1977 PLP 106 (SCMR)

MUHAMMAD GUL, J.‑Yasin, appellant herein, and his brother Abdul Karim, were tried under section 302/34, P. P. C. for the murder of Ghulam Hassan, of whom, Abdul Karim was sentenced to death and the appellant herein, to transportation for life. On appeal and reference to the High Court, their convictions and sentence, were upheld and death sentence of Abdul Karim was confirmed. On their joint petition for leave, this Court, by order dated 9‑10‑1970 dismissed the petition vis- -vis Abdul Karim, and his convic tion and sentence is no more in question. Leave was, however, granted to the appellant herein, to consider whether on the facts of the case, he has been rightly held tit be vicariously liable under section 34, P. P. C. The incident took place a little before sunset on 31‑3‑1968, while Ghulam Hassan deceased, a resident of Chah Mithuwala, was proceeding through the fields of Basti Jamalwali two squares away, to fetch some wheat from Muhammad Din Muhajir. The appellant and his brother were residents of Chah Shaikhan at some distance from Chah Mithuwala. The case for the prosecution was that Abdul Karim had contracted illicit liaison with Mst. Zohra Mai, a sister of the deceased who had been married to one Nazir Ahmad, a cousin of the appellant some 6/7 years prior to the incident. To avoid further complications on the suggestion of the deceased, Mst. Zohra Mai was divorced by her husband 20/25 days prior to the incident and she started living with her brother Ghulam Hassan deceased. Abdul Karim, nevertheless, continued hovering round the village of the deceased to prosecute his intrigue. He was reprimanded by the deceased and asked to refrain from his evil designs, to which he replied by saying that nobody dare stand in his way. On the day of occurrence, at about noon time, Abdul Karim was again seen in the Chah Mithuwala and was reprimanded again by the deceased and his brother, when hot words and abuses were exchanged. Abdul Karim ultimately left, but while going away threatened the deceased and his brother with dire consequences. On the same day, slightly before sunset Ghularn Hassan deceased was going to Basti Jamalwali to fetch wheat from Muhammad Din Muhajir, when the appellant and his brother Abdul Karim, emerged from behind a wall and challenged the deceased. The latter tried to escape but was overtaken by the appellant and his brother. The appellant held him by the waist, while Abdul Karim took out from his dub a churri, 15" in length and stabbed the deceased, causing him a penetrating incised wound 1 "x ", cutting the right lung in upper lobe on the right side of chest in its upper part. The part of the sternum at the site of the wound was completely cut. On hearing the alarm of the deceased, Fazal Husain (P.W 9) who was following the deceased, Ahmad Bakhsh (P. W. 10) and Jindwadda (P. W. 11) reached the spot and the two assailants left the scene. The F. I. R. was lodged by Fazal Husain the same night at 10 p.m. Besides the evidence of the three eye‑witnesses, of whom Ahmad Bakhsh (P. W. 10) was considered to be natural and independent witness and the medical evidence, the prosecution case also rested on the recovery of blood stained churri, and blood‑stained clothes, at the instance of Abdul Karim and a blood‑stained chadar from the appellant and a blood‑stained sheath from the spot. The defence plea was one of bare denial which in the face of the above clear evidence was rightly rejected by the High Court and the trial Court. So far as the appellant is concerned, one aspect of the matter however appears to have been entirely overlooked. There is nothing, whatever, to show that the trial Court or the High Court had considered whether on the facts of the case, the appellant can be held vicariously liable under section 302/34, P. P. C. for the solitary fatal injury caused by his brother Abdul Karim. In the F. I. R. lodged by Fazal Husain, who was the first to reach the spot, it was clearly stated that the two assailants and the deceased grappled with each other before Abdul Karim gave blow with the knife which he took out from his dub. There is no indication, whatever, whether there was any preconceiv ed plan by the appellant and his brother to attack the deceased, or whether they had any previous knowledge that the deceased was to go on an errand to Chah Shaikhan. There is nothing to show either that the appellant knew that his brother Abdul Karim had a knife in his dub. Section 34, P. P. C. envisages some kind of pre‑planning though it must be conceded that common intention to commit an offence can some time develop while the transaction is in progress. But in the absence of any knowledge on the part of the appel lant that his brother had the knife in his dub, it would be too much to say that he shared his brother's intention to kill the deceased. The fact that in the F. I. R. it is stated in unmistakenable terms that the deceased and‑his two assailants grappled with each other, creates an impression so far as the appel lant was concerned his intention was, mainly to belabour the deceased and not to kill him outright. In that state of evidence, it is difficult to maintain the conviction of the appellant under section 302 read with section 34, P. P. C. Accordingly, we accept his appeal, set aside his conviction under section 302/34, P. P. C., which we hereby alter to that under section 323, P. P. C. and sentence him to one year's R. I. which he has already undergone. Accordingly we direct that he be set at liberty forthwith, provided his detention is not required for any other cause. Order, accordingly.