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Criminal Appeal No. 399 and Murder Reference No. 148 of 1980, decided on 26th September, 1982.

------ S. 302 read with S. 304 (I)-Murder - Offence, alteration of--- Attack unpremeditated and something suddenly taking place prompting accused to give a single knife blow to deceased- Prosecution also failed to explain large number of injuries found on person of a prosecution witness-Both parties suppressing true story-Motive for murder as set up by prosecution not established and defence story regarding earlier incident giving rise to main incident appearing more reasonable and probable-Accused, held, not guilty under S. 302, P. P. C. but under S. 304, Part I, P. P. C:. in circumstances.

Ali Bepari's case P L D 1962 S C 502 ref.

Barkat Ali Saleemi for Appellant.

Malik Muhammad Akbar for A.-G. for the State.

Date of hearing : 26th September, 1981.

Bashir and Shari f sons of Shera and Amanat Ali son of Sardar- Ali were tried by the Sessions Judge, Kasur, under sections 302/34 and 323/34. P.P.C. for the murder of Sardar deceased and simple injuries to Mukhtar P. W. On 20th March, 1980, the learned trial Judge convicted Bashir accused under section 302, P.. P. C. for the murder of Sardar deceased and sentenced him to death, subject to confirmation by this Court, and to pay a fine of Rs. 5,000 or in default to undergo one year's rigorous imprisonment. The fine, if recovered from Bashir, accused, was ordered to be paid to the heirs of the deceased as compensation. Sharif and Amanat Ali, accused, were, however, given the benefit of doubt and acquitted. The appeal (Cr. A. 399 of 1980) of Bashir convict and the connected reference (M. R. 148 of 1980) submitted by the Sessions Judge for the confirmation of the death sentence awarded to him, are both before us for disposal and will be disposed of by this judgment.

2. The brief facts of the case are that Sardar deceased and the com plainant are the residents of Nizampura. Four days before the occurrence, Nazir, son of Muhammad Sharif accused, who is also a resident of that village, let loose his cattle in the berseem field of Sardar deceased. The deceased slapped Nazir and drove out his cattle from his field. He also reprimanded him not to do so in future. Nazir, in retaliation, whilst leav ing, stated that he would take revenge for it.

3. On the day of occurrence, i.e. 7th May, 1979 at 7.30 a. m. Sardar deceased left his haveli for his land carrying a bundle of seeds. When he was at a short distance from his haveli Bashir accused, who was armed with a knife, and Sharif and Amanat accused, who were armed with dangs, came out of their houses raising lalkara. Their houses are situated near the house of the complainant party. Mukhtar P. W. 9 at that time was present in his house and came out of his house on hearing the lalkara of the accused. Sharif P. W. 10 also reached there. In their view Sharif accused caught hold of the deceased in his Japha from behind and Amanat accused prevented him from getting free, when Bashir accused injured the deceased with his knife on the left side of his chest in the region of heart. He died at the spot. Mukhtar P. W. 9 received an injury from Amanat accused on his right upper arm, when he tried to save the deceased. The accused ran away after the occurrence to their house.

4. Leaving Sharif P. W. 10 and one Khushi Muhammad (not pro duced) at the spot, Mukhtar P. W. 9 went to the Police Stajion Saddar, where he lodged F. I. R. Exh. P. F. at 9.30 a. m., which was recorded by Ch. Khair Muhammad S. I. P. W. 11. The Police Officer then went to the place of occurrence where, after preparing necessary papers, he sent the dead body for post-mortem examination. Mukhtar P. W. 9, who was injured, was also sent for medical examination. He recovered blood stained earth, a bundle of seeds and one single shoe P., 5 left by Bashir accused from the spot, which he took into possession vide memos. Exhs. P. G., P. H. and P. J: respectively in the presence of Mukhtar P. W. 9 and Khushi Muhammad (given up P. W.). He then arrested Bashir and Sharif accused.

5. On 7th May, 1979 at 5.00 p. m. Dr. Zaffar lqbal P. W. 1 performed autopsy on the dead body of Sardar deceased and found a stab wound 1" x " on the front of left lower part of the chest and a contusion 1" x 1" on the top right of the shoulder. The stab wound was directed backwards and upwards, slightly to the left. Pericardium of the front wall of the right atrium was cut. Heart was injured. Death was due to massive haemorrhage and shock from the stab wound to heart, which was sufficient in the ordinary course of nature to cause death. The stab wound was by sharp-edged weapon and the contusion was by blunt weapon and both were ante-mortem. Probable time between injuries and death was immediate and that between death and post-mortem examina tion was 9 to 12 hours. The same day Dr. Zaffar Iqbal P. W. I also examined Mukhtar P. W. 9 and found six abrasions and two contusions " x 1/6" each on the outer side and back of right arm upper part and seven contusions " x 1/6" each on the front and outer side of the middle of the left arm. All the injuries were caused by blunt weapon within twenty-four hours and were simple.

6. On 8th May, 1979 Amanat Ali accused was arrested by Nazir Hussain Shah S. I., P. W. 8.

7. On 14th May, 1979 Bashir accused led to the recovery of a blood stained knife P. 4 from his cattle shed, which was lying under a palla of roori, which was taken into possession vide memo Exh. P. D. in the presence of Muhammad Siddique P. W. 5, Khair Muhammad S. I., P. W. 11 and Rahim (given up witness). After completing the necessary investigation and securing the reports from the Chemical Examiner and the Serologist which showed that the blood-stained earth recovered from the spot and the blood-stained knife P. 4 recovered at the instance of Bashir accused were found to be*stained with blood of human origin, the challan against the accused was lodged in Court.

8. At the trial, the prosecution produced Mukhtar P. W. 9, to prove the motive, the said witness and Muhammad Sharif P. W. 10, in proof of the ocular account, Muhammad Siddique P. W. 5 and Khair Muhammad S. I., P. W. 11 in support of the recoveries and Dr. Zaffar Iqbal P. W. 1 to corroborate the medical testimony. Bashir accused denied all the accusa tions that were levelled against him, including the recovery alleged to be effected at his instance. As regards the motive, he affirmed that some occurrence had taken place three days before the occurrence in which Sardar deceased had alleged that the cattle of his nephew Nazir were let loose in his field, whereupon the deceased abused Nazir and wanted to thrash him, but Nazir escaped abusing the deceased upon which the deceased had threatened that he would deal with Nazir. He denied that his nephew, Nazir, at that time had threatened Sardar to take revenge for any slaps which the deceased had given him. On the contrary, he submit ted that the deceased had not been able to catch hold of Nazir to beat him as Nazir had escaped abusing the deceased. As regards the main occurrence he made the following submission :-

The fact is that Sardar deceased nursed grudge against Nazir who after abusing him ran away from the field as I have stated above. On the day of occurrence Nazir went out of the house with she-ass and a sickle to bring fodder from the field. All of a sudden I heard alarm and came out of the house and found Sardar deceased and Mukhtar, P. W. giving shoe beating to Nazir. I tried to separate them, and on their refusal I took hold of Mukhtar and pulled him away, but Sardar still continued giving shoe beating to Nazir who defended himself with the sickle in his hand. All of a sudden Sardar fell on the ground and Nazir went to the house with the sickle. Many neighbourers had collected there at that time. Sharif and Amanat were not present at the spot. The complainant party left off Nazir and falsely implicated Sharif and myself. They also falsely implicated Amanat at the instance of Siddique P. W. who had previous enmity with him. We had produced Nazir before the police on the very first day of the occurrence who had disclosed the real facts of the case, to the Police. He was kept by the Police in Police Station for many days but the complainant party remained adamant in their false story. We had also offered to decide as to who was the real assailant on the oath of the Holy Qur'an, which the complainant party at first accepted but later on refused to abide by this. Their own trusted men refused to take oath. All these facts were recorded in the police file. I am innocent.

9. The occurrence being admitted, though in different circumstances, the learned trial Judge, after appraising the evidence on record, held the prosecution story to be proved and the defence version as implausible and convicted and sentenced Bashir accused, as stated in para. 1 above, and gave the benefit of doubt -to Sharif and Amanat Ali accused and acquitted them.

W. We have heard the arguments of the learned counsel for the appel lant and the State also and have also persued the record. From the state ment of Bashir, appellant, it is apparent that the occurrence is not being denied nor the place and time thereof. The presence of Sardar deceased and Mukhtar P. W. 9 is admitted, and so is his own presence and that of his nephew Nazir. The main burden of the offence is placed on Nazir. The only question, therefore, that remains to be determined is whether after keeping in juxtaposition the case of the prosecution and that of the offence, the evidence on record proves the case of the prosecution beyond any shadow of doubt or shows that the defence story is true or reason ably probable in the circumstances of the case. The occurrence relating to the trespass of Nazir's cattle in the field of Sardar deceased three days before the occurrence is admitted on both sides. It is the case of the prosecution that Sardar deceased slapped Nazir, drove out his cattle and reprimanded him not to let loose his cattle in his field in future, when Nazir, whilst leaving, retaliated that he will take revenge for it. On the basis of this earlier incident, it is the prosecution's case that Bashir appellant with Sharif and Amanat, acquitted accused, launched an assault on Sardar deceased in the morning of the day of occurrence. The actual words of the lalkara have nowhere been stated in the F. I. R. Exh. P. F. nor have Mukhtar P. W. 9 and Sharif P. W. 10 given any indication of the same. One piece of evidence to give some indication of the motive is, therefore, not clearly established. The case of the prosecution, there fore, that Nazir had been slapped by the deceased for which he had vowed vengeance does not appear to ring true and must be rejected. The defence story that Nazir escaped after the incident, abusing Sardar deceased, appears to be more reasonable and probable in the circumstances and must be accepted. We now turn to the main occurrence, Whether we accept the motive as given by the prosecution or the defence, one thing seems clear that it appears most improbable that Bashir appellant and Sharif and Amanat co-accused would launch an open attack on the deceased, duly armed with knives and longs, in broad daylight right in the heart of the abadi. It appears that something sudden took place and that no premeditated attack was launched. The prosecution does not explain the large number of injuries found on the person of Mukhtar p. W. 9. The trial Judge disbelieved the prosecution evidence quo the participation of Sharif and Amanat acquitted accused and gave them the benefit of doubt. This materially affects the veracity of the eye-witnesses. The prosecution story, therefore, cannot be implicitly accepted. However, the defence story regarding the main occurrence, as suggested, also does not ring true. The stab injury on Sardar deceased does not appear to be that of a type caused by a sickle. The sickle has a curved blade, the inner side of which is sharp and has seriations whilst the outer side is flat and blunt. If a stab wound bad been given by a sickle, one corner of the wound would have had jagged margins due to the seriations. No specific question was put to the doctor to elicit the fact that stab wound found on the dead body was caused by a sickle. In any case, to us it appears that the stab wound on the dead body of the deceased was caused more probably by the knife rather than a sickle. The defence has not been able to explain the six abrasions and seven contusions found on the person of Mukhtar P. W. 9. It appears that Mukhtar P. W. 9 received blunt weapon injuries during the occurrence, very likely from Nazir who used the outer blunt side of the sickle to ward off both Sardar deceased and Mukhtar who were giving him shoe beating. Nazir D. W. I admits inflicting injuries to the deceased with the sickle. The defence has remained silent about the large number of injuries found on the person of Mukhtar P. W. 9. The defence version, therefore, cannot also be implicitly accepted. It appears that both the parties have suppressed the true story. However, according to the principle laid down by the Supreme Court in Ali Bepari's case (P L D1962 SC 502), this Court is not deterred from drawing proper inferences from the proved facts. The inferences which we can safely draw from the proved facts is that both Sardar deceased and Mukhtar P. W. 9 by chance happened to come across Nazir D. W. 1 at the place of incident on the fateful days and, having caught ''him, began giving him shoe beating. Since Nazir was armed with a sickle, he very likely used the back side of its blade or the handle and caused injuries to Mukhtar P. W. 9. His alarm attracted Bashir, appellant, who on seeing his nephew being beaten by two persons, rushed to his defence and without premeditation gave a solitary blow to Sardar deceased with a knife fatally injuring him in the chest and felling him to the ground. In this view of the matter, we hold that Bashir appellant is not guilty under section 302, P. P. C. but under section 304 (I), P. P. C. for the murder of Sardar deceased.

11. The upshot of the above discussion is that this appeal is partly allowed. The conviction of Bashir appellant is altered from one under section 302, P. P. C. to that under section 304-I, P. P. C. and he is sentenced to ten years' rigorous imprisonment and to pay a fine of Rs. 5,000 (Rupees five thousand) or in default thereof to undergo further rigorous imprisonment for one year. The fine, if recovered, shall be paid to the heirs of Sardar deceased. In view of section 382-B, Cr. P. C., the period of detention undergone by Bashir appellant as an undertrial prisoner shall be treated as that undergone by him as a convict.

Order accordingly.

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