1985 P Cr (PLP)

(1) A septic incised wound, 1 x x skin deep, on the right hand in between the thumb and index finger, near the thumb. (2) A septic incised wound, 1" x x skin deep, on the right hand one inch below injury No.

1. Both the injuries were simple, and caused by a sharp‑edged weapon. Mst. Aziza P.W. 9 was examined by Lady Doctor Farhat P.W. 12 on 5‑11‑1978 at 6.25 p.m. She had noted a stab wound 1" x , depth could not be ascertained, on the left side of the chest about five inches above the left iliac crest. She had noted a corresponding cut on the shirt. According to her opinion the injury was caused by a sharp‑edged weapon, within the duration of about one hour. The injury was declared simple, after X‑Ray examination.

8. Except Muhammad Yousaf Shah, A.S.I. P.W. 15, who had given the details of the investigation and the fact of having recorded the statement Exh. P.C. of Muhammad Khalid, the statements of other P.Ws. are more or less of a formal nature.

9. All the three accused denied the allegations and pleaded innocence. Khushi Muhammad accused, however, in answer to the question, "why this case against you", put up his own version. He stated as under:‑ "On the day of occurrence Mst. Razia P.W. was mud plastering outer side of her wall and was throwing the mud on the wall. I passed through the lane to my adjacent house and some mud fell on my clothes to which I objected to her and abused Mst. Razia. She narrated and complained this to Nazir deceased and Bashir P.W. on their arrival. After sunset when it was dark, Nazir deceased and Bashir P.W. armed with Chhuri and knife came to my house and called me. On their call I came out. Nazir deceased and Bashir P.W. attacked me in order to kill me. Nazir deceased tried to inflict injuries on me and I warded these blows on my hand. I apprehending danger to my life inflicted injuries to Nazir deceased and bashir P.W. with knife. Mst. Sharifan also received an injury during these scuffles. I acted in self‑defence to save my life." Note: In the urdu record name of Mst. Razia instead of Mst. Sharifan is mentioned. None of the accused produced defence evidence.

10. The learned Sessions Judge, Okara, vide order, dated 30‑10‑1982, convicted Khushi Muhammad alias Khushia, aged 25 years and Bashir, aged 20 years sons of Muhammad Tufail, under section 302/34, P.P.C, for having murdered Nazir and under section 307/34, P.P.C. for having made murderous assault on Bashir P.W. and Mst. Aziza P.W. under section 302/34, P.P.C. both were sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000 each, in default to suffer six months' R.I. each. They were also directed to pay Rs. 1, 000 each, as compensation to the heirs of the deceased, in default whereof they have been directed to suffer six months' R.I. each. Under section 307/34, P.P.C, both of them have been sentenced to undergo R.I. for four years and to pay a fine of Rs.500, in default whereof to suffer three months' R.I. They have also been directed to pay Rs. 500 as compensation; for non‑payment of which to suffer three months' R.I. The amount of compensation has been directed to be paid in equal share to the two injured P.Ws. Their co‑accused Abdullah was acquitted by the same order. It may be mentioned here that the whole prosecution evidence in this case was recorded by Additional Sessions Judge, Sahiwal and the case was transferred to the Sessions Judge, Okara. Thereafter, the learned Sessions Judge had decided the case after recording the statements of the accused and hearing the arguments. The convicts have filed appeal.

11. Although at the trial during cross‑examination witnesses were put suggestions that the occurrence had taken place in the darkness of the night, that the injured witnesses had not identified the assailants and that the complainant was not present and Khushi Muhammad appellant had acted in self‑defence ............................................ (which of course, were denied by all the witnesses), and Khushi Muhammad had also during his statement under section 342, Cr.P.C. ....taken up the plea of self‑defence, learned counsel for the appellants did not press his case on these points. He frankly stated that he does not find much substance in these points. Learned counsel argued that the prosecution had not taken into confidence the Court as to what insinnuations were made or words were uttered by Khushi Muhammad While cutting jokes with Mst. Razia and as such the motive for the occurrence remains diluted, that it was a sudden occurrence, that the occurrence took place without premeditation, that the case of Khushi Muhammad falls within Exception 4 to section 300, P.P.C, that Bashir appellant cannot be held liable for having common intention in having caused the death of Nazir deceased and that he can only be held liable for having caused injuries to Bashir P.W. He contended that since all the injuries on the person of Bashir P.W., stated to have been caused by Bashir appellant, were declared simple, his conviction under section 307, P.PC. is also not maintainable and that he can be held guilty of having committed the offence under section 324, P.P.C. However, he did not press this point vigorously and contended that even if he is to be held liable for having launched a murderous assault and his conviction under section 307, P.P.C. is to be maintained, the sentence awarded to him may be reduced, keeping in view the fact that all the injuries on the person of Bashir P.W. were declared simple. Learned counsel did not challenged the recoveries of weapons of offence at the instance of both the appellants.

12. Learned counsel for the State, on the other hand, contended that presence of the witnesses, particularly that of Bashir and Mst. Aziza P.Ws. stands proved beyond any shadow of doubt because both of them had sustained injuries and that presence of Khalid P.W., who had loldged the F.I.R., also cannot be denied as he is resident of nearby house and being a relation of first degree of Khushi and Bashir P.Ws. would have naturally come out immediately on hearing noise of his maternal uncles. Learned counsel refuted the argument of the learned counsel for the appellants that the case of Khushi Muhammad falls within Exception 4 of section 300, P.P.C. According to him, the case of Khushi Muhammad is clearly covered by clause 'fourthly' of section 300, P.P.C. Learned counsel did not agree with the contention of the learned counsel for the appellants that Bashir appellant cannot be held liable for having common intention with Khushi Muhammad appellant, as he had come to the spot armed with a knife alongwith his brother Khushi Muhammad, at whose hands Nazir had died.

13. I have perused the judgment of the trial Court and have gone through the evidence with the assistance of the learned counsel for the appellants. Notwithstanding the fact, ‑ that learned counsel for the appellants has not challenged the presence of the witnesses at the spot, nor has considered it worthwhile to advance the arguments on the lines taken on behalf of the appellants during cross‑examination, that the occurrence had taken place during the darkness of the night and that Khushi Muhammad had acted in self‑defence, I have examined these aspects of the case.

14. The suggestion that the occurrence had taken place during dark hours of the night, is without any substance in this case. Except the bald suggestion put to the witnesses, which was denied by the witnesses. nothing else was brought on record to consider that the occurrence had taken place in the darkness of the night. On the other hand, the statement of Lady Doctor Farhat Athar P . W .12 that she had examined Mst. Aziza at 6.25 p.m. on 5‑11‑1978 and the statement of Dr. Muhammad Athar P.W.11 that he had examined Bashir P.W. at 6.30 p.m. on 5‑11‑1978, supports the eye‑witnesses that the occurrence had taken place at about sunset time, because it cannot be imagined that the doctors, who were in no way connected with the complainant party. nor were inimical to the accused, had noted incorrect times regarding examination of the injured P.Ws. In this view of the matter, the suggestion that the F.I.R. was recorded in the morning also does not carry any weight.

15. The plea taken by Khushi Muhammad appellant of having acted in self‑defence also does not bear any truth. In fact, it does not create any dent or doubt in the prosecution case, as it is impossible to believe that if two persons had come armed and attacked him, he would have received only two simple injuries and that too on the palm and he would have succeeded in taking the life of one and giving six injuries to one witness and one to the other witness. Moreover, the complainant even at the time of lodging the F.I.R. had explained the injuries found on the palm of Khushi Muhammad. In this view of the matter; I feel no hesitation in holding that there is no substance in the plea taken by Khushi Muhammad appellant.

16. The contention of the learned counsel for the appellants that the motive remains diluted, does not seem to have any substance. The prosecution did not rely merely on the statement of the complainant. They had in a very straightforward manner produced Mst. Razia at the trial, who was a girl of 16 years at the time of occurrence. It is not imaginable that for the sake of strengthening the case, the complainant side would have brought an unmarried girl, so closely related, with an allegation that the accused had cut indecent jokes with her. That would not have been acceded to by her and her father. Moreover, if such a thing had not happened, there was no occasion for this occurrence to have taken place, as there was no previous enmity between the parties.

17. I have given anxious consideration to the contention of the learned counsel for the appellants that the case of Khushi Muhammad falls within Exception 4 to section 300, P. P. C. I have not been able to find any substance in this contention. He had caused an injury with the Chhuri, which he later had got recovered, recovery of which not only learned counsel for the appellants has not challenged, recovery even otherwise stands proved as the witnesses who had deposed about the factum of recovery at the instance of Khushi Muhammad cannot be termed as unreliable. Chhuri is not a weapon which normally people carry. Therefore, the element of premeditation on his part cannot be ruled out. He had cut jokes with a girl related to the deceased and Bashir P.W. They had come to complain and had called him out. Whether he had come armed with Chhuri or he had turned back and brought the Chhuri will not make much difference, because admittedly none of the persons, i.e., the deceased or Bashir P.W. were armed at the time of occurrence. While launching attack, Khushi Muhammad had not only given a blow to the deceased with full force but had also caused injury to Mst. Aziza P.W. when she had tried to give support to his falling brother by attempting to take him in clasp. The actions of ‑Khushi Muhammad appellant, therefore, clearly speak of his intention to cause death and his case squarely is covered by clause fourthly of section 300, P.P.C. For these reasons, I do not feel, there is any material to differ with the learned trial Court in holding him guilty under section 302, P.P.C. 17‑A. The case of Bashir appellant of having common intention with his co‑accused in committing the murder of Nazir needs consideration. Although he was present at the spot armed with a knife, yet the fact remains that he took no active part till Nazir had fallen on the ground and Mst. Aziza had been injured by Khushi Muhammad, either by raising Lalkara or by doing any other overt act. He had no direct connection with the motive. He might have accompanied his brother with knife, to be of help to him in case he was attacked, as his brother by his conduct had given cause of complaint to the relatives of Mst. Razia. The action of Bashir appellant of having remained aloof during the time when Khushi Muhammad had given fatal blow to Nazir and had caused injury to Mst. Aziza, makes the case of the prosecution doubtful about Bashir appellant having common intention with his brother of committing murder. In fact, it does not enter the line of circumstance of having common intention with his co‑accused of committing murder. Another important fact which has weighed with me, to form this view is that prior to the incident of Khushi Muhammad having cut jokes with Mst. Razia, there was no enmity or dispute between the parties. They were living in the street as close neighbours and none of the parties during trial came up with any allegation of any previous bad history or ill‑will amongst them. With this background, Bashir appellant could not have conceived the idea of sharing common intention with his brother, when he was not connected directly with the incident which had happened on that day. The elements of doubt of having no common intention than elements of certainty of his having common intention with his brother of committing the murder are heavier. As such, I feel inclined to give him the benefit of doubt in so far as his conviction under section B 302/34, P.P.C. is concerned. His conviction under section 302/34, P.P.C. is, therefore, set aside.

18. So far as the conviction of both the appellants under section 307/34, P. P. C. is concerned, I do not think it can be maintained, for the reasons and the analogies drawn above. However, individually both are guilty and liable for having committed the offence under section 307, P.P.C., in that Khushi Muhammad by having given an injury on the vital part of Mst. Aziza had clearly launched a murderous assault on her, while the intention of Bashir appellant of having launched murderous assault on Bashir P.W. is also abundantly clear from the number of injuries he gave with the knife to Bashir P.W. In the circumstances noted above, while setting aside their conviction under section 307/34, the conviction of each of the appellants under section 307, P.P.C. for having caused injuries to the two P.Ws. is maintained on individual accounts meaning thereby that the conviction of Khushi Muhammad under section 307, P.P.C. is maintained for having caused injury to Mst. Aziza, while conviction of Bashir appellant under section 307, P.P.C. is maintained for causing injuries to Bashir P.W. The sentence of four years' R.I. and fine imposed on each of the appellants instead of being maintained on two account, is maintained on individual account.

19. The net result is that Bashir appellant will suffer four years' R.I. and a fine of Rs.500, in default to suffer three months' R.I. and also to pay Rs.500 as compensation to Bashir P.W., in default to suffer three months' S.I., for his conviction under section 307, P.P.C. Khushi Muhammad appellant will suffer four years' R.I. and a fine of Rs.500, in default to suffer three months' R.I. and to pay compensation of Rs.500 to Mst. Aziza, in default to suffer three months' S.I. for his conviction under section 307, P. P. C. The sentence awarded to appellant Khushi Muhammad under section 307, P.P.C. will run concurrently with the sentence of life awarded to him under section 302, P.P.C. The appeal stands disposed of in the above terms. M. A. K. Order accordingly.