MIAN BURHANUDDIN KHAN, J.-- This appeal is by special leave granted by this Court per order dated 6-5-1980 to examine the question whether the accused /respondent's case is covered by any exception to section 300 P.P.C. And that alteration of conviction to section 304 Part I P.P.C. Was illegal; and that no sentence of imprisonment in lieu of the enhanced amount of fine was awarded.
2. Accused/ respondent No. 1, Abdul Nasir was tried by the learned Additional Sessions Judge Attock under section 302 P.P.C. For committing the murder of Muhammad Sabir, a student of 9th Class in the Cantonment Public High School, Attock. The accused was his class-mate. Muhammad Javed P.W.10 an eye witness, was also a student of the 4th Class in the same School and he lived a few yards away from the house of the deceased in the City.
According to the prosecution story, after the school closed at about 2 p.m. Muhammad Javed P.W.10 and the deceased were returning home. It is stated that when the deceased reached in front of the gate of D.C. House, Abdul Nasir the accused /respondent No.1 was already standing there. He challenged the deceased saying that he would not spare him. He took out a Chhuri from his Dab and inflicted a blow on the left flank as a result of which he fell down. A.I Khan P.W.1 who was driving a tongs, came there from the Saddar side and seeing the deceased lying wounded, he asked Muhammad Javed P.W.10 to inform the father of the -deceased about the occurrence while he waited at the spot. Muhammad Javed P.W.10 went and informed Abdul Majid P.W.11, father of the deceased about the occurrence. Abdul Majid P. W.11 arrived at the spot, and on his inquiry the deceased narrated the occurrence and having received the injuries at the hands of accused/ respondent No.1. The deceased was taken to the hospital where he later on expired.
Second witness in the case is A.I Khan P.W.1. He supported the prosecution case and stated that he was driving a tonga and having entered from the Saddar side i.e. The southern gate of the Company Bagh and was going towards the Katchery via the Bagh when he saw the occurrence.
Abdul Majid P.W.11 stated that on his arrival at the spot he found that the deceased was in his senses and informed him that Abdul Nasir accused /respondent had caused him the injuries. He further stated that there was a dispute between him and Abdul Qadir, father of accused/ respondent Nasir, over some property. Nasir accused had earlier quarreled with him on that account and this was the reason for the murder of his son Muhammad Sabir deceased. In support of his case, the prosecution produced Nazir Ahmad P.W.9 who stated that the property of the father of the accused/ respondent No.1 and that of the deceased adjoin each other; that about 4/5 months prior to the occurrence a dispute had arisen over the sharing of a wall between them; that he brought about a compromise but ASdul Majid P.W.11 did not make a separate wall and claimed that he was also a sharer in the common boundary wall.
3.Dr. Iftikhar Ahmad Qureshi P.W.12 examined Muhammad Sabir in injured condition and found a stab wound 1.1/4" x 1/3" into chest cavity deep over lateral left side of middle of chest between the 7th and 8th ribs, directed obliquely backwards medially and upwards; and an incised wound 1.1/2" x 1/2" into muscle deep over postero---medial aspect of middle of left upper arm directed forward and medially. The doctor found injury (i) to be grieveous and sufficient in the ordinary course of nature, to cause death.
Later on when Muhammad Sabir succumbed to his injuries the same Doctor performed the post- mortem examination and according to his Post-mortem Examination report Exh.P.H. The deceased was a young boy of 15 years of age and was of good health; his death was caused on account of shock and bleeding on account of injury No. (i)
The accused/ respondent was examined. He denied the charge and produced no defence.
4.The learned trial Judge came to the conclusion that respondent No. 1 Abdul Nasir had caused the injuries to the deceased with the intention to cause his death which cannot be doubted in any manner. He observed in his judgment dated 31-3-1979: "It was the last and the alternative plea of the defence counsel that if at all a case was made against the accused, it was made under section 304 P.P.C. There is nothing on record to help me to subscribe to this view. Admittedly the accused and the deceased were school-going boys. It is unexpected of a boy going to school, to take a Chhuri or sharp edged weapon with himself to school. The very fact that the accused had a Chhuri at the relevant time and at a different place than school when he attacked, suggests that he had come armed and prepared to launch such an attack. The type of weapon used, the nature of injury caused and the force with which it is caused with no corresponding injuries to the accused, suggests that this plea has no basis."
The learned Additional Sessions Judge further observed in paragraph 23 of his judgment as under: "I feel the prosecution has been able to establish its case beyond reasonable doubt against him. In the circumstances of the case section 300 of the P.P. C. Is attracted and none of its exceptions.
Even exception IV would not be attracted even if we advert to the suggestion of a fight by the defence to Abdul Majid P.W. Because possessing a Chhuri in addition to what has been discussed above, certainly amounted to taking undue advantage and an unusual act on the part of a student."
5. The learned High Court Judge, while coming to the vital point of the nature of offence, observed in paragraph 9 of his impugned judgment as under: "The next question to be considered is whether the conviction of the appellant under section 302 P.P.C. Is legal. I do not think so. The reason being that there is nothing in the evidence of Muhammad Javed pertaining to motive. The other factor is that it so appears from the nature of injuries that the intention of the appellant simply was to injure the deceased and it was sheer bad luck that he was hit in the left flank on account of which he died. This fact is supported by the medical evidence, because the doctor who performed the autopsy noticed an incised wound 1.1/2" x 1/3" chest cavity, 5" deep and an incised wound 1.1/2" x 1/2", muscle deep, over postero-medial aspect of left upper arm. The doctor admitted in cross-examination that 'the injury No.1 and 2 were in line and could be caused with a single blow of a sharp-edged and pointed weapon."
6. Learned counsel for the appellant has seriously assailed the finding of the learned High Court Judge, and contended that it was a pre-meditated attack. Accused/ respondent No.1 was fully armed with a Chhuri concealed in his Dab; way-laid the deceased; type of weapon used; the nature of injury caused and the force with which it was caused point that it was an outright case of intentional murder.
7. We have examined the entire evidence on record and the judgments of the two Courts below and find that there is force in the arguments of the learned counsel for the appellant. The act of accused respondent No.1 Abdul Nasir clearly falls within the purview of section 302 P . P. C . And none of Exceptions to section 300 P . P. C . As held by the learned trial Court, applies to the case. In the statement of Muhammad Javed P. W .10 we find a very graphic picture of the crime. He stated as under: "It was about 2 p.m. Muhammad Sabir the deceased and myself, we were returning home after the closing of the school, and were passing the Company Bagh, Attock. The deceased had reached in front of the gate of the D.C. House, which faces east in the garden, close to the road.
Abdul Nasir accused was standing there. Within my hearing Abdul Nasir said that he would not spare the deceased. He took out a Chhuri from his Dab and inflict d a blow on the left arm of the deceased which pierced through his left flank. Besides myself, A.I Khan PW tonga driver saw the occurrence who was coming from the Saddar side."
"I am of the view that the boy gave evidence with full confidence. He stood the test of cross- examination as best as is expected from a truthful witness. His evidence is full of sincerity and warmth. I am really impressed by his stance in the witness box. The witness fulfilled all the essential ingredients referred to above regarding his credibility. I, therefore, have no reason to disbelieve him."
We have also considered the question raised by the learned counsel for the appellant that the amount of fine enhanced by the learned High Court Judge to Rs.20,000 which is payable as compensation to the legal heirs of the deceased, but in default no sentence of imprisonment has been awarded to accused/ respondent. Accordingly we modify the order relating to the fine of Rs.20,000 which if recovered, shall be paid to the relatives of the deceased as compensation, and in default, the accused /respondent Abdul Nasir shall undergo 5 years R.I. Rest of the order relating to the recovery of fine as passed by the learned High Court Judge shall remain in tact. The respondent shall be arrested and required to undergo the remainder of the sentence.