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Criminal Appeal No. 23 of 1967, decided on 27th February 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 6th December 1965, in Criminal Appeal No. 23 of 1967).

Art. 58(3)-Special Leave to Appeal granted by Supreme Court to consider whether upon evidence accepted by High Court itself Exception 4 to S. 300 was attracted.

Ss. 302 & 304, Part I-Nothing in evidence to support theory of "sudden fight"-High Court, held, erred in altering conviction from S. 302 to one under S.304, Part I-Supreme Court on appeal restored conviction under S. 302 but in view of incident having taken place about five years ago and conviction once staving beets altered by High Court, capital sentence not awarded.

S. 302-Tendency of witnesses to rope in innocent persons, well known-Testimony, nevertheless, cannot be totally discarded.

Nazir Ahmad Khan. Senior Advocate Supreme Court instructed by Muhammad Nazar Khan, Senior Attorney for Appellant.

M. A. Zullah, Senior Advocate Supreme Court (S. A. Khalid, Advocate Supreme Court with him) instructed by Magbool Ahmad, Attorney for Respondents Nos. 1 and 2.

Ahmad Khan Kazi, Advocate Supreme Court instructed by Ijaz All, Attorney for Respondent No. 3.

Date of hearing : 27th February 1968.

-This appeal by special leave is directed against the judgment and order of a Division Bench of the High Court of West Pakistan, Lahore, in an appeal, a reference under section 374 of the Code of Criminal Procedure and two revisions.

The High Court accepted the appeal of the respondent Qadir Bakhsh and acquitted him but the convictions of the respondents Nabi Bakhsh and Muhammad, were altered from section 302 of the Pakistan Penal Code to one under section 304, Part I, P. P. C. and their sentences were reduced to seven years' rigorous imprisonment each. The revisions were also dismissed.

The reason given by the High Court for so altering the conviction was as follows :-

"From the evidence it is clear that while the deceased was settling accounts, suddenly a fight flared up and both these appellants struck a blow each without any pre-meditation. In other words their offence falls within the purview of Exception 4 to section 300, P. P. C."

The facts giving rise to-the prosecution are briefly as follows:

The above-mentioned three respondents and two others, who were acquitted by the trial Court, are related inter se and were all tenants of the deceased, Haji Abdul Ghafoor. The latter, on the 4th July 1963, about a Pehar after sunrise, went to the house of his servant Amanullah and asked him to accompany him to the house of another tenant, called Manzoor Ahmad, because he wanted to take them along with him to the house of the respon dent, Muhammad, for settling accounts. The deceased and Amanullah then went to the, house of Manzoor Ahmad and asked him to prepare meals. After partaking of the meals, all the three persons then went to the house of the said tenant at about noon time. Muhammad and his brother, Ashiq, brought out a charpoy on which the deceased sat and started taking account. The deceased demanded the price of a mare from Muhammad but the latter told him that he would settle his account at the harvest time. Then Amanullah was sent to call Pathan, one of the acquitted accused, whose house was at a distance of about 2 acres from the house of Muhammad. Pathan, however, told Amanullah that he would not go to the house of Muhammad but the deceased should come to his house for settl ing his accounts. When this message was conveyed to the deceased, he left for the house of Pathan, accompanied by Amanullah and Manzoor. Muhammad, respondent, it is said, followed them after getting hold of the hatchet. They reached the house of Pathan after offering Zohar prayers. Rahim, the other acquitted accused, on seeing them brought out a charpoy for the deceased to sit on while Pathan and his three sons Nabban, Qadir Bakhah and Rahim Bakhsh sat on the ground. Muhammad, respondent, also sat along with them but Amanullah and Manzoor Ahmad, at the request of the deceased, took his mare to graze in a nearby field, some 9 or 10 karams away.

In the meantime, Kamloo (P. W. 10), arrived there to convey a message to the deceased from his son, Muhammad Zakria, enquiring if the deceased would go with him to Khanpur, in order to help him in realising money from one Umar Lar. Muhammad Zakaria bad sent Kamloo while he himself waited at Turkanwali Bridge, which is at a distance of one square from the house of Pathan. The deceased told Kamloo to wait till he had settled the accounts. Kamloo then went and joined Amanullah and Manzoor, at the place where they were grazing the mare.

During the course of taking accounts, something went wrong and the respondent, Muhammad, it is said, started abusing the deceased in filthy terms. The deceased answered back saying, "Namak-haramo khatey bhi ho our bhaunktey bhi ho," whereupon the respondent gave a hatchet below on the head of the deceased, while he was still sitting on the charpoy. Kamloo, Manzoor Ahmad and Amanullah tried to rescue the deceased, but they were threatened by the acquitted accused Pathan, and Rahim that if they came near, they too would be murdered. Respondent Qadroo then caught hold of the legs of the deceased and laid him fiat on the charpoy and Nabban gave a kassi blow on the neck of the deceased. Amanullah, Manzoor Ahmad and Kamloo ran back to Turkanwali Bridge to inform Zakaria. Zakaria sent Kamloo to Khanpur to inform Muhammad Yahya and himself accompanied by Amanullah, Manzoor, Toda and Miran Bakhsh, proceeded to the house of Pathan. There they found Nabban still present near the dead body but he too ran away on seeing them.

On receiving the information people from Khanpur reached the place at 6-30 p. m. Then, Muhammad Yahya, a nephew of the deceased, wrote out a report and proceeded with it to the Police Station Khanpur which was at a distance of 12 miles from the place. The first information report was recorded on the basis of this report (Exh. P. A.) at about 8 p. m.

The police reached the place at 9-30 p. m. and took up investigation. Blood-stained earth was seized from underneath the charpoy as well as the charpoy. On the next day, at about 10 or 11 a.m. all the 5 respondents before us, were arrested. Nabi Bakhsh alias Nabban led the police to his shall from where he produced a blood-stained kassi (Exh. P. 6) which was taken into possession and sealed in a parcel. It has since been found by the Serologist that this kassi was stained with human blood.

The post-mortem examination revealed two incised wounds on the deceased. One on the neck, cutting the skin, subcutaneous tissues, muscles, trachea in its upper part, jugular vein, carotid artery and the cervical vertebra. Another on the skull cutting the soft part of it into a flap of about 1/3' thickness. According to the medical opinion, the injury on the skull could not have been caused by a weapon like a kassi but the injury No. 1, appeared to have been caused by a hatchet.

The respondent Nabi Bakhsh alias Nabban, alone admitted that he had attacked the deceased with his kassi with which he was watering his field at the time, but pleaded that he had done so as he was offered grave provocation by the deceased who had, in the presence of his mother, abused his sister and said that if she was given to him, he would accept any term regarding the cotton grown by the said respondent.

The other accused pleaded ignorance and said that they were not even present at the place but the respondent Muhammad claimed that he had been falsely implicated by Amanullah because the latter suspected him of having illicit intimacy with the daughter of a first cousin of his, called Bagha, as also because he had been instrumental in getting Amanullah arrested after the latter had absconded in a case in which he was accused of having assaulted a Sub-Inspector of Police, called Choudhary' Iqbal. He also alleged that there was enmity between him aced Amanullah because an uncle of his, called Ganhwar, was suspected of having murdered Moosa, an uncle of Amanullah, but was not challaned.

The prosecution examined Kamloo (P. W. 10), Amanullah (P. W. 11) and Manzoor Ahmad (P. W. 12), as eye-witnesses of the incident, while Toda (P. W. 7), Muhammad Zakaria (P. W. 8) and Muhammad Yahya (P. W.) gave corroborative evidence to confirm that Kamloo, Amanullah and Manzoor Ahmad were there at the time of the incident.

Toda (P. W. 7), was disbelieved by the trial Court, but rely ing on the three eye-witnesses it convicted the respondents Nabi Bakhsh, Qadir Bakhsh and Muhammad, under section 302/34, P. P. C. Respondents Pathan and Rahim Bakhsh were given the benefit of doubt and acquitted, because no prosecution witness bad ascribed any specific part to them. All the accused persons were also acquitted of the charge under section 147, P. P. C., as the trial Court was of the opinion that no case of all five of them having constituted an unlawful assembly had been made out. The evidence did not establish any common object.

The High Court agreed with the trial Court that the evidence of Toda could not be relied upon but it was also not satisfied that Muhammad Zakaria (P. W. 8) was present at Turkanwali Bridge. The evidence of Amanullah too was treated with suspicion since he also was considered to be inimically disposed towards the appellants because he had even denied knowledge of the circum stances in which his own uncle Moosa had met his death. The evidence of Manzoor Ahmad (P. W. 12), was however, found to be unimpeachable and to the extent it corroborated Amanullah, the latter was also believed even though it agreed with the trial Court that they too had tried to falsely rope in Pathan and Rahim Bakhsh.

The High Court also rejected the contention that the medical evidence had seriously contradicted the eye-witnesses in so far as it indicated that the blow on the head of the deceased was caused by the kassi and the blow on the neck was inflicted by the hatchet. The evidence of the witnesses, on the other band, was that the blow on the head was caused by the hatchet and the blow on the neck by the kassi.

The High Court took the view that since the witnesses were at a distance of about 9 or 10 karams and the deceased was sitting on a charpoy near the thorn hedge "it is quite likely that they were not able to see exactly on which part of the body of the deceased the two blows fell, because, thorny fence would have obstructed their view".

The High Court was, furthermore, of the opinion that these eye-witnesses bad also tried to falsely implicate Qadir Bakhsh alias Qadroo by saying that he had pulled the deceased by his legs and placed him flat on the charpoy. This fact, it was found, had not been mentioned by Manzoor Ahmad in his statement before the police. Hence Qadir Bakhsh was also given the benefit of doubt and acquitted. So far as the convictions of Nabi Bakhsh and Muhammad are concerned, as we have already stated, they were altered to section 304, Part I, P. P. C. and their sentences were reduced.

The complainant then came up for leave to appeal to this Court, not only against the alteration of the convictions of the respondent Nabi Bakhsh and Muhammad, but also against the acquittal of the other accused. This Court found no ground to grant leave against the acquittals of the respondents Qadir Bakhsh and Rahim Bakhsh and Pathan but leave was granted only to examine whether, upon the evidence accepted by the High Court itself, Exception IV to section 300, P. P. C. was at all attracted.

Learned counsel, appearing in support of the appeal, has, with some force, contended that having regard to the weapons used, the nature of the injuries, and the manner in which they were caused, there could be no question of any sudden fight so as to attract the provisions of Exception 4 to section 300, P. P. C. It appears to be correct that there is nothing in the evidence to support the theory of a sudden fight. The deceased, who was an old man of 65 years, was not armed with any kind of weapon and in fact, if the prosecution evidence is believed, he was actually sitting down on a charpoy when he was attacked by the respon dent Muhammad, who was only in the position of a spectator during the accounts being taken between the deceased and the acquitted accused Pathan. We find it difficult, therefore, to appreciate how the High Court could come to the conclusion that '"suddenly a light flared up. This was not even the case of the accused in their own statements. The only accused who admitted his presence at the place was Nabi Bakhsh alias Nabban and even in the story he gave out, he did not plead a sudden fight but only claimed grave provocation. His story was, however, not accepted as it was neither supported by any other evidence nor was put to any eye-witness in cross-examination, There was not only no fight but the quarrel, if any, was also actually started, according to the prosecution, by the respondent Muhammad himself, who first filthly abused the deceased. In the circumstances, there could be no ground for invoking in aid the provisions of Exception 4 to section 300, P. P. C.

Learned counsel, appearing for the respondents, has, on the other hand, argued that he is entitled to ask for even the acquittal of Nabi Bakhsh and Muhammad. He has contended that the statement of Nabi Bakhsh should be accepted and he should be acquitted, as he acted under' a grave provocation. Even if the story of Nabi Bakhsh, which, as already pointed out, was not put to any witness, nor was accepted by any of the Courts below, is accepted, the offence cannot, in our opinion, fall within any one of the Exceptions to section 300, P. P. C. All that can be possibly urged in that event, on behalf of Nabi Bakhsh is, that he should not be sentenced to death.

So far as the respondent Muhammad is concerned, the learned counsel, appearing on his behalf, has argued that his participation in the incident is extremely doubtful, for, no hatchet has been recovered from him and the testimony of the eye-witnesses that he struck the first blow with the hatchet, bas beta belied by the medical evidence which is to the effect that the injury on the neck was caused by the hatchet. Learned counsel has also relied, in this connection, upon the admission of the Investigating Officer that originally the police also thought that only the respondent Nabi Bakhsh was, guilty. But as the trial Court has rightly pointed out, the opinion of the Investigating Officer cannot be taken into account in determining the guilt of an accused person. So far as the medical opinion is concerned, we find our selves unable to agree, with the Doctor, for, he himself does not appear to be very clear on this question. At first he only stated that the injury No. I must have been caused by heavy sharp-edged weapon because the big blood vessels of the neck had been cut through and through. But, on seeing the spade, (Exh. 6), he thought that he would clarify his opinion by pointing out that the injury on the neck could not have been caused by that spade, even though it was also a heavy sharp-edged weapon. When questioned further in cross-examination, he explained that his opinion was based on his assumption that hatchet blades are invariably curved. Since the injury on the skull could not have been caused by a curved blade he opined that it had not been caused by a hatchet even though no hatchet was in the Court for him to see nor was any witness asked as to whether the blade of the hatchet, alleged to have been used in this case was curved or not. On the other hand, the spade produced in Court had a straight blade and as such, it followed, according to him, that injury No. 2 was caused by it. He nevertheless, was forced to concede that if a curved weapon is struck slantingly, the shape of the wound might be according to the shape of the blade and the part of the body struck. His opinion, therefore, cannot, upon such unconvincing and doubtful, reasoning be accepted as correct. Since no hatchet was recovered in this case he could not possibly have said with any degree of certainty whether the injury No. 2 could or could not have been caused by a hatchet. His assumption that hatchet blades are invariably curved, is not supported by any evidence and a mere surmise. It seems to us unlikely that a person making a murderous assault upon another, with a heavy weapon like a spade would only slice the soft tissues of the skull. It is, therefore, more likely that the injury on the head was caused by hatchet. If it is remembered that the deceased was in a sitting position then it is not difficult to visualize that a hatchet striking his head slantingly might only cut the soft part on the vertex of the skull, particularly, the victims head was bent low. On the other hand, if a blow is struck with a kassi or a spade in that position, it would make a much steeper indent.

We are unable to agree, therefore, that the doctor's evidence has belied the version of the eye-witnesses.

It is next contended that the evidence of the eye-witnesses, of whom one was a servant and the other a tenant of the diseased, should not have been accepted without Independent corroboration. We are again unable to accept this pointation because, there is no evidence that the witness Manzoor Ahmad (P. W. 12) had any motive for falsely implicating the appellants. Learned counsel has in support of this contention, drawn our attention to the fact that on the findings of the Courts below, even he had falsely implicated as many as three innocent persons and therefore, been guilty of serious exaggeration. The possibility of their not being able to see at all due to the obstruction caused by the thorny fence has also, it is argued, not been taken into consideration when, according to the prosecution itself, the charpoy on which the deceased was sitting, was placed by the fence and these two eyewitnesses were at a distance of 9 or 10 karams away from there.

The High Court was, no doubt, inclined to the view that their view was somewhat obstructed by the hedge and, therefore, they could not have seen exactly what happened and who struck which blow. Nor has the prosecution led any evidence as to how the incident actually started. But, notwithstanding these deficiencies we have come to the conclusion that so far as Nabi Bakhsh is concerned his guilt has been abundantly established by the evidence taken along with his own admission of his participation. The probabilities also are that the eye-witnesses did see the in cident and described them substantially truthfully. The tendency of witnesses to rope in some innocent persons is well known, but they cannot be disbelieved totally on this account. Their evidence has, however, to be scrutinised with care and having been taken through the evidence by the learned counsel, we are inclined to agree with the appraisal of that evidence by the High Court. It has been, in our opinion, established beyond reasonable doubt that the two injuries found on the deceased, were caused by the respondents Muhammad and Nabi Bakhsh. So far as they are concerned, therefore, the offence that has been brought home to them is clearly one under section 302, P. P. C. and not under section 304, Part I, P. P. C., as erroneously thought by the High Court. We, therefore, allow this appeal and set aside the order of the High Court and convict the respondents Muhammad and Nabi Bakhsh under section 302, P. P. C. But having regard to the fact that the incident took place as long ago as the 4th July 1963, and their convictions were altered in the High Court on the 6th December 1965, we are of the view that the lesser sentence of transportation for life would satisfy the ends of justice in this case, particularly because since the High Court decision they have had for over a period of two years, a full expectation of life.

Appeal accepted.

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