1988 P Cr (PLP)

RIAZ AHMAD, J.‑‑The appellant Khadim Hussain, his father Muhammad Hussain and his brother Azam Hussain were tried by an Additional Sessions Judge at Sialkot on charges under sections 302, 325, 324 read with section 34 of the Pakistan Penal Code for causing the death of Muhammad Anwar their co‑villager and for having caused murderous assault on Muhammad Sadiq and Muhammad Sarwar. The learned Additional Sessions Judge vide his judgment, dated 3‑10‑1984 found only Khadim Hussain appellant guilty on the charge under section 302 of the Pakistan Penal Code. Accordingly, the appellant Khadim Hussain was convicted and sentenced to death and to pay a fine of Rs.2,000 or in default of the payment of fine to suffer further rigorous imprisonment for a term of one year. It was directed by the learned Additional Sessions Judge that in the event of the recovery of fine, the same shall be paid as compensation under section 544‑A, Cr.P.C. to the legal heirs of the deceased. The appellant Khadim Hussain was also found guilty on the charge under section 324 of the Pakistan Penal Code for having caused injuries to Muhammad Sarwar P.W. and, therefore, on the said charge, the appellant was convicted and sentenced to suffer rigorous imprisonment for a term of six months. As regard the co‑accused Muhammad Hussain and Azam Hussain, they were found guilty on the charge under section 323 of the Pakistan Penal Code. Since they remained in jail for a period of four months before their release on bail, hence the aforsaid period of detention was considered sufficient to meet the ends of justice as punishment on the charge under section 323 of the Pakistan Penal Code. However, they were sentenced to pay a fine of Rs.500 each or in default thereof to suffer R.I. for a term of one month. Aggrieved by the judgment of the learned Additional Sessions Judge, dated 3‑10‑1984, only Khadim Hussain appellant (the condemned prisoner) has assailed his conviction through this appeal, while the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeal as well as the reference.

2. The unfortunate occurrence resulting into the death of Muhammad Anwar (deceased) took place on 18th of September, 1983 at about noon time in front of the house of Muhammad Anwar deceased in the village Suhavi situated at a distance of nine miles from Police Station, Pasrur. Muhammad Sadiq P.W.9 a real brother of the deceased proceeded to report the occurrence at the police station when on his way in village Baba Kotli Faqir Chand, he came across Mubarik Ahmad, A.S.I., P.W. 13 who recorded the statement of Muhammad Sadiq P.W.9 Exh.P.K. at about 1 p.m. and sent the same to the police station for the registration of the case. At the police station the formal F.I.R. Exh.P.K./1 was drawn by Zamurrad Khan, S.I./S.H.O., P.W.12. Precisely, in his statement Exh.P.K. the complainant P.W.9 Muhammad Sadiq stated that he was a cultivator in village Suhavi and four years before occurrence, his real younger brother namely Muhammad Anwar (deceased) was married to Mst. Azra daughter of Sardar resident of Alu Muhar. Mst. Azra usually quarrelled and often used to leave his house to live with her parents. According to the complainant four months before the occurrence, Mst. Azra wife of the deceased eloped with Khadim Hussain appellant and thereafter she went to live with her parents. The deceased Muhammad Anwar on a number of occasions had complained to the appellant Khadim Hussain over his conduct. On the fateful day, the father of the complainant Nawab Din had to offer the sacrifice of an animal and at that time, the complainant, his father and his brother Sarwar were present in the house of Noor son of Maula Dad, when a cousin of the complainant namely Mushtaq remarked that since it was Eid‑ul‑Azha, therefore, the appellant Khadim Hussain should also be invited, nobody objected to the said invitation and thus the appellant Khadim Hussain, his brother Azam Hussain and his father Muhammad Hussain also reached there. Khadim Hussain and Muhammad Anwar (deceased) altercated with each other whereupon, the appellant Khadim Hussain, his brother Azam Hussain and his father Muhammad Hussain showered abuses and went away. The complainant side on account of fear and bitterness left the house of Noor, proceeded to their own house, when they reached the street near the door of their house, Khadim Hussain appellant armed with a dagger‑shaped Chhuri, Muhammad Hussain armed with a Dang and Azam Hussain armed with a brick confronted the complainant side and launched an attack. The appellant Khadim Hussain inflicted a Chhuri blow in the abdomen of the deceased who fell down and succumbed to the said injury. The co‑accused Azam Hussain hurled brick hitting the head of the complainant but no damage was done on account of the turban which the complainant had worn. The appellant Khadim Hussain inflicted another Chhuri blow on Muhammad Sarwar, but Muhammad Sarwar caught hold of the Chhuri with his left hand and thus received an injury on his hand. Muhammad Hussain then inflicted Dang blows hitting the right shoulder and the right wrist of Muhammad Sarwar. Azam Hussain again hurled the brick which hit the right knee of Muhammad Sarwar. The alarm attracted Manzoor and Ghasita who intervened and rescued the complainant side. The appellant brandishing the Chhuri escaped from the scene of occurrence alongwith Muhammad Hussain and Azam Hussain.

3. On 19th of September, 1983 at about 10‑45 a.m. Dr. Muhammad Abbas Qari, P.W.6, conducted the post‑mortem examination on the dead body of Muhammad Anwar and the following injury was noticed:‑ "Incised wound 2.5 c.m. x 1 c.m. with omentum coming out of the wounds on right hypochonodrium 5 c.m. above the umbilicus and 1.5 c.m. lateral to the mid line. The injury had cut the whole wall of the abdomen through and through about 5 c.m. above the umbilicus. Both layers of peritoneum i.e. parietal and visceral were also cut through and through. Both walls of stomach were also cut. Visceral layers of small intestines were also cut. In the opinion of the doctor, the death occurred due to the cardio respiratory failure due to the haemorrhage and shock caused by injury No.1 which was sufficient in the ordinary course of nature to cause death. On the same day, the said doctor conducted medico‑legal examination of Muhammad Sadiq P.W.9 and noticed the following injury:‑ "Lacerated wound x 1/8", x scalp deep with swelling 1", x 1", on occipital area." On the same day, the said doctor also conducted the medico‑legal examination of Muhammad Sarwar P.W.10 and noticed the following injuries:‑ (1) Lacerated wound 1 x 3/4" x skin deep on lateral side of right wrist. (2) Abrated contusion 1" x 1" on medial aspect of right knee. (3) Incised wound 1" x 1/8", x skin deep on palmer aspect of left hand medial side. (4) Incised wound 1" x 1/8" on palmer aspect of left little finger middle. (5) Incised wound 3/4" x 1/8" on palmer aspect of left index finger distal part. Injuries Nos. 1 and 2 were caused by a blunt weapon while injuries Nos. 3 to 5 were caused with a sharp‑edged weapon.

4. On 24th of September, 1983, the appellant Khadim Hussain led the police and got recovered the blood‑stained Chhuri P.3 which was taken into possession vide memo. Exh.P.G. attested by Faqir Ullah P.W.8 and Chiragh Din (not produced) besides the Investigating Officer Zamurrad Khan S.I./S.H.O. P.W.12. The Chhuri was sent to the Chemical Examiner and Serologist and according to the opinion of the Serologist, it was stained with human blood.

5. At the trial, the prosecution to substantiate its case placed reliance upon the ocular testimony furnished by Muhammad Sadiq P.W.9 and Muhammad Sarwar P.W.10, both were real brothers of the deceased. The other eye‑witnesses namely Manzoor Ahmad and Zahoor were cited in the F.I.R. but were given up. The prosecution also placed reliance upon the recovery of the blood‑stained Chhuri as corroborative evidence and also evidence as to the motive.

6. The appellant when examined under section 342, Cr.P.C. raised the plea of self‑defence. The appellant also denied the elopement of Mst. Azra wife of the deceased with him. Precisely the appellant made the following statement:‑ "The case is false. Distorted version of the occurrence has been presented by the complainant side. Muhammad Anwar deceased was married with Mst. Azra about 6 years prior to the alleged incident. He did not treat his wife nicely and used to maltreat her. She was not even duly maintained by him. This had given rise to serious differences between husband and wife. Most often she would get annoyed with him and go to her parents in village Alo Mohar. Her mother‑in‑law was also cruel to her. This constant practice of Muhammad Anwar and his mother created great tension between them. About six months prior to the present occurrence she went with her brother to her parents' house. Muhammad Anwar had raised a suspicion, that it was I, who had helped Mst. Azra in escaping from his house. I had clarified my position in the matter. Thereafter, on Eid day on false pretext of Qurbani I was summoned to the house of Noor Din, Anwar, Sarwar and Sadiq were present there. Noor Din was also present. Muhammad Anwar once again made an accusation against me that I had taken away Azra Bibi to her parents' house and that I was helping Mst. Azra's family. I repudiated the charge. Muhammad Anwar got furious. Being hot headed man, he gave me filthy abuses and insulted me. Sarwar and Sadiq P.Ws. also assisted their brother Muhammad Anwar deceased. I asked them not to behave in that way. Upon this Muhammad Anwar took out a Chhuri and showed me an intention to pounce and attacked upon me. I retreated and started running towards my house which is at a short distance. Anwar, Sadiq and Sarwar had given me a chase. I entered my house and chained the door. Sarwar, Sadiq and Anwar firstly hurled brickbats as a result of which the door got opened and they entered my house in an aggressive mood. They were shouting and giving dirty abuses. One of the brick bats hurled by them had hit my young sister at her head, who fell and as such a part of her tooth was also broken. She received an injury, on her head, which was bleeding. At this stage, Muhammad Anwar deceased caught hold of my sister and after pronouncing that he would take her away alongwith him started pulling her out. I in order to save her and myself from this situation acted in the exercise of right of self‑defence and under grave and sudden provocation. Sarwar had suffered injuries at my hand and fell on the ground. The Chhuri of Muhammad Anwar was. picked up by the police on that very day. My father and Azam were not present at that time. They came after the occurrence from outside. My sister Bashiran had also shown her injury and narrated the entire incident to the police officials. I, my father Muhammad Hussain and my brother Azam were taken into custody by the police. The police had dishonestly recorded the case by concealing the actual facts and manner of occurrence. Since the entire family was in custody so Mst. Bashiran my sister could not be got medically examined. She and my old mother had to leave the village and go to village Kasowal." The appellant also led defence evidence and produced Muhammad Siddique D.W.1 and Mst. Bashiran D.W.2 sister of the appellant. ?. With the assistance of the learned counsel for the appellant and the State, we have minutely perused the record and we have also heard the various contentions raised by both sides. Since the occurrence had been admitted by Khadim Hussain, appellant, therefore, the learned counsel for the appellant vehemently argued that the defence plea is more probable and since the appellant had acted in the exercise of right of self‑defence and also under provocation, inasmuch as, his sister Mst. Bashiran D.W.2 was being molested and dragged from his house, therefore, he had inflicted a blow to the deceased. It was further contended that no independent witness had been produced because both the eye‑witnesses were real brothers of the deceased, therefore, the prosecution case should be disbelieved. The evidence as to the motive was also assailed and it was contended that the elopement of Mst. Azra with the appellant was utterly false. On the other hand, there were serious family differences between Mst. Azra and the deceased, they used to quarrel with each other and the mother of the deceased also quarrelled with Mst. Azra and she used to often leave the house of her husband to live with her parents. It was thus contended that the deceased thought that the appellant was cause of the mischief and disruption of his family life therefore, the complainant side had attacked the appellant.

8. We have carefully examined all these contentions. In order to evaluate and determine the truth of the plea of right of self‑defence, it is necessary to examine all the surrounding facts of the case. The defence version as narrated does not appeal to reason because if at all the complainant side had attacked and had chased the appellant to his house and after breaking open the door had entered it, the result would have altogether been different. The observation of the learned trial Judge as to the stature of the appellant and the complainant side cannot be easily brushed aside because the learned trial Judge had the opportunity to see the appellant and the witnesses. According to the learned trial Judge, the appellant looked like a pigmy before the two eye‑witnesses. Besides the phenomenon of the physical stature and strength, we are of the view that if at all, the complainant side consisting of three persons had attacked the appellant in his own house, the appellant could not have survived or would have received such injury as could have by itself spoken for the truth of the version. If at all Mst. Bashiran D.W. 2 the sister of the appellant, had been injured as asserted by the defence, the villagers of course, would have seen it and could not have remained silent, as to the one sided investigation as alleged by the defence. Medico‑legal examination of Mst. Bashiran D.W.2 was not conducted, nor she got herself examined. She claimed to have apprised the Investigating Officer about her version, but the Investigating Officer had denied it. We are, therefore, of the view that the defence version as to the receipt of injuries by Mst. Bashiran is nothing but concoction Furthermore, the defence version also stands falsified by the fact that blood‑stained earth was collected from a different place. Had the occurrence , taken place in the house of the appellant as the defence wanes us to believe, the blood‑stained earth would have been found in the house of the appellant. On the contrary, the recovery of such blood‑stained earth from a different spot has been proved on the record, therefore, we have no hesitation to repel the defence plea. It is further unbelievable that the injuries received by the two eye‑witnesses and the deceased was the act of single individual as the appellant wants us to believe. The deceased received one injury in his abdomen while Muhammad Sarwar P.W.10 received five injuries and Muhammad Sadiq P.W.9 received only one injury. Muhammad Sarwar P.W.10 received injuries both with blunt as well as sharp‑edged weapons. In this view of the matter, we cannot believe that this was the act of appellant alone.

9. Adverting to the motive part, of the prosecution case, we are of the view that even if the version as to the illicit relation between the wife of the deceased Azra and the appellant is disbelieved, even then, there is ample material on the record to show that Mst. Azra had strained relations with the deceased and his mother and often used to go to the house of her parents. The appellant also stated that the complainant side and the deceased suspected him for helping and assisting Mst. Azra as against the cruelty perpetrated upon her. It is thus clear that the appellant was playing some role into the family life and affairs of the deceased and his wife Mst. Azra. According to the prosecution case, the deceased had felt ill of the role of the appellant. In the light of this background, we are inclined to believe that the possibility of altercation between the deceased and the appellant preceding the occurrence cannot be ruled out. The appellant has also admitted his visit to the house of Noor where the complainant side was present to sacrifice an animal and if at all the complainant side or Muhammad Anwar (deceased) had to avenge the grudge, the fate of the occurrence would have altogether been different. We are thus, of the view that the motive part of the prosecution story in this case cannot be disbelieved.

10. As regard the nature and quality of the ocular evidence in this case, we are of the view that both the eye‑witnesses cannot be disbelieved only on account of the fact that they happened to be the real brothers of the deceased. On the other hand, both the eye‑witnesses had also received injuries during the course of the transaction and thus their presence at the time and place of the occurrence is not open to doubt. Mere relationship is again no ground to discard the testimony of these eye‑witnesses. It is now well‑settled that mere relationship of the eye‑witnesses with the complainant side' is no ground to discard their testimony but again it is the bounden duty of a Court to assess the inherent worth of the testimony of such eye‑witnesses. In the light of this criteria, particularly, the witnesses have borne the stamp of injuries, we are of the view that the eye‑witnesses are truthful witnesses. The observation as to the conduct and the demeanour of a witness by a trial Court which has the opportunity to see and watch the behaviour of the witness cannot be lightly ignored. The learned trial Judge in his judgment frankly observed and remarked that he had been impressed by the testimony of P.W.10 Ghulam Sarwar, we are bound to attach weight to such observation and, therefore, in our assessment this witness having stood the test of cross‑examination successfully cannot be disbelieved.' Their testimony also stands corroborated by the recovery of blood‑stained Chhuri which was opined to have the stains of human blood. The recovery of knife in this case also stands apply proveo on the record of the case by the testimony of Faqir Ullah P.W.8 and the Investigating Officer. The evidence as to the recovery is not tainted and the witnesses were thoroughly cross‑examined but the defence failed to shake them. Accordingly, we hold that the prosecuton ,has proved its case.

11. It was lastly contended that even if the prosecution version is believed, it was not a case in which the penalty of death should be imposed upon the appellant because the occurrence was sudden and the appellant had only caused a single blow. To substantiate this contention, it was further argued that the parties had suddenly flared up and in course of heat of passions, the appellant had killed the deceased. We have carefully examined this contention and judging the same in the light of the evidence adduced by the prosecution. we are of the view that the contention is devoid of truth. The attack was deliberate and the force used in causing the injury by the appellant speaks for itself. The appellant and his co‑accused were waiting for the complainant side to arrive so that the account can be settled, hence it is an intentional murder and the offence does not fall with the ambit of any Exception to section 300 of the Pakistan Penal Code. Furthermore, it is not a case justifying the imposition of lesser penalty. The upshot of the above discussion is that the prosecution has proved its case beyond any reasonable doubt, and therefore, the appeal preferred by the appellant is hereby rejected. Death sentence awarded to the appellant is hereby confirmed. The reference is answered accordingly. S.A./K‑104/L Appeal dismissed.