MAMOON Versus STATE

1. USMAN ALI SHAH, J. ‑‑This appeal by leave of the Court is directed against the judgment and order dated 25‑5‑1978 of the Sind High Court at Karachi, whereby Criminal Appeal No. 213 of 1976 of the appellant against his conviction under Section 302 P.P.C. and sentence for life imprisonment with a fine of Rs. 3,000 if realised to be paid to the heirs of the deceased or in default 2 years' further R.I. for the murder of Abdullah (deceased), by the learned Sessions Judge, Tharparkar at Mirpurkhas, vide his judgment dated 10‑8‑1976, was dismissed by the impugned judgment.

2. According to the F.I.R. the prosecution story is briefly stated to be that the appellant Mamoon alias Matka who is a butcher by profession, used to visit the General Store Shop of Abdul Khaliq (P.W. 5) and his younger brother Abdullah (deceased), at New Town, in Mirpurkhas, in connection with purchases. About 10‑12 days prior to the occurrence, the appellant visited the shop as usual and after making purchases worth Rs. 40, asked Abdullah (deceased) to give him the items on credit to which the deceased refused and snatched the items from the hands of the appellant. The appellant got annoyed on this and threatened the deceased that he would see him and shall certainly take revenge of it at any moment. Uttering these remarks the appellant left the shop. This incident was witnessed by Abdul Khaliq (P.W. 5) who was also present in the, shop. This incident is alleged to be the motive for the occurrence.

3. On 18‑9‑1975 at 9.30 p.m. after closing the shop Abdul Khaliq (P.W. 5) alongwith his brother Abdullah (deceased) went to Hirabad Chowk in connection with some business. While passing the hotel of Ghafoor, they saw Hameed Butt (P.W. 6), Saced Ahmad Khan (P.W. 7) and Sycd Bahauddin Shah (P.W. 8), sitting on a bench outside the hotel. On the invitation of the said P.Ws., both of them went and seated themselves beside the P.Ws. After 10‑20 minutes, the. appellant Mamoon alias Matka, armed with a butcher's knife, suddenly came there and stabbed Abdullah (deceased) on the left side of his neck, with force. thricely, as a result of which the deceased fell down and died on the spot. The appellant decamped from the spot alongwith his knife. This occurrence was witnessed by the informant Abdul Khaliq (P.W.5), brother of the deceased, Hameed Butt (P.W.6>), Saccd Ahmad Khan (P.W.7) and Syed Bahauddin Shah (P.W.8). The F.I.R. was lodged by the complainant Abdul Khaliq (P.W. 5) promptly within half an hour i.e. at 10:10 p.m., at Town Police Station Mirpurkhas, which is at about 2‑1/2 furlongs from the scene of occurrence. The F.I.R. was recorded by S.H.O. Ali Anwar (P.W. 9). The S.H.O. after recording the F.I.R., proceeded to the spot and reached there within 10 minutes, where he found the dead body of the Abdullah (deceased) lying in between 2 benches with incised injuries on the left side of the neck. Blood was also found on the bench and on the ground near the dead body. The S.H.O. found among the crowd Hameed Butt (P.W. 6) and Syed Bahauddin Shah (P.W. 8). He also found the place of occurrence sufficiently lighted with electric light from inside the hotel as well as from the electric point near the dead body. After preparing Mashirnama of the Wardat and injuries on the deceased in presence of Mashir Abdullah Qureshi (P.W.2) and another, he sent the dead body to the hospital for post‑mortem examination. The S.H.O. arrested the appellant in the lane beside his house in the Gaushalla Mohallah and recovered from his person blood‑stained knife and blue colour loin‑cloth with was also blood‑stained. The S.H.O. sent these items in sealed parcels to the Chemical Expert for examination. After examination of these items by the Chemical Expert, he reported that these items were stained with human blood. During the investigation Ali Anwar (P.W.9) recorded the state5nents of Hameed Butt (P.W.6) on the same night, Saced Ahmad (P.W. 7), Syed Bahauddin Shah (P.W.8), Ghafoor the owner of the hotel amd Ajmeri, the owner of the adjoining shop on the following morning.

4. On 20‑9‑1975 at 10.45 a.m. the appellant made a judicial confession before Muhammad Ismail (P.W. 10) Mukhtiarkar and F.C.M. Mirpurkhas, in which the appellant confessed that he had inflicted knife blows on the deceased Abdullah but he pleaded that he had done so in the right of his self‑defence. This confession was made voluntarily, free from duress and affirmed by the appellari in his statement under Section 342, Cr.P.C. which reads as under:‑‑

5. "Abdullah Pathan (deceased) asked me a day before the incident that I should keep ready Rs. 1,000 for him as he would come in the evening to collect the amount. If he did not get the amount his (deceased) name is Abdullah and I should remember it. On the next day viz. on the day of incident Abdullah happened to meet me at Hirabad. He was accompanied by one other person also. He told me that he had asked me to arrange for Rs. 1,000 and what has been done for that. I informed him I am very poor person and a petty trader and therefore I do not possess such amount. Thereupon Abdullah immediately took out a revolver and pointed it at me and placing it on my chest actually fired from it but the bullet did not fire and remained stuck up inside. when Abdullah attempted to press the trigger second time I struck him with a Chhuri (dagger) in order to save my life which was already in my hand as it was carried by me for the purpose of cutting meat as at that time I was going to slaughter‑house for the purpose of cutting meat. After striking him with a dagger I immediately went to police station directly. That is all I know that much. I am absolutely innocent. In the incident I had no intention but whatever happened it was all suddenly."

6. On 19‑9‑1975 at 7 a.m. Dr. Abdul Sattar (P.W. 3) R.M.O. Civil Hospital Mirpurkhas conducted the autopsy on the dead body of the deceased and found the following injuries on the dead body of the deceased:‑‑

(1) Incised wound 6" x 6" vertebral column cut on left side of neck.

(2) Incised wound 3" x 1/2" x tissue cut near injury No. 1.

(3) Incised wound 3" x 1/2" x tissue cut near injury No. 2.

7. The doctor opined that all the injuries were ante‑mortem and appeared to have been caused with sharp cutting weapon like sharp butcher's knife or weapon of that description. Injury No. 1 was so grievous which was sufficient in an ordinary course of nature to cause death of the deceased. The death of the deceased was instantaneous on account of the receipt of the injuries.

8. After completion of the investigation formalities the accused/appellant was challenged to stand his trial. During the trial he pleaded the exercise of the right of self‑defence. The learned Sessions Judge Tharparkar vide his judgment dated 10‑8‑1976 found the appellant guilty of the charge, convicted him under Section 302 P.P.C. and sentenced him to life imprisonment for the murder of Abdullah and a fine of Rs. 3,000 or in default 2 years' further R.I. was also imposed on him. The fine if realized was also ordered to be paid to the heirs of the deceased. The appellant filed appeal before the High Court of Sind at Karachi against his conviction and sentence. The complainant Abdul Khaliq (P.W. 5) also filed a revision petition for the enhancement of sentence of the accused/appellant from life imprisonment to that of death. A learned Division Bench of the Sind High Court at Karachi, which heard the appeal as well as revision petition, vide its judgment dated 25‑5‑1978 dismissed both the matters by the impugned judgment.

9. Leave was granted to the appellant through his Jail petition by this Court to examine the question whether the evidence led by the defence shows any Ghunda Character of the deceased as well as of some of the eye‑witnesses; absence of preparation and premeditation on the part of the appellant together with other attending circumstances including the conduct of the accused, would not react on the prosecution case as a whole; and whether the defence could not be allowed any benefit of admitted bad character of the majority of eye‑witnesses; and whether when both the sides are put in juxtaposition to each other, even then the defence would be deemed to have failed in creating a reasonable doubt as highlighted in the well‑known case Safdar Ali v. The Crown (P L D 1953 F.C. 93).

10. The learned counsel for the appellant was heard and the record and judgments of the Courts were perused. We find that the learned Judges of the High Court have properly appreciated the evidence on record while dismissing the appeal of the appellant. The prosecution case is that the appellant was annoyed by snatching from him, the items worth Rs. 40, by the deceased Abdullah which the appellant wanted to get on credit from the shop of the deceased. This incident took the appellant as his insult and warned the deceased that he would bear the consequences. Consequently, after 10‑12 days of this incident when the deceased along‑with his brother Abdul Khaliq (P.W. 5) went to Hirabad Chowk in connection with some business and while passing the Hotel of Ghafoor, when invited to tea by Hameed Butt (P.W. 6) and Syed Bahauddin Shah (P.W. 8), sitting on the bench outside the shop, they went there and seated beside them. 10‑20 minutes thereafter, the appellant armed with a butcher's knife suddenly appeared and started giving knife blows to the deceased, as a result of which he died instantaneously. A perusal of the record will show that the learned trial Court examined with care the ocular evidence of the eye‑witnesses. As it found that the presence of the eye‑witnesses at the time of occurrence was established on the evidence and despite some minor discrepancies there were no material contradictions. The evidence of these witnesses are consistent and direct in nature as they were disinterested witnesses and do not have any enmity against the appellant or any motive to falsify the evidence merely because they were on friendly terms with the deceased.

11. As far as the credibility of some of the eye‑witnesses on the ground of their bad/ghunda character is concerned, it is correct that when a case is based on the testimony of the eye‑witnesses, whose antecedents are bad it should satisfy B the test of quality as required in such cases. However, in the present case there is no reason to disbelieve the testimony of the alleged bad character witnesses as the version of these witnesses besides being consistent, receives corroboration not only from the testimony of Saeed Ahmad (P.W. 7) whose character was unimpeachable but also from the judicial confession of the appellant, the recoveries and the medical evidence. The learned trial Court therefore, accepted the evidence of these witnesses as trustworthy and independent. The learned trial G Court had also examined the plea of self‑defence by the appellant, in the light of the prosecution evidence and concluded it to be an afterthought and not based on any sound reasoning and truth. The learned trial Court while rejecting the plea of 1 self‑defence observed as under:‑‑

12. "No revolver or bullet was recovered from the Wardat and there was nothing to support the appellant's suggestion that the revolver must have been picked up by the informant, Abdul Khaliq (P.W. 5) and thrown away, despite the fact that a crowd had gathered on the spot immediately after the incident. The appellant also had not even a scratch on his body which shows that it was improbable that a scuffle took place, as otherwise the scuffle would have attracted the nearby P.Ws. and the shopkeepers. Moreover, it is doubtful that the deceased had gone there to demand the money from the appellant at the place of the incident, because the meeting appeared to be chance meeting, as even in the confession, the appellant stated that the deceased "happened to meet me at Hirabad", which shows that it was a chance meeting and not a place appointed for demanding the money. There were other improbabilities and inconsistencies in the confession, for example, with regard to the place or arrest of the appellant, in which he stated that he "immediately and directly surrendered at the police station", whereas the evidence of the investigating officer and the Mashir is that he was arrested from the lane near his house".

13. The learned counsel for the appellant contended that the trail Court as well as the High Court have erred in rejecting the plea of self‑defence by the appellant. He relied on the decision of the Federal Court in Safdar Ali v. The Crown (PLD 1953 F.C. 93) which lays down the principle that under Section 105 Evidence Act, the burden of proving the existence of circumstances to support the special plea of self‑defence is on the accused person who must satisfy the Court that the homicide was committed in such circumstances as to give the accused the right to cause the death in defence of his person. But in this case the appellant has neither led any evidence in support of his point of view nor satisfied the trial Court as well the High Court to prove his plea of self‑defence. The appellant's statement of facts as to his plea of self‑defence should be placed in juxtaposition to the circumstances of the case as found from the prosecution evidence and the entire case be examined as a whole. It is on the appellant to establish the plea of self‑defence and satisfy the Court the he has committed the murder under the right of exercise of his self‑defence. On a careful perusal of evidence on record, we find that the prosecution in our view, has succeeded in proving its case beyond any reasonable doubt against the appellant. The learned Trial Judge has rightly appraised the oral testimony of the prosecution witnesses and fairly appreciated the evidence, came to a correct conclusion and similarly the learned High Court also on appreciation of the evidence, having applied its mind upon a fair scrutiny of evidence has rightly upheld the finding of the Trial Court and rejected the appellant's statement of facts as to his plea of self‑defence in juxtaposition and in relation to the circumstances of the case as found from the prosecution evidence.

14. In this view of the matter it is not necessary to go into further details of the case as on this broad assessment the view taken by the learned High Court is unexceptionable and there is no need for any interference. We therefore dismiss this appeal accordingly.

15. MA.K./M‑633/S Appeal dismissed.