1993 PCr (PLP)

5. Ocular account was deposed to by Muhammad Hanif complainant (P.W.2) and Taj Din (P.W.9). Muhammad Hanif while repeating the facts given by him in the F.I.R. also added that Muhammad Afzal after having caught the deceased from arms had asked Manzoor to kill him. However, on confrontation with the F.I.R. he was not found to have stated so therein. He admitted that wife of the deceased and Taj Din were real sisters and that they were cousins also. He gave out that, never, a quarrel, had taken place between him, deceased or any of the accused and that it was the first occurrence amongst them. He did not deny the suggestion that there were residential houses around the place of occurrence but declared that none of the inhabitants except the eye-witnesses had reached the spot during the occurrence.

6. Muhammad Asghar (P.W.3) and Taj Din (P.W.9) while corroborating the statement made by P.W.2 also claimed to have witnessed the collection of blood-stained earth from the spot as well as the recovery of blood-stained Chhuri. at the instance of Manzoor appellant. However, none of them adverted to the allegation that Muhammad Afzal after having caught the deceased from the arms had asked Manzoor to kill him. Muhammad Asghar admitted that his house was not situated in the main Bazar while Taj Din admitted that his house was m another Bazar and he was standing near the place of occurrence with Muhammad Asghar near his house, while on way to the fields, for attending the call of nature. Both of them during cross-examination stated that there was no special enmity between the deceased and the accused, nor was there any enmity between them, Hanif P.W. and the appellants. All the three eye-witnesses were confronted during cross-examination with the stance of Manzoor appellant which he later put forth in answer to the question, `why this case against you and why the P.Ws. have deposed against you while making statement under section 342, Cr.P.C. but each of them denied the correctness of any portion of the suggestion put to them. (The said statement will find mention in the later sequence of the judgment.) All the witnesses also denied the suggestion that they had made false statements.

7. Muhammad Wazir S.I., who had recorded complaint Exh.PA. had investigated the case at the spot, had arrested the accused and taken into possession Chhuri, got recovered by Manzoor appellant and had submitted challan to Court after completion of investigation while appearing as P.W.10, deposed those facts in detail. During cross-examination, he denied the suggestion that no recovery had been effected from Manzoor and that he had planted the Chhuri on him. In answer to a question, he stated that it had not come to light during cross-examination that there was any enmity between the complainant and the accused party. He also denied the suggestion that Manzoor accused, after arrest, in 1st version had put up the stance which, he put forth before the Court while making statement under section 342, Cr.P.C.

8. Statements of the remaining witnesses are more or less of a formal nature. Positive reports Exhs.P.J. and P.K. from the offices of the Chemical Examiner and Serologist were also tendered in evidence.

9. The appellants during their statements under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. Manzoor while denying that he had led to the recovery of Chhuri, took up the stance that he had produced the Chhuri of his own on the very first day of the occurrence and had appeared before the police himself. He stated as follows, in answer to the question, `why this case and why the P.Ws. have deposed against you'?:

"The P.Ws. are relatives and persons from brotherhood of Muhammad Aslam deceased and Muhammad Hanif complainant. Actually on the night of occurrence when I and Afzal co-accused had gone to the tea stall of father of Muhammad Hanif P.W., Muhammad Hanif P.W., Muhammad Aslam deceased, Asghar and Taj Din P.Ws. and 2/3 other relatives of theirs were already present to pick up a quarrel with us over taking away of the note of Rs.100 on the previous day. As soon as we reached near the house of father of complainant, the aforementioned persons abused us and started quarrelling with us. They not only gave fist blows to me, rather Aslam deceased felled me down and sat on my chest and was throttling my throat and when I felt the fear of death, a Chhuri lying nearby at the tea stall of the father of Muhammad Hanif was picked up by me and I caused two injuries to Aslam deceased in exercise of right of private defence of my person, and on receiving the injuries Aslam deceased became disabled and I got rid of him and slipped away from the scene of occurrence lest I may be more harmed and went to the Police Station where I presented myself and produced Chhuri also to the I.O " None of them produced evidence in defence. They declined to make statement on oath as well.

10. Learned counsel for the appellants after having gone through the evidence, criticised the impugned judgment and contended that the prosecution had failed to prove its case against the appellants and that no reliance can be placed on the testimony of the eye-witnesses on account of being related and interested. Learned counsel contended that participation of Muhammad Afzal in the occurrence, even per statement of the eye-witnesses, was doubtful and that the conviction of Manzoor appellant under section 302, P.P.C, cannot be maintained, as even according to the facts disclosed by the prosecution, it was a case of sudden fight and so the case of Manzoor was covered by exception 4 of section 300, P.P.C. Learned counsel did not advert to the plea of self-defence put forth during trial, during cross-examination on the witnesses and while making statement under section 342, Cr.P.C.

11. Learned counsel for the State defended the judgment of the trial Court.

12. The presence of eye-witnesses in this case was never challenged at any stage. The only stance of the accused at the trial was that they had made false and incorrect statements, on account of relationship with the deceased. Notwithstanding the fact that the presence of the eye-witnesses was not challenged, I have considered this aspect and am of the view that the claim of the eye-witnesses of being at the spot at the time of occurrence is not questionable. In that, Hanif is the son of the person in front of whose Ihata the occurrence had taken place. Actually the occurrence had initiated in the Ihata of the father of Hanif. The house of P.W.3 is close by and Taj Din had given reasonable explanation of being at the spot at the time of occurrence. The only question, therefore, which remains to be considered is, whether, they had made truthful statements.

13. Notwithstanding the fact that counsel for the appellants did not consider it feasible to argue on the basis of the plea of self-defence raised by Manzoor during trial, I have considered that aspect of the case and I have not been able to, discern, even, an iota of truth, in that. In that, it is unbelievable to think that appellant Manzoor would have gone to the tea stall of the father of Hanif in spite of threats conveyed to him through his father. His stance that he-was attacked by the deceased, complainant and the eye-witnesses and three others and was laid on the ground and was being thrashed and that it was during that, that he had picked up the Chhuri and had caused injuries to the deceased in self-defence, also, is highly unbelievable. It is impossible that while being under attack by seven persons and lying prostrate with one person sitting .on the chest and pressing his throat, he would have been able to pick up a Chhuri and injure a person mortally. The whole version, to say the least, is absolutely unbelievable and worthy of no credence. The plea of self-defence, therefore, raised by Manzoor stands I rejected.

14. It has already been observed above, that the presence of the eye witnesses stands reasonably proved. The question which remains to be considered is, whether their testimony can be relied upon to hold that both the appellants had participated in the occurrence and whether the facts disclosed make out a case under section 302, P.P.C. or not?

15. As noted in the earlier part of the judgment there was no enmity between the P.Ws. and the appellants. There was never a quarrel amongst them nor was there any dispute between them. It was the first time that a dispute had arisen in which one person lost life. There is nothing on record to hold that the eye-witnesses might have told a lie about the person and manner in which, Aslam was done to death. The question that they might have made false statements, therefore, stands repelled.

16. Exception 4 to section 300, P.P.C. reads as follows:-- "If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." At the best, one aspect of the case i.e. about the occurrence having taken place suddenly is attracted to the facts of the case. However, the conditions laid down in Exception 4 that, .... without the offender's having taken undue advantage or acted in a cruel or unusual manner' are not borne out from the facts of the case. The accused had given Chhuri blows on the chest of the deceased which is a vital part. He had not only repeated the blow but had done it with vigour. He cannot be deemed to have not acted in unusual manner nor can he be deemed to have not acted in a cruel manner. The element of pre-meditation is also there. In that, the accused had dragged Hanif from the Ihata of his father to the street and started beating him there. They had, therefore, the intention to commit more aggression. The deceased had intervened only, to save the husband of his sister on which he was done to death. The question of the case, therefore, falling under exception 4 of section 300, P.P.C. does not arise. It is a case of culpable homicide amounting to murder.

17. Notwithstanding the fact that I have not disbelieved the claim of the presence of the eve-witnesses nor ruled that they made false statements, I am inclined to agree with the learned counsel for the appellants that participation of Muhammad Afzal in the commission of murder was not beyond doubt. In that, even if his presence at the spot is admitted, it has got to be granted that he was not armed with anything and had neither inflicted any injury to the deceased nor exhorted his co-accused to f commit murder or even beat. Although the complainant at the trial stated r that Afzal after having caught the deceased from the arms had told Manzoor to kill him but he was not found to have stated so in the F.I.R. with which he was duly confronted.

18. The other eye-witnesses, P.W.3 and P.W.9 who had fully corroborated the testimony of P.W.2 had not at all, alleged that Afzal had exhorted Manzoor to kill the deceased. He is not related to Manzoor. He might well be a friend of Manzoor, but then prior to the occurrence in which Aslam lost life, there was no dispute or enmity between him and deceased. He might even not be knowing that his companion Manzoor was having Chhuri in his possession because prior to the act of infliction of Chhuri blows. Manzoor had not, displayed the Chhuri. In the circumstances, the conviction and sentences of Afzal are set aside by way of abundant caution. He shall be released forthwith, if not required in any other case. The appeal of Manzoor is dismissed. Whole of the fine, recovered from him, shall be paid as compensation to the heirs of the deceased. Benefit of the provisions of section 382-B, Cr.P.C. shall be extended to him. N.H.Q./M-681/L Order accordingly.