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Criminal Appeal No. 593 and Murder Reference No. 181 of 19'79, decided on 7th July, 1980

(a) Evidence‑--------

‑‑ Evaluation of‑Principle of falsus to uno falsus in omnibus‑Not adhered to by Judiciary in Pakistan‑‑Judiciary on contrary, held, apply principle of sifting grain from chaff.

‑---S. 154‑First Information Report‑‑Not an exhaustive document‑Minor details, held, seldom find place in such reports.

---‑ Ss. 302 & 304, Part I read with S. 100‑‑Murder‑Right of self ‑defence --‑ Deceased being unarmed giving no apprehension to accused of death or grievous hurt‑‑Possibility that some dispute over gambling took place, between parties, on previous occasion in which deceased gave abuses to accused and on coming across each other per chance, confrontation culminating in infliction of stab wounds to deceased, existing‑Circumstances also suggesting that some sort of grappling between parties preceded fatal attack on deceased‑Accused, held, far exceeded his right of self-defence and at best could apprehend simple hurt at hands of accused‑By way of abundant caution conviction under S. 302, P. P. C. altered to one under S. 304, Part I, P. P: C., in circumstances.‑[Private defence, right of].

Muhammad Feroze v. Muhammad Arif and another 1976 S C M R 497 ref.

Khan Ziauddin Khan for Appellant.

Abdus Samad Hashmi for A.‑G. for the State.

Date of hearing: 7^thJuly, 1980.

Mr. Masud Ahmed Ansari, Sessions Judge, Faisalabad, by his judgment dated 9th May, 1979, has convicted Ehteshamul Haq alias Shamun Khan appellant under section 302, P. P. C. for the murder of Bashir Ahmad deceased and sentenced him to death and a fine of Rs. 2,000 in default of payment of which he will suffer two years rigorous imprisonment. The fine, if realised has been directed to be paid to the heirs of the deceased as compensation. The case has been referred to us for confirmation of the sentence of death and the appellant has preferred an appeal both of which are being disposed of by this judgment.

2. The occurrence took place at 4 p.m. on 19^thMarch, 1978 in Chowk Sarafa Bazar, Gojra Town, at a distance of two furlongs from the Police Station. Statement (Exh, P. G. of Din Muhammad (P. W. 9), father of Bashir Ahmad deceased, was recorded at 5‑30 p. m. the same day by Ahmad Khan A. S. I. (P. W. 11) in the Civil Hospital, Gojra, where he reached on the receipt of information. Muhammad Afzal, Muharrir Head Constable (not produced) at 5‑40 p. m. the same day, recorded the formal F. I. R. (Exh. P. G/1).

The appellant was arrested on 20th March, 1978 and do his personal search bloodstained knife (Exh, P. 1) was taken into possession aide Memo. Exh. P. C. This recovery Memo. has been attested by Sh. Muhammad Iqbal (P. W. 4) and Ahmad Khan A. S. I. (P. W. 11). The other attesting witness Zaheer Hussain has not been produced. The appellant was found to be injured at the time of his arrest and he was got medically examined.

3. Dr. Khalid Mahmood (P. W. 6) on 20th March, 1978 at 9‑30 a. m., performed the post‑mortem examination on the dead body of Bashir Ahmad and found the following, injuries on it:----

(1) An incised wound " x " on outer aspect of left buttock.

(2) An incised wound ' x 1/8" on upper end of back of thigh.

(3) An incised wound ' x 1/8' on back of thigh " below, Injury No. 2.

(4) A stab wound 2 " x 1" on outer and upper part of left thigh.

(5) A stab wound " x " on the front and outer aspect of middle of left thigh.

(6) Abrasion 3 x " situated on left side of neck below the angle of left lower jaw,

In the opinion of the doctor the cause of death was haemorrhage and shock resulting from Injuries Nos. 1 to 5. Injury No. 4 was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 to 5 were caused by a sharp and pointed weapon, while injury No. 6 was caused by a blunt weapon. Injury No. 4 was dangerous to life and the rest were simple in nature. Probable time between injuries rind death was about one hour and between death and post‑mortem exami nation it was 16 hours and 25 minutes.

The same, doctor on the same day at 8 p. m. medically examined Ehteshamul Haq alias Shamun Khan appellant and found the following injuries on his person:‑‑

(1) Four abrasions on front and left side of neck, 1/2" x 1/8", 1/2" x 1/8", 3/4"/1/8" and " x 1/1 .

(2) An abrasion 1" x 1/8" on left side of neck, 1 " from lower end of left ear, situated behind the ear.

(3) An abrasion 4" x 1/8" on left and backside of neck.

(4) Abrasion " x " on back on heck above injury No. 3.

All the injuries were simple in nature caused by a blunt weapon. Probable time of injuries was 24 to 30 hours.

4. The appellant in his statement under section 342, Cr. P. C, has taken the following plea:‑

"I am innocent. The deceased was a quarrelsome person. We used to play cards. On the day of occurrence in Chowk Sarafa, we were playing cards in a shop. I gained a few rupees and suddenly stopped the game and came out. He came after me and caught me by the throat. He was stronger that 1 and pressed my throat, I fell down and stretched many hand and got a chhuri from a nearby kabob shop. 1 gave 2 or 3 light blows on his thigh so that he may leave me, but he went on pressing my throat and then I had to give a thrust blow to relieve myself. The Police Post was nearby. They came, arrested me and sent the injured to the hospital. I did not produce this knife. Later on this version was made up."

The appellant, however, produced no evidence in his defence.

5. In view of the prosecution evidence and the plea of the appellant, the identity of the assailant stands established and there is no question of substitution or false implication and the issue is narrowed down to resolving the question as to which of the two versions is correct.

6. The case for the prosecution is that Din Muhammad (P. W. 9), a 65 years old person, was indisposed and at about 3‑45 p. m. on the day of occurrence, in the company of his son Bashir Ahmad deceased, he lift his house for the Clinic of Dr. Afzal and when they reached Sarafa Chowk, Ehteshamul Haq appellant came there armed with a knife and addressing Bashir Ahmad raised an alarm, "Bagga you will not go alive " The appellant struck knife blows and Bashir Ahmad fell down and on the alarm raised by Din Muhammad P. W., Bashir Ahmad (P. W. 10) and Yasin (not produced) were attracted to the spot. The appellant threatened them as well in case they intervened. The appellant then ran away with the knife and thereafter Din Muhammad P. W. with the help of Bashir Ahmad P. W. and Yasin took Bashir Ahmad in an injured condition to the Civil Hospital, Gojra, where he died later on.

In the F. I. R. it was mentioned that 2/3 days prior to the occurrence the deceased bad abused the appellant and at the trial it was also mentioned that the deceased had himself told the Complainant this reason for the murderous assault.

7. Besides the formal evidence, the conviction of the appellant rests on the ocular testimony of Din Muhammad (P. W. 9), father of the deceased Bashir Ahmad, Bashir Ahmad (P. W. 10) also a distantly related witness, and the recovery of knife (Exh. P. 1) from the person of the appellant at the time of his arrest on 20th March, 1978. The Chemical Examiner vide his report (Exh. P. M.) found the knife to be stained with blood and the Serologist vide his report (Exh. P. N.) found the origin of the blood to be human. This recovery, as already mentioned above, is proved by the testimony of Ahmad Khan A. S. I. (P. W. 11) and Sh. Muhammad Iqbal (P. W. 4). The other attesting witness, namely, Zaheer Hussain, to the recovery Memo (Exh. .P. C.) was given up. Similarly Yasin, an eye‑witness mentioned in the F. I: R. was given up.

8. The learned counsel for the appellant has vehemently argued that:

(i) In the particular circumstances of this case the delay of one and a half hour in lodging the F. I. R. is inordinate, without an explana tion, and, therefore, fatal to the case;

(ii) both the eyewitnesses, namely, Din Muhammad (P. W. 9) and Bashir Ahmad (P. W. 10) are closely related, chance and unreliable witnesses and none from the spot has appeared in support of their version, because it was not true ; and

(iii) the defence version is the true version, as it is corroborated by the medical evidence and other circumstances.

9. Din Muhammad P. W. is a 65 years old person. The learned trial Court, who had the advantage of watching the conduct and demeanour of the witnesses, has recorded

"From appearance it was established that he was an old, infirm and feeble person. He was constant week and was in need of medical advice."

We are sure that such a person on finding his son lay prostrate on the ground with stab wounds in such state of worry, anxiety and confusion, would be more concerned with saving the life of his son than entering upon other formalities to set the law‑enforcing agencies in motion. His conduct is quite natural in taking his son to the hospital and attempting to have him medically treated. Ahmad Khan A. S. I. (P. W. 11) on his own, on hearing the news, arrived at the hospital and recorded the report (Exh: P. G.) and in such circumstances lodging of the F. I. R. within one and a half hour of the incident is prompt and in this prompt F. I. R. the appellant is named as the sole assailant for the broad day murder of Bashir Ahmad committed in the heart of Gojra town. The time and place of the incident in such where the assailant, in any case, could not have escaped un‑identified and no reason whatsoever has been shown for the Complainant or for that matter the prosecution to have falsely nominated the appellant as the sole assailant, and in any case, the appellant does own the responsibility for the fatal wounds, of course, giving his own version of the incident, which we will examine in due course.

10. There is no doubt that Din Muhammad (P. W. 9) is the father of the deceased, but there is not even a suggestion that he has any animus for falsely implicating the appellant. Similarly, there is no suggestion that there was any background of previous enmity between the deceased and the appellant. The learned counsel for the appellant in reference to the under‑quoted portion of the cross‑examination of Din Muhammad P.W.9:

"The deceased did not catch hold of the accused by his neck. In my presence nobody caught hold of him by the neck. Nobody injured him in my presence."

has argued that his testimony is in conflict with the medical evidence and, therefore, he should not be believed. We are afraid, we cannot succour it. The appellant was arrested on the next day of the occurrence and the abrasions on or around the neck could be conveniently self‑suffered or suffered by a friendly hand. Even if we were to believe that these abrasions were suffered during the course of the incident, not much would turn upon it, as it will be too much to expect that when Bashir Ahmad deceased was attacked by the appellant the deceased would do nothing to ward off the attack. He would put up some resistance and such a resistance could possibly result in abrasions of the nature that Have been found on the person of the appellant. Since the deceased was unarmed and he did not inflict any definite blow or injury and these abrasions can hardly be termed as injuries, a layman like Din Muhammad P. W. would normally not take note of it or call it as an injury, and in any case, it is difficult to keep a photographic account of an incident and, therefore, we cannot agree with the learned counsel for the appellant. At best for the defence, it could be argued that Din Muhammad P. W. being father, has attempted to suppress a circumstance which could possibly go in favour of the appellant. The judiciary in Pakistan has not adhered to the principle of falsus in uno falsus in omnibus, but instead has tended to apply the principle of sifting the grain from the chaff and bearing the same in mind; we are satisfied that Din Muhammad P. W. is rendering a true account in its essentials. Similarly, we attach no importance to the argument of the learned counsel that it was not mentioned to the F. I. R. that Bashir Ahmad himself told Din Muhammad P. W. that he had given abuses to the appellant. Even if we could call it an improvement, this is insignificant improvement. The F. I. R. is not an exhaustive document and such minor details seldom find place in such reports.

11. We are satisfied about the presence of Din Muhammad P. W. and the veracity of his version in its essential details. The testimony of Din Muhammad is of the kind where we would like to apply the principle enunciated by the Supreme Court in Roshan etc. v. The State (P L D 1977 S C 557). The testimony of Din Muhammad P. W alone by itself without any further corroboration is enough to find the appellant guilty.

12. Bashir Ahmad (P. W. 10) is admittedly a related witness. He is a chance witness and had no reason to be present at this particular juncture. We would, therefore, rule his testimony out of consideration. It is unfortunate that because of fear of reprisals natural and disinterested witnesses are reluctant to stick their neck in other people's affairs and this aspect has beet taken note of by the Supreme Court of Pakistan in Muhammad Iqbal v. The Stage (P L D 1976 S C 291) and probably sometimes such a situation compels the Investigating Agencies to set up false witnesses in support of a true case against the real assailant and the possibility of Bashir Ahmad (P. W. 10) belonging to the latter category cannot be safely ruled out and it is for this reason that we have thought it prudent to exclude his testimony by way of abundant caution.

13. We are not satisfied about the genuineness of the recovery of knife (Exh. P. 1) from the person of the appellant. He was arrested on 20th March, 1978 and it will be too much to expect that he would be carrying a bloodstained knife in the fold of his shalwar for presenting it as a souvenir to the police. He would have got rid of the weapon at the earliest opportunity and even if we were to assume as correct for the sake of argument the submission of the learned counsel for the Stag that he kept it by way of abundant caution for warding off a counter tack by the Complainant party or to frustrate their effort to apprehend ins, we are sure that he would have washed off the blood from the weapon in no time and not kept the weapon with him as bloodstained, and if he had kept a bloodstained weapon in the fold of his shalwar, the shalwar should also have been stained with blood which is not so. We are of the view that this is a doubtful recovery and we rule it out of consideration.

14. The learned counsel for the appellant has vehemently argued that the defence version fits in with the circumstances of the case and situation, but we find it otherwise. If the deceased was first to grapple him and strangle him by the neek, he would not have permitted the appellant to pick up a knife from the Kabab shop of Abdul Rashid which works out to be at a distance of nearly 25/30 feet from the place of occurrence. If the appellant in fact managed to do so, there was no right of apprehension left with him. If he could get out of the fold of the deceased, he could have conveniently made good his escape if there was any genuine apprehension. We would also take note of the fact that on the admission of the appellant himself, the deceased was unarmed; therefore, we are of the view that there was neither any apprehension of death nor that of grievous hurt. The deceased also has a similar abrasion on the neck. He has suffered five stab wounds, none of which is in front and all the five stab/incised wounds are on the thighs and the buttock, which would indicate that the injuries were inflicted after overpowering the deceased and in all probability, making him lay prostrate on the ground. The blood has been found at three different spots at a distance of quite a few feet from one another. This indicates that initially the deceased was given a knife blow or two at one spot, he attempted to escape and was overpowered or overtaken at another spot, given more blows and he collapsed at the third spot. All this does not fit in with the defence version. The location and the number of injuries negate the plea of self‑defence raised by the appellant and we reject the same.

15. The learned counsel for the appellant has in the alternative maintained that even if it be assumed that the appellant caused the fatal injuries, the case at its worst falls under section 335, P. P. C. or would call for a short sentence under section 304, Part II, P. P. C. and for the latter proposition he has referred us to Muhammad Feroze v. Muhammad Arif and another (1976 S C M R 497).

We find no substance in the first part of the submission, as there is no evidence whatsoever of any provocation having been offered by the deceased, and on the latter submission we would state that each case proceeds on its own facts. Muhammad Feroze v. Muhammad Arif and another was a case of a single blow, whereas in the case in hand blow after blow i.e. five knife blows have been rendered and even if we were to give the maximum benefit to the appellant, taking into consideration the fact that all the injuries have been inflicted on the buttock or the thighs the case of the appellant would be covered by Clause Thirdly of section 300, P. P, C. as injury No. 4 has been found to be sufficient in the ordinary course of nature to cause death,

16. In spite of all that has been said above, we still feel that the prosecution has not taken us into complete confidence regarding the reason/nature of the earlier incident in which the deceased gave abuses to the appellant. The prosecution's own version of an earlier incident when placed to juxtaposition with the defence version and bearing in mind that both sides have a tendency to suppress their own role, it looks very probable that some dispute over gambling took place on the previous occasion in which the deceased gave abuses to the appellant and on the fateful day, they came across each other per chance and the confrontation culminated to the infliction of stab wounds to Bashir Ahmad deceased.

As we have analysed the defence version, on its own showing, there was no apprehension of death or grievous hurt, as the deceased was empty handed and in such encounters some sort of grappling does normally precede and would result in the sort of abrasions that the appellant has on his neck. A similar sort of abrasion is also present on the neck of the deceased. By way of abundant caution we will give the appellant the maximum benefit by holding that apprehension of simple hurt could be there and, therefore, we hold that he has far exceeded the right of self‑defence.

In the circumstances we alter his conviction from section 302, P. P. C. to one under section 304, Part I, P. P.C. and award him the sentence of imprisonment for life and to pay a fine of Rs. 5,000 in default whereof he will further undergo two years rigorous imprisonment. The fine, if realised, the whole of it be paid to the heirs of the deceased.

The appeal stands disposed of in the above terms.

Order accordingly.

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