1969 PLP 375 (SCMR)

Abdul Aziz Khan, Advocate‑General Punjab (C. M. Sharif; Advocate Federal Court with him) instructed by Ijaz Ali, Attorney for Respondent. Date of hearing : 20th April 1953. SHAHABUDDIN, J.‑The appellant Sohavi and seven others were tried by the Additional Sessions Judge of Lahore at Sheikhupura for offences of rioting, house trespass, attempted murder and murder, in respect of an occurrence in which another person named Sohavi was short dead and his sons Yaqub and Bahadur (P. Ws. 4 and 5), his brother Raju (P. W. 6) and Raju's wife Mst. Daulan (P. W. 7) sustained gun‑shot injuries. Only the appellant was convicted under section 302 and section 307/34, P. P. C. and sentenced to death and rigorous imprisonment for five years. The other seven accused were acquitted. On appeal the High Court of Judicature at Lahore upheld the convictions of the appellant maintaining the sentence of imprisonment but altered the sentence of death into one of transportation for life. This is an appeal by special leave from the judgment of the High Court. The case for the prosecution was to the following effect. There was ill feeling for several years between the appellant and his men on the one hand and Sohavi the deceased and his party on the other, and two months prior to the occurrence there was an altercation between Sohavi deceased and Sohavi appellant on account of the latter having let loose his cattle into the field of the deceased. While matters between the sections of the appellant and the deceased stood thus, Kamala, a servant of the appellant, attempted on the day of occurrence (3rd October 1949) to fish in the village pond near the house of the deceased, when the latter's sons Nadir (P. W. 3) and Yaqub (P. W. 4) objected and on Kamala's not listening to them they pushed him away. Kamala left the place but came back with the appellant and two of the other accused who were armed with sotas, but nothing beyond an exchange of abuse between them and P. W. 4 occurred at that time owing to the intervention of P. W.

3. In the evening the same day when the deceased Sohavi was seated in his courtyard with his sons, brother and sister‑in‑law, Kamala came and complained to him that his sons had prevented him from fishing in the pond. The deceased blamed Kamala who then abused the deceased, whereupon Yaqub (P. W. 4) hit Kamala on the head with the blunt edge of a hatchet. Receiving this blow Kamala left the scene but came back in a couple of minutes accompanied by the appellant and other seven accused who were armed with guns, spears and sotas. They abused the deceased and Kamala aimed a blow with a sota at P. W. 4 but missed him. P. W. 4 then dealt a blow on Kamala's head with the blunt edge of hatchet as a result of which Kamala fell down unconscious. The appellant then fired at the deceased who dropped down dead and accused Gaman fired at P. W. 4 and the deceased's brother Raju (P. W. 6), while accused Ahman fired at Raju's wife P. W. 7 and accused Muhammad fired at another son of the deceased, Bahadur 1). W.

8. The appellant and the other accused thereafter left the scene carrying with them the unconscious Kamala and the dead body of Sohavi deceased. Kamala died a few hours later on the way to the hospital. Witnesses Chawa and Buta (P. Ws. 9 and 10) also saw the occurrence. Two other witnesses met the appellant after the occurrence when he was carrying a bundle on horse‑back and enquired of him as to what he was carrying, when he asked them to mind their own business. Next day the police arrested the appellant and seized a gun from him and from his house a saddle which was found to be stained with human blood. Then on the information given and from the spot shown by the appellant the body of the deceased was recovered. The defence was that Sohavi the deceased and P. Ws. 3 to 6 and others dragged from the house of Kamala his nephew in order to abduct him and killed Kamala because he intervened to rescue his nephew, that then Bashir (D. W. 3) and another Yaqub brought guns and fired at the deceased and his companions and that the appellant and the other accused were falsely implicated on account of enmity. The police charged both the parties, but the case based on the defence version resulted in the acquittal of Sohavi the deceased's party. In the case out of which this appeal arose the Sessions Judge acquitted the other seven accused giving them the benefit of doubt. While according to the occurrence witnesses, Kamala after sustaining one injury on the head went to the house of the appellant and came with him and the other accused and in fact was the first to aim a blow at Yaqub (P. W. 4), the evidence of the doctor was that there were two injuries on the head of Kamala which even taken individually were sufficient in the ordinary course of nature to cause death and that Kamala could have walked only a few paces after sustaining either of those injuries. The distance from the scene of the occurrence to the house of the appellant to which according to the eye‑witnesses Kamala went after receiving the first blow on the head was said to be 40 karams. In view of this conflict in evidence and the long standing enmity between the parties the Sessions Judge considered that as against the individual accused only that part of the evidence of the eye‑witnesses should be believed in respect of which there was corroboration; and in his opinion the required corroboration was found only against the appellant. The learned Judges of the High Court, however, did not deal with the conflict in evidence referred to by the Sessions Judge, apparently because they did not consider it important. They, however, noticed the fact that the injured witnesses were all relatives of the deceased, but in their opinion the evidence of P. Ws. 9 and 10 whom they considered to be disinterested was a sufficient corroboration of the evidence of the witnesses who had sustained injuries. They also relied on the important circumstantial evidence which has been referred to above. The Darned Judges agree with the trial Judge that the defence version could not be believed, but in interfering with the sentence of death they made the following observation :‑ "According to the prosecution case itself, Kamala, when he first came to protest against Yaqub's conduct, had come unarmed and with no other purpose than that of complaining to Sohavi deceased. He was not only told that he himself was to blame but was also beaten with a hatchet and turned out in disgrace. The appellant's house is hardly sixty yards from that of Sohavi deceased, and it appears to us that it did not take much time for Kamala to complain to the appellant and others about the treatment meted out to him by the deceased and his sons and to reappear on the scene with the appellant and some others. It cannot therefore be said that the two incidents are two separate transactions and that it is a case of premeditated murder." It was contended by the appellant's counsel that in the view expressed in the above observation the learned Judges should have applied Exception 1 to section 300 to the appellant. The only ground on which special leave to appeal was granted in this case was that it was necessary to consider this contention; and in fact this was the only contention raised before us. The argument was that the way in which Kamala was treated must have caused grave and sudden provocation to the appellant and therefore the above Exception applied. In our opinion there is no substance in this contention. For the exception relied upon by the appellant's counsel to apply there must be deprivation of the power of self‑control caused by grave and sudden provocation. Some provocation must have been caused to the appellant when Kamala complained about the treatment accorded to him by the deceased and his party; but the manner in which the appellant appeared on the scene accompanied by several persons heavily armed clearly indicates that he acted not under the stress of grave and sudden provocation but to avenge his servant Kamala. The above passage in the judgment of the High Court relied on by the appellant's counsel cannot be taken as expressing the view that there was grave and sudden provocation resulting in loss of self‑control on the part of the appellant. The observation that the two incidents were not separate transactions and the case was not one of premeditated murder obviously means that this was not a pre‑planned crime, but that the accused acted immediately on hearing from Kamala of what had just then happened to him. This does not amount to saying that the appellant acted while he was deprived of self‑control. In this connection it was urged that since the other accused had been acquitted we should proceed on the basis that the appellant was single handed. We are unable to accept this contention also. As already indicated the Sessions Judge acquitted the accused giving them the benefit of doubt. He did not find that only the appellant took part in the occurrence. As a matter of fact the conviction of the appel lant for attempted murder by virtue of section 34 by itself indicates that the trial Judge accepted the version that with the appellant others also participated in the crime. The learned Judges of the High Court have also observed that the appellant came on the scene with his companions. In the circumstances, we consider that the appellant, was rightly convicted of the offence of murder. We, therefore, see no reason to interfere. The appeal is dismissed. Appeal dismissed.