GUHLAM SAFDAR SHAH, C. J.-This appeal is directed against the judgment of Sessions Judge Peshawar dated 29-11-1972, by which he found accused Arif (24) guilty under section 302, P. P. C. For the murder of Rafiq, alias Kala (22) and sentenced him to imprisonment for life and a fine of: Rs. 100 or in default further R. I. For two years.
2. The prosecution in this case commenced with `the report made to-- A. S. I. Shahzad Mir (P. W. 4) by Bashir Ahmad (P. W. 5) at 9-20 p. m. On 19-2-1971 at the Casualty Ward of the Lady Reading Hospital, Peshawar. On the basis of this report, which was sent by Shahzad Mir to Kabuli Gate Police Station. F. I. R., Exh. P. A. Was later recorded and in there would appear the following allegations:- That at about 9-20 p.m. On 19-2-1971, he (complainant Bashir Ahmad) on hearing the commotion of the children outside came out of his house, that no sooner he entered the bazar of Andarshehr than he saw the deceased injured at the hands of the accused, who was still present holding a dagger in his hand, that he tried to apprehend him but the accused managed to run away towards Chauk Yadgar, that the occurrence had been seen by Aslam, Azam, Abdul Aziz alias Bhayya and Muhammad Umar alias Kala, all of whom were present at the spot.
The motive mentioned in the F.I.R. Is that a few days before Eid the deceased had given beating to the accused but they were, due to intercessions of local residents, separated, although the accused had been nursing a grudge against the deceased and finding the opportunity stabbed him with dagger.
3. The evidence of Shahzad Mir A. S. I. Is that at about 9-00 P.m. On 19-2-1971, he was present in Asmai Gate when he was informed that a fight had taken place in bazar Andar Shehr in which a person had been stabbed, that he immediately put his uniform and rushed to the hospital and on reaching there found the deceased in Casualty Ward lying in an unconscious condition, that Bashir Ahmad, who was present there, reported him the occurrence which he tool: down in writing and then forwarded the murasala to Kabuli Gate Police Station, that after some time he prepared the injury-sheet Exh. P. B. Of the injured took into possession his blood stained clothes and later proceeded to Surgical Ward, where he was taken, in order to take down his report. But in the meantime, he died without regaining his senses. His evidence further is that at this stage he handed over the investigation of case to S. I. P. Jaidad Shah (P. W. 10) Station House Officer, Kabuli Gate Police Station, who had arrived at the Hospital Jaidad Shah has, in his evidence, confirmed this position saying that after he arrived at the Hospital he completed the remaining investigation, namely recording of the inquest-report, sending the dead body to the mortuary and recovery of blood-stained earth from the spot, where he had reached after finishing with the formalities at the hospital, recorded the statements of witnesses, arrested the accused and then challaned him in Court to stand his trial.
4. It would be pertinent to mention that the accused was previously tried on the same charge and convicted by the Additional Sessions, Judge Peshawar, under section 304, Part II, P. P. C. And sentenced to seven years R. I. And a fine of Rs. 5,000 or in default further R.I. For two years. However, his conviction was, in a revision application filed in this Court, set aside by the then learned Chief Justice on 19-4-1972, and the case remanded by him to trial Judge for fresh disposal according to law. In his second trial however the accused was not as lucky as he was in the previous trial, for he has mow been convicted under section 302, P. P. C. And sentenced to imprison--ment for life, although in the matter of fine his sentence is considerably -lesser than the one awarded to him previously. .
5. The prosecution, in order to support its case, relied on motive and the ocular evidence of Bashir Ahmad (P. W. 5), Muhammad Umar alias Kala (P. W. 6), Abdul Aziz alias Bhayya (P. W.), Muhammad Azam (P. W. 8) and Muhammad Aslam (P. W. 9). As against this, the accused did not produce any witnesses in defence. And all that he has said in his statement under section 342, Cr. P. Code is that he has be n falsely involved in this case at tie instance of local police.
6. As regards the occurrence itself, it is not in dispute. In any case, the death of Rafiq has been satisfactorily established by Dr. Abdul Aziz Khan, C. M. p. Lady Reading Hospital, Peshawar, who had examined him in injured condition at 9-10 p. m. On 19-2-1971 and found the following injury on his person:-
(1) An incised wound 1--- x ----- on the left lateral aspect of thigh and piercing to the medial side of the thigh (deeping to the other side of the thigh) ----- x 1/8---.
His evidence is that when he examined Rafiq, he found him suffering from shock on account of this injury, which was caused to him by sharp-edged weapon. His evidence further is that when Raid succumbed to these injuries he performed post-mortem examination on his dead body and found the-- following internal injuries on his person:- His femoral artery and veins were cut. The lateral muscles of his thigh were injured.
7. The learned counsel for the accused has taken, us through, the evidence of the witnesses for prosecution as also the impugned judgment. The learned trial Judge has convicted the accused only on the ocular evidence of Muhammad Umar (P. W. 6) and Abdul Aziz alias Bhayya. (P. W. 7), disregarding the evidence of other three eye-witnesses who, according to him, were the relatives of the deceased and also had not seen the occurrence. Vie find ourselves in agreement with this conclusion, for apart from, being related to the deceased the evidence of Bashir Ahmad, Muhammad Azam and Muhammad Alam suffers from so many contradictions that it would be difficult: to believe them. In the case of Muhammad Umar and Abdul Aziz, however, the position is different. Both of them are completely disinterested and natural: witnesses, for the occurrence had taken place right in front of their-shops. We have gone through their evidence and found them to be consistent and. In spite of the lengthy cross-examination to which, they were subjected nothing seems to have been extracted from them so as to cloud their testimony. We, therefore, entirely concur with the finding of the learned trial Judge---that it was accused who was responsible for causing injury to Rafiq in his --thigh, which, due to excessive bleeding, later occasioned his death.
8. The learned counsel for the accused has indeed not seriously challenge the conviction of his client. But what he says is that in view of the-- evidence on record his client could not have been held guilty under --section 302, P. P. C. He argued that, at best, he could be guilty under section 304, Part II, P. P. C. And consequently liable to a lesser penalty.
9. It appears to us that in view of the evidence on record, this contention is misconceived. For the accused does not seem to be guilty of---murder under section 300, P. P. C., nor of culpable homicide under: section 299, P. P. C. So as to attract to his case the application of section 304, Part II, P. P. C. In order to make ourselves clear on this point, it would be proper to reproduce both these sections which respectively read as--under:- ---299. Culpable homicide.---Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder.---Except in the cases hereinafter excepted, culpable homi--cide is murder, if the act by which the death is caused is done with the intention of causing death, or--- 2ndly.---If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--- 3rdly.---If it 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, or--- 4thly.---If 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 commits such act without any excuse for incurring the risk of causing death or such injury as, aforesaid."
10. The evidence of Muhammad Umar and Abdul Aziz is that before' Rafiq was attacked with dagger by the accused, the latter had been abusing the Kashmiri community (of which the deceased was a member) and when the deceased told him not to malign the whole community, he whipped out his dagger, gave Rafiq a blow in his thigh and then stood at a distance stills armed with the weapon. These two witnesses have not said anything about the previous fight between the parties in which the deceased had given, beating to the accused and thus the motive part of the prosecution case must --be held to have remained unproved. It would therefore be obvious that the accused would not be guilty of culpable homicide under section 299,-- P. P. C., much less under section 300, P. P. C., for by inflicting one stab wound in the region of thigh his intention of causing death must be ruled out and-- so his knowledge that the injury in question was likely to cause death in the ordinary course of nature. It is true that in consequence of the said injury the femoral artery of deceased was cut and thus he lost his life due to excessive bleeding. But all the same this would not render the case of accused any graver, for it could not be expected of him that his attack would result in the type of damage, which later caused the death of deceased. If --any authority is needed in support of this conclusion, reference may be made to a Division Bench judgment of Madras High Court in the case of Public Prosecutor v. Ramaswami Nadar (AIR 1940 Mad. 476), in which upon identical facts, their Lordships observed thus: "The case is very different from the frequent cases of stabbing with a knife or dagger. If a man armed with a knife or dagger stabs another in the arm or in the leg it can generally be urged on his behalf that he was not trying to kill, and that he was not trying to inflict such a bodily injury as is sufficient in the ordinary course of nature to cause death. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. If therefore a stab with a knife or a dagger aimed at an arm or a leg severs an artery and the injured man dies as a result, it may be quite reason--able to argue that the offence is not one of culpable homicide and. That the assailant can only be presumed to have intended to cause hurt or grievous hurt, with a dangerous weapon."
11. Having ruled out the application of sections 299 and 300, P. P. C., to the facts of this case, the case of accused would not fall under section 304, P. P. C. Rather, it would fall under section 326, P. P.
C. Which reads as under:- "Voluntarily causing grievous hurt by dangerous weapons or means.---- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing-- or cutting, or any instrument, which used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance --or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is --deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
As regards the sentence, however, the accused has already undergone the ordeal of two trials and thus the sentence awarded to him in his previous trial would, in the interest of justice, appear to be adequate. We accordingly convert his conviction from section 302, P.P.C. To one under section 326, P. P. C. And reduce his sentence from life imprisonment to seven years R. I. The sentence of fine, however, imposed on him in the present trial would call for no interference and the same is maintained. With this modification, this appeal is dismissed.
K. B. A.