1976SCMR191 (PLP)

ANWARUL HAQ, J.‑The two appellants were tried by the learned Additional Sessions Judge at Jhang for the murder of one Zawar Hussain, and acquitted by his judgment dated the 27th of November 1965. The State thereupon filed an appeal against acquittal, which was accepted by a Division Bench of the High Court by its judgment dated the 15th of June 1970. The two appellants were convicted under Part I of section 304 of the Pakistan Penal Code and each of them was sentenced to undergo rigorous imprisonment for eight years. Leave to appeal was granted by this Court on the 12th October 1970, to examine the contention that the learned Judges of the High Court had riot kept in view the principles laid down by this Court for interference with an order of acquittal. It was stated by the learned Advocate‑on‑Record for the appellants that the appellants had since served out their sentences, and had sent an unsigned letter to the office of this Court saying that they did not wish to press this appeal. As the letter sent by the appellants is not signed, and the learned Advocate‑on‑Record has no instructions to withdraw this appeal, we would proceed to examine the same on merits. The incident is said to have taken place at 2‑30 p.m. on the 29th of January 1965, inside the premises of the Anjumane Hussainia Mohajreen Imambara, Chiniot in the Jhang District. There had been an earlier alterca tion at about 12‑30 p.m. between two cousins of appellant Jarrar Hussain on one side and Muhammad Hussain (P. W. 9), a brother‑in‑law of the deceased Zawar Hussain on the other, on the question of the excessive consumption of fire wood for preparation of tea for Iftary in the Imambara. It may be stated that the incident took place on Jumatul Wida in the month of Ramazan. At the time of the altercation some people intervened and the situation was prevented from deteriorating any further. However, after the Juma prayers were over, and the congregation was still present inside the Imambara the two appellants suddenly attacked Zawar Hussain with knives. Nadir Ali (P. W. 8), who is a brother of the deceased, Muhammad Hussain (P. W. 9), Sajjad Ali (P. W. 10), Muhammad Mehdi (P. W. 11) and Tasaddiq Hussain (P. W. 12) tried to intervene, but they were prevented from doing so by Ilyas Hussain, Muhammad Hanif, Muhammad Zakirayya and Isa. Sajjad Ali and Tssaddiq Hussain received a large number of injuries at the hands of the sympathisers of the appellants. Nadir All was proceeding to the Police Post for lodging the first infor mation report, when he came across A. S. I. Abdullah Khan (P. W. 13) and reported the matter to him at 3‑45 p.m. On being apprehended on the 30th of January 1965, both the appellants produced blood‑stained knives front their locked premises. Blood on one knives was found to be of human origin, although it was not specified as to which knife it was. The blood on the other knife had disintegrated. At the trial, the appellant pleaded am added not guilt and asserted that there was a fight between the father of Ziwar Hussain and that of Muhammad Zakirayya, and their respective relations on both sides over the affairs the Anjuman. They denied their presence in the Imambara, and asserted that they had been falsely implicated in place of their elders. They did not, however, produce any defence evidence. In support of its case the prosecution laved reliance on the ocular evidence of the witnesses already named in the preceding paragraphs, namely, Nadir Ali (P. W. 8), Muhammad Hussain (P. W. 9), Sajjad Ali (P. W. 10), Muhammad Mehdi (P. W. 11), and Tasaddiq Hussain (P. W. 16). As already stated, Sajjad Ali and Tasaddiq Hussain had suffered a large number of injuries which provided strong corroboration of their presence at the time of the incident. The learned Judges in the High Court have accepted this ocular evidence, even though soma of the witnesses were related to the deceased. They have held that there was no previous enmity between the' parties and there was no motive for false implication of the appellants. The learned Judges have rejected as untenable the reasons given by the trial Court for the acquittal of the respondents. They have, however, observed that "it is legitimate to presume that the deceased did something which suddenly provoked the respondents. That something cannot be other than insult including physical violence to the fathers of the respondents." On this view of the matter, they have held that the appellants were entitled to the benefit of Exception I to section 300, P. P. C. We have examined the evidence on the record with the help of Mr. Masood Akhtar as well as the learned Assistant Advocate‑General, and we find ourselves in agreement with the view taken by the High Court. There was no satisfactory reason to discard the ocular evidence of as many as five witnesses, two of whom bore marks of injuries as proof of their presence at the spot. We are further of the view that the learned Judges in the High Court rightly extended the benefit of Exception I to section 30 of the Pakistan Penal Code to the appellants, as it is clear that the assault launched by the appellants on tire deceased vas a sequel to an altercation and fight which had already tak4n pace between the elders of the parties. On this view of the matter, the appellant could be convicted only under Part I of section 304 of the Code. As a result, we see no merit in this appeal, which is hereby dismissed. Appeal dismissed.