P L D 1983 Karachi 545 (PLP)

Appellants abovenamed, being aggrieved by judgment dated 23rd January, 1982 of the learned Additional Sessions Judge, Sanghar, in Sessions case No. 22 of 1979, whereby appellants have been convicted under sections 302 and 324, P. P. C. read with section 34, P. P. C. and sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000 each and compensation of Rs. 1,000 )each to the heirs of deceased or in default to suffer further R. 1. for three months on each account and to pay compensation of Rs. 500 each to the injured Wali Muhammad or in default to suffer further R. I. for one month respectively, have preferred the above appeal, on the following facts and grounds :

2. The brief facts of the prosecution case are as under : Complainant Wali Muhammad and his Masat (cousin) deceased Bashir Ahmed lived in Khad Mohallah Tando-Adam near each other. All the four appellants named above are also residents of the same Mohallah. On 8-2-1979 after sunset time, the complainant went to the house of deceased Bashir Ahmed from where both of them were going to town. When they came out in the street in front of the house of Rosbandin, all the four appellants namely Khalil Ahmed, Bashir Ahmed, Niaz Ahmed and Shadi Khan came out from the Hotel of Ghafobr. All of them were armed with daggers, except Shadi Khan, who had a Lathi. Appellants Niaz Ahmed and Bashir Ahmed gave one blow each to the complainant, which hit on his chest and right middle finger. The complainant raised alarm. His cousin deceased Bashir Ahmed intervened to rescue the complainant. P. Ws. Fakir Muhammad, Khushi Muhammad and others were attracted on the cries and in their presence, appellants Niaz Ahmed and Khalil Ahmed gave one dagger blow each to deceased Bashir Ahmed, on his head, while Shadi Khan caused him a Lathi blow. Basbir Ahmed fell down on the ground and then all the four appellants ran away with their weapons to their houses. Deceased Bashir Ahmed went unconscious and was bleeding from his injuries. The complainant and P. Ws. Fakir Muhammad and Khushi Muhammad rushed him to Tando-Adam Hospital for immediate treatment, but he succumbed to his injuries soon after their ,arrival in the Hospital. The complainant then Having left Fakir Muhammad and Khushi Muhammad near the dead body, himself went for report.

3. About five years prior to the incident, complainant Wali Muhammad had got married to Mst. Hamida, daughter of Nek Muhammad, Chohan but on account of her questionable character, he had divorced her about six months before this incident. Mst. Hamida is the niece of appellants Khalil Ahmed, Bashir Ahmed and Shadi Khan and cousin of appellant Niaz Ahmed.

4. Additional S. H. O. Ahmed Khan recorded the F. I. R. of the complainant on 8-2-1979 at 8-30 p.m. and launched the investigation. He noted down the injuries of the complainant and referred him to M. O. Tando Adam, for his examination, treatment and certificate. He then proceeded to the Hospital and held inquest over the dead body of the deceased and requested the Medical Officer for conducting the post-mortem. He thereafter visited the scene of offence and stayed for the night, there. On the following morning, the investigation was taken over by S. H. O. Muhammad Shari Soomro. He secured the blood-stained earth from the Wardat and sealed it and prepared such Mashirnama. He also recorded the statements of the witnesses. On 2-2-1979, the S. H. O. arrested all the four appellants and secured the blood-stained clothes of appellant Niaz Ahmed. On the following day, he recovered one blood-stained dagger each from appellants Niaz Ahmed and Khalil Ahmed under separate Mashirnamas. The blade of both the daggers were of prohibited length. As such a case under section 13(d) of the Arms Ordinance was registered against each appellant Niaz Ahmed and Khalil Ahmed separately. The S. H. O. also sent the blood-stained articles to the Chemical Examiner, Karachi for his opinion and thus after completing the usual investigation, he challaned all.the four appellants in the Court of Civil Judge & F. C. M. Tando Adam, from where the case was sent to the Court of Session. Appellants Khalil Ahmed and Niaz Ahmed were also sent up separately under section 13(d) of the Arms Ordinance.

5. The appellants in their statements under section 342, Cr. P. C. vide Exhs. 40, 41, 42 and 43 have denied all the allegations levelled against them and have added, that they had been falsely involved in this case due to enmity.. Appellants Niaz Ahmed and Khalil Ahmed have also stated, that the Go-called blood-stained weapons had been foisted upon them by the police. Appellant Bashir Ahmed has, however, examined himself in defence.

6. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced to appellants -above-named, as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in Memo of appeal.

7. The learned Advocate for the appellants in support of the above appeal submitted as under : (a) That there was a sudden quarrel between the parties and as such, offence if any would fall under section 304(1), P. P. C. and not under section 302, P. P. C. as held by learned trial Court, even if prosecution version is accepted. (b) That prosecution has established its case against appellant Niaz Ahmed only, that too under section 304(I), P. P. C. as interested P. Ws. have been corroborated by P. W. 8 Muneer Ahmed, in respect of this appellant only. In support of this contention the learned Advocate for appellant relied upon case reported in 1980 P Cr. L J 1275. (c) As far as remaining appellants except Niaz Ahmed are concerned, there is no corroboration at all, as recoveries have been disbelieved by the learned trial Court. Even Chemical Examiner report is negative. (d) That learned trial Court has convicted all appellants on the basis of alleged motive and alleged absconsion for which there is no evidence on record and as such the impugned judgment of the learned trial Court cannot be sustained, in respect of all appellants, except appellant Niaz Ahmad, in view of the statement of P. W. Muneer Ahmed. In support of this contention the learned Advocate for the appellant relied upon cases reported in P L D 1964 S C 26, P L D? 1969 Kar. 200 and 1969 S C M R 200. 8. . The learned Advocate appearing for the complainant, who was present submitted, that common intention on part of all the appellants has been established from the evidence on record and as such all appellants alongwith the appellant Niaz Ahmed have been rightly convicted under section 34, P. P. C. In support of his contention the learned Advocate for the complainant relied upon cases reported in 1978 P Cr. L J 227 and P L D 1965 S C

363. The learned counsel for complainant further submitted, that P. W. 8 Muneer Ahmed is truthful witnesses and since this witness has said, that appellant Shadi was with appellant Niaz Ahmad and as Lathi blows are attributed to him, he would be equally guilty with appellant Niaz Ahmad. under section 34, P. P. C.

9. The learned Advocate appearing on behalf of the State submitted, that on merits he was supporting the impugned judgment, but the offence committed by the appellants in respect of the death of the deceased Basbir Ahmed would fall under section. 304(I), P. P. C. and not under section 302, P. P. C.

10. I have carefully considered the above submission made by the learned Advocates before me and have gone through R & P of the learned trial Court and impugned judgment and cases cited by the learned Advocates before me. ?

11. I find great force in the contention of the learned Advocate for the appellants, that no reliance can be placed on the statements of P. Ws. Wali Muhammad, Kbushi Muhammad and Fakir Muhammad as they are closely related to the deceased and their 161, Cr. P. C. statements admittedly were recorded after lapse of 3/4 days of the incident, for which no cogent explanation has been given by I. O. in view of admitted enmity between the parties a stated by P. W. 1 Wali Muhammad and P. W. 3 Fakir Muhammad.

12. The only independent P. W. is P. Ws. 8 Muneer Ahmed, he has implicated appellant Niaz Ahmed only and as such in view of sudden quarre between the parties the offence committed by the appellant Niaz Ahmed would fall under section 304(I), P. P. C. according to the learned counsel for the appellants as far as deceased Bashir Ahmed is concerned and under section 324, P. P. C. as far as complainant Wali Muhammad is concerned. I see great force in this contention of the learned Advocate for the appellant as recoveries from appellants have been discarded by the learned trial Court and as such only corroborative evidence on record, against the appellants in my opinion is that of P. W. 8 Muneer Ahmed, against whom no serious enmity is alleged. It is also admitted position that it was a chance meeting between the parties and as such question of premeditation and conspiracy between the appellants to cause injuries to the complainant party prima facie did not arise and as such in the absence of any other evidence to attract the provisions of section 34, P. P. C. in my opinion each appellant could only be held responsible for his own act.

13. I have carefully gone through the statement of P. W. Muneer Ahmed and I find the same straightforward and convincing and as such I am of the opinion, that prosecution on the basis of his statement has established its case against appellant Niaz Ahmad only, beyond reasonable doubt.

14. I see no reason to agree with the conclusions of the learned trial Court in respect of statements of remaining. Ws. as well as use of alleged motive and alleged abacontion, as corroborative pieces of evidence against all the appellants, when all the appellants were arrested within five days or incident and denied in their statement under section 342, Cr. P. C. that they) bad absconded.

15. Keeping in view all the above discussions and facts on record, in my opinion prosecution has established its case against the appellant Niaz Ahmad only, beyond reasonable doubt and in view of sudden quarrel between the parties, on chance meeting the offence committed by appellant Nia Ahmad, in respect of the death of deceased Bashir Ahmed would fall under section 304(I), P. P. C. and not under section 302, P. P. C.

16. Therefore I allow the above appeal as far as appellants Khali Ahmed, Bashir Ahmed and Shadi Khan are concerned and set aside their convictions and sentences awarded to them and acquit them by giving benefit of doubt and direct that all these three appellants be released forthwith, if not required in any other case.

17. As far as appellant Niaz Ahmad is concerned, while dismissing his appeal on merits, I alter his conviction from section 302, P. P. C. to one under section 304(I), P. P. C. and consequently set aside sentence of life imprisonment awarded to him and sentence him to suffer R. I. for eight years and maintain the fine of Rs, 1,000 on this account and in case of failure to pay fine to suffer further R. I. for three months and to pay compensation of Rs. 1,000 to the heirs of the deceased Bashir Ahmed and in default to suffer further R. I. for three months and also maintain his conviction under section 324, P. P. C. and sentence him to suffer R. I. -for one year and to pay compensation of Rs. 500 to P. W. Wali Muhammad and in default of payment of compensation, to suffer further R. I. for one month. All the sentences to run concurrently.

18. I direct that appellant Niaz Ahmed be given benefit of the provisions of section 382-B, Cr. P. C. in respect of his period of detention, as under trial prisoner towards his substantive sentence, in addition to all other remissions to which appellant may be entitled in accordance with rules.

19. The above appeal stands disposed off in terms of the above judgment. M. z. M.?????????? Order accordingly.