Tufaii, Au A. Rehman, C. J.--The appellant in this case Muhammad Asif son of Ahmad Mian has been convicted by the learned Additional Sessions Judge, Karachi for the murder of Qayamuddin son of Rashiduddin and has been sentenced to death; the case also comes up for confirmation of the death sentence.
2. The deceased in partnership with prosecution witness Khaliq Ahmad owned a chappal factory situated in the Picture House Street near Bunder Road, Karachi where the first informant Ehtishamul Haq was employed as a Manager. On the 6th of May 1968, the deceased as was his custom, came to the shop at about 8-00 p.m. or a little after when the workers of the factory had already left and examined the accounts of the day with his partner. They had just completed doing so and were about to close the shop when the appellant came and stood in front of the factory. It appears from the evidence and, indeed, it is the case of the appellant also that he was generally regarded in the neighbourhood as a gunda and an undesirable person. The deceased asked the appellant to go away but appellant, resenting this, abused him. An altercation followed in the course of which the appellant took out a knife from the trousers' pocket and stabbed Qayamuddin. Ehtishamul Haq, the manager, picked up a stick and gave blows to the appellant in an attempt to save Qayamuddin, who fell down but the accused again stabbed him. The deceased attempted to run away but collapsed about 3 yards away from his own shop near the staircase of the house of one Shall. On the alarm raised by Khaliq a number of persons collected among whom were prosecution witnesses Muhammad Sadiq, Muhammad Kassim and Rafiuddin. The deceased was then taken in a taxi by Ehtishamul Haq, Khaliq and Muhammad Kassim to the Civil Hospital where he was seen by Dr. Alimul Haq, the Casualty Medical Officer, who found that he had already died. A telephone message was then sent to the Police Station Risala, which was recorded at that Police Station at 8*54 p.m. as a result of which the S. H. O. Mr. Kazim Raza, and the Sub-Inspector of Police Mr. Jamil Akhtar Kiyani came to the Civil Hospital where the S. H. O. recorded the statement of Ehtishamul Haq at 9-20 p m. which has been treated as the F. I. R. in this case. From the hospital Kazim Raza came to the scene of offence where he prepared a mushirnama of the scene of offence. At the scene the first informant Ehtishamul Haq also gave the S. H. O. a sealed packet which had been given to him by Dr. Fazal Muhammad Khan and which contained cutpieces of the pajama worn by the deceased. By this time the Deputy Superintendent of Police Mr. Noor Khan, who had also information of the incident by the telephone message already mentioned, reached the scene and took over the investigation of the crime, from the S. H. O. and recorded the further statement of Ehtishamul Haq as also the statements of Khaliq, Muhammad Kassim, Muhammad Sadiq, Rafiuddin, Haji Abdul Salam and others. In the meantime Mr. Kiyani had taken the statement of Ehtishamul Haq recorded at the Civil Hospital for transcription in the F. I. R.
Book in which it was transcribed at 9-40 p.m. He came back to the Civil Hospital where Mr. Raza directed him to search for the appellant. Mr. Kiyani received spy information as a result of which he was able to arrest the appellant from a street near the Light House Cinema from where he took him to the Police Station. At the Police Station he was searched and as a result a knife wrapped in a blood-stained handkerchief was recovered from the pocket of his trousers. This knife as also his clothes were then secured, and subsequently sent to the chemical analyser for examination. The appellant was also medically examined and was found to have lacerated wounds on his person.
The investigation was then completed and the appellant sent up for trial with the result already stated.
3. The main evidence upon which the prosecution relied was that of the eye-witnesses whom I have already mentioned. Of these Ehtishamul Haq was admittedly employed at the shop a, fact which has not been challenged by the appellant. Similarly Muhammad Sadiq lives in Picture House Street and was at the shop of Muhammad Fazal Chappalwala which also is in the same street.
Khaliq Ahmad was a partner of the deceased and it was usual with him to come every day in the evening to the shop and look at the accounts. Muhammad Kassim also has a chappal factory in the same street. Raliuddin also is a chappal shop owner and has a shop in the Thathai Compound which is at the back of the Picture House Street but his mother was living in the Picture House Street and, at the time of the occurrence, he was on his way to see his mother when he passed by the chappal factory of the deceased. Finally Haji Abdul Salarn again has a shop in the Picture House Street. All these, therefore, were witnesses whose presence at or near the scene was natural, and nowhere in the cross-examination of any of them has it been suggested otherwise. It is true of course that the street is a crowded one and besides the witnesses many other persons would also naturally be present and a few others, it does seem, were examined in the course of the police investigation. But where a crime takes place in a crowded locality it is hardly to be expected that the prosecution should examine all the witnesses who saw or could have seen the incident and, unless it were to be suggested that there were other witnesses who saw the crime and who would have given a different version of the incident or named some body else as a culprit, I do not see why the evidence of natural witnesses should be discredited merely because others also could have been examined. Nowhere in the cross-examination has anything been brought out which would tend to show that the evidence is inherently incredible, unacceptable or incompatible with known circumstances which would belie it.
4. The suggestion of the learned counsel who appeared before us on behalf of the appellant was that in examining the accounts the two partners fell out as a result of which Khaliq Ahmad took up a rapi, that is, a sharp-edged instrument used in the making of shoes, stabbed the deceased with it and that thereafter Khaliq Ahmad conspired with Ehtishamul Haq to implicate the appellant falsely. In the course of the statement made by the appellant before the committing Magistrate he stated merely that there was a dispute between the parties and that when Qayamuddin died they involved him in this case. He did not then state whom he meant by the word "parties" nor who the persons were who were responsible for involving him. In the Sessions Court the suggestion was directed against the police and he stated that he was known as a Dadagir of the Mohallah and that when the police got this opportunity they implicated him falsely. In the course of cross- examination of the witnesses the suggestion was made only to witnesses Ehtishamul Haq and Khaliq Ahmad. To the former the suggestion was that Qayamuddin was murdered in the course of a quarrel with his partner, who actually stabbed him was not suggested. To Khaliq Ahmad the suggestion was made that he and the deceased had quarrelled with each other over the accounts and that they then caused him injuries with a rapi: the word "we" in the deposition presumably refers to the witness himself and Ehtishamul Haq but they were not expressly mentioned. Before us reliance was sought to be placed upon the fact that witness Ehtishamul Haq admitted that Muhammad Kassim was the brother of one Muhammad Maulana Hamid who had been adopted by Khaliq Ahmad as his son while Raliuddin was a cousin of the deceased. Curiously enough the relationship of Muhammad Kassim and Khaliq Ahmad was put neither to Khaliq Ahmad nor to Muhammad Kassim while Rafiuddin's relationship to the deceased is obviously of no consequence unless there was some material to show that the conspiracy to involve the appellant or any body else in place of Khaliq Ahmad was one to which the relations of the deceased were also a party.
5. Reliance was then placed upon two discrepancies in the evidence of the witnesses. While Ehtishamul Haq said that the two partners had finished their business and they were about to close their shop when the incident occurred. Khaliq Ahmad said that they were still examining accounts at the time. Rafiuddin put the incident even earlier by implication in that he said that one or two Pathan servants of the shop were also still there. The other discrepancy was that Ehtishamul Haq claimed to have removed the deceased to the Civil Hospital along with Kassim and Khaliq Ahmad while the witness Rafiuddin did not mention Ehtishamul Haq but said that he had been taken by Kassim and Khaliq Ahmad only. In my view these discrepancies are of too minor a character to belie the testimony of witnesses who were giving evidence about two years after the event. Much less can I view then as evidence of a sinister plot to substitute the name of an innocent person for the real culprit. Indeed acceptance of the suggestion made by learned counsel involves the acceptance of a much larger conspiracy. We must then believe that not only were the relations of the deceased called and they sat in conference of the witnesses with whom they hatched a plot but that they succeeded within the course of half or fth of an hour to win over at least three police officers, namely, the S. I. P. Jamil Akhtar Kiyani, the S. H. O. Kazim ;'?fcaza and the Deputy Superintendent of Police Noor Khan. Why the witnesses or the relations of the deceased should have consented to this we are not told and I think that on the evidence the suggestion is a fantastic one. Nor does the fact that the S. H. O. claims to have recorded the statement of the first informant at the hospital, while Ehtishamul Haq says that it was Kiyani who did so, either support the suggestion or otherwise discredit the witnesses. The statement which is Exh. 19 is signed by Kazim Raza and the presence of Kiyani is mentioned in it inasmuch as it bears an endorsement that he was asked to take the statement to the police station for registration. If in those circumstances Ehtishamul Haq stated that it was taken down by Kiyani rather than Kazim Raza I do not see that it makes much difference or that it is evidence of any deep conspiracy against the appellant.
6. The evidence against the appellant received strong corroboration. If corroboration was needed, by the fact that the knife recovered from him was found on chemical analysis to bear stains of human blood. His clothes were also found bloodstained. It is true of course that the accused himself had four lacerated wounds and, although the doctor who examined him, Dr. Fazal Muhammad Khan, does not say that the appellant must have bled from these wounds it does not appear to me unlikely that he did in fact bleed from them. All these lacerated wounds were either upon the face or the head and some slight bleeding might well be expected from them although it would have been more satisfactory if the doctor had told us so. However, the discovery of blood upon the clothes of the accused is really of no consequence since the blood found on his shirt belonged to group 'B' while that on the trousers and banyan was insufficient for determination of the blood group. The blood on the other hand found on the clothes of the deceased was that of group A; clearly therefore, the blood upon the appellant's clothes was not that of the deceased and is, in the circumstances, no evidence against him being explained by the injuries on his own person. The injuries, however, though the appellant says he had been beaten by the police after his arrest, are compatible with the prosecution case because all the witnesses say that Ehtishamul Haq in an attempt to save the deceased did attack the appellant with a stick. The knife in question, however, stands on a somewhat different footing although here again the blood was not sufficient for the determination of the blood group. But there were no injuries of a knife upon the person of the appellant and there is no explanation as to how his knife came to be blood-stained. Indeed the appellant in the course of his statement under section 342 denied that the knife was his or that it was secured from him nor could learned counsel here offer any explanation beyond the suggestion that the knife has been foisted upon him by the police. The injuries on the appellant, therefore, and the recovery of blood-stained knife from him are in my view substantial corroboration of the evidence of the witnesses that the appellant committed this crime, though I place no reliance upon the seizure of the blood-stained clothes. Much was made by counsel for the appellant of the evidence relating to the seizure of the deceased's clothes. The witness Ehtishamul Mohd. Asif Haq said that he has been given the clothes of the deceased which 'state he handed over to the police and Khaliq Ahmad speaks of the__________ recovery of the clothes from Ehtishamul Haq which had been Tufuil Ali A. given to him by the doctor and the mashirnama made of these Rehman, C) speaks of the S. H. O. recovering them from the Sub-Inspector, Exh. 14 on the other hand is a mashirnama whereby the pajama said to have been taken into custody from Ehtishamul Haq by the S. H. O. and there is another mashirnama of the seizure of clothes Exh. 29 which merely speaks of the blood-stained clothes of the deceased being secured without mentioning what the clothes were. I think this is all really explainable. The S. H. O. says that he saw the dead body in the hospital and at that time it had a kurta and a banyan on it but no pajama.
What is said to have been given by the doctor, that is, Dr. Muhammad Fazal Khan, who at no time examined the deceased, to Ehtishamul Haq was a number of pieces of clothes cut from the pajama of the deceased. These were then given by Ehtishamul Haq to Kiyani who again in turn gave them to S. H. O. On each of these two occasions, a mashirnama was made. If anything had depended upon the clothes I should have held that it has not been established that these clothes were taken from the person of the deceased as no body has said so.
But they are indicative at the most of the death of the deceased which is in any case proved otherwise. Nor is the evidence in any sense incriminatory of the appellant and whatever the confusion, therefore, upon this point, I do not think that anything depends upon it. Certainly it is no indication of a conspiracy against the appellant as learned counsel desired us to infer.
7. I turn next to the question as to what is the offence committed by the appellant. Dr. Muhammad Umar Khan who performed the post-mortem examination upon the deceased found the following injuries:
(1) Left shoulder on outer side Y x "x muscle deep.
(2) Left upper arm middle of outer side Y x x skin deep.
(3) Left upper 3" medial to injury No. 2 transverse.
(4) Right thigh upper and inner side l'x|'x vertical muscle deep cutting muscles upwards and back cut Rt. femoral artery.
(5) Dorsal side left thumb at root l"x|'x skin deep.
It is obvious that none of these injuries excepting injury No. 4 has resulted in the death and indeed the doctor has said so. It is no body's case that the appellant had any previous enmity with the deceased or that he had gone to the shop of the deceased with any intention of picking up a quarrel with him or causing his death. The incident was admittedly sudden and started as a result of the deceased taking exception to the appellant loitering near his shop. Thre is, therefore, nothing but the injuries themselves from which the appellant's intention can be inferred. None of the injuries are upon what is ordinarily regarded as a vital part of the body and except the injury upon the thigh none are very serious. It seems to me, therefore, that if the appellant's act amounted to murder it must do so by reason of coming under clause 'thirdly' to section 300.
The injury actually inflicted was undoubtedly sufficient in the ordinary course of nature to cause death and it is not necessary under clause thirdly that there should either be an intention of causing death or even an intention of causing a bodily injury sufficient in the ordinary course of nature to cause death provided that the injury intended to be caused is in fact sufficient whether or not the culprit knew that it would be sufficient or that he intended it to be sufficient. The test is purely objective: if the bodily injury intended to be caused is itself sufficient in the ordinary course of nature to cause death then murder not merely culpable homicide not amounting to murder is the offence. But the question is whether the appellant did in fact intend to cause such an injury. The part of the body upon which the injury is caused is not one which a lay man would ordinarily think to be vital. The circumstances of the case are such that premeditation is ruled out. The other injuries in fact would seem to indicate that there was no such intention and I do not think that it would be safe to hold that he deliberately aimed at the femoral artery which is not a spot of the body at which it is easy deliberately to reach. The question of the intention is to be inferred in such circumstances came up for consideration in the case of the Additional Advocate-General v.
Muhammad Siddiq (1) in which Mr. Justice Mahmood expressed himself thus: "(7) Learned counsel for the State has urged that the case is covered by clause 3rdly of section 300, P. P. C. This clause reads as follows: If it (the act) is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
The words "intended to be inflicted" appear to me to be very important. If instead of "bodily injury intended to be inflicted" the words were "bodily injury inflicted" then one could say in the present case that since the doctor had described the injury found on the body of the deceased as sufficient in the ordinary course of nature to cause death, the present case would be covered by clause thirdly of section 300, P. P. C. and the appellant would be considered as having been guilty of murder. But as it is, the words are "bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." Clause 3rdly of section 300, P. P. C. appears to me actually to be an amplification of the second ingredient of culpable homicide given in section 299, P. P. C. namely "or with the intention of causing such bodily injury as is likely to cause death." I do not think that in the circumstances of the case it can be definitely held that the appellant aimed at the brachial vessels of the forearm, the knife blow that he caused to the deceased. For, the deceased was not an inanimate object who can be supposed to have admitted of a precise aim at brachial blood vessels by his assailant. It seems to me that the appellant made only a rough sort of aim [13] on the arm of the deceased and because of the reactive move- Mohd. Asif ments of the deceased the blow by accident landed on the y" brachial blood vessels of the deceased.
8. Nor can it be said that the appellant, a lay man had the ^/hman^CJ knowledge while making the attack on the forearm of the deceased that the injury he would cause to the deceased was likely to result in death and such would fall within section 299, P. P. C. or within clause 4thly of section 300, P.
P. C. Section 300, P. P. C. fourthly, lays down that "the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or "such bodily injury as is likely to cause death and commit such act without any excuse for incurring the risk of causing death or such injury as foresaid." Learned counsel for the appellant has cited Kottengadan Alvi v. The Crown A1 R 1939 Mad. 269 in support of his contention that if the prosecution evidence in the case was accepted as correct the case of the appellant would fall only within section 326, P. P. C. This case arose out of an attack made by the accused with a knife on the left forearm of the deceased with the result that the radial artery pierced and the deceased died of haemorrhage soon after.
It was held in this case that the forearm not being a vital part, stabbing with knife on it which resulted in death of the victim by haemorrhage did not amount to murder or culpable homicide not amounting to murder, but to causing grievous hurt with a deadly weapon. The essential circumstances of that case appear to me to be similar to the present case that I find myself in agreement with the above-mentioned view expressed by the learned Judge. Learned counsel for the State cited the State v. Dost Muhammad PLD 1962 Lah. 792. In support of his contention that the act of the appellant fell within section 300, P. P. C. But the facts of that case were different from those of the present case. The attack in that case was made by a .12 bore gun and it was held that the case of the accused fell within clause 4thly of section 3(0, P. P. C. I do not think that the finding that the learned Judges arrived at in that case, would be justified on the facts of the present case."
So far as the injury alone is concerned, a closer case is to be found in the case of Muhammad Siddiq v. The State (1), decided by the Supreme Court of Pakistan. In this case their Lordships of the Supreme Court were able to find such an intention as is envisaged by clause 3rdly of section 300 and their Lordships observed: "It was next contended by the learned counsel for the appellant that as the injury was caused on the left thigh of the deceased which is not a vital part of the body, the appellant should be given a lesser penalty of transportation for life.
The contention of the learned counsel has not impressed me because the attack by the appellant was premeditated. He was armed with a chhuri of 9" blade and attacked the deceased with considerable force which resulted in cutting*
(1) 1970 P Cr. L J 585 femoral vein which is a large blood vessel on the thigh. It is, therefore, quite clear that he intended to cause the injury which was found on the deceased person and that injury was sufficient to cause the death in the ordinary course of nature. This case is clearly covered by the third clause of section 300, P. P. C. In the circumstances of this case the appellant does not deserve any lenient view. I would, therefore, uphold his conviction and dismiss the appeal."
It is, however, to be noticed that their Lordships are finding this as a fact and are not laying down that merely because there is such an injury, an intention of this character must be ascribed. Indeed in reaching this finding of fact their Lordships of the Supreme Court were clearly impressed by the fact that the knife in question was a chhuri with a 9" blade and that the culprit attacked the deceased with considerable force. In the present case the knife has a blade of only 4" length and it can easily have been and in fact was carried in a trousers' pocket. I have already indicated the circumstances under which the incident took place and this also must be given due weight in reaching any conclusion as to the intention of the appellant. I have, therefore, come to the conclusion that the appellant did in fact commit the crime ascribed to him but that it amounted in law to one punishable under section 326, P. P. C.
9. The question of sentence now remains to be determined. The appellant came to the scene not bent upon seeking out the deceased with whom he had no previous enmity but only casually and it was accidentally that he happened to linger at the shop of the deceased. It was the deceased who in some sense provoked the incident by calling upon him to go away which he had no right to do.
This did not of course in turn give any right to the appellant to attack, much less to kill, the deceased. There is no question, therefore, of any right of private defence but certainly the deceased also had no right to require the appellant to go away from the street which was after all a public place. It is in evidence that on this account there was also an exchange of abuses and the appellant obviously acted under some sense of resentment. In all the circumstances I do not think it necessary to take too harsh a view of the appellant's crime and I think it would suffice to impose upon him a sentence of 5 years' R. I. I would, therefore, alter the conviction from one under section 302 of the Pakistan Penal Code to section 326, P.P.C, and reduce the sentence from death to-5 years'R. I. and allow the appeal to that extent. . Conviction altered.
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