1988 MLD 764 (PLP)

Abdur Razzaq aged 20 ,‑cars and Ijaz alias Jaju aged 18‑19 years were tried by the Additional Sessions Judge, Gujranwala, for having murdered Muhammad Shakil at 3‑00 p.m. near the shop of Muhammad Riaz P.W. (near the factory of Haji Abdul Wahab) in the abadi of Mauza Thattha Faqirullah, at a distance of one mile from Police Station, Sadar, Wazirabad. Learned trial Judge convicted both of them under section 302/34, P.P.C. vide judgment dated 12‑3 1984, and sentenced them to imprisonment for life plus to pay a fine of Rs.10,000 each, in default whereof to suffer further R.I. for two years each. Whole of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased.

2. The convicts have filed appeal.

3. F.I.R. Exh.P.D. was recorded at Police Station, Sadar, Wazirabad by Khushi Muhammad, S.I./S.H.O. P.W.10, at 4‑30 p.m. on 25‑12‑1982, on the statement of Muhammad Shafi P.W.8 father of the deceased. According to the F.I.R., the deceased started for his shop at 9 a.m. on 25‑12‑1982 after his breakfast. When he reached the turn of the street near his house, he saw the appellants standing there, teasing the girls passing thereby. He forbade them from doing so, whereupon they exchanged abuses with him. The complainant ran to them and stopped them from quarrelling. The appellants left the place threatening Shakil deceased that they will avenge the insult and the abuses. Shakil went to his shop in Wazirabad. He returned to his house at 3‑00 p.m. Shortwhile later, he went to the shop of Muhammad Riaz, near his house, to make some purchases. The complainant was also following him as he had to go to enquire about the health of his brother, Allah Ditta, who was ill. The appellants were standing near the factory of Abdul Wahab. When Shakil reached near them, Ijaz appellant raised a Lalkara that he should be taught a lesson for the insult whereupon Abdur Razzaq gave a dagger blow on the right upper arm of Shakil. Thereafter, Ijaz appellant gave him a dagger blow on the left thigh. Abdur Razzaq appellant also gave another dagger blow on the left hand. Shakil fell down. Thereafter, both the appellants gave him more injuries. Muhammad Ansar, Muhammad Riaz and Ghulam Rasul P.Ws. reached the spot on the noise raised by the complainant and witnessed the occurrence. They rescued Shakil from the appellants. The appellants ran away raising Lalkaras. Shakil was taken to the hospital on a car. He died there, soon after his arrival.

4. Khushi Muhammad, S.I. P.W.10 after recording the F.I.R. reached the hospital. He entrusted the dead body for post‑mortem examination to Talib Hussain and Mahmudul Hasan, Constables, after preparing inquest report Exh.P.G. and injury statement Exh.P.H. Thereafter he visited spot, wherefrom he collected blood‑stained earth vide memo Exh.P.C. The appellants were arrested by him on 28‑12‑1982. On the same day, Abdur Razzaq appellant led to the recovery of blood‑stained dagger P.1, from the store of his house, which was taken into possession vide memo Exh.P.E. On the same day, Ijaz appellant led to the recovery of dagger P.2, stained with blood, which was taken into possession vide memo Exh.P.F. Both the daggers were sealed into parcels. After completion of necessary investigation, the challan was put to Court.

5. Statements of ten witnesses, in all, were recorded at the trial. Dr. Imtiaz Ali Cheema, who had performed autopsy on the dead body of Shakil deceased at 9‑00 a.m. on 26‑12‑1982, appeared as P.W.4. He noted following injuries on the body of the deceased:‑‑ (1) Oblique incised wound 7 x 2.5 c.m. x muscle deep on the upper aspect of right arm upper part. (2) Abrasion 3 x 5 c.m. on the outer side of left arm upper part. (3) Incised wound 2 x 1 c.m. x bone cut on the root of left little finger. Bone was cut through and through. (4) Oblique incised wound 4 x 1 c.m. x bone cut through and through on the left palm at the root of left thumb. (5) Oblique incised wound 2 x 1 c.m. x skin deep on the outer side of left lower thigh. (6) Oblique incised wound 6 x 1 c.m. x going deep on the back of left thigh upper part. It runs downward and forward direction. The wound of exit was on the front of left thigh at middle 1 x 2 c.m. On dissection of the wound of thigh, muscles, femoral veins and branches of femoral artery were cut underneath the wound. (7) Oblique incised wound 4 x‑5 c.m. x muscle deep on the inner side of right heel and sole. (8) Contusion 5 x 4 c.m. on the left lower abdomen. (9) A cut 1 x 2 c.m. on the outer side just below the left outer ankle of foot. Injuries Nos. 2 and 8 were opined to have been caused by blunt weapon while the rest were opined to be the result of a sharp‑edged weapon. Death was opined to be the result of shock and the haemorrhage due to injury No.6, which had cut the femoral vessels. The injury was opined to be sufficient to cause death in the ordinary course of nature. During cross‑examination, he stated that the condition of the patient noted by him as serious, was recorded by him when he was alive. He stated that he had noted the injuries when the patient was in Operation Theatre but he had not noted detailed summary of injuries as he was then being provided medical aid to save his life. In answer to another question, he stated that he had conveyed information to the police on telephone. He denied the suggestion that injuries Nos. 3 and 4 could have been sustained due to holding of weapon.

6. Ocular account has been deposed to by Muhammad Riaz P.W.7 and Muhammad Shaft P.W.8 complainant m the case. Muhammad Shaft complainant, by and large renarrated the facts given by him ii: the first information report. However, while stating about the incident which took place at 9‑00 am" he stated that when he was attracted to the spot at 9‑00 a.m. it was his son who had informed him that the accused had teased the girls. He stated that he had admonished his son as well as the accused/appellants. Drag cross‑examination, he stated that the deceased was wearing a pair of slices at the time of occurrence which remained on his feet even at the time when he was taken to the hospital, and had expired there. He denied the suggestion that he had got a case registered on 30‑5‑1975 against Muhammad Anwar brother of Abdur Razzaq appellant and others under sections 324/148/149/379, P.P.C. He also denied that prior to the registration of that' case, security proceedings were initiated between him and said Muhammad Anwar, including friends and family members of both sides. While answering the question about the incident which took place at 9‑00 a.m. firstly he stated that he had seen the girls who were teased, but later said that he had not seen those gills. He conceded that no girl had appeared before the police to allege that the appellants had teased them.

7. Muhammad Riaz P.W.7 corroborated the statement made by P.W.8, in so far as it pertained to the occurrence of injuries caused by the appellants to the deceased, which resulted in his death. During cross‑examination, he stated that the occurrence had taken place in thickly populated area. In answer to another question, he stated that he was attracted to the spot on hearing shrieks of Muhammad Shakil deceased. He also stated that he had witnessed the collection of blood‑stained earth from the spot by the police. He stated that he did not dare to intervene to rescue the deceased en account' of fear. He expressed lack of knowledge about the registration of case at the instance of Muhammad Shafi P.W.8 against Muhammad Anwar brother of Abdur Razzaq appellant under sections 324148/149/379, P.P.C. He denied that a dispute had taken place between Akbar brother of Ijaz appellant and his cousin Afzal, with him during which he had suffered injuries. He denied another suggestion that the matter had been reported to the police but Ijaz appellant had got Akbar and Afzal, released from the police. Both the witnesses denied the suggestion that they had not witnessed the occurrence, and that they had falsely involved the appellants on account of previous enmity. Muhammad Riaz P.W. admitted that he was son of brother of Muhammad Shafi complainant.

8. Allah Ditta P.W.9, real brother of the complainant deposed about having witnessed the recovery of daggers P.1 and P.2 from Abdur Razzaq and Ijaz alias Jaju appellants respectively. He denied that his family had a long‑standing enmity with the brother of Abdur Razzaq appellant. He denied that his brother Muhammad Shah complainant had got a case registered in 1975, against Muhammad Anwar, a brother of Abdur Razzaq appellant. The suggestion that he had not witnessed the recoveries of daggers, was also denied by him.

9. Khushi Muhammad, S.I./S.H.O. P.W.10, gave the account of investigation and the recoveries of weapons of offence effected at the instance of both the appellants. During cross‑examination, he stated that Exh.D.E. is a correct copy of F.I.R. No.187/75 according to entries in original register of F.I.Rs. pertaining to the year 1975. He added that the accused in that case were acquitted on account of compromise between the parties. He denied that he had planted the recoveries upon the appellants.

10. Both the appellants denied the prosecution case, as a whole, during their statements under section 342, Cr.P.C. Both of them took up the plea that they were involved due to enmity. Abdur Razzaq appellant added that the enmity had resulted due to occurrence which took place in 1975, as a result of which F.I.R. No. 187/75 was registered, of which Exh.D.E. is copy.

11. Learned counsel for the appellants contended that the prosecution has failed to prove the :votive: that the only two eye‑witnesses produced at the trial were related, interested and inimical; that the evidence of recoveries of weapons of offence, is not worth reliance as apart from the same having been deposed to by related and interested witness, his statement is contradictory to the statement made by the Investigating Officer on a material point. Learned counsel contended that the involvement of Abdur Razzaq appellant in the case appears to be due to the enmity between the parties which had resulted due to the occurrence which had taken place in 1975 between the complainant and Abdur Razzaq's brother, the case regarding which was also registered. In the alternative, learned counsel argued that the occurrence appears to have errupted suddenly for some reason and that the seat and nature of injuries show that the appellants had no intention to commit the murder. Learned counsel submitted that at the best Ijaz appellant can be held liable for having committed the offence under section 304, Part 1, P.P.C, for causing fatal injury, while Abdur Razraq appellant can be held liable for having committed the offence under section 326, PT.C.

12. Learned counsel for the State/complainant defended the judgment of the trial Judge, and submitted that the prosecution has succeeded in proving the case against the appellants.

13. Learned counsel for the complainant neither argued the revision petition (Criminal Revision No. 634 of 1984) nor did lie press the same.

14. Except the statement of P.W.8, no other witness has stated anything about the incident which is alleged to have taken place at 9‑00 a.m. between the deceased and the appellants, in that, also, he did not claim to have witnessed the incident himself. He explained that details of the incident had been told to him by his deceased son whereafter he had admonished his son as well as the appellants. He conceded that he had not seen any girls being teased. He also conceded that I no girl had appeared before the Investigating Officer in support of the allegation of having been teased.

15. The evidence on record does not leave any room for the prosecution to argue that some incident of teasing of girls had taken place on the day of occurrence, because the complainant himself did not stick to the version given by him in the first information report about happening of the incident. His statement at the trial that on having been told by his son about the incident he had admonished his son as well as the appellants, shows that the fault did not lie for the said quarrel on the shoulders of the appellants alone again if the story that the deceased had stopped the appellants from teasing girls and exchange of abuses had resulted due to that, had been correct, the complainant would not have admonished his son because in that case he could not have been blamed for any bad or untoward thing. The statement made by the complainant that he had not seen any girl there and the admission made by him that no girl had appeared during the investigation with the allegation of having been teased by the appellants, further lends support to the view that such an incident may not have happened at all. I am, therefore, inclined to agree with learned counsel for the appellants that the prosecution had not succeeded squarely to prove the motive set up for the occurrence.

16. The contention of learned counsel for the appellants that no reliance can be placed on the testimonies of Muhammad Shat and Muhammad Riaz P.Ws. on account of their being related, has not impressed me. No doubt both of them are related inter se, as well as to the deceased but that alone is not sufficient to discard their testimonies. The only previous history of strained relationship between the eye‑witnesses and the family of Abdur Razzaq appellant, mentioned at the trial, was the registration of case at the instance of the complainant against his brother in 1975. Nothing pertinent was brought out about any incident of enmity between the complainant and Ijaz appellant. The case which was registered in 1975 at the instance of Muhammad Shafi against Muhammad Anwar brother of Abdur Razzaq, had also ended in acquittal as a result of compromise and no incident between the parties had taken place thereafter, till 1982. The said enmity, if it ever existed, had apparently thus died. Moreover, if the complainant was to involve somebody for avenging that incident he would have named Muhammad Anwar instead of naming his brother Abdur Razzaq who was not liable for the earlier occurrence and must have been then only 12‑13 years old. Apparently nothing turns out from the sifting of the evidence to hold that the parties had any long‑standing enmity or hatred against each other. The statements made by these witnesses, therefore, cannot be thrown away for any such reason.

17. No doubt, Allah Ditta P.W.9 who had witnessed the recoveries of blood stained weapons of offence at the instance of the appellants, is related, to the deceased but that alone again is not sufficient to discard his testimony. The discrepancy pointed out by learned counsel for the appellants between his statement and that of the Investigating Officer, about their having met or not, in the Baithak of Yusaf, in my view, is not enough to set at naught the evidence of recoveries of weapons of offence. The recoveries of weapons of offence which were found blood‑stained, therefore, lend support to the ocular account. The participation of the two appellants in the occurrence, thus, stands proved without any shadow of doubt.

18. The deceased had died as a result of cut of femoral veins and branches of femoral artery under‑death the incised wound, on the back of left thigh upper part, i.e. injury No.6. According to opinion of the doctor, this injury was sufficient to cause death in the ordinary course of nature. No other injury had contributed towards death of the deceased. The said injury has been specifically assigned to Ijaz alias Jaju appellant. The important question that arises in this‑ case for decision is, as to whether the provisions of section 34, P.P.C. are attracted or not in the commission of offence under section 302, P.P.C. It was held in Akhtar Khan, etc. v. The State P L D 1972 Lah.19 that: "Mere presence of all accused at scene of offence not ipso facto sufficient to render them all equally liable‑‑Common design essential condition before rule contained in section 34 could be made applicable." The result of joint action by more than one person does not always necessarily mean an action performed with a common object. Someone of them, can, of his own, take some drastic steps at the spur of the moment. Existence of common intention has to be determined from such known facts and circumstances which existed before the commencement of the criminal act and also from the community of interest shown while committing the crime. In order to make a person constructively liable for murder under section 34, P.P.C. it has to be proved that he had the intention of committing murder in common with person or persons, who actually committed it. It was observed in 50 I.C. at page 337: "It is obvious that the mere fact that a man thinks a thing likely to happen is vastly different from his intending that thing should happen. The latter ingredient is necessary under section 34, the former by itself is irrelevant to the section. It is only when a Court can with some judicial certitude hold that 8 particular accused must have pre‑conceived or premeditated the result which ensued, or acted in concert with others in order to bring about that result, that section 34 may be applied. "

19. The shag of common intention by an accused with his co‑accused who causes the fatal blow, can also be assessed from the motive that he might have for the occurrence, instigation provided during the occurrence like exhortation, the acts done and the part played by him during the commission of crime. 1n the case in hand, the prosecution, according to my assessment has not been able to prove the motive set up for the occurrence. As recapitulated above, the injuries on the deceased except injury on the abdomen, which has not been assigned to any of the appellants, were on non‑vital parts of the body. The injuries particularly assigned to Abdur Razzaq appellant are of much less significance, although one of them on the palm was declared grievous. He seems to have discretely avoided causing injuries on vital parts of the body which could have proved fatal. This happened in spite of the fact that according to both the eye witnesses he had caused injuries to the deceased even after he had fallen on the ground and the on‑lookers kept standing on as helpless beings. Even otherwise except the statement Made by the witnesses that both the appellants were friends, no community of object or deep relationship inter se for joining hands to take away the life of the deceased has been brought on record. In the circumstances, the safe administration of justice in this case would be to hold that Abdur Razzaq appellant had no common intention with his co -accused Ijaz alias Jaju for committing the murder. His conviction, therefore under section 302/34, P.P.C. is set aside. He is instead convicted under section 326, P.P.C. and is sentenced to undergo R.I. for ten years plus to pay a fine of W Rs.5,000 in default whereof to suffer further R.I. for one year. Whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. The conviction and sentences of Ijaz alias Jaju appellant under section 302, P.P.C. are maintained. The appeal qua him stands dismissed. Both the appellants shall be given benefit of the provisions of section 382‑B of the Code of Criminal Procedure:

20. Criminal Revision No.634 of 1984, filed by the complainant is dismissed being without merit.

21. Both the appellants are on bail. They shall be caused to be arrested through non‑bailable warrants and lodged in jail for undergoing their remaining sentences. SA./A‑425/L Appeal partly accepted.