SHAUKAT ALI, J.--Muhammad Hussain (23), Rajput, Zakaullah (23), Jat, and Bashir Ahmad (16).
Arain, have been tried for the murder of Abdul Aziz and Gohar Ali and for murderous assault on Imtiaz Ali P. Ws., on the 26th of April 1968, in the ground of District Council High School, Awagat The learned Sessions Judge, Lyallpur, who tried them, convicted them under section 302/34, P. P. C., for the murder of Abdul Aziz and sentenced Muhammad Hussain and Zakaullah to death. Bashir Ahmad was sentenced to transportation for life and a fine of Rs. 1,000, or in default to suffer one year's further R. I. They were also convicted under section 325/34, P. P. C., for the death of Gohar Ali, and sentenced to seven years' R. I. Each and a fine of Rs. 5,000 each, or in default to suffer five years' R. I. Each. They were further convicted under section 307/34, P. P. C., for murderous assault on Imtiaz Ali P. W., and sentenced to seven years' R. I. Each and a fine of Rs. 1,000 each or in default to suffer one year's R. I. Each, The sentences of Bashir Ahmad were ordered to run concurrently, while the sentences of imprisonment of Muhammad Hussain and Zakaullah were to take effect, if their sentence of death was not confirmed. Out of the fine, if realised, Rs 5,000 were ordered to be paid to the heirs of Gohar Ali deceased. The convicts' appeal and there is a usual reference under section 374, Cr. P. C., for the confirmation of the sentence of death of Muhammad Hussain and Zakaullah. This judgment will dispose of the appeal and the reference.
2. The prosecution story, briefly stated, is that Abdul Aziz deceased was running a shop for repairing bicycles at Adda Awagat. His brother Muhammad Ramzan, his son Faqir Muhammad, his wife's brothers Imtiaz Ali and Muhammad Ashraf P. Ws. Used to assist him. Muhammad Ashraf and Muhammad Ramzan P. Ws., also used to sell fruit in front of his shop on a takhtposh. On the 25th of April 1968, at about 4 p.m., the appellants along with one Hashmat Ali Barber came there and asked Muhammad Ashraf P. W. To remove the takhtposh as they wanted Hashmat Ali Barber to settle there. Muhammad Ashraf P. W. Refused to do so, whereupon Muhammad Hussain appellant turned over the takhtposh and gave slaps to Muhammad Ashraf P. W. At that trine Abdul Aziz deceased, Muhammad Ramzan, Imtiaz Ali and Faqir Muhammad P. Ws. Were there. Abdul Aziz deceased and Imtiaz Ali P. W. Gave slaps and pushes to Muhammad Hussain appellant, upon which they left pronouncing that f0dul Aziz and Imtiaz Ali should be ready with their coffins.
Sometime later, Sher Khan, father of Muhammad Hussain appellant came there. He was apprised of the incident. Sher Khan consoled them and advised that the matter should not be reported to the police and assured them that he would not permit -Muhammad Hussain and Bashir Ahmad to dome to that side. There was no further trouble on that day, but on the following day, i. e. On the 26th of April 1968, at about 10-30 a.m. The appellant, arrived at the shop of Abdul Aziz. Muhammad Hussain and Zakaullah were armed with revolvers while Bashir Ahmad carried a stick. Imtiaz Ali, Faqir Muhammad, Muhammad, Ramzan, Muhammad Ashraf P. Ws. And Abdul Aziz deceased were present at their shop. Zakaullah appellant fired a shot which hit Imtiaz Ali P. W. On the front of his right thigh. Muhammad Hussain appellant fired another shot at Abdul Aziz, but it did not hit him.
Abdul Aziz deceased ran for his life towards the District Council High School, Awagat. The appellants chased him. Muhammad Raman, Muhammad Ashraf, Faqir Muhammad and Imtiaz Ali P. Ws. Followed them. When Abdul Aziz deceased entered into the school ground, he started beseeching for mercy. Bashir Ahmad appellant gave him stick blows and called upon his companions to fire at him. Muhammad Hussain appellant fired a shot at him which hit him on the right eye. Abdul Aziz fell down. Bashir Ahmad appellant gave him pushes with his stick. Gohar Ali deceased, a watchman of the school, who was working in the orchard of the school nearby came there and begged not to beat Abdul Aziz, whereupon, Muhammad Hussain and Zakaullah appellants told Bashir Ahmad to give him stick blows. Bashir Ahmad appellant gave 2/3 pushes with his stick to Gohar Ali deceased on the chest. Gohar Ali cried and fell down. Muhammad Ramzan P. W. Snatched the stick from Bashir Ahmad appellant and gave 5/6 blows with it to Muhammad Hussain appellant. Bashir Ahmad and Zakaullah appellants snatched the stick from.
Muhammad Ramzan P. W. And all the appellants decamped. Gohar Ali succumbed to the injuries at the spot. Abdul Aziz was carried to the Civil Hospital, Jaranwala, where he died the same day at 1-05 p.m.
3. Dr. Iftikhar Ahmad Paracha, A. M. O., Civil Hospital, Jaranwala, wrote ruqqa Exh. P. N. At about 11-45 a.m., to Police Station, Jaranwala as to the arrival of Abdul Aziz in an injured condition in the hospital. Ch. Muhammad Nawaz, Sub-Inspector received the ruqqa at 11-50 a.m., made an entry Exh. P. A. To that effect in the daily diary and proceeded to Civil Hospital, Jaranwala, which is across the road On reaching the hospital the Sub-Inspector enquired from the doctor vide ruqqa Exh. P. X., if Abdul Aziz was capable of making a statement. The doctor replied in the negative. Imtiaz Ali P. W.
Was in the hospital. The Sub-Inspector recorded his statement Exh. P. K., which he completed at 1- 00 p.m., and sent the same to Police Station Jaranwala, through Shadman Khan Constable and the formal first information report Exh. P. K./1 was recorded at 1-15 p.m., by Ghulam Hussain, Assistant Sub-Inspector P. W. 8.
It may be stated that Police Station Jaranwala is at a distance of seven miles from the place of occurrence.
4. The Sub-Inspector prepared the injury statement of Imtiaz Ali P. W. And got him medically examined. Doctor Iftikhar Ahmad Paracha wrote ruqqa Exh. P. T. At 1-20 p.m. , informing the Station House Officer about the death of Abdul Aziz. The Sub-Inspector reached the hospital, prepared the injury statement and the inquest report relating to the deceased and despatched the dead body to the mortuary for post-mortem examination. He reached the spot at 2-00 p.m. And found the dead body of Gohar Ali in the ground. He prepared the injury statement anal the inquest report and despatched the dead body to the mortuary for post-mortenu examination.
On the 29th of April 1968, the appellants were produced before the Sub-Inspector by Sher Khan.
Muhammad Hussain was carrying a revolves P. 8, containing one empty P. 9 and two live cartridges P. 16/1-2. There were taken into possession and made into a sealed parcel vide memo.
Exh. P. G. Zakaullah appellant at that time had a .12 bore pistol P. 10, which contained an empty cartridge P.
11. These were sealed into a parcel vide memo. Exh. P. H. The stick P. 12, of Bashir Ahmad appellant was also taken into possession vide memo. Exh. P. J. Muhammad Hussain appellant was in an injured condition. The Sub. Inspector prepared his injury statement and got him and his companions medically examined. The Sub-Inspector took into possession roll call register Exh. P. D.
Of 9th-B Class of D. C. High School, Awagat, vide memo. Exh. P. E.
5. Doctor Abdul Ghafoor, Medical Officer, Civil Hospital, Jaranwala, performed the autopsy on the dead body of Abdul Aziz on the 26th of April 1968, and found the following injuries thereon: ---
(1) A fire-arm wound, 1" x --" brain cavity deep, on the inner side of right upper lid. Right eye was out of the wound bullet after passing through the brain fractured the occipital bone and was found on the right side of back of head under the scalp tissue, while passing the bullet fractured the right frontal, temporal, parietal and occipital bones.
(2) An abrasion 3-- x 1/8", on the back of right fore-arm vertical.
(3) An abrasion 7" x 1/8, on the back of left fore-arm vertical.
(4) A contusion marked, 3/4" x 2" just below the front of right shoulder.
(5) A contusion mark, 2" x 1--", on front of left shoulder.
(6) A contusion, mark, 4" x 1--", on upper part of left shoulder on its top.
In the opinion of the doctor, injury No.1 was grievous and dangerous to life and was caused by firearm. Rest of the injuries ere simple in nature and were the result of a blunt weapon.Death was due to injury to the brain due to injury No. 1 which in sufficient to cause death it the ordinary course of nature.
6. The same doctor .On 26th April 1968, at 5-30 p.m., conducted the post-mortem examination on the dead body of Gohar Ali and found no external mark of injury thereon. On opening the body, fourth, fifth and sixth ribs of left side were found fractured on the front side. Death in the opinion of the doctor, was due to shock and internal haemorrhage due to lung injury caused by fracture of the rib caused by blunt weapon. The injury was sufficient to cause death in the ordinary course of nature.
7. Doctor Iftikhar Ahmad Piracha examined Imtiaz Ali P. W., on the 26th of April 1968, and found the following injury on his person: - A gunshot wound transversely, 1--" x --", skin deep, with blackish and sc-ortching border on front right thigh in upper half area, with corresponding hole on chaddar.
The injury was simple, caused with fire-arm.
The same doctor examined Zakaullah, Bashir Ahmad and Muhammad Hussain appellants on the 29th of April 1968. He did not find any mark of violence on the persons of Zakaullah and Bashir Ahmad. Muhammad Hussain had the following injuries on his person: -
(1) A contused wound, 1" x --" scalp deep, on the right side of head, It" from and above right ear.
(2) A contused wound, --" x --" muscle deep, on the back of left forearm in middle area.
(3) An abrasion, --" x --" on left shoulder.
(4) Three abrasions, 1" x --" x --" x --", and 1/ 16" circular on back of middle of chest.
(5) An abrasion 1" x --" on inner side of left leg, 1--' above the inner malleolus with swelling of the malleolus.
All the injuries were simple in nature, caused with blunt weapon within about three days.
8. Muhammad Hussain appellant when examined denied the prosecution allegations. He stated that he had been implicated falsely. On being asked to explain the injuries on his person, he made the following statement from the dock: - "I came to Lyallpur in connection with the case of my sister's husband. When I. Returned from Lyallpur and got down at the Adda, near, the shop of Abdul Aziz deceased, Aziz etc., saw me getting down from the bus. All of them were armed when I passed near their shop they challenged me: I was alone. I started running towards my Chak. I entered the school gate. All of them chased me.
When I reached school ground, Aziz deceased gave me the first stick blow on my head. I fell down on the receipt of this blow. Then the complainant party inflicted me more stick blows. They gave me 6/7 blows. Many persons collected there. As the Adda was thickly populated and many persons remained there all the time. My uncle, who is Subedar in the Army, came there after getting down from the bus. He rescued me from the complainant party. I had become unconscious. I was removed from that spot. I did not fire any shot."
Bashir Ahmad and Zakaullah appellants denied the prosecution allegations and pleaded innocence. No evidence was called in defence.
9. We know that Farzand Ali, Barkat Ali, Abdul Aziz and Suleman were mentioned in the calendar as eye-witnesses, but they were given- up by the prosecution as having been won over.
The other eye-witnesses, namely, Imtiaz Ali P. VV. 4, Muhammad Ashraf P, W. 5, Muhammad Ramzan P. W. 6 and Faqir Muhammad P. W. 7, were the close relations of Abdul Aziz deceased.
10. To begin with, we may say, that in murder cases, in particular; it is the duty of the prosecution to place before the Court all the available evidence which is likely to throw any light upon the crime, and the withholding of such evidence is likely to be treated by the Court as a flaw in the evidence for the prosecution, The Courts of law should not sit as a silent spectator, A duty is cast upon them to examine that evidencewhich could help them to arrive at the truth. As such, it was obligatory, in the instant case, for the learned Sessions Judge to have examined Farzand Ali, Barkat Ali, Abdul Aziz and Suleman, as Court witnesses, as in the occurrence of this kind, it was expected, that the attack must have been witnessed by a number of people.
11. Coming to the merits of the case, we find that the prosecution story was supported by Imtiaz Ali, Muhammad Ashraf, Muhammad Ramzan and Faqir Muhammad P. Ws. Information of this incident was recorded by the police shortly after the incident. The occurrence took place at 10-30 a.m., while the report was complete by 1-00 p. m., and having regard to the time probably consumed in taking the injured to the hospital there was no delay to be accounted for. The appellants were clearly mentioned in the statement Exh. P. K. One of the eye--witnesses, namely, Imtiaz Ali suffered a pistol shot and there is no doubt as to his presence at the spot. He supported the prosecu--tion case in its entirety and there is hardly any discrepancy in his evidence to cast any doubt on the participation of the appellants in the crime. His evidence has been affirmed by Muhammad Ashraf, Muhammad Ramzan and Faqir Muhammad P. W., whose presence at the spot toe was natural, as they were expected to be there in the course of performance of their usual avocation but it is difficult to accept their account as to the injuries suffered by Muhammad Hussain appellant. These witnesses made us believe that Muhammad Ramzan P. W., who was empty-handed snatched the stick from Bashir Ahmad appellant and gave blows with it to Muhammad Hussain appellant, when Muhammad Hussain and Zakaullah appellants were armed with revolvers. This story is too hard to believe. It is highly improbable that Muhammad Hussain would suffer the injuries when he was armed with a revolver or Zakaullah appellant would permit his companion to be man-handled when he was there armed with a loaded fire-arm.
12. The mere fact that the prosecution witnesses did not satisfactorily explain the manner in which Muhammad Hussain appellant suffered the injuries, is not enough to discredit their evidence in toto.
13. On examining the statement of Muhammad Hussain appellant, it is obvious that he did not raise the plea of self-- defence. In fact, he has raised no plea. If it was the plea of self-defence the burden lay on him under section 105 of the Evidence Act, to prove it, and in the absence of any proof a is not possible for the Court to presume the truth of the plea. Anyhow, it can be spelled out from the statement of Muhammad Hussain appellant and other circumstances on the record that he was man---handled immediately before this incident. Obviously, the prosecution witnesses would not admit of having man-handled Muhammad Hussain appellant as that would show their aggressive design.
14. For the foregoing discussion, we are of the view that the prosecution evidence has satisfactorily established that the three appellants had taken part in the attack and caused injuries to Abdul Aziz and Gohar Ali deceased and Imtiaz Ali P. W. They have been properly convicted under sections 302/307 and 325 read with section 34, P. P. C.
15. The question of sentence requires consideration. We have held that Muhammad Hussain appellant was man-handled immediately preceding the occurrence and he must be smarting under that, and provoked by it, he along with his two companions attacked Abdul Aziz deceased and others, but the provocation was not grave enough to take the case out of section 302, P. P. C., to reduce the offence of the appellants from one of murder to that of culpable homicide not amounting to murder. However, the fact remains that there was serious grievance under which Muhammad Hussain appellant was smarting and it cannot be said that it was altogether unnatural for him and his companions to lose self-control as they did.
Seen in the light of the above discussion, the peculiar circumstances of the present case make us feel inclined to hold that the sentence of transportation for life would be the proper sentence in the case of Muhammad Hussain and Zakaullah appellants, and we order accordingly.
16. The result is that the reference is rejected and the appeal is allowed in part to the extent that the convictions of Muhammad Hussain and Zakaullah appellants under section 302/34, P. P. C., are upheld, but their sentences are altered to transportation for life. Their convictions and sentences under sections 307/34 and 325/34, P. P. C., are maintained and shall run concurrently with the sentence of transportation for life. The convictions and the sentences of Bashir Ahmad appellant are upheld. His appeal is dismissed. The sentences of fine in the case of each of the appellants, are set aside. The fine, if paid, shall be refunded to them.