1989 PLP 892 (MLD)

(2) Fracture of 6th and 7th cervical vertebrae. (3) Membrane ruptured and congested. (4) Brain ruptured at the posterior part. (5) Spinal cord ruptured at 6th and 7th vertebrae.

9. From external as well as internal examination of the dead body, the Medical Officer is of the opinion that deceased Anwar Shah died due to shock as a result of injuries on brain and spinal cord by means of a blunt weapon like Lathi

10. The same Medical Officer examined Muhammad Hakim and found nine injuries on his person which were simple in nature and appeared to have been caused by blunt weapon like Lathi. The appellants have also not challenged this petition.

11. The case of the prosecution solely hinges upon direct evidence consisting of Muhammad Hakim (P.W.1), Wazeer Khan (P.W.4) and Shah Wazir (P.W.5). Out of these witnesses Muhammad Hakim is an injured person. The presence of injuries on his person leaves no room of doubt to prove that the incident did take place between the parties and was witnessed by him. Likewise the presence of Wazeer Khan (P.W.4) and Shah Wazir (P.W.5) who are natural witnesses is also not open to suspicion. No doubt recovery of crime weapons and blood‑stained clothes at the instance of appellant& is not satisfactorily proved as both the Mashirs, namely Muhammad Nawaz (P.W.6) and Abdul Sattar (P.W.7), have turned hostile, but the ocular testimony consisting of Muhammad Hakim (P.W.1), Wazeer Khan (P.W.4) and Shah Wazir (P.W.5) is sufficient to hold that the appellants were responsible for causing injures to deceased Anwar Shah and complainant Muhammad Hakim by means of sticks. As a rule witnesses are weighed and not numbered. It was obviously for this reason that the learned counsel for the appellants did not question the finding of learned Sessions Judge about the incident and role played by each of the appellants. He has, however, questioned the sentence awarded to appellants.

12. Admittedly there was no previous hostility between the parties. The incident took place all of a sudden without any premeditation. While discussing point No.3, the learned Sessions Judge has also observed as follows:‑ "On the basis of case‑law and facts of this case it is established beyond any reasonable doubt that present accused had no intention of committing murder of deceased. It is proved from the evidence that present incident had taken place all of a sudden. There was no premeditation on the part of accused to commit murder. It is also established from evidence that accused had taken up Lathis from the Wardat and gave blows to deceased Anwar Shah and caused injuries to complainant.". The question of common intention is a question of common inference to be drawn from the facts and circumstances of each case. As observed in Shahab Din v. The State P L D 1964 SC 177, when the accused commits murder on the spur of moment, such act is reckoned as his individual act and could not be described as joint act of all the other accused persons. The learned Sessions, Judge also took this view at page 14 of the judgment in the following words:‑ "I have, therefore, formed the opinion that this is a case where all of sudden on the spur of moment incident had taken place and, therefore, each of the accused is liable for the offence committed by him." While recording conviction, the learned Sessions, Judge convicted all the appellants for the offence under section 304 (II), read with 34, P.P.C. which is contrary to his own finding.

14. The help of Exception 4 to section 300, P.P.C. can be invoked if, and only if death is caused ‑‑ (a) without premeditation, (b) in a sudden fight, in the heat of passion upon a sudden quarrel, (c) without the offender's having taken undue advantage or acted in a cruel, or unusual manner, and (d) the fight must have been with the person killed.

15. According to the case of prosecution appellant Ayub was responsible for causing fatal blow to deceased Anwar Shah. The force with which the said blow was caused indicates that appellant Ayub knew that it was imminently dangerous that it must in all probability cause such bodily injury as was likely to cause death. Appellant Ayub was, therefore, rightly convicted for the offence under section 304(11), P.P.C. The case reported as Devraj v. The State P L D 1980 Kar. 246 is distinguishable.

16. Injury No. 1 to deceased Anwar Shah, which is grievous in nature, is attributed to appellant Hanif. He is, therefore, convicted for the offence under section 325, P.P.C. Appellant Jabbar is responsible for causing injury No.3, to deceased Anwar Shah which is certified as simple. He is, therefore, convicted for the offence under section 323, P.P.C. All the three appellants are also convicted for the offence under section 323, P.P.C. for causing hurt to complainant Muhammad Hakim.

17. For the above reasons all the three appellants are sentenced as under:‑ (1) Ayub under section 304(11), P.P.C. Sentenced to suffer R.I. for five years and to pay a sum of Rs.5,000 as compensation or in default to suffer R.I. for three months. Under section

323. P.P.C. Sentenced to suffer R.I. for one year and to pay a sum of Rs.500 as compensation or in default to suffer R.I. for one month. (2) Hanif under section

325. P.P.C. Sentenced to suffer R.I. for three years and to pay a sum of Rs.2,000 as compensation or in default to suffer R.I. for 1‑1/2 months. Under section

323. P.P.C. Sentenced to suffer R.I. for one year and to pay a sum of Rs.500 as compensation or in default to suffer R.I. for one month. (3) Jabbar under section

323. P.P.C. Sentenced to suffer R.I. for one year and to pay a sum of Rs.500 as compensation or in default to suffer R.I. for one month. All the substantive sentences to run concurrently. The compensation of Rs.5,000 and Rs.2,000 if recovered from appellant Ayub and Hanif respectively be paid to legal heirs of deceased Anwar Shah. The rest of the compensation, if recovered from appellants be paid to complainant Muhammad Hakim. The appellants shall also be entitled to the benefit of section 382‑B, Cr.P.C.

18. With the above modification in sentence the appeal is otherwise dismissed. H.B.T./H‑137/K Order accordingly.