1968 SCMR 428 (PLP)

CORNELIUS, C. J.-This appeal is brought by the appellant Muhammad Hussain as of right, his accquittal on a charge under section 302, P. P. C., by a Sessions Court having been set aside in appeal by the High Court and in its place, conviction and sentence of transportation' for life under section 302, P. P. C., having been awarded. There were three other persons against whom convictions for minor offences were recorded at the same time, but they have not chosen to appeal. The incident out of which the case arose occurred late in the evening of the 9th August 1962, in the bazaar of Lutfabad, a suburb of Multan city, and was reported the same evening at about 9-30 p. m., at a Thana seven miles away. The injured persons on the side of the complainants were the deceased Abdul Aziz, who received four or five stabs in the stomach, Ghulam Murtaza, who had three incised wounds and four other simple injuries and Karim Bakhsh, who had two simple injuries, one of them being incised. The four accused persons also went to a doctor, but at a different hospital and on the following day, and proof was led to show that Muhammad Hussain had 11 injuries on his person of which three were contused wounds, and the other three had 17 injuries between them, four of them being contused wounds. Tne prosecution case was that two days before the occurrence, the deceased Abdul Aziz had had a small quarrel with the accused Muhammad Hussain and had slapped him. Karim Bakhsh and Abdul Aziz were partners in a shop in the Luftabad bazaar. At degarwela on the 9th August, 1962, these two persons were present at their shop, when Muhammad Hussain with five other persons including the three others whom the High Court convicted along with Muhammad Hussain came there armed with knives and sotas and after a challenge to Abdul Aziz, Muhammad Hussain stabbed him four times with a knife in quick succession. Karim Bakhsh was also injured on the head by another accused person Allah Ditta. The third injured person on the complainant side Ghulam Murtaza was totally disinterested, and only came forward in order to stop further damage. He was attacked by Muhammad Hussain with a knife and received injuries also at the hands of the other accused persons. He had a lathi and used it against Muhammad Hussain. Some other by-standers, of whom Qadir Bakhsh, who had a lathi and Ramzan who was empty-handed appeared as P. W. 16 and P. W. 17, arrived and intervened, and it is alleged that there was a fight at the end of which the assailants made good their escape. Muhammad Hussain's knife was picked up by Ghulam Murtaza and was later handed over through Karim Bakhsh to the Police. The case set up for the defence appears from the statement of Muhammad Hussain, Allah Ditta, son of Habibullah, Fee Rasul and Muhammad Ramzan accused, these being the foui among the accused persons who had sustained injuries. They said that Faiz Rasul and Ramzan were attacked by Abdul Azi; and Ghulam Murtaza, who were described as "renowned sodo-mists". Faiz Rasul was being dragged by these persons when Muhammad Hussain and Allah Ditta, son of Habibullah went to their rescue, and there was a fight. The place indicated for this fight is a hillock some two to three killas (about 600 feet) from the thara of the shop of Abdul Aziz and Karim Bakhsh, No evidence was led in support of this counter version. The only defence evidence produced was the deposition of a doctor Abdul Qayyum, who had performed the post-mortem examination on the body of Abdul Aziz and was questioned with the purpose of minimising the nature of the injuries received by the latter. In his evidence as a prosecution witness, the doctor had clearly said that the stab wounds in the abdomen had cut the abdominal wall, the peritoneum and the small intestines and were fatal in nature. The doctor was asked to speculate as to the manner in which the injuries found on the deceased could have been inflicted and further said that "two cuts in the intestines are not always fatal" and that "timely treatment might have saved the deceased". This evidence was of no assistance to the accused persons, in view of the facts that the injuries which resulted from the stab wounds in the abdomen of Abdul Aziz were undoubtedly sufficient in the ordinary course of the nature to cause his death. As to the counter version, it was denied by all the prosecution witnesses, and is negatived also by the fact that blood stains were found at only one place, namely, the thara of the shop of Abdul Aziz. The theory of attempted sodomy remained entirely unsupported. The trial Judge had purported to find a "large number of contradictions" between the statements made by the prosecution witnesses before the Police, in the Committing Court and at the trial. One such contradiction was with reference to the finding of Muhammad Hussain's knife at the spot who picked it up, to whom it was given, where it was kept, etc. It seems that at the trial, there were some doubt raised whether the knife produced in the Court was the same one as was found on the spot, for Karim Bakhsh, who allegedly handed it over to the Police denied that this was the knife he had picked up and handed over. It would appear that there had been substitution, but that is of no importance for the simple reason that the knife was not recovered at the instance of Muhammad Hussain, nor was anyi attempt made to prove that it was his property. The trial' Judge then made a point about the nonproduction of lathis allegedly used by the prosecution itnesses in the fight. It is not usual to produce such weapons at trial, and, therefore, no weight need be attached to the varying explanations given by the prosecution witnesses as to what happened to their lathis after the incident. Another point made by the trial Court, which is quite unrelated to the actual attack is as to the reporting of the incident by Rahim paklish, P. W. 11 after it was all over. A witness Muhammad Ramzan, P.W.17, a shopkeeper in the same bazaar had deposed as an eye-witness, and the trial Judge made a point that this man could not have seen the occurrence from his shop 76 feet away. The distance was immaterial, for at the same time, the trial Judge thought it impossible that Muhammad Rarnzan could have stayed in front of Abdul Aziz's shop and seen the fight "with accused standing all around him and fighting with lathis with Ghulam Murtaza and Qadir Bakhsh, who were in front of him and still he received no injury." This was clearly a wholly speculative and baseless ground for disbelieving a witness whose presence in the bazaar at the time of the occurrence could not be doubted. In acquitting the accused persons, the Sessions Judge said that-- "too much falsehood had been introduced in the prosecution version and it would be very hazardous to rely on the statements of these witnesses, who were not only chance and interested, witnesses, but have made contradictory statements at various stages." The falsehood indicated by the trial Judge did not go to any matters connected with the actual encounter, but only to matters of subsequent occurrence. Ghulam Murtaza had a sufficient number of injuries received at the same time as those of the deceased to establish beyond doubt his presence on the spot and it was, therefore, immaterial that be was only passing through the bazaar when the fight occurred. He had no interest in the quarrel between the parties, Equally, Muhammad Ramzan was disinterested witness and a shopkeeper whose presence in the bazaar at the time in question was perfectly natural. The acquittal was clearly based on grounds so artificial and insubstantial as to warrant the conclusion that it did not repro-sent an honest disposal of the case before the Sessions Court. We are, therefore, in agreement with the view of the High Court that the Sessions Judge had given a wrong decision in the case by acquitting the accused persons. The learned Judges considered that, of the assailants, only Muhammad Hussain had used a knife and as the stab wounds he caused were responsible for the death of Abdul Aziz, they held Muhammad Hussain to be guilty under section 302, P. P. C. Not being satisfied as to the circumstances which led to the fight, they preferred to impose upon him the lesser sentence of transportation for life. In our view, the conclusion reached by the learned Judges with respect to the guilt of Muhammad Hussain was correct. We accordingly dismiss this appeal. Appeal dismissed.