Case Law (P L D 2017 Supreme Court 165)
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 302(c)---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---Conviction under S.302(b), P.P.C. altered to one under S.302(c), P.P.C.---Evidence revealed that a fight had ensued during which the accused swung a stick with force that landed on the head of the deceased---Such fact had been mentioned by deceased himself in his report to the police---Accused did not premeditate the killing, nor could he have since the complainant party had arrived unannounced at his house---Accused struck only a single blow with a simple stick and not with any weapon---Accused, without premeditation and in the heat of a free fight had struck the deceased with a single blow of a stick---In such circumstances his case would come within clause (c) of S. 302, P.P.C.---Conviction of accused recorded under S.302(b), P.P.C. was altered to one under S.302(c), P.P.C. and, consequently, his sentence of life imprisonment was reduced to ten years rigorous imprisonment.
Piran Ditta v. State 1993 SCMR 1934; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274; Zahid Rehman v. State PLD 2015 SC 77 and Muhammad Saleem v. State 2007 SCMR 1896 ref.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 337-A(i)---Qatl-i-amd, shujjah-i-khafifah---Reappraisal of evidence---Death occurring few days after the injury---Contentions of accused were that he had only caused a single injury on the head of the deceased; that the deceased was fine thereafter and went to the doctor himself; that all of a sudden three days after the injury, the deceased expired; that in such circumstances accused could only be liable for offence of shujjah-i-khafifah, and not qatl-i-amd---Validity---Accused gave a blow with a stick with considerable force, fractured deceased's skull, which eventually resulted in his death---Fact that death did not occur instantaneously or even the same day would not detract from the nature of the offence---Post-mortem report identified only one injury on the deceased, which was caused by the accused, therefore, merely because deceased did not die instantaneously or within hours of receiving the blow would not exonerate the accused from causing his resultant death---Had the deceased not expired the accused would have been liable for one of the shujjah offences, however, the blow resulted in his death, consequently, it attracted S. 302, P.P.C.---Appeal was dismissed accordingly.
(c) Penal Code (XLV of 1860) --
----Ss. 300, Exceptions & 304 (erstwhile) & 302(c)---Cases covered by the Exceptions in the old S.300, P.P.C. and the old S. 304, P.P.C. were to be dealt with under clause (c) of the S. 302, P.P.C.
Piran Ditta v. State 1993 SCMR 1934; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 ref.
Arshad Ali Chaudhry, Advocate Supreme Court for Appellant.
Ch. Muhammad Sarwar Sidhu, Additional Prosecutor General Punjab for the State.
(On appeal from the judgment dated 3-10-2013 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl.A.No.679 of 2010).
JUDGMENT
QAZI FAEZ ISA, J.- This appeal has been filed against the judgment dated 3rd October 2013 of the Rawalpindi Bench of the Lahore High Court, whereby the conviction and sentence of the appellant under section 302 (b) of the Pakistan Penal Code ("PPC") awarded by the Additional Sessions Judge vide judgment dated 30th September 2010 was upheld. The appellant was sentenced to life imprisonment and ordered to pay compensation of an amount of two hundred thousand rupees to the heirs of the deceased and in default of payment thereof to undergo further imprisonment for six months.
2.A Jail Petition was received in this Court and leave to appeal was granted, vide order dated 11th August 2014.
The appellant had requested for appointment of counsel at State expense, therefore, Mr. Arshad Ali Chaudhry, Advocate Supreme Court ("ASC") was appointed to represent the appellant at State expense.
3.The learned counsel for the appellant stated that the case as put forward by the prosecution was that FIR No. 205 was lodged on 3rd December 2009 by Muhammad Ashraf wherein it was alleged that his son Sajid Hussain along with Zeeshan ("the appellant"), Kashif Ali, Goga and Muhammad Jameel on the occasion of Eid-ul-Adha had provided slaughtering services for which the payment was collected by the appellant and was to be subsequently distributed amongst all of them. On 30th November 2009 Sajid Hussain and Jibran Tariq went to the appellant's house to collect Sajid Hussain's share of the money when a fight ensued. In the fight the appellant hit Sajid Hussain with a stick (danda/Sota) on the head which resulted in his death three days afterwards, on 3rd December 2009. The learned counsel stated that there is no proof that Sajid Hussain died as a result of the said blow and the prosecution case is conjectural as there is no medical report to show the nature of injury received by Sajid Hussain on the day of incident nor the treatment, if any, he received for the same. He further states that Jibran Tariq was medically examined by Dr. Shahid Baig (PW-4) on 4th December 2009 when he noted that, "Probable duration of injury 4-5 days old". Dr. Shahid Baig also examined Ali Raza on 11th December 2009 and noted that, "Probable duration of injury was old." In his examination in chief the witness did not refer to the injury received by the deceased Sajid Hussain and alluded to it in his cross-examination, which is reproduced in its entirety as under:
"On 30.11.2009 I was posted at DHQ Hospital, Jhelum as CMO. On the same day, police brought injured persons namely Sajid Hussain, Jibran Tariq complainant party, Muhammad Jamil and Ali Raza of accused party before me along with their injuries statements Exh. P.G to Exh. P.J. All the injureds were in conscious and they came to hospital by foot. I checked all these injureds [sic] including Sajid Hussain deceased and gave initial treatment to them. All the injureds including Sajid Hussain gave written statement before me regarding compromise between the parties and they deposed that they do not want to get medically examined because their condition was not so much serious and dangerous at that time. I signed over injury statements Exh. P.G to Exh. P.J as token of correctness. All the injured persons gave their statements before me voluntarily. It is correct that if I found the serious condition of Sajid Hussain deceased at that time, I would have admit him in the hospital for his treatment. That is why I did not refer the above said injured persons to any other hospital for further and necessary treatment."
The referred to Exhibit P.G is the injury statement of Sajid Hussain, Exhibit P.H is the injury statement of Jibran Tariq, Exhibit P.I is the injury statement of Muhammad Jameel and the Exhibit P.J is the injury statement of Ali Raza. All the injury statements are dated 30th November 2009.
Sajid Hussain's postmortem was conducted by Doctor Masud Iqbal (PW-2) on 3rd December 2009 who noted only a single injury on his body: "A stitched dressed wound (4 stitches) 5 cm in length a bit right of scalp. Fronto partial area. No other mark of violence seen any where on body". In the opinion of PW-2 death was due to the said head injury. Learned counsel stated that Sajid Hussain came walking to the Doctor on 30th November 2009 and also left walking and referred to the cross-examination of PW-2 who accepted that the injury could have been sustained in a way other than receiving a blow on the head by, "falling of a heavy thing on the head of any body."
4.It was alternatively contended by the learned counsel for the appellant that the deceased himself along with Jibran Tariq and Ali Raza had gone unannounced to the appellant's house therefore there was no premeditation or prior intention to cause death or injury, instead a free fight on the spur of the moment took place and only one injury was suffered by Sajid Hussain, which is also indicative of the restraint exercised by the appellant. The learned counsel contended that under such circumstances the appellant could only be liable for the offence of shujjah and in particular shujjah-i-khafifa which falls under section 337(A)(i), PPC.
5.It was further alternatively pleaded that if the case of the prosecution is accepted and that death was caused by the blow inflicted by the appellant the case would fall under section 302(c) PPC. Reference was made to the Exceptions to the old section 300 PPC, which defined 'murder', but excepted certain acts, including those mentioned in Exception 4 thereto which attracted the punishment prescribed under the old section 304 PPC. The said Exception 4 to Section 300 and section 304 of the old law are reproduced hereunder:
"Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."
"304. Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention, of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."
Mr. Arshad Chaudhry stated that in the present law section 302(c), PPC attended to cases where death was caused as a consequence of free fight and there was neither any premeditation nor intention to cause either death or grievous bodily harm. In this regard reliance was placed upon the case of Piran Ditta v. State (1993 SCMR 1934) and Ali Muhammad v Ali Muhammad (PLD 1996 Supreme Court 274).
6.Mr. Muhammad Sarwar Sidhu, the learned Additional Prosecutor General Punjab, opposed the appeal and stated that the well reasoned judgments of the courts below do not call for interference. He stated that the deceased was injured on 30th November 2009 and had himself reported the incident to the police though a formal FIR was not lodged as the matter was patched up. However, the appellant cannot be absolved of using a stick to hit the appellant on the head with considerable force which was the cause of death as no other injury was revealed on the body of the deceased in the postmortem report. He also referred to the statements of the eye-witnesses who had fully corroborated the prosecution case.
7.We have heard the learned counsel, gone through the record and the cited precedents. The evidence reveals that a fight had ensued during which the appellant swung a stick with force that landed on the head of the deceased. This fact has been mentioned by Sajid Hussain himself in his report to the police which has been exhibited. Article 46 of the Qanun-e-Shahadat Order, 1984 stipulates that written or verbal statements made by a person who is dead is relevant when amongst others it relates to the cause of death as per clause (1) of Article 46, reproduced hereunder:
"When it relates to cause of death: When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
The aforesaid provision is identical to clause (1) of section 32 of the previous Evidence Act. In the case of Inayat Khan v. Emperor (AIR 1935 Lahore 94), wherein clause (1) of section 32 of the Evidence Act was interpreted, it was held that, a statement by a person who is dead, as to cause of his death is admissible in evidence even though he was not aware that he may die subsequently. The Divisional Bench of the Lahore High Court referred to the concept of 'dying declaration' in English law and observed that the legislature of British India deliberately departed from the corresponding English law on the subject, even though it had incorrectly stated that the expression "dying declaration" was not used in the Evidence Act (see section 8 (j) and (k) and illustration (a) to section 104). It will be useful to reproduce the following extracts from the said judgment:
"... under the English law a dying declaration is admitted only if the injured man was aware that he was dying from the result of the injury received by him. The Evidence Act however does not use the expression "dying declaration" at all. Section 32, Cl.(1), Evidence Act, merely lays down that a statement made by a person who is dead is relevant when the statement is made as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. It is clear that the Indian Legislature deliberately departed from the corresponding English law on the subject. The wide words used in the clause referred to above show that it was intended to cover statements other than dying declarations strictly so-called."
"We are clearly of opinion that, under the Evidence Act, a statement made by a person who is dead, as to the cause of his death is admissible in evidence even though he was not aware that he was dying when he made it. It is of course, for the Court to consider in each case what value is to be attached to such a statement."
The postmortem report confirms the deceased's said statement and corroborates the contents of the FIR and the deceased's injury statement.
8.We are not at all impressed by the contention of the learned counsel for the appellant that the offence comes within the category of the shujjah offences. The appellant gave a blow with a stick with considerable force, fractured Sajid Hussain's skull, which eventually resulted in his death. The fact that this did not occur instantaneously or even the same day would not detract from the nature of the offence. In the case of Inayat Khan v. Emperor (above) death had occurred a month and four days after a hatchet attack, however, the assailant was still liable for murder, though the sentence of death was reduced to transportation for life. In the present case the postmortem report identified only the one injury on the deceased, which was the one caused by the appellant. Therefore, merely because Sajid Hussain did not die instantaneously or within hours of receiving the blow would not exonerate the appellant from causing his resultant death.
9.If Sajid Hussain had not died the appellant would have been liable for one of the shujjah offences, however, the blow resulted in his death, consequently, it attracts section 302 PPC. Therefore, we need to examine as to which particular provision of section 302 the appellant could have been convicted under. It would be appropriate to reproduce sections 300 PPC which defines qatl-i-amd and 302, PPC which prescribes the punishment attracted in different circumstances:
"300. Qatl-i-amd -- Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd."
"302. Punishment of qatl-i-amd - Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be -
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years where according to the injunctions of Islam the punishment of qisas is not applicable;
Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be".
10.In the case Ali Muhammad (above) a three Member Bench of this Court had considered the scope of section 302(c) PPC (at pages 290-291) and held as under:
"Section 302 of the P.P.C. therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law-maker has left it to the Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633. there should be no doubt that the cases covered by the Exceptions to the old section 300, P.P.C. read with the old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C."
In the recent case of Zahid Rehman v. State (PLD 2015 Supreme Court 77) this Court reiterated the aforesaid view (at page 113G), as under:
"... the provisions of section 302 (c), P.P.C. are relevant to those acts of murder which are committed in situations and circumstances which do not attract the sentence of Qisas and I further understand that sections 306 and 307, P.P.C. are person specific whereas section 302 (c), P.P.C. relates to certain situations and circumstances wherein a murder is committed and according to the Injunctions of Islam the punishment of Qisas is not applicable to such situations and circumstances. In the case of Ali Muhammad (supra) it had been declared by this Court that such situations and circumstances are the same which were contemplated by the Exceptions to the erstwhile section 300, P.P.C."
The courts have to determine whether a case is covered by clause (c) of section 302 P.P.C., provided the case is one in which, "according to the injunction of Islam the punishment of Qisas is not applicable". Qisas is defined in clause (k) of section 299 P.P.C. as under:
" "qisas" means punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd and in exercise of the right of the victim or a wali."
The aforesaid definition is not helpful to determine whether a case comes within clause (c) of Section 302, P.P.C. Section 304, P.P.C. in turn attends to what kind of proof is required in the case of qatl-i-amd and hurt.
In the case of Piran Ditta (above) there was no intention to kill on the part of the appellant and the appellant, like in the present case, had given only one blow to the deceased, and under such circumstances, this Court had converted his conviction under section 302, P.P.C. to one under section 304, P.P.C. and reduced his sentence to ten years rigorous imprisonment whilst maintaining the sentence of fine and also gave the benefit of section 382-B of the Code of Criminal Procedure ("Cr.P.C."). We may however add that the said case was decided under the old law. However, as observed in the case of Ali Muhammad the cases covered
by the Exceptions in the old section 300 PPC and the old section 304, PPC are to be dealt with under clause (c) of the section 302 PPC.
The case of Muhammad Saleem v. State (2007 SCMR 1896) was decided after the amendments had been made in the PPC. In this case a sudden fight had taken place and the appellant had given a single blow with a stick on the head of the deceased and this Court had converted the conviction awarded to the appellant under section 302 (b) PPC to one under section 302 (c) PPC.
11.The appellant did not premeditate the killing, nor could he have since the complainant party had arrived unannounced at his house. Needless to state that if the complainant side had not sought out the appellant no fight would have occurred. Be that as it may, the appellant should not have struck the deceased with force and that too on a vital part of his body. The appellant however struck only a single blow with a simple stick and not with any weapon. Both the victim and the perpetrator were young men and had joined hands to render slaughtering services together. Unfortunately, a dispute over the share of the takings resulted in the death of one of them. There is no reason for us to take a different view from the one taken in the afore cited precedents. In this case the appellant without premeditation and in the heat of a free fight had struck the deceased with a single blow of a stick. In such circumstances his case would come within clause (c) of section 302 PPC.
12.Therefore, in view of the facts and circumstances of the case it would be appropriate to alter the conviction of the appellant recorded under section 302 (b) PPC to one under section 302(c) PPC and, consequently, reduce his sentence to ten years rigorous imprisonment whilst maintaining the sentence of fine and the simple imprisonment to be undergone for failure to pay fine. As held by the Courts below the appellant will also receive the benefit of section 382-B of the Cr.P.C.
13.With the above modification this appeal is dismissed.
MWA/Z-3/S Order accordingly
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