Accused-respondent Mustafauddin son of Wali Mohammad resident of Kalyas, Tehsil Charsadda, District Peshawar was tried under section 302, P. P. C. For committing the murder of Marjan Ail deceased on 24th August, 1977 at 8-30 p.m. In the mosque of village Kalyas, At the close of trial by his judgment dated 4th December, 1979 the learned Additional Sessions Judge, Charsadda convicted him under section 304, Part II, P. P. C. And sentenced to seven years, R. I. And a fine of Rs.
5,000 or in default to suffer further two years, R. I. Out of the fine if realised Rs. 3,000 were ordered to be paid as compensation to the heirs of the deceased. It appears that the accused convict was content with the order of the trial Judge. However, Nazar Mohammad the father of Marjan Ali deceased moved the present revision petition for the enhancement of sentence.
2. In nutshell the facts relevant for the disposal of this revision petition are that on the night of occurrence Mustafauddin accused-respon--dent and Marjan Ali deceased had gone to the village mosque for offering `Taraveh--- prayers. After saying the `Farz' with the Imam the accused and the deceased were offering Sunnah in the second row of the congregation when the accused parted but still continued saying his prayer. The deceased asked the accused to renew the ablution on which he became annoyed and stabbed the deceased in the abdomen with a dagger. Beside other villagers Sardar Mohammad and Dost Mohammad P. Ws. Who were present in the mosque witnessed the occurrence. The deceased who was still alive was taken to Police Station, Charsadda where Abdul Wajid Khan S. H. O. Recorded his report (Exh. P. A./I) in. The form of a dying declaration.
The same was read over to the deceased who after admitting it to be correct thumb impressed it.
It was also attested by Dost Mohammad (P. W. 5). Abdul Wajid Khan (P. W. 4) then prepared the injury sheet (Exh. P. C.) of Marjan Ali and sent him to Civil Hospital Charsadda for medical treatment. As the scene of crime was within the jurisdiction of Police Station Sardheri, the report (Exh. P. A/1) was sent to that Police Station Sardheri, the report (Exh. P. A/1) was sent to that Police Station for the registration of the case.
3. In all ten witnesses were examined by the prosecution in support of its case. Out of them Dost Mohammad (P. W. 9) and Sardar Mohammad (P. W. 6) gave direct account of the incident.
4. Dr. Abdul Hameed Khan (P. W. 10) on 24th August, 1977 at 9-30 P.M. Examined Marjan Ali injured and observed the following injury:- A stab wound in left hypocondrium of the abdomen, size 1" x 1--''.
Patient referred to L. R. H. Peshawar.
5. The deceased succumbed to his injuries on 26th August, 1977 and on the same day at 9-30 a.m.
Dr. Mohammad Shafiq (P. W. 3) performed autopsy on the dead body and found the following exter--nally:-
1. Apart from the stab wound there is an operation wound on the right side of abdomen approximately 8" in length. Texture of the deceased was of middle built.
A stab wound on the left side of upper abdomen 1--" in length.
On internal examination be found:- Abdomen:- Wall injured on the left upper abdomen. Peritoneum full of free peritoneal fluid which was blood-stained. Stomach empty. A perforation on the anterior wall of stomach which was stitched.
The cause of death was found to be Hypopclemic circulatory failure with ineffective peritonitis as peritoneal cavity was filled with blood--stained fluid. The time between injury and death was 72 hours while that between death and post-mortem was 2 hours. The injury was opined to be sufficient to cause the death of the deceased in the ordinary course of nature.
6. Dost Mohammad (P. W. 5) when examined at the trial stated that deceased was his nephew while Mustafauddin accused is the son of his first cousin; that on the night of occurrence he was present in the mosque offering `Taraveh' prayers in the first row. After saying' `Farz' with the Imam he and other members, of the congregation started offering Sunnah. Sardar Mohammad (P. W. 6), Marjan Ali deceased and Mustafauddin accused were offering their prayers in the second row. In the meantime he heard a row and cry of the deceased. On looking back he saw Mustafa--uddin accused pulling out his dagger from the abdomen of the deceased after stabbing him. The accused then ran away brandishing the dagger. The deceased who was alive was placed in a Suzuki and was taken to Police Station Charsadda where he himself lodged the report which was recorded by Abdul Wajid Khan S. I. (P. W. 4) in his presence.
Sardar Muhammad (P. W. 6) in material particulars gave a similar statement as the one given by Dost Mohammad (P. W. 5).
7. Learned counsel for the petitioner advanced two fold contention. Firstly, he submitted that the accused respondent caused a fatal blow to the deceased with a dagger choosing the vital part of the body i.e. The abdomen and as such he should have been convicted and sentenced under Part I of section 304, P. P. C. Secondly if the first contention does not prevail the facts and circumstances of the case require that the accused respondent be awarded the maximum sentence of ten years, R. I. As provided by Part II of section 304, P. P. C.
8. The trial Judge failed to realise the serious nature of the attack which was made by the accused-respondent with a dangerous weapon on a vital part of the body obviously intending to cause death or to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. As such I have no doubt that the appellant had committed the offence of murder but unfortunately, the Provincial Government did not file an appeal against the acquittal of the accused respondent of the charge under section 302, P. P. D.
9. It is settled law that the powers under section 439, Cr. P. C. Cannot be exercised to convert a finding of even a partial or implied acquittal into one of conviction. Therefore, it is to be seen whether the offences specified under Parts I and II of section 304, P. P. C. Are distinct offences so as to attract the application of clause (a) of subsection (4) of section 439, Cr. P. C. In that a conviction under Part II of section 304, P. P. C. Would be deemed to be an acquittal under Part I of the said section. Both the parts of section 304, P. P. C. Refer to distinct offences. Part I would se attracted to an offence which is otherwise murder but is reduced to culpable homicide not amounting to murder by reason of being covered by any of the exceptions to section 300, P. P. C. Part II of section 304, P. P. C. Would be applicable if the fatal injury inflicted on the deceased is caused to him without any intention on the part of the accused to cause death or such bodily injury as is likely to cause death but about which the accused can be burdened with the knowledge that it is likely to cause his death. In this view of the matter I am fully supported by a Division Bench authority of this Court reported as Khanwada v. The State (PLD 1971 Pesh. 13).
10. The second submission of the learned counsel for the petitioner has sufficient substance. The deceased asked the accused who had parted to renew the abolution which should not have offended the accused who for no justifiable reason dealt the deceased a blow on the abdomen on vital part of the body with a dagger, a dangerous weapon resulting in his death. As such by maintaining the conviction under section 304, Part II of the Pakistan Penal Code, the sentence of imprisonment of seven years, R. I. Is enhanced to ten years' R. I. This shall be apart from the sentence of fine already imposed and the compensation granted by the learned trial Judge.
I am not oblivious of the fact that this Court has the power to order, retrial of the accused but the same course is not adopted for the reason that the accused-respondent was only given a notice in the revision petition to show cause why his sentence be not enhanced and not as to why retrial should not be ordered.
11. For the reasons aforesaid the revision petition for enhancement of sentence is accepted.