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Criminal Appeals Nos. 53‑K and 56‑K of 1983, decided on 12th January, 1985.

(On appeal from the judgment of the High Court of Sind, dated 25‑8‑1983 passed in Criminal Acquittal Appeal No. 21/82).

‑‑‑Ss. 302 & 304, Part II‑‑Appeal against acquittal‑‑Sentence, sufficiency of‑‑Sudden fight‑‑Murder after quarrel over trivial matter‑‑Accused acting with cruelty‑‑Accused charged under 5.302, P.P.C.‑‑Acquitted by trial Court‑‑On appeal convicted by High Court under S. 304‑I1, P P.C. and sentenced to 7 months imprisonment already undergone‑ Appeals against conviction and for enhancement of sentence‑‑Prosecution case based on testimony of three eye‑witnesses, recovery of blood‑stained crime weapon and medical evidence‑‑Guilt of accused proved beyond doubt‑‑Quarrel being over a trivial matter and accused having acted with cruelty when deceased was empty handed, giving three knife blows on vital part of body‑‑Held, it was clear case of murder under S. 302, P.P.C. and not under S. 304‑II, P.P.C.‑‑Since deceased had quarrelled with accused immediately before occurrence, lesser sentence of life imprisonment awarded.

Abdul Hafeez Memon, Advocate Supreme Court with Rashid Akhtar Qureshi, Advocate‑on‑Record and Ansar Hussain with Faizanul Haq, Advocate‑on‑Record for Appellant.

Ansar Hussain, Advocate Supreme Court with Faizanul Haq, Advocate‑on‑Record and Makhdum Wali, Advocate Supreme Court with Muzaffar Hussain, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Date of hearing: 12th January, 1986.

‑‑This judgment will dispose of Criminal Appeal No.53‑K of 1983 filed by Mst. Ghulam Sughra (mother of the deceased) against the acquittal of Ahmad Khan accused of the charge under section 302, P.P.C. and for enhancement of his sentence; and (ii) Criminal Appeal No.56‑K of 1983 filed by Ahmad Khan against his conviction and sentence.

2. The occurrence in this case took place in the Office of the Superintending Engineer, Irrigation Department, Hyderabad (Sind) at 2.30 p.m. on 11‑11‑1974, in which Ahmad Khan is said to have stabbed Aijaz Hussain (deceased) to death. The F.I.R. was lodged by Abdur Razzak (P.W.1) (who was employed as an Assistant in the said Office). Ahmad Khan accused was arrested and during the investigation the knife used in the incident was recovered from him. On examination by the Serologist it was found to be stained with human blood. He was sent up to stand his trial before the Additional Sessions Judge, Hyderabad.

3. The facts of the case as stated in the F.I.R. are; that the complainant Abdul Razzaq (P.W.1) on 11‑11‑1974, was present in the office when at about 2.30 p.m. the Office Superintendent Mr. Abdul Karim Turk (P.W.2) gave some files to Aijaz Hussain to hand them over to Ahmad Khan accused. Aijaz Hussain (deceased) took those files to Ahmad Khan but the latter refused to take files and told Aijaz Hussain to give them to the Typist. On this there was exchange of harsh words between them and they quarrelled with each other, but other persons present in the room including Abdul Razzak (P.W.1), Ghulam Nabi, Shamsuddin etc. intervened. After sometime when Aijaz Hussain was complaining about Ahmad Khan's conduct to the Superintendent the latter suddenly rushed up to him; attacked him with a knife and gave him 3 blows with knife on his abdomen and the back. Aijaz Hussain deceased raised cries of "Save me, save me". On his cries, P. Ws. Ghulam Nabi, Shamsuddin and other people who were sitting in the office, came there and separated the accused and the deceased. Thereafter, Aijaz Hussain, who was seriously injured was taken to the Civil Hospital for treatment, by Abdur Razzaq P.W. and some others.

4. The police, on receiving information also reached the hospital and recorded the statement of Abdur Razzaq P.W. The formal F.I.R. was subsequently recorded on the basis of that statement. It was initially recorded under section 324, P.P.C. but subsequently, when Aijaz Hussain died it was converted into one under section 302, P.P.C.

During the investigation the crime weapon (knife Exh.P) was recovered from the accused. It was found by the Serologist to be stained with human blood.

5. The doctor who performed the autopsy found the following injuries on the body of the deceased:‑

(1) Stitched vertical wound on the positive line of chest side 1 " below 2" long.

(2) Transverse stitched Hypochordin of abdomen 1" long.

(3) Stitched one epigustic region of abdomen on side 3/4" long.

These were found by the doctor to have caused the following damage:‑

(1) 6th rib on left side cut corresponding to external injury No.1

(2) Cut about 1/3" on plurae on left side corresponding to external injury No.1. Left side of thoracic cavity contained about 3 ounces of blood.

(3) Contusion about " x diameter long in lower lobe with cut about x deep corresponding to external injury No.1. Heart both sides empty. Stomach was full of fluid. Urinal bladder was empty.

6. After the completion of the investigation Ahmad Khan was sent up for trial for an offence under section 302, P.P.C.

7. In support of its case the prosecution relied on the testimony of three eye‑witnesses namely; (1) Abdul Razzaq P.W. 1 (an Assistant in the Irrigation Department); (2) Abdul Karim P. W.2 (Office Superintendent); and (3) Ghulam Nabi P.W.3 (also an Assistant in the said Office), all of whom were present in the same room in which the occurrence had taken place. Their testimony was supported by the recovery of the blood‑stained knife found from the accused and the medical evidence.

8. The learned trial 'Judge, however, felt that the eye‑witnesses had not supported the prosecution case and as such he acquitted Ahmad Khan. The State filed an appeal against his acquittal before the High Court of Sind. The High Court accepted the same vide the impugned judgment, dated 25‑8‑1984; convicted Ahmad Khan under section 304‑11, P.P.C. on the bound that the death of Aijaz Hussain deceased had been caused by the accused in a 'sudden fight'. For this offence, the learned High Court sentenced him to suffer imprisonment for a period of 7 months only, and to pay a fine of Rs.10,000. In default of payment of fine, he was ordered to undergo further one year's R.I. The High Court al‑,,, granted him the benefit of section 382‑B, Cr.P.C.

Since Ahmad Khan had remained in custody, as an under‑trial prisoner, from 21‑11‑1974 to 17‑7‑1975, he was set free forthwith and had only to pay a sum of Rs.10,000 imposed upon him as fine.

9. Feeling aggrieved Mst. Ghulam Sughra (mother of the deceased) filed Criminal Appeal No.53‑K of 1983 against acquittal of Ahmad Khan of the charge under section 302, P.P.C. and for enhancement of his sentence.

On the other hand Ahmad Khan challenged his conviction and sentence through Criminal Appeal No.56‑K of 1983.

Leave was granted in both these cases.

10. We have heard the learned counsel for the parties at considerable length and have also gone through the F.I.R.; the evidence of the eye‑witness; medical evidence and other relevant material on the record. We have also studied the impugned judgment.

11. We first proceed to deal with the appeal of Ahmad Khan (Crl. 56‑K of 1983) against his conviction.

Learned counsel for the appellant submitted that none of the three eye‑witness, namely, Abdur Razzaq (P.W.1); Abdul Karim (P.W.2) and Ghulam Nabi (P.W.3) has supported the prosecution case and as such neither the medical evidence nor the recovery of the blood‑stained knife found from the accused, advances the prosecution case against him.

12. On going through the testimony of the eye‑witnesses, however, we find that it would not be correct to say that the eye‑witnesses have not supported the prosecution case. They only gave some more details and made some change in their earlier statements, probably with a view to help their colleague. But all of them have admitted having seen Ahmad Khan appellant, attacking Aijaz Hussain (deceased) with a knife. They have also stated that on hearing the cries of Aijaz Hussain they rushed to the place where the attack had taken place and found that Aijaz Hussain was lying on the ground in a pool of blood. This testimony coupled with the recovery of the crime weapon (knife) found from Ahmad Khan appellant, which was found by the Serologist to be stained with human blood, and medical evidence, is sufficient to establish appellant's guilt, and it stands proved beyond any doubt that it was he who had done Aijaz Hussain to death. The High Court was therefore, justified in convicting him. As a result Criminal Appeal No.56‑K of 1983 is dismissed.

13. The question, however, is under what section of the P.P.C. does the offence committed by Ahmad Khan fall and whether the sentence of 7 months R.I. awarded to him by the High Court is sufficient to meet the ends of justice

13. This brings us to Criminal Appeal No.53‑‑K of 1983 filed by Mst. Ghulam Sughra mother of the deceased) against acquittal and for enhancement of the sentence of the accused‑respondent in this appeal.

14. The learned High Court has held that Ahmad Khan respondent had caused the death of Aijaz Hussain in a 'sudden fight' and his case was, therefore, covered by Exception 4 to section 300, P.P.C. and as such the accused was guilty only of offence under section 304‑II, for which, as already observed, he was sentenced to 7 months R.I. and a fine of As.10,000 or one year R.I. in case of default of payment of fine.

15. We have given our anxious consideration to the matter and feel that on the facts and circumstances available on the record it is obvious that though the attack on the deceased was proceeded by an exchange of harsh words between the accused and the deceased, yet in view of the wording of Exception 4 to section 300, P . P . C . , we do not think that the case of Ahmad Khan respondent is covered by that Exception, because it has not been shown that he had not acted with cruelty. The quarrel between the two had taken place on a very trivial matter. Such quarrels are common between the subordinate officials in almost every department and did not, in our view, justify the kind of attack that Ahmad Khan respondent had made on the deceased. Moreover, he had taken an undue advantage inasmuch as he was armed with a knife while the deceased was empty‑handed. The respondent gave as many as 3 blows to the deceased, all on the vital parts of the body, which resulted in his death. We are, therefore, of the view that it is a clear case of murder, which falls under section 302, P.P.C. and not under section 304‑II, P.P.C.

16. The net result of the above discussion is that we allow Criminal Appeal No.53‑K of 1983 filed by Mst. Ghulam Sughra set aside the acquittal of Mimed Khan accused and convict him under section 302, P.P.C. But since the deceased had quarrelled with the accused/ respondent immediately before the occurrence, we think he is entitled to the lesser sentence. We, therefore, sentence him to undergo imprisonment for life. The sentence of fine is maintained. He shall also be granted the benefit of section 382‑B of Cr.P.C.

M.I. Order accordingly.

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