1991 P Cr (PLP)

The appellant has assailed the aforesaid judgment in the present appeal. I have heard Mr. A.Q. Halepota, the learned Advocate for the appellant and Mr. Shoukat Hussain Zubedi, the learned Assistant Advocate-General for the State and Mr. Shamdas B. Chhangani for the complainant. The learned Advocate for the appellant after reading the evidence of the two eye-witnesses and offering his criticism on their testimony, submitted that he would not press the appeal on facts and would like to make his submissions only with regard to propriety of the conviction of the appellant under section 302, P.P.C. and the sentence awarded to the appellant. The learned Assistant Advocate-General was of the view that it was not a case under section 302, P.P.C. as neither there was any premeditation, nor the intention to commit murder. According to him it was a case under section 304, Part Il, P.P.C., death having resulted without any intention to cause murder but looking at the nature of the injury, the knowledge on the part of the appellant that such injury would result in death was established. The learned Advocate for the complainant on the other hand, urged that the intention on the part of the appellant to cause murder of Akhlaque is established. He, however, did not assail the judgment of the trial Court in so far as the trial Court had discarded dying declaration and the judicial confession of the appellant and he relied on the ocular testimony and the recovery of blood? stained dagger to support the conviction of the appellant under section 302, P.P.C. ????? P.W. Ashfaq Ahmad in his deposition before the trial Court stated that he alongwith his brother including deceased used to reside in Kot Ghulam Muhammad. The deceased on 13-5-1985 at 7-00 p.m. demanded refund of Rs.100 from the appellant but the appellant refused to pay the same on which harsh words were exchanged between them. The appellant took out the dagger from the folds of his Shalwar and caused injury on the left side of the chest. He and P.W. Akhtar Ali witnessed the incident. On receiving the blow the deceased fell down. The accused thereafter ran away from the place of occurrence. The above version was supported by P.W. Akhtar Ali. Although P.W. Ashfaq is brother of deceased and thus interested witness but nothing has been brought on record to discredit his testimony. There was no animosity between the parties. P.W. Akhtar Ali is an independent witness and has been rightly relied upon by the trial Court. The aforesaid ocular evidence is duly corroborated by recovery of the blood-stained dagger on the pointation of the appellant. The Chemical Examiner had returned positive report with regard to existence of human blood on the dagger, The above recovery was established by the evidence of P.Ws. Shoukat All and Dastar Ali, the S.H.O. The learned trial Court Judge has dealt with the issue at great length for relying on the aforesaid corroborative piece of evidence. It has therefore been established that the injury was caused by the appellant to the deceased Akhlaque. P.W. Dr. Abdul Rasheed at the relevant time was Medical Officer at Kot Ghulam Muhammad. On 13-5-1985, the deceased Akhlaque was referred to him and on examination he found following injury on his person; "Stab wound transverse 5 c.m. x skin x muscle deep on front left side of chest just below the nipple." The injury appeared to have been caused with sharp-cutting substance such as knife or dagger and was fresh one. Such certificate issued by him was produced as Ex.13-A The injured was then referred to R.M.O. Mirpur Khas who referred him to L.M.C. Hospital Hyderabad where the injured died. P.W.2 Dr. Anwar Hussain was Medico-legal Officer at L.M.C. Hospital Hyderabad. On 14-5-1985 he received the dead body of Muhammad Akhlaque alongwith a request to conduct the post-mortem examination. On external examination of dead body he found following injuries: "An incised wound 6 c.m. x 3" x 3" cavity deep at left side of the chest, in between 7th and 8th rib, just below the left nipple," No other injury was found on the body of the deceased. In the opinion of the said witness the above-mentioned injury was ante-mortem in nature and the cause of the death was internal haemorrhage and shock due to the above injury. He produced post-mortem report as Exh.25. The ocular evidence of the two witnesses clearly established that the incident had taken place when the appellant and the deceased came across each other while coming from opposite directions. Their meeting was sudden and unexpected. It is also established that the appellant had taken out the dagger from the folds of his Shalwar after there was altercation between the two which' developed into exchange of harsh words. After receiving injury on his chest the' deceased fell down. If the appellant had any intention to kill the deceased, he had ample opportunity to cause more blows to the deceased who was lying on the road helpless and was not in a position to resist further assault or protect himself in any manner if additional blow was caused to him. There is no evidence with regard to any premeditation on the part of the appellant to commit the aforesaid crime. The medical evidence also establishes only one injury and no other injury whatsoever. In this view of the matter there is great force in the contention raised by the learned counsel that the appellant had no intention to kill the victim. However, the accused can be saddled with the knowledge that the injury caused by him was likely to result in death of the victim. It is established by the fact that the dagger used by him had 6 inches long blade and the injury was caused on the left side of the chest just below the nipple with enough force to cause injury cavity deep. In the case of Ahmed and 3 others v. The State P L D 1971 SC 720 the Supreme Court has elaborated and amplified the distinction between sections 302 and 304, P.P.C. as under: "If the intention of the accused was to cause such bodily injury to the deceased as was likely to cause his death, or which was sufficient in the ordinary course of nature to cause death, the case obviously was one of murder falling under section 302, P.P.C. being covered by the definition of murder as contained in section 300 secondly and thirdly of P.P.C., and the conviction could only have been made under section 302, P.P.C., and not under section 304, which is attracted if the offence is one of culpable homicide not amounting to murder. A case is covered by Part I of section 304, P.P.C. if the offence which is otherwise murder is reduced to culpable homicide not amounting to murder by reason of being covered by any of the exceptions to section 300, P.P.C. Part 11 of section 304, P.P.C. applies if the fatal injury inflicted on the deceased is caused to him without any intention on the part of the accused to cause death, or such bodily injury as is likely to cause death, but about which the accused can be burdened with the knowledge that it is likely to cause death." ??????????? In the above case it was observed that according to the evidence, the appellants, who were armed with hatchets and Lathis gave blows to the deceased. However, it was noted that the deceased had sustained only one blunt weapon injury on his chest, which proved fatal. From the above evidence it was concluded that the appellants had no intention to kill the deceased as they did not use the sharp side of the hatchets on him but their intention to cause grievous injury to the deceased could not be doubted as all of the assailants acted jointly in showering blows on the deceased. The learned counsel for the appellant relied on the case of Yousuf v. The State 19134 P Cr. L J 1982 wherein a Division Bench of this Court altered the conviction from section 302, P.P.C. into section 304, Part II, P.P.C. for the reason that the blows were given without any premeditation in the heat of moment and for the purposes of deterring the deceased and it was not found possible to hold that the appellant had the requisite intention to commit murder but there was enough material to saddle him with the knowledge that the injuries caused were likely to result in death. He also referred another Division Bench judgment of this Court in the case of Hangle alias Ali Nawaz v. The State 1980 P Cr. L J 1275. In the above-cited case relying on the two earlier judgments it was observed that the appellant could not be burdened with the intention of causing murder as it was a case of sudden incident and only one serious blow had been caused by the appellant and the circumstances indicated that there might have been a serious remonstrance from the deceased on the abuse uttered by the appellant and the appellant might have felt enraged and insulted and as also there was no previous enmity, it was held not to be a lit case of causing intentional death and the appellant was burdened with the knowledge that the weapon he was using and the place selected by him for the injury was such that death would be result of his action. He was accordingly convicted for an offence under section 304, P.P.C. Similar view was expressed in an earlier case of Mehwal v. The State 1975 P Cr. L J 1121. By a Division Bench of this Court wherein one injury was caused by the sharp side of the hatchet on the head of the deceased on demand of money by him from the assailants and in absence of intention to kill the deceased. In the above judgment the Division Bench had relied on unreported confirmation cases. The learned counsel for the appellant relied on the cases of Burial v. The State P L D 1982 Kar. 152 and unreported judgments of this Court in Confirmation Case No.17 of 1985 Sheroo v. The State, Criminal Appeal No.69 of 1984 Abdul Rasheed v. The State and Criminal Appeal No.122 of 1988 Sher Khan v. The State. In all the aforesaid cases the view expressed in earlier authorities was re?affirmed. The rule laid down in the aforesaid authorities is fully applicable to the facts and circumstances of this case. The above are the reasons for the short order passed on 6-6-1991', whereby the conviction of the appellant was altered from section 302, P.P.C. to' one under section 304, Part II, P.P.C. and the sentence of life imprisonment was reduced to R.I. for five years. Sentence of fine was maintained but however, in case of default in payment of fine the appellant was ordered to suffer R.I. for a period of three months more. The appellant was given benefit of section 382-B, Cr.P.C. The appeal was dismissed with the above modification in the judgment of the trial Court. M.A.K./A-1073/K?????????????????????????????????????????????????????????????????????????????? Order accordingly.