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Criminal Appeal No.166 of 1986, decided on 10th January, 1987.

---S. 302/407--Case against accused resting on ocular testimony, motive and recoveries of crime weapons--Witnesses related inter se and motive not believed by Trial Court--Counter case lodged without any delay- Injuries received by accused not explained by prosecution--Incident occurred near houses of some of accused and complainant party coming to place of Wardat armed with sharp-edged weapons--Incident was not a pre-arranged one but arising from a sudden quarrel wherein both parties received injuries--Conviction of accused changed from S.302, P.P.C. to S.304, Part I, Penal Code, and their sentence reduced.

Sharman v. The State P L D 1957 S C (Ind.) 277 rel.

---Ss.307 & 324--Incident occurring suddenly and it was difficult to establish who was aggressor--Accused also received injuries--Injured witnesses received simple injuries at the hands of accused by sharp-edged weapon--Conviction changed from S.307 to S.324, Penal Code.

---S.34--Intention, what is--Intention is a state of mind which is not ordinarily ascertainable but is to be gathered or inferred only from external acts and for this purpose it is very necessary to examine the act itself of the accused.--[ Words and phrases] .

Taj Muhammad v. The State P L D 1963 (W.P.) Kar. 118 rel.

Muhammad Hayat Junejo for Appellants.

Rashid Akhtar Qureshi for the State.

Date of hearing: 20th November, 1986.

The appellants have been convicted by the Additional Sessions Judge, Nawabshah whereby he convicted the appellants Tayyeb and Abdul Rashid for offences under section 302, P.P.C. and sentenced each of them to life imprisonment and to pay a fine of Rs.2,000/ each or in default to suffer R.I. for six months. Appellant Islamuddin was convicted under section 307, P.P. C. and sentenced to R.I. for 10 years and fine of Rs.1,000/- and in default R.I. for six months.

2. The facts in brief are that on 11-11-1980 at about 8-30 p. m. the complainant lodged a report at Police Station Mehrabpur stating that he along with Ghulam Hussain, Manzoor Hussain, Jawed Iqbal, Rashid Ahmed and Alamdar Shah were going to attend the Majlis and at 7-30 p.m. they reached on crossing roads in Mehrabpur town when they saw the three appellants standing armed with knives. All the accused challenged and attacked the complainant party. Accused Tayyeb gave knife injuries to Jawed Iqbal, accused Rashid gave knife injuries to Bashir and accused Islamuddin gave knife injuries to Alamdar Raza. Complainant and witnesses raised cries on which all the accused ran away with their knives. Originally the case was registered under section 307, etc. but later on Jawed Iqbal expired and therefore section 302 was added. The motive behind this incident was stated that accused Rashid and Islamuddin had a dispute with injured in the school and due to that incident took place. On the same day counter case was registered on the report of Fatehdin son of Wazir Ali in which it was alleged that the complainant party had attacked the accused party. A.S.L. Dil Mir Khan registered the case and started investigation. He arrested all the three accused. The clothes of the accused were stained with blood which were also secured by the 1.0. Accused persons also produced the blood-stained knives. Injured Javed Iqbal died in the hospital. On 12-11-1980 injured Bashir also died and inquest report was prepared. The accused in their statements denied the allegations.

3. The case against the appellants rests on the ocular testimony of Alamdar Hussain, complainant Karim Bux, Ghulam Hussain and Manzoor Hussain coupled with motive and recoveries of crime weapons. No evidence has been led on the motive and therefore the learned trial Court has not believed the motive as stated by some prosecution witnesses that some incident took place between the parties prior to the incident in school. The incident has not been disputed by the accused and the recoveries of knives and blood-stained clothes have also not teen disputed but there case is that the complainant party had attacked them and a counter F.I. R. was also recorded about the same incident. Accused Tayyeb has stated that he was separating the parties and received the injury in the process and he has been implicated as the complainant was related to the deceased. Accused Abdul Rashid has stated that he was attacked by both deceased and Alamdar Raza Shah and had received the injuries. Accused Islamuddin also gave the same statement. The accused have denied the allegations. The learned trial Judge after assessing the evidence came to the conclusion that each one of the appellant is guilty of their individual offences and therefore they were separately convicted. Abdul Rashid was convicted for murder of Bashir, Tayyeb was convicted for murder of Jawed and Islamuddin was convicted under section 302 for causing injuries to Alamdar Hussain. The evidence on record establishes the fact that the incident had occurred and the deceased and injured Alamdar Hussain had received injuries by means of sharp-edged weapons. According to the doctor they have received the following injuries:

Injuries of Bashir Ahmed deceased.

(1) Incised wound on the right posterio lateral side of the chest at the 8th intercastal space through which the air was coming out size 3 cm x 1.25 cm x 4 cm.

(2) Incised wound on the back of chest on the left side in the 10th intercastal space size 2 cm on both the ends x 1 cm through which the air was also coming out. It was 4 cm deep.

Injuries of deceased Jawed Iqbal.

(1) Incised wound on the right side of abdomen just below the rib on the interior axillary line size 2 cm x 1 cm x 5 cm deep.

(2) Incised wound on the right side of chest on the back in the 9th intercastal space size 2 cm x 1 cm x 5 cm.

(3) Incised wound on the left side of buttock size 1 cm x cm.

(4) Incised wound 21 cm above the laternal to injury No.3 size cm x skin deep.

Injuries of injured Alamdar Hussain

(1) Incised wound on the back of left thigh in the middle size 3 cm x 1 cm x 3 cm.

(2) Incised wound on the lateral side of left chest in the region of 10th intercastal space size 3/4 cm x cm x skin deep.

The complainant and the witnesses have not stated anything about the injuries received by the accused persons. In the first information report as well as in their deposition at the trial they have not said that the accused persons have also received injuries. The medica5 certificates of the accused show that they have also received injuries. The nature of injuries are as under.

Injuries of accused Abdul Rashid.

(1) Incised wound on the 8th intercastal space on the front of chest 4 cm from mid line size 2 cm x 1 cm.

Injuries of accused Islamuddin.

(1) Incised wound on 7th intercastal space in the mid acillary line on the right side of chest size 3 cm x 1 cm.

(2) Contusion on the left biceps region size 3 cm x 3 cm.

Injuries on the person of Tayyeb.

(1) Incised wound on left index finger near its base. Size 2 cm x cm x skin deep.

No definite opinion was recorded by the doctor as the injuries were under observation and Islamuddin and Rashid were referred to M.S. Nawabshah fox further treatment but the final certificates of these injured nave not been brought on record. The plea of the defence has not been considered by the doctor. Counter F.I.R. was lodged without any delay. The injuries received by the accused persons have not been explained by the prosecution. It is admitted that the incident had occurred near the houses of some of the accused. The complainant party had come at the Vardat. Though their explanation is that they were going to Imam Bara but as the accused persons have received the injuries the complainant party must have been armed with some sharp-cutting weapon. If they were going to Imam Bara then why they had come to the place of incident armed with sharp-edged weapons. The incident had occurred suddenly. There is nothing to suggest that it was a pre-arranged incident. It has been stated that the accused persons knew that the cutaplainant party would be passing on their way to Imam Bars. There is nothing on record to come to this conclusion. The witnesses are related inter se. Karim Bux complainant is maternal uncle of deceased Jawed and related to Bashir who was maroot of Karim Bux. Incident had occurred all of a sudden and both the parties have received injuries and the injuries have not been explained by the complainant party then the case would not fall under section 302, P.P.C. as observed by the learned trial Court.

4. In the case of Sharman v. The State of Punjab reported in PLD 1957 S C (India) 277 it has been observed that when two such contending parties, each armed with sharp-edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner, and the case clearly falls within exception 4 of section 300 of the Penal Code.

5. In the result the conviction of appellants Tayyeb and Abdul Rashid is converted to section 304(I) and they are sentenced to suffer R.I. for five years and a fine of Rs.1,000/ each and in default to suffer R.I. for six months.

As regards appellant Islamuddin he was convicted by the trial Court under section 307, P. P. C. for causing injury to Alamdar Hussain. Alamdar had received two injuries, one is on the left thigh and the other on the lateral side of left chest. As stated above the incident had occurred suddenly and it is difficult to establish in the present case as to who was the aggressor. The conviction was changed from under section 307 to one under section 308 P.P.C. which provides that whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. In my opinion the circumstances of the case show that the case of the appellant Islamuddin falls under section 324 and not under section 307.

In the case of Taj Muhammad v. The State P L D 1963 (W.P.) Kar. 118 it has been observed that intention is a state of mind which is not ordinarily ascertainable. Intention is to be gathered or inferred only from external acts and therefore for this purpose it is very necessary to examine the act itself of the accused.

The accused have also received the injuries. The case falls under section 324 P. P. C . because the injured had received injuries by means of sharp-edged weapon. The injuries on the person of Alamdar Hussain were simple in nature, as such accused Islamuddin is convicted under section 324 P.P.C. and sentenced to 1 years R.I. and fine Rs.500/-.

The appeal was disposed of by short order dated 20-11-1986 and the above are the reasons for the same.

M.Y.H./T-13/K Order accordingly.

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