HAROON-UR-RASHID Versus THE STATE Mian Aftab Farrukh , Qamar-ud-Din Meo

Haroon-ur-Rashid son of Abdul Rashid caste Malak Kakizai, aged 17 years, a resident of Model Town, Sialkot, has been tried and convicted by Additional Sessions Judge, Sailkot, under section 302, P.P.C., and sentenced to imprisonment for life and a fine of Rs.5,000 or in default to undergo simple imprisonment for a period of two years, vide judgment dated 29-5-1985, directing that the fine, if recovered, its half would be paid to the legal heirs of the deceased. The convict was further ordered to pay to heirs of the deceased Rs.15,000 by way of compensation under section 544-A, Cr.P.C., or in default thereof to undergo simple imprisonment for six months. Feeling aggrieved thereby, the convict has filed instant appeal. The complainant has filed revision (Cr.R.No.380-86) seeking enhancement of appellant's sentence. Both these matters are being disposed of by this single judgment.

2. The occurrence took place at 12.30 p.m., on 25-10-1984 in front of the house of appellant, 4/5 furlongs away from Police Station City, Sialkot. Abid Masood, (brother of the deceased) after getting deceased admitted in hospital met ASI Muhammad Amin (PW 14) at Commissioner Road and made statement Ex-PF/1 before him at 6 p.m. Formal F . I . R . Ex . P . F . was drawn at the police station on the basis of statement Ex-PF/1 at 6.37 p.m., by ASI Muhammad Amir (PW7).

3. The prosecution case is that on 24-10-1984 (a day before the occurrence) at 4 p.m., the appellant was selling heroin in a Chowk in front of the house of the deceased to which the latter objected whereupon both (appellant and the deceased) grappled with each other and also hurled abuses. Muhammad Javid (PW 9) and Abid Masood (PW 11) intervened and separated them. The appellant while leaving the place threatened the deceased that he would teach him a lesson. On the fateful day (25-10-1984) at 12.30 p.m., Abid Masood, complainant (PW 11) alongwith his brother Sajid Masood (deceased) were witnessing a cricket match being played in the ground situate in front of house of the appellant where the appellant armed with dagger suddenly appeared and addressing the deceased shouted that he should get ready to face the consequences for interfering with his business (of heroin) and insulting him. At this Sajid Masood ran for life. The appellant chased him and overtook him at a distance of 3/4 paces and inflicted a dagger blow on the back of his chest as a result whereof he fell down. The appellant gave second blow at the same place. The deceased then turned his side whereupon the appellant gave him third blow which landed inside his right thigh. Hearing alarm raised by the complainant and the deceased. Mahmood Akhtar (PW 12) and Sh. Imtiaz Ahmad PW (not produced) arrived there and witnessed the occurrence. They attempted to catch hold of the accused but he made good his escape. The deceased was removed to the hospital in injured condition and was admitted there for treatment.

4. Dr. Muhammad Nasrullah Khan (PW 1) examined Sajid Masood (deceased) while he was alive and found the following injuries on his person:

(1) An incised wound 1 cm x cm x depth not proved, on the back of left chest, obliquely in upper part.

(2) An incised wound 2 cm x cm x muscle deep 3 cm above and in line with `injury No. 1 on the back of left chest.

(3) An incised wound 2 cm x cm x muscle deep on the inner aspect of right thigh on upper most part just below the right buttock.

The patient's pulse and respiration was rapid and there was profused bleeding from injury No. 1. There was a corresponding cut (of injury No. 3) on the shalwar and a single common cut on the shirt and bunyan corresponding to injuries Nos.1 and 2. All these injuries were opined to have been caused with sharp-edged weapon. Injury No.1 was kept under observation and rest were declared as freshly caused and simple in nature.

5. The A.S.I. (PW 14) reaching the hospital enquired from the doctor if the deceased was in a fit condition to make statement?. The doctor replied in the negative. The deceased expired in the hospital, later on, the A.S.I., therefore, prepared inquest report Ex.PK of the deceased and sent the dead body for post-mortem examination under police escort.

6. Dr. Sajid Ali (PW 2) performed post-mortem examination on the dead body on 26-10-1984 at 10.15 a.m., and observed as under:

"Under injury No. 1 intercostal muscle, left pleura, left lung were cut. Left pleural cavity was full of blood (clotted and fluid) under injuries Nos.2 and 3 which were only muscle deep) (simple in nature).

Rest of all the organs and viscera were found healthy. In my opinion, injury No. 1 was grievous and dangerous to life and injuries Nos. 2 and 3 were simple in nature. Injuries Nos.4 and 5 were surgical wounds. All injuries were inflicted by sharp-edged weapon and were ante-mortem. The death of the deceased occurred due to injury No.1 which was sufficient to cause death in ordinary course of nature produced by shock and haemorrhage. The probable duration between injuries and death was about 9 to 10 hours and between death and post-mortem was about 11-30 to 12.30 hours."

7. The investigating A.S.I. visited the spot on the following day of occurrence and collected blood-stained earth from there vide memo. Ex.PH. He arrested the appellant on 3-11-1984 who while in police custody led to the recovery of blood-stained dagger P.5 from a room of his house. It was secured under memo. Ex.PG attested by Zahid Salim (PW 8) and Ahsan Naeem PW (not produced). A separate case was got registered under the Arms Ordinance against the appellant for possessing dagger P.5 without licence and after completing the investigation the appellant was challaned to Court.

8. At the trial the prosecution produced 14 witnesses in support of its case. Of them, Muhammad Javid (PW 10) and Abid Masood (PW 11) stated about the motive, Abid Masood (PW 11) and Mahmood Akhtar (PW 12) narrated about the occurrence; Zahid Salim (PW 8) deposed about the recovery of blood-stained dagger P.5; Dr. Muhammad Nasrullah Khan (PW 1) proved the injuries of the deceased and Dr. Syed Sajid Ali (PW 2) opined that the deceased had died of those injuries.

9. The appellant when examined under section 342, Cr.P. C. , had denied the motive as well as the recovery of blood-stained knife and pleaded self-defence in the following words:-----

"Factually Abid Masood and the other boys were playing on the pitch which had been got prepared by me which was to be played on Friday. On the relevant day of occurrence I had asked not to spoil that pitch by playing over it. On the refusal of Abid there was exchange of abuses between us and in the meantime Sajid Masood deceased on hearing the noise while coming from the school reached at the spot and tried to assault me with a knife. During grappling the knife fell on the ground. I lifted the knife while Abid and Sajid picked up bat and wickets and attempted to assault me. Apprehending danger to my life I resisted in the exercise of my right of self-defence as the deceased had given me bat blows on my back."

He examined Liaqat Ali Constable as DW 1 who produced a photostat copy of an entry in Rozenamcha of the police station but the document is not shown to be of any help to the appellant.

10. Learned trial Court on consideration of the material on record discarded the defence theory and accepted the prosecution case relying on the evidence of motive and the ocular evidence and held the appellant guilty under section 302, P.P.C. but awarded him lesser penalty on the ground that he (appellant) being a teenager (about 17 years old vide school certificate Ex-DD) was incapable of understanding the implication of the crime.

11. Learned counsel appearing on behalf of the appellant argued that motive part of the story has not been proved through any reliable evidence; that although the occurrence took place at daytime and in the heart of the city yet nobody from that locality or from amongst the cricketers playing a match there at that time has come forward to support the prosecution case; and that there is unexplained delay of 6 hours in lodging the F.I.R. which suggests that prolonged deliberations were held for concocting the instant story making the appellant appear as aggressor. Lastly, it is argued that since there is reasonable possibility of the defence theory being true, therefore, the appellant is entitled to its full benefit and deserves acquittal in view of the principle laid down in Safdar Ali's case P L D 1953 FC 93. Replying, learned counsel for the State has defended the impugned judgment saying that prosecution case stood proved to the hilt and that the defence plea raised by the appellant has been rightly rejected by the lower Court as being highly improbable and absolutely unfounded.

12. I have given my anxious thought to the arguments advanced by learned counsel for the parties and also carefully perused the record.

13. It is common ground between the parties that the occurrence took place at 12.30 p.m. in front of the house of the appellant wherein the deceased received injuries at the hands of appellant; that a cricket match was being played there at that time; and that Abid Masood, complainant (PW 11) besides the deceased was also present when occurrence took place. They, however, disagree on motive part of the story and the manner in which the occurrence started and ended?

14. The first question which falls for determination is, whether the appellant had attacked the deceased to avenge the previous day's incident or the dispute arose between the appellant and the complainant over use of the 'pitch' by the latter which culminated in death of the deceased? On this point, we have evidence of Muhammad Javid (PW 10) and Abid Masood (PW 11). Admittedly, Abid Masood is real brother of the deceased and Muhammad Javid too is connected with him as the mother of Mahmood Akhtar (PW 12) uncle of the deceased is his relative. Muhammad Javid (PW 10) stated that on 24-10-84 at 4 p.m., he was going towards Model Town and in the way he saw the deceased prohibiting the appellant from selling heroin. The appellant retorted him not to interfere in his business whereupon they grappled and abused each other. The witness and Abid Masood PW intervened and separated them. The appellant while going away issued threats to the deceased that he would teach him a lesson. The witness admitted that he is a shopkeeper and used to keep his shop open till 9 p.m.1 He did not explain as to why he closed his shop at 4 p.m., on that day. His presence at that hour near deceased's house is therefore not free from doubt. No complaint about sale of heroin by the appellant had been made to the police. Abid Masood PW could not even tell as to whom the appellant had sold heroin on that day. ASI Muhammad Amin (PW 14) averred that he had never received any information about sale of heroin by the appellant, rather he conceded that during the investigation of this case numerous residents of the area had appeared before him and told him that fight had taken place over playing of children. In the circumstances, the story that the deceased and the appellant had quarrelled a day before the day of occurrence over selling of heroin by the appellant appears to me as a doubtful affair. Therefore, I hold that the instant occurrence was not the result of any earlier quarrel taken place between the appellant and the deceased, rather they had started quarrelling when the appellant objected to the use of pitch by the complainant.

15. I would now proceed to consider the two versions about the main occurrence, i.e. the one given by the prosecution and the other by the appellant, by placing them in juxtaposition in order to see whether there exists a reasonable possibility of the appellant's version being true? In case the answer is in affirmative then the appellant would be untitled to its benefit not as a matter of grace but as of right as has been laid down in Safdar Ali's case (supra).

16. The appellant's case is that when he and Abid Masood (complainant) were quarrelling with each other over use of "pitch" the deceased arrived there and assaulted him (appellant) with a knife, which dropped from his hand during the scuffle and was picked up by him (appellant). The complainant and the deceased then having picked up wicket and bat respectively gave him blows with these weapons on his back and it was at this juncture that the appellant apprehending danger to his life inflicted injuries to the deceased in self-defence. To my mind, this plea of self-defence is highly improbable and unreasonable for the reasons--Firstly, that had the deceased opened attack on the appellant with a knife first then the blows given by him (appellant) in self-defence to the deceased would have in all probability landed on front part of his body but to the contrary the injuries of deceased are on his back. This suggests that the deceased was injured when he was running away or retreating with his back towards the appellant. Secondly, if it were a fact that Abid Masood (complainant) and the deceased duly armed with wicket-stick and cricket-bat assaulted the appellant then he would have suffered extensive and numerous injuries at their hands before he could cause any harm to the deceased but he does not have a scratch on his body. I am thus in no manner of doubt that in these circumstances right of self-defence was not at all available to the appellant against the deceased muchless to the extent of causing his death.

17. The next question is that in view of above facts what offence the appellant has committed? Having looked at the direction and the dimension of injuries Nos. 1 and 2 of the deceased I find that they are result of one blow. Dr. Muhammad Nasrullah Khan (PW1) has noted that both the injuries are in one line and there is only one corresponding cut in the shirt of the deceased, so it is just possible that injury No.2 which is muscle deep was caused while the weapon was being withdrawn from injury No.1. It is in evidence that the deceased on receipt of first (fatal) blow fell down and thereafter appellant gave two more blows to him while he lay subdued; causing injuries Nos. 2 and 3 which are as indicated above, on non-vital part, muscle deep and simple in nature. The fact that the appellant did not select head, heart, chest or abdomen of the deceased for inflicting the injuries when he was completely at his mercy shows absence of intention to kill on his part. Furthermore, fatal injury is on the back which is not popularly regarded vulnerable part of the body. I would, therefore, say that the appellant, a teenaged boy, did not precisely know that some vital inner organ of the body of the deceased would get injured as a result of his blow and would cause his death or such bodily injury as would in all probability cause his death. The element of intention, thus being absent, the appellant can be saddled with knowledge that by giving such an injury to the deceased he was likely to cause his death which constitutes offence of culpable homicide not amounting to murder punishable under part II of section 304, P.P.C. The judgment nearer to the facts of the instant case are Emmanuel Bahadur Joseph v. Paul Jackson and another 1981 S C M R 663, Munawar Hussain v. State 1983 S C M R 1165 and Muhammad Salim v. Muhammad Aslam 1983 S C M R 53. In the first case Sardar Masih was given knife injury on right upper back lateral to the lumber region by accused Paul Jackson. Sardar Masih died in the hospital after a fortnight. The accused was convicted under section 302, P . P. C . On appeal the High Court altered the conviction from section 302, P.P.C. to section 326, P.P.C. but their lordships of the Supreme Court observing that since the injury on part of the body (back) was popularly not regarded as vulnerable, the act of accused Paul Jackson in giving the knife injury on that part of the body of the deceased did not show that he intended to kill the deceased and accepting the appeal convicted the accused under section 304 Part-II, P.P.C. In the second case the deceased died due to injury given on his left thigh by the accused with a dagger cutting femoral vessels underneath. The accused was convicted under section 302, P.P.C. but their lordships of the Supreme Court held that since thigh was selected for giving the blow by the accused, an illiterate person, therefore, only knowledge likely to cause death could be imputed to him and not the intention to kill and consequently altered the conviction from sections 302 to 304, Part-II, P,P.C. In the third case the deceased suffered two incised wounds, one being on the lateral side of the left knee and the other on the right forearm besides one superficial incised abrasion and two contused abrasions on chin and left knee. The accused were convicted by the trial Court but were acquitted by the High Court finding the evidence as unsatisfactory. Against this, appeal was preferred to the Supreme Court. Their lordships of the Supreme Court believing the ocular evidence held the respondents guilty but observing that fatal injury seated on the knee itself would not saddle them with the knowledge of the precise locale of different arteries and veins in the limbs of human body so as to lead only to the inferential conclusion to kill him, consequently convicted them under section 304, Part-II, P.P.C. Taking light from these cases I would alter conviction of the appellant from section 302 to section 304, Part-II, P.P.C.

18. This brings me to the question of sentence. Since the appellant has knifed a school boy aged 19 years, to death, I would, therefore, sentence him to ten (10) years' R.I., the maximum punishment provided under section 304, Part-II, P.P.C. The sentence of fine as well as the compensation awarded by the lower Court and the sentence o1 imprisonment inflicted in default thereof are maintained. The appeal is partly accepted in the terms indicated above. For the same reason the revision petition seeking enhancement of sentence fails and is hereby dismissed.

M.Y.H./H-39/L Appeal partly accepted.