1. Muhammad Afzal Zullah, J.--The learned Sessions Judge, Rawalpindi vide his judgment dated 6-6- 1967 convicted Mir Afzalf aged about 25 years, under section 302, P. P. C. and sentenced him to transportation for life for the murder of Abdul Wahab; The convict has, by this appeal, challenged the conviction and the sentence.
2. The facts of the case briefly stated are that the appellant belonged to District Abbotabad while the deceased was resident of Rawalpindi City. The deceased had, according to the F.I.R. Exh. P.C/1, sold a buffalo to the appellant for Rs. 200, but instead of paying the sale price forthwith, the appellant had promised in consideration to give another buffalo to the deceased. The appellant did not keep the promise. On the day of occurrence, which took place on 30-9-1.966 at about 15 a.m., the deceased learnt that the appellant had brought a buffalo in a truck and was present in Gunj Mandi, Rawalpindi. He, therefore, took along Shah Hanif (not produced) and Jalal Din P. W. 13 and proceeded towards Gunj Mandi. When they reached near Novelty Cinema the appellant met them.
3. The deceased demanded the money or the buffalo, which the appellant had brought to Rawalpindi on that day. The appellant refused to do so. Both of them altercated and then the appellant, all of a sudden, having taken out a knife from his pocket gave repeated blows to the deceased. The occurrence was witnessed by aforementioned Shah Hanif and Jalal Din P. W. and also by Pehalwan (alias Ghulam Muhammad) P. W. l2 and Afzal (not produced), lt is further mentioned in the F. I. R. that these persons apprehended the appellant with the knife at the spot. The deceased was taken to the hospital where Muhammad Nawaz, P. W. 14 recorded his statement Exh. P. C. at 9-00 a.m. On the basis of this statement a case was registered at Police Station 'A' Division, Rawalpindi at 9-15 a.m. vide F. I. R. Exh. P. C./1.
4. Dr. Mehtab Akhtar P. W. 1 examined the deceased at 9-00 a.m. on the same day when he was in injured condition and found six injuries on his person, the description whereof will be presently noted. Injury No. 1 was dangerous to life. Injuries Nos. 2 to 4 were kept under observation and the rest were simple. All the injuries were caused by some sharp-edged weapon and were fresh in duration. Mian Asghar Hamid P. W. 3, Magistrate lst Class, recorded the dying declaration Exh. P. L. of the deceased at about 9-30 a.m. This dying declaration, which is very brief, is as follows:-- "Mir Afzal caused me injuries with knife today at 8-30 a.m. I was injured near Novelty Cinema. He owed me Rs. 200. On my demand he caused me several injuries with knife. When the accused was running the brother of Mir Afzal hoiel-wala caught him. Pehalwan chhabari-wala also saw the occurrence. Many other persons had reached."
5. According to the certificate of the doctor Exh. P. L./l this dying declaration was completed by about 10-15 a.m. The injured died at about 11-30 a.m. The post-mortem examination conducted by Dr. Rauf Beg Mirza, P. W. 2 on the same day at 11-45 a.m. revealed same injuries as were noticed before the death. They are as follows:-- "(1) Stitched incised stab wound 2" x on the front of the right side of the abdomen with cut on the front of the right lobe of the liver 2" in length which was through and through.
(2) Stitched incised stab wound 2' x ' on the left lumbosacrel region going inside cutting the left kidney in the middle. The |th of the kidney was cut.
(3) Stitched incised wound 3" x'x scalp deep on the left side of the skull extending from the enterior and to the middle portion.
(4) Incised wound ljr'xj'x bone deep on the left thinner emminence. The wound was already stitched.
(5) Stitched incised wound 1" x x muscle deep on the upper part of the palm of the left hand in the middle.
(6) Stitched incised wound 1* x x skin deep on the outer side of left upper arm."
6. Both sides of the heart were empty. The abdomen contained three pounds of blood. The stomach was empty. There was a cut on the right lobe of the liver 2" x through and through under injury No. 1.
7. The left kidney was cut in the middle about Jth under injury No. 2. The bladder was full. The death was due to shock and haemorrhage caused by injuries Nos. 1 and 2, which were dangerous in nature and were caused by sharp-edged pointed weapon. They were sufficient, collectively as well as individually, to cause death in the ordinary course of nature. The other injuries were simple and were caused by sharp-edged pointed weapon. The duration between injuries and death was within few hours and between death and post-mortem examination within three hours. In cross- examination the doctor admitted that injury No. 1 being on the liver would have caused profused bleeding. Same was the position with regard to injury No. %.
8. Waris Khan P.W. 11 and Ghulam Muhammad P. W. l2 apprehended the appellant near the spot and thereafter produced him before Muhammad Nawaz Head Constable, P. W.
14. The blood-stained knife Exh. P. 3 was taken from the possession of the appellant vide memo. Exh. P. E. The blood- stained shirt Exh. P. 2 was removed from his person vide memo. Exh. P. D. At the trial Waris Khan and Jilal Din P. Ws. gave the ocular account of the occurrence while Ghulam Muhammad deposed that when he was near the place of occurrence, on hearing an alarm and on seeing the appellant running by him with a knife in his hand, he and Waris Khan P. W. caught hold of him and subsequently produced him before the police. Muhammad Nawaz, Waris Khan and Ghulam Muhammad P. Ws. deposed about the recoveries. Muhammad Nawaz P.W. also deposed about the deceased having made the statement Exh. P. C., which was treated as dying declaration and was also made the basis of the F. I. R. Dr. Mehtab Akhtar and Mian Asghar Hamid, Magistrate, are the witnesses of the dying declaration Exh. P. L. All these witnesses have fully supported the prosecution case. When examined under section 342, Cr. P. C., the appellant denied all the allegations and stated that he reached Rawalpindi from Abbottabad on the day of occurrence and that he was present at a shop in Raja Bazar when a constable took him to the hospital where he was arrested.
9. When asked as to why the case against him, he answered "I know nothing of it". While answering the question about altercation, he stated that he did not know the deceased previously.
10. The leamed trial Judge excluded the first dying declaration Exh. P. C. from consideration, but fully relied on the second dying declaration Exh. P. L. He accepted the prosecution version, that Ghulam Muhammad alias Pehalwan and Waris Khan saw the occurrence and because they were independent and truthful witnesses, he accepted their statements that Jilal Din P. W. also saw the occurrence. Nevertheless he found it "more prudent to keep apart the statement of Jilal Din". He accepted the version that the appellant was apprehended soon after the occurrence near the spot by the P. Ws. and that a shirt, which was subsequently found to have been stained with human blood, was removed from his person. The recovery of the knife was kept out of consideration, because the origin of blood on it was not ascertained. The learned Judge after due consideration found the appellant guilty and sentenced him as noted earlier. On the question of offence committed he was of the view that Exception IV to section 300, P. P. C. did not apply to the case, because even though there was no premeditation and the occurrence took place all of a sudden in the heat of passion upon a sudden quarrel yet the appellant "had admittedly taken undue advantage and acted in a cruel or unusual manner." He quoted the following observation from AIR 1948 Lah. 58 for awarding the lesser sentence of transportation for life "Where the murder is committed in the course of a sudden quarrel and without premeditation or on the impulse of the moment, it is usual not to pass the death sentence unless the circumstances be exceptional."
11. We have read the evidence with the help of the learned counsel. The reasons advanced by the learned Sessions Judge for excluding the first dying declaration, Exh. P. C. are not irrelevant in so far as the facts of this case are concerned. The learned State counsel has also not pressed for re- consideration of this aspect of the matter, therefore, we will also keep this dying declaration out of consideration. The presence of Jilal Din P. W. at the spot has not been doubted by the learned trial Judge. He considered it more prudent to keep his statement apart only on the ground that his name was not mentioned in the dying declaration Exh. P. L. The course adopted by the leamed trial Judge means only this much that according to him this witness may have seen the occurrence but his statement should not be used against the appellant, because his name is not mentioned in the dying declaration. We are of the view that this does not mean that anything in the statement of Jilal Din going in favour of the appellant can be ignored only on the ground that the learned Judge thought it more prudent to keep it apart. On the question of the recovery of knife also we have a different approach than the one of the learned trial Judge. He did not doubt the recovery' of knife P.
12. 3 from the possession of the appellant but kept' it apart "as origin of blood on it could not be ascertained." This aspect, however,-will be dealt with at its proper place.
13. After reading the evidence in this behalf, we agree with the learned trial Judge that the statement Exh. P. L. made by the deceased is voluntary and genuine. The learned counsel for the appellant has, however, contended that the Magistrate (P. W. 3) while recording Exh. P. L. did not mention the time; that no written certificate was obtained from the doctor by the Magistrate before recording the statement; that according to the doctor the patient was in pain before his statement was recorded and that he died within one hour thereafter ; that according to the Magistrate the presence of some relative of the deceased before recording the statement Exh. P. L. could not be excluded and thus there was chance of prompting; and lastly that in Exh. P. L. it is mentioned that Ghulam Muhammad saw the occurrence and that Waris P. S. was the brother of Afzal hotelwala, which facts have not been admitted by these two witnesses. Therefore, according to the leamed counsel, the statement Exh. P. L. was not made by the deceased, because he was not fit to make such a statement and, in any case, it was the result of prompting and thus included facts which have been denied by the witnesses. For all these reasons, the learned counsel vehemently contended, that the dying declaration should be excluded from consideration. The Magistrate (P.
14. W. 3) categorically stated at the trial that before recording the statement he satisfied himself by questioning the doctor that the patient was fit to make statement. The nature of the injuries and the fact that the deceased succumbed to these injuries within an hour after making the statement show that all concerned would have been in a hurry to record the statement. In these circumstances if a written certificate was not obtained from the doctor before recording the dying declaration, it does not, in any way, reduce its value. We have no reason to doubt the statement made by the Magistrate in this behalf. Dr. Mehtab Akhtar also when questioned in this behalf at the trial, categorically stated that the patient was "in senses and fit to make a statement" and. that the Magistrate had enquired from him "before he had started recording the statement of the deceased, whether the latter was able to make a statement or not." The Attendance Certificate (Exh. P.L./l), which was signed by the doctor at 10-15 a.m., shows "that the patient remained in full senses throughout the taking of his statement." We are, thus, in no doubt that the injured was in a fit condition to make the statement. The question of time at which the dying declaration was recorded is not in doubt. The doctor signed his certificate at 10-15 a.m. When questioned on this point the Magistrate. (P. W. 3) explained that he re-collected that the time of recording the statement wohld be about 9-30 a.m. because he had the impression that it was during the early hours of the day. This statement of the Magistrate finds support from an endorsement by the Magistrate on the back of Exhs. P. W. 14/A/ P. W. 3/A (the application and order for the recording of the dying declaration) which show that the statement was completed at 10-14 a.m. We are, therefore, certain about the time that the dying declaration was completed at about 10-15 a.m. The facts that the injured died within one hour i.e., at about 11-30 a.m. and that he was in pain, do not by themselves furnish sufficient material to come to a definite conclusion that he was not sufficiently conscious to have made a statement: Firstly the doctor and the Magistrate are clear on this point that the injured was conscious and fit to make the statement and secondly, the doctor has explained that the patient was given some injections for pain. The learned counsel tried to argue that the injections to reduce the pain must have induced sub-conscious or unconscious state of mind in the injured. No question was asked from the doctor on these lines. We cannot presume that there are no injections which kill the pain and at the same time keep the patient conscious.
15. Moreover, there is no indication in the Medico- Legal Report to show that the injured, when initially examined, was unconscious. No doubt the deceased suffered injuries on some vital parts, but that is not enough to show that he must have become unconscious. The doctor was not asked any question on these lines, presumably, because the cross-examiner expected adverse answer. We, therefore, repell the contention of the learned counsel in this behalf. It is clear from the reading of the entire evidence and the fact is not denied that no relative of the injured was present in the hospital before or during the recording of his statement. It will' amount to conjecture to say that the persons who saw the occurrence and/or brought the injured to the hospital, were present there to prompt the injured. Moreover, on proper analysis we are of the view that none of the witnesses or the persons, who could be present in the hospital, had any motive against the appellant or anybody else to make a false accusation. This is not a type of case in which there was a need for prompting. Some of these persons did not even know the name of the appellant. We are, therefore, of the view that there is no proof of the deceased having been prompted by anybody for falsely implicating the appellant. Use of the word "bhee" in the narrative of the dying declaration is indicative of the fact that Waris P. W. had seen the occurrence and that Ghulam Muhammad alias Pehalwan also saw the occurrence. The latter has, in a straightforward statement, explained that he did not see the appellant causing the blows to the deceased but immediately after the- infliction of the injuries he saw the appellant running with the knife in his hand and that he caught hold of him. Thus both the injured (in Exh. P. L.) and Ghulam Muhammad P. W. are consistent on one fact that at or about the time of occurrence Ghulam Muhammad was present nearby. That being so, there can be genuine difference of impression and perception qua the circumstance whether Ghulam Muhammad actually saw the injuries being inflicted. We do not agree with the learned counsel that there is any inconsistency. Brother of Mir Afzal (Waris P. W.) is specifically mentioned in such a phraseology as to indicate that he not only saw the occurrence but also caught hold of the culprit. This is also what this Pakistan Criminal Law Journal witness stated at the trial. We, therefore, do not find any inconsistency even qua Waris with regard to the identity of this witness and are of the view that the criticism of tne learned counsel is too technical to be real. In the statement Exh. P. L. the witness is described as If Jo* When examined, Waris P. W. throughout in his examination-in-chief and a part of cross-examination described Mir Afzal, the hotel-keeper, as his brother, lt was on specific question being asked by the cross-examiner that he explained that he was not a real brother of Afzal but is his cousin. The cross-examiner did not ask him further question as to why he gave the relationship as that of a brother. Similarly Ghulam Muhammad alias Pehalwan P. W. throughout his statement described Waris as a brother of Afzal, but the cross-examiner did not challenge this position. It appears that Waris was known in the locality as the brother of Afzal and, in ahy case, the deceased was of this impression. The simple fact that Afzal has other real brothers, does not show either that they lived in Rawalpindi or that they were known to the deceased. Moreover, if Waris himself gave out that he was the brother of Afzal,, there is no reason to doubt the statement of the deceased (Exh. P. L.) on this score that in fact they were not real brothers. We, therefore, attach no importance to this circumstance. After noticing the facts that the statement (Exh. P. L.) is very short and straightforward, and that there was no need or chance of prompting; and also the circumstance that this is not the case in which the statement of the doctor or the Magistrate for that matter be doubted and; further that the entire story, as contained in the F. I. R. which is a detailed document, does not appear to have been supported in the dying declaration Exh. P. L. so much so that the name of at least one witness i. e., Jilal Din is missing, we, hold that the dying declaration is not only voluntary and genuine but also true.
16. Some discrepancies have been pointed out by the learned counsel to show that the witnesses did not see the occurrence. They are not of much significance. The learned trial Judge has dealt with them. We agree with him and do not consider it necessary to discuss this matter in any detail. Both the witnesses, namely, Waris and Ghulam Muhammad alias Pehalwan are independent. Waris not only saw the occurrence but also chased the appellant and then both of them caught hold of' him and recovered knife P. 3 from his possession. There is no reason why their statements should be doubted.
17. The recovery of the knife P. 3 by the accused has sufficiently been proved by the aforementioned two witnesses. The discrepancy pointed out by the learned counsel, that according to these witnesses the knife had been taken from the appellant at the spot and according to the Head Constable the same was taken by him directly from the accused is not very material, because in the memo, of recovery the words used are "fjL* jl Both the witnesses are consistent. The possibility cannot be excluded that the Head Constable while making the statement at the trial, which took place after about nine months, may not have remembered the exact position. The discrepancy is on a question of detail. We are in no doubt that the knife P. 3 was recovered from the appellant. The scrapping from the knife was received by the Serologist from the Chemical Examiner after a long delay, therefore it is not surprising that the blood in the scrapping would have disintegrated. In the circumstances of this case when we are certain that this knife was recovered from the appellant as a result of hot pursuit soon after he had inflicted the injuries, this recovery is relevant and in so far as it goes, supports the prosecution case. The learned counsel, in this connection, argued that from the width of the injuries it should be concluded that two weapons were used. We do not agree with him. The same knife could have caused injuries of greater width on soft tissue of the body under which there is a cavity and those with smaller width (which are on bony part). This must have caused difference in the width of the wounds. There is no inconsistency in the evidence produced in support of the removal of shirt P. 2 from the body of the appellant. It was found to have been stained with human blood.
18. The only criticism advanced by the learned counsel in this behalf is that if the blood on the knife had disintegrated, it should have disintegrated during the same period on the cloth as well. Here again we do not agree with the learned counsel. The blood on knife reached the Serologist in the form of scrappings while that on the cloth and earth reached him in a soaked condition. We do not agree with him that if it is not in the form of scrappings the blood would necessarily disintegrate after the passage of about two months. The cases where weapons are buried in the stacks of straw or other decomposing material in open weather, the blood may disintegrate in a shorter period, but after it has spaked in a cloth and has reached the Chemical Examiner within two weeks, it cannot be said that it would disintegrate by that time or that the stained cuttings which reached the Serologist in this case would in all eventuality show disintegrated blood. We, therefore, are of the view that the recovery of the bloodstained shirt is also a supporting evidence against the appellant. After hearing the learned counsel at some length we have come to the conclusion that there is no doubt about the fact that the appellant caused injuries to the deceased at the time and place as alleged by the prosecution.
19. The question as to what offence was committed by the appellant has given us anxious thought. We have noted in another part of this judgment that the presence of Jalal Din P. W. with the deceased before and during the occurrence cannot be doubted. In the dying declaration Exh. P. L. which we have accepted as true, the only motive suggested is that the appellant owed money to the deceased. The amount involved is Rs. 200. This would not show that for that count the appellant wanted to murder the deceased. The details of this motive contained in the F. I. R. (Exh. P. C/l) do not appear to have been given by the deceased. Jilal Din P. W., who was with the deceased, has also not supported the contents of the statement Exh. P. C. in this behalf. According to his statement, made at the trial, it was a chance encounter in which the deceased demanded Rs. 200 from the appellant whereupon the latter straightaway "abused the deceased whereat they both grappled with each other?' This statement of the witness in the examination-in-chief was seriously contested in cross-examination and it was brought out therein that before the police the witness had stated that after the demand by the deceased of Rs. 200 without any other incident or fact intervening, the deceased straightaway abused the appellant and then grappled with him. The expression used in the police statement Exh. D. C., with which the witness was duly confronted, is as follows:-- ^js* Jlf ^ jjl The learned counsel for the appellant has argued that if the appellant did not pay the money to the deceased as promised, the motive was with the deceased to make a complaint in this behalf and while doing so he might as well have abused and assaulted the appellant. That being so, it stands to reason that the statement made by Jalal Din P. W. before the police was correct. The argument of the learned counsel is not without force. We are of the view that there was absolutely no motive with the appellant to have attacked the deceased without any provocation and rather the motive was with the deceased. That being so a reasonable possibility as suggested by the learned counsel, for which there is some support, as discussed above, cannot be excluded that the deceased first abused the appellant and then grappled with him, in other words, assaulted him; on which the appellant, who had a knife with him, caused him injuries. We do not agree with the learned counsel for the State that the appellant carried the knife so as to attack the deceased: Firstly, there was no motive and secondly, the carrying of a knife in that part of the country does not necessarily mean an intention to launch an attack.
20. The next question is whether the appellant is entitled to benefit under any of the Exceptions to section 300, P. P. C. The learned counsel for the appellant has relied on Exceptions I and IV. We agree with the leamed trial Judge that Exception IV is not applicable in the circumstances of this case, because of the nature, number of the injuries, the weapon used and the deceased being unarmed. The possibility of application of Exception II has not been canvassed; and we on our part do not consider it necessary to go into that question. With regard to application of Exception I i. e., 'grave and sudden provocation' no doubt there are some decided cases where, in the circumstances thereof, it was held that mere abuse or taunt by itself is no ground for giving rise to grave provocation. It has not been laid down as a law that in all circumstances, including an abuse if it is of the filthiest kind and is given to a person, who would normally not tolerate such abuse, the Courts, should never treat it as capable of giving rise to grave provocation. Such questions cannot be resolved by any technical view of the matter. It all depends upon the circumstances of each case and a finding has to be given on this fact as in respect of any other fact. This supposition is supported by the explanation to Exception I, which provides: "Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question oi fact." Therefore, while deciding this question of fact the normal practice of appreciation of evidence will have to be kept in view. The social and cultural background of the culprit; his family traditions; his education; his environments; his age; his own way of life, and his relationship with the adversary, among other circumstances, may have to be considered. Similarly the attending circumstances before the abuse and after the abuse will have to be taken note of.
21. The appellant is a young man and belongs to a Northern District (Abbottabad). There is nothing in the evidence to show that he is educated. There was no justification for the deceased to have abused him. There is nothing in the evidence to show as to what language of the abuse was; and no presumption can be raised in this behalf in favour of the prosecution. The abuse was hurled openly in a street and in the presence of other persons, ln addition to all this there is all important factor, that there was an unprovoked assault by the deceased on the appellant, soon after or together with the abuse. Assault can be a cause for grave provocation. It has, at least, indirectly been assumed so in some of the illustrations to Exception I to section 300, P. P. C. In view of all these circumstances, it is not possible to argee with the learned State counsel that the abuse and the assault in this case were not sufficient to give rise to grave provocation. In reaching this conclusion we have also taken note of the fact that the appellant must have lost self- control and that is why he caused so many injuries.
22. In the light of the above discussion, we hold that there is a strong and reasonable possibility that the appellant acted on grave and sudden provocation offered by the deceased in the form of abuse and assault whereby he was deprived of the power of self-control. The case, falls under section 304 (1), P. P. C. We, therefore, set aside the conviction and sentence of the appellant under section 302, P. P. C. and instead convict him under section 304(1), P. P. C. and sentence him to ten years' R. I. .