Find a Lawyer

Criminal Appeal No. 582 and Murder Reference No. 127 of 1983, decided on 18th May, 1987.

(a) Penal Code (XLV of

1860)‑‑

‑‑Ss. 302, 148, 149‑‑Motive as alleged by prosecution disproved‑ Prosecution witnesses furnishing ocular account related to deceased and having a criminal propensity and blemished record‑‑No credence could be given to their testimony without unimpeachable corroboration which was not available‑‑Weapons recovered not sent to Chemical Examiner and Serologist and same were of no avail to prosecution‑ 'Datar' sent to Chemical Examiner not found stained with blood‑‑Hatchet recovered at the instance of accused found stained with human blood but same being dubious because of the fact that recovery was effected after 18 days and no independent person was associated to witness the same, it could not be pressed into service in favour of prosecution‑‑Complainant admitting that Thanedar had obtained his 'thumb impression on his statement at spot after its inspection‑‑Such admission by complainant recoiling on prosecution. case‑‑Held, prosecution failed to prove its case beyond doubt‑‑Convictions and sentences set aside in circumstances.

(b) Penal Code (XLV of

1860)‑‑

‑‑‑Ss. 302, 148, 149 & 300, Exception 1 ‑‑Grave and sudden provocation‑‑Accused attacked deceased when later was dragging his sister from inside his house‑‑Accused, held, was not culpable for causing death of deceased.

(c) Penal Code (XLV of

1860)‑‑

‑‑‑S. 300, Exceptions 1 & 2 & Ss. 302, 148 & 149‑‑Right of private defence of body‑‑Grave and sudden provocation‑‑Accused, apprehending abduction of his sister by deceased, attacking deceased‑‑Deceased started running but accused caused him injuries while in flight‑‑Accused, held, not justified in pursuing deceased and inflicting injuries on him as accused by then had neither apprehension of abduction of his sister nor he had right of private defence‑‑Attempt on part of deceased to abduct sister of accused gave him grave and sudden provocation‑‑Offence of accused in causing death of deceased, held, would fall under S.304, Part I, Penal Code‑ Conviction altered from S. 302, P.P.C. to S.304, Part I, Penal Code, and sentence of death reduced to five years' imprisonment.

Abul Asim Jaffari for Appellants. M. Rafiq Butt for the State. Dates of hearing: 9th, 11th and 18th May, 1987.

JUDGEMENT

ABDUL WAHEED, J.‑‑Akbar Masih, aged 20 years, Iqbal Masih, aged 35 years, Mushtaq Masih, aged 28 years, Munawar Masih, aged 26 years and Mahmood Masih alias Moods Masih, aged 18 years all sons of Taiju Masih, were tried for forming an unlawful assembly armed with deadly weapons and in prosecution of the common object thereof committing the murder of Boota Masih, aged 18/19 years and his father namely Sohan Masih, aged 55/56 years, by the Addl. Sessions Judge, Faisalabad who vide his judgment dated 20th of June, 1983 convicted all of them under section 148, P.P.C. and sentenced each to suffer R.I. for two years. He further convicted all of them under section 302/149, P.P.C. and sentenced Akbar Masih and Iqbal Masih to death on two counts and the remaining three to imprisonment for life. All the five were also sentenced under section 302/149, P.P.C. to pay a fine of Rs.5,000 or in default to undergo R.I. for a further period of two years each. The sentences were ordered to run concurrently. It was directed that the fine, if realized, be paid to the legal heirs of the deceased as compensation.

2. All the five convicts have filed appeal through jail against their convictions and sentences. The trial Court also has submitted a reference under section 374, Cr.P.C. for confirmation of the sentence of death awarded to Akbar Masih and Iqbal Masih. This judgment shall dispose of the appeal as well as the reference.

3. The occurrence took place on 31st of May, 1981 at 5‑30 p.m. in the Abadi of Chak No.7/J. B. , about 11 kilometres away from Police Station Nishatabad, District Faisalabad. It was reported by Sadiq Masih P.W.7, brother of Sohan Masih deceased, purportedly at the Police Station on the same date at 6.30 p.m. vide F.I.R. Exh.P.N. It was recorded by S.I. Zaheer Babar P.W.8 who was then posted there as S.H.O.

4. The prosecution case as alleged in the F.I.R. Exh.P.N. was that on 31st of May, 1981 at 5.30 p.m. Boots Masih deceased after working at the brick kiln of one Haji Bashir was returning to his house followed at a distance of about 12/13 Karams by Sadiq Masih P.W.7, Waris Masih P.W.1 and George Masih (given up at the trial as unnecessary). When he reached near the Dera of Rehmat Jat, Iqbal Masih armed with a hatchet P.1, Akbar Masih and Mushtaq Masih armed with Datars P.2 and P.3 and Munawar Masih and Mahmood alias Mooda Masih armed with daggers P.4 and P.5, emerging from an ambush started abusing him and shouted a Lalkara that he should not escape. He ran for his safety in the house of Nazeer Masih. All the appellants chased him. Akbar Masih inflicted an injury on the left side of his chest by a Datar. Mushtaq Masih also caused him an injury with a Datar on his left hand. Iqbal Masih gave him a hatchet blow on his head. He fell to the ground. Then Munawar Masih and Mooda Masih gave him injuries with their daggers on his chest. He succumbed to the injuries at the spot. On hearing the noise, Sohan Masih deceased in order to save Boota deceased, his son, came running to the spot. The appellants on seeing him abused him also and shouted Lalkaras that he should not escape. Sohan Masih deceased started running. The appellants chased and overtook him in the lane nearby. Munawar Masih caused him an injury in his abdomen with a dagger. Iqbal Masih inflicted an injury on his right hand with a hatchet. Mushtaq Masih gave him an injury with a Datar on the back side of his head. He fell down. Then Akbar Masih inflicted a blow on him with a hatchet. The other appellants also caused him injuries with their respective weapons as a result of which he died at the spot. None of the eye‑witnesses went near the appellants out of fear. After the occurrence, all the appellants decamped with their respective weapons. Leaving the dead bodies in the custody of Waris Masih and George Masih, Sadiq P.W.7 proceeded to the Police Station to lodge the report.

5. S.I. Zaheer Babar P.W.8 after recording the F.I.R. proceeded to the spot and reaching there on the same date prepared injury statements Exh.P.O. and P.Q. and inquest report Exh.P.S and P.R. in respect of Sohan Masih and Boota Masih deceased respectively and despatched their dead bodies to the mortuary for post‑mortem examination. He collected blood‑stained earth from two different places and made it into two separate sealed parcels vide memo Exh . P. A . and P.B. On 6th of June, 1981, he got prepared site plan Exh.P.K. and its duplicate Exh.P.K./1 of the place of occurrence from Aurangzeb, draftsman (P.W.2). On 18th of June, 1981 he arrested Akbar Masih and Iqbal Masih. On the same date Iqbal Masih while in custody led to the recovery of blood‑stained hatchet EXh.P.1 from under the bedding of a cot lying inside his residential Kotha. It was taken into possession vide memo Exh.P.C. and made into a sealed parcel. Akbar Masih while in custody led to the recovery of blood‑stained Datar Exh.P.2 from an attache‑case lying in his Baithak. It was taken into possession vide memo Exh.P.D. and made into a sealed parcel. These recoveries were made in the presence of Sadiq Masih P.W.7 and George Mashih (not produced). He arrested Mushtaq Masih, Munawar Masih and Mooda Masih on 30th of June, 1981. On 4th of July, 1981, they while in custody separately got recovered from a Saim‑nala situtate in the area of Chak No.120/J.B. Datar Exh.P.3, Dagger Exh.P.5 and dagger Exh.P.4 respectively and the same were taken into possession and made into sealed parcels vide memo. Exhs.P.E. P.G. and P.F. These recoveries were made in the presence of Waris Masih P.W.1 and George Masih (given up).

6. Out of the weapons recovered in this case, only Datar P.2 and hatchet P.1 got recovered by Akbar Masih and lqbal Masih repectively were sent to the Chemical Examiner who vide his report

Ex.P.U. opined that only hatchet was stained with blood. The Serologist vide his report Exh . P . V . opined that the hatchet was stained with human blood.

7. After completion of the investigation as above, all the appellants were challaned.

8. On Ist of June, 1981 at 10.30 a.m. Dr. Bashir Hussain Kahlon (P.W.3), who was then posted as Senior Medical Officer at the D.H.Q. Hospital, Faisalabad conducted autopsy on the dead body of Boots. Masih deceased and found the following injuries:‑

(1) An incised wound 20 c.m. x 5 c.m. bone was cut. The brain was coming out from the left side of head and the wound was extended up to the middle forehead to the left side of head.

(2) An incised wound 20 c.m. x 3 c.m. on the middle of head extending from the right middle forehead to the back of head at its middle. Brain was coming out and the bone underneath was cut.

(3) An incised wound 6 c.m. x 1 c.m. x bone cut on the front of right side of head, just near the middle line.

(4) An incised wound 6 c.m. x c.m. x bone was cut transversely on the middle of right side of head.

(5) A stab wound 3 c.m. x 1/2 c.m. x going deep on the left clavical outer side.

(6) A stab wound 2 c.m. x 1 c.m. x going deep on the front of right upper chest 6 c.m. above at 2 o'clock position to the rigth niple.

(7) An incised wound 4 c.m. x 2 c.m. going deep on the front of left upper arm just above the left elbow.

(8) An incised wound 7 c.m. x 3 c.m. x bone was cut through and through on the back and inner side of left wrist.

(9) An incised wound 10 c.m. x 2 c.m. bone cut on the front of left hand extending to the base of left thumb.

In the opinion of the Medical Officer, the death of the deceased had occurred due to shock and haemorrhage as a result of injuries Nos.l to 4, 6 and 8 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem and had been caused by sharp‑edged weapon. The probable interval between the injuries and the death was immediate and between the death and the post‑mortem examination within about 20 hours. Exh.P.L. is the post‑mortem examination report and Exh.P.L/1 and P.L/2 are the diagrams showing the locale of the injuries.

9. On the same date at 11 a.m. the above Medical‑Officer performed post‑mortem examination on the dead body of Sohan Masih deceased and observed the following injuries:‑

(1) An incised wound 15 c.m. x 3 c.m. x bone cut on the left jaw.

(2) An incised wound 15 c.m. x 6 c.m. x bone deep on the back of left of

head.

(3) An incised wound 14 c.m. x 3 c.m. bone was cut through and through on the left side of neck at its front. The underneath survical vertebrae was cut through and through.

(4) An incised wound 8 c.m. x 2 cm. The larynx and trachea were cut through and through on the front of neck at its lower part.

(5) An incised wound 5 c.m. x 2 cm. The bone was cut on the right side of head, 3 c.m. above the right ear.

(6) An incised wound 12 c.m. x 6 c.m. x bone was cut at the top of right shoulder.

(7) An incised wound 3 c.m. x 1 c.m. muscle deep on the right shoulder.

(8) An incised wound 7 c.mx 3 c.m. x bone deep on the outer side of right upper arm.

(9) An incised wound 2 c.m. x 1 em. The bone was cut through and through on the back of right thumb.

(10) An incised wound 5 c.m. x 1 c.m. skin deep on the right hip at its upper arm.

(11) An incised wound 7 c.m. x 1/2 c.m. skin deep on the back of left lower chest.

(12) An incised wound 6 c.m. x 1 c.m. muscle deep on the back of neck

The death, in the opinion of the Medical Officer, had occurred due to shock and haemorrhage as a result of injuries Nos. 1 to 6 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem and had been caused by sharp‑edged weapon. The probable interval between the injuries and the death was immediate and between the death and the post‑mortem examination within about 20 hours, Exh.P.M. is the post‑mortem examination report and Exh.P.M./1 is the diagram showing the sites of. the injuries.

10. The appellants pleaded not guilty to the charge framed against them under sections 148 and 302/149, P.P.C. When examined under section 342, Cr.P.C. they denied the prosecution case and the recoveries attributed to them. Iqbal Masih, Mushtaq Masih, Munawar Masih and Mooda Masih said that they were not present at the spot at the time of occurrence and they had been falsely implicated in the case because of enmity with the P.Ws and relationship with Akbar Masih. Akbar Masih filed his written statement Exh.D.J. which runs as follows:‑

11. None of the appellants produced any oral evidence in support of the plea of innocence. Akbar Masih, however, tendered some documents in defence.

12. The prosecution in support of its case examined eight witnesses including three eye‑witnesses namely Waris Masih P.W.1, Ghani Masih P.W.6 and Sadiq Masih P.W.7. Sadiq Masih also deposed to the motive. Waris Masih P.W.1 and Sadiq Masih P.W.7, further testified to the recoveries effected in this case. The learned trial Court after appraisal of the evidence believed the prosecution case and convicted and sentenced all the appellants as mentioned above.

13. Learned counsel for the appellants who was engaged at State expense has assailed the convictions and sentences of the appellants contending that the evidence adduced by the prosecution does not inspire confidence and fails to bring home to the appellants their guilt beyond doubt.

14. According to the F. I. R. Exh.P.N., the motive for the attack was firstly that one year prior to the occurrence, Akbar Masih and Munawar Masih, appellants had assaulted one Siddiq Masih, and Boota Masih deceased became a prosecution witness in the case against them, secondly that Mst. Akhtar alias Guddi, sister of the appellants, was carrying on illicitly with Boota Masih deceased for 5 or 6 months prior to the occurrence and the appellants came to know of it and thirdly that 5 or 6 days prior to the occurrence, an altercation had taken place between Akbar Masih appellant and Boots. Masih deceased but Ch. Muhammad Akram P.W. (given up at the trial as having been won over) had intervened and separated them and Akbar Masih appellant had threatened that he would avenge his insult.

15. Sadiq Masih P.W.7 who lodged the F.I.R. gave up at the trial the motive of illicit relations between the sister of the appellants and Boota Masih deceased. He did not depose to it in his examination‑chief. In his cross‑examination, he denied that Boots. deceased had illicit relations with Mst. Akhtar alias

Guddi, sister of the appellants and he made

any such allegation in the F.I.R. Ex.P.N. with which he

was duly confronted. He clarified that there was no other

dispute between Boota Masih deceased and the appellants except the criminal case against Akbar Masih and Munawar Masih appellants in which Boota Masih deceased was a prosecution witness.

16. As regards the criminal case against Akbar Masih and Munawar Masih appellants for assaulting Siddiq Masih, the documents Ex.D.D to Exh.D.H. tendered in evidence by Akbar Masih appellant show that the case against Akbar Masih and Munawar Masih appellants for assaulting Siddiq Masih was under section 324/34, P.P.C. and though Boota Masih deceased was one of the prosecution witnesses therein, yet before his statement could be recorded the parties had compromised out of Court and in view thereof the trial Magistrate acquitted the accused vide his order dated 4th of August, 1980 i.e. more than nine months prior to the present occurrence. In these circumstances, the allegation that the appellants were feeling incensed against Boota Masih deceased on account of his having became a prosecution witness in the case against them loses its plausibility. Sadiq Masih P.W.7 deposed in his examination‑in‑chief that the appellants had asked Boota Masih deceased to refrain from appearing as P.W. against them but he appeared as a P.W. against them whereupon the appellants gave him threats that they would take revenge for his appearing as / a P.W. against them. However, while lodging the F.I.R. Exh.P.N. he did not make any such statement. Not only he did not make any such assertion in the F.I.R. but also his blatant lie in this behalf is) fully exposed by the documents Exhs. D.D. to D.H. filed by Akbarl Masih appellant. Therefore, this part of the motive is disproved.

17. The third motive according to F.I.R. Exh.P.N. was that 5 or 6 days prior to the occurrence, Akbar Masih appellant and Boota Masih deceased had quarrelled, Ch. Muhammad Akram of the village intervened and separated them and Akbar Masih appellant had E threatened to avenge his insult. This part of the motive also was not adhered to at the trial by Sadiq Masih P.W.7 who denied in his cross‑examination having made such allegation in the F.I.R. Exh.P.N. As pointed out above, Ch. Muhammad Akram who had allegedly intervened in the quarrel was given up at the trial as having been won over. Accordingly the third motive also disappears.

18. As mentioned above, Waris, Masih P.W.1, Ghani Masih P.W.6 and Sadiq Masih P.W.7 have furnished ocular account of the occurrence. Waris Masih P.W.1 is the nephew and Sadiq Masih P.W.7 is the brother of Sohan Masih deceased. Besides this relationship, they associated with Sohan Masih deceased in the commission of various offences. Sadiq Masih P.W.7 has admitted in his cross‑examination that he was undergoing sentence in a dacoity case, that he alongwith Waris Masih P.W.1 and Sohan Masih deceased was challaned under section 366/148/149, P.P.C., that they were challaned in a case under section 325/324, P.P.C., that he was challaned under section 13 of the Arms Ordinance, 1965 and under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, that he alongwith Sohan Masih deceased and others was challaned under section 302/307/148/149, P. P. C . and that he alongwith Waris Masih was challaned in a case of Haraba. Waris Masih P.W.1 also made somewhat similar admissions in his cross‑examination. In view of their criminal propensity and blemished record coupled with close relationship with the deceased, it is unsafe to give credence to their testimony without an unimpeachable independent corroboration.

19. Of course, Ghani Masih P.W.6 is not related to the deceased nor is he ascribed any animus against the appellants. Nevertheless, p one fact which militates against him is that he was not cited as an eye‑witness in the F.I.R. Exh.P.N.

Sadiq Masih P.W.7 was duly confronted in his cross‑examination with this discrepancy. Besides, Waris Masih P.W.1 also nowhere mention in his statement that Ghani Masih also saw the occurrence. Therefore, his statement by itself does not constitute an unimpeachable corroboration.

20. So far as the recoveries of weapons made in this case are concerned, Datar Exh.P.3, dagger Exh.P.4 and dagger Exh.P.5 allegedly got recovered by Mushtaq Masih, Mooda Masih and Munawar Masih respectively were not sent to the Chemical Examiner and the Serologist. Therefore, their recovery is of no avail to the prosecution. Datar Exh.P.2 allegedly got recovered by Akbar Masih was sent to the Chemical Examiner but it was not found stained with blood. So this recovery also is inconsequential. Hatchet P.1 allegedly recovered at the instance of Iqbal Masih was found stained with human blood by the Chemical Examiner and the Serologist. However, this recovery being dubious cannot be pressed into service in favour of the prosecution. The population of the village of the parties comprises 10,000 to 12,000 people, as admitted by Waris Masih P.W.1 in his cross‑examination. It is intriguing that no independent person was associated to witness the recovery. Besides, this recovery was effected 1, about 18 days after the occurrence. It is unbelievable that for so long this weapon was preserved in tact under the bedding of a cot inside the residential Kotha of the appellants. In these circumstances, this recovery too cannot be relied upon. Moreover, the testimony of Waris Masih P . W .1 and Sadiq Masih P . W . 7 regarding the recovery of weapons cannot be used to corroborate their own testimony relating to the occurrence.

21. Another fact which recoils on the prosecution case is the admission of Sadiq Masih P.W.7, the complainant, in his cross‑examination that the Thanedar had obtained his thumb impression G

on his statement (which is the F.I.R. Exh.P.N.) at the spot after its inspection.

22... In view of the above discussion it becomes manifest that the (H prosecution has failed to prove its case beyond doubt.

23. Now we are left with the statement Exh.D.J. in which Akbar Masih confessed that he and his brother Dilshad Masih with a hatchet and a Chhuri caused injuries to both the deceased on grave and sudden provocation and in self‑defence. As the prosecution has not been able to establish its case, the statement of Akbar Masih would under the law, have to be accepted in toto. Under section 96, P.P.C., nothing is an offence which is done in the exercise of the right of private defence. According to section 100 the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be, inter alia, an assault with the intention of kidnapping or abducting. Section 102 ibid provides that this right commences as ‑soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. According to Akbar Masih, he and his brother attacked Sohan Masih when he and Boota Masih were I dragging away their sister from inside the house. In view of the above provisions of law, therefore, Akbar Masih cannot be held culpable for causing the death of Sohan Masih.

24. So far as the death of Boota Masih is concerned, he on attack by Akbar Masih, appellant and his brother started running and he was caused injuries while in flight. Since Boota Masih had started running, the apprehension of abduction by him of the sister of Akbar Masih ceased and the right of private defence of the body discontinued. In these circumstances, Akbar Masih was not justified in pursuing Boots. Masih and inflicting more injures on him. Therefore, causing of death of Boots, Masih cannot to completely condoned. It appears from the statement of Akbar Masih that the attempt of Boots. Masih deceased and his father to abduct his sister had caused him grave and sudden provocation. In the circumstances, the offence of Akbar Masih in causing the death of Boots. Masih deceased would fall under section 304, Part I, P.P.C.

25. For the foregoing reasons, the convictions and sentences of Iqbal Masih, Mushtaq Masih, Munawar Masih and Mahmood Masih alias Mooda Masih under sections 148 and 302/149, P.P.C. are unsustainable. Accordingly in respect of these four appellants, we allow this appeal, set aside their convictions and sentences and acquit them. They shall be set at liberty forthwith if not required in any other case.

26. As regards Akbar Masih, appellant, his conviction and sentence under section 148, P.P.C. as also under section 302/149, P.P.C. for causing the death of Sohan Masih are set aside. However, for causing 1 the death of Boots. Masih deceased, his conviction under section 302/149, P.P.C. is altered to that under section 304, Part I, P.P.C.1 and the sentence awarded to him is reduced to R.I. for a period of five years and to pav a fine of Rs.2,000 or in default to undergo R.I. for a further period of one year. The fine, if realized shall be paid to the heirs of Boota Masih, deceased as compensation.

27. The sentence of death awarded to Akbar Masih and Iqbal Masih appellants is not confirmed.

M. Y. H./A‑107/L Appeal partly accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.

🔍 Find a Lawyer