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Criminal Appeals Nos. 23 of 1965 and 324 of 1968, decided on 13th November 1968.

Ss. 304, Part I & 324 read with S. 109‑-Temper of parties, at time of occurrence, greatly ruffled and little incitement on either side likely to result in grave consequences‑Accused, an elderly man of wealth and position, in such atmosphere, ordering his young nephew to beat deceased and young-man consequently dealing a dao blow on head of deceased resulting in his instantaneous death‑Conviction of accused under S. 302/109 altered to that under S. 304, Part I.

T. Ali and Md. Yahya for Appellant.

A. T. M. Masud, Deputy Legal Remembrancer for the State.

.‑The appellant along with one Torik and Arjan and some others were tried by the learned Additional Sessions Judge of Sylhet on charges of rioting and some of them also on charges under sections 302, 302/109 and 324 of the Pakistan Penal Code and the appellant and the said Torik and the said Arjan Ali were alone convicted under sections 324/109, 304, Part I and 324 of the Pakistan Penal Code respectively. Torik has been sentenced under section 304, Part I to suffer rigorous imprisonment for four years. Arfan Ali has been sentenced to pay fine of Rs. 250 only in default to suffer simple imprisonment for three months. Torik and Arfan have not appealed before this Court. The appellant has been sentenced under section 324/109 of the Pakistan Penal Code to a term of simple imprisonment for one and half years.

On 2‑5‑68 this Court issued a suo motu Rules upon appellant Mobarak Ali and the Deputy Commissioner of Sylhet to show cause why the conviction of the appellant under section 324/109 of the Pakistan Penal Code should not be altered to one under section 304, Part I of the Pakistan Penal Code, and the sentence of simple imprisonment for one year and six months thereunder should not be enhanced. We have heard both the appeal and the Rule and they are now being disposed of under one judgment.

The prosecution case is that on 29‑8‑63 at 10 o'clock in the morning while Haidor Ali (deceased) and his two sons P. W. 1 Abdur Rahman and P. W. 3 Abdul Majid were ploughing their land which was adjacent to a Halichara land of the aforesaid accused Torik the last named who too was then working in his field came with an ail dressing dao in his band and accused Haidor Ali (deceased) of damaging with his cattle the paddy seedlings planted by Torik. Haidor Ali denied having damaged the paddy seedlings. The parties started abusing each other. In the meantime appellant Mobarak Ali, who was the paternal uncle of the said accused Torik, and who was ploughing his land at a distance of fifty cubits off from the said Halicharea land came and enquired from Torik as to what had happened, Torik said that his seedlings had been damaged by Haidor and in addition the former was being abused by the later. At this appellant Mobarak ordered Tarik to beat Haider Ali and as result thereof Torik dealt a fatal dao blow on the head of Haidor Ali when the latter was in his own land and he fell down senseless. The other accused persons including Arjan also came to the place of occurrence and Arjan dealt a dao blow on the head of the said P. W. Abdur Rahman when the latter had cried out and advanced to hold his father Haidor Ali. The other witnesses arrived at the scene of occurrence and some of them saw the occurrence and also found Haidor Ali lying senseless on the ground. The accused party thereafter left the place of occurrence. The complainant party took the dead-body of Haidor Ali by boat to Gowainghat Police Station, eight miles off from the place of occurrence, and there P. W. 1 Abdur Rahman lodged a First Information Report on the same day 5‑45 p.m. After the usual Police investigations and a preliminary enquiry by a First Class Magistrate all the accused persons including the appellant were sent up for trial before the Court of Sessions on the charges mentioned above.

The defence set up on behalf of the accused persons was that the occurrence took place at a different place and in a different manner. It was alleged that as Haidor Ali (deceased) had damaged with his cattle the paddy seedlings of accused Arjan Ali, the latter and accused Abdul Haque seized those cattle and while the cattle were being taken to the pound they were opposed by Haidor Ali and his men and consequently a quarrel ensued between the parties on the land of one Abdul Gani. The quarrel developed into an armed fight between the parties in course of which accused Arjan was injured with a dao blow. At this occurrence none of the accused persons except Abdul Haque and Arjan was present. Accused Mobarak never went to the place of occurrence and he was not present at the time of occurrence. The accused party thereafter lodged a First Information Report against the complainant party and the latter in order to save themselves brought this false case against the accused persons.

Before we proceed to consider the contentions raised by Mr. Tafazzal Ali, learned Advocate appearing on behalf of the appel lant, we consider it desirable to mention that the aforesaid counter‑case against the complainant party was tried by the same Sessions Judge and it ended in the acquittal of all the accused persons therein.

We haves been taken through the judgment of the learned Additional Sessions Judge who had tried the case as well as through the evidence in the case. Mr. Tofazzal Ali has contended that the evidence is discrepant and that the case has not been proved against the appellant beyond any reasonable doubt.

Prosecution has examined eight witnesses to prove its case. They are P. Ws. 1, 2, 3, 4, 5, 6, 8 and 12. Of these witnesses we may eliminate P. W. 8 for the simple reason that this witness never mentioned the name of this appellant before the committing Court nor did he assign any part to him. Of the remaining seven witnesses the only criticism that was directed against them was that some of them, namely, P. Ws. 1 and 2 were accused in the counter case and that their evidence is discrepant on material point, namely as to how appellant Mobarak Ali gave the order in question. As regards P. W. 4 it has been pointed out that he had been sentenced to three months' imprisonment in a smuggling case and is, therefore, not, a safe witness to be relied on. We have carefully examined the evidence of each one of the aforesaid witnesses and we have found no reason to disbelieve them whatso ever. At least four of the witnesses, namely, P. Ws. 4, 5, 6 and 12 are not related to the complainant party and they apparently are independent witnesses. P. Ws. 4 and 5 are cousins. P. W. 4 has denied his relationship with P. W. 1 and he is supported on this point by P. W. 1 himself. The mere fact that P. W. 4 had been sentenced to jail in a smuggling case is not enough to discredit his evidence which finds support from other reliable evidence. The date of such conviction does not appear from the record. The main criticism made against the witnesses is that although in the Court of Sessions several of them with the excep tion of P. W. 12 had said "beat this shala. Nothing will happen if such dogs are killed and beaten" all of them appear to have said to investigating officer or before the Court that Mobarak gave order to Torik by saying " . . . . ." *[Words in Bengali character pitted] (beat). It has further been contended that the witnesses have improved upon their state ments. We have carefully considered the evidence of these witnesses and have found that none of them has been contradicted on material points. This criticism as we have already stated does not affect P. W. 12 who said that Mobarak had given order by saying " . . ... .. "*[Words in Bengali character pitted] (beat). It is true that some of the witnesses in cross‑examination had answered one or two questions in a manner which can be described as evasive but these questions were not on material points and such answers had hardly any effect upon the prosecution case.

Upon a consideration of the evidence we are satisfied that the prosecution has succeeded in proving its case against the appellant Mobarak Ali. The question, however, is what offence has been proved against him. We have already stated that Torik has been convicted and sentenced under section 304 of the Pakistan Penal Code. The learned Additional Sessions Judge at page 15 of his judgment has come to the following finding with regard to appellant Mobarak Ali : "Considering all the facts, circumstances and the evidence on record I find that accused Mobarak Ali came to the place of occurrence when there were mutual fights between Haidor Ali and accused Torik and that accused Mobarak gave order to assault Haidor Ali and on such order his brother's son Torikulla dealt a dao blow on the head of Haidar Ali."

The evidence clearly shows that at the time of the occurrence accused Torik had a big dao in hand that the temper of the two parties particularly accused Torikulla on the one side and Haidor Ali (deceased) and his sons on the other was greatly ruffled and a little incitement on the one side or the other was likely to have resulted in grave consequences. In such an atmosphere the appearance of an elderly man like Mobarak, who was seventy years old at the time of the occurrence, and who appears from evidence to be a man of wealth and position besides being an uncle and elderly relation of Torikulla and his peremptory order to his young nephew, who was twenty years old at the time of occurrence, and was armed with a dao to beat Haidor Ali evident ly furnished the spark that was needed to cause the explosion. And this is exactly what happened when appellant Mobarak Ali gave the said order. Torikulla on receiving the order dealt a dao blow on the head of Haidor Ali and this resulted in the death of the latter almost immediately. In these circumstances and having regard to the findings arrived at by the learned Additional Sessions Judge we have no other alternative but to convict the appellant under section 304, Part I read with section 109 of the Pakistan Penal Code. It is indeed difficult to understand by what process of reasoning the learned Additional Sessions Judge convicted the appellant under sections 324/109 of the Pakistan Penal Code after he had arrived at the finding referred to above.

We accordingly alter the conviction of appellant from one under sections 324/109 of the Pakistan Penal Code to one under sections 304/109 of the Pakistan Penal Code. There remains the question of sentence that should be imposed on the appellant. It appears that the occurrence took place at night on the spur of the moment and without premeditation. The appellant has by this time grown seventy‑three years old; and having regard to the facts that the appellant had already been released on bail, and he will surely find it hard at this distance of time to be called upon to go back to jail and the other facts and circumstances of the case we enhance the sentence passed upon the appellant to a term of simple imprisonment for one year and six months plus a fine of Rs. 4,000 and in default of payment of the fine to further term of simple imprisonment for two months. We further direct that a sum of Rupees three thousand out of the fine, if realised be paid to the heirs and legal representatives of deceased Haidor Ali by way of compensation.

.‑I agree.

Order accordingly.

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