P L D 1953 Lahore 63 (PLP)

RAHMAN, J.‑--Nazir Ahmad, aged about 18, his maternal uncle Sardar, and his first cousin, Manzoor Hussain, were tried under section 302 read with section 34 of the sPakistan Penal Code by the learned Sessions Judge, Sialkot. Manzur and Sardar were acquitted by the learned Judge but Nazeer Ahmad was convicted under section 302 of the P. P. C. and sentenced to transportation for life. He has appealed. The facts are that the family of the accused occupied the upper storey of a house, the ground floor of which was allotted to one, Asmat Ullah (P. iW. 2). The appellant is the son of Ahmad Din Patwari, Both Ahmad Din and Asmat Ullah are refugees from Gurdaspur District and had settled in village Gojra in the Sialkot after the partition. The two families had frequent quarrels as the Paiwari wanted the whole house to himself while Asmat Ullah asserted his own right to occupy the house. On the 8th August 1951 at about 8 a.m. the Patwari's wife began abusing Asmsat Ullah's wife, Mst. Khudaija Begum (P. W. 8). The latter paid her back in the same coin. Three accused were present in the upper storey and they are said to have come down to the ground floor to chastise Mst. Khudaija Begum. Nazeer Ahmad and Sardar were armed with knives while Manzur was empty- handed. Before this happened, Asmat Ullah, apprehending trouble from the Patwari's family, had gone to fetch Muhammad Din and others so that they might use their good offices in the dispute. The appellant and Mst. Khudaija Begum exchanged abuses and then the former, while trying to stab the woman, caused two injuries to Mst. Ruqia Begum, a child aged 2J, which the woman was carrying in her lap. Mst. Klaudaija Begum placed the child on a cot and it is alleged that Sardar and Manzoor began grappling with her. Just then Asmat Ullah arrived with Muhammad Din, Bashir and Buta. The accused persons ran upstairs, Nazeer leaving his Knife at the spot. The father of the girl lodged the first information report in the case, at 1 p.m., the same day, at Police Station Daska which was six miles away. The girl was taken to the hospital but she died. The defence of the accused was a simple denial of the prosecution allegations against them. Sardar and Manzoor set up alibi pleas while Nazeer Ahmad asserted that a fight had taken place between the women of his family and Mst. Khudaija Begum and professed ignorance about what had happened. One witness Mst. Allahditti alias Piranditti, who was originally cited as a prosecution witness but given up by the Crown prosecutor, was examined in defence. The medical evidence shows that the child had sustained two incised wounds, one 4 " long, vertical, on the abdominal region and the other, 1" x " on the right side of the chest. Under the first injury the peritoneum as well as the stomach was cut and the small anti large intestines were protruding out of the wound. Under the second injury the pleura was cut and the right side of the heart was full of blood. Mst. Khudaija Begum had been examined by a Lady Doctor who deposed that she found four bruises on various parts of her body. These were simple injuries but the duration coincided with the time of the occurrence. In the first information report, Asmat Ullah used language Which, suggested that the actual stabbing eras witnessed by him as well as by his companions, Muhammad Din, Bashir and Buta, Muhammad Din and Buta were examined in the committing Court as prosecution witnesses but were declared to be hostile to the prosecution and, though their names were mentioned in the calendar of witnesses for the trial, they were given up by the Crown prosecutor in the Sessions Court. Similar Mst. Allahditti was not examined by the prosecution and was eventually produced in defence. Bashir Ahmad figures amongst the P. Ws. in this case and he deposed as P. W. 9 that Asmat Ullah came to him with the complaint that a quarrel was going on at his house and that he apprehended danger to the family. The witness accompanied him to the spot and there found Mst. Ruqia deceased in an injured condition. Some women had assembled there. On enquiry, Mst. Khudaija Begum told him that Nazeer Ahmad accused bad injured her daughter with a knife. A knife lay at the spot. He thus did not claim to be an eye‑witness of the occurrence. This position was also adopted by Asmat Ullah when he appeared as P. W.

2. He merely added that when they arrived, Sardar and Manzur were maltreating his wife. Mr. Jalal‑ud‑Din Qureshi on behalf of the appellant has seized on this circumstance for the argument that the prosecution had failed to produce some of the alleged eye‑witnesses and their non- production should raise a presumption against the prosecution case being true. Mr. Abdul Aziz Khan on behalf of the Crown has controverted this position. He has contended before us that it was not incum bent on the prosecution to examine witnesses whose reliability according to the Crown, was open to doubt. In support of his position he has relied on a recent judgment of the Federal Court in Allah Yar v. Crown, (Cr. App. No. 3 of 1952=P L D 1952 F. C. 148) decided on the 28th April 1952, Emperor v. Kasamali Mirzaali (I L R 1942 Bom. 384 (F. B.)), Queen Empress v. Durga (I L R 16 All. 84 (F. B.)) and Mahant Narain Das v. Crown (I L R 3 Lah. 144 (D. B.)). These authorities amply support the proposition that the Crown is not bound to call before the Court a witness who, it believes, is not going to speak the truth. It would be, however, desirable in such cases that the A witness or witnesses in question should be called to remain in attendance so that if the defence wishes to examine them, the accused should have an opportunity of doing so. Mr. Jalal‑ud‑Din Qureshi drew our attention to certain observations at page 227 of Nazar Hussain and others v. Crown (P L D 1951 Lahore 222), which expressed strong disapproval of the course adopted by the Public Prosecutor in giving up a witness in that case, on the ground that he had been won over, with the result of withholding evidence that was likely to affect the result, of the case. On the facts, however, that case is distinguishable inasmuch as my Lord the Chief Justice, who made the observations in question, made it clear in another part of his judgment that he doubted whether the Public Prosecutor was right in describing the witness as having been won over. There was no material on the record in that case suggesting that he was not expected to tell the truth. We agree with the learned Advocate‑General that the prosecution was under no duty to put into the witness box persons whom they believed to be unreliable. There is no doubt, however, that the fact, that some of the alleged eye‑witnesses in a case may not be inclined to support the prosecution story, has to be considered along with the evidence actually produced in the case and the value of the evidence on record judged in this setting. Direct evidence of the commission of the offence has been furnished in the present case by Mst. Khudaija Begum (P. W. 8) and her mother‑in‑law, Mst. Murad Bibi (P. W. 10). Both were inmates of the house of Asmat Ullah and their presence at the time of the occurrence at the spot was natural. The mere fact that Mst. Murad Bibi was not mentioned as a witness in the first information report cannot lead to the inference that she had seen nothing. She is an old lady who is hard of hearing and with somewhat weak eyesight. That may have been the reason for omission of her name from the first information report by the informant. The story that these two women have told, is quite consistent and makes it clear that Nazeer Ahmad appellant caused the death of the child by stabbing it while Mst. Khudaija Begum was carrying it in her lap The impression these women had was that Nazeer Ahmad had aimed the blow at Mst. Khudaija Begum but hit the child incidentally. The learned counsel for the appellant tried to make much of the fact that according to these women, three blows were given by the appellant whereas the medical evidence shows that the child was stabbed twice only. In this respect the women may have retained a mistaken impression but there can be hardly any doubt about the general accuracy of their account. Their testimony receives corroboration from the statement of Bashir Ahmad (P. W. 9) to whom on arrival at the spot, Mst. Khudaija Begum gave out immediately that Nazeer Ahmad had stabbed her daughter with a knife. The finding of the knife at the spot also supported her statement. Mst. Allahditti, the sole defence witness, is a neighbour of the parties. She averred that she had gone to the house of Asmat Ullah that morning and saw Mst. Khudaija Begum sitting on a cot with her daughter who was ailing. Just then, Mst. Sardaran wife of Ahmad Din Patwari, and her two sisters, came down from the upper story to the ground floor. These three women began exchanging abuses with Mst. Khudaija Begum. The latter went into the dalan with her child while the witness remained sitting outside. Latter, the witness went with one, Mst. Tajo, into the dalan to separate the women and she then saw the girl sitting in the doorway of the dalan with a small injury in her abdomen. She denied that the intestines of the child were protruding out of the wound. In this she is contradicted by Bashir P. W. The significant fact however is that she had clearly stated under cross‑examination that Mst. Khudaija Begum P. W. had alleged at that very time that Nazeer Ahmad accused had injured her daughter. On her own showing this witness had not seen the attack but tried to suggest that the fight was only between the women. If that had been the case there was absolutely no reason why Mst. Khudaija Begum should have immediately charged Nazeer Ahmad with having stabbed her daughter. On behalf of the appellant it was suggested that the stabbing may have been done by Sardar and Nazeer Ahmad was substituted for him because the family of Asmat Ullah had daily disputes with the Patwari's family and consequently they wanted to wreak vengeance against the Patwari by implicating his son. This argument is far fetched and unconvincing. We are unable to agree that there was any motive for Mst. Khudaijja Begum to exonerate the real assailant completely and to implicate Nazeer Ahmad falsely instead. After all, even Sardar was a relative of the Patwari and if he had been the real culprit he could not have been allowed to go scot‑free. The argument might have had some force if besides the real culprit, some one else had been attempted to be involved. The fact, however, that only one assailant was named in this connection, points to the bona fide of the prosecution story. The question then is as to the nature of the offence committed by Nazeer Ahmad. Mr. Jalal‑ud‑Din Qureshi had argued before us that the offence attributable to Nazeer Ahmad was one falling under section 304‑A of the Pakistan P. C. or at the most one within the purview of section 304 and not section 302 of the P. P. C. He referred in this connection to section 301, P.P.C. which lays down that if a person by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death be intended or knew himself to be likely to cause. The question, therefore, resolves itself into an enquiry as to the intention of the appellant in relation to the attempted attack on MR. Khudaija Begum. Considering that Nazeer Ahmad came down from the upper storey, armed with a knife and that he apparently aimed two blows with that weapon at the chest or abdominal region of Mst. Khudaija Begum, so that he hit the child in the lap both times, the inference would be legitimate that he intended to cause such injury to the woman as would be sufficient in the ordinary course of nature to lead to death. He was aiming at a vital part with a dangerous weapon like a knife. On this view his act in killing the child incidentally would amount to murder punishable by section 302, P. P. C. It cannot be said, in these circumstances, that he had merely intended to cause simple or grievous hurt with the knife to Mst. Khudaija Begum. He may have been incensed by Mst. Khudaija Begum's exchanging abuses with the appellant's mother and the motive, therefore, that actuated the appellant cannot be said to be an insignificant one, in the circumstances of this case. Mr. Jalal‑ud‑Din Qureshi invited our attention to Jama v. The Empress (28 P R 1888 (Criminal)), Dyal Singh and others v. King‑Emperor (A I R 1924 Lah. 47) and Muhammad Bashir v. Crown (P L D 1950 Lah. 185) as authorities supporting his stand. In the first case the facts were that an ordinary fight had taken place between the complainant and the father of the accused. The latter seeing his father getting the worst of it, went to his assistance armed with a parani (a small stick used for driving bullocks) and struck a single blow which fell upon a two years' old child carried by the complai nant on his hip. The blow fell on the head of the child who died within an hour. It did not appear that the blow, if it had hit the complainant as intended, would have been likely to cause more than simple hurt. It was held that although the offence intended was not serious, the fact that the complainant had the child on his hip, was a fact of which the accused was bound to take notice, and should have operated as a restraint on his actions. The view was expressed that in these circumstances the accused acted in a rash and negligent manner and was thus guilty under section 304‑A of the Penal Code. In the second case the accused with three others came to give a beating to the owner of the house. His wife who had her small son, aged 1, in her arms, tried to close the deorhi door but the three men forced it open and the accused aimed a blow at her which struck the little chit t and killed it. It was doubtful whether he even knew that the owner's wife was carrying the child, as dusk had fallen. The offence in this case was held to be one falling under section 325 of the Penal Code. Both these cases are clearly distinguishable on the facts from the present case. In the third case a Division Bench of this Court took a view on the facts found, that the motive did not appear to be sufficiently strong for the accused to intend to cause the death of the deceased whom be had stabbed twice on the back with a knife. The accused was, therefore, found guilty under section 304 of the P. P. C. and not under section 302 of that Code. There again the special circumstance of that case justified the result but the present case is distinguishable. We have no doubt that if .in the present case the appellant had succeeded in hitting the woman with the knife and she had died, the appellant would have been guilty of murder. Death could have been the most likely consequence if he bad succeeded in hitting the woman G in the abdomen or the region of the heart. Consequently the same offence must be attributed to him on account of the death of the child. It is remarkable that both the injuries inflicted by the appellant fell on the child's person. This may even suggest that the attack on the child was deliberate. The appellant after coming down and finding the child in the lap of the woman may have suddenly formed an intention of killing the child in a fit of wild frenzy. The woman may be under the impression that she herself was the target of the attack. The absence of any injury on her person, however, would seem to give an indication that the object of the appellant may have been to kill the child itself. It is unnecessary, however, to speculate on this aspect of the case. We have little hesitation in holding that even if the attack was directed against the woman the intention of the appellant was to kill her or at least to cause such injury as would in the or dinary course of nature lead to death and, therefore, the offence committed by him would be covered by section 302, P. P. C. The appellant is a young man aged about 18, though the learned Session Judge said that on his appearance he looked to be about

21. He has already received the lesser punishment prescribed by law for the offence of murder. We see no reason to interfere in this case and dismiss the appeal. A. H. Appeal dismissed.