Musaddaq Hussain and Afzal Hussain, sons of Iqbal Hussain, were tried by the learned Sessions Judge, Gujranwala, under section 302/34, P.P.C. For the murder of one Zamir Ahmad, deceased. The learned trial Judge, by his judgment, dated 3-5-1982, convicted Musaddaq Hussain under section 302, P.P.C. And sentenced him to imprisonment for life and to pay a fine of Rs.10,000 or in default thereof to undergo further rigorous imprisonment for three years. Out of the fine, if realised, three fourths of the same was ordered to .Be paid as compensation to the legal heirs of Zamir Ahmad, deceased. The appeal (Criminal Appeal 327 of 1982) preferred by Musaddaq Hussain, convict, against his conviction and sentence and the private revision petition (Criminal Revision 724 of 1982) filed by Muhammad Farooq, complainant, for the enhancement of the sentence of the convict, are both now before me for disposal.
2. The prosecution case, as unfolded at the trial, is that two days prior to the date of occurrence, Zamir Ahmad, deceased, and Musaddaq Hussain, accused, had quarrelled with each other in the Ihata of one Ahmad Khan situated in Mohalla Afghanan Hafizabad, whilst they were playing carom, alongwith Saleh Saleem P.W.9 and Zahid Hussain (given up P.W.). The cause of their quarrel was that Musaddaq Hussain accused, had wanted to take the carom board to his house, but the deceased had restrained him from doing so. The deceased, being well-built and a body-builder, had, during the occurrence, thrown Musaddaq Hussain, accused, on the ground and given him slaps. Both of them were separated by Saleh Saleem P.W.9 and Zahid Hussain (given up P.W.).
Moreover, before leaving that place, Musaddaq Hussain, accused, had threatened the deceased that he would teach him a lesson for the beating and insult given to him. The deceased after the aforementioned incident returned to his house and informed about the matter to his elder brother Farooq, complainant P.W.11. On the fateful night at about 9-00 p.m. Zamir Ahmad, deceased went to the Main Bazar to bring ice. Farooq, complainant P.W.11, a short while after, also left the house for the Main Bazar for purchasing cigarettes. When the deceased reached near Bhatti Dawakhana, both the accused, who were already standing there, rushed towards him. Afzal Hussain, accused, addressing the deceased, shouted that as he had disgraced his brother he would not be allowed to go alive and immediately took the deceased in his clasp, whereupon Musaddaq Hussain accused, who was having a Chhuri, caused an injury with the same on his left flank. Thereafter, Afzal Hussain, accused, threw the deceased on the ground and also said "Athe Mar". After staging the bloody drama, both the accused fled away. The deceased fell down on the ground in an injured condition. Besides Muhammad Farooq P.W.11 and Shafique P.W.12, Abdul Latif and Jamil Ahmad (given up P.Ws.) also saw the occurrence. The complainant even chased the accused with a view to apprehending them, but he was threatened by Musaddaq Hussain accused, who waived his Chhuri at him, whereupon he retreated
3. Zamir Ahmad, deceased, was taken to Headquarters Hospital, Hafizabad, where he was examined at 10-00 p.m. By Dr. Muhammad Sadiq P.W.1, who found a stab wound 4 c.m. x 2 c.m. On his left abdomen. He was immediately referred to the Mayo Hospital, Lahore, for treatment.
4. Muhammad Farooq, complainant P.W. 11, with the medico-legal report Exh P.A. Of Zamir Ahmad , deceased, proceeded to Police Station, Hafizabad, but on the way he met Khushi Muhammad A.S.I.
P.W.13 at Chowk Phawara at 00-30 (past midnight) and gave statement Exh.P.D. On the basis of the said statement, formal F.I.R. Exh.P.D./I was recorded at Police Station Hafizabad, by Abu Saeed H.C.
P.W.5 at 00-45 (past midnight). The Investigating Officer then proceeded to the spot, from where he recovered blood-stained earth, where the deceased had fallen, vide memo. Exh.P.H.
5. Both the accused were arrested on 12-9-1980. Musaddaq Hussain, accused, led to the recovery of a blood-stained Chhuri P.5 from his house, which was taken into possession by the police, vide memo. Exh.P.K. In the presence of Nazir Ahmad P.W.10, Khushi Muhammad S.I. P.W.13 and Abdul Salam (given up P.W.).
6. On 14-9-1980 Zamir Ahmad, deceased, breathed his last in the hospital.
7. On 15-9-1980 at 1-45 p.m. Dr. Muhammad Tahir P. W. 14 conducted autopsy on the dead body of Zamir Ahmad, deceased, and found four surgical incised wounds and one other incised wound, which corresponded with the injury earlier found by Dr. Muhammad Sadiq P.W.1. Left pleaura, left lung, left ventricle, peritonium, left dome of diaphragm and intestines had been injured.
8. After completing the investigation, the challan against both the accused was sent up.
9. At the trial, Afzal Hussain, accused, denied his presence, whereas Musaddaq Hussain, accused admitted having killed the deceased.
According to him, the deceased was a vagabond and finding him alone had tried to catch hold of him and attempted to take him to a deserted place for committing sodomy with him and in order to save his life and honour he had caused an injury to the deceased with a pen knife, which happened to be with him then.
10. The learned trial Judge found the case of the prosecution proved to the hilt against Musaddaq Hussain, accused, and sentenced him, as stated above.
11. I have heard the arguments of the learned counsel for the appellant, the complainant and the State and have perused the record. The occurrence is admitted by Musaddaq Hussain, appellant.
According to the prosecution case, Musaddaq Hussain, appellant, and Fazal Hussain, acquitted accused, were present near Bhatti Dawakhana when the deceased was passing by that place.
Afzal Hussain, acquitted-accused, addressing the deceased, shouted that as he had disgraced his brother, he would not be allowed to go alive and thereafter immediately took the deceased in his clasp, whereupon Musaddaq Hussain, appellant, who was having 'a Chhuri, caused an injury with the same on his left flank. According to the defence version, Musaddaq Hussain, appellant, alone was present at the place, when the deceased happened to come across him. Finding the appellant all alone, Zamir Ahmad, deceased caught hold of him and wanted to take him to a deserted place for committing carnal intercourse against the order of nature. He offered resistance, upon which the deceased started manhandling him and, in order to save his life and honour, he caused an injury to the deceased with the pen knife which happened to be with him then. It is the case of the prosecution that Muhammad Farooq P.W. 11 and Muhammad Shafiq P.W. 12 witnessed the occurrence. It is the case of the defence that they were not present and did hot witness the occurrence. The only question that arises is whether, after placing in juxtaposition the case of the prosecution and that of the defence, the evidence on the record A proves the case of the prosecution to the hilt against the appellant or leads to the probable inference that the defence is true or reasonably probable. According to the F.I.R. P.D./1 Muhammad Shafiq P.W.12. And the other witnesses were present in the main Bazar outside the shop of the said Muhammad Shafiq P.W.12 himself. However, in the site plan Exh. P.C., Muhammad Shafiq P.W.12 is shown as having witnessed the occurrence from inside his shop and he also affirms hearing the Lalkara and seeing the incident from inside his shop in his evidence at the trial. It is doubtful that Muhammad Shafiq P.W.12 heard the Lalkara whilst sitting inside his shop, though it cannot be disbelieved that he saw the incident. At the distance at which he was sitting, it is unlikely that he heard the conversation.
Muhammad Farooq P.W.11 also claims to have heard the Lalkara. According to him, he had followed the deceased from his house and heard the Lalkara uttered by Afzal Hussain, acquitted accused.
But in his statement to the police H and in his cross-examination at the trial, he had stated that Farooq P.W. Had come to the spot during the course of the occurrence. In this view of the matter, it is unlikely that Muhammad Farooq P.W.11 heard the Lalkara uttered by Afzal Hussain, acquitted accused. Thus, both these witnesses did not hear the Lalkara, though both did see the occurrence.
Muhammad Shafiq P.W.12 had his shop just near the place of occurrence, which was open. He is, therefore, a natural witness.
The only question, therefore, that arises is whether the appellant's version of how the incident originated can be accepted. According to him, the deceased, who was a desperado type and a drug addict and a sodomist, caught hold of him, finding him alone, and tried to take him to a deserted place for committing sodomy. We resisted, upon which the deceased started manhandling him and, in order to save his life and honour, he caused an injury on the deceased with the pen knife which he was carrying. The appellant did not sustain any injury during the occurrence. It is doubtful that the deceased would have tried to drag him to a deserted place, considering that he was in the main Bazar and any alarm for assistance would have brought a number of persons to his rescue. It is probable that the deceased, finding the appellant present in the Bazar, abused him and perhaps caught hold of him by his arm or neck and used some force against his person, to show his brute superiority, which annoyed the appellant and abruptly aroused in him the urge to defend his person, instinctively compelling him to draw out his Chhuri or pen knife, which he carried, and to inflict an injury on the deceased, with a view to securing his release. The appellant only inflicted one injury. From the evidence and the' circumstances of the case, it appears that the sole solitary fatal injury inflicted on the deceased was not caused to him with any intention on the part of the appellant to cause his death or such bodily injury as was likely to cause death, though it may be said that the appellant could be burdened with the knowledge that it was likely to cause his death. In this view of the matter, applying the principle laid down by' the Supreme Court in Ahmad's case PLD 1971 SC 720 and Emmanuel Bahadur Yousaf's case 1981 SCMR 663, the appellant would appear to be liable under section 304-II, P.P.C. The conviction of the appellant under section 302, P.P.C. Appears to be against the facts and law on the subject. The conviction of the appellant is, therefore, altered from one under section 302, P.P.C. To that under section 304-II, P.P.C.
12. The only question that now remains is that relating to sentence. The appellant, at the time of the crime, was about nineteen years' old. The acquitted accused and the deceased were about the same age. The appellant has also undergone detention as a convict for about three years and three months. He appears to have suffered the agony of detention earlier as an under trial prisoner.
Taking all circumstances into consideration, I would sentence Musaddaq Hussain, appellant, to suffer seven years rigorous imprisonment under section 304-II, P.P.C He is also burdened with a fine of Rupees three thousand (Rs.3,000) or in default thereof to undergo further rigorous imprisonment for one year. The fine, if recovered, shall be paid as compensation to the heirs of Zamir Ahmad, deceased. The benefit of section 382, Cr.P.C in default thereof to undergo further rigorous imprisonment for one year. The fine, if recovered, shall be paid as compensation to the shall be allowed to the appellant.
13. This appeal, therefore, stands partly accepted, in terms of alteration of conviction and reduction in sentence, as stated above.
14. There being no merit in the private revision petition (Criminal Revision 724 of 1982) filed by Muhammad Farooq, complainant, the same is dismissed in limine.