1969 PLP 885 (SCMR)

CORNELIUS, J.‑Criminal Appeals No. 29 of 1954 by Noor Muhammad and No. 30 of 1954 by Muhammad Yaqub arise out of the same judgment of the Lahore High Court, and may be con veniently dealt with together. The prosecution case was a simple one. Noor Muhammad along with two other co‑accused named Siraj Din and Siddiq belonged to one party of wrestlers in Lyallpur The deceased Feroze Din and his companions Ghulam Muhammad belonged to another party with whom Noor Muhammad's party had had a quarrel some two days before the murder, which took place on the evening of the 17th May 1953. There is ample evidence to show that Noor Muhammad and the other accused persons came together into the chowk of Aminpur Bazaar, and seeing Feroze Din and Ghulam Muhammad, some members of Noor Muhammad's party made a noise in imitation of the bleating of a he‑goat. This was intended as a challenge to the enemy and immediately Noor Muhammad and his companions attacked and chased Feroze Din and Ghulam Muhammad. The pro secution evidence of the occurrence contained in the statements of Ghulam Muhammad and three others, namely, Ghulam Hussain, Din Muhammad and Sardar Muhammad and Muhammad Yaqub dealt with Feroze Din while Siddiq and Siraj attacked Ghulam Muhammad, Muhammad Yaqub seized Feroze Din and succeeded in pinioning his arms behind his back, and when he was thus rendered helpless, Noor Muhammad pro duced a knife and inflicted more than one blow, the results being a deep stab wound in the abdomen, a cut on the top of the right shoulder and a scratch on the left temple. Ghulam Muhammad was caught around the waist by Siddiq and Siraj Din stabbed him in the left thigh causing a superficial injury. Feroze Din became unconscious on receiving the injury and died about half an hour after being taken to the hospital in Lyallpur, without regaining consciousness. A report was made to the police and investigation was commenced without delay. In the course of the investigation, at the instance of Noor Muhammad, a knife was dug up from a place of concealment. It was broken into two parts and bore no traces of blood, but there is evidence to the effect that the knife employed by Noor Muhammad to stab Feroze Din was similar to this weapon. This dimensions of the knife appear from the document Exh. P. G. and show that it was a truly formidable instrument. The handle which was of iron sheet overlaid with bone was no less than 10" in length and 1" in breadth. The blade was 7 1/2 " long and 1 1/2" broad. The plea in defence was false implication, and no evidence was led by arty accused person. It should be mentioned that two of them bore injuries. Muhammad Yaqub had a scratch 1 1/4" in length on his right forearm which he said was due to the fall of a corrugated iron‑sheet at his own shop, and at the trial, his counsel was careful to obtain from the doctor who was called to prove this injury, an admission that it could have been caused in the manner stated by Muhammad Yaqub, Siraj Din accused had two injuries, a cut 1" in length on the little finger of the left hand under which the bone was out, and a scratch 1/2" in length on the adjoining finger. He suggested that he had received this injury at the hand of some unknown person when he joined the crowd which had collected after Feroze Din had been stabbed. The trial Judge, in agreement with the unanimous view of the four assessors, convicted each of the accused persons under section 302 and section

324. P. P, C. read with section 34, P. P. C. Noor Muhammad was sentenced to death and the other three to transportation for life, for the offence of murder. Sentences of imprisonment were awarded to each of the convicts under section 324, P. P. C. There was an appeal in the High Court where a materially different view was taken of the facts. The learned Judges held that it was "not conclusively established that all for accused shared a common intention to murder Feroze Din." They thought that there was no sufficient motive for any of the accused persons to murder Feroze Din and went on to observe as under :‑ "The quarrel between these accused and Feroze Din had been comparatively trivial one and the parties had had two days to cool down. It is, therefore, possible that, as pointed out by the defence, the occurrence was not premeditated, but arose out of a chance encounter between the accused and the deceased." With reference to the injuries of Muhammad Yaqub and Siraj Din, the following observation was made "The presence of injuries on the persons of Muhammad Yaqub and Siraj Din also go to support the prosecution story that they took part in the incident, though the prosecution witnesses do not say how those injuries were received. It is particularly, to be noted that neither of these accused put forward a plea of self-defence, but on the contrary alleged that they were injured in the manner referred to above, namely, Muhammad Yaqub at his shop and Siraj Din by some unknown person." Following upon these conclusions the conviction of Siddiq and Siraj Din under section 302, P. P. C. was set aside, but their conviction under section 324, P. P. C. was upheld, the sentence awarded to Siddiq being reduced while that of Siraj Din was maintained. As regards the offence in relation to Feroze Din, the learned Judges maintained the conviction of Noor Muhammad under section 302, P. P. C. and the sentence of death awarded to him, but as regards Muhammad Yaqub they came to the conclusion that he was free of intention to kill Feroze Din. The conclusion is expressed in the following words :‑ "We do not consider that it would be safe to ascribe to him any intention other than that of inflicting grievous injury on the deceased. Although he held Feroze Din while Noor Muhammad stabbed him, Muhammad Yaqub may not have known that Noor Muhammad intended to inflict an injury on a vital part of the body." For this reason Muhammad Yaqub's conviction was altered to section 326, P. P. C. read with section 34, P. P. C. and the sentence was reduced to seven years' rigorous imprisonment. Leave to appeal was granted in this case on considerations arising out of the expressions reproduced above from the judg ment of the learned Judges, which convey their view of the facts and the consequential criminal liability of the various partici pants. Certain of these expressions, particularly the reference to a "chance encounter" and the specific mention of the failure of the prosecution witnesses to explain how Muhammad Yaqub and Siraj Din had received their injuries, were represented as afford ing a sufficient foundation for the conclusion that, as respects the fatal attack on Feroze Din, the case was covered by the terms of exception 4 to section 299, P. P. C., i. e. that it was a sudden fight following a chance encounter which had led to a sudden quarrel, and there being a practical equality of injuries on the two sides, the other conditions of the exception were also satis fied. Although false implication had been pleaded, certain questions to the eye‑witnesses in cross‑examination were addressed to the possibility of the affair not being a one‑sided attack by the accused persons but an equal fight, between the two parties. It appeared also that if the circumstances could justify the belief that Muhammad Yaqub who pinioned the arms of Feroze Din from behind so as to render him completely helpless while Noor Muhammad stabbed him from in front, could not be thought, beyond reasonable doubt, to have intended or known that a fatal blow should be struck or was likely to be struck with a knife by his companion, the latter also might, on the facts, be able to plead such a doubt in his own favour. When the record of the case is examined, with the assistance of counsel, it appears that however the case may be in relation to Muhammad Yaqub, Noor Muhammad's intention could not have been other than that of causing a necessarily fatal injury to Feroze Din. A thrust in the body with a knife is always dangerous to life. In this case the knife was of a most unusual and formidable nature; its dimensions have already been mentioned. It weighed one pound. Quite obviously, a blow struck with such a weapon in the region of the chest or in the soft structures of the abdomen could only fail to cause death in a very remote case. As to the nature of the incident, the statements of the eye witnesses clearly exclude all possibility of a two‑sided fight and even of any resistance being offered by either Feroze Din or Ghulam Muhammad. It may be that it was by mere chance that Noor Muhammad and his friends saw Feroze Din and Ghulam Muhammad in the chowk but there is no hint of there having been a quarrel, much less a two‑sided fight. It is clear on the evidence that the challenge came from the accused persons and was followed immediately after by an attack, and that Feroze Din and Ghulam Muhammad met the attack by flight, offering no resistance, verbal or otherwise. In the circumstances, it does not appear that there was any burden upon the prosecution to explain how Muhammad Yaqub and Siraj Din came by their injuries, nor was it necessary to rely upon these injuries in proof of their participation in the attack. As to Muhammad Yaqub's injury; the defence, even at the trial stage, persisted in the allegation that it was received otherwise, in an accident. In the absence of anything in the prosecution evidence which could serve to indicate in the slightest degree that Siraj Din received his injuries at the hands of Ghulam Muhammad, the prosecution case is in no way, prejudiced by the failure to provide an explanation for it. The conviction of Noor Muhammad under section 302, P. P. C. would therefore appear to be correct. As for Muhammad Yaqub, it was urged that the learned Judges, having held him free of intention to kill Feroze Din, had no substantial ground on which they could conclude that his intention ways not merely that simple hurt should be caused to Feroze Din. The inference would appear to be conclusively avoided by the consideration that the appearance of Noor Muhammad's weapon should by itself have been an indication to his collaborator Muhammad Yaqub that what was intended went far beyond the mere causing of simple hurt. For these reasons, w:, dismiss these appeals. Appeal dismissed.