KHALILUR RAHMAN KHAN. J.-Muhammad Latif alias Teefa appel--lant aged 18 years, was tried along with Abdul Hafeez alias Muhammad Hafeez by learned Additional Session, Judge Faisalabad under sec--tions 449, 302 read with section 34, P. P. C. For the murder of Yahya son of Muhammad Zikria aged 20 years after having committed house trespass. The learned Additional Sessions Judge vide judgment dated 5th December. 1978 acquitted Abdul Hafeez alias Muhammad Hafeez, but convicted Muhammad Latif, appellant and sentenced him to death. A fine of Rs. 5,000 was also imposed or in default whereof he was to suffer one year R I. In case the fine is recovered, the same is directed to be paid to the heirs of the deceased: The appellant was also convicted to suffer 5 years' imprisonment under section 449, P. P. C.
2. The prosecution version according to F. I. R. Lodged by Muhammad Zikria P. W. 7, father of the deceased, is that on 1st June, 1976 at 5.00 p. m. The complainant, Yahya deceased, Muhammad Rafiq P. W. And one Khalid Bashir were sitting in the Bethak of the complain--ant. As there was a knock at the door Yahya deceased opened the door. Muhammad Latif appeared with a knife, raised lalkara that the deceased would be taught a lesson for getting himself engaged with the daughter of Muhammad Rafiq P. W. On this the deceased turned back and Latif accused entering the Bethak gave the deceased a blow with the knife on his left buttock. It was further mentioned in the F.I.R. That an unidentified person was- accompanying Muhammad Latif and he can be identified if he comes before the complainant. The role attributed to this unidentified per--son was that he also entered the Bethak and caught the deceased from his arms and Muhammad Latif accused thereafter gave a second blow with the knife on the right buttock of the deceased. The complainant and the P.Ws. Raised alarm and came forward to apprehend the accused who threatened to kill them with the knife, and thus succeeded in running away.
3. The motive for the occurrence given in the F. I. R. Is that Yahya deceased was' engaged to a daughter of Muhammad Rafiq, P. W. But Muhammad Latif appellant felt aggrieved of this, as he himself wanted to marry the said girl and in, order to avenge the grievance so nurtured Muhammad Latif along with his co-accused attacked Yahya deceased, Yahya was taken to the hospital by his father and was medically examined by Dr. A. A. Khalid. P. W. 11, who found the following injuries on the person of Yahya :-
(1) A stab wound 1 ----- x -----x depth not probed on right upper buttock.
(2) A stab wound ----- x ----- x muscle deep on left buttock hori--zontal.
4. After getting the Medico-Legal Report, the father of the deceased went to the police station Gulberg, Faisalabad, and lodged First Infor--mation Report Exh. P. F. Which was recorded by Muhammad Ishaque, A. S. I. The Investigation Officer after registration of the F. I. R. Reached the hospital with the complainant the same day and on his query Exh. P. B. The Doctor noted that Muhammad Yahya was not fit to make a statement. The inured Muhammad Yahya was operated upon and after operation the Doctor told the Investigation Officer that the victim was in a precarious condition. The Investigation Officer went to the spot at about 10.45 p m. And took into possession blood-stained pebbles from the Bethak of Zikria, complainant vide Recovery Memo Exh.
P. C. He also took into possession blood-stained Shalwar P. 1, and Shirt P. 2 belonging to Yahya deceased vide Memo Exh. P. D. On production before him by Zikria, complainant. On 3rd June, 1976 he went to the Hospital and made a query vide Exh. P. H. As to whether Yahya was fit to make a statement but the Doctor again replied in the negative. The report of the Doctor is Exh. P. H./I. The case was earlier registered under sec--tion 452/324/34, P. P. C., but on 3rd June, 1976 when injury No. 1 which was kept under observation was declared by the Doctor to be dangerous to life and the victim ultimately expired on 4th June, 1976, section 302 P. P. C. Was added in the relevant column of the F. I. R. Latif appellant was, however, arrested on 3rd June, 1976, a day prior to the death of Yahya and on 5th June. 1976, the appellant in custody, led to the recovery of blood-stained knife P. 3 from Bethak of his house in Muhammadpura. --The knife was lying hidden in the 'Nawar' of a 'flung' and the same was taken out and got recovered by the appellant which was taken into possession vide Memo Exh. P. G. This recovery was witnessed by Mash--koor Ahmad, P. W. 9, Shafiq P. W. (not produced) and Muhammad Ishaque A. S. I., P. W. 10.
5. The prosecution at trial examined in all 11 witnesses. Out of them Muhammad Zikria P. W. 7 and Muhammad Rafiq P. W. 8 (father and would be father-in-law of the deceased respectively) are the eye--witnesses of the occurrence. The medical evidence is contained in the testimony of Dr. A. A.
Khalid P. W. 11, who had examined Muhammad Yahya when he arrived at the Hospital in injured condition and who had also performed the post-mortem examination. He inter alia stated that injury. No. 1 was declared dangerous to life as the rectum and the small intestine were cut at four places and that from the external and internal examination of the dead body he was of the opinion that cause of death was shock and peritonitis as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. The ocular account was also sought to be supported by the recovery of knife P. 3 at the pointing out of the appellant as well as by the motive evidence contained in the testimony of eye-witnesses. In nutshell the prosecution case depends upon the ocular testimony of Muhammad Zikria and Muhammad Rafiq, P. Ws : Medical Evidence of Dr. A. A.
Khalid, the motive evidence and the recovery of blood-stained knife P. 3 as the blood-stains on the knife were found to be of human blood as per Exh. P. O report of Serologist. As against this the appellant in his statement under section 324, Cr. P. C. Totally denied the prosecution version and stated that he has been involved in the case due to enmity. He pleaded that he was married on 1 Ith July, 1975 vide Nikah Nama Exh. D. B. And he was living happily with his wife. He also produced Exh. D. C. A copy of form of P. T. I. Which was of House No. P. 29 to show that his maternal-aunt lived in a part of this -house and that it was about this house that Muhammad Rafiq P. W. Resiled from the contract of exchange with his maternal-aunt.
6. We have gone through the record with the assistance of the learned counsel for the appellant and have given our careful consideration to the submissions made by him before us. The learned counsel for the appellant contended that the ocular account of the eye-witnesses does not inspire confidence and cannot be relied upon for basing conviction on a capital charge as the eye- witnesses are interested being the close relations of the deceased. In this respect his plea was that the eye-witnesses were not, present at the time of incident as otherwise they would have intervened to save the deceased especially when according to the prosecution the appellant was armed with a knife only and Abdul Hafeez co-accused was empty handed. He next contended that the motive, as alleged by the prosecution in the F. I. R. Was that Latif appellant was refused the hand of Mst. Nighat, daughter of Muhammad Rafiq P. W. 8, but this motive stands belied by the admission made by Muhammad Rafiq, father of the girl that the appellant was already a married man prior to this incident. According to him as the appellant was married to 1957 there was no occasion for him to nurture grudge or feel aggrieved on the engagement of Mst. Nighat, daughter of Muhammad Rafiq with Yahya deceased and that in these circumstances the motive alleged cannot provide motivation to the appellant to make a murderous assault on the deceased.
7. Lastly the learned counsel submitted that if the prosecution version is to be believed, then neither a case of capital offence has been established nor death sentence 'is called for and at best a case under section 326, P. P. C. Is made out. In this connection the learned counsel argued that the deceased went to the Hospital himself in an injured condi--tion which will show that the injury caused was not serious and that, as noted by the Doctor, the death was on account of infection of peritoneum developed after operation. This infection according to the learned counsel developed due to lack of care and proper medication. The learned counsel relied on Kapur Singh v. The State of Pepsu (PLD 1957 SC (Ind.) 87). In this case 18 injuries with Gandasa were caused on the legs and arms of the victim and the Court held that as no injury was inflicted on any vital part of the deceased. In the circumstances of the case, the appellant did not intend to kill the deceased outright. In the circumstances of the case it was held that section 304, Part-1 and not section 302 of the Penal Code was applicable to the facts of the case. He also referred to Muhammad Arif v. The State (PLD 1974 Pesh. 33), and Muhammad Shah v. The State (1980 P Cr. L 1 1257). In the Peshawar case a single injury was caused on the left lateral aspect of thigh piercing the medial side of the thigh deep to the other side of the thigh. This injury was 1/4" x 1/8". In the circumstances of that case it was held that intention of causing death or knowledge that injury was likely to cause death, cannot be attributed. The conviction was, therefore, altered from section 302, P. P. C. To one under section 326, P. P. C. And the sentence was reduced from life imprisonment to 7 years' R. I.
8. We have considered the submissions of the learned counsel for the appellant and have gone through the record carefully and have come to the conclusion that contentions of the learned counsel for the appellant are without any substance. The plea that the ocular account does not inspire confidence is without any substance: The ocular account of the two eye-witnesses could not be shattered despite the lengthy cross-examina--tion conducted by the defence counsel at the trial. Nothing could be pointed out by the learned counsel for the appellant so as to demolish the testimony of the eye-witnesses and mere relationship of the eye-witnesses with the deceased is no ground for discarding their evidence. These eye--witnesses are the natural eye-witnesses as occurrence took place in the Bethak of the house of the complainant party. Muhammad Rafiq, P. W.
Also stated in his cross-examination that at the time of incident his wife and the younger daughter were also inside the house which will show that they had come to the house of the deceased, their would-be son-in-law, and in these circumstances the presence of the father in the house, may be that it was noon time, cannot be doubted. Nothing of importance could be pointed out to suggest that these eye-witnesses would be prepared to falsely implicate the appellant and substitute him for the actual culprit.
The ocular account affords full confidence and also stands corrobora--ted by medical testimony and recovery of blood-stained knife. It was at the pointing out of the appellant that this knife was recovered and the same was also found stained with human blood. The prosecution has, therefore established beyond reasonable doubt that it was the appellant who had given injuries on the right and left buttocks of Yahya deceased.
9. As regards motive; there is nothing on record to contradict the same. The plea that motive was trivial or that the alleged motive would not have made the appellant to launch murderous assault is of no con--sequence as on many occasions very heinous and atrocious crime is committed on very trivial matters.
10. The last submission made by the learned counsel may now be attended to. According to him the prosecution at best can clam to have made out a case under section 326, P. P. C. And that the death was the result of the infection of the peritoneum. As regards the cause of death, the Doctor in his testimony specifically stated that the cause of death was shock and peritonitis, as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. He further noted that peritoneum was congested and inflamed with signs of peritonitis present. He was not asked the question as to whether infection was due to lack of proper medication or that ordinarily the injury caused does not result in infection and death. The plea that there was no intention to cause death also stands belied by the location of the injury as well as the damage done. The Doctor found the rectum and the small intestine cut at four places. This itself shows the force with which the injury was caused and the damage which it had done. Again it is not a case of single injury, as the appellant in the instant case inflicted second injury on the buttock as well. The injuries inflicted landed on the buttocks as it is in the evidence that on opening the door and after hearing lalkara Muhammad Yahya turned back. Had he not turned back, apparently in a bid to save him--self, the injuries would have landed in the front part of the body. In any case nature of the offence is to be determined from the weapon used, seat and nature of injuries given as well as consequences arising out of the injuries so given.
As mentioned above, the injury inflicted by the appellant had cut the rectum and small intestine at four places, and damages so caused shows the force with which the injury was given with deadly weapon. The appel--lant having armed himself with a deadly weapon came to the house with the declared purpose of teaching a lesson for getting engaged with the daughter of Muhammad Rafiq.
The appellant then repeated the injury and inflicted a second injury on the buttock. In these circumstances the precedent cases cited by the learned counsel for the appellant are distingu-- ishable on facts and as such are not applicable to the situation in hand. The plea that buttocks where the appellant caused injuries are not vital part and, therefore, intention to kill cannot be attributed is also without merit. Although buttock is generally not a vital part of the body, yet it is not denied that death can be cau3ed by injury on the non-vital parts of the body also. The necessary intention is to be gathered from nature of the injury, conduct of the assailant and the surrounding circumstances of the case. In this behalf we can safely rely upon the following observations of the learned Judges of the Supreme Court made in Muhammad Siddique v. The State (1970 SCMR 313 "It was next contended by the learned counsel for the appellant that as the injury was caused on the left thigh of the deceased which is not a vital part of the body, the appellant should be given a lesser penalty of transportation for life. The contention of the learned counsel has not impressed me because the attack by the appellant was premeditated. He was armed with a chhuri of 9" blade and attacked the deceased with considerable force which resulted in cutting the femoral vein which is a large blood vessel on the thigh. It is, therefore, quite clear that he intended to cause the injury which was found on the deceased person and that injury was sufficient to cause the death in the ordinary course of nature. This case is clearly covered by the third clause of section 300, P. P. C. In the circumstances of this case the appellant does not deserve any lenient view. 1, would, therefore, uphold his conviction and dismiss the appeal."
For the same reasons we have no hesitation in repelling the conten--tions of the learned counsel that at best the offence made out falls under section 326, P. P. C. We are, therefore, of the considered view that the offence made out falls under section 302, P. P. C. We accord--ingly maintain the conviction and sentence recorded under section 302, P. P. C. By the learned Additional Sessions Judge, Faisalabad. The death sentence awarded to the appellant is hereby confirmed.
The appeal is, therefore, dismissed.