P L D 1982 Supreme Court 8 (PLP)

At the conclusion of the trial, Muhammad Asbraf was found guilty of offence under section 302, P. P. C. and he was sentenced to life ‑ imprison ment by Mr. Justice Zahaullah Lodhi, then a Judge of the High Court, who tried this' cage on the original side. Muhammad Ashraf has preferred this appeal before this Court. We have heard the arguments addressed before us by the learned counsel for the appellant and the learned Advocate‑General, who appeared for the State. So far as the time and date of the occurrence is concerned there is no dispute that the occurrence took place on 28‑6‑1976 at 5‑30 p.m. Besides Ishtiaq Ahmad and Muhammad Akbar, Muhammad Ismail (P. W. 1) also appeared as an eye‑witness, but he turned hostile while Basharat Ali (P. W. 4), who is the brother of the deceased also claimed to be eye‑witness, but was disbelieved by the trial Court, In the course of investigation, the Investigating Officer, P. W. Abdul Samad, Sub‑Inspector, recovered the blood‑stained knife Exh. P/3 from the house of the accused‑appellant Muhammad Ashraf on his pointation and took the same in possession vide memo. Exh. PJ C, on the back of which the sketch of the knife has also been drawn. However, the Chemical Examiner's report is not on the file which might prove that the knife was actually blood stained much less with human blood. The deceased in injured condition was taken to the Casualty Ward of Sandeman Civil Hospital of Quetta, where he was examined by Dr. Abdul Majid Kansi (P. W. 2), who found an incised wound on the right side of the chest (anterior) and another incised wound on the right side of the lumbar region and anteriorly. There was a surgical emphsema on the right side of the chest, on palpation and auscultation and crepitations were heard and felt. Later on the following day i.e. on 29th June, 1976. Dr. Gulzar Ahmad Shaikh (P. W. 3) operated upon the deceased, still alive, and he found the wounds mentioned in Exh. P./A on the person of the deceased. Exhibit P./A on the file is the medical certificate issued by the Resident/Medical Officer wherein the two wounds mentioned above were found on the person of the injured person, namely, Asghar Ali (now deceased), Dr. Gulzar Ahmad Shaikh further stated that at the time of operation he found that the wounds had been stitched in the Casualty Department, but looking to the nature of the wounds, it could be said that these could possibly cause death of the injured person. He further stated that the internal structures, which were injured could in ordinary course of nature cause death. He further stated that ordinarily the patient should have not lost consciousness on account of these injuries, at least in the early stages. He controverted the suggestion of the defence counsel by stating that it was not a case of un successful operation, but the shock undergone by the patient was so intense that his condition continued to deteriorate and finally resulted in his death. He is consistent in saying that it is not, necessary that in case of serious shock unconsciousness should result. This part of the statement of Dr. Gulzar Ahmad Shaikh is relevant with reference to the dying declaration made by the deceased himself. Effort of the defence was to prove that he was continuously unconscious and thus he could not make any statement. While on the other hand the prosecution insisted that the deceased was fully conscious in the beginning and he did make the dying declaration. In the medical certificate Exh. P./A, the cause of death of the deceased, is stated to be excessive bleeding ; and shock to death due to incised wounds of the chest and abdomen. Post‑mortem examination of the deceased was not performed. Basharat Ali (P. W. 4) has stated that at the time of occurrence he was coming back to his house and when he reached near the scene of occurrence he saw that many people had assembled near Tansen Hotel. He found his brother Asghar Ali deceased fighting with Muhammad Ashraf. He stated that Muhammad Ashraf stabbed the deceased on his chest and the abdomen. In any case, after the deceased was injured, it ‑was he who took him to the' hospital in a rickshaw. He was cross‑examined at length. To a Court question he stated that he did not see as to how the fight bad started, but added that when he reached there, the fight was going on. He is a chance witness. Naqab Shah (P. W. 6) is a recovery witness. In his presence the knife Exh. P./3 was recovered by the Sub‑Inspector from the northern side of the house of the accused on his pointation. He also witnessed the recovery Memo. Exh. P./C. Sardar Manzoor Hussain (P. W: 6) is a formal witness and as indicated earlier Muhammad Ismail, who was produced as eye‑witness turned hostile. He stated that he had seen the deceased lying in front of a bicycle shop in Sarafa Bazar, Quetta (after the occurrence), and many people had gathered on the vardat._ He then took the deceased to Civil Hospital in a rickshaw. Ishtiaq Ahmed (P. W. 7) is main rather the pivotal witness in this case, because it was on his disclosure before the accused that he had been beaten by the deceased when the accused approach ed the deceased and the fight ensued. He has stated that ‑on 28‑6‑1976, at Asar time he was going to offer prayers and when he reached near Kabir Musafirkhana, he saw deceased Asghar Ali taking tea on Thara. He told the deceased by way of jest that he may offer tea to him, but the deceased took it ill and besides abusing him slapped him twice. He then started weeping. On this accused Ashraf alias Ashu reached there and inquired about the matter. He told him about the incident. Ashu approached and asked him as to why he had slapped him. It would be appreciated that there was gap between the first incident and the second incident according to Ishtiaq Ahmad. He further says that upon this an alter cation took place between the accused and the deceased and both started' fight ing and many people gathered there and tried to separate them. But before being separated accused Ashraf took out a knife from his pocket and stabbed him twice, once in the chest and on second occasion in the abdomen. Deceased Asghar Ali fell down unconscious and accused Ashraf ran away from there. After about 5 or 6 minutes Asghar Ali's brother Basharat (P. W. 4) reached there and he took the deceased, then alive, to the Hospital in a rickshaw. Muhammad Akbar tP. W. 8) stated that Ishtiaq Ahmad was working in his hotel as servant and on 28‑6‑1976, he permitted him to go to offer 'Asar' prayers at about 5‑00 p.m. Thereafter he heard noise and people were running towards Khalsa Street. He came out of the hotel and reached the scene of occurrence. He saw Muhammad Ashraf accused fight ing with Asghar Ali deceased and people were trying to separate them. While the people were still busy to separate them accused Muhammad Ashraf caused two injuries on the person of the deceased with a knife. One injury was caused on the chest and the other injury on the abdomen. The deceased fell down unconscious and accused Muhammad Ashraf ran away from there. He has not mentioned the involvement of Muhammad lqbal in this incident. In cross‑examination he stated that it was incorrect to suggest that he did not see the incident himself. He further stated that the same day soon after the incident he was taken to the police station by the Police and at about 9‑30 p.m. he was allowed to go home but was asked to come the next day. He did not see lshtiaq at that time at the police station. ‑ Accord ing to him, his statement was recorded by the Police on the following day. He further stated that he did not see any knife in the hand of the deceased at the time when the fight was going on between the two. He accepted the suggestion of the defence and stated that it was correct that accused Muhammad Ashraf ran away immediately after causing knife injuries. But denied the suggestion that people were trying to separate the two after the knife injuries had been caused to the deceased. Ishtiaq Ahmad (P. W. 7) had in cross‑examination stated that the Police had recorded his statement on 2‑7‑1976, and then he said that he was taken by the Police 'to the police station on the next day‑ of the incident. S. I. Abdul Samad (P. W. 9), when asked to state as to when he recorded the statements of P. Ws. Basharat Ali, Muhammad Akhtar, lshtiiq alias Tedy and Muhammad Ismail under section 161, Cr. P. C., he said that it was on the same day, On the 2nd of July, 1976, the statement of Ishtiaq was got recorded under section 164, Cr. P. C. from a Magistrate of a First Class. Some confusion was thus created as to when the statement of lshtiaq Ahmad was actually recorded by the Police after the occurrence. The Sub -Inspector, as indicated above, had stated that he recorded the statement of Ishtiaq Ahmad on the same day, but Ishtiaq Ahmad had stated that he, was taken to the police station by Police on the following day meaning thereby that on the day following the day of occurrence. The site plan, as the record shows, was prepared on 28‑6‑1976, and it was on the same day. According to P. W. Abdul Samad, S. I., statement of Ishtiaq Ahmad alias Tedy and others were recorded under section 161, Cr. P. C. It does not go with the statement of Ishtiaq Ahmad, who was adamant that his statement was recorded by the Police on 2‑7‑1976, but he also stated that he was taken by the Police to the police station on the next day of the inci dent, which means that when he was taken to the police station his state ment must have been recorded and then it could not be earlier than 29th of June, 1976. This discrepancy in the statement of Ishtiaq Ahmad and P. W. Abdul Samad, S. I. is material because a question would arise as to bow the fight started and how it progressed till ended in the injuries caused to the deceased with a knife. The accused in his statement recorded in Court under section 342, Cr. P. C. denied the charge but admitted that he had been informed by P. W. lshtiaq Ahmad that he had been beaten by the deceased whereupon alt6rca tion took place between him and the deceased but added that it was Asghar Ali, deceased who attacked him with a knife and not that he had attacked the deceased with a knife. He denied taking out the . knife Exh. P/3 from his pocket or stabbing the deceased twice, first on the chest and then in the abdomen. He also denied having run away after the incident but admitted that on 28‑6‑1976, in the evening he was arrested by the Police, He denied producing the knife in question or pointing it out before the Police. Then in answer to the last but one question, he stated‑that he was submitting his written statement. The written statement of accused Muhammad Ashraf is on the file and is also dated 4‑10‑1978, wherein be has stated that:‑ "On 28‑6‑1976, at the Asar time I was coming out of Tansen Hotel. after taking tea, when I noticed that Asghar Ali deceased a "Badmash" of the brothel area was beating Ishtiaq Ahmad and the latter started weeping. Ishtiaq Ahmad complained to me and told me that he had asked the deceased Asghar Ali to offer him tea whereupon Asghar Ali deceased started beating him. I inquired from the deceased Asghar Ali as to why did be beat Ishtiaq where upon he whipped out a knife and attacked upon me, started grap pling and I tried my best to unarm the deceased. but accidentally during this scuffle the knife in the hand of the deceased struck him in his abdomen with the result that he got injured and fell down un conscious. The knife in the hand of the deceased also fell down on the road, whereupon I went away. On the day of my arrest, Police had searched my house and had also taken my personal search but nothing was recovered. The knife Exh. P/3 neither belongs to me nor was recovered at my instance from my house. I am innocent and have committed no offence. The witnesses P. Ws. Basharat Akbar and lshtiaq are false and tutored witnesses." From the written statement of the accused and the statement of P. W. Ishtiaq ,q Ahmad it becomes clear that the deceased had beaten Ishtiaq Ahmad on the day and time of occurrence and the latter had started weeping and that it was Ishtiaq Ahmad, who informed the accused about what had happen between him and the deceased. It is also proved on record that the accused had inquired from the deceased Asghar Ali as to why he beat Ishtiaq Ahmad. Now according to Ishtiaq Ahmad, on this, the deceased and the accuse altercated with each other and then grappled. Although the accused say that the deceased whipped out a knife and attacked him. In any case, according to the accused they started grappling, and the accused tried to disarm the decreased but accidentally ,during the scuffle the knife in the band of the deceased struck the deceased in his abdomen with the result that he got injured and fell down unconscious. The Doctor had found two injuries on the person of the deceased : one was on his abdomen and the other was on his chest, both caused with some sharp‑edged weapon. The accused does not say that two injuries were caused to the deceased and according to him as a result of the first and the only injury to his abdomen, the deceased fell down unconscious. Who caused the second injury to the deceased bas not been clarified by the accused, but Ishtiaq Ahmad P: W. says that this injury was also caused to the deceased by accused Muhammad Ashraf. In view of the evidence recorded in this case there could be no doubt in one's mind to arrive at the conclusion that the fight had taken place in the manner described by Ishtiaq Ahmad P: W. .In any case, it is ctear that when the deceased beat Ishtiaq Ahmad it was thereafter that he complained to the accused about the conduct of the deceased. On record we have nothing to indicate, if the accused had any connection with the deceased or that be had any previous connection with P. W. Ishtiaq Abmad; but the F.

1. R. Exh. P. A. would show that according to the deceased who lodged the report, Ishtiaq Ahmad was a boy aged 17/18 years at that time and he was also known as Tedy. What connection the accused had with him and why the accused thought fit to ask the deceased as to why he had beaten that young boy, it has not been made clear, but the fact that the accused did come to the deceased and asked him as to why he had beaten Ishtiaq Ahniad is proved on record. In any case, the grapple between the accused and the deceased started and according to lshtiaq Ahmad there upon many people collected and they tried to separate the two. Here an occasion was afforded to the two to separate, but they did not separate and Continued fighting till they went up to Shahrah‑i‑Jamaluddin Afghani, where the accused took out the knife from his pocket and stabbed the deceas ed twice, one after the other, as a result whereof the deceased fell down and the accused then made good his escape. In his defence, the accused produced Taj Muhammad (D. W. 1), who admitted that. the occurrence took place on the 28rh day of June, t 1976 at about 5‑30 p. . and this lends full support to the prosecution version. lie also saw the accused and the deceased grappling with each other but adds that the deceased had a knife in his hand and then he saw a knife lying on the ground and both the accused and the deceased falling down on the ground. Both of them remained there for some time whereafter Asghar Ali was taken to the hospital in a Rickshaw. But be did not notice as to where accused Muhammad Ashraf went. He further admitted in support of the version of P. W. Ishtiaq Ahmad and P. W. Muhammad Akbar that there Were many people present on the spot. Taj Muhammad, however, stated in his cross‑examination that he knew the accused for about 2 or 3 years and added that he never gave any statement to the Police in this respect nor he had been told by any body from the side of the accused to go to the police station and state these facts. He further stated that about a week .back the father and brother of Muhammad Ashraf accused approached him and requested him to appear as a witness on behalf of the accused. In this way he makes his statement and we agree with the learned trial Judge that he is not believable. While addressing arguments, the learned counsel for the appellant submit ted that the statement of Ishtiaq. Ahmed P. W. was not recorded on 28‑6‑1977, and according to him his statement was recorded by the Police on 2‑7‑1976. It means that he gave the statement under pressure of the Police, and, therefore, he did not give the correct statement. But what cannot be lost sight of, are the facts that the fight at the time and date and the presence of Ishtiaq Ahmed at the relevant time are not only proved on the record, but have been admitted. Ishtiaq Ahmad was present on the spot and it was on account of his suffering the beating that the fight ensured between the accused and the deceased. The learned counsel for the appellant has tried to show that the accused had acted in self‑defence and the deceased had a knife in his hand, but we find nothing in the statement of Ishtiaq Ahmad or Muhammad Akbar in that regard. Both these witnesses are consistent that the knife was in the hand of Muhammad Ashraf and in the course of fighting he had taken it out of his pocket whereafter he stabbed the deceased once in the aJtiumen and the second time on his chest. Neither of the two eye‑witnesses had any con nection with the deceased 'or the accused, good or bad. Apparently Ishtiaq e Ahmad should have rather felt inclined to favour the accused because it was on his account that the accused picked up fight with the deceased. Even the learned counsel for the appellant had no doubt in mind about the statement of Ishtiaq Ahmad. It is obvious on record that initiative was taken by the accused. None of the two eye‑witnesses admitted the suggestion that the deceased was armed with a knife or that he bad tried to injure accused Muhammad Ashraf with a knife. The defence version that the deceased had a knife in his hand and during the course of grappling the deceased was hit by his own hand or that the deceased had taken out a knife and he tried to stab Muhammad Ashraf accused or that Muhammad Ashraf accused was obliged to injure the deceased with a view to .save his own life stand disproved. The argument that accused Muhammad Ashraf had the right to defend himself and in doing so he could stab the deceased with a knife would not appear to be worthy C of any credence because there is no consistency in the defence version. As indicated above Ishtiaq Ahmad, P. W., at least, is the natural witness and his statement does not suffer from any apparent defect and he has candidly charged Muhammad Ashraf for taking out the knife and injuring the deceased and that too after the grappling continued for sufficient time and the people had tried to intervene and separate the accused and the deceased from further fighting. The post‑mortem examination of the deceased had not been performed but we have the statement of two Doctors : one of whom attended to the wounds of the deceased in the Casualty Ward soon after the occurrence and the other operated upon the deceased on the following day and both have categorically stated that the injuries caused to the deceased were on the vital parts of his body and were sufficient in the ordinary course of " nature to cause death. Not only that, a medical certificate was also issued) in support of the above version of the Doctors. Undoubtedly post‑mortem examination provides more details but it could not be said that the statements of the two Doctors are not worthy of any credence and they have clearly sated that the injuries caused to the deceased were with sharp‑edged weapon, which ultimately caused his death. About the recovery of the case knife it is stated that on the 6th of July, 1976, accused Muhammad Ashraf while in custody was ‑taken to his house where on his pointation the blood‑stained knife was recovered. N fact, it appears that the accused remained in the custody of the Police for about a Week and it was thereafter. that .he was taken to 'his house. Moreover, that knife was not sent to the Chemical Examiner or, in any case, we do not find any report of the Chemical Examiner to justify the conclusion that it was blood‑stained much less with human blood. The. learned counsel for the accused submitted that the knife Exh. P/3 is a pen‑knife and that it could not be used for killing a‑ man. We are not agreeable with respect to the recovery of this weapon and even if any recovery had been made as stated by the Sub‑Inspector and the wit nesses of the recovery, it could not be stated with any reason that for the injuries caused to the deceased a bigger weapon was required. The learned counsel for. the appellant while concluding his arguments submitted that it was at the most a case under section 326, P. P. C. and that there was no evidence on record to show that accused Muhammad Ashraf had‑intended to kill the deceased or he had pre‑planned the same. The learned trial Judge has admitted that it was not a premeditated or a pre -planned crime but in his opinion accused‑appellant Muhammad Asbraf had the requisite knowledge and had reason to believe that the injuries caused by him on the vital parts of the body of the deceased could result/his death. We fully sha the view expressed by the learned trial Judge and we are of the firm view that the injuries caused to the deceased constituted ,sufficient ground to believe that the accused knew that the injuries which he was causing to the deceased could result in his death. The learned trial Judge has given the accused the benefit of a sudden and free fight and the grappling, which preceded the commission of the crime and he has, therefore, awarded the lesser punishment provided by law as in his opinion it would meet the ends of justice. From the facts, which have been discussed above we are of the view that it is not a case in which the right of self‑defence could be pleaded from the side of the accused particularly when the fight was initiated by the accused as otherwise he had no reason to interfere in a matter, which did not relate to him. Consequently when the grappling started after the use of hot words by both the parties, then the people inter‑vened and they did try to separate the accused and the deceased. In that view of the matter the accused' should have been sure that as a result of the intervention of the other people, the dispute which has started on a very petty matter, should have ended, but it did not so happen. The gap between the two incidents is well‑established on record and the accused taking out the knife from his pocket and then injuring the deceased with the same and causing blows to him on very vital parts of his body would not justify any conclusion that the accused was acting in the exercise of the right of self -defence to any extent. We are, therefore, of the view that the offence of the accused would fall under section 302, P. P. C, and for that offence he has already been very adequately punished. We would, therefore, see no reason to interfere. This appeal is, accordingly, dismissed. MUHAMMAD AFLAL ZULLAH, J.‑I am in respectful agreement with my learned brother that Muhammad Ashsaf, appellant is not entitled to the benefit of exercise of right of private defence. I also agree, as held in the proposed judgment that "Ishtiaq Ahmad, P. W., at least, is the natural wit ness and his statement does not suffer from any apparent defect and he has candidly charged accused Muhammad Ashraf for taking out the knife and injuring the deceased arid that too after the grappling continued . for sufficient time and the people had tried to intervene and separate the accused and the deceased from further fighting." I have also no reason to differ with the observation by my learned brother that "we fully share the view expressed by the learned trial Judge and we are of the firm view that the injuries caused to the deceased constituted sufficient ground to believe that the accused knew that the injuries which he was causing to the deceased could result in his death. The learned trial Judge has given the accused the benefit of a sudden and free fight and the grappling which preceded the commis sion of the crime. and he has; therefore, awarded the lesser punishment pro vided by law as in his opinion it would meet the ends of justice." It may however, be complained that the expression `free fight' in my view would mean here only a 'mutual' fight' between the deceased and the accused and not the fight which in precedent cases is technically described as free fight implying a despite of and preparation by. both sides to have a trial of strength as if it was a pitched battle. I agree with the conclusion on facts by my learned brother that "consequently when the grappling started after the use of hot words by both the parties. then the people intervened and they, did try to separate the accused and the deceased." But with regret I am unable to share the view that on account of the aforementioned circum stances, the accused should have been sure that as a result of the interven tion of other people, the dispute which has started on a very petty matter, should ‑have ended, but it did not so happen." Implying thereby that in these circumstances if the appellant took out the knife from his pocket and injured the deceased on vital parts of the body, this would, not only deprive him of right of private defence (because there was a gap between the first incident of slapping of lshtiaq Ahmad, P. W. by the deceased and the second incident of the quarrel and fight between the accused and the deceas ed), but Would' also deprive him of Exception IV to section 300, P. P. C. which relates to a sudden fight. It was not an illegal act on the part of the appellant and nor in the. pre vailing social conditions it was improper for him as a member of the public to enquire from the deceased as to why Ishtiaq Ahmad, P. W., was slapped by him. Moreover if as has been found in the proposed judgment, it was otherwise a case of sudden fight 'and thus it could fall under Exception IV to section 300, P. P. C., then as explained herein: "It is immaterial in such cases which party . offers the provocation or commits the first assault." The fact that the deceased and the accused grappled with each other‑ in the course of the sudden fight upon a sudden quarrel, for a considerable time and the bystanders despite their efforts had not succeeded in separating them, cannot be used to deprive the appellant of the benefit of Exception 1V. This rather shows a mental condition on his part that before using the knife, he might have reasonably realised that G unless he acts in the manner he did, the fight would not end; because the bystanders had failed to stop the fight' by their intervention. It was admitted a fight without premeditation and the other conditions with regard to it being sudden in the heat of passion and upon a sudden quarrel also stood satisfied. The circumstance that the appellant need a knife in the sudden fight and inflicted two injuries, in the background of the circumstance regarding failure of the bystanders to separate the parties, would not make it a case of undue advantage or a 'cruel or unusual manner,' According to the prosecution, the appellant had used the knife which us subsequently recovered from him and it had a blade of 3j" only. It can easily be described as a pen‑knife. Its use by the appellant by itself in the circumstances of the case cannot be treated as cruel or unusual. In a similar case where the blade of the knife was 4J" and the seat of injury being chest, the damage to the heart and lung had proved fatal, this Court in Masoom Beg v. Muhammad Munir and another 1971SCMR476 held that it was in the nature of a pen‑knife and observed that the accused in that case had not used the knife "as soon as he saw the deceased . . . . . In fact, he did not use the knife until there was an exchange of abuses followed by grappling " The' view in the cited case that it was covered by Exception 1V to section

300. P. P. C. and the offence committed was 304, Part I and not 302. t P. P. C., can be taken in this case also, although as is usual in criminal cases the facts and circumstances of both these cases are not exactly similar. I am, therefore, with profound respect unable to share the view that the appellant was guilty under section 302, P. P. C. Consequently I would partly accept the appeal, set aside the conviction and sentence under sec tion 302, P. P. C. and instead convict the appellant under section 304, Part 1, P. P. C. There was no previous enmity nor the appellant had any personal axe to grind when he made inquiries about the previous incident. He in all probability acted in good faith, therefore, he does not deserve the extreme penalty provided under section 304, Part 1, P. P. C.. I would award sen tence of five years rigorous imprisonment and a fine of Rs. 5,000 with a further award of compulsory compensation under section 544‑A in the sum of Rs. 5,000 and in default of payment of fine further rigorous impri sonment for two years, while in default of payment of compensation simple imprisonment for six months. The entire amount of fine shall also he paid as compensation alongwith the other sum of compensation to the heirs of the deceased. ORDER OF THE COURT According to the opinion of the majority this appeal is dismissed and the convictions and sentences recorded by the High Court are upheld. s. A. H. Appeal dismissed.