' Appellants Babar and Zardad, both son of Kala Khan were tried by IVth Additional Sessions Judge (South) Karachi, for the offence under section 302/34, P.P.C. They were, however, found guilty for the offence under section 304/34, P.P.C., and vide judgment dated 2-3-1989 were sentenced to suffer R.I. For 10 years and to pay a fine of Rs,3,000 each or in default to suffer R.I. For one year. They were also directed to pay a compensation of Rs,3,000 each to legal heirs of deceased Fida Hussain or in default to suffer R.I. For six months. By this appeal filed under section 410, Cr.P.C. The appellants have challenged their conviction and sentence.
2. This regrettable episode is a sequel to an ordinary occurrence. On 20-11-1980 at about 8-15 a.m.
The goat belonging to complainant Dilawar Khan went out of his house. He asked the help of his cousin deceased Fida Hussain in catching hold of it. Both Dilawar Khan and deceased Fida Hussain ran after the goat. The goat, however, entered into a fruit-stall of Malik Aman, where the present appellants worked. In the meanwhile the goat ate an apple, whereupon the appellants abused deceased Fida Hussain, who protested and offered to pay the price of apple. It is alleged that there was an altercation between the parties, and as a result thereof appellant Zardad grappled with deceased Fida Hussain, while appellant Babar struck him with a Chhuri which blow punctured his heart. Fida Hussain fell down and breathed his last while being carried to Jinnah Post-Graduate Medical Centre, Karachi. Besides complainant Dilawar Khan, the incident was witnessed by Asghar Khan, Muhammad Riaz, Mehtab Ali, Fazal-urRehman and other persons of locality. On the same day at 9 a.m. The report of this incident was registered at Defence Society Police Station. Aslam Noor Khan S.I.P., Defence Society Police Station took up the investigation. He inspected the place of occurrence. The fruit-stall where the appellants worked was found burnt. The Police Officer then arrested the appellants and secured blood-stained blade of a Chhuri from the ashes lying at the place of occurrence. The Police Officer also secured blood-stained shirt from the person of appellant Baba. After completing the investigation both the appellants were sent up.
3. The appellants pleaded not guilty to the charge framed against- them under section 302/34, P.P.C. And claimed a trial.
4. At the trial the prosecution examined Dilawar Khan (P.W.1), Muhammad Riaz (P.W.2), Asghar Khan (P.W.3), Mehtab Ali (P.W.4), Shabi-ulHasan P.C. (P.VV.5), Ahmad Din (P.W.6), Aslam Noor Khan S.I.P.
(P.W.7) and Dr. Abdul Majid (P.W.8). Aslam Noor Khan S.I.P. Was also examined as (C.W.2) to identify the signature of Muhammad Shall S.H.O. Who had recorded the F.I.R. And was not available.
5. The appellants have denied the case of the prosecution. They:examined themselves on oath and have also examined Muhammad Afsar (D.W.1), and Muhammad Saleem (D.W.2) in their defence.
6. On the assessm ent of the evidence the learned Additional Sessions Judge found the appellants guilty for the offence under section 304/34, P.P.C. And convicted them accordingly.
7. I have heard Mr. Sardar Khan, learned counsel for the appellants and Mr. A.K. Jatoi, learned counsel for the State. The latter has supported the conviction recorded against the appellants.
8. The fact that deceased Fida Hussain died an unnatural death is not open tel any doubt. Dr. Abdul Majid (P.W.8) who had conducted the autopsy on the dead body of Fida Hussain found the following external injuries on his person:--
(1) Incised wound 3/4" x 1/4" x cavity deep on the left side of chest about 2" below left nipple.
(2) Abrasion on the left forearm back side 1" x 1/2".
' On internal examination of deceased Fida Hussain, Dr. Abdul Majid (P.W.8) found the pericardium and left ventricle of the heart cut. According to Dr. Abdul Majeed (P.W.8) injury No,1 which was caused by a sharp-edged weapon, such as Chhuri, was sufficient to cause death. The injury No,2 was obviously the result of fall. It is, therefore, clear that whoever had caused injury No,1 to deceased Fida Hussain had no other intention but to kill him.
9. The case of the prosecution rests upon the following items of evidence:-- (0 Direct testimony consisting of Dilawar Khan (P.W.1), Muhammad Riaz (P.W.2), Asghar Khan (P.W.3), and Mehtab All (P.W.4).
(ii) Recovery of blade of Chhuri at the pointation of appellant Babar, which on examination by Chemical Examiner was found stained with human blood.
(iii) Recovery of blood-stained shirt from the person of appellant Babar, which on examination by Chemical Examiner was found stained with human blood.
10. Admittedly the incident took place all of a sudden with no premeditation on a trifling matter. The record also shows that there was no previous hostility between the parties. In such a situation the contention of learned counsel for appellants that Dilawar Khan (P.W.1) and Asghar Khan (P.W.3) who are related to deceased Fida Hussain should not be believed without independent corroboration, has got hardly any value. Mere relationship with deceased person is not enough to discard testimony of such witnesses, who are natural and reside near the place of occurrence. The cases reported as Niaz v. The State PLD 196 SC (Pak.) 387 and Nazir and others v. The State PLD 1962 SC 269, are leading authorities on this point. According to the Supreme Court the 'interested witness' is one who has a motive for falsely implicating the accused. It may be recalled that the goat which is the bone of contention in this case belonged to complainant Dilawar Khan (P.W.1) and deceased Fida Hussain was helping him to capture it.
11. Muhammad Riaz (PAA'.2) is again a natural witness. He resides at a distance of about 200 feet from the Wardat and his presence at that spot cannot be said to be by chance. The names of this witness and both the appellants with their specific role find place in the F.I.R. Which was lodged with great promptitude before there was any time for concocting a false story.
12. The evidence of Dilawar Khan (P.W.1), Asghar Khan (P.W.3), and Muhammad Riaz (P.W.2) has been criticised mainly on the ground that they have given contradictory versions in their evidence.
The alleged discrepancies in their evidence mostly consist of matters of detail. These are not in themselves proof of fabrication and do not in my view discredit their testimony on the main point.
The learned Additional Sessions Judge who was apparently favourably inclined by the demeanour of the witnesses considered this criticism at page 16 of the judgment and ignored it for good seasons. I also find it difficult to take a contrary view.
13. Mehtab Ali (P.` 4/.4) who is completely an independent witness has come out with truth in the following words:-- "On 20-11-1980 at about 8 a.m. Or 8-15 a.m., I was going to my duty. I saw accused Zardar, who held Fida Hussain and accused Babar caused Chhuri injury on chest of Fida Hussain, who fell down.
Dilawar took Fida Hussain to hospital. Incident was also witnessed by P.W. Riaz, Dilawar and other people. Dilawar had held goat. I then went on my duty. On return at 5 p.m. I came to know that Fida Hussain had died. On next day I went to Police Station and gave statement that I had wintessed the incident. My statement was recorded at Police Station. Accused present in Court are same."
14. In cross-examination to this witness only two questions were put which Acre replied as follows:-- "D.S.P. Had examined me on 24th at Saddar Police Station. I do not know if Riaz, Dilawar, Fazal, Asghar were called by D.S.P. For examination."
15. The evidence of this witness was assailed by learned counsel for appellants on two-fold grounds, firstly that his name was not disclosed in F.I.R., and secondly that his statement was recorded by police on the 4th day of incident. The F.I.R. Is not supposed to be an exhaustive document. It is meant only to set the law in motion. As observed earlier the incident took place all of, a sudden and number of persons from the locality had assembled there, and in such a situation the omission to disclose the name of Mehtab Ali (P.W.4) in FIR. Is hardly material. Since he was not shown in F.I.R. The recording of his statement of the 4th day of incident is not a suspicious circumstance.
16. Besides the ocular account given by the above witnesses, there is evidence of recovery of blood-stained Chhuri at the instance of appellant Babar and recovery of blood-stained shirt from the person of appellant Babar. Muhammad Riaz (P.W.2) and Aslam Noor Khan S.I.P. (P.W.7) speak of recovery of Chhuri from the burnt debris of the stall. Asghar Khan (P.W.3) and Aslam Noor Khan S.I.P.
(P.W.7) have testified about the recovery of blood-stained shirt from the person of appellant Babar.
Both these articles were scaled and were sent to Chemical Examiner for examination. The report of Chemical Examiner is on record (Exh.P.11/B), which is in affirmative. No question about the recovery of blood-stained shirt was put to appellant Babar in his 342, Cr.P.C. Statement, but in his statement on oath appellant Babar has disowned it. He was, therefore, not taken by surprise, and no prejudice appears to have been caused to appellant Babar.
17. Muhammad Afsar (D.W.1) and Muhammad Saleem (D.W.2) are of no help to appellants.
Muhammad Afsar (D.W.1) states that on the relevant day he heard cries and came to know that somebody was taken to hospital. He, however, admits in cross-examination that appellant Babar had no enmity with deceased. Fida Hussain. Muhammad Saleem (D.W.2) only gives vague evidence. Their evidence does not inspire any confidence and was rightly rejected by the learned Additional Sessions Judge.
18. Mr. Sardar Khan, learned counsel for appellants has referred to a number of authorities, but I do not find it necessary to discuss them, because it is a question of fact in each particular case, whether the evidence produced by the prosecution can, or cannot be considered to be sufficient to establish the guilt of accused.
19. The help of exception 4 to section 300, P.P.C. Can be invoked, if and only if, death is caused;--
(a) without premeditation; (1)) in a sudden fight, in the heat of passion upon a sudden quarrel,
(c) without the offender's having taken undue advantage or acted in a cruel or unusual manner, and
(d) the fight must have been with the person killed.
' To bring the case within this exception all the ingredients mentioned in it must be found (see the Penal Law of India by Dr. Sir Hari Singh Gour).
20. The evidence which has come on record clearly establishes that the incident was not premeditated and it took place all of a sudden on a very trifling matter. Appellant Babar has not taken undue advantage of the situation. The Chhuri which was readily available on fruit-stall was used in the commission of this crime and only one injury was caused. The fight was also with deceased Fida Hussain who was the unfortunate victim of this case. All these factors when combined together bring the case against appellant Babar under section 304(I), P.P.C., and he was rightly convicted. The sentence awarded to him is also adequate and needs no interference.
21. Admittedly the incident took place all of a sudden at the spur of moment without any premeditation. In such a situation section 34, P.P.C. Would not normally apply and every person who took part in the fight would be taken to be responsible for his individual act. Common intention is the sole test of joint liability under section 34, P.P.C. Even if the evidence of all the prosecution witnesses is taken on face value, it will only show that appellant Zardad was grappling with deceased Fida Hussain which is a common feature in disputes of this nature. No doubt Muhammad Riaz (P.W.2) has attributed usual Lalkara to appellant Zardar, the F.I.R. And other witnesses are sile.Nt on this point. It appears that appellant Babar who found deceased Fida Hussain grappling with his brother Zardad took the Chhuri from the fruit-stall and caused only one blow to deceased Fida Hussain which proved to be fatal. The case of Misbahuddin and others v.
The State reported in PLD 1983 SC 79, is relevant in a situation like this. At page 107 it was observed:-- "The case of remaining accused is distinguishable from that of Misbahuddin. This was a sudden quarrel in which question of furtherance of common intention would not arise. Moreover, it is an admitted position that the Chhuris held by accused persons were not being brandished at the time of occurrence and were kept in their respective Dabbs, by the accused. None of them caused any serious wound to their adversaries. They are not, therefore, vicariously guilty either for the act of Misbahuddin or the act of each other. Their conviction under section 302 read with section 34, P.P.C.
Is accordingly set aside."
22. Respectfully following the above observations of the Supreme Court, I set aside the conviction recorded against appellant Zardad under section 304/34, P.P.C. And acquit him. Appellant Zar(Lid who is in custody shall be released forthwith, if not required in any other case.
23. In the result the appeal filed by appellant Zardad is accepted, while the appeal filed by appellant Babar is dismissed. The benefit of section 382-B, Cr.P.C. Is, however, extended to him while computing the sentence.