NAZAR HUSSAIN Versus AMEER ALIAS AMEERO

ORDER

ZAFFAR HUSSAIN MIRZA, J.-- Respondents 1 to 6 were tried by the learned Additional Sessions Judge, Multan, for causing the murder of Wazir Muhammad deceased and for causing grievous injuries to Muhammad Bakhsh (P.W.). The trial Court acquitted Shah Muhammad and Nasiruddin respondents 5 and 6. Respondents Noora, Amir and Ghulam Muhammad were convicted under section 302/34. P.P.C. as they were directly responsible for causing the death of the deceased. As the fatal injury was attributed to Amir respondent No.1 he was sentenced to death and fine etc. Ghulam Muhammad and Noora respondents were, however, awarded the lesser sentence of life imprisonment as the role attributed to the former was of holding the deceased while the latter gave him a hatchet blow. Manzoor respondent was convicted under section 326, P.P.C. and sentenced to four years' R. I.

2. On appeal and reference for confirmation of death sentence of the first respondent, a Division Bench of the Lahore High Court took the view that as "there has been no bad blood between the parties it does not appear to be a case of pre-planned attack by one party against the other". According to the findings of learned Judges the circumstances suggested a strong possibility of there being a free fight between the parties which took place all of the sudden. It was held that the part attributed to Ghulam Muhammad was doubtful and, therefore, he was also acquitted. Manzoor respondent's conviction under section 326, PPC was maintained, whereas Noora respondent's conviction was altered from section 302 to one under section 324, PPC and he was awarded the sentence already undergone by him. Amir respondent who was responsible for inflicting the fatal injury to the deceased was convicted under section 304 Part I, PPC and awarded 10 years' R.I. and fine etc.

3. The judgment of the High Court dated 24th January, 1982 has been assailed by the petitioner Nazar Hussain the brother of the deceased and the first informant in the case. He seeks leave to appeal by this petition.

4. In support of the petitioner the only contention advanced by the learned counsel is that the respondents having committed premeditated and pre-planned murder of an innocent young man deserved to be convicted under section 302/34, PPC and sentenced accordingly. The view of the High Court that the circumstances appearing in the evidence disclosed a case of free fight between the parties which suddenly occurred has been criticized, on the ground that after the first incident of exchange of abuses between the parties, the accused went away and returned after a short time duly armed with deadly weapons to commit the crime.

5. It may at the very outset be stated that the petitioner had involved only the first four respondents in the FIR as the participants in the commission of the crime. The names of respondents 5 and 6 (acquitted by the trial Court) were added subsequently during investigation and they were sent up alongwith the first four respondents to stand trial for the murder of the deceased. An important feature of the case is that the aforesaid two respondents were found to be injured during the occurrence. Manzoor and Ghulam Muhammad respondents had also received injuries while Amir and Noora respondents had remained unhurt. The prosecution case as disclosed in the FIR was that Nazar Hussain (PW) and Wazir deceased were sitting at the shop of the former when Noor Muhammad and Ghulam Muhammad respondents passed by the shop. Noora coughed loudly on seeing the deceased who retorted in the same coin. Upon this there was exchange of abuses. Noora and Ghulam Muhammad left the place and after a few minutes they returned alongwith Amir and Manzoor respondents, all armed with deadly weapons except Ghulam Muhammad who was empty handed. The deceased and complainant upon seeing them coming tried to run towards their house but Ghulam Muhammad caught hold of the deceased and Noora gave a hatchet blow to him on his right wrist. Amir respondent is said to have struck barchhi blow to the deceased which hit him on his left eye. Muhammad Bakhsh (PW) uncle of the deceased was also inflicted blow with hatchet by Manzoor respondent which cut off two of his fingers. Wazir deceased died on the same day at 11.30 p.m. whereas the occurrence took place in the afternoon at 4.00 p.m.

The prosecution relied upon the ocular testimony furnished by Nazar Hussain complainant (PW.7), Muhammad Bakhsh (PW.8) who was injured, and Amir (PW.9). Reliance was also placed on the recovery of weapons of offence at the instance of the respondents. At the trial it was admitted by the prosecution witnesses that there was no previous enmity between the parties and the complainant admitted that there had been no exchange of abuses between the parties. There had not even been an exchange of abuses between the parties before the main occurrence. In the premises the learned Judges of the High Court rightly concluded that in the context of there being no background of enmity it was unbelievable that the occurrence was the direct result of the offensive sound made by the respondents. Another important feature of the case is that as many as four persons were injured on the side of the respondents but this fact was totally suppressed in the F.I. R. It was admitted that Muhammad Bakhsh (p.W.8) came from his house carrying a sota but the F.I.R. did not state whether the sota was used. In all the accused side sustained 12 injuries, including an injury to Shah Muhammad respondent which was found to be dangerous to life, caused with a sharp-edged weapon. There was another sharp-edged injury sustained by respondent Ghulam Muhammad. No explanation what so ever was furnished in the F.I. R. regarding these injuries. On the contrary in his statement in Court Muhammad Bakhsh (PW.8) came out with a version which ascribed the injuries to Ghulam Muhammad with sharp-edged weapon to Amir accused by accident. In these circumstances the testimony of the three eye-witnesses cannot be accepted on its face value and is not free from doubt as to its truthfulness. Respondent Ghulam Muhammad in his statement under section 342, Cr.P.C. gave the defence version of the occurrence, in which it was stated that the deceased who was armed with a spear alongwith Ismail, Muhammad Bakhsh, Amir, Aziz. Rafia and Abdullah, out of whom Muhammad Bakhsh was armed with a hatchet and rest with sticks, surrounded Ghulam Muhammad in order to snatch his purse. Noora who was accompanying him raised alarm that Ghulam Muhammad was attacked by the complainant party, Upon this Manzoor, Shah Muhammad and Nasiruddin reached the spot and intervened in order to rescue Ghulam Muhammad. In the melee Shah Muhammad was given a spear blow by the deceased. When he gave another blow with his spear to Ghulam Muhammad he seized his spear. Shah Muhammad was attacked by Muhammad Bakhsh but he was able to snatch his hatchet. Then Muhammad Bakhsh took the stick from his companion and inflicted injuries to Shah Muhammad. Upon this Shah Muhammad in self-defence gave him a hatchet blow on his head. With the spear snatched from the deceased Shah Muhammad gave him a blow in self-defence. In the meantime the village people intervened and separated the parties. Having regard to the fact that the complainant suppressed the injuries inflicted to four of the accuse and having given no explanation about these injuries, as well a implicating respondents 5 and 6 who were injured during the occurrence, in the evidence while no part was assigned to them in the FIR, it was but natural for the learned Judges of the High Court to come to the conclusion that the prosecution was suppressing the true facts which led to the occurrence. Additionally the fact that two of the respondents were falsely implicated and found to be innocent also reflects upon the veracity and accuracy of the prosecution version. Likewise the defence version also appears to be not wholly true o plausible on the evidence produced at the trial. It is a well-settled principle, see Syed Bapari v. Nibaran Mollah and others P L D 1962 S C 502, that where neither the prosecution nor the defence come out with the true version the Court is called upon to sift the evidence in order to draw proper inference from the evidence and circumstances. In such a case where there is no direct reliable evidence to show as to in what precise manner the victim came to be killed, the Court has yet to discharge its onerous duty of determining whether the death was caused by the felonious act of some other person and if so what offence if any has been committed by such a person. The State v. Manzoor Ahmad P L D 1966 S C 664. In the circumstances indicated above we are of the view that the High Court was justified in examining r the probabilities of the case in the light of the evidence, and the surrounding circumstances proved on the record.

The question is as to how the fight took place between the parties in which both parties sustained injuries including injuries with piercing weapons. On this point the evidence of Nazar Hussain (PW.7) the real brother of the deceased in front of whose shop the occurrence took place is very revealing. Regarding the cause of the fight he stated in his examination-in-chief that Noora respondent coughed loudly in order of tease the deceased. On a further prop of this statement in the cross-examination he stated as under:-

"Miru and the other accused used to pass in front of our shop daily while going out of the village as well as when he, used to return home. Before the day of occurrence, the accused party never teased us or attacked us. We had not even exchanged abuses with each other before this incident . Noora accused coughed when he was just in front of my shop. Hearing this 6, A` cough of Noora accused, my brother Wazir told me that Noora had done so in order to terrorize him. I did not cough in retaliation but my brother Wazir coughed while sitting. Wazir did not spit towards the street. Neither my brother nor myself raised any objection to the coughing of Noora accused and similarly Noora did not raise any objection over the coughing of Wazir, my brother. Wazir deceased and Noora accused were abusing each other in a normal tone. Nobody came there on hearing these abuses.

There being no existing animosity between the parties the motive disclosed in the evidence seems to be very trivial and unlikely to cause the passions to rise to such an extent that a number of people from both sides would come into an armed clash resulting in serious injuries and death of one of the participants. On the other side also there are no circumstances to support the defence version that the complainant party being armed would waylay one of the accused to rob him of his money in open day light. The inference is therefore inevitable that the true cause of the conflict between the parties is being suppressed on either side and lies buried in mystry. The fact that number of injuries were inflicted on the accused side and fatal injuries were sustained on the complainant side indicates that both parties were armed at the time of the occurrence. It cannot be said which party was the aggressor. In such circumstances there is no question of self-defence and each accused person would be responsible for his own individual acts. It also seems that the fight took place all of a sudden. Shah Muhammad and Nasiruddin respondents were not attributed any active role and were therefore rightly acquitted. Respondent Ghulam Muhammad was only alleged to have caught hold of the deceased, which was an unnecessary act considering that there were six persons on the accused side. His involvement was accordingly correctly held to be not free from doubt. Respondent Manzoor was attributed no role in causing injuries to the deceased but was rightly convicted for causing grievous hurt to Shah Muhammad. So far as Noor Muhammad is concerned he was attributed a simple injury with a sharp-edged weapon on the wrist of the deceased. He was accordingly convicted under section 326, PPC. Respondent Amir was proved to have inflicted the fatal injury but in the circumstances as discussed above, he having given single injury to the deceased in a sudden fight and in the heat of passion upon a sudden quarrel and without taking undue advantage, his case fell under Exception 4 of section 300, PPC. He was accordingly rightly convicted under section 304 PPC and sentenced to 10 years' R.I. etc. and we are satisfied that his criminal liability does not extend beyond that or fall under section 302, PPC. We also find no force in the contention advanced by the learned counsel in view of the fact that the motive has been disbelieved and the cause of fight seems to have been withheld by the prosecution.

6. For the foregoing reasons there is no merit in this petition which is accordingly dismissed.

S.Q./N-41/S Petition dismissed.