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Criminal Appeal No. 79 of 1982, decided on 20th March, 1984.

---Ss. 302 & 326--Offence, alteration of--No previous enmity existing between parties--Accused causing a single blow on non-vital part of deceased with a Khanjar and that too on resistance offered by him- Accused, held, intended only to cause grevious hurt with a dangerous weapon, in circumstances--Conviction under S. 302, P.P C. altered to one under S. 326, P P C.

Muhammad Feroz v. Muhammad Arif and another 1976 S C M R 497 ref.

M. Sultan Alam for Appellant.

Ch. Nazir Ahmad for the State.

Date of hearing: 20th March, 1984.

These two criminal appeals No. 79 of 1982 and 81 of 1982 filed by Muhammad Aslam and Tariq Mehmood, the appellants respectively and the connected revision No. 61 of 1983 for the enhancement of sentence, arise from the judgment of learned Additional Sessions Judge, Multan, whereby he on 15-2-1982, convicted Muhammad Aslam and Tariq Mehmood appellants under section 302/34. P.P.C. for causing the death of Muhammad Iqbal in furtherance of their common intention and sentenced them to imprisonment for life and a fine of Rs. 5,000 each in default whereof to further R.I. for one year each. The appellants were also convicted under section 397/34, P.P.C. for committing robbery of tape-recorder and sentenced to .... R.I. and a fine of Rs. 2,000 each in default whereof to further R.I. for one year each. The sentences were ordered to run concurrently. It was directed that the fine when recovered be paid to the legal heirs of the deceased,

2. The occurrence took place on 28-1-1980 at about 8.00 p.m. near Rest House Cotton Research Institute, Village Rangeelpur of Police Station Mumtazabad. The distance between place of occurrence and the police station is 6 miles. The F.I.R. Exh. P.D. was lodged by Abdul Hameed P.W.5, the first cousin of the deceased at 8-30 p.m on the same day and was recorded by Muhammad Rafiq S.I. P.W.10.

3. The prosecution case is that at the eventful time Muhammad Iqbal deceased and Abdul Ghani were going on a cycle from Timber Market to their houses via Shujabad Road. The deceased was cycling and Abdul Hameed was sitting on the rear seat, holding tape-recorder Exh. P.7. They saw the appellants going ahead of them. When they crossed the appellants, Muhammad Aslam appellant gave push to the cycle whereby the deceased and Abdul Hameed P.W.5 fell down, Tariq Mehmood snatched tape-recorder Exh. P.7 from Abdul Hameed P.W.5. Muhammad Aslam -appellant took the cycle and wanted to ride on it but Muhammad Iqbal deceased resisted. Muhammad Aslam appellant gave Khanjar blow on the right side of buttock of Muhammad Iqbal who fell down. The alarm raised by the complainant and the deceased had attracted Taj Muhammad P.W.6 and Akbar Ali P.W.7 to the spot who also witnessed the occurrence. Tariq Mehmood tried to run away but was apprehended by the witnesses on a short distance. Muhammad Aslam, however, decamped with weapon of offence. The deceased while on his way to the hospital succumbed to the injury.

4. Dr. Munawar Tahir P.W.4 conducted post-mortem examination on the dead-body of the deceased and found following injuries:

(1) An incised wound on the back of the right hip on the right buttock with size 3 c.m. x 1 c.m. x 6 c.m. deep with profuse bleeding.

(2) Abrasions three in number on the lower part of the right leg:

(i) An abrasion 4 c.m. x 1 c.m. on the right lower leg present on the antero-lateral part of the lower 1/3rd of the right leg;

(ii) An abrasion c.m. x c.m. above abrasion No.1;

(iii) An abrasion 2 c.m. x 1 c.m. on the front of right lower leg in the lower 1/3rd part.

On dissection under injury No.1 it had cut the buttock muscles and their blood supplies and had reached the pelvis where it had cut the right femoral artery resulting in profused bleeding in the area.

Skull, scalp, brain, all were normal.

Abdomen. The pelvic cavity was penetrated due to injury No.1 and contained blood due to injury to right femoral artery. Stomach contained five to six ounces of white milk like fluid. There was no congestion and no abnormality. Small and large intestines were normal. Liver, spleen, kidneys were normal. Urinary bladder contained five to six ounces of urine. Sexual organs were normal.

In his opinion the death occurred due to injury No.1 which after entering the right gluteal region had entered and reached the right pelvic region and had cut the right femoral artery resulting in profuse bleeding, haemorrhage and shock, resulting in circulatory failure and death. This injury was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Injury No.1 was caused with sharp-edged weapon and injury No.2 (i,ii,iii) with blunt weapon. Time between death and post-mortem was within eighteen hours.

5. Muhammad Rafiq S. I. went to the spot, and took into possession cycle Exh. P.9. Abdul Hameed P.W.5 produced tape-recorder Exh. P.7 before him which was taken into possession vide memo Exh. P.G. He arrested Tariq Mehmood appellant and finding him injured, he prepared his injury statement. On 29-1-1980, he arrested Muhammad Aslam appellant and got removed blood-stained shalwar Exh. P.10 and shirt Exh. P.11 from his person. Finding him also injured he prepared his injury statement. On 31-1-1980 Muhammad Aslam appellant got recovered blood-stained Khanjar Exh. P.8 from a heap of rubbish in an abandoned Ihata.

6. Dr. Imtiaz Ahmad P.W.9 found 2 simple injuries on the person of Tariq Mehmood appellant which were caused by blunt weapon. He found one simple injury on the person of Muhammad Aslam caused by blunt weapon.

7. In order to prove its case, the prosecution examined as many as 10 witnesses out of whom Abdul Hameed P.W.5, Taj Muhammad P.W.fi and Akbar Ali P.W.7 have given the ocular account of the occurrence. They have supported the prosecution case as detailed above. They claim to have seen Muhammad Aslam causing Khanjar blows to the deceased and robbery of the cycle as well as the tape-recorder. Taj Muhammad P.W.6 and Akbar Ali P.W.7 also supported the recovery of tape-recorder Exh. P.7, blood-stained Khanjar Exh. P.8, Cycle Exh. P.9, blood-stained Shalwar Exh. P.10 and blood-stained shirt Exh. P.11 from the appellants. The rest of the evidence is more or less of formal nature.

8. The appellants when examined under section 342, Cr.P.C. denied all the incriminating circumstances. Explaining the injuries found on their persons, they stated that they had received the injuries at the hands of the police. They produced three witnesses in defence. Muhammad Afzal D.W.1 proved agreement Exh. D.W.1/A between Haji Muhammad Sharif and Bashir attested by-Muhammad Aslam appellant. Syed Shafaqat Hussain D.W.2 and Manzoor Hussain D.W.3 stated about the alibi of Tariq Mehmood. They further stated that Tariq Mehmood was arrested by the police from his house on 29-1-1980 at 8-00 a. m.

9. Before me, Sh. Farooq Ahmad and Mr. M. Sultan Alam Advocates, the learned, counsel for the appellants have not challenged the occurrence, part played by the appellants and the application of section 34, P.P.C. They however, seriously challenged the conviction of the appellants under section 302, P.P.C. According to them it was at the most a case of voluntary causing grievous hurt with sharp-edged weapon.

On the other hand, the learned counsel for the State, supported the judgment of the learned trial Court. The learned counsel for the complainant contended that not only offence under section 302, P.P.C. is made out against the appellants but also they deserve the maximum punishment.

10. I have considered the arguments advanced by the learned counsel for the parties with care. find that the learned counsel for the appellants have rightly and wisely conceded the occurrence and the identity of appellants inasmuch as the three eye-witnesses who have no animus against the appellants have implicated the appellants and attributed active participation in the crime. Further one of the appellants was apprehended near the spot. On my independent assessment I do not see any inherent infirmity in the ocular evidence.

11. On the question of nature of offence committed by then appellants I feel persuaded to agree with the learned counsel for the appellants for the reasons that there was no previous enmity between the parties; that Muhammad Aslam did not inflict the blow straight away; that he inflicted the blow only when he was resisted. That only one blow and that too, on the non vital part of the body, i.e. buttock was given; that the blow happened to cut the famoral artery; that the appellants as lay men cannot be saddled with knowledge of precise location of this artery and that the death was due to profuse bleeding, haemorrhage and shock. Following the view of learned Supreme Court in case Muhammad Feroz v. Muhammad Arif and another' reported as 1976 SCMR 497, I am of the opinion that 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. In this view of the matter, the offence made out is not that of murder or culpable homicide not amounting to murder. The appellant could only be presumed to have intended to cause grievous hurt with a dangerous weapon punishable under section 326 of the Pakistan Penal Code. Resultantly, the conviction recorded under section 302, P.P.C. and the sentence awarded thereunder is set aside. The conviction under section 302, P.P.C. is altered to one under section 326, P.P.C. and the appellants are sentenced to 7 years R.I. each and a fine of Rs. 5.000 each. in default thereof to' R.I. for one year. The conviction and sentence under section 397/34, P. P. C. is, however, maintained. Both the sentences would run concurrently. The fine when recovered be paid to the legal heirs of the deceased.

S.G.D. Order accordingly.

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