Badar Munir (65) was tried by Additional Sessions Judge, Sialkot for having murdered Abdul Sattar on 11-1-1986 at 12 noon near his (appellant's) Khokha near graveyard Imam Sahib at a distance of 1/2 Km. From Police Station City Sialkot.
The learned trial Judge vide judgment, dated 29-2-1988 convicted him under section 302, P.P.C.
And sentenced him to undergo imprisonment for life plus to pay a fine of Rs.5,000 or in default thereof to undergo R.I. Of one year, half of the fine on realisation has been directed to be paid as compensation to the heirs of the deceased.
2. The convict has filed appeal.
3. F.I.R. Exh.P.D./1 was registered by Ali Asghar A.S.I. On 11-1-1986 at 2-30 p.m. On receipt of statement Exh. P.D. Of Muhammad Javaid (P.W.2) made to Ghulam Muhammad A.S.I. (P.W.12) at 2-10 p.m. At Civil Hospital, Sialkot. According to F.I.R. The complainant used to sell earth on trolley driven by tractor. On the day of occurrence he alongwith his brother Abdul Sattar (deceased) was carrying the trolley loaded with earth. When he was passing beside the Khokha of Badar Munir, he, asked him to unload the earth for him. The complainant unloaded the earth and asked for the price.
Badar Munir told him that he should come again. The complainant pressed the demand whereupon Badar Munir started-abusing him. The complainant returned the abuses. Badar Munir ran into the Khokha and brought a Chhuri. He launched attack on the complainant. Abdul Sattar intervened to save him whereupon Badar Munir gave him a Chhuri blow on the right flank. Abdul Sattar tried to run back, but Badar Munir gave him another Chhuri blow on the left buttock. P.Ws.
Muhammad Iqbal and Ghani reached the spot, hearing noise raised by the complainant and witnessed the occurrence. Badar Munir succeeded in running away. The injured was removed to the hospital.
4. Ghulam Muhammad S.I. After recording statement Exh. P.D. At Civil Hospital despatched the same for registration of the case. Thereafter he recorded statement of Waheed under section 161, Cr.P.C. After obtaining opinion on the application Exh. P.C. About his fitness to 'make statement. Prior to that he had submitted an application to the doctor whether Abdul Sattar was fit to make statement or not? The doctor had opined that he was not fit to make statement. He had visited the spot on the same day and collected blood-stained earth from there.
The investigation was thereafter taken over by Faiz Ahmad S.I. On having come to know that Abdul Sattar had died, he went to the hospital and despatched the dead body for post-mortem examination after preparing injury statement and inquest report. He had arrested the appellant on 2-3-1986. Chhuri P.2 got recovered by Badar Munir from his Khokha on 11-3-1986 was taken into possession by him vide memo. Exh. P.G.
Apart from them, the case was also investigated by Abdullah Khalid (D.S.P.) who appeared as D.W.1 and Rana Muhammad Iqbal, Superintendent of Police (P.W.16). Abdullah Khalid after investigation had recommended that Badar Munir be challaned under section 304, P.P.C. And the opposite party be challaned under section 307/148/149, P.P.C. However, S.P. Had directed that Badar Munir be challaned under section 302, P.P.C. And challan against the other party be submitted under section 307/148/149, P.P.C.
5. Statements of 16 P.Ws. Were recorded at the trial.
Dr. Mueenullah Qureshi who had medically examined Wahid Akhtar (P.W.5) at 2-20 p.m. On 11-1- 1986 appeared as P.W.1. He had found following injury on his person:-- Incised wound 8.5 c.m. x 1/2 c.m. x bone deep over hopophenar area of right hand.
The injury was kept under observation and was opined to have been caused by sharp-edged weapon within 2 to 4 hours. During cross-examination he stated that Waheed Akhtar was produced for medical examination by Ijaz Hussain Constable.
6. Dr. Shakeel Ahmad Butt who had medically examined Abdul Sattar on 11-1-1986 at 1-40 p.m.
Appeared as P.W.9. He found following injuries on his person:-- (1)An incised wound 6 c.m. x 2 c.m. x depth not probed, bleeding profusedly on the inner upper quadrant of right buttock.
(2)An incised wound 5 c.m. x 1.5 c.m. x depth not probed over the left chest anteriorly in its lowermost part.
Both the injuries were kept under observation. They were opined to have been caused by sharp- edged weapon within 1/2 to one hour The same doctor had medically examined Badar Munir appellant on the same day at 1.25 p.m. And had noted the following injuries:-- (1)An incised wound 3 c.m. x 1 c.m. x depth not probed in the right upper quadrant of the abdomen.
(2)An incised wound 5 c.m. x 1 c.m. Depth not probed on the outer aspect of left thigh in its middle.
Bleeding profusedly.
(3) An abrasion 2 c.m. x 1/2 c.m. Over the left side of the face.
He was unconscious, pu1seless and was sweating profusely. Injuries Nos.1 and 2 were opined to have been caused by sharp-edged weapon while injury No.3 was opined to have been caused by blunt weapon. The first two injuries were kept under observation. They were opined to have been caused within one hour. During cross-examination he stated that Abdul Sattar had been brought to the hospital at 1-35 p.m. While Badar Munir had been brought to the hospital at 1-25 p.m. He stated that he had not been provided the X-rays of the injuries of Badar Munir till 1-4-1986.
7. Dr. Muhammad Arif Sheikh who had performed autopsy on the dead body of Abdul Sattar on 12- 1-1986 at 10-30 a.m. Appeared as P.W.8. Apart from the incised wounds noted by Dr. Shakeel Ahmad Butt (P.W.9) he had also found that laparatmy was done by the visiting surgeon. On dissection he had found skin, muscles, peritoneum, spleen and colan cut. Death was opined to have occurred due to injury No.2. Probable time between injury and death was opined to be about 10 hours while time between death and post-mortem was opined to be 11 hours.
8. Ocular account was deposed to by Muhammad Javed (P.W.2) Muhammad Iqbal (P.W.3), Abdul Ghani (P.W.4) and Waheed Akhtar (P.W.5).
Muhammad Javed while repeating the facts given by him in F.I.R. Stated that the price of the earth was settled as Rs.80. During cross-examination he stated that they had unloaded the earth with Belcha and Kassi which were lying in the trolley at the time of occurrence. He stated that Iqbal P.W.
Had not physically interfered in the occurrence. He stated that they had not seen Badar Munir in an injured condition at the hospital. According to him Abdul Sattar was taken to the hospital in a Tonga. He denied the suggestion that the occurrence had not taken place in the manner mentioned by him. He also denied the suggestion that one Nannah had demanded Jagga Tax from Badar Munir 10/11 days before the occurrence which Badar Munir had denied; and that Badar Munir apprehending danger to his life had informed the police at the police station, and that at 12 noon on the day of occurrence Abdul Sattar armed with a pistol, Waheed Akhtar P.W. Armed with Chhuri accompanied by Roheel Akhtar etc. 5 persons had come to the Khokha of Badar Munir and had launched attack on him in which he was caused injuries and that during the occurrence he had also caused injuries to Abdul Sattar and Waheed Akhtar in self-defence. He also denied the suggestion that the police had caught Abdul Sattar and Waheed Akhtar while running from the spot and snatched from them pistol and dagger and that Faiz Ahmad S.I. And other police officials under pressure had released them and returned the weapons to them.
9. Muhammad Iqbal (P.W.3) uncle of the deceased, corroborated the statement made by P.W.2. In cross-examination he has admitted that he was residing in a village at a distance of 5/6 miles. He did not explain injuries to Waheed. He also did not explain injuries to the appellant during examination-m chief. However, during cross-examination he stated that Waheed had come to the spot sometime after the occurrence and had informed him that Badar Munir had inflicted him (Waheed) injuries and he (Waheed) had caused injuries to Badar Munir. He admitted that deceased was son of maternal-uncle of Waheed. He denied the suggestion that he did not witness the occurrence,
10. Abdul Ghani who appeared as P.W.4 while corroborating the statement of Javed, also stated, that he had stayed back at the spot; that Badar Munir had returned to the spot and in his presence had caused injuries to Waheed who had snatched the Chhuri from Badar Munir and had inflicted him (Badar Munir) injuries in self-defence. He stated that Badar Munir had again snatched the Chhuri from Waheed and went away. During cross-examination he stated that Badar Munir had come to the spot 30/35 minutes after Abdul Sattar had been taken to the hospital. In answer to a question during cross-examination he stated that the blood had also fallen at the place where Waheed Akhtar and Badar Munir had suffered injuries but police had not collected the blood- stained earth from there. He denied the suggestion that he had not witnessed the occurrence.
11. Waheed Akhtar who appeared as P.W.5 stated that on having learnt that Abdul Sattar had been caused injuries by Badar Munir he had run to the place of occurrence and found Badar Munir in front of his Khokha and when he inquired from him as to what had happened he gave him a blow with Chhuri whereafter he snatched the Chhuri and caused injuries to him. He stated that thereafter Badar Munir had again snatched the Chhuri from him and slipped away. According to him he was shifted to hospital by a constable who met him while being on way to hospital. During cross-examination he admitted that he alongwith others stood challaned under section 307/149, P.P.C. For this very occurrence. He stated that he had seen Badar Munir for the first time in his life and had guessed only that he was Badar Munir on seeing him armed with a Chhuri. The suggestions put to Javed about the occurrence having resulted due to the attack launched by Abdul Sattar. Waheed Akhtar and others on Badar Munir were also put to him which he denied. He denied the suggestion that Abdul Sattar armed with a pistol accompanied by him armed with Khanjar alongwith others had launched attack on Badar Munir; that during such occurrence Badar Munir had caused him and Abdul Sattar injuries in self-defence and that when he was running from the spot on a motor-cycle with Abdul Sattar sitting behind him he was caught by the police and transported to hospital. He also denied the suggestion that police had taken into possession dagger from him and revolver from Abdul Sattar. He also denied the suggestion that Badar Munir was already lying in the hospital in a serious condition before he was taken there. He further denied the suggestion that they had terrified the police and lodged the case by twisting the real facts.
12. Haji Allah Lok (P.W.6) claimed to have witnessed the recovery of Chhuri at the pointing out of Badar Munir on 11-3-1986 from his Khokha. During cross-examination he stated that he was asked by Ch. Faiz Ahmad S.I. To accompany him when he had gone to the police station.
13. Ghulam Muhammad S.I. Who had recorded statement Exh. P.D. On the basis of which F.I.R. Was recorded and had collected blood-stained earth from the spot and recorded statements of some P.Ws. Also appeared as P.W.12 and gave those facts. During cross-examination he stated that Abdullah Khalid D.S.P. During investigation had summoned him and asked to make statement on Holy Qur'an, whereupon he had told him that on hearing hue and cry on 11-1-1986 at about 11/12 noon he had reached Chowk Ghalla Mandi where he had seen two persons riding on a motor- cycle with public in general clamouring in' loud voice that motor-cyclists be apprehended and that he, with the help of Muhammad Yaqub and other constable had caught them and that they were Waheed P.W. And Abdul Sattar deceased; that he had snatched revolver from Abdul Sattar and Chhuri from Waheed. He stated that as both were injured he sent them for medical examination to the hospital in custody of a constable. He stated that he had deposited the weapons at the police station. He further disclosed that the relatives of Abdul Sattar on his expiry had misbehaved with him and other police officials on which weapons were returned.
14. Abid Hussain, Constable who had escorted the dead body for post-mortem examination and had handed over the articles to Investigating Officer entrusted to him by the doctor after post- mortem examination appeared as P.W.13. During cross-examination he stated that Badar Munir had come to the Muharrir of police station on the day of occurrence and had told him that he apprehended danger to his life at the hands of some persons, that he alongwith Mushtaq and Sarwar Constables had gone to Khokha of Badar Munir at the direction of the Muharrir and that when they were near the Chowk of Grain Market they had seen two persons coming on a motor- cycle one of whom was armed with a Chhuri and the other with revolver and that they had overpowered them and snatched the arms from them. He stated that in the meantime Ghulam Muhammad Bhatti A.S.I. Had also come there and helped them in doing so. According to him the persons taken into custody were Abdul Sattar and Waheed P.Ws. Who were in injured condition and so were sent to the hospital for medical examination.
15. Muhammad Akhtar H.C. (P.W.14) gave details of the articles entrusted to him by doctor and handed over by him to Investigating Officer. During cross---examination he corroborated the statement made by Badar Munir before the Investigating Officer. He also corroborated the statement made by Ghulam Muhammad S.I. And Abid Hussain Constable that revolver, motor- cycle and dagger were taken over from Wahced and deceased were kept in the police Malkhana but were later returned on the pressure of the complainant party. He disclosed that cases under section 13/XX/65 of Arms Ordinance for unlawful possession of revolver and dagger were registered by him on 9-4-1986 under orders of Abdullah Khalid.
16. Faiz Ahmad S.I. Who had partly investigated the case and during whose custody Badar Munir was alleged to have got recovered Chhuri P.2 appeared and deposed those facts. He corroborated the statements made by Abid Hussain Constable and Ghulam Muhammad S.I. About the deceased and Waheed P.W. Having been caught by the police while running on a motor-cycle in an injured condition holding revolver and Chhuri. He also stated that the weapons were returned under pressure.
Rana Muhammad Iqbal S.P. Who had also conducted the investigation appeared as P.W.16. He stated that he had not agreed with the finding of Abdullah Khalid that Badar Munir be challaned under section 304, P.P.C. And that instead he had directed that he be challaned under section 302.
P.P.C. And the other party be challaned under section 307/148/149, P.P.C. During cross--- examination he stated that he had not disagreed with the other findings of the other Investigating Officers.
The appellant during statement denied the prosecution case as a whole and pleaded innocence.
He stated as follows while answering the question, `why this case against you and why the P.Ws.
Have deposed against you':-- "The case has been foisted upon me under distorted facts by S.I. Faiz Ahmad with the connivance and also being under the threat of the complainant party. The P.Ws. Have deposed falsely being the close relations and friends of the deceased. The fact of the matter was that on 11-1-1986 at about 10-00 a.m. Abdul Sattar deceased and Nana accused to the cross-case had come to my Khokha and demanded Jugga Tax. On my refusal to pay the same there was an exchange of hot words and grappling between them and myself. They left my Khokha by extending threats to do away with my life soon thereafter. Apprehending any untoward future incident, I went to Police Station Hajipura then Police Post `A' Division and informed the Moharrir Muhammad Akhtar about the aforesaid incident who promised to send some policemen after me for my safety. On the said assurance, I came back to the Khokha. Soon thereafter Abdul Sattar deceased armed with a revolver, Waheed Akhtar, Roheel Akhtar, Shakeel Akhtar, Makhmal Jan alias Nana, Liaqat Ali and Javed out of whom Abdul Sattar is dead and the remaining except Javed are facing trial before this Court in-- cross-case came to my Khokha on motor-cycles. On reaching there Abdul Sattar deceased fired two shots with his revolver upon me but the fire missed. The remaining assailants pounced upon me with their respective daggers to murder me and in the meantime I snatched dagger from aforesaid Shakeel. During the occurrence the aforesaid assailants attacked upon me and I sustained injuries on my person at the hands of Roheel and Nana. I also during the occurrence caused injuries to Abdul Sattar deceased in the exercise of the right of self-defence.
Waheed Akhtar also sustained a minor injury on his hand during the occurrence. In the meantime some police officials of Police Post `A' Division also reached the spot. On seeing the police the assailants attempted to flee away from the spot but some of them were apprehended by the police. This occurrence was also witnessed by my were Mst. Naseem Akhtar immediately after the occurrence was over. I was removed in a Suzuki van to the hospital by my were and my nephew Dilawar. I submitted as well as my were applications to the higher authorities for honest investigation on which the case was reinvestigated by then D.S.O. Headquarter Abdullah Khalid and S.P., Sialkot. My version was found correct."
17. Abdullah Khalid D.S.P. Was examined in defence. He stated that after having recorded statements of Faiz Muhammad S.I., Ghulam Muhammad A.S.I., Muhammad Akhtar H.C., Muhammad Farooq, Muhammad Yaqub, Abid Hussain and Nazir Ahmad, Constables and on production of revolver by Muhammad Akhtar H.C. Before him he had directed registration of a case under section 13 of Arms Ordinance, 1965 against Abdul Sattar deceased. He stated that he had got registered a case against Waheed Akhtar P.W. Also under section 13/XX/65 for having been found in possession of a dagger. He further stated that he had directed the S.H.O. To register a case against the deceased, Waheed P.W. And others under section 307/148/149, P.P.C. And directed to submit challan against Badar Munir under section 304, P.P.C. During cross-examination he admitted that challan against Badar Munir was submitted to Court under section 302,P.P.C.
18. I have gone through the evidence and considered the contentions raised by the learned counsel for the parties.
19. The appellant did not deny having inflicted injuries to the deceased as well as Waheed P.W. He, however, put up his own version and produced evidence in defence also. In support of that, inter olio, he pleaded that, in fact, the deceased accompanied by Waheed P.W. And others had launched attack on him, caused him grievous injuries, and that he had acted in self-defence.
20. As it is a case of two versions, both have to be examined in juxtaposition to reach a conclusion whether the appellant can be held liable for having committed offence under section 302, P.P.C. Or the version put forth by him was more probable and nearer to truth?
21. The evidence of motive produced by the prosecution is not confidence inspiring, in that none of the P.Ws. Including police officials stated that they had seen the earth lying at the spot nor any one stated that tractor and trolley were found standing at the spot. The eye-witnesses categorically stated that the injured had been removed to hospital on a Tonga as such the tractor and trolley (had it' been there) should have been found lying at the spot. Their presence at the spot has also not been shown in the site plan. Yet the other aspect in this regard is that' the appellant could not have required the earth because he did not have a house there. He had only Khokha, which was made of wood. Earth could not have been required for repairing or plastering the Khokha, at the best roof of the Khokha could be plastered with the earth but for that a trolley load of earth could not have been required. On the other hand, the appellant's version that feeling apprehension of danger he had lodged a complaint with the police and that the deceased accompanied by Waheed P.W. And others had launched attack on him fords support from the statements of police officials.
22. The appellant according to the prosecution after having inflicted injuries to the deceased had left the spot and carried Chhuri with him. He had come back 30/35 minutes thereafter and caused injuries to Waheed P.W. In that incident, he had also; suffered injuries. There is no evidence that during second visit also, he had entered the Khokha to hide the Chhuri there. In fact he could not have done that because he had suffered grievous and dangerous injuries for which he had been removed to hospital and remained admitted there for two months. Being in such an awful bad shape he could not have been in a position to visit the Khokha during that period. However, it can be assumed that the Khokha would not have remained closed during all this time some of his relatives must have been operating the business being done by him at the Khokha, that being so, the Chhuri would not have remained unnoticed and would have been removed. The evidence of recovery of Chhuri, in the circumstances, is absolutely unworthy of I reliance.
23. According to the prosecution the appellant had been caused injuries by Waheed P.W.
Sometime 30/35 minutes after the first occurrence in which Abdul Sattar had suffered injuries.
Abdul Sattar, in the meantime, according to the prosecution had been shifted to hospital. Had that been so, Abdul Sattar would have been medically examined and admitted in hospital prior to the medical examination and admission of the appellant in the hospital, but actually that was not the case. According to the evidence the appellant was in the hospital 15 minutes before arrival of Abdul Sattar and was medically examined 10 minutes before his (deceased) medical examination. The P.Ws. In their scheme of things to hide the parts played by them did not even admit that Badar Munir was in the hospital and admitted in injured state. Their version to this extent is contradicted by the documentary evidence prepared and deposed by the doctor who was an independent witness. The version of the appellant also finds support from the statements of so many police officials who appeared as P.Ws. As against that the prosecution evidence consists of interested witnesses. In view of the above enumerated facts both the versions juxtaposed leave no room to doubt that the prosecution version of the occurrence cannot be placed reliance upon safely. The same rather appears to be doubtful. The version put forward by the appellant is more probable and near to truth. The same also finds support from evidence on record, which includes the documentary evidence as well as the oral evidence deposed by unconnected witnesses. In the circumstances, the conviction of the appellant under section 302, P.P.C. Is not maintainable. The same is set aside. The appellant instead is held liable under section 304, P.P.C. For having exceeded the right of private defence and sentenced to undergo R.I. For 7 years plus a fine of Rs.1,000 or in default to undergo R.I. For 3 months. He shall be given benefit of section 382-B, Cr.P.C.