1983 PLP 1165 (SCMR)

S. A. NUSRAT, J.‑This appeal by special leave is directed against the judgment of a Division Bench of the Lahore High Court, Lahore dated 15‑8‑1978 whereby the conviction awarded to the appellant by the Sessions Judge, Lyallpur, under section 302, P. P. C. was upheld but, the sentence of death was altered to imprisonment for life and the other sentence of fine was maintained. The appellant and his father Meraj Din were tried on a charge under section 302 read with section 34, P. P. C. for the murder of Javed alias Jaidi and by his judgment, dated 15‑12‑1976, while Meraj Din was given, benefit of doubt and acquitted, the appellant was condemned to death. The occurrence took place on 10‑2‑1974 at about 5.00 p.. m., near the graveyard of Mohallah Sohail Abad, Lyallpur, and the matter was reported by lnayat (P. W. 6) at 5.30 p. m., to A. S. I. Muhammad Saeed who, while on gust duty on Satiana Road, happened to meet him on his way to the Police Station Peoples Colony, Lyallpur. The formal F. I. R. was later recorded at Police Station Peoples Colony, Lyallpur, at 5.50 p. m. According to the statement of Inayat, he had gone out of his house to buy kerosene oil and when he was standing at about 5.00 p. m., in front of the shop of one Bashir, he saw Jaidi deceased going towards his house When the deceased was near the grave of moon baita both the accused, namely, the appellant and his father Meraj Din, emerged from the enclosure of the graveyard. Meraj Din raised a Lalkara and held the deceased where upon the appellant, who was armed with a dogger, hit Jaidi deceased wits; the dagger. The blow hit Jaidi on his left thigh. Baba Nazir Sain and Muhammad Rafi, P. Ws: and Khadim Hussain (not produced) who were standing nearby tried to rescue the deceased who was being attacked at a distance of about 15 Karams from them. The deceased fell down on the ground unconscious. The appellant fled away with the blood‑stained dagger along with the co‑accused. Inayat and Khadim Hussain, P. Ws.. placed the deceased in an injured condition in a rickshaw and left for the civil hospital. However, the deceased succumbed to the injury on the way. Leaving the dead body in the custody of Khadin Hussain, Inayat, P. W. left for the police post, as aforesaid, and met Muhammad Saeed, A. S. L, on the way, who recorded his statement which was the basis of the formal F. I. R. Inayat, P. W., further stated that day prior to the occurrence, a quarrel had taken place between Jaid, deceased and Munawar appellant, because the letter had snatched a kite from a boy who had started weeping. Jaidi, deceased, intervened and dissuaded the appellant from doing so which led to altercation and exchange of abuses. Baba Nazir Sain intervened and separated them. This. according to the prosecution, provided motive for the crime. The post‑mortem examination was conducted on the dead body of the deceased by doctor Bashir Hussain, op 11‑2‑1974 who found an incised wound 3' x 2' x 6" on the outer side of the left thigh at its upper part. Left femoral vessels were cut. The death, in the opinion of the doctor, was caused due to shock and haemorrhage as a result of injury to the main blood vessel. The said injury was sufficient to cause death in the ordinary course of nature. It was caused by a sharp‑edged weapon. The same doctor had also examined the appellant on 16‑2‑1974 and found an incised wound x skin deep each on the front of fingers of his left hand and an incised wound x skin deep on the front of left thumb. Both these injuries were simple in nature and caused by a sharp‑edged weapon within about seven days. The appellant was arrested or. 16‑2‑1974 and 'while in custody had led to the recovery of a dagger from his house. The blade of the dagger was 8" long which was taken into possession by the investigating officer vide on inventory memo. which was duly witnessed by the investigating Officer, Ashiq Hussain, P. W. 5 and Muhammad Saleem (not produced). The weapon was sent to the Chemical Examiner and the Serologist who opined that the same was stained with human blood. The prosecution relied upon the testimony of three eye‑witnesses, namely, lnayat (P. W. 6), Baba Nazir Sain (P. W. l) and Muhammad Rafi (P. W. 8) ; the recovery of dagger (Exh. P. 9) at the instance of the appellant, motive and the medical evidence. The appellant who was examined under section 342 of the Criminal Procedure Code stated on the day of occurrence he had himself gone to the police and complained that it was deceased who had attacked him with the dagger. As regards the injuries on his person, his explanation was that the deceased was a bad character and used to smoke charas along-with Baba Nazir Sain and other witnesses. On the day of the occurrence, the deceased brought a boy with him to which he had objected whereupon the deceased attacked him with the dagger. He worded off the attack with his left hand as a result of which the injuries in question were sustained by him. He tried to snatch the dagger from the deceased by giving a jerk to his hand with which he was holding it. This dagger hit the deceased on his left thigh. No evidence was led in defence. However, reliance was placed upon two judgments to prove that the deceased and Inayat, P. W. 6, were persons of shady character and were challaned under section 13/14 of Ghoonda Ordinance, 1959. The detailed description of the occurrence was given by Inayat, P. W. 6, as reproduced hereinabove which was fully corroborated by Baba Nazir Sain and Muhammad Rafi, P. W. 8. Baba Nazir Sain was the mujawar of the grave of maan baita, the boundary wall of which runs almost parallel to the street in which the occurrence had taken place. Muhammad Rafi, P. W. 8. also happened to be the resident of the same mohallah. Both the witnesses were found to be natural witnesses of the occurrence by the trial Court as well as by the learned High Court whose presence at the scene of the occurrence could not be doubted. Besides the learned High Court also found that the recovery of the weapon which was found to be stained with human blood also fully, corroborated the ocular account of the occurrence. Nature number and seat of the injury on the person of the deceased also corroborated the ocular testimony. The motive too was found to be cogent and truthful. We have gone through the evidence on the record in the light of the two judgments of the trial Court and of the learned High Court and are satisfied that no principle of law or rule regarding appreciation of evidence in criminal cases has been violated. Leave in this case was granted mainly to examine the contention that being a layman, the appellant could not be saddled with the knowledge of the location of different arteries or veins in the human body. As such the fact that the blow given to the deceased had out the femoral artery did not show that he had intended to murder the deceased or to cause any injury mentioned in the clauses `secondly', `thirdly', or fourthly' of section 300, P. P. C. and the case, therefore, fell under section 326, P. P. C. and not under section 302, P. P. C. The above contention was also raised before and examined by the learned High Court, but it was held that the appellant was armed with a deadly weapon of a" blade and had attacked the deceased with considerable force as indicated by the depth of the injury which was 6" deep. This had resulted in cutting the femoral vein which is a large blood vessel in the thigh. In these circum stances, the learned High Court was of the opinion that the appellant had intended to cause the injury which was found on the person of the deceased and the said injury was sufficient to cause death in the ordinary course of nature. The case of the appellant was, therefore, held to be fully covered by the third clause of section 300, P. P. C. In support of the above contention, the learned counsel referred to cases from Indian jurisdiction reported in re Kottengodan Alavi (1), Public Prosecutor v. Ramaswami Nodar (A I R 1940 Mad. 743) and Kapur Singh v. The State of Pepsu (P L D 1957 S C (Ind.) 87). The general proposition of law referred to in the first two cases has no application to the facts of this case which are quite distinguishable. The last decision is also of no help because in that case sentence was awarded under section 304 (A I R 1939 Mad. 269) and not under section 326, P. P. C. as argued on behalf of the appellant. The learned counsel lastly referred to a judgment of this Court in the case of Muhammad Sadiq v. The State (1970 P Cr. L J 585). The said decision rather goes against the appellant because in that case injury was caused by a chhuri of 9' blade in victim's thigh resulting in cutting away a large blood vessel and eventually causing his death. The contention, that thigh not being vital part of body, the accused be given lesser punishment' of transportation for life was rejected. It was held that the accused's premeditated use of chhuri with such force as to cut away a large vessel was indicative of intention to cause injury sufficient to cause death in ordinary course of nature and the case, therefore, was covered by the third clause of section 300, P. P. C. and the accused was rightly sentenced to death. Although the injury caused was of substantial dimension, nonetheless it was not on a vital part of the body. If at all he had the intention to kill, he would not have selected the thigh and ought it be said that he could not have known that his blow would cause the severance of femoral artery as he was an illiterate. In these circumstances, only knowledge likely to cause death can be imputed, but not the intention to kill. The offence would, therefore, fall under section 304, P‑II and not under section 302, P. P. C. The judgments nearer to the facts of the case, which may be referred to are M. A. Jalil v. The State (P L D 1969 S C 552) and Emmanuel Bahadur Joseph v. Paul Jackson (1981 S C M R 668). For the reasons mentioned above, we would partly allow the appeal, alter the conviction under section 302, P. P. C. to section 304 (II), P. P. C. and sentence the appellant Munawar Hussain son of Meraj Din to rigorous imprisonment for ten . years. The other sentence of fine is maintained. The appellant shall also have the benefit of section 382‑B of the Criminal Procedure Code. S. Q. Appeal partly accepted.