1981 PLP 415 (SCMR)

5. In the Commitment Court the accused offered no explanation for their involvement in the case, or the manner they received injuries on their person and circumstances in which injuries on the complainant side, fatal in the case of Mushtaq and Nazra and grievous to Manzoor and Sultan, were caused. At the trial, however, Muhammad Din gave a detailed explanation, the three others injured, Fazal Ahmad, Ghulam Rasool and Amir, admitted having gone to rescue Muhammad Din and to have received injuries in the process. All the other accused expressed their ignorance about the occurrence and denied their presence at that time or in the vicinity. Nazira accused stated that he had belaboured Mushtaq deceased in the morning at the barber's shop on a dispute with regard to the priority of turn for shave. Muhammad Din in his statement disclosed that Mushtaq felt insulted over what had happened at the barber's shop and armed with a hatchet and in the company of his servant Feroze armed with a spear had come to the dera of Nazra etc. sought their help and obtained it. While Nazra was armed with a spear and Sultan and Manzoor with lathis they attacked him when he had gone to take a round of his crop in the vicinity. Nazra had given him a spear blow. On his alarm Amir accused armed with a lathi, Fazal Ahmad and Ghtslam Rasool empty-handed had come there from the garden. They were also assaulted by Manzoor who was caused injuries by lathi by Amir. Ghulam Rasool bad snatched the spear from Ferozc Mughalia and caused injury in self-defence with that spear to Nazra deceased and Manzoor P. W. I was said by him that the gunshots were fired by someone from the crowd which collected at the spot.

6. In defence the accused produced three witnesses. Fateh Sher. H. C. (D. W. 1) stated about a case registered in 1,155 at P. S. Kot Momin under section 307/325, P. P. C. in which Muhammad Din respondent had appeared as a prosecution witness and Muhammad Hayat son of Khuda Bakhsh was the accused and on 31-10-1955 conviction was recorded against that accused. It implied enmity between Muhammad Din and Mushtaq son of the same Khuda Bakhsh, Muhammad Saeed (D. W. 4') stated about the auction of State land in Square No. 9, which happened to be in the vicinity of the dera of Nazra where the occurrence had taken place, in favour of Muhammad Din on 16-5-1968. The witness, however, was not aware as to who actually cultivated the land. Muhammad Rafiq (D. W. 3) X-rayed the injury of Fazal Ahmad, Muhammad Din, Muhammad Amir and Ghulam Rasool. Muhammad Fazal's injury did not disclose a fracture but those of Muhammad Din did as there were fractures of 2nd and 3rd metacarpal bone and fracture of radius upper one-third right forearm. In the case of Muhammad Amir there was a fracture of four metacarpal hones of left hand Ghulam Rasool's skull was fractured in the occipital area.

7. With regard to the motive the statements of Khuda Bakhsh (E'. W, ls), Noor Khan (P. W. 11) and Nazeer Ahmad (P. W. 12) were believed by the trial Court. As regards the ocular evidence there were two sets of witnesses. Nazir Ahmad (P. W. 12), Ghulam Hussain (P. W. 16) were closely related to Mushtaq deceased and, according to the evidence on record, previous enmity between them existed though according to one witness compromise had taken place. The other set of two witnesses, Manzoor (P. W. 17) and Sultan (P. W. 18) had absolutely no connection with Mushtaq or the other set of eye-witnesses. They were injured witnesses. There was no record of any previous ill-will or enmity. The recoveries of weapons from the respondents Were not believed by the trial Court as they did not inspire confidence. The defence version was on analysis rejected. The injuries of the accused were found sufficiently explained and did not detract from the prosecution case. The learned trial Judge held "a large number of the accused were armed with spears and it is possible that he might have sustained the injury at the hands of his own companions in the melee". In spite of such a finding there was found no independent corroboration of the participation of Ahmad Din, Siraj Din, Fakar Din, Zaman and Bashir. They were acquitted by the trial Court. The others were found guilty and convicted and sentenced as already indicated. 8. 1n the High Court the learned Judges while dealing with the murder references, and the appeal re-examined the entire evidence. About Noor Khan (P. W. 11) who was a witness to what he had seen, and not to what he had heard or inferred, the learned Judges held that: "To our mind Noor Khan (P. W. 11) was a stranger in this village. He had no business to 1e there. He comes from another District Campbellpur. It is alleged that he was doing labour in this village. We are afraid, we cannot rely on his statement. Nazir Ahmad P. W. stated That he had no personal knowledge of any illicit relationship, but he was told about it by Noor Khan. In this circumstance the motive of illicit intimacy falls to the ground." A motive different from the one disclosed by the prosecution as discovered by the learned Judges as would appear from the following observation; "To our mind the incident of quarrel at the barber's shop between Mushtaq deceased and Nazira appellant has been purposely left out in the F.I. R. Nazir Ahmad P. W. had, admitted that although he came to know of this incident after he lodged the F. I. R. but he did not disclose it before the C. M. Therefore has (sic) no untoward incident after the alleged incident of the deceased meeting Mst. ''dawab Bibi while she was washing her clothes at the water course a month prior to the occurrence Mushtaq deceased had been moving about in the village without any harm. If illicit intimacy had been the motive surely Mushtaq would have been dealt with long of before. The incident of washing of clothes by Mst. Nawab Bibi at the watercourse and Mushtaq having been found standing nearby would not mean that they had illicit relationship." Another ground taken in favour of the accused was that

"the prosecution has intentionally withheld the use of Spears by the complainant party and has not come with clean hands to the Court From the medical evidence it transpires that spears have been used for, there was punctured sharp-edged wounds on some of the accused persons in addition to head injuries on at least two of them. The gun has been fired at last as has been described by the maker of the F.I. R. after grievous injuries have been received by the companions of Nazeera appellant on vital parts of the bodies." Motive, as alleged by the prosecution, having been discarded by the learned Judges no corroborative factor was found against Manak, who was acquitted. The conviction of others was altered as earlier indicated.

9. The learned Judges in the High Court were manifestly in error and had misread the record to conclude that Noor Khan was a labourer in village Lawa, District Campbellpur and he was a stranger in this village and had no business to be there or that his statement did not amount to establishing the suspicion of Manak with regard to illicit relationship of Mushtaq and his daughter. Noor Khan stated that he originally belonged to village Lawa in district Campbellpur and had come over to village Laliani 15 or 16 years ago and was doing labour residing in the kotha of his sister's sons in that very Chak. He was not questioned on this aspect of his statement at all. What he witnessed was that Manak's daughter was washing her clothes on the water course, Mushtaq deceased was present in the vicinity Manak happened to come there and had abused Mushtaq deceased over his presence there. He was a witness to this fact alone, whatever its worth. Besides, the statement of Khuda Bakhsh (P. W. 10) was not at all considered by the learned Judges. The statement of Nazir (P. W. 12) on the question of motive was in two parts. The first part of it was that Manak had in his presence complained to him and his father and forewarned them about this relationship. The other part was what he learnt later from Noor Muhammad (P. W. 11). The learned Judges examined and rejected only the second part of his statement. The trial Court had examined the statement of these three witnesses with regard to the motive and had found the motive convincing and "proved." This evidence could not have been brushed aside so casually.

10. As regards the quarrel at Barber's shop and the inference that prosecution intentionally suppressed it Nazeer Ahmad (P. W. 12) was not a witness to it and his statement with regard to the knowledge of a quarrel derived from others unnamed could not have been admissible in the Commitment Court being hearsay and there could not be a question of its suppression if he had come to know to it after the making of the F. I. R. A quarrel as alleged by the defence and not denied by this witness might have taken place at barber's shop. The spot where the occurrence took place was of utmost importance in determining as to which of the two versions reasonably nearer the truth.. The injury on the person of Muhammad Din which had been utilized by the learned Judges in the High Court for disbelieving the prosecution case was "an incised punctured wound 4/3' x 1/8' x 3/4' on the back of left hand 1.2 above the base of the left index finger whole of the lack of hand is swollen." This was stated by Dr. Rashid Ahmad (P. W. 2) to be an injury "caused by sharp "pointed" weapon. In the F. I. R. Nazeer Ahmad (P. W. 12) had stated that the occupants of the dera, namely, Nazra deceased Manzoor (P: W. 17) and Sultan (P. W. 18) had in resisting the accused patty picked up the sotas from the spot. At the trial, it was clarified by every witness that Sultan Ali had a hatchet in his hand which he had used in causing the injuries. The dimensions of the injuries of Muhammad Din and the place where it was caused do not render this evidence inconsistent with the prosecution case for such an injury as was found on the person of Muhammad Din could not have been necessarily caused by a spear excluding altogether the pointed ends of the hatchet.

11. The mere fact that some of the accused had their metacarpal bones fractured or even skull, in causing the death of two persons at a place where their presence could not be explained except as aggressors did not give them right of private defence of their person. Two very material facts which could play a decisive role in determining the credibility of the prosecution case and reasonable probability of the defence were not noticed by the learned Judges in the High Court. The first was the spot where the occurrence took place. It was the dera of Misri Khan in the effective occupation and enjoyment of Nazra deceased, Manzoor (P. W. 17) and Sultan (P. W. 18). Apart from being injured, they were, for this reason a well natural witnesses. The dera bad- built up portion and open land in front of it forming part of the dera. It being winter and jhikki peshiwela it was the case of these witnesses that they were sitting out in the open in the sun. Even if the defence version be believed that the respondents, had some cultivation or that they happened to be present in the vicinity they could not have in defence come to the dera of Misri Khan which was neither in the possession of Mushtaq nor any one inimical to them. The fact remains that the occurrence took place at the dera where Mushtaq's presence had been explained but the presence of the respondents remained unexplained except as aggressors.

12. The other factor which remained unnoticed in the High Court is that Manzoor (P. W. 17) and Sultan (P. W. 18) apart from being injured had no interest whatsoever in either the suspicion or the dispute, or the enmity, whatever it was, between Mushtaq and the accused party. A suggestion was made that Nazra deceased and two these witnesses belonged to a party along with Mushtaq which was opposed to that of the accused. It was not pursued during the cross-examination to any end. It was not believed either by the trial Court or by the learned Judges in the High Court. There was no reason to believe it either. Therefore, these witnesses appear to be totally disinterested witnesses and quite natural witnesses.

13. The trial Court was, therefore, fully justified, consistently with the requirement of safe administration of criminal justice, in believing the injured disinterested witnesses at whose dera the occurrence took place, and at the same time giving full effect to their statements only against the injured accused and Manak, who had a strong motive in the matter, and not against others. While accepting the appeal we set aside the acquittal of they respondents on charges under section 302/149, P. P. C. on two counts as recorded by the High Court and restore the convictions as recorded b. the trial Court. As regards the sentence we find that according to the prosecution case itself the sole motive for the occurrence was the attempt of the respondents to vindicate their family honour involving a female closely related to all of them. The imposition of death sentence is therefore not called for. The conviction and sentence as ordered by the trial Court is restored with the exception that Muhammad Din and Nazira respondents shall on conviction under section 302/149, P. P. C. suffer transportation for life instead of death. Appeal allowed.