1. ' M.A. RASHID, J.--. Karam Elahi has appealed against his conviction under section 302, P.P.C. For casuing the death of deceased Abdul Rashid, and under section 323, P.P.C. For causing simple injury to Mst. Zaitun. Under the former count he has been sentenced to undergo rigorous imprisonment for life, and under the later count he has been sentenced to undergo R.I. For 3 months. The two sentences are to run concurrently.
2. ' The prosecution story is that the deceased used to live alongwith his wife Mst. Akhtari Begum, his sister-in-law Mst.Zaitun, his daughter Mst. Shamshad and a small child in House No,361/H, behind Jacob Lines. It is alleged that his house is at a higher level than the adjacent house of accused Karam Elahi, and that during the rainy days rain water starts flowing from the house of the deceased to that of the accused. It had been raining on the day prior to the occurrence i.e 16th August, 1973 and due to the flow of water into the house of accused Karam Elahi his wife had a quarrel with Akhtari Begum wife of the deceased. This quarrel took place at about 9-45 p.m. When both the accused as well as the deceased were not present in their respective houses.
3. ' Accused is a driver and when next morning at about 5 O'clock he returned home his wife ostensibly complained to him about the incident of the previous night. He, therefore, came to the house of the deceased with a Patti (the shorter wooden arm of a cot) in his hand. He called the deceased by his name and asked him to come out. At that time Mst.Akhtari Begum was breast- feeding her child and Mst.Zaitun was preparing tea for her own child while Mst. Shamshad was holding another child in her arms. As soon as the deceased Abdul Rashid took out his head through the Chatai curtain the accused is alleged to have given a blow with the Patti, whereupon the deceased fell down crying 'Hai'. Upon this Mst.Zaitun rushed to the door and according to her another blow was administered at the head of the deceased by the accused. When she bent down to pick up the deceased she was also given a blow with the same Patti on her back, whereby she fell down. The accused then went to his own house.
4. ' As a result of the blow brain matter of the deceased came out and he died instantaneously. One Nur Muhammad, milkman and Asif All sweet-meat seller were also present at some distance in the lane and saw the occurrence. Nur Muhammad accompanied Mst.Zaitun to the Brigade Police Station where she lodged the F.I.R at the 5-30 a.m. S.I.P. Muhammad Ilyas proceeded to the scene of occurrence after recording the F.I.R. Where he found the dead body of deceased Abdul Rashid lying in front of his quarter. He prepared the inquest report and inspection memo. Of the dead body in presence of the Mashirs. By this time S.H.O. Muhammad Rafique Shaikh arrived at the scene and arrested the accused. He secured the blood-stained earth from the scene of occurrence and recorded the statements of P.Ws. Mst. Zaitun, Akhtari Begum, Mst. Shamshad, Nur Muhammad and Asif Ali. He also recorded further statement of the complainant. He interrogated the accused who produced the wooden Patti which was taken in custody through Exh.21. This Patti was found blood- stained and was sent alongwith the blood-stained earth for chemical examination. He sent the dead body to the hospital for post-mortem examination and Mst. Zaitun for examination. He also got the sketch of the scene of occurrence prepared from the tapedar. After receipt of the report of the Chemical Analyser as well as the post-mortem report and the medical examination report of Mst.Zaitun, he challaned the appellant on 28th August, 1973. The Chemical analyser found human blood on the Patti.
5. ' Dr. M.S.A. Farooqui carried out the post-mortem examination of the dead body of deceased Abdul Rashid on 16th August, 1973 which started at 1-30 p.m. And finished at 2-15 p.m. He found the following injuries on the person of the deceased:
(1) Lacerated wound on the slightly left and top of head 5" x 3" x brain deep with the depressed and communited (sic) fracture of all the bones of the skull with the parietal expulsion of the brain matter. The brain matter was compressed and disintegrated with haemorrhage all over inside the skull cavity.
(2) Abrasion right side forehead 11/2" x 1".
6. ' In the case of Injury No,1 the Doctor thought that it was caused due to very forceful impact with a hard and heavy object, while Injury No,2 could be caused by a fall or friction. The injuries were ante- mortem. In his opinion Injury No,1 was sufficient in the ordinary course of nature to cause death.
7. ' Dr. Sultana Ashraf carried out the medical examination of Mst. Zaitun on the same day at about 10-35 a.m. And she found the following injuries on her person:-
(1) Contusion and swelling (sic) on the right side of the back.
(2) Tenderness positive on the same part of the body."
8. Prosecution examined eye-witnesses Mst. Zaitun, Mst. Akhtari Begum, Mst. Shamshad, Nur Muhammad and Asif Ali. The other prosecution witnesses are the Tapedar who prepared the sketch of the scene of occurrence, the two doctors, the S.I.P. As well as the S.H.O., Brigade police Station, the corpose-bearer and the Mashirs.
9. ' The case of the accused is of simple denial. He has not produced any evidence in defence.
10. ' The eye-witnesses, except for Nur Muhammad, have all alleged that more than one blow was administered by the accused on the head of the deceased. This is in contradiction with the medical evidence which speaks of only one lacerated wound on the head. The other abrasion has been explained by the doctor to have been caused by falling down or because of friction. It is thus clear that the second injury was sustained by the deceased when he fell down as a result of the first injury. The statement of the prosecution witnesses that the deceased received more than one blow are nothing but an exaggeration on the part of the prosecution witnesses only in order to assert the gravity of the offence. Mr. Hayat Junejo rightly conceded that he would not go beyond alleging exaggeration on the part of the prosecution witnesses. The implication of the accused/appellant in the crime is not strongly denied. He is the first neighbour of the deceased and is alleged to have called out "Rashid Bhai Bahar Aou". Being neighbours the ladies of the house of the deceased would be familiar with the voice of the accused. This circumstance alongwith the fact that Mst. Zaitun had been struck by the accused on her back goes to establish, beyond all shadows of doubt, that it was the accused who inflicted the fatal injuries on the deceased. Mr. Junejo very candidly conceded that in view of the injury on the person of Mst. Zaitun he could not challenge the presence of this witness at the scene of occurrence. Similarly Mr.Junejo stated that although Mst.Shamshad is not mentioned in the F.I.R. Her presence could not be challenged because she is member of the same household, being the daughter of the deceased. So the main grievance of the learned counsel was that the occurrence, in the circumstances in which it took place, could not be termed as culpable homicide amounting to murder but at best would be a case falling under Part II of section 304, P.P.C.
11. ' In this connection the first attack of the learned counsel is against the contention of the prosecution that the house of accused Karam Elahi is adjacent to that of the deceased. His main reliance, in this connection, is upon the sketch of the scene of occurrence prepared by P.W. Rao Abdul Latif, the tapedar. According to this sketch there is open space on two sides of the but of the deceased. On the basis of this sketch the learned counsel contends that House No,361/H is an isolated house and, therefore, the contention of the prosecution that house of the accused is adjacent to it is not substantiated. He also attacked the findings of the learned trial Judge, on this point whereby the learned Sessions Judge, while not believing the sketch prepared by the tapedar, relied upon the evidence of Mashir P.W. Abdul Majid and the Mashirnama of the scene of offence Exh.19. The learned counsel contends that Mashirnama is at best a contemporaneous record arid not a substantive piece of evidence and, therefore, cannot be used except for contradiction and that also when duly confronted with the witnesses. But the evidence of the tapedar, and the sketch prepared by him, in no way supports the contention that the house of the deceased is an insolated one. The Tapedar has at no stage stated in unequivocal terms that the house of the deceased stands alone, by itself, and that there is no house adjacent to it. The sketch, in actual fact, gives details of only three sides of the house. On one of its sides is the Katcha lane and two other sides are vacant. There is no mention as to what is located on the fourth side. It was in cross- examination that he stated that houses bearing Nos.362 and 363 are in the same line with House No,361. This statement establishes it as a fact that quarters numbers 361 and 362 are adjacent to each other. It is in evidence, from the inspection report of the scene of occurrence prepared by the Sub-Inspector Muhammad Ilyas Exh.i9 that the accused lives in House No,362/H. Furthermore no suggestion has been made to any of the witnesses that the house of the accused is not adjacent to that of the deceased.
12. ' The object of the defence to show that the house of the deceased was an isolated one, was to indicate that the prosecution contention regarding the grievance of the accused about rain water flowing into his house from that of the accused was without any substance. In the absence of such a grievance, Mr. Junejo asserted that there was no motive left for the accused to inflict the injury in the manner the prosecution alleges he did; and that the quarrel started all of a sudden without any premeditation. In this connection the learned counsel has also relied upon the statement of P.W.
13. Nur Muhammad. At the trial this witness stated that he saw the occurrence from a distance of 50 paces and that the deceased and the accused were grappling with each other. He further states that it was raining and he did not stay there but when he returned after about 15 minutes he saw the deceased lying on the ground with injury on his head. This statement of P.W. Noor Muhammad is materially different from what he had stated in his statement under section 164, Cr.P.C. In that statement he had supported other witnesses in the matter of details of the offence. But while relying upon the statement of this witness before the trial Court, the learned counsel contends that, on the spur of the moment, and without any premeditation accused picked up a Patti which according to the learned counsel, are usually found lying around in the area in which the occurrence took place, and struck the fatal blow on the head of the deceased. Even if the version given by Nur Muhammad were true, which would presently be seen is not the case, the story now convassed by Mr. Junejo is purely conjectural. There is no evidence on record to indicate if the Pattis, of the type used by the accused in committing the offence are so commonly found, lying around in the area. Nor has any question been asked by the defence counsel to any of the prosecution witnesses in this respect. And for all that we know P.W.Noor Muhammad has obviously tried to oblige the defence. Mr. Hayat Junejo has criticised the permission given by the learned trial Judge for cross-examination of this witness without the prayer for declaring him hostile.
14. Proceeding from this premise Mr.Junejo further contends that any evidence brought on record through such cross-examination, is brought in unlawful manner-and has to be, therefore, excluded.
15. This argument proceeds upon a wrong view of the provisions of section 154 of the Evidence Act, 1872. That section nowhere makes a provision for declaring a witness hostile. It confers a discretion upon the Court to allow the party calling witness to put questions to the witness as may be put in cross-examina tion. This is also the view expressed by their Lordships of the Privy Council in 'Baikuntha Nath v. Prasannamoyi AIR 1922 P C 409. Th learned Sessions Judge, therefore, acted perfectly in accordance with law when he permitted the Assistant Public Prosecutor to put question as may be put in cross-examination. There are, therefore, no grounds to exclude the evidence thus brought on record. In the evidence thus brought on record he admits that he may have stated that he had seen Karam Elahi giving Danda blow to deceased Abdur Rashid.
16. ' What this witness has stated, before the learned A.P.P. Asked questions under section 154 of the Evidence Act to him, is most unnatural and patently obliging to the accused. It is unnatural in so far as he says that he saw the deceased and the accused grappling with each other and in spite of that he simply walked away. Such a conduct cannot be expected from a person who was so intimately known to the deceased. The deceased was a milkman, just as this witness is, and the deceased used to visit his shop quite often. In these circumstances the reason that it was raining, therefore, he went away is not plausible. Then he does not state why he returned within fifteen minutes of his going away from the place of occurrence. Again he chooses to go to his house wherefrom he returns after about 20 or 25 minutes, but this time to assist others in carrying the corpse of his fellow milkman inside the house. In cross-examination he states that it was pitch dark at that time, and he is not sure if a person could or could not see from a distance of 50 paces in that light. In spite of all this that Noor Muhammad has stated Mr. Junejo has relied upon him to put forward a proposition that the deceased and the accused were grappling with each other, and, therefore, there was absence of premeditation. This witness for the facts stated above cannot be relied upon.It is, therefore, not established if the occurrence started with petty quarrel developing, in the heat of the moment, into a fight ending in the fatal blow.
17. ' This conclusion is also borne out by the evidence of P.Ws. Mst.Zaitun, Mst.Akhtari Begum and Mst.
18. Shamshad and against whom ' there is nothing on record to indicate that they have tried to give false evidence. P.W.Asif, though not mentioned in the F.I.R., is a natural witness because he being a sweetmeat seller also sells milk in the locality. His presence at that hour, therefore, is quite natural. He has also supported these three eye-witnesses in the story they have put forward. And this story is very simple, i.e, that as a result of the quarrel between Mst. Akhtari Begum and the wife of the accused, the accused came to the house of the deceased to teach him a lesson. When he came he was already carrying the Patti in his hands. The moment the deceased put out his head from behind the Chatai curtain he was struck a blow on the head by the accused. The blow was administered with such a force and violence that the brain matter of the deceased came out and the deceased died instantaneously.
19. These circumstances do not in any way bring the facts of the ease under exception 4 of section 300, as has been contended by Mr. Hayat Junejo. First of the ingredients, which should be present to bring the case under fourth exception to section 300, P.P.C. Is that homicide should be committed without premeditation, in a sudden fight and in the heat of passion. In the event when the accused brought Patti alongwith him from his house the absence of premeditation cannot be contended. He had prepared himself for the ultimate act which he finally committed. The second ingredient of this exception is that the offender should not have taken undue advantage. Here the deceased was summoned with a friendly call 'Rashid Bhai Bahar Aou'. The deceased came out without suspecting anything and before perhaps he could even look at the accused the blow was struck.. The third ingredient under this exception is that the act should not have been committed in a cruel manner. Here, we know from the evidence of the witnesses that the blow was struck with such a force and violence that the brain matter of the deceased came out. It is indicative of the cruelty attending upon the blow. It, therefore, cannot be contended that the case of the present appellant falls under exception 4 to section 300, P.P.C. In this case the accused has chosen the head of the deceased where he struck the blow with a Patti, which is a fairly heavy implement.
20. From this circumstance it can be concluded that the intention of the accused was to cause such bodily injury as he knew would be likely to cause death. Under these circumstances I have come to the conclusion that the accused is guilty of culpable homicide amounting to murder. The appeal merits no consideration and, is, therefore, dismissed. He has already been awarded the lesser of the penalties provided by law and, therefore, the sentence requires no interference.
21. ' NAIMUDDIN, J.--I have had the advantage of reading the judgment of my learned brother proposed to be delivered in the case. However, with utmost respect to my learned brother, I have not been able to pursuade myself to agree to the finding as to the nature of the offence committed by the appellant and the sentence to be awarded to him for it.
2. The facts of the case have been very succintly stated by his Lordship and I, therefore, need not repeat them. Although Mr. Muhammad Hayat Junejo argued that the appellant was innocent his main attack was that the offence, if any, was punishable under section 304, second Part II, P.P.C.
22. And not under section 302, P.P.C. Whereunder the appellant has been. Convicted by the learned Sessions Judge, Karachi.
23. ' I am convinced that it was the appellant who gave the fatal blow to the deceased. But it is the prosecution case that there had been exchange of hot words between the women of the appellant and the deceased on the night of incident at about 9-00 p.m. And the dispute was settled as stated by Mst. Zaitoon, the complainant. It is also the prosecution case as stated by Mst. Akhtari P.W.4 (Exh.12) that at about 5-00 a.m. The appellant came to her door and called her husband by name 'Rasheed Bhai Rasheed Bhai'. Therefore, when the matter was settled and the appellant had gone to the house and called him out in most friently term, it is highly improbable that he would take any Patti with him. Indeed, the prosecution has not led any evidence to establish that the appellant had taken the Patti with him. It was open to Investigating Officer to recover any Charpoy or cot from where the appellant had removed the Patti or at least he should have attempted to find out whether any other parts of the Charpoy were lying in the house so as to establish that the appellant must have gone armed. Indeed, if the appellant had any intention of quarrelling with the deceased or of causing him any injury with the intention of causing death, he would have taken with him some conventional weapon such as knife or iron-ringed Lathi. The use of Patti (dimension are 2-3/4" x 3" x 1k") indicates that it was got hold of at the spur of the moment and suddenly. The learned State counsel himself argued that such pieces of wood are available near such Juggis.
3. In somewhat identical case, namely, Muhammad Haroon Rashid and 2 others v. The State 1975 P Cr. L J 264 it was held by a Division Bench of this Court consisting of late Chief Justice Tufail All A.
24. Rahman and Mr. Justice Abdul Hayee Kureshi that:- "The weapon with which the injury was caused in the presen case is not one which one normally selects for the purpose of causing death and was one which happened to be at hand. The incident was sudden one and only one blow was given and in these circumstances I am unable to say that any of the various states of mind which are contemplated by section 299 of the Penal Code existed. I do not think, therefore, that this is a case which falls under the definition of culpable homicide much less of murder."
25. ' Reference may also be had to Mahiwal v. The State (1975) 2 PCr.LJ 1121 wherein another Division Bench of this Court took the same view as in Muhammad Haroon Rashid's case.
4. Most probably, during the course of talk between the appellants some hard words might have been exchanged which might have made the appellant furious and in the heat of passion he must have picked up the Patti and given a blow. The prosecution case is that as soon as the deceased had put his head out of the door, the appellant hit the Patti of the cot on the head of Rasheed. If it were so, then naturally the three ladies who were said to be in the house at the time of incident could not have seen the person who hit the Patti on the head of the deceased. According to Mst.Shamshad, the appellant had given 2/3 blows after they went to save their father who had already, according to her received one blow but this version is contrary to the medical evidence which shows that only one blow was given.
5. Further I am not inclined to place any reliance on the evidence of P.W. Mst. Zaitoon and P.W.Mst.Shamshad. According to Mst. Zaitoon "I was preparing tea for my child at 4-00 a.m Mst.Akhtari was breast-feeding the child. Mst.Shamshad Begum daughter of the deceased was holding the child in the quarter because he was weeping." While the evidence of Mst.Shamshad Begum is "I was going to put water for preparing the tea on Chullah. My mother was breast feeding the child.Khala was sitting idle on Charpoy " These two conflicting accounts of what they were doing at that odd hour clearly show that they were sleeping. Even if for the sake of argument it is assumed that they were awake, it is impossible to believe that they saw the appellant hitting the deceased, as striking a single blow as soon as the deceased peeped out would take no time at all, and even according to my brother, this must have been done even before the deceased himself could see as to what was happening. How then is it possible to believe the witnesses that they saw not only one but several blows. Mst.Shamshad impliedly admits that she saw the accused gave 2/3 blows after "we went to save our father who had already received one blow" but the medical evidence as stated earlier shows that the deceased had received only one blow.
6. Therefore, it appears that the witnesses have exaggerated with a view to aggravate the nature of offence and if they could do so, they could also aggravate the nature of offence by suppressing the part played by the deceased in the quarrel.
7. Indeed it is the finding of the trial Court that there was no premeditation. The trail Court has found: "It is clear from the prosecution evidence that there was no question of premeditation or preparation for committing the murder. The accused who came late at night to his house was in all probability given exaggerated account of the quarrel with the neighbour by his wife and although the injury caused was indeed brutal and brain matter came out, the very fact that crime was committed by striking the deceased with a Patti of a Charpoy shows that the accused on the spur of the moment having got angry on being told about the circumstances of the quarrel lost his self- control
8. If this is the finding about their credibility and they can state on oath that they saw several blows being struck when in fact, theyE could not have seen even a single blow. Can such witnesses be implicitly relied upon on capital charge? The answer is clearly in the negative. We are now left with the evidence of two passersby namely, Asif Ali and Noor Muhammad. Asif Ali's name does not appear in the F.I.R. Although he was known to Zaitoon who stated "I have not mentioned the name of Asif in the F.I.R. As a witness. Asif and Noor Muhammad are also milkman. Noor Muhammad and Asif both had visiting terms with the deceased. I saw Noor Muhammad about 5/6 yards from the door of my quarter." His evidence is, therefore, doubtful but even he talks of appellant giving two blows and, therefore, he is in the same category as relation witnesses. There remains Noor Muhammad. His name appears in the F.I.R. He had no reason to oblige the appellant. About him Zaitoon Khatoon also stated "Noor Muhammad had accompanied me to hospital and went away after leaving me at my place." Therefore, there is no reason to doubt his version about the initial quarrel and grappling as it fits in more with the probabilities as contended not only by the defence but even by the learned counsel for the State, who was of the opinion that the offence committed in the case was not one of murder but only one under section 304, P.P.C. Part II.
9. For all these reasons, I hold that the appellant is guilty of an offence falling under section 304, P.P.C. And not one falling unde G section 302, P.P.C. And convict him thereunder and sentence him to 7 years' rigorous imprisonment and dismiss the appeal with the abov modification .
26. ' MUHAMMAD ZAHOORUL HAQ, J.--This is an appeal from the judgment of Sessions Judge, Karachi dated 24-6-1975, whereby the appellant Karam Ellahi was convicted under section 302, P.P.C. For the murder of deceased Abdul Rashid and sentenced to life imprisonment. He was also convicted under section 323, P.P.C. For causing hurt to Mst.Zaitoon and sentenced to suffer R.I. For a period of 3 months.
27. ' This matter has come to me under the provision of section 429 of Cr.P.C. On account of differences of opinion between Justice M.A. Rashid, J. And Justice Naimuddin, J.
28. ' Mr. Justice M.A. Rashid was of the opinion that the case of the appellant fell under section 300, P.P.C. And the intention of the accused was to cause such bodily injury as he knew would be likely to cause death.
29. ' Mr.Justice Naimuddin on the other hand was of the opinion that the injury caused by the appellant was on account of the initial quarrel and grapple which took place between deceased Abdul Rashid and the appellant Karam Ellahi and held that it was not a case of murder but only one under section 304, P.P.C. Part II. Mr.Justice Naimuddin had, therefore, converted the conviction of the appellant from section 302, P.P.C. To one under section 304, P.P.C. And sentenced him to 7 years'
30. R.I. And then dismissed the appeal with that modification in the sentence.
31. ' This difference of opinion has arisen on 7th of August, 1976.
32. ' The facts reading to this appeal are that on 16-8-1973 at 5-30 hours P.W .1, Mst.Zaitoon filed an F.I.R.
33. Exh.5 at Police Station Brigade, Karachi and the same reads as under:- "I am residing at the above address alongwith my brother-in-law Abdul Rashid. Karam Ellahi is living in our neighbour. The courtyard of our quarter is at high level and the quarter of Karam Ellahi is on the low level. The rain water flows from our courtyard to the house of Karam Ellahi, due to which there had been exchange of hot words among us, the women, tonight at about 8-45 p.m.
34. And the dispute was settled. At that time Karam Ellahi was not at home. At about 5 p.m. Karam Ellahi came and called my brother-in-law Abdul Rashid, whereupon Rashid went out of the door. As soon as Rashid put his head out of the door, Karam Ellahi hit the Patti of the cot on the head of Rashid which was in his hand. As a result of which Rashid fell down on the ground. And again Karam Ellahi gave Patti blow on his head. When I went to pick up my brother-in-law, then Karam Ellahi hit Patti on my waist and I also received injury on my waist. My brother-in-law Abdul Rashid died on the spot at the same time and the brain had come out of his head. It has bled in large quantity. My sister Akhtari, Noor Muhammad and other persons had arrived on the spot at the same time, who have seen this incident I have come to lodge the report. My complaint against Karam Ellahi is that he had deliberately killed my brother-in-law Abdul Rashid by hitting Patti of the cot on his head. Action may be taken."
35. ' The S.I.P. Muhammad Ilyas after recording the F.I.R. Proceeded to the scene of offence and prepared inquest report of the dead body at the Wardat. Thereafter, S.H.O. Muhammad Rafiq Shaikh arrived, who prepared the Memo of Wardat and secured the blood-stained articles from the Wardat and recorded statements of P.Ws. Mst.Zaitoon, Mst. Akhtari Begum, Mst.Shamshad, Noor Muhammad and Asif All and also further statement of the complainant. The appellant was interrogated and he produced the wooden Patti vide a Mashirnama Exh.21. It was found blood- stained. This Patti alongwith the earth from the Wardat was sent for Chemical Examination. The dead body was sent to the hospital for post-mortem and Mst.Zaitoon was sent for treatment. The sketch of the scene of offence was got prepared from the Tapader. The appellant was challaned on 28-8-1973. The Chemical Report showed human blood on the Patti.
36. ' Dr. Farooqui who had carried out the post-mortem found the following injuries upon the deceased:--
(1) Lacerated wound on head 5" x 3" x brain deep. All the bones of the skull were fractured and brain matter come out.
(2) Abrasion right side forehead 11/2" x 1".
37. ' The Doctor was of the opinion that injury No,1 was caused due to very forceful impact which a hard and heavy and blunt object, while injury No,2 could be caused by fall or friction. Dr. Sultana Ashraf found following injuries on P.W. Mst. Zaitoon:--
(1) Contusion and swelling on the right side of the back.
(2) Tenderness positive on the same part of the body.
38. ' In support of its case the prosecution had examined 5 eyewitnesses namely, Mst. Zaitoon, Mst.
39. Akhtari Begum, Mst. Shamshad, Noor Muhammad and Asif Ali. The Tapedar, two doctors, the S.I.P. As well as S.H.O. Of Brigade Police Station and the Mashirs were also examined.
40. ' The accused in his statement made a denial of all the facts put to him. He did not produce any defence.
41. ' Before discussing the evidence I may note that Mr. Muhammad Hayat Junejo had argued before me that the whole appeal was open before me under section 429, Cr.P.C. And that I was not confined to decide merely a point of difference between the two Judges. He had relied upon PLD 1964 Dacca 480, where the Chief Justice Dacca High Court had expressed himself very strongly in favour of the proposition that the whole case was open before the Judge who heard as a third Judge on a difference of opinion between the two Judges. The council had, however, also fairly shown to me the judgment of Chief Justice Kayani in PLD 1959 Lah.715, where the learned Chief Justice of the West Pakistan High Court had held that the case before the third Judge under section 429, Cr.P.C. Is that on which the two Judges differ in opinion although the whole case has to be placed before the third Judge. Mr. Muhammad Hayat Junejo had further stated that although he considered it a right of his client to have the whole case heard, but in the circumstances of the case he was of the view that his client would be satisfied if the point of differences between the two Judges was decided by me as in the- circumstances of the case he did not consider that outright acquittal could be obtained. He argued in favour of adopting the view of Mr.Justice Naimuddin and sentence of 7 years' R.I.
42. ' Mr. Manzoor Hussain, Advocate, learned counsel for the State submitted that in his view it was a case of offence under section 304, Part II, and, therefore, he also supported the view of Mr.Justice Naimuddin.
43. ' I am not expressing one view or the other in respect of the matter whether the whole case is open for the third Judge under section 429, Cr.P.C. Or he is to confine himself to the difference of opinion between the two Judges. But in the present case, I am following the view indicated in PLD 1959 Lah .715 (747), particularly in view of the fact that the appellant's counsel has confined his arguments in support of the view of Mr.Justice Naimuddin and he has not argued for acquittal, and probably rightly so as it would be quite difficult to disbelieve five witnesses of the occurrence three of whom are the inmates of the house of the deceased namely, his wife, sister and daughter and two are the milk sellers, who were present in the vicinity selling the milk and four of whom have deposed that appellant Karam Ellahi had caused the fatal blow upon Abdul Rashid, while Noor Muhammad deposed that he had seen Rashid and Karam Ellahi grappling with each other. The involvement of the appellant is more difficult to deny as Mst.Zaitoon the sister of the deceased had been struck by the accused on her back by the Patti and her injuries are corroborated by the Medical Report and she has clearly implicated the appellant as an assailant.
44. ' The story that Mr.Justice M.A.Rashid has believed is very simple according to the learned Judge and the same is i.e,:-- "That as a result of the quarrel between Mst.Akhtari Begum and the wife of the accused the accused came to the house of the deceased to teach him a lesson. When he came he was already carrying the Patti in his hands. The moment the deceased put out his head from behind the Chatai curtain he was struck a blow on the head by the accused. The blow was administered with such a force and violence that the brain matter came out and the deceased died instantaneously.
45. ' The learned Judge has believed the three P.Ws. Mst.Zaitoon, Mst.Akhtari Begum and Mst.Shamshad and was of the view that there is nothing on record to indicate that they have tried to give false evidence.
46. ' P.W.Asif All whose name. Was not mentioned in the F.I.R. Was regarded by the learned Judge as a natural witness as he sells milk in the locality although he is essentially a sweetmeat shopkeeper.
47. ' This learned Judge, however, did not rely upon the statement of P.W. Noor Muhammad who had stated that he saw the occurrence from a distance of 50 paces and the deceased and accused were grappling with each other. He further stated that it was raining and he did not stay there but when he returned after about 15 minutes, he saw the deceased lying on the ground with injury on his head.
48. ' This version of P.W. Noor Muhammad was different from his version in his statement under section 164, Cr.P.C. Where he had supported the version of the other P.Ws. Made in Court. But the explanation of Noor Muhammad that his statement was not recorded and he was sitting outside the Court and only his thumb-impression has been put, has been ignored by Mr.Justice M.A.Rashid.
49. In fact the statement under section 164, Cr.P.C. Was not a substantive statement and the same had not even been formally proved through the Magistrate who recorded the same. However, his statement in Court was regarded by the learned Judges as unnatural.
50. ' Mr. Muhammad Hayat Junejo had argued that it was a case of sudden fight without any premeditation and that accused had on the spur of the moment picked up a Patti which could be lying near about and dealt only one blow at the head.
51. ' Mr. Justice M.A. Rashid had found the evidence of Noor Muhammad as unnatural and obliging to the accused. He was of the view that the conduct of Noor Muhammad in walking after he had seen the deceased and accused grappling with each other was unnatural. Particularly, when the deceased was a Milkman and Noor Muhammad was also Milkman and the reason given by Noor Muhammad that because it was raining, therefore, he went away was not regarded as plausible. It was further observed that there was no reason for him to return within 15 minutes. It was further observed that Noor Muhammad stated that it was pitch dark and he was not sure if one could see from 50 paces. But his further statement that at a distance one could see at 50 paces was ignored.
52. After discarding the evidence of Noor Muhammad the learned Judge observed, "it is, therefore, not established if the occurrence started with petty quarrel, developing iii the heat of the moment, into a fight ending in the fatal below." According to the view of this learned Judge the accused had brought a Patti from his house and he had, therefore, prepared himself for the ultimate act which he finally committed, therefore, there was premeditation. He was, further, of the view that undue advantage was taken by the accused/appellant by summoning the deceased with a friendly call "Rashid Bhai Bahar Aao" and the deceased came out without suspecting anything and the accused struck the blow at once. I may mention however that this friendly call was not mentioned in the F.I.R. It was, further, observed by the same learned Judge that the blow was struck with such a force and violence that the brain matter of the deceased had come out and it was, therefore, indicative of the cruelty attending upon the blow. He, therefore, concluded that it could not be said that the case of the appellant fell under Exception 4 to section 300, Cr.P.C. Particularly because the accused had chosen the head of the deceased where he struck the blow with a Patti which is fairly heavy implement.
53. ' In coming to his conclusion that it was not a case under section 302, P.P.C. But one under section 304, P.P.C. Mr.Justice Naimuddin was of the view that if the appellant had any intention of quarrelling with the deceased or of causing him injury with the intention of causing death then he would have taken some fatal weapon such as knife or iron or Lathi but the use of Patti which was 2- 3/4" x 11/2" indicated that it was got hold of at the spur of the moment and suddenly. He relied upon the observations of a D.B. Of this High Court in 1975 PCr.LJ 264 which is to the following effect:- "The weapon with which the injury was caused in the present case is not one which one normally selects for the purpose of causing death and was one which happened to be at hand. The incident was sudden one and only one blow was given and in these circumstances I am unable to say that any of the various states of mind which are contemplated by section 299 of the Penal Code existed. I do not think, therefore, that this is a case which falls under the definition of culpable homicide muchless of murder."
54. ' He was of the view that most probably during the course of talk between the appellant and the deceased some hard words might have been exchanged which might have made the appellant furious and in the heat of passion he might have picked up a Patti and gave blow. The learned Judge was of the view that if the incident was as sudden as stated by the 3 women P.Ws. That as soon as the deceased had put his head out of the door the appellant hit the Patti on the head of Rashid, then the 3 ladies could not have witnesses the same as the ladies were inside the house. He was of the view that Mst.Shamshad who had stated that appellant have given 2-3 blows to the deceased after they had gone to save their father had not made correct statements as the medical evidence showed one blow upon the deceased.Mr.Justice Naimuddin did not feel inclined to place reliance on the evidence of P.W.Zaitoon and P.W.Mst.Shamshad as he found that they had made conflicting account of what they were doing at odd hour. Mst.Zaitoon had stated that she was preparing tea for her child at 4-00 a.m. And Shamshad was holding the weeping child while Shamshad stated that she was going to put water for preparing tea on Chula and Khala (Mst.
55. Zaitoon) was sitting idle on Charpoy. In view of these conflicting two versions the learned Judge came to the view that either they were sleeping or even if they were awake they could not see the appellant beating the deceased as one blow cannot take any time at all. This learned Judge was, therefore, of the view that the 3 women of the household have exaggerated with a view to aggravate the nature of the offence. He was, therefore, of the view that the evidence of these women could not be implicitly relied upon. Thereafter he took into consideration the evidence of 2 passersby namely Asif Ali and Noor Muhammad. The learned Judge considered evidence of Asif Ali as doubtful as in the first instance his name was not mentioned in the F.I.R. Although he was known to Mst.Zaitoon and further on the ground that he talked of the appellant giving two blows, and therefore, he was regarded in the category of those women witnesses who had exaggerated the number of blows. The learned Judge finally relied upon the evidence of Noor Muhammad whose name appeared in the F.I.R. And who had no reason to oblige the appellant and who had even accompanied the complainant Mst.Zaitoon to the hospital, and therefore, the learned Judge though that there was no reason to doubt his version about the initial quarrel and grappling and as it fits in more with the probabilities. It was noted by the learned Judge that even the counsel' for the State had conceded that it was a case under section 304, Part II, P.P.C. And not 302, P.P.C.
56. ' I have tried to analyse the reasoning of two learned Judges in their different judgments and I have come to the conclusion that it would be safer to rely upon the statement of P.W. Noor Muhammad as his name was mentioned in the F.I.R. And he had helped the prosecution witnesses and there is no reason as to why he should be making a false statement to oblige the appellant. He has denied to have made any statement in Court under section 164, Cr.P.C. And had stated that he had merely put his thumb-impression upon the said statement and there is nothing on record to challenge the position taken by Noor Muhammad, and his statement made in the trial Court cannot be disregarded if the same provides some benefit to the accused. It may be different that if Noor Muhammad was prosecuted under section 476 of Cr.P.C. And his statement under section 164, Cr.P.C. Was duly proved by the Magistrate who recorded his statement then Noor Muhammad could be held to be guilty of perjury. But unless that was done his statement at the trial could not be brushed aside. I do not find his conduct unnatural that he had gone away in spite of seeing Rashid and Karam Elahi grapple with each other. It was raining at that time and may be that Noor Muhammad did not consider the mere grappling (Gutham Gutha) as a serious affair and he, therefore, went away. Two versions of the case appeared from the statement of the P.Ws., one version by Mst. Zaitoon, Mst. Shamshad and Mst. Akhtari Begum and P.W. Asif All is that the accused had brought a Patti from his house and called the deceased to come out from his house by a friendly call and then without even a single word and without even allowing the deceased to come out fully from the house he smashed his head with the Patti with a great force. The other version is given by Noor Muhammad is that he had seen Abdul Rashid and Karam ElBahl grappling together and then he had gone away due to raining and returning after 15 minutes he saw Abdul Rashid lying on the ground with head injury. Since the name of this witness is mentioned in the F.I.R. While the name of Asif All is not mentioned in the F.I.R. It would be safer to rely upon the statement of this Noor Muhammad made in Court. It is true that this witnesses has made a different statement in his statement under section 164, Cr.P.C. But that statement he had denied having been made by him and in any case section 164, Cr.P.C. Statement cannot be regarded as substantive statement as the law was at the relevant time. The women P.Ws. And P.W. Asif Ali having exaggerated in the number of injuries, it was proper that their statement may not be completely relied upon, and, therefore, the statement of Noor Muhammad who had deposed about the quarrel and grappling between the appellant and the deceased could not be ignored. In fact I am of the view that the call given by appellant "Rashid Bahai Bahar Aao", if it was true, suggested that the appellant had not intended to fight, and, therefore, something must have intervened between that call and the fatal blow. The version of the appellant having a Patti and causing injury before the deceased put his head out of his door is deposed to only by P.W. Asif All and the statement of P.W.Asif All should not be so easily relied upon when he was not mentioned as an eye-witness by Mst.Zaitoon in her The fact that Mst.Zaitoon was able to come out of house after the fatal blow was inflicted upon the deceased indicates that there must have been some altercation between the deceased and the appellant otherwise. Mst.Zaitoon could not be so easily available at the door as to receive a blow upon her back when the appellant wanted to inflict a 2nd blow upon the deceased. If she has come out on the first blow and has received the 2nd blow upon her back then it was only possible in case of some previous altercation between the appellant and the deceased and expectation of fight between the two of them by the womenfolk, particularly Mst.Zaitoon who was allegedly preparing tea for her child according to her own statement or she was sitting idle on cot according to the statement of Mst.Shamshad. Therefore, it is reasonable to infer that altercation did take place before the fatal blow.
57. ' The view that Mr.Justice Naimuddin took that some altercation had taken place between the deceased and the appellant and the appellant probably picked-up a Patti from somewhere and inflicted only one blow at the head with a weapon not chosen ordinarily used as a weapon of murder, was more justified. It is clear that none of the woman P.Ws. Had seen the accused coming to their house with a Patti in his hand as they were all inside before the fatal blow had been caused.
58. Statement of Asif P.W. In this regard is the only statement of a witness having seen accused witha Patti before the actual assault but his name being absent in the F.I.R. As an eye-witness is enough to discred it him as the person who had seen the incident before the blow as otherwise he must have been the first to reach the deceased and in that case would have been definitely mentioned by Mst.Zaitoon in the F.I.R. He probably reached after the blow had been caused. The Patti is not such an implement which is ordinarily used as a weapon of offence and, therefore, the accused could not be burdened with the intention of causing death. Moreover, in the F.I.R. It had not been shown as to what part deceased Rashid had played into the quarrel of the women, therefore, it would not be reasonable to infer that appellant had an intention to kill Rashid from the very beginning. Something seems to have been suppressed by the women P.Ws. And since they have exaggerated the number of injuries upon deceased, therefore, it could be possible that they have suppressed some portion of the story which has been deposed to by Noor Muhammad. A Charpoy Pathi is an ordinary piece of wood which could be lying in the vicinity and it is not necessary that it must have been brought by the accused from his own house. The view of Mr. Justice Naimuddin appears to be more in consonance with the circumstances of this case. 1 would, therefore, agree with the view of Mr. Justice Naimuddin and the convert the conviction from section 302, P.P.C. To one under section 304, P.P.C. And sentence the appellant to 7 years' R.I.