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(a) Penal Code (XLV of

1860)‑‑

‑‑‑Ss. 302/34 & 304, Part 1‑‑Motive port of story not proved by prosecution‑‑Court concluding that incident arose out of sudden quarrel‑‑Each accused, held, was liable for his individual act‑‑Accused

delivering solitary fatal blow to deceased in a sudden fight Conviction altered from Ss. 302 to 304 Part 1, P.P.C. and sentence of death reduced to ten years' R.1.

(b) Penal Code (XLV of

1860)‑‑

‑‑‑Ss. 302/34 & 323‑‑Sudden fight‑‑Vicarious liability‑‑No evidence produced by prosecution to show that co‑accused had intention to murder deceased in execution of common intention‑‑Sentence under S. 302/34, P.P.C. set aside and accused convicted under S. 323, P.P.C.

(c) Penal Code (XLV of

1860)‑‑

‑‑‑5. 302‑‑Appraisel of evidence‑‑Court disbelieved prosecution evidence against one co‑accused (acquitted)‑‑Same set of evidence almost under similar circumstances cannot be believed for purpose of convicting another co‑accused.‑‑lEvidence].

Dr. Khalid Ranjha for Petitioners. Pervaiz Alamgir for the State.

Dates of hearing: 31st March, 11th, 19th, 20th April, 1987.

RAJA AFRASIAB KHAN,

J.‑‑The learned Additional Sessions Judge, Sialkot, vide his judgment, dated 17‑3‑1985, convicted and sentenced the appellants Muhammad Abbas, son of Ghulam Haider, Hameed Ahmad, son of Ali Ahmad, Muhammad Shafi, son of Rahim Bakhsh, and Ghulam Haider, son of Rahim Bakhsh, under section 302/34, P.P.C., whereby the appellant, Muhammad Abbas was sentenced to death and was also fined a sum of Rs.10,000 or in default thereof he was further sentenced to six months' rigorous imprisonment and the other appellants, Muhammad Shafi, Hameed Ahmad and Ghulam Haider were sentenced to life imprisonment and they were also fined a sum of Rs.5,000 each and in default thereof they were to further undergo three months' rigorous imprisonment each. All the four appellants were convicted under section 323/34, P.P.C. for causing injuries to Subey Khan (P.W. 6) and they were sentenced to six months' rigorous imprisonment and were also fined a sum of Rs.500 or in default thereof each one of them was to suffer further one month's rigorous imprisonment. Similarly all of them were convicted under section 323/34, P.P.C. for the injuries they caused to Muhammad Ashraf (P.W.7) and were sentenced to one month's rigorous imprisonment each and were fined a sum of Rs.500 each or in default thereof to undergo further one month's rigorous imprisonment. The learned trial Court ordered that if the fine was recovered, it shall be paid to the heirs of Muhammad Abbas deceased as compensation under section 544‑A, Cr.P.C. The sentences so awarded were to run concurrently. The trial Court, however, acquitted Muhammad Riaz, son of Ghulam Haider, co‑accused by giving him the benefit of doubt. The convict‑appellants have come in appeal against their conviction and sentence, as stated above, before the High Court and reference for confirmation of death sentence imposed upon appellant Muhammad Abbas is also before us under section 374, Cr.P.C. This judgment will dispose of both the criminal appeal as well as the murder reference.

2. Briefly stated, the facts of the prosecution case as mentioned in the F. I. R., are that on 8‑1‑1984, at 4‑30 p. m. complainant Subey Khan (P.W.6) stated that his well is situated at a distance of 1i furlongs from the village Baqarpur, and that his son namely, Muhammad Abbas was going to fetch milk from the well and that the complainant himself was also following him at some paces. At about 4‑30 p.m., when he alongwith his son Muhammad Abbas reached near the house of Malik, son of Sultan, suddenly from the house of said Malik, Muhammad Shafi, son of Rahim Bakhsh, and Hameed Ahmad, son of Ali Ahmad, both armed with Dangs, Muhammad Abbas, son of Ghulam Haider, armed with a Khanjar, Ghulam Haider, son of Rahim Bakhsh, and Riaz son of Ghulam Haider, both empty handed, came out and immediately thereafter, Ghulam Haider accused caught hold of Muhammad Abbas from his neck and Riaz (acquitted co‑accused) held him from his arms. Muhammad Shafi accused shouted that he should not go alive. Muhammad Abbas, son of Ghulam Haider, accused gave a Khanjar blow to deceased Muhammad Abbas which landed on his right flank. The complainant stated that he intervened to help his son, whereupon Hameed Ahmad accused gave him a Dang blow which hit him on his back. In the meantime, Muhammad Ashraf (P.W.7) and Barkat Ali (P.W.8) reached the spot and witnessed the occurrence. Muhammad Shafi accused caused Dang injuries on the hands of Muhammad Ashraf (P.W.7). In the meantime number of persons from the village came at the spot and the accused went to their houses. The complainant stated that his son Muhammad Abbas had fallen on the ground. He was taken to Civil Hospital, Daska in an injured condition but he died before he could be given any medical treatment.

About the motive, the complainant stated that the day before yesterday, his minor son Muhammad Aslam had a quarrel with the daughter of Muhammad Malik, son of Sultan, on which Muhammad Abbas deceased slapped the girl, which incident caused annoyance to the accused party. In order to take revenge of this incident, the accused party had murdered Muhammad Abbas.

3. Muhammad Zamurrad Khan S.H.0. Police Station Daska (P.W.13) recorded the F.I.R. (Ex.P.G.) on the statement of complainant Subey Khan (P.W.6) on 8‑1‑1984. He prepared the injury statement of Subey Khan P.W. at the police station. Thereafter, he went to Civil Hospital Daska, where he prepared the inquest report (Ex.P.L.) and injury statement (Ex.P.M.) of Muhammad Abbas deceased. The dead body of Muhammad Abbas was entrusted to Bashir Ahmad Constable (P.W.3). The spot was inspected by the witness on the following day. He took into possession blood‑stained earth from the place of occurrence vide Memo. Ex.P.H. He also took into possession Gadwa (Ex.P.5) vide Memo. Ex.P.J. from the place of occurrence. The statements of Muhammad Ashraf (P.W.7) and Barkat Ali (P.W.8), the eye‑witnesses, were recorded by him. Bashir Ahmad (P.W.3) a constable produced before the Investigating Officer the last worn clothes of the deceased (EXS.P.1 to P.4) which were taken into possession vide Memo. Ex.P.E. Muhammad Shafi, Muhammad Riaz and Muhammad Abbas accused were arrested by him on 14‑1‑1984. Dagger (Ex.P.6) was recovered from Abbas on 20‑1‑1984. It was taken into possession vide Memo. Ex.P.K. Rough site plan of the place of occurrence was also prepared by him. At his instance, Muhammad Aslam Patwari (P.W.4) prepared the site plan (Ex.P.F.). The witness stated that the notes and entries on Ex. P.F. are in his hand. He further stated that the other co‑accused were arrested by Faiz Ahmad A.S.I. (P.W.5).

4. Dr. Mumtaz Ahmad Bhatti (P.W.1) examined Subey Khan (P.W.6) at 7‑30 p.m. on 8‑1‑1984 and found two injuries on his person. Both the injuries were contusion marks on the back of left side of lumber region and on the back of right hand of the witness. The injuries were simple in nature and were caused by a blunt weapon.

Muhammad Ashraf (P.W.7) was also medically examined by the same doctor on the same day at 7‑35 p.m. and the doctor found as many as five injuries on his person. Injury No. 1 was a contusion on the back of left hand. Injury No. 2 was an abrasion on the left ring finger. Similarly, injuries Nos. 3, 4 and 5 were abrasions marks on the left little finger, on the back of right little finger and on the front of right lower leg. All the injuries were simple in nature and were caused by a blunt weapon.

The said doctor medically examined Muhammad Abbas accused, son of Ghulam Haider, on 18‑1‑1984 at 3‑35 p.m. and found as many as two injuries on the left side of top of head and on the back of root of left little finger. The injuries were simple in nature and were caused by a blunt weapon. The duration of injuries was about 10 to 14 days.

5. Dr. Gul Nawaz (P.W.2), Medical officer Civil Hospital, Daska, conducted the post‑mortem examination on the dead body of Muhammad Abbas on 9‑1‑1984, at 12‑30 p.m., and found the following injuries on his person:‑

(1) Contusion 5 x 2 c.m. transverse on the front of left shoulder close to clavicle bone.

(2) Two abrasions 1 x 1/2 cm. each on the back of left upper arm in middle.

(3) A scratch 2 cm. long on the back and outer aspect of left elbow.

(4) Contusion with abrasion 2 x 1 cm. on the back and outer aspect of right elbow.

(5) Contusion with abrasion 2 x 1/2 cm. on the back of right elbow.

(6) Incised wound 5 x 1 cm. x abdominal cavity deep transverse on the back of right lumber region 5 cm. from midline.

In the opinion of the doctor, death occurred due to shock and haemorrhage because of injury No.6, which was sufficient to cause death in the ordinary course of nature. It was further opined by the doctor that this injury was fatal and was caused by a sharp‑edged weapon. The rest of the injuries were found to be simple and were caused by a blunt weapon.

6. The accused made statements without oath before the trial Court. Accused Muhammad Abbas, son of Ghulam Haider, denied the occurrence of motive having taken place on 6‑1‑1984. He repudiated the story of the prosecution and termed the same as a false story. He also denied the recovery of dagger (Ex.P.6) and he submitted that the said recovery of dagger had been planted on him. He, however, made a detailed statement giving his own version of the occurrence having taken place. He submitted that the actual manner, mode of occurrence and injuries upon his person have been deliberately suppressed by the complainant party so as to exaggerate the role played by him and to suppress and diminish the part played by the deceased at the time of occurrence. He stated that on the day of occurrence, when the deceased was passing through the courtyard of Malik and his daughter raised an objection on his passing, thereupon a quarrel took place between the two. He pleaded that the deceased was a hot headed man. He gave abuses to the girl and exceeded all possible limits of decency and on the top of it, gave a slap on her face. The accused stated that he was attracted to the spot and advised the deceased to behave and he should not have given such a maltreatment to the girl. Upon this, the deceased got annoyed and started abusing him. The deceased got a stick and chased him. The accused stated further that the deceased caused injuries with his stick upon his head and other parts of his body. He submitted that he was medically examined through the police. He frankly conceded that in order to defend himself, he caused a solitary injury under the aforesaid circumstances. He stated that Subey Khan and Muhammad Ashraf P.Ws. reached the spot a little after the occurrence had taken place. Muhammad Malik and his wife intervened and they caused a few minor injuries on them also. He submitted that the eye‑witnesses are not only related inter se, but are closely related to the deceased. According to the accused, Barkat Ali P.W. was not at all present at the spot. He proceeded to say that the prosecution story in its present shape was concocted by Saeed Ahmad and other witnesses who were all their sworn enemies. He maintained that Subey Khan complainant, Barkat Ali and Saeed Ahmad were the witnesses against his father Ghulam Haider in the matter of election petition which was filed by Saeed Ahmad before the Election Tribunal at Daska. Certified copies of the said document (Ex.D.C. and Ex. D.C/1) were produced before the trial Court. Muhammad Abbas accused concluded by saying that he was innocent and that he acted in the exercise of his defence and that of Malik's daughter under the given circumstances, and that all the other co‑accused were not present at the spot. Muhammad Riaz acquitted co‑accused, submitted by denying all the allegations, that he was not present in the village on the day of occurrence and that he was present in village Bhelowal, Police Station Karianwala, District Gujrat. Muhammad Shafi accused in his statement submitted that he has been implicated in the case because of enmity and party faction in the village and that he had no motive whatsoever to commit the crime in question. He was an old man of 75 years. Ghulam Haider accused pleaded that he was not present at the spot and has been falsely involved in the case. He submitted that he has been implicated in the case at the instance of Saeed Ahmad P.W. and others who are his sworn enemies. To the same effect is the statement of Hameed Ahmad co‑accused.

The appellants also produced Muhammad Safdar son of Sultan, Allah Ditta son of Fakir Muhammad, and Mst. Naveeda Bibi, daughter of Muhammad Malik, as D.W.1, D.W.2 and D.W.3 in their defence. D.W.1 stated that Hameed Ahmad accused was known to him and that on 8‑1‑1984 the said accused was with him in Talwandi Musa Khan. Allah Ditta (D.W.2) stated that he was a Councillor of Union Council Bhagowal, District ‑Gujrat, and that Riaz accused was known to him and that he was with him on 8‑1‑1984 at 5.00 p.m. in village Bhelowal. Mst. Naveeda Bibi, daughter of Muhammad Malik (D.W.3) stated that she was present in the courtyard of her house on the day of occurrence. Muhammad Abbas deceased passed through her courtyard whereupon she protested and asked him not to pass through that way. Muhammad Abbas deceased gave abuses to her and also slapped her. The witness stated that she returned the abuses whereupon Muhammad Abbas accused came at the spot and he asked Muhammad Abbas deceased not to behave in that way. Upon this, both of them exchanged abuses. She stated further that Muhammad Abbas deceased was holding a stick at that time and he started inflicting stick blows on the person of Muhammad Abbas accused. She stated that her parents had come at the spot at that time from the well. She further stated that her father gave some injuries to Muhammad Abbas deceased with Sota. She submitted that Muhammad Abbas deceased caused injuries on the person of Muhammad Abbas accused at his hand and head.

7. Learned counsel for the appellants argued before us that motive for the commission of the crime as set out by the prosecution in its story, is not at all established beyond any reasonable doubt. He

stated that there is no direct evidence so far as the motive is concerned. In view of lack of direct evidence on motive, the same stands demolished. It is contended that the slapping by the deceased Muhammad Abbas to Malik's daughter and the main occurrence wherein Muhammad Abbas was done to death, had taken place together. The learned counsel submits that Muhammad Abbas accused was medically examined and injuries were found on his person, which injuries are referable to the occurrence in question. The prosecution has purposely suppressed these injuries on the person of the accused and there was no explanation whatsoever given by the prosecution so far as these injuries on the accused person are concerned. The learned counsel maintains that the eye‑witnesses are not trustworthy and could not be relied upon because they had made material improvements in their statements when they were examined in the trial Court. It is vehemently argued by the learned counsel that the instant case was a case of two versions. One version has been given by the prosecution, whereas the defence has given a very clear version of its own in respect of the same occurrence. It is conceded that the principal accused Muhammad Abbas was there and that the occurrence had taken place as a result of provocation given by the complainant party. The accused Muhammad Abbas has given in detail every aspect of the occurrence in his statement made by him before the trial Court which left no doubt that it was the complainant party which opened the aggression upon him and that in the exercise of right of self‑defence, he caused a solitary injury on the person of the deceased.

8. The learned counsel for the State during his arguments, admitted that the eye‑witnesses did make improvements in their statements. He further submitted that the F.I.R. in the case was lodged promptly and that he will strongly support the conviction and sentence awarded by the trial Court to the appellants.

9. We have heard learned counsel for the parties at great length and have very minutely scrutinized the entire evidence on the record. It is admitted by the defence that the occurrence had taken place, though not in the manner as described by the prosecution. The admission of Muhammad Abbas accused for having taken his part in the occurrence leaves no doubt about the existence of the occurrence wherein the murder of Muhammad Abbas deceased took place. We are not persuaded to believe the version of the accused Muhammad Abbas that he was justified in law and under the given circumstances to kill the deceased Abbas by giving him a dagger blow on a vital part of his body, which injury according to the doctor, proved fatal. There is nothing in the evidence on the record to justify the plea of his self‑defence as well as the defence of daughter of Muhammad Malik. We accordingly repel his defence version. But the question arises as to exactly what offence has been committed by the appellants.

10. The part of the prosecution story pertaining to the motive for the commission of crime has not at all been proved by the prosecution beyond any reasonable doubt. The earlier occurrence took place on 6‑1‑1984, wherein deceased Muhammad Abbas slapped the daughter of Muhammad Malik. Subey Khan (P.W.6), Muhammad Ashraf (P.W.7) and Barkat Ali (P.W.8) have categorically stated in their statements before the trial Court that they heard about the first occurrence in which deceased Muhammad Abbas slapped the daughter of Muhammad Malik. Subey Khan has categorically stated that the quarrel between the daughter of Muhammad Malik and his son Muhammad Aslam took place in the afternoon and that he was not present at that time. He had only heard about the said incident. He further stated that he had not heard about the persons present at the time of the quarrel between the daughter of Muhammad Malik and his son. Muhammad Ashraf (P.W.7) in his very examination‑in‑chief deposed that he had heard the story of motive and was not present at the time of previous incident. Similarly, Barkat Ali (P.W.8) in his examination‑in‑chief, mentioned that he had heard that two days prior to the present occurrence, Muhammad Abbas deceased slapped the daughter of Muhammad Malik as a result of which the accused persons took revenge by murdering Muhammad Abbas. In view of this position having been taken by the eye‑witnesses, namely, Subey Khan, Muhammad Ashraf and Barkat Ali P.Ws. , the motive part of the story has not at all been proved by the prosecution. We, therefore, come to the conclusion that the occurrence was the result of a sudden quarrel over the aforesaid slapping incident. If the occurrence of motive which took place on 6‑1‑1984

according to the story of the prosecution in which occurrence, the daughter of Muhammad Malik was slapped and was subjected to maltreatment by the accused is admitted to have taken place, then Muhammad Malik, son of Sultan, must be a party to the conspiracy for launching an aggression upon the complainant party because he was indeed the most aggrieved party in the case. His absence, from his house al the time of occurrence, runs counter to the prosecution version regarding the motive. The learned trial Court has failed to consider this important aspect of the case. We agree with the contention of the learned counsel for the appellants that there was only one occurrence which happened due to the slapping incident of the daughter of Muhammad Malik, son of Sultan. The occurrence happened all of a sudden due to aforesaid incident, and in that view of the matter, each accused will be liable for his individual act. Muhammad Abbas appellant gave only one blow to the deceased A in the aforesaid circumstances. He did not take any undue advantage of the situation and the offence committed by him falls under section 304, Part I, P.P.C.

11. Thus, the prosecution has wholly failed to prove a case of intentional and premeditated murder. We set aside the conviction of Muhammad Abbas appellant under section 302/34, P.P.C. and instead convict him under section 304 Part I, P.P.C. There is no reason to disbelieve the statements of Subey Khan and Muhammad Ashraf P.Ws. who are the injured eye‑witnesses. Because of the injuries on their persons, it is proved beyond any shadow of doubt that these witnesses were present at the spot and they saw the occurrence with their own eyes and during the occurrence, they received injuries on their persons which injuries were caused by the appellants Hameed Ahmad and Muhammad Shafi.

12. The upshot

of the above discussion is that while converting the sentence of the appellant Muhammad Abbas from section 302, P . P . C . to section 304, Part I , P . P . C . , we sentence him to ten years' rigorous imprisonment. He is also sentenced to a fine of Rs.10,000 and in default he shall suffer further one year's rigorous imprisonment. His conviction and sentence under section 323/34, P.P.C. on two counts are set aside. The sentence of death imposed upon Muhammad Abbas appellants is not confirmed.

13. The remaining appellants, namely Hameed Ahmad, Muhammad Shafi and Ghulam Haider, are to be dealt with separately. So far as the case of Hameed Ahmad and Muhammad Shafi accused is concerned, it is distinguishable from that of Muhammad Abbas accused, inasmuch as they caused simple injuries on the person of the deceased Muhammad Abbas with their blunt weapons. Subey Khan P.W. has stated that Hameed Ahmad and Muhammad Shafi accused while armed with Dangs, caused injuries to deceased Muhammad Abbas. Muhammad Ashraf and Barkat Ali P.Ws. have supported the statement of Subey Khan P.W. in all material terms in giving the account that both these accused caused stick injuries on the person of Muhammad Abbas deceased, but the said injuries are simple in nature and are on non‑vital part of the deceased's body.

In view of the nature of injuries caused by Hameed Ahmad and Muhammad Shafi accused to the deceased, we think that their case is covered by the provisions of section 323, P.P.C. There is no evidence whatsoever produced by the prosecution to show that these appellants had the intention to murder the deceased as ii consequence of the execution of their common intention. We are persuaded to hold that the appellants have not correctly been convicted and sentenced as warranted by the evidence on the record. Accordingly, their conviction and sentence under section 302/34, P.P.C. are also set aside and they are convicted under section 323, P.P.C. and sentenced to undergo one year's rigorous imprisonment and a fine of Rs.1,000 each or in default thereof to further undergo two months' rigorous imprisonment. Their conviction and sentence for causing injuries to Subey .Khan (P.W.6) and Muhammad Ashraf (P.W.7) are maintained. All their sentences shall run concurrently. They will be given benefit of section 382‑B, Cr.P.C.

The case of Ghulam Haider appellant altogether stands on a different footing and is not free from doubt. To begin with, his presence at the spot is not proved. He was empty handed like his son, acquitted co‑accused Muhammad Riaz. The allegation against him is that he caught hold of the deceased Muhammad Abbas by his neck and facilitated other accused to kill him. The learned trial Court has disbelieved the prosecution evidence against Muhammad Riaz (acquitted co‑accused) and as such, the same set of evidence almost under similar circumstances cannot be believed for the purpose of convicting Ghulam Haider appellant. The law commanded to have given him the same treatment as was meted out to his co‑accused Muhammad Riaz. The medical evidence does not support the ocular evidence on this point inasmuch as there are no marks of violence on the neck of the deceased Muhammad Abbas. There is no sufficient evidence on the record to justify the conviction find sentence of Ghulam Haider appellant. He is, under the circumstances, given the benefit of doubt and is accordingly acquitted and his conviction and sentence are set aside. His appeal is accepted. He :shall be released forthwith provided of course he is not needed in arty other criminal case.

K.B.A./M‑312/L Appeal accepted.

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