Find a Lawyer

Criminal Appeal No. 77 of 1985, decided on 24th November, 1985.

(On appeal from the Order of the Lahore High Court in Murder Reference No. 115 and Criminal Appeal No. 375 of 1981, dated 26‑2‑1985).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302 & 304, Part II‑‑Leave to appeal granted to examine whether on evidence and findings by High Court, conviction should not have been under S. 302, P.P.C. instead of S. 304, Part II P.P.C.

‑‑‑S. 302/307/34‑‑Appeal against acquittal/ reduction in sentence‑‑Depth of injury showing intention to kill‑‑Convictions under S. 302/307/34, P.P.C. altered to one under S. 304, Part‑II, P.P.C. by high Court‑‑High Court taking view that elements of intention to kill were lacking because accused being laymen could not be expected to know precise locale of femoral artery and cause injury on this vital part of body of deceased for causing death‑‑Medical evidence showing that weapon of offence was plunged deep down into body in a classical killing style‑‑Assailants' act did show intention to kill‑‑Injuries found sufficient in ordinary course of nature to cause death‑‑Appeal allowed, judgment of trial Court restored with modification in sentence.

Muhammad Salim v. Muhammad Aslam and others 1933 S C M R 53 distinguished.

‑‑‑S. 302/34‑‑Conviction and sentence of death‑‑Reduction in sentence‑ Appraisal of evidence for reaching concurrent findings of fact by two Courts below being unexceptionable, convictions upheld but origin of real motive of occurrence having remained shrouded in mystery, sentence of death substituted by life imprisonment.‑‑[Sentence].

Sh. Shaukat Ali, Senior Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Appellant.

Aftab Farrukh, Advocate Supreme Court with Sh. Masud Akhtar, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 24th November, 1985.

This appeal against acquittal through leave of the Court is directed against the judgment of the Lahore High Court, dated 26‑2‑1985; whereby Muhammad Ilyas and Hameed Ullah respondents were, on their appeal from conviction and sentences of death, 7 years' R.I. and fine of Rs.1,000 and Rs.5,000 each under sections 302/34 and 307/34, P.P.C. for the murder of Fayyaz Ahmad and murderous assault on Nisar Ahmad, acquitted in the charge under section 302/34, P.P.C. and instead were convicted under section 304‑II, P.P.C. and sentenced to 10 years' R.I. each, while keeping the other convictions, sentences and directions intact.

2. Leave to appeal was granted to examine whether on the evidence and findings by the High Court the conviction should not have been under section 302, P.P.C. instead of 304‑II, P.P.C.

3. The reason mentioned in the High Court judgment for altering the conviction from section 302, P.P.C. to 304‑1i, P.P.C. is as follows:‑

"We have considered the arguments advanced by the learned counsel for the parties with care and we have come to the conclusion that the elements of intention is lacking in the circumstances of this case and, therefore, the offence committed by the appellants in the case of death of Fayyaz Ahmad deceased would amount to culpable homicide not amounting to murder punishable under section 304, Part‑II, P.P.C."

4. This conclusion was reached on acceptance of the following accusation against the respondents:‑

"It is, however, true that in this case, both the appellants caused injuries with their respective Chhuras on the left thigh of the deceased. Learned counsel for the State has urged that the injuries thus caused by the appellants were on the femoral artery, which resulted into excessive bleeding and caused the death of the deceased. According to him the aforementioned artery is a vital part of the human body for causing death."

5. The argument of the learned State counsel was repelled with the observation that the respondents being laymen could not be expected to know the precise locale of the femoral artery and, therefore, they could not be burdened with the intention to cause injuries on a vital part of the body of the deceased. Reliance was placed on Muhammad Salim v. Muhammad Aslam and others, 1983 S C M R 53; ratio in which case with respect, is not attracted to the present case neither the location of the injury nor to the circumstances of the two cases have any vital similarity.

'6. In this case the allegations against the respondents which has been accepted as substantially correct as contained in the deposition of two eye‑witnesses one of whom is himself injured are as follows:‑

"As for the main occurrence, it has been stated at about Isha prayer time, the complainant went to the mosque for saying his Isha prayer. The mosque is situate in the same locality opposite to the house of Hamidullah appellant. After saying his prayer the complainant found Muhammad Ilyas and Hamidullah appellants standing near the mosque. Both of them told the complainant that he and his sons have been unfair to them and, therefore, they should be prepared to face the consequences. The complainant came back to his house. His both sons were also present in the house. After some time the complainant and his two sons went towards Akhri Bus‑stand Chowk for getting medicine for the ailing wife of the complainant and also to see Tazia. When the complainant and his two sons i.e. the deceased Fayyaz Ahmad and Nisar Ahmad (P.W. 8) reached near Mosque Jamia Hanfia Farooqia, the appellants suddenly emerged from nearby, carrying Chhuras in their hands. Muhammad Ilyas appellant inflicted two blows with Chhura on the left leg to Fayyaz Ahmad. Hamidullah appellant gave one blow also on the left leg of Fayyaz Ahmad deceased. Nisar Ahmad (P.W. 8) wanted to intervene, but Hamidullah appellant inflicted two Chhura blows on his left leg and Muhammad Ilyas appellant also caused him a Chhura blow at the left flank. Fayyaz Ahmad deceased and Nisar Ahmad P.W. started bleeding. Fayyaz Ahmad tried to run to his house but collapsed near the Toka of Muhammad Siddique (not produced), while Nisar Ahmad P.W. fell in the mosque. The complainant raised alarm which attracted Muhammad Islam‑ul‑Haq and Jamil Mirza (both given up as won over) to the scene of occurrence. The appellants ran away with their Chhuras."

The injuries found on the deceased are as follows:‑

"Patient was received in a very serious condition. B.P. and pulse were not record-able. Face was sweating. Patient was in shock. In spite of all the resuscitative measures the patient could not survive. I found following injuries on his person:‑

(1) Incised wound on back of left thigh in its upper part measuring 3 cm. x 1 cm. Depth was not probed.

(2) Incised wound on back of left thigh internal to injury No. 1, measuring 2.5 cm. x 1 cm. Depth not probed.

(3) On its lateral part on the left thigh an incised wound was present measuring 3 cm. x 1 cm. Depth not probed."

7. After his death the autopsy of the deceased confirmed the above noted injuries with the addition that the depth of the wounds was horizontally oblique regarding first two and vertically oblique in the third one. The damage done to the internal vital parts of the body was such that the Chhuras must have been plunged deep down into the body in a classical killing style. The injuries were found by the doctor to be sufficient in ordinary course of nature to cause death.

8. In the above peculiar background and facts of this case it is obvious that the assailants' act did show the intention to kill and in any case the provisions of section 302 read with section 300 clause thirdly, were attracted so as to constitute the offence of murder; as the death was caused with the intention of causing such bodily injuries to the deceased which were sufficient in ordinary course of nature to cause death. The learned Judges in the High Court fell into error in treating the case as one of 304‑II.

9. Learned counsel for the respondents could not meet the above- stated position of facts and law. Instead he tried to show that the prosecution case is false. We after going through the relevant record are satisfied that the appraisal of evidence for reaching concurrent findings of facts by the two Courts below, is unexceptionable.

10. In the light of the foregoing discussion this appeal is allowed, the impugned judgment to the extent of acquittal under section 302: P.P.C. is set aside and that of the trial Court is restored except that it is not a case of sentence of death; as the origin and the real motive of the occurrence have remained shrouded in mystery. Vie accordingly while maintaining the convictions, sentences and directions of the trial Court substitute the sentence of life imprisonment for both the convicts respondents under section 302/34, P.P.C. They are allowed the benefit of section 382‑B, Cr. P.C.

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.