M. HUSSAIN ADIL KHATRI, J.- On 14-5-1985 at 12.15. a.m. Complainant Ashfaq lodged report at P.S. Kot Ghulam Mohammed to the effect that the appellant had borrowed a sum of Rs.100/- from his brother deceased Akhlaque, who repeatedly demanded return of the said amount from the appellant but he did not re-pay the amount and kept the deceased on false promises. On 13-5- 1985 deceased Akhlaque who used to run Bakery, went to purchase ice. The complainant also followed him. At about 7-15 p.m. When Akhlaque reached the street near house of one Abdullah, he came across appellant who was coming from the opposite direction. Deceased Akhlaque demanded Rs.100/- fr6m the appellant but he refused to pay and there was exchange of harsh words between them. In the meanwhile Choudhary Akhtar also came there. Complainant Ashfaq and Choudhary Akhtar proceeded towards Akhlaque and appellant and when they were near to them, the appellant took out a dagger from the folds of his Shalwar and caused injury to Akhlaque who cried and fell down. The complainant and Choudhary Akhtar did not intervene because of fear. The complainant gave 'Hakals whereupon the appellant dis-appeared from the scene alongwith the dagger. They went near Akhlaque who asked them to take him to hospital.
Complainant put Akhlaque on a cycle, rushed to the hospital and got him admitted in Hospital Kot Ghulam Mohammed. In the meanwhile P.W Akhtar and Mahmood Akhtar, the councillor also came to the hospital and got Akhlaque referred to the Medical Officer Civil Hospital Mir pur Khas and took him to the said Hospital. The father of the deceased also arrived there on receiving the message.
Lastly the injured Akhlaque was referred to Hyderabad Hospital and Was taken there by his father and the complainant went to lodge report. The report was recorded by Sub-Inspector Nazar Mohammed who handed over the case papers to S.H.O Dastar Ali Shah. Akhlaque died at L.M.C.
Hospital Hyderabad. The S.H.O on receiving the papers went to Hyderabad in search of the appellant and on receiving the information that he was available in the Agricultural University Tando Jam,the S.H.O went there alongwith Mahmood Akhtar, the councillor and Mohammed Abbass in whose presence he arrested the appellant from the bus stop. The appellant was identified by the said councillor. The appellant was brought to the Police Station and during interrogation volunteered to confess his guilty and to produce the dagger. The blood stained dagger was produced by the appellant from the jangal near Kachelo Railway Crossing which was secured by Sub-Inspector Dastar Ali in presence of mashirs Shoukat Ali and Azhar Ali.. On 8-5-1985 the appellant was produced before First Class Magistrate who recorded his judicial confession. The appellant was setup for trial for an offence under Section 302 PPC.
2. The prosecution relied on the ocular testimony of complainant . Ashfaq brother of the deceased and Choudhary Akhtar Ali, dying declaration of the deceased before P.Ws Akhtar Ali Maqsood Ahmed, Mahmood Akhtar and Mohammed Rafiq, recovery of blood stained dagger which was proved by the S.H.O and Shoukat Ali, the mashir of memo of recovery and the judicial confession of the appellant.
3. The learned IInd Additional Sessions Judge, Tharparkar at Mirpurkhas discarded the dying declaration and the judicial confession from the consideration and I find that it was done by the learned trial Judge for good reasons. Relying on the ocular testimony of the aforesaid two witnesses and the recovery of the blood stained dagger on the pointation of the appellant, he convicted the appellant for the offence under section.302 PPC and awarded him sentence of life imprisonment, fine of Rs.10,000/- or in default to suffer R.I. For one year more. On recovery of the fine it was ordered to be paid to the legal heirs of the deceased by Judgement dated 29-3-1990.
The appellant has assailed the aforesaid judgment in the present appeal.
I have heard Mr.A.Q. Halepota, the learned advocate for the appellant and Mr. Shoukat Hussain Zubedi, the learned Assistant Advocate General for the State and Mr. Shamdas B Chhangani for the complainant.
4. The learned advocate for the appellant after reading the evidence of the two eye witnesses and offering his criticism on their testimony, submitted that he would not press the appeal on facts and would like to make his submissions only with regard to propriety of the conviction of the appellant under Section 302 P.P.C, and the sentence awarded to the appellant. The learned Assistant Advocate General was of the view that it was not a case under Section 302 PPC as neither there was any premeditation, nor the intention to commit murder .According to him it was a case under Section 304 Part II PPC, death having resulted without any intention to cause murder but looking at the nature of the injury, the knowledge on the part of the appellant that such injury would result in death was established.
The learned advocate for the complainant on the other hand, urged that the intention on the part of the appellant to cause murder of Akhlaque is established. He however, did not assail the judgment of the trial court in so far as the trial court had discarded dying declaration and the judicial confession of the appellant and he relied on the ocular testimony and the recovery of blood stained dagger to support the conviction of the appellant under section 302 P.P.C.
P.W Ashfaq Ahmed in his deposition before the trial court stated that he alongwith his brother including deceased used to reside in Kot Ghulam Mohammed. The deceased on 13-5-1985 at 7.00 p.m. Demanded refund of Rs.100/- from the appellant but the appellant refused to pay the same on which harsh words were exchanged between them. The appellant took out the dagger from the folds of his Shalwar and caused injury on the left side of the chest. He and P.W. Akhtar Ali witnessed the incident. On receiving the blow the deceased fell down. The accused thereafter ran away from the place of occurence. The above version was supported by P.W Akhtar Ali. Although P.W Ashfaq is brother of deceased and thus interested witness but nothing has been brought on record to discredit his testimony. There was no animosity between the parties. P.W Akhtar Ali is an independent witness and has been rightly relied upon by the trial court. The aforesaid ocular evidence is duly corroborated by recovery of the blood stained dagger on the pointation of the appellant. The Chemical Examiner had returned positive report with regard to existence of human blood on the dagger. The above recovery was established by the evidence of P.W Shoukat Ali and Dastar Ali, the S.H.O. The learned trial court Judge has dealt with the issue at great length for relying on the aforesaid corroborative piece of evidence.
5. It has therefore been established that the injury was caused by the appellant to the deceased Akhlaque. P.W Dr. Abdul Rasheed at the relevant time was Medical Officer at Kot Ghulam Mohammed. On 13-5-1985 the deceased Akhlaque was referred to him and on examination he found following injury on his person: "Stab-wound transverse 5 c.m. x skin x muscle x deep on front left side of chest just below the nipple".
The injury appeared to have been caused with sharp cutting substance such as knife or dagger and was fresh one. Such certificate issued by him was produced as Ex.13-A. The injured was then referred to R.M.O Mirpur Khas who referred him to L.M.C. Hospital Hyderabad where the injured died.
P.W-2. Dr Anwar Hussain was Medico-legal Officer at L.M.C Hospital Hyderabad. On 14-5-1985 he received the dead body of Mohammed Akhlaque alongwith a request to conduct the postmortem examination. On external examination of dead body is found following injuries: "An incised wound 6 c.m. x 3 "x 3" cavity deep at left side of the chest, in between 7th & 8th rib, just below the left nipple."
No other injury was found on the body of the deceased. In the opinion of the said witness the above mentioned injury was antemortem in nature and the cause of the death was internal haemorrhage and shock due to the above injury. He produced postmortem report as Ex.25.
The Ocular evidence of the two witnesses clearly established that the incident had taken place when the appellant and the deceased came across each other while coming from opposite direction. Their meeting was sudden and unexpected. It is also established that the appellant had taken out the dagger from the folds of his Shalwar after there was altercation between the two which developed into exchange of harsh words. After receiving injury on his chest the deceased fell down. If the appellant had any intention to kill the deceased, he had ample opportunity to cause more bellows to the deceased who was lying on the road helpless and was not in a position to resist further assault or protect himself n any manner if additional blow was caused to him. There is no evidence with regard to any premeditation on the part of the appellant to commit the aforesaid crime. The medical evidence also establishes only one injury and no other injury whatsoever. In this view of the matter there is great force in the contention raised by the learned counsel the appellant had no intention to kill the victim.
6. However the accused can be saddled with the knowledge that the injury caused by him was likely to result in death of the victim. It is established by the fact that the dagger used by him had 6 "inches long blade and the injury was caused on the left side of the chest just below the nipple with enough force to cause injury cavity deep.
In the case of Ahmed and 3 others Vs. The State (1971 D.S.C 720) the Supreme Court has elaborated and amplified the distinction between section 302 and 304 PPC as under: "If the intention of the accused was to cause such bodily injury to the deceased as was likely to cause his death, or which was sufficient in the ordinary course of nature to cause death, the case obviously was one of murder falling under section 302 P.P.C. being covered by the definition of murder as contained in section 300 Secondly and Thirdly of P.P.C., and the conviction could only have been made under section 302 P.P.C, and not under section 304, which is attracted if the offence is one of culpable homicide not amounting to murder. A case is covered by Part I of section 304,P.P.C, if the offence shich is otherwise murder is reduced to culpable homicide not amounting to murder by reason of being covered by any of the exceptions to section 300, PPC Part II of Section 304, PPC, applies if the fatal injury inflicted on the deceased is caused to him without any intention on the part of the accused to cause death, or such bodily injury as is likely to cause death, but about which the accused can be burdened with the knowledge that it is likely to cause death."
In the above case it was observed that according to the evidence, of the appellants, who were armed with hatched and Lathis gave blows to the deceased. However it was noted that the deceased had sustained only one blunt weapon injury on his chest which proved fatal. From the above evidence it was concluded that the appellants had no intention to kill the deceased as they did not use the sharp side of the hatchets on him but intention to cause grievous injury to the deceased could not be doubted as all of the assailants acted Jointly inshowering belows on the deceased.
7. The learned counsel for the appellant relied on the case of Yousuf Vs. The State (1984 P.Cr.L.J.
1982) wherein a Division Bench of this Court altered the conviction from Section 302 PPC in to section 304 Part II PPC for the reason that the blows were given without any premeditation in the heat of moment and for the purposes of deterring the deceased and it was not found possible to hold that the appellant had the requisite intention to commit murder but there was enough material to saddled him with the knowledge that the injuries caused were likely to result in death.
He also referred another Division Bench Judgment of this Court in the case of Hangle alias Ali Nawaz Vs. The State (1980 P.Cr.L.J. 1275). In the above cited case relying on the two earlier judgments it was observed that the appellant could not be burdened the intention of causing murder as it was a case of sudden incident and only one serious blow had been caused by the appellant and the circumstances indicated that there might have been a serious remonstrance from the deceased on the abuse uttered by the appellant and the appellant might have had felt enraged and insulted and as also there was no previous enemity, it was held not to be a fit case of causing intentional death and the appellant was burdened with the knowledge that the weapon he was using and the place sleeted by him for the injury was such that death would be result of his action. He was accordingly convicted for an offence under section 304 PPC. Similar view was expressed in an earlier case of Mehwal Vs. The State( 1975 P.Cr.L.J. 1121). By a Division Bench of this Court wherein one injury Was caused by the sharp side of the hatched on the head of the deceased on demand of money by him from the assailants and in absence of intention to kill the deceased. In the above judgement the Division Bench had relied on un-reported confirmation cases. The learned counsel for the appellant relied on the cases of Burial Vs. The State (PLD 1982 Kar. 152) and unreported judgments of this court in Confirmation Case No.17/85 Sheroo Vs. The State. Cr. Appeal No.69/84 Abdul Rasheed Vs. The State and Cr. Appeal No.122/88 Sher Khan Vs. The State. In all the aforesaid cases the view expressed in the earlier authorities was re-affirmed.
8. The rule laid down in the aforesaid authorities is fully applicable to the facts and circumstances of this case.
The above are the reasons for the short order passed on 6-6-1991 where by the conviction of the appellant was altered from Section 302 PPC to one under section 304 Part-II PPC and the sentence of life imprisonment was reduced to R.I. Five years. Sentence of fine was maintained but however in case of default in payment of fine the appellant was ordered to suffer R.L for a period of three months more. The appellant was given benefit of Section 382-B Cr. P.C. The appeal was dismissed with the above modification in the judgement of the trial court.