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Criminal Appeal No. 1006 of 1980 and Murder Reference No: 212 of 1980, decided on 10th July, 1984.

‑‑‑S.302/34‑‑Nature of offence‑‑Accused coming to spot armed with knife and giving blow on vital part of deceased‑‑Fact that accused attacked deceased with intention of causing his death, having been proved by said two circumstances, offence would clearly fall under 5.302, P. P. C.‑ Conviction maintained in circumstances.

‑‑‑S.302‑‑Quantum of sentence‑‑Prosecution failing to prove motive‑ Circumstances precipitating attack, shrouded in mystery‑‑Dimension of injury showing use of small weapon‑‑Accused giving only one injury and there was no assertion that accused attempted to repeat blow‑ Sentence of death altered to imprisonment for life in circumstances.‑ [Sentence].

Dr. Khalid Ranjha for Appellant.

Kh. Muhammad Asghar for the State.

Date of hearing: 10th July, 1984.

.‑‑Arif alias Achhi son of Muhammad Hussain, aged 25 years and his father, namely, Muhammad son of Shah Muhammad, aged 60 years were tried on a charge under section 302/34, P.P.C. for committing the murder of Muhammad Hanif son of Channan Din, aged 30 years, by the learned Additional Sessions Judge, Faisalabad, who vide his judgment, dated 23‑7‑1980 acquitted Muhammad Hussain by giving him benefit of doubt but convicted Arif alias Achhi under section 302, P. P. C. and sentenced him to death and to pay a fine of Rs.2,000 or in default to suffer rigorous imprisonment for a period of six months. It was directed that the fine, if realized, be paid to the heirs of the deceased. Arif alias Achhi convict has filed an appeal assailing his conviction as well as sentence and the learned trial Court also has submitted a reference under section 374, Cr. P. C. for confirmation of the sentence of death. This judgment shall dispose of the appeal as well as the reference.

2. The occurrence took place on 28‑12‑1978 at 7‑30 p.m. in front of the house of the deceased situate in the Abadi of Chak No.67/G.B. about ten miles away from Police Station Jaranwala, District Faisalabad. It was reported by Mukhtar Ahmad P.W.8, uterine brother of the deceased, at 9‑15 p.m. on the same date at Police Station, Jaranwala vide F.I.R. Exh.P.H. recorded by Sub‑Inspector Abaid Ullah PW‑10, the then Station House Officer of the Police Station. On the basis of the F.I.R., a case under section 302/34, P.P.C was registered.

3. The prosecution case, briefly, was that on 28‑12‑1978 at about 6‑00 p.m. the deceased and Mukhtar Ahmad P.W.8 were irrigating their sugarcane field. Kaka, 12 or 13 years old brother of the deceased, attempted to pluck sugarcane from their field. The appellant abusing him forbade him from plucking the sugarcane. Kaka also abused him in return whereupon the deceased gave him 2 or 3 slaps. Kaka went away to his house weeping.

4. Shortly after the above incident, the deceased and Mukhtar Ahmad P.W. also went to their house. On the same date at 7‑30 p.m., the appellant and his acquitted co‑accused came to the house of the deceased hurling abuses. The deceased went out of his house. Mukhtar Ahmad PW‑8 and his cousin, namely, Sharif PW‑9 followed him Ghulam Nabi PW (given up at the trial), a resident of the village, also came there. Muhammad Hussain, acquitted co‑accused, held the deceased while the appellant gave him a knife blow on his neck felling him down. Mukhtar Ahmad, Sharif and Ghulam Nabi tried to apprehend the appellant and his co‑accused but they made good their escape. The deceased was carried in an injured condition towards Civil Hospital, Jaranwala, but he succumbed to the injury on the way.

5. Sub‑Inspector Abaid Ullah P.W.10 investigated the case. On reaching the hospital, he prepared injury statement Exh.P.B. and inquest report Exh.P.C. in respect of the dead body of the deceased and despatched the same to the mortuary for post‑mortem examination. On the next day, he collected blood‑stained earth from the spot vide memo. Exh.P.F. He arrested the appellant on 31‑12‑1978. On the same date, the appellant while in custody led to the recovery of blood‑stained knife P.4 from his house. The S.I. took it into possession vide memo. Exh.P.G. and made it into a sealed parcel in the presence of Muhammad Asghar P.W. 7 and Sardar Muhammad P.W. (not produced). The blood‑stained earth and the blood‑stained knife P.4 according to the report Exh.P.K. of the Serologist were stained with human blood. After the completion of the investigation, the appellant and his acquitted co‑accused were challaned.

6. On 29‑12‑1978 at 9‑00 a.m., Dr. Khurshid Ahmad PW‑1, Medical Officer, Civil Hospital, Jaranwala, performed post‑mortem examination on the dead body of the deceased and observed as follows:‑

(1) Stab wound 2 c.m. x 1 c.m. x 4 c.m. on front and left side of neck 4 c. m. above left collar bone. Neck blood vessel of left side of neck and oesophagus were cut.

7. In the opinion of the Medical Officer, the death occurred due to shock and bleeding as a result of injury No.1 caused by sharp‑edged pointed weapon. The injury was ante‑mortem and sufficient to cause death individually in the ordinary course of nature. The probable interval between the injury and the death was within a few hours and between the death and the post‑mortem examination about 12 hours. Exh.P.A. is the post‑mortem examination report and Exh.P.A./1 is the diagram showing the locale of the injury.

8. The appellant and his co‑accused pleaded not guilty to the charge framed against them under section 302/34, P.P.C. When examined under section 342, Cr.P.C., they denied the prosecution case. The appellant also denied the recovery of blood‑stained knife P.4 attributed to him. According to them, they had been falsely implicated due to enmity. The appellant raised the following plea:‑---

"I am innocent. A few days prior to the alleged occurrence, I went to see my father. There was a quarrel between my grand‑mother and the womanfolk of Hanif deceased I had a quarrel with Hanif and I gave a beating to Hanif and Mukhtar. Apart from this, there was a strong party faction in the village and there is long‑standing enmity between the deceased and my father. They have falsely implicated me in this case. I reside with my uncle in Chak No. 33/GB since long."

9. The plea of the acquitted co‑accused was as under:‑--

"I am innocent. I have been implicated on account of party faction in the village. Moreover, my mother was neighbourer of Muhammad Hanif. She had a quarrel with the womenfolk of the family of Muhammad Hanif whereupon my son Arif gave a beating to Mukhtar and Muhammad Hanif a few days before the occurrence. I remained present at Faisalabad. Hanif had murdered Ismail Butt. They had the enmity with Muhammad Hanif."

However, neither of them produced any evidence in defence.

10. The learned trial Court after appraising the prosecution evidence disbelieved the alleged motive and recovery of blood‑stained knife P.4 ascribed to the appellant. However, the conviction of the appellant was invoked on the basis of the ocular account furnished by Mukhtar Ahmad P.W.8 and Sharif P.W.9. As pointed out earlier, Mukhtar Ahmad is the uterine brother of the deceased and Sharif is the cousin of Mukhtar Ahmad. Although they are related to the deceased yet they had no animus or malice to falsely implicate the appellant. Both of them deposed that on the day of occurrence at about 7‑‑30 p.m. the appellant and his acquitted co‑accused hurling abuses came in front of the house of the deceased. The deceased went out followed by both the witnesses. There while Muhammad Hussain acquitted co‑accused grappled with the deceased the appellant inflicted a knife blow on his neck. The learned counsel for the appellant has not pointed out any circumstances which could recoil on their veracity. Of course, the learned trial Court on the same evidence acquitted the co‑accused of the appellant. Nevertheless, this fact does not recoil on the culpability of the appellant. The learned trial Court gave the acquitted co‑accused the benefit of doubt on the ground that the evidence on record was not sufficient to conclude that he shared the intention of the appellant to kill the deceased.

11. The learned counsel for the appellant in his arguments has not challenged the finding of the learned trial Court that the deceased died as a result of the injury caused to him by the appellant. His only argument is that the offence of the appellant falls under section 304, P.P.C. instead of under section 302, P.P.C. We have considered the argument in the light of the evidence on record but have not felt persuaded to accept the same. The appellant came to the spot armed with a knife and gave a blow with it on the vital part of the deceased. These two circumstances prove beyond any doubt that he attacked the deceased with the intention of causing his death. Therefore, his offence clearly falls under section 302, P. P. C. We, therefore, maintain his conviction under section 302, P.P.C.

12. The next contention which has been pressed into service by the learned counsel for the appellant is that the offence of the appellant does not call for the extreme penalty of death. In this connection, he has relied upon the finding of the learned trial Court that the prosecution has failed to prove the motive for the crime. It was alleged in the F. I. R. that about 1 hours before the occurrence, Kaka, younger brother of the appellant, had tried to pluck sugarcane from the field of the deceased and when the deceased abusing him forbade him from doing so, he also abused the deceased in return whereupon the deceased slapped him and he went away towards his house weeping. Mukhtar Ahmad P.W.8 was the only witness of this motive. His statement that he was present at that time bristled with doubt and the learned trial Court preferred to disbelieve the alleged motive. Therefore, the circumstances which precipitated the attack are shrouded in mystery. Moreover, from the dimensions of the fatal injury, it appears that it was caused by a small weapon. The appellant gave only one injury. There is no assertion that he attempted to repeat the blow. In view of all these circumstances, we accept the contention of the learned counsel for the appellant and alter the sentence of the appellant from death to imprisonment for life. Accordingly, the sentence of death is not confirmed. The sentence of fine is, however, maintained.

13. With the above alteration in the sentence of death, this appeal is dismissed. While computing the period of sentence, the jail authorities shall give the appellant the benefit of the provisions of section 382‑B, Cr.P.C.

A /A‑9/L. Sentence reduced.

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