MUSHTAK ALI KAZI, J. -These are two connected appeals directed against the judgment dated 11th January, 1971, of the Special Judge-cum---Enquiry Officer & Ex-Officio Additional Sessions Judge, Nawabshah at Sukkur, whereby he convicted the appellant for offence under sections 307/34, P. P.
C. And sentenced the appellant to 5 years rigorous imprisonment and fine of Rs. 500 or in default rigorous imprisonment for 6 months more and for offence under section 324, P. P. C. And sentenced him to rigorous imprisonment for 12 months and fine of Rs. 203 or in default rigorous imprisonment for 3 months more and for offence under section 302, P. P. C. And sentenced him to transportation for life, all the sentences of imprisonment to run concurrently.
2. Mst. Khatoon daughter of Jumo was first married to one Abdul Hafeez. After her husband's death she carne and resided with her father who was running a tea shop in Karachi. Appellant Ramzan was working as a waiter at Jumo's tea shop. Appellant came in contact with his master's young widowed daughter Khatoon who was at that time about 30 years of age. There was exchange of love letters and photographs. Appellant Ramzan then asked Jumo for hand of his daughter but Jumo did not consider Ramzan to be a suitable husband for her. He married her to one Chahat a water carrier at Tando Adam. After the wedding she taken by Chahat to Daur where they both resided together in small house. Deceased Ramzani was son of Chahat's aunt. He resided in the adjacent house with Allah--dino's sister Gebro, who was married to him. Allahdin was married to niece of Mst. Khatoon and Din Mohammad was uncle of Mst. Khatoon. Mst. Imam another neighbour of Mst. Khatoon at Daur was wife of Chahat's cousin Sattar. She resided at a distance of 15 paces from the louse of Mst. Khatoon.
3. About 8 or 10 days after the wedding of Khatoon, Allahdin and Din Mohammad alias Dina came down from Karachi to Daur on a visit and to see the Fair which was taking place at Daur. Appellant Ramzan who was sighing to see his beloved found a good excuse to accompany relations of Khatoon to Daur on this occasion. They came and stayed in the house of Allahdino's sister Gabro who was wife of Ramzani. At night at about 1000 p. m. Ramzani brought them to the house of Mst.
Khatoon. Khatoon entertained the guests with tea and paan and the guests then departed. Mst.
Imaman had invited the new bride Mst. Khatoon to have breakfast with her next morning. Chahat had excused himself because he had to go for work as a mashki at 4.00 p. m.
4. Next morning on 2-11-1968 at about 7-00 a. m. Mst. Khatoon accompanied Mst. Imaman to her house for breakfast. Appellant Ramzan on finding Mst. Khatoon outside the house came up to her and hurriedly asked her to elope with him by the morning train which was leaving for Karachi within half hour. Mst. Khatoon refused to accede to his request and did not agree to leave her husband and accompany him, Appellant Ramzan who was a very much excited due to frustration and jealousy took out his knife and tried to wreak vengeance on Mst. Khatoon by cutting off her nose, Mst. Khatoon, however, struggled and the knife blow struck her on the right side of the chest. The appellant then repeated the blow which caused a superficial injury on the side of Mst. Khatoon's nose. Mst. Imaman in order to save Mst. Khatoon picked up a wooden bread roller and dealt a blow with it on the head of the appellant. The appellant, however, retaliated and dealt a blow with his knife on the left elbow joint of Mst. Imaman. On the cries of the two women, Ramzani and Chahat came running. On seeing them appellant Ramzan took to his heels. He ran in the direction of the Railway station, as he was being chased by Ramzani and Chahat.
5. The train was at the platform and appellant Ramzan (boarded a third class compartment.
Deceased Ramzani had by that time reached the door of the compartment and was trying to get into it, when the appellant who was standing at the door of the compartment stabbed Ramzani on his chest. Ramzani fell down and before the appellant could get away, two railway police constables who were on duty, caught hold of the appellant and snatched the blood-stained knife from his hand. By that time, Chahat husband of Khatoon also reached the spot and overpowered the appellant. The appellant was given a good beating by the persons present there at the time he was over-powered and caught. Ramzani had been stabbed on the region of his chest and he told the by-standers who had collected around him that Ramzan had stabbed him. Ramzani then breathed his last.
6. Head Constable Abid Hussain left Constable Nizamali with the dead body of Ramzani and took accused Ramzan to Daur police station where he lodged F. I. R. With S. H. O. Qazi Lalbux. As this offence had taken place within the jurisdiction of Railway station, the S. H. O. Recorded the report in the daily diary at 6-10 a. m. He thereafter recorded the F. I. R. Of complainant Chahat in respect of the first incident of stabbing at 8-45 a. m. The S. H. O. Arrested appellant Ramzan. He found his clothes to be stained with blood. These were secured and sealed. The S. H. O. Also secured six photos and some letters from the person of the appellant. Appellant. Appellant had marks of injury on his person. Constable Abid Hussain produced the blood-stained knife which he had snatched from the accused. The S. H. O. Then examined Mst. Khatoon and Mst. Imaman who had knife stab wounds on their person. He secured the blood-stained clothes of the two women. He then recorded their statements and sent them for medical examination to Civil Hospital Nawabshah. S. H. O. Then visited the scene of the first incident situated in the street. There were blood-stains on the wall of the house of Mst. Khatoon. S. H. O. Secured the bloodstained earth. Appellant Ramzan was prepared to make a confession, so he was produced before the Mukhtiar kar & F. C. M. Who was camping at Daur on that day, at 2-00 p. m. On 11-1-1968 Allahdino was arrested. On 14-1-1968 Dina was also arrested. The appellant, Allahdin and Dina were then sent up in the first case on 16-11-1968.
7. The murder case was transferred to the Railway Police and it was sent up separately. The appellant was committed to the Court of Sessions in both the cases. After conclusion of the trials, these cases were disposed of by a common judgment acquitting accused Allahdin and Din Mohd.
And convicting appellant Ramzan as stated above.
The version of the appellant is that Mst. Khatoon was his neighbour at Karachi and she was in love with him even before his first marriage. He used to have sexual intercourse with her freely while she was staying in the house of her parents. After her first marriage at Hyderabad she used to send for him there and she used to send him letters and photographs. That after the second marriage at Daur he had gone to visit Mst. Khatoon as she had invited him to see the Fair. The other two accused had not gone with him but they were already there. On the morning of the incident at about 5-00 a. m. Mst. Khatoon sent for him, at her house. She was making love to him and having sexual intercourse with him, while Mst. Imaman stood on watch at the door. Chahat then returned and surprised them. Chahat caused injuries to Mst. Khatoon and Mst. Imaman. He ran out of the house and boarded the train. Deceased Ramzani and one other man tried to pull him out of the train compartment. They started beating him. The knife was in the hand of Ramzani. With that knife be gave a blow on Ramzani In the exercise of right of private defence. After that Chahat and others gave him a beating. Railway Constables Abid Hussain and Nizamali and A. S. M. Abdul Malik then caught him and snatched the blood-stained knife from his hands. He could not say if he had made the confession before the Mukhtiar kar F. C. M.
9. There can be no doubt regarding the fact that stab wounds were caused to Mst. Khatoon and Mst. Imaman and deceased Ramzani sustained a knife injury resulting in his death. Dr. Muhammad Sharif of Civil Hospital Nawabshah examined Mst. Khatoon and found the following injuries on her person: -
(1) Incised wound 1--'' x --'' x --'' over the right lower chest.
(2) Incised wound --'' x --'' x 1/8'' x 1/8' over the left side of the nose.
Both they injuries were simple and appeared to have been caused by a sharp cutting weapon such as the knife.
On the person of Mst. Imaman the Medical Officer found the following injuries :- (1)Incised wound 4' x 2' x 2' over the lateral aspect of the left elbow-joint.
The injury was simple and appeared to have been caused by sharp cutting weapon such as the knife.
The Medical Officer performed post-mortem examination on the dead---body of Ramzani son of Pirbux and found the following external injuries :--
(1) Incised wound 1' x --" x penetrating right side of the heart. The injury was caused by a sharp cutting weapon like the knife.
On internal examination the Medical Officer found that there was a fracture of the sternum also.
Cause of death was shock and haemorrhage due to injury to the heart. This injury was sufficient in the ordinary course of nature to cause death.
10. The most important question for consideration in this case is whether appellant Ramzan caused the above injuries to the two women and the deceased ?
Regarding the first incident, there is the ocular evidence of the injured women Mst. Khatoon, Mst.
Imaman and complainant Chahat. Regarding the second incident of murder, there is the ocular evidence of Railway Police constable Abid Hussain and Nizami, Chahat and Assistant Station Master Abdul Malik. Then, there is the evidence of oral dying declaration of deceased Ramzani.
There is also circumstantial evidence that the appellant was chased by deceased Ramzani up to the railway compartment and after the stabbing the appellant was caught and the blood-stained knife was secured from his hand. The appellant was then given a beating by Chahat and others and he was taken to Daur Police Station where his blood---stained clothes were recovered. Lastly, the appellant made a judicial confession before the Mukhtiar kar, and F. C. M., Nawabshah, at his camp Daur.
11 The oral testimony of Mst. Khatoon, Mst. Imaman and Chahat regarding the first incident stands corroborated by the circumstantial evidence and the subsequent conduct of appellant Romzan at the Railway Station. Their evidence is also consistent with the medical evidence regard--ing injuries on Khatoon. Imaman and appellant Ramzan who was given a blow by Ramzan with a wooden roller on the head.
Regarding the second incident the evidence is overwhelming and quite convincing. Constables Abid Hussain and Nizamali the eye-witnesses of the second incident and Assistant Station Master Abdul Malik of Daur Railway Station was on duty on the platform and they actually over--powered and caught the appellant. They are the most natural witnesses of this incident and their evidence is fully corroborated by the surrounding facts and circumstances. The appellant was apprehended on the spot with the blood-stained knife in his hand and his clothes were also found blood-- stained. The appellant has himself admitted in his statement, that he stabbed Ramzani who was trying to catch him at the Railway platform.
12. Lastly, there is the judicial confession of appellant Ramzan. The incident occurred at about 7-30 a.m. And at 2-00 p.m. On the same day the appellant was produced before the Mukhtiar kar & F. C.
M. At his camp. The confession could not, therefore, have been improperly induced. It appears to be voluntary and true as it is corroborated by oral evidence and surrounding facts and circumstances. In this confession the appellant has admitted, having stabbed Mst. Khatoon for not eloping with him, and also having caused injury to Mst. Imaman. He has - also admitted having stabbed Ramzani as he was afraid that he would be otherwise caught and beaten.
13. The learned advocate on behalf of the appellant has admitted the second incident in its entirety. He has, however, pleaded that the knife injury was caused by the appellant resulting in death of Ramzani, in exercise of right of private defence- because Ramzani was otherwise going to arrest the appellant and take him to the village for the purpose of beating him and dishonouring him. That at the most it could be said to be a case of exceeding the right of private defence. He has further argued, that the appellant must have been invited by Mst. Khatoon to come to her house at 6.00 a. m. For sexual intercourse with her. That Mst. Imaman was very likely keeping watch when Chahat returned from work earlier than usual and intercepted them. Chahat caused injuries to Mst.
Khatoon and Imaman and also gave "beating to the appellant who' ran for his life and was chased up to the Railway Station. The learned Advocate has tried to show that the appellant had committed no offence and Chahat and Ramzani had, therefore no right to apprehend him. The right of private defence was, therefore, available to him to avoid being caught and dishonoured.
We have carefully considered the probabilities of the defence version. This version, however, does not fit in with the broad facts of the case and the surrounding circumstances. Mst. Khatoon had been married to Chahat only 8 days before the incident. In this short interval of time, it would be impossible for Mst. Khatoon to take into confidence her husband's brother's wife Mst. Imaman and to make her stand outside, while she enjoyed herself with Ramzan in the house of her husband. It is also not quite natural for women in these villages to entertain their lovers and have sexual intercourse with them during the days inside the house of the husband situated in the heart of the village. They rather prefer to go out in some secluded spot in the jungle or the field away from home for this purpose. The incident of stabbing admittedly took place out in the street and not inside the house of Chahat. All these circumstances weigh against the defence version, but corroborate the prosecution version that appellant Ramzan caused these knife injuries to these women due to feelings of jealousy and revenge. Moreover; if the injuries had been caused by Chahat after he was provoked, he would have finished off Mst. Khatoon and would then have chased appellant Ramzan with the same blood-stained knife in his hand his clothes too would have been blood-stained. But he was not found chasing Ramzan with any knife nor had he any blood stains on any clothes. All these facts corroborate the version of the prosecution that the appellant caused injuries to the women and he tried to escape to the Railway Station.
13. In case we take it as proved that the appellant assaulted the women and started running away when Chahat and Ramzan appeared on the scene on the cries of the women, then Chahat and Ramzani had the right under section 59 of the Criminal Procedure Code to arrest or apprehend appellant Ramzan as he had committed a cognizable and non---bailable offence in their presence. Appellant Ramzan would in that case have no right of private defence available to him. If any one after commis--sion of such offence tries to escape, any private person who sees the offender either committing the offence or running away immediately after the com--mission, would be entitled to arrest him and the offender cannot resist such arrest nor can he plead any right of private defence for causing harm to such a person to escape arrest. Right of private defence is available only against an offence and not against any physical act which may not be to one's liking Exception 2 to section 300 has, therefore, no application to case of this nature.
14. It has thus been established that the appellant caused simple hurt with sharp-cutting weapon to Mst. Khatoon and Mst. Imaman and stabbed Ramzani with his knife resulting in his death. The appellant has been convicted under section 307, P. P. C. In respect of the injuries caused to Mst.
Khatoon. The medical evidence however shows that the injuries caused were superficial scratches on the nose and the chest. Probably it was intended to disfigure the woman by cutting off her nose, but only simple injuries were actually caused. If the appellant wanted to murder the woman, nothing prevented him from stabbing her to death. To determine whether an act falls within the ambit of section 307, P. P. C. The questions to be considered are, the nature of the act done, the intention of the offender and the circumstances under which the act is done. Where there is apparently no intention to commit murder, the nature of the injuries caused is simple, and there is nothing to suggest that but for some intervening act the offender would have fulfilled his intention and committed the murder, offence would fall under section 324, P. P. C. Only. The conviction under section 307, P. P. C. Is accordingly altered to that for offence under section 324, P. P. C. And the sentence is reduced to rigorous imprisonment for two years only. The conviction of the appellant in respect of the injuries caused to Mst. Imaman and in respect of the murder of Ramzani and the sentences passed against him for these offences are maintained.
15. It may be mentioned that the learned Ex-Officio Additional Sessions Judge has conducted separate trials in respect of the two incident and recorded evidence of witnesses in these trials separately. He has, however, disposed of these cases by a single judgment. The Court should always record separate judgments in criminal cases where separate trials are held. Even where the cases are closely connected and could be regarded as part of the same transaction, a Court may write a detailed judgment containing complete recital of facts in the main case and a subsidiary judgment in the less important case, but it is not open to the Court to refer to the evidence C recorded in one case in the judgment of the other case. In the present case, however, the judgment fulfils the other legal requirements and the trials and convictions are not, therefore, vitiated on account of this irregularity. With these observations the appeals are otherwise dismissed.