BASHIRUDDIN AHMAD, J.-Muhammad Anwar (18) and his maternal cousin Muhammad Hanif (19) were tried for the murder of Zafar Iqbal on March 6, 1968, in furtherance of their common intention, by the Additional Sessions Judge, Lyallpur who convicted them under section 302, P. P. C.
Muhammad Anwar was sentenced to suffer death. Muhammad Hanif was awarded the lesser punishment of transportation for life.
2. The convicted persons appealed -and the case is also before us on reference under section 374, Cr. P. C., in so far as Muhammad Anwar is concerned, for confirmation of the death sentence. Sher Muhammad filed Criminal Revision No. 993 of 1969 for enhancement of sentence of Muhammad Hanif from transportation for life to death. It was ordered tee be heard with the connected criminal appeal and the murder reference. We propose to dispose -of the appeal, the reference and the Revision Petition by a single judgment.
3. The prosecution made out their case thus : Muhammad Anwar appellant, who is a student, of the Islamia College, Lyallpur, which is situate at Sargodha Road at a distance of a mile or to from Lyallpur Town, used to tease; Ata Muhammad teacher posted to Middle School, C1hak No. 52/J. B.
On March 5, 1968, when Ata Muhammad was proceeding to the school while riding a bicycle at about 7-30 a.m., he came across Muhammad Anwar appellant coming from the direction of Chak No. 52/J. B. Muhammad Anwar addressed Ata Muhammad; "Hae men qurban jaoon. Aj Kale ja- rahe-o" A to Muhammad took it ill, got down from his bicycle and forbade M4hammad Anwar from mak--ing such like remarks. On reaching the School, Ata Muhammad complained about it to Sher Muhammad Headmaster. On the same day, at about 1-00 p.m., Ata Muhammad again brought it to the notice of the Headmaster that Muhammad Anwar who had misbehaved towards him was preset at the main gate of the school. The Headmaster accompanied by Ata. Muhammad and Zafar Iqbal deceased went there to admonish him. The Headmaster asked Muhammad Anwar Appellant as to why he had misbehaved towards Ata Muhammad and told him further that being a student of the college, he had n thing to do with the staff of his school. Zafar Iqbal deceased, was the son of Ch. Sher Muhammad Headmaster intervened and said to this father that it was not advisable 'to talk to ill-mannered person, like Muhammad Anwar who resented this remark and then left the place. On the following day, at about 5-001 p.m., the appellants entered the premises of the Middle School, where the deceased was present near the kitchen. They challenged Zafar Iqbal deceased. Zafar Iqbal tried to escape and after he had run to a distance of fifty feet, he was caught hold of from behind by Muhammad Hanif appellant who threw him down on the ground.
Muhammad Anwar appellant stabbed the deceased on his back near the shoulder twice. The assailants then ran away. The deceased expired in about fifteen minutes after the assault on him.
Ch. Sher Muhammad, Ghulam Rasul, Mushtaq, Ahmad and Muhammad Anwar witnessed the occurrence.
4. Ch. Sher Muhammad proceeded to Saddar Police Station at a distance of six miles from the scene of the tragedy and reaching there at 6-45 p.m. The same day, lodged the- report Exh. P. A.
The case was investigated by S. I. Muhammad Abbas (P. W. 13), who prepared the injury-sheet and the inquest-report and then despatched the dead body to the mortuary for post--mortem examination. He took into possession blood-stained earth from the spot and sealed it into a parcel.
On March 7, 1968, Muhammad Anwar appellant led to the recovery of blood-stained knife, Exh. P. 4, which had been buried in the ground near the eastern wall of the dhuri of his father. It was taken into posses--sion and sealed into a parcel. It may be stated here that the knife was found by the Serologist to be stained with human blood. The recovery of knife, Exh. P. 4, at the instance of the - appellant, was witnessed by Ghulam Yasin (P. W. ' 11) and Ghulam Ali Lambardar (not produced) besides 'the Investigating Officer. The appellants were arrested on March 7, 1968.
5. Dr. Mahmud Akhtar (P. W. 1) performed post-mortem examination on the dead body of Zafar lqbal on March 7, 1968, at 10-30 a.m. And found the following injuries:-
(1) A stab wound 7/8' x 3/8" going inside the chest cavity, situated obliquely at the back of right side of chest, 3" from the mid line and 1" above the inferior angle of right scapula.
(2) A stab wound 5/8" x 3/8" going inside the chest and situated obliquely at the back of upper part of left side of chest near the root of the neck, 3" from the mid line.
Death in the opinion of the doctor, was due to shock and haemorrhage on account of injuries to both the lungs which were sufficient to cause death' in the ordinary course of nature individually and collectively. 'They were caused with a sharp-edged pointed weapon.
6. The appellant, pleaded not guilty to the charge and denied the prosecution allegations against them Anwar appellant ascribed the case to enmity between his father Abdul Karim and one Ghulam Husain From whom Abdul Karim and his brother bought four acres of land, Muhammad Hanif submitted that he was implicated because he; is related to Muhammad 'Anwar.
The appellants filed lengthy written statements, but they were not referred to by the counsel for the appellants and we do not consider it necessary to discussed them.
7. Ali Akbar appeared in defence to depose that on March 6, 1968, at about 5-00 p.m., he noticed some boys quarrelling and grappling with each other" in the foot-ball ground. He hastened towards them and saw Zafar Iqbal deceased staggering towards the eastern gate of the school and that the other boys ran away and disappeared in the standing crops. Ali Akbar continued that he went up to Zafar Iqbal, who was bleeding. Immediately afterwards, Ch. Sher Muhammad Headmaster of the school, who came out of the village mosque, reached the spot. It is also in the statement of Ali Akbar that he and Muhammad Ishaq teacher remained with the dead body while Ch. Sher Muhammad along with Ghulam Husain consulted him as to what should be done in connection with the murder of his son. Ali Akbar replied that the deceased had to injuries on his person and it could not be said who had inflicted the injuries. Some other persons also reached the spot and Ch. Sher Mohd. Left for the city. The statement of Ali Akbar made in defence is preposterous. It was disbelieved by the trial Court and we have the least hesitation in discarding it as worthless. Learned counsel for the appellants did not rely on the defence evidence.
8. At the trial, Ch. Sher Muhammad (P. W. 7), Ghulam Rasul (P. W. 8), Mushtaq Ahmad (P. W. 9) and Muhammad Anwar (P. W. 10) furnished direct evidence. Sher Muhammad is the father of the deceased. Ghulam Rasul and Mushtaq Ahmad are teachers while Muhammad Anwar is Physical Training Instructor in the Middle School of which Ch. Sher Muhammad is the Headmaster. The substance of their evidence is that on the eventful day, at about 5-00 p.m. The deceased was brushing his teeth outside, the kitchen when the appellants challenged him for calling Muhammad Anwar appellant as badtamiz. The deceased tried to escape. He was pursued to a distance of about 50 feet towards the north. Hanif caught hold of the deceased from behind and threw him on the ground. Muhammad Anwar inflict--ed to knife blows on him. Ch. Sher Muhammad also deposed to the incidents which motivated the assault on the deceased. The statement of Ch. Sher Muhammad as regards the motive is not only corroborated by what be said in his report to the police, but also by the evidence of Ata Muhammad who was called as the 6th witness for the prosecution.
9. Ch. Nazir Ahmad, learned counsel for the appellants assailed the judgment of the trial Judge on twin grounds: Firstly, that the conviction of Muhammad Hanif for the offence under section 302, P. P: C. Was improper as there was no evidence of a common intention between him and. Muhammad Anwar appellant. Secondly, that in view of the slight element of provocation, Muhammad Anwar was entitled to the benefit of the lesser sentence provided under section 302, P. P. C.
10. It will be convenient to deal with the case of Muhammad Hanif first. Ch. Sher Muhammad mentioned in his report to the police that when the appellants came and challenged the deceased at about 5-00 p.m. On the 6th Muhammad Anwar had an open knife in his hand. Neither Ch. Sher Muhammad nor any other eye-witness except Mushtaq Ahmad so stated in their statements at the trial. Mushtaq Ahmad was present with Ch. Sher Muhammad, Ghulam Rasul and Muhammad Anwar in the kitchen of the school and came out on hearing the appellants challenging the deceased. Mushtaq Ahmad continued that they saw that at a distance of about 50 feet, where the deceased had originally been standing, he was caught hold by Muhammad Hanif and was thrown down on the ground. It was at that stage that they noticed open knife in the hand of Muhammad Anwar appellant. No doubt Muhammad Hanif accompanied Muhammad Anwar appellant when he came to the school and challenged the deceased telling him that they had come to teach him a lesson for calling them badtamiz, put there is hardly any evidence on the record to prove that Muhammad Hanif had the knowledge that Muhammad Anwar appellant carried a knife and much less that he would cause fatal injuries to the deceased. It is in the statement of Ch. Sher Muhammad that when the appellants challenged the deceased, they were standing close to him and before they had challenged there was no sign of my intended fatal aggression on their part.
The statement of Ghulam Rasul on this point is also to the effect that the appellants challenged the deceased from a distance of about 3 feet. Ch. Sher Muhammad nowhere said in his statement that he noticed Muhammad Anwar having the knife in, his hand at that stage. It clearly indicates that the knife was taken out by Muhammad Anwar after the deceased had been felled to the ground by Muhammad Hanif. The evidence falls short of reproving that Muhammad Hanif when he felled the deceased to the ground was aware of the presence of a knife with Muhammad Anwar and much less that he would use the knife with fatal result. Common intention is not to be confused with same or similar intention. Learned counsel, who represented the State conceded and rightly to, that the conviction of Muhammad Hanif under section 302, P. P. C. Could not be sustained and we agree with him. A Muhammad Hanif at best could be held guilty for the offence under section 352, P. P. C.
We, therefore, accept his appeal to this extent only that his conviction from under section 302, P. P.
C. Is altered to the one under section 352, P. P. C. In view of the fact that he has already been in jail for over a year, from the date of his conviction, we do not inflict on him the sentence under section 352, P. P. C. We direct that he be set at liberty forth--with, if he is not required in connection with any other case.
11. Now we proceed to deal with the question whether Muhammad Anwar appellant is entitled to the lesser punishment provided under section 302, P. P. C. As contended by his learned counsel. Ch. Nazir Ahmad Khan submitted that the deceased had not only called Muhammad Anwar appellant an ill-mannered (badtamiz) person in the presence of Ch. Sher Muhammad on the 5th, but had also slapped him the same day at about 5-00 p.m. In the foot-ball ground when Muhammad Anwar had asked the deceased as to why he had called him a badtamiz. This incident was admitted by Mushtaq Ahmad and Muhammad Anwar in their statements. Mushtaq Ahmad stated in cross-examination that the quarrel started when Muhammad Anwar asked the deceased as to why be had called him badtamiz. Muhammad Anwar was slapped by the deceased and in extreme indignation he told Zafar Iqbal that he would avenge himself. Hanif did not try either to support Muhammad Anwar or intervene to separate them. The statement of the Physical Training Instructor on this point is as under:- "I saw Anwar accused playing in the foot-ball ground of the school, where Hanif accused and Zafar Iqbal deceased apart from other boys were also playing. Anwar accused asked the deceased as to why he had called him badtamiz. It led to a quarrel between the deceased and Anwar accused in which the deceased gave him to or three slaps on his face. Anwar accused had threatened the deceased that he would teach him a lesson for that beating."
While we agree with the learned counsel for the appellants that a day earlier the deceased had called Muhammad Anwar appellant a badtamiz and in the evening had slapped him, but we are not prepared to accept that Muhammad Anwar is entitled to lesser punishment provided under section 30 P. P. C. Because we find that he killed the deceased not immediately while he was still smarting under the insult offered to him, but after 24 hours of the incident having come prepared for a fatal assault armed with a formidable weapon like a knife, with which Muhammad Anwar appellant gave more than one blow to the deceased on vital parts of the body while the victim lay prostrate on the ground, Since more than one blow was inflicted by Muhammad Anwar on his adversary who was quite unarmed and had done nothing before he was fatally assaulted, we feel that mere youth is no ground for withholding the extreme penalty which the trial Court inflicted on him under section 302, P. P. C. The murder was cold-blooded. We, therefore, while maintaining the conviction of Muhammad Anwar under section 302, P. P. C. Confirm the death sentence imposed on him by the trial Judge and proceed to dismiss the appeal so far as he is concerned.
'12. As we have altered the conviction of Muhammad Hanif from the offence under section 302, P. P.
C. To that under section 352, P. P. C., the revision petition for enhancement of his sentence from transportation for life to death fails ipso facto and is dismissed.