' Allah Yar (36) son of Pathana Khan, resident of Kothi Shaheen, Multan City was tried by the learned Sessions Ju-'ge, Multan for the murder of Mustafa Khan, his sister's husband. By judgment dated 20-2-1976, he was convicted and sentenced to life imprisonment and a fine of Rs, 1,000 or in default of the payment of fine, to further undergo rigorous imprisonment for one year. The amount of fine if recovered, was ordered to be paid to the heirs of the deceased. He has appealed against his conviction and sentence.
2. The prosecution case in brief is that both the appellant and the deceased were residing with their families in the servant quarters attached to the bungalow of Nawab Muhammad Sharif Khan Khakwani. The appellant suspected that the deceased had developed illicit re'ations with his wife.
On 9-12-1973 at about noon, the deceased was present in his quarter alongwith Hafiz Ahmad Bakhsh P, W. 3, his cousin, Mst. Walayat Bibi P. W. 11 his mother, Mst. Hamidan his sister. At about 12- 30 p. m. The deceased took a bicycle and left his quarter for bazar. Mst. Walayat Bibi and Hafiz Ahmad Bakhsh P. Ws. Heard some noise. They came out and saw that the deceased and the appellant were quarrelling with each other. As they reached near them, the appellant gave a kirch blow on the chest of the deceased saying that he had been taught a lesson for rape (Uj). On receiving injury, the deceased fell down while the appellant ran with blood-stained kirch. Just then Zulfiqar P. W. 12 came there. Hafiz Ahmad Bakhsh P. W. 3 shouted calling upon Zulfiqar to catch hold of the appellant, but the appellant succeeded in escaping. Hafiz Ahmad Bakhsh narrated the occurrence to Zulfiqar P. W.
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3. The deceased was taken in a car in an injured condition to the Nishtar Medical College Hospital, Multan. Muhammad Nasrullah P. W. 16, A. S. I. Police Station, Old Kotwali, Multan on receipt of a telephonic message from the hospital, reached there at about 2-40 p. m. He recorded the statement (Exh. P. D.) of Zulfiqar Ali P. W.
12. Formal F. I. R. (Exh. P. D./1) was then prepared by Taj Din A. S. I. P. W. 8 at about 3-30 p. m. On the same day. The case was initially registered under section 307, P. P. C.
4. The A. S. I. After recording the statement went to the spot. He took into possession blood-stained earth vide memo. (Exh. P. A.) and made it into a sealed parcel. The injured person regained senses on 12-12-1973. He recorded the statement (Exh. P. J.) of the deceased under section 161, Cr. P. C. He arrested the appellant on 12-12-1973. The deceased succumbed to the injuries on 14-12-1973. A. S. I.
Ghulam Hussain P. W. 10 on receipt of this information went to the hospital. He prepared the injury statement (Exh. P. N./1) and inquest report (Exh. P.
0.) of the dead body and despatched the same to the mortuary for post-mortem examination. On 20-12-1973, the appellant while in police custody led to the recovery of kirch P. 1 from under the ground near Old Mortuary, Multan. This was taken into possession vide memo. (Exh. P. E). Site plan (Exh. P. C.) and its duplicate (Exh. P. C./1) was got prepared from Bashir Abmad Shah P. W.
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5. On 9-12-1973, Dr. Rahmat Ullah examined the deceased when he was alive. He found an incised wound 1" X, " depth (not probed) on the right side of the chest 1" medial to the left nipple. Dr. Altai Hussain Gardezi, conducted the post-mortem examination on the dead body on 14-12-1973) at 5- 00 p.m. He found the following injuries on his person :- "(1) An incised wound 1" long stitched on the front of right chest r medial to the right nipple."
' He found an operational wound 14" long stitched on the front and back of right chest. He also found a small operation 1" on the front of left chest 2" above the left nipple. The pleaurae was cut, repaired and adherent on the right side. The right lung had a cut li" long which was stitched and repaired but this part of the lung was gangrenous and pus was present in the wound and also in the right pleural cavity. Left lung was congested. Pericardial cavity contained greenish pus and myocardium was gangrenous, right side contained clotted blood, left side empty. In the opinion of the doctor, the cause of death was progressive deterioration and toximea as a result of injury No, 1 which was sufficient to cause death in the ordinary course of nature. He admitted that the injury itself was not an immediate and direct cause of death, but instead the toximea was the cause of death. He further stated that the surgical intervention was done on the left side of the chest, although the injury was on the right side of the chest. According to him the shock resulting from surgical handling might have contributed its part in causing death.
5. The appellant when examined at the trial refuted the charge and pleaded :- "On the day of occurrence, I was working in my office in the bungalow of Nawab Muhammad Sharif Khan. At about mid-day, I proceeded towards my quarter to fetch certain document from there.
When I was at a distance of a few paces from my quarter, I heard cries of my wife, asking for help from inside my quarter. I rushed into my quarter and found the deceased attempting to commit rape with my wife. I challenged him whereupon he took out a knife from his dab and attacked me, we grappled with each other and in this scuffle, the deceased raised a cry and fell down. He was either injured by himself or he might have received an injury in the scuffle while I was trying to wrest the knife from him. I called Zulfiqar from the bungalow of Nawab Naqshband Khan through a telephonic message. The mother of the deceased was also living with the deceased and Zulfigar at the bungalow of Naqshband Khan. The deceased never lived in the bungalow of Nawab Sharifn. My wife, Mst. Haseena Begum, is not related to the deceased."
' The appellant denied the recovery of blood-stained kirch P. 1 at his instance.
6. The prosecution at the trial relied on the following pieces of evidence :- ' The ocular evidence given by Hafiz Ahmad Bakhsh P. W. 3, Mst. Walayat Bibi P. W. 11 ; motive as stated by Mst. Walayat Bibi P. W. 11 the recovery of kirch P. 1 ; the dying declaration (Exh. P. J.) recorded by Nasrullah A. S. I. P. W. 16, and finally the medical evidence.
7. The learned trial Judge has accepted the motive as alleged by the prosecution. He has relied on the ocular testimony of Hafiz Ahmad Bakhsh P. W. 3 and Mst. Walayat Bibi P. W. 11 as corroborated by the statement of Zulfiqar Ali, P. W.
12. He has rejected the defence plea that the death was accidental. As the kirch P. 1 had not been sent to the Chemical Examiner and the Serologist, the recovery has not been used against the appellant.
8. Learned counsel in support of this appeal has raised the following contentions
(i) the two eye-witnesses, i. e., Hafiz Ahmad Bakhsh and Mst. Walayat Bibi are closely related to the deceased. Their evidence, therefore, could not have been accepted without corroboration. Zulfiqar Ali P. W. 12 was not a witness of the occurrence. His evidence, therefore, could not corroborate the testimony of the interested witnesses ;
(ii) the plea of the appellant that the death occurred due to scuffle between him and the deceased, was reasonably plausible and, therefore, should have been given due consideration. The learned trial Judge has erred in keeping the case of the prosecution and the defence at par ;
(iii) the deceased and the appellant were living in the servant quarters of the same bungalow. The appellant had suspicion that the deceased had illicit liaison with his wife. At the time of occurrence, he found the deceased attempting to commit rape on his wife inside the quarter. It was, therefore, a case of grave and sudden provocation and the appellant entitled to the benefit of Exception I to section 300, P. P. C. ; and
(iv) the appellant had inflicted only one blow to the deceased. The nature of the injury and the conduct of the appellant indicate that the appellant did not intend to cause his death. The appellant could have repeated the blow or had caused the injury at some vital part of the body.
The death was not as a direct result of the injury. The conviction of the appellant under section 302, P. P. C. Is, therefore, not proper. He was at best guilty of culpable homicide not amounting to murder.
9. The learned State Counsel on the other hand argued that the prosecution has been able to establish the case against the appellant to a hilt. He adopted the reasoning of the learned trial Judge and highlighted them to some extent.
10. I have considered the arguments of both the learned counsel. I feel that no exception can be taken to the view formed by the learned trial Judge on the merits of the case. The occurrence did not take place inside the quarter. Hafiz Ahmad Bakhsh P. W. 3 has stated in the cross-examination that the quarter of the appellant would be about 35 karams away from the place of occurrence. If the scuffle, as alleged by the accused, had taken place inside the quarter, blood could have been recovered from there. There was no suggestion that there was any trail of blood between the place of occurrence and the quarter of the appellant. The Investigating Officer had denied the suggestion that the place of occurrence was inside the quarter. The witnesses had not admitted that they had seen the wife of the appellant near the place of occurrence. The plea of the appellant, therefore, does not appear to be even remotely plausible and was rightly rejected by the learned trial Judge.
11. No doubt the two eye-witnesses are close relations of the deceased, yet their presence is not much in dispute. The appellant, moreover, does not dispute the occurrence itself. The incident was narrated to Zulfiqar P. W.
12. By Hafiz Ahmad Bakhsh P. W. 3 immediately after the occurrence. He had seen the appellant running away. This witness is the real brother of the deceased. I do not think that the evidence of these witnesses merits discredit only because they are related to the deceased. The F. I. R. Was promptly lodged. It was a day time occurrence. Only one assailant has been named in the police report. The learned trial Judge was, therefore, justified in placing reliance on the ocular testimony.
12. Having held that the occurrence did not take place inside the quarter of the appellant, it will be difficult to accept the plea of grave and sudden provocation. There is no basis for this plea. I have no hesitation in rejecting this contention of the learned counsel.
13. The last contention, however, merits serious consideration. At the time of the attack, the appellant is alleged to have declared : {{URDU TEXT}} He did not repeat the blow. Even this blow had landed on the chest. The circumstances, therefore, indicate that the element of intentional killing wa not there. The case, therefore, does not fall under the main part of sec- A tion 300, P. P. C. The case similarly does not fall under clause secondly or fourthly of this section. Comparison of clause thirdly of section 300, P. P. C. And the phrase "or that the intention of causing such bodily injury as is likely to cause death" in section 299, point out a subtle distinction between murder and culpable homicide not amounting to murder. Under clause thirdly, the injury intended to be inflicted should be sufficient in the ordinary course of nature and in the phrase of section 299, P. P. C. Quoted above, the injury caused may be 'likely' to cause death.
The difference though subtle, is quite distinct. If the injury inflicted is likely to cause death, the offender cannot be held liable for murder as defined in section 300, P. P. C. In the instant case, keeping all the circumstances in view and in the light of the medical evidence, it cannot be said that the blow given to the deceased was sufficient to cause death in the ordinary course of nature.
Injury on the chest may be likely to cause death, but it is not always sufficient in the ordinary course of nature to. Cause death. I, therefore, feel that conviction of the appellant under section 302, P. P. C.
Cannot be sustained. I allow this appeal partly, set aside the conviction under section 302, P. P. C.
And convict the appellant under section 304, Part I, P. P. C. In the circumstances of the case, and keeping, also, in view that the appellant had faced a protracted trial, I think the ends of justice will be met if he is sentenced to 7 years' rigorous' imprisonment; I order accordingly. The sentence of fine and the sentence in default of the payment of fine are, however, maintained. The amount of fine realised, as directed by the trial Court, will be paid to the heirs of the deceased.