BASHIRUDDIN AHMAD. J.-Muhammad Latif (20), Muhammad Rafi (40), Muhammad Siddique (38) and Abdur Rashid alias Kaka (17) were tried for the murder of Abdur Rauf on August IS, 1967. In furtherance of their common intention by the Additional Sessions Judge, Lahore, who acquitted Abdur Rashid alias Kaka. He convicted the rest of them under section 302 read with S. 34, P. P. C.
Muhammad Latif was sentenced to suffer death. Muhammad Rafi and Muhammad Siddique were awarded the lesser punishment provided under section 302, P. P. C. And were sentenced to transportation for life.
2. The convicted persons appealed and the case is also before us on reference under section 374, Cr. P. Code in so far as Muhammad Latif is concerned, for confirmation of the death sentence. We propose to dispose of the appeal and the reference in a single judgment.
3. Briefly narrated, the prosecution story is that on the evening of the fateful day, Abdur Rashid alias Kaka, a nephew of the appellants, went to the shop of Mushtaq Ahmad for purchasing wanda.
Nisar Ahmad a nephew of Mushtaq Ahmad, was present at the shop. He told Abdur Rashid alias .Kaka to weigh the wanda himself as he was busy with other customers. While Abdur Rashid alias Kaka was weighing the wanda, Nisar Ahmad stepped out of the shop and accidentally kicked Abdur Rashid alias Kaka. The latter took it ill and it developed into an alteration between them.
Muhammad Hussain son of Karim Bakhsh and Muhammad Umar separated them. Abdur Rashid alias Kaka, while leaving the place remarked addressing Nisar Ahmad that he would shortly bring Muhammad Latif with him. The story goes that a little later, Abdur Rashid alias Kaka accompanied by the appellants came to the shop of Mushtaq Ahmad. Muhammad Rafi and Muhammad Siddique exhorted Muhammad Latif to do away with any one who might come near him and that they would save him. Muhammad Latif challenged Nisar Ahmad to come out. The deceased requested Muhammad Latif to forget about the incident between the to youngsters. Muhammad Latif hesitated for a while. Muhammad Siddique and Muhammad Rafi went forward. Muhammad Siddique caught hold of the deceased by the arm. Muhammad Rafi exhorted Muhammad Latif and as a result. Of exhortation by Muhammad Rafi appellant, Muhammad Latif took out a dagger from the folds of his loin-cloth and caused injuries to the deceased on the left arm, the chest and the abdomen. The deceased fell down after the receipt of the injuries. Muhammad Latif then advanced towards Nisar Ahmad. Jumma Khan caught hold of Muhammad Latif from behind' and disarmed him. Muhammad Husain, Muhammad Umar, Muhammad Hussain son of Karim Bakhsh and Nisar Ahmad witnessed the occurrence. The persons, who collected at the spot, caused injuries to Muhammad Latif. Abdur Rashid alias Kaka, Muhammad Siddique and Muhammad R.Afi ran away.
4. The deceased was removed to the Mayo Hospital. Sub-- Inspector Sardar Khan,, who was investigating another case at Old Infantry Road learnt about the occurrence. He went to. The Mayo Hospital and recorded the statement Exh. P. B. Of Muhammad Husain son of Ghulam Muhammad at 9-15 p.m., as the deceased was not in a fit condition to make a statement. He endorsed the statement, Exh. P. B., to Mughalpura Police Station, where a case under section 307/34, P. P. C. Was registered by S. I. Muhammad Ejaz Khan at 9-45 p.m. S. I. Sardar Khan then visited the spot, took into possession blood-stained earth and sealed it into a parcel. Jumma Khan produced blood- stained dagger, Exh. P. 1, which was taken into possession and sealed into a parcel by the police.
Muhammad Latif was arrested on 19- 8-1967. Muhammad Rail was apprehended on 31-8-67.
Abdur Rauf died in the hospital on August 31, 1967. S. I. Sardar Khan went to the Mayo Hospital, drew up the inquest---report and then despatched the dead body to the mortuary for post-mortem examination. The offence was changed from under section 307/34 to one under section 302/34, P.
P. C. After the death of Abdur Rant, Muhammad Siddique was apprehended by the police 'on September 1, 1967.
5. On 18-8-1967 at 8-00 p.m. Dr. Nusrat Ullah (P. W. 2) examined Abdul Rauf, when he was alive, and found the following injuries on his person:-
(1) Incised wound 2--' x 1' muscle deep, on the left upper arm in the middle.
(2) Incised wound 2' x --", left side chest in anterivr axillary line, 2" below the axilla.
(3) Incised wound 2" x --" in the abdomen, 1--" below the umbilicus.
All the injuries were caused by sharp-edged weapon. Injuries Nos. 2 and 3 were grievous and dangerous to life in the opinion of the doctor.
After the death of Abdur Rauf, Dr. Nasir Iqbal (P. W. 1) held the autopsy on the dead body on August 31, 1967 and found almost the same injuries which were noticed by Dr. Nusrat Ullah at the the of medico-legal examination of the deceased. The doctor, however, opined that the injuries were sufficient to cause death in the ordinary course of nature.
6. Dr. Nasir Iqbal (P. W. 1) also examined Abdur Rashid alias Kaka accused. On August 19, 1967 and found four abrasions, simple in nature, on his person. All the injuries were caused by blunt weapon.
7. Muhammad Latif accused was examined by Dr. Nusrat Ullah (P. W. 2) on 18-8-1967 at 9-00 p.m., who found the following injuries on his person:-
(1) Contused wound on left pinna 1" each wing. Pinna was completely torn in to pieces.
(2) Swelling on left side of the face.
(3) A lathi mark on left thigh 4" x 1'.
(4) Contused wound 1" x 1/8" scalp deep, at the top of head. (5) Swelling on left elbow 2" x 1'.
(6) Lathi mark on left upper arm 3" x 1'.
Injury- No. 1 was grievous, while the rest were simple. All the injuries were caused by blunt weapon.
8. Muhammad Rafi and Muhammad Siddique denied their participation in the occurrence. They explained that they opposed Muhammad Ishaq P. W. In the last B. D. Election, while the deceased and his relatives supported him and he had implicated them in the case falsely. Muhammad Latif admitted that he accompanied his nephew Abdur Rashid alias Kaka to the shop of Mushtaq Ahmad and when he complained against the behaviour of Nisar Ahmad towards Abdur Rashid alias Kaka, it was resented by Muhammad Hussain P. W. And Abdur Rauf, who flared upon. They started abusing Abdul Latif appellant. The deceased took out a dagger, while Muhammad Hussain P. W. Picked up a sarya and attacked Muhammad Latif who snatched the dagger, but Abdur Rauf started giving him blows with sarya, Muhammad Latif apprehended danger to his life and caused injuries to the deceased by means of the dagger in exercise of the right of self-defence.
The appellants examined Muhammad Ikram Butt and Mansha in their defence. The former stated that fifteen months ago at 7-30 p.m., Muhammad Rafi appellant visited his shop at Rehmanpura for purchasing wanda and mentioned that he had received information that his brother had been injured in a fight and the witness was in a hurry to go to the hospital. Mansha deposed that Ron the evening of the fateful day, he happened to pass the place of occurrence and saw to persons fighting. One of them was armed with a dagger and the other wielded sarya. He did not know their names. Abdur Rashid alias Kaka and Muhammad Latif were also there. The person, who was armed with a dagger, attacked Muhammad Latif, but he caught hold of his assailant by the wrist, whereupon the person who was armed with the sarya, gave to or three blows to Muhammad Latif on the head. Muhammad Latif snatched the dagger and gave blows to his assailant who had a sarya. Some one threw a chair at Muhammad Latif and then the witness went away. We shall refer to the defence evidence later.
9. At the trial, Muhammad Husain (P. W. 3), Jumma Khan (P. W. 8), Muhammad Umar (P. W. 9), Muhammad Hussain son of Karim Bakhsh (P. W. 10) and Nisar Ahmad (P. W. 12) furnished direct evidence. The gist of their evidence is that on the evening of the fateful day, Abdur Rashid alias Kaka visited the shop of Mushtaq Ahmad where Nisar Ahmad P. W. Was present for purchasing wanda. Nisar Ahmad told him to weigh the wanda himself as he was attending to other customers.
Nisar Ahmad stepped out of the shop and accidentally kicked Abdur Rashid alias Kaka, who took it ill. It led to an altercation .Between them. The people present there intervened and separated them.
Abdur Rashid alias Kaka remarked addressing Nisar Ahmad that he was going to bring Muhammad Latif. Shortly afterwards, the appellants came to the shop of Mushtaq Ahmad with Abdur Rashid alias Kaka. Muhammad Rafi and Muhammad Siddique exhorted Muhammad Latif to kill whosoever might come near and they would save him. Muhammad Latif challenged Nisar Ahmad. Jumma P. W. And Abdur Rauf deceased came up. The deceased told Muhammad Latif to forget about the incident between the to youngsters. Muhammad Siddique and Muhammad Rafi went forward. The former caught hold of the arm of the deceased and at the exhortation of Muhammad Raft, his brother Muhammad Latif took out a dagger and gave three blows to Abdur Rauf deceased, who fell down on the ground. Muhammad Latif then proceeded towards Nisar Ahmad. Jumma Khan caught hold of him from behind, snatched blood-stained dagger, Exh. P. 1, which he later produced before the police. Muhammad Siddique pressed the neck of Jumma Khan in order to rescue Muhammad Latif and the persons who had collected there gave a beating to Muhammad Latif. Abdur Rashid alias Kaka, Muhammad Siddique and Muhammad Rafi fled away.
10. The incident which served as a motive was admitted by the defence. It is also proved from the evidence of Nisar Ahmad, which is corroborated by Jumma Khan, Muhammad Hussain, Muhammad Umar and Muhammad Husain son of Karim Bakhsh. Except for this incident, which took place between Nisar Ahmad and Abdur Rashid alias Kaka, a nephew of the appellants, they had no motive whatsoever, of any kind, to attack and much less kill the deceased.
11. The defence version is that Abdur Rashid alias Kaka was accompanied by Muhammad Latif alone, when the main occurrence is alleged to have taken place. The defence version that Abdur Rauf deceased and Muhammad Husain (P. W. 3) took up cudgels on behalf of Nisar Ahmad and attacked Muhammad Latif with dagger and sarya does not appeal to reason. Mohammad Husain and Abdur Rauf deceased are in no way Bashiruddin related to Nisar Ahmad. Muhammad,- Husain is a teacher in the Ahmad, Primary School and lived at Dharampura. He was present in front of the shop of Mushtaq Ahmad after maghrib prayer's the. His house is at a distance of 200 paces from the shop of Mushtaq Ahmad. He is related to the deceased. Muhammad Husain said in his statement before the committing Magistrate that he is the uncle of the deceased. He clarified in his statement, at the trial, that the deceased was the son of step-sister of his wife. Muhammad Husain stated to the committing Magistrate that Jumma Khan P. W. Was his friend. Jumma Khan and Muhammad Umar P. Ws. Are the tenants of the father of the deceased. Muhammad Umar has been residing in a portion of the building allotted to the father of the deceased since Indepen-- dence. Jumma Khan has been living there since before partition. Muhammad Hussain stated to the 'committing Magistrate that Muhammad Husain son of Karim Bakhsh is a tenant of the father of the deceased. He also said in his statement to the committing Magistrate that Muhammad Husain son of Karim Bakhsh was his distant relative. It is thus clear that the eye-witnesses have a bias in favour of the deceased.
12. Muhammad Siddique and Muhammad Rafi appellants were attributed lalkara. Muhammad Husain stated in the report, Exh. P. B. -that Muhammad Siddique and Muhammad Rafi told Muhammad Latif to kill whosoever might come in the way and that they would save him.
Muhammad Latif challenged Nisar Ahmad. Abdur Rauf deceased intervened. Muhammad Siddique and Muhammad Raft went forward. Muhammad Siddique caught hold of the left arm of the deceased. Muhammad Rafi said to Latif: "What are you looking for?"whereupon he took out a dagger from the folds of the loin-cloth and gave three successive blows to the deceased.
In the absence of any enmity between the appellants and the deceased person, it is unbelievable that Muhammad Rafi and Muhammad Siddique exhorted Muhammad Latif to kill the deceased, who had done nothing. What Muhammad Siddique had done over and above lalkara was to catch hold of the deceased by the arm. It is quite possible that Muhammad Siddique caught hold of the victim by the arm to take him aside. It cannot reasonably be inferred from it that he thereby facilitated the murder of Abdur Rauf or had the common intention with Muhammad Latif to kill the deceased. Similarly, it is not possible to hold on the evidence that the three appellants came to the spot and had, the common intention to kill the deceased.
13. There is not a scintilla of evidence on the record to prove that Muhammad Rafi and Muhammad Siddique appellants knew that Muhammad Latif carried a dagger which he had concealed in the folds of his loin-cloth. We, therefore, hold that section 34, P. P. O. Did riot apply. Muhammad Siddique and Muhammad Rafi had caused no injury to the deceased. They cannot reasonably be held to have shared the common intention with Muhammad Latif to kill the deceased. In this view of the matter, the conviction of Muhammad Rafi and Muhammad Siddique under section 302/34, P.
P. C. Cannot be upheld. We set aside their conviction and the sentences 'and order them to be acquitted. They are in jail and we direct that they be set at liberty forthwith provided always that their detention is not necessary in connection with any other matter. The appeal in so far as Muhammad Siddique and Muhammad Rafi are concerned, is accepted.
14. Taking up the case against Muhammad Latif, we find that he admitted to have caused injuries to the deceased by means of a dagger. He pleaded having done so in self-defence. Muhammad Latif admitted the presence of Muhammad Husain P. W. At the the of the occurrence. It is clear from the statement of Muhammad Husain that the deceased had done nothing to provoke the attack.
Muhammad Husain denied that he used sarya in causing injuries to Muhammad Latif. He also denied that the deceased was armed with a dagger with which he tried to assault Muhammad Latif. The statement of Muhammad Husain on this point is amply corroborated by Jumma, Muhammad Umar, and Muhammad Husain son of Karim Bakhsh. They bear no grudge' against Muhammad Latif. The injuries found on the person of Muhammad Latif with the exception of injury No. 1 are of a minor nature. Muhammad Husain, the maker of the F. I. R., mentioned that the same were caused to Muhammad Latif by the persons who had collected on the spot after Muhammad Latif had stabbed the deceased with the dagger. This is quite plausible. In the circumstance, it is not possible to hold that the explanation was contrived later. The defence evidence consisting of a solitary witness, namely, Mansha is not convincing, and the learned counsel for the appellants did not rely on this piece of evidence at the the of arguments. It was considered by the trial Court and was discarded. We have no hesitation in rejecting it as worthless.
15. There is on the record the statement of Muhammad Husain in support of the prosecution version which is further corroborated by Jumma, Muhammad Umar and Muhammad Husain son of Karim Bakhsh, whom we see' no- reason to disbelieve in this case when they say that Muhammad Latif stabbed the deceased. Neither the evidence on the record nor --the attendant circumstance support the plea of self-defence, which we have no hesitation to reject.
16. In view of the evidence, there is no escaping the conclusion that Muhammad Latif caused fatal injuries to the deceased when the latter tried to intervene when Muhammad Latif challenged Nisar Ahmad. We, therefore, hold that Muhammad Latif was responsible for the death of Abdur Rauf. We, accordingly, change his conviction from under section 302/34, P. P. C. To one under section 302, P.
P. C.
This brings us to the question of sentence which is not free from difficulty. Muhammad Latif had no motive of his own to kill the deceased. The murder was not pre-planned. Muhammad Latif had no enmity with the deceased. It appears that the deceased must have said or done something before he was fatally assaulted. Looking at the case from this angle, we consider that the extreme penalty provided by the law under section 302, p, p. C. Was not called for in this case. We set aside the sentence Ahmad of death imposed on Muhammad Latif appellant and substitute it with transportation for life. The Appeal of Muhammad Latif is accepted to this extent only. The death sentence is not confirmed.