1985 P Cr (PLP)

(5) A lacerated wound medial to injury No.4, size 1 c.m. x c.m. x scalp deep. (6 to 9) Three linear abrasions on the outer side of right forearm lower part, size 6 c.m. x c.m., 10 c.m. x c.m. and 4 c.m. x c.m. respectively. (10) A contsusion above the left elbow, size 4 c.m. x 2 c.m. (11) A stab wound on front of right side chest at 5th inter‑costal space near the sternal border size 2 c.m. x 1 c.m. underneath muscles were cut and penetrated into the pericardium, cutting the pericardium, penetrated into the right ventricle of heart and cut it. (12) A stab wound on the left side abdomen at the hypochondrium size 3 c.m. x 11 .m. x peritoneal cavity deep. Fifth inter‑costal space of right side chest was cut. Pericardium and heart were injured. Abdominal wall and peritoneal were also injured. In the opinion of the doctor, death was due to shock and extensive haemorrhage resulting from injury No.11 which was sufficient to cause death in the ordinary course of nature. This injury and injury No.12 were caused by sharp‑edged weapon and the rest with blunt weapon. On the same day, the same doctor examined Javed Akhtar complainant and found as many as twelve injuries on his person, simple in nature, caused by blunt weapon. On the same day, the same doctor examined Shaukat Ali P.W. He did not find any visible mark of injury on his person. Shaukat Ali, however, complained of pain in the abdomen and both the thighs. His abdomen was tense and tender all over.

5. In support of its case the prosecution examined three eye‑witnesses, namely, Javed Akhtar, Shaukat Ali and Jalal Din.

6. The appellants pleaded not guilty to the charge. Akhtar Hussain and Ahmad Ali accused stated that they were not present in their house at the time of occurrence. Muhammad Ali accused when asked about the earlier incident stated as follows:‑ "...The fruit of Anar tree was not fit for human consumption. I alongwith my brothers and their families used to reside in a rented house comprising of only one room which had no bath room and kitchen. Javed Akhtar P.W. and his younger brother used to climb over the wall on the pretext of plucking Anar from the branches hanging in our house and thus they used to interfere in our privacy. On the day of occurrence at about 6‑00 p.m. I and my co‑accused Ahmad Ali had a quarrel with Javed Akhtar P.W. when Aftab Alam his younger brother had climbed over the wall. Shortly thereafter, when Ahmad Ali my co‑accused came out of his house, Javed Akhtar P.W. and Zafarullah deceased stopped him in front of our house and grappled with him. Ahmad Ali co‑accused was carrying a piece of cable in his hand with which he hit Javed Akhtar P.W. and Zafarullah Khan deceased. I also went to his rescue and gave beating to Javed P.W. and as well as Zafarullah Khan deceased. Zafarullah Khan deceased went to his house, Javed Akhtar P.W. also left the scene threatening to avenge the said beating. Ahmad Ali my co‑accused also went away." He gave a counter‑version of the occurrence as under:‑ "In fact after Iftari because the day of occurrence was in the month of Rammzan, I started cutting the branches of Anar tree to put an end to the dispute. I had a small Datar like instrument supplied to me by WAPDA for cutting the cable with which I was cutting the Anar branches hanging in our house. Suddenly, I found Zafarullah Khan deceased with a knife in his hand present in the courtyard of my house threatening to attack me and when he was about to give me blows with the knife I caused him injuries with the Datar like instruments which I was carrying at that time in order to save myself. None of the so‑called eye‑witnesses were present at that time." No evidence was led in defence

7. After examining the evidence on the record, the learned trial Judge rejected the defence version and observed that the occurrence took place in the house of the accused "where their presence was a natural incidence. Therefore, common intention on the part of the accused is not available on, the record. Each accused is, therefore, to be held liable for his own individual act". It was further observed that the occurrence took place all of a sudden in the heat of passion without any premeditation, there was no previous enmity between the deceased and Muhammad Ali accused and the latter had not acted in a cruel or unusual manner. On the basis of these findings the appellants were convicted and sentenced as mentioned above.

8. The learned counsel for the appellants contended that, besides two incised wounds, the deceased had ten blunt weapon injuries which were not explained by the alleged eye‑witnesses and this fact indicated that they had not seen the occurrence. He further submitted that due to earlier incident motive to attack was with the complainant party and facts and circumstances of the case lend substantial support to the defence plea put forward by Muhammad Ali appellant. The learned State counsel supported the judgment of the trial Court. The learned counsel for the complainant submitted that, on the basis of evidence available on the record, a case under section 302, P.P.C. is clearly made out against all the accused.

9. At the trial Javed Akhtar, Shaukat Ali and Jalal Din supported the prosecution version. Javed Akhtar P.W. is the son of the deceased but Shaukat Ali and Jalal Din are unconnected persons having no relationship with the deceased nor any enmity with the appellants. Shaukat Ali P.W. stated that during the days of occurrence, he was constructing a drawing‑room for the deceased and was putting up in his house. This statement was not challenged in cross‑examination. Jalal Din P.W. is a resident of the same street in which the house of the occurrence is situated. Javed Akhtar P.W. was residing in the adjacent house. He had as many as 12 injuries on his person and his presence at the spot is not open to any doubt. The defence version that he suffered these injuries in the earlier incident is without any substance. He was medically examined on 29‑7‑1980 at 2 a.m. Had he suffered these injuries in the earlier incident, as alleged by Muhammad Ali accused, he would have gone to the hospital much earlier and also reported the earlier incident at the police station which was only one and a half furlongs away from his house. The bald statement of Muhammad Ali appellant that Javed Akhtar P.W. suffered the injuries during the earlier incident, cannot be accepted. All the three eye‑witnesses argil natural witnesses of the occurrence. The mere fact that they did not explain the blunt weapon injuries on the person of the deceased is not a sufficient ground for holding that they had not seen the occurrence. It is to be noted that in the F.I.R. which was lodged within fifteen minutes of the occurrence, the complainant stated that he rushed to the house of the accused on hearing the alarm. It appears that the eye‑witnesses reached the spot when the deceased had already suffered blunt weapon injuries. In any case Shaukat Ali and Jalal Din P.Ws. had absolutely no motive to offer themselves as false witnesses in a case involving capital, punishment.

10. It is an admitted fact that after the earlier incident which, according to the prosecution, took place at 5 p.m. and according to the defence at 6 p.m. There was no previous enmity between the parties. It is in the F.I.R. that the complainant rushed to the house of the accused on hearing the alarm. The facts and the circumstances of the case indicate that the occurrence took place all of a sudden without premeditation in the heat of passion on a sudden quarrel which took place between the deceased and Muhammad Ali appellant who was cutting the branches of the tree standing in the courtyard of the deceased. In the circumstances, Muhammad Ali appellant was rightly convicted under section 304 (Part‑I), P.P.C. In this case the principle of vicarious liability is not attracted, therefore, Akhtar Hussain and Ahmad Ali have been rightly convicted under section 323, P.P.C. The sentence awarded to the appellants by the trial Court is also appropriate and calls for no interference.

11. For the foregoing reasons there is no merit in this appeal and it is dismissed. Criminal Revision No.652 of 1982 also fails and is dismissed. S.A Appeal dismissed