P L D 1962 Dacca 590 (PLP)

MURSHED, J.‑Appellants Ekram Hossain and Suruj Ali alias Jamu were tried with the aid of Assessors by Mr. N. M. Khan, Sessions Judge, Mymensingh, along with another accused by the name of Momin Hossain. Appellant Ekram Hossain was charged under sections 302 and 324 of the Pakistan Penal Code. Appellant Suruj Ali alias Jamu was charged under section 302/109 of the said Code. Their co‑accused Momin Hossain was charged under section 324 of the Code. The prosecution case, in substance, is as follows:

2. Prior to the occurrence, narrated hereafter, the Ail dividing the lands belonging to one Isab Ali (P. W. 1) and appellant Ekram Hossain was removed in such a manner that according to Isab Ali (P. W. 1) it encroached upon his land and extended the boundary of the land in which the appellant Ekram Hossain was interested. Isab Ali noticed the shifting of the ail and did not protest then and there as appellant Ekram Hossain was considered by him to be a dangerous man. There after Isab Ali went back to the village and reported the matter to a member of village elders, called Matbars. He brought along with him several Matbars who inspected the ails and although appellant Ekram Hossain and others interested in the land were informed of the same, they did not turn up at the dime when the Matbars inspected the ail in question. While they were returning back from the land on the same day, namely, the 18th of August, 1959, corresponding to the 1st of Bhadra, 1366 B. S., the appellants and their co‑accused came before the Matbars including Isab Ali and demanded that they should go back and inspect the Ail once again in their presence. Amongst the Matbars were Shahabuddin (the deceased), Abdur Rahim Bhuyia, Abdul Jabbar, Mafizuddin and several other persons. These Matbars refused to do so while the appellants kept on insisting that the ails should be inspected over again in presence of the appellants. This led to heated arguments amongst the parties and eventually one of the Matbars, namely, deceased Shahabuddin, asked the appellants as to what they would do if the Matbars refused to go back for inspecting the Ail over again. At this appellant Ekram Hossain aimed a dao blow at Shahabuddin who thereupon was about to run towards north and had actually run a few steps, when appellant Suruj Ali came forward with his hands stretched thereby obstructing Shahabuddin, with the result that the accused Ekram Hossain inflicted a very severe injury on the head of Shahabuddin with a dao. Shahabuddin at once fell down on the spot and lost con sciousness. He never regained his senses. Abdur Rahim Bhuyia came to the rescue of Shahabuddin, but Ekram Hossain gave him a blow on the neck with a dao and aimed another blow at him, but Mafizuddin caught hold of the hand of Ekram Hossain and snatched away the dao. P. W. Abdul Ali was attacked by accused Momin Hossain, but Abdul Ali, in his attempt to run away, slipped down and accused Momin gave a dao blow on his back, P. W. Nur Hossain caught hold of the dao of Momin who ran away leaving the dao. When the daos were snatched away from the hands of Ekram Hossain and Momin Hossain, all the three accused, namely, Ekram Hossain, Momin Hossain and Suruj Ali, ran away. Shahabuddin, who was dangerously injured, was removed to the outer yard of Hafizuddin and thereafter, when an arrangement for a boat could be made, he was taken to Kendua Hospital where he died in the same evening.

3. Isab Ali lodged a first information report at the police station. One police officer had already arrived at the place of occurrence on receipt of certain information and seized various alamats including blood‑marks from the place of occurrence as alleged by the prosecution. Upon completion of the investi gation in this case and a preliminary enquiry by a competent Magistrate, the appellants were committed to the Court of Sessions to stand their trial, as aforesaid.

4. The assessors were unanimously of opinion that appellant Ekram Hossain was guilty both under section 302 as well as under section 324 of the Pakistan Penal Code. They were also unanimously of opinion that appellant Suruj Ali was guilty under section 302/109 of the said Code. We may add here that the co‑accused of the appellants, namely, Momin Hossain was found guilty and convicted under section 324 of the said Code and was sentenced to suffer rigorous impri sonment or a year and a half. He did not prefer any appeal against his conviction and the sentence passed on him.

5. Learned Sessions Judge, on a discussion of the evidence in this case, came to the conclusion that the charges framed against the appellants were conclusively brought home to them. He, therefore, agreeing with the unanimous opinion of the assessors, convicted them accordingly. He sentenced appellant Ekram Hossain to undergo transportation for life under section 302 of the Pakistan Penal Code. He did not, however, pass any separate sentence upon this appellant in respect of his conviction under section 324 of the Code. He sentenced appellant Suruj Ali also to undergo transportation for life under section 302/109 of the Code.

6. Against the conviction of the appellants and the sentences pronounced on them, appellants preferred an appeal from jail. Subsequently appellant Suruj Ali was represented before us by Mr. Shaukat Ali Khan.

7. At the hearing of this appeal Mr. Khan took us through the evidence in this case as well as the judgment pronounced by the learned Sessions Judge.

8. With regard to appellant Ekram Hossain, who was not represented by a lawyer before us, we asked the learned Deputy Legal Remembrancer to point out things in favour of the said appellant. He has argued that the only point that can be said in favour of the appellant Ekram Hossain is that the medical evidence in this case would not fit in with the evidence of some of the witnesses that the victim was struck from back by this appellant. A striking feature of this case is that, except for P. W. 1 Isab Ali, all the witnesses in this case are indepen dent and disinterested witnesses and nothing has been shown as to why they should falsely implicate the appellant. Even with regard to P. W. 1 Isab Ali, we have no reasons to dis believe his evidence, which is corroborated by the alamats that were seized by the police officer as well as by the other indepen dent witnesses.

9. As regards the point as to whether the deceased Shahabuddin was hit from the back, the relevant medical evi dence is as follows: ‑ "(1) One incised wound 2" x 4" x 1" at the front of the top of head. Scalp together with underlying bone, the brain membrane with a part of the brain matter were cut. The injured tissues were deeply stained with blood clots. "It was ante mortem and homicidal in nature and caused by a sharp cutting instrument such as any of the two daos (Ex. 1)". From the above it will appear that the blow must have been inflicted when the victim was facing his assailant. It rules out the possibility of deceased Shahabuddin being hit from the back. 10: On this point we have the evidence of P. W. 9 Abdul Ali Bhuiya who states in his cross‑examination as follows: "Shahabuddin was not actually seized by Suruj but obstructed him by extending his two hands on two sides of Shahabuddin. Shahabuddin being obstructed turned his face towards back when he was given the kope by Ekram from his front side".

11. P. W. 10 Mofizuddin Bhuyian has also stated as follows: "Ekram was to the south of Shahabuddin while actually inflicting the blow and Suruj was to the north of Shahabuddin, Suruj was south facing and Shahabuddin was also partly south facing being obstructed by Suruj. In that moment, Ekram inflicted the kope. Shahabuddin in turning his face towards south probably tried to find out if he could escape but just then he got the kope which hit him when his head was stooping low." Thus, we get from these witnesses the manner in which deceased Shahabuddin received the blow which was given by appellant Ekram Hossain. From the prosecution evidence, which we have no good reason to disbelieve, it is conclusively estab lished that the deceased Shahabuddin was given a fatal blow with a dao on the forehead by appellant Ekram Hossain and there is also no escape from the conclusion that it was that blow which killed the deceased.

12. Mr. Abdul Hye Chowdhury argued in favour of appellant Ekram Hossain that the prosecution evidence would only establish the guilt of this appellant under the first part of section 304 of the Pakistan Penal Code. He drew our attention to the fourth exception to section 300 of the Pakistan Penal Code. That exception reads as follows: "Culpable homicide is not murder if it is committed with out premeditation in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner." We do not think that the act committed by this appellant Ekram Hossain comes within the purview of the fourth excep tion to section 300 of the Pakistan Penal Code quoted above. It would appear that the act was not a premeditated one and that it was committed in the heat of passion which was roused in the course of strong argument between the parties ; but then there was no fight. It was a purely one‑sided aggression on the part of the appellant. This appellant, Ekram Hossain, was the aggressor and the victim Shahabuddin merely attempted to run away. Furthermore, according to the evidence in this case, the victim was unarmed, and, when a person with a deadly instrument attacks an unarmed person who was running away, it cannot be said that the armed aggressor did not take any undue advantage of the latter. Under these circumstances, we do not think that Exception 4 to section 300 of the Pakis tan Penal Code applies to the facts and circumstances of this case.

13. It is not enough to establish that the attack was unpremeditated and that the act was committed in the heat of passion. It has to be proved further that it was the result of sudden fight, without the offenders "having taken undue advantage" over the victim. Besides, "it must also appear that the offender did not act" in a cruel or unusual manner. Before an accused can pray in aid the provisions of Exception 4 to section 300 of the Pakistan Penal Code all its ingredients must be satisfied.

14. The defence of appellant Ekram Hossain was that he was not guilty. The further defence was that the occurrence took place near the house of Hafizuddin in a different manner altogether. It was suggested on behalf of the defence, although very timidly, that there was a fight at that place as a result of which persons on both sides received injuries.

15. We find that there is no substance in the defence suggestion that the occurrence took place elsewhere. The discovery of the alamats as well as the clear evidence given by the witnesses, whose testimony we accept, establish that the occurrence did take place in the manner and at the place as alleged by the prosecution. It has not been shown in this case that either the appellants or the co‑accused received any injury. We cannot but hold, therefore, that there is no sub stance in the defence suggestion that was given on behalf of the appellants.

16. In these circumstances, we hold that appellant Ekram Hossain was rightly convicted under section 302 of the Pakistan Penal Code. We dismiss the appeal, in so far as appellant Ekram Hossain is concerned, and maintain the conviction and sentence that was imposed on this appellant.

17. WP will now turn to the case of appellant Suruj Ali alias Jamu who was represented before us by Mr. Shaukat Ali Khan. It was contended before us on his behalf that the pro secution had not adduced sufficient evidence in this case with regard to the overt acts done by this appellant, which would sustain conviction under section 302/109 of Pakistan Penal Code. Learned counsel has further contended that, even if the prosecution evidence in this case is accepted, it would legally be insufficient to upheld the conviction of this appellant.

18. It seems that with regard to this appellant, the material witnesses, apart from their ipse dixit that this appellant was causing obstruction to the victim, contented themselves by saying that this appellant proceeded from some distance towards the victim by stretching his hands. We do not know how close he came to the victim. We also do not know as to the distance from which this appellant started running. The preponderence of evidence in this case is that this appellant did not catch hold of the deceased. He merely ran close to the deceased with his hands‑out‑stretched and that this caused the deceased to turn round, with the result that the deceased received a fatal injury. It has been stated by the witnesses that this appellant had said, when he started running towards the victim, that the Matbars would not be spared. We have to consider this appellant on . the back‑(round of this case, namely, that this appellant, along with his co‑accused, was insisting on the Matbars going back to inspect the Ail once again. This appellant had come to the spot unarmed. From the words used by him it cannot be necessarily inferred that 11e intended to say that the Matbars or one of them would be killed. Whether this appellant had, in fact, obstructed the victim Shahabuddin in the sense that the victim had no means of proceeding ahead, cannot be conclu sively gathered from the evidence as given in this case. We would have been in a better position to come to a definite conclusion if we had evidence as to how very close to the victim this appellant had proceeded. Moreover, we cannot totally eliminate the possibility that the intention of this appellant was to make the Matbars go a second time for an inspection of the Ail. We cannot also eliminate the possibility that this appellant (lid not anticipate that the deceased would be given a fatal or deadly blow by appellant Ekram Hossain, From the aforesaid evidence it is difficult to come to the conclusion that this appellant had intentionally obstructed the deceased Shahab uddin, so that lie might be killed or murdered by appellant Ekram Hossain. The gaps in this case, which we have pointed out, entitle this appellant to a benefit of doubt, and we give him that benefit. We, therefore, allow this appeal in respect of appellant Suruj Ali alias Jama only and set aside his conviction under section 302/109 of the Pakistan Penal Code and the sentence of transportation for life that was imposed on him. We direct that he be set at liberty forth with if he is not wanted in any other connection. SIDDIKY, J.‑I agree. Order accordingly.