P L D 1965 (W (PLP)

ABDUL HAMID, J.‑Mehnga, aged 45, his two sons Farid, aged 21 and Abdul Ghani, aged 19/20, and his brother Anwar, aged 23/24 were tried for offences under sections 302/34 and 323/34, P. P. C., by the learned Sessions Judge, Lyallpur, with the result that Mehnga and Farid were acquitted of all charges while Anwar and Abdul Ghani were convicted under section 302/34, P. P. C., and sentenced to transportation for life and death respectively. The allegation against them was that they, on the 31st of October 1962, at about 8 a.m. in Chak No. 56/G.B., in furtherance of their common intention committed the murder of Rafique, aged 35, by giving him blows with dang and bala (baton) and caused simple injuries to Sharif P. W. The condemned person and the convict have preferred an appeal to this Court against their conviction and sentence. The case is also before us under section 374, Cr. P. C., for confirmation of the death sentence imposed on Abdul Ghani appellant. This order will dispose of the appeal as well as the reference for the confirmation of the death sentence.

2. The facts of the prosecution case may shortly be stated as these: About fifteen days prior to the present incident Mehnga (acquitted accused) had an altercation with Rafique deceased and his relative Buta. During the course of the said altercation Mehnga was given a beating. The immediate cause which led to the present occurrence was that about a month before the present occurrence Nikka (P. W. 6) had purchased a she‑goat from Rafique deceased and his brother Sharif (P. W. 11) on the representation that it was pregnant. On the alleged day of the occurrence, i.e., 31st of October 1962, at about 8 a.m., Nikka P. W. repaired to the shop of Mushtaq P. W. and stated that the she‑goat purchased by him was not pregnant although Rafique deceased and his brother Sharif P. W. had represented (to) him to be so. In the meantime, Rafique deceased and Sharif P. W. arrived at the shop. At that time, they were carrying mutton for sale. Mushtaq Ahmad (P. W. 8), Ashiq Husain (P. W. 9) and Sardar Muhammad (P. W. 12) who were present at the shop, asked him to bring the she‑goat so that they should see it themselves. Accordingly, Nikka P. W. brought the she‑goat. At that time, he was accompanied by Anwar appellant. All of them, except Anwar, appellant, were of the opinion that the she‑goat was pregnant. Anwar appellant, however, insisted that it was not. At this, there was an altercation between Rafique deceased and his brother Sharif P. W. on the one side and Anwar appellant on the other. They were, however, separated. Thereafter, Nikka P. W. and Anwar appellant went away. A short while after Anwar along with his nephew Abdul Ghani and the other two who have been acquitted reached the shop of Mushtaq Ahmad where Rafique deceased and his brother Sharif P. W. were present. On reaching there, Mehnga (acquitted accused) shouted that they had come to avenge their grievances. Anwar appellant then gave a stick blow to Rafique deceased hitting him on his head. Abdul Ghani appellant also inflicted an injury with the baton Exh. P. 1 on his head as a result of which he fell down unconscious. Farid (acquitted accused) is also said to have given a dang blow to Sharif P. W. while Mehnga (acquitted accused) grappled with him and threw him on the ground. Thereafter, the appellants decamped.

3. Rafique deceased, who was in a precarious condition was rushed to Jaranwala Hospital, situate at a distance of seven miles from the spot, where they reached at about 10 a.m. Dr. Muhammad Ahsan, Medical Officer, Jaranwala, examined him and found the following two injuries on his person:‑ (1) Contused wound, 2" x ", bone deep on the right side of head, 4" above the right ear. There was fracture of right parietal bone. The patient was deeply unconscious with snoring respiration. Both pupils were dilated and did not react to light. Pulse was 52 B. P. 150/90. Temperature 97.4 F. H. (2) Contused wound, 1" x 1/8", bone deep, oblique on the right side of head, 3" above the right ear. In the opinion of the doctor injury No. 1 was dangerous and No. 2,was simple. The medico‑legal report is Exh. P. J. Muhammad Sharif P. W. then reached the Police Station Jaranwala and produced the medico‑legal report Exh. P. G. before the police and narrated the incident whereupon a case was registered at 10‑45 a.m. Later, at about 12 noon, Rafique deceased expired.

4. Doctor Muhammad Ahsan, who had originally examined him while alive conducted the post‑mortem examination on his body and found the two injuries already referred to above. In the opinion of the doctor, injury No. 1 was dangerous and No. 2 simple, both caused by blunt weapon. He was further of the opinion that the death was the result of compression of brain caused by fracture of the right parietal and temporal bones under injury No. 1, which was 'alone sufficient to cause death in the ordinary course of nature. He added that injury No. 1 could be caused by baton Exh. P.

1. The same doctor examined Sharif P. W. on the same evening and found six injuries on his person all being simple and caused by blunt weapon.

5. During the course of the investigation, Anwar Hussain Shah, A. S. I., P. W. 14 visited the spot and arrested all the four accused including the two appellants. Abdul Ghani appellant produced the baton, Exh. P. 1 before the A. S. I. which was found stained with blood. At the time of recovery, Hakim Ali (P. W. 4) was present.

6. As noted earlier, the learned Sessions Judge acquitted Mehnga and his son Farid on the ground that the evidence on record did not justify the inference that they had participated in the occurrence. He further held that the version of the prosecu tion that Mehnga had been given shoe‑beating about fifteen days prior to the occurrence had not been proved beyond reasonable doubt. He also held that the charge under section 323/34, P. P. C., qua the beating said to have been administered to Muhammad Sharif had not been substantiated and accordingly acquitted all of them of that charge.

7. At the trial, Nikka (P. W. 6), Muhammad Sharif (P. W. 7), Mushtaq Ahmad (P. W. 8), Ashiq Husain (P. W. 9) and Muhammad Sharif (P. W. 11) unanimously deposed that there was an altercation between Rafiq deceased and Muhammad Shard P. W. 11 on the one side and Anwar appellant on the other over the question whether or not the she‑goat purchased. by Nikka P. W. was pregnant. They further stated that after the parties were separated Anwar appellant, and Nikka P. W. left towards their houses and shortly after Anwar, accompanied by his nephew Abdul Ghani appellant and two others reached the spot. They added that Anwar appellant opened the attack by giving him a dang blow hitting Rafique deceased on the head followed by Abdul Ghani appellant who also inflicted an injury on the head of the deceased with a baton Exh. P. 1 as a result of which he fell down unconscious.

8. The allegation of the prosecution was denied by the appellants. Anwar appellant admitted that he had gone to the shop of Mushtaq Ahmad P. W. by chance where an altercation was in progress between Nikka P. W. on the one side and Rafique deceased and Sharif P. W. on the other with regard to the pregnancy of the she‑goat. He further stated that he expressed his opinion that it was not pregnant. At this, Rafique deceased and Sharif P. W: abused him and Rafique deceased attacked him with a chhury and that he himself picked up a baton lying nearby and attacked him in self‑defence. He denied that Abdul Ghani appellant was with him at that time. Briefly stated, his plea was that he had attacked the deceased with a baton in self -defence. Abdul Ghani appellant pleaded alibi and stated that he had been involved in the case on account of his relationship with Anwar appellant. They produced no defence.

9. As already stated, there is consensus of evidence that both the appellants came armed at the spot and belaboured the deceased as a result of which he died. It is common ground between the parties that the fight took place at the platform of the shop of Mushtaq Ahmad (P. W. 8). Mushtaq Ahmad P. W. is a Chowkidar of the village, and also runs a shop. He is absolutely a disinterested witness. Similarly, the evidence of Ashiq Husain P. W. 9 and Sardar Muhammad P. W. 12 does not suffer from any infirmity. They have categorically denied that at the time of altercation Rafique deceased attacked Anwar appellant with a chhury whereupon the latter injured him with a baton.

10. Hakim Ali (P. W. 4), is a Member of the Union Council. This witness was present at the time when the baton Exh. P: 1 was produced by Abdul Ghani appellant before the police which was taken into possession vide memo. Exh. P. B. The baton was found stained with blood, but the origin of the blood could not be determined due to disintegration.

11. For the reasons stated above, we have no hesitation in holding that Rafique deceased died as a result of a blow inflicted on him by Abdul Ghani appellant with the baton Exh. P.

1. Needless to add that Anwar appellant had failed to substantiate his plea that he alone caused the injury with the baton to the deceased in self‑defence.

12. The question for determination in this case is whether the appellants intended to cause the death of the deceased. It is apparent from the record that the motive for the murderous assault is inadequate. There was only a slight altercation between the deceased and Anwar appellant immediately before the occurrence. Abdul Ghani appellant was not even present at the time of that altercation. It is obvious that Anwar appellant felt offended and went home and brought Abdul Ghani appellant to the spot to teach a lesson to Rafique deceased and his brother Sharif P. W. Each one of them inflicted one injury on the head of the deceased. Unfortunately, the injury inflicted by Abdul Ghani appellant with a baton proved fatal while the blow given by Anwar appellant was simple in nature. Considering the inadequacy of the motive, we are of the opinion that the assailants, of the deceased neither intended to cause death nor knew that they were likely to cause death. We, are accordingly constrained to hold that the appellants at‑ the most intended to cause, grievous hurt to the deceased. We, therefore, partly accept the appeal and alter the conviction from section 302/34. P. P. C., to one under section 325/34, P. P. C., and sentence each of the to seven years' R. I. The sentence of death imposed on Abdul, Ghani appellant is not confirmed. K. B. A. Appeal partly accepted.