P L D 1969 Lahore 842 (PLP)

SHAUKAT ALI, J.

‑Muhammad Bakhsh (3 l) son of Sonhara and Muhammad Bakhsh (27) son of Haider, cultivators by profession, residents of Chorratta, District Dera Ghazi Khan, were charged under sections 302/307/34, P. P. C., in the Court of Sessions Judge, Dera Ghazi Khan. The learned Sessions Judge found them guilty under section 302/34, P. P. C. He sentenced Muhammad Bakhsh son of Sonhara to death, while Muhammad Bakhsh son of Haider was sentenced to transporta?tion for life. Both appeal separately. We have to consider the question of the death sentence passed on Muhammad Bakhsh son of Sonhara.

2. The facts of this case can be described in a narrow compass. It is said that both the prisoners were friends. Muhammad Bakhsh son of Sonhara attempted to develop intimacy with Mst. Rasti wife of Muhammad Bakhsh P. W. Muhammad Bakhsh P. W. brought this to the notice of his elders, who reprimanded the accused. A day before the occur?rence both the accused passed from the Basti of Muhammad Bakhsh complainant and Karim Bakhsh deceased. The com?plainant and the deceased told them that they should not come to their village. This led to an altercation between the accused on the one side and the complainant and the deceased on the other. The accused threatened the complainant and the deceased with dire consequences. This motivated the present occurrence.

3. On 17th December 1966 at about noon time, Muhammad Bakhsh P. W. and Karim Bakhsh deceased were on their way to their Basti Chah Dauri Wala in the area of village Chorratta. When they reached Chowk Chorratta both the prisoners who were sitting in front of the shop of Wahid Bakhsh got up. Muhammad Bakhsh son of Sonhara had a hatchet while the other had a stick, Muhammad Bakhsh son of Haider lauched the attack and wielded a stick blow on the head of Muhammad Bakhsh P. W. He managed to escape unhurt. The stick struck the cycle. Muhammad Bakhsh son of Sonhara gave a hatchet blow which landed on the head of Karim Bakhsh. He fell town, Wahid Bakhsli (not produced), Illahi Bakhsh and Muhammad Ramzan P. Ws. witnessed the occurrence. They apprehended Muhammad Bakhsh son of Sonhara while the other accused decamped.

4. Leaving Wahid Bakhsh, Illahi Bakhsh and Muhammad Ramzan to guard the injured and the accused, Muhammad Bakhsh P. W. proceeded to Police Station Sadar Dera Ghazi Khan, which is at a distance of two miles from the place of occurrence: He made the statement Exh. P.A. at 12 noon the same day which was scribed by Ghulam Rasul Sub‑Inspector P. W.

12. After that he proceeded to the spot. He arrested. Muhammad Bakhsh son of Sonhara accused. Muhammad Ramzan P. W. produced blood?stained hatchet P. 1 and the same was made into a sealed parcel by the investigating officer vide memo. Exh. P. B. The deceased was lying at the spot in unconscious condition. The Sub‑Inspector prepared the injury statement and then despatched him to the Civil Hospital, Dera Ghazi Khan. He took into possession blood‑stained earth from the spot and made into a sealed parcel vide Memo. Exh. P. C. The same day, he received ruqqa Exh. P. C. of the doctor that Karim Bakhsh had expired. On this information the Sub‑Inspector proceeded to Civil Hospital, Dera Ghazi Khan and prepared the inquest report relating to the deceased and then despatched the dead body to the mortuary for post‑mortem examination. He arrested Muhammad Bakhsh son of Haider on 19th December 1966. He was carrying a stick P.

6. It was taken into possession ride Memo. P. J. He also took into possession cycle P. 2 vide Memo. P. D.

5. The autopsy on the dead body of Karim Bakhsh was conducted by Doctor Muhammad Ali P. W.

1. Medical Officer, District Headquarters Hospital, Dera Ghazi Khan, on 18th December 1966, at 10‑45 a.m. and the following injury was found thereon :‑ A cut, 6" x ?" cutting the underlying bones, both parietal bones completely with protrusion of the brain matter at the top of the head extending longitudinally from the front of the back of the head. The injury was caused by sharp‑edged weapon, and was grievous. Death in the opinion of the doctor was due to shock and cerebral haemorrhage caused by the injury which was sufficient to cause death in the ordinary course of nature.

6. The above story of the incident is supported by the three witnesses of the occurrence, namely, Muhammad Bakhsh, Muhammad Ramzan and Ilahi Bakhsh. Muhammad Bakhsh P. W. is the relation of the deceased. Mere relationship in itself is no ground for discarding his testimony. This witness has given a consistent account of the occurrence and has supported the prosecution case in its entirety. His evidence is not open to serious objection. The only criticism made against his evidence was that in cross‑examination he deposed that Ilahi Bakhsh P. W. was previously known to him, while Ilahi Bakhsh stated that he did no know the complainant and the deceased before this occurrence. This minor discrepancy cannot be a ground for discrediting the testimony of this witness. The other two witnesses of the occurrence are independent. They fully armed the evidence of this witness. Their evidence is consistent, convincing and straightforward. There is nothing in their cross‑examination to discredit the evidence. The story these witnesses tell appears to us to be truthful one. Apart from this, the prosecution also exa?mined Ilahi Bakhsh Kaura and Pir Bakhsh P. Ws. who deposed to motive. Nothing has been elicited in their cross‑examination, which may throw any doubt on their testimony. The ocular account finds support from the evidence of motive, the medical evidence and the recovery of blood‑stained hatchet.

7. Muhammad Bakhsh son of Sonhara protested innocence. He made the following statement from the dock :‑ "At Chah Dauri Wala there is only one house of Jats where I live with my parents. The rest of the population is of Balochis and Khosa Tribe predominates the Ilaqa. They are big Sardars and we are ordinary cultivators. A few months before the occurrence Muhammad Bakhsh P. W. and his elders started suspecting me for intimacy with Mst. Rasti (wife of Ivfuhammad Bakhsh P. W.) I gave assurance to the Khosa tribe about my innocence and took oath. The Khosa tribe insisted that I and my parents should leave our residence at Chah Dauri Wala. We promised to do it whenever we could get abode somewhere else. On account of fear from Khosa tribe I used to stay away during day time and go, to my house during night. A day before the present occurrence Muhammad Bakhsh and his elders saw me at Chah Dauri Wala. They got enraged. I ran away from there. On the following day I approached Ghulam Muhammad Klare to provide us with a house in his neighborhood. He met me at Chowk Chorratta where he cultivated land at a distance of few feet from the Ghazi Ghat Pacca Road. He was cutting date bushes with hatchet P.

1. He sat with me and said that he would provide us with a house. All of sudden P. W. 1 Muhammad Bakhsh and Karim Bakhsh : deceased armed with sotas fell upon me. 1 at once picked up the hatchet of Ghulam Muhammad lying nearby and wanted to run away. I had hardly gone two or three paces on the pacca road when Karim Bux deceased aimed a blow at my head. I at once in the right of private defence gave him a hatchet blow. He fell down. I stood up there. Muhammad Bakhsh Wadani is neither my friend nor was with me at the time of occurrence. I never intended to cause the death of the deceased." He examined Ghulam Muhammad in defence in support of his version.

8. Muhammad Bakhsh son of Haider pleaded not guilty to the charge and stated that he was innocent and the witnesses who are related to the deceased had falsely implicated him due to party faction. No evidence was called in defence.

9. Mr. M. Ismail Bhatti, learned counsel for the appellants stoutly contended that so far as Muhammad Bakhsh son of Haider was concerned he did not inflict any injury on the deceased and that he ran away before his companion attacked the deceased. At the maximum the evidence on the record shows that he attempted to give a stick blow to Muhammad Bakhsh P. W. who escaped and it hit the cycle. This in itself was not enough to invoke the aid of section 34, P. P. C. successfully, as it must be shown that the criminal act was done in concert and pursuant of the pre‑arranged plan.

10. It is difficult, if not impossible, to procure direct evidence to prove the intention of an individual, in most cases it has to be inferred from the act of the accused, his conduct or other relevant circumstances of the case. In face of this contention we have examined the ocular account minutely. We are of the view that once the assault was made and once the stick or the hatchet was used, it would finish in almost in the twinkling of an eye. It would not take more than a minute for the incident to conclude. It is in evidence that Muhammad Bakhsh son of Haider prisoner was sitting along with Muhammad Bakhsh son of Sonhara and he was the first to launch the attack, thus facilitated his companion to inflict the injury on the deceased. Considering all the circumstances on the record it can be safely inferred that Muhammad Bakhsh son of Haider must have been acting in concert with Muhammad Bakhsh son of Sonhara in pursuance of a concerted plan. The learned Sessions Judge was right to invoke the aid of section 34, P. P. C. in his case.

11. It was next urged that the defence plea bears hall mark of truth and the plea of defence specifically raised by Muhammad Bakhsh son of Sonhara has not received the attention it deserved. It was also suggested that the deceased and Muhammad Bakhsh P. W. had no occasion to be at Dera Ghazi Khan and were there in search of the accused, Muhammad Bakhsh son of Sonhara. This argument was also addressed before the learned Sessions Judge who gave cogent and convincing reasons to discard it. The learned Sessions Judge took the view that the absence of any injury on the person of Muhammad Bakhsh son of Sonhara, who according to the defence was assaulted by two persons, presented unsatisfactory aspect of the defence story. He further observed that if the complainant and the deceased were in search of the accused to murder him they would have gone armed with deadly weapons and would not have selected weapon like sticks. As to the contention that there was no occasion for the complainant and the deceased to be at Dera Ghazi Khan, he took the view that it is in the first information report which was lodged promptly that Karim Bakhsh deceased along with Muhammad Bakhsh P. W. had gone to Dera Ghazi Khan to purchase manure and it was on their return from Dera Ghazi Khan that the occurrence took place. He also held that if the deceased and Muhammad Bakhsh P. W. wanted to cause the death of Muhammad Bakhsh son of Sonhara the proper occasion for them was to murder him a day earlier when he was available in their village. He also made a scathing criticism of the defence evidence and repelled the argument of the defence.

12. In this case, Muhammad Bakhsh son of Sonhara accused had specifically pleaded self‑defence. It is now well settled and must be remembered that the plea of self‑defence can be allowed on the basis of very clear evidence available on the record, which would go at least to the extent of showing that it was reasonably possible that the accused person had acted in self‑defence. The evidence on the point of self‑defence is contained in the testimony of Ghulam Muhammad D. W. The learned Sessions Judge dealt with the evidence of this witness at length and came to the conclusion that he was a trumped up witness. It would be idle on our part to recapitulate the reasons. Suffice it to say, that the defence evidence is an afterthought. Furthermore, the statement of the accused as to the description of the scene of incident is a fanciful story. We have endeavoured to reconstruct the scene as pleaded by Muhammad Bakhsh son of Sonhara, but it is difficult to accept it. It is hard to believe that the deceased and the prosecution witnesses failed to inflict a single bruise on the accused, though they had gone there with the intention to kill h m. To our mind the plea of self‑defence raised by Muhammad Bakhsh son of Sonhara is difficult to accept, in face of the inde?pendent prosecution evidence on the record.

13. Learned counsel for the appellants next contended that Muhammad Bakhsh son of Sonhara administered one hatchet blow and the intention of the appellant was merely to inflict grievous hurt on the deceased and the offence committed by him did not amount to murder. In support of this contention he cited Parmeshri Dad w Emperor (A I R 1934 Lah. 332), Thakar Singh and another v. Emperor (A I R 1935 Lah. 97), Muhammad Bashir v. Crown (P L D 1950 Lah. 165), Anwar and another v. The State (P L D 1965 Lah. 378) and Pandurang and others v. State of Hyderahad (A I R 1955 SC 216). In Parmeshri Das v. Emperor the assault was unpremeditated and was committed by an impulsive young man as a result of sudden excitement and neither of the blows was aimed at a vital part of the body. Shadi Lai, C. J., and Abdul Rashid, J., held that the accused had no intention to cause death or such bodily injury as was likely to cause death and that at the most the accused can be burdened with the knowledge that his act was likely to cause death and convicted him under section 304(11), Penal Code. In Thakar Singh and another v. Emperor, it was held that the common intention of the accused was merely to inflict grievous hurt and not to cause death. We feel it difficult to follow the reasons behind the determination that the common intention of certain assailants was to cause grievous hurt and not to cause any more serious effect, like causing death, once the assailants decided to cause hurt. In fact, we are of opinion that it is difficult to imagine people determining before hand that they would cause nothing more than grievous hurt. Speaking for our?selves it is difficult to accept the reasonings therein. In Muhammad Bashir v. Crown, it was observed that the motive does not appear to be sufficiently strong for the accused to intend to cause the death of the deceased. He, however, certainly had the knowledge that the injuries with a knife might lead to the death of the woman he was injuring. The intention to cause death is a different matter. We feel it also difficult to follow this judgment as persons could be guilty of murder without an adequate motive. In Anwar and another v. The State, the weapon used was a baton of an ordinary nature. In Pandurang and others v. State of Hyderabad their Lordships held that a blow on the head with an axe which penetrates half an inch into the head is likely to endanger life, and, therefore, the offence falls within the pale of section 326, Penal Code.

15. We have examined the injury on the deceased which was deposed to by Doctor Muhammad Ali, Medical Officer, District Headquarters Hospital, Dera Ghazi Khan. According to the Doctor there was a complete compound fracture of both parietal bones. The membranes of brain were torn and brain matter was torn and protruding out. Cerebral blood vessels were completely cut. We have seen the hatchet. It is a formidable one. The injury was on the vital part of the body and the attack was brutal and pre‑planned. An injury on the vital part is almost invariably a proof of intention to cause death. In face of the medical evidence and the nature of injury, we are of the o view that in the cases of the present type, the first, second and the fourth clauses of section 300 of the Pakistan Penal Code are clearly applicable and the author of the injury is liable under section 302, P. P. C. This view of our finds support from the previous cases of this Court and also from the Supreme Court of India. In Preman and another v. Emperor (A I R 1928 Lah. 93), Shadi Lal and Addison, JJ., held that there can be no doubt that a person delivering a violent blow with a lethal weapon like a dang on a vulnerable part of the body, such as the head, must be deemed to have intended to cause such bodily injury as he knew was likely to cause the death of the person to whom the injury was caused, In Sewa Singh v. Emperor (A I R 1930 Lah. 490), Addison and Hilton, JJ., affirmed the view expressed in Prernan and another v. Emperor. In Sultan and others v. Emperor (A I R 1931 Lah: 749.), Bhide and Tapp, JJ., observed that a single blow can be as effective and fatal as several blows which has indeed happened in the present case. It is the intention behind the blow and the other concomitant circumstances by which the sentence should be determined. In Hayat v. The State (P L D 1959 Lah. 474), Shabbir Ahmad and Masud Ahmad, JJ., held that it can hardly be doubted that it is known to all adults that if the skull of a person is given a serious injury, death of the victim is almost certain and though it is true that some persons survive even though their skulls were badly wounded, it is not the law that even in cases where serious injuries to the skull have resulted in death, it should be held that the assailant did not intend to cause death or a bodily injury was likely in the ordinary course of nature to cause death. At any rate, the act of causing an injury which causes death, to the head of a person is so imminently dangerous that it cannot but be known that it must in all g probability cause death and the fourth clause of section 300 of the Pakistan Penal Code, wherein murder is defined, will be fully, applicable to such an injury which has had fatal consequences. In Muhammad Arif v. The State (P L D 1962 Lah.‑498), the blow was aimed at one person, but it struck another on the head. A Division Bench of this Court comprising Abdul Aziz Khan and A. R. Khan, JJ., observed that the conviction under section 302, P. P. C. was proper. In Virse Singh v. State of Punjab (A I R 1955 S C 465), Jafer Imam, P. B. Gajendragadkar and V. Bose, JJ., delivered themselves as under:‑ "It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the inten?tion to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences, and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."

14. The upshot of the whole discussion is that we see no raison to interfere either with the conviction or the sentence. We dismiss the appeal and confirm the sentence of death of Muhammad Bakhsh son of Sonhara.??????????? S. Q.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.