P L D 1958 (W (PLP)

In the face of the report made by Dur Muhammad who was definitely present in the hotel and his subsequent statement in Court it cannot be safe to rely on the statement of other witnesses that Muhammad Idris and Abdul Saeed were accompanied by 8 or 10 others. As to the subsequent incident on the road the sole reliable testimony is that of Muhammad Iqbal P. W.

17. He stated that he saw one person running following by several others. They were about four or five. It cannot be held on the basis of this evidence that the prosecution has definitely established that Abdul Saeed and his companions numbered five and not less than five. We have come to the conclusion that the prosecution has failed to prove that there was an unlawful assembly consist ing of five or more persons. In view of the above it is essential to take the case of each appellant separately and determine what offence, if any, was committed by each. There can be no doubt that Abdul Saeed gave knife injuries to Muhammad Akram deceased. This is proved by the evidence of Ali Agha P. W. 4, Ali Muhammad P. W. 11, Muhammad lqbal P. W. 17 and Fateh Muhammad P. W.

19. Ali Agha P. W. 4 is the proprietor of the hotel where the incident started. He knew Abdul Saeed from before. He stated that the appellant Abdul Saeed along with others came to his hotel at about 8‑30 p.m. Abdul Saeed struck a table with a stick warning everyone not to move. Abdul Saeed had first stick but when he came near he had a knife. Abdul Saeed and Muhammad Idris followed Muhammad Akram and hit him. It is true that the witness stated that he cannot say who struck whom but that cannot be the reason for disbelieving his statement that Abdul Saeed came to the hotel armed with a knife and that he and Idris struck deceased Muhammad Akram. Ali Muhammad P. W. 11 was working in the hotel. His statement is to the same effect as that of Ali Agha with this exception that he did not know the name of Abdul Saeed and came to know of it after the incident. He correctly picked out Abdul Saeed at an identification parade. The witness deposed that Abdul Saeed and Muhammad Idris ran after deceased Muhammad Akram but could not say who struck Muhammad Akram. The witness was declared hostile and allowed to be cross‑examined by the counsel for the State. He denied that he had stated before the Committing Magistrate that Abdul Saeed hit a hockey stick on the head of deceased Muhammad Akram. The cross‑examination by the learned counsel for the State as well as the counsel for the appellant shows that the witness had been tampered with and he tried to oblige the appellants. 'This much is however clearly established from the statement of Ali Muhammad that‑Abdul Saeed came to the hotel and ran after Muhammad Akram. The question of guilt of Abdul Saeed is clinched by the statement of Muhammad Iqbal P. W.

17. He stated that he was in the mill of Ayoob close to the place of incident. He saw one person running followed by several others. He picked out Abdul Saeed at the identification parade as well as in the Court and stated that Abdul Saeed had a knife. According to him Abdul Saeed had caught hold of deceased Muhammad Akram and dealt out the knife injury on his back. Muhammad Iqbal is a resident of Jhelum District and was a new‑comer to Karachi. Nothing has been shown to discredit his testimony. It has been established by unimpeachable evidence that Abdul Saeed had a motive for an attack on deceased Muhammad Akram. He had had a fight with same Muhammad Akram a day before. On this point we have first admission made by appel lant Abdul Saeed himself though it is not a straight one. In his statement before the Magistrate on 18th October 1954, he stated as follows : "I asked to him as to why he was misbehaving. Thereupon Shaukat gave a slap to rickshawwala. Akram was also standing there. It went off and struck him. He (Akram) began to quarrel with. Shaukat. I intervened. Meanwhile Akram's brother came. He beat Akram that why he had goal; there. When he went away he caught hold of me," Appellant Abdul Saeed has apparently suppressed that he was injured by Muhammad Akram. But there is the evidence of Hakim Muhammad Fazlullah to show that. This witness stated that Abdul Saeed appellant had come to him for treatment on 11th October 1954. Abdul Saeed had an injury on his head. The witness dressed his head and bandaged it. The witness produced cash memo Exh.

28. This is dated 11th October 1954, and shows that Rs. 1‑8‑0 had been paid by Saeed. Ali Muhammad P. W. 11 stated that there was a quarrel between Abdul Saeed and Muhammad Akram in front of his hotel as a result of which Abdul Saeed received injury on his head. This Ali Muhammad runs hotel named Gulshan. The first information report had also recited that a quarrel had taken place between the appellants and Muhammad Akram before the incident. Abdul Saeed after arrest in this case had been examined by Casualty Medical Officer, Civil Hospital Karachi on 13th October 1954, at 7‑30 p.m. The doctor found injuries 48 hours old on the person of Abdul Saeed. These injuries must have been caused to Abdul Saeed appellant on 11th October 1954. The evidence of prosecution witnesses particularly Ali Agha P. W. 4 and Muhammad Iqbal P. W. 17 coupled with the existence of motive establish that appellant Abdul Saeed gave at least one knife injury to Muhammad Akram. This knife injury according to the doctor was dangerous and ultimately resulted in the death of Muhammad Akram. It was argued on behalf of the appellant Abdul Saeed that his name had not been mentioned by Dur Muhammad in his report Exh.

27. It is true that in the report Idris and Muhammad have been mentioned, but the explanation of Dur Muhammad is that he meant Muhammad Saeed. Appellant Abdul Saeed was named by eye‑witnesses soon after the incident. Dur Muhammad himself did not know Abdul Saeed and the names must have been given to him by his master Ali Agha. It may be that Dur Muhammad either mentioned Muhammad Saeed but only Muhammad was written or he forgot the full name of appellant Muhammad Saeed and only gave the first portion of his name Muhammad. ' There is nothing in the statement of the doctor who performed the post‑mortem examination to show that the two injuries caused by a knife either collectively or individually were sufficient in the ordinary course of nature to cause death. All that is established against Saeed is that he gave knife injury which was dangerous in its nature and likely to cause death. The appellant is therefore guilty under section 304, P. P. C., and not under section 302, P. P. C., as found by the learned Sessions Judge. Abdul Saeed was a young man of 20 at the time of incident and had been injured by Muhammad Akram a day earlier. In view of this 7 years' R. I., would meet the ends of justice. The presence of Muhammad Idris at the time of the, incident and in company of Abdul Saeed in the hotel has not been disputed and rightly by his counsel. Mr. Hassanally Abdul Rehman has confined his arguments to showing that it is not established that Muhammad Idris was ever armed with a knife and he has succeeded in doing so. Ali Agha P. W. 4 the proprietor of the hotel where the incident took place knew Muhammad Idris from before and stated that Muhammad Idris had a stick first but later had a knife. Muhammad Akram wanted to run inside the hotel but appellants Muhammad Idris and Abdul Saeed followed him and hit him. Appellant Abdul Saeed struck Muhammad Akram first and Muhammad Idris struck him next. It was established from the statement of Muhammad Khan P. W. 24 that this witness did not particularly mention before the police that Muhammad Idris had a knife. 'The next witness against Idris is Bashambay. He had a pan shop by the side of the hotel. He saw Muhammad Akram sitting on the bench. Muhammad Idris and others came to the hotel and according to him Muhammad Idris had also a knife with which he struck Muhammad Akram. This witness too did not specifically state before the police that Muhammad Idris had a knife or that Muhammad Idris had given a‑ knife injury to Muhammad Akram. Next witness is Jumma P. W.

14. His statement is to the effect that Muhammad Idris struck Muhammad Akram with a hockey stick. Fateh Muhammad P. W. 19 picked out Muhammad Idris as one of the assailants but stated that he was armed only with a lathi or hockey stick. Another witnesses against Muhammad Idris is Ali Muhammad. According to him Muhammad Akram ran towards the hotel to hide himself but he could not get any place. He came out followed by two persons, namely, Abdul Saeed and Muhammad Idris. He could not see anything with Muhammad Idris. He had stated in the Court of the Committing Magistrate that Muhammad Idris had a hockey stick. Dur Muhammad P. W. 18 picked out Muhammad ldris at an identification parade and in Court. According to him Muhammad Idris struck him with a hatchet. But before the police he merely stated that Muhammad Idris had given him a blow. Muhammad Riaz P. W. 20 was not mentioned in the first information report although according to him he had accompanied Muhammad Iqbal when the latter went to Muhammad Aslam to inform him as to what had been seen by him. He has stated that he saw Muhammad Akram running in the street followed by others, His assailants had lathis, etc., and one had a knife. The person with moustache gave danda blow to Muhammad Akram on his back. The witness pointed out Muhammad Idris as being the person with big moustache. The above would show that the prosecution witnesses have exaggerated when they stated that Muhammad Idris was also armed with a knife. Before the police their version seems to be that Muhammad ldris had only a hockey stick. The post‑mortem examination of Muhammad Akram showed that he had two incised wounds and one lacerated wound. Incised wounds had been caused by sharp‑edged weapon like knife while injury No. 3 had been caused by some blunt object. It appears to us that appellant Muhammad ldris was responsible for the lacerated wound found on the person of Muhammad Akram deceased. The conviction of the appellant Muhammad Idris under sections 302, P. P. C., 148, P. P. C., and 149, P. P. C., cannot be up held. He can only be convicted under section 323, P. P. C., for which he has been sentenced to one year R. I. The evidence against Sitara can at the best only establish that he was seen in the hotel at the time of the incident. It is not proved that he was armed or that he took any part. Mere presence at a public place cannot establish any guilt against the appellant. Sitara is therefore entitled to acquittal. The result is that the appeal of Abdul Saeed succeeds to this extent that he is acquitted of offence under sections 148, 323 and 302, P. P. C. He is however convicted under. section 304, P. P. C., and sentenced to 7 years' R. I. The appeal of Muhammad 1dris succeeds to this extent that his conviction under sections 148 and 302, P. P. C., are set aside. His conviction and sentence to one year R. I. under section 323, P. P. C., is maintained. The convic tion and sentence passed against Sitara are set aside. He is ordered to be released forthwith. CONSTANTINE, J.--‑ I agree with my learned brother except in so far that I .consider that the appellant Abdul Saeed is guilty under section 302 and not under section 304, P. P. C. It is true that the doctor's description of the injury is merely `dangerous', but he was not asked whether by the epithet he meant that the wound was likely to cause death or was sufficient in the ordinary course of nature to cause death. Nor was he asked whether such a wound normally results in death or whether (apart from medical care) there is a fair chance of recovery. The stab penetrated the lung to the extent of one inch and death which ensued, despite medical care, at 10‑30 p.m., 35 minutes after admission to hospital, was due to shok and severe intrathoracic haemorrhage caused by this wound. I take judicial notice of the fact that the lung is a vital part of the body and that a stab in the lung is sufficient in the ordinary course of nature to cause death, and that this is known to the ordinary man. 1 see no reason to think that the appellant by misfortune stabbed the deceased in a part of the body which he did not intend or with greater force than he intended the ordinary presumption is that a man intends that which he has done. The appellant had an injury to avenge; he sought out and chased the accused. This motive and conduct thus support the presumption that the stab was intentional. I therefore hold the appellant guilty under section 302, P. P. C., and since 1 can see no extenuating circumstance, I would impose the normal sentence of death. CONSTANTINE AND LARI, JJ.--‑ The conviction and sentence passed against Sitara are set aside. He is ordered to be released forthwith. The appeal of Muhammad Idris succeeds to this extent that his conviction and sentence under sections 148 and 302 P. P. C. are set aside. His conviction and sentence under section 323, P. P. C. however are maintained. We have differed as to whether Abdul Saeed be convicted under section 302 or section 304, P. P. C. Let the papers be placed before the Senior Judge for referring the case of Abdul Saeed to a third Judge under section 378, Criminal P. C. BACHAL, J.--‑ The appellant Abdul Saeed alias Saeed son of Abdul Wahab was convicted by the Additional Sessions Judge, Mr. Muhammadally, under sections 148, 302 and 323 read with section 149, P. P. C. and sentenced to death. The appeal was heard by my learned brethren Constantine and Lari, JJ. Both concurred in acquitting him of the offences under sections 148 and 323, P. P. C. But as regards the offence under section 302, P. P. C. Constantine, J. considered that the appellant should be convicted under section 302; P: P. C. and the sentence of death confirmed, while Lari, J. considered that the appellant should be convicted under section 304, P. P. C. and sentenced to 7 years' R. I. I agree with the finding of the trial Court confirmed by my learned brethren and proved from the evidence of Ali Agha, Ali Muhammad, Bashambay, Muhammad Iqbal, Dur Muhammad and Muhammad Riaz that the appellant gave the knife injuries to Muhammad Akram deceased to avenge the injury caused to him on the head by the deceased on the previous day. The medical evidence shows that the deceased had the following injuries caused by a knife: (1) Stab wound (oblique) 1I" x I" penetrating then right lung on the right side of the back just lateral to the vertebral column (back bone) at the level of the 5th thoracic spine. The direction of the wound was from upwards to forward, downward and to the right (2) Incised wound (oblique) 2" x 3/4" muscle deep on the left side of the back at the level of the 7th thoracic vertebra 3/4" away from the median line. (3) Incised wound (oblique) 1 " x " muscle deep on the left side of the back at the level of the 8th thoracic vertebra, 1 " away from the median line. The first injury was dangerous. Death was due to shock and severe intra thoracic haemorrhage, caused by stab wound 1" x " x 1" of the right lung. Lari, J. considered that there was nothing in the statement of the doctor to show that the injuries caused by a knife either collectively or individually were sufficient in the ordinary course of nature to cause death and all that was established against the appellant was that he gave the knife injury which was dangerous in its nature, by which he meant likely to cause death. While Constantine, J. considered that the doctor was not asked whether by the epithet `dangerous' he meant that the wound was likely to cause death or was sufficient in the ordinary course of nature to cause death, nor was he asked whether such a wound; normally results in death or whether there is a fair chance of, recovery. Having regard to the nature of the injury on the vital part of the body intentionally caused the stab on the lung was sufficient in the ordinary course of nature to cause death. A person can be guilty of murder even though death is not a necessary consequence of the blow given. A person commits the offence of murder if the act he does is done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Three injuries were caused to the deceased. The accused must be presumed to have intended the probable consequence of the injuries caused. If a person stabs another in the chest or abdomen with sufficient force resulting in death shortly afterwards he can have only one intention namely the intention to murder and must be held to have intended to cause such bodily injury as is sufficient in the ordinary course of nature to cause death. In Narayanan Nair Raghavan Nair v. The State of Travancore Cochin (A I R 1956 S C 99) where as a result of the blow with a Penknife on the chest of the deceased, the stomach and the omentum had herniated together and the omentum protruded through the hole which the injury had made and the pleura and the diaphragm were both cut and the injury had extended right up to the abdominal cavity, it was held that the injury was sufficient to cause death in the ordinary course of nature. In Brij Bhukhan and others v. The State of Uttar Pradesh (A I R 1957 S C 474 : P L D 1957 S C (Ind.) 399) it was held that although the medical evidence does not say that any one of the injuries on the body of the deceased was sufficient to cause death in the ordinary course of nature, it is open to the Court to look into the nature of the injuries found on the body of the deceased and infer from them that the assailants intended to cause death of the deceased. Even if none of the injuries by themselves was sufficient in the ordinary course of nature to cause the death of the deceased, cumulatively they may be sufficient in the ordinary course of nature to cause his death. In Abdul Majid v. The Crown (P L D 1954 F C 304) their Lordships held: "The principle is clear that where a man being dangerously armed fights under an unfair advantage, the killing is murder and not merely manslaughter, even though mutual blows pass". In this case the appellant had taken undue advantage of the deceased and acted in a cruel manner in killing the deceased who was unarmed. I, therefore, accept the finding that the injury was sufficient in the ordinary course of nature to cause death. The accused was a youth aged 18 years at the time of the incident and the wrong done to him by the deceased on the previous day rankled in his mind. He has been an under‑trial prisoner from 12th October 1954 to 13th July 1957 youth of the appellant coupled with the other circumstances is a good ground for the mitigation of the sentence in this case. My opinion is, therefore, as follows :‑ I maintain the conviction of the appellant under section 302, P. P. C. and alter the sentence to transportation for life. I acquit him of the offences under sections 148 and 323, P. P. C. With this modification I dismiss the appeal. A. H. Order accordingly.