GUL MUHAMMAD Versus SAID KARIM

1. NAZIM HUSSAIN SIDDIQUI, J: -- This judgment will dispose of Criminal Appeal No.128 and Criminal Revision No.103 of 1991, which arise from the same judgment, dated 11th May, 1991, delivered by the then Sessions Judge, Karachi, West, in Sessions Case No.281 of 1987, whereby he convicted appellants Said Karim, Bukht Parveen alias Bakht Karim, both son of Gul Rahim, and Gul Rahim and sentenced each of them as follows:--

2. "(1) Said Karim under section 304, Part I, P.P.C. to suffer imprisonment for life and also to pay a fine of Rs.50,000, out of which if realized half of the amount of fine shall be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C., or in default to suffer R.I. for 6 months. Under section 324, P.P.C. to suffer R.I. for one year. Both the sentences to run concurrently. Accused shall also get the benefit of section 382-B, Cr.P.C., and his period in detention from 7-6-1987 till 17-3-1988 when he was released on bail shall be counted towards his sentence of imprisonment.

(2) Accused Bakht Parveen alias Bakht Karim: to suffer R.I. for one year. He shall get the benefit of section 382-B, Cr.P.C., and his period of detention in jail from 7-6-1987 till 14-11-1987 be counted towards his sentence of imprisonment. He is further directed to pay a sum of Rs.1,000 as compensation for the hurt caused to P.W. Gul Muhammad and in default of payment to suffer a period of one month more as R.I.

(3) Accused Gul Rahim: Under section 323, P.P.C. to pay a fine of Rs.500 or in default to suffer S.I. for one month. No sentence of imprisonment is recorded against him as this accused has remained in jail for about five months."

3. In Appeal No.128 of 1991, the convictions and sentences of above named appellants have been challenged, while Criminal Revision No.103 of 1991 has been preferred under section 435/439, Cr.P.C. by complainant/ applicant Gul Muhammad for altering convictions of above-named appellants from the sections of P.P.C. under which they have convicted to section 302 read with section 34, P.P.C. and for awarding them the sentence of death. The facts relevant for decision are as follows:--

4. The statement of complainant Gul Muhammad under section 154, Cr.P.C. was recorded by the police at Abbasi Shaheed Hospital, which later on was incorporated in F.I.R. No.129/1987 of Police Station Buldia Town, registered under section 307/34, P.P.C. The occurrence took place on 7-6-1987 at 10-15 p.m. in the lane opposite the house of complainant, situated in Rashid Abad, Buldia Town, Karachi.

5. Complainant Gul Muhammad and his younger brother Jehanzaib, who is the deceased of this case, used to reside together in the same house. Since one week before the occurrence the stones were being thrown in their house by some unknown persons. On the day of occurrence at about 10-15 p.m. the stones were again pelted in their house. Deceased Jehanzaib came out in the lane and so P.W. Muhammad Yousaf. It is alleged that at that time all the appellants were present in the lane. Deceased Jehanzaib had asked them as to who had pelted stones in his house. Appellants Said Karim and Gul Rahim informed him that they had not thrown the stones and that stones were being pelted in their house also. According to prosecution, the appellants had threatened deceased and appellant Said Karim caused him (Jehanzaib) Chhuri injuries on the left side of chest and abdomen. P.W. Muhammad Yousuf tried to intervene and was caused knife blow by appellant Said Karim. Appellant Bakht Karim gave Chhuri blow to complainant Gul Muhammad, while appellant Gul Rahim gave Danda blows to P.W. Muhammad Yousuf. According to report/F.I.R., the incident was witnessed by P.Ws. Ahmed Khan, Muhammad Younus, Muhammad Rauf, and Noor Hassan. Initially the report was recorded under section 307/34, P.P.C. and consequent upon death of Jehanzaib section 302, P.P.C. was applied.

6. The investigation of this case was conducted by Muhammad Nawaz S.I. He visited the Hospital and recorded the statement of injured Gul Muhammad. He also visited the scene of occurrence and prepared its Mashirnama in presence of Mashirs Muhammad Haroon and Noor Hassan. He collected blood-stained earth from there and sealed it on the spot. On the night of occurrence at about 1-30 a.m., he received information that Jehanzaib expired in the hospital. On 8-6-1987, he arrested appellants and recovered one Chhuri from possession of appellant Said Karim, which according to prosecution, was concealed by him in the Nefa of his Shalwar. He also recovered a Danda, which allegedly was produced before him by appellant Gul Rahim. He recorded the statements of the witnesses Gul Muhammad, Muhammad Yousuf, Noor Hassan, Muhammad Haroon, Muhammad Younus, Ahmed Khan, Umer Khitab, Anwer Sultan, and of other formal witnesses. On completion of investigation, he submitted charge-sheet against the appellants in the Court having jurisdiction in the matter.

7. At the trial, the prosecution examined P.Ws. Gul Muhammad, Dr. Naseem Ismail, Muhammad Younus, Noor Hassan, Anwer Sultan, P.C. Muhammad Siddiq, Ghulam Asghar, S.I., Muhammad Siddiq and Muhammad Nawaz Investigating Officer. The prosecution closed its side vide statement at Exh.37. P.Ws. Muhammad Haroon and Nooruddin Kazi were given up by the prosecution.

8. The appellants in their statements recorded under section 342 Cr.P.C., have denied prosecutions allegations and claimed to be innocent. Appellants Said Karim and Gul Rahim maintained that complainant Gul Muhammad and P.W. Yousuf entered in their house and P.W. Yousuf inflicted Chhuri blow to appellant Said Karim. According to them, they had insulted their women folk and P.W. Yousuf pulled beard of appellant Gul Rahim. Appellant Bukht Karim claimed that at the time of occurrence he was not present in the house and was arrested from Bus-stand Sher Shah. In defence, the appellants examined Nadir Khan and Muhammad Riaz. Appellant Bukht Karim had also examined himself on oath.

9. Dr. Naseem Ismail had conducted post-mortem of the body of Jehanzaib and found the following injuries on his person:--

10. "(1) Incised wound on the left lateral abdomen 2" x 1/2" x cavity deep.

(2) Incised wound just below the medial third of the right clavical 3" x 2-1/2" x cavity deep.

11. Patient extremely pale Dehidration and gasping. There was no blood pressure of pulse. The injury was reserved and injured expired at 12-30 a.m. on the same night."

12. According to Doctor, the death was due to shock and haemorrhage resulting from stab wounds noted earlier.

13. Said doctor on the same day viz. 7-6-1987 had examined injured ,rYousuf and found following injuries on his person:--

14. "(1) Incised wound on the right side of the lumber region in mid axillary region 2" x 1/2". The injury was referred to the Surgeon for finding out the depth in the cavity.

(2) Incised wound on the upper part of the left buttock measuring 1-1/2" x 1/2" x muscle deep.

(3) Abrasion on the right scapular region 2" x 1" x muscle deep.

15. The injuries Nos.1 and 2 were caused by sharp-cutting weapon and injury No.3 by hard and blunt substance. All the injuries were simple in nature.

16. Injured Gul Muhammad was also examined by said doctor and following injury was found on his person:--

17. "Small incised wound on left side of the chest below axillary fold 1/4" x 1/4" into skin deep. His general condition was satisfactory. He was referred for X-ray and injury was reserved for opinion."

18. Consequent upon X-ray report this injury was declared simple.

19. Neither the factum of death of Jehanzaib nor injuries on the person of complainant Gul Muhammad and P.W. Yousuf have been challenged by the appellants.

20. The case of prosecution rests upon ocular testimony and recovery .of incriminating articles.

21. Ocular account has been furnished by complainant Gul Muhammad and P.Ws. Muhammad Younus, Noor Hassan, Muhammad Yousuf and Ahmed. Complainant Gul Muhammad, who at the relevant time was IIIrd Year student of Muhammadi Homeopathic College, in his examination-in chief reiterated the facts, which he had given in his report. He also mentioned that there was some altercation between deceased Jehanzaib and appellant Said Karim. He stated that appellant Said Karim had given Chhuri blow to the deceased and also caused Chhuri injuries to P.W. Muhammad Yousuf, when he tried to intervene. According to him, appellant Bukht Karim gave him Chhuri blow on the left side of his armpit. Further, he deposed that appellant Gul Rahim had given several Danda blows on the head of P.W. Yousuf. He mentioned that Jehanzaib expired in the hospital on that night at 12-30 a.m. In cross-examination, about P.Ws. Ahmed Khan Muhammad Younus, Noor Hassan and Haroon, he stated they were residing in said Muhallah for the last 10 to 15 years. He denied defence suggestion that he and his deceased brother Jehanzaib had entered into the house of the appellants assaulted their children and women, and deceased pulled the beard of appellant Gul Rahim. He also denied suggestion that, in such circumstances, appellant Said Karim lost his senses and caused injuries to the deceased, as the latter pulled beard of appellant Gul Rahim. About P.Ws. Ahmed Khan, Haroon, and Yousuf he deposed that they were not related to him. P.Ws. Muhammad Younus, Noor Hassan, Muhammad Yousuf and Ahmed have also deposed on the same lines.

22. Mr. M. Ilyas Khan, learned counsel for the appellants first attempted to argue that injuries to the deceased and above-named injured namely, Gul Muhammad and Muhammad Yousuf were not caused by the appellants, but when his attention was drawn to the evidence of above-named eye-witnesses particularly of injured Gul Muhammad, he conceded that said injuries were caused by the appellants Said Karim and Gul Rahim, but maintained that the incident took place inside the house of appellants, where according to him, the deceased and injured P.Ws. had entered and assaulted children and women of the appellants. He argued that appellant Bakht Karim was not present in the house at the time of occurrence. The facts on record, however, do not lend any support to the above contention. It is evident from the testimony of eye witnesses, particularly of P.W. Noor Hassan, who besides being eye-witness is also Mashir of scene of offence, that the occurrence took place in front of House No.296 of the complainant. It also stands proved that appellant Bukhat Karim was also there. Besides, in the cross-case also it was specifically stated by the complainant of said case that the occurrence took place in the lane. The evidence of D.W. Nadir Khan that he had seen complainant party coming out from the house of the appellants is ex facie, false. Likewise, the testimony of D.W. Muhammad Riaz that appellant Bakht Karim was arrested from near Tonga Stand is incorrect. It being so, the allegation that the complainant party of this case entered in the house of the appellants is palpably false. Accordingly, we hold that the finding of the trial Court on this point is-correct and the incident took place in the lane, as is alleged by the prosecution.'

23. As regards recovery of incriminating articles viz. Chhuri and Bamboo stick, we are not satisfied with this piece of evidence. It is very hard to believe that appellant Said Karim, after having committed the crime, would have concealed said Chhuri in the fold of his Shalwar. Bamboo stick alleged to have been recovered from other appellants are also of no significance. The evidence of recovery, therefore, is not believed.

24. The next point to be considered is regarding the applicability of section 34 of P.P.C. Learned trial Judge on this point observed that there was no pre-plan or pre-concert between the appellants on the point of committing murder of deceased and of causing injuries to P.Ws. Gul Muhammad and Muhammad Yousuf. Mr. Rasheeduddin learned counsel for the applicant/ complainant Gul Muhammad (Criminal Revision No.103 of 1991) vehemently argued that aforesaid section is attracted to the circumstances of this case and the finding of learned trial Court on this point is not correct. In support of this contentions, he cited (1) Hayat v. The State 1977 S C M R 340, (2) Amir and 3 others v. The State 1987 S C M R 270. In Hayat case, it was held that when the demand of the assailants for the return of bough was refused they attacked the complainant party. In Amir's case, it was observed that if one of a group comes out armed with Barchhi and proceeds to attack with it then all those who join him in its erraned must share common intention attributable to him. Both these cases on facts are distinguishable and rule laid down in these cases is not applicable to the instant case.

25. The principle enunciated in section 34, P.P.C. is that if two or more persons performed an act together in furtherance of their common intention, then it is just the same as if it was done individually by each of them. Common intention is to be seen for a crime actually committed. A "similar intention" or "common intention" though apparently seems to convey same meaning, but in terms of said section the difference between these two phrases is significant and material. A similar intention by itself is not enough to bring the case within the ambit of said section. What is required for its applicability is that it shall conclusively be established that the persons concerned had common intention for committing the criminal act and it was in concert pursuant to pre-arranged plan. Keeping in view the above principles and the facts of this case, it is noted that both the parties had common grievance of being pelted stones in their respective houses. There was no dispute between them prior to this incident. It is evident from the evidence available on record that fight took place between them all of a sudden. Unfortunately, instead of finding out the person or persons who were responsible for those stones, they started fighting amongst themselves. It is clear from the evidence that deceased and complainant Gul Muhammad came out from their houses to find out as to who was projecting stones in their house and for the very purpose the appellants had appeared there. When the complainant party appeared in the lane they had no knowledge that the appellants were there. Likewise, the appellants had no knowledge that complainant party would also reach there. Since both the parties had no cause of grievance against each other and on the contrary had good relations amongst themselves and there being no evidence to the effect that any of the party pre-planned or pre-concerted for the said sudden fight, the question of applicability of section 34 does not arise. The fording of learned trial Court is perfectly correct and no exception can be taken to it.

26. Learned trial Court, having, examined the evidence available on record, reached the conclusion that case of appellant Said Karim was covered by exception 4 of section 300, P.P.C., which provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Having reached above conclusion, learned trial Court held that the case against the said appellant is covered by section 304, Part 1, P.P.C. and not 302, P.P.C. which finding, however, has been challenged by Mr. Rasheeduddin Ahmed, Advocate for the applicant/complainant. According to learned counsel, in the instant case culpable homicide was murder as injuries were caused to the deceased with the intention of causing his death and also for the reason that appellant Said Karim knew it very well that those injuries in the ordinary course of nature were likely to cause death. Mr. M. Ilyas Khan, learned counsel for the appellants as against this submitted that on the basis of evidence available on record section 302, P.P.C. could not be applied. We have examined the respective contentions of the parties and are of the view that exception 4 of section 300, P.P.C. is to apply to the case in which there has been no intention to cause death or bodily injury to any specified individual and where none of the party to dispute could claim a right of private defence. The dispute may have started in any manner, but if the subsequent conduct of both the parties resort them to guilt and the offender without having taken undue advantage caused injury the Exception 4 in such circumstances, would hold the field and if in these circumstances death is caused it is not a murder, but culpable homicide. In this particular case, as pointed earlier none of the parties had targeted any individual of the opposite side, but in fact they all were in search of a person who stirred common cause of grievance for them. Both sides had sustained injuries. It being so, each of them was responsible for his own act. The conclusion, therefore, would be that finding of learned trial Court on this point is also correct and no exception can betaken to it.

27. The last point agitated by learned counsel for the appellants is about quantum of the sentences. He argued that, under the circumstances, appellant Said Karim, at the most, could be awarded sentence not exceeding 5 years. He, however, did not challenge the sentences awarded to appellants Bukhat Karim and Gul Rahim. In support of above contentions he cited, (1) Khalil Ahmed v. Jamil Ahmad and 2 others 1970 S C M R 465 (2) Ghulam Muhammad and 4 others v. The State 1978 P Cr. L J 465 (3) Jumma Khan v. The State 1978 P Cr. L J 534, (4) Sher Shah v. The State 1978 P Cr. L J 541 (5) Emmanuel Bahadur Joseph v. Paul Jackson and another 1981 S C M R 663 (6) Muhammad Arshad alias Achha and another v. The State 1991 M L D 179 D.B. In Khalil Ahmad case, there was sudden fight and scuffle between parties, resulting in exchange of Lathi blows, stone throwing, injuries on both sides, and death of one on complainant's side. High Court in this case held that Exception 4 to section 300, P.P.C. would apply and altered the conviction to 304, Part II, P.P.C. and reduced the sentence to 3 years' R.I. Supreme Court declined to interfere in the decision of the High Court and dismissed the petition, although the Supreme Court observed that on facts the accused might have been convicted under section 304, Part I, P.P.C. In Ghulam Muhammad case, also there was sudden fight and it was held by the Court that the offence committed was punishable as culpable homicide not amounting to murder. In this case conviction of the accused under section 302, P.P.C. was altered to section 304(1), P.P.C. and the accused was sentenced to R.I. for 5 years and fine of Rs.3,500 or in default thereof R.I. for 1-1/2 years. Case of Jumma Khan, is also of sudden fight and the conviction of the accused was altered from section 302, P.P.C. to section 304, Part II, P.P.C. and the accused was sentenced to suffer R.I. for 7 years. Case of Sher Shah, is also of sudden fight and in this case also conviction under section 302, P.P.C. was altered to under section 304, Part I and the accused was sentenced to suffer R.I. for 7 years. In Emmanuel Bahadur Joseph case, it was held that there was no evidence of premeditation on the part of the accused to kill the deceased and in this case the accused was sentenced to R.I. for 5 years. In Muhammad Arshad case, accused had infected injury to the deceased on the dispute having arisen on the spur of moment. The conviction of the accused was consequently altered from section 302, P.P.C. to one under section 304, Part I, P.P.C. and he was sentenced to 7 years' R.I. with fine of and benefits of section 382-B, Cr.P.C.

28. Keeping in view the circumstances the case, we hold that appellant Said Karim was rightly convicted by learned trial Court under section 304, Part I, P.P.C. As regards sentence, we are of the view that, under the n circumstances, the sentence of 7 years and the fine of Rs.25,000 or in default thereof to suffer R.I. for 6 months would meet the end of justice which we I order accordingly. His sentence under section 324, P.P.C. for one year's R.I. is I also maintained. However, both the above sentences would run concurrently arid the benefit section 382-B, Cr.P.C. is also extended to him. The conviction and sentences of the appellants Bukht Karim and Gul Rahim are maintained. With above modification in sentence of appellant Said Karim, the appeal is dismissed. Criminal Revision No.103 of 1991 filed by complainant is also dismissed.

29. H.B.T./G-372/K

30. Order accordingly.