1975 PLP 500 (SCMR)

MUHAMMAD GUL, J.‑This criminal appeal by special leave is by Khalid, Muhammad Hussain and Khalil Ahmad who, alongwith two others, namely, Maulvi Muhammad Bashir Ahmad and Muhammad Younus (who were acquitted by the trial Court), were tried on charges under sections 148, 3?.3/14') and 302/149, P. P. C. by the learned Sessions Judge, Gujranwala. The last two named having been acquitted by the trial Court, the charge under section 148 fell through and each of the three appellants herein was convicted of his own individual act. On this basis the petitioner Khalid was convicted under section 302, P. P. C. for the murder of Muhammad Ishaque and sentenced to death. He was also convicted under section 323, P. P. C. for causing simple injuries to Abdur Rahman (P. W. 13) and sentenced to rigorous imprisonment for one year. The sentence of imprisonment was directed to take e0'ect only if the death sentence on capital charge .vas not confirmed by the High Court. The trial Court also convicted Muhammad Hussain and Khalil Ahmad respectively on two counts and three counts under section 323, P. P. C. and sentenced them each of them to one year on each count. The sentences were, however, made concurrent. On joint appeal by the three convicts and on a reference for the confirmation of death sentence imposed on Khalid appellant, a Division Bench of the late High Court of West Pakistan at Lahore vide judgment dated 9‑3‑1970 dismissed the appeal but reduced the death sentence of Khalid appellant to that of transportation for life. A revision filed by the complainant against the acquittal of Maulvi Muhammad Bashir Ahmad and Muhammad Younus was also dismissed. Leave was granted to the three appellants to consider whether the trial Court and the High Court having disbelieved the ocular evidence in relation to Maulvi Muhammad Bashir Ahmad and Muhammad Younus, and as to the manner in which the occurrence took place, the convictions of the three appellants herein could be maintained on the basis of a hypothetical case and further whether the Courts were not bound also to impose sentence of fine in view of the mandatory provisions of section 544‑A of Code of Criminal Procedure ? The incident took place on 21‑6‑1967 at about 9‑00 a.m. in village Rarriyala in Gujranwala District. It was the day of Eid‑i‑Milad‑un‑Nabi. According to the prosecution cast Maulvi Muhammad Bashir Ahmad, one of the acquitted accused, who is khatib in mosque of Ahle Sunnat‑wal‑Jamat in the village used to criticise religious beliefs of Maulvi Muhammad Alam who is Pesh Imam of mosque Ahle Hadis in the same village. This wordy warfare which was fanned over the loudspeaker continued for some time prior to the incident. But owing to the intervention of the local police an understanding was reached between the two factions to stop mutual recrimination. Maulvi Muhammad Bashir Ahmad undertook that he would not make provocative or insulting references to Maulvi Muhammad Alam in his sermons. On 21‑6‑1967 Maulvi Muhammad Bashir Ahmad led the Milad proces sion through the streets himself seated on a tonga fitted with loud speaker driven by Muhammad Younus, the other acquitted accused. The three appellants were seated on the rear seat of the tonga. As the procession came in front of the tlujra of the Ahle Badis mosque, the procession stopped and Maulvi Muhammad Bashir began delivering the Khutba in the course of which he dubbed Maulvi Muhammad Alam as badmazhab, khabis and wajibul qatal. Abdur Rahman (P. W. 13) and a son of Maulvi Muhammad Alam came out of the Hujra and asked Maulvi Muhammad Bashir Ahmad to stop his speech because his family was in mourning due to the death of the wife of his brother Abdul Karim. Maulvi Muhammad Bashir Ahmad, however, was adamant and continued his peroration. As Abdur Rahman (P. W. 13) again tried to stop Maulvi Muhammad Bashir Ahmad, the latter gave a lalkara urging his companions to kill Maulvi Muhammad Alam calling him "Israeli". Upon this Muhammad Hussain and Khalil Ahmad appellants pulled out Bangs from the ronga while Muhammad Younus gave a dang fitted with iron shod to Kbalid appellant. The three appellants attacked Abdur Rahman P. W. and gave him lathi blows. Muhammad Ishaque deceased, Khushi Muhammad P. W. 11, Muhammad Yaqub P. W. 14, Basbir Ahmad P. W. 16 and Abdur Karim P. W. 17 tried to intervene. At this stage Khalid gave a Bang blow on the head of Muhammad Ishaque who fell down on the ground and did not rise again. The other two appellants assaulted Khushi Muhammad and Rashid Ahmad P. Ws with sticks. As Muhammad Ishaque did not rise, after receiving the Qang blow, the assailants were apparently scared and disappeared from the scene. Muhammad Ishaque died on the spot. The report of the incident was lodged by Abdur Rahman P. W. ' During the investigation of the case Muhammad Hussain apppellant led to the recovery of Bang (Exh. P. 2) from his house. Khalil Ahmad also produced long (Exh. P. 3) while Khalid appellant led to the recovery of iron shod dang (Exh. P. 10). The autopsy on the body of Muhammad Isbaque deceased showed that he died of lacerated wound 1 x bone deep on the top of head which had fractured the left parietal bone and left temporal bob on Vex e; right side which went up to middle fossa of the skull. Fronto-prietal suture was opened upon the left side. The injury, in the opinion of the Doctor was sufficient in the ordinary course of nature to cause death. Abdur Rehman, Rashid Ahmad, and Khushi Muhammad P. Ws. each had, six, two and two blunt weapon injuries. Of the three appellants Khalid pleaded alibi stating that g the rune of the relevant incident he was in District Courts Gujranwala. However, no evidence was led in support of alibi. The other two appellants simply pleaded not guilty. The prosecution case rested on the eye‑witnesses account given by Abdur Rahman (P. W. 13), Muhammad Yaqub (P. W 14), Khushi Muhammad (P. W. 15), Rashid Ahmad (P. W. 16) and kbdul Karim (P. W. 17). Of them. Abdur Rahman, Rashid Ahmad and Abdul Karim are sons of Maulvi Muhammad Alain. But Abdur Rah and Rashid Ahmad were both injured and, therefore, there can be no doubt about their presence at the spot. However, Muhammad Yaqub and Khutbi Muhammad are unrelated witnesses. The learned trial Court found that the prosecution witnesses have tried to improve upon the version as given in the F.I. R. The F, I. R, did not contain any reference to the use of expression badmazhab, khabis and wajibul qatal with reference to Maulvi Muhammad Alam. The learned trial Judge also came to the conclusion that there was no pre‑concert and the incident happened as a result of sudden flare up because the sons of Maulve Muhammad Alam tried to stop Maulvi Muhammad Bashir Ahmad in his peroration because of the bereavement in their family. On that view of the matter, the learned trial Judge held that each accused was responsible for his individual act and, therefore, Khalid alone was liable for the Murder of Muhammad Ishaque whom he sentenced to death. Khalid was also sentenced to one year's rigorous imprisonment for causing simple injuries to Abdur Rahman. Similarly, the trial Court sentenced the other two appellants for the simple injuries caused to Khushi Muhammad, Abdur Rahman and Rashid Ahmad. The High Court concurred in the above conclusion and maintained the convictions of the three appellants but reduced the sentence of Khaled from death to transportation for life because the incident was the re 4yt of sudden flare up without any premeditation. As in the High Court, Mr. M. Anwar, learned counsel for ire appellants contended that in relation to the death of Muhammad Ishaque the offence committed by appellant Khalid would more appropriately fall under section 325, P. P. C. or at the highest under section

304. P, P. C. because there was no evidence that Khalid had any previous enmity with the deceased nor he had gone armed with any deadly weapon. Learned counsel emphasised that even according to the prosecution case he was given a blow with a stick by Muhammad Younus at the spur of the moment after Abdur Rahman and his brothers had tried to stop Maulvi Muhammad Bashir Ahmad from his peroration in front of the Hujra of the Ahle Baths mosque. Learned counsel al‑so referred to the medical evidence according to which the injury to the deceased could have been caused "by a full sized brick" It may be that Khalid was not animated by any previous intention to kill Ishaque and therefore the offence proved against him would not fall under first clause of section 300, P. P. C. but it would certainly fall either udder clause secondly or thirdly of the same section. The prosecution evidence is definite that the dang which he wielded was iron shod which is ordinarily lethal. Secondly, he struck the blow on the top of the head of his victim such force that his skull was fractured and fronts‑parietal suture was opened up on the left side. The death was almost instantaneous. The doctor was also definite that the injury was sufficient in the ordinary course nature to cause death. There is abundant authority to support the vies t if a man strikes another on the head with an iron shod end of stick fractures his skull, the knowledge of likelihood of death being caused must be presumed and the offence would be murder it being covered by both coke clauses secondly or thirdly of section 300, P. P. C. The learned Judge in the High Court have described the solitary blow given by Khalid as "savage" and on the basis of the ensuing result this assessment is unexceptional. The mere fact, that the death was the result of single blow will not reduce criminality of the act, particularly when we bear in mind, the nature of the weapon used, the force with which the blow was struck and part of the human body where it was struck. Therefore, we have no doubt in our mind that Khalid was right convicted under section 302, P. P. C. and sentenced by the High Court to transportation, now imprisonment for life. Similarly, the convictions and sentences of the other two appellants are unexceptionable. The trial Court and the High Court, however, overlooked the provisions section 544‑A of the Criminal Procedure Code which as recently pointed out by this Court are mandatory. Accordingly, we in addition to the life sentence imposed on Khalid, also impose a fine of Rs.1.000 or in default of payment of fine to one year's rigorous imprisonment. In the event of recovery of the fine, the same shall be paid to the heirs of the deceased. Muhammad Hussain Qureshi and Khalil Ahmad were allowed bail by this Court. They shall surrender to their bail bonds or else warrants their arrest shall issue for undergoing the remainder sentence of imprisonment. Appeal dismissed.