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Criminal Appeal No.603 and Murder Reference No. 206 of 1986, decided on 24th January, 1987.
---Ss.302, 324 & 325/34--Motive--Quarrel between children of parties a day earlier--Parties agreeing on intervention of respectables, not to go to the land of the other party--Accused party violating agreement on morning of the day of occurrence--Wife of deceased taking exception to it and exchanging dialogues with accused--No respectable of village produced to prove said agreement--No body present at time of quarrel between children or dialogue of accused with witness--No mention of all these facts found in her statement before police--Witnesses contradicting each other as to the venue of gathering of respectables--- Motive alleged by prosecution, held, was not substantiated in circumstances.
---Ss.302, 324 & 325/34--Two versions in juxtaposition--Plea of right of private defence--Place of occurrence an open space used by accused as courtyard falling on thoroughfare leading to house of deceased--- Accused party receiving as many as 19 injuries with blunt and sharp edged weapons, some injuries being on vital parts--Prosecution version of snatching Sotas from accused and causing injuries to accused found not ringing true--Witnesses suppressing and denying causing of injuries to accused--F.I.R. contradicting complainant as to causing of injuries to accused party--Witnesses admitting of accused party going to hospital in injured condition--Two witnesses stating to have caused one injury each to two accused after snatching Sotas from them--Accused party suffered 19 injuries at the hands of complainant party by blunt and sharp-edged weapons--Complainant party having only blunt weapon injuries--Mother of accused aged 70 years also injured in occurrence--Witnesses found trying to minimise their role- Incised and lacerated wounds on accused persons suggesting complainant party to be armed with sharp and blunt weapons Accused admittedly armed with blunt weapons only--Two of accused not present at the time of starting of occurrence and joining other accused later-- Plea of accused, held, was reasonably possible and in view of nature and location of injuries on persons of accused, they could apprehend danger to their lives or at least grievous hurt--Right of private defence was, therefore, not exceeded--Accused acquitted in circumstances.
Ali Ahmad Malik and Ch. Waseem Ullah Khan Sherwani for Appellant.
Shah Nawaz Khan for the State.
M. Aslam Awan for the Complainant.
Dates of hearing: 19th, 20th and 24th January, 1987.
--Faqir Sain, Inayat Ullah, ' son of Lal Din, and Nazir son of Jalal Din, caste Awan residents of village Virk, Police Station Phiilaura, District Sialkot, were tried by the learned Additional Sessions Judge, Sialkot, on the allegations that on 1st October 1983 at about 10 a. m. they committed the murder of Bashir deceased and caused grievous hurt to Inayat Ullah. Muhammad Siddiq and Muhammad Rafiq P. Ws. in village Virk. By judgment dated 23rd October 1984, they were convicted under sections 302, 325 and 324 read with section 34, P.P. C. Under section 302/34, P.P. C. each of them was sentenced to death subject to confirmation by this Court and a fine of Rs.10,000/- or in default in the payment thereof to undergo further rigorous imprisonment for two years. Under section 325/34, P.P.C. they were sentenced to R.I. for four years and a fine of Rs.500/- each or in default in the payment thereof to undergo further R.I. for two months each and under section 324/34, P.P.C. they were awarded R.I. for one year each and a fine of Rs.200/ each or in default of its payment to undergo further R.I. for one month each. The convicts have appealed and the learned Additional Sessions Judge has submitted the reference under section 374, Cr.P. C. for confirmation of their death sentence. Both these matters shall be disposed of by this judgment.
2. The F.I.R. version is that on 1st October 1983 at about 10 a.m. Inayat Ullah, complainant and his brother Bashir deceased were going to their house in order to have the morning meals. Bashir deceased was ahead of Inayat Ullah complainant. When he reached near the house of Faqir Sain accused, the latter blocked his way and asked him why he had come to that side. The deceased tried to pass on, but Faqir Sain accused shouted to his companions that Bashir should not be spared. Simultaneously he gave a Sota blow. on the head of Bashir deceased, as a result of which he fell down. In the meantime, Inayat Ullah and Nazir accused armed with Sotas also came there from the house of Faqir Sain and gave one Sota blow each on the head of Bashir deceased. Inayat Ullah complainant stopped forward to rescue him, but Nazir and Inayat U11ah accused gave him Sota blows on his head and arms. Faqir Sain continued giving blows to the deceased. On hearing the alarm, Mst. Hamidan, wife of Bashir deceased, Muhammad Rafiq and Muhammad Siddiq reached the spot and tried to rescue the injured. Muhammad Rafiq and Muhammad Siddiq snatched the Sotas from the accused persons. They caused injuries to Faqir Sain, Inayat Ullah and Nazir accused and rescued the injured from them. Later on, they took the complainant and Bashir to Rural Health Centre Chawinda, where Bashir succumbed to his injuries.
The motive alleged by the prosecution was that a day prior to the occurrence there was a quarrel between the children of the parties. The respectables intervened and it was agreed between the parties that Faqir Sain would not go towards the 'banna' of the complainant party nor the complainant party would go towards the 'banna' of Faqir Sain. However, on the morning of the day of occurrence Faqir Sain passed the tube-well water from the land of Bashir deceased in violation of the agreement, to which Mst. Hameedan took exception. Faqir Sain got enraged, stopped the tube-well and left for the village.
3. On receiving information about the ded1h of Muhammad Bashir, Ejaz Ahmad, A.S.I. went to Rural Health Centre, Chawinda. He found the dead body in the verandah of the hospital. Inayat Ullah complainant was also there in an injured condition. The A.S.I. recorded his statement Ex.PU at 10 p.m. on the basis of which formal F.I.R. (Ex. PU/1) was recorded at the police station at 10.45 p.m. The A.S.I. then recorded the statements of the remaining eye-witnesses who were also present in the hospital. Thereafter he prepared the inquest-report (Ex.PZ) of the dead body and despatched it to the mortuary for post-mortem examination. All the three accused were present in the same hospital in injured condition. The A.S.I. arrested them. On the following morning he visited the place of occurrence and secured some blood-stained earth vide memo Ex.PV. On 11th October 1983 Faqir Sain, Inayat Ullah and Nazir accused led to the recovery of Sotas Exs. P.2, P.3 and P.4, which were taken into possession vide memo. Exs. PW, PX and PY, respectively. After the investigation, the accused persons were challaned.
4. On 1st October 1983 at 8 p. m. Dr. Khurshid Ahmad Qureshi, Medical Officer, Rural Health Centre, Chawinda, examined Muhammad Bashir deceased, when alive, and found the following injuries on his person: --
(1) Lacerated wound 11" x I" x skin deep with swelling 2" x 1" on the right parietal area.
(2) Swelling 3" x 2" on the top of the parietal area of the head.
(3) Abrasion with swelling 3/4" x 3/4" on the left side of the forehead.
(4) Abrasion 1/1-8" x 1" on the left side of the left eye.
(5) Lacerated wound x on the left external ear outer aspect. Muhammad Bashir was unconscious and his general condition was very serious. He succumbed to his injuries just after the medical examination.
On 2nd October 1983 Dr. Muhammad Abbas Qari, Medical Officer, D.H.Q. Hospital, Pasrur, conducted the autopsy on the dead body of Muhammad Bashir deceased and found the following injuries on it: --
(1) Two stitoled wounds 1 x swelling 2" x 1" on right parietal area.
(2) Swelling 3" x 2" on top of the skull.
(3) Abrasion with swelling 3/4" x 3/4" on left side of forehead.
(4) Abrasion x 1" on left side of the left eye.
(5) Lacerated wound x 1/8" on the left external ear outer aspect.
(6) Abraded contusion 1 x 1" on left scapular area.
Under injury No.l there was lainear fracture, 10 cm long, of right parietal bone extending from midline to lateral side. In the opinion of the doctor, death was due to compression of brain resulting from fracture of right parietal bone.
On 1-10-1983 Dr. Khurshid Ahmad Qureshi, Medical Officer, examined Inayat Ullah complainant and found the following injuries on his person--
(1) Lacerated wound 1 x; x muscle deep on the left occipite parietal area of the head.
(2) Lacerated wound 1 x x muscle deep on the left occipital area of the head.
(3) Swelling with deformity in the middle of the right forearm. Abnormal movement was positive. Swelling was painful and tender.
(4) Swelling just above the left wrist, painful and tender of them left forearm.
(5) Lacerated wound 1/3 x on the medical aspect of the rights wrist joint.
Injuries No.3 and 4 were grievous and rest were simple. All the injuries were caused by blunt weapon.
On the same day the same doctor examined Muhammad Siddiq P.W. and found the following injuries on his person: --
(1) Lacerated wound 2 x x muscle deep on the left side of the head in the anterior part.
(2) Lacerated wound 2 "x " x muscle deep on the left side in the anterior part, 1" apart from injury No.l.
(3) Injuries No.l and 2 were lying on a swelling which is 3" x 3" in size.
(4) Swelling on the dorsal aspect of the right forearm in the middle part.
All the injuries were declared simple in nature and had been caused by blunt weapon.
Muhammad Rafiq P. W. was also examined on the same day by the same doctor who found an abrasion on the left side of the forehead and another abrasion on the whole anterior aspect of the nose Injuries were kept under observation and had been caused by blunt weapon.
Mst. Hamida Bibi, wife of Muhammad Bashir deceased, was also examined on the same day. The following injuries were found on her person--
(1) Lacerated wound 3/4" x; " skin deep on the vertex of the head.
(2) Contusion 3" x 1" on the left side of the back of chest in the middle part.
(3) Contusion 4" x 1" on the lower part of the back of the chest on the right side.
(4) Abrasion 2 " x " on the middle of the back of the trunk.
(5) Contusion 3" x 1" on the outer aspect of the middle of right upper arm.
(6) Contusion 3" x 1" on the anterior and outer aspect of the middle of the right thigh.
Injury No.2 was kept under observation, rest were simple and had been caused by blunt weapon:
On the same day at 7 p. m. the same doctor examined Faqir Sain accused and found the following injuries on his person--
(1) Incised wound 3" x x bone deep on the left side of the head in the posterior part.
(2) Incised wound 1-1/6" x " x bone deep on the anterior part of the right side of the head.
(3) Abrasion x " on the posterior aspect of the left elbow side.
(4) Contusion 3" x 1" on the posterior aspect of the left elbow joint.
(5) Contusion 5" x 1" on the dorsal and medial aspect of the left forearm.
(6) Swelling 2" x 1 " on the dorsal aspect of the right hand. ,
(7) Swelling 1" x " on the left temple.
(8) Contusion 5" x 1" on the posterior aspect of the middle of the right chest.
(9) Contusion 5" x 1" on the posterior aspect of the middle part of the left chest.
Injuries No.l, 2, 6 and 7 were kept under observation. Injuries No-1 and 2 were caused by sharp-edged weapon and the rest with blunt weapon.
On the same day at 7.15 p. m. the same doctor examined Nazir accused and found the following injuries on his person: --
(1) Lacerated wound 3 x x bone deep on parietal area of the head.
(2) Contusion 3" x 1" on posterior aspect of the upper part of the left chest.
(3) Contusion 10" x 1" on the posterior aspect of the left chest in the middle part and upper part 1 " apart from injury No.2.
(4) Contusion 2 x 3/4" on the anterior aspect of the right shoulder.
All the injuries were caused by blunt weapon. Injury No.l was kept under observation. The rest were simple in nature. Later on injury No.l was declared simple.
Inayat Ullah accused was also examined on the same day at 9-30 p.m. and following injuries were found on his person--
(1) Lacerated wound 3" x " muscle deep on the occipital area of the head.
(2) Lacerated wound 2 x " x muscle deep on the occipital area of head. 1/3" to " apart from injury No.l.
(3)Contusion 3" x 1" on the upper and the outer aspect of the left shoulder.
All the injuries were caused by blunt weapon. Injuries No.l and -2 were kept under observation and No.3 was simple in nature. Later on injuries No.l and 2 were declared simple.
On the same day the same doctor examined Barkat Bibi (mother of Faqir Sain and Inayat Ullah accused) at 9.20 p. m. and found the following injuries on her person--
(1) Lacerated wound 1" x 1/6" on the vertex of the head.
(2) Diffused swelling 3" x 2" on the left chest.
(3) Abrasion 1" x on the dorsal surface in the middle part of right forearm.
All the injuries were caused by blunt weapon, injuries No.l and 2 were kept under observation and rest were simple.
5. In support of its case the prosecution examined three eye witnesses, namely, Inayat Ullah complainant, Muhammad Rafiq and Mst. Hameedan Bibi. The prosecution also relied on the evidence relating to the recovery of Sotas at the instance of the accused.
6. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Faqir Sain appellant stated that the quarrel between the children had taken place on the very day of occurrence .at about Chhahwela, and not one day prior to the occurrence, as alleged by the prosecution. When asked why this case against Ifim, he made the following statement:--
"The fact of the matter is that on the day of occurrence at about Chhahwela a younger daughter of Bashir deceased and two younger children of Faqir Sain accused while playing had quarrelled with each other. On this Mst. Hameedan wife of the deceased had started giving abuses to Mst. Iqbal the wife of Faqir Sain and Mst. Barkat Bibi the mother of Faqir Sain. The latter had also paid in the same coins and in addition Mst. Iqbal Bibi had given three or four fist blows to Mst. Hameedan. Mst. Hameedan went to the field where she informed her husband Bashir deceased and lnayat P.W. about the ex change of abuses belabouring and the insult held by her. Resultantly Bashir (deceased) armed with a hatchet, Enayat and Siddiq P.Ws. armed with Sotas trespassed into my house with an intention to do away with our lives. Enayat inflicted a Sota blow on the head of my mother Mst. Barkat Bibi when she was present in the courtyard. I hurriedly stepped forward to rescue my mother but I was given two injuries on my head by Bashir (deceased) with the sharp side of his hatchet. In the meantime my brother Enayat Ullah and Nazir who were present inside the room took Sota from there and reached the spot to rescue my mother Mst. Barkat Bibi from Bashir deceased and his companions in order to save our lives, Bashir deceased and others were the aggressors. My brother Enayat and Nazir assaulted Bashir deceased and his aforesaid companions in the exercise of the right of private defence of my person as well as of Mst. Barkat Bibi and also of their own. Mst. Hameedan and Muhammad Rafiq P.Ws. got their medico legal reports under some fabricated injuries. The Investigating Officer after connivance with the complainant party had refused to register any case from our side against Bashir deceased and others in spite of my repeated verbal and written requests even to the higher authorities."
The other appellant also adopted the same statement. Mst. Barkat Bibi, mother of Faqir Sain and Inayat Ullah appellants, appeared in defence and supported the version pleaded by the appellants.
7. After examining the evidence on the record, the learned Trial Judge rejected the defence version and relying on the prosecution evidence convicted and sentenced the appellants as mentioned above.
8. Learned counsel for the appellants contended that the motive alleged by the prosecution has not been substantiated, the eye witnesses have suppressed the injuries of the appellants as also of Mst. Barkat Bibi and made material improvements at the Trial in order to bring their statements in line with the medical evidence, therefore, they are unworthy of credence. He further argued that the circumstances were consistent with the assumption that the appellants had acted in exercise of the right of self-defence. Learned counsel for the complainant and the State, however, supported the impugned judgment.
9. The motive alleged by the prosecution was that a day prior to the occurrence a quarrel took place between the children of the parties but the respectables intervened and it was agreed that neither party would go towards the 'Banns'/land of the opposite party, but in violation of the said agreement Faqir Sain appellant passed the tube-well water from the land of the deceased on the morning of the day of occurrence to which Mst. Hameedan Bibi took exception whereupon Faqir Sain got annoyed and left for the village after stopping the tube-well. No respectable was examined by the prosecution) to prove the version that the alleged earlier incident had ended in an agreement that neither party would go towards the Banns/land on the other. Mst. Hameedan Bibi P.W. admitted that no male person of the complainant party was present when the quarrel took place between the children of the parties and none else was there when she had a dialogue with Faqir Sain at the tube-well. She was confronted wit her statement before the police where the quarrel between the children, intervention of respectables, dialogues with Faqir Sain and hi departure for his house in the village after stopping the tube-well find no mention. She further stated that the respectables had gathered at the house of Ghulam Nabi Sulehria of their own and were no called by any of the parties. The statement of Inayat Ullah P.W. however, gives the impression that the respectables had gathered at the house of the complainant party. Mst. Hameedan admitted that she had not participated in the said meeting of the respectables. Aforesaid Ghulam Nabi Sulehria was also not examined. In the circumstances, the motive alleged by the prosecution remains unsubstantiated.
10. There are two versions of the occurrence, one narrrated by the prosecution and the other by the defence. The only question to be determined in this case is as to which version is plausible. Point 'A' in the site plan indicates the place from where the blood-stained earth was taken. This point falls on a thorough fare which leads to the house of Bashir deceased after passing by the houses of Faqir Sain and Inayat Ullah appellants. The draftsman stated that the place of occurrence is an open space used as a courtyard by the accused. The case of the prosecution is that Bashir deceased alongwith his brother Inayat Ullah complainant was going towards his house when Faqir Sain blocked his way and opened the attack by giving a blow on his head after raising a Lalkara. The defence version is that Bashir deceased armed with a hatchet and Inayat Ullah and Muhammad Siddiq armed with Sotas trespassed into the house of the deceased persons and launched attack by giving a blow on the head of Mst. Barkat Bibi, mother of Faqir Sain. The presence of injuries on the members of the accused party clearly suggest that the deceased and his companions were not mere wayfarers as alleged by the prosecution. Faqir Sain appellant had nine injuries on his person, out of which two were incised wounds caused by sharp-edged weapon. These two incised wounds on the head and injuries No.6 and 7 on the right hand and left temple, respectively, were kept under observation. The final result of these injuries is, however, not available. Nazir Ahmad appellant had four injuries. He was also advised X-ray of skull. The injury was later on declared simple. Inayat Ullah accused had three injuries, out of which two on the head were also kept under observation and later on declared simple. Mst. Barkat Bibi, mother of Faqir Sain and Inayat Ullah appellants, had three injuries, out of which one was on the head. The members of the accused party thus suffered nineteen injuries at the hands of the complainant party by blunt and sharp-edged weapons. The F.I.R. version that Muhammad Rafiq and Muhammad Siddiq snatched the Sotas from the accused and caused injuries to them (Faqir Sain, Nazir and Inayat Ullah) does not ring true because there were two incised wounds on Faqir Sain appellant which could not be caused by a blunt weapon like Sota.
At this stage it may be mentioned that Inayat Ullah complainant and Mst. Hameedan Bibi suppressed the injuries of the accused. At the trial Inayat Ullah complainant stated that. he, Bashir deceased, Muhammad Siddiq and Muhammad Rafiq P.Ws did not give any blow to the accused persons. He denied having stated in the F.I.R. that Muhammad Rafiq and Muhammad Siddiq gave Sota blows to all the three accused. He was confronted with the F.I.R. where it was so recorded. He also did not explain the injuries of Mst. Barkat Bibi, mother of Faqir Sain appellant. He stated that he did not know if she suffered any injury. However, towards the end of cross-examination that the accused persons and Mst. Barkat Bibi had gone he admitted to the hospital as they had also suffered injuries. He is an unreliable witness. On the one hand he admitted that the accused and Mst. Barkat Bibi had also suffered injuries and, on the other, he depose that he or his companions did not cause any injury to any of the accused. He has tried to minimise the role played by the complainant party in the occurrence.
Mst. Hameedan Bibi P.W. did not make mention of the injuries of the accused. She, however stated that Rafiq and Siddiq P.Ws. tried to rescue Bashir deceased. In cross-examination she stated that Sashir deceased, Inayat Ullah complainant, Rafiq and Siddiq P.Ws were empty-handed and Muhammad Rafiq and Muhammad Siddiq snatched dangs from Nazir and Inayat Ullah accused when they were giving blows to Inayat Ullah complainant. She did not state that the P.Ws. had caused injuries to the accused persons although according to her Muhammad Rafiq and Muhammad Siddiq P.Ws had snatched the dangs from Nazir and Inayat Ullah accused. She also tried to minimise the role of the complainant party.
Muhammad Rafiq (PW.7) stated that he snatched the Sota from Inayat Ullah accused and gave only one Sota blow to him with a view to harass him and likewise Muhammad Siddiq also inflicted only one blow to Nazir accused with the Sota snatched from him. The medico- legal report of Nazir Ahmad shows that he had four injuries on his person. Injury No.l was on the parietal regions. It was kept under observation. Inayat Ullah accused had three injuries, out of which two were on the head and were kept under observation. It is evident that Muhammad Rafiq P.W. also made an attempt to minimise his own role as well as of Muhammad Siddiq P.W.
11. The incised and lacerated wounds on the accused persons clearly the members of the complainant party were armed with suggest that blunt and sharp-edged weapons. If the accused party had attacked' the complainant party in pursuance of a pre-arranged plan they would have armed themselves with more effective weapons. The injuries on the complainant party, however, indicate that their assailants were armed only with blunt weapons. Admittedly, the occurrence took place near the house of the accused. According to the draftsman, the place where the occurrence took place, was used as courtyard by the accused. The injuries on Mst. Barkat Bibi, mother of Inayat Sain, further suggest that the occurrence took place in the house of the accused. In the medico-legal report her age is mentioned as seventy years. If the accused had come out to attack the complainant party, they would not have taken along this aged lady to the arena.
12. Furthermore, if the accused party had any aggressive design, then all the three accused would have been present in the street in the very beginning to launch the attack. According to the F.I.R., Nazir and Inayat Ullah had come to the spot from the house of Faqir Sain after he (Faqir Sain) had already delivered a blow to Bashir deceased. At the trial Muhammad Rafiq P.W., stated that on hearing the alarm he rushed to the spot and within his view Faqir Sain gave a Sota blow on the head of the deceased. He further stated that when he reached the spot Nazir and Inayat accused also came there from the house of Faqir Sain accused. The prosecution evidence thus, shows that Inayat Ullah and Nazir were not present with Faqir Sain when the occurrence started. They had come to the spot later on. This position seems in consonance with the plea of Faqir Sain the Nazir and Inayat Ullah were attracted to the spot on his alarm. Had they come to the house of Faqir Sain with intent to commit aggression, they would have been with him from the very beginning. After juxtaposing both the versions in the light of evidence on the record, we are of the view that the plea raised by Faqir Sain appellant is reasonably possible. Faqir Sain suffered nine injuries, out of which two were incised wounds on the head. Inayat Ullah, Nazir accused and Mst. Barkat Bibi also suffered injuries on their heads. The accused could reasonably apprehend that death or at least grievous hurt would be the consequence of the assault on them if the attack was not repelled. In the circumstances, it cannot be said that they had exceeded the right of their private defence.
13. For the foregoing reasons, we allow this appeal, set aside the conviction and sentence of the appellants and acquit them of the charges. They shall be set at liberty forthwith if not required to be detained in any other case. Their death sentences are not confirmed.
S. A. /F-24/L Appeal accepted.
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