nd of February, 1961, at about peshiwela the deceased left his house for the fields to answer the call of nature and on reaching the field of Fazal Shah, the deceased saw Dost Muhammad respondent son of Sardar Khan, also a resident of Mandakhel, armed with a shotgun of ~ 12 bore coming to the above-mentioned field from the opposite direction. The respondent is alleged to have shouted at the deceased as to why he had quarreled with his brothers and simult aneously with that he fired a shot at the deceased which proved ineffective. The deceased started running but was pursued by the respondent. On going close to the deceased, the respondent fired another shot, hitting the deceased on his thigh in the front. Abdus Sattar (P. W. 12), Yaqub (P. W. 13) and Khan Gul (P. W. 14), who were present at the spot, also witnessed the occur rence. Amir Qalam was taken in wounded condition to Police Station Qamar Mashani, at a distance of three miles from the spot, where his report Exh. P. L. was recorded by Ata Muhammad Assistant Sub-Inspector (P. W. 15) at his instance. Ata Muhammad A. S. I. registered a case under section 307, P. P. C. and sent the injured to the Civil Hospital where he was examined by Dr. Ata Ullah Khan (P. W. 1). Amir Qalam succumbed to his injuries on the 23rd of February, 1961, at 7 a.m. and the post-mortem examination was performed on the same day at 10 a.m. by the same doctor, who found the following injuries on his person :

(1) Five gunshot wounds of entry, with invert edges, " x " each, on the outer side of middle of left thigh. There were five gunshot wounds of exit, with everted edges, " x " each, on the inner side of middle of left thigh. There was one grazed wound, 1/3" x ", on the back of left thigh near its middle. It was bandaged. (2) Six gunshot wounds of entry with inverted edges, " x " each, on the inner side of middle and lower third of the right thigh. There were two gunshot wounds of exit, with everted edges, " x " each, on the front and outer side of lower third of right thigh. It was bandaged. On dissection, the right femur bone was found fractured in its lower part. Four pellets were removed and sent to the police in a sealed packet. The right femoral artery and veins were lacerated under this injury.

3. On receiving the information about the death of the deceased the offence was converted from section 307 to section 302 of the Pakistan Penal Code. Ata Muhammad, Assistant Sub- Inspector, left for the spot on the same day, i.e., the 22nd of February, 1961, and reached there at 5 p.m. The accused, who was not present in the village, was declared a proclaimed offender. On the 14th of March 1961, he was, however, produced before Sikandar Shah, then District Inspector of Police (P. W. 2) by Amir Khan, Foot Constable, who took him into custody.

4. In support of the story regarding the guilt of the respondent the prosecution relied upon the report Exh. P. L. of the deceased which is now being treated as the dying declaration, the statements of Abdus Sattar, Yaqub and Khan Gul P. Ws. as eye-witnesses and the conduct of the accused in absconding after the occurrence. The learned Sessions Judge disbelieved Abdus Sattar, Yaqub and Khan Gul P. Ws. because in his opinion they were neither present at the spot nor had witnessed the occurrence, and a careful perusal of the statements of the above-mentioned three eye-witnesses shows that the learned Sessions Judge was perfectly right in disbelieving them. Abdus Sattar (P. W. 12), while explain ing his presence near the spot at the time of the occurrence, deposed that he was cutting barley from the field at about peshiwela. He, however, did not know the name of the owner of the field in which he had sown the barley. No attempt was made by the prosecution to produce the Patwari with Khasra Girdawari to show that barley had been sown by the P. W. in the field belonging to someone. Again, there is no evidence on the record to show that the investigating officer, on going to the spot, had found barley cut in the field in possession of the P. W. It is true that this P. W. is the son of the paternal uncle of the respondent, but at the same time the deceased was the son of his sister and, there fore, it follows that the deceased was nearer to him than the respondent. Similarly, Yaqub (P. W. 13) and Khan Gul (P. W. 14) are also not disinterested persons. The story put forward by them that they had gone to the river for having a bath in the month of February also founds incredible. Abdus Sattar (P. W. 12) deposed that at the time of the occurrence the deceased was accompanied by his two sons aged about 8 and 10 years but Yaqub and Khan Gul P. Ws. did not say that the sons of the deceased were present at the spot at the time of the occurrence and this fact, in our opinion, further contradicts the prosecution story regarding the presence of the eye-witnesses at the spot.

5. Having disbelieved the eye-witnesses, we are now left with the dying declaration Exh. P. L. of the deceased. The statement of Ata Muhammad, Assistant Sub-Inspector, shows that Amir Qalam who was brought to the police station in a wounded condition, was in possession of his senses and talked co-herently. He, therefore, recorded his report Exh. P. L. at his instance in which the deceased charged the respondent for his injuries. The occurrence had taken place in broad day light and thus the deceased was in a position to identify his assailant who had fired the shot from a very close quarter. The medical evidence also corroborates the dying declaration of the deceased, because accord ing to the dying declaration the respondent was armed with a shot-gun of .12 bore and the injuries found on the person of the deceased were also caused with pellets. We have come to the conclusion that it was the respondent who had fired the shot at the deceased, causing the injuries found on his person which ulti mately resulted in his death.

6. Now the point for determination is as to whether the respondent had fired the shot at the deceased with the intention of killing him, as urged by the State counsel, or did he fire the shot with a view to inflict injuries on the deceased without Intending to cause his death, as contended by his counsel. From the dying declaration of the deceased it appears that on seeing the deceased the respondent fired a shot at him which proved ineffective. The deceased then started running but was pursued by the respondent and after overtaking him he fired another shot at him from a close quarter with which he was hit in the thigh. It has been contended on behalf of the respondent that if the intention of the respondent had been to commit the murder of Amir Qalam, he would have fired at some vital part like, the head the chest or the abdomen. We are not impressed by this argument. The respondent may not be a good marksman `` and the fact cannot be lost sight of that the second shot had been fired while the parties were running. In our opinion, the firing of two shots from a deadly weapon, like a shotgun, by the respondent at the deceased in the circumstances narrated above, would show that the respondent had intended to cause his death.

7. We are also of the view that the firing of an S. C. cartridge by the respondent at the deceased from a close quarter would show that the respondent had done the act with the knowledge that 1t was so imminently dangerous that it would, in all probability, cause death or such bodily injury as was likely to cause death. In this view of ours, we are fortified by a case reported as Public Prosecutor v. Ramaswami Nadar (A I R 1940 Mad, 745). The facts of that case briefly are that on the 5th of August, 1939, the respondent Ramaswami Nadar attacked Periana Nadar with a weapon which is described as "Patta knife" "gin knife" and Inflicted a wound on him. The Sessions Judge convicted him under section 326,

1. P. C. and sentenced him to five years' rigorous imprisonment. On appeal by the State, the Division Bench which heard the case observed as follows :- "An ordinary person is not presumed to know the precise location of the arteries in the human limbs. If a stab with a knife or a dagger, aimed at an arm or a leg, severs an artery and an injured man dies as a result, it may be quite reasonable to argue that the offence is not one of culpable homicide and that the assailant can only be presumed to have intended to cause hurt, or grievous hurt, with a dangerous weapon. The case is quite different when a weapon like a sword is used in order to chop off or to hack at a limb. The person who uses a sword or aruval, chopping at an arm or the leg and by so doing severs the arteries of the arm or the leg must know that he is inflicting an injury which in the ordinary course of nature is sufficient to cause death. The offence is clearly one of murder." The same view was taken in another case reported as Kra Chan U v. King Emperor (A I R 1923 Rang. 247) and it was held that a man who cuts another, even on the leg with ferocity and with such a weapon as to cause such an Injury as causes death within a few hours must be Pre sumed to intend to cause injury sufficient in the ordinary course of nature to cause death, and if death results, is guilty of murder unless the case is shown to fall within the Exceptions provided in the Code. Although in the above-mentioned cases a sword and a sharp-edged weapon were used, yet in our opinion it makes no difference because in the present case a more dangerous weapon like a shotgun was used and the respondent, therefore, must have known that the pellets would spread and were likely to cut the arteries.

8. On a careful consideration of the facts of the case, we are clearly of the opinion that the respondent had the intention to cause the death of Amir Qalam, and in any case, clause fourthly of section 300, P. P. C. is fully applicable to the act of the respon dent. The respondent is, therefore, guilty of the offence of murder.

9. We, therefore, accept this appeal, set aside the conviction and sentence of the respondent under section 326, P. P. C., and convict him under section 302, P. P. C. In our opinion, the normal penalty prescribed by law is not called for, because there was no previous enmity between the parties and the deceased seems to have been fired at b-y the respondent on account of a quarrel between the deceased and the brothers of the respondent. We, therefore, sentence him to transportation for life. A. H. Appeal accepted.