P L D 1962 (W (PLP)

ABDUL AZIZ KHAN, J.‑Muhammad Arif was tried by the learned Additional Sessions Judge, Rawalpindi, under section 302 and on two counts under section 307 of the Pakistan Penal Code. The allegations against him were that he had murdered Mst. Bilqis Begum and had attempted the murder of Mst. Maqbul Jan and Ghulam Muhammad P. Ws. on the 25th of February 1961 at Mohra Pakhtan. The learned Additional Sessions Judge convicted him and sentenced him to transportation for life under section 302, P. P. C. and to five years' and three years' rigo rous imprisonment on two counts under section 307, P. P. C. The sentences were ordered to run concurrently. The convict has appealed to this Court against his convictions and sentences through the jail authorities.

2. Mirza, father of Mst. Maqbul Jan (P. W. 11), married Mst. Walayat Jan, a sister of the appellant. In exchange, Mst. Maqbul Jan was married to Fazal Elahi, father of Mst. Wilayat Jan. Mst. Sakina, who is the first wife of Mirza and is mother of Mst. Maqbul Jan, left her husband's house and began to live along with her daughter, Mst. Maqbul Jan, in the house of her brother, Sultan. It appears that Mst. Maqbul Jan exercised her option of puberty as she had been married to Fazal Elahi during her minority and her maternal uncle, Sultan, married her to Ghulam Muhammad P. W.

3. Some five months before the occurrence under considera tion, Mst. Maqbul Jan P. W. went to the house of her father and lived there for about a month. Mst. Wilayat Jan used to quarrel with her during her stay there. Mst. Maqbul Jan cut short her stay and returned to her husband's house. When Mst. Maqbul Jan P. W. was leaving her father's house, Mst. Wilayat Jan threatened her with dire consequences. According to the prosecution, the present occurrence is the result of the threat given by Mst. Wilayat Jan.

4. On the eventful day, I.e., the 25th of February 1961, at peshiwela, Ghulam Muhammad (P. W. 10) was lying in his kotha when the appellant came there with a sword in his hated. Ghulam Muhammad P. W. took the appellant for a guest, got up and extended his hand to greet him. The appellant instead aimed a sword blow at Ghulam Muhammad who warded it off with his left hand. The appellant then caught bold of Ghulam Muhammad P. W. by the collar. The latter, however, pushed the former aside and ran out of the kotha, raising an alarm. Mst. Maqbul Jan P. W. was suckling her daughter, Mst. Bilqis Begum, under the shade of a dhrek tree. On seeing the attack on her husband, she ran towards the back of her house, carrying Mst. Bilqis Begum deceased on her shoulder. The appellant ran after her, overtook her and attacked her with the sword. The blow which was aimed at Mst. Maqbul Jan fell on Mst. Bilqis Begum's head. He then gave a blow on the shoulder of Mst. Maqbul Jan P. W. who fell down and was given further injuries while she lay on the ground. Muhammad Khan (P. W. 12) heard the alarm raised by Mst. Maqbul Jan P. W. and reached the spot in time to witness the attack. He had a danda in his hand and he gave a blow with it to the appellant who threw his sword on the ground. Muhammad Khan P. W. then secured the appellant with the help of one Sardar Khan who had also reached the spot. In the meantime, Zain‑ul‑Abedin (P. W. 7) and Ali Shan (P. W. 8), Lambardars, reached the spot, and the appellant and the sword were handed over to them. Muhammad Khan P. W. then went to Police Station Kallar Say yadan, eleven miles away, and lodged the first information report Exh. P. A. on the same day at 8‑30 p.m.

5. Sub‑Inspector Tafakkar Ahmad (P. W. 13) reached the spot at about midnight. He found Mst. Bilqis Begum's dead body in the field of one Jahandad, prepared the inquest report and then despatched it to the mortuary, for post‑mortem exami nation. On observing injuries on the persons of Mst. Maqbul Jan and Ghulam Muhammad P. Ws., the Sub‑Inspector prepared their Injury statements. Zain‑ul‑Abedin and All Shan Lambar dars handed over the appellant and the sword to the Sub- Inspector which he took into possession vide Exh. P. C. As the appellant's turban (Exh. P. 5), shirt (Exh. P. 6), shalwar (Exh. P. 7) and khes (Exh. P. 8) were blood‑stained, the Sub‑Inspector took them into possession vide memo. Exh. P. D. According to the Serologist's report Exh. P. Z., the sword and the clothes were stained with human blood.

6. Doctor Naubahar (P. W. 1) examined Mst. Maqbul Jan P. W. on the 26th of February 1961 at 4‑30 p.m. and observed six incised wounds on her person. Excepting injury No. 3, over the lower third and inner side of the left wrist on the inner side, the rest of the injuries were all simple.

7. The same doctor, on the same day, examined Ghulam Muhammad P. W. and found an incised wound, 6 x on the left palm. The injury had damaged the muscles of the hand. The bone of the left hand had also been cut; hence the injury was grievous in nature.

8. The same doctor, on the same day, conducted the post mortem examination on the body of Mst. Bilqis Begum and observed an incised wound and two incised scratches thereon. Death, in the opinion of the doctor, was due to shock and haemorrhage resulting from injury No. 1, which was sufficient in the ordinary course of nature to cause death.

9. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. Before the committing Magistrate, he made the following statement: ‑ "My mother was abducted by Ghulam Muhammad who married her while my father is alive. When I came to know of it, I went to my mother to fetch her home. Both of them attacked me, Ghulam Muhammad with a lathi. Maqbul Jan took sword Exh. P. 4 from her house. I snatched this sword from Maqbul Jan and struck Ghulam Muhammad with it. I then ran away with the sword followed by them. Ghulam Muhammad again attacked me with the lathi and I wanted to strike him. Maqbul Jan with her daughter came in between us and she along with her daughter was injured. I had no intention to kill Balqees Begum. She received the injuries by accident and I had no intention to kill Ghulam Muhammad or Maqbul Begum. I had lost control of myself on account of the insult to us due to the illegal conduct of Ghulam Muhammad and Maqbul Jan. Muhammad Khan, Zain‑ul Abedin and Ali Shan did not witness the occurrence." At the trial, he adhered to the position taken up before the committing Magistrate and did not lead any evidence in defence.

10. The prosecution case is based on the evidence of Ghulam Muhammad (P. W. 10), Mst. Maqbul Jan (P. W. 11) and Muhammad Khan (P. W. 12), the eye‑witnesses of the occurrence. Ghulam Muhammad P. W. received injuries in the course of the occurrence under consideration. His presence at the spot at the material time cannot, therefore, be denied. He stated at the trial: ‑ "On 25‑2‑1961, I was lying in my kotha at about peshiwela. The accused came into my kotha and he was having sword Exh. P. 4 with him. I got up thinking that a guest had come to see me. I extended my hand towards him in order to greet him. I saw the accused for the first time on that day. The accused aimed a blow at my shoulder with sword Exh. P. 4, which I warded on my left hand and my hand was injured. He caught hold of me from my collar and I pushed him aside. I ran outside the kotha followed by the accused. My wife, Mst. Maqbul Jan P. W., was lying under a dhrek tree suckling the child Mst. Bilqis deceased. On seeing Muhammad Arif, Mst. Maqbul Jan carrying her daughter on her arm ran towards the back of the house and when she reached the field of Jahandad, Muhammad Arif, who was pursuing her, over taking her there gave a blow with sword Exh. P. 4 on the person of Mst. Maqbul Jan, but it hit on the head of Mst. Bilqis Begum deceased. Muhammad Arif accused aimed another blow at Mst. Maqbul Jan P. W. which hit her on her shoulder. Both of them fell down on the ground and Muhammad Arif accused gave 3/4 more blows with the sword Exh. P. 4 on the person of Mst. Maqbul Jan P. W. Muhammad Khan P. W. rushed to the spot and gave 3/4 danda blows to Muhammad Arif accused. In the meantime, Muhammad Arif threw away his sword. Muhammad Khan and Sardar Ali P. Ws. caught hold of him and secured him till the arrival of the police." The above statement is fully supported by Mst. Maqbul Jam and Muhammad Khan P. Ws. Muhammad Khan P. W. stated in cross‑examination: ‑ "Muhammad Arif had told us that Ghulam Muhammad P. W. had abducted his step‑mother, Mst. Maqbul Jan and married her. As he could not bear this insult, he bad come to the village and attacked Ghulam Muhammad and Mst. Maqbul Jan in order to injure them." The confession was made soon after the occurrence. Muhammad Khan is disinterested person, and we see no reason to disbelieve him. His evidence, the extra‑judicial confession of the appellant, and the recoveries referred to above conclusively establish the charge against the appellant.

11. We have considered the medical evidence. The nature of the weapon and the injuries on the person of Mst. Maqbul Jan establish that the appellant intended to kill her. Section 301 of the Pakistan Penal Code provides: ‑ "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 he intended or knew himself to be likely to cause." The section provides that a man who has, in effect, an unlawful and malicious intent against another and, in attempting to carry it out, injures a third person, he is guilty of what the law deems malice against the person, injured, because the offender is doing an unlawful act and has that which the Judges call general malice, and that is enough. [(1886) 17 Q. B. D. 359 (461)]. The prin ciple is applicable where, through accident, or a mistake of a party not privy to the criminal design, the mischief falls either on a person not intended, or on the party intended, but in a different manner from that intended. In the present case, it is obvious that the appellant had intended to kill Mst. Maqbul Jan. The blow which he had aimed at her had killed Mst. Bilqis Begum, he must on the principle stated above be held to be guilty of the murder of Mst. Bilqis Begum. He has, therefore, been rightly convicted and sentenced under sec tion 302 of the Pakistan Penal Code for the murder of Mst. Bilqis Begum.

12. As regards the attack on Ghulam Muhammad P. W., the appellant is guilty under section 326 and not under section 307 of the Pakistan Penal Code. We accordingly alter his conviction from section 307 to one under section 326 of the Pakistan Penal Code but maintain the original sentence of three years' rigorous imprisonment imposed on him by the learned Additional Sessions Judge.

13. The conviction and sentence under section 307, P. P. C. with regard to the attack on Mst. Maqbul Jan P. W., are hereby maintained.

14. In the result, except for the alteration of the conviction of the appellant from section 307 to one under section 326, P. P. C., In respect of the attack on Ghulam Muhammad P. W., the appeal is otherwise dismissed. K. B. A./A. H. Appeal dismissed.