P L D 1975 Lahore 682 (PLP)

M. S. H. QURAISHG, J.--‑This appeal from the award of sentence of death .:,and the connected reference for the confirmation of that sentence, arise from .an occurrence which took place on 22‑5‑1972 near Pul Aik in the city of Sialkot. Muhammad Shafiq, deceased in the case, who owned a khokha 'there, was laying its floor with bricks in the morning. Two boys came and .disturbed the bricks ac which he abused them and drove them away. Javaid appellant who was present at that tune near the khokha, took objection to the deceased ha4ing abused the children and this led to exchange of abuses and then grappling between the two. Muhammad Sharif, father of the deceased, who happened to pass by that way separated them. The appellant left the place uttering threats but returned a short while after at about 8 a.m. with an open knife and coming from behind plunged the same into the right buttock of the deceased who was at that time leaning over the floor while laying the bricks. On receipt of the injury the deceased fell down. Muhammad Shabbir brother of the deceased who was present at his own fruit‑stall nearby, fazal Muhammad, Muhammad Pervaiz and Asghar P. Ws. witnessed the occurrence and chased the appellant but he threatened them and managed to escape taking the knife with him. As the deceased was still alive, he was removed to the hospital where his injury was examined by the Medical Officer but the deceased .expired shortly thereafter. On receipt of telephonic message from tree hospital, Abdul Hafiz A. S. I. came to the hospital at about 9 a.m. where he ‑found the deceased dead and where he recorded the statement (Exh. P. J.) of Muhammad Shabbir, on the basis of which, formal F. I. R. was later entered at the Police Station at 9‑30 a.m. The appellant was arrested the next day on 23‑5‑1972 from Tibba Tanchiwala and upon interrogation he led to the recovery of blood‑stained knife (Exh. P. 3) from the graveyard of Kakezaian where it had been kept buried.

2. The Medical Officer who had examined the deceased on his arrival at the hospital, at 8‑30 a m. found on the person of the deceased an incised wound 1 x x 4 deep on upper part of right buttock transverse in .direction. He found spurting of arterial blood from the wound with very profuse bleeding. The injured was at that time in profound shock and his pulse was not perceptible. The post‑mortem examination which was held in the afternoon the same day, confirmed the presence of the same injury. The injury, which had been caused with sharp‑edged weapon, was fatal and sufficient to cause death in the ordinary course of nature.

3. The ocular testimony was furnished by Shabbir (P. W. 5), Fazal 'Muhammad (P. W. 6) and Muhammad Pervaiz (P. W. 7). The remaining eye‑witness, Asghar, who is the brother‑in‑law of the deceased, was given up as unnecessary. The recovery was proved through Sana Ullah (P. W. 11) and Muhammad Awais A. S. I. (P. W. 2). The appellant who is a close relation of the deceased, being the son of sister of Muhammad Sharif father of the .deceased, denied the allegations and gave his own version of the occurrence in the following words: "At about 7 or 7‑30 a m. on 22‑5‑1972 when I passed near the khokha of the deceased I saw him quarrelling with two boys for breaking his floor. I told the deceased not to quarrel with the boys. The deceased abused me and I returned the abuse. Thereafter the deceased advanced. towards me. He quarrelled with me. We grappled with each other. Those two boys came after the deceased. One of them gave a knife: blow to the deceased. I ran after those boys but could no: apprehend them. I went to the Police Post and told the A. S. I about the incident. The A. S. I. made me sit in the Police Post. Injured was sent by me in a Tonga to the Hospital with one Iqbal. I have beery falsely implicated." The learned trial Judge having believed the prosecution evidence discarded the version given by the appellant and held him guilty of the murder.

4. Before us the genuineness of the F.

1. R. was questioned on the ground that the death of the deceased having taken place at 10 a.m. the factum of death could not find mention in the F. I. R. the recording of which, had been completed by 9‑15 a.m. A. S. I. Abdul Hafiz stated that on receipt of telephonic message from the hospital, he reached there at 9 a.m. where he found the deceased already dead. The factucn of the deceased having succumbed to his injuries is also duly noted in the statement (Exh. P. J.) of Muhammad Shabbir P. W. recorded by the A. S. I. The F. I R. on the basis of this statement had been entered at the Thana at 9‑30 a.m. In the post‑mortem report (Exh. P. H.), however, the time noted against the column; of death is 10 a.m. In his testimony, unfortunately, the Medical Officer did not give the time of the death nor was the discrepancy between the time noted by him in the above‑mentioned report and as noted by the Police in the F. I. R. was put to him. A. S. I. Abdul Hafiz, however, explained: "When I received the post‑mortem report, I came to know that the doctor has recorded 10 a m. as the time of the death. I inquired from the doctor as to why he had recorded the incorrect time. He could not satisfy me. He told me that he recorded this time according to his record". We feel that too much importance cannot be attached to the time of the death routinely entered in the post‑mortem report. At least the discrepancy had not been put to the Medical Officer who had entered that time. It was then urged that the message received from the hospital, according to Abdul Hafiz A. S. I. had been reduced in the form of a report and yet that report which, in fact, was the first report in the case, had not been produced. The corresponding entry in the injury report prepared by the Medical Officer at the time of admission of the deceased in the hospital, is "Police informed on the telephone". There is thus reason to believe that the message which had been given to the Police by the hospital authorities was a brief one. Even if that message had been reduced into writing its non‑production is not of much significance. It was also urged that there was no proper explanation for the witnesses not having gone to and lodged report at the Police Station. It was pointed out that Muhammad Sharif father of the deceased was, according to the statement made by Muhammad Pervaiz in the committal Court, present at the spot and as such he could have gone to the Police. There is no force in the contention because the witnesses have categorically stated that Muhammad Sharif had after separating the accused and the deceased left and had not been present at the time of the inflicting of the injury. Muhammad Pervaiz P. W. had also said the same. All that he had said before the committal Court was that he had not himself gone to report the matter to the Police because the father of the deceased was present there. This statement is not capable of an inference that Muhammad Sharif had been present at the time of inflicting the injury. It could only mean that the witness did not feel it necessary to himself go to the Police Station when Muhammad Sharif father of the deceased could do so, In the circumstance, we find nothing to detract from the genuineness of the F. I. R.

5. It was next urged that Muhammad Awais A. S. I. who was a relation of the complainant party had got the appellant falsely involved in the case: and it was because of that, that although the appellant had himself gone to the Police to report the occurrence, the Police had not recorded his state ment. Muhammad Awais A. S. I. admitted that Mushtaq, husband of the deceased's sister, was son of Ghulam Ullah, his (Awais) maternal uncle. There is no reason to believe that the A. S. I. had taken sides, first because the initial investigation had been done by A. S. I. Abdul Hafiz, secondly, because the appellant himself is a close relation of the complainant party, and, thirdly because the ocular evidence is clear and positive as to his involve ment in the case. Muhammad Shabbir P. W. though a brother of the deceased. is a natural witness as he had his own shop nearby. It was urged on the basis of the statement of Abdul Hafiz A. S. I. that he had no such khokha. The A. S. I. in his cross‑examination had first stated that be saw the khokha of Shabbir but had again stated that he did not see the khokha. This statement of his will not mean that the khokha was not there. Fazal Muhammad and Muhammad Pervaiz the other eye‑witnesses are independent persons and are natural witnesses. Fazal Muhammad had his fruit‑stall near the spot, and Muhammad Pervaiz had been present at the stall of Muhammad Shabbir P. W. Their evidence inspires confidence. They had no motive to falsely implicate the appellant. Moreover, they are corroborated by the re covery of the blood‑stained knife. Sana Ullah (P. W. 11) who testified to the recovery was an Ex. Constable of Police but nothing was brought out to impeach his impartiality. The knife bad been recovered from a place within the special knowledge of the appellant.

6. Learned counsel, however, seriously canvassed that the offence did not fall under section 302 but under section 304, P. P. C. He urged that the injury not having been inflicted at a vital part of the body, the appellant cannot be attributed with the intention of causing death and as such the offence would fall under Part II of that section. The contention, I am afraid, has no force, for merely because the injury was not on what is usually termed as a vital part of the body, would not mean that the offence must necessarily fall under section 304 and not under section 302, P. P. C. In an offence covered by the head "3rdly" of section 3C0, P. P. C., it is not necessary for the prosecution to establish that the accused had caused the injury with the intention of causing death. Ail that is necessary for the prosecution is to establish that the accused had the intention of causing the injury, which was actually caused to the deceased, and that that injury was sufficient in the ordinary course of nature to cause death, In fact, the assumption of the guilt under head "3rdly" has to be purely objective. It does not matter that there was no intention to cause death or an injury that is sufficient in the ordinary course of nature to cause death, or even that there was not knowledge that the act would be likely to cause death. The proof of the intention to cause the bodily injury actually found present is sufficient. The subsequent question whether the injury caused was sufficient in the ordinary course of nature to cause death becomes a matter of purely objective inference. Once it is established that the injury caused was sufficient in the ordinary course of nature to cause death, the accused can be presumed to have intended the natural and probable con sequence of that injury. No doubt, in a number of cases where injury had been inflicted with a knife on a non‑vital part like the leg or the arm, and, death had been caused, the accused had been convicted of lesser offences e.g under section 304, P. P. C. and even under section 326, P. P. C. vide In re: Kottengodan Alavi (A I R 1939 Mad. 269), Public Prosecutor v. Ramayawami, Nadar (A I R 1940 Mad. 476 ) and Nga Tiu Maung (A I R 1936 Rang. 112). But where the accused attacks with determination and ferocity with a long knife and causes a deep wound cutting the femoral vein, he is liable under section 302, P. P. C. vide Babulal Behadlal v. The Emperor (A I R 1946 Nag. 1211 ). 1n Muhammad Siddiq v. The State (1970 P Cr. L J 585) where the injury had been caused by a chhuri of 9" blade on the victim's thigh resulting in the .cutting of the large blood vessel and eventual death, the Supreme Court rejected the contention that tire thigh not being a vital part of the body, the accused should be given the lesser punishment of transportation for life. and upheld the sentence of death. In the present case, too, the knife used had a blade over 4 long and the injury caused was 4 " deep.

7. Learned counsel, then, urged that the injury being a single blow and having been inflicted immediately in the wake of exchange of abuses and grappling, the offence would, even otherwise, fall under section 304, P. P. C. For this, he relied on fazal alias Faja v. The State (1971 P Cr. L J 602 ), Bahar Khan etc. v. The State and Riaz Beg v. The Stare (1973 P Cr. L J 111 ). . In the first cited case, the accused in the course of exchange of abuses inflicted the fatal blow but the Court felt that the prosecution had suppressed facts and that something more than exchange of abuses had taken place, The Court also found that the murder had not been premeditated and the single blow had been inflicted in .the heat of passion. In the second cited case, the injury had been inflicted with a sota. In the third cited case, there had been no premeditation nor any motive, and considering the age of the accused, who was 18, a learned Single Judge of this Court had altered the conviction from under section 302 to under section 304, Part II, P. P. C. and reduced the sentence from transportation for life to R. I. for seven years. We find that the facts in the cited cases are not identical with those in the case before us, in as much as there is premeditation as because the appellant, who had ‑left the place of occurrence after the quarrel, had returned shortly thereafter armed with an open knife and had made a sneak attack from behind. He is, therefore, guilty of murder under section

302. P. P. C However, the extreme penalty is not called for because the appellant, who is a close relative of the deceased, had no motive or malice ;.against him. Moreover, the time that had elapsed between the quarrel and the inflicting of the injury, was not sufficient to have allowed the passions to cool down. We are, therefore, inclined to award him the lesser penalty. 8. 1n the result, we maintain the conviction of the appellant but reduce his sentence of death to one of imprisonment for life plus a fine of Rs. 2,000 . (Rupees two thousand) or in default, further R. I. for 2 years. With this modification in the sentence, the appeal is dismissed. The Reference is answered in the negative. K. H. A. Appeal dismissed. Sentence modified.