ABDUL RASHID Versus STATE

1. NAIMUDDIN, J. ‑‑Leave to appeal was granted by the order dated 25 th November, 1985, to examine the legality of the High Court judgment as also to A see whether accepted principles of administration of criminal justice have been followed in this case.

2. Abdul Rashid and Riaz Ahmad are brothers inter se. They were tried under section 302 read with section 34, P.P.C. for committing the murder of Muhammad Hanif. They were found guilty by the Additional Sessions Judge, Multan, vide his judgment dated 15th February, 1979 . Abdul Rashid was sentenced to death and Riaz Ahmad to imprisonment for life. Abdul Rashid was also ordered to pay a fine of Rs.2,000 which on realization was ordered to be paid to the heirs of Muhammad Hanif deceased.

3. They filed an appeal against the judgment of Additional Sessions Judge. Reference was also made by him for confirmation of the sentence of death imposed on Abdul Rashid. The High Court confirmed the sentence of death awarded to Abdul Rashid and dismissed his appeal. So far Riaz Ahmad is concerned the High Court held that section 34, P.P.C. was not attracted to his case and converted his conviction from one under section 302, P.P.C. read with section 34, P.P.C. to one under section 323, P.P.C. for causing hurt to Muhammad Hanif deceased and ordered that since the appellant Riaz Ahmad had already suffered sentence for more than one year which is the maximum sentence provided for an offence under section 323, P.P.C., no further sentence of imprisonment was required to be awarded to him.

4. Abdul Rashid applied for leave to appeal which was granted. By the same order leave to appeal was granted against the acquittal of Riaz Ahmad of the charge of murder.

5. We have heard both the appeals together. It may be necessary to briefly state the relevant facts.

6. On 25th December, 1977, at about sunset time both Abdul Rashid and Riaz Ahmad went to bhaini of Bashir Ahmad son of Pehalwan, resident of Chak No. 13‑F, where Muhammad Hanif was also present. They asked Bashir Ahmed and Muhammad Hanif to pay to them their dues amounting to Rs. 365 on account of price of water supplied by them from their tubewell to Abdul Rashid for irrigation of his land and Abdul Rashid paid a sum of Rs. 250 and requested to allow him some time to pay the balance amount of Rs. 115 but Bashir Ahmad and Riaz Ahmad required him to pay the entire amount to them. They told him that they would take with them his two goats as security for payment of balance amount which they would return to him when the outstanding amount was paid to them. The complainant did not agree. Thereupon, appellants Bashir Ahmad and Riaz Ahmad untied the strings of the two goats and started taking them away but Muhammad Hanif deceased stopped them to do so whereupon appellant Abdul Rashid abused him. Muhammad Hanif deceased returned the abuses with the result that Abdul Rashid appellant took out a knife and gave three knife blows to Muhammad Hanif. Riaz Ahmad who was carrying a Soti also attacked Muhammad Hanif and gave him two Soti blows as a result he fell down. After inflicting the injuries on the person of Muhammad Hanif appellant and Riaz Ahmad ran away. After the incident Muhammad Hanif was removed to his house in injured condition. As no conveyance was available in the village, Muhammad Hanif could not be taken to any hospital that night. However, on the following day he was taken to Civil Hospital, Multan, where he was medically examined by Dr. Muhammad Arif Saeed (P.W.1), who found following six injuries on his person:

7. "(1) A lacerated wound on the left side of head 3" above left ear 2" x 1‑1/2" x bone deep.

(2) An incised wound on left side of chest on postero lateral angle in lower half size 1‑3/4" x 3/4" depth not probed, surgical emphy sema present. .

(3) An incised wound on lateral left side of abdomen size 1/2" x 1/4" depth not probed.

(4) An incised wound on top of left shoulder also size 1‑1/4" x 1/2" depth not probed.

(5) Complaining of pain in abdomen.

(6) Scratch on front and left lateral side of abdomen size 6" in length."

8. Out of the above injuries, injury No. 2 was found dangerous to life. Injuries 1, 3, 4 and 5 were kept under observation and the remaining injury No. 6 was simple. The probable duration of the injury was about 24 hours. Injuries Nos. 2, 3, 5 and 6 were caused with sharp‑edged weapon while injuries 1 and 5 were caused with blunt weapon.

9. After obtaining medico‑legal report of Muhammad Hanif, Bashir Ahmad went to Police Station Shujabad and a case under section 307/324/34, P.P.C. was registered vide F.I.R. (Ex. P/C) on the statement of Bashir Ahmad recorded by Muhammad Inayat, A.S.I. (P.W. 4) on 26th December, 1977, at about 8.00 p.m. Muhammad Hanif was later on taken to Nishtar Hospital where he was operated upon. On 27th December, 1977, Abdul Qayum, A.S.I. (P.W. 11) reached the Civil Hospital, Multan, where Muhammad Hamf had been admitted for treatment and after enquiring from the doctor vide application Ex. P/A/1 as to whether Muhammad Hanif was fit to make the statement and after receiving his reply in the affirmative vide memo. Ex. P/A/2, he recorded the statement of Muhammad Hanif under section 161, Cr.P.C. He also took into possession blood stained shirt (P/2) Chadar (P/3) and Safa (P/4) of Muhammad Hanif vide memo (Ex. PE) which were produced before him by Bashir Ahmad. On the same day at about 4 p.m. He collected blood‑stained earth from the place of occurrence and made it into a sealed parcel. On 4th January, 1978, the said A.S.I. artested Abdul Rashid who, while in police custody led to the recovery of knife (P/1) from under‑neath an iron drum in his tubewell room, which was blood‑stained. The A.S.1. took the knife into possession, vide memo (Ex. PG) and made into a sealed parcel. Riaz Ahmad was also taken to custody on the same day. He produced blood‑stained soti (P/5) at the time of his arrest which was taken into possession vide (Ex. PF). Muhammad Hanif succumbed to his injury on 7th January, 1978, in Nishtar Hospital. Abdul Qayum, A.S.I. reached the hospital immediately and prepared inquest report (Ex. PK) and after preparing it took the dead body for post‑mortem examination which was conducted by Dr. Allah Nawaz (P.W. 2) Medical Officer, Civil Hospital, Multan, on the same day at 3.30 p.m.

10. According to Dr. Allah Nawaz (P.W. 2) who carried out the post mortem examination at Civil Hospital, Multan, the body had five injuries and in his opinion the death of deceased was due to injuries to the vital organs (lungs and stomach) caused by following injury out of five injuries which was sufficient to cause death in the ordinary course of nature:

11. "An incised wound 1‑3/4" with stitches 3 in number 1‑1/2" below the left lower angle of the left scapula. On dissection it passed from 7th and 8th ribs susconstal space cutting the pleaurea and lower lobe of left lung then diaphragm. After that it cut the posterior wall of stomach."

12. According to him all injuries were ante‑mortem. Injury No. 1 was on the head caused by blunt weapon and the rest had been caused by sharp‑edged pointed weapon. Injury No. 5 was operated wound at the trial.

13. The conviction of the appellant Bashir Ahmad is based on ocular evidence of Bashir Ahmad (P.W. 8), Ashiq Hussain (P.W: 9) and Fida Hussain (P.W. 10), recovery of blood‑stained knife at the instance of Abdul Rashid and recovery of blood‑stained Soti produced by Riaz Ahmao both proved through Zulfiquar Ahmad (P.W. 6), dying declaration of Muhamtnad Hanif recorded by Abdul Qayum A.S.I. besides the motive. All of which have been examined by the trial Court in great detail.

14. The defence of Abdul Rashid was denial, false implication and alibi.

15. We have heard Ch. Khalilur Rehman, Advocate) in Appeal No. 103/85 and Mr. Riaz Anwar, in Appeal No. 104 of 1985. Before us, as before the trial Court and High Court, learned counsel submitted that the case was covered by exception 4 to section 300, P.P.C. He also submitted that', the trial Court has not properly considered the evidence of alibi. Lastly, he submitted that the sentence of death awarded to Abdul Rashid eras harsh and requires reconsideration.

16. 1n Appeal No. 104 of 198'x, Mr. Riaz Anwar submitted that since Riaz Ahmad shared the common intention with Abdul Rashid, he should also have been held guilty of committing murder of Muhammad Hanif.

17. Now, taking the first submission of Ch. Khalilur Rehman it may be stated that to take advantage of exception 4 to section 300; P.P.C. appellant Abdul Rashid should not have taken undue advantage as Muhammad Hanif and Muhammad Bashir were unarmed. Further, he acted in an unusual, if not in a cruel manner. This submission was not made before the trial Court. However, it was made before the High Court and in this connection the High Court has observed as follows:

18. "According to the eye‑witness account as furnished by the complainant Bashir Ahmad P.W 8, Ashiq Hussain P.W. 9 and Fida Hussain P.W. 10, after the exchange of abuses Abdul Rashid appellant had taken out a knife and had given successive blows with it to Muhammad Hanif deceased. According to the medical evidence, there were three incised wounds on the person of Muhammad Hanif, when he was examined by Dr. Muhammad Arif Saeed P.W.1 on 26‑12‑1977 soon after the occurrence. Out of the afore‑mentioned three injuries, two were found on the chest and abdomen, which are on the vital parts of the body. It is thus evident that the two essential ingredients of exception 4 to section 300, P.P.C., namely that there was a right and that the accused had not taken any undue advantage and had not acted in a cruel or unusual manner, are missing in the present case. The mere fact that the death of Muhammad Hanif was caused without premeditation and that he sustained the fatal injuries in the heat of passion upon a sudden quarrel are not sufficient to bring the case within the purview of exception 4 to section 300, P.P.C. The number of injuries, the weapon used and the manner in which these injuries were inflicted, all go to show that Abdul Rashid appellant had not only taken undue advantage, but had .acted in a cruel manner."

19. We are also of the opinion that appellant Abdul Rashid had taken undue advantage as Bashir Ahmad and Muhammad Hanif were unarmed and he had also acted if not in a cruel manner at least in an unusual manner.

20. So far the plea of alibi is concerned it was not raised before the High Court but it was raised before the trial Court and has been dealt with by it. On this plea the case of appellant Abdul Rashid was that he had not participated in the commission of the murder of Muhammad Hanif as at the time of occurrence, he was at Multan and in4hts connection he produced, Gauharur Rehman, Line Superintendent, WAPDA (D.W. 2) who deposed that in December, 1977, he was posted at Shujabad as Line Superintendent. Abdul Rashid appellant then present m Court, was serving under him as Assistant Line Man. He (the appellant) alongwith other WAPDA employees was deputed on civil duty at Multan for two days i.e. 25th and 26th December, 1977. On 25th December, 1977, Abdul Rashid remained with him. The closed the work at 3.00 p.m. and Abdul Rashid and other gang men left form Shujabad. He proved the certificate (Ex.. D.W. 2/A) which was given by him. In cross‑examination he stated that they reached Shujabad on 25th December, 1977, at about 4:00 or 4:30 p.m. Abdul Rashid accused then left the office and Went home, and he did not know the whereabouts of Abdul Rashid after he left his office at Shujab4d at 4‑30 p.m. He further stated that Basti Malook is at a distance of about 15 miles from Shujabad and is situated on a pacca road, and Bus service was available for Basti Malook. He again said Basti Malook is at a distance of 15 miles by katcha road but if one travels by bus it is at a distance of 30 miles. On the basis of this evidence it was argued that if the incident took place on 25th December, 1977, after sunset how could it be possible for Abdul Rashid to have travelled 30 miles by bus or 15 miles by katcha road within one or 1‑1/2 hours and reached the place of occurrence and therefore he submitted that alibi stand proved.

21. The question of alibi has been discussed by the Trial Court as follows:‑‑

22. "As regards the plea of alibi, it is important to note that on the fateful day the sunset time recorded in 'the diary pertaining to year 1977 shows that it was seven past five. The distance between the place of occurrence and Shujabad Town which is connected with it by metalled road is about 15 miles. Gauharu Rehman D.W. 2 has admitted in his cross‑examination that bus service is available for Basti Malook. Even otherwise one can reach there by a car or any other ready transport."

23. There is no evidence that Abdul Rashid walked on foot from Shujabad to Basti Malook. There is also no evidence as to how he travelled. It is quite possible to travel 15 miles or 30 miles by bus or other transport and reach the spot before the sunset. Therefore, even if Gauharar Rehman is believed it could not be said that Abdul Rashid could not have been at the spot at the time of incident. Further, in view of the evidence of two independent eye‑witnesses, namely, Ashiq Hussain and Fida Hussain which has been duly believed by the Trial Court as well as High Court, his presence at the scene of offence and participation in the incident, cannot be doubted.

24. Next question raised is that of sentence. There is no doubt that Abdul Rashid's case was not covered by exception 4 to section 300, P.P.C. and plea was rightly rejected by the High Court for cogent reasons. Nonetheless, in the circumstances of this case and particularly when there was no premeditation we considered that the ends of justice would meet if the sentence of death is altered to imprisonment of life under section 302, P.P.C. and a fine of Rs. 10,000 or in default two years' further R.I. is imposed. The amount of fire if realised be paid to the heirs of the deceased Muhammad Hanif. We order accordingly. Abdul Rashid is also given benefit of section 382‑B, Cr.P.C. With this alteration his appeal is dismissed.

25. So far as acquittal appeal of Riaz Ahmad is concerned the High Court in its judgment observed as follows:

26. "Muhammad Hanif deceased had not sustained the injuries as a result of preconcerted attack on him by the appellants. Abdul Rashid had inflicted injuries on his person with a knife, which he knew were likely to cause his death. Riaz Ahmad appellant had given Soti blows to the deceased without sharing the intention or knowledge of Abdul Rashid appellant.

27. These blows were given by him after the deceased had sustained the fatal injuries at the hand of Abdul Rashid appellant and had not in any manner contributed to his death."

28. Accordingly the High Court found that Riaz Ahmad's liability did not extend beyond the inflicting of injury No. 1 which was found to be simple.

29. The above finding of the High Court is unexceptionable. Moreover, there is no evidence that Riaz Ahmad knew that Abdul Rashid was carrying any knife. Therefore, he could be saddled with his own act which was causing of simple injury to Muhammad Hanif. Therefore, his acquittal under section 302, P.P.C. and conviction under section 323, P.P.C. by the High Court is proper and does not call for any interference. Accordingly appeal against him is dismissed. His bail bond stands discharged.

30. M.A.K./A‑355/5 Order accordingly.