P L D 1963 (W (PLP)

The appellant was convicted by the S. B. M. Cantonment. Karachi exercising powers under section 30, Cr. P. C. under section 307, P. P. C. and sentenced to undergo rigorous imprison ment for seven years. He was further sentenced to pay a fine of Rs. 1,000 or in default thereof to undergo rigorous imprisonment for one and a half year more. He has appealed from this con viction and sentence.

2. The facts in this case are not in dispute and, indeed, Mr. Ahmad Saeed, Advocate, appearing on behalf of the appellant has conceded the prosecution story and has admitted that his client did attack the injured Ghulam Rasool inflict ing upon him the injuries mentioned by Dr. Allah Bakhsh P. W. 1 in his evidence. The sole point urged by the learned defence Advocate is that the case against his client really falls under section 324, P. P. C and not under section 307, P. P. C.

3. Nevertheless, in order that a correct and proper apprecia tion of the point involved in this appeal may be reached, a brief recitation of the salient facts of this case is necessary. The appellant and the injured Ghulam Rasool were friends who later fell out when the injured Ghulam Rasool got the appellant arrested on a charge of theft. Some four or five months later on 28‑10‑1961 at about 6‑15 p.m. while Ghulam Rasool was passing through the Bombay Bazar, Karachi, he fret the appellant who assaulted him with a knife and a scuffle ensued wherein injuries were caused to both. On the cries of the injured Ghulam Rasool several people collected and separated them. The appellant threw away the knife and was caught on the spot and taken to the police station. After the usual police investigation the appellant was challaned in Court.

4. At the hearing in the trial Court besides Dr. Allah Baksh P. W. 1, three eyewitnesses were examined namely the injured himself Ghulam Rasool P. W. 2, Wali Muhammad P. W. 3 and Ismail P. W.

4. The evidence of these witnesses P. Ws. 2, 3 and 4 is that the appellant assaulted the injured Ghulam Rasool with a knife with which he gave him blows on his head and on his back. The injured raised his hands in an attempt to ward off the blows and sustained injuries on each hand.

5. The evidence of Dr. Allah Baksh then C. M. O. ;Civil Hospital, Karachi, P. W. 1, is material and shows that the injured Ghylam Rasool had the following injuries on his person :‑ (1) Incised wound of irregular shape having two wings, each wing 1" x " muscle deep back of head. (2) Incised wound Y‑shaped with tail downwards, oblique in direction " x " x muscle deep, left side of the head. (3) Incised wound 1" x " muscle deep, left middle finger. (4) Two incised abrasions each " x 1/6 " right little finger. All the said injuries were afresh and were simple. They had been caused by some sharp edged weapon like a knife. The injuries were muscle deep and were not dangerous to life. Exh. 1/1 is the injury report which bears my signature and is correct. The said injuries could not be self‑inflicted. They could not have been caused by a fall. The patient left the hospital after examination and dressing."

6. On the above facts it has been argued by the learned defence Advocate that the conviction of his client for an offence under section 307 P. P. C. cannot be maintained. He has empha sised the fact that the injuries inflicted by the appellant upon the injured were simple and not dangerous to life. He pointed out that the applicant should be punished or what the actually has done and he criticized what he might have done and he criticised the judgment of the trial Magistrate wherein he has stated that‑ "Two of the injuries are on the head of the injured and there is no doubt that head is a vital part of the body and had the said injuries gone deeper there was every likelihood that they would have killed him." Again, the learned trial Magistrate has stated "The only fact that the injuries were not deeper as to endanger human life is not enough to take out the case out of the mischief of the provisions of section 307, P. P. C.,.as there is no evidence that the accused intentionally caused lighter injuries to the complainant." He also referred to certain reported cases which will be considered below.

7. Mr. Haider Baksh appearing on behalf of the State contended that the appellant had the necessary intention to kill his enemy the injured Ghulam Rasool. With this purpose in view he attacked him with a large knife having a blade 3 '' long which blade was bent after use by the appellant. He further argued that but for the intervention of the by‑standers who separated the appellant from the injured Ghulam Rasool the appellant would have killed him. He also invited my attention to case‑law particularly the well‑known case of the attempted murder of Sir Ernest Hotson, the Acting Governor of Bombay reported in Vasudeo Balwant Gogte's case (A I R 1932 Bom. 279) and the case of Queen‑Empress v. Niddha (14 All. 38).

8. It seems to me that the two essential ingredients of an offence under section 307, P. P. C. are firstly, the doing of an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of events and secondly the presence of the necessary intention or knowledge that death would ensue as a result of that act. Now, intention is a state of mind which is not ordinarily ascertainable and which can only be inferred from external acts. It is well‑known that the thought of man is not discernible and a well‑known jurist has stated that‑ "The thought of man is not triable because even the devil himself knoweth not the thought of man." Intention, then, is to be gathered or inferred from external acts and, therefore, for this purpose it is very necessary to examine the act itself and to see whether it is such an act that by itself is ordinarily capable of causing death in the natural and ordinary course of events. Now applying these principles to the facts of the present case I find that although the appellant had a big knife with a blade three and a half inches long, yet the dimensions of the two injuries inflicted by him upon the injured are so slight as to indicate that it was not his intention to put an end to the life of the injured. The doctor has said that‑ "the injuries were muscle deep and were not dangerous to life." and again he has said "the patient left the hospital after examination and dressing." The appellant has to be punished for what he has actually done and not for what he might have done. This, according to me, is precisely where the trial Magistrate has erred in holding that‑ "had the said injuries gone deeper there was every likelihood that they would have killed him." Consequently, I cannot agree with the finding of the learned Magistrate that the offence in this case falls under section 307, P. P. C.

9. I am fortified in the view expressed by me in the above paragraph by a reference to case‑law and in particular to the cases cited by the learned defence Advocate. The first of these is a judgment of Sir G. B. Constantine, J., in the case of Nawab Ali v. The State (P L D 1962 Kar. 269). In this case the accused inflicted a knife blow only once on a vital part of the body namely the abdomen. It was argued that the presumption in such a case is that a man intends the natural and probable consequences of his act : but, his Lordship held that such a presumption does not extend to consequences which have not occurred. His Lordship used these words :‑ "Here the man having recovered, the injury was not sufficient in the ordinary course of nature to cause death, and I see no reason in this case to presume that he intended anything beyond inflicting the injury which in fact he did inflict‑namely an injury which was not sufficient in the ordinary course of nature to cause death." The conviction in this case was altered from section 307 P. P. C. to sections 326 and 324 P. P. C.

10. In Ghulam Sabir Amir Khan v. Emperor (A I R 1942 Pesh. 21) it was held that‑ "The only act which could fall within the purview of section 307 is an act which by itself must be ordinarily capable of c fusing death in the natural and ordinary course of events and accused's criminal liability must be limited to the act which he in fact did, and cannot be extended so as to embrace the consequences of another act which he might have done but did not do." Here, too, the conviction was altered from section 307, P. P. C. to section 324, P. P. C. and the sentence reduced from five years' rigorous imprisonment to two years' rigorous imprisonment.

11. Again in Fatta v. Emperor (A I R 1931 Lah. 63) Agha Haider J. following an earlier case of the Bombay High Court reported in Martu Vithopa v. Emperor (14 C L J 641) held that‑ "Section 307 provides in terms for the punishment of a person who does any act with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder. It is therefore clear that the only act which could fall within the purview of the section is an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of events. But where injury was caused by a knife on the neck by the use of little force and was not such as would in the ordinary course of nature have caused death, the conviction of the accused under section 307 is wrong and he should be convicted under section 324."

12. The appellant in this matter is a young man of 22 years of age. In the scuffle between him and the injured the appellant also sustained injuries and was sent to hospital by the I. O., S. H. O. Abdul Jabbar P. W.

6. I am satisfied in my own mind and it is clear from the injuries inflicted by him upon the injured that he had no intention to take the life of the injured. If such had been his intention then being armed with the knife he had in his possession, it would have been easy for him to inflict deeper and more deadly blows upon the injured. This he has not done and according to the above rulings the accused must be punished for what he has done and not for what he might have done. I, therefore, alter the conviction in this case from one under section 307 P. P. C. to one under section 324 P. P. C. and I would B reduce the sentence imposed upon the appellant from seven years to two years' rigorous imprisonment. The appellant hash been continuously in jail since 28‑10‑1961. He will thus have to serve out only one year more. The sentence of fine imposed upon him by the lower Court is also hereby remitted. With these modifica tions this appeal stands dismissed. K. B. A. Appeal dismissed. Sentence reduced.