SIRAJUD DIN Versus MISBAHUL ISLAM

1. MUHAMMAD HALEEM, J .-This appeal, by special leave of this Court, is against the judgment dated 17th December 1973, of a Division Bench of the High Court of Lahore by which the first and the second respondents were acquitted and the conviction of third respondent was altered to section 304, Part I of the Pakistan Penal Code and a sentence of ten years' rigorous imprisonment was substituted in lieu of death.

3. Leave was granted to re-examine the evidence in view of the finding of the High Court that the testimony of two policemen was worthy of credit upon which conclusion all the three respondents should have been held to be guilty of the charge of murder.

2. At 12-15 p. m. on 24th April 1970 while Khurshid Ali, Head Constable and Hubdar Hussain, Constable, were returning to Police Station 'C' Division, Rawalpindi after taking their meals at Raja Karim Hotel, they saw from Teli Chowk a 'Dolly' being carried by five or six persons, coming from the side of Bbabra Bazar. They thereupon stopped for a while to see it pass that way when they heard aloud clamour upon which they ran in that direction and at some distance beyond the shop of Bata Shoe Company in Bhabra Bazar they saw the first respondent holding Muhammad Akhtar by his hair and the third respondent causing him a knife blow and the second respondent causing a blow with a hockey stick on the right side of the forehead of Muhammad Akhtar. Muhammad Akhtar fell on the ground. Seeing Muhammad Akhtar being attacked, Muhammad Fayyaz who was standing nearby intervened but he was given three knife blows by the third respondent, and a stick blow by the second respondent but instead of striking Muhammad Fayyaz it accidentally struck the first respondent on the back of his head as in the meantime he had stepped in between the two. The two Policemen thereupon caught hold of the respondents and snatched the hockey stick and the knife from the first and the third respondent. The incident was witnessed by Muhammad Bashir, brother of the deceased who gave out the names of the respondents to them. The two injured were despatched to the Hospital and the respondents were taken to Police Station 'C' Division by the two Constables alongwith the weapons, where report was lodged by Khurshid Ali, the Head Constable, at 12-40 p.m.

3. As to the motive it was alleged that there was a dispute over some money transaction between Afsar, the brother of the deceased and the third respondent and that three days before the present incident the respondents had quarreled with Afsar over the same dispute at Bhabra Bazar. The deceased came there and abused them. Muhammad Riaz who was also present, intervened and separated the parties. But while going away the respondents had threatened to take revenge.

4. Muhammad Akhtar expired at the hospital at 1-05 p.m. the same day while the F. I. R. was being recorded by Mahbub Ali Khan, Assistant Sub-Inspector. Thereafter the A. S. I. took into possession the blood-stained knife and the hockey stick vide recovery memos. Exh. P. D. and P. E., respectively. The knife on examination by the Serologist, was found to be stained with human blood. The hockey stick had no blood on it.

5. At the trial the prosecution examined three eye-witnesses namely. Khurahid Ali (P. W. 6), Hubdar Hussain (P. W. 7) and Muhammad Bashir (P. W. 8). Muhammad Fayyaz was given up as he had not supported the prosecution case before the Enquiry Magistrate, but the respondents examined him in defence. Muhammad Riaz (P. W. 5) was examined to furnish evidence of motives.

6. The appellants were charged for the murder of Muhammad Akhtar and for the attempted murder of Muhammad Fayyaz. The trial Court while repelling the contention that 'Khurahid Ali Khan (P. W. 6) and Hubdar Hussain (P. W. 7) are officials of the Police and, therefore, their evidence is not reliable', held that they, like other human beings, had witnessed the occurrence and that 'there is no reason to discredit their evidence only on the ground that they are employed in the Police Department. The trial Court further held that their testimony stands corroborated by the testimony of Muhammad Bashir (P. W. 8), and from the other features in the case. In regard to the discrepancies in the testimony of the three eye-witnesses the trial Court held that they were trivial and have crept in due to lapse of time which are attributable to 'human errors or human failings'. The trial Court also did not give any weight to the contention in regard to the non-examination of Muhammad Fayyaz by the prosecution, for, he gave out two versions while being examined before the Enquiry Magistrate on three different dates of hearing, one supporting the defence and the other, the prosecution. The trial Court excluded from consideration his evidence on the ground that it was not safe to rely on it and further that it would not influence the other evidence, for, it is the quality of the evidence which matters. As for the evidence of Malik Abdullah Khan (D. W. 2) who had recorded the dying declaration of Muhammad Fayyaz on 24-4-1970 after he was declared fit to make a statement, the trial Court was of the view that the statement (Exh. P. L.) supported the prosecution case and not the defence version. The trial Court was further of the view that in any case, even if the name of the third person was not mentioned, he could not be other than the first respondent, for, not only did he suffer injuries but was also arrested alongwith other two respondents from the spot. Additionally the trial Court also observed that Muhammad Fayyaz being himself seriously injured, must have been perplexed because of the fear of death and it was likely that he was not able to recall it. The trial Court further held that since the report was lodged without loss of time and without waiting for any person connected with the deceased, there was, therefore, no opportunity of fabricating the case against any of the respondents and as for the absence of motive, Khurshid Ali, the Head Constable would not have known it. The evidence of motive furnished by Muhammad Riaz (P. W. 5) was accepted which in the view of the trial Court, lent assurance to the prosecution case.

7. As to the injuries on the first respondent, the trial Court held that they stood satisfactorily explained by the three P. Ws. and that by the mere fact that they were several in number, it did not mean that they were inflicted on him by the deceased. The trial Court also rejected the contention that Khurshid Ali had not witnessed the occurrence, for, otherwise he would not have been mentioned 'Deli' as 'Dolly'. In the view of the trial Court a 'Deli' is known only in this part of the country which consists of a Mazar-like small structure tied to bamboos and carried on shoulders to Mazars situated locally while a 'Dolly' is meant for carrying a bride which is tied to the bamboos at the top and is carried on shoulders. Such a significant distinction could not have been missed and apparently the word was wrongly taken down by the A. S. I. who recorded the First Information Report. The trial Court finally repelled the plea of sudden fight on the basis that neither this plea was taken by the respondents in their defence nor was any suggestion put to this effect to any prosecution witness.

8. No case seems to have been argued in regard to the plea of self-defence specifically besides an oblique reference in the judgment that the deceased could not, after receiving the knife blow, be in a position to cause the injuries to the first respondent. Further an argument seems to have been advanced that the first respondent had intervened to separate but the trial Court having accepted the ocular version that he was accidentally hit by the blow caused by the second respondent with his hockey stick, did not give any weight to it.

9. Having accepted that Muhammad Fayyaz was injured in the course of the assault yet the trial Court held that the charge of attempted murder was not established as Muhammad Fayysa was given up by the prosecution. The respondents were consequently acquitted of this charge. The trial Court, however, convicted the respondents for the murder of Muhammad Akhtar under section 302/34, P. P. C. and each of them was sentenced to death.

10. No appeal by the State was filed against the acquittal on the charge of attempted murder and, therefore, that finding has now become final. Against their conviction and sentence, the respondents preferred an appeal in the Lahore High Court while the learned Sessions Judge referred their case for the confirmation of death sentence. It was urged before the High Court that the evidence of the two policemen, namely, Khurshid Ali and Hubdar Hussain, was not credible but this contention was repelled by the High Court and it was held thus :-

11. "In any case, since we find no motive having been established against the two Policemen, for falsely implicating the appellants, we see no valid reason to disbelieve them."

12. It was further held by the High Court that "since the Policemen" had promptly arrested the respondents and "removed them to the Police Station within minutes of the occurrence, shows that they were near the place of the occurrence". In this background the only contention advanced was that the respondents had acted in self-defence in causing the death of the deceased. The basis of this plea was that the first respondent had as many as 'four contused wounds' on his person, which, except for one, had not even been explained by the prosecution which led to an inference that there was a quarrel between 'the parties' in which the deceased had inflicted the injuries on the first respondent and the respondents had retaliated only in order to save him which in the circumstances was fully justified and, therefore, the respondents were entitled to the benefit of section 100, P. P. C. in view of one of the injuries having been caused on a vital part of the body such as head. The High Court held that the prosecution has suppressed as to how the multiple injuries were suffered by the first respondent even though the first respondent had not himself explained the injuries on his person. This, however, tilted the balance in favour of the plea of self-defence and on the evidence as it stood, the High Court reached the conclusion that the injuries on Misbahul Islam could not be accidental but must have been caused in the fight by the 'opposing party' who have deliberately suppressed and minimised their part in the fight. If, therefore, the first respondent was being subjected to beating, the other respondents had the right to save him but since there was nothing on record to justify the infliction of an injury by a deadly weapon such as knife, it was the third respondent who had exceeded the right of self-defence for which alone he is liable. In the result his conviction was altered to section 304, Part I, P. P. C. and a sentence of 10 years was substituted in lieu of death. He was also ordered to pay Rs. 1000 as compensation to the heirs of the deceased and in default to suffer rigorous imprisonment for one year. As for the first and the second respondents, the High Court held that there was neither premeditation nor can it be said that they had shared the common intention to kill the deceased, for, the first respondent was unarmed and the second respondent had caused a simple injury with his hockey stick. On this view of the matter they were given the benefit of doubt and acquitted.

13. Learned counsel for the appellant vehemently urged that the High Court fell into error by extending to the respondents the benefit of section 100, P. P. C. on the basis that except for one the other injuries on the first respondent stood unexplained by the prosecution. This according to the learned counsel was the only criterion which by itself was inconclusive in the absence of other circumstances which could reasonably create a doubt in the prosecution case. In support of his contention the learned counsel relied on the case published as The State v. Rab Nawaz and another PLD 1974SC87.

14. The High Court took into consideration the multiple injuries on the person of the first respondent as being an indication in the prosecution evidence itself for reaching the conclusion as it did as to the reasonsbless of the plea. Whether the injuries alone could be conclusive to reach such conclusion is the moot question for consideration. The guideline is thus stated in State v. Rab Nawaz :

15. "The question whether the prosecution's failure in this respect, reacts on the whole case so as to create a doubt will depend on the totality of a case and not a single element in the entire gamot."

16. Necessarily, therefore, it is the sum total of the evidence which can give an indication as to whether a reasonable doubt exists in the prosecution case so as to entitle the respondents to get the benefit of the plea. It would then A be necessary not only to consider the evidence but also the plea of the respondents.

17. I would first advert to the defence set up at different stages of the proceedings. The first respondent took the plea before the Enquiry Magistrate that he received a 'stick blow' when he intervened to separate certain persons who were fighting. At the trial he took a different stand stating that as he was going with the 'Dali' at Bhabra Bazar 'something hit him from behind' which perplexed him so much that everything appeared dark to him. He was, thereafter, arrested and taken to the hospital where he was medically examined. The second respondent denied having caused any injury to the first respondent. The third respondent merely stated that he was going with his 'Dali' which he intended to take to the Darbar of Data Sahib, Lahore and he was falsely implicated due to the reason that he happened to be a 'poor man'. The plea of right of self-defence was not pleaded by any of the respondents.

18. But regardless of it, it is now a well established principle that if the evidence discloses circumstances from which a reasonable possibility of the defence being true can be inferred, benefit of that must go to the respondents, However, contrary to the plea inconsistent suggestions were put to the witnesses and none of it was in terms of the plea of self-defence. Apparently the respondents were not certain about the defence to be taken and it/ was, therefore, that such inconsistent suggestions were made to the prosecution witnesses, which to an extent would react on the plea of self-defence. As to what those suggestions were it would be relevant to recall them. To Hubdar Hussain it was suggested in his cross-examination that it were the deceased and Muhammad Fayyaz who had insulted the 'Dali' and the processionists caused injuries to both of them and the respondents were arrested because they had intervened to rescue the injured and the deceased. A different suggestion was put to Muhammad Bashir that it was Muhammad Fayyaz who was the real murderer of the deceased which of course he denied.

19. On examining the evidence I find that no other blunt weapon was recovered from the spot besides the hockey stick which was seized from the second respondent. No question was put to any of the prosecution witnesses as to whether it was the deceased who had opened the attack on the first respondent. In its absence no foundation was laid in the prosecution evidence for raising this plea. If it was the defence case that the deceased was armed then it was necessary for the respondents to have questioned the witnesses on this aspect of the case and not having done so, it is not possible to draw an inference merely from the injuries on respondent No. 1 that he was the victim of an assault by the deceased. It is also not correct to say that the origin of the assault was not apparent from the record. This submission does not take into consideration the evidence of Muhammad Bashir, the brother of the deceased whose presence could not be in doubt. He has stated that the third respondent after taking out a knife gave a 'lalkasa' to his deceased brother that "he will let him have the reward of abuses" upon which the first respondent caught the deceased by his hair and the third respondent gave a -knife blow in his belly and as the deceased was about to fall, the second respondent gave a stick blow on his forehead. Khurshid Ali and Hubdar Hussain who had reached the spot when the deceased was being assaulted also attributed the same parts to the respondents. There is no reason for me to disbelieve Muhammad Bashir whose evidence was accepted by the trial Court. The origin of the fight, therefore, being clear, the High Court without considering the effect of the evidence of Muhammad Bashir, gave undue weight to the multiple injuries on the first respondent and thereafter erroneously concluded that it was a case of self-defence. This is not all. The High Court further determined the culpability of the third respondent on the basis that the giving of the knife blow by him was his individual act and that it did not merit the situation and the other two respondents could not be held responsible for his act by reference to common intention. There cannot be an iota of doubt that from the evidence on record it was established that there was meeting of minds at the spot so as to constitute common intention and the case of the other two respondents could not have been distinguished on that score. The learned counsel for the first two respondents has substantially urged what the High Court has concluded qua the acquitted respondents. I have no hesitation in saying that the trial Court had correctly appraised the evidence while reaching the conclusion as to the sharing of the common intention and I would hold so.

20. The overall consideration of the evidence, therefore, clearly negatives the exercise of the right of self-defence and as held by this Court in State v. Rab Nawaz and another the benefit of a single element such as the injuries would not be conclusive to re-act on the prosecution case so as to create a doubt. On this view of the matter the High Court was in error when it gave to the respondents the benefit of the plea of the right of self-defence.

21. The learned counsel for the first two respondents next attempted to rely on the admissions made by Muhammad Fayyaz before the Enquiry Magistrate which were duly proved while being examined at the behest of the respondents. In this context he referred to certain admissions which tend to support the case of these respondents. The first was that it was the third respondent who had stabbed the deceased while the other two respondents were arrested when they were about to lift the deceased from the ground, and the second was that the deceased had caused injuries to the first respondent.

22. Again reference was inaptly made to the dying declaration in which a soti was mentioned instead of a hockey stick. Besides no motive was stated and the name of the first respondent was not given. The trial Court while discussing the evidence of Muhammad Fayyaz has held that his evidence was not credible, for, he had made statements both in support of the defence and against it. The witness had himself explained that he was not in full senses as he was eminently apprehending death and in that mental strain he had committed a mistake. Be that as it may, the trial Court held him not to be a reliable witness. There is no reason to differ from the assessment of his- evidence, for, it would be unsafe to rely on a witness whose integrity is dubious so much so that he is prone to changing his statement at different stages of the proceedings.

23. The learned counsel next contended that since Muhammad Afsar was not examined to prove motive, it should not be held to have been established on the ipse dixi of Muhammad Riaz who is related to Muhammad Fayyaz. Since the incident had taken place in the presence of this witness and he had intervened we do not see any reason why his evidence should not be considered to establish motive when otherwise he was known to the deceased, his brother and the respondents as he had lived in that very locality before shifting to 'Nai Abadi, Satellite Town.' Motive can proved by any person who has the knowledge of the facts and, therefore, even if Muhammad Ashraf was given up, the testimony of Muhammad Riaz D has evidential value and due weight was rightly given to it by the trial Court.

24. The learned counsel further contended that the weapons were planted by the two Policemen and this was obvious from the fact that the recovery memos. were not made promptly but after the case was registered for the murder of the deceased. In this context he referred us to the caption of the two recovery memos. wherein there is reference to a case registered on 24-4-1970 under section 302/307 read with section 34, P. P. C. This contention is again without substance, for it is apparent from the record that the recording of the F. I. R. was completed at 1-20 p.m. and the deceased had expired at 1-05 p m. and it must be that while the F. I. R. was being recorded such information would have reached the Police Station. Since the recovery memos. appear to have been prepared after the recording of the F. I. R. was over, it was, therefore, that the offence under section 302, P. P. C. was also mentioned alongwith section 307, P. P. C. as the deceased had by then died and it then turned out to be a case of murder. By itself such a conclusion is far-fetched and nothing can turn on this inchoate contention. I may also point out that the recovery memos. were prepared by the A. S. I. Mahbub Ali who was examined at the committal stage and his statement was transferred to the file of the Sessions Court, as he had died. If this was the defence case, then this witness should have been cross-examiners at the enquiry stage on this aspect of the case and therefore, in the absence of any explanation as to how section 302, was written along with section 307, no weight can even otherwise be given to what the learned counsel has urged. In any case, I see no reason why the two Policemen would plant those weapons if they had already been seized from the concerned respondents at the spot, and no material was brought out to lay even a foundation for it. Exception was also taken to the fact that Khurshid Ali had given out 45 minutes as the duration of the incident which could not be correct. Nothing will turn on it, for, it appears to be a mistake.

25. Lastly the learned counsel contended that the participation of the second respondent was not established as the post-mortem report was inadmissible in evidence. Elaborating his stand the learned counsel contended that it has not been strictly proved that Doctor Muhammad Yamin Khan, who had performed autopsy on the body of the deceased, was not available for giving evidence at the trial. In support of his contention he relied on the case of Allah Ditta v. The State P L D 1958 S C (Pak.) 290 in which it was held that "in the absence of any direct evidence the mere declaration that `delay and unnecessary adjournment' would be involved in procuring the appearance of Lala was not sufficient for satisfying the relevant conditions of section 33 aforesaid which is that it should have been proved that the witness could not be found", and as such his evidence was held to be inadmissible. The present case is distinguishable, for, Fateh Muhammad (P. W. 4) the Dispenser has categorically stated that Doctor Muhammad Yamin Khan had gone to E Saudi Arabia and there was no likelihood of his return in the near future. He was not cross-examined to cast doubt as to his not being in Pakistan, and therefore, the rule laid down in the case of Allah Ditta v. The State will not apply, for, in that case there was not definite proof of the witness not being available.

26. Learned counsel while contending that the post-mortem report was inadmissible also obliquely contended that not being a statement on oath it was not admissible in evidence. This contention again ignores the provisions of section 32(2) of the Evidence Act The opening words of section 32 refer to statements written or verbal and clause (2) makes admissible memorandum made in the discharge of professional duty. There is no requirement of the statement being on oath and for that matter the F memorandum which is also a statement, but since the admissibility of such statement is an exception to the general rule that all evidence must be direct,) the requirement of the section has to be fulfilled, If this requirement is satisfied then the memo. can be proved by other evidence. The post-mortem report of the Doctor who is not available can thus be proved by examining some one who is acquainted with his handwriting and signatures. In this connection reference can also be made to the decided cases. In Mohan Singh v. Emperor A I R 1925 All. 430 it was held that the post-mortem report would be admissible under section 32(2) of the Evidence Act as being a statement made by a dead person in the ordinary course of business and in the discharge of his professional duty. In State v. Rajpal Singh A I R 1953 All.520 it was held that the injury report prepared by the Medical Officer could be admissible in evidence under section 32(2) if it is proved by his Compounder in case the attendance of the Medical Officer cannot be procured without any delay or expense. Lastly, in State v. Bakhmir and another P L D 1960 Pesh. 335 reliance was placed on Mohan Singh v. Emperor and the same view was taken. There is, therefore no force in the contention of the learned counsel and as for the infliction of the injury by the second respondent with the hockey stick on the deceased, one such round-shaped abrasion was noticed on the right side of the forehead which in all probability was caused by the edge of the hockey stick. This further corroborated the ocular version in regard to his participation.

27. Learned counsel for the third respondent contended that Muhammad Riaz (P. W. 5) not being a witness of the locality could not be in a position to state about the motive, and, therefore, it was a sudden fight, for there was no element of premeditation. By this what the learned counsel meant was that the benefit of Exception 4 to section 300, P. P. C. should be extended to the third respondent. The trial Court upon sifting the evidence has held motive to have been established. It has also held that it was not a case of sudden fight. I have no reason to differ from that appraisal, for the evidence as it stands does not make out a case of a sudden fight. However, assuming for arguments' sake even if it be taken to be a sudden fight, yet the third respondent would not be entitled to the benefit of Exception 4 as the deceased not being armed was not on an equal footing and, therefore, stood in a disadvantageous position. In such circumstances the benefit of Exception 4 cannot be bad. The reference to the case cited as Miran Bakhsh v. Niaz and another 1975 S C M R 337 is also inapt, for, in that case the complainant party bad taken exception to the visit of the accused party to the village over which the parties fought duly armed with deadly weapons and in the course of the fight persons from both the sides had suffered injuries. It was, therefore, not a case of sudden fight and special leave was refused in that case on other consideration.

28. The culpability of the third respondent in causing the knife blow is established beyond doubt which resulted in the death of the deceased, The High Court, thus in conceding to the respondents the right of self-defence has ignored the over all effect of the evidence which, if considered in the proper perspective, would have brought out that it was not a case where even the foundation of such a plea was laid in the evidence, much less that it was indicated in the evidence. This has resulted in miscarriage of justice.

29. The learned counsel for the State while assailing the judgment of the High Court urged that the credibility of the witnesses not having been doubted common intention was established on record and the High Court wrongly gave to the respondents the benefit of the plea of self-defence. This contention is in substance what was urged by the learned counsel for the appellant which I have upheld elsewhere in the judgment.

30. Accordingly, I would set aside the judgment of the High Court and maintain the conviction of the three respondents under section 302 read with section 34, P. P. C. for the murder of Muhammad Akhtar.

31. As for the sentence of death imposed on Baz Mir, the third respondent, there is ample justification for it, for, it was he who had given the lalkara and not only that but also caused the fatal knife blow to the deceased. His sentence of death is, accordingly maintained. The trial Court had not awarded any compensation to the heirs of the deceased which was obligatory under section 544-A, Cr. P. C. unless, for reasons to be given, it was not considered necessary to award it. Therefore, I would impose a fine of Rs. 1,000 which if recovered, should be paid to the heirs of the deceased. There is, however, a distinction in the case of the other two respondents, for, they were under the influence of the third respondent and had participated at his instigation without having earlier made preparation to kill the I deceased. It is, therefore, not a case where justice demands a heavier toll for the extinction of a single life. I would, therefore, in the case of the respondents Misbahul Islam and Muhammad Javed, substitute a sentence of life imprisonment instead of death imposed by the trial Court, as this sentence will meet the ends of justice.

32. In the result the appeal is allowed.

33. MUHAMMAD AFZAL CHEEMA, J .-I agree.

34. MUHAMMAD AKRAM. J. -I agree.

35. S. A. H. Appeal allowed.