ALLAUDDIN vs MUHAMMAD FAROOQ AND 3 Other

ORDER

1. NASIM HASAN SHAH, J.-This is a petition for leave to appeal against the judgment dated 22-12- 1979 passed by a Division Bench of the High Court of Sind, Karachi, in Confirmation Case No. 17 of 1977 and Criminal Appeal No. 26 of 1977..

2. The relevant facts are that the respondent Muhammad Farooq (aged about 18 years) and his younger brother Muhammad Siddiq (aged about 15 years) were tried, inter alia, under section 302/34, P. P. C. For the murder of Abdul Razzaq and for causing injuries to his brother Abdul Jabbar, P. W. 6, and also some minor injuries to their father Alauddin, P. W. 5, who is complainant in the case. The Additional Sessions Judge, Hyderabad, convicted both the respondents under section 302/34, P. P. C. And sentenced both of them to death by his judgment dated 22-1-1977. On appeal and reference to the High Court of Sind, the learned Judge of the High Court allowed the appeal of the respondents to the extent that the conviction of respondent No. 1 was altered to that for an offence under section 304, Part I, P. P. C. And instead of the sentence of death he was awarded rigorous imprisonment for seven years while the appeal of Muhammad Siddiq, respondent No. 2, was practically allowed in that his conviction was altered from one under section 302/34, P. P. C. To that of an offence of causing simple hurt under section 324, P. P. C. Since, however, he was only 15 years of age and a child-offender within the meaning of section 3 of Bombay Children's Act he was let off with a warning as the only sentence on the ground that he had suffered enough hardship.

3. Dissatisfied with the above, the father of Abdul Razzaq deceased and the complainant in the case Alauddin has filed this petition for leave to appeal seeking reversal of the judgment of the High Court dated 22-12-1979 and restoration of the judgment of the trial Court dated 22-1-1977.

4. The occurrence was caused by a trivial incident. The parties are neighbors. Alauddin complainant and his two sons Abdul Jabbar and Abdul Razzaq were running a Biri making Karkhana in their quarter. Some three days prior to the incident, which occurred on 23-8-1973--- a petty quarrel had taken place between the parties. The labourers engaged by Alauddin had taken a few bricks lying in front of the house of the respondents and had put them in their "tachari". The respondents Muhammad Siddiq and Muhammad Farooq abused the labourers and Alauddin and his sons asked them not to do so and offered to return bricks to them. The mother of he two boys, however, was not satisfied and also abused Alauddin complainant blaming them for the incident. She, presumably, was also abused in return. On the fateful day at about 6-30 p.m. Alauddin and his two sons Jabbar and Razzaq were standing outside their quarter on the road. Muhammad Farooq and Muhammad Siddiq happened to pass by them. They expressed annoyance because according to them their mother had been abused by them during the earlier quarrel. The led to an exchange of hot words between the parties. Suddenly, in the midst of this quarrel respondent Farooq took out a knife from his pocket and stabbed Abdul Razzaq in the area of his chest as a result of which Abdul Razzaq fell down. Abdul Jabbar brother of Abdul Razzaq tried to intervene, on this Muhammad Siddiq took out his knife and stabbed him. Alauddin complainant tried to intervene when Farooq caused him a knife injury on his arm. During thin altercation Farooq respondent was also found to have sustained a danda blow on his head and he was bleeding from to wound on his skull. He .Had also an incised injury on the palm of the lest hand. Muhammad Siddiq respondent also had a minor injury on his person, namely, scratch on his neck. Abdul Razzaq succumbed to the injuries caused by the knife blow of Muhammad Farooq and expired within 1 --hours after the occurrence.

5. The matter was reported to the police by Alauddin complainant at Police Station Latifabad and the respondents were arrested on the same evening. The mashirnama of injuries prepared by the S. 1.

6. Police shows the following injuries on the person of Muhammad Farooq and Muhammad Siddiq :- Injuries on the person of the accused Muhammad Farooq : "(1) One danda blow on the head of accused Muhammad Farooq son of Umrao Khan blood oozing out there from. Shirt-collar blood-stained and is torn from front side which was secured and sealed.

(2) One blow with sharp side weapon on the palm of the left hand.

(5) One scratch-mark on check.

7. Injuries on the person of the accused Muhammad Siddiq:

(1) One -nark of little scratch of the neck of accused Muhammad Siddiq. All his clothes were blood- stained. Police secured the same and sealed."

8. The learned Judges in the High Court after a careful survey of the evidence and all circumstances of the case were of the view that the incident had taken place as follows; "The appellants (respondents herein) while passing in front of their house found deceased Abdul Razzaq, his brother Jabbar and their father Alauddin standing on the road. The parties were annoyed with one another on account of the previous quarrel. There was, therefore, exchange of hot words and abuses. All of a sudden appellant Farooq took out his knife and dealt only a single blow with it to deceased Abdul Razzaq. Obviously, Alauddin father of deceased Abdul Razzaq moved towards Farooq in order to attack him. Possibly a danda blow was given on the head of Farooq. Farooq had then stabbed him and Jabbar was also given a knife blow by Siddiq when Jabbar tried to intervene."

9. They further were of the view that the fight was not premeditated and the responsibility of the act of stabbing by Farooq respondent was not shared by his brother Muhammad Siddiq because Muhammad Siddiq had taken out his knife only after Alauddin complainant and Abdul Jabbar, P.

10. W. 6, bad tried to intervene and attack them. These circumstances showed that Muhammad Siddiq did not have a common intention to commit the murder of Abdul Razzaq. He had also taken no part in causing any injury to Abdul Razzaq resulting in his death. He would, therefore, be liable only for a. Offence under section 324, P. P. C. For causing simple injury to Abdul Jabbar. Since he was only 15 years old he was also covered by the provisions of the Bombay Children's Act.

11. So far as the liability of Muhammad Farooq respondent was concerned, it was held that his case would fall under Exception (4) to section 300, P. P. C. Because the death of Abdul Razzaq was caused in the course of sudden fight in the heat of passion and no undue advantage was taken.

12. The parties happened to meet on the road by chance and there was a verbal exchange or quarrel which had proceeded the fight. The act of stabbing was a sudden one and no unfair advantage was taken by the respondent Muhammad Farooq. On this view of the matter, the conviction and sentence were altered in the manner already stated above.

13. Mr. Noor Ahmad Noori passionately contended that the judgment of the High Court had resulted in gross-miscarriage of justice in that there was no doubt about the identity of the culprits, they had used knives and had killed an innocent person wantonly and cruelly and that section 302, P. P. C.

14. Was clearly applicable. However, he had no answer to the question as to how Muhammad Farooq had received a danda blow on his head from which blood was oozing even at 22-00 hours (10 p.m.) while the incident had taken place at 6-30 p.m. His shirt-collar was blood-stained and was torn from front side, which showed that there had been a struggle and grappling between the parties.

15. He could not also deny that only one injury was inflicted by him and that the fight bad occurred suddenly and obviously, without any premeditation when the parties came face to face with other on the road-side by chance.

16. In these circumstances, we are satisfied that the High Court was justified' in extending the benefit of Exception (4) to section 300, P. P. C. To the case of Muhammad Siddiq. We also agree with the High Court that Muhammad Siddiq could not be held to a share common intention with Muhammad Farooq and that the injuries suffered by the parties were in a free-fight wherein every participant was liable only for his own act.

17. Mr. Noori tried to argue that Muhammad Siddiq was not 15 years old as held by the High Court, on the basis of the examination by a Radiologist daring the course of his trial. Even if this was so, we would agree with the High Court that he could be convicted only under section 324, P. P. C. And as he had already remained in jail for more than two years after being convicted and sentenced by the learned Additional Sessions Judge he was entitled to be set at liberty after that period.

18. The overall result is that this petition must fail and is dismissed hereby.