MUHAMMAD AMIN BUTT, J.-Ghulam Haider son of Haji Muhammad Ali, aged 35 years, caste Qasmani, resident of village Yaroo, Tehsil and District Dera Ghazi Khan, was tried by the learned Sessions Judge, Dera Ghazi Khan, on charges of murders of Ghulam Rasul son of Shahru his son Ghulam Fareed and his wife Mst. Muqeem.
2. By his judgment dated 7th of October 1976, the learned Sessions Judge found the appellant guilty on all the three counts. He, therefore, convicted the appellant under section 302, P. P. C, and sentenced him to death on each of the three counts plus a fine of Rs. 3,000 on each count or in default to further undergo R. I. For two years on each count. He also directed that the fine, if realized, shall be paid to the legal heirs of the three deceased.
3. The prosecution story is that at about 8-00 a.m. On the 22nd of November 1974 a dispute arose between Ghulam Haider appellant and Ghulam Rasul deceased, on the latter's insistence to build a wall that would allegedly obstruct the access of the appellant to the common ancestral Haveli in which both the appellant and his victims resided. The appellant is the real nephew of Ghulam Rasul deceased being a son of his real brother. In the altercation the appellant and Ghulam Rasul deceased used hot words and even filthy abuses were exchanged. Later the appellant brought a chhura from his `kotha' and inflicted injuries on Ghulam Rasul. Ghulam Fareed, who tried to rescue his father, was injured. Mst. Muqeem wife of Ghulam Rasul, who tried to rescue her son, also received a chhura blow. Both Ghulam Fareed and Mst. Muqeem fell on the ground inside the hareli and died. Ghulam Rasul, who ran out of the Haveli after being injured, was chased by the appellant and given further blows outside the haveli where he died. The appellant was caught red handed at the spot by Musa Khan C. W. 1, and Munammad Siddiq Lambardar of the same village.
4. The F. I. R., Exh. P. D. Was recorded by Noor Hussain S. L. P. W. 9 at the instance of Sher Muhammad P. W. 6, at 9-15 a.m. On 22-11-1974 at Police Station Batil, Tehsil and District Dera Ghazi Khan, which is at a distance of three miles from the place of occurrence. After recording the F. I. R., the Investigating Officer visited the spot and formally took into custody Ghulam Haider appellant who had been earlier overpowered by Musa Khan C. W. 1 and Muhammad Siddiq Lambardar of the village. The Investigating Officer also took into possession chhura P. 9 (vide memo. Exh. P. E.), which was blood-stained. He also took into possession the clothes of the appellant one shirt P. 10, two Bunyans P. 11/12, chaddar P. 13 and a pair of Shoes P. 14/1-2 all blood-stained vide memo. Exh. P. M.
All the recoveries were witnessed by Faqira P. W. 5, Noor Hussain P. W. 9 and Musa Khan C. W.
4. The appellant does not, however, dispute the factum of recovery. The articles recovered and blood- stained earth collected from .Three places were placed in sealed parcels and despatched to the Chemical Examiner and the Serologist. The latter vide his report Exh. P. U. Certified that the articles were stained with human blood. The Investigating Officer prepared the three inquest reports Exh. P.
F. P. G. And P. H. And forwarded the dead bodies of the three deceased to the mortuary for post- mortem examination. The bodies were escorted by Haji Muhammad F. C., P. W.
1. The post-mortem examination was performed by Dr. Abdul Ghani Asim P. W. 12, the then Medical Officer District Headquarters Dera Ghazi Khan, who made a statement before the Committing Magistrate which was transferred to the Sessions Court under section 509 of the Criminal Procedure Code. In his statement Dr. Abdul Ghani Asim, P. W. 12 stated that on the 23rd of November 1974 at 7-30 a.m. He conducted the post-mortem examination of Mst. Muqeem wife of Ghulam Rasul, resident of village Yaroo Police Station Batli and found the following injury on her body : "An incised wound --" horizontal in direction, on the back of left side of the chest, penetrating in type. Left lung was found ruptured."
The time between death and post-mortem was about 12 hours. According to him the death was due to shock and haemorrhage and complications of the injury. The injury was caused by sharp- edged weapon and was sufficient to cause death in the ordinary course of nature.
5. On the same day at 8-30 a.m. The same doctor performed the post-mortem examination of Ghulam Fareed deceased and found the following injuries on his body : "(1) An incised wound --" x --" on front of left shoulder.
(2) An incised wound --" x -- " on front of chest on sternum at level of third costosternal junction.
(3) An incised wound 2" x--" on left side of neck, above clavicle bone. The concerned blood vessels and apex of left lung were ruptured.
(4) An incised wound --" x muscle deep on left shoulder joint.
(5) An incised wound 1--" x --" x left lung deep on right side of back below right scapula. The wound was oblique in type."
In his opinion injuries Nos. 3 and 5 were grievous and fatal in nature, while injury No. 3 was individually, and injury Nos. 3 plus 5 collectively were sufficient to cause death in the ordinary course of nature. In his opinion the death was due to shock and haemorrhage consequent upon injuries Nos. 3 and 5. All the injuries were caused by sharp-edged weapon.
6. On the same day Dr. Abdul Ghani Asim P. W. 12, at 9-00 a.m. Conducted the post-mortem of Ghulam Rasul son of Shahru and found the following injuries on his body : "(1) An incised wound 2' x -- " on abdomen horizontal in direction, five inch above umbilicus in epigastrium lateral to middle line. Left lobe of liver was ruptured at the margin.
(2) An incised wound 2--" x 1' x skin deep below left ear on the back.
(3) An incised wound on back 1--"x --" horizontal in direction on- left side, left lung was ruptured.
(4) An incised wound 1 --" x --" x lung deep on left side of back. Lateral to injury No. 3, below left scapula.
(5) An incised wound 1" x --" x right lung deep on right side of back on medial border of right scapula.
(6) An incised wound 1" x --" x right lung deep plus front of ribs, lateral to injury No. 4.
(7) An incised wound I" X --" x right scapula.
(8) An incised wound 2" x -- " x right iliac bone deep on right side of hip joint.
(9) A scratch on right side of nose.
(10) An incised wound on right shoulders muscles 1--" x 2" x muscle deep.
In his opinion injury Nos. 1, 3, 4, 5 and 6 were grievous and fatalin nature. A11 the injuries collectively were sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-edged weapon.
7. On the same day the same doctor also examined Ghulam Haider appellant and found the following injuries on his person : "(l) An abrasion 1--" x 1/9" extending upto left nasalae. The wound was on left side of the nose.
(2) An abrasion on base of nose 1--" x --" extending up to tip of nose.
(3) An abrasion 2--" x --" on left side of back at level of eleventh rib."
All the injuries in the opinion of the doctor were caused by blunt-edged weapon and were simple in nature.
8. The appellant when examined under section 342, Cr. P. C. Admitted that he caused chhuri blows to Ghulam Rasul, Ghulam Fareed and Mst. Muqeem deceased which eventually resulted in their death but claimed that he was beaten and assaulted by Ghulam Rasul and Ghulam Farid deceased who threw sun burnt bricks (Katcba or mud bricks) causing injuries to him. He claimed that he had every apprehension of a danger to his life and gave chhura blows to Ghulam Rasul and Ghulam Fareed deceased in exercise of his right of private defence of property and person. He also contended that Mst. Muqeern rushed in and was inured by chance.
9. In support of its case the prosecution relied upon the ocular evidence comprising of the statements of Sher Muhammad P. W. 6 (complainant) father-in-law of Ghulam Fareed, Ghulam Shabbir son of Ghulam Rasul P. W. 7 and brother of Ghulam Fareed deceased and Mst. Nusrat P. W.
8 widow of Ghulam Fareed deceased.
10. In support of the claim for self-defence the learned counsel made a half-hearted attempt to rely on the statements of Muhammad Hussain P. W. 2, Faqira P. W. 5 and Musa Khan C. W. 1.
Muhammad Hussain P. W. 2 who is a real brother of Ghulam Rasul deceased identified the dead body of the deceased and Faqira P. W. 5 who was a recovery witness, in their cross-examination made some concession in favour of the defence. 1n his statement Muhammad Hussain P. W. 2 claimed to be an eye-witness of the occurrence, although he was neither mentioned in the F.
1. R.
Nor claimed to have seen the occurrence in his statement under section 161, Cr. P. C. Faqira P. W. 5, who was `recovery witness' repeated the defence story as allegedly narrated to him by the appellant. Musa Khan C. W. 1 who was earlier given up by the prosecution as having been `won over' was examined as a Court witness. The witness repeated the statement allegedly made by the appellant to Faqira P. W. 5 supporting the defence version. The statements of P. W. 2 and C. W. 1 were rejected by the learned Sessions Judge. In fact Faqira P. W. 5 and Musa Khan C. W. 1 do not claim any personal knowledge of the occurrence about which they could have possibly testified.
They claimed that the appellant had professed innocence and he gave details of the fight to Faqira P. W. 5 which was incidentally overheard by Musa Khan C. W. 1 soon after he was over powered by Musa Khan C. W. 1 and Muhammad Siddiq Lambardar.
11. While the statements of Faqira P. W. 5 and Musa Khan C. W. 1 are inadmissible for want of any personal knowledge of anything seen or heard during the course of occurrence and are in the nature of "hearsay", the statement of Muhammad Hussain P. W. 2 is hardly worthy of any credence.
He was not mentioned as a witness in the F. I. R. And even in his statement before the police under section 161, Cr. P. C. He did not come out with any of the facts mentioned by him in the cross- examination.
12. Before us the learned counsel for the appellant stated that he neither denied the occurrence nor the fact that the appellant caused the fatal injuries to Ghulam Rasul, Ghulam Fareed and Mst.
Muqeem deceased. He also does not dispute the recovery of chhura P. 9, or blood-stained earth (vide Exh. P J, P K and P L) or clothes P. 11 to 14 (vide Exh. P M). He, however, attempted to argue, that Ghulam Rasul and Ghulam Fareed deceased tried to obstruct the right of way of the appellant to the common Haveli in which the house of the appellant and the deceased were situated. He asserted that if the appellant had allowed the construction of the wall it would have prevented him from the use, occupation and enjoyment of the house where he was residing. He further contended that Ghulam Rasul and Ghulam Fareed deceased had assaulted the appellant as a result of which he received injuries and reiterated that the appellant had inflicted injuries on the persons of the deceased in the exercise of his right of private defence of property and person.
13. In his statement under section 342, Cr. P. C., before the trial Court the appellant ascribed his injuries to the sun burnt (or kutcha bricks) which the deceased threw on him. The statement of the appellant rather lends support to the prosecution evidence that sun burnt (kutcha or mud bricks) were thrown by the deceased when the appellant appeared at the scene armed with a chhura.
The deceased, admittedly, were not armed with. Any weapon whatsoever and apprehending imminent danger to their lives seem to have thrown the sun burnt (or Katcha bricks) on the appellant in exercise of their right of self-defence of their persons. Ghulam Shabbir P. W. 7 and Mst.
Nusrat P. W. 8 are natural witnesses of the occurrence. Their testimony is clear, consistent and unequivocal and we find no reason to disbelieve them..
14. Eventually the learned counsel for the appellant admitted that he was unable to support the appellant's claim ,to the exercise of right of private defence of property which could warrant the action of causing death of the three deceased. He, however, contends that the appellant committed the offence in a fit of frenzy following exchange of hot and abusive language and that the altercation preceding the occurrence should be taken as a mitigating circumstance to consider his pica for lesser penalty.
15. The ocular. Evidence establishes beyond doubt that after exchange of invectives and filthy abuses the appellant went inside his house, brought a chhura inflicted as many as 10 injuries on Ghulam Rasul deceased, five on the person of Ghulam Fareed deceased and one fatal injury on the person of Mst. Muqeem deceased with chhura P.
9. The weapon used, the location of injuries and the force with which repeated blows were struck on the three unarmed deceased leaves no doubt in our mind that the appellant took undue advantage and acted in a cruel and unusual manner.
16. The plea for an accidental injury to Mst. Muqeem is also hardly of any avail. -In the first place she has been injured at the back of left side of the chest. She was neither facing nor threatening or obstructing the appellant in her attempt to save the life of her son Ghulam Fareed. In the second place even if the appellant intended to inflict the vicious chhura blow on Ghulam Fareed deceased but accidentally hit Mst. Muqeem causing her death, the appellant would still be guilty of murder within the meaning of section 301 of the P. P. C. In this behalf we may refer to the case Abdullah Khan v. Sahib Khan (1977 SCMR 186) where three shots fired by the accused were considered as showing his determination to kill the person aimed at and it was further held that the mere fact of such person not being killed but the shot having hit another intervening person and thereby killing him would not exonerate him of the charge of murder. The offence was held to fail under section 301, P. P. C.
17. There is yet another unfortunate aspect which cannot be lost sight of. After doing away with Ghulam Fareed and Mst. Muqeem the appellant chased Ghulam Rasul who had by then fled outside of the Haveli. The appellant inflicted further injuries on the person of Ghulam Rasul who was sitting outside by the wall of the Haveli. Ghulam Rasul died there. One of the sample of blood- stained earth Exh. P J was also taken by the police from the place where Ghulam Rasul died and has been certified by the serologist as containing human blood.
18. The plea of the appellant that he did not bring the chhura from the house but snatched it from Ghulam Fareed.Deceased, is not borne out by evidence. His action in chasing and eventually killing Ghulam Rasul is indicative of his intention to wipe. Out all the three of his victims. There is nothing on record to show that the appellant was threatened with any assault causing apprehension of death or grievous hurt which could possibly entitle him to the exercise of the right of private defence. In fact the appellant, got himself armed with a chhura and taking an unlawful advantage of his ,position has been guilty of a most cruel and gruesome act in attacking and killing three persons. In the context of the circumstance A the right of private defence of person in our opinion accrued in favour of the deceased who had genuine apprehension of death. No right of private defence at all accrued in favour of the appellant:
19. In the light of above discussion we are convinced in our mind that the prosecution has been successful in establishing its case as against the appellant. In the circumstances his conviction and sentence were quite proper and well deserved and are accordingly maintained. This appeal is dismissed.
20.The death sentence awarded to the appellant on three counts is hereby confirmed.