MUHAMMAD AFZAI, CHEEMA, J.--Allah Ditta (25) and his collateral Mohammad Hussain (18), residents of Basti Kaski, Police Station Kot Samaba, District Rahimyar Khan, were tried for an offence under section 302/34, P. P. C., for the murder of one Haji Nazir Ahmad, resident of a neighbouring village Chak No, 46/P, allegedly committed by them in furtherance of their common intention on 15-5-1966, at about 6-30 p. m. Vide his judgment dated 17-4-1967, the learned Sessions Judge, Rahimyar Khan, convicted Allah Ditta under section 304 (Part II), P. P. C. with an award of ten years' rigorous imprisonment and Muhammad Hussain under section 304 (Part H), 114, P. P. C. with an award of three years' rigorous imprisonment. The convicts have preferred Criminal Appeal No, 279 of 1967 against their convictions and sentences, while the State has filed Criminal Appeal No, 620 of 1967 against their acquittal of the charge under section 302/34, P. P. C. Both the appeals will be disposed of by this judgment.
2. The facts of the prosecution case, as alleged by Mahmud Ahmad complainant (P. W. 2) in the F. I.
R. Exh. P. A., lodged at 1-30 a. m. on 16-5-1966, at Police Station Kot Samaba, 12 miles away from the spot briefly are that on the previous evening at 6-30 p. m. he went on a round of his land and saw the two appellants driving their herd of cows through the sugar-cane field of the deceased onto the latter's thrashing-floor where Nazar Hussain (P. W. 11) and Sohan (P. W. 12) were winnowing the wheat. Mahmud Ahmad proceeded towards them in order to stop them. In the meantime, the deceased also reached the spot and remonstrating with the appellants for having driven the herd through his crop, told them to take it away. Allah Ditta appellant replied that they would take away after a short while. The deceased insisted that they should remove the cows then and there otherwise he would impound them. At this, Muhammad Hussain retorted that none had ever dared to impound their cattle and that he could also try if he had the courage to do so. At this, Haji Nazir Ahmad started rounding up the cows whereupon Muhammad Hussain exhorted Allah Ditta to teach him (the deceased) a lesson. Simultaneously with this, Muhammad Hussain abused the deceased. The deceased snubbed him whereupon Allah Ditta, who stood close to the deceased "with a iron-shed dang in his hand gave him a blow on the head which felled him. In the meantime, Ghulam Qadir Lambardar (P. W. 13) and Abdul Karim (P. W. 14) also reached the spot. All of them challenged the appellant who ran away. Allah Ditta waived a piece of cloth at which the cows also ran after them. The P. Ws., however, succeeded in rounding up some of them which were taken to the cattle pound in Chak No,
16. On hearing alarm, several persons reached the spot from the village. Haji Nasir Ahmad lay unconscious and was removed to the village in the first instance and then to the Civil Hospital, Rahimyar Khan, reaching there at about 9-30 p. m. He succumbed to the injuries before he could be attended by the Medical Officer. The latter rang up Police Station Sadar, Rahimyar Khan, and informed them about the death of Haji Nasir Ahmad, Mahmud Ahmad then went to Police Station Kot Samaba along with Ghulam Qadir Lambardar (P. W. 13) and lodged report Exh. P. A. which was recorded by Aman Ullah S. I. (P. W. 15). Chaudhry Aman Ullah also recorded the statement of Ghulam Qadir (P. W. 13) and then proceeded to the spot reaching there at about 5-30 a. m. after covering a distance of 12 miles. He took into possession blood-stained earth from the spot vide memo. Exh. P. B. Having inspected the spot, he left for the Hospital at Rahimyar Khan, 16/17 miles away reaching there on the next evening.
3. Before his arrival, post-mortem examination of the body of Haji Nasir Ahmad had already been performed by Dr. M. A. Musen Siddiqi, at 8-30 a. m. vide his post-mortem examination the Doctor found a contused wound 2" x r bone deep, with depression on the left parietal region, and ecchymosis, around on the left eye as a result of injury No,
1. On internal examination, the Doctor found that the left parietal bone was broken into five pieces. There was also extensive fracture running to the top of the skull on the right and another fracture running interiorly and backward from the site of the injury. There was diffused bleeding and the brain and membranes were badly lacerated. Stomach contained fluid material; bladder was full of urine. Death in the opinion of the Doctor, had occurred due to compression of the brain as a result of fracture of the skull caused by blunt weapon. The injury was sufficient to cause death in the ordinary course of nature. Time between injury and death was three to four hours and between death and post-mortem examination 12 hours.
4. Earlier on receipt of a telephonic message from the Doctor, Hassan Muhammad Sub-Inspector (P. W. 7) of Police Station Rahimyar Khan, repaired to the Hospital along with Fateh Muhammad Foot Constable (P. W. 3) and Muhammad Bakhsh, Head Constable. He prepared injury statement Exh. P. K./1 and inquest report Exh. P. K. of the deceased and gave these documents to Fateh Muhammad, Foot Constable (P. W. 3) who was left in custody of the dead body till the completion of the post-mortem examination. At the time of the post-mortem examination, the doctor handed over to him blood-stained Exh. P. 2, shirt Exh. P. 3 and safa/romal. Exh. P. 4 of the deceased which he produced before Aman Ullah, Sub-Inspector (P. W. 15) on the latter's arrival in the Hospital. He took them into possession vide memo. Exh. P. E. which was attested by Ghulam Qadir (P. W. 13) and Abdul Karim (P. W. 14). Fateh Muhammad Foot Constable also handed over to him the inquest report Exh. P. K., injury statement Exh. P. K./1, and post-mortem examination report Exh. P. H. Having secured these, Aman Ullah Sub-Inspector again returned to the spot where Mahmud Ahmad complainant produced before him a cattle-pound receipt Exh. P. B. purporting to show that one Muhammad Afzal Khan had brought on behalf of Haji Nazar Ahmad deceased 80 heads of cows belonging to Allah Ditta son of Ghulam Qadir, of Basti Kaseki in the cattle pound, which were received by Nazir Ahmad (P. W. 9) Moharrir of the cattle-pound, Chak No, 120/1-L on 15-5-1966 (wrongly printed as 15-3-1965 in the paper-book) at 9 p. m. This receipt was taken into possession vide Exh. P. C. attested by Mahmud Ahmad and Ghulam Qadir P. Ws. On 17-5-1966, at about 8-00 a. m. the two appellants were produced before the S. H. 0. by Ghulam Mustafa Bahola of Basti Kaseki in the presence of Abdul Karim and Ghulam Qadir P. Ws., Mahmud Ahmad and Fateh Muhammad Foot Constable. Allah Ditta accused while in police custody, led to the recovery of blood-stained dang Exh. P. I. which was lying in his residential kotha. It was taken into .possession vide memo. Exh.
P. F., attested by Ghulam Qadir and Abdul Karim P. Ws. It was not till 28-5-1966 that the Sub- Inspector got prepared site-plans Exh. P. G. and Exh. P. G./1, in duplicate, attested by Muhammad Ashraf Patwari (P. W. 6). The Sub-Inspector drafted application Exh. P. L., dated 26-5-1966, for onward transmission of the blood-stained articles recovered during the investigation, to the Chemical Examiner. This application was not exhibited in the lower Court. It is pertinent to mention in the context that in cross-examination, the Sub-Inspector admitted that on his application for remand of the two appellants, dated 18-5-1966, Exh. D. F. the date of their arrest as originally recorded was 15-5-1966 and was subsequently changed to 17-5-1966.
5. At the trial, the prosecution case, mainly, rested on the testimony of the three eye-witnesses, namely Mahmud Ahmad complainant (P. W. 2). Nazir Hussain and Sohan P. Ws. 11 and 12, respectively who were winnowing wheat besides that of Ghulam Qadir (P. W. 13) and Abdul Karim (P. W. 14) who reached soon after the occurrence, the medical evidence and that of the recovery of dang Exh. P. I. It may be mentioned in this context that apart from the disintegration of blood on the dang, the evidence of recovery was not considered to be convincing and as such was excluded from consideration.
6. The appellants pleaded not guilty to the charge and completely denying the entire incident asserted that they owned no cattle. Before the committing Magistrate, they took the position that the police had arrested some other persons in the first instance who were let off and they were substituted instead. At the trial, however, both alleged that Ch. Muhammad Salim and Ch. Muhammad Shaft were inimical towards each other and since they (appellants) belonged to the party of Ch. Muhammad Shafi his adversary, Muhammad Saleem had got them involved in this false case. They produced two witnesses in defence. Ghulam Rasul, their co-villager, appeared as D. W. 1 to state that he owned about 100/125 headsof cows, bullocks and calves which was tended by his nephews Khan and Allah Bakhsh. On the day of occurrence, the cattle did not return home in the evening, they searched for them during the night and learnt that the cattle had been rounded up by the Panjabis and sent to the cattle-pound in Chak No, 120/1-L. In the morning, however, they found some of the cattle grazing in the crops near their own houses. He then in the company of Rahim Bakhsh went to the cattle-pound in Chak No, 120/1-L and after having paid Rs, 413 to Nazir Ahmad Munshi (P. W. 9) got released 80 heads of cattle including cows, bullocks and calves for which the Munshi issued them receipt, Exh. D. H. He asserted that the appellants owned no cattle.
Strangely enough, in cross-examination this witness denied any knowledge of the murder of the deceased in the neighbouring Chak No, 46/P on that date. He denied the suggestion that he was maternal uncle of Allah Ditta. He however, admitted that he had neither shown the receipt Exh. D. H. to the police nor joined the investigation of the case. Muhammad Abdullah appeared as D. W.
2. He stated that he was mukhtarkar of Sami Zillah Khan Niazi, Lambardar of the village of the appellants of whom Muhammad Hussain appellant was a tenant and owned two buffaloes, two bullocks and two/three cows. He further stated that Allah Ditta appellant cultivated the land of one Allah Bachaya who was related to him and owned a mare, two or three buffaloes and two or three cows.
7. Finding it rather difficult to raise a contention on the basis of defence evidence to the effect that the appellants were mere tenants who neither owned nor tended a herd of cattle, learned counsel contended before us that it was a case of a sudden altercation over the trespass of cattle which led to exchange of abuses between the parties in the first instance when the deceased rounded up the cows whereupon Allah Ditta appellant dealt him a single dang blow. In order to bring the case within the purview of exception 4 of section 300, P. P. C., learned counsel contended that the recovery of dang Exh. P. 1 having been disbelieved by the learned trial Court in the absence of its description by the P. Ws., it could not be positively stated that it was a heavy dang with iron-shed ends, the description given in the F. I. R. not being substantive evidence. It was argued that in the circumstances, it could not be stated that dang Exh. P. 1, was actually used by Allah Ditta and further that the possibility of the deceased having been accidentally hit while rounding up the cows which Allah Ditta might be driving away could not be excluded. It was next contended that the invocation of section 34, P. P. C., with which the appellants were charged and that of section 114, P. P. C. under which Muhammad Hussain was convicted was wholly unjustified in the circum- stances when only an exhortation was attributed to Muhammad Hussain.
8. On the contrary, it was contended on behalf of the State that it was a clear case of an offence under section 302/34, P. P. C. falling within the purview of clause "thirdly" of section 300 as evidenced by the smashing nature of the blow inflicted by Allah Ditta on the head of the deceased which proved fatal. In support of the community of intention between the two appellants, it was contended that although the fatal blow was actually inflicted by Allah Ditta, his co-appellant Muhammad Hussain was equally responsible for the deliberate trespass of their cattle through the crops and then to the thrashing-floor of the deceased in the first instance and more so by insisting on keeping them there notwithstanding the exception taken by the deceased who told them to drive away. It was argued that the part played by Muhammad Hussain appellant in persisting in the forcible grazing of the cows on the thrashing-floor of the deceased coupled with the exhortation to his companion to teach the deceased a lesson when his sense of vanity was unduly injured on the legitimate demand of the deceased to remove their cattle from his land would leave one in no manner of doubt that he played a more leading role and as such was no less responsible than Allah Ditta who actually gave the fatal blow.
9. Taking the first contention raised by the learned counsel for the appellants regarding the plea of a sudden altercation we find, no doubt that there was no previous bad blood between the parties nor could any premeditated intention to kill the deceased be attributed to the appellants in the circumstances of the case. Again it would not be wholly untrue to say that it was a case more or less of a sudden quarrel but having regard to its genesis we are clearly of the view that it was entirely of the making of the appellants themselves who drove their herd of cows through the sugar-cane field of the deceased in the first instance and then insisted on keeping it on his thrashing-floor notwithstanding his remonstrances which showed the height of high-handedness, there being not the least justification for them to do so. Again the manner in which Muhammad Hussain, appellant, retorted on being told to remove the herd of cattle from there is equally uncondonable. We cannot therefore, escape the impression that it were the appellants who deliberately sought provocation by their unjustified acts and the deceased was within his rights to round up the herd of cattle which was deliberately made to trespass over his thrashing-floor. In the circumstances, therefore, the appellant cannot seek condonation of their aggression on the plea of suddenness and lack of premeditation. A closer consideration of the precise sequence of the relevant facts, would reveal Firstly, the appellants insisted on keeping their herd on the threshing- floor of the deceased notwithstanding the latter's protestation : Secondly, on being told by the deceased that he would impound the cattle, Muhammad Hussain threw a challenge to him saying that none had ever dared to impound their cattle and that he could also try if he had the courage to do so : Thirdly, when the deceased started rounding up the cows Muhammad Hussain exhorted Allah Ditta to teach him a lesson : Fourthly, simultaneously with this Muhammad Hussain himself hurled an abuse on the deceased ; when the deceased also abused him in return ; and Lastly, Allah Ditta then gave the fatal blow to the deceased.
10.From the above analysis, it is abundantly clear to us that it was neither a case of the deceased being accidentally hit by Allah Ditta, appellant nor a case of condonable suddenness falling within the purview of Exception 4 to section 300, P. P. C., wherein the offenders had surely acted in an unusual if not a cruel manner. On the contrary the ambient circumstances of the case clearly indicate that it was one of those extraordinary types of aggressive acts wherein the community of intention though formed on the spur of the moment between the two appellants can be clearly spelt out justifying the invocation of section 34, P. P. C. The learned trial Judge has obviously fallen into an error in applying section 114, P. P. C. in the case of Muhammad Hussain, appellant, which has certainly no relevancy. From the facts and circumstances as detailed earlier, it is clear to us that both the appellants who jointly tended the herd of cattle shared the intention of taking it through the sugar-cane field of the deceased on to his thrashing floor, insisted on keeping it there whereupon the deceased started rounding it up which led to exchange of abuses culminating in the fatal blow to the deceased given by Allah Ditta, appellant, on being told by Muhammad Hussain to teach him a lesson. Considered in this background the participation of Muhammad Hussain, appellant cannot be confined merely to instigation who in a way played a leading role in the occurrence resulting in the unfortunate death of Haji Nasir Ahmad. The invocation of section 114, P. P. C. in the circumstances was thus wholly unjustified. Whatever the precise nature of offence committed by Allah Ditta, appellant, Muhammad Hussain his co-accused is equally liable for it on the principle of constructive liability. But assuming that the offence fell within the purview of section 304(11)/114, P. P. C in view of the admitted presence of Muhammad Hussain at the spot he would also have been liable for the substantive offence and not for abetment.
11. It appears appropriate to examine in this context the distinction between the scope and application of abetment as defined in section 107, P. P. C. and impliedly invoked in the instant case by the learned Sessions Judge in respect of Muhammad Hussain, appellant, and that of the principle of constructive liability under section 34, P. P. C. which was applied in the first instance while framing the charge but was not upheld in the ultimate analysis. It would be advantageous to reproduce sections 34, 107 and 114 of the Pakistan Penal Code. They are as follows : "Section 34.--When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
"Section 107.--A person abets the doing of a thing who Firstly--Instigates any person to do that thing : Secondly--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing ; or Thirdly--Intentionally aids by any act or illegal omission, the doing of that thing.
Expl, nation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.--Whoever, either prior to or at the time of State the commission of an act, does anything in order to facilitate -the commission of that act, and thereby facilitates the Muhammad commission thereof, is said to aid the doing of that act."
"Section 114.--Whenever any person, who if absent would be liable, to be punished as an abetter, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence."
As would be evident from the plain reading of the three sections they are quite distinct and separate in their intent and scope. Section 34 enunciates the principle of constructive liability in regard to an act committed by several persons in furtherance of their common intention. Section 107 defines the offence of abetment, whose mode of punishment is elaborated in sections 109, 117 to 120, P. P. C. The basic differences between the two provisions is highlighted by Explanations 2 and 3 to section 108 which define an abettor. They read as follows : Explanation 2. To constitute the offence of abetment it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused."
Explanation 3. It is not necessary that the person abetted should be capable of law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge."
From the above two provisions it becomes abundantly clear that the actual commission of the abetted act is not a sine qua non of the offence of abetment nor so is the guilty intention or knowledge of the person abetted or its community with the abettor. It was observed by Sajjad Ahmad, now Judge of the Supreme Court, in Ghunclia Gul and another v. The State , as follows : "The distinction between abetment as defined in section 107, P. P. C. and constructive liability under section 34, P. P. C. lies in this, that under the former an offender can be convicted for the offence which he actually abets regardless of the ultimate result achieved whereas under section 34 all the persons accused of the offence are in the eyes of law united in their intention in carrying out of the actual act committed in furtherance of their common intention."
We are in respectful agreement with the above observation of his Lordship. The provision contained in section 114, P. P. C. is rather evidentiary and not punitory as would be clear from its plan reading.
The following observation of their Lordships of the Privy Council in Barendra Kumar Ghosh v.
Emperor may be advantageously reproduced in this regard : "As to section 114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved and then the presence of the accused at the commission of that crime is proved in addition ; Abhi Misser v. Lachmi Narain ( (1900) 27 Cal. 566). Abetment does not itself involve the actual commission of the crime abetted. It is a crime apart. Section 114, deals with the case where there has been the crime of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted. The section is evidentiary not punitory. Because participation de facto (as this case shows) may sometimes be obscure in detail, it is established by the presumption juris at de jura ythat actual presence plus prior abetment can mean nothing else but participation. The presumption raised by section 114 brings the case within the ambit of section 34."
Before the case of Barendra Kumar Ghosh went to the Privy Council, it was earlier decided by a Full Bench of the Calcutta High Court reported as King-Emperor v. Barendra Kumar Ghose . Their Lordships of the Full Bench had considered as application for review of a criminal case on the certificate of the Advocate-General under clause 26 of the Letters Patent on the question of an alleged misdirection to the jury. The only portion in the Full Bench judgment relevant to the instant case is the following observation by Richardson, J. :-- "Section 114 would appear to serve two purposes. Firstly it marks the fact that where it can be proved that the accused, if absent, would be liable as an abettor, his mere presence when the offence is committed is without more sufficient proof of common intention, to make him an accessory at the fact or principal. Secondly, it marks the fact that in those circumstances the accused cannot be punished twice, once for the abetment and once for being present as an accessory at the fact. The section resembles section 34 in this, that it rather regulates procedure and punishment than creates an offence, of Gould & Co. v. Hougton (1921) 1 K B 509 and see Collett's Comments on the Indian Penal Code, published, in a collected form in 1889)."1 2 3 Section 114, therefore, is not vide enough to include all accessories at the fact. It would not apply for instance where one man is assaulted by several other and the assault is unpremeditated. It only applies where the accused, if absent, would be liable as an abettor, and there are many cases in which no such liability can be proved.
12. The upshot of the discussion, therefore, is that once an abettor is personally found to be present at the spot then he is liable as principal but would be punished only once and to that extent there remains little difference between an abettor personally present as envisaged by section 114, P. P. C. and a co-accused sharing community of intention as contemplated' by section 34, P. P. C. In the circumstances, therefore, even if learned Sessions Judge had deemed it proper to invoke section 114 in the case of Muhammad Hussain appellant he should have been liable to the same quantum of punishment as his co-accused.
13.In order to repel the application of section 34, P. P. C. learned counsel for the appellants drew our attention to Mahbub Shah v. Emperor . Their Lordships of the Privy Council took the view that common intention within the meaning of section 34 implied a pre-arranged plan and that the conviction of an accused on the application of section 34 it should be proved that the criminal act was done in concert pursuant to a prearranged plan. Their Lordships warned that care should be taken not to confuse "same or similar intention" with "common intention". It was observed "the inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case". It hardly needs an argument to say that in that case their Lordships of the Privy Council had not exhaustively envisaged all circumstances justifying the application of section 34, P. P. C. including those wherein no direct evidence of preconcert was available. It is well established that common intention though not shared at an earlier stage could still be formed at the spur of the moment in the circumstances of a given case as clearly inferable from the subsequent conduct of the accused persons. This view was expressed by the Privy Council in a subsequent case Mamand v.
The Emperor and was adopted in Mst. Hamida Bano v. Ashiq Hussain etc. .
14.Having come to a definite conclusion that the circumstances of the case justified the application of section 34, P. P. C. we have no hesitation in overruling the invocation of section 114 by the learned Sessions Judge in the case of Muhammad Hussain, appellant. It now remains to be determined as to what precisely was the offence committed by them. Learned counsel for the appellants tried to stress that the witnesses of the recovery of clang. P. 1, allegedly used by Allah Ditta, appellant, and described to be a heavy dang with metal casing on both ends" by the learned Sessions Judge, having been disbelieved by him, it could not be positively hold that the dang used by Allah Ditta, appellant, was the same as Exh. P. 1 which was certainly a heavy stick with iron-shod ends, and could justifiably be characterized as a deadly weapon. It was contended that although the dang was described by Mahmood Ahmad, complainant, in the F. I. R. as a heavy weapon, yet in the absence of any such description by any of the P. Ws. at the trial no such inference could legally be drawn on the basis of the F. I. R. which did not constitute substantive evidence. We see lot of force in this contention. Since none of the witnesses had described the dang, it cannot be stated with certainty that it was the same as Exh. P.
1. But this in our view is not of much consequence for the simple reason that once the fatal injury is admitted to have been caused by Allah Ditta, appellant, which position was not seriously challenged before us, the medical evidence available on the record would go a long way to suggest that assuming Allah Ditta wielded an ordinary stick, it was used with such a great force that it caused fracture of the skull of the deceased with compression of the brain. The description given by the doctor in the postmortem examination report Exh. P. H. clearly shows that the left parietal bone was broken into five pieces at the seat of injury. In addition to this there were three extensive fractures, one running to the right along the top of the skull 4" in length another running towards interiority 4" in length and the third running4 5 6 backward for 2" long from the site of injury. The brain and membranes were badly lacerated. Death had occurred within 3 to 4 hours of the receipt of the injuries. The deceased was not found to suffer from any visible, or invisible ailment and was a middle-aged man of average built. All this would indicate that Allah Ditta appellant could be fully burdened with the responsibility of causing such bodily injury whose likelihood to cause death could have been clearly foreseen by him.
15. Learned counsel for the appellants drew our attention to the following citations taken from the Law of Crimes by Ratanlal and based on different authorities (1928) 10 Lah. 477 and (1889 S J L B)
459 :- "Putting it shortly, all acts of killing done with the intention to kill, or to inflict bodily injury likely to cause death, or with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
Where, therefore, the act of the accused does not fall within the first clause of section 300, that is, where the act was done not with the intention of causing death, the difference between culpable homicide and murder is merely a question of different degrees of probability that death would ensue. It is culpable homicide where death must have been known to be a probable result. It is murder, where it must have been known to be the most probable result. Culpable homicide may therefore, not be murder (1) where notwithstanding that the mental state is sufficient to constitute murder, one of the Exceptions to section 300 applies, or (2) where the mental state, though within the description of section 299, is not of the special degree of criminality required by section 300.
In cases where it is difficult to determine whether the offence, committed by the accused is culpable homicide or culpable homicide amounting to murder, the accused should be convicted of the lesser offence.
'Reliance was also placed on Ram Tolaha v. Emperor . In this case as a result of a quarrel between two women one of whom was the wife of the accused, the latter was suddenly provoked and struck the other woman a heavy blow on the head with a very thick lathi and fractured her skull resulting in her death. It was held by rheir Lordships "that circumstances did not lead to the inference of an intention to kill or of knowledge that the act was so imminently dangerous as in all probability to cause death, and that consequently the accused could not be convicted of murder but only under the second part of section 304 of the Penal Code".
Lastly Ghauns v. Emperor was pressed into service. The established facts of this case were that the deceased used abusive and provocative language whereupon the accused gave one blow resulting in his death. He was sentenced to five years' R. I. under section 304, P. P. C. which too was considered excessive in the circumstances and was reduced in appeal to three years' R. I. The facts of that case being obviously distinguishable have no bearing on the case before us.
16.Having tried to appreciate the difference in the degree of criminality as envisaged by section 299, P. P. C. for the offence of culpable homicide and as contemplated by section 300, P. P. C. in a case of murder we are clearly of the view that Allah Ditta had caused such bodily injury as was likely to cause death even though it might not have been intended by him. It could be argued that the doctor having found the injury sufficient in the ordinary course of nature to cause death, the case would more appropriately fall within the purview of clause "Thirdly" of section 300, P. P. C.
Since, however, the use of a heavy dang with iron-shod ends like dang P. 1 has remained unproved, the intention to inflict an injury sufficient in the ordinary course of nature to cause death which could be cumulatively gathered from the kind of the weapon, the force employed and the part of the body on which the blow landed, cannot be clearly spelt out in the circumstances of the case.
Accordingly the degree of criminality cannot be taken further than the scope of section 299, Part I, P. P. C.
17.Having already given a finding that section 34, P. P. C. should have been invoked in the7 8 circumstances of the case, the conclusion arrived at by us is that the two appellants should have been appropriately convicted under section 304(1) read with section 34, P. P. C. As regards the quantum of punishment we would not have hesitated to award the maximum sentence of transportation for life to each of the appellants but having regard to the fact that the occurrence took place as far back as the 15th of May 1966, we consider that an award of sentence of ten years'
R. I. to each of the appellants should be good enough in the circumstances. Thus the sentence of ten years' R. I. in the case of Allah Ditta, appellant, is maintained while that of Muhammad Hussain is enhanced from three years' R. T. to ten years' R. I. the conviction having been altered to one under section 304(1)/34, P. P. C.
18. In consequence the appeal filed by the State succeeds while that one filed by the appellants is dismissed. PLD 1959 Lah. 950 AIR 1925 P C 1 AIR 1924 Cal. 257 AIR 1945 P C 118 AIR 1946 P C 45 PLD 1963 SC 109 (1927) 28 Cr. L J 541 AIR 1931 Lah. 523 (2)