Z. A. CHANNA, J.-Appellant Abbas, a 50 years old shop-keeper, has been sentenced to death for the murder of his first cousin, Abu Dakar, by a learned Additional Sessions Judge, Karachi, by his judgment delivered on 29-12-1973. The appellant has appealed to impugn his conviction and sentence and his case has also been referred to us by the learned Additional Sessions Judge for the confirmation of death sentence.
2. The prosecution case, shortly stated, is that deceased Abu Bakar was running a general store, under the name of Cheap General Store, in Haroon Building on Bunder Road, Karachi. The appellant came to the house of the deceased and requested for a loan on the ground that he was required to pay interest to some Pathans. The deceased asked the appellant to come to his shop and the appellant came there at about 11 a.m. He sat with the deceased and had tea with him. At about 1- 30 p.m., he again requested the deceased for money, but the latter told him that he was unable to give any money as upto then no business had been done in the shop. On this, the appellant is said to have at once got up, taken out a knife (churri) from underneath his shirt and given a blow to the deceased in the chest on the right side. The appellant tried to give a second blow to the deceased, but the latter warded off the same by putting up his hands. The incident was witnessed by the deceased's son, Shaukat Hussain, his nephew, Abdul Kadir, his brother-in-law, Abdul Karim, and two of his employees, Abdul Wahid and Ibrahim, who rescued the deceased. The deceased was then brought in a car by his son to the Civil Hospital, Karachi, from where Dr. Muhammad Ashfaq rang up the Eid Gah Police Station to communicate about the deceased having been brought in a seriously injured condition to the hospital. This information was recorded at 1-40 p.m. In the station diary of Eid Gah Police Station and S. I. P. Yahya Siddiqui proceeded to the Civil Hospital, where he recorded the statement of the deceased in the presence of the son of the deceased and the duty doctor, who also appended his signature to the statement. This statement was then sent to the Eid Gah Police Station where it was registered as the F. I. R. The S. I. P. Then went to the scene of offence where he found the appellant in the custody of the servants of the deceased. The S. I. P. Found bloodstains on the floor of the shop of the deceased. Near the stains, a bloodstained knife was lying, which the S. I. P. Secured and prepared mashirnama, Exh.
13. The S. I. P. Thereafter recorded the statements of P. Ws. Abdul Kadir, Ibrahim. Abdul Karim, Abdul Wahid and Amin. The appellant, who was found to have injuries on his hand, was referred to the Civil Hospital for treatment and certificate. On 11-7-1970, deceased Abu Bakar died of his injuries, despite an operation having been performed on hire. The knife secured from the scene of offence was sent to the Chemical Analyser, who has reported, vide Exh. 27/A, that the blood thereon is of human origin.
3. The deceased was originally examined at the Civil Hospital by Dr. Muhammad Ramzan. The record of the case shows that this doctor was examined by the learned Additional Sessions Judge on 10-11-1973, but neither the injuries which the doctor found on the person of the injured have been mentioned nor has the deposition been signed by the learned Additional Sessions Judge. In the circumstances, the evidence of Dr. Ramzan has had to be excluded. The autopsy on the deceased was performed by Dr. Muhammad Umer Khan who was then Police Surgeon at Karachi. According to him he found the following external injuries on the deceased.
"(1) Incised wound right side lower part of chest 2" lateral mid sternal line oblique in direction. It was stitched and partly healed. The wound was 1----- long and was cavity deep.
(2) Incised wound on right palm and wrist near root of thumb. It was stitched and was 1----- long.
(3) Incised wound left thumb palmar side --" x 1/6", skin deep.
(4) Incised wound just to left of median line stitched 7----- on abdomen (wound of operation).
(5) Incised wound on front of neck below thyroid cartilage and appeared fresh (trechotomy i.e. Operation was done)."
It may be mentioned that injuries Nos.4 and 5 were the result of the opera--tions, which were performed on the deceased and not due to the knife blows given to him. The internal examination of the deceased revealed two lacerations on the liver. External injury No. 1 was grievous in nature and the probable cause of the death of the deceased, according to the Police Surgeon, was internal haemorrhage and shock in an already diseased heart patient.
4. The appellant at his trial made the following statement:--- "Deceased owed me Rs. 50 towards the cost of provisions which he hard purchased from my store on credit. I had gone to demand the money at his house at 7-30 a.m. He told me he had no money and asked me to come to his shop at 11 a.m. I went to his shop at 11 a.m. He offered me tea. Then said he could not make any arrangement for payment and wanted two or three days. On my insistence he asked me to wait for one hour or two. At about 1-30 p.m. He misbehaved with me and told his men to turn me out. I resisted and hit Ibrahim who fell down. Deceased then took a churri and attacked me but I warded off the attack and got injury in any hands. I do not know how the deceased was injured."
5. The main evidence against the appellant is the ocular testimony of P, Ws. Abdul Wahid, Abdul Karim, Shaukat Hussain, Abdul Kadir and Ibrahim, all of whom have substantially supported the prosecution version and testified that the appellant had stabbed the deceased with a knife in the chest and had also attempted to give another blow to the deceased, who warded off the same by putting up his hands. Although, P. W. Shaukat Hussain is the son of the deceased, P. W. Abdul Karim is his brother-in-law P. W. Abdul Kadir is his nephew and P. Ws. Abdul Wahid and Ibrahim, were his employees, their relationship or connection with the deceased by itself does not make them inimical or hostile to the appellant and afford a ground for the rejection of their testimony. We have already referred to the fact that the deceased and the appellant were closely related, being first cousins, and hence the relations of the deceased would also be related in some degree to the appellant. The testimony of P. W. Abdul Karim, which is similar to the evidence of the other eye- witnesses, is specialty important, as not only he is the brother-in-law of the deceased but also the maternal cousin of the appellant. The F. I. R. Was lodged by the deceased himself soon after the incident and contains substantially the same version of the incident as has been given by the eye- witnesses whose names appear in the F. I. R. The appellant himself has not denied his presence in the shop of the deceased at the relevant time and was in fact arrested by the police from there.
The weapon of offence, namely, the churri (knife), was also secured by the police from the same shop, where blood stains were found on the ground. On this knife, as already indicated, human blood has been found by the Chemical Analyser. It is thus clear that it was this knife which was used in the fatal assault on the deceased.
6. The contention of the appellant that the deceased owed him money and he had gone to recover the same has been denied by all the witnesses. According to them, the appellant had gone to borrow some money from the deceased. The F. I. R., which was lodged by the deceased himself at the Civil Hospital while he was seriously injured, also shows that the appellant had gone to the deceased in his capacity as a close relation to help him out with some money. It appears to us that the appellant, who was apparently very hard pressed for money, became desperate and lost control of himself when he thought that the deceased was putting him off by telling him that he could not pay him anything that day and that he may come after two or three days. It was in these circumstances that he appears to have attacked the deceased, whom he thought was not willing to help him in his dire need. We are, however, unable to accept the version of the witnesses that the appellant had the churri, with which be assaulted the deceased, on his person and had concealed it under his shirt. We have seen the churri which is are ordinary knife normally used in shops for cutting sootly and tape for tying packages. It has a blade of 6' and a handle of 4' and it cannot be folded. We find it impossible to believe that the appellant could possibly have hidden this unweildy weapon under his shirt. If he toad done so, it would not have been possible for him to sit down, but according to the witnesses tire appellant sat with the deceased for about 2-- hours. We are of the opinion: that in the heat of the amount, angered by the refusal of the deceased to accede to his request for money, the appellant seems to have picked up the churri, which was very likely lying on a counter of the shop, anti attacked the deceased with the same.
7. There remains for consideration the question whether the appellant intended to cause the death of the deceased. The injury on the left hand of the deceased was only skin deep and apparently the injury on his right hand also was not very deep. It is thus clear that in causing these injuries no great force was used. No doubt, the third injury caused to the deceased was on a vital part, namely in the chest region, and was not only cavity deep, but had also damaged the liver. The Police Surgeon, however, has described this injury as merely grievous in nature and though, in his examination-in---chief, he has stated that it was responsible for the death of the deceased, he has not opined that this injury was sufficient in the ordinary course of nature to cause death.
According to doctor, the deceased had a diseased heart, his both cornaries and north calibre were diseased the uertic and mitral valves were hard and calcified, and the deceased also evidently was suffering from diabetes. He has also admitted that he cannot definitely pin-point the cause of death, but suggested that it was on account of loss of blood and injury to the liver and the condition of his diseased heart coupled with diabetes. The test laid down by their Lordships of vie Supreme Court in Rahimuddin v. State (1973 SCMR 327) for determining whether an act which has resulted in death was committed with on intention of causing death or merely with knowledge which was likely to result in death is thus stated by Hamoodur Rahman, C. J.:- "Where an injury is caused to another person, which is not on a vital part or is per se not sufficient in the ordinary course of nature to cause death but is still inherently dangerous, it may well be said that the injury was caused merely with the knowledge that death is likely to ensue but there was no intention to cause death or an injury likely to cause death."
8. As already indicated, in the instant case, there is no evidence to chow that any of the injuries which were caused by the appellant to the deceased were sufficient in the ordinary course of nature to cause death. It is clear from the medical evidence that the diseased heart and diabetic condition of the deceased were also important factors which contributed to his death. We may further mention that apparently two operations were performed on the deceased, one being on the very day when be died. This operation was made in the region of his neck. Since the Surgeon who per--formed these operations has not been examined, we are not in a positionto state how far these operations contributed to the death of the deceased. In the absence of the evidence of the Surgeon who performed the operations, the possibility of negligence in performing the operations which may have contributed to the death of the deceased, cannot be excluded. In view of these circumstances, we are of the opinion that the appellant can only be, saddled with the knowledge that the injury which he caused to the deceased on his chest, which is undoubtedly a vital part of the body, was likely to result in death but not with the intention to cause death.
9. In the view that we have taken, we would alter the conviction of the appellant from one under section 302, P. P. C. To 304, Part II, P. P. C. And would sentence him for the said offence to R. I. For seven years. Subject to the above modification, the appeal stands dismissed. The reference for the confirmation of the death sentence is rejected.