Find a Lawyer

Criminal Appeal No. 21/K of 1984, decided on 2nd April, 1986.

(On appeal from the judgment and order of the Sind High Court, Karachi, dated 14‑6‑1984, passed in Criminal Appeal No. 11 of 1983).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), 5.302/34‑‑Sentence‑ Conviction altered to one under 5.304, Part‑I and sentence reduced‑ Leave to appeal granted to consider whether High Court erred in altering conviction of accused‑respondent and reducing sentence when his act clearly fell within mischief of S.302,

-‑‑S. 302‑‑Sentence‑‑Extreme penalty not called for where immediate cause of attack was not known‑‑Wilful murder without any mitigating circumstance‑‑Conviction based on ocular testimony of disinterested witnesses and recovery of crime weapon‑‑Deceased having suffered three incised wounds caused by Chhuri out of which two were sufficient to cause death in ordinary course of nature‑‑No provocation caused‑‑High Court's view that evidence on record negated case of premeditated murder, not sustained‑‑Act of accused clearly falling within mischief of S.302, P.P.C. conviction under that section upheld but capital sentence not awarded‑‑Held: In such like cases where immediate cause of attack was not known extreme penalty was not called for‑‑[ Sentence]

S. Ansar Hussain, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Appellant.

M. Hayat Junejo, Senior Advocate Supreme Court and Muzaffar Hasan, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Abdul Sattar Shaikh, A.A.‑G. and S.M. Abbas, Advocate‑on -Record for Respondent No.3.

Date of hearing: 2nd April, 1986.

Accused/respondent Akbar, alongwith Sharif co‑accused, was tried by the learned Additional Sessions Judge (II), Karachi for committing the murder of Munshi Khan. The farmer was convicted under section 302, P.P.C. and sentenced to death. subject to confirmation by the High Court, while the latter was convicted under section 326, P.P.C. read with section 109, P.P.C. and was sentenced to 7 years' R.I. On appeal, the learned High Court, vide the impugned judgment, dated 14‑6‑1984 maintained the conviction of Sharif accused; but altered the conviction of Akbar from section 302 to section 304(1), P.P.C. and sentenced him to 8 years R.I. and a fine of Rs.10,000 in default to suffer further R.I. for 2 years. Rs.6,000 out of the amount of fine, if realized, was ordered to be paid to the legal heirs of the deceased under section 544‑A, Cr.P.C. and the sentence, awarded by the trial Court to Sharif accused/ respondent was also reduced from seven years to four years' R.I.

2. Leave was granted by this Court, per order, dated 19‑9‑1984 observing as follows:‑

"At the hearing of the petition the learned counsel for the petitioner did not press the case against Sharif, respondent No.2 and only urged that the High Court has erred in altering the conviction of Akbar respondent No. l from section 302/34 of the Pakistan Penal Code to section 304, Part I, P.P.C. and reducing his sentence. We have heard the counsel for petitioner, and gone through the impugned judgment. The High Court has recorded its reasons for altering the conviction of Akbar, respondent and reducing his sentence in paragraphs Nos. 1and 18 of the impugned judgment. After going through the same we feel that there is some force in the contention raised by the counsel. The matter, therefore, needs reconsideration. Leave is, consequently, granted only to consider whether the High Court had not erred in altering the conviction of Akbar respondent from section 302/34 of the Pakistan Penal Code to section 304, Part I of the Pakistan Penal Code‑ and reducing his sentence."

3. Facts stated at the trial are that on 13‑6‑1977 at about 9‑30 p.m. Munshi Khan deceased came to the tea stall of Habib, along with Chand Khan complainant and Gada Hussain P. W. , for a cup of tea. Just as they sat down Akbar, accused /respondent, alongwith Sharif accused came on bicycles and stopped outside the tea shop of Habib. Accused /respondent Akbar called out the deceased Munshi outside and asked him as to why he had opposed his betrothal which had been cancelled because of him. The deceased denied the charge whereupon, it is alleged, that Sharif accused/ respondent caught hold of Munahi and Akbar accused took out a Chhuri and gave blows to the deceased, P.Ws. Chand Khan, Gada Hussain and the hotel owner Habib came to the rescue of the deceased but both the accused /respondents escaped leaving their bicycle behind. Chand Khan, complainant on finding that the deceased Munshi Khan had been fatally wounded, put him in a taxi with the help of Gada Hussain and others and brought him to Cattle Colony Outpost Police where he lodged the F.I.R. at about 10 This report was transmitted to the Police Station Qusidabad where case was registered. Munshi Khan deceased was referred to Jinnah Hospital but he expired before reaching the hospital.

4. Dr. Muhammad Rafiq P.W.5 performed the post‑mortem examination on the dead body of Munshi Khan deceased and found three incised wounds, of various dimensions on the chest, abdomen and right cheek, caused by sharp‑edged weapon. In the opinion of the doctor death of the deceased was due to haemorrhage and shock and injuries Nos.1 and 2 were found by him to be sufficient individually and collectively to cause the death of the deceased in the ordinary course of nature.

5. Prosecution case consists of the ocular testimony of Chand Khan P.W.1 and Gada Hussain, P.W.3. Chand Khan stated that he was present with the deceased on the night of occurrence in front of Habib Hotel, Bhains Colony, Karachi; that Gada Hussain was also present there for a cup of tea; that the accused/ respondent Akbar came, along with Sharif on a bicycle; Akbar called out the deceased from the hotel and blamed him for the cancellation of his betrothal; that the deceased denied the charge whereupon Sharif accused caught hold of the deceased while Akbar gave him Chhuri blows on receipt of which the deceased fell on the ground; that he, along with the help of some others, put the deceased into a taxi and proceeded to Outpost Police where his report was recorded and' thereafter the deceased was taken to the hospital but he died on the way. Gada Hussain supported the ocular account of occurrence as given by Chand Khan.

6. Habib P.W.2 the hotel owner stated that he knew the deceased Munshi Khan; that he was present in his hotel when the deceased Munshi, along with Gada Hussain and Chand Khan came there for a cup of tea; that he was busy in preparing the tea when the accused/ respondents Akbar and Sharif came there on bicycle that Akbar called out the deceased; that shortly thereafter he was informed by a small boy that a fight had taken place; that on coming out he saw the deceased in an injured condition and both the accused /respondents running away from the spot.

7. The case was investigated by Shahamat Ali S.I. (P.W.6) who was then Incharge of the Police Post Cattle Colony. He stated that on 13‑6‑1977 Chand Khan complainant brought injured Munshi Khan, in a very precarious condition; that he recorded the report Exh.6/1, sent the injured to the hospital, came to the spot and drew the site plan correctly; that he arrested Akbar and Sharif accused /respondents in the presence of Hakim Ali and Muhammad Ali; that while in custody Akbar accused /respondent led to the recovery of blood‑stained Chhuri, lying in the heap of rubbish at the back of the house of one Ali Khan.

8. Learned counsel argued that Akbar accused /respondent committed the crime in a cold‑blood, and murdered the deceased Munshi Khan without any provocation which fact has been established by the statements of the eye‑witnesses, and supported by Habib P.W.2; that it is established to be a wilful murder without any mitigating circumstance.

9. We have gone through the evidence and heard the learned counsel for the accused /respondent as well as for the complainant Chand Khan. We hardly agree with the finding of the learned High Court Judges particularly with their observation in the impugned judgment:

"We have given our serious thoughts to the question whether we should maintain the conviction under section 302, P.P.C. Of appellant Akbar or should we alter the same into 304(1), P.P.C. As observed hereinabove that the evidence on record negates the case of pre‑meditated murder, in our view, it would be just and proper to alter the conviction from section 302, P.P.C. into section 304(1), P.P.C. We accordingly alter the conviction from section 302 to 304(1), P.P.C ..

We find that the observation is not well‑founded. The deceased Munshi Khan had 3 incised injuries caused by a weapon like a knife or a Chhuri. The doctor's opinion also confirms that two of these injuries were sufficient to cause the death of the deceased in the ordinary course of nature. Statement of Habib P.W.2 who is a disinterested person (which has been believed by the Courts below) shows that the deceased, along with his two companions, was sitting in the hotel when the accused /respondent Akbar called out the deceased and thereafter attacked him. Thus, the act of the accused clearly falls within the mischief of section 302. However, in our view, death penalty would, in the circumstances of this case, not be in consonance with the safe dispensation of justice. In such‑like cases where the immediate cause of attack is not known extreme penalty is not called for. We allow this appeal and alter the conviction from section 3040) to section 302', P.P. C. and award imprisonment for life, for the sentence of eight years' R.I. of Akbar accused /respondent. However the fine imposed by the High Court shall be maintained and the same, if realized, shall be paid in its entirety, to the heirs of the deceased. Benefit of section 382‑B, Cr.P.C. is extended to the accused. In these terms this appeal is allowed.

M. I. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.