1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑ This Criminal Appeal No. 591 of 1984 and connected Murder Reference No. 181 of 1984 arise from the judgment of learned Additional Sessions Judge, Faisalabad, whereby he on 10‑9‑1984, while acquitting Muhammad Asghar, Muhammad Aslam and Abdul Karim co‑accused, convicted Muhammad Akram (18) and Muhammad Ashraf (31), both real brothers, under section 302, P.P.C. for the murder of Muhammad Aslam alias Sain and under section 324, P.P.C. for causing hurt to the deceased and two P.Ws. and sentenced them as under:‑

Muhammad Akram Appellant.

(i) Under section 302, P.P.C. to death and a fine of Rs.5,000 or in default thereof two years' R.I. (ii) Under section 324, P.P.C. to two years' R.I. Muhammad Ashraf Appellant.

Under section 324, P.P.C. to imprison ment already suffered by him. It was directed that the fine if recovered be paid to the legal heirs of the deceased.

2. The occurrence took place on 11‑4‑1982 at 8‑30 p.m. in Mohalla Rasulpura (Faizabad) at a distance of 21 miles from Police Station Gulberg, Faisalabad. The F.I.R. is statement Exh.P.N. of Muhammad Arshad P.W.12, brother of the deceased which was recorded by Sana Ullah A.S.I. P.W.14 at 11‑15 p.m. on the same day in Chowk Madina. Formal F.I.R. Ex.P.N./1 was drawn up by Ghazanfar Abbas A.S.I., P.W.9 on the same day at 11‑35 p.m. The appellants and the acquitted accused namely Muhammad Asghar and Muhammad Aslam are real brothers, while Abdul Karim, acquitted accused is their father.

4. The motive as alleged by the prosecution was that Muhammad Asghar, acquitted accused had developed illicit relations with Mst. Khalida, daughter of Imam Din P.W. Muhammad Aslam deceased was the husband of the sister of Mst. Khalida. The deceased forbade Muhammad Asghar acquitted accused from visiting the house of his father‑in‑law and also slapped him on which Muhammad Asghar, acquitted accused threatened to teach him lesson for this insult, hence this occurrence.

5. As far the main occurrence, it has been stated in the F.I.R. that at the eventful time Muhammad Arshad complainant, Muhammad Aslam deceased, Khalid Mehmood P.W.13'and Imam Din P.W.11 were going from the house of Muhammad Iqbal towards the house of Imam Bin P.W. when they reached near the powerlooms of the appellants, ‑the two appellants and the three acquitted accused all armed with Chhuris came out of the powerlooms and raised Lalkara. Muhammad Akram appellant gave a Chhuri blow near the heart of Muhammad Aslam. Muhammad Ashraf appellant caused injury with his Chhuri on the left knee of Muhammad Asiam who fell down to the ground. Muhammad Asghar and Muhammad Aslam acquitted accused gave one Chhuri blow each on the person of Khalid Mehmood P.W. Muhammad Akram appellant inflicted Chhuri blow on the ribs of Muhammad Arshad complainant. Muhammad Asghar gave Chhuri blow on the left elbow of Muhammad Aslam while he was lying on the ground. Thereafter, Abdul Karim acquitted accused gave Chhuri blow on the arms of Imam Din P.W. The alarm raised by the P.Ws. attracted Abdul Sattar, Niaz Ahmad and others to the spot. The accused ran away taking weapons with them. Muhammad Aslam was removed to the hospital but he succumbed to the injuries on the way.

6. Dr. Bashir Hussain Kahlon P.W. 8 conducted post‑mortem examination on the dead body of Muhammad Aslam. He found following injuries: ‑

"(1) A stab wound 2 x 1 c.m. going deep into the chest directed downward and inward on the front of middle chest 7 c.m. below at 5 o'clock position to the left nipple. It was oblique in direction. (2) An incised wound 3 x 1 c.m. bone deep on the back of left elbow. (3) An incised wound 8 x 3 c.m. bone deep on the front of left knee. It was oblique in direction." On internal examination of the body 5th rib, left side of pleura, paricardium and left side of heart were found cut under injury No.

1. The stomach contained 5 ozs of semi‑digested food. In his opinion, the death had occurred due to shock and haemorrhage as a result of injury No.1, which was sufficient to cause death in the ordinary course of nature. The injuries were ante‑mortem and were caused by sharp‑edged pointed weapon. Injuries Nos. 2 and 3 were simple. The time between injuries and death was immediate and between death and post‑mortem was about 14 hours. In cross‑examination, the doctor stated that he had examined Muhammad Ashraf appellant on 12‑4‑1982 at 7‑00 a.m. and found following injuries on his person. (1) An incised wound 4 x c.m. bone deep on the space between right ring and right middle finger. (2) A stab wound 2 x x D.N.P. on the front of left chest 2 c.m. inner to the left nipple at 8 o'clock position. It was vertical. (3) A stab 2 c.m. x c.m. x muscle deep on the front of left side of abdomen. It was vertical in direction. (4) A stab wound 3 x 3!4 c.m. x D.N.P. on the front of left lower abdomen 6 c. m . below the umblicus at 5 o'clock position. (5) A stab wound 2 x x D.N.P. on the right buttock. The patient was under shock due to excess of bleeding. The skin was cold, calmy and sweating. The injuries were caused by sharp‑edged weapon within 12 hours of the examination.

7. Dr. Ajmal Hussain Mian P.W. 1 had medically examined Imam Din P.W. 11, Muhammad Arshad P.W.12 and Khalid Mehmood P.W.13. He found one stab wound on the person of Muhammad Arshad, two stab wounds on the person of Khalid Mehmood and one stab wound on the person of Imam Din P.W. All the injuries were caused by sharp‑edged weapon and were simple in nature.

8. On 27‑4‑1982 Muhammad Akram appellant led to the recovery of blood‑stained Chhuri Exh.P.4 from his Haveli, which was taken into possession vide memo. Exh.P.O. attested by Muhammad Ashraf P.W.10, Abdul Rashid (not produced) and Sana Ullah A.S.I. P.W.14.

9. To prove its case, prosecution examined as many as 14 witnesses. Imam Din P.W.11, Muhammad Arshad P.W.12 and Khalid Mehmood P.W.13 have given the ocular account of the occurrence. Imam Din P.W.11 stated that on the day of occurrence, his daughter Mst. Khalida was going to the house of her sister Mst. Razia. While she was passing in front of the Khata of Muhammad Asghar co‑accused, he caught hold of her from her arms and tried to drag her towards the Khata. Mst. Khalida, however, got herself released and apprised him of this incident. So, he alongwith Muhammad Arshad, complainant, Muhammad Aslam deceased and Khalid Mehmood P.W. left for the house of Abdul Karim co‑accused for lodging protest against misbehaviour of his son Muhammad Asghar. Abdul Karim was not available in his house. They then went to the house of Muhammad Iqbal and from there they were proceeding to his house. When they reached near the powerlooms, the appellants and the acquitted accused came out of powerlooms, raised Lalkara and launched attack on them. Muhammad Akram appellant gave Chhuri blow in the chest of Muhammad Aslam. Muhammad Ashraf appellant and Muhammad Asghar acquitted accused also inflicted Chhuri blows on the person of Muhammad Aslam. Muhammad Ashraf, Muhammad Asghar and Muhammad Aslam caused injuries with their Chhuris to Khalid Mehmood P.W. Muhammad Akram injured Muhammad Arshad complainant with Chhuri. Abdul Karim acquitted accused also gave Chhuri blow to him. Muhammad Arshad P.W.12 and Khalid Mehmood P.W.13 supported the statement of Imam Din P.W.11 in all material particulars. Imam Din and Muhammad Arshad P.Ws. also supported the alleged motive. Muhammad Arshad P.W.12 and Sana Ullah, A.S.I., P.W.14 have 'supported the recovery of blood‑stained Chhuri from Muhammad Akram appellant. Dr. Bashir Hussain Kahlon P.W.8 has proved the post‑mortem reported of the deceased and medico‑legal report of the injuries found on the person of Muhammad Ashraf appellant. Dr. Ajmal Hussain Mian P.W.1 has proved the medico‑legal reports of the injuries of Imam Din P.W.11, Muhammad Arshad P.W.12 and Khalid Mehmood P.W.13. The rest of the evidence is almost of formal nature.

10. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. Muhammad Ashraf and Muhammad Akram, admitted their presence on the spot at the time of occurrence. They raised plea of self‑defence. In reply to Q. No.9, Muhammad Akram appellant stated:‑

"On the day of occurrence, my brother Asghar had quarrelled with one Saleem who was cited as P.W. by the prosecution in this case but was given up for obvious reason and the aforesaid Saleem who was thick with the family of the complainant who instigated them and as a result of that, the deceased and the P.Ws. attacked our powerlooms. They were causing serious injuries to my brother and in order to save him and my other family members I caused injuries upon them. I file a written statement Exh.D.B. in this connection."

11. The trial Court came to the conclusion that Muhammad Asghar, Muhammad Aslam and Abdul Karim co‑accused had not participated in the commission of offence, so, they were given benefit of doubt and acquitted. While believing the eye‑witnesses to the extent of the appellants, recovery of blood‑stained Chhuri Exh.P.4 from Muhammad Akram, medical evidence and the motive, the trial Court convicted and sentenced the appellants as stated above.

12. Learned counsel for the appellants contended that the eye‑witnesses are not reliable, inasmuch as, they are related to the deceased and have suppressed the injuries found on Muhammad Ashraf appellant; that Muhammad Akram appellant had caused the death of Muhammad Aslam and injuries to the P.Ws., in order to save the life of his brother Muhammad Ashraf appellant and as such had committed no offence. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

13. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellants under section 342, Cr.P.C. and the circumstances appearing in the case, carefully. We feel persuaded to agree with the learned counsel for the appellants that the prosecution evidence is not worth‑reliance and there is also a reasonable possibility of the defence version being true. It is a matter of record that Muhammad Ashraf appellant received as many as 5 injuries caused by sharp‑edged weapon during the occurrence. He was found injured at the time of arrest. The police got him medically examined. The duration of his injuries corresponds with the time of occurrence, so, it will be reasonable to presume that it was the complainant party which injured him. There is no clear evidence or circumstance to the contrary. The three eye‑witnesses namely Imam Din, Muhammad Arshad and Khalid Mehmood are father‑in‑law, brother and brother‑in‑law respectively of the deceased. They have suppressed the injuries of Muhammad Ashraf appellant. They categorically stated that they had not caused any injury to him. It is thus very much obvious that they had told a lie on an important point which had material bearing on the culpability of the appellants. So, their evidence may not be believed unless corroborated by independent evidence or circumstance, both as to the version of the prosecution as well as the identity of the appellants. In the instant case, there is no evidence /circumstance to corroborate the version of the main occurrence stated by these two witnesses. Since Muhammad Akram admits to have caused the death of Muhammad Aslam and injuries to the P.Ws., therefore, the circumstance of the recovery of blood‑stained Chhuri from him is of no consequence. There is also a reasonable possibility of the version of self‑defence raised by Muhammad Akram appellant, being true. It is the prosecution case that Muhammad Asghar had tried to outraged the modesty of Mst. Khalida, daughter of Imam Din P.W. on the day of occurrence. The motive, therefore, lay with the complainant party to harm Muhammad Asghar accused. The place of occurrence is near the powerlooms of the accused party. The house of Muhammad Arshad complainant is 1/1 miles from the place of occurrence. The house of Imam Din P.W. is about 100/150 feet from the place of occurrence. The complainant party had gone to the place of occurrence. By the fact of sharp‑edged injuries on the person of Muhammad Ashraf appellant, it is established beyond reasonable doubt that the complainant party or any member thereof was carrying sharp‑edged weapon with them/him, which they/he actually used in causing injuries to Muhammad Ashraf appellant. Muhammad Akram appellant took the plea of self‑defence at the earliest opportunity. He disclosed his defence version of self‑defence to the police immediately after his arrest. Sana Ullah, A. S. I., P. W.14 has stated in cross‑examination that the stand of Muhammad Akram appellant was that since Muhammad Ashraf, his brother, was under assault of the complainant party, so in order to save the life of his brother, he caused injuries to the deceased and the P.Ws. Sana Ullah, A.S.I. P.W.14 further stated that it was found during investigation that none except Muhammad Akram appellant was armed with any weapon at the time of occurrence and that co‑accused namely Abdul Karim, Muhammad Aslam and Muhammad Asghar had not participated in the occurrence. The prosecution case and the statements of the eye‑witnesses with regard to the acquitted accused have also been disbelieved by the trial Court and for good reason. The peculiar circumstances of the case that Muhammad Ashraf appellant was injured with a sharp‑edged weapon during the occurrence; that the injuries having been suppressed by the eye‑witnesses, it is legitimate to infer that he suffered injuries at the hands of the complainant party; that the defence version that the accused other than Muhammad Ashraf and Muhammad Aslam had not participated in the occurrence and that Muhammad Akram was carrying a Chhuri, was found correct by the police and has also been believed by the trial Court and that Muhammad Akram took plea of self‑defence and narrated defence version to the police immediately after his arrest, lend support to the plea of self‑defence raised by him at the time of trial and makes the same reasonably possible. Muhammad Ashraf appellant was given five injuries with sharp‑edged weapon on different parts of his body including vital parts such as chest and abdomen, obviously by the complainant party including the deceased, therefore, the right of private defence had not only accrued to Muhammad Akram appellant but the same did extend to the voluntary causing of death of the assailants. That being the position, there can be no two opinions that while causing the death of Muhammad Aslam and injuries to the P.Ws., both Muhammad Akram and Muhammad Ashraf appellants were within their legal rights given under section, 100, P.P.C. and as such had committed no offence. For what has been said above, there being no satisfactory basis to uphold the convictions and sentences of the appellants, the appeal is accepted and the appellants are acquitted of the charges. They‑shall be released forthwith, if not required to be detained in any other case. Death sentence is not confirmed. M.Y.H./M‑544/1 Appeal allowed.