1. ' The appellants have been convicted by the learned Sessions Judge, Karachi under section 302, P.P.C. And sentenced to imprisonment for life and fine of Rs,3,000 each or in default of payment of fine to suffer R.I. For six months. They have been further convicted under section 307, P.P.C. And sentenced to 5 years' R.I. The learned Sessions Judge further directed the appellants to pay compensation of Rs,5,000 each or in default to suffer R.I. For one year.
2. ' The facts in brief are that Arab Shah lodged a report on 25-7-1979 at Police Station Ferozabad. In his report he has alleged that 23 days prior to the incident his elder son Furqan Shah fell ill. He took his son alongwith his nephew Siddiq to doctor in Soldier Bazar. He engaged taxi of the appellant Barkat who was residing in the same Muhalla. Brother of the appellant Barkat runs hotel in the same Muhalla. When they came back from Soldier Bazar, he gave Rs,10 to his nephew Siddiq for giving to taxi driver as fare and get back the balance. The appellant Barkat taxi driver took the note of Rs,10 and went away. On the same day i,e, 25-7-1979 complainant came out from his house, when he passed from the hotel of Gulzar, appellant Barkat met him. The appellant Barkat asked him as to why he has not given his remaining fare and started abusing. He has further alleged that appellant Barkat demanded further Rs,10 from him. In the meantime Siddiq Shah, Furqan Shah and Yousuf Shah also came and so also others. The appellant Barkat hit stone at Arab Shah (complainant). The elder brother of the appellant Barkat who sits at the hotel also came there alongwith two other persons. He also alleged that he knows them by face but do not know their names. They were armed with Dandas. Gulzar was armed with Chhuri. They all came from hotel.
3. Brother of accused Barkat was armed with Chhuri. He gave Chhuri blow to Yousuf Shah on his abdomen who fell down and was bleeding. Thereafter they gave knife blows to Furcian Shah who also fell down and was bleeding. Accused Barkat was armed with Danda and gave Danda blow to the complainant which hit him on his head and shoulder and other parts of the body. The accused Barkat also caused Chhuri blows to Siddique Shah. After recording the F.I.R. The Investigating Officer started the investigation. The accused Barkat also met the S.H.O. And he wanted to lodge the report. He has directed the A.S.I.P. To lodge his report. After usual investigation the two appellants were sent up to face their trial. The appellant Barkat produced Chhuri from the back side of the hotel. He also produced one cane stick and Danda. After completing the investigation he challaned the accused Barkat and Muhammad Yaqoob while two other accused Gulzar and Ashraf Khan could not be arrested and they have been shown as absconders in the challan. The accused did not plead guilty to the charge.
4. ' At the trial the prosecution examined P.Ws. Arab Shah, Furcian Shah, Habibur Rehman, Muhammad Sadiq, Dr. Qaisar Rasool, Sarfraz Khan, Sanangram, Ghulam Samdani, Nazar Hussain Shah.
5. ' In their statements the appellants have denied to have committed the offence. The appellants did not examine any witness in defence.
6. ' The deaths of the deceased Yousuf Shah and Siddiq Shah have not been denied. Dr. Qaiser Rasool has deposed that Dr. Anwar Ali had performed the post-mortem on the dead body of Siddiq Shah and found the following injuries: External examination: "Incised wound 2" x 1/2" left thigh at the level of pubic tabernacle on interior aspect M/D with suspected cut in big vessel."
7. Internal examination: ' Head: not opened ' Thorax: Bony cage normal. Lungs pale and normal.
8. ' Heart: Pale right side contains blood left empty coronaries intact and patent.
9. ' Abdomen: Stomach mucus membrane pale, partly digested food present. SmJ! Intestine and large intestine mucus membrane pale and loaded. Liver, spleen, kidney, pale and normal urinary bladder mucus membranes pale and empty. Weapon of assault after piercing skin, sub- cutaneous tissue, inguinal ligament has cut the formal artery and disappeared in muscles."
10. ' In the opinion of the doctor injury No,1 with external and internal fingings is sufficient to cause death in ordinary course of nature. Injury was caused by sharp-edged weapon such as knife, Chhuri or dagger.
11. ' This witness has further deposed that Dr. Shamim Ahmed has performed the post-mortem of Yousuf Shah and found the following injuries:- External examination: "Incised wound 1" x 1/2" cavity deep in Hypogastrium 1" above pubic Symphysis.
12. ' This injury was ante-mortem. Internal examination: ' Thorax, Chest cavity empty, bony cage normal, lungs healthy and pale, heart healthy, pale, cornories intact. Abdominal cavity full of blood. Stomach and intestine contains small amount of chyme, membranes pale, liver, spleen, kidney pale and healthy. Urinary bladder empty and pale.
13. The weapon of injury after cutting skin and abdominal mucle, the weapon has entered peritoneal cavity and traversing obliquely has cut the right common iliacory."
14. ' In the opinion of the doctor the injury was sufficient enough to cause death. Death was due to haemorrhage and irreversible shock as a result of injury sustained upon him by sharp-edged weapon such as knife, Chhuri or dagger. Eyewitnesses have also proved this fact.
15. ' Dr. Qaiser Rasool has deposed that Dr. Abdul Qayyum examined Furqan Shah son of Arab Shah and found the following injuries:-
(1) I/H 1" x 1/2" skin deep on left upper arm above 1" left elbow.
(2) Contusion 2" x 1/4" left upper arm.
(3) Abrasion left scapular region 1/4" x 1/4".
16. ' Injury No, 1 was caused by sharp and pointed weapon while injuries Nos. 2 and 3 were caused by hard and blunt object. All the injuries were simple in nature.
17. ' Arab Shah was examined on 25-7-1979 by Dr. Captain Tahir and the following injuries were found on his person:-
(1) Incised wound left parietal bone 2" x 1" x skin deep.
(2) Plain left shoulder.
(3) Abrasion right leg 1" x 1/2".
18. ' The injuries were simple in nature and caused by hard blunt weapon.
19. ' The prosecution has examined the injured Furqan Shah and Arab Shah and they have deposed that they had received injuries. Therefore, the factum of the injuries of these two P.Ws. Has also been established. In order to bring home the charge against the appellants the prosecution relied upon the ocular evidence of P.Ws. Arab Shah, Furqan Shah, Muhammad Sadiq and Habibur Rehman.
20. ' The corroboration was sought from the motive, the recovery of bloodstained clothes, and weapon of accused Barkat, and identification test of accused Muhammad Yaqoob. The learned trial Judge has accepted these pieces of evidence against the appellants. The report of the chemical analyser is in positive and this report shows that the clothes of the accused and the Chhuri were stained with human blood. The learned trial Judge after assessing the evidence came to the conclusion that accused Barkat and Muhammad Yaqoob alongwith absconding accused and Ashraf gave injuries to Yousuf Shah and Siddiq Shah who died on account of these injuries. They also gave injuries to Furqan Shah and Arab Shah with intention to kill them. As such they were convicted.
21. Though section 34 was not added, however, the learned counsel has not pressed this technical objection. The sole contention is that the appellants are not vicariously liable and each one of the appellants would be guilty of the offence committed by him. He has not challenged the incident.
22. He has also not challenged the statements of the witnesses about the actual incident. He has submitted that some exaggeration is made by the prosecution witnesses in order to implead the two accused for committing the offence in furtherance of their common intention.
23. ' I will, therefore dilate upon the evidence produced by the prosecution at the trial in order to see whether the trial Court has correctly treated-the evidence in true perspective. The complainant Arab Shah has corroborated the contents of his F.I.R. And he has stated the same facts at the trial with certain variation in his deposition. The other witnesses have supported the complainant on all the material particulars. The appellant Muhammad Yaqoob is stated to have caused Danda blow to complainant Arab Shah. It is not stated that he had caused any injury to the deceased or injured Furgan Shah. In the F.1.R. This fact has been specifically stated but at the trial the first informant has improved his statement that accused Muhammad Yaqoob caught hold of Yousuf Shah whereafter the accused Gulzar gave knife blow to Yousuf Shah on his abdomen. This is an improvement made by the first informant and this statement appears to have been given in order to attract the provisions of section 34, P.P.C. Otherwise such material fact has not been stated in the first information report. Particular role of each accused has been mentioned in the F.I.R. The perusal of first information report would bring to this conclusion that the facts have been narrated by the complainant correctly but some material improvements have been made at the trial. The vicarious liability would not be attracted as the fight was sudden. There was no pre-concert between the two appellants. The appellants Muhammad Yaqoob is related to the accused persons. No enmity or motive has been alleged against this appellant. The injury received by P.W. Arab Shah is simple in nature and caused by means of hard and blunt substance. Therefore, the appellant Muhammad Yaqoob is guilty for an offence under section 323, P.P.C. And sentenced to one year's R.I. And fine of Rs,3,000 or in default of payment of fine to suffer R.I. For three months more. He is also entitled to the benefit of section 382-B, Cr.P.C.
24. ' As regards the case of the appellant Barkat, it is alleged that he caused injury to the deceased Siddiq Shah. There was only one injury on his person. The injury was received by the deceased by means of sharp-edged weapon. The appellant has himself admitted his presence at the Wardat.
25. The appellant Barkat in his statement under section 342, Cr.P.C. Has stated that on the day of incident Arab Shah P.W. Furqan Shah and the deceased came to his hotel and demanded Rs,10 from him and attacked him with Chhuri and Danda. Thus, the appellant has admitted his presence though has denied that he has caused any injury to the deceased but the fact remains that the appellant went to the police station and lodged the report against the complainant party. In this report he has stated that Arab Shah brought his son and they were armed with Danda and hockey.
26. They started beating him with Danda and hockey and he has received injuries on his body, on index finger at left hand and the little finger of right hand while defending and his head, too, is bleeding. He has received injuries on other parts of his body. It is proved that the appellant Barkat had also received injury. Dr. Qaiser Rasool (P.W.9) had examined him and found the following injuries:-
(1) Lacerated wound left forehead 2" x 1/3" x skin deep. (2) Abrasion right little finger 1/2" x 1/2"
(3) Abrasion left knee front 1" x 1".
(4) Abrasion left leg in the front 3" x 3". Injuries were fresh weapon was hard and blunt and injuries Nos. 2 to 4 simple. Injury No,1 was kept reserved. Patient was asked for re- examination after 21 days."
27. ' This witness could not say if appellant Barkat was re-examined or not. Injury No,1 was on the head.
28. ' The contention of the learned counsel for the appellants is that the appellant Barkat had caused injury to deceased Siddiq Shah in self-defence and this fact has been ignored by the learned trial Judge. The injury No, 1 was kept reserved but final opinion has not been given by the medical officer. Injury No,1 was on the vital part of the body.
29. ' In such circumstances the appellant, Barkat had caused injury to the deceased Siddiq Shah, he had received only one injury by means of knife. The fight was sudden and there was no deep enmity between the appellant and the complainant party. The presence of the complainant and his son at the Wardat is not disputed. It is also clear from the evidence on record. The contention of the accused is that he had been given Lathi and hockey blows by the complainant party. In the face of these facts it is possible that the appellant had tried to save himself and caused one blow to the deceased. He did not repeat the attack. The incident had occurred suddenly, therefore he cannot be vicariously held liable for the offence. There was no concert between the two appellants, he is, therefore, convicted under section 304, Part I, P.P.C. And sentenced to 10 years' R.I. And fine of Rs,3,000 or in default of payment of the fine to suffer R.I. For six months. He is also convicted under section 323, P.P.C. And sentenced to R.I. For one year and fine of Rs,3,000 or in default of payment of fine to suffer R.I. For three months. He is also entitled to the benefit of section 382-B, Cr.P.C. The sentences are to run concurrently.
30. ' Both the appellants shall also pay compensation of Rs,5,000 each or in default to further undergo R.I. For one year. From the compensation if recovered, Rs,2,000 each be paid to the legal heirs of the deceased Yousuf Shah and Siddique Shah and Rs,500 each be paid to the injured Arab Shah and Furqan Shah. With this modification in convictions and sentences, the appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.