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Criminal Appeal No. 15 and Murder Reference No. .6 of 1982/ BWP, decided on 12th March, 1984.

--S. 302 read with S. 300, Exception 4 & S. 304, Part II-Murder --Sudden fight-Offence, alteration of-No previous enmity between accused and deceased and matter flared up all of a sudden in which accused in heat of passion giving chhuri injuries to deceased on thigh--Accused meticulously avoiding to inflict injuries on vital part of body of deceased nor inflicting any blow after deceased fell down-Case of accused, held, fully covered under Exception 4 of S. 300, P. P. C. and offence committed fell under S. 300, Part II, P. P. C. in circumstances.

Sardar Ahmad Khan and Muhammad Asif for Appellant.

G. M. Bodhla for A. A.G. for the State.

Malik Yar Muhammad for the Complainant.

Date of hearing: 12th March, 1984.

Muhammad Shafiq alias Teddy (27) has been convicted by Sessions Judge Rahimyar Khan for the murder of Nabi Bakhsh, who sentenced him to death and a fine of Rs. 5,000 in default whereof to further undergo R. I. for one year on 28th February, 1982. The fine, if realised, was directed to be paid to the heirs of the deceased by way of compensation. The convict has filed appeal (Criminal Appeal No. 15/82/BWP) against his conviction and sentence and the trial Court has forwarded the proceedings under section 374, Cr. P. C. for confirming death sentence of the appellant. We propose to dispose of both these matters by this single judgment.

2. The incident took place at 7-00 p. m. on 8th December, 1980 at the shop of the deceased in Rahimyar Khan Town at a distance of about 1 kilometer from City Police Station, Rahimyar Khan, where Muhammad Sohara (P. W. 8) brother of Nabi Bakhsh deceased lodged report Exh. P. A. at 7-30 p. m., the same day, which was recorded by S. I. Jaffer Hussain Shah (P. W. 10).

3. The prosecution case briefly is that Nabi Bakhsh deceased was doing business of "Toori Dana" (horse fodder) in partnership with Muhammad Yaqoob (P. W. 9). The appellant, a tongs-driver by profes sion, used to purchase toori dana for his horse from the deceased. On 8th December, 1980 at 7 p. m., the appellant parked his tonga at a distance of 20/25 paces from the shop and came to the deceased and asked him to pay him "Jagga Tax" in the presence of Muhammad Sohara (P. W. 8), brother of the deceased, Muhammad Yaqoob (P. W. 9) business partner of the deceased and Muhammad Iqbal P. W. (not produced) who, at that time, were sitting there. Nabi Bakhsh declined and asked him to leave Ghundaism. At this the appellant tried to snatch wrist watch of Muhammad Iqbal P. W. (not produced) to which the deceased put up resistance. The appellant threatened him to keep away. They started grappling but the witnesses separated them. At this the appellant went running to his tonga, brought a chhuri from there and gave blows with it on the left thigh of Nabi Bakhsh as a result of which he fell down. Muhammad Yaqoob and Muhammad Iqbal tried to catch hold of the appellant who warned them not to get near him and escaped in the tonga brandishing his chhuri. The deceased was removed in injured condition in another tonga to the Police Station where Muhammad Sohara P. W. lodged the F. I. R.

4. S. I. Jaffer Hussain Shah after recording the F. I. R. prepared the injury statement Exh. P. B. in respect of the deceased and sent him to the hospital under the police escort for treatment and himself proceed ed to the spot. Having learnt about the expiry of the deceased, he rushed to the hospital, and having prepared inquest report Exh. P. C. entrusted the dead body to Rashid Constable for getting it post-mortemed. He then collected blood-stained earth from the spot, vide memo. Exh. P. E. On the next day he arrested the appellant who had a mark of swelling on the right side of the rib and the lip besides a bruise on his middle left finger but he was not got medically examined perhaps for the reason that the injuries were minor, however, under the directions of the Sessions Judge the appellant was got medically examined on 17th December, 1980. He removed the blood-stained shirt from the person of the appellant and secured it under memo. Exh. P. G. on 9th December, 1980. On 12th December, 1980 chhuri P. 4 was recovered from residential Chaubara of the appellant at his pointation, vide memo. Exh. P. H.

5. Chhuri P. 4, shirt P. 3 and blood-stained earth removed from the place of occurrence were found stained with human blood, vide reports of Chemical Examiner and Serologist Exhs. P. M. and P. N. respectively.

6. Dr. A. H. Cheema, Medical Officer, District Headquarters Hospital, Rahimyar Khan, on 9th December, 1980 conducted autopsy on the dead body of Nabi Bakhsh and found the following injuries:-

(1) An incised wound on the left groin 1" x " x 1 ''.

(2) An incised wound below injury Nos. 1, 4 c. m. x 2 c. m. x 3 c. m.

(3) An incised wound on the back of left thigh 1 ' x " x 4".

Under these injuries blood vessels and femoral arteries were found cut. In the opinion of the Doctor death occurred due to haemorrhage and shock produced by cutting of the major blood vessels. He further opined that these injuries were sufficient to cause death in the ordinary course of nature. In cross-examination he stated that none of the injuries was individually fatal. He further stated that if the bleeding of big vessels had been timely attended to and stopped, the death could have been avoided.

7. In all, 10 witnesses were produced at the trial. The prosecution rests on the ocular testimony of Muhammad Sohara (P. W. 8), Muhammad Yaqoob (P. W. 9), the incriminating recoveries deposed to by Khair Muhammad (P. W. 7) and S. I. Jaffer Hussain Shah (P. W. 10) besides the medical evidence furnished by Dr. A. H. Cheema (P. W. 1). The appellant denied the allegations and raised plea of self-defence and filed a written statement Exh. D. C. which reads as under:-

"I am a poor tonga-driver and earn livelihood for me and my parents by doing labour. On the day of occurrence, I went on my tonga to Nabi Bakhsh's shop for purchasing toori dana for my horse. He demanded Rs. 8 per seer for toori dana against usual rate of Rs. 6 per seer. I refused to pay him the higher rate whereupon verbal altercation ensued and Nabi Bakhsh deceased abused me and also in a fit of anger threw at me "iron weight" which hit my chest. Thereafter Nabi Bakhsh felled me on the ground and gave blows on my face and head and also pressed my neck with both of his bands. My breath was choked and apprehending that I would die I took out knife from my right pocket and with right hand I gave him 2/3 knife blows on his thigh to save my life. At that time, except Nabi Bakhsh none else was present. After the incident I went to the police of my own. As Nabi Bakhsh had died, the Sub-Inspector arrested me. The Thanedar did not get me medically examined for concealing the true facts from the Court. My medical examination was carried out under your orders. I am innocent."

He denied the recovery of blood-stained shirt P. 3, chhuri P. 4 from him and also declined to produce defence evidence.

8. The learned Court considering the evidence on record held that two small lacerated wounds on the person of the appellant were of no avail to the defence for making out a justification for murdering Nabi Bakhsh and thus dismissing his special plea found him guilty under section 302, P. P. C. which is being challenged in this appeal.

9. Learned counsel appearing on behalf of the appellant submitted that the motive set up by the prosecution is false; that both the eye witnesses are interested and their testimony being in conflict with the medical evidence is not worthy of reliance; that the prosecution-witnesses deliberately suppressed the injuries suffered by the appellant during the occurrence which gravely affects the credibility of the prosecution-witnesses; that the evidence pertaining to the recovery of incriminating articles do not inspire confidence; and that the investigation of this case has not been conducted honestly. As a last resort, he argued that accepting the prosecution story on its face value the offence committed by the appellant at the most falls under Part II of section 304, P. P. C. because he inflicted injuries on the non-vital part of the body of the deceased and the requisite intention for committing murder is totally absent. In reply, the learned counsel for the State assisted by the complainant's counsel submitted that it is a fool-proof case as the F. I. R. was lodged within half an hour of the occurrence; the presence of the eye-witnesses at the place of occurrence at the relevant time is natural; their testimony inspires confidence and the same cannot be discarded merely because of their relationship with the deceased. Lastly, it is submitted that although the injuries were inflicted on non-vital part of the deceased's body yet the fact that the appellant brought chhuri from his tonga standing 20/25 paces away and gave repeated blows to Nabi Bakhsh clearly establishes that the appellant intended to kill him and as such his conviction on the charge of murder is correct and the sentence of death being the normal penalty for a murder charge is appropriate and should be maintained.

10. We have carefully considered the arguments of both the sides in the light of material on record.

11. There is no dispute as to the time and place of occurrence. The appellant though admitted that he inflicted injuries to the deceased which resulted in his death yet explained that he did so in order to save his life as he apprehended death at the hands of the deceased. Following the guiding principle laid down in Safdar Ali's case (P L D 1953 F C 93), we would first scrutinise the prosecution evidence as to its truthfulness or falsity and if we come to the conclusion that the prosecution evidence is unreliable then we shall accept the statement of the appellant in toto but if we find that the prosecution evidence is believable then we shall review the entire evidence by putting both the versions in juxtaposition and see if there exists reasonable possibility of the defence story being true If the answer is in affirmative then the appellant shall get the benefit not as a matter of grace but as of right and if the answer is in negative then accept ing the prosecution case we shall proceed to determine as to what offence has been committed.

12. Muhammad Sohara (P. W. 8) and Muhammad Yaqoob (P. W. 9) are the eye-witnesses of the occurrence, who largely supported the prosecu tion story given in the F. I. R., the substance of which is that in their presence the appellant came in the shop of the deceased after parking his tonga at a short distance and asked the deceased to pay him some money. The deceased enquired from the appellant what kind of money he was demanding and the latter replied that he wanted "Gunda Tax", where upon the deceased. admonished the appellant not to indulge in Ghundaism. The appellant then started snatching wrist of Muhammad Iqbal P. W. (not produced). The deceased intervened but the appellant threatened him to keep out of his way or he would be done to death. The deceased and the appellant grappled with each other and the prosecution-witnesses separated them. At this, the appellant went to his tonga, took a chhuri from there, returned to the spot and inflicted 2/3 blows with it on the left thigh of the deceased who fell senseless. The appellant then brandishing his chhuri scared the witnesses and escaped in his tonga. The witnesses removed the deceased to the Police Station, thence he was taken to the hospital under the care of the police and the case was registered on the statement of Muhammad Sohara (P. W. 8).

13. Muhammad Sohara P. W. is brother of the deceased while Muhammad Yaqoob is the business partner of the deceased. Muhammad Sohara stated that he lived in Mohalla Kanjoo about 2 furlongs away from the shop of his brother Nabi Bakhsh. He used to visit him after every 2/3 days' interval and on the fateful evening he had gone there half an hour before the occurrence. In the circumstances we find that the presence of the aforesaid two eye-witnesses at the shop of the deceased at the relevant time was quite natural and their deposition about the incident is consistent, except a few trivial deviations which do not impair the truthful import of their testimony in any manner. The fact that the F. I. R. was recorded within half an hour of the occurrence excludes the possibility that the prosecution version was put up after consultation and deliberations between the heirs of the deceased and the police. Having considered the facts and ambient circumstances of this case we feel convinced that the occurrence took place in the presence of these prosecu tion-witnesses in the mode and manner narrated by them.

14. We now proceed to examine the two versions by placing them side by side to find out if there is a reasonable possibility of the defence version being true. We may say at the outset that the defence version is neither reasonable nor probable. If the deceased had demanded exorbitant rate of toori dana, we do not think that it gave the appellant a right to pick up quarrel over it and dictate the deceased to sell out his stuff at the rate of his (appellant's) choice. Again, it does not look probable that the deceased got enraged and threw iron weight on the chest of the appel lant, his customer, only because he told him that the normal rate of toori dana in the bazaar was lower than the one being demanded by the deceased. The fallacy of the appellant's stand lays bare when be says that while lying under the deceased who pressed his neck to the extent that his breath was choked, still be was able to take out a knife from his pocket, opened it and from beneath he inflicted not one but three injuries on right thigh of the deceased. We confess our inability to see eye to eye to this explanation of the appellant which is too absurd to call for any comments. We, therefore, feel no hesitation in agreeing with the learned trial Judge who discarded the defence theory and accepted the prosecution case.

15. Learned counsel for the appellant has laid much stress that the story of demanding Jagga Tax was introduced falsely. He submitted that the words 'Jagga Tax' are conspicuously missing from the statement of Muhammad Yaqoob recorded under section 161, Cr. P. C., and also Court statements of Muhammad Yaqoob and Muhammad Sohara P. Ws. are to the effect that the appellant demanded money" from the deceased and the latter asked what kind of money he was demanding from him whereupon the appellant replied that be wanted 'Ghunda Tax' but this conversation is conspicuously missing in the F. I. R. By regarding the relevant portions of the statements of the witnesses and- the F. I. R. jointly we find that their total sum effect is that the appellant asked the deceased to pay him money' for which he bad no right to ask for and the deceased was perfectly justified in refusing to pay the same. He then pounced upon Muhammad Iqbal and made attempt to snatch his wrist watch which too was foiled by the deceased. The appellant then brought chhuri P. 4 from the tonga and wounded the deceased fatally. Muhammad lqbal P. W. was given up as won over and his absence hardly caused any damage to the prosecution story.

16. Next comes the question as to what offence the appellant has committed in view of the facts proved on record. Admittedly, no previous enmity existed between the appellant and the deceased, rather the appel lant was a customer of the deceased and never before there occurred a quarrel between them. It appears that the matter bad flared up all of a sudden and the appellant in the heat of passions brought chhuri from his tonga standing nearby and gave injuries with it on the thigh of the deceased. In our opinion, in the circumstances of the case, the appellant had neither taken undue advantage of the situation nor acted in a cruel manner. The case of the appellant, therefore, is fully covered under Exception 1V of section 300, P. P. C. and he is guilty of committing culpable homicide not amounting to murder. Furthermore, it is in the evidence that the appellant did not hit vital part of body of the deceased and also avoided to inflict blows to him after he had fallen on the ground. The fact that the appellant meticulously avoided to inflict injuries on the vital part of the body of the deceased and that he did not inflict any blow after the deceased had fallen down clearly shows that he did not intense to cause his death or such bodily injury which would result in his death. The element of intention thus being absent, we would hold that the offence committed was one under section 304, Part II, P. P. C. Resultantly, we set aside the conviction and sentence of the appellant under section 302, P. P. C. and convict him under section 304, Part II, P. P. C. and sentence him to ten years' rigorous imprisonment plus fine of Rupees five thousand (Rs. 5,000 only), or in default of payment of fine to undergo three months' rigorous imprisonment. The fine, if realised, shall be paid to the heirs of the deceased. The appellant shall also get benefit of the provisions of section 382-B, Cr. P. C. The death sentence is not confirmed and the reference is rejected.

S. G. D. Order accordingly.

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