1989 P Cr (PLP)

Mr. Imam Bux, learned counsel appearing for the appellant Wali Muhammad has contended that there was no motive on the part of the appellant Wali Muhammad to kill deceased Rato. That it is a case of sudden fight between parties in which appellant Wall Muhammad was injured and there was no intention on the part of Wali Muhammad to kill deceased Rato. Mr. Hayat Qureshi, learned counsel appearing for the State has contended that there was no evidence against appellant Anwer that he shared common intention with appellant Wali Muhammad, and therefore, the fact that he caught hold of the deceased could be to separate the parties and prevent the deceased from attacking the appellant Wall Muhammad. That there was no evidence that he shared common intention with the appellant Wali Muhammad and therefore, he could not support the conviction of appellant Anwar. With regard to appellant Wali Muhammad, his case was that it was a case of sudden fight between the parties, and therefore, his case will fall under section 304, Part I, P. P. C. I have considered the contentions of the learned counsel and have also gone through the evidence. Complainant Nawaz Hussain who was Deputy Superintendent, Central W Prison, Hyderabad at the relevant time has fully supported his F.I.R. He has further stated. That before this incident a dispute had taken place between accused Wali Muhammad and deceased Rato at Nara Jail, Hyderabad. In cross -examination he had admitted that he had never remained Incharge Nara Jail, Hyderabad. He has further admitted that he had gone to the place of Wardat on commotion, and he had not seen anything before, except that accused Anwar caught hold of Rato from backside. He has further stated that accused Wali Muhammad and Anwer had come to the gate with other prisoners who had come at the main gate to attend the interview of the prisoners. P.W. Abdul Hayee Qureshi has deposed that he was Assistant Superintendent, Central Prison, Hyderabad, at the relevant time, and according to him, at the time of incident he was sitting in the office of the complainant, when they heard commotion and cries from the Gate No.2 inside the jail, he and Nawaz Hussain both rushed towards that spot. Akber also followed them. He saw Chhuri in the hands of accused Wali Muhammad who was inflicting Chhuri injuries to Rato, while Anwar had caught hold of deceased Rato. P.W. Muhammad Akber has deposed that he was working as O.G. Warder in Central Jail, Hyderabad, at the relevant time. At the time of incident his duty was at Gate No.2, Central Jail, Hyderabad. At about 2-00 p.m. 8/9. prisoners had come, after attending hearing of their cases. After their search he allowed them to enter into jail. All of them were in handcuffs, he opened their handcuffs except that of deceased Rato whose handcuffs could not be opened, and, therefore, he detained him at the gate inside. The handcuffs of Rato could not be opened because the key of those handcuffs did not work. He handed over deceased Rato to Mehmood Watchman to keep an eye upon him, and asked Khamoo to arrange for blacksmith for opening of the handcuffs and fetters of Rato. After handing over Rato to Mehmood he closed the door of the prisoners. Thereafter some prisoners had come from the Gate No. 1. and he started taking their search. While he was taking search he heard commotion coming from Gate No3 on which Nawaz Hussain complainant, and Abdul Hayee Qureshi came from the office of Jail Superintendent, and he opened the door for them. They went running towards the place of incident and he also followed them. When they reached there he saw accused Anwar catching hold of Rato while appellant Wali Muhammad was inflicting injuries with Chhuri on deceased Rato. He saw only one blow caused by Wali Muhammad with Chhuri to Rato on his chest; complainant and Abdul Hayee Qureshi intervened in order to save Rato. Injured Rato was then removed to the hospital. In cross-examination he has stated that he had seen injuries on the two fingers of appellant Wali Muhammad and blood was coming out of the injuries. P.W. Muhammad Ramzan deposed that he was Assistant Superintendent, Incharge, undertrial prisoners at Central Jail, Hyderabad, at the time of incident. On the day of incident he was performing his duties of interview. That at about 2-00 p.m. he heard commotion coming from outside the interview room. He became alert and saw that one undertrial prisoner had caught hold of one convicted prisoner, while other undertrial prisoner was inflicting Chhuri injuries to the convicted prisoner. When he went there he found that the person who had caught hold of the convicted prisoner was Anwer, the prisoner who was given Chhuri injuries was accused Wali Muhammad, while the person who had sustained Chhuri blows was Rato. He saw Wali Muhammad causing two Chhuri blows only to Rato Jamal who after sustaining injuries had fallen down. At that moment complainant Nawaz Hussain and Abdul Hayee Qureshi and Akber Warder were present and had witnessed the incident. After inflicting injuries Wali Muhammad ran away inside the jail. In cross-examination, he has stated that it is correct that on the day of incident Anwer was brought for his interview with Jan Muhammad, and soon after the interview this incident took place. He has further admitted that -he had arranged the interview of Anwer accused with Jan Muhammad. P.W. Habib-ur-Rehman was a police constable and he was given process of service on P.W. Khamoo, Vikio, Mehmood, Yaqoob and Wahid Bux but according to him, their whereabouts were not known, therefore, the same could not be served. He made such endorsement on the process, which he has produced. P.W. Tabarak Ali has deposed that he acted as Mashir in this case. He has produced Mashirnama of Wardat Exh.24. Rana Azher, Assistant Superintendent, Central Prison, had produced blood-stained Chhuri before the Magistrate and he has produced this Mashirnama as Exh.25. He has produced Mashirnama of injuries on accused Wali Muhammad as Exh.26, Mashirnama of production of blood-stained clothes of accused Anwer as Exh.27, securing of blood-stained clothes, prison chains and handucffs from the person of deceased Rato, vide Mashirnama Exh.28, production of tin containing burnt clothes of accused Wali Muhammad by complainant vide Mashirnama Exh.29, and pointing out of the place of recovery of Chhuri vide Mashirnama Exh.29, and showing a crime weapon by accused Wali Muhammad vide Mashirnama Exh.30. P. W. Manzoor Ahmed has deposed that he was W.P.C. at Police Station Market, Hyderabad, at the relevant time. He has deposed that property of crime No. 265 of 1978 was received at P.S. Market, Hyderabad, which was entered in property register at page No.70-22. That this entry does not show that any tin containing burnt clothes of accused Wali Muhammad was received at the police station. P.W. Mr. Abdul Shakoor has deposed that he was Additional City Magistrate Market, Hyderabad, at the relevant time. He has stated that he was ordered by the District Magistrate, Hyderabad to make inquiry under section 176, Cr. P. C. regarding the murder of a prisoner. He has supported the prosecution and the contents of his, evidence have already been mentioned in para. 2 of this judgment. P.W. Moula Bux is Tapedar. He had visited the place of Wardat and had prepared sketch, which he has produced as Exh.35. From the above evidence it is clear that although complainant Nawaz Hussain had stated in his F.I.R. and in his evidence in Court that there was dispute between the appellant Wali Muhammad and deceased Rato Jamal which took place at Nara Jail, Hyderabad, but he has admitted in cross-examination that he never remained as Incharge at Nara Jail. He has not given any particulars about the dispute between the two, nor any witness has been examined on the point that there was actually a dispute between deceased and appellant Wali Muhammad. There is no allegation against appellant Anwer either in F.I.R. or in the evidence that he had any dispute with deceased Rato. Therefore, it is clear that the prosecution has failed to prove motive in the present case. As far as ocular evidence is concerned none of the witnesses have deposed as to how the incident started. P. Ws. have stated that they came on commotion, and when they reached at the Wardat they found that accused Anwer had caught hold of the deceased while accused Wali Muhammad was giving him Chhuri blows. Therefore, the reason as to why the fight started and who started the fight is also shrouded in mystery. That complainant as well as P.W. Mr. Abdul Shakoor that accused Wali Muhammad has admitted it had received injuries, which according to accused Anwer were caused by deceased Rato Jamal. That there is no allegation against Anwer that he was armed with any weapon and the explanation given by him appears to be reasonable and is supported by the admission of P.W. Akber that the appellant Anwer had gone to have interview with one Jan Muhammad Chandio. Under these circumstances, I hold that there was no evidence to show that appellant shared common intention with appellant Wali Muhammad, and therefore, I allow his appeal, set aside his conviction and sentence, and acquit him of the charge. He should be released forthwith if not required in any other case. So far as appellant Wali Muhammad is concerned, death of deceased Rato is not disputed, and there is medical as well as ocular evidence on this point. We have to see whether his case falls within exception 4 to section 300, P. P. C. that reads as under: - "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon sudden quarrel and without the offender having taken undue advantage or acted in cruel or unusual manner." In order to establish that a case comes under this exception it is I necessary for the accused to show that:- (1) The offence was committed without premeditation. (2) That it was committed in a sudden fight in the heat of passion upon a, sudden quarrel; and (3) That he did not take undue advantage and did not act in a cruel and unusual manner. If these requirements are satisfied then exception 4 to section 300 will be attracted. In the present case, there is no evidence that the appellant Wali Muhammad had motive to kill the deceased, and therefore, the element of premeditation could not be there. That it is also an admitted position that there was a fight between the appellant Wali Muhammad and deceased Rato Jamal which is clear from the fact that the appellant Wali Muhammad had received injuries on hand which had bleeded. In Muhammad Shafiq v. The State P L D 1960 Lah. 339; it was held that:- "Grappling is a `fight' within the meaning of exception 4." In Karam Singh v. The Crown A I R 1926 Lah. 219 it was observed:- "That in the course of sudden fight, Ranga Singh took out pistol he had with him and probably fired 3 shots, one of which missed, while one struck the deceased's thigh and one in the abdomen. Death was due to the injury on the abdomen. It was held that though Rana Singh had a pistol upon him, he did not come with the intention of using it, and that he used it in the course of sudden fight, the conviction under section 302, P.P.C. was altered to one under section 304, Part 1, P.P.C. and the accused was sentenced to seven years R.I." In this case, also since there was sudden fight between the parties, there was no premeditation and appellant Wall Muhammad did not take undue advantage, nor behaved in unusual manner and, therefore, observations in the above two cases, will apply to all the four corners of this case. I, therefore, convert the conviction of appellant Wali Muhammad from section 302 to one under section 304, Part 1, P. P. C. and sentence him to seven years R.I. He is entitled to the benefit of section 382-B, Cr. P. C. H.B.T./S-527/K ` Order accordingly.