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Criminal Appeal No.545 of 1981, Murder Reference No. 165 of 1981 and Criminal Revision No. 206 of 1982, heard on 20th February, 1985.

‑‑‑S.27‑‑Penal Code (XLV of 1860), Ss. 302/149 & 307/149‑‑Recovery evidence‑‑Knife recovered not stained with blood‑‑Recovery, held, of no consequence.‑‑[Recovery].

‑‑‑Ss.302/149 & 307/149‑‑Eye‑witnesses, previously known to accused, factually seeing occurrence and identifying accused, consistently stating that while armed with knives accused caused fatal injuries to deceased and simple injury to prosecution witness‑‑Prosecution witness had no serious enmity with accused, standing test of cross‑examination‑‑No inherent infirmity existing in statements of such witnesses‑‑Presence and participation of accused when admitted fact, no further corroboration of testimony of eye‑witnesses required‑‑Defence evidence in case inspiring no confidence and their plea not spelt out from .prosecution evidence or circumstances of case‑‑Absence of medical certificate relating to injuries on person of accused rather belieing defence version‑ Prosecution, held, proved their case beyond reasonable doubt‑‑Accused, having caused intentional death of deceased, declared guilty of murder punishable under S.302, Penal Code in circumstances.

‑‑‑Ss.302/149 & 307/149‑‑Appreciation of evidence‑‑Mere relationship of eye‑witnesses with deceased, held, no ground to reject their evidence.‑ [Evidence‑‑Witness].

---S.302/34‑‑Common intention‑‑Doubts existing whether two accused had common intention to murder and cause grievous as well as simple injuries to prosecution witnesses‑‑No serious enmity existing between parties‑‑Extension of benefit of doubt to accused on question of their vicarious liability, held, would be in accordance with safe administration of justice in such cases‑‑Each one of accused held responsible for his own act and convicted accordingly.‑‑[Common intention].

‑‑‑S.302/34‑‑Conviction‑‑Sentence‑‑Mitigating circumstance‑‑Occurrence taking place all of a sudden‑‑Accused giving a solitary blow which proved fatal and possibility, that something giving provocation to accused might have been said by deceased not excluded‑‑Mitigating/extenuating circumstances, held, existed in case‑‑Sentence of death altered to imprisonment for life in circumstances.‑‑[Sentence].

Maqbool Ellahi Malik for Appellants.

Sardar Muhammad Khalid for the State.

Dates of hearing: 19th and 20th February, 1985.

‑‑ This Criminal Appeal No.545/81, Murder Reference No.165/81, Criminal Revisions No.206/82 against the acquittal of co‑accused in main case under section 148/302/149‑307/149 arise from the judgment of the learned Sessions Judge, Mianwali whereby he on 13‑9‑1981 while acquitting Muhammad Zaman, Mehr Zaman and Muhammad Aslam co‑accused of charges, convicted Sher Zaman aged 30 years and Amir Abdullah aged 22 years under section 302/34, P.P.C. for the murder of Shah Wali aged 60/65 years, and sentenced them as under: ‑

(i) Sher Zaman to death and a fine of Rs.2,000 in default thereof two years' R.I.

(ii) Amir Abdullah to imprisonment for life and a fine of Rs.2,000 in default ;hereof R.I. for two years, with the direction that the fine when recovered be paid to the heirs of the deceased.

(iii) The appellants were also convicted under sections 325/34 and 324/34, P.P.C. for causing grievous and simple injury to Muhammad Khan P.W.5 and Amir Alam P.W.8 and sentenced to two years' R.I. and a fine of Rs.300 in default thereof three months' R.I. and to six months' R.I. respectively with the direction that the sentences shall run concurrently.

2. The occurrence took place on 29‑9‑1979 at 6‑30 a.m. near the mosque of village Bityan. F.I.R. Exh. P.C. was lodged by Muhammad Khan P.W.5 the nephew of deceased on the same day at 7‑30 a.m. at Police Station Sadar Mianwali which was recorded by Muhammad Yousaf Moharrir Head constable P.W.3. The distance between the place of occurrence and the police station is two miles.

3. The motive as stated by the prosecution was that the cattle of Sher Zaman appellant and others had damaged the Gowara crop of Shah Wall deceased two days before the occurrence and that Shah Wali had abused Sher Zaman appellant and Muhammad Zaman, co‑accused.

4. As far the main occurrence, it has‑been stated that Shah Wali deceased, his son amir Alam, and his brother's son Nawab Khan P.W. were going to the house of one Rafi Ullah Khan to congratulate him on his having been elected as councillor. When they reached near the mosque, they saw that cattle of Sher Zaman and Muhammad Zaman accused were damaging the crop. Muhammad Khan complainant when went into the field to remove the cattle when Sher Zaman armed with knife, Muhammad Zaman armed with hatchet, Amir Abdullah armed with knife, Mehr Zaman armed with Vahola and Muhammad Aslam armed with rifle gild came there. They threw challenge. Muhammad Khan P. W. started running away. Meanwhile Shah Wali Khan deceased, Amir Alam and Nawab P.Ws. came there to help Muhammad Khan. The appellants and the acquitted co‑accused encircled them. Sher Zaman gave knife blow in left flank of Shah Wall who fell down. Muhammad Zaman gave two hatchet blows from blunt side on the head of Amir Alam P.W. Mehr Zaman acquitted accused gave one blow with his Vahola on the left arm of Muhammad Khan complainant. Amir Abdullah gave knife blow on the back of Muhammad Khan complainant. In the meantime Muhammad Aslam co‑accused who was armed with rifle, kept on raising Lalkara. Nawab Khan beseached the appellants and the co‑accused not to beat the P.Ws. and the deceased. The appellant and co‑accused then ran away. Shah Wali succumbed to the injuries on the spot.

5. On 26‑9‑1979 Dr. Muhammad Akram Khan P.W.4 conducted post mortem examination on the dead body of Shah Wali Khan and found following injuries:‑

"A stab wound 3/4" x on the left outer side of chest, 5 from the left axilla and 4 from left nipple.

In his opinion, death was due to shock and haemorrhage as a result of this injury which was sufficient to cause death in the ordinary course of nature. The injury was caused by sharp‑edged pointed weapon. The death was immediate. The time between the death and post‑mortem examination was 5 to 3 hours. The doctor also examined Muhammad Khan on the same day and found following injuries:‑

(1) "An abrasion c.m. x c.m. with swelling 4 c.m. x 4 c.m. on the back and inner side of left forearm at middle.

(2) An incised wound 1 c.m. x c.m. x 1 c.m. with tail at upper end, on the left side back 5 c.m. from mid‑line and 5 c.m. from the scapula.

(3) An abrasion 1 c.m. x c.m. on the back of right 2nd finger at middle.

(4) An abrasion 1 c.m. x c.m. on the back of right hand at 5^th metacarpal bone.

Injury No.2 was caused by sharp‑edged weapon while the rest with blunt. Injury No.1 was declared grievous and the rest were simple in nature. On the same day the Doctor examined Amir Alam Khan P.W. and found following injuries on his person:‑

(1) "A lacerated wound c.m. x c.m. x skin deep on top left side of head, 11 c.m. from the left ear.

(2) A lacerated wound c.m. x c.m. x skin deep on top left side head, 1 c.m. from injury No.1.

(3) An abrasion c.m. x c.m. on the upper part of nose.

(4) An abrasion 1 c.m. x 3/4 c.m. on front of right knee joint.

All the injuries were caused by the blunt weapon and were simple in nature.

6. The appellants were arrested on 4‑10‑1979 by Abdur Razaq P.W.9. On 9‑10‑1979 Sher Zaman and Amir Abdullah appellants got recovered knife P.7 and knife P.8 which were taken into possession vide Memos. P.L and P.M. attested by Muhammad Khan P.W.5. The recoveries were effected by Muhammad Sadiq Inspector P.W.10. The knife being not stained with blood, the recoveries are of no consequence.

7. To prove its case, the prosecution examined ten witnesses. Dr. Akram Khan P.W.4 had conducted the post‑mortem examination on the dead body of the deceased and had examined Muhammad Khan and Amir Alam with regard to the injuries found on their person. Muhammad Khan P.W.5, Nawab Khan P.W.7 have given the ocular account of the occurrence. They supported the occurrence as detailed in the early part of the judgment. Muhammad Khan P.W. 5 and Muhammad Sadiq P.W.10 stated that knife P.7 and knife P.8 were recovered from Sher Zaman and Amir Abdullah appellants. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr. P.C. the appellants denied all the incriminating circumstances. In reply to the question as to why the case against him Amir Abdullah appellant stated that:‑

"On the day of occurrence, I was going out to cut grass with a sickle and saw my camel in the Gowara field. The rest of my version is the same as given by Sher Zaman appellant."

Sher Zaman appellant in reply to the question "as to why the case against him" stated:‑

"On the day of occurrence the camel of Amir Abdullah accused stayed into the Gowara field of the deceased. When he went to take it away he was assaulted by Nawab Khan, Muhammad Khan, Amir Alam P.Ws. and Shah Wall deceased. On his alarm, I came out and saw him lying injured on the ground. I started brick batting the accused. In the meanwhile Alam Gul Khan and others reached to separate us. Amir Abdullah was also carrying a sickle, when he was going to cut grass. I was also injured. I appeared before the police on the day of occurrence and gave the version of the occurrence, but I was taken into custody and case was not registered. I was also not got medically examined. Pencillin injections were applied to me by the police Constable as treatment."

9. In defence two witnesses were produced. Muhammad Kabir D.W.1 deposed about the Alibi of Muhammad Zaman acquitted accused. Alan Gul Khan D.W.2 was originally a prosecution witness. He was given of by the prosecution. The appellants desired to examine him as D.W. He stated that the deceased was his sister's son and the appellants were his distant co‑laterals. He further stated that at the eventful time on hearing the alarm, he was attracted to the spot. He saw deceased armed with walking stick, Nawab P.W. with hatchet, Amir Alam P.W. with Danda and Muhammad Khan complainant holding hatchet and f knife. Amir Abdullah and Sher Zaman appellants were also there. They were having a fight. Sher Zaman appellant was not carrying any weapon at that time. He further stated that Sher Zaman and Amir Abdullah appellants had appeared before the police same day at about evening time and that Amir Abdullah had injuries on the back of his chest whereas Sher Zaman was having scratches on his face. In cross examination he stated that his son Saif Ullah is the first cousin of the appellants. He could not say as to who had caused injuries to the deceased and the P.Ws.

10. The learned trial Court believing the prosecution case more particularly the ocular testimony convicted the appellants and acquitted the three co‑accused by giving them the benefits of doubt for want of corroboration.

11. The learned counsel for the appellants contended that the eye‑witnesses are related; that their evidence suffers from contradictions and discrepancies; that they have already been disbelieved to the extent of three acquitted accused and that there is a reasonable possibility of the defence version being true. Conversely the learned counsel for the State assisted by the learned counsel for the petitioners in the connected revisions not only supported the judgment of the trial Court but also requested for the re‑trial of the acquitted co‑accused and for the retrial of Sher Zaman under section 13 of the Arms Ordinance.

12. We have considered the arguments advanced by the learned counsel for the parties with care. From the state of affairs given above, it is very much obvious that the time of occurrence, place o1 occurrence, presence of the deceased alongwith Muhammad Khan P.W.5, Nawab Khan P.W.7 and Amir Alam P.W.8 the three eye‑witnesses, the factum of trespass of the camel of the appellants into the Gowara field of the deceased and the presence of Sher Zaman and Amir Abdullah appellants are the admitted facts of the case. The prosecution case was that at the time of occurrence, the cattle of Sher Zaman appellant and Muhammad Zaman were damaging the crop of the deceased. Muhammad Khan P.W.5 went into the field to remove the cattle when the appellants and the co‑accused duly armed came there and opened the attack. Conversely, the appellants' case was that the camel of Amir Abdullah appellant strayed into the Gowara field of Shah Wali deceased. Amir Abdullah appellant went to take the camel out. He was carrying sickle with him. The deceased and the three eye‑witnesses attacked and injured him. He fell down. Sher Zaman seeing him lying injured on the ground started brickbatting at the appellants and the co‑accused; and that Sher Zaman was also injured in the occurrence. The occurrence was seen by Alam Gul Khan D.W.2 and others. There being two versions of the occurrence, we propose to examine prosecution case first in order to come to an independent finding as to the truth or falsehood of its case. Starting with the origin of occurrence, we find that the prosecution version with regard to the origin of occurrence i.e. trespass of the cattle of the appellants into the crops of the deceased is almost an admitted fact. Coming to the crucial evidence i.e. the ocular account furnished by the eye‑witnesses, we find that by the facts of injuries on their person, presence of Muhammad Khan P.W.5, Amir Alain P.W.8 is very much established. The presence of Nawab P.W.7 has also been admitted by the appellants. The appellants were previously known to the eye‑witnesses and as such there can be no doubt that the witnesses had in fact seen the occurrence and were in a position to identify the offenders. The eye‑witnesses have consistently stated that while armed with knives Sher Zaman and Amir Abdullah appellants caused fatal injuries to the deceased and simple injury on the back of Muhammad Khan P.W.5 respectively. Their statements to the extent of acquitted A2 accused have not been acted upon for want of corroboration as to their presence and participation in the occurrence. The presence of the two appellants being not only a proved but also an admitted fact, the acquittal of the three co‑accused by giving them the benefit of doubt for want of corroboration, does not damage the veracity of the eye‑witnesses. Mere relationship of the eye‑witnesses with the deceased is not sufficient to reject their statements. They had no serious enmity with the appellants. They have successfully stood the test of crossexamination. We do not see any inherent infirmity in their statements. As far corroboration of their statements qua appellants' presence and participation, we find that their presence and participation in the occurrence being an admitted fact, no further corroboration of the reliable testimony of the eye‑witnesses was/is required. That being the position, we do not feel tempted to reject prosecution case or to disbelieve or exclude ocular testimony.

This brings us to the statements of the appellants, version of the occurrence stated by them and the defence evidence particularly statements made by Alam Gul Khan D.W.2, we now proceed to examine the two rival cases placing in juxtaposition and will review the entire evidence and attending circumstances at the close to arrive at conclusion regarding the truth of defence version and will estimate its total effect in relation to two questions:‑

(i) Is the plea of the appellant satisfactorily established by the evidence and circumstances appearing in the case

(ii) If answer be in the negative, is there yet a reasonable possibility that the plea of self‑defence raised by the appellant might be true so as to cast a reasonable doubt upon the prosecution case

As far the first question, we find that to establish their version of the occurrence, the learned counsel for the appellants has relied on the statement of Alam Gul Khan D.W.2. As stated earlier, originally he was a prosecution witness. He was given up by the prosecution. The appellants desired to produce him in defence, so his evidence was recorded as D.W.2. His evidence does not appear to be confidence inspiring. There are reasons to believe that after the occurrence, he l became hostile towards the complainant party and as such has given evidence favourable to the defence. He has admitted that after the occurrence Muhammad Khan P.W.5 complainant of this case had filed complaint against him with D. C .O. and suit for damages to the tune of Rs.16,400 against him in the civil Court. His daughter also filed civil suit against the complainant. He frankly admitted that he did not give the ocular account during investigation. He could not say as to who had inflicted injuries to the deceased and the eye‑witnesses. Had he seen the entire occurrence as claimed by him in the Court, then he would have seen the assailants of the deceased and the P.Ws. From the trend of his statement, it is very much obvious that because of the litigation which started between him and the complainant party, he became adverse and did not support the prosecution and after he was given up by the prosecution, he made favourable statement to the appellants. No medical evidence was produced to prove injuries of the appellants. If the police was not prepared to get them medically examined, the appellants could have asked the Magistrate at the time of the grant of remand /adjournment. The absence of the injury on the person of the appellants and his inability to tell as to who had injured the deceased and the P.Ws. indicates that he had not witnessed the occurrence. So, our answer to the first question is in the negative.

While examining the second question a bit more carefully, we find that defence plea is not spelt out from the prosecution evidence) and circumstances appearing in the case. The absence of medical certificate relatable to the injuries on the person of the appellants D rather belies the defence version. For all these reasons, the submissions made by the learned counsel for the appellants do not hold any water. We feel inclined to hold that the prosecution has proved beyond reasonable doubt that the deceased had died at the hands of Sher Zaman and sharp‑edged injury (simple in nature) on the back of Muhammad Khan P.W.5 was inflicted by Ameer Abdullah appellant.

13. This brings us to the question of the attraction of the provisions of section 34, P.P.C. We see reasons to doubt the existence of the common intention of the two appellants to murder Shah Wali Khan and to cause grievous as well as simple injuries to Muhammad Khan and Mir Alam P.W. There was no serious enmity between the parties. They are neighbourer. The house of the appellants is 7/8 Karams from the place of occurrence. The house of the deceased is at a distance of about 60 Karams from the place of occurrence. To us it was a sudden affair. When the cattle of Sher Zaman appellant trespassed into the Gowara field of the deceased and Muhammad Khan P.W. drove out the cattle, the appellants came to the place of occurrence without any consultation to murder the deceased or to injury the P.Ws. Although Ameer Abdullah appellant was armed with a knife yet he did not cause any injury to the deceased. Sher Zaman appellant did not cause any injury to the injured witnesses. The two appellants also did not attack Amir Alam P.W. In this view of the matter it would be in accordance with the safe administration of justice in criminal cases to extend the benefit of doubt to the appellants on the question of their vicarious liability. Since Sher Zaman has caused intentional death, we hold him guilty of the murder of Shah Wali Khan punishable under section 302, P.P.C. He has not caused any injury to the P.Ws so he is acquitted of the charges under sections 326/34 and 324/34, P.P.C. for causing grievous and simple injuries to Muhammad Khan and Amir Alam P.Ws. We also see mitigating/extenuating circumstances in his favour for lesser penalty inasmuch as the occurrence took place all of a sudden; he gave solitary blow which of course proved fatal and that the possibility that something giving provocation to him might have been said by the deceased when the camel of the appellant trespassed into his land, cannot be excluded. The sentence of death awarded to him by the trial Court is therefore altered to imprisonment for life. The sentence of fine and imprisonment in default thereof and the directions for the payment of fine to the legal heirs of the deceased given by the trial Court are maintained. Amir Abdullah did not cause any injury to the deceased. He is, therefore, acquitted of the charge under section 302/34, P.P.C. He did not cause grievous injury to Muhammad Khan. He is acquitted of the charge under section 325/34, P.P.C. He gave simple injury on the back of the front H of Muhammad Khan with his knife, therefore, his conviction under section 324, P.P.C. and the sentence of six months' R.I. awarded to him by the trial Court is maintained. If he has served out the sentence, he shall be released forthwith. The appeal is disposed of accordingly:

DEATH SENTENCE IS NOT CONFIRMED.

Resultantly Criminal Revision No. 206 of 1982 fails.

M. Y. H. Appeal partly accepted

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