1982 P Cr (PLP)

(1) An incised wound 1" x " x skin deep on the right side of chest " from mid line 2" below right arm-pit. (2) An incised wound 1 " x " x deep into chest cavity on left side of chest 2" below and outer to left nipple. (3) An incised wound " x " x deep into chest cavity on left side of chest 1 " from injury No. 2. (4) An incised wound 4 " x 1 " x muscle deep, " from mid line 5 " from nipple. Pleaurae were ruptured on left side at the place of injuries Nos. 2 and

3. The left lung was also ruptured at the level of injury No.

2. The heart was ruptured at the level of injury No 3 on right side. Stomach contained about two ounces of liquid diet. Urinary bladder was empty. All the other visceras of thorax and abdomen were normal. All the injuries were ante-mortem and caused with sharp-edged weapon. Injuries Nos. 1 and 4 were simple. Injuries Nos. 2 and 3 were dangerous and sufficient to cause death in the ordinary course of nature. In the opinion of the Medical Officer death occurred due to shock and heamorrhage and injury to vital organs, namely, heart and lungs, caused by injuries 2 and

3. The deceased died instantaneously after receiving injuries. Exhibit P. A. is the copy of the post-mortem examination report and Exh. P. A.-1 is the diagrammatic sketch indicating location of injuries.

9. Dr. M. Arif Saeed (P. W. 1) medically examined Tariq Aziz appel lant on the 29th July, 1976, at 5.00 p. m. and noticed the following injuries on his person:- (1) An incised wound 1-1/4" x 1/4'' x 1/6" on head, 3 above the right eye-brow antero-posterior in direction. (2) An incised wound 3/4" x 1/6" x 1/6" on medial side eye-brow from above down in direction. (3) Swelling 2" x 1" on outer side of right eye-brow. (4) Swelling 1" x 1" on outer side of left eye-brow. (5) An incised wound 1/2" x 1/6" x 1/8" on palmar side of first finger of right hand. (6) An incised wound 1" x 1/2" x 1/4" on the lateral side of left hand 1/2" below wrist: (7) An incised wound x x skin deep on back of left hand 1" below wrist joint. (8) An incised wound x x on left side in upper 1/3rd of left thigh with corresponding cut on shalwar. All the injuries were simple in nature. Injuries Nos. 3 and 4 were caused with blunt weapon and the others with sharp-edged weapon. They were of about six hours duration. Exhibit P. A. 4 is the copy of the medico-legal examination report. According to the Medical Officer the blunt weapon injuries 3 and 4 could have resulted by striking head and the incised wounds and the other injuries could have been self-suffered and caused by friendly hand.

10. Whereas Akbar Ali and Munshi flatly denied their participation in the commission of crime and contended that they had been falsely implicated due to enmity with the complainant party. Tariq Aziz appellant give his own version of the occurrence which is reflected from his following answer on question calling upon him to explain the injuries on his person :- "On the day of the incident at about 9 or 10 a. m., I was passing by the road when the deceased who was a man of bad character started cutting indecent jokes with me and also fingered my anus on which there was exchange of abuses. The deceased gave me two fist blows on my eye and also started inflicting injuries with knife on my person which I tried to ward off by hand as a result of which my hands were also injured. Further, the deceased gave knife blows on my hand and eyebrow. I at the spur of the moment, in order to save myself apprehending more harm and injuries picked up a small knife which was lying on the khokha nearby and caused injuries to the deceased while exercising my right of private defence". Tariq Aziz appellant admitted that the shirt, Exh. P. 5, and shalwar, Exh. P. 6, were blood-stained when removed off his person and stated that they were besmeared with his own blood resulting from his injuries. He disowned recovery of chum, Exh. P. 4, from him. The appellants did not choose to produce any evidence in defence.

11. The learned Sessions Judge placed reliance upon the ocular testimony of the complainant and two other eye-witnesses produced before him, namely, Ahmad Jan (P. W. 9) and Bashir Ahmad (P. W. 10), whom he considered to be independent and disinterested. He accepted the incident of altercation taking place at the shop of the complainant as a result of the deceased's forbidding the appellants to mix charas in cigarettes providing motive of the murder of the deceased. He believed the prosecution evidence touching the concerted attack launched by the appellants soon after the first incident when the appellants found an opportunity to catch hold of the deceased in the bazar when he, was carrying ice for delivering to another shopkeeper. Recovery of human blood-stained weapon of offence, namely the chhuri, Exh. P. 4, from the person of Tariq Aziz appellant, was taken by the learned trial Judge to be corroboration of ocular testimony. He disbelieved the version of the happening given by Tariq Aziz appellant. He was of the view that blunt weapon injuries on his person had been caused when the deceased, while resisting the attack, when be was held by Akbar Ali and Munshi appellants, struck his head against him and his incised wounds were self-suffered. Consequently he convicted and sentenced the appellants as indicated in the beginning of this judgment. As Tariq Aziz appellant had caused fatal injuries to the deceased, he was awarded capital punishment and the other two appellants, who had held the deceased and facilitated administering of the blows by their co-accused, were given the lesser penalty.

12. The learned counsel for Tariq Aziz appellant, whose arguments were adopted by the learned counsel for Akbar Ali and Munshi, appellants, contended that the investigation in this case was not honestly conducted. He drew attention to the fact that the Investigating Officer Allah Dad (P. W. I1), instead of going to the hospital to attend to the dead body of the deceased, which he normally ought to have done, went to the spot and thereafter absorbed himself in the pursuit of arrest of the accused. He submitted that the Investigating Officer wanted to arrest the accused as to know the nature of the injuries on his person in order to manipulate the First Information Report according to the injuries found on him. He maintained that the First Information Report had been recorded after the arrest of Tariq Aziz appellant. In support of his contention he pointed out that the inquest report, Exh. P. A./3, did not bear the number of case. Prima facie the First Information Report would be taken to have been registered at the time entered therein, that is at 10-45 a. m. It does not contain details of the injuries suffered by Tariq Aziz appellant. It has just been cursorily mentioned therein that Tariq Aziz appellant had also received injuries. If the Investigating Officer had kept recording of the first information report pending for the purpose of incorporating therein the details of the injuries Tariq Aziz appellant had received till after having known the nature of the injuries after the arrest of Tariq Aziz appellant, the details of the injuries would have found mention in the report. There was nothing illegal in visiting the spot and catching hold of the assailants when such an opportunity was visible before going to the hospital to observe certain formalities touching dead body of the deceased. Mere omission of the number of the case in the inquest report would hardly discredit its authenticity or" adversely affect the investigation. The investigation does not appear to have been carried out dishonestly so as to affect the merits of the case.

13. The arguments of the learned counsel that the deceased when held by the arms by Akbar Ali and Munshi appellants, as was the pro secution case, could not have struck against the head of Tariq Aziz appellant can be accepted only with a grain of salt It is physically possible for a man being held by two persons to strike his head against the third person who comes in close proximity with him to administer him knife blows. Therefore, the conclusion of the learned trial Judge, on the basis of the evidence that swelling on the eye-brows of Tariq Aziz appellant (injuries Nos. 3 and 4) had been caused by striking of head of deceased is not incorrect.

14. Insignificant dimensions of incised wounds on the person of Tariq Aziz appellant are suggestive of their having been self-suffered or caused by friendly hand because if the deceased bad initiated attack upon him and had used knife as weapon of offence, the size of injuries would have been much greater and their nature much more severe and serious. As remarked by the learned trial Judge Tariq Aziz appellant had sufficient time before his arrest to manage appearance of such injuries on his person.

15. Ahmad Khan (P. W. 9) and Bashir Ahmad (P. W. 10) are independent and disinterested persons. Even Mushtaq Ahmad (P. W. 8) had no previous enmity with the appellants. The alleged inimical relations of the appellants with the eye-witnesses do not find support from any concrete material. The occurrence took place in broad-day light in busy bazar. In these circumstances the testimony of the afore mentioned eye-witnesses can hardly be disbelieved. They gave consistent version of the earlier incident that took place at the shop of the B complainant when the deceased had asked the appellant not to mix charas in the cigarettes and on this altercation had taken place as also of the occurrence that took place thereafter in the bazar when the appellants had attacked the deceased. The deceased was a young man of 23 years of age. The nature and the location of the four injuries inflicted on his body indicate that they could not have been caused by Tariq Aziz appellant alone. He could have extricated himself even if he had been held by one man. It was only after he had been properly held by two men by the arms that Tariq Aziz appellant could have caused such injuries with chhuri on his chest. As borne out by Mushtaq Ahmad (P. W. 8). Ahmad Jan (P. W. 9) and Bashir Ahmad (P. W. 10), C Akbar Ali and Munshi. appellants, held the deceased by the arms and Tariq Aziz appellant struck him chhuri blows. Believing their testimony, which is quite creditable, it cannot but be held that the appellants are responsible for committing murder of the deceased in furtherance o their common intention.

16. The theory of sudden fight and acting of the appellants in the heat of passion which the learned counsel tried to develop is scarcely sustainable from the evidence brought on the record. It is difficult to treat the quarrel taking place at the shop of the complainant and the subsequent fatal attack launched by the appellants on the deceased as one incident for the purpose of inferring that the appellants acted as a result of sudden quarrel and that their case fell within Exception 4 to section 300 of the Pakistan Penal Code. The appellants had actually left the complainant's shop and it was after some time that they had attacked the deceased at another place in the bazar. Their action was cold-blooded and no doubt cruel as the deceased bad given them no cause of annoyance at the time of their doing him to death. No case for reduction of sentence of Tariq Aziz appellant is made out. The authorities Kalcha Sarkar v. State (P L D 1966 Dacca 508). Painda Khan v. State (P L D 1967 Pesh. 325) and Hidayat-Ullah v. State (P L D 1971 Kar. 817) cited by the learned counsel for securing reduction in sentence of Tariq Aziz appellant to imprisonment for life are inapplicable to the facts of the present case which is of murder, deliberate, unprovoked and cruel. The conviction of the appellants and the sentences passed upon them by the learned trial Judge are maintained. The death sentence o Tariq Aziz appellant is confirmed. The appeals are dismissed.

17. No body turned up to prosecute revision petition for enhance ment of sentence of the appellants. The sentence given to the appellants by the learned trial Judge is just and proper and needs no modification. Akbar Ali and Munshi, appellants, have been rightly awarded lesser penalty of imprisonment for life because they actually did not cause fatal injury to the deceased. The sentences of fine imposed upon Tariq Aziz appellant is commensurate with his means. Revision petition is consequently dismissed for non-prosecution as well as on merits. Death sentence confirmed.