1. ' The above appellants were tried alongwith Subhagho, Rasool Bux and Abdul Majid under section 302 read with section 34, P.P.C. For committing murder of one Rato Jamali, before the learned IIIrd Additional Sessions Judge, Hyderabad, who while acquitting the co-accused Sabhagho, Rasool Bux and Abdul Majid, has convicted appellant Wall Muhammad under section 302, P.P.C. And has sentenced him to imprisonment for life and also to pay a fine of Rs,5,000 in default to suffer R.I. For one year. He is further ordered to pay Rs,5,000 as compensation to the heirs of deceased Rato under section 544 A, Cr.P.C. In default to suffer R.I. For one year more. Appellant Anwar alias Anoo has been convicted under section 302 read with section 34, P.P.C. And sentenced to life imprisonment. He has been ordered to pay fine of Rs,5,000 and compensation of Rs,5,000 and in default to undergo R.I. For one year more on each count, vide his judgment dated 19-3-1986.
2. ' These appeals are directed against the above judgment. Since the convictions arise out of the same incident and the appellants have been convicted by one judgment, I propose to decide the above appeals by this judgment.
3. ' The brief facts of the case are that on 22-7-1978 complainant Nawaz Hussain was posted as Deputy Superintendent, Central Jail, Hyderabad. At about 2-10 p.m. He heard commotion towards gates Nos. 2 and 3. He alongwith Abdul Hayee Qureshi, Assistant Superintendent, Central Jail, went towards that side. They found prisoners Mehmood Vikio, Ghulam Muhammad and Khamoo present at the gate. Constable Akbar, O.G. Warder, Guldad and Jailor Muhammad Ramzan also came there running. They saw that under-trial prisoner Anwar alias Anoo had caught hold of convict Rato from his back side, and prisoner accused Wali Muhammad alias Waloo was inflicting Chhuri blows on chest of Rato. They intervened and rescued deceased Rato who fell down as a result of injuries and was bleeding. Thereafter accused Wali Muhammad ran away towards gate No,3, washed the Chhuri from water tank, and threw the same on roof of the office of jail. Jailor, Hussain immediately removed injured Rato to L.M.C. Hospital, but he succumbed to injuries on reaching the hospital. The complainant was informed about the death of Rato, and therefore, he informed his Officers about the incident. The complainant then lodged the F.I.R. At Police Station Market as directed by his superiors. The motive as stated in the F.I.R. Was that there was a quarrel between Rato and the accused prior to the incident and as such there was enmity between them. It was further alleged in the F.I.R. That deceased Rato was taken to the Court for attending hearing of his case, and on return the accused were already standing at the gate and attacked him due to above enmity.
2. The F.I.R. Was recorded by Abdul Sattar S.I.P. Police Station Market Hyderabad, and enquiry was conducted under section 176, Cr.P.C. By Mr. Abdul Shakoor the then A.C.M., Market Hyderabad, on the directions of District Magistrate, Hyderabad. He went to mortuary in L.M.C., Hyderabad, prepared inquest report of dead body of Rato Exh.34-A in presence of Mashirs Qassim and Muhammad Sher.
4. He also prepared the Mashirnama of dead body Exh.34-B in presence of Mashirs Abdul Hayee and Muhammad Sher. He then went to Central Jail, inspected place of Wardat which was shown to him by the complainant, and prepared Mashirnama Exh.24. Rana Azhar, Assistant Superintendent, Central Jail, Hyderabad, produced blood-stained Chhuri before him, which he secured and sealed in presence of the same Mashirs and prepared such Mashirnama which has been produced as Exh.25. He then examined the person of accused Wall Muhammad who had injury on his little finger and prepared Mashirnama of his injury and the same has been produced as Exh.26. Then complainant Nawaz Hussain produced blood-stained shirt and bloodstained trousers of accused Anwar which he secured and sealed in presence of the same Mashirs vide Mashirnama Exh.27. On 23-7-1978 he went to Central Jail, Hyderabad where complainant Nawaz Hussain produced tin containing burnt blood-stained shirt and trousers of accused Wali Muhammad, which he secured and sealed in presence of abovesaid Mashirs vide Mashirnama Exh.29. He then recovered blood- stained clothes viz. Shirt, trousers, and Sadri, and handcuffs and bar fetters of deceased Rato which he sealed in presence of same Mashirs vide Mashirnama Exh.28. He then on pointing of Rana Azhar, Assistant Superintendent Central Jail, Hyderabad inspected the place from where the Chhuri used in the offence was found by Rana Azhar. This place was near 'A' Class on the back side of Special Court, Central Jail, Hyderabad. He prepared such Mashirnama in presence of same Mashirs vide Exh.30. On the same day he examined accused Majeed. He also recorded statements of P.Ws.
5. Yakoob, Vikio, Khamoo and Mehmood. On 25-7-1978 he recorded the statements of P.Ws. Hussain Bux, Guldad, and Muhammad Akbar. On 26-7-1978 he recorded the statements of P.W. Abdul Hayee and Muhammad Ramzan. On 24-8-1978 he examined accused Rasool Bux and on 3-9-1978 he examined accused Anwar alias Anoo and P.W. Rana Azhar. On 4-9-1978 he examined P.W. Wahid Bux and accused Wall Muhammad. On 26-9-1979 he recorded the statement of Allah Bachayo, he then sent report of his inquiry alongwith the case papers to District Magistrate, Hyderabad. After inquiry was completed, S.H.O. P.S. Market, Hyderabad challaned the accused. Formal charge under section 302 read with section 34, P.P.C. Was framed against accused All Muhammad and Anwar alias Anoo, and charge under section 201, P.P.C. Read with section 34, P.P.C. Was framed against Sabhago, Rasool Bux and Abdul Majeed. The accused pleaded not guilty.
6. ' In support of the case, prosecution examined complainant Nawaz Hussain Exh.15 who produced F.I.R. As Exh.16, P.W. Abdul Hayee as Exh.17, P.W. Muhammad Akber Exh.18, P.W. Muhammad Ramzan Exh.19, P.W. Habib Rehman F.C. Exh.21, who was process server to the fact that P.Ws. Khamoo, Vikio, Mehmood, Yakoob and Wahid Bux, were released from Central prison and their whereabouts were not known and they were not traceable and there was no possibility to secure their presence in near future. He produced unexecuted bailable warrants and non-bailable warrants as Exhs.21 to 21- C, P.W. Tabark All Mashir Exh.23, who produced Mashirnama of Wardat as Exh.24, Mashirnama of recovery of blood-stained Chhuri as Exh.25, Mashirnama of injuries of accused Wall Muhammad, Exh.26, Mashirnama of recovery of blood-stained clothes of accused Anwar, Exh.27, Mashirnama of production of handcuffs, fetters, bloodstained clothes of deceased Rato Exh.28, Mashirnama of recovery of Tin containing burnt blood-stained clothes of accused Wali Muhammad Exh.29, and Mashirnama of the place from where the Chhuri used in commission of offence was found, as Exh.30, P.W. Manzoor Ali H.C. Exh.31, P.W. Mr. Abdul Shakoor, the then Additional City Magistrate, Market, Hyderabad who had conducted the inquiry Exh.34, Mr. Abdul Shakoor produced inquest report of deceased as Exh.34-A and Mashirnama of dead body as Exh34-B. P.W. Mola Bux, Tapedar Exh.35, who produced sketch of Wardat in triplicate as Exh.35-A, P.W. Dr. Muhammad Siddique M.O.
7. Exh.36, he produced post-mortem report of deceased Rato Exh.36-A. P.Ws. Azher Rana and Guldad were given up by A.P.P. Vide statement Exh.20. P.Ws. Vikio, Khamoo and Mehmood were given up by A.P.P. Vide statement Exh.22. Report of Chemical Examiner was produced by A.P.P. As Exh.38-A. After close of prosecution case, the statements of accused were recorded under section 342, Cr.P.C. In which they denied the allegations. Appellant Anwar alias Anoo further stated that he was prisoner in Central Jail, Hyderabad, on 22-7-1978. His cousin Jan Muhammad came to see him in jail on that day. After interview with Jan Muhammad, when he was returning back to his barrack, he saw prisoners fighting, one who was handcuffed was striking chain of handcuffs to the other and he was bleeding from his hand. He caught hold of the person who was handcuffed, from his back so that he may not strike him. Meanwhile, other prisoner gave knife blows to the prisoner who was handcuffed. He had no knowledge that the other prisoner was carrying knife in jail. Appellant Wali Muhammad denied the allegations but admitted that he had received injury saying that he has no explanation to make. The co-accused also denied the allegations made against them. None of the appellants examined any witness in defence. The learned trial Judge after considering the evidence, brought on record, by the prosecution while acquitting the co-accused convicted the present two appellants as described above.
8. ' The evidence of Dr. Muhammad Siddique who carried on the postmortem on deceased Rato Jamali shows that the deceased had following injuries on his person:-
(1) An oblique incised wound 3/4" x 1/4" x cavity deep on the front of the chest right side on the fourth intercostal space about 1/2" lateral to the sternum.
(2) An oblique incised wound 1/2" x 1/4" x muscle deep on the left side of the chest at its upper part about 3-1/2" lateral to the left nipple.
(3) An oblique incised wound 1" x 1/4" x deep on the back of chest left side below the lower border of the scapula at its middle, on opening, this wound was found only muscle deep.
9. ' According to the doctor all the injuries were anti-mortem and appeared to have been caused by sharp cutting weapon such as knife. In his opinion the cause of death appeared to be shock and intra thoracic haemorrhage due to injury to the right lung as a result of external injury No,1. This injury was sufficient to cause death in ordinary course of nature. The probable duration between death and post-mortem was about 17 to 18 hours. He has produced the post-mortem report as Exh.36-A. I have heard Mr. A.Q. Halepota, learned counsel for applicant Anwar alias Anoo, Mr. Imam Bux Shaikh, learned counsel for applicant Wali Muhammad alias Waloo, and Mr. Hayat Qureshi, learned counsel appearing for the State.
10. ' The contention of Mr. A.Q. Halepota is that there was no previous enmity between appellant Anwar and deceased Rato.That on the day of incident he had come out from his barrack for interview with his relation Jan Muhammad. That he was empty handed at the time of incident and none of the witnesses examined by the prosecution has stated as to how the fight started. That merely because the appellant caught hold of the deceased will not mean that he had common intention with appellant Wali Muhammad specially when the appellant has given explanation which is not only reasonable but is supported by the injury on the person of appellant Wali Muhammad.
11. ' Mr. Imam Bux, learned counsel appearing for the appellant Wali Muhammad has contended that there was no motive on the part of the appellant Wali Muhammad to kill deceased Rato. That it is a case of sudden fight between parties in which appellant Wali Muhammad was injured and there was no intention on the part of Wali Muhammad to kill deceased Rato.
12. ' Mr. Hayat Qureshi, learned counsel appearing for the State has contended that there was no evidence against appellant Anwer that he shared common intention with appellant Wali Muhammad, and therefore, the fact that he caught hold of the deceased could be to separate the parties and prevent the deceased from attacking the appellant Wali Muhammad. That there was no evidence that he shared common intention with the appellant Wali Muhammad and therefore, he could not support the conviction of appellant Anwar. With regard to appellant Wali Muhammad, his case was that it was a case of sudden fight between the parties, and therefore, his case will fall under section 304, Part I, P.P.C.
13. ' I have considered the contentions of the learned counsel and have also gone through the evidence.
14. ' Complainant Nawaz Hussain who was Deputy Superintendent, Central Prison, Hyderabad at the relevant time has fully supported his F.I.R. He has further stated that before this incident a dispute had taken place between accused Wali Muhammad and deceased Rato at Nara Jail, Hyderabad.
15. In cross-examination he had admitted that he had never remained Incharge Nara Jail, Hyderabad.
16. He has further admitted that he had gone to the place of Wardat on commotion, and he had not seen anything before, except that accused Anwar caught hold of Rato from back side. He has further stated that accused Wali Muhammad and Anwer had come to the gate with other prisoners who had come at the main gate to attend the interview of the prisoners.
17. ' P.W. Abdul Hayee Qureshi has deposed that he was Assistant Superintendent, Central Prison, Hyderabad, at the relevant time, and according to him, at the time of incident he was sitting in the office of the complainant, when they heard commotion and cries from the Gate No,2 inside the jail, he and Nawaz Hussain both rushed towards that spot. Akber also followed them. He saw Chhuri in the hands of accused Wali Muhammad who was inflicting Chhuri injuries to Rato, while Anwar had caught hold of deceased Rato.
18. ' P.W. Muhammad Akber has deposed that he was working as O.G. Warder in Central Jail, Hyderabad, at the relevant time. At the time of incident his duty was at Gate No,2, Central Jail, Hyderabad. At about 2-00 p.m. 8/9 prisoners had come, after attending hearing of their cases.
19. After their search he allowed them to enter into jail. All of them were in handcuffs, he opened their handcuffs except that of deceased Rato whose handcuffs could not be opened and, therefore, he detained him at the gate inside. The handcuffs of Rato could not be opened because the key of those handcuffs did not work. He handed over deceased Rato to Mehmood Watchman to keep an eye upon him, and asked Khamoo to arrange for blacksmith for opening of the handcuffs and fetters of Rato. After handing over Rato to Mehmood he closed the door of the prisoners. Thereafter some prisoners had come from the Gate No,1 and he started taking their search. While he was taking search he heard commotion coming from Gate No,3 on which Nawaz Hussain complainant, and Abdul Hayee Qureshi came from the office of Jail Superintendent, and he opened the door for them. They went running towards the place of incident and he also followed them. When they reached there he saw accused Anwar catching hold of Rato while appellant Wali Muhammad was inflicting injuries with Chhuri on deceased Rato. He saw only one blow caused by Wali Muhammad with Chhuri to Rato on his chest, complainant and Abdul Hayee Qureshi intervened in order to save Rato. Injured Rato was then removed to the hospital. In cross-examination he has stated that he had seen injuries on the two fingers of appellant Wali Muhammad and blood was coming out of the injuries.
20. ' P.W. Muhammad Ramzan deposed that he was Assistant Superintendent, Incharge, undertrial prisoners at Central Jail, Hyderabad, at the time of incident. On the day of incident he was performing his duties of interview. That at about 2-00 p.m. He heard commotion coming from outside the interview room. He became alert and saw that one undertrial prisoner had caught hold of one convicted prisoner, while other undertrial prisoner was inflicting Chhuri injuries to the convicted prisoner. When he went there he found that the person who had caught hold of the convicted prisoner was Anwer, the prisoner who was given Chhuri injuries was accused Wali Muhammad, while the person who had sustained Chhuri blows was Rato. He saw Wali Muhammad causing two Chhur blows only to Rato Jamali who after sustaining injuries had fallen down. At tha moment complainant Nawaz Hussain and Abdul Hayee Qureshi and Akbei Warder were present and had witnessed the incident. After inflicting injuries Wal Muhammad ran away inside the jail. In cross-examination, he has stated that it i, correct that on the day of incident Anwer was brought for his interview with Jar Muhammad, and soon after the interview this incident took place. He has further admitted that he had arranged the interview of Anwer accused with Jan Muhammad.
21. ' P.W. Habibur Rehman was a police constable and he was given process of service on P.W.
22. Khamoo, Vikio, Mehmood, Yagoob and Wahid Bux bin according to him, their whereabouts were not known, therefore, the same could not be served. He made such endorsement on the process which he has produced ' P.W. Tabarak Ali has deposed that he acted as Mashir in this case. He has produced Mashirnama of Wardat Exh.24. Rana Azher, Assistant Superintendent, Central Prison, had produced blood- stained Chhuri before the Magistrate and he has produced this Mashirnama as Exh.25. He has produced Mashirnama of injuries on accused Wali Muhammad as Exh.26, Mashirnama of production of blood-stained clothes of accused Anwer as Exh.27, securing of blood-stained clothes, prison chains and handucffs from the person of deceased Rato, vide Mashirnama Exh.28, production of tin containing burnt clothes of accused Wali Muhammad by complainant vide Mashirnama Exh.29, and pointing out of the place of recovery of Chhuri vide Mashirnama Exh.29, and showing a crime weapon by accused Wali Muhammad vide Mashirnama Exh.30.
23. ' P.W. Manzoor Ahmed has deposed that he was W.P.C. At Police Station Market, Hyderabad, at the relevant time. He has deposed that property of crime No, 265 of 1978 was received at P.S. Market, Hyderabad, which was entered in property register at page No,70-22. That this entry does not show that any tin containing burnt clothes of accused Wali Muhammad was received at the police station.
24. ' P.W. Mr. Abdul Shakoor has deposed that he was Additional City Magistrate Market, Hyderabad, at the relevant time. He has stated that he was ordered by the District Magistrate, Hyderabad to make inquiry under section 176, Cr.P.C. Regarding the murder of a prisoner. He has supported the prosecution and the contents of his evidence have already been mentioned in para. 2 of this judgment.
25. ' P.W. Maula Bux is Tapedar. He had visited the place of Wardat and had prepared sketch which he has produced as Exh.35.
26. ' From the above evidence it is clear that although complainant Nawaz Hussain had stated in his F.I.R. And in his evidence in Court that there was dispute between the appellant Wali Muhammad and deceased Rato Jamali which took place at Nara Jail, Hyderabad, but he has admitted in cross-examination that he never remained as Incharge at Nara Jail. He has not given any particulars about the dispute between the two, nor any witness has been examined on the point that there was actually a dispute between deceased and appellant Wali Muhammad. There is no allegation against appellant Anwer either in F.I.R. Or in the evidence that he had any dispute with deceased Rato. Therefore, it is clear that the prosecution has failed to prove motive in the present case. As far as ocular evidence is concerned none of the witnesses have deposed as to how the incident started. P.Ws. Have stated that they came on commotion, and when they reached at the Wardat they found that accused Anwer had caught hold of the deceased while accused Wali Muhammad was giving him Chhuri blows. Therefore, the reason as to why the fight started and who started the fight is also shrouded in mystery. That it has been admitted by complainant as well as P.W. Mr. Abdul Shakoor that accused Wali Muhammad had received injuries which according to accused Anwer were caused by deceased Rato Jamali. That there is no allegation against Anwer that he was armed with any weapon and the explanation given by him appears to be reasonable and is supported by the admission of P.W. Akber that the appellant Anwer had gone to have interview with one Jan Muhammad Chandio. Under these circumstances, I hold that there was no evidence to show that appellant shared common intention with appellant A Wall Muhammad, and therefore, I allow his appeal, set aside his conviction and sentence, and acquit him of the charge.
27. He should be released forthwith if not required in any other case.
28. ' So far as appellant Wali Muhammad is concerned, death of deceased Rato is not disputed, and there is medical as well as ocular evidence on this point. We have to see whether his case falls within exception 4 to section 300, P.P.C. Which reads as under:- "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon sudden quarrel and without the offender having taken undue advantage or acted in cruel or unusual manner."
29. In order to establish that a case comes under this exception it is necessary for the accused to show that:-
(1) The offence was committed without premeditation.
(2) That it was committed in a sudden fight in the heat of passion upon a sudden quarrel; and
(3) That he did not take undue advantage and did not act in a cruel and unusual manner.
30. ' If these requirements are satisfied then exception 4 to section 300 will be attracted.
31. ' In the present case, there is no evidence that the appellant Wali Muhammad had motive to kill the deceased, and therefore, the element of premeditation could not be there. That it is also an admitted position that there was a fight between the appellant Wali Muhammad and deceased Rato Jamali which is clear from the fact that the appellant Wali Muhammad had received injuries on hand which had bleeded.
32. ' In Muhammad Shafiq v. The State PLD 1960 Lah. 339; it was held that:- "Grappling is a 'fight' within the meaning of exception 4."
33. 'In Karam Singh v. The Crown AIR 1926 Lah. 219 it was observed:- 'That in the course of sudden fight, Ranga Singh took out pistol he had with him and probably fired 3 shots, one of which missed, while one struck the deceased's thigh and one in the abdomen.
34. Death was due to the injury on the abdomen. It was held that though Rana Singh had a pistol upon him, he did not come with the intention of using it, and that he used it in the course of sudden fight, the conviction under section 302, P.P.C. Was altered to one under section 304, Part I, P.P.C. And the accused was sentenced to seven years' R.I."
35. In this case, also since there was sudden fight between the parties, there was no premeditation and appellant Wall Muhammad did not take undue advantage, nor behaved in unusual manner and, therefore, observations in the above two cases, will apply to all the four corners of this case.
36. ' I, therefore, convert the conviction of appellant Wali Muhammad from section 302 to one under section 304, Part I, P.P.C. And sentence him to seven years' R.I. He is entitled to the benefit of section 382-B, Cr.P.C.