KHADIM HUSSAIN Versus MUHAMMAD ARFAN

ORDER

1. USMAN ALI SHAH, J.‑‑ This petition for leave to appeal has arisen from the judgment dated 8‑7‑1987 of the Lahore High Court, whereby Criminal Appeal No.88 of 1984 of the accused respondent No.1 against the judgment dated 7‑10‑1984 of the .Sessions Judge, Rawalpindi, sentencing him to death for the charge of murdering Hassan Akhtar, was converted from section 302, P.PC. to under section 304, Part I, P. P. C . , awarding him sentence of 7 years' R.I. plus a fine of Rs.10,000 or in default of payment of fine further 2 .years' R.I. In case of recovery the fine is to be paid to the heirs of the deceased. Benefit of section 382‑B, Cr.P.C. was also extended to the accused.

2. Briefly, the prosecution case as stated in the F.I.R. is that on 20‑6‑1983, at 7‑30 p.m. complainant Khadim Hussain (PW‑7) alongwith Muhammad Kazim (PW‑8) both residents of village Mamyan, while returning from village Doberan, saw Hassan Akhtar (deceased) going Ahead of them. When they reached near the shrine of Pir Bangas within the limits of village Doberan, accused Muhammad Arfan (respondent No.1 herein) armed with Danda came in front of Hassan Akhtar (decdased), raising lalkara, that he would teach him a lesson for removing him from service of driving and for not paying his salary, attacked on the deceased and dealt him with a Danda blow on his head. As a result the deceased fell down on the ground and thereafter the accused caused several blows with Danda to the deceased. In this process the Danda broke into two pieces. The accused then picked up stones and struck the deceased with it three to foul times. The deceased died on the spot and the accused decamped from the scene of occurrence. Both the PWs. tried to catch hold of the accused but with no success. Leaving the dead body in the custody of Muhammad Kazim (P.W.8) the complainant went to the police station and lodged F.I.R. Ex.PF.

3. The motive for the offence which was a bit improved at the trial, as alleged by the prosecution is that Hassan Akhtar (deceased) had removed the accused from his service without making payment of his salary to him because he was his truck driver and had damaged the truck one or two weeks prior to the occurrence. The accused was demanding the salary and the deceased was refusing to make the payment.

4. S.I. Muhammad Qasim (PW‑10) who recorded the F.I.R. went to the spot. He found the dead body of Hassan Akhtar (deceased) lying on the spot near the shrine of Pir Bangas. The S.I. prepared the injury sheet Ex.PK and inquest report Ex.PL and sent the dead body to the hospital for post‑mortem examination. The S.I. inspected the spot next morning and collected blood‑stained earth vide memo. Ex.PG and collected from the spot two pieces P.7 and P.8 of blood‑stained Danda vide memo. Ex.PH. He also took into possession blood‑stained stone vide memo. Ex.PJ. The A.S.I. (PW‑10) arrested the accused on 22‑6‑1983.

5. On 21‑6‑1983 at 7 a.m. Doctor Muhammad Aslam Butt (PW‑1) conducted the autopsy on the dead body of Hassan Akhtar (deceased) and found 11 injuries on the dead body. Injuries Nos.l to 4 and 7 were declared by the Doctor as grievous and the remaining injuries as simple in nature. All the injuries were caused by blunt weapon except injury No.3 which was caused with blunt pointed weapon. The Doctor opined that the death of the deceased occurred due to shock and haemorrhage caused by injuries Nos.l to 4 and 7, which were sufficient to cause death in the ordinary course of nature.' The death of the deceased had occurred instantaneously and probable time between death and post‑mortem was about 12 hours.

6. After completion of the usual formalities, the accused was challaned to the Court of Sessions Judge to stand trial for the murder of the deceased. In consequence of the trial, the learned Sessions Judge, Rawalpindi, vide his judgment dated 7‑10‑1984, found the accused Muhammad Arfan guilty for the murder of Hassan Akhtar (deceased), accordingly convicted him under section 302, P.P.C. and sentenced him to death.. Fine was also imposed upon him.

7. Accused Muhammad Arfan respondent No.1 challenged his conviction and sentence before the High Court of Lahore and a learned Division Bench which heard the appeal, partly allowed the appeal of the respondent No.1 by altering his conviction from section 302, P.P.C. to that of section 304, Part I, P.P.C. and sentenced him to 7 years' R.I. with a fine of Rs.10,000 origin default to undergo two years' R.I. and rejected the murder reference and benefit of section 382‑B, was also extended to him, vide judgment dated 8‑7‑1987. Hence this petition for leave to appeal.

8. The learned trial Judge on consideration of the material on record rejected the defence plea and believed the motive; the ocular evidence and the recovery of pieces of broken . Danda, convicted the respondent No.1 under section 302, P.P.C. and the death sentence was awarded to him. The accused as stated had earlier raised the plea of self‑defence, denied the motive and disputed the time of occurrence. It is noteworthy that none of the PWs has stated that in their presence the deceased had terminated the services of the accused or the deceased had refused to pay the salary to him on his demand. The prosecution has tried to prove that the eye‑witnesses deposed that respondent No.1 before opening an attack on deceased had raised a Lalkara that he would teach him a lesson for getting the respondent out from the service of truck driver and also not paying his salary. Both the eye-witnesses are inter‑related and Khadim Hussain (PW‑7) is the son of the sister of the father of the deceased, while Muhammad Kazim (PW‑8) is the maternal‑cousin of the deceased. Both the eye‑witnesses lived at village Bagla which is at a distance of 6‑7 miles from Doberan Kalan and at a similar distance from Mamyam. The statement of the eye‑witnesses is that on the day of occurrence at 2/3 P.M. they went to village Doberan, made their 'Aftaar' in the Bazar of Doberan and started for their village on foot by taking a "Katcha" path which is a short cut. They saw Hassan Akhtar deceased, their close relation, going ahead of them at a distance of 40‑50 yards but they did not ask him to join them arid go together. After about an hour they covered about a mile's distance and reached the shrine of Pir Bangas, where they saw the. respondent No.1 standing in the way with a Danda in his hand. The moment the deceased reached near him, he raised Lalkara that he would teach him a lesson for getting him out from service as truck driver and for not paying his salary and gave him a Danda blow on 'his head, as a result of which he fell down. Thereafter he dealt more Danda and stone blows to the deceased an‑d then he ran away. They admitted that the village Doberan and their own village Bagla are connected with a pucca road and mechanical transport are also available yet they do not choose to travel by it. It is strange that the deceased being their first cousin while going ahead at a distance of about 40‑50 yards for about one hour and they did not even ask him to go with them together. They have stated that they have seen occurrence from a few karams while the respondent No.1 being a teenager and without any fire‑arm or sharp‑edged weapon, inflicting Danda and stone blows with his full satisfaction to the deceased and both the eye‑witnesses were standing at a very close distance and did nothing to stop the respondent from continuing attack on their first cousin for so long. Had these witnesses been present there, then they would have very easily overpowered the assailant being teenaged and unarmed. The eye‑witnesses could. have made use of pelting stones on the assailant to rescue the deceased These are the circumstances which have created doubt about the presence of the eye‑witnesses on the spot.

9. As far as the plea of self‑defence raised by the respondent No.1 is concerned, saying that he had killed the deceased, when the latter tried to commit sodomy with him. According to his own version the deceased was having a Sota. At 9‑10 p.m. when they reached the Shrine of Pir Bangas, the deceased pretended of feeling pain in his leg and asked the accused to sit down, to which he resisted. The deceased then warned him that either he should get himself ready for his death or should surrender for the commission of sodomy. On refusal of the accused the deceased started Danda blows on the accused. The accused also picked up a stone and one of the blows fell on the stone in the hands of the accused, as a result the Danda got broken. The deceased then attempted to pick up stone to kill the accused with it, who in the meantime threw the stone in his hand on the deceased which hit him and he fell down. The deceased when tried to get up, the accused threw another stone on him which hit him again and fell down. Due to apprehension of danger to life and sudden provocation the accused pelted more stones on the deceased and also gave him a few blows with a piece of broken Danda which caused the death, of the deceased. There was complete darkness and nobody was present there. The accused also stated that neither he knows driving nor the deceased had any truck. This plea of self- defence is more compatible with the facts and Circumstances of the case and carries the truth but seems to be a bit excessive. Because the accused when threw the‑ first stone on the deceased due to which he fell down and became incapacitated to give more blows to the accused then he had ample opportunity to make good his escape. Thus in our opinion the learned Division Bench of the High Court has rightly discarded the ocular testimony of the eye‑witnesses and accepted the defence plea while altering the conviction of the accused from section 302, P.P.C. to section 304. Part I, P.P.C. and sentenced him accordingly.

10. The learned counsel for the petitioner contended that the High Court did not apply the principle of appreciation of evidence while rejecting the ocular account of the occurrence which is corroborated by the recovery of broken pieces of Danda, stones and medical evidence, and wrongly accepted the defence plea that it was an unseen occurrence. The question raised by the learned counsel relates purely to the appreciation of evidence which is not the function of this Court. We, therefore, find no sufficient ground for granting leave and the petition is accordingly dismissed.

11. M.I./K‑61/S Petition dismissed.