ABDUL RAUF Versus SIDDIK

1. NASIR ASLAM ZAHID, J.‑‑ This revision petition has been filed under section 435/439, Cr.P.C. by the petitioner Abdul Rauf, father of deceased/ complainant Muhammad Saeed. Originally the F.I.R. was registered under section 323/325/504/34, P.P.C. but later on complainant Muhammad Saeed died and as such section 302, P . P . C . was added. By judgment, dated 18‑8‑1985, learned Sessions Judge, Sukkur convicted both the accused, namely respondent No.1 Siddik and respondent No. 2 Muhammad Saleem Butt under section 325/323/34, P.P.C. and both were sentenced to imprisonment for 5 years and to pay fine of Rs.1,000 or in default to suffer further imprisonment for six months. Petitioner, being aggrieved, filed the present revision application. A notice for enhancement of sentence was also ordered to be issued to the private respondents. We heard the arguments of learned counsel for the parties on 10‑9‑1987 and by our short order passed on the conclusion of the arguments on 10‑9‑1987 this Criminal Revision Application was dismissed and the notice for enhancement of sentence was withdrawn. Reasons for our short order, dated 10‑9‑1987 are contained in this judgment.

2. F.I.R. in this case was lodged at Police Station 'B' Section Sukkur on 7‑8‑1983 at 9‑05 a.m. by deceased Saeed Ahmed, son of the present petitioner under section 323/325/504/34, P.P.C. The time of the incident was given as 8‑30 a.m. i.e. about 35 minutes before the time of the report and the place of occurrence was shown as Jinnah Chowk at approximate distance of two kilometers from the police station. According to the F.I.R., complainant knew the two accused Saleem and Sidik and one Diloke and that they used to come to Jinnah Chowk and on the day of the incident the three came to Jinnah Chowk early in the morning at about 8‑30 a.m. and they were sitting on a cot and they started cutting jokes at the complainant whereupon he asked them not to cut jokes with him but the three started giving abuses to the complainant. According to the F.I.R., verbal altercation took place and then accused Sidik picked up a Pucca brick piece and hit the complainant on his head who raised cries but all the three persons gave him fist and kick blows and accused Saleem gave him a clip on his head. According to the F.I.R. on his cries, others intervened and rescued him. The complainant further reported that because of the injuries blood was coming out of the injuries. He then stated as follows:‑

3. "I have come, therefore, to report that the accused persons have beaten me with kicks and fist blows and have injured me by hitting me with brick. I complain. Justice may be done.

4. As observed earlier, the complainant died later on and as such section 302, P.P.C. was inserted in the challan. The three accused including the two private respondents Sidik and Saleem were tried in Sessions Case No.371 of 1983 and by judgment, dated 18‑5‑1985 co‑accused Diloke was acquitted on the ground that according to the evidence Diloke had not caused any injury nor he had any weapon with him and even in his dying declaration, the deceased complainant had assigned no specific role in the commission of the offence except stating that the accused persons had cut jokes with him. The deceased had not even mentioned in his dying declaration that Diloke had grappled with the deceased. According to the trial Court, therefore, it could not be said that Diloke had shared common intention with the other two accused. The other two accused, namely, respondents Nos. 1 and 2 were, as observed earlier, however, convicted under section 325/323/34, P.P.C. and sentenced to suffer R.I. for five years and to pay fine of Rs.1,000 or in default to suffer further R.I. for six months.

5. The reasoning of the learned Sessions Judge, Sukkur, in coming to the conclusion that the offence committed by the two private respondents did not fail under section 302, P.P.C. but under section 325/323, P.P.C. is contained in paras. 21 and 23 of the judgment which are produced here:‑--

6. "(21) Keeping in view all the pieces of evidence, discussed above, it is evident that accused Siddik and Saleem had caused injuries to deceased, which ultimately resulted in his death. Now the point which requires consideration is that whether, the offence would fall under section 302, P.P.C. or to any other section. For bringing the offence within scope of murder,, it is essential to establish that the act by which the death is caused, was done with intention, of causing death, or was done with the intention of causing such bodily injury which was likely to cause death or was done with the intention of causing such bodily injury which was sufficient in the ordinary course of nature to cause death, or such injury in all probability was likely to cause death. In the instant case, there is no evidence to suggest that the accused had any intention to cause death. No previous enmity is alleged against them and also they had no motive whatsoever to kill the deceased. The incident took place all of sudden. The accused had not gathered there with any prior intention to meet the deceased. It was just a chance that deceased had happened o pass there and they cut jokes with him. It was after the dialogues were exchanged, accused Siddik picked up a piece of brick and hit it on the head of deceased and accused Saleem caused an injury with a clip which he had in his possession at that time. It is, therefore, clear that they had no intention whatsoever to kill the deceased. The offence would not fall under section 302, P.P.C .. "

(23) It has been observed earlier that the offence would not fall under section 302, P. P. C. It, therefore, under the circumstances would fall under section 325/323/34, P.P.C. Mr. Habibullah, the learned counsel has also argued that offence, if any would fall under section 325/323/34, P.P,C. In that connection, he referred to 1975 P Cr. L J 264, Mohammad Haroon Rashid and 2 others v . State and P L D 1980 Kar. 264 Devraj v. State. In the former case, accused taking hold of iron pipe lying handy and dealing single blow on the head of deceased, on the spur of moment, it was held that the offence would fall under section 325, P.P.C. In the latter case, only one Lathi blow was caused by accused on the head of deceased and that too in consequence of altercation and there was nothing to show about previous enmity between parties, the conviction was altered from section 302, P.P.C. to section 325, P.P.C. The facts of this case are very much similar to the above‑cited cases and on that basis I hold that the offence would fall under section 325/323/34, P.P.C. Accused Siddik and Saleem caused one injury each, to the deceased and this was done by them in furtherance of their common intention. This is evident from the fact that both acted violently and caused injuries to deceased one after the other. One of them admittedly grappled while the other taking advantage of this, caused injury to the deceased ...."

7. In support of the present criminal revision, it was contended by Mr. Abbasi Abdul Majid, learned counsel for the petitioner that the evidence at the trial had made out a case against the private respondents which squarely fell under section 302, P.P.C. Learned counsel for the petitioner had mainly relied on the post‑mortem report which gave the cause of death as head injury with fracture of left parietal bone of the skull and that the cavity was full of blood and the bone and membrane were damaged. According to the post‑mortem report, the only other injury found on the body of deceased/ complainant was a contusion in the left lumber region. According to the evidence of Medical Officer Dr. Imam Bux Abbasi, who had performed the post‑mortem examination, injury No. 1 (on the skull) was grievous in nature whereas the other injury was simple and, according to his opinion, the death of deceased was due to shock and haemorrhage on account of injury No.1. He further stated in his examination‑in‑chief that injury No.1 was sufficient to cause death in the ordinary course of nature.

8. On going through the evidence we were of the view that the incident had taken place on the spur of the moment without any pre‑meditation on the part of the two accused. We had specifically asked Mr. Abbasi Abdul Majid, learned counsel for the petitioner whether his contention was that this was an incident which had no taken place on the spur of the moment and there was pre‑meditation on the part of the two accused. Mr. Abbasi very frankly replied that this was not his case as the learned trial Court had, on the state of evidence on record, come to the correct conclusion that the incident had taken place suddenly without any pre‑meditation on the part of the two accused. However, Mr. Abbasi referred to section 300 of Pakistan Penal Code which reads as follows:‑---

9. "300. Murder.‑‑ Except in the cases hereinafter excepted, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or‑‑

10. 2ndly‑ If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or‑‑

11. 3rdly‑‑If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or‑‑

12. 4thly‑‑ If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid "

13. After referring to section 300, P.P.C. it was contended by learned counsel for the petitioner that the case fell squarely within the third clause. The precise argument of Mr. Abbasi was that when the piece of the brick was thrown at the complainant, it is obvious that this was done with the intention of causing bodily injury to the complainant, and according to the evidence of the Medical Officer who had performed the autopsy, injury No.1 on the skull was a grievous injury and was sufficient in the ordinary course of nature to cause death and, therefore, the second condition in the third clause of section 300, P.P.C. had also been fulfilled and in the circumstances offence fell under section 302, P.P.C. and the trial Court erred in reaching the conclusion that the case fell under sections 325 and 323, P.P.C. and not under section 302, P.P.C. In support of his contention learned counsel has relied on the following judgments:‑---

14. Devraj v. State P L D 1980 Kar. 246; 1986 S C M R 634 and Karam Elahi v. State 1985 P Cr. L J 623.

15. We have considered the authorities relied upon by the learned counsel and do not find these authorities relevant to the contentions raised by him. In the instant case there are circumstances to conclude that the weapon with which the injury was caused i.e. throwing/us of stone is not one which is normally selected for the purpose of causing death. The incident was sudden one, and element of pre meditation is also not available. In the facts and circumstances of the case we do not, therefore, think that, this is a case which falls under the definition of culpable homicide muchless of murder as argued by learned counsel. It is clear from evidence that there was no question of pre‑meditation or preparation of committing the murder.

16. In our view the contention of learned counsel is not correct that on the evidence on record, specially the medical evidence, a case of murder under the third clause of section 300 had been established against the two accused. We can accept the contention of the learned counsel to the extent that when the piece of brick was thrown at the complainant /deceased, the intention was there on the part of the accused to cause some bodily injury. In our view the second requirement in the third clause of section 300, P.P.C. ha not been fulfilled inasmuch as on the evidence on record it could not be said beyond reasonable doubt that the bodily injury intended to be inflicted by the accused when he threw the piece of brick on the spur of the moment, without any pre‑meditation, was such that it was sufficient in the ordinary course of nature to cause death. The essential ingredient of the second requirement in the third clause of section 300 P.P.C. is that the bodily injury intended to be inflicted should be sufficient in the ordinary course of nature to cause death. The crucial word in this second part of the third clause of section 300 is 'intended'. To bring the case squarely within the third clause of section 300, P.P.C., the finding must be reached by the trial Court on evidence brought on record that the person who had caused the bodily injury intended to inflict such bodily injury as was sufficient in the ordinary course of nature to cause death. In the facts of the instant case this intention is not borne out and cannot be attributed to the two accused.

17. We may observe here that if what Mr. Abbasi Abdul Majid has contended is accepted then in many cases where there was no intention at all to cause any such bodily injury as was sufficient in the ordinary course of nature to cause death, an accused would be liable under section 302, P.P.C. We may illustrate by giving a few examples. For instance in a fight between two friends on a small tiff, on the spur of the moment, the accused may push his friend and the friend falling down on the ground may suffer injury on his head and such injury, according to the medical autopsy report was sufficient in the ordinary course of nature to cause death. If what Mr. Abbasi Abdul Majid contends is correct then in such a case also the accused would be liable for murder but this could not be so. No doubt when the person pushes another person perhaps he know that the person pushed may fall down and may receive some injury but this would not establish beyond reasonable doubt that when he pushed the victim the intention was that he would be caused such fatal injury which would result in the victim dying in the ordinary course of nature. Another example could be where two persons suddenly flare up and one person gives a light blow in the region of the heart of the victim not knowing that the victim is a serious heart patient. On account of this light blow the victim may suffer a heart attack and may die as a consequence thereof. The Medical Officer in his autopsy report may opine that the death is a result in the ordinary course of nature on account of blow received by him, the victim being a serious heart patient. Now in such a case it might be argued and with some weight that when the light blow was inflicted by the accused upon the victim the intention to cause bodily harm was there but it would be difficult to argue that the accused, not knowing that the victim was a serious heart patient and was likely to suffer serious injury, on account of light blow given by him, would die on account of the bodily injury inflicted by the accused.

18. None of the three judgments cited by the learned counsel support the contentions advanced by him. In all the aforesaid three cases, the Court had found that the injury was caused with the intention that the bodily injury being inflicted was sufficient in the ordinary course of nature to result in death.

19. In the present case, after hearing learned counsel for the parties on 10‑9‑1987, we were of the view that no case had been made out for interference and accordingly by our short order passed on the conclusion of the arguments this criminal Revision Application was dismissed and the notice for enhancement of the sentence was withdrawn. As observed earlier, in this judgment reasons for dismissal of the criminal revision application are given.

20. M. Y. H. /A‑281/ K Petition dismissed.