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Criminal Appeal No. 782 of .1976 and Murder Reference No. 206 of 1976, decided on 18th December, 1977.

‑‑‑S. 302‑‑Recovery evidence, value of‑‑Recoveries made after a week of the arrest of accused‑‑ Lambardars of area present at time of recovery but not cited as witnesses‑‑Effect‑‑Where independent witnesses were excluded deliberately from factum of recovery, presumption, held, would be that such recoveries were not genuine‑‑Delay in recoveries would also render same as doubtful ‑‑[Recovery].

‑‑‑S. 302‑‑Ocular evidence, value of‑‑Where direct evidence alone plays decisive role in the decision of guilt or otherwise of accused, same, held, would require meticulous scrutiny.

‑‑‑S. 302‑‑Eye‑witnesses‑‑Relationship with accused would not render evidence of eye‑witnesses liable to rejection‑‑Where eye‑witnesses had sustained injuries which guaranteed their presence at the time and place of occurrence, their evidence, held, could not be discredited merely because of their relationship with deceased.‑‑[Witness].

‑‑‑S. 154‑‑First information report, recording of‑‑Stomach of deceased found to be empty and injured persons reaching in hospital at 4‑00 'p.m. which was at a distance of five miles, held, would corroborate prosecution version that occurrence took place in the later afternoon‑‑Plea of defence that occurrence took place during early hours of day and report to police was delayed for consultation negatived in circumstances.

‑‑‑S. 302‑‑Omission to examine one eye‑witness‑‑Presumption‑‑Son of deceased who was an eye‑witness of occurrence not produced in evidence‑‑Omission to examine such witness, held, would not justify an inference against prosecution that he was withheld deliberately lest he should belie version of other witnesses‑‑Accused having not insisted on examination of omitted witness, prosecution was not expected to multiply unnecessarily evidence on their side.

‑‑‑S. 154‑‑First Information Report‑‑‑Recording of First Information Report outside police station disapproved by High Court.

‑‑Ss. 300, Exception 4, 302, & 304, Part 1‑‑Application of S. 300, Exception 4‑‑Requirements‑‑Exception 4 of S. 300, Penal Code, held, would apply where death was caused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without offender having taken undue advantage or acting in a cruel or unusual manner.

Hashmat v. Emperor A I R 1947 Lah. 377 rel.

‑‑‑Ss. 300, Exception 4, 302 & 304, Part I‑ ‑Words undue advantage' and cruel manner', connotation of‑‑Words undue advantage' and cruel manner' used in Exception 4 of S. 300, Penal Code, held, were not capable of any precise definition and no such definition has ever been attempted ‑Question of unfair advantage was purely a question of fact‑‑ Where there was no previous enmity between the parties and accused had immediately withdrawn when deceased fell down after having been caused a single injury as a result of which he had died immediately. sudden quarrel could not be deemed to have been artificially, raised by accused as an excuse for making a premeditated attack‑‑There being a reasonable possibility in favour of plea raised by defence, accused could not be denied benefit of doubt and act of causing death of deceased and his act would be punishable as culpable homicide not amounting to murder under S. 304, Part I, Penal Code.‑‑[Words and phrases].

Raja Muhammad Anwar for Appellant.

Nemat Khan for the State.

Dates of hearing: 17th arid 18th December, 1977.

‑‑Raj Ali (40/45), Lala (32/35) Ghulam (27/28), Sikandar (26) and Inayat (25), all real brothers, residents of Dhoke Kaluwali within the area of Police Station Mandi Bahaud Din, District Gujrat were tried before learned Sessions Judge, for the offences under section 302/307/149, P.P.C. on the allegation that they had on 6th December, 1973 formed themselves into an unlawful assembly, committed rioting, murder of Mardan Shah deceased and attempted murder of Rasool Shah and Miran Shah a son and nephew respectively of the deceased in furtherance of common object of the unlawful assembly. The charges which the accused repudiated as false were eventually upheld by the learned Sessions Judge. The accused were pronounced guilty for acts of individual offences and punished variously as below:‑

(i) All the five accused in the case sentenced to rigorous imprisonment for one year each for the offence under section 148, P.P.C.

(ii) Raj Ali and Muhammad Inayat sentenced to rigorous imprisonment for six months each for the offence under section 323, P.P.C.

(iii) Lala and Sikandar sentenced to life imprisonment, the maximum penalty for the offence under section 307, P.P.C.

(iv) Ghulam accused sentenced to death and a fine of Rs.100 for the offence under section 302, P.P.C. for the murder of Mardan Shah deceased. In default, rigorous imprisonment for one month if sentence of death is not confirmed.

The sentences awarded to Lala, Sikandar, Raj Ali and Muhammad Inayat on two separate counts as detailed above were ordered to run concurrently. The accused have filed a joint appeal to challenge their convictions and sentences. Learned Sessions Judge has referred the sentence of death passed against Ghulam accused for confirmation under section 374, Criminal Procedure Code. The appeal and the reference are disposed of together by this single order.

3. The facts bearing on the charge against the accused as transpiring from evidence examined at the trial are fairly short and simple as well. Both sides belong to the same village Kaluwali. The complainant side are residing in a separate Hamlet known as Nawan Loke which is at a distance of one and half Killa from the residences of the accused. On 6th of December, 1973, the fateful day, goats numbering three in all owned by Ghulam accused stayed into the field of Mardan Shah since deceased had damaged the crop. The deceased, alongwith Rasool Shah, and Miran Shah was present in their Dera, which is at a distance of four Killas from the place of occurrence. They rounded the goats and proceeded to the cattle pond at Mong Rasool said to be 10/12 miles distant from the place of occurrence. The deceased and the above witnesses had driven the cattle to a short distance when Raj Ali accused with a Danda in his hand reached there and demanded release of the cattle. The deceased did not agree saying that his field was damaged by their cattle in the past also. Raj Ali shouted exhorting the remaining four accused to rush up with Burchhis. etc. The remaining accused responded to the call. Ghulam Sikandar, and Lala were armed with spears while Muhammad Inayat had a Sota with him Ghulam accused opened the attack and dealt an Injury to Mardan Shah deceased in the right flank felling him on the ground. Miran Shah (P.W.8) and Rasool Shah (P.W.10) stepped forward to intervene. They both were caused injuries by Lala and Sikandar. Miran Shah and Rasool Shah were also caused one injury each by Muhammad Inayat and Raj Ali respectively with Sotas. Mardan Shah died almost instantaneously. Miran Shah and Rasool Shah were rushed to Civil Hospital, Mandi Bahaud Din said to be at a distance of five miles from the place of occurrence. They both were examined by Dr. Rashid Ahmad Medical Officer at 4‑00 and 4‑15 p.m respectively (Exhs.P.A. and P.B.) and found to have following injuries on them:‑

Having learnt of the incident through some person whose identity is still shrouded in mystery, Raja Manzoor Ahmad S.H.O. Police Station Gujrat who was on patrol in the town rushed to the Hospital and inquired from the doctor (P.N., P.O.) if the abovesaid injured witnesses were fit to record their statements. The doctor replied in affirmative whereat statement (P.D.) of Miran Shah was taken down by the Sub‑Inspector on the basis of which formal First Information (P.D./ 1) was later registered at the police station. Thereafter, the Sub‑Inspector left for the site of occurrence. Dead body was despatched to mortuary through Mian Khan P.W. after necessary injury statement and inquest report (P.Q.‑P.R.) were drawn up. Blood‑stained earth was collected from the site by means of memo. Exh. P.F. Autopsy was held next day by Dr. Nazir Ahmad. The following external injury was noticed by the doctor.

Penetrating incised wound 1‑3/4" x 3/4" going into the liver over the right side of lower part of chest. On dissection liver was found ruptured through and through by the weapon from the lateral surface to ventral surface. Stomach was punctured one inch on the ventral aspect. Corresponding cut in the shirt and Bunian was present.

All the remaining organs of the body were healthy. The stomach was injured as noted above and was empty. The intestines contained gases and faecal matter. The bladder contained about 2 ounces of urine. The doctor opined that death had occurred due to result of haemorrhage and shock. The injury was sufficient to cause death in the ordinary course of nature (P.G.). Clothes (P.3 to P.6) of the deceased were produced before the Sub- Inspector by Mian Khan constable vide (P.H.) which he had brought from the doctor after post‑mortem examination. The accused made themselves scarce. Raj Ali, Lala, Sikandar and Muhammad Inayat were produced before the Sub‑Inspector by one Muhammad Siddique on 8th December, 1973. Lala accused who had injuries on him was also referred to Dr. Rashid Ahmad for examination. He was found to have the following injuries on him (P.C.):‑

The injuries were declared simple and caused with blunt weapon within a period of three days.

On 16th December, 1973 spears (Ex.P.7 and Ex. P.8) and a blade of the spear (P.9) were recovered at the instance of Ghulam Muhammad, Lala and Sikandar accused from the residential house, and duly made into sealed parcels vide P.J., P.K. and P.L. These weapons were on chemical/Serologist examination found to be stained with human blood (Exh. P.Y. and P.Z.).

Twelve witnesses in all were examined at the trial in support of the charge against the accused. The statement of the two doctors mentioned above which they had recorded during the committal enquiry before the Magistrate were transferred at the trial under section 509, Criminal Procedure Code. Mian Khan Constable (No. 187) the first witness on the side of the prosecution says that he had escorted dead body of Mardan Shah deceased to the hospital. Next day, he produced clothes P.3 to P.6 of the deceased before the Sub‑Inspector which he had brought from the doctor after post‑mortem examination. The next witness Fateh Muhammad (P.W.2) had entered formal First Information Report Ex. P.D/1 on the basis of statement (P.D.) of Miran Shah received from Raja Manzoor Sub‑Inspector. Fateh Muhammad has also deposed that he had kept in his custody sealed parcels containing spears, etc. and blood‑stained earth entrusted to him by the Sub‑Inspector. The parcels were on 19th December, 1973 handed over to Imdad Hussain Constable for delivery in the office of Chemical Examiner. Imdad Hussain (P.W.3) confirms the version of Fateh Muhammad, Mian Khan Constable No. 791 (P.W.4) says that he was entrusted summons (P.W.4/3) for service of Shakir P.W. who had appeared as prosecution witness during the proceedings before the Magistrate which he had returned with the report (P.W.4/4) that the witness was not available, having already left for abroad. Akbar Shah (P.W.5) has testified to the recoveries of spears, etc. P.7, P.8 and P.9 at the instance of Ghulam, Lala and Sikandar accused respectively. Nazir Ahmad Patwari (P.W.6) has proved site plans (Ex. P.N. and P.N/1). Munir Ahmad (P.W.11) has confirmed the statement of Mian Khan (P.W.4) that Shakir was currently residing in Dubai. Muhammad Inayat, Miran Shah, Sher Muhammad and Rasool Shah P.Ws. 6 and 8 to 10 have deposed to the occurrence. Raja Manzoor Ahmad Sub‑Inspector (P.W.12) is the Investigating Officer.

The accused have in their statements under section 342, Cr.P.C. denied the entire allegations against them as well as the recoveries attributed to them. They pleaded false implication in the case on account of party factions in the village. Speaking differently, the accused plead substitution for the real assailants. Ghulam accused had also said that he was not present in the village on the day of occurrence. He was residing in district Multan for the last three years and was involved in this case maliciously. No evidence was led in defence.

From the above resume of evidence it will be shown that charge against the accused rests on the following species of evidence: (1) Ocular evidence. (2) Recoveries. (3) Motive, and (4) Medical evidence.

Learned Sessions Judge has disbelieved the evidence of recovery. Before proceeding further it may be pointed out that statement of Shakir a witness of recovery during committal inquiry was, on 19th of May, 1976, transferred at the trial under section 33 Evidence Act. However, on a subsequent date of hearing, viz. on 5th June, 1976, learned Public Prosecutor gave up Shakir P.W. as unnecessary. We share the view of learned Sessions Judge on the evidence of recovery as well as the reasons therefor. As indicated above, Muhammad Inayat, Lala, Sikandar, and Raj Ali were arrested on 8th of December, 1973 while Ghulam was arrested on 11th of December, 1973 and recoveries were allegedly effected on 16th December, 1973. This delay in the recoveries renders them doubtful. Akbar Shah (P.W.6) who has corroborated the statement of Raja Manzoor Ahmad (P.W.12) is closely related to the deceased and is not disinterested witness Akbar Shah has admitted that Nadir Khan and Allah Ditta Lambardar were also present at the time of recovery. Shakir P.W. whose statement before learned Magistrate was transferred at the trial had also said that Nadir and Feroze Khan Lumbardars were present at the time of recovery. These Lumbardars were not cited as witnesses and there is no explanation why they were left out. In case where independent witnesses are excluded deliberately, a presumption should be raised that recoveries were not genuine. These are some of the reasons to discard the recoveries which bear the appearance of usual padding to augment the remaining evidence in the case.

Direct evidence alone in the case which plays the decisive role or the major role in the decision of guilt or otherwise of the accused calls for a meticulous scrutiny. As it will be shown presently the merits of the charge against the accused do not detain us much longer, nor the ocular evidence embraces a detailed discussion. Four eye‑witnesses in the case namely, Muhammad Inayat, Sher Muhammad, Miran Shah and Rasool Shah (P. Ws. 6 and 8 to 10) have in their statements confirmed the allegations against the accused as set out in the foregoing lines that the deceased had alongwith Miran Shah and Rasool Shah rounded the goats of Ghulam Muhammad accused which were found damaging the field of the deceased. They wanted to drive the cattle to cattle pond and were stopped by Raj Ali at a short distance. Raj Ali desired the deceased to release the cattle which the latter declined. The remaining accused had in response to the call by Raj Ali rushed to the site with spears, etc. Ghulam accused struck the deceased with spear in his hand. Miran Shah and Rasool Shah were caused injuries by the remaining accused with their respective weapons. We agree unhesitatingly with learned counsel for the appellants that statements of Muhammad Inayat and Sher Muhammad P. Ws. (6 and 9) did not inspire much confidence. They both have said that they were proceeding to the house of Syed Manzoor Shah so as to have an amulet from him which was needed by Muhammad Inayat (P. W. 6) for an ailing buffalo. They happen ed to pass close to the Dera of Mardan Shah and saw the entire occurrence commencing with rounding up of cattle by Mardan Shah deceased from the field and ending with infliction of injuries on the deceased, Miran Shah and Rasool Shah by the accused. Both these witnesses are on their own showing chance witnesses as their presence at the time of occurrence was not natural in the common course of events and also not guaranteed by any tangible circumstance which could dispel the doubts arising in a reasonable mind against evidence of such witnesses. The contention in this behalf was wrongly turned down by the learned Sessions Judge. However, there is nothing whatever to discredit the version of the remaining two eye witnesses, viz. Miran Shah and Rasool Shah. They both had sustained serious injuries which guarantees their presence at the time of occurrence. We do not see any force in the argument that evidence of these two witnesses also could not be relied on as they were related to the deceased. A witness cannot be discredited merely because he was related to the deceased. The complainant side had no previous enmity with the accused. The witnesses had no reason to falsely implicate the accused or substitute them for the real assailants. Substitution of innocent person for the real culprit should be a rare phenomenon. Both the witnesses have withstood a gruelling cross‑examination. Their statements are also free from any material discrepancy worth mention muchless a serious notice. The further contention that the number of assailants had been exaggerated by the witnesses so as to rope in every male member of the family of the accused is equally without substance. The deceased and these two witnesses had suffered six injuries in all. It would not be unsafe in any way to presume that number of assailants was not less than 6 as was alleged by the prosecution. The accused did not cause more injuries to the comp lainant side as the deceased had been injured mortally. The accused who did not have any previous score to settle with the complainant side did not intend to cause them more harm. It was also argued that the occurrence had taken place much earlier. On post‑mortem examination, stomach of the deceased was found empty which shows that the deceased was killed before he had taken the normal meals at noon time. This contention cannot be evalued in favour of the defence for the reason that there is no indication in the evidence that the deceased used to have meals at noon. Villagers usually take regular meals in the morning and in the evening, shortly after sunset. We have no reason to say that the deceased did not follow this usual practice obtaining in rural areas. The witnesses were not asked during their cross‑examination if the deceased used to take meals at noon time. We are of the view that the fact that stomach of the deceased was found empty corroborates the prosecution version that the occurrence took place in the late afternoon. Miran Shah and Rasool Shah who had sustained serious injuries had reached the hospital at 4‑00 p.m. which is five miles away from the place of occurrence. They must have been rushed immediately to the hospital for timely medical aid. This fact also negatives the contention that the occurrence took place during early hours of the day and the report to the police was delayed for usual consultations. Hussain Shah none else a son of the deceased is named as an eye‑witness in the F.I.R. He was not examined at the time of trial and given up as unnecessary. We do not subscribe to the view which was canvassed feebly as we may say so that omission to examine Hussain Shah may justify an adverse presumption against prosecution that Hussain Shah was withheld deliberately lest he should belie the version of remaining witnesses. The accused had not insisted on his examination. Prosecution was not expected to multiply unnecessarily evidence on their side.

Lastly, it was argued that the First Information Report, the groundstone for the prosecution case, was a dubious document. The report was not recorded in the manner and in the circumstances in which it purports to have been done. The whole charge, therefore, becomes doubtful. There are clear indications in the statement of Akbar Shah (P.W. 5) to support the first part of the contention. The Sub‑Inspector says that he had not made the usual entry in the daily diary (Roznamcha) at police station that he had left for patrol duty. As indicated in the earlier part of this judgment, identifying the person who had informed the Sub -Inspector of the occurrence outside the police station whereat he had rushed to the hospital to contact the inured witnesses has not been disclosed. Nothing also he is required to show that the version of the Sub- Inspector that he had received information of the incident while on patrol duty is not true. Unfortunately, this highly objectionable practice of recording reports outside the police station which had evoked worst disapproval by the Courts continues unabated. Nevertheless, the second limb of the argument cannot be sustained, charge against the accused which is supported by convincing evidence cannot be thrown out for the reason‑ that the report was not recorded by the police in a forth‑right manner.

Evidence of Miran Shah and Rasool Shah also receives proper corroboration from the motive attributed to the accused and medical evidence in the case, if corroboration was at all needed for‑ reliance on their statements. The above analysis of evidence leads us to the conclusion that the allegations against the accused are established beyond all shadows of reasonable doubt.

This leave us with the question of nature of offence committed by the accused. On a careful consideration we feel inclined to lean in favour of the view that the case was covered by exception (iv) to section 300, P.P.C. This exception will apply if the death is caused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Learned State counsel argued that the ingredient of no unfair advantage or no act in a cruel or unusual manner was not satisfied in the case although a sudden quarrel and heat of passion lead engendered a sudden fight. It was also contended that at the highest, complainant side or some of them were armed with Sotas, etc. The injuries on the person of Lala were found to have been caused with blunt weapon. Three accused were armed with spears. The injury to the deceased was caused with full force resulting into instantaneous death of the deceased. The question whether an accused person did not take undue advantage or t acted in a cruel manner is a pure question of fact which is to be determined with reference to the circumstances of a given case. No general formula can be evolved which may be acceptable to all cases that may arise. The accused could not be denied the benefit of exception of the abovesaid section for the reason that they were armed with spears, etc., while the complainant side may have sticks. The judgment in Hashmat v. Emperor AIR 1947 Lah. 377 fortifies our view. Precisely, it was held in that case that 'I am of the opinion that the circumstances clearly indicate that there was a sudden fight between the parties in which although hatchets were used on the side of the accused neither party can be said to have enjoyed an undue advantage, since in all the stick blows which landed on the heads of the, accused might easily have caused fatal injuries and the fight cannot be said to have been at all one sided even judging by the result. In the circumstances I consider that appellants would properly have been convicted under section 3G1, Part, I, Penal Code."

The mere fact that the accused persons had done an act which had caused the death of another could not necessarily lead to the conclusion that the accused had taken undue advantage or acted in a cruel or unusual manner for in that case the exception would be meaningless. The words 11 undue advantage" and "cruel manner" used in the exception under discussion are not capable of any precise definition and no such definition has ever been attempted. The question of unfair advantage is a purely question of fact. Admittedly, there was no previous hostility between the parties. The accused had immediately withdrawn when Mardan Shah (deceased) fell down after having been caused a single injury as a result of which he had died immediately. There is no room to say that sudden quarrel was artificially raised by the accused as an excuse for making a predetermined attack. There is a reasonable possibility in favour of the plea raised by the defence. The accused cannot be denied the benefit of doubt that the act of causing death of Mardan Shah deceased is punishable as culpable homicide not amounting to murder under section 304(1), P.P.C.

In the result, conviction of Ghulam accused for the offence under section 302, P.P.C. is modified to section 304(1), P.P.C. Penalty of death imposed on him by the learned trial Judge is not confirmed. He is sentenced to rigorous imprisonment for five years and a fine of Rs.3,500, in default further rigorous imprisonment for 1‑1/2 years. Accordingly, conviction of Sikandar and Lala appellants is altered from one under section 307 to section 30:3, P.P.C. Their sentences are reduced to the imprisonment already undergone. They shall pay fine of Rs.1,000 each, in default, further rigorous imprisonment for one year. Conviction of Raj Ali and Inayat appellants under section 323, P.P.C. is maintained but their sentences are also reduced to the imprisonment already undergone. Conviction and sentences of the appellants for the offences under section 148,P.P.C. are set aside.

The amount of fine imposed on Ghulam appellant when recovered shall be paid to the heirs of Mardan Shah (deceased) by way of compensation. The amount of Rs.1,000 when recovered from Sikandar and Lala appellants each shall be paid as compensation to Miran Shah and Rasool Shah in equal shares.

A.A./R‑18/L Order accordingly.

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