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Criminal Appeal No. 272 of 1983, decided on 2nd February, 1986.

‑‑‑Ss. 302 & 304, Part II‑‑Intention to cause death‑‑No enmity existing between deceased and accused' from which it could be inferred that accused at any stage would have premeditated the murder of deceased‑ Sudden flare up occurring between accused and deceased on demand of money by deceased from accused in presence of some persons‑‑Deceased and accused admittedly exchanged abusive language which provoked accused to pick up 'Sua' from nearby and to inflict injury on chest of deceased‑‑Accused, held, did not act with intention of causing death or with intention of causing such injury as was likely to cause death though it might be inferred that he acted with knowledge that it was likely to cause death‑‑Accused inflicted only one injury and did not repeat same‑‑Offence committed by accused, therefore, was that of under S. 304, Part II, P.P.C. and not one under S. 302, P.P.C.‑ Conviction and sentence of accused altered accordingly.

P L D 1969 S C 552 rel.

--‑‑‑S. 304, Part II‑‑Sentence‑‑Accused sentenced to 10 years' R.I. with fine of Rs.7,000‑‑Benefit of provisions of S. 382‑B, Cr.P.C. also given to accused.

S.M. Latif Khosa for Appellant.

S.D. Qureshi for Advocate‑General for the State:

Date of hearing: 2nd February, 1986.

Shehbaz Ali was convicted under section 302, P.P.C. for the murder of Muhammad Rafique, deceased and sentenced to imprisonment for life and to pay a fine of Rs.15,000 or in default thereof to further rigorous imprisonment for three years. The fine, if recovered, was ordered to be paid to the heirs of the deceased. The appeal of Shehbaz Ali, appellant, is now before me for disposal.

2. Briefly stated the facts of the case are that Muhammad Rafique alias Mangat Ali, deceased, aged twenty years, used to sell watermelons. Shehbaz Ali, accused borrowed water‑mellons from him worth Rs.20. On 14‑7‑1981 Muhammad Yousaf, complainant P.W. 5, alongwith his deceased son Muhammad Rafique went to the house of his cousin Muhammad Sharif for Iftari. Thereafter, they came out from his house and found Shehbaz Alit accused, AWN Sattar P.W. 6 and Muhammad Latif (given up P.W.) standing at the shop of Wali Muhammad Sheikh. Muhammad Rafique, deceased, demanded Rs.20 from Shehbaz Ali, accused, who took it ill and felt insulted as the demand was made in the presence of Mohallahdars and other persons. He abused Muhammad Rafique, deceased and said that he would teach him a lesson for demanding the money. He then pick up Sua from the shop of Wali Muhammad Sheikh and in spite of the protests of Muhammad Latif, Muhammad Yousaf and Abdul Sattar P.Ws. gave a blow with it to the left side of the chess of the deceased, who fell down on the ground. The accused then ran away, waiving the Sua. The said three witnesses put Muhammad Rafique, deceased on a cot and brought him to Civil Hospital, Gujranwala, where he died.

3. On 15‑7‑1981 at 2‑00 p.m. Dr. Harbans Lal P.W. 3 performed the post‑mortem examination on the dead body of Muhammad Rafique, deceased, and found a punctured wound c.m. + c.m. going deep on the front of chest. The thorax wall was injured and six left inter space and the front left side of the heart were found injured. Death was due to the punctured wound which was found to be sufficient to cause death in the ordinary course of nature. Time between injury and death was about hour and that between death and post‑mortem examination was 18 hours.

4. On 15‑7‑1981 Shehbaz Ali, accused, was arrested, who led to the recovery of a blood‑stained Sua P.4, which was taken into possession, vide memo. Exh. P.C.

5. At the trial, Shehbaz Ali, accused, denied the prosecution case, including the recovery effected at his instance but admitted the occurrence though in different' circumstances. His version of the occurrence may be reproduced with advantage:‑‑

"I had strained relations with ,Rafique, deceased, who was a young man of bad character. On the day of occurrence, I was sitting in the shop of Wali Muhammad with Khalid and Rafique. Due to the previous strained relations, he pounced upon me and intended to be at me. He grappled with me. Wali Muhammad, Khalid and two other persons intervened. The persons intervening pushed aside the deceased and in that process he fell down face ward on the broken crates and received injury on his chest due to piercing of a nail. None of the alleged eye‑witnesses was present. The complainant concocted the version later on in connivance with the police."

The learned trial Judge, after placing in juxtaposition the case of the prosecution and that of the defence, found that the evidence on record supported the case of the prosecution to the hilt. He, therefore, convicted and sentenced Shehbaz Ali, accused, as stated, in para. 1.

6. I have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. Sardar Muhammad Latif Khosa, Advocate, who appears for the appellant, does not challenge the prosecution version which he admits as correct, but submits that no offence stands made out under section 302, P.P.C. and that, at best, an offence under section 304‑II, P.P.C. stands made out. The evidence has been read and the arguments heard with regard to this limited question. There is no enmity in this case from which it can be inferred that the appellant at any stage would have premeditated the murder of the deceased whether by deliberate intention or even if subjected to provocation. The sudden flare up occurred between the deceased and the appellant when the former demanded Rs.20 from the latter who took it ill ands felt insulted, as the demand was made in the presence of Wali Muhammad Sheikh and other persons. Both Muhammad Yousaf P.W. 6 and Abdul Sattar P.W. 6 admitted that the appellant and the deceased exchanged abusive language. It appears that this provoked the appellant to pick up the Sua, which was lying at the shop of Wali Muhammad, Sheikh, and to inflict one injury therewith on the chest of the deceased. From these circumstances, it cannot be inferred unequivocally that the act was done by the appellant with the intention of causing death or with the intention of causing such injury was likely to cause death, though it may be inferred that it was done with the knowledge that it was likely to cause death. The appellant inflicted only one injury and did not repeat the same. Taking ally circumstances into consideration, the offence committed by the appellant appears to be that under section 304‑II, P.P.C. and not one under section 302, P.P.C. See M.A. Jalil v. The State P L D 1969 S C 552. The conviction of the appellant under section 302, P.P.C. is, therefore, not legal and correct.

7. The upshot of the above discussion is that the conviction and sentence of the appellant under section 302, P.P.C. is set aside. Shehbaz Ali, appellant, is convicted under section 304‑II, P.P.C. and sentenced to ten years rigorous imprisonment and to pay a fine of Rupees seven thousand (Rs.7,000) or in default thereof to undergo further rigorous imprisonment for two years. The fine, if recovered, shall be paid to the heirs of the deceased as compensation under 544‑A, Cr.P.C. The appellant shall also be granted the benefit of section 382‑B, P.P.C. when calculating the sentence.

8. This appeal, therefore, partly succeeds, in terms of alteration of conviction and reduction in the sentence, as stated above. The appellant is on bail. He shall be taken into custody to serve out the remaining portion of his sentence.

H.A.K. Appeal partly accepted.

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