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Criminal Appeals Nos. 34 and 35 of 1978, decided on 15th February, 1983.

(Against the judgment of the Lahore High Court dated 6‑7‑1976 in Cr. Appeal No. 876 of 1975 and Murder Reference No., 233 of 1976).

‑‑Art. 185(3) read with Penal Code (XLV of 1860), S. 302/34‑Murder Evideuce‑Leave to appeal‑Granted to re‑appraise evidence on which conviction of accused under S. 302/34, Penal Code was affirmed by High Court and they were sentenced to undergo life imprisonment.‑[Evidence].

‑‑ S. 302/34‑Murder‑Vicarious liability‑Nothing in prosecution evidence to suggest that accused was carrying knife conspicuously or to knowledge of co‑accused‑Co‑accused, in heat of altercation, catching hold of deceased apparently in order to prevent him from indulging altercation or with a view to remove him from scene and accused taking out knife and giving fatal blow to deceased‑Role attributed to co‑accused in absence of his knowledge about possession of knife and its likely use by accused‑Held, would not saddle co‑accused either with common intention or vicarious liability that followed‑Accused given benefit of doubt and acquitted.

‑‑ S. 302‑Murder‑Evidence‑Deceased completely incapacitated, neither inflicting any injury nor posing any threat to accused‑Fatal blow inflicted with knife at sensitive part of body and likely to cause death in normal course‑No fight taking place to justify use of knife by accused‑Accused elder in age, numerically superior and better equipped and armed than deceased‑Held, accused cannot, in such situation, claim benefit of sudden fight and cannot be said not to have acted in a cruel manner‑Conviction and sentence under S. 302 maintained.

S. M. Zafar, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellants.

M. Bilal, Advocate Supreme Court Addl. Advocate‑General Punjab with Abid Nawaz for the State.

Date of hearing : 15th February, 1983.

Leave to appeal was granted to the two appellants, in two separate appeals with a view to reappraise the evidence on which their conviction under section 302/34 was affirmed by the High Court of Lahore by its judgment dated 6‑7‑1976 and both of them were sentenced to undergo life imprisonment.

Barkat Ali, the father of the deceased Shabbir aged 15 years, was in possession of agricultural land measuring about 2 kanals which had fallen n consolidation to the share of the appellants. In spite of their request he was not handing over its possession to them. On the evening of 4th March 1973 Muhammad Tufail the younger of the two brothers called at the house of Barkat Ali and took Shabbir with him. Shortly thereafter Barkat Ali heard a noise outside and on going ahead about three hundred yards from his house he found his son Shabbir lying stabbed. He was told by Allah Rakha (P. W. 6) and Hassan Muhammad (P. W. 7) the two eye witnesses that Ghulam Hussain had caught hold of Shabbir from behind from the waist while Muhammad Tufail had inflicted a knife blow on his belly. Muhammad Shabbir was removed in an injured condition to the hospital where be was attended to at first by Dr. Muhammad Aslam Bhatti and when he died the autopsy was performed by Dr. Syed Israr Haider. In the meantime the Police Station was on telephone informed about the occurrence. Muhammad Sarwar A. S. I. (P. W. 12), reached at about 3‑30 p.m. and finding that Shabbir was not in a position to make a statement and the doctor reported so he recorded the statement of Barkat Ali and a case was registered at 9. 15 p.m. at the Police Station.

The deceased had only one injury on his person which was an incised wound in umbilical region 1 x 1/2'. The injured died due to shock and haemorrhage caused by the solitary injury resulting in extensive bleeding.

The plea of the appellants was that they were quite innocent. They had no dispute or altercation with Barkat Ali. In fact they put forward a counter version that one Abdullah had been injured by Muhammad Azim (D. W. 3) and while returning from the scene he had mistaken Shabbir for Azim and gave him a knife blow. The appellants alleged that they had been falsely implicated on account of enmity with Abdullah.

The trial Court believed the ocular evidence which comprised Allah Itakha (P. W. .6) and Hassan Muhammad (P. W. 7). Though Allah Rakha had turned hostile but his statement was substantially accepted as in conformity with the rest of the prosecution case and finding both the appellants guilty Ghulam Hussain was sentenced to life imprisonment while Muhammad Tufail to death as he had given the fatal blow to the deceased. On appeal the High Court felt that the motive was shrouded in mystery and, therefore, the sentence of Muhammad Tufail was also altered to life imprison ment. None of the Courts believed the defence version.

The learned counsel for the appellants contended that the motive remained unproved and, in any case, it was an occurrence which lead taken place suddenly and as Muhammad Tufail appellant had given only one knife blow, the benefit of section 304, P. P. C. could be given to him on the facts of the case. As regards Ghulam Hussain, it was stated that he could not be burdened with common intention as there was no concert or‑planning or immediate cause for their joining together in causing the death of Shabbir, a young lad of 15 years.

The prosecution case is brought out fully and clearly in the statement of Allah Rakha (P. W. 6) and Hassan Muhammad (P. W. 7). Barkat Ali (P. W. 8) the informant being himself not an eye‑witness could at best state about the motive alone. Not only the motive has been denied by the appellants, we do not find any other evidence in support of it. Such a motive could not ordinarily prompt the appellants to take the life of a young lad of 15 years who had nothing to do with the possession of his father and which could not have been got vacated through him. According to the statement of Allah Rahka (P. W. 6) himself the meeting of the appellants and Shabbir was more by chance than by concert or planning. It was not Tufail who brought out Shabbir from the house under a design but both Ghulam Hussain and Muhammad Tufail were on the road when they saw Shabbir appear there and when face to face there was indeed an altercation, may be an exchange of abuse. During the course of it Ghulam Hussain caught hold of the deceased while Muhammad Tufail inflicted the solitary knife blow. There is nothing in the prosecution evidence to suggest that Muhammad Tufail was carrying the knife conspicuously or was carrying it to the knowledge of Ghulam Hussain. In the absence of such evidence, may be that in the heat of the altercation Ghulam Hussain just caught hold of Shabbir in order to prevent him from indulging in altercation or with a view to remove him from the scene, when Muhammad Tufail took out the knife and gave the blow. Such a role as was attributed to Ghulam Hussain in the absence of his knowledge direct or indirect about the possession of knife and its likely use by Tufail would not saddle him either with the common intention or the vicarious liability that followed such companionship or relationship. On the evidence on record, benefit of doubt must be extended to him. He is, therefore, acquitted and shall be released forthwith unless his detention is required in some other case.

As regards the defence version the two Courts have rightly disbelieved it. The statement of Dr. Ziauddin (D. W. 1) does not establish that the injuries received by Abdullah were of the same date on which the occurrence had taken place. Besides Muhammad Azeem (D. W. 3) claims to have inflicted only one injury with a stick while the doctor has reported three injuries, the weapon with which they were inflicted remaining undisclosed. It is not therefore possible from this evidence to establish that it was Abdullah who had got the appellant falsely implicated through Barkat.

As regards the role of Tufail we find that he had given: a blow at a time when the deceased had not inflicted any injury, posed no threat to him as he had been completely incapacitated. The blow was fatal and was given at a sensitive part of the body and could in the normal course cause death. There was hardly any fight between them to justify the use of knife. Ghulam Hussain and Tufail were not only elder in age but were numerically superior and were better equipped and armed. In such a situation Muhammad Tufail cannot claim the benefit of there being a sudden fight and cannot be said not to have acted in a cruel manner. His conviction and sentence under section 302, P. P. C. is proper, will remain intact and so far as his appeal is concerned it is dismissed. He shall however be allowed the benefit of section 382‑B, Cr. P. C.

Order accordingly.

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