1987 PLP 1223 (SCMR)

Date of hearing: 14th April, 1987. JAVID IQBAL, J.‑‑ Tawab Gut appellant armed with dagger and his brother Fazal Gut appellant armed with knife, were tried by the Additional Sessions Judge, Mardan under section 302/34, P.P.C. for causing the murder of Sher Ali aged 27‑28 years by stabbing him with dagger and knife, but vide judgment, dated 25th January, 1978 of the Additional Sessions Judge, they were acquitted. The State filed an appeal against their acquittal under section 417, Cr. P. C . which was accepted by a Division Bench of the Peshawar High Court Peshawar vide judgment, dated 11th November, 1979, and as a result both Tawab Gut and Fazal Gut were convicted under section 302/34, P.P.C. and each of them was sentenced to imprisonment for life plus fine of Rs.2,000 or in default to further undergo six months' R.I. with the direction that if the fine was realised from them it should be paid as compensation to the heirs of the deceased. This judgment disposes of the direct appeal preferred by the convicts against their conviction and sentence awarded to them by the Peshawar High Court, Peshawar. The occurrence took place on 15th October, 1966 at Deegarwela in village Inzargai in front of the shop of one Fazal Shah carpenter at a distance of one mile from Police Station Katlang, District Mardan. An F.I.R. was got registered on the same day at 6 p.m. at Police Station Katlang by Asad Khan P.W.5 collateral of the deceased. It was stated in the F.I.R. that on the fateful day Asad Khan P.W, was present at the shop of one Fazal Shah carpenter while Sher Ali deceased was standing in the street at some distance. In the meantime both the appellants Tawab Gut and Fazal Gut arrived there. Fazal Gut appellant said to Sher Ali deceased as to why he was demanding money from him, Then simultaneously Fazal Gut appellant attacked the deceased with his knife and the blows hit him on his chin and left shoulder. Then Tawab Gut caused injuries to him from behind with his dagger and the blows fell on his left hand and left shoulder.. When both the appellants tried to escape from the scene of crime Asad Khan P.W. succeeded in apprehending Tawab Gut appellant, but Tawab Gut appellant caused an injury with his dagger on the finger of the right hand of Asad Khan P.W. and thus got himself free. Thereafter, he too ran away alongwith Fazal Gut appellant in the direction of their house. The occurrence was also witnessed by Akbar Ali (not produced). Rehmatullah (not produced as he was alleged to have been subsequently murdered by Fazal Gut appellant in the present case) and Muhammad Jan P.W.6 cousin of Asad Khan P.W., who were present there. The motive for the commission of the crime was that Fazal Gut appellant owed some money to Sher Ali deceased and Sher Ali deceased had demanded from Fazal Gut appellant the repayment of the loan. This annoyed both the appellants and it led to the present occurrence. Dr. Abdul Ghafoor Khan P.W.11 medically examined Asad Khan P.W. on 16th October, 1966 and found on his person two incised wounds on right little finger and right fore‑finger. The injuries were caused by sharp‑edged weapon within 24 hours and were simple in nature. The post‑mortem examination on the dead body of Sher Ali deceased was conducted by Dr. Said Tahir Shah whose report was proved by Dr. Abdul Ghafoor Khan P.W. as he was not available at that time. According to the post‑mortem report Sher Ali deceased had four incised injuries on his person out of which two were muscle deep and two were cavity deep on the front of upper chest and on the left side of the chest. The chest injuries were individually sufficient in the ordinary course of nature to cause death. Death had occurred due to shock and haemorrhage from these injuries which had been caused by sharp‑edged and pointed weapon. The prosecution produced two eye‑witnesses of the occurrence namely Asad Khan P.W. collateral of the deceased who himself had sustained injury in the course of the occurrence and Muhammad Jan P.W. cousin of Asad Khan P.W. It may be noted that both the appellants appeared to have absconded as Fazal Gut appellant was arrested on 13th December, 1974 whereas Tawab Gut appellant was arrested on 1st March, 1976. There are no recoveries in this case. Consequently, the case of the prosecution is based mainly on the ocular testimony, of two eye‑witnesses, namely, Asad Khan and Muhammad Jan P.Ws. Fazal Gut appellant in his statement before the trial Court gave his own version of the occurrence. He stated that Sher Ali deceased was running a gambling den in which while gambling he had lost money to him. On the day of occurrence while he was proceeding to his house alone, Sher Ali deceased being a desperate person asked him to give him back the money lost by him, otherwise he would take off his Shalwar and kill him. On the refusal of Fazal Gut appellant, Sher Ali deceased whipped out a knife and attacked him. But Fazal Gut appellant succeeded in dodging the knife blow. However, before Sher Ali deceased could give him another blow and apprehending danger as well as disgrace at the hands of Sher Ali deceased, Fazal Gut appellant disabled him in order to save his life. Then Sher Ali deceased again persued him and attempted to give him a knife blow but he again avoided it and managed to run away from the spot. Tawab Gut appellant denied having participated in the occurrence and stated that on the day of occurrence ‑he was not present on the spot and that he was not even present in the village. Both of them did not produce any defence. As is evident Fazal Gul appellant did not deny the occurrence. He only gave his own version of the same and raised the plea of self‑defence which has not been accepted by the learned Division Bench of the Peshawar High Court. Learned counsel for the appellants took us through the ocular testimony in the instant case. While referring to the cross‑examination of Asad Khan P.W. he argued that according to this witness Fazal Gut appellant as well as the deceased both were gamblers. He had stated that when he first noticed them, the deceased had asked Fazal Gut appellant to pay up his money, otherwise he would take off his trousers. He further stated that it was at this stage that Fazal Gut appellant gave him blow with his knife. Learned counsel particularly relied on the following portion of the cross‑examination of this witness: "I had seen a knife in the hand of Sher Ali only when he was attacked by Fazal Gut accused." On the basis of this statement of Asad Khan P.W. learned counsel for the appellants argued that the version given by Fazal Gul appellant about the way how the occurrence had taken place was the correct version. According to the learned counsel both of them were gamblers and as stated by Fazal Gut appellant the deceased might have demanded back from him the money which he himself had lost while gambling with him. On this the deceased tried to attack him but he warded off the attack and thereafter in the exercise of his right of self‑defence he disabled the deceased from persuing him. Thus, according to the learned counsel the right of self‑defence was available to Fazal Gut appellant in the circumstances of the case. Then learned counsel referred to the statement of Muhammad Jan P.W. made by him while being subjected to cross‑examination. He had stated that it was wrongly recorded in his statement under section 164, Cr.P.C. that after demanding return of loan Sher Ali deceased on the one side and the appellants on the other exchanged hot words, and since the appellants were annoyed, in the heat of passion Fazal Gut appellant gave knife blows and Tawab Gut appellant gave dagger blows to the deceased. Thus, according to the learned counsel if abusive language was used by the deceased and he was seen holding a knife by his own collateral Asad Khan P.W., then the appellants were left with no other alternative except to defend themselves. We have considered the arguments of the learned counsel for the appellants. It is evident from the testimony of Asad Khan P.W. that a knife was seen in the hand of Sher Ali deceased when he had been attacked by Fazal Gut appellant. On the other hand Muhammad Jan P.W. had stated in the cross‑examination that it was incorrect to suggest that the deceased was also armed with a knife. This witness further stated that it was also incorrect to suggest that when the appellants came, the deceased threatened them with a knife. It may also be noted that none of the appellants had sustained any injury in the course of the occurrence. So far as the eye‑witnesses are concerned they may be distantly related to the deceased but there is nothing on the record to show that they were hostile towards the appellants. In any case the ocular testimony is apparently quite natural and consistent about the way how the attack was launched by the appellants on the deceased. The eye‑witnesses has no enmity with the appellants and, therefore, had no motive to falsely implicate them. Furthermore, the ocular testimony finds support from the medical evidence as well as the motive version. Even Fazal Gul appellant does not deny that the occurrence did not take place. He admits participation in the occurrence except that he gives his own version of the same which has rightly been rejected by the appellate Court. Furthermore, both the appellants had absconded after the occurrence. Fazal Gut was arrested 8 years after whereas Tawab Gut was arrested 10 years after the occurrence. The factor of their absconsion must also not be ignored as it supports the prosecution version. Lastly it was argued by the learned counsel that the occurrence in this case had taken place long before 1972 i.e. when the Law Reforms Ordinance 1972 was introduced. At the time of the occurrence the sentence which could be awarded under section 302, P.P.C. was transportation for life and not life imprisonment as it has been awarded to the appellants in the present case by the Peshawar High Court, Peshawar vide its judgment, dated 11th November, 1979. Learned counsel while relying on PLD 1977 SC 548, Muhammad Hussain Shah v. State as well as PLD 1976 SC 557 Noor Ilahi v. Zafarul Haq submitted that the imposition of life imprisonment on the appell&nts in this case was illegal as the punishment provided in section 302, P.P.C. for the offence of murder at the time when the occurrence took place was transportation for life. It was, therefore, prayed that since penalty to be imposed for a murder committed prior to the promulgation of the Law Reforms Ordinance was transportation for life, the sentence of life imprisonment awarded to the appellants in this case be altered to transportation for life and they should also be given the benefit of the provision of section 382‑B, Cr.P.C. at the time of computation of their sentence for transportation for life. Since the ocular testimony in the instant case is supported by the medical evidence, the motive version as well as to some extent by the statement of Fazal Gut appellant himself coupled with the factor of their absconsion, we maintain the conviction of the appellants under section 302/34, P,P.C. But since the murder of the deceased had taken place in 1966 at the hands of the appellants prior to the promulgation of the Law Reforms Ordinance 1972, the sentence of each of them is hereby altered from imprisonment for life to transportation for life. The sentence of fine however is maintained. The jail authorities are directed to grant the appellants the benefit', of the provisions of section 382‑B, Cr.P.C. at the time of computation' of their sentence for transportation for life. With this modification the appeal is dismissed. M . B. A. /T‑11/S Appeal dismissed.