MUHAMMAD SIDDIQUE Versus STATE

MUHAMMAD AFZAL LONE, J ‑‑‑These three appeals by leave to appeal arise out of the judgment dated 22‑5‑1990 rendered in a murder case by a learned Division Bench of the Lahore High Court, Lahore.

2. The facts and points noted in the leave grant order with necessary modifications are as under:‑‑

"Amanullah, Inayatullah, Muhammad Siddique, Arshad Hussain Shah and Karamat Hussain accused were tried by the learned Additional Sessions Judge, Gujrat, on the allegations that on 6‑10‑1983 at 12‑5 noon they formed themselves into an unlawful assembly, in the small industrial estate, in the, area of Kolara Kalan, Police Station Sadar, Gujrat, with the common object of committing the murder of Muhammad Ajmal deceased and for making murderous assault on Asghar Ali and Muhammad Nawaz P.Ws., and in prosecution of that common object of the said unlawful assembly actually committed the murder of aforesaid Muhammad Ajmal and made murderous assault on the aforesaid P.Ws. By his judgment dated 4‑5‑1986, the learned Additional Sessions Judge acquitted Amanullah and Karamat accused of all the charges, but convicted Inayatullah, Muhammad Siddique and Arshad Hussain under section 302/34, P.P.C. Muhammad Siddique was sentenced to death and a fine of Rs.8,000 while the remaining two were awarded imprisonment for life and a fine of Rs.8,000 each. They were, however, acquitted of the charge under section 307, P.P.C. The convicts challenged their conviction and sentences in the Lahore High Court in Cr. Appeal No. 325 of 1986. The State filed Cr. Appeal No. 335 of 1986 challenging the acquittal of Amanullah and Karamat Hussain. The complainant filed Cr. Revision No.555 of 1986 challenging the acquittal of aforesaid accused and seeking enhancement of the sentences of Inayatuallh and Arshad Hussain. All these matters alongwith the Murder Reference were disposed of by a learned Division Bench of the Lahore High Court. Vide judgment dated 22‑5‑1990 the appeal of Muhammad Siddique (petitioner herein) was dismissed and his death sentence was confirmed. The appeal of Arshad Hussain was also dismissed but that of Inayatullah was allowed and he was acquitted of the charge. The State appeal against the acquittal of Amanullah and Karamat Hussain and the Criminal Revision filed by the complainant challenging their acquittal and seeking enhancement of the sentence of Arshad Hussain and Inayatuilah were dismissed. Muhammad Siddique convict has assailed the judgment of the Lahore High Court, whereby his appeal challenging his conviction and sentence of death under section 302/34, P.P.C. was dismissed and his death sentence was confirmed. The State has called in question the acquittal of Inayatullah respondent and dismissal of its appeal against the acquittal of Amanullah and Karamat respondents by the High Court. All these matters are being disposed of through this order.

The brief facts of the prosecution case are that on 6‑10‑1983 at 12‑5 noon Muhammad Siddique, Amanullah and Inayatullah, armed with knives and Karamat Hussain and Arshad Hussain, armed with Chhuris, came to the factory of Shaukat, uncle of Muhammad Ajmal deceased and Asghar Ali complainant, raising Lalkaras and hurling abuses. Muhammad Siddique shouted that the members of the complainant party would be taught a lesson for not vacating the plot and simultaneously gave a knife blow to Muhammad Ajmal hitting his abdomen. Then Amanullah gave him a knife blow which also landed on the abdomen. The Chhurri blow given by Karamat Hussain accused hit him near the neck and right shoulder followed by another blow on the abdomen. Muhammad Arshad accused gave a Chhuri blow on the right arm and Inayatullah gave him knife blow on the left arm. On receiving these injuries the deceased fell down. Muhammad Siddique gave him more blows when he was lying down. Asghar complainant tried to intervene, but Amanullah gave him a blow which he warded off on his right hand. Muhammad Nawaz P.W. also tried to intervene, but Inayat accused threw a brick on his head. Munir Ahmad and Muhammad Shafi P.Ws. (not produced) got attracted to the spot. The complainant and Nawaz P.Ws. threw brick‑bats and stones on the accused persons to save themselves. The complainant and Muhammad Nawaz took Muhammad Ajmal injured to Aziz Bhatti Shaheed Hospital, Gujrat, where all of them were medically examined. After taking the medico‑legal reports Asghar complainant started for the police station, but on the way he came across Muhammad Anwar, A.S.I. on the Kutchery Road, where he reported the occurrence vide statement Exh.PA on the basis of which formal F.I.R. Exh. PA/1 was recorded, at Police Station Sadar Gujrat, at 1‑20 p.m.

A dispute over a plot measuring 7 Marlas led to this unfortunate occurrence. It is prosecution's case that four years prior to the occurrence Shaukat uncle of Muhammad Asghar complainant, had purchased a plot from one Mst. Rafia Bibi for Rs.70,000 and obtained its possession. Only a receipt was executed in respect of this transaction. Later on, Amanullah accused purchased the same very plot from Mst. Rafia Bibi through a registered sale deed. The accused persons wanted to forcibly occupy the plot and attacked the deceased and injured P.Ws. suspecting them to have come there to render help to aforesaid Shaukat.

Three days later, Muhammad Ajmal succumbed to his injuries in the hospital".

The case was investigated by Muhammad Anwar, ASI and Ijaz Ahmed Inspector. The latter arrested Amanullah, Inayat and Muhammad Siddique accused on 19‑10‑1983. Arshad Hussain accused led to the recovery of blood stained Chhuri (P.5) from a pond on 21‑10‑1983. On 23‑10‑1983 Amanullah and Muhammad Siddique led to the recoveries of knives P.6 and P.7 respectively. The Chhuri and knives were made into separate sealed parcels. On 24‑10‑1983 Irayatullah accused led to the recovery of blood‑stained knife which was also made into a sealed parcel. On the same day Karamat accused led to the recovery of blood‑stained Chhuri which was also made into a sealed parcel.

At the trial, two injured eye‑witnesses, namely, Asghar Ali and Muhammad Nawar. supported the prosecution version.

The accused persons pleaded not guilty to the charge and denied the prosecution allegations against them. Karamat arid Amanullah accused stated that they were not present at the spot. Muhammad Siddique accused, when asked to explain his injuries, made the following statement:‑‑---

"Aman Ullah and Inayat Ullah accused are my real paternal uncles. My father Qudrat Ullah is dead. On the day of occurrence I was supervising the construction of the boundary of the plot. When Shaukat uncle of the deceased, raised an objection and brought the deceased, Muhammad Asghar and Muhammad Nawaz P.Ws. to the spot. Muhammad Asghar P.W. was armed with knife, Ajmal deceased was armed with Churri and Muhammad Nawaz P.W. was armed with gun. Muhammad Nawaz P.W. fired from the gun which missed and the cartridge got struck up in it. Ajmal deceased attacked me with his Churri. Nawaz P.W. gave two blows to Inayat accused with the butt of his gun. He also injured Arshad accused who in the meantime came to the spot to rescue Anayat Ullah. I snatched the knife of Muhammad Asghar P.W., used the same in self‑defence when Ajmal deceased was giving me blows. Aman Ullah and Karamat accused were not present at the time of occurrence. I got myself medically examined on the same day and was apprehended by the police same day. However, in view of my serious injuries the Police guarded me in the Hospital till 16‑10‑1983 and brought me to the P.S. on the said date."

Inayat Ullah accused also made a similar statement. Arshad Hussain accused stated that he reached the spot on hearing alarm and saw Inayatullah and Muhammad Siddique being attacked by the deceased. He tried to intervene and during the process suffered injuries at the hands of the complainant party. He further stated that Muhammad Siddique accused caused injuries to the members of the complainant party in self‑defence. No evidence was led in defence.

3. At the leave grant stage on behalf of Muhammad Siddique appellant, it was contended that evidence of the two eye‑witnesses, namely, Asghar Ali and Muhammad Nawaz was not believed against the acquitted co‑accused and thus it would be highly unsafe to place implicit reliance on their testimony, particularly when they tried to suppress the injuries on the accused persons, one of whom suffered an injury with a sharp‑edged weapon. According to his learned counsel the explanation furnished by the eye‑witnesses that the accused also suffered injuries during `Kushmakash' is vague and unsatisfactory. In his submission the evidence has not been appraised in conformity with the established principles governing the criminal justice and defence plea was wrongly rejected. On the other hand, the case set up on behalf of the State is that the two eye‑witnesses having suffered injuries on their persons, their presence at the spot was not open to any doubt, and since they had no motive for false implication, their evidence was rightly relied upon against Muhammad Siddique and Arshad Hussain and could furnish a sound basis for conviction of the acquitted accused, namely, Inayatullah, Amanullah and Karamat.

4. Leave was granted to examine these divergent contentions of the parties. It will be seen that this is a case of two versions of the occurrence. In the opinion of the learned Judges, on consideration in juxtaposition, the prosecution story appears more probable. They thus, treated the appellant and the co‑accused as aggressors. Further on appraisal of the evidence they maintained that the plot in dispute fell within bounded compound of Shaukat factory, to which there was only one approach; from the main gate of the factory in front whereof the accused party threw brick‑bats and armed with sharp‑edged weapons came all the way down from Gujranwala with a premeditated object to forcibly carve out the plot from the said compound and construct a boundary wall around the same. In these circumstances, according to the learned Judges the complainant side was justified in keeping the invaders off by use of force; they upheld the conviction and sentences awarded to Muhammad Siddique and Arshad Hussain appellants. The death sentence of Muhammad Siddique was confirmed. The appeals filed by these two convicts thus failed. As regards Inayatullah, keeping in view his age, the role attributed to him was considered as amendable to doubt. He was given the benefit of doubt and acquitted of the charges against him. The High Court declined to interfere with the acquittal of Amanullah and Karamat Hussain, resulting in dismissal of the State appeal and revision by the complainant.

5. We have heard the learned counsel for the parties at some length and with their assistance examined the record. It will be seen that this is a case of two versions. The statement of the first Investigating officer namely, Muhammad Anwar A.S.I. (P.W.9) is also to the same effect. Thus, each party has accused the other side as aggressor. It needs to be examined whether the view taken by the High Court in holding the accused party as aggressor can be sustained. It may be observed that the piece of land measuring about 7 Marlas, which is bone of contention between them, admittedly originally belonged to Mst. Rafia Begum. Both the parties claimed to have purchased the plot from her. As per statement of Muhammad Asghar P.W., his uncle Shaukat is in possession of the plot and he purchased it from her in the year 1979. No sale deed in proof of claim of ownership has been produced. The record before us shows that about five months after the registration of the case, Shaukat filed a suit against Mst. Rafia Begum for specific performance of the agreement for sale in respect of the said plot; to which Amanullah. since acquitted, was also impleaded as a party. The plaint does not make mention of any written agreement for sale, but refers to only a receipt evidencing payment of Rs. 70,000 as consideration to her. The fate of the suit is not known, but seemingly it having been filed after the registration of the criminal case cannot advance much the cause of the prosecution. It may be observed that even the receipt has not been produced in evidence by the prosecution. The defence has dubbed it as a spurious document. It is noteworthy that neither Shaukat nor Rafia Begum, who according to the prosecution evidence, is the first cousin of his wife, has been examined by the prosecution to prove his title and possession over the plot. On the. other hand, the defence has produced registered sale deed dated 24‑11‑1982 (Exh. DD) executed by Mst. Rafia Begum in favour of Amanullah. It is in the prosecution evidence that earlier Shaukat purchased a site measuring 15 Marlas from one Haji Muhammad Siddique and included it in his factory; that the said site, the factory of Shaukat and the plot formerly owned by Mst. Ratia Begum are situate in one courtyard bounded by four walls with one main gate, which was used by Shaukat, Haji Muhammad Siddique as well as Mst. Rafia Begum. It is the case of the accused party that they have been using this gate for ingress to and egress for their plot. The sale deed embodies an averment that possession was delivered to Amanullah vendee by her.

6. It is evident from the record that before the trial Court the prosecution's stand was that the dispute between the parties arose over the possession of the plot, and whereas the accused‑party asserted that the occurrence took place on account of demarcation of the boundary wall thereof. The trial Court, however, attributed the dispute between the parties to demarcation and maintained that as the accused‑side had come from Gujranwala, they were not expected to have visited the spot unarmed. The plea of Muhammad Siddique appellant that he was first attacked by Muhammad Ajmal deceased with a Churri; thereupon he snatched the knife from Muhammad Asghar P.W. and used the same for self‑defence when the deceased injured him with his Churri, was discarded. The reasons which largely prevailed with the High Court in holding the accused‑party as aggressors are that they had dumped bricks at the spot, came all the way from Gujranwala to carve out a separate boundary wall by trespassing into the plot situate within the bounds of Shaukat's factory. We have noticed that as per medical evidence, Muhammad Ajmal deceased suffered 7 injuries, out of which injuries No. 2 and 3 comprising incised wound, one penetrating on front of the right upper chest and the other trans oblique on lower part of the right chest were considered as sufficient by the doctor to cause death in the ordinary course of nature. Dr. Talaat Iqbal P.W.6, who examined Muhammad Siddique appellant noticed the following injuries on his person:‑‑---

"(1) Incised wound 9 cm x 2cm longitudinal oblique on outer side of upper part of left arm corresponding out to shirt was present, marked and signed.

(2) Contused swelling of middle to lower lip. Lower inciser and carmine teeth were missing on right side. Gums were brushed and bleeding. Corresponding abrasion on inner side of lower lip present. Both the missed teeth were alleged to have fallen at site of fight. All other teeth were healthy and normal. Ordental hygiene was satisfactory.

(3) Linear contusion 3 cm x.5 cm on back of upper part of left chest.

(4) Linear contusion 3 cm x.5 cm on left lumbar region."

Out of these injuries, injury No.1 was found to have been caused by sharp‑Out of these injuries, injury No.1 was found to have been caused by sharp‑edged weapon and the rest all by blunt‑edged weapon. Injury No.2 was declared grievous. Inayatullah respondent suffered two lacerated wounds; likewise Muhammad Asghar and Muhammad Nawaz P.Ws. also received injuries. Mr. Ijaz Hussain Batalvi, Advocate, who appeared for the appellant, seriously contended that the prosecution suppressed the injuries suffered by the accused party and, in any case there was absolutely no explanation of the sharp‑edged weapon's injury inflicted to Muhammad Siddique. This in his submission would react upon the veracity of the prosecution case. It is significant to point out that Muhammad Asghar P.W. deposed that he and Muhammad Nawaz P.W. pelted pieces of bricks and stones at the accused persons. The sharp‑edged weapon's injury suffered by Muhammad Siddique, however, could not have been inflicted by pelting of the stones. There is thus a conflict between the medical evidence and ocular account.

7. The High Court has not adverted to this aspect of the case and further failed to notice that the learned trial Court had accepted the version of the accused party that the dispute arose over the demarcation of the plot which in a way is supportive of their claim of possession over the plot. Usually when two sites are contiguous, a controversy upon the demarcation thereof would not be uncommon. There is no gainsaying that it was entirely for the prosecution to have proved the case beyond reasonable doubt and the accused had merely to show a reasonable possibility that the defence put forth by him might be true. We feel that upon the facts and in the circumstances of the case the exercise of right of private defence of person and property claimed by Muhammad siddique appellant deserves consideration and its rejection by the High Court is not in conformity with the principles of safe administration of justice in criminal cases. The statement of Muhammad Asghar P.W. indicates that there was no ill‑will between the accused party and the complainant side before the occurrence. We are of the view that the appellant caused the death of B Muhammad Ajmal deceased without premeditation but in doing so he exceeded his right of private defence. The offence committed by him thus falls under section 304, Part I, P.P.C., and not 302, P.P.C.. Accordingly, his Criminal Appeal No. 124/L/91 is accepted to this extent that the conviction and the sentence awarded to him under section 302 P.P.C. are set aside, and he is convicted under section 304, Part I, P.P.C., sentenced to 10 years' R.I. and to pay a fine of Rs.50,000. In case of default he shall undergo R.I. for 2 years. The fine if realized shall be paid to the heirs of Muhammad Ajmal deceased. The reason given by the High Court in extending the benefit of doubt to Inayatullah is far from satisfactory. It is clear to us that he inflicted an injury to Muhammad Ajmal deceased. Though the injury is simple in nature, yet he acted in furtherance of common intention of Muhammad Siddique appellant to cause the death of the deceased. He is guilty of an offence under section 304, Part 1/34, P.P.C., and is sentenced to 5 years' R.I. and to pay a fine of Rs.5,000. In case of default, he shall further undergo R.I. for six months. The fine if recovered shall be paid to the heirs of the deceased. He shall be taken in custody to undergo the sentence of imprisonment. Criminal Appeal No.126/1991 is allowed to this extent. Both the convicts shall be entitled to the benefits of section 382‑B, Cr.P.C. As regards the appeal against Amanullah and Karamat accused, we are not persuaded to differ with the view taken by the Courts below. Accordingly, State appeal (Crl. A.No.125/91) against their acquittal is dismissed.

N.H.Q./M‑1796/S Order accordingly.