P L D 1984 Supreme Court 440 (PLP)

SHAFIUR RAHMAN, J.-Leave to, appeal was granted to Muhammad Amin, a convict under section 302, P P. C. sentenced to death, to ensure/ that in recording his conviction and sentence the principles governing the safe administration of criminal justice have been duly observed. The deceased Khalid Mahmud, and the appellant both were residents of the same locality i.e. Mohalluh Mianapura, Sialkot City. On the 22nd of June, 1975, at about 5 p. m. the appellant was allegedly found teasing school girls going in a tonga. He himself was on a cycle. The school girls were abusing him for this. The deceased Khalid Mahmood happened to be there. He reprimanded the appellant and asked him to desist from doing so. The appellant took it ill, picked up a quarrel with the deceased and the two witnesses Muhammad Ikram P. W. 6 and Muhammad Arif P. W. 7 intervened and separated them and asked them to go their own way. The appellant, according to these witnesses, threatened the deceased that he would take his own revenge for the insult and the indignity at the hands of the deceased. On the day following the next, i. e. on 24th of June, 1975, at about 6-30 p. m. the deceased alongwith his uncle Muhammad Ikram P. W. 12 was returning from the house of the maternal-uncle of the latter and was in the Bazaar when the appellant who was sitting near We shop of one Barkat, stood up, came upto him and saying that he would take revenge for the indignity and disgrace, inflicted repeated knife blows on the deceased who sat down on receipt of the injuries and was forthwith removed by Muhammad Ikram P. W 12 and Ahmad Din P W. 8 in a Tonga to the civil hospital. He died on way to the hospital. At the hospital Muhammad Ikram (P. W. 12) lodged a report about the occurrence with Nazir Ahmad S. I. (P. W. 14) who had reached there learning about the occurrence. The inquest report was prepared and the dead body was sent to the mortuary. Dr. Muhammad Aslam Bhatti conducted the autopsy and found the following injuries on the dead body : "(1) Abrasion ' x " on the top of right shoulder joint. (2) Incised wound " x I" on the back of left axilla. (3) Incised wound " x " x " on the outer side left side of chest along. the axilla. (4) Incised wound 1 " x x intestine was coming out from the wound on the outer side of left side of chest at lower part." According to the Doctor Injury No. 4 alone was grievous and fatal, sufficient in the ordinary course of nature to cause death. All the other injuries were simple. The stomach contained 1 ounce semi-digested food and both the intestines contained faecal matter. According to the Doctor the injuries 2 to 4 were caused by a sharp-edged weapon and not by a pointed sharp-edged weapon. During the investigation on the 26th of June, 1975, the appellant was arrested from the graveyard of Imam Sahib and on his personal search, the knife (Exh. P. 5) was recovered from the fold of his lacha. It was latter round not to be stained with blood at all. The appellant when questioned about the occurrence and the motive denied it altogether and stated as follows about the occurrence and his implication in it : "I am innocent. The P. Ws. are of the same Bradari and brotherhood. In fact Latif, Ghulla, Kala, Khalid deceased and Ikram son of Yaqoob P. Ws. are the party-men of Munira and they all are men of bad character. They must have quarrelled with each other and the deceased might have received injures from them. The police associated Latif and others of Munira party in this case. As they all are Arain Bradari, so they have absolved them from this investigation under pressure of Mian Masud M. N. A. and Mian Chiragh Nikka President of Arain Bradari and they have falsely involved me in this case." The trial Court believed the motive, the ocular evidence and the recovery and found support for the case in the medical evidence and held the appellant guilty of the offence under section 302, P. P. C. He was convicted and sentenced to death under section 302, P. P. C. He was also sentenced to a fine of Rs. 2,000 payable on its recovery to the heirs of the deceased and in default he %&as required to undergo rigorous imprisonment for six months more, under section 544-A, Cr. P. C. On appeal and. while seized of the confirmation of the death sentence awarded by the trial Court, the High Court re-examined the entire evidence and felt satisfied that the conviction and sentence had been correctly recorded by the trial Court and the conviction as well as the sentence were both maintained. The learned counsel for the appellant Mr. M. B. Zaman, Advocate, contended that it appeared from the statement of the prosecution witnesses themselves and the record prepared immediately after the occurrence that the First Information Report was prepared after some preliminary investigation; that the eye-witnesses had not in fact seen the occurrence and that there has been interpolation in the record and improvements at various stages. It is clear from one unexplained abrasion on the person of the deceased and his torn shirt that the stabbing was preceded by a fight during the course of which incised wounds were caused to the deceased. Only one such wound was grievous or fatal. All others were simple. Besides, if at all the prosecution case is to be believed against the appellant, there was an element of provocation in the form of insult and indignity under which the appellant was smarting or sulking and it would justify the infliction of a sentence other than that of death. The evidence of motive has come from Muhammad Ikram (P. W. 6) and Muhammad Arif (P. W. 7). Muhammad Ikram (P. W. 6) claims to have witnessed the very initiation. He said;-- "I saw a Tonga carrying school girls and the accused was following the Tonga on a cycle and cut jokes whereupon the girls abused him. The deceased asked the accused as to why he was uttering incivilities to the ladies. This led to altercation between the two." Muhammad Arif (P. W. 7) saw only the altercation and not how it started. It was suggested that both these witnesses were Arains, that is of the baradari of the deceased, that the father of the deceased and Muhammad Ikram (P. W. 6) worked in the same factory about 12 years before this occurrence. The two Courts have believed their statement finding no infirmity either in their antecedent or in their statement. It has been suggested that as they had not reported this incident to anyone, their identity could not have been ascertained with such promptness as to enlist them as a witness the same day. This contention omits to take note of the fact that according to the ocular evidence the appellant before attacking C the deceased had made it clear that he was settling an old score and this, introduced the previous event and consequentially the witnesses thereof. As regards the ocular evidence, there is Muhammad Ikram (P. W. 12), the uncle of the deceased who was accompanying him at the time o occurrence. Ahmad Din (P. W. 8), Khushi Muhammad (P. W. 9) and Muhammad Yousaf (P. W. 11) happened to be present in the Bazar for making purchases. They are shown to be residents of the locality, not far from the place where occurrence took place. Their presence at that hour in the Bazar has not been shown to be improbable. They otherwise appear to be truthful witnesses. What has been suggested against Khushi Muhammad and Muhammad Yousaf is that their names and particulars find a place in the F. I. R. The complainant explained it to their presence in the hospital where the dead body had been brought when the report was made. They on the other hand disowned the disclosure or even the fact that they accompanied or followed the dead body to the hospital. Ahmad Din (P. W. 8) who had accompanied the dead body knew Yousaf P. W. and his father. Where the identity of the witnesses is not in doubt their particulars are collected from person present. This by itself will not make their presence doubtful or suspect. Our social behaviour is neither so permissive nor so unconcerned as to leave the weak and the undefended to fend for themselves in public unassisted, 'or to fight their own battle single-handed against the highhandedness of a more powerful and an unjust adversary. Innocent interventions in the form of reprimand, admonition or even a rebuke act as F correctives and permissible social deterrents. Such an intervention cannot operate as a mitigation, particularly so where sufficient time for cooling off has elapsed because the dereliction of the person claiming mitigation is the very cause of such intervention and but for such dereliction its mitigating effect cannot be doubted. An illustrative case on the point is Dost Muhammad v. The ,State P L D 1963 S C

285. As regards 'the torn shirt and the abrasion on top of the shoulder of the deceased, they do not lead to any such inference as is suggested by the learned counsel for the appellant. It is against the entire weight of ocular evidence. Besides, the appellant was the sole assailant. He gave three quick blows with knife. In order to accomplish this he had to secure the deceased from his shirt or from his body. In the process the shirt could get torn. None of the eye-witnesses was questioned about the torn shirt. The abrasion on top of the shoulder could not ordinarily be caused by a person attacking with a knife. The explanation offered by Khushi Muhammad is only inferential. In the circumstances, and for reasons recorded we consider that the conviction of the appellant under section 302, P. P. C. and the sentence awarded to him satisfy all the legal requirements. This appeal is, therefore, dismissed. MUHAMMAD HALEEM, C. J.-I agree. MIAN BURANUDDIN KHAN, J.-I agree. MUHAMMAD AFZAL ZULLAH, J.-I agree that the conviction under section 302, P. P. C., be upheld. However, on question of sentence, I with profound respect, am of the view that notwithstanding the soundness of the principle regarding innocent interventions, in this case the facts proved- do establish mitigation of a different type. As to what happened in the previous incident between the two-to be precised who had the upper hand,. remained unexplained even by Akram (P. W. 6). The appellant was at fault then. Can it be said with certainty that he did not remain so in the altercation wherein P. W. 6 and P. W. 7 intervened to separate them ? This is an important fact giving background material for the main occurrence in which the deceased received the unexplained (but) specific abrasion on top of his shoulder as also suffered a torn shirt. True, the defence failed to seek explanation for that, but so did the prosecution. It is obvious that the eyewitnesses withheld a vital part of the actual version. It is not a case of mere failure to explain. Their own embroidery, in the foregoing context, regarding what the appellant then said should not be permitted to fill the vital omission in their depositions about what preceded the assault with the knife. This all and the fact that there was only one substantial blow, in view of the missing part necessarily create not only uncertainty about of the real origin of the main occurrence but also uneasiness about it. This judicial state of the element in question must reflect on the sentence-about conviction there is no doubt. I would, therefore, propose lesser penalty of life imprisonment plus a heavy fine of rupees fifty thousand in default whereof of 41 years of R. I. This amount on realisation be payable to the heirs of the deceased as compensation. Except for this modification in the sentence the appeal be dismissed. ORDER OF THE COURT In accordance with the opinion of the majority, the appeal against conviction and sentence of the appellant under section 302, P. P. C., is dismissed. M. Z. M. Appeal dismissed.