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Death Reference No. 4 and Criminal Appeal No. 244 of 1967, decided on 13th July 1967.
S. 301/34 read with S. 300, Excep tion 4‑Murder‑Deceased all alone and unarmed but assailants two do number and armed with daggers‑Assailment (accused) inflicting dagger injuries on deceased's thigh and abdomen ‑Crime following heated exchange of words, altercation, and eve, threat of force Accused not found to have received even a Such Injuries, held, having been inflicted in cruel manner. Exception 4 to S. 300 had no application to case‑Circumstances proceeding commission of offence, however, held, further, constituted on extenuating factor Sentence of death reduced to transportation for life.
Sikandar v. The State P L D 1966 S C 555 and Ekram Hossain and others v. The State 13 D L R 431 rel.
A. Muntaquim Chowdhury with A. Hye for the Condemned prisoners.
A. T. M. Masud, Deputy Legal Remembrance for the State.
‑Appellants Bhulu and Muklis have been convicted under section 302/34 of the Pakistan Penal Code by the learned Additional Sessions Judge, Sylhet and sentenced to be hanged by the neck until they are dead, The condemned prisoners have appealed and have been represented before us by Mr. Muntaquim Chowdhury, the learned counsel. There is also a reference under section 374, Criminal Procedure Code by the learned Additional Sessions Judge. Mr. Masud, the learned Deputy Legal Remembrancer has appeared in support of the reference and we dispose of both the appeal and the reference together.
The prosecution case h was that on the 8th of Aswin 1373 B. S. corresponding to 25‑9‑1966, Abdul Latif, since deceased, and the two appellants Bhulu and Muklis were got along the Sylhet Sunamgonj road after Maghrib. Muklis is the sister's husband of Bhulu. The night was a moon‑lit night while going along, Latif had been accusing Bhulu that he had neither been paid the paddy nor the money and the accusation, soon developed into altercation and exchange of heated words, Suddenly Muklis whipped out a dagger and stabbed Latif on the right thigh; Bhulu too struck a dagger blow into the abdomen of Latif and then both the appellants fled away towards the tillage of Bhulu at Jugirgoan. The spot of occurrence is at a place where a village pathway leading to village Bolaura met the Sylhet‑Sunamgonj road at a distance of 500 cubits towards West from Kaligonj Bazar. Injured Latif ran screaming to a distance 50 cubits and then fell face downward on the pathway by the side of a clamp of bamboos. Two persons, namely, P. Ws. 1 and 3, Arju and Jamshed respectively who were coming along the road behind Latif and the appellants, tar the occurrence. They also attempted to catch the appellants without any success, in the meantime other persons who heard the screaming rushed to the place; they turned Latif over and found him badly injured and bleeding with the intestine coming out. They bandaged the wounds with Gamchas Latif stated to ' them that appellants Muklis had stabbed him at the thigh and Bhulu at the abdomen. One person then hurried to inform the member of the Union Council and the other removed Latif and kept him in front, of a shop on the Sylbet‑Sunamganj Road. The member and the Chairman of the Union Council and some others arrived at the spot and to them also Latif stated that he had been stabbed by Muklis at the thigh and by Bhulu at the abdomen. An information was sent to the thana through the member P. W. 10 Abbas Ali who is the informant. Sometime after the member and a constable arrived before the shop in a baby taxi and left with Latif for the Civil Hospital, Sythet. They could hardly enter the Emergency Room when Latif succumbed to the injuries.
After investigation by the Police and preliminary enquiry by a competent Magistrate, the two appellants were committed to the Court of Sessions for trial under section 304 of the Pakistan Penal Code.
At the trial itself on the submission of the public Prosecutor, the appellants were charged under section 302/34 of the Penal Code.
The defence was that the occurrence was over Ghatu boy and it was suggested that tae two accused and a Ghatu boy Fazlu D. W. 1 who is cousin of Bhulu had been going by the Sylhet‑Sunamgonj road at the alleged time of occurrence and while nearing the place of occurrence they saw 10/12 persons collected there and among them was the deceased Latif. When they reached the place of occurrence, Arju Mia P. W. I caught hold of the boy and tried to take him away. The boy raised alarm and caught hold of the waist of Bhulu. Latif then caught Bhulu by the waist from behind. From a pull the boy fell down and screamed out. At this other persons came and a fracas started in course of which Bhulu fractured his head and Muklis broke his hand and in the melee Latif may have received his injuries. Fazlu and the accuses then fled but the injured accused did not go for doctor s aid or to inform the police hearing that a murder has been committed. They were afraid lest they might be involved in the murder. Further defence suggestion was that the appellants had set up a new ba7ar against the will of the local Chairman and the member and some other P. Ws. and as such there had been ill‑feelings between them, and, therefore, they have implicated the accused persons falsely in the case.
The prosecution examined 16 witnesses and, the defence examined two witnesses.
The trial was held with the aid of three Assessors two of whom found appellant Bhulsu guilty under section 302 of the Penal Code and one found him guilty under section 304, Part 1 of the said Code. The Assessors were of the same opinion with regard to appellant Muklis also.
The learned Judge in substantial agreement with the opinion of the Assessors, convicted the two appellants as above.
Mr. Muntaquim, the learned counsel has taken us through the judgment, the evidence and the whole record. His argument's are mainly that the witnesses for the prosecution are interested men and that the learned Judge was not justified to rejecting the evidence of the two D. Ws., adduced in the case. He has also argued that there being no evidence that the accused and the deceased were seen together at the bazar, the story that deceased Latif went to the bazar for the purpose of realising the money due by him from Bhulu was not acceptable, It has also been argued that the prosecution story that different witnesses heard from the mouth of dying Latif that the two assailants Bhulu and Muklis stabbed him, was not acceptable by reason of the fact that Latif was not in his proper senses and not in a position to speak out the names after the severe attack. The learned counsel has referred to the medical opinion which according to him indicates that only up to a certain period Latif was in a position to speak. Mr. Muntaquim has also incidentally referred to the story of P. W. 1 Arju's bandaging the injuries which was elicited from P. W. 1 Arju on recall by the Public Prosecutor three days after his examination‑in‑chief.
Mr. Muntaquim wants to say that if there was no bandage stopping the flow of blood, Latif could not have uttered the names of the two assailants and that is why the Public Prosecutor on an after thought recalled the witness P. W. 1 Arju for the purpose of filling the lacuna in the prosecution case.
Having those grounds in view we proceed to examine the evidence.
P. W. 1 is Arju Mia. He has stated that on the 8th of Aswin 1373 B.S., he went to Kaligonj bazar after magrib in the company of P. W. 3 Jamshed. Ahead of them were the two accused persons at a distance of about 30 cubits. Latif was also in the company of the two accused. The witness heard Bhulu and Latif talking with each other about some money matter. The discussion having grown into a heated one, the witness along with Jamshed hurried forward and came within 3/4 cubits of that party. Latif was accusing Bhulu that he did neither pay the money nor the paddy though he assured payment on different dates. Bhulu was telling that he did not know what was the claim for and Latif replied that Bhulu had taken the money and how he had been denying it. Bhulu then wanted to know if he would take the money by force. Thereupon appellant Muklis also asked if he would take the money by force and saying this he delivered a dagger blow on the right thigh of Latif. Immediately thereafter Bhulu struck a dagger blow on the abdomen of Latif. The injured Latif then ran northward holding his abdomen and shouting and after covering about 50 cubits he fell down. This witness has given a topography of the place of occurrence. It is on the back of Surma river on the Sylbet Sunamgonj road and Kaligonj bazar to the east and a village road goes towards north to the village Bolaura from the place of occurrence. To the South‑east of the place where Latif fell is the Bari of Tarikullah ; to the immediate east is a bamboo clamp. The witness also stated that they gave a chase and sought to catch the assailants but without success. Immediately thereafter P. W. 4 Safiullah and P. W. 5 Ayash Ali came to the spot. P. W. 6 Tarikullah came shortly after. The witness went on to state that Latif stated in his presence to P. Ws. 4, 5 and 6 that Bhulu assaulted him at the abdomen and Muklis at the thigh with daggers and that P. Ws. 4 and 5 also claimed to have seen the accused running away towards the West. P. W. 4 Ayash Ali was sent to inform the Chairman and Latif was carried in front of the shop of P. W. 14 Arshed Ali. Member Abbas Ali P. W. 10 and Chairman Asadullah P. W. 11 also came to the spot and Latif stated to both of them that he was assaulted by Bhulu at the abdomen and by Muklis at the thigh. The witness also stated that the accused persons were known to them from before and that the accused Muklis was the sister's husband of accused Bhulu residing in the same house together.
In cross‑examination the witness admitted that he had no personal knowledge about the money or paddy transaction itself between accused Bhulu and Latif.
As stated in examination‑in‑chief, he, however heard that there was a discussion over money and a heated one.
There was a suggestion that the witness was a relation of Latif but this was stoutly denied. There was also a suggestion to this witness that P. W. 3 Jamshed was a relation of Latif which also was stoutly denied. The witness, however, admitted that Latif was a neighbour of his but their Baris were intervened by four Baris and that so far as P. W. 3 Jamshed goes there was a Khal intervening between Jamshed's Bari and that of Latif. The witness stoutly denied that there was no discussion and altercation over some money matter between Latif and accused.
Trying to develop the story of enmity with the accused Bhulu and Muklis over the creation of a new bazar there was a suggestion given to this witness that a new bazar was set up at Dhanpur through the efforts of the accused and others and the witness, though he admitted that a new bazar had been set up near Dhanpur some 4/5 years back, stated that it was not a fact that the accused and others set up this bazar. He also stated that it was not a fact that the accused never go to Kaligonj bazar and that the accused had any enmity with the member and Chairman over the setting up of this bazar. There is thus only an admission that a new bazar was set up at Dhanpur but that was some 4/5 years ago and there is no evidence to support the story that it was set up by the accused. The witness denied the suggestion that there was a Ghatu boy named Fazlu son of Miskin and he also stated that it was not a fact that the witness himself along with P. W. 3 Jamshed, Latif, Ashraf, Safiullah P. W. 4 and Abbas were forcibly taking away the boy at the alleged time 3f occur rence and the two accused along with others opposed and a fight took place. The witness also stoutly denied the suggestion that the witness's party broke the hand of Muklis and the head of Bhulu.
The suggestion that the occurrence was over a Ghatu boy, as we shall see later, was given to several prosecution witnesses in the case without success.
This witness was recalled 4 days after, that is on 28‑4‑1967 by the Public Prosecutor to say that on seeing Latif injured and bleeding the witness bandaged his abdomen and the thigh to stop bleeding and not to allow the intestine to come out further. In cross‑examination thereafter the witness also stated that he did not remember if he stated to the I.O. that he bandaged the wounds of the injured.
So far as this witness goes, he is a close eye‑witness of the occurrence and is in no way related to Latif. So far as the fact of putting bandage on the injury goes, it is true that he has spoken about it for the first time on recall but as we shall see later, there is a volume of evidence of several witnesses who saw the actual bandage on and also statement of some witnesses to the fact that dying Latif retained his senses till up to 11 p.m., which was nearly three hours after the occurrence. The non mention to the I. O. is an insignificant omission only.
P. W. 2 is Aminul Islam‑a formal witness who held inquest on the dead body on identification by Abdur Rahim cousin of the deceased.
P. W. 3 is Jamshed the other eye‑witness. He has supported the evidence of P. W. 1 Arju Mia in toto except that he does not while narrating the altercation over money state about accused Muklis's asking if Latif would take the money by force. This witness has stated 1 hat he was following behind the accused and the deceased in the company of P. W. 1 and on hearing the quarrel, they came forward to almost 3/4 cubits near them. He also heard that Latif said that Bhulu could not go without paying the money' and Bhulu said that he did not know about the money claim and then Muklis said that Latif had no such claim of money and saying this he stabbed Latif with a dagger on the right thigh and immediately thereafter Bhulu gave a dagger blow at the abdomen of Latif. The witness also stated that P. Ws. 4 and 5 stated that they saw the two accused running away westward. The place of occurrence as given by this witness is also in conformity with the place of occurrence as stated by P. W. 1. In cross‑examination the witness denied that he and Latif live in the same house. The witness also denied that he was brother's son of Latif although he admitted that he called Latif Chacha by village courtesy'. The witness also denied that the accused and their co‑villagers sec up a new bazar near Dhanpur and that there had been ill‑feelings between the accused and others on the one hand and the Chairman, Member and deceased Latif on the other.
Mr. Muntaquim has pointed out that while P. W. 1 admitted the existence of a new bazar, this witness P. W. 3 totally denied the new bazar over which there were ill‑feelings. This, according to the learned counsel, is a deliberate suppression by the prosecution.
It appeals, however, that all that P. W. 1 said was that a new bazar was set up 4/5 years ago while denying that the accused had anything to do with it. Therefore, even accepting that a new bazar was set up that was 4/5 years ago and the accused not having set it up there could be no enmity on that score against the accused as suggested by the defence.
There was also a suggestion to this witness that Latif, the witness himself, Arshed, Arju and some others tried to snatch away forcibly a Ghatu boy named Fazlu and that the two accused having opposed there was a fight and the accused were assaulted and that the head of accused Bhulu was fractured and the hand of Muklis was injured. The witness stoutly denied this suggestion.
This witness P. W. 3 is also an independent witness without any relationship with Latif and he has not faltered in any way in cross‑examination.
P. W. 4 is Safiullah who claims to have seen the two accused running westward after the event and Latif running towards the north and falling. He saw P. Ws. 1 and 3 running towards Latif. He enquired of Latif as to what had happened and the hater stated that appellant Muklis stabbed him at the thigh while Bhulu stabbed him at the abdomen as he claimed money due to him. He also stated that he heard from P. Ws. 3 and that they saw the accused stabbing Latif. In cross‑examination the witness admitted that Latif was his distant cousin's son. He also stated that he did not remember if he stated to the I. O. that be saw Latif running towards north or that he saw Arju and Jamshed running towards Latif. He also stated that he did not remember if he stated to the I. O. that Arju and Jamshed as well as Ayash Ali stated that they recognised the accused.
It appears that he did not say so to the I. O. but it would be too much to rule out the whole evidence of this witness P. W. 4 because of the omissions to the I. O. Even assuming that his evidence is subject to some suspicion on the score of the distant relationship and on the score of those omissions the clear direct evidence of P. Ws. 1 and 3 are there about the actual stabbing by the appellants.
P. W. 5 is Ayash Ali. He also claims to have seen the two accused running towards the West along the road and to have seen the knives to the hands of the two accused. He also stated that the accused when asked as to what was the matter they held out knives by way of threatening. He also claims to have heard from the mouth of Latif that accused Bhulu struck him at the abdomen and Muklis at the thigh with daggers as he demanded back money. He also heard P. Ws. 1 and 3 stating that they saw the two accused delivering the dagger blows. He stated that he saw all these when after saying his magrib prayer at the bazar mosque he started for the house of Dr. Rashidullah at Jangail.
Mr. Muntaquim by referring to the evidence of the I. O. P. W. 16 Nasiruddin Ahmed has urged that this witness P. W. 5, did not state to the I. O. that he was going to the house of a doctor and that rather he said that he was going home from bazar. In that view of the matter the learned counsel has asked us to disbelieve the witness P. W. 5 Ayash Ali.
The road is running from East to West and the witness P. W. 5 Ayash Ali's Bari is at Koskailka. Mr. Muntaquim wants to say that unless he changed the destination to Dr. Rashidullah's house instead of to his own it would not be possible for him to see the two accused running towards the West and that is why the witness has changed the destination from his own house to that of Dr. Rashidullah.
It appears from the topography, however, that as the two accused were running towards the west it would be quite possible for the witness to be in a position to see them running to whichever direction the witness wag going.
The witness P. W. 5 also stated that Latif was unmarried ; that he was a Tabligi and went on Tablig for a month. He also admitted that he was the Bhatije of P. W. 10 Abbas Ali. The witness also denied that there was any ill‑feeling against the accused over a bazar or that there had been a golmal over a Ghatu boy.
Now so far as this witness P. W. 5 goes he is not in any way related to the deceased Latif although he and P. W. 10 are relations.
P. W. 6 is Tarikullah. He came after the occurrence and on his enquiry Latif stated that Bhulu hit him with a dagger at the abdomen and Muklis hit him at the right thigh with dagger. On the witness's asking as to why they did it, Latif stated that it was on account of money due to him from Bhulu. The witness also stated that P. Ws. 1 and 3 stated that they saw the two accused assaulting Latif. The witness also stated that P. Ws. 4 and 5, namely, Safiullah and Ayash Ali respectively stated that they saw two persons running away and guessed that those two could be Bhulu and Muklis.
Mr. Muntaquim has argued that this "guessing" is indicative of the fact that the two witnesses P. Ws. 4 and 5 have not actually seen the assailants running away.
We have not placed much importance to the evidence of P. Ws. 4 and 5 in the matter of their seeing the two accused running away but there is no reason to disbelieve them so far as they heard the names of the assailants from the mouth of the dying man as well as from the two eye‑witnesses P. Ws. 1 and 3. There was also an infructuous suggestion to P. W. 6 to the effect that the accused had set up another bazar and on account of that the Chairman and others bore ill‑feelings towards the accused persons.
The witness P. W. 6 in cross exanimation also stated that he did not remember if he stated to the I. O. that Arju and Jamshed stated that they caw the accused assaulting and that Safiullah and Ayash Ali stated that they saw two persons running away.
The I. O. was confronted on this question in a rather clumsy way and he stated that P. W. 6 did not tell him that Arju, Jamshed, Safiullah and Ayash Ali told him that they recognised the accused. What was asked to the witness was as to whether he stated to the I. O. that P. Ws. 1 and 3 stated that they saw the accused assaulting and that Safiullah and Ayash Ali stated that they saw two persons running away and what the I. O. was asked was in a very general fashion on the point of these witnesses speaking about recognition. So what was elicited from the I. O. does not in any way help the defence.
P. W. 7 is Raquibun Raza, the doctor who held the post mortem examination on the dead body of Latif on 26th of September 1966, at 12‑30 p. m. He found the following injuries on the dead body :‑
"(1) One penetrating wound 1" x " x 1 " directed upward and backward on the upper third of the anteriomedial aspect of the right thigh.
Dissection of this injury No. 1, I found the right phemoral artery injured and perforated along with soft tissues in the course of the wound.
One penetrating wound 2 " x " abdominal cavity on the another aspect of the right lumber region. Soils of the small intestines were seen protruded out of the wound.
On dissection of the wound No. 2 the small intestine was found perforated in addition to the peritonium and anterior abdominal wall. There was collection of blood inside the abdominal cavity.
The stomach was healthy, contained one ounce of juicy material, the urinary bladder was healthy and full. Other organs were healthy."
In the doctor's opinion death was due to the injuries as above and those were anti‑mortem and homicidal injuries. The doctor was also of the opinion that both the injuries were grievous in nature and could have been caused by sharp weapon like dagger and that both the injuries could independently cause death in the ordinary course of nature. In cross‑examination the witness stated that the nature of the injuries of the deceased would permit him to be in sense in the absence of first aid up to around half an hour in spite of bleeding but if the bleeding could be prevented by pressure the injuries of this nature would permit the injured to continue to be in sense and the injured may even never loose sense In that case.
The injuries as above were without doubt homicidal injuries but the doctor's opinion with regard to the state of sense of the dying man as elicited in cross‑examination as above has been sought to be made much of by the learned counsel about which we have given some hint before. Mr. Muntaquim wants to say that the story of bandage was invented for the purpose of making it feasible for the dying man to name the assailants. We will examine this question later in detail.
P. W. 8 Md. Bakhsh is the constable who was deputed to bring over the injured. He found the injured bandaged in the abdomen with a Gamchha round about 10‑30 p. m. This witness also stated that on the way near Akhalia the deceased wanted water and there they stopped the taxi and brought water for him The witness in cross‑examination stated that no intestine came out under the bandage.
So that bandage or no bandage, here is some evidence that the dying man was in a position to speak even after 10‑30 p.m., and the clear evidence of this witness is that he saw the bandage on the abdomen with Gamchha.
P. W. 9 is Abdur Rahim. He is a cousin of Latif and he identified the dead body to P. W. 2 Aminul Islam who held the inquest and also identified the dead body to the doctor who held the post‑mortem examination.
P. W. 10 Abbas Ali, P. W. 11 Asadullah and P. W. 14 Arched Ali have also stated having seen the bandage on the abdomen and thigh of Latif. Therefore, there is clear evidence that bandage was there and it is not a subsequent creation to fit in with the doctor's evidence.
So far as P. Ws. 1, 3, 4‑and 5 go they have not been brought from any distance to hear from the mouth of the dying man; they were there very close-by and even assuming that Latif could speak only half an hour without bandage, they were there within that half an hour to hear him. It is only P. Ws. 10, 11 and 14 who had to come from some distance and might therefore be late for hearing the dying man after the lapse of half an hour.
The bandage having been there these questions are more or less academic. There is also no reason to disbelieve P. Ws. 10, 11 and 14 on the point.
P. W. 10 is Abbas Ali. He stated that he heard from Latif that Muklis hit him at the thigh and Bhulu hit at the abdomen with daggers as Latif demanded money due to him.
There was no confrontation of this witness with regard to his previous statement to the I. O. and we see no reason to disbelieve him.
P. W. 11 is Asadullah. He also claims to have heard from Latif that Muklis hit him on the thigh and Bhulu on the abdomen with daggers as Latif demanded money. In cross‑examination he stated that he did not remember if he stated to the I. O. that Latif stated to him that the occurrence took place on his demand ing money.
It appears that to the I. O. P. W. 11 did not state that the occurrence was over a claim of money but that is a very insignificant omission.
P. W. 12 is Abdul Hamid constable who escorted the dead body.
P. W. 13 is Abdul Matlib who stated that Bhulu took Rs. 18 on the first week of Sraban 1373 B. S., and the accused took the money on condition of giving a Pali of paddy. The accused did neither pay the paddy nor returned the money. He also stated that on the 8th of Aswin Latif went to Kaligonj bazar and that while going told him that Bhulu would pay the money that day. This witness P. W. 13 is a full brother of deceased Latif. In cross‑examination the witness stated that his brother Latif went to the bazar, that day only for realising the money.
Mr. Muntaquim, the learned counsel has argued in the light of this evidence of this witness P. W. 13 that there is no evidence that either the accused or the deceased Latif was seen in the bazar that day.
What the witness stated was that the deceased while leaving the house told him that he was going to the bazar for realising money and that Bhulu would be giving him the money that day. What P. W. 13 stated does not amount to saying that the deceased actually reached the bazar that day. The place of occurrence was very close to the bazar. There is, therefore, no question of his being actually seen in the bazar with the accused.
P. W. 14 is Arshed Ali‑the person in front of whose shop the body of Latif was placed. He saw that the wounds in the thigh and abdomen were bandaged as stated above.
P. W. 15 is Syed Ali who was tendered for cross‑examination but it was declined.
P. W. 16 is the I. O. Nasiruddin Ahmed who visited the locality on the 26th of September 1966, and saw the place of occurrence as pointed out by P. Ws. 6, 1 and 3 ; he prepared a sketch map wherein he placed the place of occurrence as "D". The distance as given by him between Kaligonj bazar and the place of occurrence is less than a mile.
But this evidence, namely, less than a mile means no thing. It may be 400 or 500 cubits and in any event it is evasive evidence. We accept the distance as given by P. Ws. 1 and 3.
The two defence witnesses are D. Ws. 1 and 2. D. W. 1 Fazlu was a boy of 12 years whose intelligence it seems was not even tested.
D. W. 2 Rifatullah is in the opposite direction in age; he is 75 years. The names of these two witnesses were not mentioned earlier the defence did not file any list of defence witnesses but on special prayer two days previous to the trial, they were brought forward for deposing in favour of the defence.
D. W. 1 stated that accused Muklis and Bhulu went to his house on the 8th of Aswin. In the evening they started from their Bari and when they reached near the house of Tarikullah at about 7 or 8 p. m., they saw 10/12 persons among whom were P. Ws. 1, 3, Latif, P. W. 14 and others. They were standing on the pathway near the house of Tarikullah. As soon as the witness's party reached near them Arju caught hold of the witness and tried to snatch him away ; then he caught hold of his brother Bhulu by the waist and deceased Latif then caught his brother from behind by the waist. From a pull D. W. 1 fell down and screamed out. At once other persons came and caught his brother and began to assault him and the head of his brother was fractured. In the meantime he got free and ran away. In cross‑examination the witness stated that Bhulu's head was fractured in two places‑one at the front and another at the back and the back injury was a depressed one going about four finger deep and that Bhulu and Muklis went to their Bari that day to attend Aklka.
Now it is strange that with such injury Bhulu was not examined by any doctor.
The imagination of the witness also seems to be very fertile having regard to the exaggeration of the injury sustained by Bhulu, if any. His story of Aklka has not found any support from the other D. W., in the case.
This witness D. W. 1 stated in examination‑in‑chief that Arju, Jamshed, Latif and others were standing on the pathway near the house of Tarikullah while in cross‑examination he stated that they were sitting on the bank of the river.
His evidence, therefore, seems defective inherently also.
D. W. 2 also stated that them was an incident over Fazlu who was held up but he disclaimed any knowledge that Fazlu was a Ghatu boy.
The defence case being that Fazlu was a Ghatu boy and over him the fight took place it was essential for them to substantiate that Fazlu was a Ghatu boy first before proving that the incident was over him. There is no sense in the scuffle over Fazlu until it is made out that he was a Ghatu boy. It is strange that this witness D. W. 2 though he learnt that Fazlu was held up, he did not enquire as to who held him up. The witness has given a good conduct certificate to Latif, thus to a great extent reducing the strength of the defence case that the incident was over a Ghatu boy.
The defence case as a whole was also that Bhulu and Muklis sustained injuries. This could not be proved by any medical evidence.
Having regard to the circumstances as above we hold that the prosecution case has been proved beyond reasonable doubt and the defence suggestion of the incident over a Ghatu boy remains a mere suggestion only.
Mr. Muntaqium, learned counsel has next argued that the circumstances of the case are such that Exception 4 to section 300 of the Penal Code may be attracted to this case. Exception 4 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 quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."
Here the deceased Latif was alone while the assailants were two in number and both of them were armed at that. Latif had no arms with him. There is no scratch even on the accused party. It seems that the injuries were also inflicted in cruel manner. The application of Exception 4 to section 300 of the Penal Code therefore, is ruled out.
This view of ours finds support in the case of Sikandar v. The State (PLD 1966 SC 555). Reliance has also been placed on the decision of this Court in the case of Ekram Hossain and others v. The State (13 D L R 431).
The clear evidence of so many witnesses however being that there was heated exchange of words and altercation and even threat of force, we may take those circumstances as an extenuating s factor for justifying the lesser sentence of transportation for life and in that view of the matter, we set aside the sentence of death as passed upon the appellants Bhulu and Muklis reducing it to transportation for life.
The appeal is, therefore, dismissed and the reference is thus rejected.
I agree.
Appeal dismissed.
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