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Criminal Appeal No.567 and Murder Reference No.213 of 1984, decided on 14th June, 1987.
---S.302--Two versions given of occurrence, one by prosecution and other by defence--Prosecution story revealing that accused and acquit ted co-accused armed with Rambi entered house of deceased and caused his death and injuries to his brother--Defence taking plea that while accused was working as .cobbler in front of his house, deceased alongwith others came duly armed with Sotas and attacked him who in self-defence gave blow' with hoe to deceased who fell down--Parties not coming out with whole truth and trying to minimise part played by them in occurrence--Complainant party suppressed injuries found on-person of accused in first information report and in statements recorded under S.161, Cr.P.C.---Explanation given by eye-witnesses about these injuries appearing to be highly improbable- Accused neither establishing right of self-defence nor same was spelt out from prosecution case and circumstances appearing therein--Kind of weapons, seat of injury, force with which blow was given and harm actually done under injury, indicating that accused had no other intention .but to kill deceased--Held, act of accused in causing death of deceased was rot fulfilling requirements of Exception (iv) to 5.300, Penal Code, and therefore, not culpable homicide not amounting to murder--Accused was guilty of murder punishable under S.302, Penal Code--Conviction of accused under 5.302, Penal Code, maintained in circumstances.
---SS.302/34--.Sentence--ACt of accused by killing deceased appearing to be somewhat provoked by incident of deceased and complainant going up their roof which was taken by accused as interference by accused with their privacy--Accused also received injuries during occurrence and gave only one blow with his Rambi to deceased--Mitigating circumstance, held, existed in favour of accused--Sentence of death was altered to imprisonment for life in circ4-instances.-- [Sentence]
---Ss.302/34--Appreciation of evidence--Incomplete tale told by parties, held, must not deter from drawing inferences that properly flow from evidence and circumstances and from ascertaining what actually happened at relevant time.
---Ss.302/34 & 300 Exception (iv)--Self-defence--Each party knowing and deliberately taking upon itself risk of encounter--No right of self-defence, held, would be available to any of parties and each of accused would be liable for his individual act.
---Ss.302/34--Trial Court, having advantage of observing age, state of health of accused as well as demeanour of eye-witnesses--Inter ference declined by High Court with order of acquittal by trial Court.
M.Y.Khan Daha for Appellant.
Pervaiz Alamgir for the State.
Ashiq Hussain Malik for the Complainant.
Date of hearing: 14th June, 1987.
--This Criminal Appeal No.567/84, connected Murder Reference No.213/84, Criminal Revision No.753/84 filed by Faqir Muhammad complainant for the enhancement of fine of Amanat Ali and conversion of the conviction of Niamat Ali appellant from Sections 323 P.P.C. to 302 P.P.C. (as prayed therein) and Criminal Revision No.82/85 filed by Farir Muhammad complainant against the acquittal of Nazir Ahmad arise from the judgment of learned Sessions Judge, Toba Tek Singh, whereby he on 1-1 1-1984, while acquitting Nazir Ahmad co-accused, convicted Amanat Ali (19/20) appellant under section 302 P.P.C. for the murder of Bashir Ahmad (35) and murderous assault on Faqir Muhammad P.W. and Niamat Ali co-accused under section 323 P.P.C. for causing hurt to Faqir Muhammad P.W. and sentenced them as under:-
| (1) Amanat Ali appellant u/s. 302/307 PPC. | (i) Under Section 302 P.P.C. to death and a fine of Rs.5,000 or in default thereof one year R.I. He was also convicted. |
| (ii) U/x.307 P.P.C. to 7 years' R.I. and a fine of Rs.2,500 or in default thereof 6 months' R.I. with the direction that the fine if recovered be paid to the legal heirs of the deceased. | |
| (2) Niamat Ali appellant u/s.323 P.P.C. to , six months' R.I. |
We propose to dispose of them through single judgment. It may be noted here that Niamat Ali has not filed appeal against his conviction.
2. The occurrence took place on 18-12-1982 at 4.00 p. m. in the house of Faqir Muhammad P.W.10 situated in Mohallah Muhammad Pura, Toba Tek Singh at a distance of 2 furlongs from Police Station Toba Tek Singh. FIR is statement Ex.PH of Faqir Muhammad P.W.10 recorded by Ch. -Mukhtar Ahmad MIC, .P.W.7 in Civil Hospital, 'Toba Tek Singh on the same day at 8.30 p.m. Formal FIR Ex.PE was drawn up at P.S. Toba Tek Singh on the same day at 9.00 p.m. by Nawab -Khan, M.H.C. P.W.2.
3. Amanat All and Niamat AU appellants are real brothers whereas Nazir Ahmad, acquitted accused is their father, Faqir Muhammad P.W.10 is brother of Bashir Ahmad deceased. Ghulam Shabbir Akhtar P.W.8 is brother-in-law of Faqir Muhammad P.W.10. The appellants used to live with their father in a house adjoining the house of the deceased and the complainant, and there was a common partition wall between the two houses:
4. The motive as alleged by the prosecution was that the common partition wall of the parties was a Katcha wall about 4 feet high. Faqir Muhammad P.W. wanted to demolish it in order to raise there a Pakka wall but the appellants and their father were not agreeable. Nazir Ahmad, acquitted accused filed a civil suit against Faqir Muhammad P.W., which was dismissed. Thereafter Faqir Muhammad filed a suit for damages against Nazir Ahmad, father of the appellants. On this the appellants and their father became annoyed.
The immediate cause of attack on the deceased and Faqir Muhammad P.W.10 was that just before the occurrence, Bashir Ahmad deceased and Faqir Muhammad went over the roof of their house and started placing branches of trees when the womenfolk of the appellants abused them, hence this occurrence.
5. After getting down from the roof of their house Bashir Ahmad deceased and Faqir Muhammad P.W. were sitting in their house when Amanat Ali appellant armed with cobblers hoes (Rambi), Nazir Ahmad, acquitted accused armed with cobblers hoes and Niamat Ali armed with Sota came, raised lalkara and trespassed into the house of the deceased. Amanat Ali inflicted injury with his hoes on the left side of the chest of Bashir Ahmad who fell down. Nazir Ahmad, acquitted accused inflicted injuries with his hoes on the chest and left elbow joint of Faqir Muhammad P.W., who also fell down. Niamat Ali then gave 5 sota blows to Faqir Muhammad P.W. The appellant and the CO-accused then ran away. The occurrence was seen by Faqir Muhammad P.W.10, Mukhtar All P.W.11, Beer Din and Younas (both not produced). Bashir Ahmad and Faqir Muhammad both in injured condition were removed to Civil Hospital, Toba Tek Singh where Bashir Ahmad succumbed to the .injuries on the same day at 5.45 p.m. Muhammad Sadiq ASI, P.W.12, on receiving Rukka Ex.PC from the hospital went there. He found Bashir Ahmad already dead and Faqir Muhammad lying in precarious condition. He vide application inquired from the doctor as to whether Faqir Muhammad was fit enough to make statements. The doctor opined in affirmative. Mulhammad Sadiq ASI, P.W.12 then approached the A.C., Toba Tek Singh for recording dying declaration of Faqir Muhammad. The A.C. marked the application to Ch. Mukhtar Ahmad, MIC, P.W.7, who accompanied the ASI to the hospital and recorded statement Ex.PH of Faqir Muhammad P.W. at 8.30 p.m. Faqir Muhammad produced his blood-stained shirt Ex.P8 and Bunian Ex.P9, which were taken into possession vide memo Ex.PN.
6. Dr.Faryad' Ali P.W.1 medically examined Faqir Muhammad P.W.10 and found following injuries on his person:-
(1) "An abrasion 6 x c.m. on right cheek, 5 c.m. to the lateral side of right eye.
(2) An abrasion 10 x c.m., 3 c.m. to the right of injury No.1.
(3) An incised wound 4 x 1.5 c.m. partially skin deep on the back of left forearm, 4 c.m. from the elbow joint.
(4) An abrasion x c.m. on the back of left hand at the middle of metacarpal bone.
(5) Multiple abrasions of different lengths situated in an area 4 x 1 c.m. in front of right knee joint.
(6) An incised wound 4 c.m. x 2 c.m. (depth not probed) situated in the mid line in the epigastric area 3 c.m. above the exphisternum. Corresponding cut was present on the shirt and vest."
Injuries Nos.3 and 6 were caused by sharp-edged weapon while the rest with, blunt weapon. All the injuries were found simple in nature.
On the sane day, the doctor examined Amanat All cc--accused and found following injuries on his person.
(1) "Lacerated wound 7 x 1 c. m. , bone deep situated on the top of skull at its mid point'.
(2) The patient complained pain in the left shoulder and in the abdomen.
(3) An abrasion 1 x 1 c. m. on the back of left middle finger 1 c.m. from the junction with the palm.
(4) A bruise 2 x 2 c. m. with the abrasion at its top on the lateral aspect of left thigh at the junction of upper 2/3 with lower 1/3.
(5) A bruise 3 x 1 c.m. with multiple abrasion at the anterolateral aspect of the left knee joint."
The injuries were simple in nature and were caused by blunt weapon. The doctor stated that Amanat Ali and Faqir Muhammad had come to the hospital at 4.30 p.m. and he had examined Amanat Ali appellant first and then Faqir Muhammad P.W. The doctor further stated that the injuries on the persons of Amanat Ali appellant and Faqir Muhammad P.W. were of the same duration.
7. Dr. Khalid Mehmood P.W.9 conducted post-mortem examination on the dead body of Bashir Ahmad on 19-12-1982 at 9.00 a.m. He found following injury:-
"An incised wound 6 x 3 c.m. on the lower end of the front side of left chest near abdomen, 10 c.m. below left nipple, opening into abdominal cavity by cutting 9th rib. Its direction was backwards, downwards and towards the right."
On internal examination, the doctor found peritonium and liver injured.. The abdominal cavity was full of blood, the stomach contained semi-digested food about 6 ounces in quantity and the bladder was full of urine.
In his opinion, the death was on account of shock and haemorrhage due to injury No.1, which was caused by sharp-edged weapon and was sufficient to cause death in the ordinary course of nature.
8. Amanat Ali appellant was arrested on 19-12-1982 by Muhammad Sadiq ASI, P.W.12. On 25-1.2--1982, he led to the recovery of blood stained Rambi (Cobblers hoes) Fx.P7 from his house, which was taken into possession vide memo Ex.PL attested by GLulam Shabbir P.W.9 and Muhammad Sadiq ASI, P.W.12. On the same day Nazir Ahmad got recovered blood-stained Rambi Ex.P5 from his house which was taken into possession vide memo Ex. PJ attested by the same witnesses. On the same day Niamat Ali got recovered sota Ex.P6 (not blood-stained) from his house which was taken into possession vide memo Ex.PK attested by the same witnesses. The Serologist Report Ex.PV reveals that the two Rambles recovered from Amanat Ali appellant and Nazir Ahmad, acquitted accused were stained with human blood.
9. To prove its case, prosecution produced 12 witnesses. Faqir Muhammad P.W.10 and Mukhtar Ali P.W.11 have given the ocular account of the occurrence. They ,have supported the prosecution version as stated above. They claim to have seen the appellants and Nazir Ahmad, acquitted accused opening attack and causing injuries to Bashir Ahmad (deceas6d) and Faqir Muhammad P.W. They stated that Amanat Ali had caused fatal injury with his Rambi to Bashir Ahmad (deceased); that Nazir Ahmad, acquitted accused had caused 2 injuries on the person of Faqir Muhammad with Rambi and that Niamat Ali had given sota blows on the person of Faqir Muhammad P.W. As for the injuries of Amanat Ali appellant, they stated that he received injuries at the hands of his brother Niamat Ali appellant at the time of occurrence. Faqir Muhammad P.W. also deposed about the alleged motive. Ghulam Shabbir P.W.8 and Muhammad Sadiq ASI, P.W.12 stated that Amanat Ali, Nazir Ahmad and Niamat Ali had got recovered blood-stained Rambles Ex.P7 and P5 and sota Ex.P6 respectively. Dr. Faryad' Ali P. W.1 has proved the medico-legal reports of Faqir Muhammad P.W. and Amanat Ali appellant. Dr.Khalid Mehmood P.W.7 has proved the post-mortem examination report of Bashir Ahmad deceased, The rest of the evidence is of formal nature.
10. When examined under section 342 Cr.P.C. Niamat Ali and Nazir Ahmad co-accused denied all the incriminating circumstances.. Nazir Ahmad, acquitted accused admitted that Faqir Muhammad P.W. wanted to demolish the intervening wall and existence of civil litigation between him and Faqir Muhammad P.W. Amanat Ali appellant admitted that on the eventful day at 4.00 p.m., the deceased and Faqir Muhammad P.W. had gone over the roof in order to place the branches and on seeing, them, their (accused) womenfolk had abused them. He also admitted his presence and participation in the occurrence. He, however, raised the plea of self-defence. In answer to question No.6, he stated:-
"When Faqir Muhammad and his brother Bashir went over the roof of their house and our womenfolk abused them, at that time I was working as a cobbler in the street in front of my house and both of them came and attacked me with their respective dandas. I in self-defence gave hoes blow to Bashir Ahmed and to Faqir Muhammad P.W. Faqir Muhammad P.W. then gave me a bite on my left thigh and snatched away the hoe from me. As Bashir Ahmed had fallen on the ground I picked his -sots and gave blows to Faqir Muhammad P.W. with it. Thereafter, I ran away to police post Toba Tek Singh."
In defence no witness was produced.
11. The learned trial Court came to the conclusion that it was a case of free fight having been triggered off by the incident of the complainant party's going up their roof, and as such, the appellants were liable for their individual act. The learned trial Court also observed that;
"Thus, in my opinion, brothers of both sides engaged each other and Nazir Ahmed accused, who is an aged person, was either present at the time of occurrence, or he did not play any effective role in it due to his old age and weak health but was arraigned as an accused in consonance with the general practice obtaining in our society."
So while giving him benefit of doubt, it acquitted Nazir Ahmed.
12. Learned counsel for the appellants contended that there is reasonable possibility of the plea of self-defence raised by Amanat Ali appellant, being true, inasmuch as, the motive lay with the deceased and Faqir Muhammad P.W. who were abused by the womenfolk of the appellants; that the eye-witnesses have given vague explanation of the injuries found on the person of Amanat Ali appellant; that the eye-witnesses have shifted the place of occurrence from street to their house and that the occurrence in fact took place in a manner as told by Amanat Ali appellant. Learned counsel for the State has supported the judgment .of the trial Court. Learned counsel for the petitioner in the connected revisions argued that the prosecution has not only proved its case punishable under section 302/307/34 P.P.C. against the appellants but also against Niamat Ali and Nazir Ahmed, acquitted accused. He maintained that .the eye-witnesses are reliable, the statements made by them do not suffer from infirmities such as material contradictions/ major discrepancies or dishonest improvements and that it was a case of pre-planned attack on the deceased and Faqir Muhammad P.W.
13. We have anxiously considered the arguments addressed by the learned counsel for the parties end have reviewed the entire evidence that has been produced by the prosecution, statements of the appellants and the acquitted accused recorded under section 342 Cr.P.C and the circumstances appearing in the case, very carefully. There is no dispute about the time of occurrence, presence of Bashir Ahmed (deceased); Faqir Muhammad complainant and Amanat Ali appellant at the time of occurrence; infliction of fatal blow with Rambi by Amanat Ali appellant to the deceased; civil litigation over the demolition of a wall intervening the houses of the parties and the incident of the complainant party going up their roof and hurling of abuses to them by the womenfolk of the appellant. There are, however, two versions of the occurrence. According to the prosecution, the appellants and Nazir Ahmed acquitted accused armed with Rambies and Sota entered into the house of Bashir Ahmed deceased and caused the death of Bashir Ahmed and injured Faqir Muhammad P.W. and that Niamat Ali co-accused caused injuries to his brother Amanat Ali appellant by mistake. The defence version of the occurrence told by Amanat Ali appellant was that while he was working as cobbler in the street in front of his house, Bashir Ahmed deceased and Faqir Muhammad complainant came there armed with sota and attacked him. He then in self-defence gave blow with hoe to the deceased who fell down. Faqir Muhammad complainant then snatched away hoe from him. He (Amanat Ali) then picked up sota and gave blows to Faqir Muhammad P.W. We have appreciated the evidence and surrounding circumstances in accordance with known principles of appreciation of evidence in cases of two versions. On our independent assessment of the evidence and circumstances, we find that the parties as usual have blamed each other for aggression. They have not told the whole truth and have tried to minimize the part played by them in the occurrence. The complainant party had suppressed the injuries found on Amanat Ali appellant in the FIR and in statements recorded under section 161 Cr.P.C. The explanation of the injury of Amanat Ali appellant given by the eye-witnesses at trial. that he had received 5 injuries at the hands of his brother Niamat Ali accidentally, seems to be highly improbable. Niamat Ali could inflict one injury by mistake but not 5 injuries. On the other hand, the claim of Amanat Ali that he alone caused the death of Bashir Ahmed and inflicted 6 injuries to Faqir Muhammad P.W. appears as false. The nature and number of the injuries found on the person of Faqir Muhammad clearly show that at least two persons, one armed with sharp-edged weapon and the other with blunt weapon had injured him. The statements of the eye-witnesses, however, cannot be thrown out in the circumstances of case. The incompleteness of the tale told by the parties must not deter the Court from drawing inferences that properly flow from the evidence and circumstances and from ascertaining what actually happened at the eventful time. In view of the peculiar circumstances that there was dispute over demolishing the partition wall of the houses of the parties which led to civil litigation between them; that immediately before the occurrence the deceased and Faqir Muhammad complainant had gone over the roof of their house to place branches of trees which was' taken by the appellants as interference with their privacy. The womenfolk of the appellants abused them which would have also provoked them; that Bashir Ahmed on the side of the complainant lost his life and Faqir Muhammad P.W. received injuries; that Amanat Ali appellant was also injured in the occurrence; that the deceased party received 7 injuries out of which 3 were caused with sharp-edged and 2 with blunt weapon and that Amanat Ali received 5 simple injuries including complaint of pain on the left shoulder, one abrasion and 2 bruises, all with blunt weapon, it would; perfectly safe to conclude, and legitimate to infer that immediately after the occurrence, the complainant and the deceased going up their roof, the parties armed themselves with whatever was available to them and came out of their houses to fight with each other. The state of relations between the parties was such that a trivial incident could bring them into an armed conflict and it was during this mutual fight that Bashir Ahmad lost his life, Faqir Muhammad P.W., an Amanat Ali appellant received injuries. We feel that in entering upon the conflict each party knowingly and deliberately took upon itself the risk of encounter and as such, no right of self-defence was available to either party and each of the appellants would be liable for his individual act. Neither the plea of right of self-defence has been established by the appellants nor the same is spelt out from the prosecution case and the circumstances appearing therein. The natural and number of the injuries suffered by the deceased and the complainant show that at least 2 persons on the side of the appellant had participated in the occurrence. Since the trial Court had the advantage of observing the age and state of health of Nazir Ahmed co-accused as well as the demeanour of the eye-witnesses; therefore, we do not see any justification to disagree with the reasons given t the trial Court for his acquittal.
14. This brings us to the question of criminal liability of the appellant namely Amanat Ali. According to the eye-witnesses as well as the defence Amanat Ali appellant was solely responsible for the death of Bashir Ahmad. The kind of weapon, seat of injury, the force with which the blow was given and the harm actually don under the injury, indicate that Amanat Ali had no other intention but to kill the deceased. We are of the opinion that the offence committed by Amanat Ali appellant is not culpable homicide not amounting to murder because his act of causing death of Bashir Ahmad, does not fulfil the requirements of exception (iv) to Secti on 300 P.P.C. So, relying on case 'Gadai Khan: v. Abdul Rehman and others' reported as 1972 S C MR 676, in which the responsible for causing death of the deceased although in a free fight mutual fight was punished under section 302 P.P.C. We hold Amanat Ali guilty of murder punishable under section 302 PPC. Since according to the prosecution, the sharp-edged injuries found on Faqir Muhammad P.W. were not caused by Amanat Ali, therefore, his conviction and sentence under section 307 P.P.C. is not sustainable. For all these reasons we are convinced that the trial Court has rightly convicted Amanat Ali under section 302 P.P.C. for the murder of Bashir Ahmad.
15. As for the question of sentence of Amanat Ali appellant, we have considered this question with utmost care bearing in mind the circumstances surrounding his guilt. We find that there are mitigating circumstances in his favour for lesser penalty, inasmuch as, his act F of killing the deceased appears to be somewhat provoked by the incident of the deceased and the complainant going up their roof which was taken by the appellant as interference with their privacy; that Amanat Ali appellant also received injuries during the occurrence and that he gave one blow with Rambi to the deceased.
The upshot of the above discussion is that while maintaining the conviction of Amanat Ali appellant under section 302 P.P.C., the death sentence is altered to imprisonment for life. The fine awarded by the trial Court and the sentence in lieu thereof and direction for payment to the legal heirs of the deceased are maintained. The conviction of Amanat Ali appellant under section 307 P.P.C. is set aside and he is acquitted of this charge. Resultantly the connected revisions are dismissed.
Death sentence reduced to life imprisonment.
M.Y.H./A-179/L Appeal partly accepted.
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