1991 PLP 1408 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑This appeal by the leave of the Court is directed against the judgment of the High Court dated 28‑10‑1985.

2. The facts briefly stated are that on 15‑4‑1981 at about Degarwela, Muhammad Din, complainant, P.W.7, and his son Ghulam Muhammad, deceased went to the mosque to offer Asar prayers. This was after the Asar prayers had actually finished. After offering their prayer, they came out of the mosque and were proceeding to their house. Ghulam Muhammad deceased was about 4/5 Karams ahead of Muhammad Din, complainant, P.W.7. All of a sudden Muhammad Bashir accused armed with the handle of a plough and Mushtaq Ahmad accused armed with a Soti, turned up from the eastern side and addressing Ghulam Muhammad, deceased, raised a Lalkara that they would not spare him. Muhammad Bashir respondent No.l gave a blow with the handle of the plough on the head of Ghulam Muhammad, deceased, who fell down face downward. Muhammad Bashir and Mushtaq Ahmad then delivered two blows each with their respective weapons to the deceased while he was lying on the ground. Muhammad Hanif P.W.8 and Nazir Ahmad (given up P.W.) came up and witnessed the occurrence. The accused on seeing them ran away alongwith their weapons.

3. The motive for the occurrence was that one Ahmad Khan, a cousin of the maternal‑grandfather of the two accused, was murdered by Mukhtar (the son of the Bhanji of Muhammad Din complainant) and one other. The said Mukhtar was awarded death sentence. Ghulam Muhammad deceased used to pursue the case of the said Mukhtar. On account of this grudge, the respondents‑accused murdered Ghulam Muhammad deceased.

4. Muhammad Bashir and Mushtaq Ahmad, were tried by the Additional Sessions Judge, Sargodha, under section 302, P.P.C. Mushtaq Ahmad was acquitted but Muhammad Bashir respondent was convicted under section

302. P.P.C. sentenced to imprisonment for life and fine of Rs.2,000 or in default to suffer one year's R.I. It was directed that half of the fine be paid to the legal heirs of the deceased.

5. The appellant filed a criminal revision before the High Court for setting aside the acquittal of Mushtaq Ahmad and for enhancement of sentence in respect of Muhammad Bashir, respondent, from life imprisonment to capital punishment. The High Court partly accepted the appeal of Muhammad Bashir. His conviction was altered from one under section 302, P.P.C. to that of under section 304, Part II, P.P.C. and he was sentenced to seven years' R.I. with fine of Rs.10,000 or in default further two years' R.I. The fine, if recovered, would be paid to the legal heirs of the deceased. The revision petition filed by the appellant was dismissed.

6. Leave to appeal was granted to consider that in view of the observation of the High Court whether the offence falls under section 302, P.P.C. The High Court in convicting the respondent Muhammad Bashir under section 304, Part II, P.P.C. observed that the motive for murder was not there. The respondent gave a beating on the spur of the moment and he had no intention to kill the deceased. The reasons which prevailed with the High Court in coming to this conclusion are recorded in paras' 15‑16 of the judgment. The relevant parts are reproduced hereunder:‑‑

"The medical testimony furnished by Dr. Muhammad Raees P.W.1 shows that the deceased received a fatal injury on the head almost 12 c.m. long and 6 c.m. wide, which shows that a long and heavy weapon, such as the handle of a plough, was used. The three contusion marks on the back of the deceased are between 2 c.ms. to 24 c.ms. in length and 3 c.m. to 5 c.m. in width, which clearly show that he received these injuries with a long and heavy weapon. The nature of the injuries already leads to the inference that a blunt weapon, such as the handle of a plough, was used in the occurrence. The medical testimony, therefore, corroborates the ocular account. The upshot of the above discussion is that the ocular account, the recovery, the motive and the medical testimony conclusively prove the participation of the appellant in the crime in instance. The only question that now arises is that is relating to sentence. Motive for murder is not there. The deceased was going to his house when the incident occurred. There was no past enmity between the parties. It appears that something untowards happened, which prompted Muhammad Bashir, appellant, to give a good beating to Ghulam Muhammad, deceased, on the spur of the moment. The surrounding circumstances do not suggest that the appellant had any particular intention to kill the deceased, but the litigation the deceased was assisting may have provoked him to give the deceased a good beating. But the appellant used a heavy lethal weapon and inflicted four injuries. The appellant cannot be saddled with the intention of causing bodily injury with the intention of causing death. At best, he can only be saddled with the intention of causing such bodily injury as was likely to cause death. The offence is, therefore, not under section 302, P.P.C., but one under section 304, Part II, P.P.C.

7. As regards the motive, the High Court has observed that `the motive seems far‑fetched to the extent of causing murder. May be the same gave the appellant a motive to give a good beating to the deceased and I would hold the motive only upto that level and no further'. In a way the High Court has accepted the motive for causing the injury to the deceased and has not discarded it altogether. The High Court has relied upon the ocular account, the recovery, motive and the medical evidence against the accused as is borne out from the discussion made in para. 16 of the judgment. It has also observed that a good beating was given by the respondent to the deceased. He used heavy lethal weapon and inflicted four injuries. After recording such finding, the conviction was recorded under section 304, Part II, P.P.C. on the ground that something untoward happened which prompted Muhammad Bashir to give a good beating to the deceased on the spur of the moment. This finding of the High Court is not supported by any evidence. P.W.7 the complainant has not only mentioned about the motive but also stated that the appellant armed with a handle of plough and the acquitted accused armed with a Soti came there and raised Lalkara and challenged to Muhammad Bashir that they would not spare him. The statement of this witness has been accepted by the High Court. There is nothing on record to indicate that some altercation took place between the accused and the deceased before the attack was launched by the respondent. The other witness P.W. Muhammad Hanif has also repeated the same fact about the incident. The parties had no conversation before the incident. The appellant was armed with a handle of plough. After seeing the deceased, the appellant raised Lalkara and then gave a blow on the head of the deceased who fell on the ground. Even after the deceased fell on the ground the appellant caused blow to the deceased with the handle which he was holding. The medical evidence shows that the deceased received five injuries. Injury No.l was on the vital part of the body and the doctor found fracture of left perital bone (into pieces) and right parietal bone extending upto left side of occital bone. Learned counsel for the respondent submitted that the medical evidence is no evidence of corroboration. In Machia v. The State P L D 1976 SC 694 it has been observed that at the highest, therefore, the fact that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eye‑witnesses have spoken the truth. This, however, would be in special circumstances. In the present case, there are other corroborative pieces of evidence which have been relied upon by the High Court. It cannot, therefore, be said that corroboration was sought only from the medical evidence. The respondent Muhammad Bashir was 4ged 35 years at the time of his examination under section 342, Cr.P.C. on 21‑12‑1983. The date of incident is 15‑4‑1981. Therefore, at the time of the occurrence he was about 33 years old being a young, man and holding a lethal weapon. It cannot be said that he had no intention to cause such bodily injury which would result into the death of the deceased. The first blow with a hard substance was landed on the head of the deceased which was on a vital part of the body. The respondent did not stop after giving the first blow. The assault was made with such force that the deceased after receiving the first blow fell on the ground. The respondent again struck the deceased when he was lying on the ground. All these facts jointly considered would lead to the conclusion that the accused had acted with the intention of causing death and caused bodily injury which resulted in his death. Culpable homicide is murder if the act is done with the intention of causing death. The intention is to be gathered from the facts and circumstances of a particular case. As stated above, the appellant struck the deceased with a lethal weapon on a vital part of the body. The injury was sufficient in the ordinary course of nature to cause death as stated by the doctor. The force with which the injury was inflicted can be seen from the medical report all these facts would lead to the conclusion that the respondent caused such bodily injury to the deceased with the clear intention of causing death. The ingredients of section 302, P.P.C. have been established. There was no extenuating circumstance directly or indirectly which can be made the basis for the offence under section 304, Part II, P.P.C. so as to contend that the respondent. inflicted the injury which he knew was likely to cause death. The learned counsel for the respondent referred to Emmanuel Bahadur Joseph v. Paul Jackson 1981 S C M R

663. The facts are distinguishable. The reasons of the High Court have been recorded in para. 12 of the judgment and the same are reproduced below:‑‑

"We are also not satisfied on the evidence in the case that appellant Paul had either the intention of killing the deceased or had even the knowledge that his act in stabbing the deceased would result in the latter's death, only a single blow with a knife was given to the deceased and that too on the back. If the intention had been to kill the deceased, appellant Paul would certainly have caused the deceased more injuries and on parts of the body which he considered more vital. There was ample opportunity and the facility available to him to do so. The fact that appellant Paul refrained from causing more than one injury to the deceased would seem to suggest an absence of intention to cause death. Furthermore, the back is ordinarily not considered to be a very vital part on which a blow or even a stab would result in death. It is, therefore, unlikely that appellant Paul .had even the knowledge, that the injury which he was causing was likely to result in death."

8. This Court converted the conviction under section 304, Part IL P.P.C. in the following circumstances:‑‑

"In the present case the cumulative effect of the circumstances detailed below give rise to a reasonable doubt that the assailant Paul did not intend to kill the deceased:‑‑ (i) That the co‑assailants were content to give fist blows to the deceased. (ii) There was no evidence of premeditation. (iii) That a single knife blow was struck on a part of the body popularly not regarded as vulnerable such as head, heart, chest or abdomen. (iv) There must have been struggle, for the deceased must have attempted to free himself. In that mellee one may reasonably assume that the deceased was knifed by Paul near about his left hip, which according to the medical evidence, punctured his kidney. (v) There was commotion, there were people at the door wanting to break it open, but the door was opened from inside and the deceased was let out."

9. The above case is not applicable to the facts of the present case. This Court in Kala v. The State P L D 1983 SC 88 has held as follows:‑‑

"As to the actual incident, it is clear that the appellant had given a blow with full force with an iron implement on a vital part of the body of the deceased, and he must; therefore, be burdened with intention to cause death, or at least such bodily injury as was likely to cause death, and ordinarily death would be the appropriate penalty in such a case:"

10. The upshot of the above discussion is that the case of the respondent falls under section 302, P.P.C. We, therefore, accept the appeal and convert the conviction of the respondent from under section 304, Part II, P.P.C. to one under section 302, P.P.C. and award him imprisonment for life and fine of Rs.10,000 or in default in the payment of fine, to undergo one year's R.I. The fine, if recovered, shall be paid to the heirs of the deceased as compensation under section 544‑A, Cr.P.C. A separate order of compensation is not being made in view of the fact that the respondent was convicted under section 304, Part II, P.P.C. and considerable time has elapsed between the filing of the appeal and the decision of the case by this Court.

11. The respondent if released would be arrested forthwith to undergo the remaining period of his sentence. He would be entitled to the benefit 'of section 382‑B, Cr.P.C. N.H.Q./M‑1495/S Order accordingly.