NUZAR HUSSAIN Versus STATE
ABDUL JABBAR KHAN, J.‑‑ Nazar Hussain aged 23 years his father Akbar Khan aged 75 years and his brother‑in‑law Abdur Rashid aged 35 years were tried by the learned Sessions Judge, Jhelum, under section 302/34, P. P. C., for the murder ox Khan Beg aged 43 years. The learned trial Judge by his judgment dated 5‑12‑1974 while acquitting Akbar Khan and Abdur Rashid accused found Nazar Hussain guilty of murder and sentenced him to death with a fine of Rs. 1,000 or in default thereof to suffer further one year's R.I. He was also convicted and sentenced to seven years' R. I. with a fine of Rs. 500 or ire default of payment of fine to undergo six months' R. I. under section 307, P. P. C. for making a murderous assault :)n Abbess Khaa P. W. 12.
Nazar Hussain convict has filed Criminal Appeal No. 25 of 1975 against his conviction and sentences. The State has also preferred Criminal Appeal No. 564 of 1975, against the acquittal of Abdur Rashid and Akbar Khan co‑accused, 'hut notice was only issued to Abdur Rashid. Under section 374, Cc. P. C. the learned trial Court has also referred the matter to us for the confirmation of sentence of death awarded to Nazar Hussain appellant. We will dispose of the two appeals and the reference (Murder Reference No. 1 of 1975 by a single judgment.
2. The occurrence took place on 14th November 1972 at 8‑9 a. m. at Dheri Umaranwali in the area of village Saithi situated at a distance of 12 miles from the police station Kallar Kahar, district Jhelum. Safdar Beg P. W. 10, nephew of the deceased made a statement Exh. P. A before Ch, Muhammad Siddiq A. S. I. P. W. 13 at 12‑00 noon on the same day at Nurpur bus stand where the A. S. I. was present on patrol duty. On the basis of this statement formal F. I. R. Exh. P. A. 1 was recorded by Mack Muhammad Bashir P. W. 2 A. S. I. at 12‑30 p. m. on the same day at police Station, Kallar Kahar.
3. According to the F. I. R. two‑fold motive has been set tip by the prosecution whereby it has been given that p year prior to this occurrence Mst. Zarina d/o of Feroze Khan and niece of Abbess Klan P. W. 12. who was living in the house of Abbess Khan, was abducted lay Abdul Haq, brother of Abdur Rashid co‑accused (respondent in the State appeal) and in that matter Khan Beg deceased being an elder member of the family made efforts to effect restoration of Mst. Zarina from Abdul Haq. According to the prosecution this old grudge was aggravated when Khan Beg deceased abused and insulted Akbar Khan (acquitted accused) over the damaging of wheat crops caused by the cattle of the appellant's party, According to the prosecution as the appellant's party was aggrieved by the earlier conduct of Khan Beg deceased for fix efforts to get Mst. Zarina restored, therefore, the abuses hurled upon Akbar Khan co‑accused by the deceased, further infuriated them and they decided to do away with the deceased.
4. The details of the occurrence as incorporated in the statement Exh. P. A. before the police, are as under:‑
The complainant Safdar Beg P. W. 10 who was in the employment of the Army was in his village on one month's leave. A few days prior to the occurrence Khan Beg deceased had a quarrel with Akbar Khan co-a ccused over a dispute on the damage of wheat crop and in that altercation Khan Beg deceased had abused and insulted Akbar Khan. Due to the intervention of Mian Khan P. W. 5, the matter was compromised. On the fateful day at about 8‑9 a. m. the complainant Safdar Hussain and the. deceased were sitting and talking to each other at Dheri Umaranwali while their rattle were grazing. They saw Nazar Hussain appellant, Abdur Rashid (respondent) armed with pistols and Akbar Khan (acquitted accused) empty handed coming towards them from the side of the village. When the accused came near them, Akbar Khan co‑accused raised a lalkara and challenged Khan Beg deceased and declared that they haze come to avenge the insult so hurled, upon them. At this Khan Beg deceased and the complainant stood up. The complainant apprehending reprisal moved away from the deceased and stood at some distance Within his view Abdur Rashid co‑accused (respondent in State appeal fired his pistol at Khan Beg which hit on the left side of his chest. Nazar Hussain also fired two shots which found target on the left wrist and chin of the deceased. The deceased fell down and died. The complainant raised hue and cry which attracted shahra Khan P. W. 11, and Abba: Khan P. W. 12 who were busy nearby reaping groundnut crop. Abba: Khan P. W. hurled stones at the accused, whereupon Akbar Khan cc, accused exhorted Nazar Hussain and Abdur Rashid accused to kill hire This led to fires by Abdur Rashid and Natter Hussain accused who she consecutive shots on the person of Abbess Khan P. W. who received injuries on hiss right shoulder and left arm. After receiving the injuries Abbas Khan P. W. also fell down on the ground. The accused they chased the complainant but he ran from the place of occurrence and saves his life by taking shelter in village Nurpur.
5. After recording the statement Exh. P. A. of Safdar Beg and despatching it to the police Station for formal registration of the case Ch. Muhammad Siddiq A. S. I. went to the spot. On reaching there he found the dead body of the deceased lying there. He prepared injury statement Exh. P. N. and inquest report Exh. P. O. and sent the dead body to the mortuary for post‑mortem examination under the escort of Afzal F. C. He inspected the spot and took into possession scene blood‑stained earth and stone pieces form the place where the deceased and Abbas Khan P. W. had fallen, vide memo. Exh. P. D. and P.C. respectively. He picked up crime shell P. 9 and P. 10 vide memo Exh. P. B. He got prepared site plans Exh. P L and Exhs. P L 1 from Muhammad Afzal Revenue Patwari arid gave is red notes therein. On 26th November 19 72, the A. S. I. went to read Kashmir and arrested Nazar Hussain appellant from his Army Unit at Hajira. Later on the investigation was handed over to Raja Abdur Rashid S. H. O. P, W. 9, who on 20th November 1972 arrested Abdur Rashid (acquitted accused) from a place between villages Wasnal and Manara. He recovered revolver P.7 alongwith bullets P. 8/1‑6 from Abdur Rashid co‑accused respondent and took into possession vide memo Exh. P. K. He also arrested Akbar Khan (since acquitted) on the same day from near village Nurpur.
Two crime empty P. 9 and P. 10 alongwith .32 bore revolver P. 7, were sent to the Forensic Science Laboratory for examination and report. vide report of the Fire Arms Expert No. 2352 F. S. L. it was found that crime empty P. 9 and P. 10 were not fired from the .32 bore revolver in P.
7. Therefore, recovery in this case was of no consequence to the case f the prosecution.
6. The case of the defence was denial simpliciter and they attributed their involvement in this case due to enmity. However, Abdur Rashid co‑accused/respondent denied the recovery of revolver and set tip a plea of alibi in the following manner:‑
"My maternal uncle Malik Khan was involved in a case of murder Subedar Aurangzeb P. W. was a witness and I was prosecuting that case on behalf of my maternal uncle and so due to enmity I have been falsely involved. On the day of occurrence I was present in the Court of R. M. Chakwal, at 9‑00 a. m. as proceedings under section 107/151, Cr. P. C. were pending against me. I myself had appeared before the D. S. P. during the investigation."
Nazar Hussain appellant while denying his participation in the crime stated that he was closely related to Abdur Rashid co‑accused, therefore, he was falsely involved on this account. Akbar Khan co‑accused completely denied his participation in the crime and averred that he was an old man with a weak eye‑sight and has been roped in as being the father‑in‑law of Abdur Rashid co‑accused. The accused produced five defence witnesses on their defence, namely. D. W. 1 Malik Muhammad Bashir A. S. L. D. W. 2 Safdar Hussain Reader to Assistant Commissioner, Chakwal, D. W. 3 Maulvi Abdul Qadeer F. C. Naib Court to the Court of R. M. Chakwal, D. W. 4 Ghulam Muhammad, and D. W. 5 Qazr Ijaz Ahmad Advocate, Chakwal.
7. The learned trial Judge has found in paragraph No. 1 of his judgment at page 74 of the Paper Book that the motive regarding the abduction of Mst. Zarina was not proved. He has also considered the evidence of recovery as of no consequence because the crime empty P. 9 and P. 10 picked up from the place of occurrence were found not to have ‑matched with the revolver P. 7 recovered from Abdur Rashid co‑accused Similarly, he while disbelieving Safdar Beg P. W. 10 and Shahra Khan P. W. 11, has relied on the sole testimony of Abbas Khan P. W. 12, the injured witness, supported by the second motive regarding damage of wheat crop of the deceased by the cattle of accused party and the medical evidence.
It is pertinent to note that the learned trial Judge while believing the version of Abbas Khan P. W. 12 who had completely implicated all the three accused, acquitted Akbar for the reason that he was attributed only a proverbial lalkara and no overt act was assigned to him and acquitted Abdur Rashid co‑accused/respondent as a matter of abundant caution notwithstanding the fact that he did not accept his plea of alibi.
8. We have heard the learned counsel for the appellant Nazar Hussain, learned counsel for the State a3 well as the learned counsel appearing on behalf of the State in appeal against acquittal of Abdur Rashid co‑accused respondent, and have perused the record of the case carefully with their assistance. Tit has been submitted on behalf of the &fence that the learned trial Court was not justified to hold Nazar Hussain appellant guilty of this murder solely on the testimony of a partisan witness namely Abbas Khan P. W. 11 when if has disbelieved the maker of F. I. R. Safdar Hussain P. W. td and Shahra Khan P. W. 11. a chance witness, without corroborative evidence of independent kind from an unimpeachable source. He further submitted that the evidence of alibi produced by Abdur Rashid co‑accused in his defence was of an authentic nature which fully proved his innocence and at the same tune destroyed the case of the prosecution which had gone to the extent of involving Abdur Rashid co‑accused although he was found present at a distance of 3J miles away at the time of occurrence. It was also contended that when the maker of the F. I. R, was disbelieved by the learned trial Court this would go to show that the case was a set up affair after clue consultation and deliberation. In context of this contention he submitted that actually this was a case of unwitnessed murder committed by some other enemies of the deceased who were lying ambush for him. According to the learned counsel his proposition found support from the fact that the Dheri were this occurrence took place was 30 feet high on one side and 15 feet on the other, therefore, whosoever was the assailant, was probably lying concealed and therefore could not best seen by Abbas Khan P. W. He also averred that the dimension of the injuries on the person of the deceased and that of Abbas Khan indicated that these were not the result of fire shot from a pistol but actually were caused by L G or S G pellets bred through by a .12 pore gun. According to him both, the deceased and the injured witness, received injuries by cent fire of a shot‑gun when they were walking in a line. He also laid lot of stress on the admission of Abbas Khan P. W. that he became unconscious after receiving the injuries find therefore, was not in a position to know his assailant.
On the other band learned counsel for the Stag; while supporting the appeal of the state against the acquittal of Abdur Rashid, submitted that tare story as given by Abbas Khan P. W. 12 was a true account of this incident and therefore implicit and complete reliance was to lie placed upon his testimony vis‑a‑vis both Nazir Hussain appellant and Abdur Rashid co‑accused. The fatal shot upon the deceased was attributed to Abdur Rashid by Abbas Khan P. W. and therefore the learned trial Court has not justified to sift his evidence in the matter of Abdur Rashid's culpability. According to the learned counsel the plea of alibi taken by Abdur Rashid was of no avail to hint and did not absolve him of his offence in an unequivocal manner. It was pointed out that the evidence of Safdar Hussain D. W. has not established beyond any reasonable doubt that Abdur Rashid co‑accused was present in the Court of R. M. Chakwal at the time when this murder was committed. According to the learned counsel this witness has just stated that Abdur Rashid co‑accused was present in the Court before him on the day of occurrence but he could not state at what time. Similarly the evidence of D. W. 4 Ghulam Muhammad, only revealed that he found Abdur Rashid co‑accused present in Court at 1‑30 a. m. or 12 noon when the case was called. As regards D. W. 5 Qazi Ijaz Ahmad, Advocate, it was submitted that this witness was a junior of the Advocate who conducted the case of Abdul Rashid and also had a reason to support the appellant for close association of his near relations to this Advocate. In the light of these circumstances it was urged that the acquittal of Abdur Rashid accused by the trial Court was against all the principles and norms of assessing the evidence so produced by him in his defence particularly when the learned trial Court placed reliance on the testimony of Abbas Khan P. W. and found him a truthful witness.
9. We have given our anxious thought to the contentions put forth from both sides and find that the question for determination which falls before us is whether we should place implicit reliance on the testimony of Abbas Khan P. W. 12 or to accept the plea of alibi as taken up by Abdur Rashid co‑accused. The case of Abdur Rashid and Nazar Hussain is so linked together that it cannot be separated. If we come to the conclusion that the evidence produced by Abdur Rashid co‑accused in his defence was reliable and established in a positive manner that he was present at the time of the crime at: a distance of 30 miles away in the Court of R. M., Chakwal, then we have no choice left but to hold Abdur Rashid co‑accused innocent and to acquit, Nazar Hussain as well. In the alternative if we are convinced that tile evidence in support of plea of alibi does not establish the presence of Abdur Rashid in the Court of R. M., Chakwal at the time of occurrence, then we have to accept the statement of Abbas Khan injured P. W. in its entirety qua Abdur Rashid and Nazar Hussain and they would be held equally liable for the murder of Khan Beg deceased. The case of Akbar Khan co‑accused has got its own distinguishing features and while perusing the judgment of, the learned trial Judge, we find that he has not acquitted him on the ground that lie disbelieved his presence at the spot but for the reason that the part attributed to him by Abbas Khan P. W. was that of proverbial lalkara and nothing beyond that. In order to arrive at a positive conclusion, one way or the other, we will first deal with the plea of alibi set up by Abdur Rashid co‑accused in his defence.
While scanning ‑the evidence of D. 'W'. 2 Safdar Hussain, D. W. 4, Ghulam Muhammad, D. W. 5 Qazi Ijaz Ahmad, Advocate, the only relevant witnesses in the matter, we find that the defence in. this matter has completely failed to shod that at the time of occurrence which has been given as 8/9 a. m. on 14th November, 1972, Abdur Bashed co- accused was present in the Court of R. M., Chakwai. The direct evidence which should have established his presence at Chakwal is that of Safdar Hussain D. W. 2, Reader to Assistant Commissioner. The evidence of this witness is vague in nature and does not fix the time of. Abdur Rashid's presence which should persuade us to believe that he could not reach Chakwal after his participation in the crime. The Court time in winter starts from 9‑00 a. m. to 4‑b0 p. m, and thus he could easily reach Chakwal and get his presence recorded at some time during the Court hours. The evidence of Ghulam Muhammad D. W. 4, instead of supporting the defence version, lends support to the prosecution case. It is in the evidence of this witness that it was 11‑30 or 12‑00 noon that he saw Abdur Rashid co‑accused in the Court Room of R. M., Chakwal. Therefore. Abdur Rashid could easily cover a distance of 30 miles in two hours or so and make himself available during the course of the day in the Court of R. M., Chakwal. The only witness left in the field who has tried to serve Abdur Rashid co‑accused is Qazi Ijaz Ahmad, Advocate, D. W.
5. He has claimed that Abdur Rashid co‑accused was with him at about 8‑45 a. m. at Chakwal on the day of occurrence. Cross-examination led on this witness makes it crystal clear that hardly any reliance can be placed on his testimony. Although he has denied the suggestion of the prosecution that Mst. Suban, maternal aunt of Abdur Rashid co‑accused was his maid servant and his maternal cousin Muhammad Nawaz was his tenant, yet at the same time he has admitted that he owned some land in Chak No. 8 near Chichawatni where the relatives of Abdur Rashid co‑accused also worked. It has also come on the record that this witness was an apprentice of Ch. Muhammad Iqbal Advocate, the counsel who conducted the case of Abdur' Rashid co‑accused. In the end of his cross‑examination this witness conceded that in case under section 325, P. P. C. in which Abdur Rashid co‑accused/respondent was a complainant, he did not file any power of attorney on his behalf. If that being so, then Abdul Rashid had no reason to be with him on the day of occurrence as this witness was not his counsel. In the light of the above analysis of the defence evidence, we are of the considered opinion that Abdur Rashid co‑accused was not present at 8/9 a. m. in the Court of R. M., Chakwal, as stated by him before the trial Court under section 341, Cr. P. C. Despite our above conclusion we are conscious that law requires the prosecution to establish its own case and the failure of the defence does not automatically prove the guilt of the accused. Therefore, in this case we are required to see whether prosecution has established its case beyond reasonable doubt against both, Abdur Rashid and Nazar Hussain appellant, notwithstanding the fact that the defence set up by Abdur Rashid co‑accused has not come to his rescue. In this matter we have to assess the evidence of Abbas Khan P. W. 12 and to find whether it inspires confidence and rings a note of truth.
Abbas Khan P. W. was injured during the incident, therefore, his presence at the spot, at the time of occurrence, cannot be doubted in any manner whatsoever. He is an independent witness who has no motive to falsely implicate Abdur Rashid co‑accused or Nazar Hussain appellant on this capital charge of murder. He cannot be dubbed as a chance witness as we find he was working near the place of occurrence and reaping the groundnut harvest. It was natural for him to reach the spot when attracted by the sounds of fires. The argument of the learned counsel for the appellant that as this witness had become unconscious after receiving injuries, and, therefore, he was unable to identify the culprits, is hardly tenable. We have perused his statement and find that he had become unconscious only after he had seen and participated in the occurrence. Therefore, his state of unconsciousness as admitted by him, in of no avail to the case of the defence. He has stated that:‑
"On this Rashid accused fired his pistol from a distance of two/three yards hitting the deceased in the chest. Second shot was fired by Nazar accused from his pistol hitting the deceased in the left arm. Third shot was also fired by Rashid which hit the deceased in the china On the receipt of these shots the deceased fell down. I threw two stone‑pieces at the accused but they were not bit. Akbar raised the lalkara to finish me as well. From a distance of two/three yards Rashid fired at me biting me in the chest followed by a shot by Nazar hitting me in the tight flank. I also fell down, thereafter the accused chased "Safdar P. W. I went unconscious at the spot and gained consciousness in the hospital at Chakwal.'
The admission on the part of Abbas Khan P. W. of going unconscious does not indicate that he became unconscious from the very beginning of this assault which was launched by Abdur Rashid cc‑accused and Nazar Hussain appellant on him and the deceased. The sequence of narration as given in his statement leads only to one conclusion that he only fell unconscious when he had seen the entire occurrence and ultimately received injuries at the hands of Abdur Rashid and Nazar Hussain. The details of the injuries as given by hire stand fully corroborated by the medical evidence.
10. Before dealing with the medical evidence it will be useful to reproduce the injuries received by the deceased and Abbas Khan P. W. 12.
Dr. Asghar Hamid Qureshi P. W. 1, while conducting post‑mortem examination on 15th November, 1972 at 7‑30 a. in. on the dead body of than Beg deceased, found the following injuries on his person:‑
(1) Fire‑arm wound 1-1/3/8' x 1 /8' x chest cavity deep on front of the chest, 2 ' below and inner to left nipple. Margins were; inverted. It was directed to the right and backwards and slightly downwards towards next injury (entry wound).
(2) Fire‑at in wound 3/8' x 1 /8' x chest cavity deep margins were averted on to the right of middle line of back and 11 ' the back of the right chest, 5 ' below the upper margin of the back with collection of blood around in area 4" x 4' (exit of injury No. 1).
(3) Fire‑arm wound oblique 2 /8'x 1 /8' on the left side of the chin, going to the right slightly upwards and backwards were margins inverted, lower jaw vas fractured (entry wound).
(4) Fire‑arm wound 3/8' x ' on the right side of the lower part of the check, 2' behind the chin margins were averted. It was connected with injury No. 3 and was its exit.
(5) Fire‑arm wound 1 /8' x 1/8' x whole thickness deep on front of left forearm, 1 ' below the elbow joint in the centre, going downwards and backwards towards next injury, margins intervened. (entry wound).
(6) Fire‑arm wound 3/8'x 2 /8', on the back of left fore‑arm, 5 " below the tip of the left elbow. Margins averted. It was exit of injury No. 5.
(7) 3 abrasions, 1 1/8" x ", 1 1/8' x ', 3/8' x ' on front of upper part of right leg and knee in area 6 x 1'.
No blackening or scorching was present around the entry wounds or the shirt. In the opinion of the Doctor death occurred due to perforation of right side of the heart and right lung and bleeding and shock. Injury No. 1 was fatal and was sufficient in the ordinary course of nature to cause death. Injury Nos. 1 to 6 were caused by a fire‑arm while injury No. 7 was the result of a blunt weapon.
Similarly, Abbas Khan P. W. 12 was medically examined by this Docto r on 14th November, 1972 at 1‑20 p. m. who found the following injuries on his person:‑
(1) Fire‑arm wound 1 /8' x 1 /8' x chest cavity deep going to the right slightly backwards towards next injury. Margins were inverted, situated on front of chest, 1' to the right of the middle line, at level with the nipples. There was swelling round the wound 6' x 5' surgical emphysema was present (entry wound).
(2) Fire‑arm wound 1 /8' x 1 /8' on right side of the chest, 2 ' behind and to the right side of right nipple and at level with the nipple slightly above it. Margins were averted. This was exist of injury No. 1.
(3) Fire‑arm wound 3/8' x ' x whole thickness deep on inner side of right arm at level with injury No. 2 and approximated with that injury. Margins inverted. It was 2 ' below the root of right arm‑pit (entry wound) radial and ulner pulsations were absent.
(4) Fire‑arm wound 3 /8' x 2 /8' on the posterior and lateral side of right arm, margins averted, whole of the right arm was swollen. This was exit of injury No. 3. All these tour injuries were err one line.
(5) Fire‑arm wound making a groove in the skin, 1 1/8' x 1 /8' x superficial going backward and slightly downwards on the right side of the abdomen, on the lumber area, 2 ' above iliac crest (entry and exit wounds).
According to the doctor the deceased received three injuries on chest, chin and left wrist and Abbas Khan P. W. 12 received one injury on his right chest and second on his right arm. Therefore, we are satisfied that the account given by Abbas Khan P. W. 12 inspires confidence and implicit reliance can be placed on it as it finds complete support from the medical evidence we are constrained to observe that it was not proper for the learned trial Court to acquit Abdur Rashid co‑accused respondent, when like us, it has considered the testimony of Abbas Khan P. W. worthy of reliance and at the same time has doubted the veracity of the defence produced by Abdur Rashid co‑accused respondent.
11. The result is that we dismiss the appeal of Nazar Hussain appellant and maintain his conviction under section 302/34, P. P. C. However, we feel that the ends of justice will be met if Nazar Hussain appellant is awarded lesser penalty. Accordingly we alter his sentence from death to that of imprisonment for life. The sentence of death qua him is not confirmed. The sentence of fine under section 302/307134, P. P. C. is also maintained. The sentences would run concurrently.
For the foregoing reasons we also accept the State appeal against the acquittal of Abdur Rashid co‑accused respondent and convict and sentence him under section 302/34, P. P. C., to imprisonment for life.
Order accordingly.