' Appellant Fakir Muhammad, who is a cultivator by profession, was treated by the learned 3rd Additional Sessions Judge, Sukkur, on a charge under section 301, P. P. C. For allegedly committing the murder of one Mitho. He was, however, convicted by the learned trial Court for an offence under section 325, P. P. C., and was sentenced to 5 years' R. I. And also to pay a fine of Rs, 1,000 in default of the payment whereof, he was to undergo further R. I. For 6 months. The appellant, by this appeal, has impugned his conviction and sentence. A suo motu notice was also issued to the appellant to show cause why the sentence imposed on him by the learned Additional Sessions Judge be not enhanced. This judgment will dispose of both the appeal and the suo motu show-cause notice.
2. The prosecution case, shortly stated, is that on 6-11-1974, at about 11.30 a.m, first informant Haji Bahawal, who is the real uncle of the deceased, lodged a report at Mirpur Mathelo Police Station, which is at a distance of about 18 miles from the scene of offence, to the effect that on the preceding night, his nephew, deceased Mitho, had gone to Dhol) Mehar village, from where he did not return, and on the following morning, at 'Fakir' prayer time, be was informed at his house by one Kaboolo that Mitt was lying senseless in an uncultivated field, at a distance of 3 to 4 furlongs from the village whereupon he (first informant Haji Bahawal) accompanied by his nephews. Allah Rakhio and Azeem, went to the scene of offence, where they found Mitho lying injured, who then is said to have recovered consciousness, and informed them that while he was returning to his village, at about dawn time, he was given blows by Fakir Mohammad Mehar and other Mehars. The first information report does not mention the nature of the weapons with which the deceased was attacked. The deceased, who had been brought to the police station in a bullock-cart, in an unconscious state, was sent to the Civil Hospital Sukkur, but he died on the way to the hospital.
3. The p post-mortem of the deceased was held on 7-11-1974, which disclosed 5 external injuries on the deceased, 4 of which were contusions and 1 was an abraded contusion. On internal examination, multiple fractures were noticed on the left side of the frontal bone with a suture between the frontal and parietal bone separated. There were also fractures of the left temporal bone, the right temporal bone and second rib. A subcutaneous haematoma was also noticed under the scalp of the deceased extending from the frontal region to the occipital region and left temporal region.
4. The appellant is said to have been arrested on 13.11-1974 from his house and he is alleged to have produced a 'Lathe before the Police, which however, was not blood-stained. On the following day, namely 14-11-1974, the appellant was produced before the Sub-Dvisional Magistrate, Mirpur Mathelo, who recorded his judicial confession on the same day at 2-00 p.m.
5. The defence of the appellant is of complete denial. He claims that he has been falsely implicated and alleged that he had made the confession under pressure as the police had sent for his women-folk and threatened to disgrace them.
6. At the outset, it might be stated that no specific motive has been alleged for the appellant to have committed this crime, but it has been alleged by P. W. Allah Rakhio that there was a dispute between the appellant and the deceased over water. No other witness, however, has spoken of this or any other motive for the crime.
7. The learned trial Court has based the conviction of the appellant on two pieces of evidence, namely:-
(a) the dying declaration allegedly made to P. W. Haji Bahawal, Allah Rakhio and Azeem at the scene of offence, and
(b) the judicial confession recorded by the learned A. D. M., Mirpur Mathelo, on 14-11-1974.
8. As to the dying declaration, I find myself unable to accept the same. It has been admitted in the F. I. R. That Kaboolo, who had informed Haji Bahawal and others about Mitho lying injured in the fields had clearly tated to the witnesses that he had found Mitho lying unconscious. It is, also admitted by the witnesses that immediately after Mitho made the alleged dying declaration he lost consciousness and did not regain the same before he succumbed to his injuries. It is improbable, in view of the above circumstances and looking to the seriousness of the injuries sustained by him, that the deceased could have regained consciousness and that too only for the short period during which the witnesses were present with him and communicated to them the name of the appellant. There are other circum stances which throw doubt on the alleged dying declaration. According to the first information report, Mitho is said to have informed the complainant and other witnesses that he was given blows by the appellant and other Mehars.
However, both Haji Bahawal and Azeem have deposed in their evidence that Mitho gave out that only the appellant had given him blows. So far as the P. W. Allah Rakhio is concerned, he has denied that the deceased made any dying declaration in his presence. According to him, first informant Haji Bahawal had gone to the scene of offence before his arrival there and it was he who had told him and P. W. Azeem that the deceased had regained consoiousness and had informed him that the appellant had given him the blows. The first information report, as already stated, does not mention with what weapon the deceased was attacked and given blows. If the deceased had really regained consciousness, as alleged by Haji Bahawal and Azeem, in all probability he also would have mentioned the weapon with which he was given blows. It might further be mentioned that even Kaboolo has only partially supported the prosecution case. Although he has deposed that he had seen the deceased lying injured and in an unconscious state in the field and gone to the village of the complainant to inform the complainant or Azeem but had given the information to one Kaloo Mehar who was sleeping outside the house of Haji Bahawal. This witness was declared hostile and hence his evidence is of no material assistance to the prosecution.
9. So far as the judicial confession of the appellant is concerned, it was retracted by the appellant at the earliest opportunity. His contention that he made it under pressure as the police had sent for his women-folk, evidently in order to disgrace them, is supported by P. W. Allah Rakhio and Kaboolo.
No doubt, Kaboolo has been declared hostile on the allegation that he has been won over by the appellant and has therefore given obliging evidence, but P. W. Allah Rakhio was not declared hostile, and therefore, his evidence on this point has practically gone unchallenged. There is another circumstance which throws doubt on the confession. Although S. H. O. Ohulam Hussain In his examination-in-chief has stated that he arrested the appellant on 13-11-1974 and produced him on the following day, he has admitted in his cross-examination that he d arrested the appellant on the third day of the incident. This would can that the appellant was arrested on the 8th and he was thus produced or confession some 6 days later. No explanation is forthcoming why he appellant took such a long time to make a confession, if he was ready d willing on the very first day to make a confession, as would appear from he Mashlrnama of the production of 'Lathi' by him. The probabilities appear o be that the appellant was arrested soon after the incident, or at least n the third day of the incident, as admitted by the S. H. O. For there is no llegation that the appellant was absconding or was not available at his ouse. Another defect which has been noticed in the judicial confession is hat though the learned Magistrate has admitted in his evidence that he I not question the appellant as to why he was making the confession, In he certificate which the learned Magistrate has recorded, he had stated hat the appellant had informed him that he was making the confession ue to repentence. Finally, the confession does not appear to quite fit in ith the other evidence on record. According to the confession, the appelant and the deceased had grappled with each other and when the appellant ave 'Lathi' blows to the deceased, the latter raised cries.
However, neither ny marks of injury or violence were noticed on the appellant, nor any Mien of the locality was attracted on the alleged cries of the deceased despite e fact that the scene of offence, as stated by the Tapedar, is visible both om the house of Isso Korai, which is only 960 feet away from it, and the Ilage of the complainant, which is 1750 feet away. In the circumstances, am not satisfied that the confession was either voluntary or true. It thus annot be made the basis of the conviction of the appellant.
10. In view of the matter that I have taken, I would give the benefit of oubt to the appellant, accept his appeal and set aside his conviction and entente. He is directed to be forthwith released if not required in any other . The suo motu notice for enhancement of sentence stands discharged.
11. S. H. O. Ghulam Hussain has made contradictory statements as the date when he arrested the appellant. Let notice issue to him to show use why he should not be prosecuted for giving false evidence.
Appeal accepted.
1078 Cr. P L 523 [Karachi] Before Z. A. Channa and G. M. Shah, JJ THE STATE-Appellant versus SA DIQ HUSSAIN -Respondent Criminal Acquittal Appeals Nos. 50 and 51 of 1975, decided on 6th ecember 1977. sal Code (XLV of 1860)- - S. 409 read with Basic Democracies Order (18 of 1959), cl. 2(e)-Accused, a Secretary of Union Council charged with offence of misappropriating funds received on voluntary basis for development schemes of Council-Contention that collection of contributions on voluntary basis by Union Council not being authorised moneys could not be said to have been collected by accused in performance of his official duties and hence outside scope of such duties-Contention repelled-Mere want of sanction, held, could not mean that such contributions were not collected in course of performance of duties by accused-Accused, held, clearly guilty of offence under S. 409, P.
P. C. In circumstances. [p. 528]A & B Usman Ghanl, Asstt. A.-G. With Ghulam All Agha for the State.
Manzoor Hussain for Respondent (in Crl. Acg. Appeal No, 50 of 1975). Aftab Ahmed Alri for Respondent (in Crl. Acq. Appeal No, 51 of 1975). Dates of hearing : 21st and 28th November 1977.
' A. CHANNA , J.-These are two connected appeals by the Provincial Government under section 10 of the West Pakistan Criminal Law Amendment Act, 1958, read with section 417 of the Cr. P. C., which have been heard together. Criminal Acquittal Appeal No, 50/75 is directed against a judgment delivered on 30-9-1974, by the Special Judge-cum-Enquiry Officer, Anti-Corruption, Hyderabad, acquitting respondent Mohammad Warial, who was a peon in the Union Council, Lundo, of an offence under section 409, P. P. C., for committing criminal breach of trust in respect of an amount of Rs, 375 while Criminal Acquittal Appeal No, 51/75 is directed against the judgment delivered by the same learned Judge on 24.3-1975, acquitting respondent Sadiq Hussain, who was the Secretary of the aforesaid Union Council, of offences under section 409, P. P. C. And section 5(2) of the Prevention of Corruption Act, 1947, for committing criminal breach of trust in respect of an amount of Rs, 1,135.
2. The facts, which form the background of the two appeals, are that the Chairman of the Union Council, Lundo, took the two respondents with himself to the villages and areas within the limits of the Union Council for the purpose of collecting donations for construction of roads and installation of hand-pumps on self-help basis. Some of the persons who were approached gave donations in cash for which receipts were issued by respondent Sadiq Hussain, who retained the amounts for crediting into the fund of the Local Council, respondent Warial was deputed to collect contributions from other persons who had promised to give donations but had no ready cash for the purpose.
Respondent Warial approached five such persons, namely. Riaz Ahmad, Haji Mohammad Sadiq, Raja Wasim Unar, Muhammad Siddiq son of Mohammad Din and Haji Jan Mohammad, and received from them various amounts totalling Rs, 375, for which he gave proper receipts to them. It is alleged that he misappropriated the said amount instead of crediting it in the fund of the Lundo Union Council. Likewise, it is alleged that respondent Mohammad Sadiq did not credit the contributions which he had received and for which receipts had been passed and misappropriated the amounts so received.
3. So far as the case of respondent Mohmmad Warial is concerned, his defence is that no doubt he had received a total amount of Rs, 375 from the aforesaid 5 persons, but he had handed over the said amount to the Secretary, respondent Mohammad Sadiq. In his defence, he examined Mohammad Sadiq, who supported the version of Mohammad Warial and admitted that the latter had handed over to him the amount of Rs, 375 which had been received by him as contributions and donations from the members of the public. In view of the evidence of D. W. Mohammad Sadiq, which has not been challenged, Mr. Usman Ghani Rashid, the learned Assistant Advocate General, conceded that no case was made out against respondent Mohammad Warial. The duty of this respondent was to hand over the amount collected by him to the Secretary Mohammad Sadiq.
Furthermore, this respondent had issued proper receipts for the amount collected by him. In the circumstances, he appears to have acted quite properly and no offence of criminal breach of trust is made out against him. We accordingly are of the view that his acquittal was in the circumstances, quite proper and we uphold the same. The appeal of the Provincial Government against his acquittal is accordingly dismissed.
4. So far as respondent Mohammad Sadiq is concerned, the evidence is that he either in the company of the Chairman of the Union Council or by himself received from different persons various amounts totalling Rs, 1,135 which sum he was required to deposit in the fund of the Local Council, but he failed to do so and it is alleged that he misappropriated the same. The persons from whom he had received these constributions are Nabi Bux, Muhammad Achar, Khan Mohammad, Mir Kban, Rais Mehar Kban, Choudhry Mohammad Bitawal, Ghulam Hussain Dal, Haji Dbeni Bux, Datar Dinno, Rais Mohammad Khan, Mohammad Ibrahim Talpur and Mattu. Out of them, Nabi Bux, Ghulam Hussain Dal, Datar, Dinno and Mattu have been examined while the receipts issued to the remaining persons have been produced by the prosecution. Additionally, it is alleged against this respondent that he had misappropriated the amount of Rs, 375 which had been collected by respondent Mohammad Warial, who had admittedly handed over this amount to him.
5. The learned Assistant Advocate-General submitted that respondent Sadiq Hussain, in his statement in Court, has admitted receipt of these amounts and passing receipts therefor and consequently the burden of accounting for these sums lies heavily on him, specially, as in his capacity as a Secretary, this respondent was required to maintain the account books and deposit in Bank the monies received on behalf of the Union Council in the account of the Union Council.
6. Mr. Aftab Alvi, the learned counsel for the respondent Sadiq Hussain, has supported the judgment of acquittal of the learned Special Judge and opposed the appeal on 3 grounds, namely :-
(1) that the sanction for the prosecution of this respondent is defective inasmuch as it is in respect of amounts allegedly received and collected by the respondent during tho months of July and August 1969, whereas, in fact, most of the amounts received by this respondent were in the month of September ;
(ii) according to rules, the over all financial control and supervision of the accounts of the Union Council was with the Chairman and the contentions of the respondent taken together with other circumstances in the case do not exclude the reasonable possibility of the respondent having handed over the amount in question to the Chairman, as stated by him ; and
(iii) that In any case, the offence alleged against the respondent does not fall under section 409, P.
P. C., because the moneys in question were not collected by the respondent in the performance of his official duties and were in fact outside the scope of such duties.
7. So far as the first contention of the learned counsel is concerned, it appears to be without any substance. The learned counsel has based his contention on the inspection vote recorded on the working of the Union Council, Lundo, by P. W. Gui Mohammad Bhatti, who was Development Officer, Basic Democracies, at the relevant time, and the report made by him to the Anti-Corruption Officer.
In both the inspection note and the report, the witness has given, except in respect of 2 items of Rs, 100 and Rs, 80 respectively, different dates in the month of September 1969, on which respondent Sadiq Hussain had received the amounts for the misappropriation of which he was tried. However, reference to the original receipts and their counterfoils clearly show that all these monies were received by respondent Sadiq Hussain in the month of July. These dates were specifically put to respondent Sadiq Hussain while he was being examined by the Court under the provisions of section 342, Cr. P. C. And he admitted to have received the amounts on those dates. It is, therefore, clear that all the amounts in respect of which respondent Sadiq Hussain was prosecuted, including the amount of Rs, 375 which was admittedly handed over to him by respondent Mohammad Warial, were in the months of July and August and consequently, the sanction accorded in the instant case suffers from no infirmity or error as to the period when the amounts were actually received by respondent Sadiq Hussain.
8. In regard to his next contention, Mr. Aftab Alvi has relied upon tly, the statement of respondent Sadlq Hussain, secondly, the West Pakistan Union Councils Accounts Rules, 1960, and lastly, the evidence of Chairman Ghous Bux as also the evidence of P. Ws. Mohammad Ibrahim and Khan Mohammad.
9. No doubt, respondent Sadiq Hussain, in his statement under section 342, Cr. P. C. Has stated that he had given the amount received by him to the Chairman, but not only no evidence has been led by him in support of his contention but further, the receipt of the money by Chairman Ghous Bux has been specifically denied by him. In fact, Haji Ghous Bux has stated that respondent Sadiq Hussain after taking oral permission from him had absconded and it was only after his abscondence the amounts were checked and the defalcation came to light. In this connection we would also refer to the evidence of P. W. Zamir Hussain who was Secretary of the Union Council after respondent Sadiq Hussain. He has stated that respondent Sadiq Hussain had left without Charge Report, as no such Charge Report was on the file of the Union Council. Haji Ghous Bus is an old man of 65 years and a Zamindar by profession. We have seen his signature on some of the documents and we find from the way in which he has signed that he is hardly literate and is perhaps able to only to write his signatures. If the money had been given by respondent Sadlq Hussain to Haji Ghous Bux, he would have obtained a receipt from him for the amount, which admittedly he did not do. His contention that after he paid the amount to Haji Ghous Bux, the latter asked him to get out, is not supported by any circumstance on record. Furthermore, on receipt of the moneys he should immediately have shown the same in the cash book, which admittedly he did not do. Wo are not impressed with his contention that he was prevented by the Chairman from making the entries since the cash and other account books were in his charge.
10. The learned counsel next invited our attention to the West Pakistan Union Council Accounts Rules, 1960, specifically rule 9 thereof, which reads as follows :- "9. Responsibilitlee of the Chairman.-(1) The Chairman shall be responsible for the assessment and collection of all revenues of the Union Council. He shall take such steps as may be necessary to ensure that there are no arreas.
(2) The Chairman shall be the disbursing authority, and no pay-ment shall be made out of the Union Fund except under his order.
(3) All accounts relating to the Union Fund shall be compiled under the supervision of the Chairman.
(4) The Chairman shall be responsible for the financial regularity of all transactions relating to the Union Fund, and for the maintenance of their amounts correctly and in accordance with these rules."
11. The submission of the learned ccansel was that the over all responsibiity for the assessment and collection of moneys of the Union Council was of the Chairman and consequently it should be presumed that he had received the moneys from respondent Sadiq Hussain, specially as no report against the said respondent appears to have been filed or made by the Chairman. No doubt, according to the aforesaid rule, the over all responsiWiry for the assessment and collection of the revenues of the Union Council Is to be of the Chairman and all accounts relating of the Union Council are to be compiled under his supervisior, but this does not mean that ho has to write down the accounts or that the account books are in his charge. According to the rule 10 of the aforesaid Rules a cash book in the prescribed form is to In. Maintained by every Union Council in which the receipts of all cheque books and took-transfers receipts for credit to the Union Fund are to be entered as soon as the receipt is issued. The said rule further provides that at the end of each day the total amounts received and paid during each day are to be worked out and the balance struck.
According to this rule the entries in the cash book are to be checked by the Chairman item by item with receipts and vouchers attested in token of the checks. This rule, therefore, clearly envisages that the cash book is not to be retained by the Chairman but presumably by the Secretary who was incharge of the account books. The fact that the account books are to he with the Secretary is also stated by P. W. Gul Mohammad, the Development Officer of the Basic Democracies. As already stated, upon receipt of any amount for the purposes of the Union Council Fund, the receipt of the amount is to be shown in the cash book of the Union Council, as provided in rule 10(6) of the West Pakistan Union Council Rules, 1863. The fact that respondent Sadiq Hussain did not enter these amounts in the cash book further goes to show that his version that he had given the amounts received by him to the Chairman appears to be without foundation.
12.
13. #TBS
14. Appeal accepted.
15. #TBE
16. Reliance by the learned defence counsel on the testimony of P. Ws. Mohammad Ibrahim and Nabi Bux is also misconceived. So far as P. W. Ibrahim is concerned, he stated that he had paid an amount of Rs, 100 to respondent Sadiq Hussain in the latter's office and obtained receipt for the amount from him. He has further stated that at that time Chairman Ghous Bux was not even present in his o ce. As regards P. W. Nabi Bux, who was appointed Nikahkhwan by the Union Council, be has stated that ho bad received a sum of Rs, 5 from Achar towards Nikah Fee and had paid this amount to respondent Sadiq Hussain and obtained from the latter an acknowledgement on the back of the counterfoil of the receipt which he had given to Aohar. The witness has stated that he does not remember whether at the time he gave this amount to the Secretary Sadiq Hussain, Chairman Ghous Bux was in the office or not. We thus do not see how the evidence of these two witnesses in any way assists the case of Sadiq Hussain that he had handed over the amounts received by him to Chairman Ghous Buz.
13. The last contention of the learned counsel, namely. That the offence alleged against respondent Sadiq Hussain does not fall under section 409, P. P. C., is equally devoid of any substance. This contention is based on the ground that the collection of contributions on voluntary basis by the Union Council was not authorised and hence it was not a part of the duty of respondent Sadiq Hussain to collect the same. A complete answer to this contention is provided by Article 48 of the Basic Democracies Order, 1959, sub-clause (e) of clause (2) whereof provides that all sums contributed by individuals or institutions, or other Local Councils, or by local bodies or other local authorities shall be credited to the Local Fund of the Union Council. It is true that the schemes for road building and installation of hand-pumps, for which the contributions were colleted on behalf of the Union Council, were not sanctioned by the Collector, who was the controlling authority of the Union Council, but want of sanction does not mean that the contibutions collected were not in the course of the performance of his duties by respondent Sadiq Hussain. P. W. Gul Mohammad has stated that the procedure was that first of all the Union Council collects the local share for the construction of roads and then makes a request to the Deputy Commisasioner for allotment of the funds for the construction of roads, etc., showing what local share has been collected. There may have been valid reasons for the controlling authority not to sanction the construction o the proposed roads or the installations of hand-pumps by the Lundo Unio Council, either because the contributions of the local share collected by the Unicn Council were insufficient or for any other reason. But the rejectio of the scheme does not mean that the contributions were not collected for the purposes of the Union Council and were not to be credited in th funds of the Union Council.
Furthermore, at least the amount of Rs, collected from Nikahkhwan, Nabi Buz, was a collection of a lccal duty an this amount was to be credited to the Local Fund, which respondent Sadi Hussain failed to credit.
14. We have very carefully examined the evidence in the case and ar of the opinion that respondent Sadiq Hussain clearly is guilty of miuppropria tion of the moneys received and collected by him on behalf of Lundo Unio Council, including the amount of Rs, 375 admittedly received by him fro peon Mohammad Warial for being credited into the fund of Lundo Unio Council. We accordingly accept the appeal of the Provincial Govemmen as against respondent Sadiq Hussain, set aside his acquittal and convict hi of offences under section 409, P. P. C., and section 5(2) of Prevention o Corruption Act, 1947. In view of the fact that the matter pertains to th year 1969, we consider that the ends of justice would be met if we impose o respondent Sadiq Hussain a sentence of 4 months'
R. I., and also require hi to pay a fine of Re. 1,200, in default whereof he will undergo further R. For 6 months.
1978 Cr. P L 529 [Lahore] Before Saad Saood Jan and M. A. Ghafoor Khan Lodhi, J SHAH MUHAMMAD-Appellant versus THE STATE-Respondent Criminal Appeal No, 8401 of 1972. (e) Criminal trial- - Approver's evidence-Evidentiary value - Approver a self confessed criminal and under temptation of saving his own skin-Conviction, held, cannot be based on approver's sole testimony unless corroborated in material particulars.-(Approver-ConvictionEvidence]. Fp. 532] 4 Muhammad Bashir v. State PLD 1971 SC 447 and Yaru v. Tha State PLD 1959 Kar. 662 rel.
(b) Evidence Act (I of 1872)- -- S. 27-Fact, recovery of-Accused pointing out to police place where he allegedly disposed of dead body of deceased but such information not leading to recovery of dead body-Information given by accused before Police, held, not admissible in evidence.-(Recovery]. [p. 533]8
(c) Penal Code (XLV of 1860)- -- S. 302-Evidence, appreciation of-Conviction mainly resting on bare words of approver-While prosecution story relating to manner of arrest of accused and recoveries of incriminating articles on his pointing appearing to be a made-up affair-Not an iota of evidence on record to corroborate testimony of approver-Conviction and sentence set aside, in circumstances. - (Evidence - Approver-Conviction].
533]C Ch. Ghulam Bari Saleemi for Appellant. Yousuf All for the State.
' M. A. GHAFOOR KHAN LODI% J.-Shah Muhammad son of Wali Mohammad aged 34 years was tried and Convicted by the learned Additional Sessions Judge, Lahore under sections 302 and 201, P. P. C.
And sentenced to death under section 302, P. P. C. And to 4 years' R. I. And fine of Rs, 2(X) or to undergo six months' R. I. In default of payment of fine under section 201, P. P. C. On the allegation that he along with Mat. Sarwar Begum had murdered Muhammad Hayat deceased. The appellant has preferred Appeal No, 8401 of 1972 against the conviction and sentence and the learned Additional Sessions Judge, has made Murder Reference No, 5 of 1973. Who appeal and the murder reference will be decided together through this judgment.
2. The facts of the case briefly stated are that Muhammad Hayat deceased took up service with the Mercantile Company, 44-Brandreth Road, Lahore and put up along with his family in a rented quarter situated on the upper storey of the Company in which he was employed. The appellant was living in the room adjacent to the quarter of the deceased and on account of neighbourhood the deceased and the appellant had been lint upon each other which facilitated the developing of illicit connection between the appellant and Mst. Sarwar Begum, widow of the deceased. The appellant and Mat. Sarwar Begum conspired to murder the deceased when Mat. Sarwar Begum showed her inability to get divorce. The appellant brought four capsules containing some intoxicating drug. 25 yards of plastic and a Chhura. The contents of two capsules were removed and salt was put in them and they were separately wrapped in a piece of paper whereas the intoxicating two capsules were put in separate piece of paper and some identification mark was made on it. The appellant took the deceased to his own rcom for taking tea which was to be prepared and brought by Mat. Sarwar Begum there. At about 10 p.m. When the children of the deceased had gone to sleep, Mst. Sarwar Begum served tea to the deceased and the appellant.
The appellant put the intoxication capsules in the cup of the tea meant for the deceased and put the capsules containing salt in his own cup. A short time after taking tea the deceased started dosing and ultimately became unconscious. The appellant brought a Chhura from the almirah and cut the neck of the deceased up to its half. With another stroke he totally removed the neck from the trunk. On the asking of the appellant Mat. Sarwar Begum brought an attache-case and an empty bag. The appellant cut the dead body into two pieces near umbilicus and after removing a golden ring from the finger and a watch from the wrist of the deceased, he wrapped the upper part of the dead body in the plastic already purchased by him. The plastic was tied with ropes and put in the attache-case. He wrapped the lower porticn of the dead body in another piece of plastic and put it into a sack. The head was wrapped in another piece of plastic and was placed in a bag.
Blood was washed and cleaned. Bloodstained bedding, the clothes of the deceased and the blood-stained clothes of Mat. Sarwar Begum were burnt. The appellant took away the attache- case containing the upper part of the dead body and returning a bit before sun-rise told Mat.
Sarwar Begum that he had placed the attache-case in a train bound for Sargodba. At Isha time the appellant took away the sack containing the lower portion of the dead body and on returning at about 11 or 12 mid-night he told Mst. Sarwar Begum that he had left the sack in Badamibagh. In the morning the appellant took away the head, coat and shoes of the deceased and the Chhura and on his return at about 9 a.m. Told Mat. Sarwar Begum that while going to Sheikhupura he had thrown all the articles in a canal.
3. Bashir Abmad, cousin of the deceased, made application P. F./1, at the Police Station Naulakha stating that Mat. Sarwar Begum had gone to Bolah Shah where she disclosed that the deceased had left at 8 a.m. On 15-3-1970 and had not returned. That Muhammad Sharif informed Bashi!.
Ahmed on 25-3-1970 at 3 p.m. About the disappearance of the deceased. That Mat. Sarwar Begum had told Sardar Muhammad after three or four days of the disappearance of the deceased that the deceased bad gone to Sheikhupura. It was also stated in the said application that the deceased had told him when he had visited him in Mouza Faiapur Kalan that Mat. Sarwar Begum had received Rs, 400 secretly from their neighbour Shah Muhammad and that he was apprehending danger from her. It was also stated in the application that Mst. Sarwar Begum had got murdered the deceased from her paramour. Aslam Beg Head Mali Minto Park found in the presence of many persons a sack in the Minto Park which was attracting a large number of flies. On opening, the lower part of a dead body of a male person was found wrapped in a plastic sheet.
Aslam Bes Head Mali thereupon made written report P. A. To Safdar Hussain A. S. L Police Post Badami Bagh. Muhammad Na;ir S. I., P. W. 23 seized the gunny bag and sent the lower part of the dead body to the hospital for autopsy. Fahim-ud-Din finding an attache-case floating in the canal which on being opened was found to be containing the upper part of a human body without head wrapped in a plastic bag, reported the matter to Manzur-ul-Hassan A. S. I. Police Station Sadar, Sargodha who prepared the formal F. I. R., P. A./1 from the report P. A.
4. The appellant is alleged to have gone to Haji Muhammad Ibrahim P. W. 20 on 2nd April 1970 and made an extra-judicial confession stating that he with the assistance of Alit. Sarwar Begum had murdered Muhammad Hayat, Haji Muhammad Ibrahim sent a ruqqa Bah. P. J. Through Ch. Muhammad Yagoob to the Inchargo Police Station, Naulakha Informing him about the presence of the appellant with him. Ch. Muhammad Aslam Jaura, Inspector, Police Station, Misri Shah, Lahore reaching there, arrested the appellant and removed from his person the wrist watch P. 3 and golden ring P. 2 on his disclosure that the said articles belonged to the deceased. The appellant is alleged to have led Ch. Muhammad Aslam, Inspector on 6-4-70 to the shop of Riaz P. W. Stating that he had purchased the plastic sheet from there. He is also alleged to have taken the same Inspector on the same day to Minto Park stating that there he had thrown the dead body of Muhammad Havat deceased. The appellant is also alleged to have pointed out a place at Upper Chanab Canal near Khanpur Thal situated at a distance of 10 miles from Lahore, stating that he had thrown the Chhura there. Ghulam Haider P. W. Was made to dive in the Canal who after mating a long search brought out Chhura P. 6, Golden ring P. 2 was identified to be belonging to the deceased by Meraj Din. Goldsmith, Muhammad Sharif and Bashir Ahmad Javid. Muhammad Bashir also identified wristwatch P.
5. The post-mortem examination of the upper portion of the dead body revealed that it was the dead body of some unknown person. According to the doctor the head had been removed from the neck and the lower part of the body was missing above the umbilicus. No mark of any injury was found on the chest. In the opinion of the doctor the death had occurred due to shock and haemorrhage caused by decapitation and removal of lower part of trunk along with lower extremeties.
6. Mat, Sarwar Begum was made an approver and the learned Sessions Judge based the conviction on her evidence coupled with the evidence of the recovery of blood-stained Chhura P. 6, articles of the deceased, namely, finger ring P. 2, and wrist watch P.
3. The statement of Mat. Sarwar Begum is almost the same as narrated in the facts of the case above. Learned counsel for the appellant has argued that since the recoveries were made before the statement of the approver was recorded, conviction could not be based on the said statement.
There is no hard and fast rule on the point that the statement of the approver should not be believed if the corroborative evidence has been received before the statement was recorded, but still this possibility is to be excluded before accepting the evidence of the approver that the facts already known to the police were not tutored to the approver. In the present case such a possibility cannot be excluded. Mat. Sarwar Begum gave full details about the disposal of the three parts of the dead body along with plastic sheets, Chhura, bags, finger ring and wrist watch of the deceased. The witness also gave the particulars of the places where the parts of the dead body were thrown by the appellant. She could be interested in the disposal of the dead body but it was unnecessary to tell her the manner in which and the places where the pieces of the dead body were thrown. The same thing may be said about the disposal of the Chhura. It, therefcre, appears that since all these matters had come to the knowledge of the police before the statement of the approver was got recorded they were taught to her. Even otherwise the conviction cannot be based on the sole testimony of the approver, because such kind of witness being a self-confessed criminal is under the temptation of saving his own skin. Th possibility cannot be excluded that Mst.
Sarwar Begum approver murdered the deceased with the assistance of some other person and in order to say the real culprit has deposed against the appellant. In order to marry with another person she went to the extent of taking the life of her husband with whom she had spent 12 years and had three children from him. Therefore, it would be quite unsafe to rely upon the testimony without any material corroboration. In this connection reliance may be placed on Muhammad Bar* v. State (1) and Yaru v. The State (2). Except her own statement there is no evidence that she was carrying on with the appellant. Bashir Ahmed Javid no doubt wrote in his application P. F./1 that the deceased had told his sister's son Manzur Ahmed that Mst. Sarwar Begum had received secretly Rs, 400 from Shah Muhammad appellant and that he apprehended danger from her but the said Bashir Ahmed Javid did not state so in his statement. Moreover, what Bashir Ahmed wrote P. F./1 is hearsay because he does not say that he himself had heard the deceased telling Manzur Ahmed what is written in report P. F./1 and Manzur Ahmed was not examined as witness. If the deceased had been of the opinion, or suspected that Mat. Sarwar Begum had illicit connection with the deceased, he would not have allowed the appellant to visit his quarter nor would have taken the capsules in the tea. So there Is no corroboration of this part of the statement of Mat. Sarwar Begum that she had developed illicit connection with the appellant. Other kind of corroborative evidence is also wanting. No doubt evidence of the recovery of ring P. 2 and wrist watch P. 3 had been produced but the very story of the arrest of the appellant is doubtful. The appellant is alleged to have been got arrested by HO Muhammad Ibrahim P. W.
20. The said witness stated that the accused came to him at Gujranwala and told him that he had murdered Muhammad Hayat with the assistance of his wife, namely, Mst. Sarwar Pegum and asked him for help. There appears to be no reason why the appellant would have made confession befcre Haji Muhammad Ibrahim P. W.
20. When the appellant had taken every precaution to conceal the murder of the deceased and had completely done away with the dead body and every incriminating article it is difficult to believe that all of a sudden he would change his mind and decide to make a confession - before the said witness. The prosecution has not shown any circumstances which compelled the appellant to make the confession and to seek help from bim. The other improbability is that in normal circumstances Haji Muhammad Ibrahim P. W. 20 would have informed the local Police, Gujranwala but be stated that he sent ruqqa P. J. To Incharge Police Station Naulakha, Lahore. This is further strange that the appellant who is alleged to have gone to P. W. 20 early in the morning remained with him up to 1-30 p.m. When he was arrested by the police. P. W. 20 did not state that he had detained th appellant on some pretext. Before the Committing Magistrate this witne stated that he was not on speaking terms with the appellant. This is strang that he made confession before a person and sought help from him wi whom his relations were strained. Again it does not stand proved tha {{FOOT NOTE}}
(1) PLD 1971 SC 447 (2) PLD 1959 Kar. 662 {{FOOT NOTE}} in reality P. W. 20 sent any information to the Police Station Naulakha, Lahore. He stated that he sent ruqqa P. J. Through Talib Hussain P. W. But the said Talib Hussain was not examined and Ch. Muhammad Yaqub who at that time was Inspector. Police Station Naulakha, Lahore, stated that Haji Muhammad Ibrahim P. W. Had never sent any ruqqa to him in connection with this case. Ch. Muhammad Aslam Jaura, the then Inspector, Police Station Misri Shah no doubt stated that on 2nd April, he had received ruqqa P. J. Sent to him by Ch. Muhammad Yaqub P. W. 14 Inspector Police Station, Naulakha through Talib Hussain but when the said Inspector does not state that he either received any ruqqa from Haji Muhammad Ibrahim or sent it to Ch. Muhammad Aslam, the whole story stated by Hsji Muhammad Ibrahim P. W. 20 relating to the arrest of the appellant and the removal of golden ring P. 2 and wrist watch P. 3 from his person falls to the ground. The result is that as the recovery of golden ring and watch P. 3 alleged to be belonging to the deceased is doubtful, the appellant does not stand connected with the murder of the deceased. This is also noteworthy that Merej Din P. W. 17 and Muhammad Basbir who identified ring P. 2 and watch P. 3 stated that both these articles were of common pattern. They did not give any special identification mark by which they identified the two articles. Anyhow, even if there evidence is relied upon, still the very recovery of the articles is not beyond doubt, this piece of evidence does not give the necessary corroboration to the statement of the approver.
7. The recovery of Chhura P. 6 also appears to be a made-up affair. According to Cb. Muhammad Aelam Inspector P. W. 22 the appellant was arrested on 2-4-70 and he got recovered the Chbura on 6-4.70 but the recovery memo of the Chhura P. E. Bears the date as 16-3-70. Still further according to Mushtaq Ali P. W. 18 the appellant was on duty on 30-3.70 when he was taken away by the Police on the said date. So the recovery Memo. P. E. Which carries the date as 16-3-70 is manifestly a fictitious document. When the memo., itself is fictitious the very factum of the recovery of the Chhura comes out to be a fabricated piece of evidence.
8. No doubt evidence had been produced that the appellant showed the place where he is alleged to have thrown the lower part of the dead body but as the information given by him did not lead to any discovery, whatever B he stated before the police is not admissible in evidence not being covered by section 27 of the Evidence Act. The said section applies only when some discovery is made at the instance or pointing out of the accused. The appellant is alleged to have shown the shop of Riaz Masood P. W. 21 but as nothing was recovered from the shop, the evidence of this witness too is not admissible. Moreover, the plastic sheets alleged to have been purchased by the appellant from Riaz Masood P. W. 21 were not got identified from this witness. The other defect in this evidence is that no identification parade was held for getting the appellant identified by the said witness. So for this reason also his evidence that he was the appellant who had purchased plastic sheets from him cannot be relied upon. This witness did not state that the appellant was known to him before he had brought the plastic sheets. This is noteworthy that no counterfoil receipt or copy of any cash memo was produced by P. W. 21 showing that it was the appellant who had produced the plastic sheets.
9. The result of all this discussion is that there is not an iota of evidence on the record which may corroborate the testimony of Mst. Sir war C Begum approver. So the learned Additional Sessions Judge was not justified in convicting the appellant. The prosecution failed to prove the case beyond any shadow of doubt. We, therefore, accept the appeal of the appellant and setting aside the conviction and sentences under sections 302 and 2P1, P. P. C. Acquit him. The sentence of death awarded to him by the learned Additional Sessions Judge is not confirmed.
Appeal allowed.
1978 P Cr. L 534 [Karachi] Before Z. A. Channa and G. M. Shah, II JUMMA KHAN-Appellant versus THE STATE-Respondent Criminal Appeal No, 189 and Confirmation Case No, 32 of 1976, decided on 10th October 1977.
(a) Penal Code (XLV of 1860)- -- S. 99 read with Criminal Procedure Code (V of 1898), S. 59-Private defence, right of-Accused neither seen committing offence nor anyone coming forward to say that accused actually committed or even attempted to commit offence-Plea of right of private defence, held, not available under S. 99, P. P. C.. As against pursuers of accused when recourse could be had to public authorities.-[Private defence, right of]. [p. 538]4 State v. Muhammad Akbar PLD 1966 SC 432 ; Murad v. State PLD 1961 Kar. 137 and Sultan Ahmad v. State PLD 1970 SC 206 ref.
(b) Penal Code (XLV of 1860)- -- S. 300, Exception IV read with S. 304, Part II-Sudden fight-Accused in an attempt to avoid his capture, causing fierce knife blow to deceased puncturing lungs and cutting into heart-No premeditation or intention to kill deceased established-Accused, held, cannot be credited with intention of deliberately seeking out a vital part of body for attack-Conviction under S. 302, P. P. C.
Altered to one under S. 304, Part II, in circumstances.-[Sudden fight]. [p. 538]E1 Muhammad Hapat Junejo for Appellant.
Syed Nasiruddin for A.-G. (Sind) for the State. Date of hearing : 10th October 1977.
' Z. A. CHANNA , J.-Appellant Jumma Khan was tried alongwith one Aurangzeb by a learned Additional Sessions Judge, Karachi, in respect of an offence under section 302 read with section 34, P. P. C., for committing the murder of Tanweer Iqbal Ahmad, and while co-accused Aurangzeb was acquitted, the learned Additional Sessions Judge, by his judgment delivered on 28-7-1976, convicted the appellant under section 302. P. P. C. And sentenced him to death. The appellant has preferred an appeal against his conviction and sentence and also the proceedings have been submitted to us by the learned Additional Sessions Judge under section 374, Cr. P. C. For confirmaticn of the capital sentence awarded to the appellant. By a short order, we had, on 10-10- 1976, partly accepted the appeal of the appellant and had substituted for the death sentence awarded to him under section 302, P. P. C. a sentence of 7 years' R. I. Under section 304, Part H. We now proceed to give reasons for that order.
2. The prosecution case, shortly stated, is that on 6-3-1972, at about 12 noon, deceased Tanweer was standing at the bus stop near Saeed Manzil, alongwith his friends, Ashiq Hussain and Abdul Manan, when a bus arrived and stopped at the bus stop. Two men alighted from the bus and started running towards Radio Pakistan. In the meanwhile cries were heard from passengers in the bus "catch them, they are thieves". Thereupon, the deceased and his two friends chased the two men who were running away. On the commotion, other persons, including Mohammad Shah and Mohammad Rafique, joined in the chase. The deceased, however, was the foremost in the thaw and was able to come very close to the two men running away. Thereupon, it is alleged, one of these persons, at the instigation of the other, turned round and with a churri stabbed the deceased in the chest, who immediately fell down. The person who is said to have stabbed the deceased is stated to be the appellant. Despite the knife attack upon the deceased, the chase continued and ultimately both the appellant and his companion, Aurangzeb, were apprehended at a distance of about 100 paces from the vardat and the blood-stained churri is stated to have been snatched away from the hand of the appellant. Thereafter, the appellant and co-accused Aurangzeb wore taken by Abdul Mennen and others to Preedy P. S. Where they handed them over, alongwith the blood-stained churri secured from the appellant, to the Police. An entry was made in the Station diary, giving the time of the entry as 12.60 p. m. About the production of the appellant and Aurangzeb and the churn. In the meanwhile, P. W. Ashiq Hussain had taken injured Tanweer Iqbal in a private car to the Civil Hospital, where it was found that Tanweer Iqbal had died. On a telephonic message being sent about the death to S. H.
0. Fareed Ahmed of Nabi Buz P. S. The latter went to the Civil Hospital, where ho recorded the statement of P. W. Ashiq Hussain which was sent to the P. S. For incorporation in the register of cognizable cases. This statement, however, was recorded at 1 p. m. That is ten miatues after the production of the appellant and co-accused Aurangzeb at Preedy P. S. And the recording of the entry in the Station diary of that P. S. In that behalf. As such, the learned Additional Sessions Judge rightly held the entry in the Station diary of Preedy P. S. And not the statement of P. W. Ashiq Hussain to be the F. I. P.
3. On hearing of the production of the appellant and co-accused Aurangzeb at the Preedy P. S , S. H.
0. Mohammad Farid went to that P. S., took over their custody and secured a blood-stained shirt from each of them. He also took possession of the churn' which had been produced at the Preedy P. S. The S. H.
0. Also secured a blood-stained chappal and bloodstained earth from the vardat.
4. The autopsy on the deceased was conducted by Dr. A. S. Shamim who has deposed that he found the following external injury on the deceased t- "Incised wound 1' xr wr cavity deep on the fourth inter-costal space, one inch lateral to right side eternal margin and about 2' about the right nipple."
5. In the opinion of the doctor, the above injury was caused with a sharp-edged and pointed weapon and was homicidal in nature. He has further testified that on internal examination he found the chest cavity full of blood, an incised wound in the interior surface of middle lobe of right lung and a penetrating incised wound in the right sternum of the heart, penetrating up to the left auricle, posteriorly.
6. {{BLURr PAGE}}
7. Two more doctors have been examined in the case. One is Dr. Moose Ibrahim who examined the appellant and found 4 injuries on his person, of which two were contusions, one a Iacono!" wound on the head and the last an abrasion on the fore=arm. The ether doctor examined P. W. Abdul Manan and on whom the doctor fou0s1 a contused abrasion on the loft hand. According to P. W.
Abdul Maness this injury was caused to bias W the appellant when he was attempting to apprehend him.
8. The appellant, in his statement under section 347, Cr. P. C., completely o, the prosecution allegations, inehiding the recovery of a bloodottaiOod tt frism hiuperson. His sapiens** for the injuries On his perms was that he woheaten and tortured by the police. IL The learned Additional Sessions Judge, in our opittins, has cenrully apPraitted the evidence ia the case, and rightly held that it km* the alsisellant who caused the fatal injury to the *Std. Indeed hi topf opittlom "hen is overwhelming evidence on this p*t. As :001 as fiv !IWO* -ham testified to having ICOR the impalas' giviettise fatal blow tetlaidecemseed. They are P. Ws. Ashtq Hussain and &Witt *MO (who were with the deceased at the 'time of the incident iitid had jollied him in cbasieg the appellant), Mohammad Sherif (who ea* theineldent from the verandah of his house) and Mohammad Saleem and Habib- nr-Rehmste (who wan taking tee in a hotel and joined the chase upon hearth; 0411:01t '1104 Wet% P.
We Abdul Manan and Mohammad Salons have further-delposedta'ksW11/ apprehended the appellant after a chew On distance eirpboat 100 pante from the place where be bad stabbed' the denaid, snatched away the blow"' stained Awl from him and his productiot alongwIth the churl at the ?Reedy P. S.
9. The evidence of the eye-witnesses Is *Metal MO convincing. MI of them are independent and disinterested *tittle* Who had no motive to falsely implicate the appellant. The prawn" is injury oe P.
W.. Ahdel Mayan lends further support to his version of having chased and apprehended the appellant. The possibility of a wrong'penon having been caught is ruled out by the fact that the appellant, who was being chased by a large number of persons, was apprehended only a short, distance away from the virus and at the time of apprehending bias a . Blood-stained chard was recovered from his hand. There are' no doubt some contradictions in the teatimon of the eye- witnesses but they are minor in nature and do not affect Veracity or the essential points of their evidence.
10. Corroboration to the testimony of the eye-witnemes provide by the presence of injuries on the person of the apPellant, which he seems t have sustained during the struggle to apprehend him, and the recovery o a blood stained shirt from his person; as deposed to by the S. H.
0. Pari Ahmad. Masbir Sardar, however, has not supported the proseCution c in regard to the recovery of the shirt and has stated that he saw the shirt a the police station. In our opinion he appears to have been won over b the defence, as in the first place the mashirnama for the recovery of the bears his signature, and secondly S. H.
0. Parisi Ahmed had no motive t foist a blood-stained shirt on the appellant.
11. {{BLURR PAGE}}
12. Mr. Mohammad Hayat Junejo, the learned counsel for the appellee submitted that even if it be held that the fatal injury to the deceased w caused by the appellant, the offence committed by the appellant at bas would fall under motion 304, Patt I, in that he acted in the right of priva defence though he may have exceeded his right. His precise contention we that the appellant was being chased by a number of persons who wanted to apprehend him but had no legal right to do so, and as such the appellant was entitled to resist his unlawful arrest by them. The learned counsel relied upon section 59, Cr. P. C. Which empowers a private person to arrest another person only if such other person is a proclaimed offender or if he commits cognizable and non-bailable offence within the view of the person first named. Mr. Mohammad hayat Junejo submitted that in the instant case not only no witness joining in the chase of the appellant claims to have seen the appellant committing theft but further there is no evidence. To establish that any theft was committed and all that is stated on this point is that cries of "thief", "catch him" were heard coming from the bus from which the appellant and the co-accused are said to have alighted. The learned counsel submitted that not only such cries cannot be said to have established the factum of theft but further the persons chasing the appellant cannot be said to have acted in aid of persons who had seen the theft being committed. The learned counsel relied upon a number of rulings in support of his contention that in the circumstances the appellant clearly had a right of private defence of person though he may have exceeded the same,
12. The first authority on which the learned counsel relied upon was the decision of their Lordships of the Supreme Court in the case of State v. Mohammad Akbar (1). The facts of that case were that in consequence of hearing an alarm of "thief", "thief", a number of persons, who were on patrol duty, seeing two persons approaching them, who were followed by others cr)ing "thief", "thief", attempted to stop them, whereupon one of those men, fired three revolver shots, two of which struck one of the patrol party and injured him fatally. While holding that the person firing the pistol shots had, in the circumstances of the Case, the right of self-defence to the point of killing a person, Cornelius, C.
J. Observed as follows :- "It is necessary to point out that the words "in his view" are of the most specific nature, and in their natural and proper meaning, they are confined to things actually seen. To extend these words to cover a case where action is taken on the basis of a reasonable ground to think that a person sought to be arrested has committei a non-bailable and cognizable offence, may, in our view, be regarded as an attempt to legislate, The differential power expressly given by section 54 to a Policer Officer to act on reasonaNe suspicious of thing not actually seen by him, would by itself appear to stand in the way of any attempt to enlarge the powers given to a private person under section 59."
13. The next case relied upon by the learned counsel for the appellant was Murad v. State (2) in which a semew hat broader view of section 59, Cr. P. C. Was taken. In that case it was held that "the combined effect of section 59, Cr. P. C. And subsection (2) of section 46 is that a person who has not witnessed the occurrence can effect the arrest of a person running after committing a non- bailable cognizable offence if he is called upon to do so by a person who has seen such an offence being committed by the culprit running away".
1 J. The latter view was upheld by their Lordships of the Supreme Court in the case of Sultan Ahrnad v. State (3). In that case it was observed as follows I- "In our view, section 59 should not be construed so as to burden the {{FOOT NOTE}}
(1) PLD 1966 SC 432 (2) PLD 1961 gar. 137
(3) PLD 1970 SC 206 {{FOOT NOTE}} Legislature with the intention that in providing the shield to private individuals to apprehend the culprits who commit cognizable and non-bailable offences in their preserce, it had intended that this shield is to be limitad only for those individuals who actually see the commission of the crime by their own eyes and is not available to those who come to their assistance on their outcry for help. Such a restricted view, in our opinion, would destroy the much wanted but rarely displayed public spirit on the part of the neighbours and others who might come to the rescue of the victims of dastardly crimes, and help them in bringing the culprits to book."
15. We are, however, of the view that even if the pursuers of the appellant had no legal right to arrest the appealant inasmuch as neither they had themselves seen the appellant committing the theft nor has any one come forward to say that theft was actually committed or even attempted be committed by the appellant, the appellant had no right of self-defence against the deceased.
Section 99, P. P. C. Provides that there is no right of private defence in cases in which the a is time to have recourse to the protection of public authorities. The incident took place in broad daylight on a very busy road in Karachi. We can take judicial notice of the fact that on this road there are policemen posted at short distances at road-intersections and other important points for control of traffic. The deceased was unarmed and he was caused the fatal injury before he could even touch the appellant. The latter could, if he had desired, sought the protection of the traffic Police if he thought that he was being unjustifiably and illegally arrested. This, however, he failed to do and instead started running towards the byelanes, clearly indicating thereby that he did not desire assistance of the authorities.
16. Though in our opinion the appellant does not appear to have had any right of private defence against the deceased, we are of the view that he had no intention to kill the deceased. Admittedly only one blow with knife was given by the appellant to the deceased. No doubt; the blow was given on a vital part of the body and apparently was with considerable force, for the knife penetrated the chest cavity and punctured the lung as well as cut into the heart of the deceased, but we are of the view that the blow was given without any premeditation, in the heat of the moment and for the purposes of detecting pursuit and avoiding capture. The appellant cannot in those circumstances be credited with the intention of deliberately seeking out a vital part of the body for the knife attack.
He apparently struck wildly but the blow unfortunately caused fatal injuries to the deceased.
Though the appellant did not appear to have the requisite intention, we consider that he must be saddled with the knowledge that a knife blow, struck with such force as was used by the appellant, was likely to result in death, specially as the blow was aimed at the upper part of the body which houses the lungs and the heart. We would accordingly alter his conviction and sentence of death under section 302, P. P. C. To a conviction and sentence of seven years' IL I. Upder section 304, Part IF, and allow his appeal to that extent.