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Criminal Appeal No. 186 of 1976, decided on 25th October, 1981.

(On appeal from Judgment of Lahore High Court, dated 22nd April, 1975 in Criminal Appeal No. 693 of 1975).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/23‑‑Leave to appeal granted to examine plea; that from facts as revealed in prosecution case, it was a matter of a chance encounter between two parties who had incidentally come to see their injured companions in hospital at about same time and, therefore, it was not a case of pre‑meditated attack; that High Court had wrongly assumed that all accused were armed with knives and that they had launched attack; that prosecution had deliberately suppressed significant fact that two accused out of four had also sustained injuries and for which no explanation was furnished by them.

‑‑‑S. 302/323‑‑Occurrence taking place in a chance encounter and at spur of moment and accused party initiated assault on complainant party‑‑Out of victims one receiving maximum injuries numbering ten, of which five were caused by a sharp‑edged weapon which could be caused by one person‑‑Hostility existing since long between parties‑ Testimony of interested eye‑witnesses requiring independent corroboration which was furnished by circumstantial evidence of recovery of blood‑stained knife at instance of accused‑‑Accused who caused various injuries on different parts of the body, held, to be attributed with knowledge that his action was so imminently dangerous that it must, in all, probability have caused death of victim and he would, therefore, be guilty under section 302, Penal Code‑‑His sentence of imprisonment for life maintained.

‑‑‑Ss. 34, 302 & 323‑‑Interested ocular testimony‑‑Independent corroboration not available‑‑Occurrence taking place out of a chance encounter and all injuries simple in nature have been caused by throwing stones‑‑Mischief of S. 34, Penal Code not attracted‑‑Accused acquitted of charge under S. 302/34 and their conviction under S. 323, Penal Code and sentence there under maintained.

‑‑‑Ss. 382‑B & 504‑A‑‑Penal Code (XLV of 1860), S. 302‑‑Accused 70 years' old on day of occurrence‑‑Granted concession under S. 382‑B on condition that he would pay enhanced compensation under S. 504‑B, Criminal Procedure Code.

Ejaz Hussain Batalvi, Senior Advocate Supreme Court instructed by Rao Muhammad Yousuf Khan, Advocate‑on‑Record for Appellants.

S.P. Qureshi, Advocate Supreme Court for the State.

‑This appeal by leave arises out of the convictions recorded by the Additional Sessions Judge, Rawalpindi against appellants under sections 302, 323/34, P.P.C. for which they were sentenced to life imprisonment and one year's R.I. both the sentences were however, directed to run concurrently. The convicts assailed the judgment of the trial Court and the first informant in the case, namely, Abdul Khaliq, on the other hand, filed a Revision Application for enhancement of the sentence imposed on the convicts. The High Court dismissed the appeal of the convicts, and allowed the Revision Application only to the extent of enhancement of fine which is obligatory under section 343‑A of Code of Criminal Procedure, and accordingly the convicts were additionally sentenced to pay fine of Rs.1,000 each, or in default to undergo one year's R.I. The amount of fine, if realised, was directed to be paid to the heirs of the deceased as compensation.

2. The occurrence in the case took place at about 10 a. m. on 10‑9‑1972 in the compound of District Headquarters Hospital, Rawalpindi. Abdul Khaliq alongwith Muhammad Ayub, Mehboob, Maqsood Elahi and Muhammad Riaz had gone to the hospital in order to enquire about the health of their relative. When they reached near the cycle stand in the hospital, they saw Gulzar, Rehmat, Mansabdar and Musarrat accused who also had come to enquire about the health of Muhammad Sharif who was admitted in the hospital. Mansabdar raised a Lalkara saying "let us revenge the murder of Zardad", whereupon Gulzar accused opened the fight, and gave Muhammad Ayub (deceased) a knife blow hitting him on the left side of the abdomen. Mussarat accused then gave him a knife blow which hit him in the chest and then Rehmat gave the victim a knife blow hitting him on his eyebrow. As a result of the injuries Muhammad Ayub fell down on the ground. Mansabdar accused then hurled stones at the victim and the accused gave further blows to him. Abdul Khaliq and his companions raised alarm whereupon the accused hurled stones at them, which hit Abdul Khaliq, Muhammad Riaz and Maqsood Elahi who also threw stones at the accused in return, which hit Mansabdar and Rehmat accused. The accused then took to heels and disappeared from the scene. The injured Muhammad Ayub was laying on the ground unconscious, and he was taken to the hospital inside for medical aid he expired during the night. The report of the crime was lodged Abdul Khaliq soon afterwards within 45 minutes of the occurrence.

3. The motive of the crime as set up in the F.I.R. is that 13‑14 years earlier, father of Mussarat, namely, Zardad, had been murdered, and in that case Muhammad Ayub (deceased) and four others were challaned, but they were subsequently acquitted. One year before the occurrence Rehmat and Mussarat alongwith others had attempted the murder of Muhammad Ayub, and consequently a case was registered against them under sections 307, 325/149 and 148, P.P.C. which was yet pending in the Court.

4. At the trial, prosecution case was sought to be supported by four eye‑witnesses Abdul Khaliq, Mehboob, Maqsood Elahi and Muhammad Riaz, and the circumstantial evidence of recovery of blood‑stained weapon of offence, namely, knife secured at the instance of Rehmat accused. The accused Rehmat and Mansabdar were injured in the same incident and they were arrested on the same day, and the blood‑stained clothes from their person were also secured. In defence, the accused pleaded not guilty. Two of them, namely, Rehmat and Mansabdar admitted participation in the incident which in the words of Rehmat accused was as follows:‑‑

"In fact the complainant party attacked me and Mansabdar while we were near the General Ward to enquire about Muhammad Sharif. Then there was general uproar and the brickbats were thrown by different persons injuring me and complainant party, later I learnt that some unidentified person has caused injuries to the deceased who also were injured with the broken glass panes."

The learned trial Judge believed the ocular testimony on the ground that the three among them, namely, Abdul Khaliq, Maqsood Elahi and Muhammad Riaz were injured in the same incident and the presence on spot was beyond any reasonable doubt. He rejected the plea of self defence raised by the accused Rehmat and Mansabdar on the ground that on the position that has emerged from the prosecution case was that the four eye‑witnesses were unarmed and the accused party was, therefore, the aggressors.

5. On appeal the learned Judges of the Division Bench of the High Court affirmed the view that prevailed with the learned trial Judge that the four eye‑witnesses were reliable witnesses in spite of the previous hostility between the parties for the reason that three among them had sustained injuries in the course of the incident and the two of the convicts had admitted their participation in the crime which was further established by the fact that they were injured in the incident. According to the learned Judges, the testimony of the eye‑witnesses was corroborated by the recovery of the blood‑stained knife from Rehmat accused which was proved to be stained with human blood.

Leave to appeal was granted by this Court in order to examine the plea, firstly, that from the facts as revealed in the prosecution case, it was a matter of a chance encounter between the two parties who had incidentally come to see their injured companions in the hospital at about the same time, and, therefore, it was not a case of premeditated attack. Secondly, that the High Court had wrongly assumed that all the accused were armed with knives and they had launched the attack. Thirdly, that the prosecution had deliberately suppressed the significant fact that the accused Rehmat and Mansabdar had also sustained the injuries and for which no explanation was furnished by them.

7. After having gone through the record of the case in the light of the submissions made by the learned counsel for the appellant, we find that there is no escape from the conclusion that the incident was a chance encounter, in that the parties had incidentally come to visit their ailing relatives and friends in the hospital at about the same time, and the incident occurred at the spur of the moment. It is, however, clear that the accused party had initiated the assault on the four eye‑witnesses, but out of the victims, Muhammad Ayub had received the maximum injuries numbering ten, of which five were caused by a sharp‑edged weapon. According to Doctor Khalid Javed who had initially examined injured Muhammad Ayub, all the injuries with sharp weapons could be caused by one person. Since admittedly there existed long drawn hostility between the parties, there is no escape but to apply the rule of caution, and we would rather seek independent corroboration of the interested testimony of the eye‑witnesses which is furnished by the circumstantial evidence of the blood‑stained knife at the instance of Rehmat accused. Considering that Muhammad Ayub received various injuries on different parts of the body, the assailant must be attributed with the knowledge that his action was so imminently dangerous that it must, in all probability, cause death of the victim.

8. He is, therefore, guilty under section 309, P.P.C. beyond any reasonable doubt. Since there exists no independent corroboration of the ocular testimony of the interested witnesses, and it was a chance encounter, and all the injuries on the P.Ws. were simple in nature having been caused by throwing of stones. We are clearly of the view that the mischief of section 34, P.P.C. is not attracted. The offence committed by these accused, therefore, does not fall higher than the one under section 323, P.P.C. for which they have been already held guilty. On this view of the case, we while upholding the conviction of Rehmat appellant under section 302/34, P.P.C. and maintaining the sentences awarded to him, acquit the three appellants of the charge under section 302/34, P.P.C., but maintain the conviction recorded against them under section 323/34, P.P.C. and the sentence there under.

9. Mr. Ijaz Hussain Batalvi learned counsel for the appellants finally submitted that in view of the old age of Rehmat appellant, the benefit under section 382‑B, Code of Criminal Procedure in respect of the period undergone by him in jail during the trial may be allowed to him. Since Rehmat appellant was about 70 years of age on the day of the commission of the crime, we grant him the concession, provided he pays higher amount of compensation than the one imposed upon him under section 544‑A of the Code of Criminal Procedure. Mr. Ijaz Hussain Batalvi stated that he waives notice of enhancement of compensation, and we accordingly enhance the amount of compensation from Rs.1,000 to Rs.10,000. We, therefore, direct that Rehmat appellant shall be granted the benefit of the provisions of section 382‑B of the Code of Criminal Procedure in respect of the period undergone by him in jail as an under‑trial prisoner. We, however, enhance the amount of compensation /fine imposed on him from Rs.1,000 to Rs.10,000. In default of payment of this amount he shall undergo R.I. for 2 years. In case the amount of compensation /fine or part thereof is realised, it will be paid to the heirs of the deceased as compensation.

Since the three appellants Gulzar, Mussarat and Mansabdar have already undergone the jail sentence for the period much in excess of one year under section 323/34, P.P.C. they shall be released forthwith unless they are required in some other connection.

M.Y.H. Order accordingly.

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