P (PLP)

KHURSHID ZAMAN, J.‑Nazar Hussain, Mukhtar Hussain, Rustam Ali and Ali Muhammad .appellants were tried and convicted by the Additional Sessions Judge; Multan, under section 302/34 Pakistan Penal Code; for the murder of one Allah Bakhsh. Nazar Hussain was sentenced to death and the remaining three appellants to transportation for life. The 'convicts have appealed against their convictions and sentences and the case is also before us under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence of Nazar Hussain. The deceased as well as the appellants are goldsmiths of village Tolamba in the district of Multan. The allegation against the appellants is that on the 7th June 1950 at about midday they entered the shop of the deceased and in furtherance of their common intention murdered him. Twofold motive is alleged. Seven years before the occurrence Mst. Zubeda, real sister of the appellants, was betrothed to Muhammad Bakhsh (P. W. 13), brother of the deceased and in return the deceased's daughter Mst. Kaniz was betrothed to Mukhtar Hussain appellant. These engage ments were broken off some three or four ye are before the occurrence as Muhammad Bakhsh suspected the chastity of Mst. Zubeda and did not want to marry her. But the more recent incident which further embittered the relations between the parties happened on the 6th June 1950, that is to say, one day before the murder of Allah Bakhsh. It is said that Nur Muhammad (P. W. 7), a cousin of the deceased, used to tie his she‑ass in the compound of one Siraj‑ud‑Din with the latter's permission. On the 6th June he tied his she‑ass in that compound but later he found it wandering in the streets. He took it back to the compound and found a buffalo of Rustam Ali tethered at that place. Nur Muhammad untied the buffalo which led to an exchange of abuses and fist blows between Nur Muhammad, Allah Bakhsh, Muhammad Ali and Muhammad Bakhsh on the one side and Rustam Ali, Nazar Hussain and Mukhtar Hussain on the other. This incident was reported at the police station by Nur Muhammad. It is alleged that on the 7th June at about 12 noon the deceased, his brother Muhammad Bakhsh and their cousin Talib Hussain were working in their shop. Sardar Din (P. W. 14) and Muhammad Bakhsh (P. W. 6 in C. M's. Court) had also come there to have a smoke. All of a sudden Nazar Hussain and Rustam Ali armed with knives and Mukhtar Hussain and Ali Muhammad armed with a dang and a small danda, respectively, came and Ali. Muhammad appellant after shouting a challenge gave a dandy blow on the head of the deceased. Nazar Hussain then stabbed him in the back. When Muhammad Bakhsh P. W., rose to intervene, be was given two dang blows‑by Mukhtar Hussain while Rustam Ali is alleged to have held him. Talib Hussain P. W., caught hold of Nazar Hussain, lifted him up and then threw him on the ground. While falling his head struck against an anvil. The occurrence was reported at the police station promptly at 1 p. m. In the First Information Report all the facts stated above except the proposed marriages between Mst. Zubeda and Muhammad Bakhsh and between Mst. Kaniz and Mukhtar Hussain are mentioned in detail. When the report was being recorded at the Police station Nazar Hussain appellant presented himself at the local hospital. He was examined by Dr. Nur Ahmad who found a contused wound 2 " X 2" X " deep, situated obliquely on the left side of the head in front, close to middle line. There was haematoma all around it measuring 3" X 2 " irregular in shape. This injury was kept under observation and was eventually found to be of simple nature. Later in the day the doctor examined Muhammad Bakhsh (P. W. 13) and found three contu sions on his person. All the injuries were simple and caused by a blunt weapon. On the 8th June, 1950, Dr. Ghaus Muhammad, Assistant Surgeon, Khanewal, performed the post‑mortem examina tion on the body of Allah Bakhsh and found the following injuries :‑

1. One contused wound 1 " X " on the middle and front part of the head.

2. One contused area " X " about " above right eyebrow.

3. One penetrating wound 1 " X ", cavity deep just to the right of tip of right scapula. Lower lobe of the right lung was cut. In the opinion of the doctor death was due to shock and haemorrhage as a result of injury to right lung caused by a sharp pointed weapon. After registering the First Information Report, Assistant Sub‑Inspector Chaudhary Hakam Ali came to the shop and found mat (Ex. P. 5) threshhold (Ex: P. 6) and some earth stained with blood. He collected these articles and put them into a sealed parcel. On the 15th June, 1950, Nazar Hussain appellant produced a blood‑stained knife and a bamboo stick after removing a stack of bhoosa lying in the verandah of his house. The blood stained articles found in the shop and the knife and the bamboo stick recovered from, the appellant's house were sent for chemical examination. The report of the Imperial Serologist shows that all these articles were stained with human\blood. At the trial the appellants pleaded not guilty and Nazar Hussain appellant gave the defence version in his statement. He admitted that he had a quarrel with Nur Muhammad P. W. on the previous day, but not with the deceased who was not there. As regards the incident on the day in question he stated: "I was in possession of a courtyard where I used to tether my buffalo since long. Nur Muhammad, Allah Bakhsh deceased and Muham mad Bakhsh began to beat me in that ahata. I raised an alarm. I used my stick and they beat me. I caused injuries by a stick. Rustam my brother was attracted to the spot by my outcries to rescue me from the clutches of Allah Bakhsh and his companion Rustam caused an injury to the deceased with his knife. The other two accused Mukhtar Hussain and Ali Muhammad were not present at the time of the occurrence". Three witnesses were examined in defence. Siraj‑ud‑Din (D. W. J) is the owner of the compound in which the incident of the 6th June is alleged to have taken place. He stated that he had leased it to Nazar Hussain appellant on the 31st October, 1949 and that he executed the deed (Ex. D. F ) in his favour. He denied that he had ever leased this compound to Khalil P. W. He also denied that Nur Muhammad P. W. was permitted by him to tether his she-ass in that compound. The evidence of this witness is not very help ful as it does not throw any light on the incident in which the deceased received the total blow. The only defence witness who supports the version given by Nazar Hussain is Mst. Sattan, mother of the appellants. According to her evidence, the fight on the day of the occurrence took place in the house of Siraj‑ud‑Din. There is no material on the record to corroborate the assertion of the defence that the occurrence took place in the compound of Siraj‑ud‑Din (D. W. 1). Blood was found only in the shop of the deceased where; according to the prosecution case the deceased was attacked. We, therefore, cannot persuade ourselves to accept the version given by Mst. Sattan. Three witnesses have been examined by the prosecution as eye‑witnesses, namely, Muhammad Bakhsh, son of Bahadur (P. W. 13), Sadar Din (P. W. 14) and Talib Hussain (P. W. 15), and the statement of Muhammad Bakhsh, son of Sohna, made in the Court of the Committing Magistrate was transferred to the Sessions file as he was suffering from tuberculosis and was incapable of giving evidence at the trial. All these witnesses fully supported the prosecution case and gave the same account of the attack on the deceased as has been set out above. They unanimously stated that Ali Muhammad was the first to open the attack on the deceased with his danda and that Nazar Hussain stabbed him with his knife on the right side. It is true that Muhammad Bakhsh (P. W. 13) and Talib Hussain are closely related to the deceased, but the evidence of the other two witnesses, namely, Sadar Din and Muhammad Bakhsh, son of Sohna; is not open to that criticism. The learned counsel for the appellants, however, contended that the prosecution witnesses had not disclosed the real origin of the attack which resulted in the death of Allah Bakhsh deceased. He further contended that the motives alleged by the prosecution do not explain why Allah Bakash was made the principal victim of the attack. He pointed out that the proposed, Tnarri ages did not come off because Muhammad Bakhsh P. W. was un willing to marry Mst. Zubeda, sister of the applicants, and that Allah Bakhsh deceased had no direct concern in the cancellation of the betrothals. As regards the incident, which is alleged to have taken place on the 6th June in the compound of Siraj ud‑Din, the learned counsel argued that the presence of Allah Bakhsh deceased was not mentioned in the First Information Report which was lodged by Nur Muhammad P. W. about the incident (Ex. P. F.). The prosecution, however, examined three witnesses to prove the participation of Allah Bakhsh in the fight which took place on the previous day. They are Nur Muhammad (P. W. 7 ), Hakim Muhammad Ali (P. W. 8) and Muhammad Khalil (P. W. 12). Nur Muhammad, no doubt, is a nephew of the deceased, but the other two witnesses do not appear to have any connections with the deceased or his family. Both these witnesses stated that Allah Bakhsh had taken part in the beating which was given to some of the appellants during the incident which took place on the 6th June. Be that as it may, there is, in our opinion, other material on the record which lends support to the contention of the learned counsel for the appellants that the prosecution witnesses have not told the whole truth about the incident in which Allah Bakhsh deceased met with his death. Talib Hussain (P. W. 15) stated in his supplementary statement, dated the 22nd November, 1950 that he had seen Muhammad Nawaz running in the lane a few seconds before the occurrence from the direction of the shop of Allah Bakhsh. Although the witness did not accept the suggestion that Muhammad Nawaz was then being pursued by the appellants, the plan (Ex. P. O.) shows the course of the flight of Muhammad Nawaz and of his pursuit by the appellants. This means that during the investigation the story of the pursuit formed the first and important link in the chain of the prosecution case. Muhammad Nawaz mentioned in the supplementary state ment of Talib Hussain is a sister's son of Allah Bakhsh deceased and a co‑owner of the she‑ass which was the cause of the fight on the previous day. Allah Bakhsh referred to in that statement is the father of the appellants. The lane in which Muhammad Nawaz was seen running by Talib Hussain P. W. passes in front of the shop of Allah Bakhsh deceased. Muhammad Nawaz was cited as a prosecution witness, but was given up by the learned Public Prosecutor in the Court of the Committing Magistrate as having been won over.. This explanation for not examining Muhammad Nawaz as a prosecu tion witness does not appear to us to be convincing. Muhammad Nawaz, as stated above, was closely related to the deceased and there is no material on the record to suggest that he was not expected to tell the truth. The real explanation is to be found in the complete suppression of Muhammad Nawaz's pursuit by the appellants in the prosecution case as put in Court. The learned Public Prosecutor must have realised that adherence to the story of the pursuit might materially alter the complexion of the prosecution case and that the easiest way to avoid a possible awkward situation was to withhold the evidence of Muhammad Nawaz. It is however, difficult to escape the conclusion that the attack on the deceased was in some way connected with the pursuit of Muhammad Nawaz by the appellants. In the circumstances of the case, it is not unreasonable to presume that as the appellants passed in front of the shop of the deceased in their pursuit of Muhammad Nawaz, the deceased must have said pr done something which led the appellants to give up their pursuit of Muhammad Nawaz and turn their attention to him what actually happened is not disclosed by the prose cution witnesses. But, if the attack on the deceased was provoked, as in our opinion, it must have been, by something which unexpectedly happened immediately before it was launched, it is not possible for us to hold that Allah Bakhsh was stabbed by Nazar Hussain appellant in furtherance of a common intention of all the appellants to murder him. In this view of the matter we must reject the prosecution case that the appellants set out from their shop with the intention of murdering Allah Bakhsh. Indeed, when they ran after Muhammad Nawaz, the appellants could not possibly .have in their contemplation any interference on the part of Allah Bakhsh or the end to which it would lead. Therefore no question of section 34 arises and each of the appellants is responsible for his own individual act. The fatal stab blow was ascribed by all the witnesses to Nazar Hussain appellant and there is no reason to doubt their testimony on this point. From the location of the injury and the weapon used, it can be safely inferred that he intended to cause the death of Allah Bakhsh deceased. We have, therefore, no hesitation in upholding the conviction under section 302 of the Penal Code. But, as we have held that the attack on the deceased was not premeditated, the extreme penalty prescribed by that section is, in our opinion, riot called for. We accordingly commute his sentence to transportation for life. His sentence of death is not confirmed. In view of our finding that the fatal injury was not caused in furtherance of a common intention shared by Rustom Ali, Ali Muhammad and Mukhtar Hussain appellants, they cannot be held constructively liable for the act of Nazar Hussain and as the only charge against them is under section 302/34 Penal Code, we accept their appeal and set aside their convictions and sentences. They shall be set at liberty forthwith. We cannot close this judgment without expressing our strong disapproval of the course adopted by the learned Public: Prosecutor in giving up Muhammad Nawaz on the ground that he had been won over and thus withholding evidence which ‑was likely to affect the result of the case. Fortunately grave miscarriage of justice has been averted in this case by the admission of Talib Hussain P. W. to the effect that he had seen Muhammad Nawaz running in the lane a few seconds before the occurrence. It has been repeatedly pointed out that it is no part of the duty of the Public Prosecutor to secure convictions at any cost. On the other hand, he is expected to assist the Courts in coming to correct conclusions by placing all the material evidence before them. A. H. Appeal accepted.