1. ZAFFAR HUSSAIN MIRZA, J: --Leave to appeal was granted in this case against the judgment of the Division Bench of the Sindh High Court, dated 22nd March, 1986, in order to examine whether the High Court was justified in view of the facts and circumstances appearing in the evidence, to alter the conviction of Sheroo Machi, respondent No.1, from one under section 302, P.P.C. To section 304, Part-11, P.P.C. As well as the sentence imposed by the High Court.
2. The first respondent was tried under section 302, P.P.C. For the murder of Ghulam Nabi alias Kamani, by the learned Vth Additional Sessions Judge, Hyderabad. The occurrence in this case took place on 25th March, 1984 at about 1-45 p.m. Near the Mental Hospital Chowk towards west at Hyderabad. The F.I.R. Was lodged by one Qurban Ali at Police Post Giddu at about 2-30 p.m., stating that he was employed as a Constable in the Excise and Taxation Department, Hyderabad and was assigned the duty of distributing notices in G.O.R. Colony and Latifabad Units Nos.2 and 3. On the day of occurrence, after performing his duty as he reached the Mental Hospital crossing at about 3-45 p.m. He saw the deceased Ghulam Nabi, who happens to be his caste-fellow present there near a board (hording). Muhammad Ahsan, Rickshaw Driver, was also present there. Suddenly the first respondent emerged from the side of the board, armed with a knife in his hand. He at once raised a Lalkara at the deceased, saying that he would not be spared that day and plunged the knife in the chest of the deceased. The deceased started bleeding and holding his hand on the wound, he started running towards the bridge on the Rani Bagh Road. He. However, fell down after crossing udder the bridge. The first respondent also decamped from the scene towards the back side of Indus Petrol Pump. The complainant did not chase the culprit. The witnesses then picked up the injured for taking him to the hospital but he expired on the way to the hospital.
3. The motive ascribed by the complainant was that a fight had taken place between the first respondent and the deceased one year ago and it was on account of that enmity that the first respondent had done to death the deceased.
4. At the trial the prosecution relied upon ocular testimony furnished by P.Ws. Qurban Ali, Muhammad Ahsan and Liaqat Ali. The other piece of evidence was the recovery of knife from the fold of the Shalwar of the said respondent at the time of his arrest on the same day at about 7-00 p.m.
5. Although, the knife appeared to have been washed but as it was smelling of blood, it was sealed and referred to the Chemical Analyser, whose report was in the positive. The third piece of evidence on which the prosecution relied was the motive. The motive has already been mentioned above.
6. Lastly, reliance was placed on the medical evidence. The doctor who performed the post-mortem examination on the body of the deceased found the following injuries on it: "A stab wound 4 cm x 1'cm x cavity deep present over the left side of the front of the chest. 5 cm below and medial to the left nipple. 5 cm to later to the mid sturnal fine. No other external injury noted."
7. In the opinion of the doctor the cause of death appeared to be haemorrhage, shock and injury to the heart which resulted from the stab injury described above. The injury appeared to be the result of sharp-edged weapon like knife or dagger and was stated to be ante-mortem.
8. The first respondent when examined under section 342, Cr.P.C. Made a total denial of the allegations against-him by the prosecution. He asserted that the prosecution witnesses were related to the deceased and were therefore deposing against him falsely. The said respondent was also examined in defence under section 340(2), Cr.P.C., in which deposition he stated that on the night following the day of the occurrence, he was arrested from his house while he was asleep and involved in this case. He stated that he had informed the police that he had enmity with one Qado Memon owner of Shani Hotel, who had hired the deceased as a result of which the deceased had given him knife blows. In respect of this incident respondent No.1 had lodged an F.I.R. He further stated that Qado Memon is an influential person and with his influence he managed to have the respondent discharged from the hospital before the healing of his injuries. Subsequently, deceased was challaned in the Court in that case of hurt but as he was prevented from appearing in evidence, the Court acquitted the deceased. It was on account of this enmity, he claimed, that he was involved in the present case.
9. The trial Court upon assessing the evidence found the ocular testimony trustworthy and corroborated by the evidence of recovery as well as the motive. The first respondent was accordingly convicted under section 302, P.P.C. And section 13-D of the Arms Ordinance. Under the first count the said respondent was sentenced to death and under the second count to R.I. For a period of one year and to pay a fine of Rs.500 or. In default to suffer further R.I. For three months. In addition respondent No.1 was ordered to pay compensation of Rs.5,000 to the heirs of the deceased, in default whereof he was to suffer R.I. For a period of six months.
10. The case came up before a Division Bench of the Sindh High Court for confirmation of the death sentence under section 374, Cr.P.C. As well as on an appeal preferred by the first respondent. The learned Judges of the Division Bench went through the evidence and independently appraised the same in the light of the contentions advanced on behalf of the parties. They found the ocular testimony of P.Ws. Qurban Ali, Muhammad Ahsan and Liaqat Ali to be consistent and reliable. The evidence of these three eye-witnesses was found to be corroborated by the testimony of P.W.
11. Abdul Ghafoor Constable who had lifted the deceased and removed him to the hospital in the rickshaw along with the other P.Ws. As regards the circumstantial evidence the learned Judges found the recovery .Of the knife from the possession of the first respondent fully supported by reliable witnesses. The Chemical Analyser's report was not challenged by the defence. Learned Judges also accepted the evidence of motive which was found to be supported by the own testimony of the first respondent himself in which he had admitted that the deceased had been tried and acquitted in a case of hurt registered by the first respondent with the police. Therefore, the learned Judges came to the conclusion that there existed enmity between the deceased and the first respondent.
12. Having come to these conclusions the learned Judges reached the finding that "the case against the appellant is proved to the hilt". However, while considering the question as to what offence had been committed by the first respondent in the circumstances of the case the learned Judges held that the offence committed by the respondent fell under section 304, Part II, P.P.C. In support of this finding the reasons recorded by the learned Judges read as follows: "There is only one injury on the person of the deceased though the appellant had opportunity to cause more blows to the deceased. The witnesses did not go near the place of, occurrence and according to the complainant himself due to fear he did not go at the place of incident. The deceased after receiving the injury started running away and the appellant also ran away from the Wardat. He had not chased the deceased to repeat the attack. There was only one injury and according to the doctor the injury on the chest of the deceased was probably caused with the striking of knife horizontally. It means the injury was not vertical. According to the doctor the cause of death appeared to be haemorrhage, shock and injury to the heart which resulted from the stab injury described above. In these circumstances we are of the opinion that the case does not fall under section 302, but falls under section 304, Part II as the essential ingredient of this part is that the act is done with the knowledge that it is likely to cause death. The nature of the injury would show that the accused had the knowledge that such injury would cause and is likely to cause death. We, therefore, convert the conviction of the appellant from section 302 to section 304, Part II.
13. The sentence is altered to six years' R.I."
14. The learned Judges, however, maintained the order directing the payment of compensation and the conviction as well as sentences recorded under section 13-D of the Arms Ordinance. The sentence of death was not therefore confirmed and the appeal of the first respondent was dismissed with the modification as stated above vide the impugned judgment.
15. In support of this appeal, it has been urged by the learned counsel for the appellant that the learned Judges of the Division Bench had erred in holding that the case of the first respondent did not fall under section 302, P.P.C. But that the offence committed by him was one under section 304, Part-II. Relying on Habib Khan v. State PLD 1974 Lahore 450, he submitted that the established facts on the prosecution evidence make out that the act of the first respondent, in inflicting a knife blow on the chest near the heart region of the deceased, was an act done with the intention of causing his death or at any rate with the intention of causing such bodily injury as the offender knew to be likely to cause death of the deceased or with the knowledge that such injury in all probability would cause death. Therefore, the ingredients of section 300, P.P.C. Were fully satisfied and unless the said respondent brought his case within the purview of the Exceptions to that section, the conviction could not be altered to culpable homicide not amounting to murder under section 304, P.P.C. He also placed reliance on Khalid v. State 1975 SCMR 500, Muhammad Siddique v. State 1970 SCMR 313 and Allah Wasaya v. State PLD 1982 SC 208 in support of his submissions.
16. Mr. Faizanul Haq, learned counsel appearing on behalf of the first respondent has however supported the judgment of the High Court. He submits that as the first respondent was free without any obstruction to inflict further blows with the knife to the deceased, and did not do so clearly indicated that he had no intention to cause the death of the deceased and therefore the learned Judges of the High Court were justified in finding that the said respondent had no intention to kill the deceased. He has not otherwise challenged the finding of the High Court or the trial Court that the guilt of the first respondent was fully established on the evidence produced by the prosecution.
17. As to the sentence, learned counsel has urged that as this is a case of single injury and the respondent did not act cruely or took advantage of his position, he does not deserve the extreme penalty of death.
18. Mr. RA. Qureshi, learned counsel appearing on behalf of the State does not support the judgment of the High Court. He has pointed out that it is in the evidence of the eye-witnesses that the accused had hurled a challenge to the deceased at the time of occurrence that he shall not be saved today, which established the intention of the accused to cause the death of the deceased. He also supported the learned counsel for the first respondent that the lesser penalty be awarded.
19. We have carefully considered the respective arguments advanced by the learned counsel appearing before; us. We agree with the learned counsel for the appellant that the charge of murder was fully established from the prosecution evidence. It is clearly proved from the evidence that the first respondent intentionally inflicted a knife blow on the chest of the deceased which pierced his heart. The learned Judges of the Division Bench have accepted the opinion of the doctor that the injury was the result of the stab wound which was ascribed to the said respondent.
20. In the passage quoted from the judgment the learned Judges have themselves held that the nature of injury was such that the said injury would cause or was likely to cause death. This brings the case of respondent squarely within clauses `secondly' and 'fourthly' of section 300, P.P.C. We are unable to appreciate as to how, without recording any fording that the case of the said respondent fell under one of the-Exceptions prescribed by section 300, it could be held that the offence committed fell within Part II of section 304, P.P.C. We cannot agree that merely because the culprit chose to inflict just one injury to the deceased which proved fatal and did not inflict further injuries, for reasons best known to him or may be in order to escape from the scene which was on a public road, it can be held that he had no intention to cause death of the deceased, or to cause such bodily injury with the knowledge that it was likely to cause death or sufficient in the ordinary course of nature to cause death of the deceased. There is nothing in the judgment of the High Court whereby the learned Judges recorded the finding that the first respondent had no such intention.
21. On the contrary, the evidence of motive and as pointed out by the learned counsel for the State the evidence that the first respondent challenged the deceased that he would not be spared on that day, is a strong proof of intention of the requisite nature as required by section 300, P.P.C. We are fortified in our view by the observations made in the cases of Muhammad Siddique and Khalid (supra). The enunciation of law made in the case of Habib Khan (supra) is also in point and supports the contention of the learned counsel for the appellant.
22. We are also unable to see force in the submission of the learned counsel for the first respondent for the same reasons. It is not understood how the fact that there was a single injury or that the path of the injury was horizontal and not vertical, had any material bearing on the question of what offence the respondent had committed. The judgment of the High Court is therefore liable to be reversed.
23. However, the reasons that found favour with the learned Judges of the Division Bench, are material so far as the question of sentence is concerned. It appears that the respondent could inflict more harm but refrained from doing so although he had the opportunity to do so. Therefore, he did not take unfair advantage of his position as an armed person as against an unarmed victim and did not act cruely in inflicting multiple injuries. Apparently, the respondent launched the assault on the deceased on suddenly finding him present at the scene of occurrence due to the engine failure of the rickshaw in which he was travelling. Therefore, the premeditation or the question of pursuing the deceased is excluded. He could not have expected the deceased to be present at the spot at the psychological moment. The first respondent was acquitted of the charge under section 302 by the High Court on 2nd March, 1986 and since then he has remained in expectation of life. We, therefore, agree with the learned counsel for the State that the first respondent does not deserve the extreme penalty of death.
24. Accordingly this appeal is allowed, the judgment of the High Court is set aside, with the result that the conviction of the appellant under the first count for murder of deceased Ghulam Nabi alias Kamani stands restored to one under section 302, P.P.C. He is however sentenced to imprisonment for life. The direction with regard to payment of compensation of Rs.5,000 to the heirs of the deceased and the punishment ordered in default thereof is maintained. Further the respondent shall also be entitled to the benefit of section 382-B, Cr.P.C. The conviction and sentences already recorded under section 13-D of the Arms Ordinance are also maintained and shall run concurrently. The said respondent if released from jail custody shall be re-arrested to undergo the remaining sentences. The process, if necessary, in this connection shall issue by the orders of the trial Court.