1984 PLP 1062 (SCMR)

The prosecution case against the accused was that on 13‑7‑1975 Mst. Abida Pervaen (P. W. 11) was on way from her house to that of her sister's Mst. Sajida Begum, carrying cooked rice ; as chaliswan of Rahim Jan had been observed in her house that day. Mehrban accused intercepted and cut jokes with her. She returned to her house and complained. Fazal Karim (P. W. 9) her brother, went to the house of Mehrban and protested against his behaviour. There was an exchange of abuse. Fazal Karim (P. W. 9) visited the house of his sister Mst. Sajida Begum. Manzoor (P. W. 8) was already there. Shahzad Khan deceased, another brother of Fazal Karim and Mst. Sajida Begum also joined them. After some time Fazal Karim left the house of his sister for his own house. As he came out in the lane he was attacked by Mehrban armed with a hatchet and Sabir Hussain with a sots. On his alaram were attracted Shahzad Khan, Manzoor and Riaz. Shahzad Khan deceased tried to intervene when he was given blows by Mehrban and Sabir Hussain with their respective weapons as a result of which he (Shahzad Khan) later died. Shahzad Khan had two swellings on his forehead, one on the left side, the other on the right side which proved fatal. He had five other injuries on his person. Fazal Karim had a lacerated wound on the head, another on the lower lip and an abrasion. Sabir Hussain appellant denied his presence or participation in the occurrence and stated teat he was not present at all. As regards Mehrban he stated that while he was in the house on 13‑7‑1975 some unknown persons came to his house, accused him of having teased a girl, gave him a beating and he went to the Police Station and lodged a report which was proved as Exh. P. M. It was later that he learnt that Shahzad Khan was taken to be a thief by the Mohallahdars who had injured him with stones. He was implicated by the Police and the witnesses were opposed to him because of their connections with the complainant party. The trial Court believed the ocular evidence as corroborated by the medical evidence. The accused were found guilty under section 302/34, P. P. C. for causing the death of Shahzad Khan and under section 307/34, P. P. C. for attempting on the life of Fazal Karim. They were both sentenced to death for the first offence and to four years' rigorious imprisonment for the second, apart from the fine imposed. On appeal and while dealing with the question of confirmation of the death sentence the learned Judges in the High Court re‑examined the evidence and upheld the conclusions arrived at by the trial Court maintaining the convictions. As regards the sentence of death awarded to Sabir Hussain it was stated that "the two fatal injuries which led to the death of the deceased are attributed by the eye‑witnesses to Sabir Hussain appellant", and for that reason the death sentence awarded to Sabir Hussain was held to be proper and was maintained. For the same reasons the sentence of Mehrban who was not thus made responsible for any fatal blow was reduced to life imprisonment. The learned counsel for the convicts had then pointed out by reference to the statements nude by various witnesses that the observation of the learned Judges of the High Court with regard to the two fatal injuries the deceased was not quite correct for the evidence did not show the injuries had been inflicted by Sabir Hussain. Additionally, it was that Mehrban had made a grievance of the manner in which he had been dealt with by the complainant party and in support of his contention dad also produced a copy of the report lodged. In that background he would appear to be a victim of the high‑handedness of the complaint party and not involved in the case. So far as the merits of the conviction are concerned, it was found that it was a case where there was no background of enmity between the parties or ill‑will as such. There was no occasion to falsely implicate the accused or to unreasonably enlarge the charge. One of the victims of the assault namely Fazal Karim appeared as a witness and the other (Manzoor) happened to be a natural witness to the occurrence and third namely Riaz was a completely independent witness. Their description of the occurrence has been believed by the two Courts and finds support from the medical evidence. The report lodged by Mehrban does not detract from the consistency of their case. In the circumstances, the conviction of the accused on the charges was not held to be open to question on any plausible ground. Leave to appeal accordingly on this question was refused. On the question of sentence awarded to Sabir Hussain appellant it was noted and observed as follows "As regards the observation of the learned Judges of the High Court for maintaining the death sentence of Sabir Hussain, Riaz (P. W. 7) stated that Shahzad deceased tried to rescue his brother where upon Mehrban accused inflicted a blow on the left side of his head with the blunt side of the Hatchet'. As regards the blows given by Sabir Hussain he stated that Sabir Hussain accused also inflicted two blows on the nose and the shoulder of the deceased. Manzoor (P. W. 8) also stated that Shahzad deceased tried to rescue his brother whereupon Mehrban accused inflicted a blow on the left side of his head with the blunt side of his hatchet. Sabir accused inflicted stick blows on the nose and shoulder of the deceased. Fazal Karim (P. W. 9) the injured witness, also stated that Mehrban accused inflicted a hatchet blow on the left side of his head with the blunt side of his hatchet. Sabir accused inflicted stick blows on his nose and shoulder. We find that there is prima facie some merit in the contention of learned counsel for the appellants that at the trial the did not attribute the fatal blows to Sabir Hussain which fact alone was made the ground for confirming the death sentence. Leave is granted to the limited extent to examine the sentence of death awarded to Sabir Hussain on conviction under section 302/34, P. P. C." We with the assistance of the learned counsel having gone through the evidence have re‑confirmed the observations reproduced above with regard to the part attributed to Sabir Hussain appellant. None of lies witnesses including the injured one, attributed any fatal blow to him. Mehrban accused was given the benefit of the lesser sentence by the High Court on the assumption that there was no previous enmity, the flare up was sudden and that in that background Mehrban had not caused fatal blow to the deceased he deserved to be dealt with leniently. These considerations apply with more certainty and force to Sabir Hussain convict as compared to Mehrban. Learned counsel for State has not been able to controvert the foregoing position. That being so the sentence of death awarded to Sabir Hussain merited to be reduced. We accordingly partly allowed the appeal of Sabir Hussain on question of sentence only announced and passed the following order in that behalf at the conclusion of the hearing on 12‑6‑1984. "For the reasons to be recorded later the appeal is disposed of as under :‑ (i) that the conviction of Sabir Hussain under section 302/34 is maintained but his sentence of death is altered to imprisonment for life ; (ii) that the amount of fine awarded to him is enhanced to Rs. 10,000 (Rs, ten thousands only) or in default to undergo two years' R. I. Fine if realized, shall be paid to the heirs of the deceased (iii) that the conviction and sentence under section 307/34 are maintained. All the substantive sentences shall run concurrently. Benefit of section 382, Cr. P. C. shall be extended to the appellant Sabir Hussain while computing his total period of imprisonment." S. Q. Order accordingly.