P L D 1975 Lahore 672 (PLP)

ABDUL JABBAR KHAN, J.

Ismail alias Seela (50), Muhammad Din alias Mannoh (42), Yasin (50) and Muhammad Ibrahim (40), sons of Sindhi, Ahmad Din alias Ahman (50) and Muhammad Hussain alias Hussain (35) sons of Jhanda and Younis alias Kala (28) son of Ismail alias Seela, have appealed against their convictions and sentences passed by the learned Additional Sessions Judge, Lahore vide his judgment dated 28th April 1973, whereby he sentenced Ismail alias Seela and Muhammad Din alias Mannoh sons of Sindhi to death and Yasin son of Sindhi to imprisonment for life under section 302/34, P. P. C. All the three appellants have been further sentenced to pay a fine of Rs. 1,000 each. Half of the fine if realised, was ordered to be paid to the heirs of the deceased Din Muhammad. They were further sentenced to two years' R. I. each under section 148/149, P. P. C., whereas Muhammad Ibrahim, Ahmad Din, Muhammad Hussain and Younis have been sentenced to two years' R. I. each under section 148/149, P. P. C. and furiher two years' R I. each under section 324/34, P. P. C. All the sentences were ordered to run concurrently. The sentences of imprisonment awarded to Ismail and Muhammad Din appellants under section 148/149, P. P. C, shall run con currently if the death sentences awarded to them and the case referred by the trial Court under section 374, Cr. P. C. for confirmation of death sentences, are not confirmed by this Court. This judgment will dispose of, the appeal as well as the Murder Reference.

2. The occurrence took place on 21st September 1970, at 10-30 a.m. in the area of Ghas Mandi within the jurisdiction of Police Station Baghban pura. The place of crime is stated to be at a distance of two furlongs from the said Police Station. Statement Exh. P. -A of Yasin son of Din Muhammad (deceased) was recorded by Abdul Majid A. S.1. under section 154, Cr. P. C. near the Ghas Mandi. On the basis of statement Exh. P. A., a formal F. I. R. Exh. P. A./1 was registered by Muhammad Nazir A. S. I. at 12-30 p.m. on the same day. Exh. P. A. was proved during the course of this trial by Muham mad Nazir A. S. I. who identified the handwriting of Abdul Majid A. S. I. as the latter being a Prisoner of War, was not available for examination.

3. The prosecution case as stated by Yasin P. W. 8 in the F. I. R. Exh. P. A. is as follows :- On 20th September 1970, a day prior to the occurrence Yasin P. W. along with his brothers Manno and Achha went to Ghas Mandi, Baghban pura to purchase fodder for their cattle. It has been stated that they were beaten by Muhammad Din alias Mannoh son of Sindhi, Younis son of Ismail and Ahmad Din alias Ahma son of Jhanda appellants by fists and whips over the dispute of purchasing fodder. On the fateful day at about 10-30 a.m. Yasin P.W. R along with his brothers Mannah, his father Din Muhammad (deceased) and his uncle Taj Din (injured P. W.) had arrived in Baghbanpura Ghas Mandi for the purchase of fodder. They were confronted by Ismail, Yasin, Muhammad Din alias Mannob, Muhammad Ibrahim sons of Sindhi caste Gujjar, Ahmad Din alias Ahma and Muhammad Hussain alias Hussain sons of Jhanda and Younis son of Ismail caste Gujjar, all appellants in the case, who were armed with dangs. Yasin. appellant shouted and goaded his companions to kill the complainant and his companions. On which all the appellants mentioned above started beating Din Muhammad (deceased) the father and Taj Din P. W. the uncle of Yasin complainant, with sotas. Yasin complainant (P. W. 8) went forward in order to rescue his elders but was also attacked by Muhammad Hussain and Younis appellants with sotas. He re ceived one sota blow on his right arm but was able to snatch the same from the hand of Muhammad Hussain appellant and used it in his self-defence. He inflicted sota blows on-the persons of Muhammad Hussain and Younis appellants. Ultimately they were rescued by Pir Bakhsh P. W. 11 and one Ismail son of Khuda Bakhsh who happened to be present at the place of occurrence. Yasin complainant brought his father Din Muhammad deceased and his uncle Taj Din P. W. in an injured condition to Mayo Hospital, Lahore. At the time when admitted in the hospital, they were in unconscious condition. Before the complainant could reach the Police Station to get the case registered he met Abdul Majid A. S. I., near Ghas Mandi and made statement Exh. P. A.

4. Besides the motive given in the F. I. R. the complainant gave some other motive to the police during the course of investigation. It was stated by him that Hasan Din P.W. 7 was having a house in which Yasin and Ismail appellants were living as tenants. Hasan Din wanted the house for his own use but the above-mentioned appellants refused to vacate the same. He ap proached Din Muhammad deceased who was his brother-in-law and sought his assistance in the matter of ejectment. Din Muhammad deceased referred the matter to the brathery of the appellants and was successful in pressurising them to vacate the house. This interference on the part of the deceased was highly resented by the appellants. It was further stated by the complainant that Kala son of Ismail wanted to marry with the daughter of one Ilahi Bakhsh. Din Muhammad deceased opposed this marriage but in spite of his opposition Ilahi Bakhsh married his daughter to the son of Ismail appellant 2/3 months before the present occurrence. The attitude of Din Muhammad deceased regarding this marriage affair caused great annoyance to the appellants. It has been stated that some dispute regarding the purchase of parali also existed between Hassan Din P. W. and Ismail appellant.

5. The Investigating Officer after recording the F. I. R. went to the place of occurrence and took into possession dang P. 1 which was produced by Yasin P. W. 8, who claimed to have snatched it from Muhammad Hussain appellant vide memo Exh. P. B. All the accused/appellants were arrested on 22nd September 1970 by Nawab Khan S. I. No recovery was effected from any of the accused in this case. Muhammad Hussain and Younis appellant were in injured condition at the time of their arrest, therefore, the Investigat ing Officer sent them for medical examination.

6. Dr. Syed Riaz Hussain Hamdani (P. W. 4), examined Mannah son of Din Muhammad (P. W. 10) on 21.9-1970, and found the following injuries on his person:

(1) A painful swelling of nose 3" x 1". (2) A painful swelling of left fore-arm 2" X 2" on the upper part. (3) A painful swelling left wrist 2" x 3". (4) A contusion mark on right upper arm 3" x 1". In the opinion of the doctor all the injuries were caused fresh and all were of blunt weapons. All these injuries were proved to be simple in nature. On the same day at 11-00 a.m. he examined Taj Din son of Shahna (P. W. 9) and found the following injuries on his person. (1) A painful tender swelling with contusion mark 2" X 3" on the upper part of right forearm. X-ray advised. (2) A contusion mark on left forearm 2" x 2". (3) An incised wound near the inner border of right hand. (4) A contusion mark on the back of the chest 6" x 1" on the right side. (5) A contusion wound 1" x left side of head. According to the doctor injury No. 3 was caused with a sharp-edged weapon while others were the result of a blunt weapon. He found all injuries simple in nature. On the same day at 10-05 a.m. the same doctor examined Din Muham mad son of Bassa (deceased) and found the following injuries on his person:

(1) A lacerated wound on the left parietal area of head 2" x 2" scalp deep. (2) A haemotoma on right side of parietal area of head 3" X 3". (3) A swelling left lower lid with a light bluish discolouration. (4) A painful swelling left fore-arm. (5) A contusion on the back of right elbow. (6) A painful contusion mark on the palmer surface of right hand. Muhammad Din died 24 hours later and it was found that the death occurred due to injury Nos. 1 and 2 which were individually sufficient to cause death in the ordinary course of nature. These injuries were caused by a blunt weapon. On the same day at 11-20 a.m. Muhammad Hussain appellant was exa mined and the following injuries were found on his person :- (1) An incised wound on the right eye-brow x 1/8" skin deep. (2) A lacerated wound left side of parietal area of head 2" x scalp deep. All injuries were found simple in nature and were caused by a blunt weapon. Similarly, on the same day at 10-40 a. m. Younis appellant was examined and the following injuries were found on his person :- (1) A lacerated wound on right side of head (parietal area) 2" x scalp deep. (2) A small lacerated wound x 1/3" adjacent to No. 1. scalp deep on the right side of the head. All the injuries were fresh and were caused with a blunt weapon. These injuries were ultimately declared as simple in nature.

7. The Investigating Officer sent a ruqqa Exh. P. L. to the doctor in Mayo Hospital for the examination of Yasin P. W. 8 but the doctor referred him to Police Surgeon for examination. The examination of Yasin P. W. revealed a bruise " x " on the right forearm medial aspect lower part. The injury was found to be caused by a blunt weapon within the duration of 12 hours.

8. All the appellants except Muhammad Hussain alias Hussain and Younis have denied their participation in the crime and have stated that they have been falsely implicated in the case due to previous enmity. Muhammad Hussain appellant in his statement under section 342, Cr. P. C. before the trial Court stated that he was present along with Younis appellant in the fodder market in the morning of 21st Sep tember 1970 when P. W. Mannah came there and bit his rehra against the rehra of the appellant. This led to a quarrel between them and he alongwith Younis appellant gave beating with fists and whips to Mannah P. W. Mannah left the fodder market and after a while brought his father Din Muhammad deceased, uncle Tai Pin P, W. and his brother Achhu who were armed with sofas to take the revenge for the beating given by them to Mannah P. W. Din Muhammad gave sota blow which fell on the head of Muhammad Hussain appellant who fell down. Mannah P. W. tried to inflict a knife blow on his neck which was warded off by him although it hit his forehead on the right side. Younis appellant received injuries at the hands of Taj Din and Achhu P. Ws. Muhammad Hussain and Younis appellants took up the paranis from the carts (gaddas) standing at the place of occurrence and wielded the same in self-defence, as a result of which Din Muhammad and Taj Din were injured. They were admitted in the Mayo Hospital and were examined by doctor at 10-OS and 11-03 a.m. on the same day. The appellants have claim ed that they apprehended the causing of grievous hurts at the hands of Din Muhammad deceased and Taj Din P. W. and thus they were fully justified in exercising their right of private defence of their persons.

9. We have heard the learned counsel for the defence as well as for the State and have perused the record carefully with their assistance. The case of the prosecution rests solely on ocular testimony and motive provided by Yasin P. W. 8, the son of the deceased, Taj Din, brother-in-law, of the deceased Mannah P. W. 10, another son of the deceased and Pir Bakhsh P. W. 11 related both to the deceased and as well as to the appellants. Ismail son of Khuda Bakhsh was cited as an eye-witness in the F.

1. R. but was given up as won over by the appellants. The motive set up by the prose cution during the course of investigation besides the one given in the F. I. R. has been supported by Hasan Din P. W. 7 only. The evidence of recovery is of no consequence in this case as the dang P. 1 said to be snatched by Yasin P. W. from Muhammad Hussain appellant was not stained with blood and thus it has got no evidentiary value against him. The medical evidence shows that Din Muhammad died of dang blows which he received on head and both the injuries individually were sufficient to cause death in the ordinary course of nature. It further shows that two of the appellants namely, Muhammad Hussain alias Hussain and Younis received dang blows on their persons, while Yasin, Taj Din and Mannah Y. Ws received sofa blows during the incident. The case of the prosecution is that all the appellants armed with dangs formed an unlawful assembly and committed the riot. It has further been urged that they intended to kill Din Muhammad deceased against whom they nourished grudge. The act of murder was completed by Ismail. Muhammad Din alias Mannah who gave a dang blow each on his head and Yasin appellant who atta6ed him and inflicted a dang blow on his shoulder. The rest of the appellants inflicted injuries on the persons of the P. Ws. whom they caused various injuries in the course of their attack. On the other hand the case for the defence is that Muhammad Hussain alias Hussain and Younis appellants acted in self-defence and were fully justified in inflicting injuries on the persons of Din Muhammad deceased and other P. Ws. as they were first attacked by them and could also voluntarily cause their death in order to save their own lives. The rest of the appellants have been implicated due to enmity and none of them was present during the course of this incident.

10. In view of the two versions before us the evidence of motive led by the prosecution assumes importance and needs careful scrutiny, so as to deter mine whether there was sufficient motive for the appellants to plan a premeditated murder of Din Muhammad deceased. The motive as given in the F. I. R. by Yasin P. W. tells us that Mannah and Achhu sons of the deceased prior to the occurrence went to Ghas Mandi and were beaten by Muhammad Din alias Mannah, Younis alias Kala and Ahmad alias Ahma appellants with fists and whips (chhantas). They narrated tile occurrence to ,their father Din Muhammad deceased and their brother Yasin complainant but it was decided by the deceased to ignore the incident. There is no men lion of the other grudges and grievances which we find introduced by Yasin P. W., during the course of investigation. The solitary witness who has come forward to substantiate the tale of ejectment and interference on the part of 4.he deceased in matrimonial affairs of the appellants, does not seem to be :giving an impressive account of these incidents. Yasin P. W. has not given ^these details either before the police or before the committing Magistrate and has been confronted on this point with his statement many a time in the ,course of his cross-examination. Even if we take these motives at their face value, .they seem improbable as well as incredible and we consider such motives highly :inadequate so as to motivate the appellants for killing Din Muhammad .deceased. The affair of ejectment which is said to have taken place 12/13 years ago was not a matter between the appellants and Din Muhammad deceased but between Hassan Din P. W. and Ismail appellant and thus it does not stand to reason that after living peacefully for 12/13 years the appellants suddenly took into their hand to settle their accounts with the deceased. Similarly, the affairs of marriage in which the deceased is said to have taken a negative attitude looks more like Aesop's fable than a reality. The efforts of the deceased failed to stop the marriage and thus the appellants achieved what they wanted and their success would not have left any rancour in their hearts against those whose futile attempts failed to create any impact against their interests.

11. It seems that it was considered necessary to supplement the story of motive given in the F. I. R. by these innovations otherwise this motive was likely to recoil against the prosecution case itself. It could easily be said that incident prior to occurrence in which the complainant's brothers received beat ing was in fact a matter which would lend a cause of grievance to complainant party rather than the appellants. The mere fact that there is nothing on the record to show as to how the appellants came to know that Din Muhammad deceased was available to them in Ghas Mandi on the day of occurrence and thus they all came fully armed with the intention to kill him, destroys the very element of the premeditated murder. The fact remains that both the parties in this case have not taken the Court into confidence about the real facts regarding this clash between them and thus the immediate cause of fight remains shrouded in mystry. We are of the considered opinion that the story .of old grudges as given by Hassan Din P. W. hardly inspires confidence and it was nothing but a belated attempt on the part of the prosecution to show that Din Muhammad had fallen prey to the designs of the appellants who had decided to kill him. The case of the defence as given by Muhammad Hussain appellant in his statement before the trial Court is wholly incompatible with the evidence on the record, as well as it is not worthy of any credit. Muhammad Hussain appellant failed to give any explanation regarding the presence of injuries on his person and did not advert to the theory of self-defence, before the committing Magistrate, as propounded by him before the learned trial Court. He even disowned dang P. 1 and never claimed that he and his companions Younis appellant were armed and wielded their weapons in their self- defence. The learned counsel for the defence showed us a whip and a very thin stick which he demonstrated to use as parani used by Muhammad Hussain and Younis appellant in self-defence against the P. Ws. The very exhibition of this weapon made our belief more firm that the type of blows inflicted on the head of the deceased could not be caused by such light sticks. If the parani used by the appellants as given by Muhammad Hussain appellant in his statement, are to be taken as those which were used as support for the carts (Gaddas) then the conclusion arrived at by the learned trial Court in this regard is absolutely correct. It has been observed by the trial Court that such supports are always attached to (gaddas) and are not easily removable. If we take into consideration the assertion of Muhammad Hussain appellant that the injured P. Ws. alongwith their father (the deceased) had gone all the way to avenge the beating given to Achha and Mannah by the appellants, then it is unconceivable that four armed persons would have been belaboured: by Muhammad Hussain and Younis appellants, in the manner it has occurred in this case. The learned counsel for the defence has vehemently urged that it was not possible for Yasin, an old man of 45 years to wield the dang against: the appellants after he had received a blow on his arm. We have seen Yasin P. W. who happened to be present in Court and find him quite a formidable person, capable of doing what has been stated by him before the trial Court. The contention of the defence version is further belied from the medical evidence which shows that neither Ismail alias Seela nor Muhammad Din alias Mannah appellants who have been attributed fatal blows received any in jury on their persons and thus they had no justification to act in the way the chose to act. In view of the above discussion we do not find any force in the plea of self-defence raised by Muhammad Hussain and Younis appellants in this case.

12. The case of the prosecution as discussed above mainly rests on the ocular account given by two sons of the deceased namely, Yasin P. W. 8 and ' Mannah P. W. 10 and Taj Din P. W. 9 , the brother-in-law of the deceased There is no denial of the fact that they are closely related to each other and at the same time their presence cannot be disputed as all of them are injured witnesses. They have given consistent account of the incident and have specified injuries as given by the assailants. Their stand is corroborated by Pir Bakhsh P. W. 11 who is related to both parties, on all material points as well as the medical evidence on the record. The learned trial Court has ably and elabo rately discussed their evidence in detail and has rightly believed them despite their relationship with the deceased. It is settled law that the evidence of witnesses if otherwise truthful cannot be discarded on the mere ground that they happened to be relations of the deceased or of the complainant party. We do find some discrepancies hither and thither in their evidence and also an element of exaggeration but it has become an unavoidable phenomenon in this country and which one cannot escape. We have further tested the pro secution case on the whetstone of the medical evidence and find that as far as Ismail alias Seela and Muhammad Din alias Mannah appellants are concern ed they have been rightly held responsible for the fatal dang blows given by them individually on the head of the deceased but in the case of Yasin appel lant the medical evidence does not corroborate the assertion of the P. Ws. that Yasin appellant gave dang blow on the shoulder of the deceased, as out of six injuries described on his persons, two were on the head while the rest were on his arm, elbow and right band. Thus it can be safely concluded that the part assigned to Yasin appellant by the P. Ws. is not free from doubt.

13. The learned counsel for the defence has urged that if it was held that incident was the result of a sudden fight then every assailant will be held responsible for his own act and application of sections 148 and 149, P. P. C. would be misconceived. It has been further submitted that all the appellants with the exception of Ismail alias Seela and Muhammad Din alias Mannob, will be responsible under section 323/34, P. P. C. and not under section 324/34, P. P. C. as held by the learned trial Court, because the injuries inflicted by them were found simple in nature. As regards Ismail and Muhammad Din appellants it was argued that their act of giving dang blows on the head of the deceased will fall under section 325, P. P. C. and not under section 304, Part (1), P. P. C. In this regard the learned counsel has relied on

(1) Dial Singh v. Emperor (1926) 27 Cr. L 1 547. (2) Gama v. Emperor A I R 1934 Lab. 335. (3) Gurcharan Singh v. Emperor (1935) 36 Cr. L J 629. (4) Pehlwan v. State P L D 1961 Lab. 208. (5) Shamshad v. State P L D 1963 S C 740 ; and (6) Fazal Din v. REhmat 196SS S C M R

18. We have carefully perused the above-mentioned rulings and find that the ratio decidendi in Dial Singh's case ((1926) 27 Cr. L J 1926) and 1968 S C M R 18, was that where it was not possible to come to safe conclusion that a fatal injury in a sudden fight was given by a particular person then the case will fall under section 325, P. P. C. and not under section 304, Part (I P. P. C. in the instant case we are not faced with the situation where it is difficult to find out or determine as to who gave fatal blows on the head of Din Muhammad deceased. Ai discussed above the ocular evidence has clearly made out that Ismail alias Seela and Muhammad Din alias Mannoh appellants gave a dung blow each on his head and the medical evidence has made it crystal clear that each one of those injuries was individually sufficient in the ordinary course of nature to cause his death. So we find that the rulings relied upon by the learned defence counsel do not appear to be helpful to the case of the appellants. In Pehlwan's case it was laid down that if the circumstances disclosed that injury given on the head of the deceased was the result of cumulative effect of two blows then of course his case would attract the mischief of section 325, P. P. C. Similarly, in (1935) 36 Cr. L J 629, the learned Judges were of the opinion that in a sudden quarrel where the accused had dealt a single blow with a dang on the head of a deceased person who happened to be an old man and whose weakness and large spleen might have hastened his death, the proper section to be applied against the accused was 325, P. P. C. The ratio decidendi in A I R 1934 Lab. 335, was that if only inference possible to all the circumstances of the case was that the accused did not intend to kill him then the causing of grievous hurt to the deceased under sudden impulse, by striking him on the head by a dang, which was lying some 10 or 12 karams away from him, then his offence would fall under section 325, P. P. C. The facts given in P L D 1963 S C 740, are absolutely different, thus it need not be referred to. The criterion laid downs in the above-mentioned authorities in no way applies to the facts of the present case in which it is established from the record that Din Muhammad deceased was given fatal blows by Ismail alias Seela and Muhammad Din alias Mannoh appellants who finding, him in Ghas Mandi straightaway went for him and thus formed an instant intention to kill him. This intention for mulated by them at the spur of moment is inferred from the very fact that these two appellants inflicted forceful blows and caused injuries of very serious nature on the most vital part of his body. In Sewa Singh v. Emperor (A I R 1930 Lab. 490), it was held that :

"The best criterion of the force and character of a blow is to regard the result which it has effected. A person delivering a violent blow with a lethal weapon like a laths on a vulnerable part of the body as the head must be deemed to have intended to cause such bodily injury as he knew was likely to cause the death of the person to whom the injury was caused."

14. In view of our discussion in the earlier part of the judgment, we therefore, find no force in the submissions of the learned counsel for the appel lants as far as the case of Ismail alias Seela and Muhammad Din alias Mannoh appellants is concerned and in our considered opinion the act of these two appellants being unpremeditated does not attract the mischief of section 302, P. P. C. but will definitely fall under section 304, Part (I), P. P. C As regards the contention of the learned counsel for the other appellants that the offence does not fall under section 324/34, P. P. C., we find considerable weight in the same. In view of the fact that all the injuries on the persons of the P. Ws. were declared simple, the application of section 324/34, P. P. C. in their case was uncalled for.

15. The upshot of the above discussion is that we partially accept the appeal, set aside the conviction of Ismail and Muhammad Din appellants under section 302, P. P. C. and convict and sentence them to imprisonment for life under section 304, Part (1), P. P. C. with a fine of Rs. 500 each or in default to undergo further R. I. for six months each. In case the fine is realized, it should be paid to the heirs of the deceased as compensations. The sentence of death qua them is not confirmed. Since, the prosecution case against Yasin appellant is not proved, he is acquitted of all the charges. He should be set at liberty forthwith if he is not wanted in some other cases. Ail the appellants are acquitted of the charge under section 148/149, P. P. C. The sentence of two years' R. I. awarded to Muhammad Ibrahim, Ahmad Din alias Ahma. Younis alias Kala and Muhammad Hussain alias Hussain, each under section 324/34, P. P. C. is reduced to that already undergone by them under section 323/34, P. P. C. They being on bail they are discharged by their bail bonds.

16. The reference under section 374, Cr. P. C. is awarded accordingly. S. A. H. Appeal partly accepted.