NABI BAKHSH Versus STATE

ALI HUSSAIN QAZILBASH, J.- -These are appeals by leave from the judgment of the Lahore High Court, dated 4-7-1979, whereby the appeals by Muhammad Afzal, Nab! Bakhsh and Abdul Hamid, and the criminal revision filed by Iqbal Waheed complainant were dismissed.

2. The facts are that Hamid-ud-Din deceased, a retired P.C.S. officer, lived in village Somra, Tehsil Lodhran, District Multan. He owned about 10 squares of land which he had donated in favour of Iqbal Waheed, his nephew, and brothers and sisters of Iqbal Waheed and lived with them. Hamid-ud-Din was also the general attorney of Iqbal Waheed. The said Iqbal Waheed had purchased about 4 acres of land from Wajid Ali-and Wahid Ali had sold the same to Abdul Qadir, the father of Nabi Bakhsh appellant. Both the parties were at logger head over the possession of the said land. Iqbal Waheed had instituted a suit regarding the said property and had applied for the grant of temporary injunction which he eventually secured from the High Court. It is alleged that Nabi Bakhsh and others had pilfered the irrigation water regarding the said land and a case was registered against Nabi Bakhsh and others under section 430, P.P.C. at the behest of Hamid ud-Din. Abdul Hamid appellant is the nephew of Nabi Bakhsh and Muhammad Afzal appellant is said to be their friend.

3. On 11-6-1974 Hamid-ud-Din and Iqbal Waheed had come to Lodhran on a personal errand and were going from the Tehsil Office to the bus-stand when at about 1-15 p.m. they were waylaid by all the three appellants near the fertilizer depot. Nabi Bakhsh and Abdul Hamid were empty handed whereas Muhammad Afzal appellant was armed with a Chhuri. Nabi Bakhsh and Abdul Hamid are alleged to have caught the arms of the deceased and Muhammad Afzal gave him a number of Chhuri blows in his abdomen and on the arm. The occurrence was witnessed by Iqbal Waheed, Yousaf, Moheet, Bashir and Mistri Jindwada.

4. Nabi Bakhsh was apprehended at the spot whereas the other two accused made their escape good. Hamid-ud-din was taken to the hospital by Iqbal Waheed and Jindwada whereas Nabi Bakhsh was taken to the same hospital by Muhammad and Yousaf. Leaving Hamid ud-Din at the hospital, Iqbal Waheed went to the police station and lodged the F.I.R. at 1-25 p.m. and also handed over Nabi Bakhsh appellant to the police. Iqbal Waheed had also picked up a leather cover of the Chhuri which Muhammad Afzal appellant had left at the spot, the same was also handed over to the police. The police people came to the hospital where 'hey were informed that Hamid-ud-Din had been taken to Bahawalpur but a few minutes later his dead body was brought to the said hospital. Ali Muhammad S.H.O. (P.W. 11) then prepared the injury sheet and inquest report of the deceased which are Exhs. P.F. and P.G., and sent the dead body for autopsy.

He then visited the spot and collected blood-stained earth vide memo Exh. P.B. In the hospital Iqbal Waheed P.W. had produced before the said P.W. a pair of shoes and pair of socks of the deceased, Exhs. P.2 and P.3, which were taken into possession vide memo Exh. P.C. After the autopsy, the clothes of the deceased were also taken into possession vide memo Exh. P.D. This witness then got the site plan which are Exhs. P.K. and P.K/1. On 12th June, 1974, Hafiz Wahid Bakhsh produced Muhammad Afzal appellant before Ali Muhammad P.W. and on the same day Muhammad Afzal appellant while in police custody led to the recovery of the blood-stained chhuri P.10 from his residential Kotha which was taken into possession vide memo Exh. P.H. The same was secured into a sealed parcel and deposited in the police station and later on sent to the Chemical Examiner. The reports of the Chemical Examiner and the Serologist, Exhs. P.L. and P.M., show that the chhurri and the earth were stained with human blood.

5. On 20th June, 1974, the identification parade of Abdul Hamid appellant was conducted before the Magistrate where the appellant was properly identified. After the completion of the investigation, the appellants were put to trial.

6. At the trial, the prosecution in support of its case produced as many as eleven witnesses including Dr. Muhammad Afzal who on conducting the post-mortem examination found the following injuries on the person of the deceased:

"(1) A stab wound 1" x 1/4" opening into the abdomen on the middle of the abdomen 2" above umbilicus.

(2) A stab wound 1" x 1/4" opening into the abdomen on the left side of the abdomen 3" above left to umbilicus.

(3) A stab wound 41" x 2" on the left side of the upper part of the abdomen. The intestines and omentum were prolapsed out through the wound, transversely oblique.

(4) An incised wound 1" x 1/4" skin deep on the back of the middle of the left forearm."

These injuries were anti-mortem and were caused by a sharp pointed weapon.

7. Muhammad Af2al appellant in his statement under section 342, Cr.P.C. denied his friendship with the other appellants and that he nourished any grievance against Hamid-ud-Din, also expressed his ignorance about the dispute over water irrigation and registration of case under section 430, P.P. C. against Nabi Bakhsh and Abdul Hamid, also denied the occurrence, the recovery of weapon of offence at his instance and the leather cover from the spot. He disowned chhuri Exh. P.10. In defence he produced certified copies Exhs. D.1 and D.2. Abdul Hamid and Nabi Bakhsh the other two appellants, in their statements under section 342, Cr.P.C., admitted their inter se relationship but denied their friendship with Muhammad Afzal appellant. Both the appellants admitted the pendency of litigation in the civil Court but denied any grudge against the deceased. They also admitted the pendency of criminal proceedings initiated by Hamid-ud-Din but denied the occurrence altogether. Nabi Bakhsh denied his arrest at the spot but stated that he was arrested from the shop of Majid, his nephew. Both the appellants stated that they have been charged on account of enmity with Iqbal Waheed. They pleaded innocence.

8. The trial culminated in the conviction of the appellants under section 302/34, P.P.C. vide order of the learned Sessions Judge, Multan, dated 16-10-1976. Muhammad Afzal appellant was sentenced to death and a fine of Rs.2,000 or in default to four months' further simple imprisonment in case his death sentence is commuted. Abdul Hamid and Nabi Bakhsh were sentenced to imprisonment for life and to fine of Rs.2,000 each or in default to four month's further R.I. The fine on realization was ordered to be paid to the heirs of the deceased.

9. Two separate appeals, one by Muhammad Afzal and the other by Nabi Bakhsh and Abdul Hamid were filed against their convictions and sentences whereas Iqbal Waheed complainant filed a criminal revision for the enhancement of sentence of Nabi Bakhsh and Abdul Hamid. These three matters were disposed of by the High Court through the impugned judgment whereby the conviction and sentence of the three appellants was maintained and the revision filed by the complainant was dismissed.

10. It is a broad day light occurrence the report of which has been made without any loss of time. The ocular version of the incident has been furnished by Iqbal Waheed (P.W. 8), Muhammad Moheet Khan (P.W. 9) and Muhammad Yousaf (P.W. 10). Though lqbal Waheed P. W. is an interested witness but his account of the incident has been fully supported by Muhammad Moheet Khan and Muhammad Yousaf P. Ws. who are independent and natural witnesses. All the three witnesses have charged the three appellants for the commission of the crime by stating that it was Nabi Bakhsh and Abdul Hamid appellants who had caught hold of the deceased by his two arms and Muhammad Afzal inflicted Chhuri blows as a result of which the deceased received fatal injuries. Corroboration has also been sought by the prosecution from the medical evidence, the arrest of Nabi Bakhsh appellant at the spot, the recovery of the blood-stained Chhuri at the instance of Muhammad Afzal appellant, the recovery of the leather cover of the Chhuri, the report of the Serologist and, of course, the motive.

11. The sole question to be examined in this case is whether the three appellants committed the murder of Hamid-ud-Din in furtherance of their common intention pursuant to the pre-arranged plan or the murder was the act of an individual. The learned counsel for the complainant strenuously urged that the ocular evidence brought on the record clearly suggests that the murder was committed by all the appellants in furtherance of their common intention and the Courts below, therefore, rightly convicted them under section 302/34, P.P.C. Even if it is assumed, he submitted, that it was a sudden affair, in that case too common intention can develop at the spur of the moment and, therefore, the conviction is well-founded. Reliance was placed by him on Bashir v: Crown P L D 1954 F C 77, Khushi Muhammad v . Crown 1969 S C M R 599, Rasool Bakhsh v . State P L D 1970 S C 316, Sher Zaman v. State 1973 S C M R 503 and Khair Muhammad v, State P L D 1975 S C 351.

12. We have given our careful consideration to the arguments advanced by Mr. Ijaz Hussain Batalvi in support of the above proposition but we do not feel inclined to agree with him. As for the case of the prosecution, consistency of the evidence notwithstanding, this case has certain peculiarities of its own which has led us to the conclusion that the occurrence has not taken place in the manner described by the prosecution and this fact has been taken note of by the learned Judges of the High Court as well. It is true that there existed dispute between the complainant side and Nabi Bakhsh and Abdul Hamid appellants and they were locked in civil and criminal litigations, but Muhammad Afzal appellant was in no way involved in the matter. According to the prosecution, on the fateful day Hamid ud-Din deceased, Iqbal Waheed his nephew (P.W.8) had come to Lodhran and at about 1/1.30 p.m. were going from Tehsil towards the bus-stand and when they reached near the fertilizer depot they found all the three appellants sitting there from where they got up and launched an attack. Now the prosecution is absolutely silent as to whether the appellants had known that the complainant party had on that particular day come to Lodhran and was to proceed towards the bus-stand at that particular time and was to adopt that particular route and it was for this reason that the appellants made themselves available at that particular place in order to commit the crime. The prosecution has also failed to show as to where the three appellants were present before the occurrence. If Iqbal Waheed (P.W. 8) was not in a position to say anything about the presence of the three appellants before the occurrence, at least Muhammad Moheet Khan and Muhammad Yousaf P.Ws., who were allegedly present at the depot, could pin point the place where the three appellants were sitting before the occurrence. It can, therefore, without any fear of contradiction be said that it was not at all the case of waylaying the complainant party by the appellants. In all probability both the parties all of a sudden confronted each other at the place of occurrence and it was there that some very ugly and untoward incident suddenly happened which resulted in the occurrence.

13. Muhammad Afzal appellant is a Mochi by caste and is a resident of Mauza Somra where both the parties reside. It is an admitted fact that he had no grudge or any sort of enmity with the complainant side. He was in no way involved or interested in the litigations going on between the parties. He may be a friend of Nabi Bakhsh and Abdul Hamid but then on that account alone, under no circumstance, he would resort to such a heinous crime and thus offer his neck for the gallows. Further, he by no stretch of imagination is a hired assassin, for, he has no such attributes. To be a hired assassin, one must be absolutely unknown to the complainant party. He must select such a place and time for perpetrating a crime, and particularly a major one, where he is not at all recognized and then at the top of it he must act alone. Thus, in the instant case the possibility that Muhammad Afzal was a hired assassin is ruled out. In any case, as the record stands, we have no doubt in our mind that at the crucial time when both the parties came face to face, some untoward incident all of a sudden happened which led Muhammad Afzal appellant to stab Hamid-ud-Din deceased. The number of blows inflicted by Muhammad Afzal appellant is a clear indication that he alone was made a target in that incident, otherwise he had no motive to stab the deceased. The stabbing of the deceased was apparently an individual act of Muhammad Afzal and, therefore, his conviction under section 302, P.P.C. is maintained.

14. As for Nabi Bakhsh and Abdul Hamid appellants, as stated earlier, there is no evidence on the record that they had any knowledge of the coming of the complainant party to Lodhran and its reaching the place of occurrence at that particular hour. There is also no evidence that because of the civil and criminal litigation between the parties the animosity between them had reached such a stage that they would shed each other's blood. Further, it is borne out from the record that at the time of occurrence, Nabi Bakhsh and Abdul Hamid appellants were absolutely empty handed. The only evidence to bring the two appellants under the mischief of the provision of section 34, P.P. C. is that they were holding Hamid-ud-Din deceased by his two arms while Muhammad Afzal gave him stab blows. This evidence, however, cannot be accepted to be true firstly because when the prosecution could distort the very manner in which the occurrence had taken place, it could very easily falsely implicate Nabi Bakhsh and Abdul Hamid appellants against whom motive existed, secondly, if Muhammad Afzal was a friend of Nabi Bakhsh and Abdul Hamid and had gone to fight on their behalf, it was unlikely that they (Nabi Bakhsh and Abdul Hamid) would not have armed themselves and would not have participated in the occurrence more effectively, thirdly, the alleged apprehension of Nabi Bakhsh at the spot without any resistance is a clear indication that he did not participate in the commission of the crime and, fourthly, had Hamid-ud-Din been young man then it could have been said that Nabi Bakhsh and Abdul Hamid appellants caught hold of his arms to facilitate stabbing by Muhammad Afzal but the record shows that the deceased was an aged person, therefore, there was no need for the two appellants to catch hold of his two arms. It is thus apparent that there is in particular no evidence to support the common design or pre-concert on the part of the appellants. Further, there is not an iota of evidence that Nabi Bakhsh and Abdul Hamid appellants knew that their companion, namely, Muhammad Afzal, had a Chhuri and would resort to stabbing or that there was a call by Nabi Bakhsh and Abdul Hamid to Muhammad Afzal appellant to stab the deceased. It cannot, therefore, be said that any common intention to commit the crime existed or developed at the spur of the moment. The authorities relied upon by the learned counsel for the complainant side are distinguishable.

15. The upshot of the above is that the murder of Hamid-ud-Din deceased was an individual act of Muhammad Afzal and in the circumstances it would be very difficult to hold Nabi Bakhsh and Abdul Hamid appellants guilty of murder of Hamid-ud-Din. In the result, Criminal Appeal No. 256 of 1980 filed by Nabi Bakhsh and Abdul Hamid is accepted. Their conviction and sentence under section 302/34, P.P.C. is set aside and they shall be set at their liberty forthwith if not required in any other case.

16. So far as Criminal Appeal No. 257 of 1980 filed by Muhammad Afzal is concerned, since the prosecution has failed to prove any motive against Muhammad Afzal for committing the murder of Hamid ud-Din, we think the penalty of death will be uncalled for. Therefore, maintaining his conviction under section 302, P.P.C., we reduce his sentence from that of death to imprisonment for life. The sentence of fine imposed upon him is maintained. Benefit of section 382-B, Cr.P.C. is, however, allowed to him. His appeal is, therefore, dismissed with the above modification.

17. As a result of the above, Criminal Appeal No. 258 of 1980 filed by Iqbal Waheed is dismissed.

M.I./N-38/S Order accordingly.