1976 P Cr (PLP)

MUHAMMAD RAFIQ TARAR, J.‑--Alim‑ud‑Din and his sons Ikram‑ud‑Din alias Babu (since dead) and Ghulam Sabir were tried by the learned Sessions Judge, Multan, for having on 11th May 1972 at 1‑30 p .m., in the area of Basti Bava Safra, Multan City, committed the murder of Alam deceased and made murderous assault on Akbar Ali P. W. in furtherance of their common intention. By judgment, dated 12th February 1974, of the learned Sessions Judge, Alim‑ud‑Din was acquitted of the charges, Ghulam Sabir appellant was convicted under section 302 of the Pakistan Penal Code and sentenced to death and Ikram‑ud‑Din alias Babu (since dead) was convicted under section 307, P. P. C. and sentenced to S. I. for two years and a fine of Rs. 500 or in default in the payment thereof to further R. I for six months. He was acquitted of the charge of murder. Ghulam Sabir appellant and Ikram‑ud‑Din filed Appeal No. 168 of 1974 to question the correctness of their convictions and sentences. Akbar Ali complainant filed Cr. Revision No. 378 of 1974 with the prayer that sentence of lkram‑ud‑Din alias Babu be enhanced and Ghulam Sabir appellant be sentenced to fine and the same may be paid to the heirs of Alam deceased as compensation, He also filed Cr. Revision No. 487 of 1974 with the prayer that the acquittal of Alim‑ud‑Din be set aside and his re‑trial be ordered. The case is also before us on reference for confirmation of the death sentence awarded to Ghulam Sabir appellant. All these matters are being taken up together and disposed of by this judgment.

2. Alam deceased was the nephew of Akbar Ali P. W. Mst. Zareena, widow of the deceased, is the niece of Alim‑ud‑Din acquitted accused. Mst. Zubaida, wife of Ghulam Sabir appellant, and Mst. Hussina, widow of Ikram‑ud‑Din (since dead), are real sisters inter se. Akbar Ali P. W. is their uncle and Alam deceased was their cousin.

3. The brief facts of the prosecution case are that Islam‑ud‑Din (P. W. t4), nephew of Akbar Ali (P. W.12), owed a sum of Rs. 16 or 17 to Ghulam Sabir appellant. On 11th May 1972, Islam‑ud‑Din P. W. attended the Waleema ceremony of the son of Umar‑ud‑Din, a cousin of Akbar Ali complainant. Ghulam Sabir appellant, Babu (since dead) and acquitted accused Alim‑ud‑Din were also invited at the said ceremony. After taking his meals at the house of aforesaid Umar Din, Islam‑ud‑Din P. W. came to Hano‑ka‑Chhaja at 11 a m. Alim‑ud‑Din, Babu and Ghulam Sabir appellant met him there and demanded the amount. Alim‑ud‑Din accused abused him saying as to why he was not paying the amount to Ghulam Sabir appellant. He also gave him beating with a stick which he picked up from a nearby shop. Akbar Ali complainant who was present at the house of Umar Din in connection with the Waleema ceremony, was informed by some body that Alim‑ud‑Din, Babu and Ghulam Sabir appellant had quarrelled with Islam‑ud‑Din. Akbar Ali P. W. informed Raza and Muhammad Basher P. Ws. (not produced) about the quarrel and asked them to accompany him to Basti Bava Sufra to complain the beating given to Islam‑ud‑Din P. W. Then Akbar Ali complainant, Alain, deceased, Raza and Muhammad Bashir P. Ws. went to Basti Bava Sufra and met the accused persons in front of the shop of one Hukam Din. Both the parties sat on the cots which were lying in front of the said shop. Umar Din P. W. and Ibrahim (not produced) also reached there and sat down on the cots. Umar Din P. W. told Alim‑ud‑Din accused that it was a dispute between the baradari and he should have settled it amicably instead of beating Islam‑ud‑Din with stick. At that very moment, Alam deceased remarked to Alim‑ud‑Din accused that he was an elderly man and had beaten Islam‑ud‑Din and if he (Alam deceased) had been present there he would have torn him (Alim‑ud‑Din accused) to pieces. Upon this, Alim‑ud‑Din caught hold of the arms of the deceased and Ghulam Sabir appellant gave a dagger blow on his back. Alam deceased fell down on the ground. Akbar P. W. got up and touching Alim‑ud‑Din with his hands asked him as to what was he doing, whereupon Babu appellant took out a knife from his dub and gave a blow with it on the abdomen of Akbar Ali P. W. who also fell down. Then all the three accused decamped with their weapons. In the meantime, Abdur Razzaq and Shah Muhammad had also reached the spot. After the occurrence, Alain deceased and Akbar Ali complainant were removed to the hospital. On reaching the hospital, Alain deceased succumbed to his injury.

4. On receipt of a telephonic call from the Casualty Ward, Nishtar Hospital, Multan, Muhammad Saleem, Sub‑Inspector (P. W. 17) reached the hospital at 3‑30 p.m. and vide query Exh. P. N. enquired from the doctor as to whether Akbar Ali was in a fit condition to make a statement to which the doctor replied in the affirmative vide Exh. P. N. Thereafter, he recorded the statement (Exh. P .W.) on the dictation of Akbar Ali P. W. and sent it to the Police Station for the registration of the case where formal F. I. R. (Exh. P. J./1) was drawn up on its basis. The dead body of Alam deceased was lying in the hospital. The S. I. prepared the injury statement (Exh. P. O.) and the inquest report (Exh. P. O./1) of the dead body and despatched it to the mortuary for post‑mortem examination. He also prepared the injury‑statement (Exh. P. M./1) of Islam‑ud‑Din P. W. who was present in the hospital and got him medically examined. Then be reached the spot at 7‑30 or 8 p.m. and took some blood‑stained pieces of plaster from there and made them into a sealed parcel vide memo. Exh. P. K. He arrested Ghulam Sabir appellant on the same night from near the graveyard who, while in custody led to the recovery of blood‑stained dagger (Exh. P. 2) from under the fuel-wood lying under the staircase of his house which was made into a sealed parcel vide memo. Exh. P. C. On 12th May 1972, Muhammad Khan A. S. I. arrested Babu (since dead) from his house who led to the recovery of blood‑stained knife (Exh. P. 1) from a hole in the wall of his house which was made into a sealed parcel vide memo. Exh. P. B. Alim‑ud‑Din accused was arrested by Muhammad Saleem S. I. on 15‑5‑1972. After the investigation, a case under sections 302 arid 307, P. P. C. read with section 34, P. P. C. was sent up against all the three accused.

5. On 12th May 1972, Dr. Altaf Hussain Gardezi. Medical Officer, Civil Hospital, Multan conducted the autopsy on the dead body of Alam deceased and found the following injuries on it:‑ (1) An incised wound (stab wound) 1 x ' chest cavity deep on the back and lower part of the chest. (2) Multiple abrasions ' x to 2/3 ` x ' on the left side of forehead. On internal examination, 10th rib was found cut on the right side. Pleura was also cut. Right lung was punctured and had a cut 2/3' x ' on its lower lobe. Right chest cavity vas full of blood and the lung had collapsed. In the opinion of the doctor, death was due to shock and haemorrhage as a result of injury to the right lung. Injury No. 1 had been caused by a sharp‑edged weapon and was sufficient to cause death in the ordinary course of nature. The time between injury tend death was half to one hour and that between the death anal post‑mortem examination about 24 hours. On the same day at 2.05 p.m., Dr. Muhammad Zubair, C. M. O., Nishtar Medical College, Multan, examined Akbar Ali complainant and found an incised wound over the front of abdomen in the right lumber area 4 ' from the umbilicus, 1 ' x '. Depth was kept under observation. A portion of the intestine was coming out of the wound. The injury had been caused by a sharp‑edged weapon and was dangerous to life. On the same day at 6‑30 p.m., Dr. Allah Nawaz, A. M. O., Civil Hospital, Multan, examined Islam‑ud‑Din P. W. and found the following injuries on his person:‑ (1) Two abrasions ' x ' each on the back of the left little finger. (2) An abrasion ' x ' on the back of left ring finger. (3) An abrasion '' x '' on the back of left middle finger. (4) An abrasion '' x '' on the tip of right index finger. All the injuries were simple in nature, caused by a blunt weapon within 12 hours.

6. To support its case the prosecution examined seventeen witnesses in all, its main stay being the ocular testimony of Akbar Ali (P. W. 12) and Umar Din (P. W. t3). The prosecution also placed reliance on the recovery of blood‑stained weapons at the instance of Sabir appellant and Babu (since dead).

7. The accused pleaded not guilty to the charge. They, however, admitted their relationship inter se as also with the complainant party. Ghulam Sabir appellant admitted the occurrence but he gave a counter- version as under:‑ "On the day of occurrence at about 9 a.m. Islamuddin P. W. came to my shop to buy milk on credit. 1 told him that since already he owed me Rs. 16 or Rs.

17. I would not sell anything to him on credit. On this he started quarrelling with me. We exchanged blows. About two hours afterwards Islam-ud‑Din, Akbar Ali P. W. and Alain deceased came at my shop in a tonga. Alam deceased abused me by calling the name of my mother and also raised Lalkara that I should be torn into pieces. The deceased and Akbar Ali P. W. attacked me. A cake‑cuter was lying at my shop. I picked it up and in self‑defence gave one injury each to Alam deceased and Akbar Ali P. W. Alim‑ud‑Din my father, and Babu, my brother, were not present there at that time." Alim‑ud‑Din acquitted accused stated that Akbar Ali P. W. wanted to marry Mst. Hussaina and Mst. Zubaida to his sons, but their father married them to his (Alimuddin's) sons because the sons of Akbar Ali P. W. were not of good character and on that account Akbar Ali was nursing grudge against him. No evidence was led in defence.

8. The learned trial Judge believed the motive and the ocular account. He also accepted the evidence relating to the recovery of dagger at the instance of Ghulam Sabir appellant. He disbelieved the recovery of kit, to at the instance of Babu, (since dead). He rejected the defence version and on the basis of the above prosecution evidence found Ghulam Sabir appellant guilty of murder and Babu appellant guilty of murderous assault on Akbar Ali P. W. He, however, acquitted Alim‑ud‑Din on the ground that the mere fact that he caught hold of the arms of the deceased when the fatal injury was inflicted to him by Ghulam Sabir appellant, was not sufficient to hold that he intended to facilitate the commission of offence.

9. The learned counsel for the appellants contended that the learned trial Judge had failed to appreciate the evidence properly and if the entire case of the prosecution be accepted, ever then the offence would fall within Exception IV to section 300 of the Pakistan Penal Code. He further contended that according to the prosecution's own showing Alam deceased had insulted Alim‑ud‑Din in the presence of his grown up sons (Ghulam Sabir appellant and Babu), therefore, there was an element of grave and sudden provocation and Exception 1 to section 300 of the Pakistan Penal Code was also attracted. He further argued that since Alim‑ud‑Din had given beating to Islam‑ud‑Dm P. W., nephew of the complainant, therefore, the motive to attack was on the side of the complainant party and Sabir appellant had acted in self‑defence. We have gone through the entire evidence with the help of the learned counsel for the parties and have given our careful consideration to the arguments addressed by them. Islam‑ud‑Din (P.W. 14) stated that he owed a sum of Rs. 16 or Rs. 17 to Ghulam Sabir appellant and on the day of occurrence at about 11 a.m. Alim‑ud‑Din accused accompanied by his sons came to him at Hanu‑ka- Chhaja and abused him and asked as to why he was not paying the amount to Ghulam Sabir appellant. He further stated that Alim-ud-Din picked up a soti from a nearby shop and beat him with it. This incident of heating is admitted by Ghulam Sabir appellant though in a different way. According to him, on the day of occurrence at 9 a.m. Islamuddin P. W. came to his shop to buy milk on credit. He told him that since a sum of Rs. 16 or Rs. 17 was already outstanding against him, therefore, he would not sell any thing to him on credit, upon which a quarrel ensued between them and they exchanged blows. Islam‑ud‑Din P. W. vas examined for his injuries and the doctor found a few abrasions on his person. It is thus established that Islam‑ud‑Dir was given beating on the day of occurrence prior to the murder of Alam deceased. The: question whether Islam‑ud‑Din was given beating by Alim‑ud‑Din at Hanu‑ka‑Chhaja as alleged by the prosecution or by Ghulam Sabir at his shop as alleged by him, is not very material for determining the fate of this case. The only thing that emerges out of this incident of beating is that the complainant party felt aggrieved due to beating given to Islam‑ud‑Din P. W.

10. It is the prosecution's own case that the complainant party went to the accused party in order to complain, the behaviour of Alim-ud-Din. The presence of Akbar Ali at the spot is admitted by Ghulam Sabir appellant. The house of Umar Din P. W. was situated ne,_:r me place of occurrence, therefore, his presence at the spot was also natural. On going through their statements we find that they had given a consistent account of the occurrence. Akbar Ali P. W. had no previous animosity against the accused party and Umar Din P. W. is also an independent and disin terested witness. The only question that crops up for decision is as to whether on the basis of evidence led in the case a conviction under section 302, P. P. C. was proper or any Exception was attracted. Akbar Ali complainant and Umar Din (P. W. 13) are unanimous that when Umar Din P. w. told Alim-ud-Din that it was a dispute (relating to the payment of money) between the baradari and he should have settled it amicably instead of beating Islam‑ud‑Din, Alam deceased remarked to Alim-ud-Din that he was an elderly man and had beaten Islam‑ud‑Din and if he (the deceased) had been present there, he should have torn him (Alim-ud-Din accused) into pieces, whereupon Alim-ud-Din caught hold of the arms of the deceased and Ghulam Sabir appellant gave a dagger blow on his back. It is in the statement of Umar Din P. W. that then Akbar Ali complainant got up and touching Alan‑ud‑Din accused with his hands asked him as to what was he doing, whereupon Babu (since dead) took out a knife from his dub and gave a blow with it on the abdomen of Akbar Ali P. W. Akbar Ali admitted in cross‑examination that before Alam deceased had remarked that if he had been present there he would have torn Alim‑ud‑Din into pieces, the accused had not uttered any hot words. He further admitted that when Alim-ud-Din got up on these remarks he simply caught hold of the arms of the deceased without expressing any annoyance. He also admitted that Alim-ud-Din had not uttered any hot words during the talk when the deceased said that if he had been there he would have torn him into pieces. He also admitted that the deceased was standing and he and the others present there had asked him not to utter such words as they had come there for reconciliation, but the deceased on being so advised did not sit down. Thus, the evidences clearly shows that the deceased himself initiated the trouble: He remarked to the deceased that he had beaten Islam‑ud‑Din P. W. and if he had been present at the time of that beating he would have torn him (Alim‑ud‑Din accused) into pieces. This was uttered in the presence of two grown‑up sons of Alim-ud-Din accused. On hearing these remarks Alim‑ud‑Din and his sons Ghulam Sabir and Babu (since dead) would not have kept mum and there must have been in exchange of hot words. Both the eye‑witnesses stated that on hearing these remarks Alim‑ud‑Din got up and caught hold of the deceased which indicates that there teas a grappling between the two. All this evidence shows that Ghulam Sabir appellant acted solely out of the provocation generated by the heat of a sudden quarrel followed by grappling between the deceased and the elderly father of Ghulam Sabir appellant. In cross-examination Akbar Ali P. W. admitted that the accused were his relatives and there was no enmity between the parties prior to the occurrence and they bad cordial relations with each other. The assault on the deceased by Ghulam Sabir appellant resulted from a sudden excitement and he gave only one blow to the deceased on his back. It appears that it was not present to his mind that a blow given on the back would penetrate the chest cavity, therefore, at the most he can be burdened with the knowledge that his act was likely to cause death and the offence would fall under section 304 (Part II) of the Pakistan Penal Code. The plea of self‑defence raised by Ghulam Sabir appellant is without any substance and was rightly rejected by the learned trial Judge. On the complainant side one person lost his life and the other was seriously injured but the appellant did not suffer even a scratch. If three persons had gone to attack him they would have caused him extensive harm and would not have come out worse in the incident. The remarks uttered by the deceased no doubt carried some element of provocation but it was not so grave as to bring the case within the ambit of Exception I to section 300, P. P. C.

11. The learned counsel for the appellant stated that Ikram‑ud‑Din alas Babu appellant had died during the pendency of appeal, therefore, his appeal has abated.

12. As regards the petition for revision against the acquittal of Alim‑ud‑Din, it may be mentioned that the only part attributed to him was that he caught hold of the deceased when he uttered that had he been present at the time of incident of beating given to Islam‑ud‑Din P. W. he would have torn him (Alim‑ud‑Din) into pieces. The mere fact that he caught hold of the deceased from the arms and that too on being provoked by the deceased, does not show any criminal intention on his part. He was, therefore, rightly acquitted. Consequently, Criminal Revision No. 487 of 1974 is dismissed.

13. Criminal Revision No. 378 of 1974 for the enhancement of the sentences of Babu and Ghulam Sabir appellant also fails, because Babu appellant is dead and the appeal of Ghulam Sabir appellant is being partly accepted.

14. For all the foregoing reasons, we alter the conviction of Ghulam Sabir appellant from section 302, P. P. C. to section 304 (Part II), P. P. C. and sentence him to six years' rigorous imprisonment. His death sentence is not confirmed. Order accordingly.