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صرف 1000 روپے میں 10 وکلاء تک کی براہِ راست رابطہ تفصیلات حاصل کریں اور کال یا واٹس ایپ کے ذریعے موزوں قانونی ماہر سے رابطہ کر کے اپنا معاملہ پورے اعتماد کے ساتھ آگے بڑھائیں۔
Criminal Appeal No. 1124 and Murder Reference No. 225 of 1979, decided on 8th February, 1982.
‑‑‑Ss. 302 & 307‑‑Two versions‑‑Court has to first assess prosecution version and if Court disbelieves prosecution case or discredits ocular account, plea of accused is to be accepted in its entirety‑‑In case ocular evidence is' not excluded from consideration then Court has to review entire prosecution evidence, statement of accused and attending circumstances to find out whether there is yet reasonable possibility of defence plea being true.
‑‑‑Ss. 302 & 307‑‑Suggestion value of‑‑Suggestion after all is suggestion and cannot take place of legal proof unless admitted‑‑Suggestion, having been. denied and accused not caring to substantiate same, suggestion not accepted.
‑‑‑Ss. 302 & 307‑‑Criminal Procedure Code (V of 1898). S.154‑‑F.I.R.‑ Mere fact that F.I.R. was not recorded at police station but at some Mauza does not give rise to conclusion that same was in fact recorded after preliminary investigation‑‑F.I.R. found to be prompt and genuine document containing straightaway narration in which even part played by deceased not suppressed‑‑Such F.I.R. can be used to corroborate its maker.
‑‑‑S. 377‑‑Background of occurrence stated by prosecution being act of sodomy committed by accused with a relative of deceased‑‑Medical evidence and report of Chemical Examiner proving factum of sodomy so committed‑‑Witnesses supporting statement of victim of sodomy having no animus against accused‑‑Defence failing to shatter version despite lengthy cross‑examination‑‑Version of prosecution believed in circumstances.
‑‑‑Ss. 302 & 307‑‑Evidence‑‑Evidence assailed by defence on ground of discrepancies and improvements‑‑Names of witnesses mentioned in promptly lodged F.I.R.‑‑Witnesses giving cogent reasons for their presence on spot‑‑Presence of injured prosecution witnesses proved by injuries found on his person‑‑Presence of witnesses also admitted by accused‑‑Witnesses having no enmity with accused‑‑Some discrepancies and improvements in evidence of witnesses present‑‑Witnesses trying to minimise part played by deceased at trial‑‑Witnesses contradicting with F.I.R. and statements under S.161, Cr.P.C. in respect of some fact, Such witnesses, held, could not be thrown out in toto for so infirmities‑‑Court may ignore improvements and discrepancies and believe version given at trial so far as same being consistent with earlier statements‑‑Witnesses believed in circumstances.
‑‑‑Ss. 302, 307 & 100‑‑Murder‑‑Defence plea‑‑Right of self‑defence Defence plea not being substantiated by any direct evidence circumstance‑‑Plea appearing to be highly improbable on face of it No injury found on person of accused‑‑No reasonable possibility of defence plea being true, found‑‑Possibility of any reaction on prosecution case Held, could be excluded altogether.
‑‑‑Ss. 302, 307 & 101‑‑Criminal Procedure Code (V of 1898), Ss. 46 & 59‑‑Accused not committing any non‑bailable and cognizable offence in presence of deceased and injured prosecution witness‑‑Act of blocking way and catching hold of or apprehending accused was not justified under S. 59, Cr.P.C.‑‑Attempt to apprehend accused, held, amounted to attempt to confine accused wrongfully‑‑Accused got a right of private defence under S.101, P.P.C. Accused while causing death of deceased exceeded right of private defence‑‑Sentence converted from S .'302 to 5.304, Part I, P.P.C. and accused sentenced to 10 year's R.I.
‑‑‑S. 307‑‑Attempt to murder‑‑Injured prosecution witness was stabbed on back of his chest by accused when he stepped forward to save deceased from accused‑‑Prosecution witness was in state of shock when he was examined by Doctor‑‑Accused, held, was rightly convicted under S. 307, P.P.C.
‑‑‑---Ss. 302 & 304, Part I‑‑Criminal Procedure Code (V of 1898), S.544‑A‑‑Compensation‑‑Compensation of Rs.200 awarded under S.544‑A, Cr.P.C. for offence of murder highly inadequate----Compensation enhanced to Rs.8,000 after giving suo motu notice for enhancement and acceptance of such notice by counsel of accused.
Khalid Alvi for Appellant.
S. Zawwar Shah for the State.
This Murder Reference No. 225 of 1979 and connected Criminal Appeal No. 1124 of 1979, arise from he judgment of the learned Additional Sessions Judge, Muzaffargharh, whereby, he on 12‑7‑1979 convicted Abdur Rehman alias Rehman, aged 30 years under various sections of the Pakistan Penal Code. Under section 302, P.P.C. for the murder of Ali Muhammad aged 60/65 years, sentenced him to death and a fine of Rs.200 or in default thereof to further R.I. for two months. Under section 544‑A, Cr.P.C. he was ordered to pay compensation of Rs.200 or in default thereof to further R.I. for two months. The amount of compensation, if realized, shall be paid to the heirs of the deceased. Under section 307 P.P.C for murderous assault upon Gul Muhammad P.W. 11, sentenced him to four years R.I. and a fine of Rs.200, in default thereof to further R.I. for two months. Under section 544‑A, Cr.P.C. he was ordered to pay compensation of Rs.200 to Gul Muhammad P.W. 11 in default thereof to further R.I. for two months. The substantive sentences were directed to run concurrently.
2. The occurrence took place on 23‑7‑1976 at 3 p. m. at Bund Sanawan, village Thatha Gurmani of Police Station Mahmood Kot. The F.I. R. is the statement Exh. P. B. of Ahmed Bakhsh P. W. 9, recorded by Sardar Abdul Karim S.I. P.W. 12 at 6 p.m. on the same day at Gurmani Sharqi. The formal F.I.R. is Exh. P.B./1, registered at Police Station Mehmood Kot at 7/5 p.m. on 23‑7‑1976 by Abdul Hamid M.H.C. P.W. 2. The distance between the place of occurrence and the Police Station is 12 miles.
3. It is a case of no direct motive against the deceased. The circumstances which led to this murder as alleged by the prosecution as given in the F.I. R. are that on' the eventful day at Rotiwela Abdur Rehman appellant committed sodomy upon Allah Ditta P.W. 8. Allah Ditta went to his house, where his father Gul Muhammad P.W. 11, Ahmad Bakhsh P.W. 9 and Ali Muhammad deceased were present Allah Ditta narrated the incident to them. They asked him to show the place of occurrence to them. Allah Ditta brought them to the spot. Leaving Allah Ditta there with cattle, the deceased, Ahmad Bakhsh P.W. 9 and Gul Muhammad P.W. 11 set out in search of the appellant. When they reached near Chah Kaluwala, village Thatha Gurmani, they found the appellant coming from east on a bicycle on the Bund. They way‑laid him and when he got down from the bicycle, the deceased took him in his grips. On this the accused took out Chhura from his dub and stabbed Ali Muhammad Gul Muhammad stepped forward to save Ali Muhammad but the appellant inflicted Chhura blow on his back. The occurrence was also seen by Ranjha P.W. 10 and given up P.Ws. namely Muhammad Yar and Ahmad Bakhsh son of Muhammad Bakhsh. The appellant extended threats to the witnesses and fled away taking his Chhura with him. Ali Muhammad expired at the spot. Gul Muhammad was removed to the Hospital.
4. After recording the statement Exh. P.B. of Ahmad Bakhsh P.W. 9, S.I. Sardar Abdul Karim P. W. 12 proceeded to the place of occurrence. From the spot, he sent the dead‑ body to the mortuary under the escort of Ghulam Qadir F.C.P.W. I, blood‑stained Peshawari Lungi P.4, left by the appellant on the spot was taken into possession, vide memo. Exh. P.F. The Sub‑Inspector arrested the appellant on 24‑7‑1976. Bicycle P. 7 of the appellant was taken into possession, vide memo. Exh. P.J. On the same day i.e. 24‑7‑1976 the semen‑stained Chadar P. 8 of Allah Ditta P.W. 8 was removed from his person and taken into possession, vide memo. Exh. P. K. On 25‑7‑1976, the appellant got recovered blood‑stained Chhurs P. 6 from his residential Kotha which was made into sealed parcel and taken into possession, vide memo: Exh. P.H. After the completion of the investigation the challan was submitted.
5.(a) On 24‑7‑1976, at 8 a.m. Dr. Muhammad Afzal P.W. 5, conducted the post‑mortem examination on the dead body of the deceased and found the following injury:
"A single stab wound gaping and oblique situated on the lowest part of left chest at the level of 10th rib in the line of left armpit. There was bleeding from the wound. The wound was also entering the left abdominal cavity. As a result the 10th rib was completely cut."
On internal examination, the Doctor found that the abdominal cavity was full of dark fluid blood which was the result of injury to the spleen and injury to the abdominal aorta. Stomach was healthy, distended and only two ounces semi‑digested diet was present. The spleen was cut at about its middle. The injury was grievous and fatal caused by a long bladed sharp‑edged weapon. Death was immediate due to profuse bleeding caused by injury to the aorta and the spleen. This injury was sufficient to cause death in the ordinary course of nature.
(b) On 23‑7‑1976, Dr. Imtiaz Ahmad Khan, P.W. 7, examined Gul Muhammad P.W. 11 and found the following injuries:‑--
(1) An incised wound on the back on left side 7 centimetre above the left iliac crest.
Length = 3 Centimetre.
Length = 1 Centimetre.
Depth = 1 Centimetre.
(2) Swelling on supra pubic region.
(3) Retention of urine.
(4) Patient was in a state of shock.
(5) Complaining of pain in the chest.
(6) Vertigo.
(7) Tenderness in the umblical region.
(8) Pain in supra pubic region.
Injury No. I was caused by sharp‑edged weapon while injury No. 2 by blunt weapon. After X‑ray the injury was declared simple in nature.
(c) On 24‑7‑1976, Dr. Imtiaz Ahmad Khan P.W.7, examined Allah Ditta with regard to the sodomy. He found the following injuries:‑--
(1) An abrasion on the skin near left side of anus. Length 1 centimetre width 0.5. c.m.
(2) Pain in the anal region on walking.
(3) The slight swelling of the anal region.
(4) Pain in the anal region during examination.
(5) Swab of the anal region is referred to the Chemical Examiner in sealed bottle for the detection of sperms.
Swabs of anal region were sent to the Chemical Examiner. On the receipt of the Chemical Report, the doctor opined that sodomy had been committed with Allah Ditta.
The Chemical Report Exh. P.M. shows that anal swabs were stained with semen. Serologist Report Exh. P.V. shows that Chhura P. 6 and Lungi P.4 were stained with human blood.
6. The appellant when examined under section 342, Cr.P.C denied the incriminating evidence. He took up the plea of self‑defence and in answer to Question No. 3, he stated:‑-
"It is incorrect that Ahmed Bakhsh complainant also met me, I was waylaid by Ali Muhammad deceased and Gul Muhammad P.W. 1 came off my cycle and inquired from them as to why they had blocked my way on which they replied that I had committed sodomy with Gul Muhammad's son Allah Ditta P. W. I protested against the allegations and assured them that they were mistaken and there was definitely some misunderstanding about the whole affair, but they paid no heed to my protest and explanations, Ali Muhammad caught hold of me into his fold, which Gul Muhammad took out a Chhura from his Dub and tried to stab me. I snatched the Chhura from him and gave one blow each to Ali Muhammad and Gul Muhammad in order to save my life."
In answer to Question No. 11, he further stated that
"I was caught hold of by Ali Muhammad deceased and Gul Muhammad P.W. who took out the Chhura and I apprehended danger to my life at their hands and I, while exercising the right of private defence snatched the Chhura and to ward off the danger to my life wielded the Chhura and gave them one blow each. "
The appellant, however, did not lead any evidence in defence.
7. Before us, the learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt. Its ocular evidence being interested is not reliable and that in the circumstances of the case the appellant had a complete right of private defence. As against this, the learned 'State counsel has vehemently defended the judgment of the learned Additional Sessions Judge. He urged that the appellant has hopelessly failed to show that he had acted in the right of his self‑defence.
8. In order to prove its case the prosecution examined as many as 12 witnesses.
P. W. 1 Ghulam Qadir F. C.‑‑ He escorted the dead body to the mortuary:
P.W. 2 Abdul Hamid M.H.C.‑‑ He recorded the formal F.I.R. Exh. P.B./I.
P.W. 3 Muhammad Bakhsh‑‑ He identified the dead body at the time of the post‑mortem examination.
P. W. 4 Allah Dewaya Patwari‑‑ He prepared the site plan on the pointation of P.Ws.
P. W. 5 Dr. Muhammad Afzal‑‑ He conducted the post‑mortem examination on the dead body of Ali Muhammad.
P. W. 6 Allah Bakhsh‑‑ He has supported the recoveries of blood‑stained Lungi P. 4 and Chhura P. 6 etc.
P.W. 7 Dr. Imtiaz Ahmad Khan‑‑ He medically examined Gul Muhammad and Allah Ditta P.Ws.
P. W. 8 Allah Ditta‑‑ He stated that the appellant had committed sodomy with him at Rotiwela on the day of occurrence and that he narrated the incident to the deceased and others.
P.W. 9 Ahmad Bakhsh‑‑ He is complainant. He reiterated the same version as given by him in the F.I.R. of course with certain discrepancies and improvements here and there. The deceased was the brother of his wife as well as son of his father's sister.
P.W. 10 Ranjha‑‑ He is an eye‑witness, has given almost the same version as given by Ahmad Bakhsh P.W. 9. He stated that the appellant had inflicted knife injuries on the person of the deceased and Gul Muhammad P.W. 9 the complainant is his paternal‑uncle.
P.W. 11 Gul Muhammad‑‑ He is an injured eye‑witness. He supported the ocular account and stated that he saw the appellant giving knife blows to the deceased and Gul Muhammad P.W. "Ahmad Bakhsh P.W. 9 is his maternal‑uncle. He is father of Allah Ditta P.W. 8 with whom the appellant had allegedly committed sodomy.
P.W. 12 Sardar Abdul Karim S.H.O./S.I.‑‑ He recorded F.I.R. Exh. P.B., effected the recoveries and challaned the appellant.
9. The above statement of facts would show that it is a case of two versions. The time, the place of occurrence, presence of the appellant, presence of Gul Muhammad P.W. 11, the fact that the appellant caused injuries to the deceased and Gul Muhammad with knife are the admitted facts of the case.
10. Keeping in mind the guiding principles laid down by the superior Courts for the appreciation of the case of two versions we would first assess the prosecution version so as to come to a definite conclusion as to the truth or falsity of the prosecution case and its evidence because in case we disbelieved the prosecution case or discredit the ocular A account we shall have to accept the plea of the appellant in its entirety. In case the ocular evidence is not excluded from consideration then we would review the entire evidence that has been produced by the prosecution, the statement of the appellant and the attending circumstances to find out whether there is yet a reasonable possibility that the plea raised by the appellant might be true.
11. While dealing with the prosecution case, we start with the F.I.R. The occurrence took place at 3 p.m. F.I.R. Exh. P.B./1 was recorded at 6 p.m. The names of the eye‑witnesses, the weapons of offence and the manner in which the occurrence allegedly took place all have been mentioned therein. It was suggested to Ahmad Bakhsh P.W. 9 and Sardar Abdul Karim P.W. 12 that the F.I.R. Exh. P.B./1 was recorded at the spot after preliminary investigation. The suggestion after all is the suggestion and cannot take the‑place of a legal proof unless admitted. The suggestion having been denied, the appellant did not care substantiate the same. The mere fact that the F.I.R. was recorded in Mauza Gurmani Sharqi and not at the Police Station would not give rise to the conclusion that the same was, in fact, written after preliminary investigation. We find that F.I.R. Exh. P.B./1 a genuine document containing a straightaway narration in which the part played by the deceased i.e. catching hold of the appellant by the deceased had not been suppressed. It is a case of prompt F.I.R. It may be used to corroborate its maker i.e. Ahmad Bakhsh P.W. 9.
(ii) Incident of sodomy:
The medical evidence and the Chemical Examiner's Report Exh. P. N. leave no room for doubt that sodomy committed upon Allah Ditta P.W. 8. Allah Ditta P.W. 8, stated that the appellant had committed sodomy with him. He the incident to the deceased and others. He brought them to the spot and after seeing the same the deceased, Ahmad Bakhsh P.W. 9 and Gul Muhammad P.W. 11 set out in search of Abdur Rehman, appellant. Ahmad Bakhsh P.W. 9 and Gul Muhammad P.W. 11 have supported the statement of Allah Ditta P.W. 8. These witness have no animous against the appellant. The defence has not been able to shatter this version in spite of lengthy cross‑examination and as such we feel no hesitation to believe that the appellant had committed sodomy with Allah Ditta P.W. 8.
(iii) Ocular evidence:‑-
Learned counsel for the appellant has contended that the eye‑witnesses being related as well as chance witnesses and having contradicted themselves on major points are not entitled to be believed. He has pointed out some discrepancies and improvements in their evidence. We have appreciated this piece of evidence with utmost care. To our mind, the eye‑witnesses are entitled to be believed. The names of these witnesses are mentioned in the F.I.R. which was lodged with promptitude. They have given cogent reasons for their presence on P the spot. The presence of Gul Muhammad P.W. 11 is proved by the fact of injuries found on his person. His presence has also been admitted by the appellant. These witnesses had no enmity with the appellant. There is no denying that these are some discrepancies, and improvements in the evidence of these witnesses. For example, at the trial stage, Ahmad Bakhsh stated that they first went to the house of the appellant where none, except the ladies were present and they set out in the search of Abdur Rehman appellant, Ali Muhammad deceased gave him gilla (complaint) and told him that he committed bad act with their child and did not feel ashamed and that they were to make report at the police station the appellant got down. Ali Muhammad deceased wanted to catch hold of him when the appellant pulled cut Chhura and stabbed the deceased. Whereas, nothing about the going to the house of the appellant, giving Gills to him is mentioned in the earlier statement. In the F.I. R. it has been stated that Ali Muhammad straightaway caught hold of the appellant and thereafter, the appellant took out Chhura. It appears that at the trial stage the witnesses have tried to minimise the part played by the deceased and have admitted but disowned some facts also, stated by them in the F.I.R. and in the statements recorded under section 161, Cr.P.C.
It is well‑settled that the evidence of a witness cannot be thrown out in toto for such infirmities and the Court may ignore the improvement and discrepancies and may believe the version given at the trial so far the same is consistent with the earlier statement.
12. For what has been stated above, we are inclined to believe the witnesses and are not prepared to exclude their statement from consideration.
13. Now we take up the defence plea and would like to produce the same here:‑-
"I was way laid by Ali Muhammad deceased and Gul Muhammad P.W. 1 came off my cycle and inquired from them as to why they had blocked my way on which they replied that 1 had committed sodomy with Gul Muhammad's son of Allah Ditta P.W. 1 protested against the allegation and assured them that they were mistaken and there was definitely some misunderstanding about the whole affairs, but they paid no heed to my protest and explanation. Ali Muhammad caught hold of me into his fold while Gul Muhammad took out a Chhura from his Dub and tries to stab me. I snatched the Chhura from him and gave one blow. each to Ali Muhammad and Gul Muhammad in order to save my life. "
This plea has not been substantiated by any direct evidence circumstances. The plea on its face appears to be highly improbable. It cannot be believed that the appellant who was already in the fold oil Ali Muhammad deceased could have snatched Chhura from Gul Muhammad and. could cause injuries on two persons without having received a scratch on his person. Therefore, the statement of the appellant that Gul Muhammad took out Chhura from his Dub and tried to stab him but he snatched the Chhura from him and gave one blow each to the deceased and Gul Muhammad P.W. 11 to save himself cannot be believed in the circumstances of the case. Had Gul Muhammad P. W. 11, father of Allah Ditta a knife with him he would have straight away opened the attack and killed or injured the appellant in the circumstances of the case. The fact that there was no injury on the person of the appellant itself is sufficient to falsify the version of the appellant and as such there is no reasonable possibility of the plea raised by the appellant being true. In this view of the matter the possibility of any reaction on the prosecution case stands altogether excluded.
14. For the foregoing reasons we are of the opinion that the prosecution had proved its version as given in the F.I.R. beyond reasonable doubt and there is not a reasonable possibility of defence version being true.
15. In the F.I.R. it has been stated that when Allah Ditta informed the deceased and others that the appellant committed sodomy upon him the deceased and others set out in search of the appellant. At the eventful time they saw the appellant coming from east on a cycle on a Bund, the deceased and others blocked his way. The appellant came off the cycle and Ali Muhammad caught hold of him in his Japha. The appellant immediately took out knife from his Dub and stabbed Ali Muhammad on the left side of the abdomen. Gul Muhammad P.W.11 stepped forward to save Ali Muhammad but the appellant Chhura blow on the back of his chest. We have already stated that we are inclined to believe that the occurrence had taken place in this manner.
16. With respect to the conviction of the appellant under section 302, P.P.C. we find that an important question of law arising in this case (which neither has been subjected to appraisement in the judgment of the trial Court nor the same has been raised by the learned counsel for the appellant before us) is to extent of the right of the deceased and Gul Muhammad P.W. 11 to waylay and capture the appellant who had at least not committed any non‑bailable and cognizable offence in their view. It is remarkable that at the time of occurrence Allah Ditta with whom sodomy had been committed was not present, the deceased and Gul Muhammad P.W. 11 had not reached the spot on the cries of Allah Ditta. They were not asked by Allah Ditta to arrest the appellant. Allah Ditta had not employed them for assistance. The appellant was straight‑away taken into fold as such no help can be obtained from the provisions of section 46, Cr.P.C. It is well‑recognized that the right of private person to effect arrest or capture is dealt with by section 59, Cr.P.C. wherein, it is laid down that a private person may arrest any one who in his view has committed a non‑bailable and cognizable offence or any proclaimed offender. In the instant case the appellant had not committed any such offence in the presence of the deceased and Gul Muhammad, therefore, the act of blocking the way and catching hold of or apprehending the appellant was not legally justified by section 59, Cr.P.C. In our view, the attempt to apprehend the appellant amounts to an attempt confining the appellant wrongfully and the appellant as such would have a right of private defence against that act. Section 101, P.P.C. gave the appellant the right of voluntarily causing to the deceased (who had caught hold of them) any harm other than death. The appellant stabbed Ali Muhammad in abdomen and thereby caused his instantaneous death and in doing so he exceeded the right of private defence which had accrued to him against Ali Muhammad deceased.
17. In view of what has been stated above the appellant was guilty of an offence of culpable homicide not amounting to murder.
18. We find that Gul Muhammad stepped forward to save Ali Muhammad when he was stabbed on the back of his chest. The patient was in state of shock when he was examined by the doctor and as such the appellant was rightly convicted under section 307, P.P.C. Therefore, the conviction and the sentence awarded to the appellant under section 307, P.P.C. is hereby maintained.
19. The upshot of the above discussion is that the conviction of the appellant for the murder of Ali Muhammad is converted from section 302, P.P.C. to section 304, Part I, P.P.C. and he is sentenced to 10 (ten) years R.I. As the compensation awarded under section 544‑A. Cr.P.C. was highly inadequate suo motu notice for enhancement of the same was given which has been accepted by the learned counsel. After hearing him on this point, we enhance the same from Rs.200 to Rs.5,000 to be paid to the heirs of the deceased. In default the appellant would suffer further R.I. for six months. The substantive sentences would, however, run concurrently.
The appeal is partly accepted. The sentences of death is not confirmed.
S.A. Appeal partly accepted.
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