AGBA Au RYDER, J.-The appellant was convicted by the learned First Additional Sessions Judge, Hyderabad, for an offence under section 302, P. P. C. And sentenced to transportation for life. He has come in appeal.
2. The prosecution story, in brief, is that, on 10th February 1972, at about 4-30 p. m. Nasrullah, since deceased, had gone to the shop of the appellant to get his shirt pressed. It is alleged that the appellant was not agreeable to iron the shirt, and specially with the urgency demanded. An altercation followed, which ended in a hockey stick blow being given on the head of Nasrullah, which rendered him unconscious. Abdul Ghani, the brother of the deceased, was informed of the happenings by P. W. Liaquat Ali. The two of them went to the "Wardat", and found Nasrullah lying unconscious in front of the appellant's shop, Abdul Ghani, along with Liaquat All and Nasrullah, bad gone to the Market Police Station at about 5-30 p. m. And the First Information Report was lodged by the former. S. H.
0. Lvi azharuddin had prepared a "M ashirnama" in regard to the injuries on the person of Nasrullah, and referred him to the L. M. C. Hospital, Hyderabad, for treatment. The S. H.
0. Later proceeded to the "Wardat", and found blood on the ground. Thereafter, enquiries were made from Liaquat Ali, Ghulam Rasool and Ghulam Mobiuddin. It appears that Nasrullah succumbed to his injuries, and on 11-2-1972, the S. H. O., on getting the information, proceeded to the Hospital, where be prepared the inquest report over the dead body, which was later handed over to the Medical Officer for holding autopsy. On 12th February 1972 at 5-00 a. In. The appellant was arrested, while coming out of his house. The appellant took the police party to his shop, and opened the door thereof. Later, he had produced a shirt and a broken hockey stick, for which a "Mashirnama" was prepared. However, there was no blood on the hockey stick. The appellant had expressed his wish to make a judicial confession. However, for reasons which it is not necessary to mention at this stage, the judicial confession was not recorded that day, but on the 14th of February, 1972. Thereafter, the S. H.
0. Arranged the identification of the shirt secured from the shop of the appellant, through Ghulam Mohiuddin, which was supervised by the Additional City Magistrate, Hyderabad. As the appellant had injuries on his fingers at the time of arrest, he was also referred to the Hospital. The other co- accused, Ganjoo, was arrested on the same day. After due investigation, the case came to be challaned. The case was sent up against the appellant and his brother Ganjoo, but the latter was acquitted.
3. The appellant in his statement at the Court of Enquiry maintained that the injuries had been sustained by him during the scuffle with the deceased. He also admitted that the hockey stick belonged to him. However, he retracted from the confession which, according to him, was because of police pressure. Inter alia, he stated : "On the day of incident the deceased Nasruilah had come to get his shirt ironed ; the iron was hot ; it was a nylon shirt. I told him to keep it for some time after which I would get it ironed. He insisted for ironing at that very moment. I refused ; he became angry and abused me, and gave me blows ; we both grappled. I gave him a push, he was hit against the nearby electric pole, that is how he received this injury. I have not caused injury with hockey. The hockey stick produced in Court is mine. I was alone. Further statement I will give in the Court of Sessions." At the trial, he denied to have produced the hockey stick, but admitted that the shirt of Nasrullah had been secured from his shop. He also admitted some injuries at the hands of Nasrullah, and went on to say that the latter had also broken his teeth. He maintained his stand in regard to the judicial confession. The details of the incident were supplied by him as follows :- "On the day of alleged incident at about 4 p. m. I was busy ironing clothes in my shop. Deceased Nasrullah walked into my shop and asked me to iron his shirt, leaving every thing else. I replied that his shirt is made of Tetron t it could not be ironed. The iron would burn the shirt. But he insisted that I should iron his shirt immediately as he wanted to go to Abdullah Shah, for Ziarat. On my refusal, the deceased abused me and gave me fist blows. I sustained injuries and my teeth also got broken.
Thereafter he dragged me out on the road and felled me down. He held me in his grip. We grappled with each other. In order to free myself, I pushed him. He dashed against the electric pole in front of my shop. He sustained head injury. I then ran away lest he might get up and kill me. I left the shop open. I came to know on the next day of the incident that my family members had been taken by the police to the police station. They were being mal-treated and insulted at the police station. I, therefore, voluntarily appeared at the police station. The police forced me to make the confession and threatened me that my family which was confined at police station would be tortured, if I refused to make the confession. I made the confession under fear. The Magistrate, before recording the confession, asked to take oath that I shall state the truth. The hockey has been foisted on me. I am innocent, Ganjoo, my brother, was not present at the time of incident."
4. In regard to the death of Nasrullah, apart from the oral testimony led in the case, there is also the evidence of Dr. Hussain Yar Khan, who had examined him at the Hospital not very late after the incident, and later held the autopsy also. According to him, there were four injuries on the person of the deceased, viz :-
(1) A stitched wound 1" in length on the left temporo parietal region with an haematoma 12r x around it.
(2) An abrasion 1/4 x 1/4" at the base of left index finger dorsal aspect.
(3) An abrasion 1/4" x 1/6 on the lower lip right side.
(4) Abrasion 1/6 x 1/4 on the upper lip right side inner surface ; lip was swollen.
' The internal examination revealed fracture of squama of the left temporal bone 3-1/4 in length.
There was a big clot of blood on the duramater These injuries bad been caused by a hard and blunt substance. According to the Medical Officer, death had been caused due to intro cranial haemorrhage and shock as a result of fracture of the left temporal bone, and injuries to brain substance due to the Injury No, 1, which was sufficient, in the ordinary course of nature, to cause death.
5. The eye-witness account has been furnished by Liaquat Ali, Hoth, Tariq Majeed and Ghulam Rasool. According to Abdul Ghani, the complainant, it was Liaquat Ali, who had informed him about the happenings, and the two of them had gone together to the "Wardat", where Nasrullah was lying unconscious. The First Information Report also discloses the name of Ghulam Rasool, who, at the material time, was a practising lawyer. The names of Roth and Tariq Majeed are, ho wever, not to be found. Both of these witnesses also are from the vicinity, the former being a hotel keeper, and the latter a student. However, Tariq Majeed was examined by the police the next day, and states that, on the evening of the incident, he was away from the house, as he had gone to meet his grandmother. Roth, however, is a rank outsider, and there is nothing to show that he had any bias against the appellant, or, any partisan feeling for the complainant's party. Ghulam Rasool also is a neighbour, and states to have gone to Jamshoro to apprise Ghulam Mohiuddin, a brother of Nasrullah, about the turn of events. He was a lawyer, and his name is to be found in the First Information Report. It is true that he also mentions the participation of Ganjoo in the incident, who had not been even remotely mentioned in the First Information Report. It is also true that Ganjoo has been acquitted, but the reasons, which ended in the benefit of doubt to him, would not necessarily detract from the credibility of the witnesses, who have been relied upon by the trial Court. However, as the circumstances, in which the things came to such an unhappy pass, have also been admitted by the appellant in his statement at the Court of Enquiry as well as at the trial, the Proper approach will be to look to the rival versions in juxtaposition. The material portions of the statement of the appellant both at the Court of Enquiry as well as at the trial have been detailed in extenso. There is also a judicial confession made by the appellant, which, however, was retracted at he earliest opportunity. The confession was recorded two days after his arrest, and the only explanation for the delay is that the Magistrate, before whom the appellant had been produced on the 12th of February 1972, was on leave. There is nothing to show that such was the position.
Otherwise too, it was not difficult to find some other Magistrate in the city of Hyderabad, where they should have been available in crores. It appears that the Magistrate had also given an oath to the appellant. It is not necessary to examine the position, of its legality, as it must be ruled out on the short ground that it had been got recorded with an inordinate delay. It is also not necessary, in the circumstances of the case, to look to the evidence of the production of the hockey stick by the appellant, which, otherwise took had not been sent to the Chemical Examiner, as there were no marks of blood thereon.
6. Admittedly, there was no bad blood between the parties, and Nasrullah had gone to the shop of the appellant to get his shirt pressed. None of the parties, under the circumstances, could be spoiling for a fight, though Nasrullah might have been insistent on getting attention. Be that as it may, what is clearly made out is that Nasrullah had gone to the shop of the appellant with nothing more than a shirt with himself. Nothing is stated by the appellant at any rate. He mentions only fist blows being given by Nasrullah, what is more, the appellant, in his statement at the Court of Enquiry, owned that the hockey stick belonged to him. All the witnesses have stated that the hockey had broken into two. The assertion of the appellant, that he had not wielded the stick, and that the injuries of Nasrullah were as a result of a push, and his striking against an electric pole, is wide of the mark. It is true that, at the time when the appellant had been apprehended, there were some injuries on his person. However, the apprehension took place two days after the incident. He was, however, referred to the Medical Officer, There were two swellings, one on the wrist and the other near the thumb, and two abrasions. Which were ail simple in nature. The breaking of teeth finds no support from anywhere. It cannot, therefore, be said that the appellant had any reasonable apprehension to his life, or, that there was any question of the defence of nis person.
He, however, chose to use a stick, and that too on a vital part of the body of Nasrullah. He used the hockey stick with such determination and force that it broke down into two pieces. Mr. Muhammad Ali Shaikh, learned counsel for the appellant, referred to the case of All Muhammad v. All Muhammad and 5 others , Ahmad and 3 others v. The State and Additional Advocate-General, Karachi v. Muhammad Siddiq . In the case of AU Muhammad the finding of the High Court was that the respondents had the right of the defence of property as well as of person, and, in the circumstances, they had not exceeded the right, and therefore, the special leave to appeal against the judgment of acquittal was refused. In the case of Ahmed, their Lordships observed that 'if the harm caused to the offending party is out of all proportion to the harm which may be received or which is threatened by the other party, and which gives occasion for the exercise of that right, the right of the self-defence will stand completely negatived. This right is available only if it is rooted in good faith and no intention is manifested by the circumstances of doing more harm then is necessary for the purpose of self-defence." So, this authority also has got no application. In the third case, the injury was with a sma ll knife, and was directed against the arm, which is ordinarily not considered as one of the vital and vulnerable parts of the human body, and therefore it was found that there was no intention to cause any injury, which was likely to prove fatal. In deciding questions of intentions the nature of the weapon used, the part of the body on which blow was given, the force of blow, and its numbers are some of the factors which assume importance. It, therefore, follows that, if a person hits another on vulnerable part of the body, and death occurs as a result of the blows inflicted by him, or, a person inflicts injury on another which ends fatally and which the former knew was likely to cause death, he would be guilty of culpable homicide, amounting to murder, though he had no wish, or, motive to cause death. In such a case the law will presume an intention to cause death and the burden would be on the accused to show that he had no such intention The appellant should have realised that hitting Nasrullah with a hockey stick, and with considerable force, he was committing an act so imminently dangerous that he must have known that, in all probability, it would cause death, or such bodily injury as was likely to cause death. I am, therefore, of the opinion that the circumstances of the instant case make out that the offence would fall under section 302, P. P. C. As found by the trial Court.
7. The appellant has already been given the lesser punishment under the law. There is no occasion for any interference. I will, therefore, affirm the conviction, and dismiss the appeal. JAMALUDDIN H.
AHMED, J.-I agree. 1974 SCMR 22 PLD 1971 SC 720 PLD 1969 Kar. 162