1. MUHAMMAD HALEEM, Actg. C. J.--This appeal, by special leave, arises from the judgment of the High Court of Sind, Karachi, dated 20th of October, 1976, by which Criminal Appeal No. 172 of 1976 was allowed and the first three respondents were acquitted.
2. The respondents were tried for the murder of Muhammad Shahid and for the murderous assault on his brother, Muhammad Salim and convicted under section 302 read with section 34, P. P. C. And sentenced to imprison--ment for life. The first two respondents were further convicted under section 307 read with section 34 P. P. C. And sentenced to suffer R.
1. For three years and to pay a fine of Rs. 2,000 each or in default to suffer R.
1. For 6 months.
3. According to the prosecution, Muhammad Aslam and Aziz Mian were engaged in running hotels close-by and for some reason developed business rivalry. In the morning of 21st of June, 1975, it was alleged, that Zahid, a brother of Aziz Mian, the deceased and Salim ransacked Muhammad Aslam's hotel and caused injuries to Munawar in respect which incident a report was lodged at Police Station New Town. The counter version of the complainant party in regard to this incident was that the three respondents had belaboured the deceased near the "Sindhi Hotel crossing" upon which an effort was made by the deceased and Muhammad Salim to reconcile their dispute with the respondents but the attempt proved fruitless and instead the respondents, armed with knives, followed to attack them but were prevented from doing so by one Deputy Ahmad. The complainant party, however, did not lodge any report about this incident. At about 1 p.m. Aziz Mian asked the deceased and Muhammad Salim that they should come to his hotel at 5 p.m. From where they would go to the Police Station; and as they were proceeding towards their destination, they met Aziz Mian near Kaloo's Hotel and halted there to call Zahid. Shahid was told to bring him, and as he walked ahead two or three paces, the respondents accosted him and from amongst them Muhammad Aslam gave a Lalkara to kill him upon which Muhammad Aslam caught hold of the deceased while Shahid and Munawar, who were armed with Chhuri and knife respectively, caused knife blows to him. Thereupon, Muhammad Salim intervened to separate him, but he was assaulted with a knife by Munawar as a result of which he sustained injuries on his hands while Muhammad Aslam gave a Danda blow on his head. The incident was witnessed by Aziz Mian, Shabbir Ahmad' and Deputy Ahmad, Muhammad Salim then took the deceased in a Taxi and reached the hospital at 6-45 p.m. Where he was declared by the Medical Officer to have died.
4. Muhammad Salim was examined by the same doctor at 6-50 p.m. The Medical Officer further conveyed the information of the demise of Shahid to Police Station New Town within 10 minutes and the information was entered in the Station Diary at 7-20 p.m. A copy of this entry was thereafter sent to the S. H. O. Who was on Petrol duty who, on its receipt, proceeded to the hospital where he recorded the statement at 8-40 p.m. Which was later transcribed in the 154, Cr. P. C. Book at 9-15 p.m.
5. Munawar and Shahid were apprehended at 3-30 hours on 22nd of June, 1975, and each of them led to the production of his crime weapon from the hotel of Aslam. Further Shahid produced a Bunyan which was blood--stained.
6. The deceased suffered two incised wounds, one on the lateral side of the left knee and the other on the right forearm; one superficial incised abrasion and two contused abrasions, one on the chin and the other on the left knee.
7. On Muhammad Salim. Dr. Malik Muhammad Khan noticed two incised wound one on the right web of the hand and the other on the right ring finger; one abrasion on the front right knee and a lacerated wound on the left parietal region of the head.
8. The prosecution examined Muhammad Salim, P. W. 1, Ahmad Hasan, P, W, Z, Aziz Mian, P. W. 3, Shabbir Ahmad. P. W. 4, Deputy Ahmad, P, W, 5 and Zahoor, P. W. 6, and also led evidence of the recoveries of the crime weapons.
9. The trial court held the presence of Muhammad Salim to be established as he was himself injured and believed him in the context of the recoveries of the incriminating weapons. As for Ahmad Hasan, although he worked 7 miles away, in a cloth shop which remained open till 8 p.m., the trial court believed his presence, as he resided near the Sindhi Bazar, where the prosecution witnesses as well as the respondents resided and for the explana--petition that he gave that he had gone to purchase provisions for his house from a shop which was at a distance of 200 paces or so from the spot. The trial court further held that he was not an interested witness as he was not related to the deceased : and finally, the trial court considered him as having no malice towards the accused as nothing was brought on record to establish it.
10. On appeal, the High Court acquitted the respondents holding that P. Ws. Muhammad Salim, Ahmed Hassan and Aziz Mian, being related to the deceased, were interested witnesses and, therefore, no conviction could be rested on their testimony in the absence of any corroboration evidence to establish their participation which in the instant case consisted of the joint production of the incriminating articles on which no reliance could be placed.
11. Leave to appeal was granted to consider the case afresh as the judgment of the High Court was sketchy and the findings of the acquittal were based on a misconception of facts.
12. Mr. A. K. Brohi, learned counsel for the appellant vehemently urged that the High Court misappraised the evidence which established the culpability of the respondents. The High Court had affirmatively held that both Aziz Mian and Ahmad Hassan were related to the deceased. This factual determination is incorrect as both these witnesses had denied their relationship with the deceased. Apparently, the High Court, without any reference to the evidence; placed reliance on the evidence of Dr. Malik Muhammad Khan to whom it was given out that Aziz Mian was a cousin of the deceased which fact was also noted by him in the medico-legal report fExh. 311. Aziz Mian has denied his relationship and whatever is stated by the doctor is nothing but hearsay evidence.
13. Ahmad Hassan has also denied his relationship with the deceased. There is nothing on record to establish as to how Ahmad Hassan was a nephew of the deceased or P21 on Mian his cousin. This being so, there was a fundamental misconception as to their relationship with the deceased and the High Court erroneously took them to be related and applied the rule for the corroboration of their evidence.
14. Next, as to the recoveries of the incriminating articles, the High Court did not examine the evidence with any clarity and again held it to be joint production. Our own perusal of the evidence shows that each one of them' had taken out the weapon which by itself provides evidence of incriminating conduct. This piece of evidence could not, therefore, be lightly brushed aside in the context of the fact that they were found to be blood-stained and recovered with promptness.
15. Further, the injuries also show a probability of two kinds of sharp weapons having been used because of their dimensions.
16. As for the morning incident, it is also established that a report was lodged against Zahid, the deceased and Salim, for ransacking Muhammad Aslam's hotel and injuring Munawar on account of business rivalry between Aziz Mian and Muhammad Aslam. Therefore, Muhammad Aslam and the other two respondents, who were his servants, must have felt aggrieved and entertained hostilty against the complainant party. As no report was lodged and the case of the prosecution was that they had wanted to assemble at 5 p.m. Near Aziz Mian's hotel which was 25 paces away from Aslam's hotel for going to the Police Station, their presence, therefore, at that juncture, did raise an apprehension that they had not assembled for an innocent purpose which led to grappling between the deceased and Muhammad Salim on the one side and the respondents on the other. This is established from the three injuries on the deceased and one on Muhammad Aslam. If the respondents had attacked with premeditation then the superficial injury on the neck and the fatal injury on the lateral side of the left knee joint, cannot be explained as in former case, the injury of the neck would have been with substantial force and the fatal knife injury would have been oil some vital part of the body muchless on the knee. The two injuries on the knee and the arm with a Chhuri and a knife were in all probability given while the deceased fell to the ground and lay subdued. Further,' it becomes highly doubtful that being armed with these lethal weapons, Munawar and Shahid would have grappled with the deceased instead of directly causing fatal injuries on the vital parts of the body. At what stage of the grappling the two had becomes armed again is not possible to say in the context of the evidence of the prosecution witnesses that they had straightaway attacked them when the circumstantial evidence as to the locale of the injuries does not support it.
17. As for Muhammad Aslam, he cannot be said to have shared the common intention to kill the deceased as he had only caused a Danda blow on Muhammad Salim; and if weight was given to the prosecution evidence that it was he who had given the Lalkara and attacked, then he would not have spared the deceased himself. It is more consistent with the probability that while the grappling was going on, he. Picked up the Danda and gave a blow to Muhammad Salim who bad intervened. Although there cannot be a doubt as to the presence of these witnesses, yet we feel inclined to hold that their version is not wholly correct. The further fact that Shahid and Munawar had led to the production of their crime weapons also leaves no room for doubt that they had caused the two incises on the deceased. The sharing of their common intention is thus established not only qua the death of Shahid but also the causing of two simple injuries by Munawar on Muhammad Salim.
18. Only one injury proved fatal and that too was caused not on any vital part of the body but on the knee which resulted in the severance of the femoral artery and the consequent loss of blood which led to his death. The learned counsel for the appellant contended that clause 3rdly of section 300, P. P. C. Applied to the case as the injury in the ordinary course of nature was sufficient to cause his death. It is true that this is the opinion of the doctor but nonetheless from the physical facts and the other inferential conclusions drawn by us, the incident was not premeditated but to be a sudden after which involved a grappling and the injury thus being caused on the knee in the heat of the moment which by itself could not saddle him with the knowledge of the precise locale of different arteries and veins in the limbs of human body so as to lead only to the inferential conclusion to kill him. Therefore, it is a case of lesser culpability and all that they could have presumed to have intended was to cause grievous hurt with a, dangerous weapon. This presumption is further augmented by the presence of the other incised injury not on any vital part of the body and that too being simple in nature. The element of intention, therefore, being absent, we would hold that the offence committed was one under section 304, Part II, P. P. C.
19. Accordingly, we would convict Munawar and Shahid under section 304, Part II, P. P. C., read with section 34, P. P. C. And sentence them to 7 years R. I. And also to pay a compensation of Rs. 2,000 each to the heirs of the deceased or in default to suffer R. I. For 6 month under section 554-Ay Cr. P.
20. C. They are further convicted under section 324 read with section 34, P. P. C. For 'causing injuries to Muhammad Salim and sentenced to I year's R. I. Each. The sentence are to run concurrently. . As for Muhammad Aslam, he has only given a Danda blow to Muhammad Salim, which is a simple injury.
21. He is, therefore, convicted under section 323, P. P. C. And sentenced to imprisonment already undergone.
22. The appeal is allowed subject to the above modifications.