1. ' MUHAMMAD HASSAN SINDHER, J.-Raj All (40/45), Lela (32/35), Ghulam 27/28), &kinder (26) and Inayat (25), all real brothers, residents of Dhoke Gujrat were tried before learned Sessions Judge, Gujrat for the offences under section 302/307/148/149, P. P. C on the allegation that they had on 6th December, 1973 formed themselves into an unlawful assembly, committed roiting, murder of Mardan Shah deceased and attempted murder of Rasool Shah and Miran Shah a son and nephew respectively of the deceased in furtherance of common object of the unlawful assembly. The charges which the accused repudiated as false were eventually upheld by the learned Sessions Judge. The accused were pronounced guilty for acts of individual offences and punished variously as below t-
(i) the five accused in the case sentenced to rigorous imprisonment for one year each for the offence under section 148, P. P. C.
(ii) Raj Ali and Muhammad Inayat sentenced to rigorous imprisonment for six months each for the offence under section 323, P. P. C.
(ill) Lela and Sikandar sentenced to life imprisonment, the maximum penalty for the offence under section 307, P. P. C.
(tv) Ghulam accused sentenced to death and a fine of Re. 100 for the offence under-section 302. P.
2. P. C. For the murder of Mardan Shan deceased. In default, rigorous imprisonment for one month, if sentence of death is not confirmed.
3. ' The sentences awarded to Lela, Sikandar, Raj All and Muhammad Inayat on two separate counts as detailed above were ordered to run concurrently. The accused have filed a joint appeal to challenge their convictions and sentences. Learned Sessions Judge has referred the sentence of death passed against Ghulam accused for confirmation under Section 314, Criminal Procedure Code. The appeal and the reference are disposed of together by this single order.
3. The facts bearing on the charge against the accused as transpiring from evidence examined at the trial are fairly short and simple as well. Both sides belong to the same village Kalu wali. The complainant side are residing in a separate Hamlet known as Naman Luke which is at a distance of one and a half Kilis' from the residences of the accused. On 6th of December 1973 the fateful day, goats numbering three in all owned by Ghulam accused strayed into the field of Mardan Shah since deceased and damaged the crop. The deceased, alongwith Retool Shah, and Miran Shah was present in their Dere, which is at a distance of four Killas from the place of occurrence. They founded the goats and proceeded to the cattle pond at Rasool Mong said to be 10/12 miles distant from the place of occurrence. The deceased and the above witnesses had driven the cattle to a shot t distance when Raj Alt accused with a danda in his hand reached there and demanded release of the cattle. The deceased did not agree saying that his field was damaged by their cattle in the past also. Raj Ali shouted exhorting the remaining four accused to rush up with burehhis etc. The remaining accused responded to the call. Ghulam, Mender, and Lela were armed with spears while Muhammad Inayat had a sota with him. Ghulam accused opened the attack and dealt an injury to Mardan Shah deceased in the right flank felling him on the ground. Miran Shah P. W. 8) and Rasool Shah (P. W. 10) stepped forward to intervene. They both were caused injuries by Lala and Sikandar. Miran Shah and Rasool Shah were also caused one injury each by Mohammad Inayat and Raj All respectively with sores. Mardan Shah died almost instantaneously. Miran Shah and Rasool Shah were rushed to Civil Hospital, Mandl Bahaud Din said to be at a distance of five miles from the place of occurrence. They both were examined by Dr. Rashid Ahmed, Medical ' Officer at 4-00 and 4-15 p.m. Respectively (Ezhs. PA and PB) and found to have following injuries on them: ' Miran Shah
(1) A punctured wound 11. x 1/8' front deep in front of chest right side below nipple. X-ray was advised. There was tear in Bunian, shirt, opposite the wound which was blood-stained.
(2) Swelling 4' x 2' with abrasion on the back of left shoulder. X-ray was advised.
(3) Irregular abrasion 3i" x 1/8' back inside of right fore-arm. X-ray was advised for the first two injuries.
4. ' Injury No, 1 caused with sharp-edged weapon was declared grievous. The remaining injuries were caused with blunt weapon. Injury No, 2 was kept under observation, and subsequently declared grievous (PS-PS/1).
5. Rasool Shaht
(1) Punctured wound 1' x 1/8' x li deep on the lower part of the right jaw went into interior and upper part of neck.
(2) Abrasion 1/4' x 1/16' outer and lower part of right arm.
6. ' Injury No, 1 caused with sharp-edged weapon was kept under observation while the next injury caused with blunt weapon was doctored simple. The 'precise nature of injury No, 1 is not ascertainable from the record.
7. ' Having learnt of the incident through some person whose identity is still shrouded in mystery, Raja Mai:moor Ahmed S. H. 0, Police Station, Gujrat who was on patrol in the town rushed to the Hospital and inquired from the doctor (PN, PO) if the above-said injured witnesses were fit to record their statements. The Doctor replied in affirmative whereat statment (PD) of Miran Shah was taken down by the Sub-Inspector on the basis of which formal first information (PD-1) was later registered at the police station. Thereafter, the Sub-Inspector left for the site of occurrence. Dead body was despatched to mortuary through Mian Khan P. Wotfter necessary injury statement and inquest report (PQ-PR.) were drawn up. Blood-stained earth was collected from the site by means of memo. EA. P. F. Autopsy was held next day by Dr. Nazir Ahmed. The following external injury was noticed by the Doctor :- ' Penetrating incised wound 11"x x going into the liver over the right side of lower part or chest. On dissection liver was found reptured through and through by the weapon from the lateral surface to mend surface. Stomach was punctured one inch on the ventral aspect. Corresponding cut in the shirt and burnian was present.
8. ' All the remaining organs of the body were healthy. The stomach was injured as noted above and was empty. The Intestines contained gases and faecal matter. The bladder contained about 2 ounces of urine. The Doctor opined that death had occurred due to result of haeanorrhap and shock. The injury was sufficient to cause death in the ordinary course of nature (PG). Clothes (P. 3 to P. 6) of the deceased were produced before the Sub-Inspector by Mien Khan Constable ride (PH) which bad brought from the doctor after post-mortem examination. The accused made themselves scarce. Raj All Lala, Sikandar and Muhammad Inapt were produced before the Sub- Inspector by one Muhammad Siddique on 8th December 1973. Lala accused who had injuries on him was also referred to Dr. Ruhid Ahmad for examination. He was found to have the following injuries on him (PC) t-
(1) A septic contused wound 1/4' g 1/10' right back and upper part of right thumb. It was skin deep.
(2) He complained pain in the head. No mark of injury was MOD.
9. ' The injuries were declared simple and caused with blunt weapon within a period of three days.
10. ' On 16th December 1973 spears (Exh. P. 7, Exh. P. 8) and blade of the spear (P. 9) were recovered at the instance of Gnulam Muhammad, Lela and Sikandar accused from the residential house, and duly made into sealed parcels vide P1, PK and PL. These weapons were on chimical/serologist examination found to be stained with human blood (Exhs. PY and PZ).
11. 12 witnesses in all were examined at the trial in support of the charge against the accused. The statement of the two doctors mentioned above which they had recorded during the committal enquiry before the Magistrate were transferred at the trial under section 509, Criminal Procedure Code. Wan Khan Constable (No, 187) the first witness on the side of the prosecution says that he had escorted dead body of Mardan Shah deceased to the hospital. Next day, he produced clothes P. 3 to P. 6 of the deceased before the Sub-Inspector which he had brought from the doctor after post-mortem examination. The next witness Fetch Muhammad (P. W. 2) had entered formal First Informntion Report Exh. PD/1 on the basis of statement (PD)' of Miran Shah received from Raja Mangoor Sub-Inspector. Fatch Muhammad has also deposed that he had kept in his custody sealed parcels containing spears etc. And blood stained earth entrusted to him by the Sub- Inspector. The parcels were on 19th December 1973 handed over to Imdad Hussain Constable for delivery in the office of Chemical Examiner. Imdad Hussain (P. W. 3) confirms the version of Fatch Muhammad. Mien Khan Constable No, 791 (P. W. 4) says that he was entrusted summon (P. W. 4/3) for service of Shakir P. W. Who had appeared as prosecution witness during the proceeding Wore the Magistrate which he had returned with the report (P. W. 4/4) that the witness was not available, having already left for abroad. Akbar Shah (P. W. 5) has testified to the recoveries of spears etc. P. 7, P. 8 and P. 9 at the instance of Ghulam, Lala and Slander accused respectively. Nazir Ahmad Patwari (P. W. 6) has proved site plans (Exbs. PN and PN/1). Munir Ahmad (P. W. 11) has confirmed the statement of Mien Khan (P. W. 4) that Sbakir was cusrently residing in Dubai. Muhammad Inayat, Miran Shah, Sher Muhammad and Rasool Shah P. Ws. 6 and 8 to 10 have deposed to occurrence. Raja Manzoor Ahmad, Sub-Inspector (P. W. 12) is the Investigating Officer.
12. ' The accused have in their statements under section 342, Cr. P. C. Denied the entire allegations against them as well as the recoveries attributed to them. They pleaded false implication in the case on account of party factions in the village. Speaking differently, the accused plead substitution for the real assailants. Ghulam accused had also said that he was not present in the village on the day of occurrence. He was residing in District Multan for the last three years and was involved in this case maliciously. No evidence was led in defence.
13. ' From the above resume of evidence it will be shown that charge against the accused rests on the following species of evidence :
(1) Ocular evidence.
(2) Recoveries.
(3) Motive, and
(4) Medical evidence.
14. ' Learned Sessions Judge has disbelieved the evidence of recovery. Before proceeding further it may be pointed out that statement of Shakir a witness of recovery during committal inquiry was, on 19th of May 1976, transferred at the trial under section 33, Evidence Act. However, on a subsequent date of hearing viz. On 5th June 1976, learned Public Prosecutor gave up Shakir P. W. As unecessary. We share the view of learned Sessioss Judge on the evidence of recovery as well as the reasons therefor. As indicated above, Muhammad 'mat, Lals, Sikandar and Raj Ali were arrested on 8th Of December 1973 while Ghulam was arrested on 11th of December 1973 and recoveries were allegedly effected on 16th December 1973. This delay in the recoveries renders them doubtful. Akbar Shah (P. W. 6) who has corroborated the statement of Raja Manzoor Ahmad (P. W. 12) is closely related to the deceased and is not a disinterested witness. Akbar Shah has admitted that Nadir Khan and Allah Ditta Lambardars were also present at the time of recovery. Shakir P. W. Whose statement before learned Magistrate was transferred at the trial had also said that Nadir and Feroze Khan Lambardars were present at the time of recovery. The Lumbardars were not cited as witnesses and there is no explanation why they were left out. In case where independent witnesses are excluded deliberately, a presumption should be raised that recoveries were not genuine. Ese are some of the reasons to discard the recoveries which bear the appearance of usual padding to augment the remaining evidence in the ase.
15. ' Direct evidence alone in the case which plays the decisive role or the ajor role is the decision of guilt or otherwise of the accused calls for a eticulous scrutiny. As it will be shown presently the merits of the charge gainst the accused do not detain us much longer, nor the ocular evidence mbraces a detailed discussion. Four eye-witnesses in the case, namely, uhammad Inayat, Sher Muhammad, Miran Shah and Rasool Shah Ws. 6 and 8 to 10) have in their statements confirmed the allegations gainst the accused as set out in the foregoing lines that the deceased had longwith Miran Sbah and Rasool Shah rounded the goats of Ghulam uhammad accused which were found damaging the field of the deceased. Hey wanted to drive the cattle to cattle pond and were stopped by Raj Ali t a short distance. Raj All desired the deceased to relase the cattle which e latter declined. The remaining accused had in response to the call by aj Ali rushed to the site with spears etc. Ghulam accused struck the deceased ith spear in his band. Miran Shah and Rasool Shah were caused injuries y the remaining accused with their respective weapons. We agree unhesitaugly with learned counsel for the appellants that statements of Muhammad ayat and Sher Muhammad P. Ws. (6 and 9) did not inspire much confidence. Hey both have said that they were proceeding to the house of Syed Manzoor bah so as to have an amulet from him which was needed by Muhammad ayat (P. W. 6) for an ailing buffalo. They happened to pass close to the ra of Mardan Shah, and saw the entire occurrence commencing with rounds up of cattle by Mardan Shah deceased from the field and ending with filiction of injuries on the deceased, Miran Shah and Rasool Shah by the used. Both these witnesses are on their own showing chance witnesses as eir presence at the time of occurrence was not natural in the common urse of events and also not guaranteed by any tangible circumstance which could dispel the doubts arising in a reasonable mind against evidence of such witnesses. The contention in this behalf was wrongly turned down by the learned Sessions Judge. However, there is nothing whatever to discredit the version of the remaining two eye-witnesses viz. Miran Shah and Rasool Shah. They both had sustained serious injuries which guarantee their presence at the time of occurrence. We do not see any force in the argument that evidence of these two witnesses also could not be relied on as they were related to the deceased. A witness cannot be discredited merely because he was related to the deceased.
16. The complainant side had no previous enmity with the accused. The witnesses had no reason to falsely implicate the accused or substitute them for the real assailants. Substitution of innocent person for the real culprit should be a rare phenomenon. Both the witnesses have well-stood a gruelling cross-examination. Their statements are also free from any material discrepancy worth mention muchless a serious notice. The further contention that the number of assailants had been exaggerated by the witnesses so as to rope in every male member of the family of the accused is equally without substance. The deceased and these two witnesses had suffered six injuries in all. It would not be unsafe in any way to presume that number of assailants was not less than 5 as was alleged by the prosecution. The accused did not cause more injuries to the complainant side as the deceased had been injured mortally. The accused who did not have any previous score to settle with the complainant side did not intend to cause them more harm. It was also argued that the occurrence had taken place much earlier. On post-mortem examination, stomach of the deceased was found empty which shows that the deceased was killed before he had taken the normal meals at noon time. This contention cannot be evalued in favour of defence for the reason that there is no indication in the evidence that the deceased used to have meals at noon. Villagers usually take regular meals in the morning and in the evening, shortly after sunset. We have no reason to say that the deceased did not follow this usual practice obtaining in rural areas. The witnesses were not asked during their cross-examination if the deceased used to take meals at noon time. We are of the view that the fact that stomach of the deceased was found empty corroborates the prosecution version that the occurrence took place in the late afternoon. Miran Shah and Rasool Shah who had sustained serious injuries had reached the hospital at 4.00 p.m.
17. Which is five miles away from the place of occurrence. They must have been rushed immediately to the hospital, for timely medical aid. This fact also negatives the contention that the occurrence took place during early hours of the day and the report to the police was delayed for usual concsultations. Hussain Shah none else a son of the deceased is named as an eye-witness in the F.
18. I. R. He was not examined at the time of trial and given up as unnecessary. We do not subscribe to the view which was canvassed feebly as we may say so that omission to examine Hussain Shah may justify an adverse presumption against prosecution that Hussain Shah was withheld deliberately lest he should belie the version of remaining witnesses. The accused had not insisted on his examination. Prosecution was not expected to multiply unnecessary evidence on their side.
19. ' Lastly, it was argued that the First Information Report, the ground-stone for the prosecution case, was a dubious document. The report was not recorded in the manner and in the circumstances in which it purports to have been done. The whole charge, therefore, bee prises doubtful. There are clear indications in the statement of Akbar Shah (P. W. 5) to support the first part of the contention.
20. The Sub. Inspector says that , he had not made the usual entry in the daily diary (Roznamcha) at police station that he had left for patrol duty. As indicated in the earlier part of this judgment, identity of the person who had informed the Sub-Inspector of the occurrence outside the police station whereat he had rushed to the hospital to contact the injured witnesses has not been disclosed. Nothing else is required to show that the version of the Sub-Inspector that he had received information of the incident while on patrol duty is not true. Unfortunately, this highly objectionable practice of recording reports outside the police station which had evoked worst disapproval by the Courts continues unabated. Nevertheless, the second limb of the argument cannot be sustained. Charge against the accused which is supported by convincing evidence cannot be tbrown out for the reason that the report was not recorded by the police in a fourth-right manner.
21. Eividence of Miran Shah and Rasool Shah also receives proper corro boration from the motive attributed to the accused and medical evidence in the case, if corroboration was at all needed for reliance on their statements. The above anlaysis of evidence leads us to the conclusion that the allegations against the mused are established beyond all shadow of reasonable doubt.
22. ' This leaves us with the question of nature of offence committed by the accused. On a careful consideration, we feel inclined to lean in favour of the view that the case was covered by Exception
(IV) to section 300, P. P. C. This exception will apply if the death is caused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Learned State Counsel argued that the ingredient of no unfair advantage or no act in a cruel or unusual manner was not satisfied in the case although a sudden quarrel and heat of passion had engendered a sudden fight. It was also contended that at the highest, complainant side or some of them were armed with sotas etc. The injuries on the person of Lela were found to have been caused with blunt weapon. Three accused were armed with spears. The injury to the deceased was caused with full force resulting into intantaneous death of the deceased. The question whether an accused person did not take undue advantage or acted in a cruel manner is a pure question of fact which is to be determined with reference to the circumstances of a given case. No general formula can be evolved which may be acceptable to all cases that may arise. The accused could not be denied the benefit of exception of the above-said section for the reason that they were armed with spears etc. While the complainant side may have sticks. The judgment in Hashmat v. Emperor (1) fortifities our view, Precisely, it was held in that case that "I am of the opinion that the circumstances clearly indicate that there was a sudden fight between the parties in which although hatchets were used on the side of the accused neither party can be said to have enjoyed an undue advantage, since in all the stick blows which landed on the heads of the accused might easily have caused fatal injuries and the fight cannot be said to have been at all one-sided even judging by the result. In the circumstances I consider that the appellants would properly have been convicted under section 304, Part 1, Penal Code."
23. ' The mere fact that the accused persons had done an act which had caused the death of another could not necessarily lead to the conclusion that the accused had taken undue advantage or acted in a cruel or unusual manner for in that case the exception would be meaningless. The words "undue advantage" and "cruel manner" used in the exception under discussion are not capable of any precise definition and no such definition has ever been {{FOOT NOTE}}
(1) A 1 R 1947 Lab. 377 {{FOOT NOTE}} attempted. The question of unfair advantage is purely question of fact. Admittedly, there was no previous hostility between the parties. The accused had immediately withdrawn when Mardan Shah (deceased) fell down after having been caused a single injury as a result of which he had died immediately. There is no room to say that sudden quarrel was artificially raised by the accused as an excuse for making a predetermined attack. The is a reasonable possibility in favour of the plea raised by the defence. Th accused cannot be denied the benefit of doubt that the act of causing death of Mardan Shah deceased is punishable as culpable homicide not amounting to murder under section 304 (I), P. P. C.
24. ' In the result, conviction of Ghulam accused for the offence under section 302, P. P. C. Is modified to section 304 (I), P. P. C. Penalty of death imposed on him by the learned trial Judge is not confirmed.
25. He is sentenced to rigorous imprisonment for five years and a fine of Rs, 3,500, in default further rigorous imprisonment for 1-1/2 years. Accordingly, conviction of Sikandar and Lala appellants is altered from one under section 307 to section 308, P. P. C. Their sentences are reduced to imprisonment already undergone. They shall pay fine of Rs, 1,000 each, in default, further rigorous imprisonment for one year. Conviction of Raj Ali and Inayat appellants under section 323, P. P. C. Is maintained but their sentences are also reduced to imprisonment already undergone. Conviction and sentences of the appellants for the offences under section 148, P. P. C. Are set aside.
26. ' The amount of fine imposed on Ghulam appellant when recovered shall be paid to the heirs of Mardan Shah (deceased) by way of compensation. The amount of Re. 1,000 when recovered from Sikandar and Lela appellants each shall be paid as compensation to Miran Shah and Rasool Shah in equal shares.