Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Appeal No. 581 of 1964, decided on 4th March 1968.
, S. 302-Murder-Eye-witnesses established to have perjured themselves and tried to boost up wholly untenable version incapable of standing test of scrutiny-Investigation of case not honest and fair-No sanctity, in circumstances, could be attached either to investigation conducted or to testimony of eye-witnesses-Version of prosecution, held, rightly discarded by trial Court.
Sultan Muhammad v. The Crown P L D 1954 F C 29; Shamshad v. The State P L D 1963 S C 740 and Parbhoo and others v, Emperor A I R 1941 All. 402 ref.
, Ss 100 to 103-Private defence, right of-Extent-Does not always depend on number of injuries caused-Accused cannot be expected to weigh his blow in golden scales or modulate his defence step by step in heat of moment-Existence of reasonable apprehension of death or grievous hurt-Not to be equated with actual happening of one of two eventualities.
Nawab v. The State P L D 1960 Lab. 149; Udit Singh and others v. Emperor A I R 1925 Pat. 762; Imam Bakhsh v. The State P L D 1961 B J 22; Ratne Munda v. The State A I R 1951 Orissa 245 ; Bharwad Vibha Ghoga v. State A I R 1955 Saur. 1 and Nisar Hussain v. Emperor 43 Cr. L J 436 fol.
Ch. Azam All for Appellants.
Masood Ahmad Khan for A.-G. for the State.
This appeal filed by two brothers Jalla and Shera is directed against the order of their conviction under section 304, Part I, P. P. C. recorded by the learned Additional Sessions Judge, Lyallpur, on 7th August 1964, awarding them a sentence of ten years R. I. each for having, in excess of the exercise of right of private defence of person and property, caused the deaths of Karam Aii and Ali deceased sons of their maternal uncle Mughli on 24th June 1963, at noon time. in the revenue estate of village Thatha Chandu Kalan, Police Station Lalian, District Jhang.
2. The relevant facts, as disclosed in the F. 1. R and later sought to be established at the trial, are that on the night between 23rd and 24th of June 1963 a buffalo belonging to Wali complainant, a third brother of the two deceased, strayed into the cotton crop of the appellants who were his father's sister's sons. Having checked up during the night, he brought back the buffalo and tethered it again. On the following morning the two appellants abused Wali for having let loose his buffalo in their cotton crop. He also retaliated and gave abuses in exchange. At about noon time, his two deceased brothers Karam resided, to Ali were proceeding from Chah Tahliwala, where they Chah Pipliwala, where they cultivated land. When they reached near the graveyard of Mian Muhammad, the two appellants armed with hatchets, Mst. Bivi their mother, Mst. Jallan their sister and Mst. Sattan wife of Jalla appellant, suddenly emerged from a grove of tree. The three ladies who were empty-handed, took the initiative and Mst. Sattan caught hold of Ali deceased while Mst. Bivi and Mst. Jallan grappled with Karam Ali. Thereupon, Shera and Jalla appellants showered blows with their respective hatchets on Karam Ali in the first instance and having felled him, turned to Ali and also gave him injuries with their hatchets. On hearing alarm Wali complainant reached the spot along with Mamman P. W. who happened to De present with him at Chah Tahliwala. On reaching the spot Wall gave one blow each with his stick to Jails and Shera appellants. Shera caught hold of him from his hair and Jalla then gave him a blow with his hatchet on the head. In the meantime, Ahmed and Dari P. Ws., the maternal uncles of the deceased and the complainant, also reached the spot, whereupon the five accused left the spot. The two injured persons were carried home but succumbed to the injuries at about peshtwela. Besides the immediate motive of the alleged damage to the crop of the appellants, the principal motive mentioned in the F. I R for the assault was that Msr. Sabi daughter of Lala husband of Mst. Jallan from his Previous wife had been betrothed to Wali complainant. to which Shera being also,a suitor took exception and held out a threat that in case Mst. Sabi was not married to him, Wali, Ali and Karam Ali shall be finished before the time of marriage. It was in this background that on the pretext of the damage to their crop by the buffalo of Wali, they had killed the deceased after having waylaid them. Immediately after his brothers expired, WAR proceeded towards Lalian Police Station which lay at a distance of nine miles but happened to meet Ghulam Abbas, A: S. I. near village Jaboke and made a state ment Exh. R.A. before him at 7-30 p. m. who sent the same to the Police Station for formal registration of the case and himself proceeded to the spot. Ghulam Abbas, A. S. 1. (P. W. 16) found the dead bodies of the two deceased lying on cots in their house. He prepared injury statements Exh. P. N. and Exh. P. Q. and Inquest reports Exhs. P. O. and P. R. in respect of Karam Ali and Ali deceased respectively and despatched the dead bodies to the mortuary at Chinniot. He took into possession blood-stained earth, a pair of shoes Exh. P. 1 and some hair Exh. P. 10 belong ing to Ali deceased from the place of occurrence vide memo. Exh. P. B. He prepared injury statement Exh. P. S. of Wali P. W. and got him medically examined. Mst. Sattan was arrested by him on 6th July 1963, from village Mohranwala in Police Station Sargodba. He also got prepared site plans Exh. P. E and Exh. P. E/l. The case was partly investigated by Rao Abdul Gha foor, S. H. O. Police Station Lalian (P. W. 17) who, on receipt of statement Exh. P. A. drew up the formal F I. R. Exh. P. A./1. He then proceeded to the spot and arrested Mst. Bivi and Mst. Jallan accused. He also arrested Jails and Shera appellants from bus stand Lalian on 25th June 1963, at about 4 a.m. and prepared their injury statements Exh. P. S./1 and Exh. P.T. Chaddar Exh. P. 7 and shirt Exh. P. 8 of Shera appellant, which were found to be blood-stained, were taken into possession vide memo. Exh. P. L. and blood-stained chaddar Exh. P. 9 of Jails appellant was taken into possession vide memo. Exh. P. N. The memos were attested by Bahadur (P. W. 14) and Dara (P. W. 15). He also got them medically examined. Dr. Mukhtar Ahmed (P. W. 2) A. M. O. Lalian, found one contusion 1 " x 1" on the left aide of the shoulder joint of Shera and two abrasions x l/4" and 1 " x 1/8" on the left side of his scapular region and the right side of the base of thumb respec tively, vide report Exh. P. J. All the injuries were simple in pature and caused by blunt weapon. This doctor also examined jalla appellant and found "a lacerated wound 1" x 1/2." x 1/2" on the right side of the scalp 4" above the right ear, two contused swellings 2 " x 2 " on the left side of his scalp; 3 " above the left ear, and l" x " on the second inter-phalangeal joint of the right index finger respectively, vide report Exh. P. K. All the injuries were simple and caused by blunt weapon. The same doctor examined Wali complainant (P. W. 3) and found one incised wound 1 " x " x " on the left side of the occiput, 2 " above his left ear, caused by a sharp-edged weapon, vide report Exh. P. H. The injury was simple. On 28th June 1963, Shera while -in police custody got recovered blood-stained hatchet Exh. P. 6 from the sugar-cane field of one Salabati which was taken into possession vide memo. Exh. P. D. attested by Gaman Chowkidar (P. W. 12) and Hayat Lambardar (P. W. 13). The clothes of the appellants and the hatchet Exh. P. 6 were found to be stained with human blood, vide reports of the Chemical Examiner Exh. P. U. and Exh. P. U/1 and those of the Serologist Exh. P. V. and P. X. Dr. Muhammad Ismail (P. W. 1) who performed the post-mortem examination on the dead body of the two deceased at 7-45 a. m. on 25th June 1963, vide report Exh. P. F. found three incised wounds on the person of Ali deceased, the first being 4 " x " x 3" (skull cavity deep) on the right side of head 3 " above right ear, cutting through the underlying bone, membranes and brain; the second being 1 " x " x 1" on the right side of head 1" in front of injury No. 1 cutting through the underlying bone; and the third 1 " x x 1" on the back of left lumber region just outside middle line 3J" below last rib. Injury No. 1 was found to be sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-edged weapon. Injuries Nos. 1 and 2 were grievous, No. 1 being fatal. On the same day at 8-45 a. m. he found the following injuries on the dead body of Karam Ali deceased: --
(1) An incised wound 2 " x 1/3" x 1 " deep on the back of left side of head 2 " from left ear.
(2) A contusion 4" x 2" on the top of right side of head, 3" above right ear. The underlying bone was fractured and depressed.
(3) A swelling with bluish discolouration 3" x Z 'over' both eye-lids of right eye.
(4) A contusion 3" x 2 " on outef side of Middle of right arm.
(5) A swelling 3" x 2" on the back of right forearm, 1 " above wrist joint. Lower ends of both bones of right forearm were fractured under it.
(6) A contusion 4" x 2" on the back of right chest art the level of ninth rib. The underlying rib was fractured Injury No. 3 was not considered to be an independent injury but was the result of injury No. 2 due to gravitation of blood: Injuries Nos. 2 and 6 proved fatal and were, individually and collectively sufficient to cause death in the ordinary course of nature. Injury No. I was caused by a sharp-edged weapon while the rest were the result of a blunt weapon. Injuries NOS. 2, and 6 could be caused by the wrong side of a hatchet.
3. After the completion of the enquiry, the appellants along with the three female co-accused were sent up to stand their trial under sections 148, 307/149 and 302/149, P. P. C.
4. All the five accused pleaded not guilty to the charge. Of the three women accused, Mst. Bivi stated that she was a blind old woman of 80 years of age. Mst. Jallan, the sister of the appellants, also stated that she was half blind and could not run after or catch hold of a young male member. Mst. Sattan stated that at the relevant time she was in an advance stage of pregnancy and was living in village Sardarpur with her paternal aunt, from there she was arrested twelve days after the occurrence and that she was not physically in a position to run after a male or to catch hold of him and gave birth to a daughter in the jail after three or four weeks of her arrest. The two appellants consistently took the position both before the Court of Committal as before the trial Judge that they had inflicted injuries in self defence when both of them were attached by the two deceased as also their brother Wali complainant. Denying that they had been arrested at the bus stand Lalian, they stated that both of them had gone to Police Station Lalian to lodge a report where they were detained on receipt of information that two persons had been murdered. They admitted the removal of blood-stained clothes from their person by the police. It would be advantageous to give a verbatim reproduction of the explanation given by Jalla appellant endorsed by his brother Shera. The former stated: -
"On the day of occurrence, I and my brother Shera accused brought back our bullocks after ploughing our land at noon time and found that a buffalo of Wali P. W., Karamalli and Ali deceased was damaging our cotton crop. I started unyoking the bullocks while Shera accused ran and rounded up the buffalo and started going towards village Thathi Khuda Yar to impound the buffalo. When he had reached near the grave yard of Mian Muhammad on the road of Thatha Chandoo Kalan, be was waylaid by Wali P. W., Karamalli and Ali deceased. Shera accused raised alarm: I had a hatchet in my band for mending the ploughs. I took it up and ran towards him. I found that all the three on one side and Shera on the other were exchanging blows. I asked them not to beat Shera. Upon this they attacked me as well. I gave them hatchet blows in my self-defence. Karamalli and Wali fell down and later on died. The buffalo was taken away by the son of Karamalli deceased."
5. The prosecution version resting on the testimony of Wali (P. W. 3), Mamman (P. W.4), Ahmad (P. W. 5) and Dari (P. W. 10) supported by medical evidence and the evidence of recoveries, was found to be incredibly false by the learned Additional Sessions Judge in material particulars. The alleged motive relating to rivalry between Wali complainant and Shera appellant over Mst. Sabi daughter of Lala and a step daughter of Ust. Jallan was disbelieved on the two-fold ground that, firstly in view of the close relationship between the parties, the appellant being the paternal aunt's sons of the deceased would not have gone to that extent, and-secondly, that if at all, Wali complainant should have been the target of the murderous assault whose removal from the scene could possibly have won Shera appellant the hand of Mst Sabi. The participation of the three women accused in the fight, in the manner alleged by the prosecution, was also found to be highly improbable owing to their physical infirmities due to old age and blindness in case of Mst. Bivi and Mst. Jallan and advance stage of pregnancy in the case of Mst. Sattan, coupled with the conspicuous absence of even a scratch on the person of any one of them. Having come to the conclusion that the three women accused had been falsely implicated, the prosecution version that the accused lay an ambush, was also disbelieved by the learned trial Judge. Although there was a difference in point of time as to the incident relating to the damage done to the appellants cotton crop at the hands of the complainant's buffalo, yet it is a common ground that the latter's buffalo admittedly strayed into the field of the appellants. Having considered the two versions in juxtaposition, the learned trial Judge came to the following conclusions:---
"It appears that actually the buffalo got loose on the day of occurrence. Shera caught hold of that buffalo and was taking it to the cattle-pound in village Thathi Khuda Yar. He was stopped by Ali and Katam Ali deceased on which a fight between Shera accused and Ali and Karam Ali deceased ensued. Shera accused raised an alarm on which his brother Jalla accused also arrived along with his hatchet. The alarm raised by Ali and Karam Ali attracted Wali P. W. who also reached the spot and was injured. It is alleged that Jalla and Shera accused acted in self-defence and tried to prevent Ali and Karam Ali from seizing the buffalo from their custody and the struggle that followed led to the death of Ali and Karam Ali deceased. The circumstances of this case show that the version of the defence is correct to a great extent."
On the basis of Nawab v. The State (1), a contention was raised before the trial Judge that the right of self-defence was available to the appellants as contemplated by section 103 of the Penal Code and extended to the causing of death of the deceased who had tried to forcibly recover the buffalo from their possession which they had legitimately seized under section 10 of the Cattle Trespass Act, a resistance or opposition to which was punishable under section 24 ibid. Having compared the relative nature and number of injuries sustained by both sides, the learned trial Judge came to the conclusion that both the appellants were, in fact, armed with hatchets while the deceased held only sticks with them with which they caused simple hurts to the former. In the circumstances, therefore, it was held that the appellants were not justified in causing such grievous injuries to the deceased resulting in their deaths, and as such they had exceeded the right of private defence of person and property allowed to them under section, 103, P, P. C. In view of the simple nature of the solitary injury suffered by Wali complainant, the offence under section 307, P. P. C. was not found to be established either. In consequence, the appellants were convicted for an offence under section 304 Part I, P. P. C. with an award of a sentence of ten years R. I. each.
6. The learned counsel for the appellants raised the following contentions before me :-
(i) That the Investigating Officer had recorded statement Exh. P. A. after doing some preliminary investigation and as such this could not be treated as the F. I. R.
(ii) That the recovery of blood-stained hatchet attributed to Shera appellant did not stand established.
(iii) That in view of the positive finding relating to the false implication of three out of the five accused and the falsification of the story of the deceased being ambushed, an inference was irresistible that the P. Ws. had prejured themselves while trying to support a false and untenable version, and on the principle of indivisibility of credibility as held in Muhammad and Sher and another v. The Crown P L D 1954 F C 84 and Muhammad Afsar v. The Crown P L D 1954 F C 170, it would not be safe to rely on the same witnesses for convicting the appellants. Reliance was also placed on Safdar Ali v. The Crown P L D 1953 F C 93, Sultan Muhammad v. The Crown P L D 1954 F C 29, Shamshad v. The State P L D 1963 S C 740 and Allah Ditta v. Emperor A I R 1934 Lan. 696.
(iv) That having considered the availability of the right of private defence to the appellants, the learned trial Judge had erred in law in holding that they bad exceeded this right. It was contended that in the circumstances of the case the appellants were perfectly within their rights to cause deaths. Reliance was placed in this regard on Nawab v. The State P L D 1960 Lab. 149, Udit Singh and others v. Emperor A I R 1925 Pat. 762, Imam Bakhsh v. The State P L D 196.1 B J 22 and The State v. Muhammad Qaiyum P L D 1956 Pesh. 7 4.
(v) Lastly, it was contended that, in any case, the onus to prove that the appellants had exceeded the right of private defence, lay on the prosecution which had not been discharged. Reliance was placed in this regard on Parbhoo and others v. Emperor A I R 1941 All. 402 Safdar Ali v. The Crown P L D 1953 F C 93, Sultan Muhammad v. The Crown P L D 1954 F C 29, Samoo v. The State P L D 1962 Kar. 495 and Pivaro v. The State P L D 1963 Kar. 771.
7. The contentions raised by the learned counsel are not without substance. Such coincidences where police officers happen to meet the informers short of the police station, certainly call for care and caution, although such eventualities could not be completely ruled out. What really makes the position doubtful is the fact that Ghulam Abbas, A. S. I. had positively mentioned the time of receipt of information of the occurrence by him as peshiwela in the two inquest reports Exh, P. O. sad Exh. P.R. regarding which he was directly questioned and ht td obviously failed to explain this position which was patently irreconcilable with his assertion that statement Exh. P. A. was recorded by him at 7-30 p. m. Likewise the recovery of hatchet Exh. P. 6 at the instance of Shera appellant from the sugar-cane field of Salabati is discrepant and doubtful. Wali complainant (P. W. 3) and Gaman Chowkidar (P. W. 12), the attesting witnesses of the recovery memo. Exh. P. D, did not support the prosecution version. No doubt Hayat Lambardar (P. W. 13), the other attesting witness of the memo, did support the recovery of the hatchet, but this part of the evidence could be excluded on the short ground that no incriminating question was put to Shera appellant during his examination under section 342, Cr. P. C. .The patent fact that three of the five accused-persons were found to be absolutely innocent by the learned trial Judge on sound and unexceptionable reasoning and were thus falsely implicated with a view to support the F. I. R., obviously gives rise to a presumption that the investigation of the case was not as honest and fair as it should have been. One really fails to understand how much too obvious and basic falsities in the prosecution version, particularly the physical incapacity of the three women accused to participate in the fight as alleged, could have escaped the notice of the Investigating Officer, who notwithstanding all this deemed it fit to send them up for trial. In the circumstances, therefore, no sanctity is to be attached, either to the investigation conducted or to the testimony of the eye-witnesses who were established to have prejured themselves and had, in vain, tried to boost up a wholly untenable version which could not stand in the test of scrutiny, and simply collapsed. Thus, I fully agree with the finding of the learned trial Judge discarding the prosecution version and accepting that of the defence, which is absolutely unexceptionable being based on sound reasoning and settled principles of law, as enunciated in Parbhoo and others v. Emperor A I R 1941 All. 402 and affirmed in Safdar All's case P L D 1953 F C 93 re-affirmed in Sultan Muhammad v. Crown PLD1954FC290 and Shamshad v. State PLD1963SC740. The controversy centres round only one point, namely, whe ther as found by the learned trial Judge, the appellants have exceeded the right of private defence of person and property.. It is the prosecution own case that the com plainant's buffalo had damaged the cotton crop of the appellants, section 10 of the Cattle Trespass Act of 1871 authorises the cultivators, vendees or mortgagees of a crop to seize or cause to be seized any cattle trespassing on the land under cultivation, so as to send it to the nearest cattle-pound. Section 24 ibid makes it an offence to forcibly resist the seizure of such cattle being taken to the pound or rescuing the same after seizure punishable with imprisonment not exceeding six months or with fine not exceeding five hundred rupees or with both. In Nawab v. The State P L D 1960 Loh, a D. B. authority of this Court extensively quoted by the learned trial Judge, it was held that Illustrations (J) and (k) to section 378, Penal Code, defining theft, show that removal of cattle from the lawful possession of a person, who has captured them under section 10 of the Cattle Trespass Act, amounts to theft even by the real owners of the cattle and the person thus seizing cattle has a right to defend his lawful possession of the same against the owner as also his person available to him under section 103, P. P. C. It was further held in this authority that the question of exceeding the right of private defence did not always depend on the amount of injuries caused. The same view was earlier expressed in Udit Singh and others v. Emperor A I R 1925 Pat. 762.
8. An argument was raised before me that on the analogy of reasoning adopted in Nawab v. The State and Udit Singh and others v. Emperor, an attempt to forcibly rescue cattle seized under section 1.0 of the Cattle Trespass Act in the alleged circumstances of the case, would amount to robbery in which case unlike that of theft, the appellants shall not, have to show that they had reasonable apprehension of death or grievous hurt. Section 103 reads as follows 103. When the right of private defence of property extends to causing death. The right of private defence of property extends under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:
First.-Robbery;
Secondly.-House-breaking by night;
Thirdly.-Mischief by fire committed on soy building, tent, or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property ;
Fourthly.-Theft, mischief or house-trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised."
Though ex facie there appears to be force in this contention, I refrain from giving a conclusive finding on the point, as for reasons to be presently recorded I feel convinced that the reason able apprehension of death or grievous hurt to the appellants could be easily spelt out in the circumstances of the case extending the right of defence to the voluntary causing of death under section 10, P. P. C. in defence of property and under' section 100, P. P. C. in defence of person. It hardly needs an argument to state in this context that the existence of reasonable apprehension of death or grievous hurt is not to be equated with the actual happening of one of these two eventualities. The fact that the two appellants received three injuries each as against one by Wali complainant, three by Ali deceased and five by Karam Ali deceased, injuries No. 2 and 3 of the last mentioned being the result of one blow, would clearly indicate that the Deceased and their brother Wali complainant, who reached the spot a little later; would have gone to the extent of at least causing grievous hurt, if they had not been incapacitated by the complainant and his deceased brothers. As stated earlier, it was also held in Udit Singh and others v. Emperor that the question of exceeding the right of private defence does not always depend on the number of injuries caused. It is well-settled that a person cannot be expected to weigh his blows in golden scales while exercising the right of private defence, nor could it be reasonably expected of him to modulate his defence step by step in the heat of the moment. This question was considered in a Full Bench of this Court. In Imam Bakhsh v. State P L D 1961 B J 22 which was constituted after some difference of opinion at an earlier stage. After reviewing considerable case-law on the point, their Lordships observed: -
"We are in argeement with the well-known and oft-quoted observation that a person faced with apprehension of bodily harm from the deceased cannot be expected to weigh in golden scales the amount of force which would suffice to allay the apprehension of danger from the aggressor."
It would not be out of place also to refer some of the other relevant authorities cited with approval by the Full Bench, in Ratne Munda v. The State A I R 1951 Orissa 245, it was observed:
"An accused is perfectly justified in resisting an aggressive attack on him by taking the weapon from out of the deceased and inflicting injuries on him to the extent that may be required according to his assessment of the circumstances at the time for the purpose of preventing any further assault on himself by the deceased. If in the course of it he kills the originally aggressive person, section 100 completely protects him . . . . . . . it is well-settled that an accused who has had to face an aggressive murderous attack by the deceased and who had to struggle with him in order to get possession of the weapon which was used against him, cannot be expected to exercise any cool judgment in the situation. His responsibility is not to be judged by any mere meticulous standards."
In Bharwad Vibha Ghoga v. State A I R 1955 Saur. 1 the following observation was reproduced by the Full Bench with approval:
"The question whether the accused had the right of private defence is in every case essentially a question of fact to be decided according to the circumstances of each case and decided cases are not of much help except as indicating generally the principles which should be borne in mind in deciding the question. It cannot be said that in every case the accused cannot claim the right of private defence of person, the moment the deceased is disarmed . . . The apprehension of danger to the accused could not be considered as to an end by the fact that he had succeeded in taking away the spear from the deceased and in striking down the deceased, it cannot be said teat he was not exercising the right of private defence. It was impossible to judge accurately the moment when the right of private defence came to an end."
Similarly reliance was placed on the following observation in Nisar Husain v. Emperor 43 Cr. L J 436:
"A man who is assaulted is not bound to modulate his defence step by step, according to the attack. Where the result has once assumed a dangerous form every allowance should be made for one, who, with the instinct of self-preservation strong upon him pursues his defence a little further than to a perfectly cool by slander would seem absolutely necessary."
9. The above principles offer proper guidelines, respectfully following which, I allow the appeal, set aside the conviction and sentence of the appellants and acquit them. They may be released forthwith, if not required to be detained, in any other case.
Appeal allowed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer