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Criminal Appeal No. 149 of 1964, decided on 4th May1965

Ss. 302 & 304, Part 1‑Murder Accused on chance encounter attacking deceased with lethal weapon on vital part of body without any provocation‑Conviction should be under S. 302 and not under S. 304, Part I‑Retrial, however, not ordered nor sentence enhanced in circumstances of case.

Pir Bakhsh Khan for Appellant.

S. Ghazanfar Ali Shah, A. A.‑G. for the State.

Dates of hearing: 27th and 28th April 1965.

.‑Nur Ilahi and his father, Karam Ilahi, were tried together for the murder of their co‑villager, Bahadur on 28th of October 1963, by the learned Sessions Judge, Campbellpur, who acquitted Karam Ilahi but convicted Nur Ilahi under section 304, Part I, Penal Code and sentenced him to transportation for life. The convict appealed and Nur Muhammad filed a revision petition for setting aside the order of acquittal of Karam Ilahi and Nur Ilahi of the offence under section 302 read with section 34, Penal Code and for ordering a retrial. It may here be stated that the District Magistrate, Campbellpur did not agree to recommend the case to the Provincial Government to file an appeal against the acquittal. The Criminal Revision (No. 215 of 1964) was dismissed at a preliminary hearing in so far as Karam Ilahi was concerned and was admitted to consider. the question whether the offence committed by Nur Ilahi fell more appropriately under section 302, Penal Code. Notice was, therefore, issued to Nur Ilahi alone. This judgment will dispose of the appeal as well as the revision petition.

2. On the fateful day at peshivela, the appellant and his father attacked the deceased. The appellant was armed with a knife, while his father had a chuka. The appellant stabbed the deceased on the left flank and his father gave blows with the chuka to the deceased. Shah Zada and Nur Hassan who were cutting grass in the neighbourhood witnessed the occurrence.

3. The motive for the murder was that a day prior to the occurrence, Mst. Rahmat Jan, mother of the deceased quarrelled with Mst. Zarina, mother of the appellant over the drawing of water from the well. Mst. Rahmat Jan gave two or three fist blows to Mst. Zarina who threatened that she would get the son of Mst. Rahmat Jan killed as a measure of retaliation.

4. After the occurrence, Nur Muhammad and others removed Bahadur, who was mortally wounded, to ‑Hasan Abdal Police Station at a distance of ten miles from the spot and there he lodged the report (Exh. P. F.) which was taken down by Head Constable, Dost Muhammad who prepared the injury sheet of Bahadur and sent him to the hospital for medical examination and treatment.

5. The case was investigated by Head Constable, Muhammad Nawaz, who reached the spot at 10‑30 p. m. on the 28th October 1963. On the following morning he took into possession blood‑stained earth and blades of grass from the spot and sealed it into a parcel vide memo. P. D. Nawab Khan lambardar and Ghulam Murtaza witnessed the recovery.

6. The Head Constable went to the Hujra of the appellant who produced blood‑stained knife (Exh. P.1) which was taken into possession and was sealed into a parcel by the Police vide memo. P. E. in the presence of Nawab Khan lambardar.

7. The case was partly investigated by Sub‑Inspector, Muhammad Sharif (P. W. 16). He learnt of the death of Bahadur in the hospital at 12, 15 noon on 29th October 1963. He prepared the injury sheet and drew up the inquest report and then despatched the dead body to the mortuary for post‑mortem examination.

8. On 28th October 1963, at 7 p. m. Doctor Muhammad Abu Bakar examined Bahadur‑ and found one stab wound " x 1/3" x thoracic cavity on the left posterior axillary line at the level of 8th intercostal space.

The injury was caused by sharp‑edged pointed weapon which was sufficient in the ordinary course of nature to cause death.

9. Doctor Muhammad Hafiz Khan (P. W. 11) performed the post‑mortem examination on the dead body of the deceased on 29‑10‑1963 at 4‑30 p.m. and found the following injury:

(1) A stab wound (stitched) " x 1/3" x chest cavity deep on the left side, at the level of 8th intercostal space.

The doctor found that the wall of the thorax and the peritoneum were injured on left sides, along with the diaphragm in its left lobe. The stomach was also found injured and so was the left lobe of liver.

Death, according to the doctor, was due to shock and haemorrage resulting in injuries to vital organs such as liver and stomach, by some sharp‑edged weapon.

The injury was sufficient in the ordinary course of nature to cause death.

10. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He pleaded self‑defence. The defence plea in nutshell is that Bahadur and one Ashraf attacked the appellant with hatchets. Bahadur gave blows to the appellant on the neck with the handle of the hatchet. He also tried to give a blow to the appellant from the sharp side and actually hit him on the neck and the appellant gave the deceased a blow with the sickle in self‑defence.

11. The story of, the motive was supported at the trial, by Mst. Rehmat Jan and her brother, Nur Muhammad. They deposed to the incident that occurred a day earlier and stated that the mother of the appellant threatened Mst. Rehmat Jan with getting her son killed in retaliation. The learned Sessions Judge did not believe that the killing made was done on account of the incident in which Mst. Zarina threatened to get the son of Mst. Rehmat Jan murdered in retaliation. The quarrel between the two women is mentioned in the first information report, but the deceased nowhere stated in his report to the Police that Mst. Zarina threatened his mother to get her son murdered in retaliation.

12. The learned Sessions Judge considered the defence plea in the light of the statement of Doctor Muhammad Hayat Malik, who was examined as a defence witness, in the Com mitting Court and rightly came to the conclusion that the plea that the appellant struck the victim with a sickle was untenable. Doctor Muhammad Hayat Malik admitted that the injuries found on the person of the appellant could not be the result of a direct lath blow or any other blunt weapon. Since the injuries found on the person of the appellant Were quite superficial and linear, the doctor conceded in cross -examination that they could be caused by the point of a thorn, or with nails.

13. After considering the ocular evidence which consists of the statement of Shah Zada (P. W. 13) and Nur Hassan (P. W. 14) the learned Sessions Judge came to the conclusion that the appellant had a sudden. fight with Bahadur in the course of which the former caused a fatal injury with the knife (Exh. P. 1) to the deceased.

14. According to the eye‑witnesses, they were cutting grass in Kheirmar hill to the east of Bara Khan Pass when they saw the appellant and his father chasing the deceased who was raising alarm. Karam Ilahi had a chuka, while the appellant was armed with a knife. Nur Ilahi stabbed Bahadur on the left flank and his co‑accused gave two or three blows with a chuka to the deceased who dropped to the ground. The eye witnesses shouted to Nur Muhammad, who is a maternal‑uncle of the deceased. He came to the spot together with others and removed Bahadur to the thana.

15. Since the part assigned to Karam Ilahi by the eye witnesses was not corroborated by the medical evidence, the trial Judge rightly gave him the benefit of doubt and acquitted him.

16. For the appellant, it has been vehemently argued that the conviction is improper on the same evidence which was disbelieved against a co‑accused. We do not agree. Karam Ilahi was acquitted for want of corroboration of the part assigned to him by the eye‑witnesses ,from the medical evidence. The case against the appellant, however, stands on a different footing.

17. Learned counsel for the appellant called attention to the circumstance that Nur Hassan is married to the mother's sister of the deceased and from this circumstance he wanted us to infer that Nur Hassan is an interested witness. Learned counsel also invited our attention to an admission made by Nur Hassan in cross‑examination to the effect that he and his brother, Rabnawaz, were prosecuted for killing a camel belonging to Ghulam Jilani and that Muhammad Sadiq, maternal‑uncle of Nur Ilahi (appellant) gave evidence against them in that case:

We note that Nur Hassan and his brother were acquitted in that case in the year 1955. We are clear in our mind that Nur in Hassan though interested had no direct enmity with the appellant. In so far as Shah Zada (P. W. 13) is concerned, the learned counsel for the appellant referred to the statement of Ghulam Murtaza (P. W. 8) which he made in cross‑examination. Ghulam Murtaza admitted that his wife is the phuphi of the deceased. One Ishaq is his sister's son and that Mst. Maqsuda is the wife of Ishaq and Shah Zada P. W. is her brother's son. The relationship of Shah Zada with the deceased is very remote. None of the eye‑witnesses is proved to be inimical to the appellant. The deceased and the two eye‑witnesses were permit holders from the Forest Department and were entitled to cut grass from Kheirmar hill and the adjoining area which was under the control of the Forest Department at the relevant time as is clear from the evidence of Taj Muhammad, Block Officer (P. W. 9). Shah Zada and Nur Hassan, in our opinion, are natural witnesses to the occurrence. The fact that they did not point out to the Police or to the Patwari who prepared the plan of the spot the stubbles of grass that they had cut, does not go to affect the prosecution case on merits.

18. The suggestion that the permits were fabricated later on to support the prosecution was not substantiated. The Block Officer produced the Permit Book before the Police on 2nd of November 1963 and it was taken into possession vide memo. P. N.

19. We are not inclined to hold that the version of the prosecution that the deceased was attacked when he had gone out to cut grass was false, because neither the sickle nor the grass which Bahadur had cut was taken into possession by the Police.

20. There is sufficient evidence, in our opinion, to connect the appellant with the commission of the offence. We have already rejected the defence plea and the only version which remains in the field is that of the prosecution.

21. In addition to the ocular evidence which we have no reason to disbelieve, there is also the evidence of the dying declaration made immediately after the occurrence by Bahadur to the Police. The deceased had no reason to attribute the commission of offence to the appellant and there is no good ground to disbelieve the dying declaration. We, therefore, accept the evidence of the dying declaration and also the ocular evidence.

22. The only question which remains to be decided is what offence was committed by the appellant. The probability is that the appellant resented the treatment meted out to his mother a day earlier by the mother of the deceased. In all likelihood, the appellant on finding Bahadur present in the area of Kheirmar hill stabbed him by means of a knife and not by a sickle as alleged by him. This is further confirmed by the production of the knife by the appellant to the Police. It was found to be stained with blood by the Chemical Examiner. It is altogether different that the origin of the blood could not be determined. . We have no manner of doubt that the appellant used the knife and not a sickle. The appellant selected the most vulnerable part of the body and delivered a savage blow. We consider that the conviction of the appellant should have been under section 302, Penal Code. On the principle that a man ‑must be presumed to intend the natural consequences of his act and further in view of the fact that the deceased had done nothing to provoke the attack on him, the act of the appellant ‑ who took undue advantage of his adversary causing him a mortal injury with a lethal weapon on a vital part shows that he acted in accrued and an unusual manner and his act fell under section 302, Penal Code.

23. In the circumstances, we do not agree that Exception 4 to section 300, Penal Code applied and that the offence committed fell under section 304, Part I, Penal Code. The learned Sessions Judge was not correct in coming to the conclusion that the offence committed fell under section 304, Part I, Penal Code, even if it was a chance encounter, because the deceased had done nothing to provoke the attack on him.

24. Since the Provincial Government did not file an appeal against the acquittal of Nur Ilahi of the offence under section 302, Penal Code 'and as the ends of justice have sufficiently been met because Nur Elahi was sentenced to transportation for life, we do not propose to order a retrial at the instance of the private complainant because no useful purpose will be served in view of the age of the prisoner.

25. For all these reasons, we dismiss the appeal of Nur Ilahi and also the revision petition filed by Nur Muhammad for ordering a retrial of the case.

K.B. A. Appeal dismissed.

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