1987 PLP 1812 (SCMR)

SAAD SAOOD JAN, J.‑‑Tariq Hussain and his father, Fazal Hussain, were tried by the Additional Sessions Judge, Jhelum for an offence under section 302, read with section 34 of the Pakistan Penal Code for causing the death of Barkat Ali deceased. The learned Additional Sessions Judge acquitted Fazal Hussain but convicted Tariq Hussain of an offence under section 304, Part I, of the same Code and sentenced him to suffer imprisonment for life and pay fine. Tariq Hussain filed an appeal before the high Court against his conviction and sentence. Saghir Ahmad, son of the deceased, filed a revision petition to challenge the acquittal of Tariq Hussain and Fazal Hussain of the charge under section

302. The High Court dismissed the appeal as well as the revision petition. Both Tariq Hussain and Saghir Ahmad through separate petitions seek leave to appeal from the judgment of the High Court.

2. According to the prosecution, Tariq Hussain started an affair with Mst. Zeenat Begum, daughter of a brother of the deceased. When her parents came to know of this they hurriedly married Mst. Zeenat Begum to one Muhammad Farooq. As soon as Muhammad Farooq learnt about her affair with Tariq Hussain, he divorced her. Her parents then sent her to Jhelum to live with the deceased. On 23‑12‑1976 Tariq Hussain went to Jhelum and began hovering around the house where she was living. He was caught by Saghir Ahmad and his brother Maqsood Ahmad and given a beating. He lodged a report at the local police station where a case was registered against them.

3. It was further alleged by the prosecution that on 7‑1‑1977 at about 4.00 p.m., the deceased and his brother Muhammad Khan left their house to visit the mother‑in‑law of the deceased to inquire after her health. On the way they met Tariq Hussain and his father Fazal Hussain. In order to take revenge for the beating given to Tariq Hussain, Fazal Hussain caught hold of the deceased. Tariq Hussain then inflicted a Chhuri blow on the chest of the deceased. Immediately thereafter both Tariq Hussain and Fazal Hussain ran away. The deceased died at the spot. Muhammad Khan went to Police Station Jhelum Saddar and lodged a report at 4‑30 p.m.

4. The post‑mortem examination of the deceased was performed by Dr. Abdul Qayyum. The deceased had a stab wound 3/4" x 1/4" on the left side of the chest. Underneath the wound the pericardium and the heart were found to have been pierced.

5. After his arrest, Tariq Hussain assisted the police in the recovery of a blood‑stained Churri.

6. At the trial both Tariq Hussain and Fazal Hussain pleaded not guilty. Fazal Hussain denied his participation in the occurrence and alleged that he had been falsely implicated because he was the father of Tariq Hussain. On his part, Tariq Hussain admitted to have inflicted the fatal blow on the deceased. In justification of his act he pleaded the right of self‑defence of person. He made a detailed statement alleging that on the day of occurrence he was returning from his land. On the way he met the deceased who had a khunda with him. The deceased became infuriated on seeing him. He abused him saying how he (Tariq Hussain) dared to cross his path. He then tried to give a blow with his khunda but he warded it off by bending down. The deceased tried to repeat the blow. Apprehending lest he should be killed he gave a knife blow to the deceased in self‑defence. Neither Fazal Hussain nor Tariq Hussain produced any witness in defence.

7. In support of its case against Tariq Hussain and his father, the prosecution relied upon the testimony of three eye‑witnesses namely, Fazal Hussain (PW‑10), Muhammad Khan (PW‑12) and Muhammad Khan (PW‑9). It sought corroboration of the ocular testimony from the recovery of a blood‑stained Chhuri at the instance of Tariq Hussain. The trial Court as well as the High Court rejected the testimony of the eye‑witnesses and the evidence with regard to the recovery of the blood‑stained Chhuri at the instance of Tariq Hussain. However they rested the conviction of Tariq Hussain on his own statement after holding that in the circumstances of the case the plea of private defence was not available to him.

8. In support of the petition filed by Tariq Hussain it is contended that after the High Court and the learned Additional Sessions Judge had rejected the ocular testimony and elected to convict him on his own statement they should have accepted his version in its entirety unless they had come to a definite conclusion that any part of it was palpably false. This was not the case here. On the other hand in support of the petition filed by Saghir Ahmad it is contended that the reasons given by the learned High Court and the Additional Sessions Judge for disbelieving the ocular testimony were insubstantial. The first information report was lodged within half an hour of the occurrence and thus there was little time for the complainant party to make up a false story or put up false witnesses.

9. The contention raised in both the petitions needs examination. Leave to appeal is granted to both parties. K.B.A./T‑13/S Leave granted.