1. MUHAMMAD AKRAM, J.-Zahoor Ahmad alias Maki aged 14 years was convicted under section 302, P. P. C. And sentenced to life imprisonment and a fine of Rs. 2,000 or in default to suffer further rigorous imprisonment for one year for the murder of Muhammad Ashfaq by the Sessions Judge, Gujranwala on the 30th of August 1975. His appeal against his conviction and sentence was dismissed by a learned Judge of the Lahore High Court at Lahore on the 23rd of May 1977. This is his petition for special leave from the judgment of the High Court.
2. This incident took place on the 9th of September 1973 at about 3-30 p. In. In front of tine milk shop of Muhammad Ishaq (P. W. 7), father of the deceased, situated in a street in Gujranwala city. A report about it was drawn up on the statement of said Muhammad Ishaq (P. W.) recorded by A. S. I.
3. Muhammad Yaqub (P. W. 10) at 7-15 p. m. On the same evening in District Headquarters Hospital, Gujranwala.
4. According to the prosecution Muhammad Ashfaq deceased quite often used to attend to, the shop of his father and Zahoor Ahmad used to extort small amounts of money from him on occasions about which the deceased bad complained to his father who in turn had even reprimanded the petitioner about it. On the eventful day Muhammad Ishaq (P. W. 7) had gone to his house to take his meals leaving Muhammad Ashfaq deceased at his shop. On his way back from home he was joined by Muhammad Rafique (P. W. 9) and on reaching the corner of the lane their attention was attracted by a commotion. They saw from a distance Zahoor Ahmad petitioner pulling down Muhammad Ashfaq deceased from his shop by holding him from the collar of his shirt. On seeing this Muhammad Ishaq shouted asking the petitioner to leave his son. In spite of this, however, within their view he stabbed Muhammad Ashfaq deceased with a knife blow at his abdomen and felled him to the ground. On this Muhammad Ishaq and Muhammad Rafiq (P. Ws.) rushed forward to find the deceased bleeding profusely from his wound. In the meantime Zahoor Abmad petitioner made good his escape. The occurrence was also witnessed by Malik Muhammad Naeem (not produced). All three of them carried the injured to Hussain Hospital Satellite Town and from there they brought him to the District Headquarters Hospital, Civil Lines, Gujranwala. In the hospital Dr. Muhammad Nawaz Bajwa (P. W. 1) examined the injured and informed the police about it through a ruqqa. .This brought A. S. I. Muhammad Yaqub (P. W. 10) to the hospital at about 7-00 p. m. To record the statement of Muhammad Ishaq P. W. In the hospital on the basis of which the formal F. I.
5. R. Was ultimately registered at the police station. The injured eventually succumbed to the injuries on the 11th of Septem--ber, 1973 at about 1-00 a. m.
6. The investigation into the case was started by A. S. I. Muhammad Yaqub (P. W. 10). He was however, afterwards relieved of the investigation by the Inspector Muhammad Sadiq (P. W. 11) who arrested the petitioner. In the course of his investigation he led to the recovery of the blood--stained knife (Exh. P. 2) after digging it out from near the compound of a wall of the District Jail, Gujranwala. The recovery was made by the Inspector in the presence of Abdur Rashid (P. W. 9). The post-mortem examination showed that the deceased had an incised wound on ambilicus oblique in nature 1' x 1 --' going deep cutting the omentum. The accused pleaded not guilty to the charge and stated that he had been falsely implicated for this murder. He also denied the recovery of the blood--stained knife attributed to him.
7. The trial Court was not satisfied about motive attributed to two accused that he used to extort Rs. 2 or 3 daily from the deceased who had complained about it to his father. In its opinion in this behalf it was not safe to rely on the solitary statement of Muhammad Ishaq (P. W.). Besides this' 'the immediate cause of this attack by the petitioner on the deceased was shrouded in mystery and it was not known as to what had in fact prompted him to deliver the fatal blow at the deceased.
8. However, on the merits, the learned Sessions Judge observed that the prosecution has relied on the evidence of Muhammad Ishaq and Muhammad Rafiq (P. Ws.) as the eye-witnesses of the occurrence who were in no way inimically disposed towards the accused so as to falsely implicate him in this offence. The testimony of the two, witnesses was even otherwise amply corroborated by the recovery of the knife proved to be stained with human blood and the medical evidence. In conclusion therefore, the learned trial Judge convicted the petitioner under section 302, P. P. C. As to the sentence he observed that the origin of this attack by the accused was surrounded in mystery. He inflicted a single blow at the deceased and did not repeat it. He was about 13/14 years in age at the time of the occurrence. On account of these mitigating circumstances the Court did not award the extreme penalty of death and sentenced the accused to imprisonment for life and also to pay the fine.
9. These findings were assailed in appeal before a learned Judge of the High Court as erroneous being based on a belated report, incredible evidence of two close relations of the deceased and fake recovery of knife (Exh. P. 2) which was planted at a very late stage to strengthen an otherwise weak case. But the learned Judge in Chambers on going through the record with care was not persuaded to agree with these contentions which were repelled. He observed that the two eye- witnesses, namely Muhammad Ishaq (P. W. 7) was the father of the deceased and Muhammad Rafiqe (P. W. 8) was his maternal uncle. But in his opinion their evidence could not be discarded merely on account of this relationship, especially in the absence of any motive on their part to falsely implicate the petitioner in the case. It was a broad daylight occurrence in an open place which was witnessed by them from close quarters and they had no doubt about the identity of the accused consistently deposed to by them. In his statement before the Committing Magistrate the petitioner accused alleged that he was falsely implicated due to party faction and enmity about which there was not an iota of evidence on the record and not even the slightest suggestion about it was made to the witnesses in their cross-examination. In the circumstances, in the opinion of the learned Judge in Chambers the defence version was apparently an afterthought. In his- statement at the trial and the trend of the cross-examination of the witnesses showed that the time, place and the type of weapon (knife) used at the time was conceded by the defence. It was however, suggested that actual offender was a nephew of Muhammad Rafiq (P. W). But the suggestion was repelled by the High Court with the observation that substitution of the assailant was a thing of rare occurrence and that the defence had failed to lay any foundation for the same. According to the learned Judge the direct evidence had a ring of truth about it and the unimpeachable evidence of the independent witnesses, namely Abdur Rashid (P. W. 9) in support of the recovery of the knife (Exh. P. 2) at the instance of the petitioner which was found stained with human blood, could not be brushed aside and afforded the necessary corroboration to uphold the conviction of the petitioner.
10. In the opinion of the Court the delay in the report recorded after about four hours of the occurrence at the Police Station situated at two furlongs from the place did not alter the fate of the case. The injured person was removed to the Hospital with all promptitude by the witnesses who were concerned about his life, and which was upper most in their mind at the time. In the Hospital it was the legal duty of the Doctor to have informed the police about it which he faithfully performed after the examination of the injured person and having provided him with the necessary first aid.
11. However; the complainant -was in no way responsible for the delay caused by the Moharar in deputing the Police Officer to the Hospital for the purpose. In the opinion of the Court the mere fact that no other neighbour or resident of the vicinity was produced to corroborate the testimony of the eye-witnesses was not necessarily fatal to the prosecu--petition case. Often due to a general apathy or cowardice on their part to incur the risk of animosity of the assession they are not willing to come forward to depose to the facts in such cases and this circumstances by itself was not considered sufficient to detract from the evidence of the eye-witnesses and uphold the conviction of the petitioner. In the opinion of the learned Judge in Chambers the wanton manner in which the knife (Exh. P. 2) was plunged into the most vital part of the body causing extensive damage thereunder did not call for any interference in awarding the sentence while he had already been given the benefit of his young age in awarding the lesser penalty.
12. The two Courts have concurred in relying on the evidence of the two eye-witnesses, namely Muhammad Ishaq (P. W. 7) father of the deceased and Muhammad Rafiq (P. W. 8) his maternal uncle. Their evidence stands corroborated by the recovery of the blood-stained knife (Exh. P. 2) and the medical evidence. In, support of the recovery the two Courts have relied on the evidence of Abdur Rashid (P. W. 9) an independent, witness. The mere fact that the two eye-witnesses were related to the deceased was not sufficient to discard their testimony; especially in the absence of any motive on their part to falsely implicate the petitioner in the case. The High Court has rightly observed that it was a broad day--light occurrence and there could be no doubt about the identity of the accused consistently deposed to by the eye-witnesses. The suggestion in defence that the actual offender was a nephew of Muhammad Rafiq (P. W.) was rightly repelled by the High Court. In these circumstances we see no good reason to interfere with the concurrent finding of fact in finding the petitioner guilty.
13. Before us the learned counsel next attempted to argue that at any rate in the circumstances of this case the conviction of the petitioner under section 302, P. P. C. Was not justified and at best he was liable under Part II of section 304, P. P. C. Only. In this connection the cases cited by the learned counsel are distinguishable. In those cases mostly the fatal injury was caused by the accused in the beat of the passion in a sudden fight or quarrel and it was held that the accused could not have the intention to cause death or such bodily injury as was likely to cause death and that he could only be held guilty of the offence under Part II of section 304, P. P. C. In this connection in the leading case of Ahmad v. State (PLD 1971 SC 720) in making the distinction between sections 302 and 304, Parts I and II, this Court observed that section 302 is attracted when the offence is not one of culpable homicide not amounting to murder but the case will be covered by section 304, Part I if the offence of murder is reduced to culpable homicide by being covered by any exception to section 300. Part II of section 304 applies if fatal injury is inflicted without any intention on the part of accused to cause death or such injury as is likely to cause death and the accused could be burdened with knowledge of injury being likely to cause death. Similarly in Shaman v. State (1972 P Cr. L J.400) it was held that where the accused gave only one blow at the head of the deceased with the blunt side of hatchet and thereby caused the victim's death, the contention that injury not having been caused by sharp side of weapon and therefore, accused could not be burdened with intention of causing death, was not acceptable. In that connection it was observed that the accused, must, in circumstances, be burdened with intention of causing such bodily injury as he knew to be likely to cause death. In Wajid A.I Shah and others v. State (PLD 1960 Lah. 1117) it was held that where a person so aims a blow at another with a knife at a vital part of the human body (e. g. Neck) then that person could be presumed to have had no intention but to take like life. The question whether the act of an accused person would constitute an offence of murder under section 302, Penal Code or an offence of culpable homicide not amounting to murder under section 304, Part II, Penal Code must be determined on facts of each particular case. This question about the intention or knowledge on the part of the accused is always a matter of inference to be drawn from the facts and circumstances of each case and from the nature of the weapons used and the injuries inflicted.
14. KARAM ELAHEE CHAUHAN, J.-I agree.