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Criminal Appeal No. 250 and Murder Reference No. 195 of 1983, decided on 31st January, 1987.

‑‑Ss. 302 & 323/34‑‑Ocular evidence, appreciation of‑‑Sister of complainant abducted by one of accused, his entering into Nikah with her, suit for dissolution of marriage and no case for abduction registered against him being admitted facts‑‑Parties feeling aggrieved over matter, developing hostility against each other‑‑Motive a double‑edged weapon‑Eye‑witness, related and chance witness disbelieved by Trial Court and no substantial ground found to disagree with finding of Trial Court about credibility of his evidence‑‑Sole testimony of same witness about recovery of weapons of offence without any corroboration, discarded‑‑Medical evidence of no avail to pinpoint author of injuries when recovery of weapons not considered worth reliance‑‑Sole testimony of complainant, interested and inimical witness, not able to identify one of accused named by him in F.I.R., held, could not be safely acted upon for maintaining conviction‑‑Accused denying their participation acquitted in circumstances.

‑‑Ss. 302 & 323/34‑‑Self‑defence, plea of‑‑Version put forth by two accused‑‑One of accused admitting his affair with sister of complainant‑ ‑ Denying abduction but not claiming regular marriage with consent of parents‑‑Accused admitting causing of injuries to deceased‑ Injuries on persons of accused simple and except one all with blunt weapon‑‑Deceased receiving nine injuries and three injuries with sharp edged weapon on vital parts found fatal individually‑‑One blunt weapon injury causing fracture of skull‑‑Deceased incapacitated to act in retaliation‑‑Accused, held, had exceeded right of self‑defence and found guilty of offence under‑S‑104, Part I, P.P.C. in circumstances.

S.M. Latif Khosa for Appellants.

J.V. Gardner for A.‑G. for the State.

Hasnat Ahmad Khan for the Complainant.

Dates of hearing: 20th, 21st and 22nd December, 1986.

‑‑Ashiq Hussain was murdered at 10/11 p.m. on 24‑1‑1981, near his house, in the area of Police Station Mumtazabad, Multan City.

F.I.R. (Exh.P.H.) was registered at the police station on the same day at 11‑30 p.m. on the statement of his son Altaf Hussain (P.W.5).

According to the facts given in the F.I.R. the complainant and the deceased were present in their house alongwith other family members at about 10/11 p.m. The complainant went out of the house on barking of dogs. He noted three persons hiding near the wall of their house. He called out his father. On his arrival, those persons started walking away. They were identified as Muhammad Siddique, Muhammad Ismail and Muhammad Sharif, with the help of electric light outside the house. The deceased questioned them about their presence there, whereupon they grappled with him. On the noise raised by the complainant and the deceased, they started running. Muhammad Sharif alias Chhena was, however, caught by the deceased and the complainant. A shortwhile later, while they were still there, Muhammad Siddique, Muhammad Ismail, Muhammad Hanif, Naeem and Bashir, armed with Chhuris and Saleem, armed with a Danda came there raising Lalkaras. Seeing them, Muhammad Sharif also ran towards them. The deceased and the complainant ran after him. Muhammad Siddique gave a Chhuri blow on the right ribs of the deceased. Muhammad Ismail caused a Chhuri blow on the left side. The deceased hurled a Kulhari blow in self‑defence which struck Ismail. Thereafter, Muhammad Hanif gave a Chhuri blow on left flank of the deceased. Bashir then gave a Chhuri blow on the left thigh. Naeem gave a Chhuri blow on the back. The deceased fell down. Muhammad Siddique then caused a Chhuri blow on his right shoulder. Saleem gave three Danda blows. When the complainant went ahead to save his father, Muhammad Sharif picked up the Sota lying there and caused him injuries. As a result of the noise raised by the complainant and the deceased, Muhammad Riaz son of Hassan Bakhsh (P.W.6), Riaz Hussain son of Allah Wasaya and Khadim Husain P.Ws. arrived at the spot and witnessed the occurrence. The accused ran away after causing the injuries.

About the motive, it is stated that Mst. Shahnaz Begum, sister of the complainant, was abducted by Siddique accused. The deceased had got returned the abductee back which annoyed Muhammad Siddique accused and so he had murdered the deceased with the help of his co‑accused.

2. Muhammad Anwar, A.S.I., who had recorded the F.I.R. visited the place of occurrence. After preparing the inquest report and the injury statement, he despatched the dead body for post‑mortem examination. Blood‑stained earth collected by him from the spot was taken into possession vide memo. Exh.P.J.

Altaf Hussain P.W. was medically examined at the instance of the A.S.I. by Dr. Riazuddin (P.W.4) on 25‑1‑1981.

Muhammad Ismail, Muhammad Siddique and Muhammad Sharif accused, who were found injured at the time of their arrest were medically examined by the same doctor at the request of the police.

Sota (P.1), blood‑stained Chhuri (P.2), blood‑stained Chhuri (P.3) and blood‑stained Chhuri (P.4), were recovered at the instance of Muhammad Sharif, Muhammad Hanif, Muhammad Siddique and Muhammad Ismail, respectively. They were taken into possession vide memos. Exhs. P.L., P.M. and P.N., respectively. The memos. were attested by Muhammad Riaz (P.W.6) and Muhammad Ajmal (given up P.W.) apart from Muhammad Anwar, A.S.I.

3. At the trial prosecution in all examined seven P.Ws.

Dr. Riazuddin, who had performed the autopsy on the dead body of Ashiq Husain and had medically examined Muhammad Ismail, Muhammad Siddique and Muhammad Sharif and the complainant (Altaf Husain) appeared as P.W.4.

He noted three stab wounds, two incised wounds, two bruises, a linear scratch and swelling (on the top of head) on the body of the deceased.

According to his opinion death had occurred due to shock and intra- abdominal haemorrhage, with intra‑thorasic haemorrhage, due to injury Nos. 1, 2 and 6 which were sufficient to cause death individually as well as collectively. The injury under swelling on the top of head was declared grievous. Injuries 1, 2 and 6 have been described as under:‑

(1) A stab wound on the lower part of back of left chest 4 c.m. x 1 c.m. x chest cavity about 26 c.m. below the top of shoulder and 10‑1/2 c.m. towards left of midline.

(2) Stab wound on the outer side of lumber region of left side 3 c.m. x 1‑1/2 c.m. x back of abdominal cavity about 10 c.m. below injury No. 1 and 7 c.m. from midline.

(6) A stab wound on the outer side of back of right chest 3 c.m. x 1‑1/4 c.m. x chest cavity about 27 c.m. below the top of shoulder.

Altaf Husain P.W.5 had a bruise on the front of right chest and echymosis under the nail of middle finger of right hand. The injuries were declared simple, caused by a blunt weapon.

4. Muhammad Ismail accused, who was medically examined on 25‑1‑1981, had a linear scratch, on the back of left thigh, an abrasion on the left knee joint and an incised wound on the lower part of left palm. All the injuries were declared simple.

Muhammad Siddique accused, who was examined on 28‑1‑1981, at the instance of the police, had a contused wound on the left side of the head, a tender scar on the right side of back of chest, an abrasion on the back of right arm and an abrasion below the left angle of mouth. He also complained of pain on the right cheek. The injuries were declared simple.

Muhammad Sharif accused was examined on the same day. He was found to have suffered an incised wound on the back side of head, an abrasion on the front of right knee cap, multiple abrasions on the left knee. He had also complained of pain on testicles. The left testicle was slightly swollen. The injuries were declared simple.

5. The ocular account was deposed by Altaf Husain complainant (P.W.5) and Muhammad Riaz (P.W.6).

Altaf Husain re‑narrated the facts given by him in the F.I.R. He made some improvements also. The significant improvement made by him is the explanation, he gave about the injuries found on the persons of accused Muhammad Ismail, Muhammad Siddique and Muhammad Sharif. In that, he stated that when his father had suffered one injury each at the hands of Muhammad Siddique and Ismail, he (father) had given a hatchet blow to Ismail accused on the hand. About the other injuries on Ismail and injuries found on the persons of Siddique and Sharif, he stated that he had caused the injuries in self‑defence with Danda after being attacked by Sharif accused. He could not explain as to wherefrom his father had obtained the hatchet, nor could he give any explanation for not having stated anything about the injuries to the accused in the F.I.R.

During cross‑examination, he admitted that no report was lodged with the police about the abduction of his sister, Mst. Shahnaz. He stated that she had remained with Siddique 2/3 days during which he had performed Nikah with her. He also admitted that on an application submitted by Siddique, warrants under section 100, Cr.P.C. were issued by the Magistrate for the production of Mst. Shahnaz before the Magistrate, a year before the occurrence. He also admitted that on return, Mst. Shahnaz had filed a suit for dissolution of her marriage. He conceded that the suit for dissolution of marriage was decreed ex parte while Siddique was in jail. He denied knowledge about Siddique having filed an application for setting aside ex parte decree. He admitted that Mst. Shahnaz had a daughter named Nargis. He denied that Nargis was daughter of Siddique. He explained that Mst. Shahnaz before abduction had been given in Sharie Nikah of Ahmad Hassan. He also stated that Mst. Shahnaz had given birth to another child, after Nargis. According to him, both the children were from the loins of Ahmad Hasan. He admitted that Ahmad Hasan's Nikah had not been recorded in any Union Council. He stated that he had failed to identify Bashir accused during the identification parade held in Multan Jail, one month after the occurrence. Answering to another question, he named four persons from amongst the persons who had come to the spot during occurrence, on the alarm raised by them, apart from the eye witnesses, named in the F.I.R. He also admitted that one Muhammad Rafiq had filed a complaint about the injuries of Muhammad Ismail, Muhammad Siddique and Muhammad Sharif, against them in which he alongwith Khuda Bakhsh and Gul Muhammad was summoned as accused. He denied the suggestion that he alongwith the deceased, Khuda Bakhsh and Gul Muhammad had assaulted and caused injuries to Ismail, Siddique and Sharif. He also denied the suggestion that he had manipulated injuries on his person to become an eye‑witness. He further denied the suggestion that he had concocted a false case against the accused about the murder of his father.

Muhammad Riaz P.W. 6 stated that he was living with his maternal uncle Khadim Hussain and that he had come to the spot hearing alarm where he had seen the deceased and the complainant holding Sharif accused, and Riaz P.W. standing nearby. He stated that just at that very time, Siddique, Ismail, Hanif, Bashir and Naeem armed with Chhuris and Saleem armed with a Danda came to the spot. Further narration given by him about the occurrence, is, corroborative of the statement made by Altaf P.W.5. He also claimed to have witnessed the recoveries of Chhuris from Siddique, Hanif, Ismail, and a Sota from Sharif accused.

In cross‑examination he admitted that he was a real nephew of the deceased. He also admitted that he had failed to identify Bashir Hussain and Saleem accused during the identification parade held in the jail. In answer to other questions he stated that except Muhammad Riaz, none else from the Mohallah had come to the spot during whole of the occurrence.

He further stated that some persons had arrived 10‑15 minutes after departure of the accused.

Muhammad Anwar, A.S.I. who had recorded the F.I.R., investigated the case and had arrested the accused, had died before the trial. Muhammad Ramzan H.C. No. 1393 was examined to prove the signatures and the documents prepared by Muhammad Anwar, A.S.I.

6. All the accused during their statements under section 342, Cr.P.C. denied the prosecution case.

Muhammad Siddique in answer to the question, 'How do you explain injuries on your person', stated as follows:‑

"On the night of occurrence at about 10/11 p.m. I, Ismail and Sharif accused alongwith Muhammad Rafique (complainant of the cross -complaint case) and Sharif son of Muhammad Din were returning after attending Khairat party. On the way we were assaulted by Altaf Hussain complainant, armed with a hatchet, Ashiq Hussain deceased with a Danda and their companions Gul Muhammad and Khuda Bakhsh armed with knives. There was a fight for about 4‑5 minutes in pitch darkness and many people collected in the fight. We also injured the deceased and Altaf Hussain with whatever weapon we could catch hold of in our self‑defence. After the occurrence, the complainant party ran away and Muhammad Sharif son of Muhammad Din and Muhammad Rafique brought us to the police station."

In answer to the question, Why this case against you', he stated as under:‑

"Mst. Shahnaz is my wife and we have children as well. The complainant party wanted her divorce and even filed a suit for dissolution of marriage and I filed suit for restitution of conjugal rights. The cases are still pending trial. I used to be threatened even previously and to carry out threat we were assaulted:"

He opted to produce defence.

Muhammad Ismail in answer to the question How do you explain injuries on your person', stated as follows:‑

"On the night of occurrence, I was returning with my father Muhammad Sharif after attending Khairat party and so were Siddique, Sharif co‑accused and Rafique (complainant of the cross‑complaint case) being Mohalladars. We were assaulted by Altaf Hussain complainant, Gul Muhammad, Khuda Bakhsh and Ashiq Hussain deceased. I received a hatchet blow. We also injured the complainant party with whatever weapons we could catch hold of."

Naeem and Hanif while pleading innocence, set up plea of false implication.

The other three also pleaded false implication.

Syed Qasim Jaffari, Staff Reporter, the daily Nawa‑i‑Waqt', Multan was examined as D.W.1. He had given the news item (Exh.D.W.) of 25‑1‑1981 in the daily Nawa‑i‑Waqt, Multan, alongwith a photograph of the deceased. In that, it is written that Muhammad Siddique Shapgar, Sheefa and Baila etc. fifteen persons armed with hatchets and Khanjars had committed the murder of Ashiq Hussain deceased. Some of the details given by him at the time of his statement were not found to have been recorded in the news item, dated 25‑1‑1981.

He admitted in cross‑examination that the news item was based upon Mafroozas and that he could not vouchsafe about the correctness or otherwise of the news.

7. The learned trial Judge vide judgment, dated 29‑10‑1983, convicted Muhammad Siddique, Muhammad Hanif, Muhammad Ismail and Naeem, under sections 302/34, 323/34, P.P.C. and sentenced them as under:‑

Under section 302/34, P.P.C. Muhammad Siddique, Muhammad Hanif and Muhammad Ismail, have been sentenced to death, plus a fine of Rs.2,000 each, in default whereof to undergo R.I. for two years.

Fine, on realization, has been directed to be paid as compensation to the heirs of the deceased.

Under section 323/34, P.P.C. each one of them has been sentenced to suffer R.I. for six months, plus a fine of Rs.100 each, in default whereof to undergo R.I. for one month each.

Fine, on realization, has been directed to be paid to Altaf Hussain as compensation.

Under section 302/34, P.P.C. Muhammad Naeem has been sentenced to imprisonment for life, plus a fine of Rs.2,000, in default whereof to undergo R.I. for two years.

'Fine, on realization, has been directed to be paid to the heirs of the deceased as compensation.

Under section 323/34, P.P.C. he has been sentenced to suffer R.I. for six months, plus a fine of Rs.100 in default whereof to undergo R.I. for one month.

Fine, on realization, has been directed to be paid to Altaf Hussain complainant as compensation.

Muhammad Sharif, Muhammad Saleem and Bashir Husain were acquitted vide the same judgment.

8. Muhammad Siddique. Muhammad Hanif and Muhammad Ismail have filed Criminal Appeal No. 251 of 1983, while Muhammad Naeem has filed Criminal Appeal No. 250 of 1983. The learned trial Judge has made reference for confirmation of death sentences. All the three matters are being disposed of by one judgment.

9. Learned counsel for the appellants contended that the motive set up by the prosecution does not advance the case of the prosecution, and contrarily, it lends support to the plea of the, accused, that the occurrence was the result of the dispute which cropped up on account of elopement of Mst. Shahnaz with Muhammad Siddique appellant, that the prosecution has failed to prove the case against the appellants and that the plea set up by the appellants Muhammad Siddique and Muhammad Ismail is more probable and nearer the truth than the prosecution version.

10. Learned counsel appearing on behalf of the State defended the judgment of the trial Court.

11. Since two appellants have set up their own version of the occurrence, the prosecution case, apart from consideration on its face value, will have to be considered in juxtaposition with the plea set up by appellants Muhammad Siddique and Muhammad Ismail to find out which of the two versions, is nearer the truth and more plausible.

12. Before proceeding further, we would like to make a note here that there is no State appeal or private revision even, against the acquittal of Muhammad Sharif, who had during statement under section 342, Cr.P.C. while explaining injuries on his person, admitted his presence at the spot, at the time of occurrence.

13. The prosecution case, apart from the motive set up, rests on the ocular account furnished by P.W.5 and P.W.6, the recoveries of weapons of offence from Muhammad Hanif, Muhammad Siddique and Muhammad Ismail, and the medical evidence.

14. The admitted facts are that Mst. Shahnaz had been taken away by Muhammad Siddique appellant and he had entered into Nikah with her during the days that she had remained with him, before her return to the house of her father, and no case for her abduction had been registered. The suit filed by her for dissolution of marriage against Siddique was decreed ex parte, while Siddique was in jail. It is also on record that she had given birth to two daughters. However, the parties made their own claims about the fatherhood of the girls. In that, Altaf Hussain (P.W.5) stated at the trial that they were from the loins of Ahmad Hassan, with whom Sharie Nikah of Mst. Shahnaz had been performed before her abduction, while Muhammad Siddique appellant claimed that they were offsprings of his marriage with Mst. Shahnaz.

15. Leaving the question whether Mst. Shahnaz was abducted by Siddique appellant or she had eloped with him, open, the fact which amply stands admitted, is, that the parties were feeling aggrieved against each other about the custody of Mst. Shahnaz and had developed hostility. In these circumstances, the motive set up by the prosecution does not exclusively advance their case. The affairs of Mst. Shahnaz with Siddique appellant were obviously agitating the minds of both the parties. As such, the motive in this case squarely is a double‑edged weapon and no one party can be given the benefit of the same. Even otherwise, the fact that I none of the parties dared to bring Mst. Shahnaz to dock, shows that either of them was not sure as to whom she would support.

16. Out of two eye‑witnesses, the testimony of Muhammad Riaz (P.W.6) has not been believed by the trial Court. After having gone through the reasons noted by the trial Judge in this regard, and considering the fact that he was related and a chance witness, we do not find any substantial ground to disagree with the view formed by the trial. Judge about the credibility of his evidence

For proving the recoveries of weapons of offence, at the instance of Muhammad Siddique, Muhammad Ismail and Muhammad Hanif, the prosecution had examined only Muhammad Riaz (P.W.6), who was an eye witness. The learned trial Judge discarded the recoveries of weapons of offence as well.

In view of the fact that his evidence about the ocular account was discarded by the trial Judge, with which we have not differed, we find no good reason to disagree with the observations of the trial Judge that the prosecution had failed to prove the recoveries of weapons of offence, at the instance of three appellants. His sole testimony about the recoveries of weapons of offence, without any corroboration, even otherwise cannot be acted upon.

The medical evidence at the best can corroborate the weapons of offence used for infliction of injuries. It can be of no avail to pin point the author of the injuries, particularly so, when the evidence of recoveries of weapons of offence has not been considered worth reliance.

The statement of Altaf Hussain (P.W.5) thus remains the only evidence, in the field, for the prosecution. He is son of the deceased. He was obviously aggrieved on account of abduction of his sister and the disputes as a result thereof. He had failed to identify one of the accused (Bashir Hussain) named by him in the F.I.R., during the identification parade. The trial Judge has discarded his statement about the injuries suffered by him at the hands of Muhammad Sharif. He is obviously an interested and inimical witness. It would thus not be safe to act on his sole testimony for maintaining the convictions.

We are now left with the version put forth by appellants Muhammad Siddique and Muhammad Ismail.

Muhammad Siddique has admitted his affairs with Mst. Shahnaz. Although he has denied that he had abducted Mst. Shahnaz, but he has not claimed that it was a regular marriage, with the consent of the parents of Mst. Shahnaz. Both of them have admitted of having caused injuries to the deceased, although the expression used by them is that they had also caused injuries to the complainant party.

The question, that requires consideration is, whether any case is made out of clean acquittal for having acted in self‑defence

Muhammad Ismail on medical examination was found to have suffered three injuries only. One of them was a linear scratch, the other was an abrasion while the third was an incised wound on the lower part of left palm, only bone deep.

Out of the five injuries found on the person of Muhammad Siddique, two were abrasions and one complaint of pain in the right cheek.

The injuries on both of them were declared simple except the incised wound noted on the left palm of Muhammad Ismail. All, rest of the injuries, on both of them, were opined to be the result of the blunt object.

17. On the other hand, the deceased was found to have suffered three stab wounds. One on the lower part of back of left chest; the other on the lumber region, and third on the outer side of back of right chest. An incised wound on the centre line of back of abdomen. The swelling noted on the top of head had resulted in fracture of frontal parietal bone. Out of the nine injuries suffered by the deceased, three were declared fatal individually as well as collectively. It is abundantly clear that the deceased had been dealt with cruelly. Anyone of the three stab wounds, or injury on the top of head or incised wound in back of abdomen, would have incapacitated him to act in retaliation.

Having regard to the injuries found on the body of the deceased, it is obvious that Muhammad Siddique and Muhammad Ismail had clearly exceed the right of private defence. They are, therefore, held guilty under section 304, Part I, P.P.C., sentenced to undergo R.I. for ten years each, plus a fine of Rs.15,000 each in default whereof to undergo R.I. for three years each. On recovery of fine, a sum of Rs.20,000 shall be paid to the heirs of the deceased as compensation. Their conviction and sentences under sections 302/34 and 323/34, P.P.C. are set aside. Death sentence not confirmed.

Muhammad Hanif and Muhammad Naeem had denied their participation in the occurrence. The prosecution evidence has not been considered viable enough to maintain the conviction. As such, there is nothing on record to sustain their convictions. Their appeal is accepted and their convictions and sentences are set aside. Muhammad Hanif shall be set at liberty forthwith, if not required for any other case. Muhammad Naeem is already on bail vide order, dated 24‑8‑1986. He shall be discharged of his bail bonds.

S.A./M‑146/L Appeal partly accepted.

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