1984 P Cr (PLP)

Rustam S. Sidhwa, J.-- Asghar Ali was tried by an Additional Sessions Judge of Faisalabad under sections 302 and 307, P.P.C. foe the murder of Talib Hussain and an attempt on the life of Ashiq Hussain P.W.11 and Mst. Zubaida Bibi was tried by the same Judge in the same trial for an offence under sections 302/109 and 307/109, P.P.C. for abetting the offences committed by her son Asghar . Ali. The learned trial Judge, by his judgment dated 1st November, 1980, acquitted Mst. Zubaida Bibi of all the charges, but convicted Asghar Ali under section 302, P.P.C. and sentenced him to death, subject to confirmation by the High Court, and to pay a fine of Rs. 2,000 or in default thereof to undergo further rigorous imprisonment for one year and under section 324, P.P.C. to two years' rigorous imprisonment and to pay a fine of Rs. 1,000 or in default thereof to suffer rigorous imprisonment for six months. The fines imposed under sections 302 and 324, P.P.C. if recovered were ordered to be paid to the legal heirs of Talib Hussain, deceased, and Ashiq Hussain P.W.11 respectively. The sentence imposed under section 324, P.P.C. was ordered to run concurrently with that imposed under section 302, P.P.C, if the death sentence was not confirmed. The appeal (Criminal Appeal 1423 of 1980) preferred by Asghar Ali, convict, against his conviction and sentences and the reference (M.R. 8 of 1981) submitted by the learned trial Judge for the confirmation of the death sentence imposed on the convict, are both now before us for consideration and will be disposed of by this judgment.

2. The brief facts of the case are that Talib Hussain, deceased, and his brother Ashiq Hussain P.W.11, were running a milk and curd shop in the Mohallah, in which both of them worked together. On 26th May, 1979 at 6-00 a.m. Mst. Zubaida Bibi, accused, their neighbour, came to their shop to get milk, when a large number of persons were present waiting to be served. Mst. Zubaida Bibi, accused, requested Talib Hussain, deceased, to give her milk first out of turn, but the deceased refused stating that she would get it on her turn, whereupon she hurled filthy invectives at him, which he returned likewise. Mst. Zubaida Bibi, accused, thereupon left the shop stating that she would avenge her insult.

3. The same day at 11-00 a.m. Asghar Ali, accused, the son of Mst. Zubaida Bibi, accused, duly armed with a knife, came at the deceased's shop and challenged him stating that as he had not given milk to her mother, but had abused her, so he would punish him. He inflicted three Chhuri blows on the deceased on his right and left hands and left flank. Ashiq Hussain P.W.11 tried to rescue him, whereupon Asghar Ali, accused, inflicted one Chhuri blow, hitting him on the left upper arm. He aimed a second blow on his abdomen, which he warded off with his left forearm, but in doing so suffered injuries in the abdomen and left wrist joint. He tried to run away, but Asghar Ali, accused, inflicted Chhuri blows injuring the back of his chest. He fell down. Muhammad Rafiq P.W.12 and Habib Ullah (given up P.W.) residents of the Mohallah, who were present nearby, saw the occurrence and rescued the two brothers. Both were taken to the Civil Hospital, Faisalabad, where they were medically examined. Dr. Muhammad Ajmal Mian P.W.2, who examined Talib Hussain found a stab wound, two incised wounds and a linear cut, in the abdomen, left middle finger, right middle finger and upper front of right ring finger, respec tively, The injury in the abdomen was declared grievous and dangerous. The same doctor examined Ashiq Hussain P.W.11 and found three stab wounds, a linear superficial cut and two abrasions on the back of chest, left upper arm, left forearm, left upper abdomen, front of chest and over the left chest of the said witness. Three of the injuries were kept under observation.

4. At the hospital, the statement Exh.P. L. of Ashiq Hussain P.W.11 was recorded at 1-30 p.m. by Abdul Sattar A.S.I. P.W.14. On the basis of the said statement, formal F.I.R. Exh.P.L/1 was recorded at Police Station Factory Area, Faisalabad, at 2-00 p.m. by Muhammad Nawaz M.H.C. P.W.S.

5. On 29th May, 1979 at 3-40 p.m. Talib Hussain, deceased, died in the Civil Hospital, Faisalabad. The Investigating Officer then proceeded to the hospital where after preparing the necessary papers he sent the dead body to the mortuary for autopsy. Dr. Bashir Hussain Kahlon, P.W.1, performed the post-mortem examination on the dead body of Talib Hussain, deceased at 6-30 p.m. and found the same four wounds on the dead-body as were observed earlier by Dr. Muhammad Ajmal Mian P.W.2, in addition a stab wound on the upper part of left thigh and a stitched laprotomy wound on the left side of abdomen. Death was found to have occurred due to shock and haemorrhage as a result of the stab wound on the abdomen. Probable duration between injuries and dean' was held to be about eighty hours and between death and post-mortem examination about three hours.

6. On 29th May, 1979 Asghar Ali, accused, was arrested by Abdul Sattar A.S. I. P.W.14.

7. On 30th May, 1979 Asghar Ali, accused, led to the recovery of a blood-stained Chhuri P.6 which was taken into possession vide memo. Exh. P. R. in the presence of Ch. Muhammad Bashir P.W.10, Abdul Sattar A.S.I. P.W.14, and Ghulam Rasul (given up P.W.).

8. The Chhuri P.6 was recovered at the instance of Asghar Ali, accused, which was found to be stained with human blood. After preparing the necessary investigation the challan against both the accused was sent up for trial.

9. At the trial, the prosecution produced Ashiq Hussain P.W.11 and Muhammad Rafique P.W.12 In support of the motive and the ocular account, Ch. Muhammad Bashir P.W.10 and Abdul Sattar A.S.I. P.W.14 in support of the recovery and Dr. Bashir Hussain Kahlon P.W.1 and Dr. Muhammad Ajmal Mian P.W.2 in corroboration of the medical testimony.

10. Both the accused denied all the accusations that were levelled against them including the recovery effected at the instance of one of them. They imputed their false involvement to enmity with the witnesses. Both the accused, however, admitted the occurrence but in different circum stances. The statement of Asghar Ali, accused, recorded under section 342, Cr.P.C. is relevant in this connection and may be reproduced as follows: - "I am innocent. We do not need any milk in the morning time in the summer season because we take Lassi with the breakfast. On the day of occurrence at 10/11 a.m. my mother went to the shop of Talib Hussain for getting milk for the preparation of tea. My mother objected to Talib, because excessive water had been mixed with the milk, whereupon Talib and Ashiq abused my mother, and on hearing the alarm, I came to the street from my house, and saw Talib dragging away my mother by pulling her pigtail and my mother was exchanging abuses with Talib and Ashiq. I tried to rescue my mother but Talib picked up a Chhuri from his shop and tried to hit me with the same but I snatched the Chhuri from him, and gave a blow to him, hitting his thigh. Ashiq squeezed my testicles, whereupon I inflicted two further blows to Talib and one/two blows to Ashiq in self-defence."

11. The occurrence being admitted, the learned trial Judge, placing in juxta-position the case of the prosecution and that of the defence, found from the evidence on the record and the inferences flowing, there from that on 26th May, 1979 at 11-00 a.m. Mst. Zubaida Bibi, accused, came to the shop of Talib Hussain, deceased, to purchase milk, that the milk supplied to her was adulterated, that she thereupon raised a protest, that an altercation took place between her and the deceased, in which they exchanged filthy abuses, and that Asghar Ali, accused, on hearing the alarm, came from his house to the spot, duly armed with a Chhuri, and inflicted three blows with it to Talib Hussain, deceased, and when Ashiq Hussain P.W.11 tried to intervene, he inflicted three Chhuri blows to him also. The learned trial Judge negatived the right of Asghar Ali, accused, to kill the deceased in defence of the person of his mother and himself. He accordingly convicted Asghar Ali, accused, as stated above and acquitted Mst. Zubaida Bibi.

12. We have heard the arguments of the learned counsel for the appellant, the complainant and the State and have also perused the record. The occurrence is not denied. What is pressed on behalf of the appellant is the version given by him at the trial in his statement recorded under section 342, Cr.P.C. Half of this version has been accepted by the trial Judge, except that portion which relates to Talib Hussain, deceased, dragging Mst. Zubaida Bibi by her pigtail, the attempt by Asghar Ali, appellant, to rescue his mother, the fact of Talib Hussain, deceased, in picking up a Chhuri from his shop and trying to hit the appellant with it, the good fortune of the appellant in snatching away the Chhuri from him and giving a blow to him on his thigh, the intervention of Ashiq Hussain P.W.11 in squeezing the testicles of the appellant and the final infliction by the appellant of two further blows to Talib Hussain, deceased, and one or two blows to Ashiq Hussain P.W.11, in self-defence. With the assistance of the learned counsel for the appellant, we have gone through the evidence on the record and we have no hesitation in rejecting the balance story of the appellant relating to his right of private defence of his person and that of his mother. Mst. Zubaida Bibi, acquitted accused, was seventy years old and though she and the deceased had exchanged abusive language, there was no need for the deceased to drag her or pull her by her pigtail, for it was nobody's case that the old lady had physically tried to push away some of the customers who were standing ahead of her to buy milk or was attempting to forcibly secure the milk herself. The old lady received no abrasions on her head. Had her pigtail been pulled, she would have received some abrasion. The story that the deceased attempted to strike the appellant with a knife, when he attempted to rescue his mother, seems more absurd than real. If the appellant was merely trying to rescue his mother, there was no need for any action on the part of the deceased, muchless an attempt on the appellant's life. Assuming for the sake of argument that the deceased, a man of twenty three years of age, did pick up a knife and made an attempt on the life of the appellant the appellant would have suffered injuries on the fingers of his hand, before he would have been able to snatch away the Chhuri. There are no such injuries on the appellant. The defence plea therefore, that the deceased made an attempt to assault the appellant with a Chhuri, must, therefore, be rejected. It is also asserted that Ashiq Hussain P.W.11 squeezed the testicle of the appellant, whereupon he inflicted two further blows to the deceased and two blows to the said witness in self-defence. Had Ashiq Hussain P.W.11 squeezed the testicle of the appellant, as alleged, it is doubtful whether he would have been able to inflict any blows to the deceased or the said witness or even run away from the scene thereafter. He would have been in such grave pain that he would have been helpless and immobile. The whole defence version of the appellant, therefore, is false and absurd and must be rejected. In these circumstances, the inferences drawn by the trial Judge with regard to .the incident in question, as submitted in para. 11 above, appear to be correct and the appellant appears to have been rightly convicted under sections 302 and 324, P.P.C.

13. The only question that now remains is that relating to sentence. It appears that the appellant, on hearing the alarm or receiving information, about his mother exchanging abusive language with the deceased, came to the spot, duly armed with the Chhuri, and finding a filthy verbal dual going on, out of provocation and respect for his mother, injured the deceased and his brother, little realising that he would cause the former's death. The appellant is a Qasab (butcher) by caste and carries with him the seeds of violence and passion in his blood. On seeing his mother being abused, he lost control. The possibility that he was persuaded by his mother to deal with the deceased, as is the case amongst ladies here, cannot be totally excluded. Taking all circumstances into consideration, we feel that the appellant out of a false sense of vindication of his mother's honour and perhaps on her persuation, acted in haste and passion and that, therefore, the ends of justice would be met if the appellant is made to suffer the lesser penalty. The sentence of death imposed upon the appellant is, therefore, set aside. The appellant is, sentenced to life imprisonment with a fine of Rupees One Thousand (Rs.1,000) or in default thereof to undergo further rigorous imprisonment for one year. The sentence of the appellant under section 324, P.P.C. is maintained, except that the fine is reduced to Rupees Five Hundred (Rs.500). In case the said fine is not paid, the appellant shall suffer further rigorous imprisonment for six months. The fine imposed under sections 302 and 324, P.P.C, if recovered, shall be paid to the legal heirs of Talib Hussain, deceased, and Ashiq Hussain (P.W.11), respec tively, as compensation. The substantive sentences imposed upon the appellant shall run concurrently. The appellant shall also be granted the benefit of the provisions of section 382-B, Cr.P.C.

14. For the foregoing reasons, this appeal stands partly accepted in terms of reduction in sentence and fine, as stated above. M. Y. H. Appeal partly accepted.