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Criminal Appeal No. 692 of 1971, decided on 2nd June 1975.

‑‑‑ S. 239‑Misjoinuer of charges, plea of‑Accused waking murderous assault on complainant party with a nagger and tried for offences under S. 307, P. P. C. as well as S. 13 of Arms Ordinance at one trial‑Contention that trial was bad for mis joinder of charges and vitiated Held: Not correct Entire offence constituted one transaction, in circumstances‑Penal Code (XLV of 1860, S. 302 and West Pakistan Arms Ordinance (XX of 1965). S. 13.‑[Misjoinder of charges).

Sher Muhammad v. State 1968 P Cr. L J 559 rel.

---S. 307 read with S. 100‑Attempted murder‑Private defence plea of‑Complainant and injured prosecution witness empty- handed while accused wielding a dagger, inflicting a number of grievous injuries oil vital parts of complainant and injured P. W.‑ Nothing on record to show that accused either acted on sudden and' gave provocation or acted in self‑defence of his person‑Accused also changing his stand of defence at different stages Right of private defence, held, could not accrue to accused, in circumstances‑‑[Private defence, right of].

Sh. T. A. Fareedi for the Appellant.

S. Maqbool Hussain Shah for A.‑G. for the State.

Date of hearing : 26th May 1976.

Basharat Mahmud (20), son of Faiz‑ul‑Hassan, resident of Mamoon Kanjan, Tehsil Samundri, District Lyallpur, was tried by Qazi Mahmud Afzal Khan, Magistrate Section 30, Gujranwala, under section 307, P. P. C. and section 13 of the Arms Ordinance, 1965, for making murderous assault on Mst. Sakina Bibi and Muhammad Aslant and having been found in possession of an unlicensed dagger. By judgment, dated 23rd September, 1971, he was convicted of both the charges. Under section 307, P. P. C. he was sentenced to ‑seven years rigorous imprisonment and under section 13 of the Arms Ordinance, 1965, to one year rigorous imprisonment, with the direction that both the sentences shall run concurrently. He has appealed.

2. Mst. Sakina Bibi P. W. is the maternal grand‑mother of Farzand Ali complainant, Mst. Nargis C. W. is the sister of the mother of Farzand Ali complainant and daughter of Mst. Sakina Bibi P. W. Muhammad Aslam P. W. is the nephew of Mst. Sakina Bibi. The appellant is the step grand‑son of Mst. Sakina Bibi P. W.

3. The brief facts of the prosecution case are that on 14th July 1971 Farzand Ali complainant, Mst. Sakina Bibi P. W. and Mst. Nargis C. W. were; present to their house situate in Mohallah Ahmadpura, Gujranwala City. Muhammad Aslam P. W. came there and on being requested by Mst. Sakina Bibi accompanied her for collecting the rent of residential quarters from the tenants. At about noon time when Mst. Sakina Bibi and Muhammad Aslam were away for collecting the rent, the appellant visited her house. He enquired from the complainant and Mst. Nargis as to where Mst. Sakina Bibi was, to which they replied that she had gone for collection of rent from the tenants of the residential quarters. The appellant sat on a cot and started smoking cigarettes. In the meantime Mst. Sakina Bibi and Muhammad Aslam P. Ws. returned to the house. On seeing the appellant, Mst. Sakina Bibi, who had earlier forbidden him from visiting her house, took exception to his visit whereupon the appellant got up from the cot and took out a dagger from his dab. Farzand Ali and Mst. Nargis raised alarm attracting Iqbal Javid, Ihsan Mir and Aftab Ahmad P. Ws. to the house of occurrence. The appellant inflicted a dagger blow on the abdomen of Mst. Sakina Bibi who fell down on a cot. Muhammad Aslant P. W. hit the appellant with a chair in order to save her from further harm, whereupon the appellant turned towards him and gave him 51'6 dagger blows in quick succession. Iqbal Javed P. W. caught hold of the appellant from behind gripping his arms. Farzand Ali P. W. snatched the dagger from him and then all of them overpowered him. Ihsan Mir P. W. and other carried the injured persons to the hospital while Farzand Ali com plainant, Iqbal Javed and some other took the appellant to the police post where Frazand Ali complainant reported the occurrence to Muhammad Irshad A. S.I. at 1‑15 p m., vide his statement Exh. P. A. He also produced dagger (Exli. P. 1) before said A. S. I. who took it into his possession vide memo. Exh. P. E. He arrested the appellant and removed thirt (Exh. P. 2) and Salooka (Exh, P. 3), both blood‑stained, from his person and took then‑, clothes into his possession vide memo. Exh. P. B. The A. S. I. then reached the spot and took some blood‑stained earth into his possession from the place where cost. Sakina Bibi and Muhammad Aslam P. Ws. were injured and made it into separate sealed parcels vide memos. Exh. P. C. and Exh. P. D. respectively. He found some injuries on the person of the appellant and got him medically examined. After the investigation, a case under section 307, P. P. C. and section 13 of the Arms Ordinance, 1965, was sent up against the appellant.

4. On 14th July 1971, Dr. Zarina Iqbal, W. M. O., DHQ Hospital. Guiranwala examined Mst. Sakina Bibi and found an incised wound on right upper abdomen 1 ' x 1 " x going deep into the abdomen. As the injury was serious, she advised that the patient be taken to Mayo Hospital, Lahore, for treatment. The injury had been caused by a sharp‑edged weapon and was declared as grievous.

On the same day at 2‑10 p.m. Dr. Yusuf Ali Chaudhry, Medical officer, DHQ Hospital, Gujranwala, examined Muhammad Aslam P. w. and found the following injures on his, person:

(1) An incised wound " x " x " x on middle of lower lip cutting the lip through and through and pierced in the gum underneath.

(2) An incised wound 1 ' x 1/3 x going deep on middle of chest just lateral to midline on left side.

(3) An incised wound 1 " x ' x going deep on left lumber region lower part mid exillary line.

(4) An incised wound 1" x x going deep on lower part of the chest 3' above‑injury No. 3.

(5) An incised wound ' x ' x going deep on left side of chest in front just medial to left shoulder.

(6) An incised wound 3' x 2' x muscle deep on left forearm on the front lower part.

Muhammad Aslant was referred to Mayo Hospital, Lahore, as he was in precarious condition. The injuries had been caused by a sharp‑edged weapon Injury No. 3 was dangerous to life as it had injured the pleura, diaphragm and spleen. Injury No. 6 was grievous and the rest were simple.

On 15th July 1971 Dr. Muhammad Iqbal, Medical. Officer, DHQ Hospital, Gujranwala, examined the appellant and found an abrasion on his right cheek and tire other on the right eyebrow. The injuries were simple in nature, caused by a blunt weapon within 32 hours.

5. The prosecution relied on the ocular testimony of Farzand Ali complainant, Iqbal Javed, Ihsan Mir, Muhammad Aslam, Mst. Sakina Bibi, P. Ws., and Mst. Nargis C. W.

6. The appellant pleaded not guilty to the charge. He admitted that he was the step grand‑son of Mst. Sakina Bibi P. W. and stated that he had inflicted injuries on being enraged by the presence of Muhammad Aslam P. W. in her house because he had illicit relations with Mst. Nargis, and Mst. Sakina Bibi was facilitating; their illicit liaison. He admitted that Muhammad Aslam P. W. had hit him with a chair. He, however, explained that Muhammad Aslam P. W. had injured him with the chair because he had objected to his indecent advances towards Mst. Nargis. He further stated that he and Muhammad Aslam P. W. threw chairs on each other where-after Muhammad Aslam went inside the house brought out a dagger and threatened to kill him on which he threw a chair on his hands and after snatching the dagger inflicted blows on him in exercise of the right of self‑defence. He further added that when he inflicted the first injury on Muhammad Aslam P. W., Mst. Sakina Bibi intervened and in a fit of rage be inflicted a blow on her abdomen. No evidence was led in defence.

7. The learned trial Magistrate believed the ocular account and the evidence relating to the recovery of dagger from the appellant, and on the basis of this evidence found him guilty under section 307. P. P. C., and sec tion 13 of the Arm Ordinance, 1965.

8. The appellant had filed this appeal through Jail authorities, but at the time of hearing‑ Sheikh T. A. Fareedi, Advocate, appeared on his behalf and raised an objection that the trial was bad for mis-joinder of charges because offences under section 307 of the Pakistan Penal Code and section 13 of the Arms Ordinance could not be tried at one trial. The argument is without any substance. The appellant was allegedly armed with dagger with which he inflicted injuries on the persons of Mst. Sakina Bibi and Muhammad Aslam P. Ws. He was relieved of the dagger by the eye‑witnesses at the spot and he could not produce any licence authorising him to keep it in his possession. The offences under section 307, P. P. C. and section 13 of the Arms Ordinance, therefore, constitute the same transaction and the appellant could be tried at one trial for these offences‑ provided by section 239 (d) of the Code of Criminal Procedure. In this view I am supported by Sher Muhammad v. State (1968 P Cr L J 559): The objection is, therefore, overruled.

9. Farzand Ali complainant. Muhammad Aslam, Mst. Sakina Bibi, P. Ws., Mst. Nargis C. W., Iqbal Javed and Ihsan Mir P. Ws. furnished an ocular account of the occurrence as detailed in the earlier part of this judg ment. The appellant admitted having injured Muhammad Aslam and Mst. Sakina Bibi P. Ws. and pleaded that he had caused injuries to them on provocation and in the exercise of the right of self‑defence. Therefore the only question that crops up for decision in this case is as to which version is more plausible. The statements of Iqbal Javed; Ihsan Mir and Mst. Sakina Bibi as to the actual occurrence almost go unchallenged on the record. There is nothing on the file td support the plea of the appellant that he acted under provocation or in the exercise of the right of self‑defence. A suggestion was put to Farzand Ali complainant that Muhammad Aslam was cutting jokes with Mst. Nargis and on the intervention of the appellant he also cut jokes with the appellant whereupon he lost his temper but he denied the, suggestion as incorrect: When Muhammad Aslam P. W. appeared in the witness‑box it was straightway suggested to him that the appellant had flared up on seeing him in a compromising position with Mst. Nargis. He denied the suggestion as incorrect and stated that she was like a sister to him. The suggestion put to Mst. Nagis C. W. was that she had illicit connection with Muhammad Aslam and the appellant had objected to the visit of Muhammad Aslant to her house. She categorically denied this suggestion. It is thus evident that the appellant put inconsistent suggestions to the above‑mentioned P. Ws. and changed his stand at different stages. To one witness it was suggested that Muhammad Aslam was cutting jokes with Mat. Nargis C. W. and the appellant had flared up for that reason and on the other a suggestion was hurled that he had lost his temper on seeing them in a compromising position. It is unbelievable that Muhammad Aslam was making indecent advances towards Mst. Nargis in the tatter's house in the presence of her mother and nephew. I am, therefore, of the view that the plea of provocation has not been substantiated.

10. The plea of self‑defence raised by the appellant is belied by the medical evidence and' there is nothing on the record to show that the appellant had acted in the exercise of the right of self‑defence. In his statement under section 342, Cr. P. C. he stated that he bad hit Muhammad Aslam P. W. with a chair and thereafter he went inside the house, brought out a dagger and threatened him whereupon he again threw a chair on his hands; snatched the dagger from him sad inflicted blows with it on his person. Muhammad Aslam P. W. was examined on the very day of occurrence only two hours after the assault, but no blunt weapon injury was found on his person which could have been caused by a chair it has already been stated above that the statements of Iqbal Javed, Ihsan Mir and Mst. Sakina Bibi on the actual occurrence go unchallenged on the record. Besides, Farzand Ali, Muhammad Aslam, Mst. Sakini Bibi and Mst. Nargis who are related inter se as well as to the appellant, the prosecution version of the occurrence was supported by Iqbal Javed and Ihsan Mir P. Ws. who arc not connected with either of the parties. After a careful appraisement of the entire evidence, I do not feel persuaded to believe the plea of self‑defence raised by the appellant.

11. The appellant inflicted one dagger blow on the abdomen of Mst. Sakina Bibi and six blows on the person of Muhammad Aslam P. W. Injuries Nos. 2, 4 and 5 were on his chest and No. 3 on left lumber region. Injury No. 3 was declared‑ dangerous to life and injury No. 6 was grievous in nature. The kind of weapon used, the number of injuries and the parts of the bodies of the victims chosen for causing the injuries lead to the only inference that the appellant intended to cause the death of the victims.

12. All the eye‑witnesses are consistent that Farzand Ali P. W. snatched the dagger from the appellant during the occurrence. This dagger was produced by him at the police post before Muhammad Irshad A. S. I. on the same day an hour or so after she occurrence. The evidence regarding the recovery of the dagger from the appellant is cogent and convincing and there is no reason to disbelieve it.

13. For all the foregoing reasons. I am of the view that the appellant was rightly convicted under section 307, P. P. C., and section 13 of the Arms Ordinance, 1965. In the circumstances of the case, the sentence is appropriate and calls for no interference. His appeal is, therefore, dismissed.

Appeal dismissed.

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