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Criminal Appeal No. 89 of 1982, heard on 12th June, 1985.

(On appeal from judgment and order of Lahore High Court, dated 2‑3‑1982 in Criminal Appeal No. 418 of 1979/Murder Reference No. 123 of 1979 read with Criminal Revision No. 683 of 1979).

‑‑‑S. 302/34‑‑Self‑defence‑‑Whether accused had acted in exercise of right of self‑defence or whether killing of deceased by him was a deliberate act of murder, only question for consideration‑‑Version of accused that when he came across deceased latter stabbed him in chest and that accused had killed him in self‑defence not believed either by trial Court or by High Court‑‑Trial Court observing that injury on person of accused which was simple in nature could be self‑suffered and that conduct of accused in 'butchering' deceased even after he had fallen on ground when there was absolutely no risk from deceased showed that he inflicted injuries on his person with intention of killing him and not in self‑defence‑‑Accused having a motive to injure deceased while accused himself miserably failing to prove motive that he had tried to attribute to deceased‑‑Accused causing as many as nineteen injuries to deceased and most of them on vital parts of body when no less than five injuries were sufficient to cause death in ordinary course of nature was an intentional murder‑‑Conviction maintained under section 302, Penal Code, in circumstances.

---‑S. 302‑‑Sentence‑‑Incident of murder taking place as a result of chance encounter‑‑One of accused's brothers involved in a case under S. 307, Penal Code, wherein deceased was an eye‑witness‑‑Accused and his family suspecting that deceased was informant of police and provided information against them‑‑Exact circumstance, in which occurrence took place and developed leading to death of deceased shrouded in mystry‑‑Two eye‑witnesses of case not throwing much light on this aspect and stating that they reached scene when altercation had already begun between parties‑‑Sentence of death reduced to imprisonment for life in circumstances.‑‑[Sentence].

Raja Muhammad Anwar, Senior Advocate Supreme Court instructed by Ch. Karam Elahi Bhatti, Advocate‑on‑Record for Appellant.

Ch. Ghulam Ahmad, Advocate Supreme Court for A.‑G., Punjab for the State.

Date of hearing: 12th June, 1985.

‑The appellant, herein, Abdur Rahim alias Raheema and his father (co‑accused), Ghulam Rasool alias Lusbaba, were tried under section 302/34, P.P.C. for having committed the murder of Karamat Hussain, their neighbour, on 11‑6‑1976 at about 9‑30 p.m., in the area of Dhoke Elahi Bakhsh, situated at a distance of about four Furlongs away from the Police Station "C" Division, Rawalpindi.

The learned trial Judge acquitted Ghulam Rasool alias Lusbaba vide judgment, dated 18‑3‑1979 but found the appellant, Abdur Rahim alias Reaheema to be guilty and convicted him under section 302 P.P.C. and sentenced him to death and also to a fine of Rs.5,000 or in default to undergo rigorous imprisonment for two years. The fine, if recovered, was ordered to be paid to the heirs of the deceased, as compensation under section 544‑A, Cr.P.C.

On appeal and reference, a Division Bench of the Lahore High Court, Lahore was pleased to dismiss the appeal of the convict (appellant herein) and confirm the sentence of death. However, the revision (Criminal Revision No. 683 of 1979) filed by the complainant, Ghulam Hussain (P.W. 8) against the acquittal of Ghulam Rasool alias Lusbaba co‑accused was dismissed vide judgment, dated 2‑3‑1982. Hence this appeal, by leave of this Court.

The case of the prosecution was that on 11‑6‑1976 at about 9‑30 p.m., Ghulam Hussain (P.W. 8), complainant, was going towards Talian Shahan from his house. When he had just passed the veterinary Hospital, he heard a challenge thrown by the appellant (Abdur Rahim alias Raheema) and his father (Ghulam Rasool alias Lusbaba), to Karamat Hussain (deceased), who at that time was close by to the shop of Mistry Muhammad Aslam that they would teach him lesson for giving evidence against them and also for making their life miserable. Ghulam Rasool alias Lusbaba (co‑accused) caught hold of Karamat Hussain (deceased) from behind and the appellant (Abdur Rahim alias Raheema) began to give Chhuri blows on the chest and abdomen and other parts of his body. The deceased fell down while more Chhuri blows were inflicted by the appellant. Abdul Haq (P.W. 9) also reached the spot during the occurrence. The complainant (Ghulam Hussain) and Abdul Haq (P.W. 9) wanted to rescue Karamat Hussain but the appellant (accused) threatened them with dire consequence if they attempted to intervene. Hence the said two P.Ws did not dare to approach them but started raising hue and cry, whereupon both the accused ran away towards Murree Road shouting and brandishing their chhuri.

The complainant (Ghulam Hussain) and Abdul Haq (P.Ws) who identified both the accused in the electricity light then took Karamat Hussain to the Civil Hospital where he shortly, thereafter, expired. Leaving the dead body in the Hospital under the care of Abdul Haq (p.W.), Ghulam Hussain (complainant) reached the Police Station "C" Division, Rawalpindi and lodged the F.I.R. (Exh. PH) which was recorded by Noor Muhammad, S.I. (P.W. 11) the same day at 10‑30 p.m.

The motive for the occurrence as stated in the F.I.R (Exh. P.H.) is that on 28‑5‑1976, Maqbool Hussain (brother of the present appellant, Abdur Rahim alias Raheema) and others made murderous assault on Arif Shah and a case was registered under section 307/34, P.P.C. on the statement of Mushtaq Hussain Shah. Karamat Hussain (deceased) was an eye‑witness in that case. Besides this, the present appellant and his father (co‑accused) had a suspicion that the deceased (Karamat Hussain) was working as an informer against them to the police.

After recording the F.I.R. (Exh. P.H.), Noor Muhammad S.I. (P.W. 11) I.0., reached the Hospital where he prepared the inquest report (Exh.P.J.) and the injury statement (Exh. PK) and then sent the dead body of Karamat Hussain (deceased) to the mortuary for the post‑mortem examination under the escort of Iftikhar Ahmad and Muhammad Naseem, constables. He also collected blood‑stained earth from the spot and sealed it into a parcel vide memo. Exh. P.F. He recorded the statements of the P.Ws. and arrested the appellant (Abdur Rahim alias Raheema) almost immediately, at 3‑30 a.m. on 12‑6‑1976, who had an injury on his person. He got him medically examined. He took the blood‑stained shalwar (P. 4) and blood‑stained vest (P. 5) of the appellant into possession in a sealed parcel vide memo. Ex. P.F. On 15‑6‑1976, the appellant while in police custody led to the recovery of blood‑stained Chhuri from underneath a dung heap near the southern wall of his house. It was taken into possession in a sealed parcel vide memo. Exh. P.G., attested by Taj Muhammad (P.W. 7) and Zahid Rabbani (not produced). The blood‑stained clothes of the appellant and the blood‑stained Chhuri were found to be stained with human blood by the Serologist vide Report (Exh. P.O.).

Dr. Agha Muhammad Zaffar (P.W. 1), M.O. D.H.Q. Hospital, Rawalpindi performed the autopsy on the dead body of Karamat Hussain (deceased) on 12‑6‑1976 at 9‑30 a.m. and found the following injuries on his person:‑‑

(1) An incised wound on the septim between two nostrils 1/3" x 1/4" x skin deep with another incised wound on left nostril 1/4" cutting it into two.

(2) An incised wound 1" x 1/8" x skin deep on palm of right hand at base of right little, ring and middle finger.

(3) An incised wound 2J" x 1/4" x muscle deep on palm of right hand at base of right little, ring and middle finger.

(4) An incised wound on the tip of right ring finger palmer aspect 1/4" x 1/8" x skin deep.

(5) An incised wound 1/4" x 1/8" x skin deep on back of left thumb at root.

(6) An oblique stab incised wound 1 x " x chest cavity deep below right collar bone 4 " above right nipple at 1 O Clock.

(7) A stab incised wound oblique 2 below right nipple at 5 O Clock 1 " x 1/2" x chest cavity deep.

(8) An incised wound 1" x 1/2" muscle deep right hypochomdrium below costal margin.

(9) An oblique stab incised wound 2" x 3/4" x abdomen deep 4‑3/4" below amblicess at 7 O Clock.

(10) A stab incised wound 3 " x 2" x chest cavity deep on inner border of left nipple 2 " from body of sternum.

(11) An incised wound back of right flank " x " x skin deep.

(12) An incised wound " x x bone deep front of chest left size 3 from left nipple at 7 O Clock.

(13) An oblique incised wound front of chest left side 2" below the lower end of Injury No. 12, 1" x " x muscle deep.

(14) An oblique stab incised wound 3 " x 1" x abdomen deep 5" from umblicus at 4/5 O' Clock.

(15) An incised wound 1 " x " x muscle deep on left lower abdomen 3 from umblicus at 5 O 'Clock.

(16) An incised wound 2" x 1" x muscle deep 3/4" behind injury No. 14.

(17) An oblique incised wound 3" x 1" x muscle deep on back of left thigh upper aspect.

(18) An incised wound 1 " x x skin deep parallel to left lower jaw near chin.

(19) An incised wound 4 " x 1/8" x skin deep on abdomen left side upper and middle aspect 3" from umblicus at its upper end.

On internal examination; fifth rib on right side was found cut under Injury No. 7. Both pleurae were found cut under Injuries Nos. 6, 7 and 11. Right lung was found cut through and through under Injuries Nos. 6 and 7. Left lung was found cut through and through under Injury No. 11. Peritonial cavity contained blood and was found cut under Injuries Nos. 9 and 14. Small intestines were found cut under Injury No. 9 while large intestines were found cut under Injury No. 14.

In the opinion of the doctor, the death was due to shock and haemorrhage as a result of injuries to both lungs, small intestines and large intestines under Injuries Nos. 6, 7, 9, 11 and 14, which were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem and caused with sharp‑edged weapon. Time between injuries and death was immediate within an hour and between death and post‑mortem twelve hours.

The same doctor medically examined Abdul Rahim (appellant) on 12‑6‑1976 at 8‑30 a.m. and found an incised wound 3/8" x 1/8" x 1/4" on the front of chest left side. The injury was simple and caused by sharp‑edged weapon. The duration was within twelve hours.

In his report the doctor had opined that the injury on Abdur Rahim (appellant) could be self‑suffered, but when he appeared in court he stated in cross‑examination that "when I stated that the injury on Abdur Rahim could be self‑suffered it means that it is a possibility. There are many ways by which this injury may be sustained. The location of the injury on the person of Abdur Rahim is on the vital part of the body and by suffering this injury a danger is also involved, in case of deep penetration. There are many parts of the body on which the injury may be self‑inflicted or self‑suffered without taking the risk".

The appellant (Abdur Rahim alias Raheema) when examined under section 342, Cr.P.C., denied his guilt and took up the position that Karamat Hussain (deceased) had abducted one Mst. Shabnum from Lahore and brought her to Rawalpindi. He married her on 16‑10‑1975 but out of fear of detection, he delayed the registration of the Nikah which was registered on 25‑1‑1976. On the day of occurrence, the relatives of Mst. Shabnum had come to their Mohallah and he had led them to the house of Karamat Hussain (deceased) and from there they had taken away their daughter with them in Car. The deceased (Karamat Hussain) was enraged and stabbed him in the chest whereupon he acted in self‑defence of his person. He further stated that his father, Ghulam Rasool (co‑accused), who was not then present at the occurrence, took him to the Police Station to lodge the report but the police in connivance with the complainant‑party detained them.

Ghulam Rasool (co‑accused), when examined also stated that Karamat Hussain (deceased) had stabbed his son, Abdur Rahim alias Raheema (appellant). He took him to the police station for making the report but the police detained them. He, however, did not produce any evidence in his defence.

We note that there is no dispute that Karamat Hussain (deceased) was killed on the fateful night in an encounter with Abdur Rahim (appellant) and the only question now is whether Abdur Rahim had acted in exercise of the right of self‑defence or whether the killing of the deceased by him was a deliberate act of murder.

The case of the appellant is that he had acted in exercise of the right of self‑defence because the deceased had stabbed him in the chest. This plea was taken by him in his statement under section 342 Cr.P.C. wherein he had stated that the incident took place because he had led the relatives of Shabnum to the deceased's house facilitating them to take her away and his conduct had enraged deceased; hence when the appellant came across the deceased, he stabbed him in the chest and that the appellant had killed the deceased in self‑defence. This version was not believed by either of the Courts below.

The learned Additional Sessions Judge while concluding that the appellant's version could not be believed observed that the injury on his person could be self‑suffered and he noted in this connection that the appellant had only one injury and that too was simple in nature.

Moreover, his conduct in "butchering" the deceased even after he had fallen on the ground when there was absolutely no risk from the deceased showed that he inflicted injuries (19 in all) on his person with the intention of killing him and not in self‑defence. He also observed that the appellant had a motive to injure the deceased while he himself had miserably failed to prove the motive which he had tried to attribute to him.

The High Court also agreed with the trial Court that the appellant had not caused injuries to the deceased in exercise of the right of self defence of his person. Although the High Court observed that the injury suffered by the appellant was not self‑suffered, but it was of the opinion that it was received by him from his own weapon in the course of the struggle put up by the deceased before being over‑powered and killed. In this connection it was observed "that the deceased had three injuries on the palm of right hand at the base of right little ring and middle fingers. He had another incised wound on the tip of right finger palmer aspect. He had another incised injury on the back of left thumb at root; these injuries indicated that the deceased had held the weapon of offence with his both hands and in the process of struggle, injury to the appellant could have been caused." However, the learned Judges of the High Court were positive that the plea of right of self‑defence of person was not available to the appellant. In this connection, they observed "in case the deceased had been armed with some weapon and had been the aggressor, he would have caused more injuries to the appellant. We feel no hesitation in rejecting the plea of the appellant." Dealing with the question if the appellant could be found to have exceeded the right of self‑defence, they said that "it was not a case of exceeding the right of self‑defence of person. The appellant had caused as many as nineteen injuries and most of the injuries were on the vital parts of the body. No less than five injuries were sufficient to cause death in the ordinary course of nature. The appellant had been inflicting injuries to the deceased after he had fallen on the ground. It clearly proved that it was an intentional murder".

We are inclined to agree. We would accordingly hold that the appellant deserved to be convicted under section 302, P.P.C. and was rightly so convicted.

This brings us to the question of sentence.

It is clear that the incident in which the unfortunate Karamat Hussain lost his life was a chance encounter. We also note that one of the appellant's brothers was involved in a case under section 307, P.P.C. and that in the aforesaid incident Karamat Hussain (deceased) was an eye‑witness. The appellant and his family also suspected that Karamat Hussain was an informant of the police and was giving information against them. In this background the fact that the appellant was carrying a chhuri on the night of the present incident is not of any special significance and in fact quite consistent with his character.

We are, however, left in some doubt as to the exact circumstances in which the occurrence began and developed leading to the death of Karamat Hussain. The two eye‑witnesses of the incident Ghulam Hussain (P.W. 8) and Abdul Haq (P.W. 9) also do not throw much light on this aspect of the matter. In fact Ghulam Hussain (P.W. 8) in the course of cross‑examination admitted that when he reached near the parties "the altercation was going on". Thus, he reached the scene when the altercation had already started and was not present when it actually began. Similarly the other eye‑witness Abdul Haq (P.W. 9) stated that he went towards the spot after he had heard the noise (raised by the altercation.) Moreover both of them have indulged exaggerations. Both of them stated that the father of the appellant had actively participated in the incident whereas in all probability he was not present at spot at the time and that it was for this reason that he was given the benefit of doubt by the Courts below, and acquitted. The High Court has further held that at one stage in the course of the scuffle the deceased had apparently caught hold of the Chhuri with both his hands and the injury suffered by the appellant on his chest was suffered by him during the scuffle. It is not difficult to visualize that the appellant would not leave any thing to chance thereafter, which accounts for the large number of injuries inflicted on the deceased by him. In the circumstances of the case, we feel that the ends of justice will be met if while maintaining the appellant's conviction under section 302, P.P.C. his sentence is reduced to life imprisonment. We would order accordingly.

The result is that the conviction of the appellant under section 302, P.P.C. is maintained but he shall be sentenced to imprisonment for life and also to a fine of Rs.5,000 or in default to undergo R.I. for two years. The fine, if recovered, will be paid to the heirs of the deceased as compensation under section 544‑A, Cr.P.C.

The appeal, subject to the above modification, stands dismissed.

M. Y. H. Appeal dismissed.

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