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Criminal Appeal No. 498 and Murder Reference No. 139‑L of 1983, decided on 9th December, 1986.
‑‑‑S. 302/34‑‑Ocular evidence, appreciation of‑‑Deceased admittedly, person of questionable character involved in number of criminal cases‑ Witnesses closely related to deceased and inimical to accused having chequered career of being involved in different crimes‑‑Both eye witnesses not residing in Mohallah where occurrence took place‑ Complainant giving no reason of his presence at place of occurrence‑‑No occasion for witness to have gone after deceased‑‑Presence of second witness at spot, also doubtful‑‑Testimonies of witnesses contradictory to material points‑‑Statements of witnesses contradicted by medical evidence‑‑Evidence of witnesses not inspiring confidence‑‑No corroboration coming forth from evidence of recoveries‑‑Prosecution story, held, was improbable, full of doubts and not worth reliance in circumstances.
‑‑‑Ss. 302/34 & 304, Part I‑‑Self‑defence, plea of‑‑Prosecution story disbelieved‑‑ Defence version examined‑‑Accused claiming to have caused injuries to deceased after disarming him‑‑Number of injuries on person of deceased, held, clearly proved exceeding of right of private defence‑‑Conviction of accused claiming right of self‑defence altered to one under S. 304, Part I, P.P.C.‑‑[Private defence, right of.]
Muhammad Inamul Haq for Appellants.
Pervaiz Alamgir for the State.
Date of hearing: 9th December, 1986.
‑‑Muhammad Shafiq, aged 23 years, his brother Muhammad Saleem, aged 19 years and Shamsher, aged 25 years were tried by Sessions Judge, Faisalabad, for having murdered Muhammad Ramzan at 1 p.m. on 10‑10‑1981, near Mahal Cinema, Mohallah Tariq Abad, at a distance of two miles from Police Station, Civil Lines, Faisalabad.
2. The learned trial Judge vide order, dated 5‑7‑1983 found them guilty under section 302/34, P.P.C. and sentenced them as under:‑
(1) Shamsher and Muhammad Saleem have been sentenced to death, plus a fine of Rs.500 each, in default whereof to undergo R.I. for six months. They have also been directed to pay Rs.5,000 each as compensation to the heirs of the deceased, in default whereof to undergo R.I. for three years each.
(2) Muhammad Shafiq has been sentenced to imprisonment for life plus a fine of Rs.500, in default whereof to undergo R.I. for six months. He has been directed to pay a sum of Rs.5,000 as compensation to the heirs of the deceased, in default whereof to undergo R.I. for three years.
3. F.I.R. (Exh. P.E.) was recorded at the police station on the same day at 2‑30 p.m. on the statement of Muhammad Akram (P.W.6), by Muhammad Zaman, S.I. (P.W.9).
According to the F.I.R., Muhammad Akram complainant had gone to meet his maternal uncle Chanan (father of the deceased) in Mohallah Tariq Abad, at about 12 noon. He met Chanan at the latter's vegetable shop in street No. 10. A shortwhile later, the deceased arrived there. Complainant and the deceased exchanged greetings and started talking. In the meantime, Arshad alias Shahid came therefrom the side of Mahal Cinema and told Muhammad Ramzan (deceased) that he was being called by somebody, Muhammad Ramzan accompanied him towards Mahal Cinema. Shortwhile thereafter, the complainant also started towards Mahal Cinema. Ramzan and Arshad were going ahead of him at some distance. When they reached near gate No. 1 of Mahal Cinema, Arshad told accused Shafiq, Saleem and Shamsher, who were present there, that Ramzan had come. At that time, Shafiq was armed with a Danda while the other two were armed with Chhuris. Shafiq gave a Danda blow on the head of Ramzan. He stumbled into the shop of Muhammad Arif Jogi. Before he could recover, Shamsher gave him a Chhuri blow in the left pit. He fell down. Saleem then gave him a Chhuri blow on the left thigh. Shafiq gave a Danda blow on the abdomen. Shamsher gave another Chhuri blow on the right collar bone. Salim caused another injury on left shoulder. Whereafter, both of them (Saleem and Shamsher) caused blows to Ramzan on the buttocks. When the complainant raised hue and cry, he was warned by all the four that if he came near them, he will meet the treatment of Muhammad Ramzan Muhammad Bashir and Muhammad Aslam P.Ws., who had arrived there on hearing the noise, witnessed the occurrence. On having been seen by them, the assailants ran towards railway line. Muhammad Ramzan died while being carried to the hospital.
Motive for the occurrence was murder of Muhammad Rafiq, a brother of Salim and Shafiq accused, 8/9 years prior to this occurrence by Muhammad Ramzan deceased and Amanullah, Muhammad Ramzan (deceased) had been acquitted of the charge while Amanullah had been convicted and sentenced in that case.
4. Muhammad Zaman, S.I. (P.W.9), after recording the F.I.R. proceeded to the hospital, where dead body of Muhammad Ramzan was lying. After preparing injury statement (Exh. P.J.) and inquest report (Exh RIC.), he despatched the dead body for post‑mortem examination which was performed by Dr. Bashir Hussain Kahlon (P.W.5). The doctor noted eight injuries on the body of the deceased, which included a lacerated wound, a stab wound, a contused mark and five incised wounds.
On opening the scalp, the doctor found, pleura on the left side cut, against injury No. 2. Left lung was found cut, through and through. Left femoral artery was also found cut through and through.
Doctor opined that death had occurred due to shock and haemorrhage, resulting from injuries No. 2 and 5 collectively, which were sufficient to cause death in the ordinary course of nature. Injuries No. 2 and 5 have been described as under:‑
(2) An incised wound, 4 c.m. x 1/2 c.m. going deep. The wound was directed downward and inward on the later fold of left axilla. The wound was transverse in direction.
(5) A stab wound, 1‑1 /2 c.m. x 3/4 c.m. going deep. The wound was directed downward and inward on the front of left thigh at its upper part 3 c.m. below the mid‑inguinal region. The wound was vertical in direction.
Except lacerated wound and contused mark, the other injuries were opined to ha‑a been caused by a sharp‑edged weapon. The lacerated wound and contused mark were opined to have been caused by a blunt weapon.
'The same doctor had examined Shamsher accused also on the application of the police on 13‑10‑1981 and had noted an incised wound, 2 c.m. x 1/2 c.m. muscle x deep on the palmer surface of left hand at the base of left thumb. The injury was opined to have been caused by a sharp edged weapon, within about three days.
The S.I. on spot inspection had collected blood‑stained earth vide memo. Exh. P.H.
The accused were arrested by him on 13‑10‑1981.
Muhammad Saleem had led to the recovery of blood‑stained Chhuri (P.3) from his house on 24‑10‑1981, which was taken into possession vide memo. Exh. P.F.
On 25‑10‑1981, Shamsher had led to the recovery of blood‑stained Chhuri from the graveyard of Qutba, which was taken into possession vide memo. Exh. P.G. Both the memos. were attested by Muhammad Akram (P.W.6) and Muhammad Iqbal (P.W.8) apart from Muhammad Zaman, S.I. (P.W.9).
5. At the trial prosecution in all produced nine witnesses including Dr. Bashir Hussain Kahlon.
The ocular account was deposed to, by Muhammad Akram (P.W.6) and Muhammad Bashir (P.W.7). Muhammad Aslam, another eye‑witness, named in the F.I.R., was given up having been won over.
Muhammad Akram re‑narrated the facts given by him in the F.I.R. The only change he made, is, that Shamsher was holding a dagger. In the F.I.R., he had stated that Shamsher was heading a Chhuri. While giving motive for the occurrence, he also added that Muhammad Hussain, a maternal uncle of Shafiq and Saleem accuses was murdered in August, 1966 and he alongwith Zafar Iqbal and Amanullah were challaned, as a result of which he was sentenced to imprisonment for life while the rest were acquitted. He added that he was also acquitted by the High Court. He denied the suggestion that he had involved the accused falsely on account of enmity.
Muhammad Bashir (P.W.7) corroborated the statement made by P.W. 6. He also improved his statement by stating that Shamsher was armed with a dagger. On confrontation with his statement before the police (Exh. D.B.) he was found to have stated that Shamsher was armed with a Chhuri. He denied the suggestion that Muhammad Ramzan deceased had attacked Shamsher accused and had caused him a knife blow and that Shamsher had succeeded in disarming Muhammad Ramzan and thereafter many persons, who had collected there, gave injuries to the deceased, as they were fed up with the deceased for his anti‑social activities.
6. The appellants during their statements under section 342, Cr. P.C. denied the prosecution case. Saleem and Shamsher denied to have led to the recoveries of weapons of offence. Shamsher appellant in answer to the question, "Why this case against you", stated as follows:‑
"My aunt's son Abdul Waheed was a prosecution witness in the case in which Rafique, a brother of Shafiq and Muhammad Salim accused persons was killed. Muhammad Ramzan deceased was accused in that case. The complainant party has, therefore, enmity with me.
The incident occurred in the following manner. Muhammad Ramzan deceased was a desperate character, he had earned a name for his unsocial activities and was nick named Jagga. On the day of the incident, I had gone to Mahal Cinema to see matinee show. Muhammad Ramzan deceased was selling Cinema tickets in black. That was his profession. I wanted to purchase ticket from the window but Muhammad Ramzan would not let me do so. This gave rise to a dispute between me and Muhammad Ramzan deceased. Muhammad Ramzan deceased attacked me with a knife. I tried to snatch the knife from him and succeeded in doing so, but in the process I was injured in my hand. After snatching the knife from him I hit the deceased with the same knife on his thigh. Many a person collected; Salim accused was one of them. Muhammad Saleem picked up a Kafgheer and with it hit the deceased. As the public in general were unhappy with the deceased for his unsocial activities, others in the public also caused him injuries. The police reached the spot, for they were already there and separated us. They caught me and kept me there till the arrival of the S.I Salim accused was also detained by the police there and then. After the arrival of the S.I. they made the story which has been presented at the trial. Akram and Bashir P.Ws. were not present at the spot:
Muhammad Saleem in answer to the same question, took up, the plea and stand taken by Shamsher. He also stated that he had been involved in the case on account of enmity with the complainant because of previous murder.
Muhammad Shafiq denied his participation in the occurrence. No evidence was produced in defence by anyone of them.
7. Muhammad Shafiq and Muhammad Saleem have filed Criminal Appeal No. 498 of 1983 and Shamsher has filed Criminal Appeal No. 203 of 1984. The trial Judge has made reference under section 374, Cr.P.C. As all the matters arise from the same judgment, they are being disposed of by one judgment.
8. Learned counsel for the appellants contended that the ocular account in this case has been deposed to, by inimical and interested witnesses, that the evidence of recoveries is not worth reliance, and that the defence version put forth by appellants Shamsher and Saleem is more probable and nearer the truth than the prosecution story.
9. Learned counsel f or the State has defended the judgment of the trial Court.
10. Since the appellants have put their own version of the occurrence, the prosecution version and the defence versions shall have to be examined in juxtaposition to find out as to which one of the two is nearer the truth and worth reliance.
11. Muhammad Ramzan deceased was admittedly a person of questionable character. Although P.W.6 denied that he was a person of desperate character and was involved in many criminal cases, but P.W.7 A admitted that deceased was involved in number of criminal cases including cases under sections 307, P.P.C. and 392, P.P.C. etc. He had also been tried twice for murders. Once for the murder of brother of Saleem and Shafiq appellants and once for the murder of one Kala Chaukidar.
12. Muhammad Akram complainant is first cousin of the deceased while Muhammad Bashir P.W. 7 is married to the sister of Muhammad Akram.
Muhammad Akram himself was tried for the murder of maternal uncle of Shafiq and Saleem appellants. He was convicted and sentenced by the trial Court.
Muhammad Bashir (P.W.7) admitted that he had been challaned in 4/5 criminal cases. He also admitted that he had been challaned in a murder case.
13. It is obvious from the above narration that the only two witnesses who had deposed the ocular account are not only related to the deceased closely, but are inimical also. They may not be dubbed as persons of questionable character but definitely they had chequered careers as they admittedly were involved as accused in different crimes. Their statements, therefore, will have to be judged cautiously. Both the eye‑witnesses do not reside in the Mohallah where the occurrence had taken place. The reason given by the complainant of having gone to meet his maternal uncle (according to him he had gone to say Salam of Eid which was celebrated a day before the occurrence), even it is accepted, to the extent of his presence in the shop of the father of the deceased, his statement that he was present at the time of occurrence, does not seem probable. He had no business at Mahal Cinema. He had no intention to witness the movie. He had met the deceased in the shop of latter's father. As such, there was no occasion for him to have gone after the deceased. Had he claimed that he had accompanied the deceased, it would have been more probable, but his claim that he followed him without giving any rhyme or reason seems to be improbable.
Similarly, the presence of Muhammad Bashir P.W. at the spot is doubtful. Their testimonies are contradictory on a very material point, in that P.W.6 categorically stated that Muhammad Arif Joggi, into whose shop the deceased had stumbled after receiving the first injury, was not present there, while P.W. 7 has stated emphatically that Muhammad Aril' Joggi was present there and there may have been 2/3 customers as well.
The keenness of P.W. 7 to corroborate the statement of P.W. 6 also can be judged from the fact that when P.W.6 made a change in his statement at the trial, by stating that Shamsher was armed with a Khanjar, P.W. 7 also followed him in spite of the fact that he was found to have stated in his previous statement (Exh. D.B.) that Shamsher was armed with a Chhuri.
The statement of 'P W. 7 that both the accused armed with sharp edged weapons had caused injuries by thrusting their weapons, also, is contradicted by the medical evidence. The doctor had noted only one stab wound on the body of the deceased.
The statements of these witnesses by themselves do not inspire confidence and find no corroboration from the evidence of recoveries as well. The evidence of recoveries of weapons of offence at the instance of Saleem and Shamsher has been deposed to by P.W. 6 and P.W. 8.
The statements of both these witnesses, that they were brought to the police station on both days of recoveries, after the recoveries had been effected and their statements were recorded there, is contradicted categorically by Muhammad Zaman, S.I. (P.W. 9), who stated that the memos. of both the recoveries were prepared at the spot and the statements of the witnesses were also recorded at the spot. He emphatically stated that he had not brought the witnesses at the police station. The presence and availability of these two witnesses on two different dates, i.e. 24‑ l0‑1981 and 25‑10‑1981, just at the nick of moment when the Investigating Officer was taking the appellants for recoveries, is also a chance, which does not fit in the circumstances and places of recoveries.
13‑A. For the aforesaid reasons, the story put forth by the prosecution does not seem to be probable and is full of doubts and thus not worth reliance, for safe administration of justice. In the circumstances, we are left with the version put forth by appellants Saleem and Shamsher, in that also they cannot be given full benefit of having acted in self‑defence. It is their own case that they had caused injuries to the deceased after he had been unarmed. If it had been a case of causing one or two injuries, it could be imagined that in the moment of heat they could not make judgment, where to stop. But the fact of their, having caused, quite a few injuries clearly speaks of their having exceeded the right of private defence.
14. As a result of the above conclusions, the conviction and sentences of the appellants under section 302/34, P.P.C. cannot be maintained. The same are, therefore, set aside.
Since there is no evidence against Muhammad Shafiq and he had denied to have taken part in the occurrence, he is acquitted of the charge. He is on bail. His bail bonds are discharged.
Saleem and Shamsher, who have been found to have exceeded the right of private defence, are convicted under section 304, Part 1, P.P.C. Both of them are sentenced to R.I. for ten years, plus a fine of Rs.1,000 each, in default whereof to suffer R.I. for six months. They are also directed to pay Rs.5,000 each as compensation to the heirs of the deceased, in default whereof to undergo six months' R.I. each.
They shall be given the benefit of the provisions of section 382‑B, Cr.P.C.
S.A./M‑99/L Sentence altered.
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