1969 PLP 828 (SCMR)

The appellant and one Mst. Naziran were tried on the charge that they, on the night between 17th/ 18th November 1954, committed the murder of Rahmat, husband of Naziran, and both of them were convicted, Nazra under section 302 and Naziran under section 302/ 149, P. P. C. The case for the prosecution was that there was illicit intimacy between the two accused prior to the occurrence, that on the night of occurrence Muhammad Hussain and Ata Muhammad (P. Ws. 11 and 12), who are nephew and brother respectively of the deceased and who lived along with him in the same haveli, hearing his cries for help rushed to where he was sleeping; and that they then saw Rehmat being held from behind by his wife Mst. Naziran and the appellant Nazra stabbing him with a knife. Rahmat was unarmed. These witnesses saw only one stab being dealt, as the other injuries found on the deceased had already been inflicted. Muhammad Hussain P. W. and his son Muhammad Ashraf, who was tendered but was not cross‑examined and who had gone there with his father, hit the appellant with sticks and felled him down, while Ata Muhammad (P. W. 12) pressed the appellant down and thus secured him. Ashraf then hit Naziran also. Rahmat who had fallen down died on the spot. Hayat, father of the appellant, and three others came to the scene of occurrence hearing the alarm and attacked P. Ws. 11 and 12 who also sustained injuries, but the appellant was detained by the witnesses and was in their custody till the police arrived there. There were four incised injuries on the deceased; two penetrating wounds deep to the chest cavity on the left side, a punctured wound on the, right side of the neck and an incised wound on the left upper arm. Death was due to shock and haemorrhage caused by the left lung having been stabbed. Mst. Naziran had 7 injuries : two incised wounds, three contusions and an abrasion which were simple injuries and a large contused area involving a fracture of the tibia. The appellant had 15 injuries, 14 of them were contusions and abrasions and only one injury was grievous. The version of the appellant in the Committing Magistrate's Court and at the trial was that on the night in question while he was passing the house of witness Muhammad Hussain taking paddy on donkeys, that witness, P. W. 12 and another witness Ali Muhammad gave him blows with sticks as a result of which be became unconscious and did not know what happened thereafter. The version of Mst. Naziran in her statement was to the effect that the appellant was dragged from outside the haveli, and the prosecution witness wanted to push him into her room but that she and her husband Rahmat prevented that being done, that then there was an exchange of abuse between the P. Ws. and the deceased who grappled with each other as a result of which she and her husband received injuries. No witnesses were examined for the defence, although a separate case bad been registered against the appellant's father and his three companions for their attack on the prosecution party. The Additional Sessions Judge held that the appellant came to the house of the deceased not with the intention of committing murder but to have sexual intercourse with Naziran and that on being seen by Rahmat he attacked him with a knife and that Naziran caught her husband in order to facilitate the murder. Witness Ali Muhammad the brother of the deceased who was not an eye‑witness to the attack on him but came on the scene subsequently had deposed that both the appellant and Mst. Naziran confessed to him that they had murdered the deceased and begged him to forgive them. The Additional Sessions Judge believed this evidence of extra judicial confession also. The learned Judges of the High Court however did not refer to that evidence, but they accepted the prosecution version without hesitation. Nevertheless they took the view that it could not be said that Mst. Naziran shared the intention of the appellant. It seemed to the learned Judges that the deceased woke up when the appellant was in his house to meet the deceased's wife, that the deceased tried to capture him, but Mst. Naziran held the deceased in order to facilitate the escape of the appellant who turned round and caused injuries to the deceased. They came to the conclusion that the deceased's wife was not guilty and therefore acquitted her. As this conclusion appeared to be in conflict with the evidence of the eye‑witnesses who were believed by the learned Judges and on whose evidence the conviction of the appellant was maintained, special leave to appeal was granted to examine whether the defence of the appellant was considered on correct principles giving due effect to the view taken in acquitting Mst. Naziran. But on examining the evidence we find that her acquittal does not affect the case against the appellant, as the acquittal was based on a view taken by the learned Judges or her act as stated by the witnesses and not on belief in any part of the version put forward by her. That version was intended, it appears, to supplement the account given by the appellant that his entry into the courtyard was involuntary as he was in an unconscious state. We find however that this theory of unconsciousness does not find any support in the evidence on record or the circumstances appearing there from. It was not even suggested to the eye‑witnesses, nor do the injuries found on the appellant render it probable. No evidence was adduced for the defence. The learned Advocate for the appellant contended that the statement of Mst. Naziran before the Committing Magistrate could be considered in favour of the appellant under section 287, Cr. P. C. in support of a plea of private ,defence. Alternatively it was argued that it was likely that the father of the appellant and his three companions caused the injuries found on the deceased when they attacked the eye‑witnesses. We see no force in either of these contentions. Assuming without deciding that Mst. Naziran's statement can be used as suggested, it does not help the appellant in any way for, thel appellant himself did not plead private defence, nor does Mst. A Naziran's statement do so on his behalf. On the record as it stands such a plea would have no material basis whatsoever. The alternative argument is equally speculative. The evidence of the eye‑witnesses clearly establishes that the appellant committed murder and the Courts below have believed these witnesses. In the circumstances we see no reason to interfere. The appeal is dismissed. Appeal dismissed.