1969 P Cr (PLP)

Injuries of a similar kind, although not fatal in any of these cases, were found on three persons from among the accused. Fazl‑e‑Malik had stab wounds on the right and left sides of the back, one of which had penetrated into the chest cavity. Saifur Rehman had a muscle deep stab wound on the body, a similar incised wound on the left arm and a bruise across his back. A third accused person Salar Khan who was acquitted, had three stab wounds, one of which appears to have penetrated into the chest cavity on the left side. In the shooting which followed the clash with knives, one person was killed namely a boy Sher Afzal, aged about 12 years, by the passage of a bullet through his chest. Two women were also injured namely Mst. Zarshi, sister of Shamshad and Naushad, who received a bullet on the right thigh, and Mst. Atta Jan, a more distance relation, who sustained injury from a bullet passing through her left knee joint. These three persons all belong to the same group in the Kandi as Shamshad and Naushad. No person on the side of the accused appears to have sustained any gun‑shot injury. The story for the prosecution comes from the mouths of three male witnesses, Shah Nazar, P. W. 10, Shah Maeen P. W. 11, and Tajul Maluk, P. W. 12, and four female witnesses namely, Mst. Zarshi, P. W. 13, Mst. Atta Jan, P. W. 14, Mst. Shama, P. W. 14 and Mst. Saida Jan, P. W.

15. There is in addition a statement of Naushad recorded in the hospital as a dying declaration. There are evident weaknesses and discrepancies in the prosecution case and evidence, which have received consideration at length in the judgment of the High Court. A major weakness is the failure of the prosecution to explain the obviously contemporaneous injuries sustained by three of the accused persons. Another is the attempt by the prosecution to prove that the four injuries sustained by Shamshad were the result of blows delivered at two places separat ed by a distance of no less than 112 karams (nearly 200 yards). The state of feeling between the parties was acute, and in these circumstances, if the attack were commenced, as the prosecution story describes it, by four persons upon a single man, the infliction of four injuries would have been the work of an instance, so that the degree of restraint necessary to inflict one or two at one place and three or two at another would be quite impossible to suppose. It is true that blood was found at each of the spots indicated by the prosecution as the point of commencement and the point of conclusion of the attack upon Shamshad, but that is not sufficient to provide material support for the prosecution story since three of the accused persons also received injuries which must have bled profusely. The explanation for these injuries furnished by the appellants is that Saifur Rehman and Fazl‑e‑Malik were attacked by Sham shad, Naushad and one Mir Afzal, with knives. They did not retaliate, but were rescued by Salar Khan accused and Mir Baz Khan accused aided by one Muhammad. Salar Khan however denied having struck any blow to Shamshad or Naushad, but said that while rescuing Fazl‑e‑Malik and Saifur Rehman he himself was injured. Mir Baz Khan did not directly support what had been said by the other accused persons. None of the accused persons accepted responsibility for the use of fire‑arms. Salar Khan was acquitted on appeal. Mir Baz Khan was acquitted at the trial. The male witnesses for the prosecution all supported in full detail the story of the prolonged attack on Shamshad which has been mentioned above, and added that when Shamshad was being finished off at the end of the journey, Naushad appeared and was immediately attacked by one of the accused persons only namely Fazl‑e‑Malik, who gave him a single blow, which, in the result, proved fatal. The wound caused was such as might ordinarily result in death. The female witnesses in Court declared that when they came out of their houses on being attracted by the noise in the street, they found Shamshad lying on the ground being attacked with daggers by the four accused persons, and they also saw Naus had coming to his brother's aid and being stabbed by Fazl‑e -Malik. To the police however, these ladies had all said that when they came out they found both Shamshad and Naushad lying wounded on the ground, and soon after, the shooting commenced. This was by Fazl‑e‑Malik, and Saifur Rehman who were standing upon a roof at a street corner and fired up the street in both directions. Naushad s dying declaration supported generally the statements of the female witnesses made in Court. In this state of the evidence, the learned Judges in the High Court found it necessary to depart somewhat from the letter of the evidence before them for determining the events on the basis of which they apportioned criminal liability. They thought that it was "perfectly safe to conclude that the three accused appellants and Shamshad met by chance in front of the latter's Hujra. On account of the security proceedings, the relations between the parties had become extremely strained, and they were boiling with rage against one another. They were all armed with daggers or knives. Something happened on the spur of the moment, which led to the quarrel and exchange of knife blows between them. Shamshad being along was only able to cause some minor injuries to the accused persons . . . . . . .The people, including the three male ocular witnesses, who were present on the spot, intervened and took Shamshad away in a wounded condition. They were taking him to his sisters house and were followed by the accused, when Shamshad fell down near the mosque of Kandi Ahmad Khel and died . . . . . When Shamshad was being taken to his sister's house, it was then that Naushad appeared on the scene . . . . . . . . . See ing him on the spot Fazal Malik without any reason whatsoever fell upon him, and caused to him the single injury, which even tually proved fatal . . . . . After Naushad was stabbed, it is clear from the evidence produced upon the record, that Fazal Malik and Saifur Rehman climbed up the roof of their house, arming themselves with fire‑arms. They then started firing indiscriminately, hitting Sher Afzal, Mst. Zarshi and Mst. Atta Jan." It is clear that the learned Judge were unable to regard the attack on Shamshad as having been unprovoked, and in view of the existence of injuries with knives on three of the accused per sons, they had good ground for their belief that there was an exchange of knife blows between Shamshad on the one side and the accused persons on the other. The learned Judges do not appear however to have given the necessary weight to the evidence appearing from the statements of all the seven eye‑witnesses as well as from the dying declaration of Naushad that Shamshad was assaulted with knives in front of the mosque of Kandi Kuz, and at the same place where Naushad was wounded. In the view which we are inclined to take, the circumstance that Shamshad's injuries were more likely to have been received at one place rather than, as the male prosecution witnesses have stated, at two place; nearly 200 yards apart, it is in our opinion necessary to allow, in favour of the accused, the benefit of the possibility that the entire clash with knives toots place in the street outside the mosque, and in this clash, Shamshad and Naushad were on one side and the accused persons on the other. The conclusion of the learned Judges that Shamshad was not attacked in front of the mosque but merely died there, and that this was followed of by the attack on Naushad by Fazal‑e‑Malik is inconsistent with the entire evidence, as well as with the natural probability. Upon the view which they took of the facts, the learned Judges chose to convict the two appellants, in relation to the attack on Shamshad, under section 324, P. P. C. only and with that conclusion we see no strong reason to disagree. If it be allowed, as we think it must be on the state of the evidence, that Naushad received his injuries in the same incident, it seems to us, accepting the evidence that Naushad's injury was the work of a single man namely Fazl‑e- Malik and that Naushad had no other injury on his person, that the conclusion must be that Fazl‑e‑Malik's action amounts to culpable homicide not amounting to murder in view of the proba bility of there having been provocation, which in all the circumstances may be assumed to have been of a grave and sudden character. (Such provocation may be given by the infliction of injuries as well as by other actions). For the injury to Naushad the learned Judges have main tained the conviction of Fazl‑e‑Malik under section 302, P. P. C. On the view we take, that offence falls rather under section 304, P. P. C. As regards the killing of Sher Afzal, the learned Judges held that it amounted to murder under section 302, P. P. C. but as they were not certain whose bullet had killed Sher Afzal, they reduced the sentences awarded by the trial Court to transportation for life. For the injuries to Mst. Zarshi and Mst. Atta Jan, convictions had been recorded under section 307, the sentence being 7 years' rigorous imprisonment and both conviction as well as sentence were maintained. The learned Judges accepted the appeal of Salar Khan, whom also the trial Court had convicted, and acquit ted, him on all counts :‑ The evidence regarding the of fire arms by Fazl‑e‑Malik and Saifur Rehman following the stabbing is perfectly consistent, and as has been seen above, no explanation for this accusation has been furnished by either of the appellants. The sentences awarded are on the basis that it is not certain whose shot killed Sher Afzal. Both the appellants have been held equally responsible for the injuries by bullets to Mst. Zarshi and Mst. Atta Jan. In the result, we maintain the convictions and sentences of both appellants under section 324, for the injuries to Shamshad, under section 302 for the death of Sher Afzal and under section 307 for the injuries to Mst. Zarshi and Mst. Atta Jan. We alter the conviction of Fazl‑e‑Malik for the death of Naushad from sec tion 302 to section 304, P. P. C., and impose a sentence of 7 years' rigorous imprisonment. We also direct that all the sentences awarded to the appellants shall run concurrently. Appeal partly accepted.