Muhammad Siddique, son of Allah Bakltsh, caste Gujjar, aged 30 years resident of Pacca Garha.
Police Station Sadar, Sialkot, District Sialkot, has preferred this appeal against the judgment of the learned Sessions Judge, Sialkot, dated the 18th May, 1978, whereby he was convicted, under section 304, Part It of the Pakistan Penal Code for committing culpable homicide not amounting to murder of his neighbour, Muhammad Yunis son of Muhammad Din, aged 32 years and sentenced to undergo five years rigorous imprisonment and pay a fine of Rs. 1,000 or in default of payment thereof to suffer further rigorous imprisonment for three months. He was directed to pay Rs. 1,000 as compensation to the legal heirs of Muhammad Yunis deceased and on failure to pay the same to pass sentence of three months' rigorous imprisonment.
2. Muhammad Din, complainant, father of the deceased, has filed Revision Petition (No. 752 of 1978), against the impugned judgment of the learned Sessions Judge for securing conviction of the appellant under section 302 of the Pakistan Penal Code in place of the one recorded by the learned trial Judge. This judgment will dispose of the present appeal as well as the revision petition. ,
3. It may be mentioned that the State's appeal (Criminal Appeal No. 1033 of 19-18) against the acquittal of the appellant of the charge of commission of murder punishable under section 302 of the Pakistan Penal Code was dismissed in limine by a Division Bench of this Court on the 15tb March, 1980.
4. The occurrence, as alleged by the prosecution, took place in the following manner. On the 11September, 1976, at about 5-00 p.m., the appellant let loose his goats to graze in the grassy plot close to the house of the deceased which plot the complainant party had reserved for growing grass for their she-buffalo. The deceased forbade the appellant to graze his goats over thereth whereupon the appellant started abusing the deceased. The noise raised attracted Muhammad Din, complainant, P. W. 8 Allah Ditta, P. W. 9, and Bahadur Ali to the spot. The appellant took out a chhuree from the fold of his loin-cloth and stabbed the deceased in the left flank and he received injury on the thumb of his left hand as well. The deceased collapsed on the ground and the appellant waiving the weapon of offence made good his escape. The deceased was carried in a tonga to Allama Iqbal Memorial Hospital, Sialkot, where be was medically examined and attended upon.
5. The hospital staff informed Police Station Sadar, Sialkot about the arrival of the deceased in injured condition. Barkat Ali, Assistant Sub---Inspector of Police, Police Station, Sadar, Sialkot. P. W.
10. Hastend to the hospital. As the deceased was unconscious he took down Muhammad Din's statement, Exh. P. D. Which constitutes the first information report, in the hospital at 7-30. Fifteen minutes later the formal first information report, Exh. P. D./1, was registered at Police Station, Sadar, Sialkot.
6. On the 12September, 1976, the deceased gained consciousness and was declared by the Medical Officer to be fit to make statement. Barkat Ali P. W. 10, recorded h;s statement, Exh. P. J.
Which in substance corresponded to what had been given out by his father in the first information report, Exh. P. D. The additional fact disclosed by the deceased was that when the appellant had started abusing him he had paid him back in the same coin.
7. The deceased was operated upon but he could not survive and expired on 13September, 1976 at 4-30 p. m., in the hospital.
8. The appellant was arrested by Chaudhry Barkat Ali, P. W.
10. On the 15th September, 1976. He led to the recovery of the blood-stained chhuree, Exh. P. 1, from his house and it was taken possession of by Chaudhry Barkat Ali, P. W. 10, after having been made into a sealed parcel vide memorandum.
Exh. P. F. It was attested by Muhammad Riaz, P. W. 5, and Aman Ollah, P. W.
6. The Chemical Examiner, vide his report, Exh. P. L., confirmed presence of blood on the chhuree, Exh. P. 1, and the Serologist determined the origin of blood to be human per his report, Exh. P. M.
9. Doctor Muhammad Yunis Chughtai, Medical Officer, Allama Iqbal Memorial Hospital, Sialkot, P. W.
1, examined the deceased, on the 11September 1976, at 5-30 p.m., when he was brought to the hospital and found the following injuries on his person:-
(1) Incised wound ----- x ----- x depth not probed lying in the mid axillary line, on the middle part of the left outer side of chest.
Sufficient blood was coming out of the wound. Corresponding cut was present on the blood- stained white cotton vest.
(2) Superificial cut 1" x 1/3" x ----- on the dorsal surface of the base of left thumb.
The deceased was in semi unconscious state of mind. His blood pressure was 105/75, pulse was rapid and weak and its rate was 112 per minute, respiration was slow and Lahoured, extermities were cold and clammy. Blood vomiting was present with severe pain in the left chest. He was in shock condition. His general condition was not satisfactory.
10. The first injury was found on operation to be grievous and dangerous to life as spleen was found to have been cut and was removed, left dome of the diaphragm was found cut, left lung had collapsed and there was free blood in peritonial cavity. The second Injury was of course simple in nature. Both the injuries bad been caused with sharp-edged weapon within one or two hours.
11. On the 14th September, 1976, at 6-30 p.m. Doctor Muhammad Yunis, P. W. 1, performed autopsy on the dead body of the deceased and noticed the following injuries thereon:-
(1) Incised wound --" x --" (stitched) on the left outer chest middle part, lying in the mid axillary line.
(2) Loparotony wound (incised wound) 10" (stitched) on the left side of the abdomen 1--' away from the umbilicus (left thoracic para--median incision).th th th
(3) Drainage tube wound-incised wound --" (stitched) on the left side of the abdomen, 1" below the lower end of Injury No. 2 (surgical wound).
(4) Superficial cut 11/8--- x 1/16--- x --" skin deep on the dorsal surface of the base of left thumb.
(5) Venesection wound. Incised wound --" x --" on the inner aspect of right ankle joint just above the medial malleolus.
Walls of the thorax and left pleurae were found injured. Left pleural cavity contained about two pounds of fluid blood. Left lung was cut and had collapsed. Right chamber of heart contained fluid blood. Spleen was found cut and was removed, Peritoneum contained about six ounces of fluid blood. Diaphragm was found cut. Stomach contained about three ounces of serous fluid. The first injury was grievous and dangerous to life. In the opinion of the Medical Officer death occurred due to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. The injuries were ante mortem. Probable time between infliction of injuries and occurrence of death was about 47 hours and between death and post-mortem examination about 14 hours. Exh. P. B is the copy of the post-mortem examination report and Exh. P.
B./1 is the diagrammatic sketch showing the location of injuries.
11-A. The appellant disowned recovery of blood-stained chhuree, Exh. P 1, at his instance and denied having killed the deceased as alleged by the prosecution. He gave his own version of the occurrence which reproduced in his own is as follows;---- On the day of occurrence my were Mst. Rukhsana was grazing my goats in the grass in the open plot in front of my house. Muhammad Yunis deceased came there. He misbehaved with my were by abusing and slapping her. I was attracted to the spot on hearing the alarm. The deceased also abused me. He felled me down on the ground and tried to throttle me and also squeezed my testicles. I in the exercise of the right of private defence inflicted a single blow with pen knife on his person. I appeared before the Police voluntarily and narrated the same details of the occurrence."
He produced Khadim Hussain, P. W. 1, in defence, to support his story.
12. Believing the prosecution case the learned Sessions Judge formed the view that the appellant inflicted fatal injury to the deceased during a sudden quarrel without any premeditation in the heat of passion and that he did not act in cruel or unusual manner. Therefore, he concluded that the offence committed by him was covered by Exception IV to section 300 of the Pakistan Penal Code and fell under section 304, Part II of the Pakistan Penal Code. He did not accept at face value the way the appellant described the occurrence to have been taken place. Also he disbelieved the testimony of Khadim Hussain, D. W. 1, for reasons detailed in his judgment. Consequently he convicted and sentenced him as mentioned in the beginning of this judgment.
13. The appellant assumes responsibility for causing fatal injury to the deceased. The question that crops up for determination is as to which of the versions of the case given by the prosecution and the appellant is to be accepted. The eye-witnesses, namely. Muhammad Din, P. W. 8, and Allah Ditta. P. W. Q were not cross-examined regarding the defence version of the case. Khadim Hussain, D. W. 1, could not tell the name of the appellant's were who was said to have been maltreated by the deceased. The appellant's story touching ill-treatment of his were by the deceased was developed by him at later stage of the trial of the case. It was, therefore, rightly discarded by the learned, trial Sessions Judge. The complainant had no previous enmity with the appellant nor any motive falsely to implicate him in the case. The testimony of Muhammad Din, P. W. 8, and Allah Ditta, P. W. 9, inspires confidence and there is no reason to disbelieve it. In these circumstances the appellant's action is not defensible in law.
14. From the evidence brought on the record it is apparent that when the deceased asked the appellant not to graze his goats the latter started abusing the former whereupon the former also abused the latter. The appellant took out the chhuree which had been concealed in the fold of his loin-cloth and abrumk, stabbed the deceased. He did not repeat the blow but fled away His action indicates absence of his intention to murder the deceased. Therefore, he was rightly convicted under section 304, Part II of the Pakistan Penal Code. The sentence awarded to him is not excessive.
15. By dismissing the State appeal the Division -Bench of this Court endorsed acquittal of the appellant of the charge of commission of offence of murder punishable under section 302 of the Pakistan Penal Code. Therefore, this Bench cannot order in revision retrial of the appellant with the object of securing his conviction under section 302 of the Pakistan Penal Code as prayed for by the complainant. Even otherwise the conviction under section 304, Part II of the Pakistan Penal Code in the circumstances of the case, on the basis of the evidence on the record, is quite proper. The contention of the learned counsel for the complainant that the conviction should be altered into one under section 304, Part I of the Pakistan Penal Code is not maintainable because, as observed above intention of the appellant to kill the deceased was negated from the fact that he caused single blow to the deceased and could not be said to have pre-planned attack upon him.
16. In the result both the appeal and revision petition are dismissed.