1976 PLP 199 (SCMR)

ANWARUL HAQ, J,‑-‑The appellant, Aurangzeb, along with his sister Mst. Irshad Bibi, was tried by the learned Sessions Judge, Campbellpur, for the murder of an unmarried girl Mst. Khatoon Bibi, aged about sixteen years, while Mst. Irshad Bibi was acquitted, the appellant was convicted and sentenced to death. The conviction and sentence have been confirmed by a Division Bench of the Lahore High Court by its judgment dated the 20th of November 1973. Leave to appeal was granted only to examine the propriety of the sentence awarded to the appellant. The occurrence took place on the 14th of April 1971, at about sun‑sot time in the street in village Taja Baja within the jurisdiction of Hazro Police Station in the district of Campbellpur. At that time, the deceased Mst. Khatoon was proceeding to the house of one Abdul Rehman for the purpose of baking bread in an oven. When she reached near the house of Abdul Rehman the appellant and his sister Mst. Irshad Bibi tried to drag her towards their house, at which the deceased raised an alarm which attracted Ghulara Sarwar (P. W. 10), Muhammad Shafi (P. W. 11) and Fazal 0adir (P. W. 12). In the presence of these witnesses the appellant inflicted these chhuri blows on the deceased the first blow fell on bar left arm, the second on the right elbow, and the third on the left buttock, The appellant also gave three or four kicks on the abdomen of the deceased, who had fallen on the ground on receiving the chhuri blows. Thereafter, the appellant and his sister ran away from the spot. The decreased was carried to Hazro Police Station, but expired before reaching there. Ghulam Sarwar lodged the first information report at 10 p.m. The appellant was arrested the next day, and while in custody, lead to the recovery of the blood‑stained chhuri from an earthen bin in his kotha. The motive for the assault was stated to be the appellant's annoyance at the refusal of the father of the deceased to give her hand to the appellant in marriage. The autopsy of the dead body of the deceased disclosed the three chhuri blows as stated above, besides a contusion 8' x 5' on the front of the lower part left side of abdomen, the left pubic region and the front of upper part of the left thigh. On dissection it was found that under this injury the small intestines bad been ruptured, there was profuse effusion of blood in the muscles of the left lower abdomen, the pubic region and the upper part of the left thigh, anal the peritoneum was congested and inflamed. In the opinion of the Doctor, death was due to shock and haemorrhage result ing from this injury, which along was sufficient to cause death in the ordinary course of nature. The three incised injuries were found to be simple in nature. The appellant pleaded not guilty at the trial, asserting the: he had been involved merely on suspicion. Ho denied the recovery of the blood‑stained knife at his instance. Both the Courts below have accepted the ocular account of the incident as given by the witnesses Ghulam Sarwar, Muhammad Shafi and Fazal Qadir, in spite of the fact that they were related, in varying degrees, to the deceased. Both the Courts have found that these witnesses had no motive to falsely implicate the appellant. They have also relied on the corrobora tion provided by the incriminating recovery of the blood‑stained knife at the instance of the appellant. While granting leave to appeal, it was observed by this Court that that was overwhelming evidence to show that it was the appellant who had caused the death of Mst. Khatoon Bibi. We have no hesitation in rearming this conclusion. We find that although in the original first information report there was no mention of the kick blows given by the appellant on the abdomen of the deceased, yet this fact was mentioned in a supplementary statement made by the first informant Ghulam Sarwar, during the investigation that night, before the discovery of the abdomen injury on medical examination. It is thus clear that the death of Mst. Khatoon was the result of the hick blows given by the appellant in the presence of the witnesses. Mr. Zafar Mahmood learned counsel appearing for the appellant attempted to argue that the offence committed by the appellant did not amount to murder, as he lead no intention of causing death, which fact was apparent from the stature of the knife injuries inflicted by him on the deceased, namely, simple injuries on the non‑vital parts of the body. Learned counsel submitted that if the appellant had intended to cause death, it would have beer the simplest thing for him to inflict knife blows on the vital parts of the body of the deceased, but he did not do so. According to the learned counsel, tae appellant could not have any knowledge that the kick blows delivered by him could cause death. In view of the fact that leave to appeal has not been granted in this case to examine the nature of the offence, but only the propriety of the death sentence, it is not open to the learned counsel to re‑agitate this question. The dictum in Noora v. The State (P L D 1973 S C 469), to the effect that once leave to appeal has been granted the whole case is open before the Court, is not attracted to this case, for the observations made therein do not have to this case, for observation made therein do not have reference to a point which has been specifically dealt with and decided against the appellant at the time leave to appeal is granted. It seems to us that for this reason it is not possible to go into the question raised by Mr. Zafar Mahmood. Even otherwise, we find that there is no merit in the submissions made by the learned counsel. The sketch of the knife recovered at the instance of the appellant shows that it had a blade 6 ' long. It was thus a deadly weapon of attack, and the appellant must have intended to cause death when he launched the assault on the deceased with this knife. It is a different matter that he did not succeed in inflicting any knife blows on the vital parts of the body, as apparently the unfortunate girl must have tried to save herself, as is evident by the presence of incised injuries on her left wrist and her right fore arm. Even the stab wound on her buttock suggests that she must have tried to run away from the appellant. In these circumstances, it is not possible to accept the contention that the appellant did not have any intention to cause death, or such bodily injury as was likely to cause death. It also appears that having failed in his attempt to kill the girl with the knife, he gave powerful kick blows on her abdomen, which was certainly a vital pa of the body. The dimensions of the injury caused by the kicks, namely a contusion 8' x 5 , show that repeated blows must have been given. We consider, therefore, that the offence committed by the appellant clearly falls within the definition of murder and he has been rightly convicted of the same. As regards the question of sentence, it was submitted by the learned counsel that, in the first place, the appellant had no intention to kill secondly, that it was a crime involving the excitement of passion as well as a sense of honour ; and thirdly, that the appellant had been in the con demned cell since 13‑10‑1971, a period long enough to justify the conversion of the death sentence into one of imprisonment for life. We regret we see no merit in these submissions. We have already negatived the contention that the appellant did not intend to cause death. As regards the second ground urged on his behalf, we notice that all that had happened in this case was that the girl's father bad refused to accept the appellant's proposal for the band of the girl. This is not an infrequent occurrence, as it is the privilege of the parents in our society to decide these matters for their daughters. A refusal by them could never justify the kind of conduct in which the appellant indulged on this occasion. There was no question of family honour involved, for the girl was novel betrothed to the appellant. It is true that the appellant was sentenced to death by the learned Sessions Judge on 13‑10‑1971, and since then he has been in the condemned cell. However, considering the number of murder cases which are now-a‑days coming before the High Courts as well as the Supreme Court, the time taken in the finalisation of this case cannot be regarded as extraordinary, so as to justify the conversion of the death sentence into imprison, went for Life on the ground of delay. Accordingly, no justification is made out for this Court to interfere with a legal sentence imposed by the trial Court and confirmed by the High Court. However, the appellant may if so advised move the executive authorities in this behalf. For the foregoing reasons we see no merit in this appeal and hereby dismiss the same. Appeal dismissed.