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Criminal Appeal No.139 of 1977, decided on 19th February, 1986. (On appeal from the judgment, dated 1‑7‑1976 of the Lahore High Court, Lahore, passed in Criminal Appeal No.416 of 1975, Murder Reference No.268 of 1975).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Leave to appeal granted to consider whether ocular testimony was of such a quality as to sustain conviction and also as to whether ingredients of S.34, Penal Code, were present to establish case of vicarious liability.

‑‑‑S. 302/34‑‑Conviction‑‑Appeal‑‑Courts below, as to guilt of accused, were justified in holding that accused and his father had participated in murderous assault and caused injuries to deceased and his son‑ Complainant party wanted to soften evidence because of close relationship and for that matter a prosecution witness made obliging admissions in committal Court to exculpate accused ‑‑Inconsistencies existing in evidence both as regards venue of attack and other details of incident which would not detract from truthfulness of earlier version and there existed no doubt that it was accused and his father who gave blows to deceased and obliging admissions and inconsistencies were designedly introduced in evidence in order to weaken prosecution case Appeal against conviction dismissed in circumstances.

‑‑‑S. 34‑‑Common intention‑‑Both accused and his father had armed themselves with weapons and caused injuries‑‑Common intention of both to kill deceased, held, could not be doubted.

‑‑‑S. 302/34‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑Sentence‑‑incident occurring before enforcement of Law Reforms Ordinance 1972, but High Court reducing death penalty to imprisonment for life‑‑‑Order of High Court modified and sentence of imprisonment for life converted to transportation for life.‑‑[Sentence].

Muhammad Bilal, Advocate Supreme Court for Appellant.

Mian Inamul Haq, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate‑on‑Record for the State.

Date of hearing: 19th February, 1986.

‑Leave to appeal was granted to consider whether the ocular testimony was of such a quality to sustain conviction and also as to whether the ingredients its of section 34 P.P.C. were present to establish the case of vicarious liability.

Shahadat Ali and his father Ismail were charged for the murder of Hassan Din. Ismail died before the trial commenced and Shahadat Ali alone was tried for the murder.

The parties are closely related. Muhammad Yousaf (P.W.8) is the son of Hassan Din while Faiz Ahmed is his son‑in‑law. The appellant's sister, Daulat Bibi, is married to Muhammad Yousai (P.W.8) and Khadim Hussain, a brother of the appellant, is married to Mst. Aaisha, a sister of Muhammad Yousaf.

The prosecution case is that about a year before the present incident, Ismail the father of the appellant asked for the hand of Mst. Hamida daughter of Hassan Din for the appellant which was refused and a month before this occurrence she was married to Faiz Ahmed. Four or five days before the fateful day, she came alongwith her husband to reside with her father. In the evening, it is alleged that Shahadat Ali cut an indecent joke with her about which she complained to her father. At about 8‑00 p.m. on 1‑4‑1971, Muhammad Yousaf and his father Hassan Din went to the house of deceased Ismail to protest against the mis-behaviour of his son. There they found both of them asleep outside their house in the area of Jhuggian Shahab Din, Nawan Kot, Lahore City. On being awakened they were informed as to how Shahadat Ali had misbehaved with Mst. Hamida Bibi upon which there was an altercation and exchange of abuses. Thereafter, the appellant and his father got themselves armed with Dangs and started giving blows to Hassan Din and Muhammad Yousaf. Hassan Din sustained injuries on his head and face and fell down. Muhammad Yousaf was also injured. He raised an alarm which attracted Muhammad Nazir and Faiz Ahmed to the spot. Hassan Din was taken to the Gangaram Hospital who on reaching there breathed his last. His body was brought back to the village and leaving the dead body in the house, Muhammad Yousaf went to lodge the report at Police Station Nawan Kot which was recorded at 2‑30 hours on 2‑4‑1971 by Bahir Hussain, S . H .O . (P . W .12) .

The appellant on being arrested on 2‑4‑1971 produced a blood stained Dang. Ismail also produced a Dang which was not blood‑stained.

The deceased' suffered one injury on his head which proved fatal and two abrasions on the left scapular region. However, two documents Exhs. C.W.1/1 and C.W.1/2 were led in evidence by the defence to establish that the deceased was alive when he was taken to the hospital and that his wound was stitched and further as to the cause of his death it was not homicidal but as a result of a fall from the stairs.

The trial Court accepted the ocular account furnished by Muhammad Yousaf (P.W.8) and Faiz Ahmed (P.W.11). Further the immediate reason provided for the fatal assault, and the recovery the blood‑stained Dang at his (appellant's) behest were held not or to be the circumstances to corroborate his participation but also that they were incompatible with his innocence. The trial Court also rejected the documents Exhs. C.W.1/1 and C.W.1/2 as having been projected surreptitiously.

While assessing the ocular testimony, the trial Court held that Muhammad Yousaf (P.W.8) was a natural witness and his presence could not be disputed as he had also sustained a head injury and an abrasion. As for Faiz Ahmed, his presence was also held to be quite natural as he was a guest and had come alongwith his wife Mst. Hamida to stay with his in‑laws. The further factor which weighed with the trial Court was that in view of their close relationship with the appellant they would not have falsely implicated him in the absence of any motive particularly when the incident was a sudden affair. Accordingly, the trial Court recorded the finding of guilt and convicted the appellant order section 302, P.P.C. and sentenced him to death and also awarded a fine of Rs.2,000 or in default to undergo rigorous imprisonment for one year in case the death sentence was not confirmed.

On appeal and reference, the High Court upheld the conviction, but reduced the sentence from death to imprisonment for life. The principal argument advanced before the High Court was that the head injury was not homicidal but as a result of a fall from the stairs. In this connection, a reference was made to the two documents Exhs. C.W.1/1 and C.W.1/2 which cumulatively showed that the deceased was admitted to the hospital while alive and that the cause of death was reported to be fall from the stairs. The further fact which was pleaded was that the injury was stitched which otherwise could not have been so if the deceased had died before being admitted to the hospital and taken back to the house in the village. The High Court noticing the close relationship between the parties held that it was "reasonably probable that the complainant party gave the cause of the head injury as the fall from the stairs" to save the appellant and his father, and for that reason discarded the defence submission that the head injury was not homicidal. However, the High Court accepted the ocular version despite the defect in the evidence as to which of the two caused the fatal head injury. In this connection it held:

"There is conflict in the testimony of the two eye‑witnesses in this case as to who gave the fatal head injury to the deceased. One of the eye‑witnesses stated that the fatal Dang blow was given on the deceased by the father of the appellant whereas the appellant gave him two simple injuries. However, the other eye‑witness stated that the fatal head injury was given to the deceased ‑by the appellant and the two simple injuries were given by his father."

Again the High Court noticed another improvement in the evidence, and that is, that the venue of the incident was changed from outside the house to Chowk Jhugian Shahab Din. The earlier version was that the appellant and his father were asleep and were awakened by the deceased and his son Muhammad Yousaf and informed of the misbehaviour of his son Shahadat with Mst. Hamida, which led to a scuffle and exchange of abuses and the consequent assault on them with Dangs. As there was no possibility of false implication and the incident was a sudden affair, the High Court nonetheless accepted the ocular testimony as it not only stood corroborated by the immediate cause of the incident but also by the medical evidence and the recovery of the blood‑stained Dang. However, while considering the question of sentence, the High Court gave the benefit of the conflict in the evidence as to which one of the two accused gave the fatal blow to the deceased and reduced the sentence.

On examining the evidence, we are of the view that in so far as the guilt of the appellant is concerned, the Courts below were justified to hold that the appellant and his father had participated in the murderous assault and caused the injuries to the deceased and his son Muhammad Yousaf.

There is no denying the fact that because of the close relationship, the complainant party wanted to soften the evidence, and for that matter Muhammad Yousaf (P.W.8) made obliging admissions in the committal Court to exculpate the appellant which were proved at the trial. These were: firstly, that his sister had not complained to his father before him; secondly, that it was Ismail who gave the first blow on the head of the deceased followed by Shahadat who gave two other blows on his head with his Dang; and, thirdly, that both he and Faiz Ahmed had got the deceased admitted in the Gangaram Hospital, Lahore. Besides, there are other inconsistencies in the evidence both as regards the venue of the attack and other details of the incident which would not detract from the truthfulness of the earlier version and we have no reason to doubt that it was the appellant and his father who had given the blows to the deceased and Muhammad Yousaf. The obliging admissions and the inconsistencies in the ocular testimony hardly need consideration as they were designedly introduced in the evidence in order to weaken the prosecution case.

As to whether the appellant and his father shared the common intention to kill the deceased cannot also be doubted as both of them had armed themselves with the weapons and caused the injuries which evidently shows that it was developed at the spot. As to who caused the fatal blow would be of no consequence. The High Court has given the benefit of it while reducing his sentence from death to imprisonment for life. However, the High Court failed to notice that the incident occurred before the enforcement of the Law Reforms Ordinance, and while reducing the death penalty it could not be imprisonment for life, but only transportation for life.

We would, accordingly, convert the sentence of imprisonment for life to transportation for life and give to him the benefit of section 382‑B, Cr.P.C. With this modification, the appeal is dismissed.

M. Y. M. Appeal dismissed.

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