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Criminal Appeal No. 217 anti Murder Reference No. 284 of 1979, decided on 30th March, 1980.

‑‑ S.300, Exception IV read with S. 304, Part II‑Sudden fight- No previous enmity between parties shown to exist‑Attack on deceased by accused sudden and preceded by exchange of abuses -Accused inflicting solitary injury to deceased although having full opportunity to repeat blow‑Accused, held, bad no intention to Kill deceased and his case covered by Exception IV o S.300, ,_ P. P. C., as punishable under S. 304, Part 11. P. P. C.

Galib Pervez v. State 1974 P Cr. L J 420 ; Muhammad Feroz v. Muhammad Arif 1976 S C M R 497 ; Masood‑ul‑Hasan v. State P L D 1978 Kar. 560 ; Mushtaq Ahmad v. State 1979 P Cr. L J 980 ; Riaz Beg v. State 1973 P Cr. L J 11 l ; Salim Akhtar v. State 1977 P Cr. L J 140 ; Talib Hussain v. State 1979 P Cr. L J 197 and Muhammad Ayyub v. State 1979 P Cr. L J 536 ref.

‑‑ S. 304, Part II read with Ss. 34 & 109‑Common intention- Accused coming a little later to place of occurrence and least aware of concealment of knife by co‑accused in his dab‑Accused catching hold of deceased thereby aiding and affording facility to co‑accused to cause fatal injury to deceased‑Accused, held, could not be blamed for sharing a common intention and to have acted in concert pursuant to any pre‑planned scheme with co‑accused in doing away with deceased‑Action of accused, held further, amounted to abetment of commission of offence as envisaged by S. 304, Part 11 read with S. 109, P. P. C. by co‑accused.‑[Common intention].

Abid Hassan Minto and S. M. Latif Khan Khosa for Appellants.

M. Rafiq Butt for A.‑G. (Punjab) for the State.

Dates of hearing : 29th and 30th March, 1980.

By his judgment dated the 3rd February, 1979, the learned Additional Sessions Judge. Gujranwala, convicted Humayun, son of Muhammad Shari, caste Kashmiri, aged 18 years. Muhammad Ilays, son of Umar Din, caste Ansari, aged 20 years, and Tasawwar Akhtar alias Kakku, son of Chiragh Din, caste K4shmiri, aged 19 years, residents of Vanike Road, Hafizabad. district Gujranwala, under section 302/34 of the Pakistan Penal Code, for committing the murder of Muhammad Boota, son of Muhammad Ali (P. W. 8), aged 20 years, on the 14th of March, 1975, at 7‑OO,p.m. on Vanike Road, Hafizabad, near the shop of Muhammad Shafi Halwai, father of the said Humayun, at a distance of two furlongs from Police Station, Hafizabad, and sentenced Humayun to death and fine of Rs. 7,000 or in default of payment thereof to seven years' rigorous imprisonment and Ilyas and Tasawwar Akhtar to imprisonment for life and fine of Rs. 5,000 or on failure to pay the same to five years' rigorous imprisonment each. Half of the fine, if recovered, was directed to be paid to the heirs of the deceased. The convicts have preferred this appeal against the impugned judgment of the learned trial Judge and murder reference (No. 284 of 1979) for confirmation of death sentence of Humayun is also before us. This judgment will dispose of both the appeal and the murder reference.

2. The facts of the occurrence as set out in the first information report, Exh. PD, are quite simple. Muhammad Ali (P. W. 8), father of the deceased, used to supply milk to Muhammad Shafi, father of Humayun appellant and a sum of Rs. 100 became due from Muhammad Shafi to Muhammad Ali on that account. The shop of Muhammad Ali was not far from that of Muhammad Shafi. about 7 o'clock in the evening of the fateful day of the 14th March, 1975 Muhammad Ali (P. W. 8) sent the deceased to Muhammad Shafi for realizing the outstanding amount of Rs. 100 from him. Shortly thereafter hearing some noise Muhammad Ali (P. W. 8), accompanied by Din Muhammad (P. W. 11) and Muhammad Ashiq, reached the shop of Muhammad Shafi and saw the appellants and the deceased fighting with fists. Humayun appellant was holding a knife in his hand and the deceased was making effort to snatch it away from the former. Muhammad Ali (P. W. 8) and his companions tried to intervene and separate them but in the meantime Ilyas and Tasawwar Akhtar, appellants, raised lafcara that the deceased should be killed whereupon Humayun appellant struck knife blow in the abdomen of the deceased who fell down on the ground and his intestines came out. In the scufe right hand of Humayun appellant was also slightly injured..

3. The deceased was taken in injured condition to Civil Hospital, Hafizabad, where be was medically examined and attended upon by Doctor Chaudhri Muhammad Sadiq, Medical Officer P. W. 12. Muhammad Ali was given a ruqqa by Doctor Chaudhri Muhammad Sadiq for taking it to police station. Muhammad Ali was on way to police station when he came across Mukhtar Ahmad, Assistant Sub‑Inspector of Police Station, Hafizabad, at Chowk Vanike Road, Hafizabad, at about 9‑00 p.m. Mukhtar Ahmad (P. W. 13), who was on patrol duty. had also learnt by 8.45 p. m., about the occurrence and as stated by him ‑was about to proceed to Civil Hospital, Hafizabad, when he met Muhammad Ali. Mukhtar Ahmad took down Muhammad Ali's statement Exh. PD,, which constitutes the first information report, at 9‑30 p.m. On its basis formal first information report was registered at Police Station Hafizabad, at 9‑40 p.m.

4. On the 18th of March, 1975. Mukhtar Ahmad (P. W. 13) took down the statement of the deceased ostensibly under section 161 of the Code of Criminal Procedure, Exh. PM, which after his death is treated as his dying declaration. That day in the evening Doctor Chaudhri Muhammad Sadiq informed the police through Exh. PF/7 that the condi tion of the deceased was becoming serious and, therefore,, his dying declara tion might be recorded. Accordingly Chaudhri Imtiaz Ahmad, Magistrate First Class, Hafizabad, P.. W. 9, took down the dying declaration of the deceased, Exh. PE/3, at 6‑22 p.m.

5. In view of deteriorating condition of his health the deceased was removed to Mayo Hospital, Lahore, where he expired on the 19th March, 1975, at 2‑00 a.m.

6. The appellants were arrested by Mukhtar Ahmad (1'. W. 13) on the 15th March, 1975. Two days later Humayun appellant led to the recovery of blood‑stained dagger, Exh. P. 3, from a cluster of hedges and bushes in front of Awan Mahal Cinema in Hafizabad. It was made into a sealed parcel and taken possession of by Mukhtar Ahmad vide memoran dum, Exh. P. C., which was attested by Muhammad Fazil (P. W. 7) and Muhammad Munir. According to the Serologist's report, Exh. P. R. (page 65 of the paper book), the dagger, Exh. P. 3, was stained with human blood.

7. Dr. Chaudhri Muhammad Sadiq (P. W. 12) examined the deceased on the 14th March, 1975, at 9‑00 p.m., when he had been first brought to the hospital and found a stab wound 2 3/4" x 1/4" abdominal cavity deep on left part of front of abdomen close to lower costal margin, 4" out and above to umbilicus. The injured was in coma, was pale and was bleeding profusely from the abdomen. The injury was fresh and caused with sharp‑edged weapon. Exh. PF is the copy of the medico‑legal examination report and Exh. PF/1 is the diagram showing the location of injury.

According to Dr. Chaudhry Muhammad Sadiq at the time the deceased was referred to Mayo Hospital, Lahore, his condition regarding abdomen was alright but he was having hypostatic pneumonia.

8. Dr. Chaudhry Muhammad Sadiq conducted autopsy on the dead body of the deceased on the 9th of March, 1975, at 10‑45 a.m., and found the following wounds thereon :‑

(1) Dressed stitched wound in median plane 7/ " in length on front abdomen.

(2) Wound of drainage containing drain in left flank.

(3) Dressed stitched wound 3" in length in front of left part of abdomen close to lower costal margin 4" out of and above umbilicus.

(4) Multiple puactured points in front of both arms and forearms as a result of needle puncture for fluid transfusion.

On internal examination all the visceras were found healthy. Trachea and both lungs were congested. Both the chambers of the heart were full of blood. In the peritoneum there was soiling with blood exudating under the wound. There were stitched and repaired wounds in transverse colon, left flexure and the small intestines (jejumun). A few of the mesenteric vessels were found to be ligated. Abdominal wall under the wound was infiltrated with blood.

Death in the opinion of the Medical Officer was due to hypostatic pneumonia and stab wound in the abdomen which caused shock and haemorrhage. Injury to the abdomen and pneumonia were sufficient to cause death in the ordinary course of nature. The injury to the abdomen could also cause death in the absence of medical aid. Exhibit P. G. is the copy of the post‑mortem examination report and Exh. P. G./ I is the diagrammatic sketch showing the seat of injury.

9. On the 15th March, 1975, at noon, Dr. Chaudhry Muhammad Sadiq examined Humayun appellant and found an incised wound 1 " x 1/4" x 1/4" on the right thenar and the space between thumb and forefinger, which had been caused with a sharp‑edged weapon within 24 hours. It was simple in nature. Exhibit P. 1. is the copy of the medico legal examination report in this behalf.

1.0. Ilyas and Tasawwar Akhtar denied point blank their participation in the commission of crime. They stated that they had been falsely implicated due to enmity and party faction. Tasawwar Akhtar added that originally one Ashiq had been arrested in the case but later on the police had involved him and the said Ashiq had been made an eye‑witness. Humayun appellant disowned recovery of the dagger, Exh. P. 3 and gave his own version of the incident in the following words :‑

"Muhammad Boota deceased was a person of bad character and used to commit sodomy on young boys and used to molest boys of my age and thus at about 9 p. m., on the day of occurrence, he wanted to have immoral connection with me and in order to satisfy his lust he wanted to coerce me to submit to his immoral demand and on my refusal he pulled a knife and assaulted me with it. I wanted to snatch knife and in that attempt received injury on my hand and in return Boota also received injury with the same knife."

11. The appellants did not choose to produce any evidence in defence.

12. We have gone through the record of the case and heard learned counsel for the appellants. It is common feature of the first information. report; Exh. P. D. and the two dying declarations of the deceased record ed by the Police Officer and the Magistrate, Exhs. P. M. and P. E/3, that it was Humayun appellant who stabbed the deceased when the latter was held by Ilyas and Tasawwar Akhtar, appellants. According to the dying declaration, Exh. P. E/3, which was taken down by the Magistrate when the deceased was in rather critical condition of health, Humayun appel lant had abused the deceased when the latter had demanded money from the former's father, Muhammad Shafi, and the deceased had abused him in return. In the meantime 11yas and Tasawwar Akhtar alias Kukko came over there and caught hold of him from behind. Humayun appellant took out dagger from his dab and struck it in his abdomen and‑ he became unconscious. While making the other dying declaration before the Police Officer the deceased confirmed that Humayun appellant had taken out dagger from his dab and stabbed him with it in the belly when he had been held by Ilyas and Tasawwar Akhtar who had exhorted Humayun to kill him.

13. There is no reason to disbelieve the dying declaration made by the deceased especially the one recorded by the Magistrate. The evidence of the eye‑witnesses, Muhammad Ali (P. W. 8) and .Din Muhammad (P. W. 11), is in the same strain. Dip Muhammad (P. W. 11) is a dis interested person and his testimony being unbiased is acceptable as against the appellants. The deceased was admittedly stouter and stronger in physique than any of the appellants. Therefore, it might not have been possible for any of the appellants acting alone to have overpowered and stabbed him. Ilyas and Tasawwar Akhtar must have held him in order to facilitate the stabbing operation carried out by Humayun. The conten tion of learned counsel for Ilyas and Tasawwar Akhtar that they acted in order to defend and save Humayun and caught hold of the deceased so as to prevent him from attacking and harming Humayun, and therefore, their action did not constitute any offence is not tenable for the simple reason that when Humayun took out dagger from his dab and stabbed the deceased they could have left him and stopped Humayun from proceeding to inflict fatal blow upon the deceased. The deceased was admittedly unarmed. Their action was one of aiding their accomplice, Humayun, in fatally injuring the deceased. Hence they are liable for abetment of the offence committed by Humayun as envisaged by section 109 of the Pakistan Penal Code.

14. The story put forth by Humayun, appellant, before the learned trial Court that the deceased had tried to coerce him to submit to his sexual lust and that he had acted in self‑defence is obviously a made‑up affair and its genuineness was not seriously pressed before us by his learned counsel.

15. No previous enmity between the contending parties has been shown to exist. Humayun took out knife from his dab which means that Ilyas and Tasawwar Akhtar were not supposed to know whether Humayun was hiding the knife with him. It was the deceased who had come to Humayun's shop Ilyas and Tasawwar Akhtar came later. Therefore, there could be no question of acting of the appellants in concert according to premeditated plan. The attack on the deceased by Humayun, preceded as it was by exchange of abuses, was sudden. Humayun inflicted solitary injury. He did not repeat the blow although he had full opportunity to do so as the deceased had been held by Ilyas and Tasawwar Akhtar. In these circumstances he cannot be said to have the intention of killing the .a deceased although he would be taken to possess the knowledge that his act of stabbing the deceased right in the abdomen was likely to cause his death. His case is covered by Exception IV to section 300 of the Pakistan Penal Code and consequently he can be held guilty of commission of offence punishable under section 304, Part 11 of the Pakistan Penal Code. The authorities cited at the bar on behalf of the appellants and reported as Galrb Pervez v. State (1974 P Cr. L J 420) ; Muhammad Feroz v. Muhammad Arif (1976 S C M R 497), Masood‑ul Hasan v. State (P L D 1978 Kar. 560) ; Mushtaq Ahmad v. State (1979 P Cr. L J 980) ; Riaz Beg v. State (1973 P Cr. L J 111) ; Salim Akhtar v. State (1977 P Cr. I. J 140) ; Talib Hussain v. State (1979 P Cr. L J 197) and Muhammad Ayyub v. State (1979 P Cr. L J 536), take the act of Humayun out of the pale of offence of murder.

16. As Ilyas and Tasawwar Akhtar came a little later and were not supposed to be aware of the concealment of knife by Humayun in his dab from where he took it out, they cannot be blamed for sharing a common intention and to have acted in concert pursuant to any pre‑planned scheme with Humayun appellant in doing away with the deceased. Nevertheless, as noticed above. their action of catching hold of the deceased thereby, aiding and affording facility to Humayun to cause fatal' injury to the deceased in the abdomen amounting to abetment of commission of offence as envisaged by section 304, Part TI read with section 109 of the Pakistan Penal Code by Humayun ' is established. They are similarly answerable and punishable like Humayun.

17. In view of the above, the appeal is partly accepted, the con viction of the appellants under section 302/34 of the Pakistan Penal Code and the sentence of death passed upon Humayun and of imprisonment for life awarded to Ilyas and Tasawwar Akhtar, appellants, are set aside. Instead Humayun appellant is convicted under section 304, Part II, Ilyas and Tasawwar Akhtar, appellants, are convicted under section 304, Part II read with section 109 of the Pakistan Penal Code and each of them is sentenced to undergo rigorous imprisonment for seven years and pay a fine of Rs. 1,000 or in default of payment thereof to suffer further rigorous imprisonment for one year. The amount of fine if realised, shall be paid to the heirs of the deceased. The sentence of death imposed upon Humayun appellant is not confirmed.

Order accordingly.

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