1986 P Cr (PLP)

IJAZ NISAR, J.‑‑

Ghulam Rasul (25) son of Niamat Ali was tried alongwith Nazir Ahmad (25) for the murder of Najaf Ali (22). The learned ‑Additional Sessions Judge, Jhang, by his judgment, dated 9‑12‑1982 convicted Ghulam Rasul under section 302, P.P.C. and sentenced him to death and a fine of Rs.2,000 or in default to suffer R. I. for 6 months. He was also ordered to pay Rs.5,000 as compensation to the heirs of the deceased or in default to undergo 6 months, R.I. Nazir Ahmad accused was, however, given the benefit of doubt and acquitted.

2. We have before us the appeal filed by Ghulam Rasul appellant, the connected murder reference and the revision filed by Sultan Mahmood complainant against the acquittal of Nazir Ahmad and for enhancement of the amount of compensation to be paid by Ghulam Rasul appellant. All the three matters shall be disposed of by this judgment.

3. The occurrence in the case took place on 26‑12‑1981 at 3.00 p.m. in the graveyard of Darbar Muhammad Shah Budho Lal, at a distance of one furlong from Police Station Garh Maharaja, District Jhang. Sultan Mahmood P.W. 6, father of the deceased submitted report in writing Exh. P.C. on the same day at 3.30 p.m. at P.S. Garh Maharaja on which the present case was registered by S.I. Muhammad Afzal P.W. 8.

4. The prosecution case is that a dispute about property attached to the Darbar of Muhammad Shah Budho Lal was going on between the parties and Sultan Mahmood, father of the deceased had filed a civil suit against Niamat Ali, father of Ghulam Rasul appellant which was pending when the occurrence in question took place. A few days before the occurrence Najaf Ali deceased on one side and Faiz, brother of Ghulam Rasul appellant on the other were arrested by the police under section 107/151, Cr.P.C. On the day of occurrence at about 9.00 a. m. there was an exchange of abuses between Najaf Ali deceased and Nazir Ahmad accused (since acquitted). On the eventful day Sultan Mahmood P.W. 6 and his son Najaf Ali deceased were present at the Darbar of Muhammad Shah Budho Lal Town in connection with the repair of the graves of their relatives. The appellant accompanied by Nazir Ahmad accused. came there. The appellant carried a Chhuri while Nazir Ahmad accused was empty‑handed. The latter held Najaf Ali deceased by hair while Ghulam Rasul appellant inflicted a Chhuri blow on the deceased in his chest. The deceased fell injured. Besides Sultan Mahmood P.W. 6, Muhammad Aslam P.W. 7 and Aiteqad Hussain (not examined) witnessed the occurrence. They apprehended Ghulam Rasul appellant alongwith blood‑stained Chhuri P.4 while Nazir Ahmad accused succeeded in making good his escape. The P.Ws. carried Najaf Ali deceased to the hospital but he died before any medical aid could be given to him.

5. Muhammad Afzal, S.I. reached the spot Muhammad. Aslam P.W. 7 and Muhammad Iqbal produced the appellant before him alongwith blood stained Chhuri, P.4. The. S.I. arrested the appellant and took into possession Chhuri through memo. Exh. P.D. He proceeded to the hospital and prepared the injury statement Exh. P.F. and inquest report Exh. P.G. of Najaf Ali deceased. The Chhuri P. 4 was sent for Chemical Examination and according to the reports Exh. P.J. of the Chemical Examiner and Exh. P.K. of the Serologist it was found to be stained with human blood.

6. Dr. Capt. Muhammad Aslam Javaid, P.W. 4 conducted the post -mortem examination on the dead body of Najaf Ali deceased on 26‑12‑1981 and found the following injury thereon: A stab wound 2.5 c.m. x 1 c.m. x entering obliquely chest cavity left side, 3 c.m. from mid front chest line and 9 c.m. from right nipple and 4th right intercostal space. The death was due to shock, haemorrhage and injury to the heart which was caused by a sharp‑edged weapon and was ante‑mortem.

7. The appellant denied the prosecution allegations. Explaining the occurrence he made the following statement: "The Darbar of Muhammad Shah Budho Lal had been in the exclusive possession of my father Niamat Ali as a Mutwali of that Darbar. After his death I become the Mutwali of that Darbar. I resided in that Darbar. Sultan Mahmood filed a suit against me and my relatives and to create the evidence to support that suit, on the day of occurrence Najaf Ali deceased and Shahamand, the brother of grandfather of Najaf Ali started erecting a new grave in the Darbar. I objected to it, upon which there was a scuffle between me and Najaf Ali and the persons of the locality intervened. After sometime again Najaf Ali came there and started the construction of a fake grave. I objected Whereupon he assaulted me and squeezed my testicles. A minor son of Shahamand was present there.‑having a Chhuri with him. Najaf Ali tried to get that Chhuri but I snatched the Chhuri from the child and inflicted a blow with the same to Najaf Ali in self‑defence. appeared before the S.H.O. at the Police Station, soon after the occurrence and produced the Chhuri before him. But it was not Exh. P.

4. Khan Muzaffar Ali Khan was not present in Garh Maharaja. He came there the next day and after getting legal advice he got me involved in his case." He produced attested copy of the judgment, dated 30‑4‑1975 Exh. D.C. passed by Mr. Fayyaz Ahmad Bhutta, Civil Judge, Shorkot and attested copy Exh. DD/1 of the order, dated 19‑10‑1982 passed by Ch. Abdul Hamid, Additional Sessions Judge, Jhang.

8. Nazir Ahmad accused stated to have been involved on account of enmity and on account of the influence of one Muzaffar Ali Khan with whom he had some land dispute. The prosecution case rests on the evidence of Sultan Mahmood P.W. 6 an Muhammad Aslam P.W. 7 who furnished the motive and the ocular account. Muhammad Aslam is also an attesting witness of the memo. Exh. P.D. through which Chhuri P. 4 was secured from the possession of Ghulam Rasul appellant.

9. Relying upon the, motive, the ocular testimony, the red‑handed capture of Ghulam Rasul appellant and the recovery of blood‑stained Chhuri P. 4 from his possession, the trial Court convicted him and sentenced him as described above. Nazir Ahmad accused was, however, given the benefit of doubt and acquitted.

10. Learned counsel for the appellant states that the motive does not stand proved and on the other hand shows that it was the complainant party which nursed grudge against the appellant. He states that the appellant was in possession of a shop attached to the Darbar of Muhammad Shah Budho Val while the complainant party was not in occupation of any shop or other property but had merely filed a civil suit for restraining Niamat Ali, father of the appellant from constructing shops in the area of Darbar. He further states that version of the occurrence given by the appellant has been wrongly, rejected by the learned trial Court. He has also argued that in view of sudden nature of the occurrence and the appellant not taking any undue advantage of the situation and by causing a solitary blow to the deceased is entitled to lesser sentence.

11. The occurrence and its place has not been disputed by the appellant. However, he has given a different version of the events leading to the incident. According to him he became the Mutwali of the aforementioned Darbar after the death of his father and lived there. Sultan Mahmood, father of the deceased had filed a suit against him and his relatives and to create evidence in support' of that suit started erecting a new grave in the area of Darbar to which he objected which led to a scuffle between him and Najaf All deceased. After some time, the deceased came there again and started the construction of a fake grave to which he objected whereupon the deceased caught hold of his testicles and squeezed them: A minor boy was standing there having a Chhuri with him. The deceased tried to catch hold of that Chhuri but he was able to snatch it first and inflicted a blow with the same on the deceased in self‑defence.

12. We have examined the defence plea via‑a‑via the prosecution story. The prosecution case is that the deceased and his father were l repairing the graves of their relatives when the appellant attacked them. It is an admitted fact that the graveyard in question was common between the parties and relatives of both the parties were buried there. The deceased and his father had gone to the graveyard to mud‑plaster the graves of their relatives which was objected to by the appellant. Since the graveyard was not in the exclusive possession of any body the appellant had no right to object to the presence of the deceased or his father there. If, at all, there was any dispute between the parties, it was in respect of shops attached to the Darbar and not about the graveyard. Both the parties possessed equal rights in respect of the graveyard and no party could object to the visit or presence of the other. There is nothing on the record to lend corroboration to 'the defence plea that the complainant party had come there with the purpose of constructing some fake graves. Nobody had come forward to say so. Even otherwise, it is not understandable what advantage the complainant party would have derived by constructing a fake grave during the pendency of the civil case. The story put forth by the appellant that the deceased had squeezed his testicles is also not convincing. The appellant who was caught red‑handed did not offer himself for the medical examination. Furthermore, he would not have been in a position to inflict such a forceful blow on the deceased if his testicles had been actually squeezed. It would have been so painful for him to even stand uprightly what to talk of snatching a knife and inflicting a blow on the deceased. It also does not appeal to reason that a minor boy was present in the graveyard per chance holding a Chhuri with 20 c.m. long blade without any reason. This story has. been concocted by the appellant to minimise his part in the occurrence and to show that it was a sudden flare up and that he had gone there unarmed without any premeditation.

13. Sultan Mahmood P.W. 6 who narrated the prosecution story stands corroborated by Muhammad Aslam P.W. 7 who is completely a disinterested person having no connection with the complainant or animus against the appellant. The fact that the appellant was caught red‑handed alongwith blood‑stained Chhuri lends further corroboration to the prosecution story. The Chhuri P. 4 having 20 c.m. long blade and the seat of the injury clearly proves the intention of the appellant to kill the deceased. The deceased who was a student of B. A. and was innocently engaged in the repair of the graves of his relatives was brutely attacked by the appellant resulting in his instantaneous death. All these circumstances fully establish the prosecution case against Ghulam Rasul appellant. The defence plea raised by him does not receive support to the extent of being reasonably possible from any circumstance nor such an inference is warranted from the evidence on record. There is no proof of aggression on the part of the deceased who was admittedly empty‑handed. The appellant had no justification to deliver Chhuril blow right into the deceased's heart after his attempt to snatch Chhuri from a minor boy had been foiled by him and the Chhuri with which he could attack him had been snatched by the appellant. It was held in the State v. Manzoor Ahmad P L D 1966 S C 664 that when the deceased is overpowered thrown on the floor and disarmed, the right of self‑defence in no circumstances can be claimed, for there could be thereafter no cause for apprehending either death or grievous hurt. It was further held in the said case that even in a sudden quarrel and a sudden fight if unfair advantage is taken by using a knife on a helpless opponent to cause directly fatal injury on the rock the plea of self‑defence cannot be justifiably raised.

14. In the above circumstances the appellant was rightly convicted and properly punished. No extenuating circumstance appears for awarding lesser penalty to him. In consequence his appeal fails and is dismissed accordingly. And his death sentence is confirmed.

15. Since no injury is attributed to Nazir Ahmad accused (since acquitted) and the deceased received only one blow which is attributed to Ghulam Rasul appellant who was caught red‑handed, we do not consider that there has been any miscarriage of justice in the acquittal of Nazir Ahmad accused and accordingly dismiss the revision. We also do not feel inclined to enhance the compensation which Ghulam Rasul appellant has been ordered to pay to the deceased because it is quite adequate. M.Y.H. Appeal dismissed.