P L D 1978 Karachi 644 (PLP)

Z. A. CHANNA, J.‑Appellant Ali Muhammad was tried alongwith his brother Ali Murad by a learned Additional Sessions Judge, Hyderabad, in respect of an offence under section 302 read with section 34, P. P. C., for committing the murder of his uncle Qadirbux Lanjwani in pursuance of their common intention, and while Ali Murad was acquitted, the appellant was convicted by the learned Additional Sessions Judge of an offence under section 302, P. P. C., and was awarded a sentence of imprisonment for life. The learned Additional Sessions Judge did not award death penalty to the appellant in view of the facts that the deceased was the maternal uncle of the appellant, that the incident took place suddenly and without any pre meditation, that the weapon used was a blunt one and that further the appellant had also received an injury at the bands of the deceased.

2. The incident occurred on 10‑10‑1972, at about 8‑00 a.m. at the `Khara' of the appellant in Deh Siddikpur, at a distance of 4 miles from Tando Muhammad Khan Police Station.

3. The prosecution case is that appellant Ali Muhammad was raising a hedge round his house and for this purpose he had with himself a hatchet as well as a "Biyano" (pitch‑fork). While he was so engaged deceased Qadirbux Lanjwani happened to pass by the side of the 'Khara' of the appellant, which was at a short distance from the houses of the appellant and the deceased. On seeing the deceased, the appellant abused and reproached him as the appellant was annoyed with the deceased for construct ing his house on their land, for which the deceased had apparently obtained permission from the father of the appellant. One Qadirbux Bozdar, who was sitting at the `Khera' of the appellant alongwith acquitted accused, Ali Murad, asked Ali Murad to intervene and avert the quarrel. It is alleged that the co‑accused instead of pacifying the parties, joined the appellant in attacking the deceased, who was given hatchet and Biyano blows, in consequence of which he fell down, and the appellant and the co‑accused then went to their houses. The deceased thereafter got up and first went towards his house, where he informed his aged mother, Mst. Nazo, about the incident, and then proceeded towards Tando Muhammad Khan Police Station. In the meanwhile, his brother, complainant Arab was informed about the incident by Mst. Nazo and he too left for the police station. He overtook injured Qadirbux at Bathoro Road. By that time the injured had lost consciousness. The complainant took injured Qadirbux to the Tando Muhammad Khan Police Station, where he lodged his F. I. R. at 11 a.m. which was recorded by S. H. O. Mohammad Malook. The S. H. O. after sending injured Qadirbux to the local Medical Officer for treatment, accompanied the complainant to the scene of offence, from where he secured blood‑stained earth. He then recorded the statements of P. Ws. Qadirbux Bozdar, Mst. Nazoo and other villagers. On the same day he arrested the appellant who was found to have an injury on his head. At the pointation of the appellant the S. H. O. recovered a blood‑stained Biyano in two pieces from the hedge at the back of the appellant's house. The S. H. O. also secured a blood‑stained hatchet from the northern hedge of the house. On the following day, in the morning, the appellant was first taken to the Medical Officer for examination of his injury, and thereafter produced before the Mukhtiarkar and F. C. M., Tando Mohammad Khan, who recorded his confession. In the meanwhile, injured Qadirbux, on the advice of the Medical Officer, Tando Mohammad Khan, was removed to the L. M. C. Hospital at Hyderabad, but he died on the night following the incident. On completion of the enquiries, the appellant and his brother, Ali Murad were challaned.

4. The autopsy on the deceased was conducted by Dr. Abdul Karim, Assistant Medical Officer at the Civil Hospital, Hyderabad, on 11‑10‑1972, between 10‑30 a.m. and 1‑00 p.m. He found the following external injuries on the person of the deceased :‑ "(1) Laceration 1' x " on the left shoulder. (2) Contusion 2" x 1" on the right occipital region. (3) Contusion 1 x 1" on tile right parito‑temporal region.'

5. On internal examination the Medical Officer found that the right temporal bone of the deceased was fractured, the meninges were lacerated and there were hemorrhagic areas on the brain matter. In his opinion, death of the deceased was due to external injury No. 3 which had resulted in damage to the brain, fracture of the skull bone and intracranial haemor rhage, and which injury was sufficient in the ordinary course of nature to cause death. He was further of the view that all the injuries on the deceased had been caused by a hard and a blunt substance.

6. The defence of the appellant was one of complete denial. As regards his judicial confession, while in his statement in the Sessions Court, he denied having made the same, in his statement in the committal Court, he not only admitted having made the same but also stated that "it is correct".

7. The direct evidence in this case is furnished by P. W. Qadirbux Bozdar who has deposed that he had witnessed the incident from the 'Khera' where he was staying as a guest. The witness has testified that within his view the deceased was given hatchet blows with the blunt side by acquitted accused Ali Murad and blows with Biyano by the appellant. The name of this witness is stated in the F. I. R. which was lodged within 3 hours of the incident. This witness is not related to the deceased or the complainant nor has anything been brought on record to show his interest in the complainant party or hostility towards the appellant. His evidence, however, was assailed by Mr. Muhammad Ibrahim Memon, the learned counsel for the appellant, on the grounds, firstly, that he is a chance witness who has given no reasonable and believable explanation of his being at the scene of offence, secondly, that according to the witness he was guest of one Mitho Khan and was staying at his 'Khera', while the incident is said to have occurred at the 'Khera' of the appellant, thirdly, that he has made no mention of the injury which according to the prosecution was sustained by the appellant in the incident, and lastly, that his testimony with regard to the acquitted accused, Ali Murad, was disbelieved by the learned Additional Sessions Judge, Hyderabad, and that the evidence of witness, in the circum stances, is not divisible.

8. We, however, are of the view that the presence of the witness at the scene of offence is established. Not only does the F. I. R. as also the judicial confession of the accused make mention of him alone as having witnessed the assault on the deceased but further when the S. H. O. went to the scene of offence after the lodging of the F. I. R., he found him present there. Moreover, Mst. Nazo, the 80 years old mother of the deceased, has also stated about the presence of the witness at the scene of offence and has deposed that it was he who had informed her about the attack on the deceased. This fact too is stated in the F. I. R. His staying at the 'Khera' of the appellant cannot be considered unusual for it is quite usual in villages for male guests to be put up at 'Kharas'. The witness is a distinterested person, having neither any vital concern with the complainant party nor any animosity with the appellant party, and as such there is no valid ground for discarding his testimony or even treating it as suspect. The mere fact that the witness has mentioned Mithal Khan as the owner of the 'Khera' where he was sitting, whereas the incident occurred in front of the 'Khera' belonging to the appellant and his father, does not mean that the witness was sitting at a different 'Khera'. The witness has deposed that he had gone to Bachal Lanjwani village. This is admittedly the village where the incident occurred. There is neither any evidence nor is it at all probable that in this village, which according to the testimony of S. H. O. Mohammad Maiook contains some 8 houses only, there would be another 'Khera'. It appears that the witness, who was not a resident of the village, is mistaken as to the person who owns the 'Khera' and since he was put up there by his host, Mithal Khan, he seems to have assumed that it belonged to Mithal Khan. Although the witness has deposed at the appellant's trial that the co‑accused, Ali Murad, had given hatchet blows to the deceased, we consider that this part of his testimony was rightly disbelieved by the learned Sessions Judge in view of his own evidence that the appellant, who was putting up a hedge round his house, carried a hatchet as well as a'Biyano'. Further more, in his statement in the committal Court, with which he was confronted, he had deposed that the appellant had thrown his hatchet at the deceased. In the circumstances, there could tie no question of the co‑accused giving hatchet blows to the deceased. However, in the confession of the appellant, which we will presently consider, there is no mention of any participation of co‑accused, Ali Murad, in the assault on the deceased.

9. The learned Sessions Judge has also strongly relied, and in our opinion rightly so, upon the judicial confession given by the appellant to the Mukhtiarkar and F. C. M. This confession was given by him within 24 hours of his arrest. Although the appellant, in the Sessions Court, retracted from the confession and denied having made it, in his statement in the committal Court, he not only admitted having made it but further has stated that "it is correct". The confession, which is a short one, reads as follows :‑ "Yesterday on 10‑10‑1972 about 8‑00 a.m. I was standing at the 'Khera' on my land. At that time I was working in the field, and was having a wooden 'Biyano'. Qadirbux Bozdar was also sitting there. He had come as my guest. At that time my 'Mama' (materna: uncle) Qadirbux also came there whom I restrained 'You are Bai‑Ghairat' and why you have come at our 'Khera', upon which Qadirbux abused me ; I also abused him in return, and gave him blows with wooden 'Biyano' which hit him on head, arms and other parts of the body, Qadirbux also gave me blunt‑sided hatchet blow which I sustained on my hand. Thereafter police came and arrested me. I also produced the wooden 'Biyano' to the police."

10. The confession stands corroborated in material particulars by the testimony of witness Qadirbux Bozdar, which we have already considered in some details, the medical evidence showing the finding of three injuries, which had been caused with a heavy blunt weapon, on the deceased, the presence of a fresh injury upon the appellant and the recovery of a 'Biyani' stained with human blood, from the hedge of the appellant's house at his pointation. The appellant was examined by the Medical Officer on the morning following the day of the incident who found on his person "a lacerated wound 1 '' x '' x '' deep on the mid‑parietal region" which in his opinion had been caused with a hard and blunt substance such as a lathi or the back side of a hatchet and which was about 24 hours old.

11. The learned counsel for the appellant has assailed the recovery of the 'Biyano' on the ground that Mashir Ali Muhammad has not supported the recovery and further the second mashir was not examined, though the learned A. P. P. Incharge had submitted an application that he be summoned. We find no substance in the contention of the learned counsel that the evidence regarding the recovery of the `Biyano' is not trustworthy. S. H. O. Muhammad Malook, who has deposed to having recovered it in the presence of the mashirs at the pointation of the appellant, has not at all been cross -examined on this point though be has been cross‑examined at some length on other points. Furthermore, though Mashir Ali Muhammad has tried to give obliging evidence in favour of the appellant, even he has testified that it is correctly mentioned in the mashirnama that the appellant voluntarily produced before the police from the hedge of his house a wooden `Biyano' in two parts, which was stained with blood.

12. There is also evidence of recovery of blood‑stained clothes from the person of the appellant, but this piece of evidence does not carry the prosecution case any further in view of the fact that the appellant had a bleeding injury on his person and as there is no evidence that the blood on the clothes was of a different group from that of the appellant, the blood on the clothes was in all probability his own.

13. We are satisfied from the testimony of witness Qadirbux Bozdar, the judicial confession of the appellant, the presence of an injury on his person and the evidence of the recovery of the blood‑stained 'Biyano' that the appellant caused the fatal injuries to the deceased by means of the deadly `Biyano'.

14. It only remains to be considered whether in causing the injuries to the deceased, the appellant had the necessary intention to kill him. The deceased was admittedly the real maternal uncle of the appellant. The dispute between them was a fairly trivial one, arising on account of the deceased constructing, in opposition to the wishes of the appellant, his house on the land of the appellant, for which, however, he had obtained the permission of the appellant's father, to whom the land belonged. The attack on the deceased was clearly a sudden and unpremeditated one. Moreover, it was preceded by an exchange of hot words and perhaps abuses. Then the weapon of offence was an unusual and unwieldy one and not ordinarily designed for attack or at any rate for causing death or fatal injuries. Though the appellant had caused three injuries to the deceased with the same, two of them, including one on the head, were simple in nature. Finally, there is the important fact that the appellant himself had sustained in the incident a head injury, which apparently was caused with a hatchet. All these circum stances militate against the appellant having the intention to kill the deceased.

15. In Saindino v. Emperor (A I R 1915 Sind 23), it was found that the four accused attacked the deceased with lathis and beat him with such brutality that he died. It was held that such an assault did not establish that the accused intended to cause death or such bodily injury as is sufficient in the ordinary course of nature to cause death.

16. The case of Nga Po Nyein v. Emperor (A I R 1933 Rang. 338), however, appears to be more to the point so far the weapon employed is concerned. In that case the accused gave one blow on the spur of the moment with a wooden handle of a hoe, measuring 3 feet and 10 inches and weighing 82 tolas, on the head of the deceased, who died in consequence of the injury on the following day. It was held that the offence which the accused had committed was not murder but culpabale homicide not amounting to murder. In taking this view, reliance was placed on the decision of that Court in Baba Nava v. Emperor (A I R 1928 Rang. 64) wherein the facts were that the accused had given one blow on the head of the deceased with a weapon weighing 621 tolas and ensuring 82 inches in length. It was held that since only one blow was given and that too on the spur of the moment, the intention requisite for murder cannot be presumed.

17. In Ramzan v. State (P L D 1961 Kar. 673), the deceased was found to have sustained two injuries, one an incised wound on the left parietal region, cutting the bone into two pieces, and the other being a contusion on the left eye‑brow. Although the case of the prosecution was that these injuries had been caused with a hatchet, it was considered that the possibility of their being caused with brick‑bats was not excluded. In the circumstances of the case, the conviction was altered from section 302 to section 304, Part II.

18. Reference may also be made to the cases of Said v. State (1968 P Cr. L J 1836) and Bahar Khan v. State (1972 P Cr. L J 411). In the former case, it was found that though the deceased and the appellant had cordial relations with each other, on a sudden quarrel ensuing between them, the appellant, in the heat of the moment and without taking undue advantage, gave a blow with the wooden part of a plough on the head of the deceased, and the resulting injury proved fatal. It was held that the appellant did not intend to cause death of the deceased and accordingly his case fell within Exceptions I and IV to section 300, P. P. C. In Bahar Khan's case, the facts were that on an exchange of hot words taking place between the deceased and the appellants, the latter gave sota blows to the deceased, who was empty‑handed. One of the blows hit him on the left side of the head, in consequence of which he fell down and died on the following day. A Division Bench of the Lahore High Court held that the circumstances did not prove intention to kill but merely to give a beating to the deceased and accordingly the conviction was altered from section 302 to section 304, Part II, P. P. C.

19. The above authorities fortify us in our view that the requisite intention on the part of the appellant either to kill the deceased or to cause him such bodily injury as is sufficient in the ordinary course of nature to cause death is not established. However, looking to the nature of the fatal B injury caused to the deceased and the force which must have been employed in causing the same, the appellant must be presumed to have the knowledge that his act would result in death. We would accordingly alter his conviction and sentence of imprisonment for life under section 302, P. P. C. to five years' rigorous imprisonment under section 304, Part II, P. P. C. Order accordingly,