' Abdul Khaliq aged 35 years, resident of 197 R. B. Tehsil and District Lyallpur, has appealed against his conviction under section 302/34,, P. P. C and sentence of life imprisonment and a fine of Rs, 2,000 or in default further rigorous imprisonment for two years. The fine, if recovered, was to be paid to the legal heirs of the deceased as compensation.
2. The case of the prosecution against the appellant was that on the occasion of the betrothal ceremony of his brother one Abdur Rahim, a friend of the appellant, had obtained on loan supplies worth Rs, 99 from the shop of Shah Muhammad deceased about two and a half months before the occurrence which took place in April 1972. The deceased had been asking Abdur Rahim to pay him back the amount due for the purchases, but Abdur Rahim had not done so and instead a few days before the occurrence had also exchanged abuses. On the 6th of April 1972 at about 4 p.m. The deceased was at his shop when Abdur Rahim passed by that side. He once again demanded the money. This time Abdur Rahim did not make a reply but said that he will pay and soon thereafter returned in the company of the appellant armed with a chhuri and entered the shop of Shah Muhammad. The appellant is said to have caught hold of him from behind while Abdur Rahim inflicted numerous knife blows on him from the front. An alarm was raised and the deceased also tried to run away from the assailants and could do so only after he had received these injuries and going ahead he fell on the Thara of the shop of Muhammad Rafiq (P. W. 8). Taj Din (P. W. 9), a brother of the deceased alongwith others took the injured Shah Muhammad to the hospital from where information was transmitted on telephone to the police station where it was received by Muhammad Hussain A. S.
1. And he immediately went there and on the basis of the statement made by Taj Din (P. W. 9) with respect to the occurrence the first information report was recorded and case registered. The injured Shah Muhammad expired soon in the hospital.
3. The investigation of the case was taken up by Anwar Ali Shah S. I. (P. W. 13) the same day and he examined the site and got the site-plan prepared and also made recoveries of earth and the blood-stained curtain from the shop of Muhammad Rafiq. On 20-4-1972, the appellant and Abdur Rahim were arrested and a blood-stained chhuri Exh. P. 6 is said to have been recovered from Abdur Rahim.
4. Dr. Imtiaz Ahmad Gill (P. W. 1) performed the post-mortem examination on the dead body of Shah Muhammad and found the following injuries :-
(1) A stab wound ir x r on the front of chest.
(2) A stab wound 1' x 14' x 3' in the right axilla.
(3) An incised wound 4" x 3', skin deep on, the left chest.
(4) Two incised wounds 1r x r, 1" x r on the left forearm.
(5) An incised wound r x r, skin deep, in the right arm.
(6) An incised wound 1r x r, skin deep, in the right foot.
(7) An incised wound 2'x j' on the left foot.
' According to doctor injury No, 1 was sufficient in the ordinary course to cause death.
5. The main accused in the case viz. Abdur Rahim died a natural death before the trial of the case started. Therefore, the trial took place only of the appellant.
6. The plea of the appellant at the trial was that he was not at all involved in the matter, had not accompanied Abdur Rahim nor caught hold of the deceased when chhuri blows were given to the deceased by Abdur Rahim. He explained the case against him by saying that "Muhammad Arshad is the step-son of Taj Din P. W. And this Arshad is my friend. Taj Din P. W. Does not want that he should meet his mother. I generally arrange meeting between Arshad and his mother who is now the wife of Taj Din P. W. And this P. W. Did not like it."
' In defence he produced Ghulam Rasool Ahlmad in the Court of Civil Judge, 1st Class, in order to prove that Civil Suit No, 233/1972 was pending against Taj Din and others and that it was instituted by the heirs of Shah Muhammad. This has been proved in an effort to demonstrate that there existed an enmity between the family of the deceased and his brothers.
7. The trial Judge has believed the three eye-witnesses produced in the case who also happened to be the natural witnesses of the occurrence and the defence set up by the appellant was not believed and the element of premeditation was held to be existing which made the appellant as well liable for the acts of Abdur Rahim under section 34, P. P. C.
8. The occurrence had taken place in a Chauk of a crowded bazar as borne out by the site-plan prepared on scale (Exh. P. F.). The hour at which the occurrence took place is also such that the shops would be open and the bazar would be crowded. The natural witnesses of the occurrence, therefore, would have been the shopkeepers of the bazar themselves and we find that three such shopkeepers have appeared as eye-witnesses. Taj Din (P. W. 9) had a shop diagonally opposite to that of the deceased at a distance of 34 feet. Asadullah (P. W. 11) had his shop at a distance of 25 feet In the same line in which the shop of the deceased was located. Ali Muhammad (P. W. 12) who was the father-in-law of the deceased is the most competent witness as his Khokha was a projection of the shop of the deceased. In such a situation notwithstanding the relationship that these witnesses had with the deceased, they are natural witnesses to the occurrence and on that account their statement has to be examined for its intrinsic truthfulness, their presence at the spot having been properly accounted for. Muhammad Rafiq (P. W. 8) is yet another shopkeeper whose shop is shown at a distance of 73 feet. He admits that he did not see the occurrence himself and that the deceased in an injured condition fell on the Thara of his shop leaving blood there and on the curtain hanging in the shop. It has been suggested by the learned counsel for the appellant that the enmity shown to be existing between the family of the deceased and his other brothers Taj Din P. W. And nephew Asadullah, finds clear support from the fact that Shahid Ullah, a brother of Assdullah (P. W. 11) had been prosecuted by Shah Muhammad his uncle, for com-mitting theft, and sentenced which conviction and sentence was later set aside on appeal. The civil suit also demonstrates that the nephews had alleged that the relations between the deceased and his brothers were not cordial and the deceased had been living separately from his brothers. It has also come on record that Taj Din (P. W. 9) has married the mother of Arshad but the rest of the motive attributed to him for implicating the appellant is not admitted.
8. In this case I consider All Muhammad (P. W. 12) to be the most important witness not only because of his proximity to the shop of the deceased but also on account of his lacking any enmity whatsoever against the appellant or having any reason to make a common cause with Taj Din and Asadullah in naming the assailant of his son-in-law. It is true that the daughter of All Muhammad who was married to the deceased had died. All the same All Muhammad had been prosecuting the litigation against the brothers of the deceased Shah Muhammad as a next friend of the minors and in such a situation he could not make a common cause with the brothers for implicating a person who was not the real culprit. No motive has been attributed to him for implicating the appellant. Besides, the differences which have been referred to between the brothers are such as may exist between brothers but would not be on any account sufficient to prompt the brothers to cause the death of Shah Muhammad. The reliance is placed on the statement of Muhammad Rafiq (P. W. 8) who stated that the deceased while falling on his Thara had uttered the words that he had been injured at the instance of his brothers. The trial Judge has rejected this statement as it has come too late and is also vague. It did not make it clear whether the assailant was the brother or that he had acted at the bidding of the brother. In view of the ocular testimony available on the record, this statement of Muhammad Rafiq (P. W. 8) cannot be of assistance.
9. As regards the role of the appellant in the whole occurrence it has been stated that the witnesses are not clear in the manner he caught hold of the deceased and that they were also not sure about the degree and nature of his association or friendship with Abdur Rahim to account for his participation in the occurrence. In this context reference is made to the statement of Taj Din (P.
W. 9) who on one occasion gave him out to be a servant of Abdur Rahim employed at his hosiery and in the next breath repudiated that statement. The prosecution was not required to demonstrate with accuracy the nature or the degree of association or friendship between the appellant and the assailant Abdur Rahim. It was only required to prove the role played by the appellant and if the role was such that it left no doubt his having common cause and intention with his co-accused his liability under section 34, P. P. C. Would be established. In this case there is no serious discrepancy about the manner in which the appellant is said to have caught hold of the deceased when he was given chhuri blows by Abdur Rahim. As best a description in words has been provided as could be done in the situation. One of the witnesses even demonstrated it before the trial Judge. The injuries on the person of the deceased also bear it out that all the time he had been facing the assailant from the front and that could be the position only if he had been somewhat helpless in the matter as on being secured from behind or on the offensive all the time.
It has not been suggested that he ever took the offensive therefore the injuries on his person are all referable to the secure hold of the appellant.
10. The evidence shows that Abdur Rahim had gone away from the spot and had returned in the company of the appellant armed with chhuri. The occurrence itself was not proceeded by any altercation, exchange of abuses, or grappling, to indicate that what was being done ultimately was the individual act of the person doing it and the common intention did not necessary reach that stage. In this case there was only one stage and that was of the appellant catching hold of the deceased and the assailant giving chhuri blows to him.
11. An objection taken to the prosecution evidence is that in spite of an opportunity being available to produce a large number of independent witnesses only relatives have been produced to prove the occurrence. If these relatives are natural witnesses to the occurrence, as they are shown to be in this case, then their statement cannot be rejected on the ground that they are related. There is no serious enmity either to make them interested witnesses. Besides, as pointed out All Muhammad (P. W. 12) has not been attributed even the slightest enmity against the appellant or his associate Abdur Rahim. The civil suit referred to in the statement of the defence witness is not of much assistance to the appellant. As the date of the institution of the suit and the subject-matter of the suit, did not find any mention in the statement of the defence witness, I had to call for the record of the case from the trial Court with a view to ascertain these facts. It transpires on perusal of that record that the civil suit was instituted after the occurrence by the heirs of the deceased through their next-friend Ali Muhammad (P. W. 12) and it is an administration suit in respect of the estate left by the deceased. Such a litigation cannot be taken back to the occurrence or to events happening earlier.
12. I find that the prosecution has been able to make out from the evidence a case of common intention of the appellant in causing the death of Shah Muhammad deceased at his shop and that he has been rightly held guilty under section 302/34, P. P. C. And sentenced for it. The conviction and the sentence do not call for any interference. The appeal is dismissed.