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Criminal Appeal No. 492 of 1957, decided on 20th February 1958, from the order of Muhammad Akbar, Additional Sessions Judge, Lyallpur, dated the 31st May 1957.
S. 300, Thirdly‑Single blow with a piece of wood on victim's head‑Offence, whether murder or culpable homicide not amounting to murder‑Intention‑How to find out‑No previous enmity between parties‑Injury inflicted with out premeditation‑Death sentence not called for.
Where a single knife blow, or a blow with a dang, or some such weapon, is given on a vital part of the body, resulting in the death of the victim, it may not be so easy to determine what the intention or knowledge of the offender was in causing the injury and whether in so doing he was guilty of the offence of murder, or that of culpable homicide not amounting to murder. For finding out the intention, or knowledge, of the offender, the only safe method which can be followed is to‑ look at all the surrounding circumstances, such as, the time and place of the occurrence, the nature of weapon used, the force with which it was wielded, the seat of the injury and the results which ensued.
The accused by a single blow, delivered with a piece of wood on the head of his victim broke his skull into 15 pieces thus causing his death.
Held; that the offence fell under section 302, P. P. C., though a sentence of death was not called for, there being no enmity between the parties and the blow inflicted being unpremeditated.
Pakhar Singh v. Emperor A I R 1948 Lah. 75 end Ghulam v. The Crown P L D 1950 Lah. 90 followed.
Hoshnak Singh and another v. The Crown XXIX P L R 265; Sai Muhammad v. Emperor A I R 1934 Lah. 345; Emperor v. Sardarkhan Jaridkhan I L R 41 Bom. 27; Gabbar Pande v. Emperor 106 1 C 433 and Shew Bin v. Emperor 3 Cr. L J 355 distinguished.
M. Saleem and Kh. Saleem Mazhar, Advocates for Appellant.
Ata Ullah Sajjad, Advocate for Respondent.
Date of hearing: 12th February 1958.
Muhammad Sharif alias Sharif appellant has been convicted under section 302 of the Pakistan Penal Code, for the murder of one Ghulam Rasool, and has been sentenced to death. He has filed this appeal against his conviction and sentence. The case is also before us under section 374 of the Code of Criminal Procedure, for confirmation of the death sentence. This judgment will dispose of the appeal filed by Muhammad Sharif, as well as the reference Trade by the trial Court, for confirmation of the death sentence.
2. The prosecution case was that Ghulam Rasool deceased was a carpenter in Chak No. 78‑G. B., where Muhammad Sharif appellant and Fazal Shah, Sher Muhammad and Muhammad Bakhsh, P. Ws. also resided. On the morning of the 26th October 1956, at about 10 a.m., Fazal Shah P. W. brought a piece of wood to the shop of Ghulam Rasool deceased for converting it into a sairu (one side of a charpoy). This piece of wood. was curved and was not, therefore, considered suitable for the purpose. Sher Muhammad P. W., who was present there, offered to give another piece of wood, in exchange for the one brought by Fazal Shah. Both of them went to the house of Sher Muhammad, from where two pieces of wood, Exhs. P. 2 and P. 3, were brought. Ghulam Rasool deceased approved the piece of wood, Exh. P. 3, as suitable for being converted into a sairu. Muhammad Sharif appellant, who was also present there, told Ghulam Rasool deceased that he was a fool to waste that piece of wood, which could be used as an arm for a charpoy. Ghulam Rasool retaliated by saying that he knew his job and that he (the appellant) was a fool. On hearing this, Muhammad Sharif became enraged and picking up one of the pieces of wood (Exh. P. 3), which had been brought by Sher Muhammad, gave a blow, with it, on the head of Ghulam Rasool, who fell down and became unconscious. He was immediately removed to the dispensary in Chak No: 76‑G. B., where he was medically examined by Dr. Sardar Ali Malik, at 11 a.m. He found a contused wound, " x 1/8", and bone deep on the upper side of his head, with ecchymosis of both lids. There was free bleeding from the wound, as well as from the left ear which indicated fracture of the base of the skull. In the opinion of this doctor, these injuries were dangerous and had been caused by a blunt weapon, within three hours of the time of the examination. An hour afterwards Ghulam Rasool died in the dispensary.
3. A report of the occurrence was lodged by Muhammad Bakhsh P. W. at the Satiana Police Station on the 26th October 1956 at 1‑30 p.m.
4. The post‑mortem examination on the dead body of Ghulam Rasool was conducted by Dr. Muhammad Hussain P. W., on the 27th October 1956, at 3 p.m. From the external examina tion a contused wound, 1/2" x 1/8", and bone deep, was found on the upper front side of the head, with ecchymosis of both the lids of the left eye. The scalp was found ruptured under this injury. On opening the skull, both sides of the frontal and parietal bones were found to have been fractured into 15 pieces of different sizes; 11 pieces on the left side and 4 on the right side. The middle fossa was also found completely fractured, from one ear to the other, and the interior fossa, on the right and left sides, longitudinally. The brain was found to be congested and blood clots were present all over. In the opinion of this doctor, death was due to shock and haemorrhage as a result of the fracture of the skull bones with compression of the brain due to this injury which had been caused by a blunt weapon. He also expressed the opinion that this injury was sufficient, in the ordinary course of nature, to cause death.
5. Besides the doctors, the principal prosecution witnesses examined at the trial were Muhammad Bakhsh (P. W. 8), Sher Muhammad (P. W. 9) and Fazal Shah (P. W. 10). One Daulat, who was also alleged to have been present at the time of the occurrence, was not examined.
6. The appellant, when he was examined in the trial Court, denied his guilt, as well as his presence at the time of the occurrence. He did not produce any evidence in defence.
7. The trial Court accepted as correct the testimony of the three prosecution witnesses and held that, in inflicting an injury with a heavy weapon on a vital part of Ghulam Rasool's body, the appellant was guilty of the offence of murder and, therefore, convicted and sentenced him.
8. The evidence of the three prosecution witnesses was substantially in accordance with the prosecution version of the case as mentioned above and, therefore, need not be repeated. A half‑hearted attempt was made by the learned counsel for the appellant to show that these witnesses were not truthful and that the occurrence did not take place in the manner alleged by them. His main objection against them was that Muhammad Bakhsh and Sher Muhammad P. Ws. had enmity with the accused, because a few months earlier they had been involved in a case under sections 107 and 151 of the Criminal P. C. This fact was admitted by Muhammad Bakhsh P. W. himself, but denied by Sher Muhammad. Assuming that a few months earlier Muhammad Sharif appellant and some other persons on one side and Muhammad Bakhsh and Sher Muhammad, P. Ws., on the other, were bound down under sections 107 and 151 of the Criminal P. C., this fact alone would not necessarily mean that these two persons had a strong motive in implicating the appellant in a false case and, therefore, deposed to facts about which they had no knowledge. It does not stand to reason that simply on account of the alleged enmity with the appellant these two persons would have falsely named him as being his assailant. Even assuming for the sake of arguments that these two persons were not present at the time of the occurrence, nothing has been shown against Fazal Shah P. W. and there is no reason to disbelieve him. Even if, therefore, we ignore the evidence of Muhammad Bakhsh and Sher Muhammad we have not the least doubt that the occurrence took place substantially as had been alleged by the prosecution.
9. The next point urged by the learned counsel for the appellant was that, as was suggested during the cross‑examination of two of the prosecution witnesses, the appellant acted in exercise of the right of private defence, because he was threatened'‑by the deceased with a tesha which he had with him. 'Muhammad Bakhsh (P. W. 8) and Fazal Shah (P. W. 10), to whom this suggestion was put, both denied it and there is no other material on the record to indicate that there was any truth in it. This contention will have to be rejected, as being without substance.
10. The last point urged by the learned counsel was that even if it is assumed that the occurrence took place 'as had been alleged by these witnesses, the circumstances of this case do not indicate that in giving a single blow on a vital part of the body of the deceased, the appellant intended to cause his death, or such bodily injury as he knew was sufficient, in the ordinary course of nature, to cause death and that even if he had .the knowledge that the injury which he was inflicting was likely to cause death, he could, at the most, be held guilty of the offence of culpable homicide not amounting to murder. It is not always easy to distinguish between cases of murder and those of culpable homicide not amounting to murder. Where a person causes the death of another by firing a bullet on a vital part of the body of the victim, say, his head or abdomen, or where he gives repeated blows with a sharp‑edged weapon, like a hatchet, on the head, chest or abdomen, or where he gives repeated blows on the head of the victim so as to smash the skull completely, there cannot be any doubt that the offender, by doing such an act, intended to cause the death of the victim and was, therefore, guilty of murder. But where a single knife blow, or a blow with a dang, or some such weapon, is given on E. A vital part of the body; resulting in the death of the victim, it may not be so easy to determine what the intention, or knowledge, of the offender was in causing the injury and whether in so doing he was guilty of the offence of murder, or that of culpable homicide not amounting to murder. For finding out the intention, or knowledge, of the offender, the only safe method which can be followed is to look at all the surrounding circumstances, such as, the time and place of the occurrence, the nature of weapon used, the force with which that weapon was wielded, the seat of the injury and the results which ensued. It may be that in one particular case, the infliction of a single injury may be sufficient to establish the existence of the requisite intention, or knowledge, to bring the case within the four corners of section 300 of the P. P. C., and in another case by inflicting such an injury the offender may be held guilty of a lesser offence.
11. In the present case, according to the judgment of the trial Court, a heavy weapon had been used and as a result of the single blow given by the appellant the skull was fractured into 15 pieces and the injury reached upto the base of the skull, fracturing completely the middle fossa, as well as the left and right sides of the interior fossa. It should not, therefore, be difficult to hold that the appellant did intend to inflict an injury on the deceased and the injury intended to be inflicted was sufficient, in the ordinary course of nature, to cause death. His case, therefore, came within the purview of clause "thirdly" of section 300 of the P. P. C. In this view we are fortified by two recent decisions of the Lahore High Court, Pakhar Singh v. Emperor (A I R 1948 Lah. 75) and Ghulam v. The Crown (P L D 1950 Lah. 90). Both the cases were decided by Division Benches of that Court and one of the members of the Bench, which decided the second‑mentioned case, was the present Chief Justice of Pakistan. In the first mentioned case, a single lathi blow was given on the head of the deceased which resulted in extensive fractures of both the parietal bones and the fronto‑temporal and the fronto‑parietal bones. It was held that even though the accused might not have intended to kill the deceased, he certainly intended to break his head, and his con viction under section 302 was, therefore, quite proper. In the second case, the accused, in a sudden quarrel with his' wife, picked up a hatchet and struck it on her head which resulted in the fracture of the skull into 12 pieces. It was held that in view of the damage caused to the head of the deceased, the accused intended to cause the injury that he actually caused and as that injury was sufficient, in the ordinary course of nature, to cause death, he was guilty of the offence of murder.
12. On behalf of the appellant, reference was made to two other cases of the Lahore High Court, Hoshnak Singh and another v. The Crown (XXIX P L R 265) and Sai Muhammad v. Emperor (A I R 1934 Lah. 345). In the first mentioned case, in the course of a fight; one of the appellants, who was armed with an iron‑shod lathi, inflicted a fatal injury on the head of the deceased resulting in the fracture of his skull. It was held that he was rightly convicted under Part II of section 304 of the P. P. C: From the reported judgment, the nature of injuries found on the deceased is not ascertainable, nor are some of the circumstances of the case very clear. This authority cannot, therefore, be of any help for deciding the question before us. In the second case, the accused had struck the deceased, twice, in quick succession, on the head, with a stick that he was carrying, causing two injuries on the front part of the left and right parietal regions. It was held that he was guilty under Part I of section 304 of the P. P. C. It is, no doubt, true that in this case, the skull was fractured by the two blows given to the deceased, but from the nature of the injuries observed it could not be said that very considerable force had been used by the accused which could bring his case within the third clause of section 300 of the P. P. C. This authority also, in our opinion, is of not much help for deciding a case of the present nature.
13. The learned counsel for the appellant referred to three other authorities, Emperor v. Sardarkhan Jaridkhan (I L R 41 Bom. 27), Gahbar Pande v. Emperor (106 I C 433) and Shew in v. Emperor (3 Cr. L J 355), to support his contention that the appellant is guilty, if at all, of the offence of culpable homicide not amounting to murder and not of the offence of murder. As the facts of these reported cases were different from those of the present one the views expressed therein are of no help to the learned counsel in supporting his contention.
14. Bearing in mind the views expressed in the two cases of the Lahore High Court referred to above and all the circum stances of this case, we are of opinion that in inflicting a fatal injury on the head of the deceased, with a formidable weapon, the appellant had the intention of causing a bodily injury to the deceased and that the injury intended to be inflicted by him was sufficient, in the ordinary course of nature, to cause death ands hence his case comes clearly within the purview of the third clause of section 300 of the P. P. C. He was, therefore, rightly con victed for the offence of murder. On the question of sentence, however, we are of opinion that as there was no previous enmity between the parties and as the injury was inflicted by the appellant) without premeditation, the sentence of death was not called for.) Consequently, while upholding the conviction of the appellant under section 302 of the P. P. C., we accept his appeal to the extent of reducing the sentence imposed on him from death toy transportation for life. The sentence of death is, therefore, not confirmed.
Z. A. S./A. H. Sentence reduced.
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