PLD 19536 Baghdad-ul-Jadid 27 (PLP)

ABDUL HAMID, J.‑The appellant, Fateh Muhammad alias Beerbal has been convicted by the learned Sessions Judge, Bahawalpur, under section 302, P. P. C. for causing the death of Pathana by inflicting an injury on him with a knife and has been sentenced to transportation for life. He has appealed through Jail. As he could not afford to engage a Lawyer, Mr. Fida Hussain, Advocate was appointed at Government expenses to represent his case in this Court The Public Prosecutor appeared for the Crown. The appellant is a resident of Bahawalpur proper. He was employed by his uncle Imam Bakhsh to work as a watchman to look after a field of melons in Chak No.

11. On 13th June 1951 at 10 a.m., the appellant was seen grappling with the deceased and during the scuffle which ensued, the accused whipped out a knife and caused an injury to the deceased which landed in the region of chest and pierced the heart which brought about the instantaneous death of the latter. This occurrence was witnessed by Khan Muhammad P. W, 1, Allah Wasaya, P. W. 8 and Allah Rakhia, P. W.

9. The first two witnesses are the employees of Irrigation Department and their duty is to remain patrolling the banks of the canal while the third witness is a Zamindar who owns land contiguous to the place of occurrence. On seeing the occurrence referred to above Khan Muhammad directed his other companions to keep an eye on the accused and himself went to inform Ramzan, P. W. lo, the brother of the deceased, who arrived at the spot. Thereafter Ramzan sent his son‑in‑law to Abdul Qadir, P. W. 2‑the Mohtamim of Mamoonabad Jageer‑to inform him about the murder. Accordingly the Mohtamim was informed and he lost no time in writing a ruqqa (Exh. P. G.) to the Saddar Police Station intimating them that a murder had taken place, that the accused had already been secured, and that a case under section 302, P. P. C. be registered. The said Mohtamim then proceeded to the spot and took the accused in the custody. The weapon of offence namely the knife Exh. P. was taken from the accused who was hiding it in his tebak. At the instance of the accused the witnesses also took into possession one hatchet (Exh. P. 2) lying in the field of melon. Later on the police arrived and after preparing the statement of injury and the Inquest Report sent the body for post‑mortem examination to the Victoria Hospital at Bahawalpur. Doctor Bashir Ahmad conducted the autopsy and found on the body of the deceased only one incised wound 1 " x 1 " on the chest and the internal examination disclosed that the wound had injured the heart. The doctor was of the opinion that the death was due to the injury referred to above. The accused was eventually challaned under section 302, P. P. C. The prosecution case is supported by Khan Muhammad, Allah Wasaya and Allah Rakhia, P. Ws. They are unanimous in stating that they were coming on the canal bank and from a short distance they saw that accused and the deceased quarrelling and suddenly they noticed the accused stabbing the deceased with a knife, who succumbed to the injury instantaneously. The evidence of the eye‑witnesses is above‑board and there are absolutely no reasons why such an unimpeachable testimony should not be relied on. They have further stated that the accused was secured soon after the occurrence and that the weapon of offence was also taken into possession by them. One witness Ghulam Rasool, P. W. 11, who happened to reach the spot afterward also stated that the accused had admitted in his presence of having caused the injury to the deceased. The statement of the accused in the Court of the Com mitting Magistrate was that the deceased had brought a large number of goats into the field of melons and the goats began to browse and damage the water‑melons, that he tried to take them to cattle pound which was resented by the deceased with the result that an altercation took place which developed into a fight and that the knife which he was already holding somehow struck the deceased and caused his death. However, in the Court of Session the accused stated that lie had caused an injury to the deceased in the exercise of right of private defence of person because the latter had first attacked him with a hatchet and then wanted to kill him by throttling him. This plea was not substantiated by the accused. The accused was medically examined and the doctor did find superficial self -inflicted injuries on the head of the accused. Besides, all the eye‑witnesses have stated that at the time of the actual fight they did not see any hatchet in the hands of the deceased. That being so, the plea of the accused is absurd and is a belated attempt to show that he killed the deceased in self-defence. The prosecution case therefore is proved to the hilt. There is no insinuation that the eye‑witnesses had inimical relation with the accused. In the absence of any strained relation there are no plausible reasons as to why their straightforward version of the occurrence should not be believed. Mr. Fida Hussain, the learned counsel for the appellant raised three contentions. First that there was omission of the names of eye‑witnesses in the F. I. R. Secondly that the witnesses were chance witnesses and thirdly that the occurrence took place not on the bank of the canal but in the field of the melons. Regarding the first contention it may be stated that the F. I. R. was lodged at the instance of the person who had not seen the occurrence and all that he know of the occurrence was through a person who was also not an eye‑witness. He only considered it of paramount importance to inform the police at the earliest possible moment of the murder and therefore the omission of the names of the eye‑witnesses in his so‑called ruqqa does not weaken the prosecution case in any way. The second contention is likewise not well founded inasmuch as the record clearly shows that Khan Muhammad is a mate while Allah Rakhia is a Zamindar of the locality and Allah Wasaya is a Baildar in the Irrigation Department and their duty was to look after the canal bank. Hence their presence at the canal bank was not unnatural and they were not passing on the canal as an ordinary way‑farer and therefore they cannot be called 'chance witnesses', similarly Allah Rakhia is a Zamindar of the locality and his presence also was not by chance. It follows necessarily that all the three witnesses were not the 'chance witnesses' and their presence was natural at the spot. With regard to the third contention there is nothing on the record to justify the assertion of the learned counsel. I therefore do not find the contention of the learned counsel well founded. The only question which remains to be decided is whether the appellant intended to cause the death of the deceased or merely to cause him an injury which he knew was likely to cause death. In the first place the prosecution has not alleged any motive which prompted the accused to cause the death of the deceased. There is nothing on the record to show that the accused's intention was to cause death or such bodily injury as was likely to cause death. The learned Sessions Judge has observed in the concluding paragraph of his judgment that "there is no motive for the crime. And origin of the assault is shrouded in obscurity." It therefore follows that neither the motive for the crime is known nor the origin of the fight is disclosed. Under the circumstances it would be difficult to hold that the appellant inflicted the injury on the deceased with the intention of causing his death. All that we know is that there was a sudden quarrel followed by a fight during the course of which the accused inflicted an injury with a knife, which caused the death of the deceased. The mere fact that the seat of the injury was the most vulnerable part of the body like chest does not ipso facto connote that the accused intended to cause the death of the victim. The injury was inflicted in the heat of passion at the spur of the moment during the course of a quarrel without any premeditation. This being the position, it would be wrong to presume that the accused intended to cause such bodily injury to the deceased as was likely to cause the latter's death. At least there is a genuine doubt whether the offence committed by the accused in this case was murder or culpable homicide not amounting to murder. The benefit of such a doubt should, in my opinion, go to the accused. Reference in this connection may be made to Khan Mar Khan v. Emperor (A I R 1925 hah. 148) where it was held that a fatal injury with a knife on the chest during the course of a sudden fight did not attract the provisions of section 302, P.P.C. and that the offence fell within the ambit of 2nd part of section 304, P. P. C. In another case Varma v. Emperor (1946 All. 20) the same principle referred to above was reiterated. In the present case all that we know is that there was a sudden quarrel which led to a sudden fight and during the course of which an injury with a knife was inflicted on the chest of the deceased which proved fatal. There being no premeditation, it would be not safe to hold that the appellant intended to cause the death of his victim. At the most the appellant can be saddled with the knowledge that his act was likely to cause death of the deceased. For the reasons given above I would accept the appeal to the extent of altering the conviction of the appellant from section 302, P. P. C. to section 304 (2), P. P. C. and sentence him to 7 years' rigorous imprisonment. Announced. ABDUL RASHID, J.‑I agree. A. H. Conviction altered. Sentence reduced.