MANZOOR AHMAD Versus SARDAR MUHAMMAD

ORDER

ALI HUSSAIN QAZILBASH, J.- -These are two petitions for leave against the judgment of the Lahore High Court, dated 22-12-1984.

2. Manzoor Ahmad lodged a report in Police Station Garh, District Faisalabad on 25-8-1979 at 7-30 p.m. alleging therein that today at about 10/11 in the morning Ali Muhammad, Noor Muhammad, Karam Bakhsh alongwith the complainant, were returning to their houses after saying Eid prayer. Ali Muhammad was walking ahead and when he reached in front of the Chappar belonging to Wazir Muhammad father of Sardar Muhammad and Muhammad Tufail, all the three accused came out, raised a Lalkara and proclaimed that they would teach a lesson to the deceased and attacked Ali Muhammad. Muhammad Ashraf accused caught hold of the deceased from his arms and Sardar Muhammad inflicted a spear blow on the left flank of Ali Muhammad which passed through his body. After the receipt of the injury, Ali Muhammad fell down on the ground. When Karam Bakhsh P.W. tried to intervene, Muhammad Tufail inflicted a Sota blow on his head. The accused, thereafter, made good their escape. The motive given in the F.I.R. is about the distribution of land between the two brothers namely, Ali Muhammad deceased and Wazir Muhammad.

3. Ali Muhammad then injured succumbed to his injuries enroute to the hospital, therefore, his dead body was brought to his house and Manzoor Ahmad left for the police station, where he lodged F. I. R. Ex.P.A. which was recorded by Abdul Rasheed, M.H.C.

4. The investigation in this case was conducted by Jan Muhammad, Head Constable and Asghar Ali, S.I. All the three accused were arrested on 10-9-1979. On 17-9-1979 Sardar Muhammad accused while in custody, led the police to the recovery of spear P.3, which was blood-stained. On the same day Muhammad Tufail led to the recovery of Sota P.2. The doctor who examined Ali Muhammad deceased on the following day of the occurrence, found a stab wound 6 c.m. x 1 c.m. - abdomen deep situated on the upper back part of left flank about 8 c.m. from mid line (inlet). A stab wound 4 c.m. x 1 c.m. into abdomen deep on the right upper part of abdomen near middle line at 11 O'clock position and 11 c.m. above the level of the umblicus (outlet) was also found.

5. The prosecution in support of its case produced as many as ten witnesses. Sardar Muhammad respondent admitted his relationship with the co-accused and the complainant party. He had denied a dispute over distribution of land and also denied the charge of the killing of Ali Muhammad. He also denied the recovery of the spear P.3. He also denied his presence at the spot and stated that he has been falsely involved in this case. To the same effect is the statement of Muhammad Tufail respondent. He denied injuries to Karam Bakhsh. Muhammad Ashraf respondent also made a similar deposition. He also deposed that 'it was just after sunrise that I heard a noise in front of our Chappar. I went there and found that the deceased Ali Muhammad and my grandfather Wazir Muhammad were quarrelling. Ali Muhammad was then wearing no shirt. Ali Muhammad deceased was complaining to my grandfather that our cattle had strayed into his (Ali Muhammad) field and damaged his crops. My grandfather and Ali Muhammad started exchanging abuses. Upon them Ali Muhammad deceased caught hold of my grandfather, who was just old and weak, by his beard and threw him down on the ground and placed one hand on his throat in order to strangulate him to death. Several persons gathered there. At this stage someone gave spear blow to Ali Muhammad deceased which resulted in his death'. He further deposed that he has been falsely implicated and the P.Ws. were not present at the spot.

The learned trial Court after analysing the evidence vide its judgment, dated 3-3-1982 convicted Sardar Muhammad and Muhammad Tufail under section 302/34, P.P.C. Sardar Muhammad respondent was sentenced to death and to a fine of Rs.8,000 and in default whereof to two years' R.I. It was ordered that Sardar Muhammad respondent would pay a sum of Rs.5,000 as compensation to the heirs of the deceased and in default to undergo six months further R.I. Muhammad Tufail was sentenced to imprisonment for life and a fine of Rs.6,000 in default to two years' R.I. Muhammad Tufail was further convicted under section 323, P.P.C. and sentenced to one year's R.I. He was ordered to pay a sum of Rs.1,000 as compensation to Karam Bakhsh or in default to two months' R.I. Both the sentences in his case were ordered to run concurrently. Muhammad Ashraf was, however, acquitted.

6. Sardar Muhammad and Muhammad Tufail challenged their convictions and sentences by way of an appeal in the High Court, where the learned Judges vide their judgment, dated 22-12-1984 maintained the conviction of Sardar Muhammad under section 302/34, P.P.C. but altered his sentence from death to imprisonment for life and maintained the sentence of fine as well as compensation. Muhammad Tufail was acquitted of the charge under section 302/34, P.P.C. but convicted under section 323, P.P.C. and sentenced to the period already undergone.

7. The above judgment is now the subject-matter of the two petitions which are being disposed of through this order.

8. We have heard Sh. Shaukat Ali, Senior Advocate, in support of his petition here before us. He has prayed for the enhancement of the sentence of Sardar Muhammad respondent, only. His petition qua Muhammad Tufail is, therefore, dismissed.

9. The learned Judges of the High Court have dealt with the case of the prosecution in the following manner:-

"We agree with the reasons stated by the learned trial Court for not believing the motive version and consequently the motive version as set up by the prosecution was rightly rejected.

Instead we are inclined to accept as immediate cause of the occurrence, the one provided by Mohammad Ashraf, acquitted co-accused, in his statement before the trial Court to the effect that after sunrise he had heard noise in front of their house and that when he went out, he found that the deceased and his grandfather Wazir Mohammad were quarrelling. The deceased was not wearing any shirt at that time and that he was complaining to his grandfather Wazir Mohammad that their cattle had strayed into his field and damaged his crops. Then Wazir Mohammad and the deceased started exchanging abuses, they both being real brothers. Upon this the deceased caught hold of Wazir Mohammad who was old and weak, by his beard and threw him down on the ground and placed one hand on his throat in order to strangulate him to death. While this was the position, it is probable that the father of Muhammad Ashraf, acquitted co-accused, namely Sardar Muhammad appellant, rushed to the scene of crime armed with spear and caused the solitary fatal injury to the deceased on seeing him on the throat of his father. It is further possible that Muhammad Tufail appellant who was armed with a Sota also being son of Wazir Mohammad, caused simple injuries to Karam Bakhsh P.W. on the head after the deceased had received the fatal blow at the hands of Sardar Muhammad appellant. The venue of the occurrence is in front of the house of the accused party even according to the prosecution version. The recovery evidence is to the effect that the spear recovered from Sardar Mohammad appellant was human blood-stained, whereas the Sota recovered from Muhammad Tufail appellant was not stained with blood. Be that as it may, even if we do not attach any importance to the recovery evidence, the ocular testimony examined in the light of the statement made by Mohammad Ashraf, acquitted co-accused, has made us arrive at the conclusion that the parties being closely related, the occurrence was sudden in nature and was not premeditated. It is reasonably probable that the deceased was quarrelling with his own brother on some trivial matter when they came to blows and the deceased being younger managed to fell the other on the ground. All this happened in front of the house of the other brother. On hearing the noise, his two sons armed with spear and Sota came out and when they saw their father in that condition, one of them attacked the uncle and killed him, whereas when Karam Bakhsh P.W. advanced forward to rescue the deceased, he was given a blow on the head by Muhammad Tufail appellant. In the light of what has been discussed above, in our opinion, it is not a case of common intention and, therefore, the application of section 34, P.P.C. was uncalled for. However, we maintain the conviction of Sardar Muhammad appellant under section 302, P. P. C . but in the peculiar circumstances of this case, since it is not a case of self-defence though there is an extenuating circumstance, we alter his sentence from that of death to imprisonment for life."

10. The reduction in the sentence of Sardar Muhammad respondent has been taken serious notice of by the learned counsel for the petitioner who, inter alia, vehemently submitted that the well-established principles of appreciation of evidence have not been kept in view while altering the sentence of death awarded to Sardar Muhammad to imprisonment for life, in that no extenuating circumstance existed for such a reduction. He further submitted that Ali Muhammad and Wazir Muhammad, the two real brothers, were quarrelling and were admittedly empty-handed and there is no evidence, whatsoever, from the side of the prosecution and nothing brought from the side of the defence that Ali Muhammad had felled his brother Wazir Muhammad on the ground and was in the process of strangulating him, therefore, there was no occasion for Sardar Muhammad to inflict a spear blow to Ali Muhammad deceased. The injury inflicted on the deceased by Sardar Muhammad with the spear which pierced the body of Ali Muhammad through and through, he submitted, was a clear indication of the intention of Sardar Muhammad of causing death of Ali Muhammad. He further submitted that even if it is assumed that the affair was sudden, no reason existed with Sardar Muhammad respondent to launch such a severe attack upon Ali Muhammad who admittedly was unarmed. The learned counsel further submitted that the learned Judges have erred in ignoring the evidence of the prosecution, which was independent and consistent in accusing the respondent for causing the death of Ali Muhammad and relying solely upon the statement of Muhammad Ashraf the acquitted co-accused which resulted in the reduction of sentence of the respondent.

11. We have given our careful consideration to the arguments advanced by the learned counsel for the petitioner and grant leave to consider whether, in the circumstances of the case, the learned Judges of the High Court have properly exercised their discretion in not awarding the normal penalty of death to Sardar Muhammad respondent. Leave is thus granted.

12. Since leave to appeal has been allowed in Criminal Petition No. 17 of 1985, leave is also granted in Criminal Petition No. 27 of 1985.

M. I. /M-236/5 Appeals allowed.