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Criminal Appeal No. 466 of 1955, decided on 7th Septem ber, 1955, from the order of Muhammad Din, Sessions Judge, Gujranwala, dated the 10th May, 1955.
S. 300, Exception 4‑Taking undue advantage or acting in a cruel manner is a pure question of fact.
The question whether an accused person did not take undue advantage or act in a cruel manner is a pure question of fact which has to be determined with reference to the material before the Court in each case.
It cannot be said to be a proposition of law that it did not amount to taking undue advantage or acting in a cruel manner if an accused person suddenly assaulted the deceased with a knife and killed him on the spot, because the latter law had in the course of an altercation abused and given one or two slaps to the former.
Such a view is contrary to the plain grammatical meaning of the words used by the legislature.
Nasir‑ud‑Din Haider v. Crown P L D 1950 Lah. 171, dissented from.
Nazir Ahmad Khan and S. A. Karim, for Appellant.
S. A. Mahmood, A. A. G., for Respondent.
‑Ghulam Qadir, aged about eighteen or nineteen years, has been sentenced to death by the learned Sessions Judge, Gujranwala, for the murder of Mst. Rasul Bibi, daughter of his stepfather, Mubarik Ali. He has appealed and the sentence of death awarded to him has been referred to us for confirmation under section 374, Criminal P. C.
Chaudhry Nazir Ahmad Khan, learned counsel for the appellant, has not (and in our opinion rightly so) contested before us the finding of the learned trial Court that the appellant caused an injury with a sharp edged weapon to Mst. Rasul Bibi at about 5 a.m., on 30th October 1954, as a result of which she died in the Civil Hospital, Hafizabad, on 30th November 1954. He, however, maintained that the offence committed by the appellant fell within the ambit of section 304, Part I, P. P. C., or in the alternative under section 326, P. P. C. His last contention was that the circumstances in which the offence took place did not warrant the extreme penalty of law.
Mst. Rasul Bibi and her brother, Muhammad Yusuf, were the children of Mubarik Ali P. W. from his previous wife who had died about fifteen years ago. On her death, Mubarik Ali married Mst. Mahandan who had two sons, Khushi Muhammad and Ghulam Qadir (appellant), from two different husbands: Along with their mother, these boys also took up residence with Mubarik Ali at Hafizabad. About two years before the occurrence, Mst. Rasul Bibi was married to one Ghulam Muhammad, resident of village Pit Kot, but the appellant, who had acquired a liking for her, tried to persuade Mst. Rasul Bibi to obtain divorce from her husband and marry him. Mst. Mahandan was also in favour of the proposal and encouraged him to press his proposal to the deceased. About two months before the occurrence, Mst. Rasul Bibi came from Pir Kot to Hafizabad on the occasion of the circumcision ceremony of the son of Khushi Muhammad and the appellant pestered her with the proposal of his marriage. This was resented by the latter and led to frequent quarrels in the house of Mubarik Ali. On the day of occurrence, Mubarik Ali and his wife, Mst. Mahandan, happened to be away at Qila Didar Singh. Khushi Muhammad, as usual, was sleeping at his shop in the bazar and his wife, Mst. Rabia Bibi, who was ill, was asleep in a separate kotha. At 5 a.m. the appellant went to the cot of the deceased and removed her quilt. At this the deceased stood up and the appellant told her that he had brought a dagger to kill her. Mst. Rasul Bibi called for Mst. Rabia Bibi, but, before she could come to the deceased's help, Ghulam Qadir stabbed her in her flank on the right side, and ran away.
The actual incident of stabbing was preceded by an altercation and exchange of abuses between the appellant and Mst. Rasul Bibi deceased. This is deposed to by Rahim Bakhsh, the only eyewitness in this case. Rahim Bakhsh (P. W. 9) stated that he heard a raula from the house of the appellant and went there. In the court‑yard Mst. Rasul Bibi was standing grappling with Ghulam Qadir appellant. Then said, there was a verbal altercation between the two. The appellant was saying that he would settle the matter on that day and was asking the deceased to give her final decision as to whether she would marry him or not. In reply to it, the deceased. said that she had already married and unless her parents agreed to it she could not consent to marry him. He (the witness) then tried to separate the appellant and asked him to stop the quarrel which was going on every day and leave the matter for the decision of his parents. Both the deceased and the appellant were exchanging abuses, at which the latter took out a dagger from the fold of his loin‑cloth end gave a stab to Mst. Rasul Bibi on her right side. The appellant then ran away and the witness, assisted by Malik Inayat Ullah and Muhammad Anwer, who had, in the meantime, also appeared on the scene, took Mst. Rasul Bibi to the Civil Hospital Hafizabad.
Doctor Fazal Amad, after attending to the injured, sent a ruqqa to the local police station and asked for arrangements to be made for recording the dying declaration of Mst. Rasul Bibi. In response to it the Station House Officer brought Mr. Muhammad Sarwar, Magistrate Third Class (Naib Tehsildar), to the hospital and the latter recorded the statement of Mst. Rasul Bibi (Ex. P. C/2) at about 7 a.m. There is no mention of any altercation or exchange of abuses between the deceased and the appellant in this statement, but, at the same time, there is also no mention of the presence of any eyewitness at the time of the occurrence. In our view, the statement is very sketchy in which all the details of the occurrence are not mentioned and cannot be given preference to the statement of Rahim Bakhsh P. W.
The same doctor later on performed the post‑mortem examination on the body of the deceased which revealed that the peritoneal cavity was full of pus. The guts and omentum were of a faint, reddish black, gangrenous colour, all adherent to each other. A cut mark, 1" x ", on the right side of hepatic flexure (large intestine) was present in an unhealed condition and leaked. The superior surface of the liver was covered with thick flakes of pus and there was an unhealed dirty wound, 2" x ", on the right lobe passing obliquely through and through the substance of the liver in the same direction as the external stab wound, whole of the right lobe looked of a darker ecchymosed ingery colour. Death, in his opinion, was due to shock and exhaustion from septic peritonitis, hepatitis and septic inflammation of right lung and pleura, which had all followed the infliction of penetrating wound in the right flank and consequent injury to the large gut, and was sufficient in the ordinary course of nature to cause death.
On the basis of the statement of Rahim Bakhsh and the medical evidence referred to above, the learned counsel for the appellant contended that the facts of this case were covered by Exception 4 to section 300, P. P. C. He also relied upon a Division Bench authority of this Court Nasir‑ud‑Din Haider v. Crown (P L D 1950.Lah. 171). The authority cited by the learned counsel is distinguishable on facts and the question whether an accused person did not take undue advantage or act in a cruel manner A is a pure question of fact which has to be determined with reference to the material before the Court in each case. For these reasons, we do not propose to go into the facts of 91 Nasir‑ud‑Din Haider's case. But if it was intended to lay down, as contended by the learned counsel, as a proposition of law that it did not amount to taking undue advantage or acting in a cruel manner if an accused person suddenly assaulted the deceased with a knife and killed him on the spot, because the latter had in the course of an altercation abused and given one or two slaps to the former, then we respectfully beg to differ with this view because it will be contrary to the plain grammatical meaning of the words used by the c legislature. In the present case, the evidence is that the appellant went to the bed of the deceased armed with a dagger. In making this approach, he could not have any laudable motive before him. His intention probably was either to make a criminal assault on the deceased or to do away with Mst. Rasul Bibi in case she finally rejected his proposal for marriage. If a young man of eighteen or nineteen years under these circumstances stabs a girl of sixteen, there can be no manner of doubt that not only he took undue advantage of the helpless position of the deceased, but also acted in a cruel manner. The argument that the appellant did not intend to kill Mst. Rasul Bibi because he did not repeat the first blow given by him in the flank of the deceased is also devoid of force. The case clearly falls within clause Thirdly that if the act is done with the intention of causing bodily injury to any person, and the bodily injury, intended to be inflicted, is sufficient in the ordinary course of nature to cause death, it amounts to murder.
For the reasons given above, we agree with the finding of the learned trial Court and maintain the appellant's conviction under section 302, R. P. C. We, however, alter the sentence of death to transportation for life, because, as noticed above, the appellant had been encouraged by his mother and possibly Mubarik Ali, the father of the deceased, was also conniving at the overtures which the appellant had been making to Mst. Rasul Bibi after she was married to another person. Moreover, if the evidence of Rahim Bux is to be believed the appellant seems to have acted on the spur of the moment.
With the modification in the sentence indicated above, this appeal is dismissed and the sentence of death is not confirmed.
A. H.
Sentence reduced.
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