MUHAMMAD MUNIR Versus THE STATE
Muhammad Munir son of Shah Muhammad, caste Arain, resident of Basti Soda, Police Station Shahr Farid, tehsil Chishtian, district Bahawalnagar, has been tried and convicted by Additional Sessions Judge, Bahawalnagar, under section 302, P.P.C., vide judgment dated 2-5-1984. Learned trial Judge sentenced him to imprisonment for life and fine of Rs.5,000 or in default to undergo one year's R.I. and further directed to pay Rs.5,000 as compensation to the heirs of the deceased or in default to undergo one year's R.I. The convict has filed the instance appeal challenging his conviction and sentence while Muhammad Ibrahim uncle of the deceased has filed Criminal Revision No.68/84/BWP praying for enhancement of sentence of the appellant. Both appeal and the revision being connected matters are disposed of by this single judgment.
2. On 13th January, 1981 at 1.45 p.m. the appellant allegedly stabbed the deceased outside Meery's Hotel in "Chowk Fawara" Chishtian Town and ran away. The incident was witnessed by Sanober Khan (PW 8), a friend of the deceased, Waqar Hussain (PW 12) arrived there and removed the injured in his car to Chishtian Hospital and got him admitted there for examination and treatment. As Abdul Sattar was seriously injured the Medical Officer, Chishtian, informed S.I. Muhammad Musa (PW11) on telephone about his arrival whereupon S.I. Muhammad Musa (PW11) reached the hospital and having obtained doctor's opinion on Ex.PC/2 about fitness of injured to make statement, recorded his statement Ex.PH on the basis of which formal FIR Ex.PH/1 was drawn. The S.I. then moved an application to the Assistant Commissioner, Chishtian, for deputing a Magistrate for recording dying declaration of Abdul Sattar, whereupon Sardar Ghulam Nabi, Extra-Assistant Commissioner, Chishtian was deputed for the job who came to the hospital, recorded his statement but the same had been lost before the trial commenced. The prosecution attempted to bring on record a-statement Mark 'A' (copied out from the police zimini) but when it was shown to Sardar Ghulam Nabi, EAC (PW13), in Court he denied to confirm it to be the same (similar to) statement of Abdul Sattar recorded by him in the hospital.
3. Abdul Sattar died in the hospital at 12-25 a.m. on 14-1-1981. Learning about his death, S.I. Muhammad Musa (PW11) reaching the hospital, prepared inquest-report Ex.PE and sent the dead body for post-mortem examination under Police escort. He then visited the spot, prepared the site plan Ex.PJ with its marginal notes. He arrested the appellant from Bus-stand of Chishtian on 14-1-1981 and at his pointation recovered knife P6 from his residential Chobara and seized 'it vide memo Ex.PF, which was found as blood-stained vide Chemical Examiner Report Ex.P0. After completing the investigation the appellant was challaned to Court. The statement Ex.PH of Abdul Sattar (deceased) recorded by S.I. Muhammad Musa and treated as dying declaration by the trial Court reads as under:---
"I work as Halvai in Dergai. My maternal-uncle Shah Muhammad lived in Basti Soda, Police Station Shahr Farid. I married his daughter Mst. Kaniz 13/14 years before. From the wedlock a son, namely, Abdul Ghaffar was born. When Abdul Ghaffar was 11 years old I divorced Mst. Kaniz due to domestic dispute. At this Muhammad Munir son of Shah Muhammad Arain brother of Mst. Kaniz felt annoyed. Fearing trouble I could not see my son Abdul Ghaffar after Talaq. In order to see my son Abdul Ghaffar I alongwith my friend Sanobar son of Hamid Gul Pathan, resident of Pakman Shahbaz Garh, Mardan, came to Basti Soda today at 11/12 noon. We tried to meet him but did not succeed. Then both of us came to Chishtian and in Chowk Fawara on a barber's shop Muhammad Munir who was 'on a bicycle met us. He complained to me about my having divorced his sister. After we were free from the Hamam at 1.45 p.m. we went to a nearby hotel later known as belonging to a person namely Meery. I and Sanobar went there to take meals. Munir also came with us in the hotel and then went out. He called me out. When I went to him he exchanged hot words with me and then got provoked and asked me as to why I had come there and why I was pursuing them and simultaneously he plunged the knife in my abdomen. I fell down on account of the injury. Sanobar Khan saw the occurrence who came running near me. The alarm attracted Waqar Hussain son of Abdul Aziz Kharal whose name I learnt later. Some other persons of the nearby locality and shopkeepers also arrived. I narrated the occurrence to them wheareafter Waqar Hussain and Sanobar Khan brought me in the former's car to Chishtian hospital. Because I had divorced Mst. Kaniz, therefore, Munir with intention to kill me had injured me with knife. His cycle is present at the spot. Action be taken. Munir accused had run away from the spot brandishing his knife."'
This statement was recorded at 2-45 p.m. in the hospital.
4. Dr. Irshad Ahmad (PW7) examined Abdul Sattar (deceased) in injured condition while alive and found the following injury on his person:-
"A stab wound on left side of abdomen close to the mid-line of abdomen and in line with the umblicus measuring 3 cm x 1 cm, transverse in direction. A loop of small intestine was lying out of abdomen through this injury and it was cut."
The patient was conscious, his blood pressure was nil, radial pulse was nil but femoral pulse was present and the injury was declared as grievous dangerous to life, caused with sharp-edged weapon within about 6 hours. He was admitted in the hospital for treatment. He died at mid-night on 14-1-1981, as stated earlier. The dead body was shifted to the mortuary and the same doctor conducted post-mortem examination at 8.45 a.m. on 14-1-1981. On dissection of the dead body the doctor noted that small intestine was cut at one side, mesentry was cut at two sides, blood vessels in the mesentry were cut, blood vessels of the large intestine were also cut. Paritonial cavity was full of blood. There was cut in all the clothes corresponding to the injury. In the opinion of the doctor, the cause of death was haemorrhage and shock produced by the said injury which was sufficient to cause death in the ordinary course of nature. The time between injury and death was about 12 hours while the post-mortem was conducted after eight hours and 20 minutes of death.
5. At the trial, prosecution examined 13 witnesses to prove its case. The important among them are Sanobar Khan (PW8) who is the solitary eye-witness of the occurrence; S.I. Muhammad Musa (PW11) who recorded the dying declaration Ex.PH of the deceased and investigated the case, Tahir Hussain (PW9) who witnessed the recovery of blood-stained knife (P6) at the pointation of the appellant from his Chobara on 14-1-1981; and the medical witness Dr. Irshad Ahmad (PW7) who besides deposing the cause of death had opined on Ex.PC/2 that the deceased fit to make statement.
6. The appellant when examined under section 342, Cr.P.C. denied the allegations and in reply to question, 'why this case and why do the P.Ws. have deposed against you', stated that the deceased, his friend Sanobar and one Abdul Aziz were notorious smugglers of opium and wine, etc. They had quarrelled among themselves and had injured Abdul Sattar. He further stated that he had enmity with the investigating officer S.I. Muhammad Musa who falsely implicated him in this case. Further, stated that he was 5 years' old when his sister had obtained ex parte decree of dissolution of marriage against Abdul Sattar and denied that he threatened the deceased, on this account. He did not produce any defence-evidence.
7. The solitary eye-witness Sanobar (PW8) stated that he was friend of Abdul Sattar, deceased, who used to run "Halvai" Shop in Dergai (Mardan) where he used to sell milk. He alongwith the deceased arrived in Chishtian at 11/12 noon on the day of occurrence as the deceased wanted to see his son Abdul Ghafoor. They went to Basti Soda and tried to contact Abdul Ghaffar but did not succeed. They returned to Chistian and visited shop of a barber where Muhammad Munir (appellant) met them. They as well as Muhammad Munir (appellant) went to the nearby hotel for taking meals. Munir also sat with them. Then Munir (appellant) took Abdul Sattar (deceased) to one side and started abusing him and said as to why he had left (divorced) his sister Abdul Sattar paid him in the same coin, whereupon Munir whipped out a knife and stabbed him in the abdomen. Ghulam Sadiq and Ghulam Dastgeer came there. Waqar Hussain also arrived and removed the deceased in his car to the hospital where he died at 12 mid-night. In cross-examination he stated that he was -friendly with Abdul Sattar for the last 12 years. He came to know after the occurrence that sister of the appellant had obtained divorce from the deceased 12 years back. He denied the suggestion that two other persons were also with them who quarrelled with Abdul Sattar and killed him. He also denied that on receipt of the injury Abdul Sattar had become unconscious.
8. Learned trial Court on consideration of material on record found the appellant guilty under section 302, P.P.C. and awarded him lesser penalty for it had held that the attack was not premeditated. Feeling aggrieved the appellant has filed the instance appeal against his conviction and sentence.
9. I have heard learned counsel for the appellant as well as for the State and also perused the record.
10. Learned counsel appearing on behalf of the appellant frankly conceded, and rightly so; that it stands proved on the basis of dying declaration, ocular and medical evidence that it was the appellant who had caused knife blow to the deceased which resulted in his death. He, however, disputed the finding of the trial Court that the offence committed by the appellant was one of murder. Learned counsel pointed out that trial Court has found in para 24 of the judgment that it happened in a sudden quarrel without any preplanning and premeditation, on part of appellant, therefore, the offence fell under Exception 4 of section 300, P.P.C. which is punishable under section 304 and not 302, P.P.C. Exception 4 of section 300, P.P.C. reads as under:-
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarral and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Exception. It is immaterial in such cases which party offers the provocation or commits the first assault."
To bring a case within Exception 4 of section 300, all the conditions mentioned therein have to be satisfied, i.e., the death is caused without premeditation in a sudden fight; in the heat of passion upon a sudden quarrel, and without an offender's having taken undue advantage or acted in a cruel manner. Now let us see if the facts of the case in hand satisfy above-noted conditions? It is evident that the deceased and his friend Sanobar (PW8) per chance met the appellant) at border's shop in Chishtian where they remained together for some time then they went of Meery's hotel for taking food, and set there together. Throughout this period apparently the things went peacefully. According to Sanobar Khan (PW8) during the taking of meals the appellant took the deceased aside and both exchanged' abuses whereupon the appellant whipped out knife and stabbed him. As per dying declaration Ex.PH the appellant called the deceased outside the hotel and started quarrelling with him that why he had divorced his sister and then having been provoked he stabbed him. The story that the appellant was annoyed with the deceased for 'he had divorced his sister or that on that account he stabbed the deceased is not correct, firstly, because it was not the deceased who divorced appellant's sister rather she had herself obtained decree of dissolution of marriage from the Court (12 years before the occurrence) when the appellant was 12/13 years old. Secondly, if the appellant had any grievance of this sort then he would have attacked the deceased at the first site when they had met each other at barber's shop. 'To' the contrary, they went together to Meery's Hotel and sat there for some time. It is also not believable that the appellant had been able to take away or called the deceased out of the hotel by abruptly leaving the dining table where they were sitting together and then started abusing each other without any rhyme or reason. It appears that exchange of abuses between the two, at Meery's Hotel must have preceded by discussion over the taking of custody of Abdul Ghaffar (son o: the deceased and nephew of the appellant) during which the tempers went high wherein abuses were hurled on each other which led to grappling and in the process the appellant (a teen-ager) taking out knife, stabbed the deceased (a middle aged person) of 40 years age. In the circumstances the appellant being younger in age during the sudden grappling which ensued had dealt solitary knife injury in the abdomen of the deceased which do not indicate that he acted cruely in an unusual manner taking undue advantage. I would, therefore, hold that the case of the appellant squarely falls under Exception 4 of section 300, P.P.C. I would therefore alter conviction from 302 to 304 (Part I), P.P.C. and sentenced him to ten years' rigorous imprisonment and a fine of Rs.5,000 or in default of payment of fine to undergo six months R.I. The fine, if recovered, shall be paid to the heirs _of the deceased. This appeal is partly accepted in the terms indicated above.
For the same reasons the Revision Petition No. 68/84/BWP for enhancement of sentence automatically fails.
S.A./M-379/L Order accordingly.