ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave against the judgment of a learned Single Judge of the Lahore High Court, dated 12-6-1979, whereby the conviction and sentence of the two appellants namely, Abdullah and his brother Jamaitullah, under section 302/34 P.P.C. Has been maintained.
2. The facts, in brief are that Aziz-ur-Rehman (PW.4) used to cultivate the lands of Sanaullah, father of the two appellants, in village Channi Murid. During this period he developed amorous liaison with Mst. Ghulam Aisha P.W. Daughter of Sanaullah. About a year prior to the occurrence he left the job and came back to his village at Behroop Garh Police Station Alipur Chattha. It so happened that Mst. Ghulam Aisha also followed him to his house. She was followed by her father Sanaullah, and since Mst. Ghulam Aisha was adamant to marry Aziz-ur-Rehman complainant, therefore, her father gave her in nikah to him. After about one month of the marriage, Jamiatullah made a murderous assault on Aziz-ur-Rehman, a case was, therefore, registered against him under section 307 P. P. C .
And was pending in the Court of the Assistant Commissioner, Wazirabad. The date of its hearing was fixed on 21-2-1973 when on that date the statement of Mst. Ghulam Aisha was to be recorded.
On the said date, the complainant alongwith his brother Hameed, his parents Faqir Muhammad and Mst. Raj Bibi, his brother-in-law Ghulam Rasool and Mst. Ghulam Aisha had come to attend the said Court. But the statement of Mst. Ghulam Aisha could not be recorded because Jamaitullah appellant had moved an application for transfer of the case from the Court of the Assistant Commissioner and the case was adjourned to 8-3-1973. The complainant party thereafter left the Court at about 10.45 a.m. And a tonga was hired to take them towards the G . T . Road where they intended to board a bus for their village. When the tonga reached in the middle of the gates of the railway level crossing, they were surprised by Jamaitullah, his brother Abdullah, sons of Qazi Sanaullah, Abdul Razzaq, Altaf and Munawar gold-smith. The tonga was stopped by all of these five persons and the five accused launched the attack. While Munawar gold-smith raised a lalkara to kill the tongs-passengers because they have violated the honour of the family, the parents of the complainant raised hue and cry but all the five accused dragged the complainant party from the tongs. Jamaitullah appellant, who was armed with a knife, intended to stab Aziz-ur-Rehman which was warded off by him, as a result of which he received an injury on his right hand and fingers.
Abdur Razzaq and Altaf caught hold of Aziz-ur-Rehman and his brother Abdul Hameed.
Jamaitullah accused gave a knife blow to the complainant hitting him on his shoulder, while Abdullah appellant who was also armed with a knife, gave blows to Abdul Hameed which landed at the back of his chest and on his buttocks. Ghulam Rasool P.W., who tried to intervene, was also stabbed at his back by Abdullah appellant. Mst. Ghulam Aisha also received injuries in the melee. In the meantime three constables, namely, Dildar Hussain Shah, Muzaffar Hussain and Muhammad Azam, were attracted to the scene who overpowered the two appellants and snatched their knives from them. After disarming the two appellants, they alongwith their co-accused, namely, Abdul Razzaq and Altaf, were arrested at the spot, whereas Munawar made his escape good. The occurrence was witnessed by Sardar and Nazir, the two tongs-drivers, Iftikhar Ahmad son of Muhammad Sharif and Ghulam Muhammad son of Fazal Din. Abdul Hameed, who was seriously injured, was taken to the hospital in the tonga but he succumbed to his injuries en route.
3. Muhammad Hafeez, S.I., who was posted as S.H.O. P.S. City, Wazirabad, on receipt of information, rushed to the hospital where he recorded the statement of Aziz-ur-Rehman correctly. He sent the Marasla to the police station where formal F.I.R.Ex.P.A/1 was drawn. Muhammad Hafeez who appeared as P.W.13 at the trial, prepared the inquest report Ex. P.K and injury sheet Ex. P.L. Of the deceased and sent his dead body to the, hospital for post-mortem examination through Dildar F.C.
He also got Ghulam Rasool, Aziz-ur-Rehman and Mst. Ghulam Aisha P.Ws. Medically examined after preparing their injury statements. The four accused were also produced before this witness who fund Jamaitullah, Abdullah and Abdur Razzaq having injuries on their persons. He prepared their injury statements and got them medically examined. He then took all the accused to the place of occurrence and got into possession blood-stained shirt P.1 of Jamaitullah vide memo Ex. P.C., blood-stained shirt P.3 and Shalwar P.2 of Abdullah vide memo. Ex.P.D. And blood-stained shirt P.4 and Shalwar P.5 of Abdur Razzaq accused vide memo Ex. P.E. These were sealed in a parcel. He also took blood-stained earth vide memo. EX.P.S. Blood-stained knife P.10 produced before him by Dildar Hussain F.C. Vide memo Ex.P.H. And another blood-stained knife P.13 which was produced by Muzaffar Hussain F.C. Vide memo Ex.P.T. These were sealed in another parcel. He also took into possession blood-stained shirt P.14, vest P.15 of Aziz-ur-Rehman P.W vide memo Ex.P.F and made them into a sealed parcel. The blood-stained shirt P.11 and tehband P.12 of Ghulam Rasool P.W.
Were also taken into possession vide memo. Ex.P.J. Made into a separate parcel and deposited in the Malkhana. Site plan was also got prepared through Muhammad Tufail which is Ex. P.B. After the completion of the investigation all the five accused were put to trial where the prosecution in support of its case produced as many as 14 witnesses. The accused in their statements under section 342, Cr.P.C. Professed innocence. Munawar accused pleaded alibi and in support produced Exs. D.H. And D.H/1. Altaf accused stated that he was a clerk of defence counsel of Jamaitullah appellant in the case under section 307 P.P.C. And that he had moved the transfer application in the absence of his counsel, on which the complainant side was annoyed. Abdul Razzaq accused stated he was a mere passerby and was involved falsely. Appellants Jamaitullah and Abdullah admitted the occurrence but stated that Aziz-ur-Rehman P.W. Had a wife Mst. Sakina. He with ill motive joined as moeen to their father on monthly wages. Later on they came to know that he had developed intimacy with their sister Mst. Ghulam Aisha P.W. He kidnapped her while she was a minor and their father died due to this shock and grief. Jamaitullah stated that he was on duty at Qadir Abad Barrage on 1-11-1971 when Aziz-ur-Rehman, his father Faqir Muhammad his brother Hameed (deceased) with other persons made a scheme to injure him. Faqir Muhammad reached the cabin where he was on duty. He was armed with a gun. The chaukidar snatched that gun from him and put it in his cabin. Simultaneously Aziz-ur-Rehman with other persons above-named reached there and tried to overpower him so that he may not be able to go to P. S. Alipur Chatha.
Faqir Muhammad slipped away and gave a false report against him and he was challaned under section 307 P.P.C. On 21-2-1973 he had appeared before the S.D.M. In that case. His counsel could not accompany him and he sent accused Altaf, his clerk, with him to assist him in putting in application under section 526 Cr.P.C. Aziz-ur--Rehman and his relatives, who were present in the Court, took it ill and they left the Court and while he was proceedings to G.T. Road with his brother Abdullah, they gave filthy abuses to him and his brother. Hameed deceased attacked him with an open knife, he tried to save himself and in the scuffle the knife fell down from the hand of Hameed.
Aziz-ur-Rehman, Hameed and he tried to take that knife. He had a fear that if Aziz-ur-Rehman or his brother would get the knife, they would positively kill him. His hand was on the wooden side of the knife while Aziz-ur-Rehman caught hold of the iron-side of the knife. Constables were not present at the spot. They were coming in the tonga of Nazir who was present at the spot at that time and watched the occurrence. Accused Altaf, Razzaq and Munawar were not with them. As they (the accused) were injured they reached the hospital themselves. Later, in the evening they were arrested by the police from the hospital after their medical examination. Muhammad Hafeez S.I. Did not come to the hospital nor were they taken to the spot by the police. In defence, Jamaitullah appellant produced school leaving certificate of Mst. Ghulam Aisha Ex. DD (objected to by APP), copy of the statement of Nazir P.W. Ex. DE, copy of the F.I.R. Ex. DF and copy of the judgment of S.D.M., Wazirabad.
4. The learned trial Court after considering the evidence produced by the prosecution and the statements of the two appellants, vide its judgment dated 29-4-1977, while acquitting Munawar, Razzaq and Altaf by giving them the benefit of doubt, convicted the two appellants under section 302/34 P.P.C. And sentenced them to imprisonment for life and a fine of Rs.5,000 each or in default to further R.I. For 21 years each. It did not impose the maximum punishment in this case because the offence was committed to vindicate their family honour. Both the appellants were also convicted under section 307/34 P.P.C. And sentenced to four years' R.I. And a fine of Rs.1,000 or in dfault to six months' R.I. Each. Out of the fine, it was ordered that on its realization, a sum of Rs.7,500 should be paid to the heirs of the deceased as compensation under section 544-A Cr.P.C.
5. The appellants filed appeal against their conviction and sentence in the High Court but the same was, however, dismissed on 12-6-1979.
6. Leave was granted in this case to consider whether the learned Judge has failed to give a finding on what he himself termed as "crucial question involved in the case" and further as to whether he had taken a correct view of the law as to the application of Exception IV to section 300 P.P.C. And also whether after holding that the injuries were caused in a sudden fight, he could still have held that "common intention" to cause death had been formed during the incident.
7. The learned counsel for the appellants did not appear, we therefore treated the appeal as a jail appeal. The learned counsel representing the State was, however, heard. We have carefully considered the whole case in the light of the evidence brought on the record and are of the view that the conviction and sentence of the appellants is well-founded. It is a broad daylight occurrence and has been witnessed by as many as five witnesses, three of whom had stamps of injuries on their person, therefore, their presence at the spot cannot be doubted. The appellants too have injuries and they have admitted the occurrence though with a different version. Of the five witnesses who have given eye-version account of the incident, Mst. Ghulam Aisha is the sister of the appellants and Dildar Hussain and Muzaffar Hussain are police constables who were attracted to the spot at the relevant time and had seen the occurrence. They had also snatched the knives from the hands of the two appellants and had arrested them at the spot. All the witnesses are unanimous in accusing the appellants for launching the attack and giving stab blows to the deceased and the three eye-witnesses. Though seemingly Mst. Ghulam Aisha had made some concession in favour of the appellants but still she supported the case of the prosecution fully in alleging that the deceased, her husband, Ghulam Rasool P.W. And herself received the injuries at the hands of the two appellants. The two constables, namely, Dildar Hussain and Muzaffar Hussain, are absolutely independent witnesses and they have fully supported the other eye-witnesses.
There is nothing on the record to suggest that they had any motive to implicate the two appellants falsely. The medical evidence and the motive are two other circumstances which go a long way to establish the case of the prosecution against the two appellants.
8. As for the defence taken by the two appellants, it is not only vague but is not, at all convincing and was rightly discarded by the two Courts below. If the attack had been launched by the complainant party which was allegedly armed with a knife, the appellants would have received some serious and grievous injuries on their persons but the case is quite reverse in that the injuries received by the appellants are simple in nature, whereas from the complainant side four persons including the deceased had received a number of incised wounds of various dimensions.
Moreover, it was the appellants side which was the aggrieved party because it was the sister of the appellants who had eloped with Aziz-ur-Rehman, therefore, the appellants had naturally a very strong reason to launch attack on the complainant side.
9. As to the nature of fight, we do not subscribe to the findings of the learned Judge of the High Court that injuries were caused in a sudden flare-up as sufficient material is available on the record to establish that it was a case of pre-concert. Moreover, in a sudden fight, the question of existence of common intention does not arise. The two appellants had launched the attack with common intention, therefore, both of them are covered by the provision of section 34 P. P. C.
10. The view that we take in the matter is that the appellants have been properly convicted for the murder of Abdul Hameed and for murderous assault on the three eye-witnesses. The sentence imposed, under the circumstances, is proper. The appeal is thus dismissed.