1994 P Cr (PLP)

Dates of hearing: 25th, 26th and 28th April, 1993. Appellants Manzoor Ahmad and Saleem Ahmad both sons of Ghularn Muhammad were tried on charge under sections 302/307/34, P.P.C. by the Ist Additional Sessions Judge, Karachi (West). By judgment, dated 28-11-1992 they are convicted for offence under section 302, P.P.C. read with section 34, P.P.C. sentenced to imprisonment for life and to pay fine of Rs.5,000 each or in default to suffer R.I. for one year more. Appellant Manzoor Ahmad is further convicted under section 326, P.P.C. and sentenced to R.I. for 3 years and fine of Rs.1,000 or in default to suffer for R.I. 3 months more. Appellant Saleem Ahmad is further convicted under section 324, P.P.C. And sentenced to suffer R.I. for 6 months. The sentences of imprisonment are directed to run concurrently. Appellants have challenged the conviction and sentence through this appeal. The brief facts of the case are that on 8-10-1979 at 12-00 noon complainant Khalid Javed, aged about 12 years, went to take water from the public tap where appellant Saleern Ahmad who had fixed a pipe with water tap did not allow him to take water but on the contrary slapped him. Deceased Mst. Sharifa, who happened to be the "Phuphi" of complainant, asked appellant Saleem as to why he did not allow Javed to get water, on which Saleem abused Mst. Sharifa and gave her kicks and fist blows. Complainant Khalid Javed then went to his school and on the way informed his father Muhammad Rasheed and uncle Muhammad Rafique who were both working in Republic Motors about the incident. Complainant was asked by Rasheed and Rafique to go to school and that they would make enquiry from Saleem. At 5-15 p.m. the same day, complainant returned from the school when he saw appellant Manzoor Ahmad inflicting Chhuri blows to P.W. Muhammad Rashid who tried to, run away but Manzoor Ahmad chased him and gave further blows. Appellant Saleem was seen causing Chhuri blows to Muhammad Rafique. On hearing the commotion, Mst. Sharifa came outside the house and when she tried to rescue Muhammad Rafique, appellant Saleem inflicted knife injury to her. In order to save her life, Mst. Sharifa rushed inside house but she was chased by appellant Saleem. P.W. Muhammad Rafique seeing this tried to restrain appellant Saleem, when he was also caused knife injury by Saleem on his waist. This incident was said to have been witnessed by P.W. Ghani whom injured Rafique asked to bring taxi for taking him and injured Rasheed to the hospital. Appellant Saleem is stated to have left his knife there while running away. Mst. Sharifa who was in the family way succumbed to her injuries, while P.Ws. Muhammad Rafique and Muhammad Rasheed who received incised wounds at the hands of appellants were taken to the hospital in a taxi. Complainant went and narrated the incident to S.H.O. of Orangi Town Police Station at 6-00 p.m. where his statement under section 154 of Cr.P.C. was recorded, on the basis of which F.I.R. No.260/92 was registered. Both appellants were arrested and at their pointing, the blood-stained knife and Chhuri were recovered and after usual investigation appellants were sent up for their trial. Charge was framed against appellants under section 302/307/34, P.P.C. on 11-8-1981 to which they pleaded not guilty and claimed to be tried. Prosecution examined P.W.1 Khalid Javed (complainant) Exh.2, who produced his 154, Cr.P.C. statement Exh.3, P.W.2 Muhammad Rafique (injured) Exh.4, P.W.3 Muhammad Rasheed (injured) Exh.5, P.W.4 Abdul Ghani Exh.6 who produced Mashirnama of arrest and recovery of blood stained clothes of appellants Exh.7, P.WS Muhammad Saeed Exh.8 and he produced Mashirnamas of recovery of Chhuri and knife from appellants Exhs.9 and

10. P.W.6 Muhammad Shafi Exh.14 who produced Mashirnama of Wardat and inquest report Exh.Nos.15 and 16, P.W.7 Muhammad Suleman Exh.17, P.W.8 Nazeer Ahmad Exh.18, P.W.9 Jalilur Rehman Exh.20 (S.H.O.), who conducted the investigation of the case and he produced an entry in the station diary Exh.21/A and F.I.R. Exh.21/B. Since Dr. Majeed and Dr. Anwar who had either conducted post-mortem examination of Mst. Sharifa or had issued certificates in respect of injured Rafique and Rasheed, were not available, on an application of A.P.P., Dr. Iqbal Ahmad was examined as P.W.10 vide Exh.23 and he produced post-mortem examination certificate of Mst. Sharifa Exh.23/A and the medico-legal certificates of injured Muhammad Rafique and Muhammad Rasheed as Exh.Nos.23/B and 23/C, supplementary medico-legal certificates of injured Abdul Rasheed and Muhammad Rafique Exhs. Nos.23/D and 23/E. The doctor also produced a certificate regarding injuries on appellant Saleem Ahmad Exh.23/G, supplementary medico-legal report of appellant Manzoor Ahmad Exh.23/H, certificate of injuries on appellant Manzoor Ahmad Exh.23/F. Court witness Baboo Muhammad Rafique, A.S.I. of Police Station Orangi Town Exh.24 was examined as he was given summons for service on Dr. Ahsan, B.Ws. of P.Ws. Muhammad Boota, Abdul Aziz P.C. Muhammad Farooq and P.W. Zakir-ur-Rehman who were untraceable. He produced his reports as Exh.Nos.24/A to 24/H. P.W.11 Dr. S.K.N. Ahsan Exh.25 also examined as he had initially examined appellant Manzoor Ahmad and Saleem Ahmad. Statement of appellants under section 342 of Cr.P.C. Exh.Nos.27 and 28 were recorded. Both denied having committed murder of Mst. Sharifa or injured Muhammad Rasheed and Muhammad Rafique. Appellant Manzoor Ahmad denied having led the police to his house and produced blood-stained Chhuri. For the P.Ws. he stated that they were inimical to him and to the co-accused. He further stated that the complainant party had constructed a septic tank outside their house and because of over flow of sullage water it caused nuisance, to which he had objected and complainant party was, therefore, annoyed with him. On the day of incident in the evening time, complainant party alongwith 20/25 others, duly armed with Dandas and Chhuris attacked him, caused injuries to him and his brother Saleem Ahmad, and someone from the mob caused injuries to Mst. Sharifa, Rasheed and Rafique. He further stated that when he went to lodge report at police station he was implicated in this case. Appellant Saleem Ahmad also gave similar statement. Both appellants stated that the injuries on their person were caused by the complainant party. Both accused examined themselves as their defence witnesses under section 340(2) of Cr.P.C. as Exhs.29 and

30. Appellants examined Mubarak Ali and Muhammad Sualeheen in their defence. The D.Ws. stated that on the day of incident they had seen injured Rasheed and Rafique alongwith 20/25 other persons duly armed with Dandas and Chhuris and both parties got injured. On conclusion of trial both appellants are convicted and sentenced as stated above. I have heard the learned counsel for the appellants and for the State. It has been argued by learned counsel for the appellants that from the evidence it is manifestly clear that both parties were armed and had attacked each other with the result that on complainant side Mst. Sharifa, Rasheed and Rafique sustained injuries while on the side of accused, both of them got injured. The learned counsel has emphasised that because appellants were attacked, they had the right of private defence which although not pleaded, yet benefit could be given if such right of accused is spelt out from the facts of the case. In support of this contention reliance is placed on Safdar Ali v. The Crown P L D 1953 FC 93 and Muhammad Zaman v. Dost Muhammad and others 1988 S C M R

388. It is next contended that in the alternative, the learned. trial Court could not have convicted both appellants under section 302/34, P.P.C. because the incident was sudden, unpremeditated and occurred at the spur of the moment and appellant Manzoor Ahmad who did not cause any injury to deceased Mst. Sharifa, could be convicted for having caused injuries to Rasheed and Rafique and his conviction under section 302, P.P.C. was as such unwarranted. Learned counsel suggested that the conviction and sentence of appellant Manzoor Ahmad may be altered to one already undergone. In support of this contention learned Advocate relied upon Syed Ali Bepari v. Nibran Mollah and others P L D 1962 SC 502 and Bati and 4 others v. The State 1975 P Cr. L J 1063. In so far as the case of appellant Saleem is concerned, the learned counsel has argued that if the entire prosecution case against him is believed, all that can be said is, that he exceeded the right of private defence and in the circumstances, he is entitled to benefit of 4th exception to section 300 of P.P.C. For this, reliance is placed on Pervez v. Khan Bahadur and 3 others 1982 S C M R 337, and Naseer Ahmed and 5 others v. The State 1984 M t. D 1461. It is lastly argued that the appellants have undergone the rigour and agony of a protracted trial, which circumstances may be taken into consideration for alteration of the sentence. Mr. M. Zubair Qureshi, learned counsel appearing for the State, has supported the conviction and sentence. It has been argued by him that the testimony of the complainant Khafd Javed which has gone unshattered alone warranted conviction and needed no corroboration, although it has duly been corroborated by injured P.Ws. Rasheed and Rafique. It is next argued that the evidence of a solitary witness if believed to be natural and true, would be sufficient to sustain conviction even on a capital charge. In support of this contention reference is made to the case of Kaleem Ahmad v. The State P L D 1993 Kar.

13. It is then argued that the eye-witnesses whose evidence does not suffer from any major or significant contradiction should be believed as is done by the trial Court. Reference in support of this contention is made to the case of Muhammad Ashraf etc. v. State 1989 P Cr. L J 2211 and Haji Ahmad and 2 others v. The State 1971 S C M R

326. It is further argued that common intention is to be gathered from the conduct of the accused and attending circumstances. Mere fact that the, fight was sudden does not make section 34 of P.P.C. inapplicable when action of the accused showed common intention. Ir. support of these contentions reference is made to Khushi Muhammad and others v. The Crown 1969 S C; M fi 599 and Muhammad Akbar v. The State P L D 1961 Lah.

348. It is lastly argued that to determine common intention, prearranged plan is not always necessary but such intention may develop at the actual hour of occurrence and in such cases if the accused are resisted, and they also suffer any injury, right of private defence cannot be claimed. To support this contention, reliance is placed on Sanaullah and others v. The Crown P L D 1954 Lah. 382 and Atta Muhammad etc. v. The State 1980 P Cr. L J

245. Mr. Latifur Rehman, Advocate appearing for the complainant is also heard. While supporting the conviction and sentence he has argued that motive is not always necessary in each case but it is the credibility of a witness that is to be judged. If the evidence of the eye-witnesses rings true, that would be sufficient to record conviction on a capital charge. In support of these contentions learned Advocate has referred to Shah Nawaz alias Shahnoo v. The State 1991 P Cr. L J 83, Muhammad Amin and 3 others v. The State 1991 P Cr. L J 186 and Ahmad Khan and 2 others v. The State 1991 P Cr. L J

304. The evidence in the case consists of ocular testimony, corroborated by medical evidence, motive, and circumstantial evidence. The learned trial Court has, disbelieved evidence regarding motive and circumstantial evidence i.e. recovery of blood-stained knife and Chhuri at the pointing of appellants and their blood-stained clothes. Then remained ocular testimony, corroborated by medical evidence, which was believed and conviction recorded. Ocular evidence has come through P.Ws. Khalid Javed (complainant), Muhammad Rasheed, Muhammad Rafique (both injured), Abdul Ghani and Muhammad Suleman. Presence of injured P.Ws. Rasheed and Rafique is admitted even by the accused, according to whom these witnesses alongwith others came duly armed with Dandas and Chhuris and attacked upon them. P.W. Abdul Ghani resided in the same "Mohalla", had seen the incident and taken injured to the hospital. His presence at the scene is admitted by P.W.5 Muhammad Saeed, who had reported the matter to police before complainant Khalid Javed lodged report. Evidence of P.W.7 Suleman is significant for two fold reasons. Firstly that he had witnessed the incident at water tap at 12-00 noon the same day, when Khalid Javed was disallowed by appellant Saleem to take water and secondly that he was present in the evening when the incident took place, in which Mst. Sharifa died and P.Ws. Rasheed and Rafique received injuries. Evidence of P.W. Abdul Ghani is criticised on the ground that he being "Ustad" of injured Rafique and Rasheed is interested witness and his evidence required deeper scrutiny. Merely on that score, his evidence, which is free from any taint or malice, cannot be discarded. All eye-witnesses are consistent, natural and trustworthy and their evidence cannot be doubted. A Nothing has been shown during cross-examination that they were either partisan, chance witnesses or connected with the deceased or two injured. If their evidence is read between the lines, and the tenor of cross-examination is assessed, it would lead to the only inference that they being actual witnesses furnished true account of incident. The defence had totally failed to prove their version that injured Rafique and Rasheed alongwith others had attacked them with Lathis and Chhuris and some one from the mob caused death of Mst. Sharifa and injured Rasheed and Rafique, besides causing injuries to them e (appellants). Eye-witnesses Khafd Javed, Rasheed and Rafique do not seem to have any reason to falsely implicate appellants. Learned trial Court has not attached much importance to the evidence of complainant Khalid Javed for the reason that the time of occurrence given by him does not conform to the time given by P.W.5 Muhammad Saeed, who had lodged earlier report Exh.21/A, and gave a different time. Complainant Khalid Javed's evidence is also not given due weight because he was not supposed to be present at the scene of occurrence, as his school which is at one mile distance closed at 5-30 p.m. and he had then to reach his house by a bus. To my mind such could be no reasons to doubt his trustworthiness. Some allowance had to be given to this witness in view of his age and experience to narrate the incident. He was slapped by appellant Saleem at 12-00 noon when he went for take water from the public tap and was refused to draw water. When he reported the matter to his "Phuphi" Mst. Sharifa, she enquired from appellant Saleem why he had slapped Khalid Javed, upon which Saleem got provoked and gave kicks and fist, blows to her. Khalid Javed also witnessed the occurrence in the evening and gave correct account of it. I would, therefore, accept his evidence, which being in line with the evidence of other eye witnesses, cannot be brushed aside. His evidence is also corroborated by medical evidence. Evidence of motive and circumstantial evidence in the nature of recovery of blood-stained knife and Chhuri at the pointing of appellants, is ruled out of consideration by the trial Court. Similarly, recovery of blood stained clothes of appellants, which were not sent for examination by chemical analyser, is treated as no circumstantial evidence. I would, however, deal with motive at some length. Appellants on their own showing were annoyed over construction of a septic tank by complainant party because the overflow of sullage water caused annoyance to them for which they had time and again reprimanded Rasheed and Rafique and desired of them to close the tank. Appellant Saleem was also harbouring a grudge against deceased Mst. Sharifa who had exchanged harsh words with him at 12-00 noon when Khalid Javed informed her that appellant Saleem had not only refused him to draw water from the tap, but had also slapped him. Appellant at that moment of time even assaulted Mst. Sharifa. This suggests that appellants had motive to deal with complainant party at the right time. Such occasion arose when appellants were asked by injured Rasheed and Rafique in the evening, as to why Saleem had slapped Khalid Javed and assaulted Mst. Sharifa. Although evidence of motive is somewhat week, yet it cannot be said that appellants had no motive to C commit the offence. There are cases where motiveless murders are committed. I, however, agree with the finding of the trial Court in so far as circumstantial evidence is concerned, as it was not reliable. Corroboration to ocular testimony is fully provided by medical evidence. Mst. Sharifa suffered one incised injury 1-1/2" x 1" chest deep G on the mid axillary line just 6" below and lateral to the left nipple. This injury is said to have been caused by appellant Saleem. P.W. Muhammad Rafique has suffered 3 incised wounds on the back which are caused by appellant Manzoor Ahmad. These injuries although caused by sharp cutting weapon are declared simple. P.W. Muhammad Rasheed has suffered 2 incised wounds which are caused to him by appellant Saleem. Injury No.l on the abdomen was declared grievous. Admittedly both appellants had also sustained injuries. Appellant Saleem Ahmad had 3 incised wounds which are certified to be simple in nature. Appellant Manzoor Ahmad had 3 injuries which are either swelling or abrasion and all the injuries are declared simple. If the defence version that complainant party came armed with Lathis and Chhuris and attacked them, is believed, appellants would not have suffered injuries of the nature as are found on their person but the same would have been more serious in nature. The plea of either self-defence, occurrence being unpremeditated or that appellants were attacked by complainant party cannot be accepted. The reason for this is, that in the first place there is no evidence that may lead to an inference that the complainant party had attacked appellants. Even the version given by the accused or the defence witnesses that the complainant party alongwith 20-25 persons reached the spot and attacked them with Dandas and Chhuris is falsified by their own suggestions given to the witnesses in cross examination. P.W, Muhammad Rasheed who is an injured witness was suggested that he alongwith 5/6 other persons had attacked the appellants but in their statements under section 342 or 340(2) of Cr.P.C. the number of accomplices of P.Ws. Rasheed and Rafique is shown to be 20/25. Appellants, as such, who introduced a theory of self-defence were shaky and inconsistent and, therefore, the plea of either self-defence or the incident being a sudden one, without premeditation cannot be accepted. In the case of Syed Ali Bepari E P L D 1962 SC 502 it was observed that parties do not generally come out with true story and incompleteness of tale would not deter Court from drawing proper inferences from evidence and circumstances. Case of the appellants is not covered by the .rule laid down in the above judgment because neither the story given by the prosecution was incomplete nor the consequences arising therefrom suggested any right of private defence. In the case of Bati and others 1975 P Cr. L J 1063 where both parties received injuries resulting in one death and the injuries on persons of accused supported their participation in the fight and where the prosecution witnesses suppressed the fact of free fight, it was held that circumstances of case suggested happening of something at the spur of the moment resulting in sudden fight and the conviction under section 302, P.P.C. was altered to one under section 304(1). Since appellants were not attacked by complainant party, they had no right of private defence, much less to assume that they had exceeded right of private defence. As such, the rule laid down in the case of Pervaz 1982 S C M R 337 would not be attracted in the instant case. In the cited case it was observed that where there was incompletenoss of story from both sides, it would not deter Courts of law to determine correct position for resolving controversy involved in the case. There is yet another aspect of the case which needs to be adverted to. Both appellants are real brothers and resided in the same "Muhalla" and opposite to the house of the complainant and P.Ws. Rafique and Rasheed. From evidence it appears that there was some illwill between the parties on account of a septic tank constructed by the complainant party in front of their house for which it seems they were reprimanded by appellants on some occasion. The incident that took place at 12-00 noon the same day when complainant Khalid Javed was refused to draw water from the public tap and leas slapped by appellant Saleem, is significant. In that background, Rasheed (father of complainant Khalid Javed) and Rafique (uncle of 6 complainant) on their return from duty in the evening had questioner appellant Saleem as to why he had slapped Khalid Javed. Instead of offering regrets, both appellants Saleem Ahmad and Manzoor Ahmad who were duly armed with knife and Chhuri attacked P.Ws. Rasheed and Rafique and caused them incised wounds. Deceased Mst. Sharifa the real sister of P.Ws. Rasheed and Rafique on hearing the commotion came outside the house when she was given Chhuri blow by accused Saleem. Although she tried to go inside the house she was even chased. It is painful to mention that Mst. Sharifa was in the family way and succumbed to her injury. The intention of appellant F Saleem Ahmad to cause the death of Mst. Sharifa who was admittedly unarmed is spelt out from the circumstances of the case. The case of appellant Manzoor Ahmad is distinguishable inasmuch as it has come in evidence of G P.W. Khalid Javed that he caused knife injury to Mst. Sharifa, but the same is not corroborated by medical evidence. Appellant Manzoor Ahmad does not seem to have shared common intention with appellant Saleem Ahmad in causing the death of Mst. Sharifa. His conviction under section 302 read with section 34 of P.P.C. can, therefore, not be sustained. Conviction of appellant Saleem under section 302, P.P.C. as well as under section 324, P.P.C. is maintained. As a result of the above discussion the appeal of appellant Saleem Ahmad which merits no consideration is dismissed. Conviction of appellant Manzoor Ahmad under section 326 is maintained but the sentence awarded to him is altered to one already undergone. He shall be released forthwith if not required in any other case. N.H.Q./M-1924/K Order accordingly.