P L D 1966 Supreme Court 264 (PLP)

A. R. Changez Senior Advocate Supreme Court instructed by Naziruddin Senior Attorney for Appellant. Iftikharul Haq Advocate Supreme Court instructed by Ijaz Ali Attorney for the State. Date of hearing: 22nd December 1965. CORNELIUS, C. J.--This appeal by Ghulam Farid is brought as of right against a judgment of the High Court whereby, altering on appeal his conviction under section 304, Part I, to section 302, P. P. C., he was awarded a sentence of transportation for life. The deceased was also named Ghulam Farid, and will be described as Ghulam Farid Qureshi for the purpose of distinction. The appellant, although he and his co-accused, namely, his father and his brother, described themselves as chadhars, when questioned at the trial, are elsewhere in the record described as powlies (weavers) and would be kamins in the village. The occurrence was described to the Police in the initial report by Ghulam Farid Qureshi himself, at thana Khushab, some nine miles from the village, in the following terms. The previous day, two young school-boys, namely, Abdul Quddus, brother to the deceased and Iftikhar Ahmad, his cousin, had a quarrel with another boy Abdul Majid cousin to the appellant over a book which had been stolen, and Ghulam Farid had interfered and beaten both the Qureshi boys. The following morning according to the initial report the deceased after saying his morning prayer on emerging from the mosque met the appellant Ghulam Farid, and taxed him for having beaten his young relations. Thereupon, Ghulam Farid appellant replied sharply and there was a quarrel and immediately Ghulam Farid appellant produced a knife, and attacked the deceased striking him twice in rapid succession in the stomach. Then the appellant's father Muhammad Siddiq and his brother Muhammad Sharif appeared carrying lathis and they also assaulted the deceased. Muhammad Siddiq's lathi blow struck the deceased on the head and Sharif's blow on the left shoulder. In response to the cries of the deceased, two persons, namely, Rab Nawaz and Faiz Rasul, both Qureshis, who were close-by, appeared and rescued him. This statement was recorded at 1 p.m. A doctor at the local hospital examined Ghulam Farid Qureshi at 2-30 p. m., and in addition to two punctured wounds in the abdomen found a small incised wound on the left parietal region, a bruise on the left shoulder, and two other minor injuries. In view of his dangerous condition the injured man was sent to the Civil Hospital at Sargodha, ; where at about 6 p.m., the Medical Officer Dr. Farooq Ahmad asked that his statement should be recorded, whereupon a Magistrate, Mr. Shaukat Ali, arrived and recorded a dying declaration, which was in somewhat different terms from the initial report. The time of the occurrence was given as 8 a.m., which is long after the conclusion' of the morning prayer. The earlier beating given to his young relations the previous day was mentioned, and on this day, Ghulam Farid Qureshi said that he went to the place of the powlies to ask Ghulam Farid appellant why he had beaten his relations. There was a quarrel and Ghulam Farid appellant produced a knife and gave him blows and then the appellant's father arrived and gave him a blow on the head with a dang, which caused only a slight injury. He was saved by Ahmad Sakhsh and Bakhsha tarkhans besides whom two other persons also came. From this account, the impression is gained that the meeting between the two Ghulam Farids was not accidental, but the deceased went and sought out the appellant to tax him with his conduct of the previous day. Secondly, there is no mention of Muhammad Sharif, the brother of the appellant. Thirdly, there is no mention of Rab Nawaz'and Faiz Rasul, who in the initial report were said, to have rescued him, but the names of two tarkhans are given. Dr. Farooq Ahmad performed the autopsy the death having taken place at 11-15 p.m., the same day, i.e., the 30th June 1961, and he noted only three injuries, namely, the two punctured wounds, and the incised wound on the left parietal region. It could well be that these being the outstanding injuries, and the death being obviously the result of the two punctured wounds, the doctor did not think it necessary to make a particularly careful examination of the rest of the body, but the result of his failure to notice any injury on the deceased's left shoulder was that Muhammad Sharif was acquitted at the trial. Muhammad Siddiq was also acquitted on the ground that the injury on the head was seen to be an incised wound, whereas in evidence it was said that the blow was struck with a lathi. Where the bone lies immediately under the skin, a sharp blow even with a blunt weapon often causes a rupture of the skin, which being linear and narrow gives the impression of an incised wound. This matter does not appear to have been brought to the notice of the trial Judge. It should be mentioned, however, that the trial Judge disbelieved the evidence given by the two eye-witnesses produced before him, namely, Faiz Rasul and Rab Nawaz. The witnesses mentioned in the dying declaration, namely, Ahmad Bakhsh and Bakhsha, tarkhans were not produced before him. This too is regrettable, for it is often found that a dying declaration made elsewhere than at a thana is more worthy of reliance than one made in the presence of the Police, where also the relatives who have brought A the injured man to the thana are generally present and usually cannot be prevented from putting a prepared case through the mouth of the deponent. However; it was open to the defence to call these persons in evidence, if they had had a factual case to present. The plea put forward was false implication, and no evidence was produced in defence. The trial Judge, however, accepted the evidence of the two statements made by Ghulam Farid Qureshi to the extent of the charge against the accused Ghulam Farid that he had caused the knife injuries. Ghulam Farid had denied this, but had admitted the incident of the children the previous day, which is also relied upon by the prosecution as giving to Ghulam Farid accused a cause for carrying violence to the deceased. The trial Judge found it impos sible to believe that the deceased would, in the circumstances, that is when the occurrence took place in day-light, have "ascribed his fatal injuries to an innocent persons" and should have missed mentioning the names of the real assailants. The others named besides the appellant Ghulam Farid, being his father and his brother, and there being no previous enmity of any kind, it is reasonable to infer that the deceased would have named his principal assailant from among the three accurately and truthfully. The trial Judge, however, in estimating the nature and quality of the crime, assumed that Ghulam Farid Qureshi "must have attacked Ghulam Farid accused and the latter used the knife in exercise of the right of private defence". He concluded that the aggression was by Ghulam Farid Qureshi, and since the deceased had no weapon, there had been excess of the right of private defence by Ghulam Farid accused, and on this basis, as well as on an inference that the matter was one of sudden fight following a sudden quarrel, he recorded a conviction under section 304, Part I, and imposed, the very light punishment of three years' rigorous imprisonment. Ghulam Farid appealed in the High Court, and there was also an appeal by the State seeking his conviction for murder. In the High Court, the evidence was re-examined and here again it was held that the two statements of the deceased could be relied upon as against Ghulam Farid appellant, because they "uniformly and consistently ascribed the knife blows" to him. The learned Judges proceeded further to hold that "Ghulam Farid appellant appears to have made a deliberate assault on the deceased." They rejected the view of the trial Judge that Ghulam Farid appellant had acted in self defence, giving several reasons, of which the most important is 'that if Ghulam Farid Qureshi 6 had gone with the intention of carrying violence to Ghulam Farid appellant, he would not have gone alone and unarmed. The major circumstance in support is that Ghulam F arid appellant bore no injury on his person. They held that Ghulam Farid Qureshi administered merely "oral castigation" to the appellant and the latter had no right to retaliate with a knife as he did. They excluded also the possibility of the case falling within Exception IV, to section 300, P. P. C., on the ground that a knife was used with great violence to an unarmed man. They accordingly allowed the State's appeal and made the order already indicated, while dismissing the appeal of Ghulam Farid. Mr. A. R. Changez appearing for the appellant has stressed before us the discrepancies between the two statements of the deceased, and has remarked on the non-production of the witnesses mentioned in the second dying declaration, as well as the other points of difference indicated above. These matters have already been considered in the Courts below, and they have found themselves to be satisfied beyond reasonable doubt that the appellant Ghulam Farid did indeed stab the deceased twice with a knife. No reason appears for interfering with that finding of fact. The case of self-defence allowed by the trial Judge was clearly, based on nothing more than speculation. It may well be that Ghulam Farid Qureshi sought out the appellant Ghulam Farid to remonstrate with him and it could be that he did so harshly, bearing in mind the difference of social status, but it is clear that Ghulam Farid did not attempt violence of any kind towards Ghulam Farid appellant. The latter could at the most claim, in law, consideration for the circumstances that he was subjected to some degree of provocation, and sufficient allowance has been made for that by the imposition of the lesser sentence of transportation for life. We accordingly dismiss this appeal. (Case approved for reporting only for point marked "A" at p. 266) K. B. A. Appeal dismissed.