(a) Penal Code (XLV of 1860)‑‑
‑‑‑Ss.302 & 34‑‑Evidence of Police officials‑‑Appreciation of such evidence‑‑F.I.R. was very prompt and informant was father of accused persons‑‑Both the accused persons and the main features of case
against them were mentioned in F.I.R.‑‑Three eye‑witnesses: two
police officials who were on Gusht and were able to see the incident
through a window and third being father of accused persons who
lodged F.I.R. against his two sons though he completely resiled from
his F.I.R.‑‑Held, although the police officials as citizens were as
good witnesses in Court proceedings as any other person yet some
amount of care was needed when they were the only eye‑witnesses in
the case‑‑Where testimony ofsuch witnesses was natural and
straightforward and their version stood confirmed by fact that they
were able to capture the culprits almost red‑handed without leaving
any chance for them to slip away from the place of incident or to
destroy any evidence, such witnesses, held, could not be condemned‑
In the exercise for appreciation of e d nce, it was necessary as
prerequisite for Court to see whether the witness in question was
not an overzealous witness. [p. 88] A
(b) Penal Code (XLV of 1860)‑‑
‑‑‑Ss.302 & 34‑‑Appreciation of evidence‑‑Charge of having killed by strangulation‑‑Both eye‑witnesses were consistent that accused 'B' was one of the two who strangulated the deceased, which was the cause of death but were discrepant or who the other was‑‑Such discrepancy was not enough to condemn both eye‑witnesses as unreliable because such a difference in perception in such an occurrence, could be the conduct of natural witnesses also‑‑ Corresponding benefit of doubt nevertheless on the higher principles of criminal justice, held, could be extended to the accused concerned on such a discrepancy‑‑Supreme Court while maintaining conviction and sentence of B accused on charge of murder, acquitted other accused person of the charge by giving them benefit of doubt.
(c) Penal Code (XLV of 1860)‑‑
‑‑‑Ss.34, 107 & 149‑‑Common intention‑‑Held, it was always necessary not to apply either of provisions of Ss. 34, 107 & 149 PPC, which seek conviction on vicarious liability only when there was doubt about application of these provisions. [p. 89 ] C
(d) Penal Code (XLV of 1860)‑‑
‑‑‑S.34‑‑Common intention‑‑When an intention, in common with others or otherwise, can develop during the occurrence, the reverse can also legitimately be assumed‑‑Those who might have held an intention common with others before a crucial act, might change the mind/ intention and stop at something lesser than what the others intended doing‑‑Theory that in such a situation their failure to prevent the others from doing the crucial next act, would necessarily show their participating intention and that was enough to attract vicarious liability, was too philosophical to apply to situation where blood is boiling rushing to limbs and needs more time to cool and settle to normal rhythm and temperature‑‑ When reflexes are in control, it is too much to expect a judge‑like composure and use of a golden scales by heart, head or hands‑‑Law does not punish mere reflexes in such cases.
(e) Penal Code (XLV of 1860)‑‑
‑‑‑5.323‑‑Hurt‑‑Medical report‑‑Doctor in a case of hurt expresses only an opinion about the nature of the hurt; simple or grievous and it is not final nor can it take the place of a verdict, which as on every other fact in issue, has to be rendered by the Court.
Karam Elahie Bhatti, Advocate‑on‑Recored for Petitioners
Raja Abdul Ghafoor, Advocate Supreme Court and Rao M. Yousuf Khan, Advocate‑on‑Record for the State.
Date of hearing: 28th October, 1987
BASHIR AHMA VS THE STATE
P L D 1988 Supreme Court 86
Present: Muhammad Afzal Zullah and Wan Burhanuddin Khan, JJ
BASHIR AHMAD and others‑‑Petitioners
versus
THE STATE‑‑Respondent
Criminal Petition No.76‑R of 1987, decided on 28/10/1987.
(from the judgment of the Lahore High Court, Lahore, dated 12‑7‑1986 in Criminal Appeal No. 329 of 1984).
ORDER
MUHAMMAD AFZAL ZULLAH, J.‑‑ This appeal is through convertion of a petition for leave to appeal. It is directed against judgment dated 12‑7‑1986 of the Lahore High Court; whereby, appellants' conviction and sentence of life imprisonment and fine, under section 302/34, P.P.C., were upheld.
Bashir Ahmad, Mohammad Nazir, Manzoor Ahmad and Mohammad Ashraf appellants brothers inter se, were charged for having given beating to their sister Mst. Halima and then to have killed her by strangulation with a Dopatta, due to her bad character. The occurrence took place in their house. There were three eye‑witnesses two police officials who were on Gusht and were able to see the strangulation part of the occurrence, through a window. They are: Qadir Bakhsh and Attaullah. Another eye‑witness Mirza, the father of the appellants who had lodged the F.I.R. against his own sons claiming to be an eye‑witness, completely resiled from his F.I.R. There being no previous statement in Court with which he could be confronted, his testimony has been kept out of consideration. In addition there is circumstantial evidence of all the appellants having been apprehended immediately after the occurrence by same police officials who had partly seen the occurrence.
Both the Courts below believed the two police eye‑witnesses as also the circumstantial evidence against the appellants.
Learned counsel for the appellants contended; that it is an unwitnessed occurrence; that the two police eye‑witnesses are discrepant on the point as to who strangulated the deceased; and that Mirza P.W. having resiled, there was nothing left to connect the appellants with the crime.
It cannot be denied that the F.I.R. was very prompt and the informant was the father of the appellants. All the appellants and the main features of the case against them are mentioned in the) F.I.R. It is highly relevant as to how and in what circumstances, the law enforcing agency came into action, though the statement in the F.I.R. of the eye‑witness account alone, cannot be made basis of conviction.
Although the police officials as citizens are as good witnesses in Court proceedings as any other person; yet, some amount of care is needed when they are the only eye‑witnesses in the case. It is not on account of an inherent defect in their testimony; but due to al possibility that an individual police official and not all, might in mistaken zeal to see that the person he believes to be a culprit, is convicted might blur line between duty and propriety. In the exercise) for appreciation of evidence it is necessary as pre‑requisite, to see whether the witness in question is not such an overzealous witness. We having examined this aspect do not think that any of the two eye‑witnesses can be condemned on that score. Their testimony is natural and straight forward. Their version stands confirmed also by the fact that they were able to capture the culprits almost red‑handed, without leaving any chance to slip away from the house or to destroy any evidence. It was in this very background that the father of the appellants was compelled by circumstances to charge his own sons for the crime in the F.I.R. We hold that all the appellants have rightly been held to be concerned with the crime.
The next question which arises is what offence has been committed by whom. Both eye‑witnesses are consistent that Bashir appellant was one of the two who strangulated the deceased, which was the cause of her death. They were discrepant on who the other was‑‑Qadir Bakhsh P.W. named him as Ashraf appellant while Attaullah gave the name of Nazir. This is not enough to condemn both eye‑witnesses as unreliable because such a difference in perception 1 in such an occurrence, can be the conduct of natural witnesses also. But we are of the view that a corresponding benefit of doubt nevertheless on the higher principles of criminal justice, can be extended to the accused concerned in such a discrepancy. We hold accordingly and while maintaining the conviction and sentence of Bashir appellant on charge of murder, acquit Ashraf and Nazir of this charge by giving them benefit of doubt.
The position of Man zoor, Ashraf and or Nazir on the question of seizing the deceased from her legs when she was being strangulated, is also not free from doubt. One, it is not certain who from amongst Ashraf and Nazir was in this act as one of them contemporaneously was involved in the other act of strangulation. Two, it was not necessary to seize the deceased from her legs because at that point of time she had already been beaten to pulp‑‑she suffered nearly two dozen blunt‑weapon injuries. It was not possible for her to resist any more. And thus, if there were two male adults determined to strangulate her with her own dopatta, it was not necessary for them to need the aid of two others to secure her. We, therefore, extend the benefit of doubt to the remaining two appellants regarding the allegation of any of them having secured her from her legs.
The next question regarding their common intention with Bashir and whosoever the other was with him in the strangulation, suffice it to state that the same also is not free from doubt. And whenever
there is doubt about application of Sections 34, 107 and 149 PPC it is always necessary not to apply either of these provisions, which seek conviction on vicarious liability only. Why it is in doubt in this case whether section 34 is applicable is not far to seek. The motive for the crime was admittedly the bad character of the deceased. Itl can lead to an enlightened brother only chastizing her while another
more conscious and victim of his elementary instincts, might go to the extent of killing her‑‑other shades of behaviour can also be visualised in individual cases. In this case, as would be presently,
seen all the four brothers had commonly intended and decided to chastize her by giving her a good beating. They all having done so, only two, it appears, decided there and then during the occurrence to go further to kill her by strangulation, as they had made no earlier preparation for killing her. The others at that stage as held already stood aside and did not participate in the act of killing. If an intention, in common with others or otherwise, can develop during the occurrence, the reverse can also legitimately be assumed. Those
who might have held an intention common with others before a crucial act, might change the mind/intention and stop at something lesser than what the others intend doing. In this case even if the remaining brothers had intended to kill the sister (though held otherwise), the fact that they stopped short of it and felt satisfied by giving a good beating, would negative further the intention to kill. The theory that in such a situation their failure to prevent the other from doing the crucial next act, would necessarily show their participating intention and thus enough to attract vicarious liability, is too philosophical to apply to situations where blood is boiling, rushing to limbs and needs more time to cool and settle to normal rythem and temperature. When reflexes are in control, it is too much to expect a judge like composure and use of a golden scales by heart, head or hands. We are certain what motivated them to give good beating only to the sister would have, as a reflex action prevented them from bothering any more when some other wanted to go further. And above all, law does not punish mere reflexes, in such a case. We accordingly hold that none of the remaining three appellants are guilty by application of section 34, PPC, on alleged furtherence of their common intention with Bashir appellant whose conviction under section 302 has been upheld.
The question is, as to what offence has been committed by the remaining three appellant s‑‑Nazir, Manzoor and Ashraf. They gave beating to the deceased resulting in 21 bruises and abrasions, some of them multiple. True, nobody saw them giving this beating. But their conviction can be maintained even when Mirza their father, the only eye‑witness of this part of the occurrence, has resiled and his F.I.R. cannot be made the basis for conviction. A careful scrutiny of the circumstantial material will lead us to the only irresistable conclusion that they all are responsible for the beating. They were present in the house immediately after the occurrence. They being inmates of the house are also responsible to explain what happened to their sister who was living with them and was found murdered almost in their presence. They were apprehended there and then. No one else escaped from the house after the occurrence. The father was not a participator in the crime, as he was not charged then by any one of the eye‑witnesses who saw only the appellants and not the father in the room in which the woman was beaten and then murdered. There is no evidence that any of the appellants protested against their involvement immediately after the occurrence for the beating also. These and other similar circumstances on the record are enough to give a finding of guilty against them for the beating.
As to what is the offence committed regarding the beating we do not agree with the learned counsel that the doctor having opined that the injuries were simple, they are guilty only under section J 323, PPC. The doctor in a case of hurt expresses only an opinion about the nature of the hurt‑‑simple or grievous. It is not final nor can it take the place of a verdict, which as on every other fact in issue, has to be rendered by the Court.
We have carefully scrutinized the injuries suffered by the deceased, of course, other than those on her neck relating to stragulation for which only Bashir has been held guilty. They are such in nature, number and location that although they were not likely to end in death, they were cumulatively such as would cause the victim severe bodily pain or deprive him of capacity to follow his ordinary pursuits for twenty days (See section 320 eighthly of PPC). We therefore are satisfied that although the doctor described all the injuries individually as simple they cumulatively were responsible for such hurt (cumulatively) to the victim that she is held to have suffered grievous hurt in this behalf. The appellants are therefore guilty under section 325, PPC. Bashir appellant is not awarded any separate sentence in this behalf‑‑his conviction and sentence under section 302, PPC for his crime committed in the same transaction has already been upheld. Accordingly, Nazir, Manzoor and Ashraf appellants are found guilty under section 325, PPC. While acquitting them on charge of murder under section 302/34, PPC, we convict them under section 325, PPC and sentence them each to maximum R.I. for this offence. They have already suffered more than that in jail. We, by application of section 382‑B, Cr.P.C., direct accordingly‑‑only to the extent of 7 years already undergone.
This appeal is thus partly allowed with the short order already passed on 28‑10‑1987.
M.B.A./B‑21/SAppeal partly allowed.
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