' Muhammad Rafiq Tarar, J.--Ghulam Jafar (63/64) son of Gul Muhammad, Allah Bakhsh (31/32) son of Ghulam Jafar, Muhammad Yaqub (32/33) son of Hatem Khan and Muhammad Hayat (37/38) son of Muhammad Bakhsh, Awan by caste, residents of Jandran, Police Station Lilla, District Jhelum, were tried by the learned Additional Sessions Judge, Jhelum, under section 302/34, P.P.C.
By judgment dated 29th March, 1980, Muhammd Yaqub and Muhammad Hayat were acquitted while Ghulam Jafar and Allah Bakhsh were convicted on the said charge. Allah Bakhsh was awarded capital punishment subject to confirmation by this Court and a fine of Rs,2,000 or in default in the payment thereof to suffer rigorous imprisonment for one year. Ghulam Jafar was sentenced to imprisonment for life and a fine of Rs,4,000 or in default of its payment to suffer further rigorous imprisonment for two years. The convicts have appealed and the case is also before us on reference under section 374, Cr.P.C. For confirmation of the death sentence awarded to Allah Bakhsh appellant. Both these matters shall be disposed of by this judgment.
2. The occurrence took place on 23rd November, 1977 at sunrise time in village Jandran, Police Station LiIla, District Jhelum. The F.I.R. Version is that on the fateful day at sunrise time Muhammad Hayat deceased came out of his house in _order to answer the call of nature. He had hardly gone 15-20 paces when Muhammad Yaqub, Muhammad Hayat, Jafar and Allah Bakhsh accused suddenly confronted him raising Lalkaras. Muhammad Yaqub and Muhammad Hayat were empty- handed while Jafar and Allah Bakhsh were armed with hatchets. Muhammad Yaqub and Muhammad Hayat overpowered the deceased. Jafar accused gave a hatchet blow on his right arm and Allah Bakhsh accused gave a hatchet blow hitting his back ribs of the right side. On the alarm of the deceased, Nur Muhammad, Ghulam Ahmad and Muhammad Yusuf got attracted.
They rescued the deceased from the accused persons.
' The motive for the occurrence was that a theft was committed in the house of Muhammad Afzal, husband of the sister of the deceased. Muhammad Afzal and the deceased suspected Jafar and Allah Bakhsh for the theft. The matter was settled by a Panchayat, over which Jafar accused felt aggrieved.
3. After the occurrence, Muhammad Yusuf, Ghulam Ahmad and Nur Muhammad P.Ws. Took the deceased in injured condition, to Civil Hospital, Pind Dadan Khan, but the doctor was not available there. Then they carried him to rural dispensary, Daryala, where a doctor administered first aid and sent the injured to D.H.O. Hospital, Jhelum, from where he was referred to D.H.Q Hospital, Rawalpindi.
' On 24th November, 1977 Manzur Hussain, A.S.I., Police Station A-Division, Rawalpindi, reached D.H.Q.
Hospital, Rawalpindi and recorded the statement Exh.P.H. Of Muhammd Hayat deceased at 1-45 p.m. On the basis of which formal F.I.R. (Exh.P.H/1) was recorded at Police Station LiIla, at 10 p.m.
Initially the case wsa registered under section 307/34, P.P.C. On 28th November, 1977 Muhhammad Hayat injured expired in D.H.Q. Hospital, Rawalpindi, and the offence was altered to section 302, P.P.C.
' On 25th November, 1977 Muhammad Shari, A.S.I, Police Station LiIla, reached the spot and secured some blood-stained earth vide memo. Exh.P.D. He arrested Jafar and Allah Bakhsh accused on 27th November, 1977 and Muhammad Yaqub and Muhammad Hayat accused on 29th November, 1977.
On 2nd December, 1977 Jafar accused led to the recovery of bloodstained hatchet (Exh.P.1) from his house which was made into a sealed parcel vide memo. Exh.P.A. On 8th December, 1977, Allah Bakhsh accused led to the recovery of blood-stained hatchet (Exh. P.2) from his house which was made into a sealed parcel vide memo. Exh. P.B. After the investigation, the accused persons were challaned.
5. On 23rd November, 1977 Dr. Afzal-ur-Rehman, Medical Officer, D.H.Q. Hospital, Jhelum, gave first- aid to Muhammad Hayat deceased and referred him to D.H.Q. Hospital, Rawalpindi.
6. On the same day Dr. Muhammad Siddiq, Medical Officer, D.H.Q. Hospital, Rawalpindi, examined Muhammad Hayat deceaed, when alive, and found the following injuries on his rerson:-
(1) A verticle stab incised wound 5I" cutting the muscles, ribs and lung on back of chest right side middle.
(2) A transverse incised wound 3" x 1i" x 1f" on back lower part of right arm 1" above the elbow joint.
' The patient was conscious but in shock. Injury No,1 was grievous and dangerous to life. Injury No,2 was kept under observation. Both the injuries were caused by sharp-edged weapon.
' On 28th November, 1977 Dr. Muhammad Siddiq, Medical Officer, D.H.Q. Hospital, Rawalpindi, conducted the autopsy on the dead body of u h am ma d Hayat deceased and found the following injuries on it:-
(1) A stitched verticle incised wound 5i" cutting the muscle and 8th, 9th and 10th ribs on right side back of chest middle. The lungs and its blood- vessels were also found cut underneath and the cavity was full with blood.
(2) A transvese stitched incised wound on back lower p-art right arm 3" from and 3" above the elbow joint.
' In the opinion of the doctor, death was due to serious shock and haemorrhage resulting from injury No,1 which was sufficient to cause death in the ordinary course of nature.
7. On 23rd November, 1977 Dr. Muhammad Taqui, Medical Officer, Rural Dispensary, Daryala Jalap, examined Jafar accused and found four injuries on his person, simple in nature caused by blunt weapon.
' On the same day the same doctor examined Allah Bakhsh accused and found eight injuries on his person, simple in nature caused by a blunt weapon.
8. In support of its case the prosecution examined two eye-witnesses, namely, Ghulam Ahmad and Muhammad Yusuf. It also relied on the dying declaration, the recoveries of hatchet at the instance of the appellants and the reports of the Chemical Examiner and the Serologist.
9. The appellants pleaded not guilty to the charge. When asked to explain their injuries, they stated that they suffered the same at the hands of Muhammad Hayat deceased and Muhammad Afzal P.W. Allah Bakhsh appellant was asked why this case against him, gave a counter-version as under:- "I had given injuries to Muhammad Afzal P.W. About a month before the occurrence. On the date of occurrence when I was coming out, I was assaulted by Muhammad Afzal P.W. And the deceased.
On hearing my alarm, my father came out of his house to save me. He was also assaulted and injured by the deceased and Muhammad Afzal P.W. While coming to my rescue, he had brought a small hatchet with him and when he was also assaulted, he acted in his defence and also in my defence."
Ghulam Jafar appellant adopted the same statement. Allah Bakhsh appellant produced documents Exhs. D.F, D.C. D.H. D.J, D.K, D.L. D.M and D. N in defence.
10. The learned trial Judge accepted the prosecution evidence against the appellants and convicted and sentenced them as mentioned above.
11. The learned counsel for the appellants contended that the presence of the alleged eye- witnesses at the spot is not established; the dying declaration allegedly made by the deceased is a fake document; the prosecution story was concocted after due deliberation and the defence version gets substantial support from the facts available on the 'record.
' The learned State counsel submitted that the eye-witnesses had no enmity with the appellants and their evidence has been rightly relied upon by the trial Court.
12. Chulam Ahmad and Muhammad Yusuf P.Ws., furnished the ocular account of the occurrence.
The gist of their evidence is that on the fateful day they got attracted to the spot on hearing the shrieks of the deceased and found the deceased in the grip of acquitted accused Muhammad Hayat and Muhammad Yaqub. Jafar and Allah Bakhsh appellants who were armed with hatchets, gave one blow each to the deceased hitting his right arm and back ribs on the right side, respectively, as a result of which he fell down. They rescued the deceased by giving stick blows to the appellants.
13. The abadi of village Jandran is divided into two parts, known as Shamali and Janubi. The occurrence took place in the Janubi (southern) part of the village. Ghulam Ahmad P.W. Is a resident of the northern part and his house is at a distance of four and a half Killas from the house of Muhammad Afzal P.W. (not produced). He stated that fifteen or sixteen days prior to the occurrence, While returning to his village from Bahalwal, he alongwith Muhammad Afzal P.W.
Crossed river Jhelum on foot. In order to save his identity card from getting wet he handed it over to Muhammad Afzal P.W. Who had a plastic purse with him. On the fateful day at sunset time he went to the house Muhammad Afzal P.W. To get the Identity Card as he intended to go to Rawalpindi to make application for his employment in the army. He was present in the house of Muhammad Afzal P.W. When he heard the cries of the deceased and thereupon rushed to that side and saw the occurrence. He categorically stated: "It was only on account of my Identity Card that I visited the house of Muhammad Afzal and thereby happened to witness the occurrence. If I had not gone to the house of Muhammad Afzal for that reason I had no chance to be there or to witness the occurrence." The facts available on the record, however, indicate that this explanation is not true. The witness stated that at the time of crossing the river he had three currency notes with him. He tied his head and kept the said currency notes in those clothes. He could also keep the Identity Card with the currency notes in the clothes tied over his head and there was no need to hand it over to Muhammad Afzal P.W.
' Again, it is not understandable why Ghulam Ahmad P.W. Did not ask Muhammad Afzal to return the Identity Card after both of them had crossed the river. He stated that after the handing over of the card he met Muhammad Afzal on several occasions but never asked for its return. He further stated that four or five days prior to the occurrence he decided to go to Rawalpindi but he never tried to get his card before the day of occurrence and it was only in the early hours of that day that it struck to him that he should collect the card from Muhammad Afzal. In cross-examination he vehemently maintained that he had to go to Rawalpindi on the very day of occurrence in order to seek employment in the army and for that reason he had gone to the house of Muhammad Afzal to get the Identity Card. This version cannot be accepted because Ghulam Ahmad P.W. Being an old fellow of 60, there was hardly any chance for his employment in the army. Secondly, Eid-ul- Azha fell on the day of occurrence and we are not inclined to believe that this old man intended to undertake journey on that day to make application for getting employment in the army. The explanation offered by him for his presence in the house of Muhammad Afzal P.W. In the early hours of morning appears to have been coined to create justification for his presence at the place of occurrence situate at a distance of the four and a half Acres from his house.
14. Both the alleged eye-witnesses claim to have rescued the deceased from the appellants by giving them stick blows. According to Dr. Muhammad Taqui (P.W.16), Ghulam Jafar and Allah Bakhsh appellant had more than twenty injuries. Some of their injuries were on the vital parts.
According to the eye-witnesses, both the appellants were armed with hatchets but the alleged eye-witnesses did not suffer even a scratch. Muhammad Yusuf P.W. Stated: "During the period Ghulam Ahmad and myself gave blows to Jaffar accused, the other accused gave us no blows.
After receiving our blows, Jaffar accused never fell down. Jaffar accused retained his hatchet with him during our blows. He never used the hatchet against us. After giving blows to Jaffar accused, we gave blows to Allah Bakhsh accused ..Allah Bakhsh retained ahtchet with him and never used it against us during the blows given to him. When Allah Bakhsh accused was given blows, Jaffar accused made no attempt to save his son or to give any blows to us." Ghulam Ahmad P.W. Also made a similar statement. He stated that the accused retained hatchet in their hands but did not try to give any blow to the eye-witnesses).
We have endeavoured to reconstruct this scene but is difficult to believe it. It can be said without fear of contradiction that if the alleged eye-witnesses had wielded the sticks on the appellants, they would have showered hatchet blows' in retaliation but the alleged eye-witnesses want us to believe that the accused persons did not raise even their little finger. In the circumstances, the prosecution version does not ring true and we are not inclined to place reliance on the ocular evidence.
15. Now, we proceed to consider the dying-statement allegedly made by the deceased before Manzur Hussain, A.S.I., in Civil Hospital, Rawalpindi. Manzur Hussain, A.S.I., stated that before recording the statement he had obtained the fitness certificate from Dr. Muhammad Zafar (P.W.15).
The doctor stated that he was not present at the time when the statement of the deceased was recorded and he could not say if he "regained his senses during the time he made any statement."
The statement was recorded on 24th November, 1977 by the A.S.I, but no B effort seems to have been made after that to get the statement recorded by a Magistrate. In the dying-statement there is no mention of the injuries found on the person of the appellants. The statement is thumb- marked by the deceaesd which indicates that he was an illiterate person. It is, however, interesting to note that it shows the deceased as saying that after his medical examination the doctor had issued him medico-legal report No,4048/77. It would show that the entire statement was not from the mouth of the deceased. Being an illiterate person, how could he know the number of his medico-legal report.
The evidence on the record further shows that possibility of tutoring was also there. It is a case in which the F.I.R. Appears to have been deliberately delayed in order to gain time to build up a story.
Ghulam Ahmad P.W. Stated that he alongwith nine or ten other persons carried the injured and boarded a truck at a distance of about a doubt a furlong from Ulla Town. However, nobody bothered to lodge the report at Police Station Ulla. Out of ten or eleven persons any one could be deputed to do the same. Muhammad Yusuf P.W. Stated that he alongwith others accompanied the injured upto Pind Dadan Khan and thereafter he alongwith ten or fifteen other persons returned to their village from Pind Dadan Khan. None of these persons had accompanied the deceased to Daryala, Jhelum or Rawalpindi hospitals. Any one of them, particularly Yusuf P.W. Who claimed to be an eye-witness, could lodge the report much earlier. A number of person remained with the deceased throughout when he was taken to different hospitals. The A.S.I. Admitted that when he recorded his statement in the hospital Allah Bakhsh, Muhammad Afzal and Ghulam Ahmad P.Ws.
Were present with the deceased. In the circumstances, the possibility of the deceased having been tutored, cannot be ruled out. We, therefore, do not feel inclined to place reliance on the alleged dying statement of the deceased.
16. The motive alleged in the F.I.R./dying declaration was that a theft was committed in the house of Muhammad Afzal P.W. (not produced). The deceased and aforesaid Muhammad Afzal suspected Jafar and Allah Bakhsh for the theft. The matter was settled through a Panchayat due to which Jafar appellant felt aggrieved. At the trial Ghulam Ahmad, and Muhammad Yusuf, P.Ws, supported this version. The dying-declaration and the evidence of the alleged eye-witnesses regarding the actual occurrence having been discarded, their statement about the motive cannot be accepted unless corroborated from an unimpeachable source which is lacking in this case. At this stage it need be mentioned that Ghulam Ahmad P.W. Stated that he was also a member of the Panchayat and that the deceased also suspected the appellants for the theft. He was confronted with his statement before the police where it was not so recorded. Muhammad Afzal P.W. Was the best witness of the motive but he was withheld without assigning any reason. The motive alleged by the prosecution, therefore, remains unsubstantiated.
17. The prosecution evidence having been found unworthy of credence, the defence version alone remains in the field. It finds substantial corroboration from the facts available on the record. Allah Bakhsh P.W. Stated that one month prior to the occurrence he had given injuries to Muhammad Afzal P.W. And on the day of occurrence when he was coming out he was attacked by Muhammad Afzal and the deceased. On hearing his alarm his father came out of his house to save him. He was having a hatchet in his hand. He too was injured by the deceased and Muhammad Afzal, upon which he acted in exercise of the right of self-defence. Muhammad Yusuf (P.W.9) admitted that about two months before the occurrence Afzal P.W. Was injured by Allah Bakhsh appellant and two others and remained admitted in the hospital. Muhammad Yusuf (P.W.7), real brother of the deceased, also admitted this fact. It is pertinent to note that Muhammad Afzal who was a material-witness, was withheld by the prosecution and it appears that this was purposely done so that the true facts may not come to light. We have already observed that the prosecution version that the appellants suffered injuries at the hands of the eye-witnesses, is unbelievable.
Muhammad Afzal, given up P.W., is the husband of the real sister of the deceased. Both of them had a strong motive to attack Allah Bakhsh appellant who had earlier injured Muhammad Afzal P.W.
This circumstance lends substantial support to the plea of self-defence raised by the appellants and there is a reasonable possibility of the same being true.
' This brings us to the question whether in the circumstances of the case the right extended to the causing of death or not. According to Dr. Muhammad Taqui (P.W.16), Ghulam Jafar and Allah Bakhsh had more than twenty injuries. Some of them were on the vital parts. They had a genuine apprehension that at least grievous hurt would be the consequence of the assault if the attack was not repelled. They gave only one blow each to the deceased, as a result of which he died five days later. In the circumstances, the appellants cannot be said to have exceeded the right of self- defence.
18. For the foregoing reasons, we allow this appeal, set aside the conviction and sentence of the appellants and acquit them of the charge. Ghulam Jafar appellant is on bail. He shall be discharged from his bail bond. Allah Bakhsh appellant shall be set at liberty forthwith if not required to be detained in any other case.
' The death sentence of Allah Bakhsh appellant is not confirmed.