Muhammad Hanif appellant aged 44 has been convicted under section 304. Part 1, Pakistan Penal Code, and sentenced to transportation for life and a fine of Rs. 500 or in default six months' rigorous imprisonment by the Additional Sessions Judge, Lahore Camp Kasur vide his judgment dated 6th October 1971. It was directed that the fine, if realised, shall be paid as compensation to the heirs of Muhammad Ishaq (deceased) who is a brother of the appellant.
2. The occurrence is stated to have taken place on 30th August 1969, at 2-30 p.m. Inside Mori Gate Kasur. Muhammad Ishaq (deceased) having been injured made the statement (Exh. P. G.) which was recorded by A. S. I. Ghulam Sarwar (P. W. 17) at 4-35 p.m. On 30th August 1969, and the formal F.
1. R. (Exh. P. G./1) was recorded at 5-10 p.m. By A. S. 1. Naeemul Husnain (P. W. 15) at Police Station City Kasur at a distance of one furlong from the spot.
3. Briefly the facts of the case as disclosed by Muhammad Ishaq (deceased) are that he and his younger brother Muhammad Hanif (appellant) alongwith their families were residing in one house situated in koocha Dr. Muhammad Bashir inside Mori Gate Kasur near the Jamia Mosque. The wife of the deceased had shifted to the house of his sister Mst. Meraj Bibi about 2J or 3 months prior to the occurrence, which was situated in the adjoining street, alongwith their children. Mst. Meraj Bibi was living alone as his husband was in Behrain and on that account the complainant (deceased) did also sleep there after finishing his work. They had, however, kept their luggage in the house, where Mst. Sakina, wife of the appellant, alongwith her children was living. Mst. Sakina did not tolerate the mixing of the children of the deceased and the appellant and for that reason they used to be quarrelling between them. On 29th of August 1969, Muhammad Ashfaq aged 15 son of the deceased went to the house of his uncle Muhammad Hanif appellant but the wife of the appellant abused him and turned him out and also gave him threats. She also told the son of the deceased that he should not mix with her daughter Mst. Afzala, who was of the same age as that of Ashfaq.
Muhammad Ashfaq P. W. Told about this to his mother and the deceased and they asked Ashfaq not to mix with Mst. Afzal Begum. On the day of occurrence at about 2 or 2-30 p.m. Muhammad Ishaq (deceased) returned to his house from the shop and he was told by his wife Mst. Balqees Begum (P. W. 11) that a short while ago A Muhammad Hanif appellant had turned up at her house, he was quite enraged and he had enquired about Muhammad Ashfaq P. W. And the deceased. The appellant had also abused and hurled some stones and brick-bats and then left. On account of this brick-batting mother-in-law of Muhammad Ishaq (deceas--ed) received an injury on her foot.
The deceased went to the appellant at his house to enquire about the cause of his annoyance. His wife also followed him and did his son-in-law Muhammad Siddique, who met him by chance in the street. As soon as the deceased entered the courtyard of the house of the appellant, the appellant took out a knife from his pocket, caught hold of the right hand of the deceased and told him to get ready and saying that to--day he wanted to teach him a lesson for the misdeeds of his son gave a blow on the left of his abdomen with the knife. The deceased sat down on receipt of this injury and the appellant left the spot abusing him and his wife. The occurrence was witnessed by Mst. Balqees Begum (P. W. 11) and Muhammad Siddique (P. W. 12).
4. Muhammad Ishaq (deceased) was sent to Civil Hospital, Kasur, by A. S. 1. Ghulam Sarwar. He was medically examined by Dr. Nasim Ahmad Qureshi (P. W, 2) who found the following injury:- "A stab wound on the front of the abdomen 31' above and to the left of the umbilicus. Its size eras 1/3' x 1/6'."
The injury was caused by a sharp-edged weapon and it was dangerous to life. On 30th August 1969, Muhammad Ishaq was not in a tit condition to make any statement and on 31st August 1969, Muhammad Ishaq injured was declared fit to make a statement and the doctor gave a certificate (Exh. P. D.) to that effect. The dying declaration of the deceased was recorded by Ch. Muhammad Aslam, Tehsildar (P. W. 1) which is Exh. P. N. This statement is practically the same as the statement of the deceased (Exh. P. G.). There is no note by the doctor in the beginning of the dying declaration (Exh. P. N.) or at the end that the patient remained in his senses throughout. Muhammad Ishaq (deceased) was sent to Mayo Hospital Lahore on 6th or 7th day after the occurrence as stated by Mst. Balqees Begum (P. W. 11) and he expired on 5th September 1969).
5. Dr. Nusratullah Chaudhry (P. W. 3) on 6th September 1969, at 5 P .m. Conducted the post-mortem examination on the dead body of Muhammad Ishaq. He found a stitched wound 4' long bearing 11 stitches on the left side of abdomen (Para median). Wound was in healing stage. No pus was present in the wound. Acute peritonitis was present Peritoneum under the wound was sloughing.
Peritonial cavity contained pussy fluid. The cause of death in the opinion of the doctor was shock caused by fulminating peritonitis and to examine due to abdominal injury which was sufficient in ordinary course of nature to cause death. The injury could be inflicted with chhuri (P. 3).
6. The appellant was arrested on 8th September 1969 and on the same day he got recovered blood-stained chhuri (P. 3), which was taken into possession vide Memo. (Exh. P. E./2) attested by Muhammad Musa (P. W. 13) and Mansha A.I (not produced) besides S. H. O. (V. W. 14).
7. The appellant denied the prosecution allegation against him and stated that the case against him is the outcome of the enmity of the deceased with him over a dispute of a house. He did not produce any defence.
8. The learned Additional Sessions Judge disbelieved the motive and also the recovery of blood- stained chhuri (P. 3). He, however, convicted the appellant as stated above relying on the ocular testimony and the dying declaration (Exh. P. N.).
9. 1 have heard the learned counsel for the appellant as well as the learned State counsel and have also gone through the evidence of this case.
10. The ocular evidence has been furnished by Mst. Balqees Begum and Muhammad Siddique P.
Ws. 11 and 12 respectively, the former is the wife of the deceased while the latter is his son-in-law.
Both these eye-witnesses had followed the deceased to the house of the appellant. The deceased had already entered the house of the appellant and the eye-witnesses were still at some distance when the present occurrence is alleged to have taken place. There must be some exchange of hot words between the deceased and the appellant. The appellant inflicted one injury to the deceased, the dimension of which is 1/3' x 1/6'. Dr. Nasim Ahmad Qureshi (.P. W. 2) has stated in cross- examination that a person having similar injury that is not followed by the complication similar to this case has the chance o surviving. The main complication in this case was infection of the wound. It was two-three days after that the full signs and symptoms of infection B inside the abdomen were detected. He further stated that it cannot be said whether the infection had been caused by the original wound the patient received or was caused in the hospital during exploration of his abdomen.
11. Muhammad Hanif appellant has given only one blow to the deceased and did not try to give any other blow. So it is clear that he had no intention to kill the deceased but the injury can only be attributed to him with the knowledge that the act done by him was likely to cause death but without any intention to cause death or to cause such fatal injury as to cause death. The learned State Counsel frankly conceded that the appellant had no intention to cause such bodily injury as to cause the death of the deceased.
12. The upshot of the discussion is that I alter the conviction of the appellant from section 304 Part I, Pakistan Penal Code, to one under section 301 Part II, Pakistan Penal Code. I am of the view that the sentence already undergone will meet the ends of justice in this case. I, however, maintain the sentence of fine as ordered by the trial Judge. With the above modification the appeal stands dismissed.