' The appellant has been convicted by District and Sessions Judge, Karachi for an offence under section 304, Part II, P. P. C. For having caused the death of one Fazal Ghani by stabbing him with a knife through his chest and he has been sentenced to suffer R. I. For a period of seven years.
2. The facts of the case in brief are that on 9-11-1971 accused Salim Akhtar, a boy of about 16-1/2 years was travelling by bus on route No,
60. When this bus was a short distance away from Lea Market a quarrel ensued between appellant Salim Akhtar and two young men who belonged to Swat region. One of those two men, namely, deceased Fazal Ghani was about 24 years of age while his brother Usman Ghani was about 19 years. Both of them were physically stronger than Salim Akhtar and it is said that Fazal Ghani deceased gave 5 or 6 fist blows to appellant Salim Akhtar.
When the bus stopped at Lea Market the appellant, the deceased and his brother, all came down on the road. Fazal Ghani deceased after getting down asked the accused as to why he had abused him. They then quarrelled amongst themselves and again grappled. The appellant thereupon took out a spring knife from his pant pocket, pressed it open and with it dealt a blow on the chest of Fazal Ghani. He then started running away along with the blood-stained knife. This place happens to be situated in a busy commercial locality in front of the grass shop of Abdur Rahman near Ghiasuddin Petrol Pump on Siddiq Wahab Road. Napier Police Station was only a few paces away and quite visible from the spot. The incident was witnessed by Abdur Rahman and Ramzan Ghaswa llas and also by several other persons including Aqilzada and Shirin Khan who had just got down from the same bus in which the appellant and the deceased were travelling. Head Constable Mohammad Latif of Napier Police Station happened to pass by in plain clothes on way to his house from the bazar. He also saw appellant Salim Akhtar and the deceased quarrelling, and found the appellant taking out a knife from his pant pocket and stabbing deceased Fazal Ghani on his chest.
Deceased Fazal Ghani fell down unconscious. Head Constable Mohammad Latif caught the appellant along with his knife He called constable Mohammad Younus from Napier Police Station and sent injured Fazal Ghani and his brother Usman with the constable in a taxi to Civil Hospital. He then took the appellant and also the eye-witnesses Abdur Rahman and Ramzan to Napier Police Station where he lodged the F. I. R. Sub-Inspector Shujaat Hussain recorded the F. I. R. And seized the bloodstained knife produced by Head Constable Mohammad Latif. It was a spring knife with fish like handle, having a blade of 3". Meanwhile the injured who was admitted in the Civil Hospital expired in the hospital the same day. Sub-Inspector of Police, Mirza Sharif Beg, visited the scene of offence which was situated at a distance of 100 ft. From Napier Police Station. He also recorded statements of Constable Mohammad Younus, Aqilzada, Abdur Rahman, Ramzan and Shirin Khan.
He then secured the bloodstained bushier, banyan and white pant of the appellant. The clothes, namely two pieces of shirt and grey shalwar of the deceased were also secured. All these articles along with the blood-stained knife were sent to Chemical Examiner who found that they were all stained with human blood and the blood on the clothes of the appellant was of the same Group 'A' as on the clothes of the deceased. The appellant was also sent to Civil Hospital, Karachi as he had slight cuts on the forearm and little finger of left hand which appeared to have been caused by same sharp weapon. After completing the investigation the appellant was sent up in Court.
3. The version of the appellant before the committing Magistrate was one of complete denial.
Before the Sessions Judge he stated that the deceased and his companion wanted after boarding the bus that he should give them his own seat. On his refusal to do so the deceased gave him 5 or 6 slaps. When he got down from the bus the deceased and his companion also got down and they attacked him and started giving him blows and kicks. The companion of the deceased whipped out a knife and tried to attack him but he slipped aside and the blow fell on the deceased. That he went to Police Station to lodge report but he was arrested. That the deceased and his companion were very strong built and with better physique than himself.
4. There can hardly be any doubt regarding the fact that Fazal Ghani died on account of the stab wound of the chest puncturing his heart. Dr. Mohammad Umar Khan Police Surgeon who performed post-mortem examination on the dead body of Fazai Ghani found an incised wound at the lower part of sternum middle of chest 3-" 1/3 it" cavity deep which appeared to have been caused by a sharp-edged and pointed weapon like a knife. On internal examination the sternum was found cut through and through and pericardium was found punctured. There was blood in pericardial and pleural cavities on both sides. In the opinion of the police surgeon the cause of death was shock and haemorrhage due to stab wound of the chest puncturing the heart. This injury was sufficient in the ordinary course of nature to cause death. It is thus clear that whoever stabbed the deceased, with a sharp-pointed weapon such as the knife on the region of the heart with such a force as to cut the sternum through and through and puncture the heart, must have intended to cause such injury as was sufficient in the ordinary course of nature to cause death; for a man is presumed to have intended the natural consequences of his act.
5. The next question for consideration that arises in this case is whether the present appellant caused the above injury to the deceased. On this point the evidence which is direct as well as circumstantial is overwhelming and quite convincing. The prosecution has examined complainant Head Constable Muhammad Latif who caught the appellant immediately after the stabbing. He did not know any of the parties and he is, therefore, an absolutely independent eye-witness to the incident. Besides him there is evidence of Abdur Rahman who was employed on the grass shop at which the stabbing occurred, He also acted as a mashir of securing of the blood-stained knife and of the arrest of the appellant. Then there is evidence of Aqilzada who was also travelling by the same bus and who also came from Swat. Even Aqiizada has stated that Fazal Ghani gave 5 or 6 blows to the appellant while travelling in the bus and after getting down he asked the appellant as to why he had abused him and he again grappled with the appellant. There is also evidence of Shirin Khan another Pathan labourer travelling in the same bus and he too has stated that a quarrel took place between the appellant and two other persons and they again started the quarrel on getting down from the bus. He witnessed this quarrel because he had also got down at the same stop. Then there is evidence of Ramzan who also worked at the same grass-shop where the incident took place. He too has stated that the appellant and two other pathan boys got down from the bus and they were seen quarreling and grape piing. The appellant then took out the knife from his pant pocket and stabbed one of the Pathan boys. All these witnesses had hardly known any of the parties and were present at the spot where the incident took place. There is no reason for disbelieving their evidence. Lastly there is occular evidence of Usman Ghani, brother of the deceased, who has also stated that the appellant took out his knife and stabbed his brother in the chest. His brother fell down bleeding while the appellant tried to run away with the knife and was caught by the police man in civilian dress.
6. There are also pieces of circumstantial evidence which clearly connect the appellant with this offence. The appellant was caught on the spot with blood-stained knife and taken to the police station. His clothes which were blood-stained were also secured. The blood on his clothes, according to the Chemical Examiner's report, was of the same group as the blood of the deceased He had also superficial cuts on his hand. It has, therefore, been sufficiently established that the appellant caused the death of Fazal Ghani.
7. The only important question for consideration in this case is regarding the nature of the offence.
Ordinarily a case of stabbing with a knife such as the present one on the region of the heart cutting the sternum and piercing the heart would fall within the purview of clause (iii) to section 300, P. P. C.
In this case, however, the circumstances are quite peculiar. The appellant and the deceased had suddenly quarreled in the bus shortly before getting down and even after getting down they had again grappled. The deceased was a Pathan having much better physique and was aged about 24 years. As corn-pared to him the accused was a Sindhi boy of about 16-1/2 years. The question would, therefore, arise whether the case would fall under Exception IV to section 300, P. P. C. Namely, whether the death was caused in a sudden fight in the heat of passion upon a sudden quarrel and whether the offender has taken undue advantage or acted in a cruel or unusual manner. In this case the attack was unpremeditated and the act was committed in the heat of passion. It was the result of sudden fight. However, what has to be seen is, whether the appellant had taken any undue advantage over his victim or acted in a cruel or unusual manner because the deceased is said to be unarmed while the appellant took out a knife and stabbed him in the chest. But then too one has to look to the surrounding circumstances. The deceased was a very strong man and a Pathan of about 24 years of age. With him there was another companion ready to take his side. On the other hand the appellant was weaker and he had already been victim of 5 or 6 fist blows. He had, therefore, struck only one blow to the deceased with his knife and then tried to-escape. Mere facts that the appellant used a knife do not, therefore per se mean that he took undue advantage or acted in a cruel or unusual manner. In a similar case reported in 1969 SCMR 653 in a sudden fight the accused had struck one blow at the deceased with a knife and had then fled; it was held that the case was covered by this Exception and he was convicted under section 304, Part I, P. P. C. The facts of the present case are also similar to another case, Haider Zaman v. The State (1). In that case Haider Zaman who was a young man of 18 years of age was provoked by deceased Abdul Khaliq. They both grappled but were separated. Afterwards Abdul Khaliq passed by the but of the accused and the accused uttered some words whereupon Abdul' Khaliq went forward and asked him what he was talking about. This was followed by grappling between the two. In the meantime appellant Haider {{FOOT NOTE}}
(1) PLD 1963 Kar. 228 {{FOOT NOTE}} ' Zaman took out a knife from his pant pocket and stabbed the deceased on the left side of his chest as a result of which Abdul Khaliq collapsed on the spot. The appellant immediately ran away from the spot but he was chased and caught. It was argued in that case that since the accused had used a knife and caused a fatal blow he had, therefore, taken undue advantage. The defence counsel, however, relied on the decision in the case of Nasiruddin Haider v. The Crown (1). In this case also the accused had struck only one blow to the deceased with a knife after a verbal quarrel and grappling. Upon the facts of the case it was held that the case was covered by Exception IV to section 300, P. P. C. And the accused had not acted in a cruel or unusual manner. In another case reported in PLD 1960 Lab. 339 the accused was 15 or 16 years of age and the deceased had jumped upon him and it was in this situation that the accused had taken out a knife and stabbed him causing but one injury ; the fight being unpremeditated and sudden. On these facts the conviction of the accused was altered from section 302 to one under section 304, Part I, P. P. C.
Whether the accused had taken undue advantage or acted in a cruel manner would, therefore, depend upon the facts of each case and no hard and fast rule can be laid down in that regard. In the case of Haiderzaman referred to above Mr. Justice Farooqui had remarked as under :- "If in the circumstances and in the heat of the moment he gave one single blow to the deceased while they were still grappling, it cannot be said that he either acted cruelly or took undue advantage. After all he was the weaker party and it is his state of mind which has to be taken into consideration in the circumstances having regard to the fact that he had already been beaten up once a short while earlier. It may also be noted that having wrested his hand from the grip of Abdul Khaliq he gave out one blow and releasing himself ran away from the place. We are, therefore, of the opinion that the case of the appellant comes within Exception 4 to section 300 of the P. P. C. We therefore alter the conviction of the appellant from section 302 to section 304, Part I, P. P. C."
8. In the present case also the appellant was a weaker boy and he was being grappled by a hefty Pathan who was very much older to him and stronger. In these circumstances the appellant gave a single blow with the knife in the chest of the other fellow and started running away. Under the circumstances, judging the state of his mind, it cannot be said that he took undue advantage or acted in a cruel or unusual manner. Mere use of a knife per against an unarmed adversary in such circumstances would not take away the case from the application of Exception IV to section 300, P.
P. C. In such a case the deceased though unarmed was more stronger and the manner of attack and the weapon used could not be said to be out of proportion to the offence. All the circumstances must be taken into consideration for deciding, whether undue advantage has been taken.
9. The learned Sessions Judge however believed that it was for the defence to show that the case came under any of the Exceptions to section 300, P. P. C. But a plea for bringing the case under any of the Exceptions need not be made in so many words. The Court can take it into consideration even if it is not specifically pleaded if the circumstances indicate that it is otherwise applicable to the facts of the case. The nature of the plea is to be ascertained from the statement of the accused as well as the trend of cross-examination And even the arguments, at the bar. Nor could it be said that a fatal injury {{FOOT NOTE}}
(1) PLD 1950 Lah. 17 {{FOOT NOTE}} ' with the knife inflicted on the chest would bring the ease within the ambit of Second Part of section 304, P. P. C. As the accused could only be presumed to have the knowledge that the blow might result in death. The conviction under section 304, Part II would not, therefore, be proper in the circumstances of the case. I would accordingly alter the conviction of the appellant to that under section 304, Part I, P. P. C. By allowing him the benefit of Exception IV to section 300, but would maintain the same sentence of 7 years' R. I. But for this modification the appeal is, otherwise dismissed.