1987 PLP 1552 (SCMR)

SAAD SAOOD JAN, J.‑‑For causing the death of Muhammad Nawaz Bhatti and making murderous assault upon Haq Nawaz Bhatti and Haq Nawaz Daya, four persons, namely, Khuda Bakhsh, Muhammad Shafi, Rahim Bakhsh and Hassan Bakhsh were put on trial on charges under sections 302 and 307, read with section 34, of the Pakistan Penal Code. The learned Additional Sessions Judge who tried them found that provisions of section 34 were not applicable and each of the accused was responsible for his own individual act. Accordingly, he convicted Khuda Bakhsh of an offence under section 302 for inflicting the fatal injury upon the deceased and sentenced him to imprisonment for life and a fine of Rs.2,

000. He convicted Muhammad Shafi of an offence under section 323 for causing a simple injury to the deceased and sentenced him to suffer rigorous imprisonment for a period of three months and fine. He convicted Rahim Bakhsh of an offence under section 325 and Hassan Bakhsh of an offence under section 323 for causing a grievous injury to Haq Nawaz Bhatti and for causing a simple injury to Haq Nawaz Days, respectively, and sentenced them to short terms of imprisonment. From the judgment of the learned Additional Sessions Judge only Khuda Bakhsh and Rahim Bakhsh filed appeals in the High Court. A learned Single Judge maintained the conviction and sentence of Rahim Bakhsh but accepted the appeal in so far as it related to Khuda Bakhsh. He acquitted him of the charge under section 302 but convicted him of an offence under section

325. For this offence he sentenced him to the period of imprisonment already undergone by him and a fine of Rs.1,000f‑. Ashiq Muhammad, paternal uncle of the deceased, who had lodged the first information report, has filed this petition for special leave to appeal to challenge the acquittal of Khuda Bakhsh of the offence under section 302.

2. All the persons accused in this case are closely related. Khuda Bakhsh and Hassan Bakhsh are real brothers and Rahim Bakhsh is their first cousin. Muhammad Shafi is the so of Rahim Bakhsh.

3. It was alleged by the prosecution that both Muhammad Shafi and Haq Nawaz Daya (PW‑10) were interested in the same girl of the village. A day before the occurrence they quarrelled at the shop of one Muhammad Bakhsh. The deceased was present on the occasion. He intervened and separated them. Muhammad Shafi felt annoyed with the deceased over his interference in the matter.

4. It was further alleged by the prosecution that on the morning of 25‑4‑1977, at about 8.00 or 9.00 a.m., Had Nawaz Bhatti (PW‑9) and Haq Nawaz Days (PW‑10) started for the textile mill where they were employed. When they reached near the house of one Kala Panwar they encountered the four accused persons who were variously armed. Thus, Muhammad Shafi had a hatchet, Rahim Bakhsh had an iron bar while Khuda Bakhsh and Hassan Bakhsh were carrying Dangs. The four accused persons attacked Haq Nawaz Bhatti and Haq Nawaz Days. In the meanwhile the deceased also came there. When he tried to intervene Muhammad Shafi struck him with the wooden handle of his hatchet while Khuda Bakhsh gave him a Dang blow on the head. The deceased became unconscious and was removed to the hospital where he died on the same day at about 2.45 p.m. The in cident was reported by Ashiq Muhammad to a Sub‑Inspector of Police whom he met on the way to the local police post.

5. The post‑mortem examination of the deceased revealed that he had two injuries, both located on his head. One was a lacerated wound on the right side of the midline and the other was a swelling in front of the right ear. On dissection the doctor found that the parietal and temporal bones had been fractured and the brain on the right side had been compressed.

6. At the trial all the accused persons pleaded not guilty to the charges against them. Rahim Bakhsh made a detailed statement giving the defence version of the occurrence: He stated that the deceased was a goldsmith by profession and he had got some bangles made from the latter on the occasion of the marriage of his daughter. He owed Rs.10 to the deceased on this account. On the day of occurrence the deceased met Muhammad Shafi and Khuda Bakhsh and demanded from Muhammad Shafi the amount which was owing to him. When Muhammad Shafi expressed his inability to make the payment on the spot there was an altercation which attracted. Haq Nawaz Bhatti (PW‑9) and Haq Nawaz Daya (PW‑10) to the scene of occurrence. Both these witnesses were armed with Dangs. They injured them. The deceased picked up a Takwa from his shop. Muhammad Shafi and Khuda Bakhsh raised an alarm which attracted him and Hassan Bakhsh to the spot. The complainant party started beating him and the other accused. In order to save themselves they also inflicted some injuries on the deceased and the said two witnesses. None of the accused produced any evidence in defence.

7. It may be mentioned that besides Haq Nawaz Bhatti (PW‑9) and Haq Nawaz Daya (PW‑10) all the four accused persons were found to be bearing injuries on their persons after the occurrence.

8. The learned trial Judge disbelieved the motive as well as the defence version. He further held:‑ "I find that the origin of the fight is not known. Both the parties have suppressed the true facts culminating into the occurrence related to this case. In that case the accused persons cannot be held vicariously liable for the doing of each other. I, therefore, find that the accused shall be liable for their own individual act as attributed to them and established on the file." As he thought that the fatal blow had been inflicted on the deceased by Khuda Bakhsh he convicted him alone of the offence under section 302 of the Pakistan Penal Code.

9. On appeal the high Court did not disturb the finding of the trial Court that each of the accused was responsible for the injuries caused by him to the members of the complainant party. It however took the view that the fatal injury caused to the deceased was inflicted not by Khuda Bakhsh but by Muhammad Shafi. Accordingly, it acquitted Khuda Bakhsh of the charged under section 302 but convicted him of the offence under section 325.

10. It is contended on behalf of the petitioner that the learned Single Judge in the High Court who recorded the judgment in appeal was not right in taking the view that the fatal blow on the deceased had not been inflicted by Khuda Bakhsh. In support of this contention it is stated that the extensive fractures of the skull bones from which the deceased suffered could be caused only by a Dang blow and not by the handle of a hatchet. It is also contended that the sentence awarded to Khuda Bakhsh was in any case grossly inadequate.

11. The contentions raised in support of this petition need examination. Leave to appeal is granted. Bailable warrants of arrest in the sum of Rs.20,000 with two sureties in the like amount returnable to the Assistant Commissioner, Multan be issued against Khuda Bakhsh respondent. M.I./A‑67/S Leave granted.