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Petition for Special Leave to Appeal No. 8‑P of 1974, decided on 20th April 1974.
(On appeal from the judgment and order of the Peshawar High Court, dated the 14th of February 1974, in Criminal Appeal No. 16 of 1973).
‑‑ S. 326‑read with S. 302‑Grievous hurt‑Murder‑No evidence of any premeditation on accused's part‑Incident appearing to be a sudden affair‑Only one blow given by accused upon deceased's thigh, not a vital part of body‑Blow, however happening to cut femoral artery and veins resulting in death‑Accused being a layman could not be saddled with knowledge of location of different arteries and veins‑‑Stab with knife or dagger aimed at arm or log severing artery leading to death of victim, reasonable to argue, in. circumstance, that offence was not one of culpable homicide‑Accused in such case could only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon‑Accuseds' case, held, fell within S. 326 and not under S. 302, P. P. C. [Grievous hurt.
Public Prosecutor v. Ramaswami Nadar A I R 1940 Mad. 745 ref.
Dr. Abdur Rahim Khan, Advocate Supreme Court instructed by Amirzada Khan, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 20th April 1974.
The petitioner ‑is the father of Muhammad Rafiq who died as a result of the occurrence that took Place on the 12th of February 1971 at 8.45 p.m.
According to the prosecution case respondent Muhammad Arif came to Bazar Ander Shehr and started abusing the Kashmiris in general near the shop of Nazir Baker. Muhammad Rafiq deceased who was a Kashmiri himself and happened to be there asked the respondent not to abuse tae Kashmiri community as a whole but to abuse the particular individual who had annoyed him. The respondent at once took out a dagger and gave one blow with it on .the left thigh of Muhammad Rafiq. Rafiq was taken to the hospital and subsequently, he succumbed to his injuries the same night. The medical evidence disclosed that the femoral artery and veins were cut and he d led as a result of shock and excessive bleeding.
The occurrence was witnessed .by two witnesses who have been found to be natural and completely disinterested. The occurrence itself and the part played by the respondent were not seriously challenged before any Court. The trial Court, however, convicted the respondent under section 302 of the Pakistan Penal Code and sentenced him to transportation for life and a fine of Re. 10,000.
On appeal by the respondent, a Division Bench of the Peshawar High Court altered the conviction of the respondent to one under section 326 of the Pakistan Penal Code and reduced his sentence to seven years' rigorous imprisonment thereunder. The sentence of fine was, however, maintained.
The petitioner has contended before us that the offence made out against the respondent was that of murder or at any, rate culpable homicide not amounting to murder. We are unable to accept this contention.
There appears to be no evidence of any premeditation on the part of the respondent, The incident appears to be a sudden affair as the deceased had objected to the abuse to the entire Kashmiri community by the respon dent. Only one blow was given by the respondent upon the thigh of the deceased, which is not a vital part of the body. The blow happened, however to cut, the femoral artery and veins. The learned Judges of the High Court, have rightly observed that the respondent as a lay man could not be saddled with the knowledge of the location of the different arteries and veins in the human body, and in support of their view they have relied upon the case of Public Prosecutor v. Ramaswami Nadar (A I R 1940 Mad. 745). In the case under report, it was observed that an ordinary person was not presumed to know the precise location of the arteries in the human limbs. If a stab with a knife or dagger aimed at an armor a leg severs any artery and the injured man dies as a result, it night be quite reasonable to argue that the offence was not one of culpable homicide and that the assailant could only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon.
We are in agreement with the view taken by the learned Judges of the High Court. From the nature of the injury caused upon the deceased it is legitimate to infer that it was a hurt which endangered the life of the victim. As a matter of fact the deceased died the same night as a result of shock and excessive bleeding frown the injury.
In our opinion, therefore, the respondent has been rightly convinced and sentenced under section 326 of the Pakistan Pena Code.
On behalf of the petitioner was contended to the sentence was not adequate. We are unable to entertain this contention as this Court seldom interferes with a legal sentence.
The petition is accordingly dismissed.
Petition dismissed.
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