This criminal appeal and the connected murder reference arise from judgment of learned Sessions Judge, Multan whereby he on 26-1-1981 convicted Allah Ditta aged 32 years, Zulfiqar aged 25 years and Ghulam Shabbir aged 15 years, the appellants under section 302/34, P. P. C. For the murder of Muhammad Nawaz and sentenced Allah Ditta and Zulfiqar to death and Ghulam Shabbir to imprisonment for life and a fine of Rs. 5,000 each or in default thereof to further R. I. For one year with the direction that the fine if recovered shall be paid to the heirs of the deceased as compensation. The appellants were also convicted under section 323/34, P. P. C. For causing hurt to Allah Ditta P. W. 9 and were sentenced to 6 months' R.
1. All the sentences were directed to run concurrently.
2. The occurrence took place on 12-12-1978 at 8-00 a. m. In a field situated in Chak No. 89/15L of P. S. Mian Channu. The F. I. R. Exh. P. M. Was lodged by Nusrat P. W. 8, the cousin of the deceased on the same day at 12-15 p m. And was recorded by Muhammad Shafi S. I., S. H. O., P. W.
12. The distance between the place of occurrence and the police station is,25 miles.
3. The motive as alleged by the prosecution is that the appellants suspected that Muhammad Nawaz deceased had illicit relations with their cousin namely first. Maryam.
4. The prosecution case is that at the eventful time, the deceased, Nusrat P. W.4 and Allah Ditta P.
W: 9 were present in Killa No. 11 of Rectangle No. 48 owned by Nusrat P. W. 8 when Allah Ditta armed with Churri, Zulfiqar armed with hockey and Shabbir empty-handed came there on bicycles which they threw on the road. Zulfiqar appellant raised lalkara to the effect that Muhammad Nawaz would be taught lesson for having illicit relations with Mst. Maryam. At this Muhammad Nawaz ran towards the West followed by the appellants who encircled him in Killa No. 15 of rectangle No. 47 owned by Ahmad Janoo. Shabbir caught hold of the deceased and Zulfiqar gave hockey blow on his head followed by a Churri blow on the back of right chest by Allah Ditta appellant. As a result of these injuries Muhammad Nawaz fell down and expired on the spot. When Allah Ditta P. W. 9 tried to interfere, he too, was injured by Zulfiqar appellant with his hockey. The occurrence was also witnessed by Farid, a given up P. W. It has further been stated that the appellants were injured by Muhammad Nawaz deceased and Allah Ditta P. W. In their self-defence. After the occurrence, the appellants ran away towards their dhari leaving their bicycles on the spot.
5. Dr. Shaukat Kanwal P. W. 1 conducted the post-mortem examination of the deceased. He found the following injuries on his person.
(1) A oblique lacerated wound measuring 3--'' x --'' on the right side of the forehead and on outside of the front of head. Inner end of wound 1'' above of inner third of right eye-brew. Underlying frontal bone was depressed and fractured into pieces, and cumulated fracture of orbital place of frontal bone was present. Clotted blood was present on wound and on front of the head.
(2)A vertical stab wound measuring 1'' x --'' going into right chest cavity, on lower third of back of right chest 4--'' from vertebral column and 3'' above of costal margin. Spouting of blood above downwardly. Perforating a underlying muscles. Clotted blood was present under the muscles, perforating 9th inter costal space, pleura, right lung and descending Aorta. Right chest cavity was full of blood.
In his opinion, the, death was due to shock and severe haemorrhage. Injury No. 2 was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Injury No. 1 was dangerous to life. Injury No. 1 was caused by blunt weapon while injury No. 2 was with sharp-edged pointed weapon. , On the same day, the doctor examined the 3 appellants and found 2 injuries caused with blunt weapon on the person of each accused. Except one injury on the forearm of Zulfiqar appellant, the rest were simple in nature.
On 13-12-1978, Dr. Muhammad Aslam Javed, P. W. II examined Allah Ditta P. W. And found one injury on the top of his head caused by blunt weapon and simple in nature.
6. Muhammad Shafi S. H. O., P. W. 12 inspected the spot on the same day at 3-00 p. m. He took into possession bicycles Exh. P. S and Exh. P. 6 vide memo. Exh. P. K. And Exh. P. L. On the same day he arrested Zulfiqar and Shabbir appellants. Zulfiqar got recovered hockey Exh. P. 3 (not blood- stained) which was taken into possession vide memo. Exh. P. G. Attested by Ahmad P. W. 4 and Muhammad Anwar (not produced). Allah Ditta was arrested on 13-12-1978 and he led the Police to his dhari and got recovered blood-stained Churri Exh. P. 4 from there vide memo. Exh. P. N. Attested by Nusrat P. W. And Allah Ditta P. W.
9. The Serologist's Report Exh. P. T/1 shows that the Churri was stained with human blood. Since the appellants were found injured at the time of arrest, therefore, they were got medically examined.
7. In order to prove its case, the prosecution examined as many as 12 witnesses out of whom Nusrat P. W. 8 and Allah Ditta P. W. 9 have given the ocular account of the occurrence. They also supported the recovery of blood-stained Churri from Allah Ditta 'appellant. Ahmad P. W. 4 supported the recovery of hockey from Zulfiqar appellant. The evidence of the other witnesses is more or less of formal nature.
The above-mentioned eye-witnesses have supported the case of the prosecution as detailed -in early part of the judgment They state that they alongwith the deceased were sitting in Killa No. 11 of Rectangle No. 48 when the appellants reached there on bicycles. Zulfiqar was having a hockey while Allah Ditta was armed with Churri. Shabbir was empty-handed towards the fields caving whereon their Muhammad bicycles on the road followed the deceased. They overtook him at some distance. Shabbir caught hold of him when Zulfiqar and Allah Ditta gave hockey and Churri blows on his person. Allah Ditta stated that when he tried to help the deceased, he was given hockey blow on his head by Zulfiqar appellant. The eye-witnesses have further stated that they had injured the appellants in their self-defence. These witnesses were cross-examined at length but nothing advantageous to the appellants came out.
8. The appellants when examined under section 342, Cr. P. C. Raised the plea of self-defence of their person. Allah Ditta appellant stated: ---I and the other two co-accused were going to our shops at Addah Chhab. In the way the deceased alongwith his brother Haqnawaz and his cousin Yousaf who were all armed with dangs came out from a nearby field and not from Killa No. 11 of Square No. 48. They all attacked us and injured us with their weapons. I picked up a small soti and used it in self-defence whereas Shabbir co-accused used his pen-knife taking his from his pocket in self-defence. We acted in the exercise of private defence of myself and in defence of other co-accused. In fact the deceased was bad character who had been teasing the women of the Chak. He had teased Mst. Maryam on the previous evening and on that account Noor Din my brother had reprimanded him and given him beating. By way of revenge the following morning they attacked us. They had also snatched our cycles there.--- Zulfiqar and Shabbir adopted the same version. The appellants examined Noor Din in defence who stated that prior to the occurrence, there was some - exchange of hot words between Mst. Maryam and Muhammad Nawaz deceased. On his enquiry Mst. Maryam told him that Muhammad Nawaz had teased her whereas Nawaz said that he had simply cut a joke with her. The witness states that he had given beating to Muhammad Nawaz on account of this incident and that Muhammad Nawaz while leaving the place had 'challenged to avenge the insult.
9. The learned counsel for the appellants contends that the prose--cution has failed to prove its case beyond reasonable doubts. The motive as alleged by the prosecution is false and in fact the motive was with the complainant party to attack the appellants; that the eye-witnesses being related as well as chance witnesses and having suppressed the part played by them are unreliable and in any case there is a reasonable possibility of the defence version being true.
As against this, the learned Assistant Advocate-General assisted by the learned counsel for the complainant submitted that the prosecution has proved its case beyond shadow of doubts. The ocular evidence is worth reliance and the lea of self-defence raised, by the appellants being false cannot be accepted in the peculiar circumstances of the case.
10. Keeping in mind, the guiding principles laid down by the superior Courts, for the appreciation of case of two versions, we are inclined to discuss the prosecution case first. In order to come to an independent finding as to the truth or falsehood of its case and the credi--bility of the ocular account because if we disbelieve the case of the prosecution then the statement of the accused appellants shall have to be accepted in toto. Furthermore, in case the ocular testimony is not discarded, we will then examine the two rival cases placing in juxta--position and will review the entire evidence and the circumstances at the close to arrive at a conclusion regarding the truth or falsity of the defence plea and will estimate its total effects in relation to two questions (i)Is the plea of the appellants satisfactorily established by the evi--dence and circumstances appearing in the case ?
(ii)If the answer be in the negative, is there yet a reasonable possi--bility that the plea of self- defence raised by the appellants might be true so as to cast a reasonable doubt upon the prosecution case ?
11. As far the prosecution case, we find that it is a case of prompt F.I. R. There is nothing on the record to indicate that the F.I. R. Is not a genuine document or that it was not written at the time and place of occurrence, as it purports. This F.I. R may be used to corroborate its maker, i.e. Nusrat P. W.
8. Now coming to the ocular; testimony, we find that the names of the witnesses are given in the F.I. R. They had no previous enmity whatsoever, with the appellants. It is well recognized that mere relationship does not bring a witness within the category of "interested witness". The presence of Allah Ditta P. W. 9 is proved by fact of injuries on his person. Nusrat P. W. 8 owns land near the place of occurrence and has given cogent reasons for his presence on the spot at the time of occurrence and as such he cannot be treated like a chance witness. It was a day time occurrence.
The presence of the appellant is also proved by fact of injuries on their persons. Furthermore, the appellants do not deny their presence at the time of occurrence. The eye-witnesses have been subjected to lengthy cross-examination. They stood the test. They have explained the injuries of accused appellants. Their evidence appears to be inconsonance with the probability and materially fits in with the circumstances of the case. The place where the deceased was injured, i.e. The field away from the road is a strong circum--stance which lends support to the prosecution case that the occurrence took place in a manner as alleged by the prosecution. The recovery of the blood-stained Churri from Allah Ditta P. W. Which stands proved by reliable evidence, also corroborates the prosecution case. For all these reasons, we are inclined to believe the ocular evidence.
12. Since the ocular account has not been excluded, we proceed to examine two rival cases by placing them in juxtaposition and review the entire material placed on the record including the statement of the appellants and the surrounding circumstances for arriving at a conclusion regarding the truth or falsity of .The defence plea. We will esteem its total effect with relation to the two questions as formulated above. In order to resole these questions, we would like to reproduce the defence plea in the words of Allah Ditta at the cost of repetition.
1983] ---I and the other two co-accused were going to our shops at Addha Chhab. Its the way the deceased alongwith his brother Hdqnawaz and his cousin Yousaf who were all armed with dangs came out from a nearby field and not from Killa No. 11 of square No. 48. They all attacked us and injured us with their weapons. I picked up a small soti and used it in self-defence whereas Shabbir co-accused used his pen-knife taking from his pocket in self-defence. We acted in the exercise of private defence of myself and in defence of other co-accused. In fact the deceased was bad character who had been teasing the women of the Chak. He had teased Mst. Maryam on the previous evening and on that account Noor Din my brother had repri--manded him and given him beating. By way of revenge the following morning they attacked us. They had also snatched our cycles there.--- 13.At this stage adverting to the first question i.e. ---is the plea of appellants satisfactorily established .By evidence and circumstances appearing in the case ?"
It is remarkable that the appellants have not produced any witness of the main occurrence to establish the plea of self-defence. The plea is also not spelt out from the prosecution evidence. The medical evidence rather belies the statement of the appellants inasmuch as the sharp-edged injuries found on the person of the deceased does not appear to have been C caused by a pen- knife as claimed by the defence. Th5jecovery of blood--stained Churri from Allah Ditta also excludes the "use of pen-knife by Shabbir appellant. For these reasons, we propose to answer the first question in negative. So far as the second question is concerned, i.e. ---is there yet a reasonable possibility of the defence version being true ?"
We find as stated by Muhammad Shafi, S. H. O., P. W. 12 that the dead body was not lying near the two cycles. This solitary circumstance is indicative of the fact that the occurrence did not take place in the manner as stated by the appellants. Had the complainant party opened the attack on the appellants, when they were on the road on their cycles then the blood must have fallen on the road and the dead body must be lying near the cycles. Furthermore, had Noor Din given beating to the deceased as suggested by the defence and stated by Noor Din D. W. 1 himself, then there was no motive for the complainant party to attack the appellants, rather Noor Din would have been their target and not the appellants. The seat of the injury i.e. The back of the chest also negates the exercise of the right of self-defence. For all these reasons, we are inclined to hold that there is no reasonable possibility of the defence version being true. The second question is answered accordingly. To our mind, in p order to save their skin, the appellants have introduced a false plea of the right of self-defence. It appears that to save the co-accused, Shabbir has owned liability of the infliction of a fatal blow to the deceased with his pen-knife.
14. For what has been stated above, we are of the view that the prosecution has proved its case through reliable witnesses and circumstances and there is no possibility of the existence of the right of self-defence to the appellants. Despite this, we are inclined to give, benefit of doubt to Shabbir appellant for the reason that the application of section 34, P. P. C. To his case might not be in accordance with the safest administration of justice in criminal cases inasmuch as he was empty handed and his facilitation was not required by the co-appellants because in the circumstances of the case, they could easily inflict injuries on the person of the deceased. In his case we would like to rely on a case Zarin Shah and 2 others. v. The State (1974 SCMR 376), wherein it has been mentioned:- ---The case of Zarin Shah appears to be little different. It is alleged against him that he caught hold of the deceased and Zarin Shah stabbed him. The part attributed to him is little doubtful because in the circumstances of the present case, only one person could have caused the fatal injury. On the facts of the present case, it is doubtful that Zarin Shah had caught hold of the deceased. He is entitled to benefit of doubt.--- The upshot of the discussion is that the conviction of Allah Ditt and Zulfiqar under section 302/'323/34, P. P. C. For causing the death of Muhammad Nawaz and injuries to Allah Ditta P. W. 9 are maintained. As far the sentence, we find that it is the prosecution case that the deceased was killed on account of his illicit relations with Mst. Maryam, the first cousin of the appellants and it involves question of family honour. The capital punishment is, therefore, altered to imprisonment F for life. The sentences of fine, the direction for the payment as compen--sation and the sentence under section 323, P. P. C. Are maintained As far Shabbir appellant, he is given the benefit of doubt and is acquitted of the charges. He shall be released forthwith if not required in any other case.
Allah Ditta and Zulfiqar appellants would also get benefit of section 382-B, Cr. P. C.