1968 P Cr (PLP)

S. A. RAHMAN, J.‑Mehr Din, Roshan Din and Qutab Din, appellants, were tried along with their fourth brother Mohammad Din, for causing the death of Mohammad Aslam and simple hurt to Sardar P.W. the trial Judge convicted the three appellants on the murder charge and sentenced them to death. He convicted Muhammad Din under section 323 of the Pakistan Penal Code only and sentenced him to 6 month's rigorous imprisonment, together with a fine of Rs. 500 or in default, rigorous imprison ment for 3 months further. On appeal and reference, the High Court upheld the convictions of the appellants and the sentence awarded to Roshan Din, but altered the sentences of Mehr Din and Qutab Din to those of transportation for life, on the murder charge. Special leave to appeal was granted to the three appellants as it was felt that certain outstanding features of the case hart pot been considered with the care they deserved, by the Courts below. There being a real cause of quarrel between the parties, the possibility of a sudden quarrel leading to a fight between them, was open for consideration. The second matter of importance that prevailed with the admitting Bench was that Mehr Din, appellant, is an old man, with one leg crippled and he bore some cuts on his left hand. The question falling for consideration was whether an aged person with one leg could have joined in such a fight. It was also pointed out in the admitting order that the defence plea of Mehr Din, that he was himself attacked with a knife by the deceased and succeeded in snatching away the knife from him, was partly supported by the evidence of the village Chowkidar, Barkat (P. W. 15). The parties are cobblers by caste and are inter‑related in so far as a sister of Mst. Fatima Bibi (P. W. 21), the mother of the deceased, is married to an elder brother of the appellants, named Umar Din. Sardar (P. W. 20) is the husband of Mst. Fatima Bibi. The deceased Muhammad Aslam was their son. He was unmarried and had developed illicit intimacy with Mst. Hamidan, daughter of Mehr Din, appellant. When Sardar came to know of this affair, he sent away the deceased to his mother's village, He, however, returned to his parental village, Bhilloke, one or two months prior to the occurrence. The prosecution story was that Mst. Hamidan was infatuated with this young man and had even threatened to have him murdered if he did not marry her. Sardar P. W. had, therefore, asked Nawab Din (P. W. 14), Barkat (P. W. 15) and Ilam Din (P. W. 16) to go and advise Mehr Din, appellant, to marry off his daughter somewhere. Mehr Din, in consequence of this advice, married his daughter to some one in village Jamke. Mst. Hamidan had come back after her marriage, to her parent's house, a couple of days before the occurrence. The incidents took place on the 2nd of May 1965, just before sunrise. The deceased was, it is said, going to his uncle's house to have a wash when he was waylaid by the three appellants, just in front of their shop which is apparently opposite the house of the uncle of the deceased. Mehr Din and Qutab Din were armed with chhurrees and Roshan Din carried a sword. Qutab Din threw down the deceased and sat on his back. He started stabbing him with his chhurree. Roshan Din thrust his sword into the rectum of the deceased and Mehr Din also caused him injuries with his knife. Kist. Sardar Bibi (P. W. 22), an aunt of the deceased's mother, happening to go up on the roof of her house nearby, saw what was happening and raised an alarm. This attracted Sardar P. W. and his wife, Mst. Fatima Bibi, to the spot from their house. Sardar tried to remove Qutab Din from his son's back, while Mst. Fatima Bibi attempted to snatch away his knife. In that struggle Mst. Fatima Bibi also received some injuries on her hand, which were incised in character. Just then, Mohammad Din, the fourth brother. of the appellants, armed with a dang, came up and started inflicting injuries on Sardar with his stick. The hue and cry raised also brought Muhammad Sadiq (P. W. 23) and Umar Din (P. W. 24) to the spot. Due to their intervention and the mediation of others who collected there, the appellants were persuaded to go away from the spot, taking their weapons with them. The deceased wits brought to his house and placed on a cot. Abdur Rashid (P. W. 18), a Lambardar of the village, and Nikke Khan (P. W. l9), were informed of the incident and came to the house of the deceased. They advised Sardar to take him to the hospital and lodge a report with the police as the condition of Muhammad Aslam was precarious. Abdur Rashid also claimed that the deceased made an oral declaration to him, naming the assailants. The deceased was first carried to the Chawinda Dispensary, where the doctor was not present. The dispenser, however, gave him first‑aid and advised Sardar that ht should take him to the Civil Hospital, Sialkot. Sardar took his son by train to Sialkot but before the doctor could attend to him there, the deceased expired. Muhammad Amin (P. W. 13), who happened to be at the Hospital, then, took Sardar P. W. to the office of the Deputy Superintendent of Police, where Sardar made a statement which was recorded under directions of the Deputy Superintendent of Police, by Head Constable Bashir Ahmed the basis of this statement, was recorded at Police (P. W. 10), apparently at 2‑33 p.m. On a formal First Information Report Station, Phillaura. The Investigating Officer visited the spot on the same day at about 6 p.m. The distance between the site of occurrence and the Police Station is about 5 miles. The accused persons were produced before him on the 3rd day of May 1965 at about 9 a.m. by Nazir, Lambardar. The clothes on the persona of the three appellants were seized by the Investigating Officer and made into sealed parcels, as they were stained with blood, Mehr Din produced a blood‑stained knife from his house, Qutab Din surrendered a blood‑stained knife and Roshan Din, his blood stained sword, to the Investigating Officer. These too were made into sealed parcels. These recoveries took place in the presence of Abdur Rashid and Nikke Khan, P. Ws. The blood on the clothes of Mehr Din and Qutab Din was found to be of human origin, but though blood was found on the weapons of offence and the remaining clothes, the stains on them had disintegrated by the time they reached the Serologist and the origin of the blood thereon, could not be, therefore, determined. The medical evidence established that the deceased had sustained several injuries caused with blunt weapon, as well as, incised wounds, on various parts of the body. The fatal group of injuries was described as multiple incised wounds on the margin of the anus, cutting the external sphincter. On dissection it was found that the peritoneum bore a long cut in the pelvic region. The left side of the rectal wall bore cuts and the back wall of the bladder was also found cut. Sardar P.W. was found to have suffered several injuries, simple in nature and caused by a blunt weapon. Mst. Fatima Bibi also bore small incised wounds on her left hand, his is consistent with her allegation that she had tried to snag away the knife from the hand of Qutab Din. From the side of the accused, Roshan Din had two abrasions on his right leg sad one on his left leg and three superficial buts on the palm of his left hand. All the injuries were simple in character. Qutab Din was found on examination, to bear 5 small abrasions on his knee's which were simple in nature and caused by a blunt weapon. Mohr Din had 5 superficial cuts on the palm of his left hand near the root of the index finger. These were simple injuries caused by a sharp‑edged weapon. The defence story, as given by Mehr Din in the Committing Court was that he had turned down the request of Sardar P. W. for the hand of his daughter for his son, Muhammad Aslam, deceas ed which fact was resented by Sardar as well as by Muhammad Aslam, deceased. After he had married his daughter in village Jamke, Sardar P. W. and his son, Muhammad Aslam deceased, finding an opportunity, attacked him while he was in his shop. During the scuffle some minor injuries were caused to the deceased, with a chhurree. His brother Roshan Din came up and intervened on his behalf. He gave out that he had lost one of his legs during a railway accident and he was not a person who could dream of assaulting any one. In the trial Court, however, he varied this statement by saying that on the alleged day of occurrence, Muhammad Aslam deceased, alone came and attacked him with the knife (Exh. P. 7). The appellant grappled with him and succeeded in snatching away the knife from his hand. The deceased, however, caught him by the throat, threw him on the ground and sat on his chest. The appellant struggled to release himself from the clutches of the deceased and in the course of the struggle, he vaguely suggested, that the deceased might have sustained some injuries. On his alarm, his brother Roshan Din came up. He was met in the street by Sardar P.W. who attacked him with a dang. Thereupon Roshan Din picked up a stick which Mehr Din used as a crutch and gave a few blows to Sardar. with it. This version was adopted by Roshan Din also as his own statement. Qutab Din pleaded that he had been falsely implicated merely because he happened to be a brother of Mehr. Din. The prosecution story rests on the evidence given by Sardar, Mst. Fatima Bibi, Mst. Sardar Bibi, Muhammad Sadiq and Umar Din who all claimed to be eye‑witnesses. The learned trial Judge rejected the evidence of the two last‑named and the High Court agreed with that assessment of their evidence. They are apparently disinterested witnesses but it was doubted whether they had come to the spot in time to witness the occurrence. With regard to the remaining eye‑witnesses, however, though they were related to the. Deceased it was found that their testimony received corroboration from the medical evidence, as well as the recoveries made in the case. Barkat Chowkidar (P. W. 15), who was put forward as a formal witness, to say something about the motive for the crime, also claimed to be an eye‑witness and struck a discordant note by saying that on hearing the alarm at about 6 a.m. he went to the spot and found Mehr Din quarrelling with Muhammad Aslam and his father, Sardar. Roshan Din, accused, was also present there. Then all the four began grappling with one another. Muhammad Aslam and Mehr Din being armed with knives. A number of people collected there and intervened. Muhammad Aslam, deceased, then ran away. This version is clearly not sustainable in view of the " medical evidence in this case. It is difficult to believe, having 5 regard to the nature of the injuries, suffered by the deceased that he could run away from the spot immediately after the occurrence, as this Chowkidar suggests. He also deposed in cross‑examination that he had seen Muhammad Aslam wandering about aimlessly in the village, just before the occurrence. It was brought out in his re-examination by the prosecution that he had failed to mention that fact before the Committing Magistrate, or the fact that he had witnessed the quarral to which he testified in the trial Court. He also asserted that he had been commissioned by the deceased's father to request Mehr Din for the hand of his daughter for his son but that Mehr Din declined to consider the proposal. Even if there was some truth in this allegation, there is hardly any reason for supposing that the deceased and his father would go and attack Mehr Din after Mst. Hamidan was married off elsewhere and that also long after that marriage. Barkat was clearly an unreliable witness and his evidence was, therefore, rightly discarded as false by the Courts below. The defence version was examined in the High Court and rejected as being inconsistent with the medical evidence on the record. It was observed that the deceased was a young man, whereas Mehr Din was aged about 60 and with a wooden leg and if the deceased had gone to attack him, he would have done much more damage to Mehr Din than the infliction of simple cuts on his left hand which the doctor found. The evidence given by Abdur Rashid and Nikke Khan P. Ws., to the effect that refer the occurrence the appellant are said to have confessed that the attacked the deceased because of the insult offered to their girl, was accepted by the High Court as trustworthy. The first point urged in support of the appeal by Mr. Abdul Majid, on behalf of the appellants was that there was a good deal of delay in reporting the matter to the police in this case. After considering the relevant evidence, however, we are not satisfied that there was any inordinate delay in this respect. The deceased was very seriously injured and the first anxiety of his relatives was apparently to get him medically treated. They first took him to Chawinda Dispensary, but not finding adequate arrangement for treatments there, they had to take him by train to Sialkot. The first information report was apparently recorded by the Head Constable at 2‑33 p.m., though according to the statements of the Head Constable Bashir Ahmed (P. W. 10), it was taken down at 3‑33 p.m. This seams to be a misprint for 2.33 p.m., as the Deputy Superintendent of Police, Mr. Manzur Elahi (P. W. 17), who dictated the report to him, stated clearly that the informant came to his office at about 2‑30 p.m. and this is confirmed by Sardar P. W's own statement. The incident was, therefore, brought to the notice of the Police without any undue loss of time. Both Sardar and Mst. Fatima Bibi P. Ws., were themselves injured and their presence at the spot at the relevant time can hardly be doubted. Mst. Sardar Bibi is, no doubt, a collateral of these P. Ws., but apparently she had no enmity with any of the accused persons. As has been mentioned above, an elder brother of the appellants is married to a sister of Mst. Fatima Bibi and consequently, no motive for a false implication of the appellants existed in this case. The story, as told by these witnesses, is consistent and free from material discrepancies. It is also in accordance with the medical testimony brought on record in this case. No foundation has been laid in the evidence for the sug gestion that there was a sudden quarrel leading to a fight between the parties on the day of occurrence. The prosecution case is that the deceased was set upon by the accused persons, who were probably acting in pursuit of a pre‑concerted plan. Colour in lent to this version by the fact that all the three appellants had access to sharp‑edged weapons, including a sword. The injuries of the accused persons were very minor, such as could have been received in the course of a scuffle and do not support the allegation of the defence that Mehr Din, who is handicapped by his wooden leg; was attacked either by the deceased or by the deceased and his father in his shop. No blood‑stains apparently existed inside or near the shop. The number and nature of the injuries on the deceased, on the contrary, are in consonance with the prosecution story that he was thrown down on the ground, overpowered and then repeated stabs were given in his anal region. It appears that the deceased also bore some blunt weapon injuries for which the P.Ws. have not accounted, but it is possible that those blunt weapon injuries were inflicted on the deceased by Mehr Din, with his stick, prior to the occurrence being seen by the P.Ws. It may also be that in the course of the blows being inflicted on the deceased, when he was down on the ground, some blows with the blunt side of the sword may also have been given. The prosecution had nothing to gain by suppression of this part of the story. On the whole, after consideration of the entire evidence we are not persuaded that the appreciation of that evidence by the High Court involved a violation of any principle of law, or was contrary to any provision of law. No case has been made out of interference with the orders passed by the High Court and we dismiss the appeal. Appeal dismissed.