MUHAMMAD ISHAQ KHAN, J.-Baidullah Jan son of Sharbat Khan, aged about 28/30 years, resident of Panyala, Tehsil and District D. I. Khan stood his trial under section 302, P. P. C., vide F. I. R. 62, dated 14th October, 1973 registered in P. S. Panyala, in the Court of Sessions Judge, D. I. Khan for causing the murder of Saadullah son of Mian Khan with a dagger and also attempting at the life of P. W.
Rehmatullah son of Hakim Khan. The learned Sessions Judge, D. I. Khan, vide his judgment, dated 17th May, 1983 convicted Baidullah Jan under section 302, P. P. C. 4nd sentenced him to undergo R. I.
For twenty-five years and fine of 5,000 The accused was also directed to pay compensation to the tune of Rs, 5,000 under section 544-A, Cr. P. C. And in the event of default of the payment of fine and compensation to undergo further one year R.
1. Each. It may be mentioned here that no charge under section 307, P. P. C. For attempting at the life of Rehmatullah complainant was framed by the trial Judge.
2. Not content with his conviction and sentences the convict has filed this appeal (Cr. A. No, 12/83) and there is also a Criminal Revision No, 18'83 filed by Mian Khan. Father of the deceased, praying for the enhancement of the sentence of the appellant from life imprisonment to that of death. This order will, however, dispose of both the appeals as well as the revision.
3. The prosecution case, briefly stated, is that Rehmatullah complainant alongwith the deceased Saadullah and Gul Nawaz son of Ali Muhammad (abandoned at the trial) went to the hotel of Muhammad Ayub alias Khan Gul P. W 8 situated in Bazar Panyala, after offering their (Khuftan) prayers for taking tea that they had just come out of the hotel after taking tea when suddenly Baidullah Jan appellant appeared from behind and pushed the complainant Rehmatullah aside, that the appellant had daggers in his two hands and with one of them he attacked the deceased Saadullah on his shoulder from behind who after the receipt of the injury, fell to the ground that the complainant tried to catch hold of the appellant but the latter threatened him to be away if his (complainant's) life was dear to him that in the meanwhile Gul Nawaz son of Said Ahmad P. W. 7, also rushed from the hotel to apprehend the appellant but the appellant succeeded in decamping from the spot. Motive for the offence, as given in the first information report, is that a day before the occurrence there was a quarrel between the appellant and the deceased over the fight of their quails, in which the deceased had disgraced the appellant and the latter had sworn that he would avenge that insult.
4. The deceased Saadullah had succumbed to the injury on the spot and when taken to the hospital, Dr. Ghulam Hussain Khan P. W. 1 conducted autopsy on his dead body at 7.00 a. m. On 15th October, 1973 and on external examination found the following :- Condition of subject : Body was stout well built.
One incised wound on the shoulder left side at the mid scapular line 1/2' above the left scapula. Size x Direction from posterior to enterior and from above downward.
On internal examination the doctor found that posterior wall of thorax was injured pleurae and left lung upper lobe were injured. In his opinion, death occurred as a result of injury to lung upper lobe resulting in haemorrhage, shock, and then death. Probable time that elapsed between the injury and death was 30-45 minutes and between death and post-mortem report, 9-10 hours.
5. Besides the doctor, the prosecution also examined Fatehullah Khan P. W. 2, Umer Hayat Khan S. I.
P. W. 3, Abdur Rehman son of Guldad Khan P. W. 4, Mian Khan son of Ahmad Khan P. W. 5, Rehmatullah son of Hakeem Khan P. W.
6. Gul Nawaz son of Said Ahmad P. W. 7, Muhammad Ayub alias Khan Gul P. W. 8, Muhammad Ayaz son of Akbar Zaman P. W. 9 and Muhammad Iqbal Shah A.
S. I. P. W. 10 in support of their case.
6. The report was lodged in the P. S. Which was recorded by Muhammad lqbal Shah P. W. 10 who after recording the same, read it out to the complainant and the latter thumb-marked the same in :token of its correctness. The I, 0. Then prepared the injury sheet Exh. P. B. And inquest report Exh. P.
C. Of the deceased in the hospital because the dead body had been taken to the hospital. He then sent the dead body for postmortem examination under the escort of Fatehullah F. C., P. W.
2. The I.
0.. Then left for the spot and on his arrival there he inspected the same and took into possessions blood-stained earth and sealed it into a parcel vide memo. Exh. P. E. He then prepared the site plan, Exh. P. G. With all its notes correctly, recorded the statements of the P. Ws. As the appellant had absconded after the occurrence, therefore, the I. 0. Get issued warrant of arrest under section 204, Cr. P. C. And proclamation under section 87, Cr. P. C. The blood-stained earth and the clothes of the deceased were sent to the Serologist for examination and report, which is however, P. H. The appellant was, owever, arrested on 5th September, 1982 in a theft case and thereafter a supplementary challan was submitted against him.
7. At the close of the prosecution case, the appellant was examined under section 342, Cr. P. C. Who admitted the fight of quails but denied his insistance for a second fight on the defeat of his quail on the first occasion. As regards his absence from the village for about nine years, he stated that since he was charged in a theft case, therefore, he avoided his arrest due to the fear of the Police. He, however, produced no defence.
8. It may be pointed out here that the father of the deceased submitted an application on 15th February, 1983 to the trial Court to the effect that Gul Nawaz son of Ali Muhammad P. NV., who was mentioned in the first information report by the complainant to be present at the time of occurrence, had been won over by the defence, therefore, he should be abandoned.
9. So, the eye-witnesses in the present case are Rehmatullala complainant P. W. 6 and Gulnawaz son of Said Ahmad P. W. 7, besides Mian Khan P. W. 5, father of the deceased who on receipt of information about the occurrence, reached the spot and took the deceased on a cot to the hospital.
10. We. Have heard the learned counsel for the appellant at great length and also learned counsel for the complainant in the revision petition. Learned Assistant Advocate-General also represented the State and we have also examined the record with their assistance. No doubt, there are some minor contradictions in the statements of the P. Ws. But keeping in view the fact that the witnesses, have appeared in Court after a lapse of more than nine years, because the appellant daring this period remained fugitive from law, therefore, these discrepancies are but natural and cannot be treated as fatal to the prosecution case. Both the P. Ws. Are neither related to the complainant party, nor they are inimical towards the accused. They are admittedly co-villagers. There is no enmity between the appellant and the complainant party except the fight of the quails, a day before the occurrence, which reselted in exchange of hot words between the deceased and the appellant on the former's refusal to arrange a second fight of quails. Learned counsel for the appellant attacked the impugned judgment on the grounds that there is delay in lodging the first information report and that the occurrence took place at night time, therefore, the identity of the assailant was not possible. But we see that the occurrence took place at 9.30 p. m. And the report was lodged at 10.05 p. m It is in the statement of Mian Khan P. W. 5, father of the deceased, that he was present in his house when Gul Nawaz son of Ali Muhammad came there and informed him about the occurrence ; that he immediately started for the spot and there directed Rehmatullah complainant to go to the Police Station for lodging the report, which the latter did. So, in our view the report, which was lodged at 10.05 p. In., was made with great promptitude and no exception could me made about it. It is also on record that after recording the report of the complainant, the I. 0. Went to the hospital because the deceased had already been taken there. The I. 0. Prepared the injury sheet and inquest report of the deceased there, whereafter he went to the spot at 12.00 in the night, which also shows that the timings of the occurrence, and of the report are quite correct.
11. Reverting to the question of identity of the assailant, we have on record the statement of Rehmatullah P. W. 6, who clearly stated that there was electric light fixed outside the hotel, where the occurrence took place. It is also in the statement of Muhammad Ayub alias Khan Gul, P. W. 8, that he saw the appellant giving dagger blow to the deceased and then running from the spot, while sitting on his seat inside the hotel, which shows that there was a clear light outside the hotel, where the occurrence took place. Over and above all this, the appellant the deceased and the witnesses are all co-villagers, the deceased was given a dagger blow for which the appellant must have come close to the deceased, therefore, no question of mistaken identity arises in the circumstances of the present case The I. 0. Has also stated in his statement at the trial that when he reached the spot, the hotel was open, the electric light was there and Muhammad Ayub P. W. 8 was also present in the hotel. We should keep in our mind that it was the month of `Ramazan' when the occurrence took place and in this month all the hotels usually remain open till late in the night.
Therefore, the objections of the learned counsel for the appellant regarding time of occurrence, report and about identity of the assailant hold no water and are hereby repelled.
12. The prosecution version is that the appellant had given one blow with the dagger to the deceased from back on his shoulder, which fact is supported by the medical evidence because the doctor, who conducted postmortem examination on the dead body of the deceased, also deposed that C he found only one incised wound on the shoulder, left side, of the deceased. So, in our view, the medical evidence in this case also support the prosecution version.
13. Admittedly, the appellant remained fugitive from law after the commission of the offence and was arrested on 5th September, 1982 in a theft case. During this period, the prosecution had completed the necessary legal proceedings under sections 204 and 87, Cr. P. C. And challan under section 512, Cr. P. C. Had also been submitted against the appellant. This long abscondence of the appellant, regarding which no plausible explanation is forthcoming on the record from the side of the appellant, D goes a long way to prove the guilt of the appellant. As such we hold that the prosecution has been able to prove its case against the appellant for committing the murder of the deceased.
14. The only point which needs consideration in this case is as to what offence the appellant has committed in the circumstances of the case. The learned counsel for appellant assailed the conviction and sentences of the appellant on the ground that it is on record that during the fight of the quails of the appellant and the deceased, an altercation had ensued and the deceased had used filthy language, against the appellant telling him that he is living on the earnings of his wife and is 'Begherae. He also pointed out to the statement of P. W. 6 Rehmatullah where in he has stated that when the appellant came to the hotel, he asked the deceased as to why the latter was not going to arrange a second fight of his quail with the quail of the former ; that at that time the appellant was in rage and the witness tried to pull him down. The learned counsel thus argued that it is possible that at the time of occurrence the deceased must have repeated the same words disgracing the appellant at which the latter had lost his control and attacked the deceased.
Therefore the case of the appellant falls under Exception 4 to section 300, P. P. C. In support of his contention the learned counsel for the appellant cited Masoom Beg. v. Muhammad Munir and another and Emmanuel Bahadur Joseph. v. Paul Jackson and another wherein it has been observed as under :- "Sections 302, 326 & 304, Part II-(Murder-case)-Intention-Counsel not succeeding in showing Courts below having acted contrary to well-established principles in administration of criminal justice or in matter of appraisal of evidence while arriving at broad concurrent findings of fact against accused appellant-assailants content with giving fist 'blows to deceased-Single knife blow struck on back, popularly not regarded as vulnerable-No evidence of premeditation on part of accused to kill-Case of appellant, held, covered by Part II of section 304, Penal Code, 1860: Sections 302 and 304, Part II-Applicability of sections, section 302 applies only when accused proved beyond doubt to have struck blow with intent to kill victim-Accused if more properly to be imputed knowledge rather than intention, offence falls under section 304, Part II and not under section 302 or 304, Part I of Penal Code, 1860."
The learned counsel also cited another authority reported in Munawar Hussain v. The State wherein their Lordships of the Supreme Court have held as under :- Sections 300, 302 and 326-Murder-Injury caused, though of substantial dimension, not on vital part of deceased's body-Accused, as illiterate person, would not have selected deceased's thigh if he had intended to kill and could not have known that his blow would cause severance of femoral artery-Held, only knowledge likely to cause death could be imputed to accused, in circumstances of case, but not intention to kill and, therefore, offence would fall under section 304, Part II and not under section 302-Conviction under section 302 altered to that under section 304, Part II."
At the end of his arguments, the learned counsel for the appellant submitted that keeping in view the above-cited legal pronouncements of the superior Courts and the locale injury on the body of the deceased, coupled with the fact that at the time of occurrence the appellant was in rage and the complainant tried to pull him down, as per statement of the complainant, the possibility that the appellant had acted under sudden and grave provocation while inflicting a single blow on the shoulder of the deceased, cannot be ruled out and as such his case would fall under section 304, Part II, P. P. C.
15. We have given our anxious consideration to this aspect of the case and find that the arguments advanced by the learned counsel for the appellant carry great force in them. It is crystal clear from the deposition of Rehmatullah P. W. 6 that a day prior to the occurrence the deceased had disgraced the appellant by saying him `Begherat', living on the earnings of his wife. It is also in his1 2 3 statement that at the time of occurrence the appellant was in rage and the witness tried to pull him down. Therefore, we hold that the deceased must have used some filthy language which would have provoked the appellant, who lost his control and in the heat of passion he inflicted the only blow with the dagger, which fell on the shoulder of the deceased. This also shows that the appellant was not certain about the consequence of his act. As such, we alter the conviction of the appellant from under section 302 to section 304, Part I, P. P. C. And in our view, a sentence of ten
(10) years' R. I. With the sentence of fine and amount of compensation, as awarded by the trial Judge would suffice and we order accordingly. With this modification in the conviction and sentence of the appellant, the appeal fails and is hereby dismissed.
16. As the conviction and sentence of the appellant has been altered from under section 302 to section 304, Part I, P. P. C. Therefore, the revision petition for enhancement automatically fails and is also dismissed. 1971 SCM R 476 1981 SC MR 663 1983 SCM R 1165