MUHAMMAD NASEEM Versus STATE

MAZHARUL HAQ, J. --Muhammad Naseem (18) his brother Muhammad Naeem (22) were tried by the Sessions Judge, Sheikhupura for the murder of their co-villager Abdul Ghafoor. On 1st of March, 1979 Muhammad Naseem was convicted and sentenced to death under section 302, P.P.C. He was also fined Rs. 1,000. His brother was acquitted. Appeal of the convict and the connected murder reference are before us.

2. Abdul Ghafoor deceased, his brother Khadim Hussain (informant) lived opposite to the house of Muhammad Ali Gujjar. Naseem and Naeem accused frequently visited Muhammad Ashraf son of Muhammad Ali and the three used to play radio in a loud tone in Muhammad Ashraf's baithak. They also often sang obscene songs which was objected to by Abdul Ghafoor. On some occasions there had been an altercation between Abdul Ghafoor and the accused. In the evening at about 4 p.m. on 13th May, 1978 Muhammad Ashraf, Muhammad Akram and Muhammad Naseem as usual tuned the radio aloud. Abdul Ghafoor (deceased) reprimanded them upon which the three grappled with him. Abdul Ghafoor's brother Khadim Hussain (informant) and his father Din Muhammad were attracted to the spot. They intervened and sepa rated them. While leaving Ashraf, Naseem and Naeem threatened to teach Abdul Ghafoor a lesson. Same evening at about 6-30 p.m. P.W. 8 Khadim Hussain his brothers Abdul Ghafoor and Zahoor Ahmad came out of their house to go to the Civil Hospital, Sheikhupura to look up their brother Muhammad Rafiq who was lying ill there. Abdul Ghafoor deceased was a little ahead of the rest. As he reached the crossing, near the shop of one Boota, Muhammad Naeem and Muhammad Naseem accused suddenly appeared there armed with knives. Muhammad Naseem inflicted a knife blow in his right flank Muhammad Naeem gave two blows to him in the back. Abdul Ghafoor fell dead at the spot, the accused fled away with their weapons. Besides the informant, his brother Zahoor Ahmad (given up as unnecessary), the occurrence was also witnessed by P.W.9 Din Muhammad and Muhammad Rafiq son of i4uhammad Ali (given up as won-over). Leaving them behind, Khadim Hussain went to police Station, Warbartan situated at a distance of one furlong from the place of occurrence. He made report (Exh. P.F) to P.W. 12 Tariq Haneef, Sub-Inspector, at 7.10 p.m. the same evening. After registering the case, the S. I. went to the place of occurrence, collected blood-stained earth from there, prepared the necessary docu ments and sent the dead body for its post-mortem examination.

3. Dr. Abdul Majeeb Khan, Medical Officer, D.H.Q. Hospital, Sheikhupura held the autopsy. Since the doctor had proceeded to Libya, secondary evidence was led. P.W. 7 Abdul Majeed dispenser who had worked under the doctor, who proved the post-mortem examination report (Exh. PD). Following injuries were found on the dead body of Abdul Ghafoor:--

(1) A stab wound 2" x " on the right side of back 3" below the interior angle of right scapula entering into the chest cavity with corresponding cut in banyan which was signed and handed over to the Police. The wound was between the 7th and 8th intercostal space posteriorily lying oblique.

(2) Incised wound 1 x x in the centre of spine lying transversely with corresponding cut in banyan which was signed and handed over to the police.

(3) A stab wound x " x 1 on the back and lower part on the left side.

(4) Abrasion x " on the right side of forehead."

Pleurae and lower lobe of the right lung were punctured through and through under Injury No. 1. Stomach was healthy. It contained six ounces of fluid. Small intestines contained digested food matter and there was faecal matter in the large intestines. Bladder was empty.

In doctor's opinion the first three injuries were caused by a sharp edged weapon, Injury No. 4 with a blunt weapon. Injury No. 1 was sufficient to cause death in the ordinary course of nature. The rest of the injuries were simple. Death occurred due to shock and haemorrhage. Probable time between the death and post-mortem was 12-15 hours.

5. On 14th May 1978 i.e. the following day of the occurrence, Tariq Haneef, Sub-Inspector (P.W. 12) arrested the two accused. Their clothes were stained with blood. Shirt P. 4 and Chadar P. 5 were got removed from the person of Muhammad Naseem accused. These were made into a sealed parcel vide Memo. Exh. P. H. Shirt P. 6 and Shalwar P. 7 of Muhammad Naeem were also got removed and made into a separate sealed parcel vide Memo. Exh. P. J. These Memos were attested by P.W. 10 Ghulam Rasool, Muhammad Hussain (not produced) and P.W. 12 Tariq Hanif S. I. Since Muhammad Naseem bore injuries, he was got medically examined.

6. On 14th May 1978 Dr. Abdul Majeeb Khan sound the following injuries on Muhammad Naseem:--

(1) Abrasion " x " on the front and left side of the head 3" above the left eye brow.

(2) Abrasion " x ' on the left side of back.

(3) An incised wound 4' x 3" x " on the inner and middle of right hand lying transversely.

First two injuries were caused by a blunt weapon and the third injury with a sharp-edged weapon. Probable duration of injuries was 18 to 20 hours.

7. On 19th May 1978 Muhammad Naseem got recovered knife P. 3 from his house. It was made into a sealed parcel through Memo. Exh. P.C. attested by P. W. 6 Riaz Ahmad and Abdul Qayyum (not produced). On 24 th May, 1978 Muhammad Naeem got recovered knife P. 8 from his house. It was also made into a sealed parcel ride memo. Exh. P. K. attested by P. W. 10 Ghulam Rasul, Muhammad Hussain (given up) ant! P.W. 12 Tariq Hanif, S. I.

8. After completing the investigation the accused were sent up for trial. They denied guilt. Explaining the case against him, Muhammad Naseem made the following statement:--

"Muhammad Ashraf Gujjar returned home from his shop of arhat at about 8 or 9 p. m. on the 13 th of May, 1978. I went to his house to see him. Muhammad Ashraf and I talked with each other while standing in the bazar in front of the drawing room of his house. Muhammad Ashraf then went into his house and I started towards my own house Abdul Ghafoor deceased followed me. He came behind me upto chowk where he challenged me saying "Taghra ho ja." Abdul Ghafoor deceased suspected that I had illicit connection with his sister. Abdul Ghafoor deceased struck me two blows with his sota which he was carrying. I grappled with Abdul Ghafoor deceased and the sota which he had, fell down on the ground. I do not know wherefrom Abdul Ghafoor deceased took out knife, lie tried to strike me with the knife. l tried to catch hold of the knife and in this process my right hand was injured. I became certain that as Abdul Ghafoor had given first blow, he would also give another blow with the knife and would kill me. I snatched away the knife from him and in order to save my life struck him with the knife. I then went home. My mother asked me to get myself bandaged. I went to the hospital to get bandaged. The doctor said that I should first get the report lodged with the Police. I went to the Police Station. The Sub-Inspector said that Abdul Ghafoor had died and that I should sit there. He arrested me. Muhammad Naeem accused was not with me. He did not cause any injury to Abdul Ghafoor deceased."

9. Muhammad Naeem explained the case against him as under:-

"I was in my fields at the time of the occurrence. When I came home, my mother told me that my brother, Muhammad Naseem accused had been injured, and that he had gone to Dr. Alta' to get himself bandaged. I went to Dr. Altaf who told me that he had sent Muhammad Naseem accused to the Police station. I went to the Police station. I found Muhammad Naseem over there. The Sub-Inspector of Police asked me whether I was brother of Muhammad Naseem accused I replied in the affirmative. The Sub-Inspector told me to sit down there. I stayed there. Afterwards the Sub-Inspector arrested me."

The accused led no evidence in defence.

10. Trial Court did not rely on the ocular testimony in this case. It also placed no reliance on the recoveries from the accused. In other words, the entire prosecution evidence was ruled out of consideration by the trial Court and the conviction was based on what it deduced from the statement of the accused. Trial Court observed that on his own showing Muhammad Naseem snatched away the knife from the deceased; therefore the right of defence if any would have come to end because the deceased had by then become unarmed and the apprehension of danger would have ceased to continue. It thus ruled out of consideration the plea of the exercise of the right of self-defence and observed further that since the deceased suffered three sharp-edged weapon injuries on various parts of his body, he was, therefore, caused much more harm than it was necessary for the purpose of defence because unarmed as the deceased was left, he could not have been able to cause death of the accused, therefore the conduct of the accused from his own statement made him liable for murder Muhammad Naseem co-accused, was, however, given the benefit of doubt ant acquitted.

11. We may straightaway mention that after discarding the entire prosecution evidence it would be unfair and improper to accept a part of the statement of accused to convict him. Either his statement as a whole should be accepted or rejected. However, if some s uch circumstances appear in the statement of an accused person which also negate his defence, then there must be some evidence to support such inferences drawn from the statement of the accused. In the absence of evidence conviction cannot be based on mere inference drawn from the accused's statement. No matter howsoever logical the inference might be they can never substitute evidence. Since in this case we have not been able to appreciate the reasoning for which P. W. 9, Din Muhammad, a disinterested witness, has been disbelieved, we, therefore, need not dilate further upon the inference drawn by the trial Court from the statement of the accused.

12. According to P. W. 9, Din Muhammad he came home after finishing some necessary work in the house of one Riaz and at about 6 p. m. he went to the shop of Buta to buy some ice: as he reached there he saw the accused attacking the deceased with knives. Abdul Ghafoor died at the spot and the accused fled away. According to the witness besides him, the occurrence was witnessed by Khadim Hussain, Muhammad Rafiq and Zahur Ahmad. P. W. Khadim Hussain went to make report. Assessing Din Muhammad's evidence, trial Court observed that his statement did not inspire confidence for the reasons that he was a mason and so was Muhammad Rafiq brother of the deceased, therefore he would be interested in the deceased. Secondly, on his way home, the witness could have purchased ice which he did not because according to the witness no ice shop fell on the way on route from the house of Riaz to his house. This was considered unlikely. Thirdly, the witness had said that the accused were holding knives in their hands when he saw them. This, according to the trial Court, was also unlikely. Fourthly, his statement was at variance with the statement of P. W. Khadim Hussain (informant) inasmuch as that according to the witness, deceased's brothers were at a distance of 7/8 karams from the deceased when the occurrence took place, but according to Khadim Hussain they were 2 or 2 karams away from him.

13. Little variation in the distance given by the witnesses is not a material discrepancy as to discredit their statements. The witnesses are not expected to remember the exact distances Din Muhammad could not be considered as an interested witness simply because he was a mason and so was deceased's brother. Cross-examination of Din Muhammad did not reveal any intimacy between him and the deceased. As to why the witnesses did not purchase ice on his way home was hardly a reason to disbelieve him. Nevertheless, Din Muhammad's explanation that no ice shop fell on his way home from the house of Riaz is not contradicted. It may be mentioned here that during the cross-examination the witness was not questioned whether the shop of Buta fell on his away when he came from the house of Riaz. Under these circumstances we do not consider it to be fair to assume that the witness was a liar when he said that he had come out of his house purchase-ice. Learned counsel for the appellant argued that Din Muhammad was a chance witness whereas prosecution could have produced witnesses from the Razor where the occurrence took place; It is well-known that often eye-witnesses do not come forward to give testimony of an occurrence particularly in murder cases, for fear of creating enmity with either party. In any case we do not think that Din Muhammad could be called a chance witness because, his statement that he lived at a distance of 26 karams away from the place of occurrence remains unchallenged. In these circumstances he was a witness of the locality and being a disinterested witness his testimony was material evidence which carried weight.

14. There are material defects in the statement of the deceased's brother P. W. Khadim Hussain (informant) which have rendered his statement doubtful. His case was that their brother Muhammad Rafiq was lying ill in the hospital and at the time of the occurrence, the witness along with his other brother was going to look up Muhammad Rafiq in the hospital when on their way the occurrence took place Hut according to P. W. 9, Din Muhammad, Muhammad Rafiq was with his brothers when Abdul Ghafoor was attacked. This clearly contradicted the informant and made his story of the desired visit to the hospital, doubtful. This doubt is further strengthened by the fact that Abdul Ghafoor deceased who was with his brothers and was supposed to visit Muhammad Rafiq in the hospital was not only bare-footed but was also wearing no shirt. He only had a vest on. In our opinion, these two reasons were enough to disbelieve the story put up by Khadim Hussain that they were on their way to the hospital to visit their ailing brother Muhammad Rafiq when the occurrence took place. At this stage we may also mention that if P. W. 9, Din Muhammad had been an interested witness he would not have named Muhammad Rafiq as one of the companions of the informant. In our opinion, the brothers of the deceased might have appeared on the scene because they lived close by and yet they may not have seen the entire occurrence. We therefore, do not consider it safe to rely on Khadim Hussain's state ment. But we do not find any sound reason to disbelieve P. W. 9, Din Muhammad.

15. According to P. W. 12, Tariq Hanif S. I. the accused appeared before him at the spot on the following day of the occurrence. He got their blood-stained clothes recovered. Strangely enough, the clothes of Muhammad Naseem were not sent to the Chemical Examiner and the Serologist for examination. Although Naseem accused denied whether his clothes were blood-stained but on his own showing he attacked the deceased in defence and thereafter went to the police station. His clothes would be stained with blood, Knife P. 3 of Naseem was recovered on 19th May, 1978 and P. 8 of Naseem on 24 th May, 1978. These recoveries were attested by the relations of the accused although disinterested witnesses from the locality could be produced. We find no reason to disagree with the trial Court's finding about the recoveries. Since the clothes of Naseem were not got examined, he also did not admit his presence at the spot like his brother Naseem. He was, therefore, rightly given the benefit of doubt.

16. In so far as the case of Naseem is concerned, we find that the statement of P. W. 9 Din Muhammad finds support from the appellant's own statement because Muhammad Naseem admitted his presence and clash with toe deceased at the place of occurrence. We are, however, not inclined to accept the defence plea. True, right of self-defence is never to be weighed in the golden scales. In this case there is a evidence or circumstances to show that such a right did exist. The reason for which the appellant said that he had been attacked is no supported by any evidence. Moreover, according to the appellant, the deceased had struck him two sota blows which according to the medical evidence are minor abrasions; one above the eye-brow and the other in the back. 1f the deceased really had a suspicion against the appellant about his liaison with his sister and had he been armed with a Solo, he would have caused a much greater harm than the two simple abrasions. The third injury on the right hand of the appellant could be caused in wielding the knife against his victim. The motive for the attack is given by Khadim Hussain whose presence at the time of occurrence has become doubtful for the reason mentioned earlier. Under the circumstances of this case we are of the view that the incident was sudden and unpremeditated. It took place during day in a thoroughfare. Both parties reside in the same lane close to each other. Although the blunt weapon injuries suffered by the appellant were minor, but they are indicative of a struggle or a scuffle. It appears that on tuning the radio loud by the appellant of his friends the matter flared up. Under these circumstances we are of the view that the incident was a sudden fight. We would, therefore, alter the conviction to section 304, Part-I, P. P. C. and reduce the sentence to ten years' R. I. The sentence of fine is however, maintained, which if realised shall be paid to the heirs of the deceased.

Death sentence not confirmed.