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Criminal Petition No. 28‑K of 1986, decided on 26th August, 1986.

(From the judgment of the High Court of Sind at Karachi, dated 17‑3‑1986, passed in Criminal Appeal No. 142 of 1985 and Confirmation Case No. 17 of 1985)

‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302 a 304, Part II‑‑High Court altering conviction of accused from S. 302 to S.304, Part II, Penal Code and reducing this sentence‑‑In view of evidence in case particularly regarding nature and location of injury, conversion of conviction of accused and sentence imposed by High Court requiring consideration‑‑Leave to appeal granted.

Abdul Hafeez Memon, Advocate Supreme Court with A. Aziz Dastgir, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th August, 1986.

Leave to appeal has been sought by Qurban Ali, complainant in the case, against the judgment of a Division Bench of the Sind High Court, dated 17‑3‑1986, whereby the conviction of Sheroo Machi under section 302, P.P.C., and sentence of death imposed on him by the Additional Sessions Judge, Hyderabad, vide his judgment dated 30‑10‑1985, has been altered to one under section 304, Part II, P.P.C., and sentence also reduced to six years' R.I.

2. The occurrence in this case took place on 25‑3‑1984 at 1‑45 p.m. at Mental Hospital Chowk, Hyderabad at a distance of two miles from Latifabad Police Station and its report was made within 45 minutes by Qurban Ali petitioner which was recorded by Abdur Razzaq S.I. P. P. Giddu. Qurban Ali reported that at the relevant time he came towards the Mental Hospital crossing where he found Ghulam Ali alias Kamani, his relation, standing near a board and a rickshaw driven by Muhammad Ahsan was also parked near him when he saw that Sheroa Machi carrying a knife appeared from the board raising a Lalkara that he would not spare Ghulam Ali alias Kamani today. The accused then gave a knife blow on the chest of Ghulam Ali alias Kamani who started bleeding and ran towards Rani Bagh Road Bridge where at some distance he fell down. Sheroo Machi also ran away from the spot. The occurrence was witnessed, besides him, by Muhammad Ahsan, Liaqat Ali and others. All of them ran towards Ghulam Ali, picked him up with the help of a constable Abdul Ghafoor and took him to the hospital but Ghulam Ali succumbed to the injuries before reaching the hospital. Abdul Ghafoor Constable was left to guard the deceased and the lodger went to the police station to lodge a report. According to the lodger, the murder was the result of enmity.

3. Sheroo Machi was arrested the same day. A blood‑stained knife was recovered from his possession in the presence of the witnesses, which was sent to the Chemical Examiner for examination and after the completion of the challan, the accused was put to trial. At the trial, the prosecution examined Qurban Ali, Muhammad Ahsan and Liaqat Ali as eye‑witnesses to the occurrence besides Shaukat Ali, Dr. Aneesul Hassan, Constable Abdul Ghafoor and Abdur Razzaq, the Investigating Officer. The doctor who performed the autopsy on the dead body of Ghulam AL alias Kamani found the following injury on the person of the deceased:

"A stab wound 4 c.m. x 1 c.m. x cavity deep over the left side of the front of the chest, 5 c.m. below and medial to the left nipple, 5 c.m. lateral to the mid sternal line.

No other external injury noted."

According to the doctor, the cause of death was haemorrhage, shock and injury to the heart which resulted from the stab injury. The injury was caused by a sharp‑edged weapon like knife or dagger.

4. The learned trial Court after recording the evidence and statements of the accused under sections 342 and 340(2), Cr.P.C., found the respondent guilty of the offence under section 302, P.P.C., and convicted him as such and sentenced him to death. It also convicted the accused under section 13‑D of the Arms Ordinance and sentenced him to one year's R.I. and a fine of Rs.500 or in default to suffer R.I. for three months. Through the same judgment, the accused was also directed to pay Rs.5,000 as compensation to the heirs of the deceased. The accused/ respondent challenged his conviction and sentence before the High Court. The High Court also examined the same evidence, believed the ocular and other circumstantial evidence including the motive brought by the prosecution and held that the case against the respondent %was proved to the hilt. As to what offence the respondent has committed, the learned Judges observed:

"There is only one injury on the person of the deceased though the appellant had opportunity to cause more blows to the deceased. The witnesses did not go near the place of occurrence and according to the complainant himself due to fear he did not go at the place of incident. The deceased after receiving the injury started running away and the appellant also ran away from the Wardat. He had not chased the deceased to repeat the attack. There was only one injury and according to the doctor the injury on the chest of the deceased was probably caused with toll, the striking of knife horizontally. It means the injury was not vertical. According to the doctor the cause of death appears to be haemorrhage, shock and injury to the heart which resulted from the stab injury described above. In these circumstances we are of the opinion that the case does not fall under section 302 but falls under section 304 Part II as the essential ingredient of this part is that act is done with the knowledge that it is likely to cause death. The nature of the injury would show that the accused had the knowledge that su2b injury would cause and is likely to cause death. We, therefore, convert the conviction of the appellant from section 302 to section 304 Part II. The sentence is altered to six years' R.I. The compensation imposed by the trial Court is maintained."

5. We have heard the learned counsel for the petitioner and gone through the record of the case and we think that in view of the evidence in this case, particularly the nature and location of the injury, the conversion of the conviction of the respondent from section 302, P.P.C. to section 304, Part II, P.P.C. and the sentence imposed by the learned High Court requires consideration. Leave is thus granted in this case.

M. Y. H. Leave granted.

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