NAZEER AHMAD Versus STATE
This judgment will dispose of Criminal Appeal No. 184 of 1997 filed by Nazir Ahmad appellant, who was convicted and sentenced by learned Additional Sessions Judge, Samundri on 7‑4‑1997 for the murder of Mst. Inayatan Bibi to undergo life imprisonment under section 302‑B, P.P.C. with the further direction to pay Rs.10,000 as compensation to the legal heirs of the deceased, in default six months S.I. Benefit of section 382‑B, Cr.P.C. was also granted to the appellant. The complainant Sardar Muhammad has also filed a Criminal Revision No. 134 of 1997 for the enhancement of sentence of the appellant Nazir Ahmad.
2. It may be noted here, that co‑accused of the appellant Nazir Ahmad namely Mst. Khurshidan Bibi wife of. Nazir Ahmad appellant was also convicted by the learned trial Court under section 337‑A, II P.P.C. to undergo one month S.I. for causing injuries on the person of Mst. Manzooran Bibi.
3. The occurrence in this case took place on 9‑6‑1994 at 12.30 p.m. in village abadi situated in Chak No.225‑GB, Tehsil Samundri, District Faisalabad in the lands belonging to the Government as tender land. Complaint Exh.Pl was lodged by Sardar Muhammad husband of Mst. Inayatan Bibi deceased at Civil Hospital, Samundri on the same day at 5.0 p.m. and the same was recorded by Muhammad Zafar Ullah Khan, Inspector P.W.15 while the formal F.I.R. Exh.PI/1 was recorded by Ghulam Mustafa M.H.C., C.I.A. P.W.10 on the same day at 5.45 p.m.
4. Briefly stated, the facts are that Sardar Muhammad P.W.8 made a statement Exh.PI before Muhammad Zafar Ullah Khan, Inspector Police Post, Tarkhani (P.W.15) on 9‑6‑1994 at about 5.30 p.m. in Civil Hospital, Samundri that today near village Abadi of Chak No.225/GB Nazir Ahmad and his wife Khurshidan Bibi were clearing the foundations and wanted to construct wall in his share of possession over tender land. At about 12.30 p. m. complainant Sardar Muhammad alongwith his wife, Inayatan Bibi and Manzooran Bibi, daughter‑in‑law, reached there; and forbade Nazir Ahmad and Mst. Khurshidan Bibi from doing so. A brawl ensued between them. Nazir Ahmad picking up hatchet from nearby Dera inflicted the same on the back of left knee of Mst. Inayatan Bibi who fell on the ground. Mst. Khurshidan Bibi after picking a brick from nearby hit the same which landed on the head of Mst. Manzooran Bibi. On hue and cry, Ghulam Hussain and Muhammad Ali attracted to the spot and witnessed the occurrence. They separated the injured from the accused. After the occurrence Mst. Manzooran Bibi and Inayatan Bibi were removed to Hospital where Inayatan Bibi succumbed to the injuries and Mst. Manzooran Bibi was admitted for treatment. The motive for the occurrence is stated to be a dispute over construction of wall on tender land.
5. The Investigating Officer, after reaching at the spot, took into possession blood‑stained earth vide memo. Exh.PE Appellant and his co‑accused were arrested on 15‑6‑1994. Appellant got recovered hatchet P.1, which was taken into possession vide memo. Exh.PG. Mst. Khurshidan Bibi acquitted co‑accused also got recovered brick P.2, which was taken into possession vide memo. Exh.PH. The Report of Chemical Examiner regarding the blood‑stained earth is Exh.PO and that of Serologist is Exh.PP.
6. Prosecution in order to prove its case produced 15 witnesses in all. Thereafter, statements of the appellant and his co‑accused were recorded under section 342, Cr.P.C. One lady Doctor Qaisra Nazli was also examined as D.W.1, who had medically examined Mst. Khurshidan Bibi acquitted co?-accused. Learned counsel for the appellant has read before me the prosecution evidence, statements of the appellant and of D.W.1 and makes the following submissions. He submits that occurrence had taken place where dera of the appellant was situated, that the complainant was not present there, that it was the complainant party, who was aggressor, that the appellant had acted in his right of self‑defence in order to save his wife Mst. Khurshidan Bibi, who was on her family way and having a pregnancy of 24 weeks. He submits that recovery of hatchet is planted one and the same is not blood‑stained. He also submits that appellant has not committed any offence. Lastly, he submits that appellant has already undergone four years, ten months and 22 days of sentence.
7. On the other hand, learned counsel for the State submits that prosecution has proved its case against the appellant beyond any shadow of doubt, that appellant, while armed with hatchet, caused injury on the person of Mst. Inayatan Bibi which proved fatal. He supports the judgment of learned trial Court.
8. I have heard the learned counsel for the parties and have also gone through the prosecution evidence recorded by the learned trial Court with their assistance. In the instant case, Mst. Khurshidan Bibi wife of the appellant was also injured and she was medically examined by Lady Doctor Qaisra Nazli, D.W.1, her statement is reproduced below:‑‑
"On 12‑6‑1994 at 9.30 a.m. I examined medically Mst. Khurshidan Bibi wife of Nazir Ahmad aged 22/23 years caste Jat occupation house‑wife, resident of Chak No.225/GB, Tehsil Samundri, District Faisalabad and observed the following injuries:‑‑
(1) Abrasion with swelling on left pariatal region sized 3 c.m. x 3 c.m.
(2) Abrasion with swelling on outer side of right thigh covering the area 5 c.m. x 6 c.m.
(3) She was 24 weeks pregnant on examination Fundal height was 24 weeks. She was referred to District Headquarter Hospital for Ultra sono graphy as for foetal well being. It was kept under observation. No marks of violence were seen on abdomen but she only complained of pain in lower abdomen.
Injuries Nos. l, 2 were simple while injury No.3 was kept under observation. All injuries were blunt weapons, probable duration of injuries was 3/4 days. I have brought the original register with me Exh.DD is correct photostat copy attested by me today. It bears my signatures and seal. Exh.DD/1 is the sketch of the injuries. It is also the correct attested copy of the original. It bears my signatures and seal. x x x x x By learned DDA
Today I have signed and sealed Exh.DD and Exh.DD/1 as true copies. I did not record the statement of Mst. Khurshidan Bibi (volunteered) statement of the husband was recorded by me. It is mandatory to affix the thumb‑impression of the injured in case he is in senses. Identification marks of Mst. Khurshidan Bibi, however, I have not mentioned the name under these identification marks. She was not admitted in hospital. In strict sense injury No.3 is not an injury. Injuries Nos. l and 2 may be the result of friendly hand. Mst. Khurshidan Bibi was not personally known to me. I did not demand her identity card at the time of her examination. 1 cannot say any other women was produced instead of Mst. Khurshidan Bibi accused. However, the possibility is there.
On Court question.
Mst. Khurshidan Bibi was accompanied by her husband accused Nazir Ahmad. Marks of Identification are mentioned about the injured or and examinee.
9. The statement of lady Doctor Qaisra Nazli D.W.1 shows that one injury is on the head of Mst. Khurshidan Bibi and the other is on her thigh. These two injuries were suppressed by the prosecution. Moreover, she was on her family way. Appellant while replying to question No.7 had answered in the following terms which I mention below:‑‑
Q. No.7. Why the P.Ws. have deposed against you and why this case against you and your co-?accused?
Ans ????? The case is false. The complainant fabricated a case against me and my wife Khurshidan Bibi in connivance with the police and got us falsely challaned. The P.Ws. have deposed falsely because of enmity.
"The actual facts are that on the day of occurrence I was digging the foundation with a kassi some time before 12.00 Noon, in my Ihata. My wife Mst. Khurshidan Bibi was helping me in the digging of the foundation of wall in my Ihata which was in my possession and in the mean time Mst. Inayatan deceased and Manzooran P.W., while armed with sotas, criminally trespassed into our Ihata and asked me and my wife that we should not dig the foundation and on our refusal Mst. Inayatan and Manzooran mentioned above injured my wife Khurshidan Bibi by giving Sota blows on her person. I tried to save my wife Khurshidan Bibi upon which a struggle took place between me, Inayatan deceased, and Manzooran. P.W.1 gave pushes to Mst. Inayatan deceased and Manzooran P.W. in order to save the life of my wife and as a result of which Mst. Inayatan fell on the Kassi which was lying there with its blade upwards and Mst. Manzooran P.W. fell on a brick which was lying there. The Ihata was in our possession. None else was present there."
10. The defence taken by the appellant in his statement under section 342, Cr.P.C. mentioned above is also not plausible to reason and is an absurd one. In fact, both the parties did not approach the learned trial Court with clean hands. Both of them have suppressed their actual roles. The occurrence had taken place in the land where "Dera" of Nazir Ahmad appellant was present. On the other hand, the below which was on thigh of the deceased given by the appellant also proved fatal. In this regard, statement of Dr. Hafeez Ullah, M.O., who conducted the post-mortem examination on the body of Mst. Inayatan Bibi deceased on 10‑6‑1994 and found the following injuries on her person, which is reproduced below:‑‑
"(1) A stitched wound 6 c.m. on poplitial foosa of the left leg (left knee joint). On dissection it was seen all the under lying blood vessels were cut on left poplitial fossa. No fracture of any bone was seen.
Note: ??? Shalwar was also cut according to injury No. 1.
Thorax: All the viscras were healthy and the heart was found empty.
Abdomen: All the abdominal contents were found healthy, stomach and its contents were containing semi?-digested food which were not identified. Bladder was containing 100 CC Urine.
While doing external as well as internal post‑mortem, I was of the opinion that injury No.1 was sufficient to cause death in ordinary course of nature. Cause of death was due to haemorrhage and shock. This injury was ante‑mortem and caused with sharp‑edged weapon. The probable time between injuries and death was about 2 to 3 hours and that between death and post‑mortem was about 18 to 20 hours.
After the post‑mortem examination, I handed over a well‑stitched dead body, last worn clothes of the deceased, police paper and carbon copy of post‑mortem report to Nazir Ahmad constable 375. Exh. PJ is the correct carbon copy of my post-?mortem report which is in my hand and signed by me. Exh.PJ/1 is the skiagram showing the seat of injury which is also in my hand, signed and bears my seal.
Injury statement Exh.PK was also signed and sealed by me. Inquest report Exh.PL was also sealed and signed by me." x x x By the learned defence counsel,
It is correct, in Exh.PJ, in the column of death, the time of death is given by me as 12.30 noon and the date is 9‑6‑1994. (Volunteered it was according to police papers). It is correct that seat of injury No.1 is on fleshy part of the body. It is correct that there was no cut of any bone. It is possible that if anybody falls on a kassi having its sharp side upward then such like injury may be caused. It is possible that the deceased might have received injury No.1 in such like manner (Volunteered that the cut of the Shalwar should also be considered).
11. The opinion of the doctor shows that the injury received by the deceased proved fatal. I have to put both the versions in juxta?position. As I have held earlier that both of them have not approached the learned trial Court with clean hands. Furthermore, prosecution has suppressed the injuries on the person of Mst. Khurshidan Bibi wife of the appellant and acquitted co‑accused. Therefore, the conviction of the appellant is altered from section 302‑B, P.P.C. to section 302‑C, P.P.C. and the sentence of life imprisonment is reduced to 10 years R.I. as the appellant has exceeded from his right of self‑defence so compensation under section 544‑A, Cr.P.C. of Rs.10,000 is maintained. Benefit of section 382‑B, Cr.P.C. is also maintained. The revision petition filed by complainant Sardar Muhammad for the enhancement of sentence of the appellant is dismissed. With these observations, this appeal stands disposed of.
Order accordingly
Q. M. H. /M. A. K./N‑148/L