1999 PLP 506 (MLD)

NAZIM HUSSAIN SIDDIQUI, J.

This appeal is directed against the judgment dated 25-11-1996 of learned 1st Additional Sessions Judge Central, Karachi, whereby appellants Mushtaq Ali, Murad Ali, both sons of Imdad Ali, and Muhammad Arshad son of Muhammad Aslam were convicted under section 302, P.P.C. Appellant Mushtaq Ali was sentenced to death and to pay fine of Rs.50,000 or in default thereof to suffer R.I. for two years of the death sentence was not confirmed. Appellant Murad Ali was sentenced to suffer life imprisonment aid to pay fine of Rs.50,000 or in default thereof to suffer R.I. for two years. Appellant Muhammad Arshad was sentenced to suffer R.I. for ten years and to paty fine of Rs.50,000 or in default thereof to suffer R.I. for two years. Benefit of section 382-B, Cr.P.C was extended to him. Learned trial Judge, under section 374, Cr.P.C. has sent a Reference for confirmation of said death penalty. The incident took place on 18-2-1986 at about 21-15 p.m. in Block No.2 Liaquatabad. The statement of informant Mushtaq Ahmed son. of Abdul Rehman was recorded under section 302/34, P.P.C. and it was incorporated in 154, Cr.P.C. Book. The case of the prosecution, in brief, is that complainant Muhshtaq Ahmed is a resident of House No.2/850 Liaquatabad, Karachi, and is a tailor by profession. On 18-2-1986 at about 9-15 a.m. he was present in his house and heard commotion. He came out and saw that near the gate of Anwar Shoe Factory its workers namely, appellants Mushtaq Ali, Murad Ali and Arshad on one side and deceased Hamid Hussain and Muhammad Yousuf @ Bhyya on the other, were quarrelling. Appellant Murad was armed with a danda. He witnessed that Arshad caught hold Hamid Hussain, and Murad gave him (deceased) danda blows. It is alleged that deceased succeeded in snatching danda from Murad. Seeing this, appellant Mushtaq went running to factory and brought a "RAPI" (used for leather cutting) and caused injuries by it to the deceased. First blow landed at abdomen and second at elbow. Deceased fell down and his intestines came out. Deceased was taken in a taxi to Abbasi Shaheed Hospital, where he succumbed to his injuries. The incident was witnessed by complainant Mushtaq and P.Ws. Atta-ur-Rehman and Sarwar Khan. Main investigation of this case was conducted by Inspector Imdad Ali Rathana, who after some time of this incident, was killed. S.I. Sardar Muhammad Nusrat of C.I.A. in his deposition, confirmed that Exhs.B/1, 2, 3, 4, 5 and 6 were the documents which were prepared by said Investigating Officer, and that he was conversant with his signatures. On completion of investigation, the charge-sheet was submitted against the appellants before the concerned Court. Necessary charge was framed against the appellants under section 302/34, P.P.C. At trial, the prosecution examined Mushtaq Ahmed, Rashid Hussain, Muhammad Anwar, Atta-ur-Rehman, Asghar Ali, Shahid Hussain, Abdul Razak, Sarwar Khan Pathan, Dilawar Shah, Dr. Jalal Qadir Memon, Akram Gakhar, Faja Muhammad Iqbal Rajput, Faiz Ahmed Khan, Dr. Nasim Ismail Umrani and Muhammad Nusrat. The appellants in their statements recorded under section 342, Cr P. C. have denied that prosecution's allegations and claimed to be innocent. Appellants Mushtaq Ali and Muhammad Arshad have examined themselves on Oath. Although, the appellants had cited Muhammad Zahoor, Muhammad Barkat, Muhammad Aslam and Muhammad Amin as defence witnesses, but they were not examined. Dr. Jalil Qadir found the following injuries on the person of deceased Hamid Hussain: (1). An incised wound about 1-1/2" X 3/4" cavity deep above down ward, oblique in direction, the left side of umblious. Corresponding cutmark was seen on shirt. Some Parts of omentum were lying out side the wound. Blood was coming out from the wound. (2). An incised wound on right fore arm dorsally, about 3" X 1" muscle deep obliquely from elbow down wards. Corresponding cut mark on the Shirt was noted. (3). A stitched cut down incision on right leg about 1-1/2" stitched medially just above ankle was noted. (4). A contusion at right side nose about 3/4" x 1/4". (5). A contusion below left lower eye lid about 1/2" X 1/2". (6). A contusion, at right scapular region, about 2"X 1/2". (7). A contusion at 1/3rd",.of the left leg lower part about 1-1/2"{ X 1/2", outer side. (8). A lacerated wound skeen deep on the right leg anteriorly, at lower 1/3rd", about 1/2" X 1/2". He also found the following damages: (i) Brain and meninges were found pale due to lost of blood (ii) Abdominal cavity was found with blood. (iii) On exploration of injury No.1 skin sub-cutaneous tissues, abdominal muscles, peritoneum, greater omentum were found cut. (iv) Abdominal aorta, decending colon and ilium were found partially cut The Doctor opined that the injuries were anti-mortem and were caused by sharp edged weapon as well as by hard and blunt substance. According to him, the cause of death was cardio respiratory failure due to excessive heamorrhage. He had also examined Muhammad Yousuf and Murad Ali and found the following injuries on their persons: Injured Muhammad Yousuf: (1) An abrasion, on forehead about 1" X 1/2". (2) A contusion of the back over vertebral colmn lumber region obliquely in direction about 4" X 1/2". (3) Complaint of pain in both legs due to blunt trauma. Injured Murad Ali: (1) A lacerated wound stitched wound about 1-1/2" on frontal region at left side. (2) A lacerated stitched wound about 1-1/2" on the right middle finger palmer as pect oblique over middle and proximal phalyne. The injured was deomplaining of pain and restricted of the movement of the finger. (3) An abrasion on right ring finger middle phalynx about 1/4" X 1/4", palmar aspect. (4) A contuion about 3" x 1/2, on left fore-arm lower 1/3". On assessment of the evidence brought on record, learned trial Judge convicted and sentence the appellants as mentioned earlier. Mr. N.K. Jatoi learned counsel for the appellants has not challenged conviction of appellant Mushtaq Ali, but argued that sentence of death awarded to him is excessive. He contended that admittedly there was no motive behind this crime and all took place abruptly within a span of few seconds. Hi submitted that real dispute was between appellant Mushtaq Ali and Yousuf Elaborating it, he stated that the factory in question belonged to one Anwar an said Yousuf was his brother-in-law. He also submitted that said Anwar ha prohibited Yousuf from entering into the factory and that the appellants being servants of said Anwar had restrained Said Yousuf from stepping in the premises of said factory. He also submitted that the deceased unnecessarily intervened and picked up dispute with the appellants and that the fatal injuries were caused to the deceased by a 'Rapi" which is not a conventional weapon. The appellant had used it when he, had seen the deceased snatching danda from Murad Ali and giving the latter its blows. The evidence of complainant Mushtaq Ahmed and P.Ws. Atta-ur- Rehman and Sarwar, who are the eye-witnesses is basically to the effect that the incident took place under above circumstances. It being so, we agree with learned counsel for the appellants and are of the view that it would meet the ends of justice, if instead of death penalty, life imprisonment is awarded to appellant Mushtaq. Accordingly, we alter the death sentence of appellant Mushtaq into life imprisonment. The sentence of fine of Rs.50,000, however, is maintained. He will be entitled to the benefit of section, 382-B, Cr.P.C. with above modification in sentence, his appeal is dismissed. As regards appellant Muhammad Arshad, it is noted that he, admittedly, had not caused any injury to the deceased. Only role assigned to him is that he allegedly caught hold the deceased, while the scuffle was on. This p could be with intention to keep the parties aloof from launching attack upon each other. Admittedly, no words were exchanged between him and others appellants at the moment of attack, as such, there was no premeditation nor his action was preconcerted nor he inflicted any injury to the deceased. Section 34, P.P.C declares a rule of criminal liability and does not itself create a distinct offence. In order to determine the common intention regard E must be had not only to a particular act but all the acts that were done. To comprehensible understand the scope of section 34, P.P.C. the provisions of sections 33, 35, 36 and 38, P.P.C are to be kept in mind. Section 33 speaks about "act". Section 35 deals with an act, which is criminal only by reason of its being done with a criminal knowledge or intention. Section 36 speaks about effect caused partly by act and partly by omission. Section 37 relates to cooperation by doing one of several acts constituting an offence and section 38 mentions about persons concerned in criminal act may be guilty of different offences. Looking to the circumstances of this case, we are of the view that section 34, P. P. C. is not attracted to this case. Therefore, appellant Muhammad Arshad is entitled to acquittal. Accordingly, we allow his appeal and acquit him. He shall be released forthwith if not required in any other case. Appellant Murad Ali had caused danda injuries to the deceased. He had no knowledge that abruptly appellant Mushtaq would bring "rapi" and cause G fatal injuries to the deceased. In fact, he was totally unaware of the criminal act of appellant Mushtaq Ali. Therefore, as conceded by learned A.A.-G. it could not be said that appellant Murad Ali had shared common intention in commission of this crime. He was responsible for his individual act. Besides fatal injuries, the deceased had also sustained four contusions of different dimensions and lacerated wounds skin deep. These injuries were caused by appellant Murad to the deceased. At the time of incident sections 300 and 302, P.P.C were not amended, as such, old law would apply to this case. The case of appellant Murad Ali is covered by clause (4) of section 300, P.P.C. It is also covered by Exception 4 of said section. Therefore, it is punishable under the second part of section 304, P.P.C. Accordingly, we alter his conviction from 302, P.P.C to section 304, P.P.C (second Part) and sentence him to the period already under gone. The sentence of fine is set aside. He remained in custody since 19-.^.-1986 to 5-5-1988 and from 25-11-1996 again he is in custody. He shall be released forthwith if not required in any other case. With above modification in sentence, his appeal is dismissed. In consequence, the reference for confirmation of death is rejected N.H.Q/M.336/K Order accordingly.