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Criminal Appeal No. 392 of 1960, decided on 24th January 1962.
--Infliction of fatal injury in exercise of right of private defence or in course of sudden quarrel in heat of moment‑Conviction under S. 302 altered to one under S. 304, Part I.
Muhammad Haleem for A. A. G. for Respondent.
Dates of hearing : 24th, 27th November 1961 ; 7th and 8th December 1961.
.‑Muhammad Hussain accused, who has been convicted under sections 302 and 324, Pakistan Penal Code, and sentenced to transportation for life for the former offence and two years' rigorous imprisonment for the latter by S. A. M. Ghaznavi, Sessions Judge, Sukkur, has come up in appeal against his convictions and sentences.
2. The appellant is said to have murdered Qalandar Bakhsh deceased and caused a stab wound to the deceased's brother, Rahim Bakhsh (P. W. 2), on the 3rd of January 1960, in the following circumstances:‑
Qalandar Bakhsh deceased, who was getting training for the job of a school teacher, used to work as a part‑time barber in Gulistan Hair Cutting Saloon opposite to Nishat Cinema at Sukkur. The proprietor of this Saloon was one Subban Ali. Mushtaq (P. W. 1) and Rasul Bakhsh Mangi (P. W. 3) worked as barbers in this Saloon being employees of Subhan Ali. The appellant, Muhammad Hussain, is also a school teacher and for quite some time Qalandar Bakhsh deceased lived as a tenant in his house. The appellant compelled the deceased to leave his house and the latter started living elsewhere. On the 3rd of January 1960, which was a Sunday, the deceased came to the Gulistan Barber Saloon at about 9 a.m. for performing his part -time job of barber. Mushtaq (P. W. 1) and Rasul Bakhsh Mangi (P. W. 3) were already present there having come to the Saloon as early as about 7 a.m. Indeed, Rahim Bakhsh (P. W. 2), the brother of the deceased, who is a clerk at Karachi and had come to Sukkur to see his brother, had also arrived at the Saloon earlier than the deceased so that he was also already present at the Saloon waiting for him when the deceased arrived at that place. The deceased was cutting the hair of a small lad when at about 10 a.m., the appellant Muhammad Hussain also came along into the Saloon for having his hair cut. Rasul Bakhsh Mangi P. W. attended to him, but after his hair had been cut the appellant addressed Qalandar Bakhsh deceased complaining that he (the deceased) had stopped being on friendly terms with him (the appellant). This touched off a quarrel between the deceased and the appellant which resulted in the two grappling with each other. Ghulam Qadir (P. W. 4), who is the nephew of Subhan Ali, the proprietor of the Barber's Saloon, turned up while this grappling was going on and separated the combatants, and apprehending damage to the things inside the Saloon told them to leave the shop, which they did. Rahim Bakhsh P. W. also went out along with them, but as soon as they had gone out the appellant stabbed the deceased on the temple with a knife. Rahim Bakhsh P. W. tried to intervene and he also was given a stab on his left thigh. Both Qalandar Bakhsh deceased and Rahim Bakhsh P. W. fell down on account of their respective stab wounds and the appellant leaving his pair of chappals behind ran away from the spot. Besides the aforesaid P. Ws. (Mushtaq, Rahim Bakhsh, Rasul Bakhsh Mangi and Ghulam Qadir) Ghaus Bakhsh (P. W. 5), who has his tea‑shop about four or five paces away from the scene of the crime saw the occurrence from the roof of his tea‑shop. Jhumo (P. W. 6) whose tea shop adjoins Gulistan Barber Saloon, also claims to have witnessed the occur rence from the counter of his shop where he was sitting when the occurrence took place outside the Barber's Saloon.
3. Mushtaq P. W. carried the deceased in a tonga to Sukkur Section A' Police Station, which is a distance of about one furlong from the place of the occurrence, but by the time the tonga reached the police station the deceased had already given up the ghost. Sardar Muhammad (P. W. 10), Sub‑Inspector of Police, recorded the first information report Exh. 4‑A to the dictation of Mushtaq P. W. and in the presence of Allah Rakhio (P. W. 8) and one Taj Din (not produced) prepared the injury statement Exh. 13‑A of the deceased and sent away his dead body with Muhammad Iqbal (P. W. 9) to the hospital for its post-mortem examination. A little later when Rahim Bakhsh P. W. also turned up at the police station, the Sub‑Inspector prepared the injury statement Exh. 11‑B with respect to him and sent him on to the hospital for his treatment and examination. There after, the Sub‑Inspector proceeded to the spot for the investigation of the case and sent a Head Constable to arrest the appellant, but the latter could not be arrested as he was absent from the house which was at a distance of about 100 paces from the spot. The Sub‑Inspector did not himself visit the house of the appellant nor did he depute any policeman to search the appellant's house and contented himself with calling upon Abdul Hamid, the uncle of the appellant, to produce the appellant, before him. It was Abdul Hamid, who produced his nephew, the appellant, before the Sub‑Inspector on the 4th of January 1960, at 10‑30 a.m., when the latter went to his house. The Sub‑Inspector, thus, arrested the appellant on the 4th of January 1960, at 10‑30 a.m. in the presence of Allah Rakhio P. W. and Haider Shah (not produced) Masheers from the appellant's house and drew up the injury statement cum‑memo. Exh. 11‑D. The appellant took the Sub‑Inspector inside his house and from there produced washed clothes, a shirt and a pair of trousers, which the Sub‑Inspector took into his possession. The appellant also produced before the Sub‑Inspector a knife from under old broken furniture and earth, at the top of his house. As the knife also bore blood marks like the clothes mentioned above the Sub‑Inspector took this also into his possession. As the appellant had also injuries on his person he sent him to the hospital for his examination and treatment. He also sent the clothes recovered from the appellant, the knife and the chappals to the Chemical Examiner, who reported later that all these articles were stained with human blood.
5. (sic) Doctor Sayyed Ali Haider (P. W. 11) performed the post‑mortem examination on the dead body of the deceased on the 3rd of January 1960 between 2 to 3‑45 p.m. and found the following :‑
One incised wound, 3" x 1 " x 3 ", oblique on the front of the left ear cutting the carotid vessels.
The doctor pronounced the injury to be about three to four hours old and as caused by a sharp‑cutting weapon such as a knife. The doctor was of the opinion that death had occurred on account of shock and haemorrhage as a result of the above mentioned injury which he opined was sufficient to cause death in the ordinary course of nature. He conceded in the cross‑examina tion that the injury of the deceased could be caused by sharp. pointed barber's scissors.
6. The doctor also examined the Injury of Rahim Bakhsh P. W. on the same day, which he described as follows :‑
One incised wound, 2" x 1" x 2 ", longitudinal on the lateral middle surface of left thigh.
The doctor expressed the opinion that the injury had been caused by a cutting weapon like a knife and was about three or four hours old.
7. On the following day, viz. on the 4th of January 1960, the doctor examined Muhammad Hussain appellant for his injuries as he had been forwarded to him by the police and found the following :‑
(1) One contused wound, 1 " x ", scalp deep longitudinal on the mid‑occipital region.
(2) One abrasion 1" in diameter on the right side of the forehead above right eyebrow.
(3) An abrasion " in diameter on the outer surface of tight middle finger.
(4) One abrasion, " x 1/6", behind right ear.
The doctor expressed the opinion that they were caused by some hard blunt substance such as a lathi and: that they were about 24 hours old. He affirmed that injury No. 1 could neither be self- inflicted nor caused by a friendly hand nor by a fall. He conceded in his cross‑examination that it could be caused by the back of a hair‑clipper.' He further expressed the opinion that injury No. 4 could not be self‑inflicted.
8. The appellant pleaded not guilty and gave his own version of the occurrence both before the committing Magistrate and the Sessions Judge. He characterised the prosecu tion version of the occurrence as false and ascribed it to the witnesses being interested in the prosecution. He admitted that the blood‑stained clothes and the chappals recovered by the police belonged to him but denied that the knife produced in Court belonged to him or had been used by him in causing an injury either to the deceased or Rahim Bakhsh P. W. He described the deceased and Rahim Bakhsh P. W. as having started an attack on him. Before the committing Magistrate his version of the occurrence was as follows :‑
"On that day (3‑1‑1960) I went to get my hair dressed in this saloon. Rasul Bakhsh was dressing my hair. Qalandar Bakhsh and his brother Rahim Bakhsh and complainant Mushtaq were also there. Their other customers were also there. When Rasul Bakhsh was dressing my hair, the deceased said to me that though I had driven him out of my house he had got another house. I told him that he had sent his family out and then allowed strangers into his house and on that the people of the locality objected and, therefore, I had snatched the house from him. On that he abused me. I was in the chair when the deceased started giving me blows with his fist. Others set me free and then I came out. All the three pursued me, though I had gone out. Rahim Bakhsh had a clipper, Mushtaq had taken out the head‑rest of the chair and the deceased had scissors in his hand. They all grappled with me outside the shop and gave blows with the weapons that they had. The deceased was giving me a blow with the scissors that he had. I caught (him) by his hand and tried to avoid the blow and the scissors struck in his head. I immediately ran up to the police for a complaint, but the police refused to register my complaint. My parents made such applications to this Court and other officers."
Adhering to his version as regards the ownership of the clothes and the chappals and denial respecting the ownership or the use of the knife, the appellant gave the following version of the occurrence in the Sessions Court :‑
"I had gone that morning to the Hair Cutting Saloon for getting my hair cut. Qalandar told me that I got his house vacated but he got another house. He then abused me and gave me a fist blow. Rahim Bakhsh also gave me a blow. Ghulam Qadir came there on my cries and he made us leave his shop. Mushtaq, Qalandar and Rahim Bakhsh followed me outside the shop. Qalandar bad a scissors, Mushtaq had the wooden part of a chair, and Rahim Bakhsh had the hair‑cutting machine. They attacked me. Qalandar struck me with the sharp‑point of the scissors on my ear. I snatched the same scissors from him. Rahim Bakhsh and Mushtaq attacked me. My scissors struck Qalandar on his temple. I had given this blow in self -defence. I then gave another blow to Rahim Bakhsh in his thigh. I then went to the thana and met the S. I. P. Sardar Muhammad. He did not record my complaint. He wanted bribe from me. I was arrested by him on 3rd January, at about 10‑30 a. m. He took away clothes from my person. He did not send me to the hospital, until 4th January. I produce the application made by my father on 21st January 1960, to the Sessions Court and also some cuttings from the newspaper of my uncle, Exhs. 16‑A and B."
The appellant produced no witness in his defence.
9. Six persons, namely, Mushtaq Ahmad (P. W. 1), Rahim Bakhsh (P. W. 2), Rasul Bakhsh (P. W. 3), Ghulam Qadir (P. W. 4), Ghaus Bakhsh (P. W. 5) and Jhumo (P. W. 6) have been produced as eye‑witnesses of the occurrence by the prosecu tion. Of these, Ghaus Bakhsh and Jhumo P. Ws., the proprietors of tea‑shops in the neighbourhood of Gulistan Hair Cutting Saloon, were not mentioned by Mushtaq Ahmad P. W. In the F. I. R. If these P. Ws. had actually witnessed the occurrence they would, probably, have been drawn to the spot before Mushtaq Ahmad left for the police station. The omission of their names from the F. I. R., therefore, indicates that they possibly did not see anything of the occurrence. Their evidence, therefore, has to be omitted from consideration altogether. Of the remaining witnesses, Rahim Bakhsh and Mushtaq Ahmad P. Ws. have given a sub stantially identical account of the occurrence. The presence of these two persons at the time of the occurrence cannot be denied. Rahim Bakhsh P. W. bears an injury on his person, which the accused admits to have caused. The presence at the time of occurrence of Mushtaq Ahmad P. W. as also Ghulam Qadir and Rasul Bakhsh has been specifically admitted by the accused himself. There can be, therefore, no manner of doubt that all these persons were present at the time of the occurrence. It may be mentioned, however, that Mushtaq Ahmad and Rahim Bakhsh are not disinterested and independent witnesses. Rahim Bakhsh P. W. had not only himself received an injury at the hand of the accused, he is also related to the deceased as a brother. Mushtaq Ahmad P. W. admitted in his cross‑examination that he had been living with the deceased In the same house for a number of years. Both these witnesses, therefore, cannot be considered above the temptation of exaggerating the case in favour of the deceased and against the accused. Ghulam Qadir and Rasul Bakhsh are comparatively more independent witnesses and, at any rate, are not likely to say anything against the interest of the deceased who used to work as part‑time barber in their hair‑cutting saloon unless they were compelled to do so on the basis of the factual position. The learned Sessions Judge expressed the opinion that Ghulam Qadir and Rasul Bakhsh P. Ws. had tried to help the accused by making certain concession in his favour. We do not concur in this appreciation of these two prosecution witnesses' evidence.
10. As already pointed out, we do not see any reason why these two prosecution witnesses should have falsely said anything favourable to the accused as against the interest of the deceased. Although these two witnesses have stated that the deceased gave a knife blow to the accused after he and the deceased, accompanied by Rahim Bakhsh, had gone out, they have stated matters in their cross‑examination which go to show that the accused was not the aggressor. Rasul Bakhsh P. W., indeed, claimed to be a witness of the quarrel inside the saloon and as regards the deceased, the accused, and Rahim Bakhsh having been pushed out by Ghulam Qadir. He does not claim to have actually witnessed the accused giving the knife blow to the deceased. He stated that when he went out and saw Qalandar and Rahim Bakhsh, both were bleeding and injured and both told him that the accused had stabbed them. In his cross‑examination he conceded that the deceased was the first to start an attack on the accused with a fist blow, while the accused was yet in his chair in the saloon. He further conceded that the deceased had a hair‑cutting machine in his hand when he gave a fist blow to the accused inside the saloon. It is true that the Court, at the suggestion of the Public Prosecutor, confronted this prosecution witness with his statement recorded under section 164, Criminal Procedure Code, where he had described himself as actually witnessed the accused giving knife blows to Qalandar and Rahim Bakhsh ; but the P. W. denied that he actually made the statement before the Magistrate, although he had signed the statement. It is not known what was the object of the Public Prosecutor in not cross‑examining the witness himself and leaving it to the Court to do that part of his job. But even if this confrontation be considered as a valid cross examinatiop of a hostile witness, the worst that can happen would be that Rasul Bakhsh P. W's. evidence given before the Sessions Judge would be considered as that of a person whose veracity cannot be depended upon and, as such, his evidence would be ruled out of consideration, although It could not definitely be held that what he stated in Court was untrue and what was recorded as a statement under section 164, Criminal Procedure Code, was correct, especially when it is clear that the P. W's. statement under section 164, Criminal Procedure Code, had not been tested by any cross‑examination.
11. Ghulam Qadir P. W. described himself as an eye‑witness of the entire occurrence right from the moment he saw the accused, the deceased and Rahim Bakhsh grappling with each other Inside the saloon till the time the accused had given blows with a knife to the deceased and Rahim Bakhsh after they had been made to leave the saloon by him. We do not see why the evidence of this P. W. should be disregarded as of a person who has any interest in concealing the truth. This P. W. stated in his cross-examination that when he (this P. W.) had come into the saloon, he saw the accused, the deceased and Rahim Bakhsh giving fist blows to each other. He further stated that the accused was already present at the thana when his (this P. W's.) statement was recorded (at the thana). He also stated that the accused had a bigger knife than the one which bad been produced in Court. On none of these matters was this P. W. confronted with any previous statement that he might have made. We, therefore, do not see why the version given by this P. W. should not be accepted as correct. The learned Sessions Judge has observed that this P. W. has also tried to help the accused by making certain concessions. He is of the view that this P. W. admitted the presence of the accused at the thana on the day this P. W's. statement was recorded there, which was on the 3rd of January 1960, in order to afford support to the accused's version that after the occurrence he had himself gone to the police station and had got his blood‑stained clothes and chappals recovered there and that he had not been arrested by the police as stated by Sardar Muhammad, Sub‑Inspector, and Allah Rakhio on the 4th of January 1960, from the accused's house. We do not think that the Sessions Judge is right in thinking that Ghulam Qadir's version that the accused was present at the thana when he went there is incorrect. We are inclined to think that the accused's version that he himself went to the police station on the 3rd of January 1960, after the occurrence is correct. The reason why the Sub‑Inspector did not consider it necessary on the 3rd of January 1960, to search the house of the accused, which is only 100 paces away from the place of the occurrence, appears to us to be that he did not stand in need of any such search for the accused, the accused being already in his custody. That explains why, he as admitted by him, neither personally went to the house of the accused for his arrest nor posted any police outside his house to watch his return by night. His plea that since he had asked Abdul Hamid, the uncle of the accused, to produce him before him he did not consider it necessary to search the accused's house for his arrest, does not strike us as tenable. The learned Sessions Judge has criticised the Sub‑Inspector's omission to make, efforts for arresting the accused on the 3rd of January 1960, on a different basis. He seems to think that this was done in order to provide opportunity to the accused to manufacture injuries on his person to enable him to set up some sort of defence.
12. We do not think that the injuries found by the doctor on the examination of the accused on the 4th of January 1960; were self‑suffered or fabricated. Doctor pronounced these injuries to have been caused within 24 to 30 hours. This would show that these injuries had been caused at about the time of the occurrence on the 3rd of January 1960. This circumstance, to our mind, rather supports the accused in his version that he had received these injuries at the time of the occurrence and had gone to the police station after the occurrence. We fail to understand why the Sub‑Inspector should have suffered a whole day to elapse before the arrest of the accused if his only object in not visiting the house of the accused for his arrest was to provide him an opportunity to manufacture injuries. If the injuries had been manufactured near about the time of the occurrence and the Sub -Inspector was minded to help the accused, he could have arrested him on the same day and sent him up for his examination after these injuries bad been manufactured. Why should he have deferred sending him for his examination to the following day of he was inclined to help the accused. It appears to us to be more consistent with the circumstances of the case that the Sub- Inspector deliberately omitted to arrest the accused on the 3rd of January 1960 because the accused had already presented himself at the police station, and that explains why he did not search for the accused or post any policeman outside the house to watch the accused's return. Ghulam Qadir P. W. appears to us to be right when he says that he saw the accused at the thana, when his statement was recorded by the police.
13. We are, therefore, inclined to discount the version of Mushtaq Ahmad and Rahim Bakhsh P. Ws. in so far as it does not explain the injuries received by the accused. Prom the evidence of Ghulam Qadir P. W. it transpires that the accused and the deceased and Rahim Bakhsh were grappling with each other exchanging fist blows. He further conceded that one of them had a hair‑cutting machine with him. The doctor's evidence shows that the contused wound on the head of the accused could not be caused by a friendly hand and that it could be caused by the back of hair‑clippers. It appears to us that the quarrel had been started by the deceased who had felt aggrieved on account of the accused having turned him out of his house and during this quarrel which was a sudden affair blows were given to the accused and he caused the solitary injury on the temple of the deceased which proved fatal as also the solitary injury on the thigh of Rahim Bakhsh P. W. with a knife. The injury of the deceased and that of Rahim Bakhsh have been admitted by the accused as having been caused by him. He, however, denies that he caused them with the knife which is said to have been recovered from him and which, according to the Chemical Examiner, bore blood marks. The learned Sessions Judge has not believed the evidence of the recovery of the knife produced in Court on the ground that if, indeed, as is alleged by the prosecution, the accused had taken the precaution of washing his clothes, he could not have failed to take this precaution regarding the knife, and in case this precau tion had been taken with regard to the knife, the detection of blood‑stains thereon would have become impossible.
14. We do not feel confident about the evidence regarding the recoveries as given by the prosecution. Only one person, Allah Rakhio, has been produced as a witness of these recoveries as also regarding other matters taking place at the police station after Mushtaq Ahmad had lodged the fist information report. It is significant that the other witnesses, who, in addition to Allah Rakhio, had attested the memos at the police station and other memos regarding the recoveries alleged to have taken place at the house of the accused, have not been produced by the police. This appears to us to have been done in order to avoid discrepancies in the statements of these witnesses. We, therefore, set no store by tae evidence of Allah Rakhio or Sardar Muhammad, Sub‑Inspector (P. W. 10), regarding the recovery of the clothes as also of the knife produced in Court. Ghulam Qadir has stated that the knife Oat the accused carried with him was bigger than the one produced in Court. This, while it shows that Ghulam Qadir P. W. is not animated by considerations of sympathy with the accused, also shows that the other evidence regarding the recovery of knife etc. is unreliable. It is significant that Ghulam Qadir does not support the accused in his version that the injury was caused to the deceased by the scissors. He ascribes it to be a knife, and a knife bigger than the small one produced in Court. We are inclined to the view that the version of the accused that be caused the fatal Injury to the deceased and the injury on the thigh of Rahim Bakhsh with the scissors that he had snatched from the deceased, cannot be accepted as correct.
15. The question that remains is what offence, in the cir cumstances of the case, has been committed by the accused. The motive for the initiation of the quarrel and the assault, as already pointed out, rested with the deceased rather than with the accused who had perpetrated, what seemed to the deceased, a wrong on him in driving him out of his house. The occurrence, in the circumstances, was a sudden affair in which the accused in the beat of the moment inflicted a solitary blow with the knife that he had on the temple of the deceased. We are not inclined to discredit the version of the accused that he was at that time surrounded by Rahim Bakhsh, the deceased, and by Mushtaq Ahmad P. W. We do not think that the accused took undue advan tage or acted in a cruel or unusual manner in inflicting the solitary injury on the temple with the knife that he had in his possession when he was pressed round by three persons who had already exchanged fist blows with him and were spoiling for causing him more injuries. The use of the knife on the side of the face rather than in the chest or the abdomen shows that the accused was not acting in a cruel or unusual manner in the circumstances of the case. He acted either in the exercise of the right of private defence or in the heat of the moment in the course of a sudden quarrel, which was without any premeditation on his part.
16. In view of the above, we set aside his conviction and sentence under section 302, Pakistan Penal Code, and altering his conviction from one under sections 302 to 304 Part I of the Pakistan Penal Code, reduce his sentence to six years' rigorous imprisonment. We set aside his conviction under section 324, Pakistan Penal Code, for the injury caused to Rahim Bakhsh P. W. as we are of the opinion that it was altogether covered by the exercise of the accused's right of private defence.
K. E. A.
Sentence altered.
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