P L D 1965 (W (PLP)

S. A. MAHMOOD, J.‑

While Abdul Rashid has been sentenced to death under section 302, P. P. C., his brothers, Majid and Bundu, have been sentenced to transportation for life under section 302/34, P. P. C. for the murder of Nur Muhammad, committed on the 14th of June 1961, in the wada of Hakeem‑ud‑Din on Manghopir Road, in the town of Karachi. They have appealed. The case of Abdul Rashid is also before us for confirmation of the death sentence, 'under section 374 of the Code of Criminal Procedure. The appeal and the reference will be disposed of by this judgment.

2. Nur Muhammad deceased was son‑in‑law of Niaz Ahmad (P. W. 2). Mst. Hakeeman, the mother of Nur Muhammad, had two brothers, Bola and Samdal. Hakeem‑ud‑Din (P. W. 5) and Suleman (P. W. 7) are sons of Bola, while Mannu, father of the appellants, was Samdu's son.

3. The appellants used to buy milk from Nur Muhammad deceased, and owed him some money. They gave up buying milk from him, and since about a month before the occurrence, they began to purchase milk from one Unisu. A day before the occurrence, at Kaloo's Hotel, near Bara Board, a quarrel took place between Nur Muhammad on the one hand and the three appellants on the other because Nur Muhammad deceased demanded his dues from the appellants, but they replied that they did not have any money on them and will pay him later. Din Muhammad, Hakeem‑ud‑Din and others intervened, and separated the parties. As Abdur Rashid appellant was leaving, he told Nur Muhammad deceased that he would see to him.

4. Hakeem‑ud‑Din (P. W. 5) used to sell milk and also deal in she‑buffaloes. He had his wada at Bara Board at Manghopir Road. He had received some buffaloes from Multan. Nur Muhammad deceased came to see the buffaloes. At about midday or 12‑30 p.m., Seedu (P. W. 8) and the deceased were together at the wada of Hakeem‑ud‑Din P. W. when the three appellants arrived there. They began to have a fight with the deceased. Abdur Rashid appellant was armed with a knife, and his brother Bundu and Majid picked up a danda and a phaura in their respective hands. Abdur Rashid gave blows with the knife to Nur Muhammad in the chest. When he fell down, he gave another blow in his back, and the knife stuck there. The appellants then ran away. The incident was witnessed by Abdul Karim (P. W. 3), Hakeem‑ud‑Din (P. W. 5), Abdul Haye (P. W. 6), Suleman (P. W. 7), Seedu (P. W. 8), Fateh Muhammad (P. W. 9), Chanda, son of Fateh Muhammad (P. W. 10) and Chanda, son of Ismail (P. W. 12). Din Muhammad (P. W. 4) was attracted to the spot on hearing the outcries. On reaching there he found Nur Muhammad lying face downwards. He had a knife stuck in his back, which he took out, and the deceased expired then and there. His body was placed on a cot and then Hakeem‑ud‑Din P. W. left for Police Station Kalakot and made the report Exh. 16 at 1 p.m., which was recorded by Husain, S. I. P. (P. W. 14). Then he went to the spot and found the dead body of Nur Muhammad deceased lying on a cot in the Wada of Hakeem‑ud‑Din P. W. The Sub‑Inspector took into possession blood‑stained knife Exh. A and danda and phaura Exhs. B and C, in the presence of Karim and Mar Khan Masheers. He prepared the injury statement and inquest report of the deceased and sent the dead body for post‑mortem examination. He then recorded the statements of the eye‑witnesses. He went in search of the appellants. He arrested Abdur Rashid appellant at Dhobi Ghat, at a distance of three miles from the place of the occurrence. His shirt, vest and tehband were found stained with blood. They were taken into possession vide memo. Exh.

34. The appellant had injuries on his person. The Sub Inspector sent him for medical examination. On the 23rd of June 1961, Bashir Ahmad, brother of the appellants was found to have injuries on his person. He sent him for medical examination.

5. Dr. Anwarul Hassan P. W. held post‑mortem examination on the body of Nur Muhammad deceased on the 15th of June 1961, at 11 a.m. and found the following injuries:‑ (1) An incised penetrating wound, 1" x " x chest deep, on the left side of the front of the chest, oblique, 3" below the inner side of the left nipple. (2) An incised penetrating wound, 1 " x " x 3", on the right side, front of chest, 1 " above the right nipple. It was oblique in direction. (3) An incised penetrating wound, 1" x ", chest deep and oblique, in front of the sternum in between injuries Nos. 1 and 2. (4) A vertical incised penetrating wound, " x " x cavity deep. (5) A vertical incised penetrating wound " X 1/5" x 2", on the right side of the middle line of the back of abdomen. (6) A transverse incised wound, 2 " x 1" x 4", on the inner side of the left thigh. (7) A curve‑abrasion, 2 " long, on the left side of the lower part of the chest. (8) A curve‑lacerated wound, 1 " x " x tissue deep on the middle and back of the left forearm. Injuries Nos. 1 to 6 were caused by a weapon like a knife and injuries Nos, 7 and 8 could be caused with a danda and phaura, On internal examination the chest wall was found ecchymosed under the external injuries. Under injury No 1 the fifth left rib cartilage, the pericardium and left side of the heart cavity were cut. Under injury No. 3 the sternum near the right rib cartilage and the upper lobe of the right lung were cut. The right pleural cavity contained a pint of blood and the left one three pints of liquid and clotted blood. Injury No. 1, which penetrated the heart, was sufficient, in the ordinary course of nature, to cause death. Death was caused by shock and haemorrhage as a result of the stab wound of the heart.

6. Dr. Miss Nuzhar Ara Aziz (P. W. 11) examined Abdur Rashid appellant on the 14th of June 1961 at 9‑50 p.m. and found the following injuries on his person (1) An incised abrasion on the right palm on the inner body, " x 1/12". (2) An incised abrasion on the right palm parallel to 1" x 1/12". (3) A contusion on the back towards the upper part, 1" x 1". The injury was simple in nature. Injuries Nos. 1 and 2 had been caused by a sharp‑edged weapon while injury No. 3 was caused by hard and blunt object.

7. On the 23rd of June 1961, at 7‑30 p.m. Dr. Saleem‑ul‑Haq (P. W. 17) examined Bashir Ahmad, brother of the appellants and found on his person a healed wound, " x ", over the frontal area, looking like a lacerated wound. The nature of the injury was simple and the duration was about ten days. It could have been caused by a hard and blunt substance.

8. The appellants denied the prosecution allegations and pleaded that they have been falsely implicated. Abdur Rashid appellant even denied that he was medically examined.

9. Dr. M. A. H. Qureshi (P. W. 1) deposed that he had been treating Bundu appellant for T. B. of the upper anterior border of the fourth lumbar vertebra of the spinal bones since 24th of April 1960.

10. The prosecution has produced Abdul Karim, Hakeem‑ud- Din, Abdul Haye, Suleman, Sidu, Fateh Muhammad, Chanda son of Fateh Muhammad and Chanda, son of Ismail as eye‑witnesses of the occurrence. The main evidence against the appellants consists of the testimony of Abdul Karim, Hakeem‑ud‑Din, Abdul Haye and Seedu P. Ws. The substance of Hakeem‑ud- Din P. W's statement has been mentioned already, in the statement of the facts of the case. He lodged the first information report. Though in Court he stated that the appellants and Nur Muhammad began to have a hand to hand fight, he did not mention it in the F. I. R. He also mentioned in Court that Majid and Bundu had, respectively, a danda and a phaura in their hands, which they picked up from the wada, but he did not mention it in the first information report Exh.

16. In the F. I. R. it was stated that Abdur Rashid, Majid and Bundu came to the wada and at once started beating Nur Muhammad deceased. Abdur Rashid dealt several knife blows in succession to Nur Muhammad, whereby Nur Muhammad got injured and lay prostrate on the ground. Even then Abdur Rashid appellant stabbed Nur Muhammad in the back with the knife. The knife got stuck in his back and he died soon after. Bundu and Majid were not stated to have picked up any weapon or to have given any blow with a danda or phuura to the deceased. The deceased had six incised injuries and an abrasion on the left part of the chest as also a lacerated wound on the middle and back of the left forearm. The incised injuries were definitely caused with a weapon like a knife, and the abrasion and the lacerated wound could have been received by him when he fell on the ground and rolled in agony. It is just probable that having noticed these injuries on the body of the deceased the Sub‑Inspector thought it advisable to attribute them to Bundu and Majid appellants with a phaura and a danda. This is a clear improvement in the prosecution case. Though Abdul Karim (P. W. 3), Abdul Haye (P. W. 6) and Seedu (P. W. 8) deposed that Bundu and Majid gave a blow each to the deceased with a phaura and a danda, we cannot accept their testimony on this point. It may be mentioned that Suleman (P. W. 7), brother of Hakeem‑ud‑Din, Fateh Muhammad (P. W. 9), Chanda (P. W. 10) and Chanda (P. W. 12) do not mention that Bundu and Majid gave any injuries to the deceased. Chanda (P. W. 10) and Chanda (P. W. 12) saw only Abdur Rashid appellant running away, and Nur Muhammad deceased lying with his face downwards with a knife stuck in his back. Their evidence excluded the presence of the other two appellants. Hakeem‑ud‑Din also stated in his evidence at the trial that he had given the name of Abdur Rashid only at the time of lodging the first information report, but that Abdul Karim and Din Muhammad had got the names of Bundu and Majid appellants added to it. It was argued on behalf of the prosecution that as Mannu, father of the appellants, is his first‑cousin, he is deliberately trying to help the appellants, but there is no manner of doubt that no part was assigned to Bundu and Majid in the F.I.R. and it appears that they were either not there or did not take any part in assaulting the deceased.

11. Learned counsel appearing for the State conceded that Bundu and Majid appellants did not share any common intention with Abdur Rashid appellant to kill or cause injuries to the deceased. He argued that as they picked up a phaura and a danda from the spot and attacked the deceased, they shared the common intention with Abdur Rashid appellant, but, as stated already, we are not satisfied with the prosecution story that they either picked up any weapon or participated in the attack on the deceased. There is no doubt that if they had any common intention with Abdur Rashid, they would have come armed to the spot.

12. On the evidence on the record, the guilt of Bundu and Majid appellants is not made out beyond reasonable doubt. We give them the benefit of doubt and acquit them.

13. We are left with the case of Abdur Rashid appellant. There is no manner of doubt that he gave six injuries with a knife to the deceased. (He bears till tab marks of handling a knife). These injuries caused serious internal damage to the deceased. One of the injuries penetrated the heart and was necessarily fatal. Hakeem‑ud‑Din P. W. has stated that he and Nur Muhammad deceased started a hand to hand fight. Suleman (P. W. 7) has also deposed that when Rashid arrived, he grappled with Nur Muhammad. It appears probable that at the spot a verbal quarrel took place between the deceased and Abdur Rashid appellant, and being agitated, Abdur Rashid appellant stabbed the deceased, which proved fatal. Though there was a sudden quarrel and a sudden fight, Abdur Rashid appellant undoubtedly took undue advantage and acted in a cruel manner in causing no less than six incised injuries to the deceased, some of which were caused even when he lay on the ground. Exception 4 to section 300, P. P. C. has, therefore, no application. We, therefore, hold Abdur Rashid appellant guilty under section 302, P. P. C. It may be mentioned that his learned counsel did not argue that the case fell under any of the exceptions to section 300, P. P. C. We, therefore, maintain the conviction of Abdur Rashid appellant under section 302, P. P. C.

14. Learned counsel for the appellant contended that the sentence of death was not called for, because the offence was committed more than three years ago and Abdur Rashid appellant, at the time of the commission of the offence, was below 18 years of age. Abdur Rashid gave his age at the trial as 17 years, but the Court recorded his age as

21. He was examined by a Medical Board for his age on the 3rd of June 1964. The Board was of the opinion that he was, on that date, about 21 years of age alloying for A variation of about six months on either side, He could thus be about 18 years or less on the date of the occurrence. Considering his age, the fact that three years have elapsed since the offence was committed and that blows were B struck in a sudden quarrel and on the spur of the moment, we are not inclined to confirm the sentence of death. We would, therefore, while upholding his conviction under section 302, P. P. C., sentence him to transportation for life, but otherwise the appeal is dismissed. K.B.A. Appeal partly accepted.