G. M. SHAH, J.-The appellant Masoodul Hassan was tried for offence under section 302/34, P. P. C.
Along with co-accused Mustafa Hussain his brother and one Fahim Haider. By the judgment dated 26-2-1977, the learned 2nd Additional Sessions Judge, Karachi, was pleased to acquit Mustafa Hussain and Fahim Haider; whereas he convicted the appellant Masoodul Hassan under section 302, P. P. C. And sentenced him to imprisonment for life. The appellant was not awarded the extreme penalty under the law for an offence under section 302 for the simple reason that he is a young college student and the incident had taken place suddenly, without any previous enmity, and also the fact that only one knife blow was caused to the deceased on the thigh which was not a vital part of the body.
2. On the other hand, against the acquittal of respondent Mustafa Hussain and Fahim Haider, revision application was filed, on behalf of the complainant Muhammad Hanif Niazi, with a prayer to reverse the acquittal on the ground that the evidence led by the prosecution was not properly appreciated by the learned trial Judge, resulting in miscarriage of justice. This judgment will dispose of both, the appeal filed by Masoodul Hassan against his conviction and sentence, as well as, the revision application against acquittal.
3. We had by a short order dated 3-11-1977 directed that `for reasons to be recorded later, we would alter the conviction and sentence of the appellant Masoodul Hassan from imprisonment for life under section 302, P. P. C. To R. I. For seven years under section 326, P. P. C. The revision application in respect of respondents Mustafa Hussain and Fahim Haider was dismissed. Hereinbelow, are the reasons given in support of the above order.
4. Briefly the prosecution case is that a few days before the occurrence P. W. Muhammad Shabbir wanted to purchase a car from Karachi for his maternal uncle/father-in-law, who had come down from Lahore.
He contacted a broker by name Khairoo alias Khair Muhammad Sindhi. Since the car broker Khairoo did not have the type of car wanted by Mohamed Shabbir he introduced Muhammad Shabbir to another broker by name Mansoori. The car was finally purchased through Mansoori, who was paid the brokerage of Rs.
100. Muhammad Shabbir drove the car to Lahore with his father-in- law. In his absence, Khairoo broker visited his house and asked his brother Hanif Niazi, the complainant, and demanded the brokerage/ commission for the sale of the car. On his return from Lahore, Mohomed Shabbir was informed by his brother Hanif Niazi that the broker Khairoo had come and demanded his commission for the sale of the car. On 26-3-1973, at about 8-30 p.m., Khairoo broker again called on Muhammad Shabbir at his house. Muhammad Shabbir accompanied by his brother Hanif Niazi went out and informed Khairoo broker that he had already paid the commission to Mansoori and Khairoo should demand his commission from him: but Khairoo insisted that he should also be paid the brokerage. While they were busy in conversation, the acquitted accused Mustafa Hussain, brother of the appellant Masoodul Hassan, reached there and asked Mohomed Shabbir to pay the brokerage to Khairoo also. There--upon Muhammad Hanif complainant, asked Mustafa Hussain not to interfere in their private matter. This enraged Mustafa Hussain who is alleged to have stated "I am the brother of Masood "Badmash" and I will show you the result and teach you the lesson within ten minutes for insulting me by telling me not to interfere". Mustafa Hussain is further stated to have gone to his house and Khairoo broker also left the place, agreeing to speak to Mansoori broker ; whereas, Muhammad Shabbir and complainant Hanif stood there, and were talking among themselves. After about 10-15 minutes, acquitted accused Mustafa Hussain, along with the appellant and acquitted accused Fahim Haider, came there. The appellant came armed holding an open dagger in his. Hand, and acquitted accused Fahim Haider had an Iron rod in his hand and they threatened to settle with them soon.
Mustafa Hussain caught hold of Mohomed Hanif by his collar and told him "Now tell us, what you said earlier to us". Muhammad Saleem deceased, brother of both Mohomed Shabbir and Mohomed Hanif, who was sitting close by, got up and tried to intervene. The acquitted accused Mustafa Hussain left Muhammad Hanif and caught hold of Mohomed Saleem by both of his arms from behind and asked his brother, the appellant, to settle with him first. Muhammad Shabbir tried to intervene. In the meantime, acquitted accused Fahim Haider, who was holding an iron rod in his hand, threatened others not to come near. The appellant inflicted a knife blow on the left thigh of Muhammad Saleem, causing incised wound, cutting the femoral blood vessels completely. On receipt of the injury, Muhammad Saleem fell down and the three accused ran away. Mohomed Saleem was removed to the hospital, where he succumbed to his injuries. ,
5. At about 9-35 a telephone call was put in, by the C. M. O., Civil Hospital, Karachi, to the Golimar Police Station, informing them that Muhammad Saleem who was brought to the hospital, with a knife injury, had died. In the meantime, complainant Mohomed Hanif also lodged the F. I. R. At 9-55 p.m. In the following words :- "(2)1 reside in House No. F. 178, Golimar No. 1. My brother Muham--mad Saleem was residing in my adjacent House No. 179. My other brother Shabbir about 15 days back had got purchased a car No. 3439 K. A. K. By his maternal father-in-law Abdul Majid. In this connection, Shabbir had previously talked to one Sindhi-fellow, name not known, who resides, near Zamindar Hotel and deals in cars as a broker. Since that person had, at that time, no car with him for sale, he introduced (him) with one broker, namely Mansoori. And Mansoori got the car purchased. Shabbir paid Rs. 100 to Mansoori towards the brokerage. Abdul Majid, who had come from Lahore to purchase car, returned to Lahore. The Sindhi-fellow was coming every now and then after my brother Shabbir for demanding brokerage. This night at about 8-45 p.m., the said person again came to our house and called Shabbir out who was at that time present in my house. I also came out along with him and (he) started demanding brokerage. In the meantime, my brother Saleem also arrived there.
During this altercation, Mustafa who resides near our house came and said "Don't give brokerage to this Sindhi person and that it was Mustafa" I said that he should get his claim and that he had no business with the same and that we would settle the things ourselves. This annoyed Mustafa and he started saying "I am going to tell you now". After about 10 minutes, Mustafa came along with Fahim and Masood and soon after arrival Mustafa caught hold of my collar saying "Now speak". As soon as Saleem tried to get my coller released, Masood, who was armed with a big dagger, attacked the belly of Saleem, which started bleeding and Saleem fell down. Fahim was armed with Sarya (Iron bar). At that time, the Sindhi Fellow had already gone. My brother Shabbir, Masood, Muhammad Sharif, Mumtaz Ahnmd Khan and other people of the Mohallah have witnessed this incident. I put my brother Saleem in a taxi, and took him to the civil hospital. Masood, Mustafa and Fahim had run away from there. Saleem died immediately after reaching the Hospital. I have come to report. My complaint against Masood is for committing the murder of my brother Saleem by giving dagger blow with Help, of Mustafa and Fahim. Investigation should be made."
After registering the case the police inspected the scene of occurrence, which was in front of the house No. F. 178, New Golimar Karachi, belonging to the complainant. The place of occurrence was at a distance of only about 35 to 40 paces from the Police Station, Golimar. It was inspected by the police at about 10-45, on the pointation of the complainant Muhammad Hanif. Statements of the witnesses were recorded and appellant Masood-ul--Hassan was arrested on 27-3-1973 at about 4 a.m. From the bus stop of Golimar, whereas the two acquitted co-accused remained absconding till 31-3-1973 when Mustafa Hussain was arrested and 2-4-1973 when Fahim Haider was apprehended.
6. Autopsy was performed on the dead body of Muhammad Saleem aged about 35 years by Dr. M.
S. A. Farooqui on 27-3-1973 and he found the following injuries :- "Incised wound (stab) left thigh. Transverse in direction 4J' below the interior superior iliac spine.
Measuring 2" x 1J x 2" deep with the cutting of all the soft parts including the femoral blood vessels completely. The muscles in front of the thigh were also curt. The margins of the wound were clean but shape was elleptical angles were fracture. No other injury could be found anywhere. The above injury could be caused by a sharp-edged pointed weapon like a big Knife, dagger or any other similar weapon of assault. The injury was ante-mortem."
7. In their statements in the committal Court, the appellant, as well as, the two acquitted accused had denied the prosecution version of the case. In his lengthy statement respondent Mustafa Hussain had made the following statement in the committal Court :- "This incident had occurred on the day of Chehlum as alleged. After participation in the Chehlum procession I reached at my house at evening time. With my daughter in my lap I went to purchase milk. In my neighbourhood Mohomed Hanif Niazi, Shabir, Sharif etc. Reside. When I was returning after taking milk I saw the deceased Saleem, Muhammad Hanif Niazi, Shabbir and other relatives were quarrelling with Khairoo on the payment of commission. Many persons of Mohalla had gathered there. Zaffar, Salim Shah, Haider Abbas and Attiq were also present there. I stopped them to inquire about the matter. The quarrel prolonged and there was a danger to the peace that this quarrel may not develope into Sindhi Moharir fight. My brother Masood was an active member of the People's Party of the area and on the alleged day of incident he was performing his duty as Scout at Chehlum procession. I tried to make understand Niazi that he should not give political colour to a purely personal matter. On my interference and of other Mohalla people Hanif Niazi was infurated. He caught hold of me by the collar and tried to push me and the milk pot and my daughter fell down on the ground. My daughter was about three years at that time. When I bent down to pick up my daughter deceased Saleem attacked me with an iron bar and hit me at my right side of the shoulder. I fell down on the ground. The other Mohalla people protested against this behaviour of Mr. Niazi. Being infurated Hanif Niazi went into his house saying that he would bring his gun and they would see them, the Mohalla people. Shabbir demanded a dagger and Saleem deceased handed over iron bar. I picked up my baby daughter and rushed into my house.
From outside I heard noise of fight when I was in my house. I was in pain due to the beating which I had received earlier and therefore did not come out as I was weak in health on account of imprisonment in Bangla Desh, for nine months. After some time when I regained strength then I went to the P. S. Along with Haider Abbas, Salim Shah, Ateq for lodging report, when I came to know that my brother Masood Hassan has been taken into custody along with other persons. I had gone to Police Station at about 11-30 p.m. Or 11-45 p.m. After inquiring my name and address police arrested me instead of writing my report after midnight. I am innocent. I am graduate in Commerce. I am married and have three children. I have served many big firms in Pakistan -as an Accountant. I was posted in Chittagong in connection with construction of port in 1971 war by the Haideri Construction Company. I helped other Pakistanis in Bangla Desh after the forma--petition of Bangla Desh. Due to this I was appointed as financial adviser by the I. G. R. C. Delegate Ganeva. I produce the photo copy of the various certificates issued to me Exhs. D/1 to D/6."
None of them led any defence.
8. In support of the prosecution case, six eye-witnesses, namely Shabbir, Muhammad Hanif, complainant, Mumtaz Ahmad, Abdul Hafiz, Muhammad Shabbir, Muhammad Aslam and Muhammad Sharif were examined, who have also deposed about the motive, being; a dispute over the brokerage for the sale of the car. P. W. Ahmad has corroborated the version of -the eye-- witnesses that he had seen the appellant Masood carrying the dagger and acquitted accused Fahim Haider being armed with an iron rod. They were seen running away towards their house.
9. The incident took place at about 8-45 p.m. Outside the house of the complainant Mohomed Hanif. The houses of the appellant and the acquitted accused are situated in the same street at a distance of only 12 paces away from the place of occurrence. Golimar Police Station is situated at a distance of only about 35-40 paces from the place of occurrence and is across the main road.
There is no explanation available on the record in respect of delay to suggest as to why the F. I. R.
Was lodged at 9-55 p.m. When the report could conveniently have been made within 15 minutes. It is possible that the names of the acquitted accused Mustafa Hussain and Fahim Haider, their neighbour, had been added later on to avenge the murderous assault on Muhammad Saleem, as the tempers had risen high and the A complainant and his brothers appeared determined to implicate the two brothers and their friend Fahim Haider. We further find that the witnesses had intentionallv improved upon the evidence by assigning the specific par to acquitted accused Mustafa Hussain, as well as Fahim Haider, in order to bring their case within the mischief of section 34, P. P. C.
10. The evidence of the three brothers, Mohomed Hanif, Muhammad Shabbir -and Mohomed Sharif, is of an identical nature. To a great extenttheir version is full of exaggerations and is padded with improvements, materially different from the F.
1. R. Lodged by Mohomed Hanif In the F. I. R. There is no mention about the acquitted accused Mustafa Hussain having caught hold of the complainant Mohomed Hanif by the collar and also of the fact when Mohomed Saleem intervened, he (Mustafa) left him and caught hold of Muhammad Saleem by both the hands. There is also no mention in the F. I. R. That acquitted accused Mustafa had told the complainant that he was the brother of Masood `Badmash'. We further find that in their statements, recorded by the police under section 161, Cr. P. C. None of the eye-witnesses, including the three independent witnesses, Mumtaz Ahmad, Abdul Aziz and Muhammad Aslam, had stated that the accused Mustafa had said that he was the brother of Masood Badmash' or that Mustafa left the collar of the complainant and caught hold of deceased Muhammad Salim by his hands from behind and asked appellant Masood to settle with him first. In their statements before the police, P. Ws. Mumtaz Ahmad, Muhammad Aslam and Ahmad had not stated that acquitted accused Fahim Haider had an iron rod in his hand. The complainant in his F. I. R. Did not state that respondent Fahim was waiving the iron rod in the air and was preventing the people not to go near him. The complainant in his F. I. R. Did not state that respondent Mustafa Hussain had instigated appellant Masoodul Hassan. About the presence of the acquitted accused, if accepted, can safely be explained that they were these as innocent on- lookers. The learned Judge had rightly reached the conclusion that the prosecution witnesses had undoubtedly exaggerated the facts by assigning different roles to respondent Mustafa Hussain and Fahim Haider. The learned trial Judge, inlB our view, was justified in acquitting the respondents Mustafa Hussain and B Fahim Haider and we do not wish to disturb the finding of the learned trial Judge. Accordingly we would dismiss the Criminal Revision Applica--petition No. 161 of 1977.
11. The deceased and the three, out of the six, eye-witnesses are brothers inter se. Whereas Mumtaz Ahmad, Abdul Hafiz and Muhammad Aslam are independent witnesses. They are residing in the same locality. They have testified to have witnessed the occurrence. Their names, however, were not mentioned in the F.
1. R. Though they were previously known. To the complainant being his case fellows. The learned Judge, for the sake of safe dispensation of justice, had kept their testimony out of consideration.
12. We have heard Mr. Muhammad Hayat Junejo for appellant Masoodul Hassan, Mr. Haqani on behalf of complainant Mohomed Hanif and Mr. Shabir Hussain Rehmani for A: G. For the State.
13. The main contention of Mr. Junejo is that there was no previous enmity between the parties. It was a sudden quarrel in which only one injury was inflicted on the left thigh of the deceased which was not the vital part of the body. It was further argued that an ordinary person was not presumed to know in a sudden fight, the location of the vital arteries in human limbs. He further contended that the offence would not be of culpable homicide. The appellant, at the most would be presumed to have intended to cause hurt or grievous hurt to the deceased, by means of adangerous weapon, like a knife. The offence therefore at the most would be under sections 326, P. P. C. On perusal of the entire evidence and after hearing the arguments of the learned counsels, we find there is great force in the contention of Mr. Junejo.
14. The evidence on the record discloses that it was a sudden fight without any previous enmity.
One knife blow was inflicted, causing injury on the left thigh of the deceased Muhammad Saleem.
We further find that there is no evidence of any premeditation on the part of appellant Masoodul C Hassan. The evidence of the complainant and his brothers Muhammad Shabbir and Muhammad .Sharif coupled with the independent version of Mumtaz Ahmad and others corroborated by the independent witness Ahmad, directly implicates the appellant, which testimony we have no reason to doubt.
15. In an identical case of Mohomed Feroze v. Muhammad Arif and others (1976 SCMR 497) at page 498, the Supreme Court had observed in the following words "There appears to be no evidence of any premeditation on the part of the respondent. The incident appears to be a sudden affair as the deceased had objected to the abuse to the entire Kashmiri community by the respondent. Only one blow was given by the respondent upon the thigh of the deceased, which is not a vital part of the body. The blow happened, however to cut, the femoral artery and veins. The learned Judges of the High Court have rightly observed that the respondent as a layman could not be saddled with the knowledge of the location of the different arteries and veins in the human body, and in support of their view they have relied upon the case of Public Prosecutor v. Ramswami Nadar. In the case under report it was observed that an ordinary person was not presumed to know the precise location of the arteries in the human limbs. If a stab with a knife or a dagger aimed at an arm or a leg severs any artery and the injured man dies as a result, it might be quite reasonable to argue that the assailant could only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon.
We are in agreement with the view taken by the learned Judges of the High Court. From the nature of the injury caused upon the deceased it is legitimate to infer that it was a hurt which endangered the life of the victim. As a matter of fact the deceased died the same night as a result of shock and excessive bleeding from the injury.
16. As a result of the above discussion, we would alter the conviction and sentence of appellant Masoodul Hassan from imprisonment for life under section 302, P. P. C. To seven years Rigorous Imprisonment under section 326, P. P. C. With this modification in the sentence, the appeal is dismissed.