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Criminal Appeal No. 178 and Confirmation Case No. 48 of 1974, decided on 16th March 1976.

‑‑‑ S. 302 read with S. 300, Exception IV‑Murder‑Sudden fight plea of‑Cattle of accused trespassing into deceased's fields anti while deceased proceeding to complain against him to Nekmard accused giving a hatchet blow to deceased resulting in his death‑Contention that it being a sudden fight and accused having no intention to cause death offence would fall under S. 304 Part 11, P. P. C.‑Contention, held, not correct‑Deceased being un‑armed, accused held, further, had no justification for using a formidable weapon like hatchet‑Conviction maintained, in circumstances.

Abdullah Shah for Appellant.

Murtaza Hussain for A.‑G. for the State.

Date of hearing : 10th March 1976.

‑The appellant leas been convicted by Additional Sessions Judge, Dadu for an offence under section 302, P. P. C. and sentenced to death. His appeal as well as reference for confirmation of the death sentence are before us and will be disposed of together by this judgment.

2. The facts of the prosecution case in brief are that on 26th September 1971 at 3‑30 p.m. buffaloes of appellant Pir Bux tees‑passed into the cultivation of Dhani Bux. There was a quarrel between the appellant and Dhani Bux but at the intervention of complainant Uried Ali the quarrel subsided. Thereafter Dhani Bux accompanied Umed Ali to the otak of Arshad Ali good man of the village to complain about the conduct of Pir Bux. Meanwhile appellant Pir Bux and his brother Din Muhammad came there. Pir Bux was armed with a hatchet while Din Muhammad was empty handed. Din Muhammad tried to pursuade Dhani Bux not to make a complaint and to settle the matter privately. However, there was exchange of hot words between deceased Dhani Bux and Pit Bux as a result of which Pir Bux dealt a hatchet blow with sharp side on the head of Dhani Bux, Pir Bux s brother Din Muhammad is then said to have given fists and kicks to Dhani Bux also. On the noise, P. Ws. Muhammad Hashim, Muhammad Uris and Kamaluddin also arrived there and at their intervention the fight ended. Deceased Dhani Bux narrated to the witnesses how the quarrel had started. Complainant Umed Ali then went to Khairpur Nathan Shah Police Station situated at a distance of about one mile and lodged the F. I. R. within one hour of the incident. The S. H. O. directed the complainant to produce the injured. While Umed Ali was bringing the injured to the police station from the village the injured went unconscious and never regained consciousness till his death in the Khairpur Nathan Shah Hospital on 28‑9‑1971 at 1‑45 p. m.

3. Muhammad Yamin S. H. O., Khairpur Nathan Shah Police Station visited the scene of offence on the same day. The rest of the investigation was carried on by A. S. I. Sher Zaman. The A. S. I. found blood‑stains, struggle marks and footprints in the courtyard of otak of Pir Arshad Ali at village Pirjogoth. He secured the blood‑stained earth in presence of mashirs and prepared mashirnama of the scene. He also visited the place where the cattle of the appellant had tree‑passed into the field of deceased Dhani Bux. There were hoof marks of buffaloes as well as the footprints of some persons. Such mashirnama was also prepared. A. S. I. them recorded statements of P. Ws. Muhammad Uris, Kamaluddin, Muhammad Hashim and others. Appellant Pit Bux and his brother Din Muhammad surrendered themselves before the police and they were arrested. On the same day appellant Pir Bux led the police‑party to his house at village Pirjogoth and he produced one blood-stained hatchet lying in the house concealed in rullies or quilts behind the wooden box. There was blood and some mud on the handle as well as on the blade. This hatchet was scale. The blood‑stained earth from the scene and the hatchet were later on sent to the chemical examiner who forwarded his report that the articles were stained with human blood. Both the accused were then sent up in Court and committed to the Court of Sessions on a charge under sec tion 302/34, P. P. C. The learned Additional Sessions Judge Dadu convicted appellant Pie Bux of offence under section 302, P. P. C. but found that accused Din Muhammad did not share any common intention with him to commit the murder and he accordingly acquitted Din Muhammad.

4. The version of the appellant at his trial in the Court of Sessions was that lie was assaulted by the deceased and complainant Umed Ali on his land and he had also been abused. While he was going to his house deceased Dhani Bux followed him and on approaching him Dhani Bux threw his hatchet at him. He picked up that hatchet and dealt a single blow to the deceased with it, apprehending danger at his hands. The appellant examined witnesses Shahabuddin and Abdullah Khan in support of his version in his defence.

5. There is hardly any dispute regarding the fact that Dhani Bux died as a result of the hatchet injury sustained by him. Dr. Jan Muhammad, Medical Officer Khairpur Nathan Shah found the following external injury on his person

(1) an incised wound 2 x ' deep to the lobe on the left parital region. After the death of the patient the medical officer conducted post‑mortem examination. He found that the skull under surface of the scalp at the side of this injury was achymosed clotted blood was seen on the left parietal region. A fracture of the skull was detected starting from the left parietal eminence and running laterally downwords ending at the root of left oar. It measured 3 4/5'. Clotted blood was seen on the parietal lobe of left hemisphere of the brain. 16 the opinion of the medical officer this injury was sufficient in the ordinary course of nature to cause death. Death had resulted due to shock and intra carnial haemorrhage causing compression of the brain due to fracture of the skull resulting from the injury inflicted with a sharp weapon. A man is presumed to have intended the natural consequences of his act. Whoever caused that injury with a formidable weapon like the hatchet with its sharp side on the vital part of the body such as the skull must have intended to cause the injury sufficient in the ordinary course of nature to cause death. The offence would, therefore, fall under clause (3) of section 300, P. P. C.

6. It has also hardly been disputed that appellant Pir Bux caused the above injury to deceased Dhani Bux. On this point there is the ocular testimony of complainant Umed Ali corroborated by F. I. R. lodged by him within one hour of the incident. There is also the evidence of eye‑witnesses Muhammad Hashim, Uris and Kamaluddin who came running on hearing the commotion and stopped the appellant from causing any further damage. Complainant Umed Ali was admittedly related to Dhani Bux but his presence; at the scene has hardly been disputed. He had everted the quarrel at the first incident which had started at the cultivation. He had then accompanied the deceased to the otak of Pir Arshad Ali, a good man of the village to lodge a complainant against Pir Bux. He is, therefore, the most natural witness who must have been present at the time of the incident and the mere fact of his relationship would not be sufficient to exclude his evidence, in the absence of even a suggestion regarding any motive for falsely implicating the appellant. P.Ws. Muhammad Hashim and Uris were also residents of the same locality. Muhammad Hashim resided at a distance of 30 or 40 paces from the otak of Pir Arshad Ali while Uris had his shop near the otak at a distance of about 60 paces. They have both stated that they went on hearing the noise and Kamal also reached there and they all saw Pir Bux, Din Muhammad, Dhani Bux and complainant Umed Ali in the otak of Pir Arshad Ali. They saw Pir Bux causing hatchet injury to deceased Dhani Bux who fell down as a result of it. Thereafter accused lain Muhammad gave some fists blows and kicks to the deceased but at their intervention he and Pir Bux left the place. Muhammad Hashim has further deposed that Dhani Bux on equity narrated the incident of the cattle tress‑pass leading to the first quarrel. He also stated that thereafter he had come to the otak to report the matter when Pir Bux came after him with a hatchet and after exchange of hot words the incident took place and seen by them. This fact is also narrated by P. W. Uris. The last eye witness Kamaluddin has stated that he had come to this village to enquire after the health of his father‑in‑law who was lying ill. He came on hearing the commotion and on reaching the otak of Pir Arshad Ali he witnessed the incident. The evidence of this witness appears to have been accepted by the defence counsel, as not a single question was put to him in cross -examination. His presence at the scene has not been doubted.

7. Apart from the above occular evidence and the alleged oral dying declaration of deceased Dhani Bux there are pieces of circumstantial evidence corroborating the ocular testimony. According to the evidence of mashir Saeed Ali there were foot‑prints as well as hoof marks at the field of the deceased where the quarrel first stated. The mashir has also deposed in respect of the production of blood‑stained hatchet by appellant Pir Bux from its place of concealment inside his house. Not a single question was put by the defence counsel to this mashir and there was no suggestion of the hatchet having been foisted. The report of the chemical examiner was positive.

8. The version of the defence does not appear to be either reasonable or probable. According to his defence version, the appellant was going to his house when deceased Dhani Bux threw the hatchet at him but the hatchet missed him. Appellant then picked up that hatchet and dealt a blow to Dhani Bux on his head. No blood‑stains were, however, found outside the house of the appellant or anywhere near it, on the other hand there was blood inside the courtyard of the otak of Pir Arshad Ali. This fact lands support to the prosecution version that the incident took place inside the otak and not as suggested by she appellant. If the deceased had thrown the hatchet and the hatchet had missed its mark and was in posses sion of the appellant there was no longer any reasonable apprehension or danger to the life of the appellant who was armed with a hatchet while his adversary was left with no weapon. This line of defence is to say the least rather unnatural and does not fit in with the facts and circumstances of the case. It was also an afterthought. The statement of the appellant before the committing Magistrate is silent on this point. The appellant had merely denied the facts and allegations in that statement as false. He had not stated that he was first attacked and he had then given a blow with that hatchet in exercise of the right of private defence. The names of the defence witnesses were also not mentioned in the earlier statement. These defence witnesses have been disbelieved by the trial Court and they have been found to be un‑worthy of any credence. They bad not givers any such information about the incident to the police and they had not been examined by the police during the investigation of this case. If the hatchet belonged to the deceased and it had been thrown at the appellant and he had used it in exercise of the right of private defence then no necessity would have arisen for the appellant to carry this hatchet to his house and to conceal it under the beding lying behind the box. Thus the surrounding facts and circumstances by themselves show the version of the appellant to improbable and unreasonable. It hardly creates any doubts with regard to the facts appearing in the testimony of the prosecution witnesses.

9. It has been argued by the learned advocate on behalf of the appellant that the testimony of alleged eye‑witnesses should be excluded because they are either relations or caste fellows of the deceased and P. W. Kamaluddin resided 2 or 3 miles away in another village and is therefore a chance witness. Mere fact of relationship is not, however, sufficient to render the evidence of this witness as untrustworthy when they resided very close to the scene of the incident and their presence can hardly be disputed. No suggestion has been made in respect of any of these witnesses to show that they had a reason to falsely implicate the appellant. The name of P. W. Kamaluddin was mentioned even in the F. I. R. lodged immediately after the incident when there was hardly any time for concocting false evidence.

10. It has next been argued that these witnesses have been disbelieved in respect of accused Din Muhammad cannot be relied upon in respect of appellant Pir Bux. It is true that credibility of a witness is not divisible. In this case, however, the witnesses do not implicate appellant and Din Muhammad to the same extent in their evidence. On the other hand Din Muhammad is said to have come there to persuade the deceased not to lodge the complaint with the nekmard but to amicably settle the dispute privately. It was, therefore, rightly held by the trial judge that he could not have shared any common intention with his brother Pir Bux to commit this murder. In any case he is said to have given some fists and kicks after the hatchet blow was inflicted by Pir Bux. The part assigned to Din Muhammad was, therefore, a minor one and it was snot alleged that he had in any way aided or abetted the infliction of the fatal blow. The evidence against Pir Bux stood fully corroborated by the medical evidence and the surrounding facts and circumstances and it had been rightly relied upon as basis for conviction of appellant Pir Bux.

11. It has then been argued that the facts of the case do not constitute an offence under section 302, P. P. C. since the blow was inflicted during the sudden fight and there was no intention to cause death. There was, however no justification for use of a deadly weapon like hatchet when the deceased and his companions were unarmed. The case does not, therefore, fall within Exception (4) to section 300, P. P. C. On thud one hand the learned counsel argued that death was caused in the exercise of rights of private defence; on the other hand the plea of sudden fight is being advocated.

12. Lastly it has been stated that even if the injury was caused as admitted by the appellant, the offence would fall under section 304, Part II as there was only the knowledge that the blow might result in death without there' being any intention to cause death or such bodily injury as was likely to cause death. As already stated above this line of argument cannot be accepted since the nature of injury by itself would show that there was intention to cause such an injury as was sufficient in the ordinary course of nature to cause death.

13. Thus hardly any ground has been made out for interference. The conviction and sentence of death are accordingly maintained and the appeal is dismissed.

Appeal dismissed.

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