MUHAMMAD AMIN Versus THE STATE

Muhammad Amin (30 years), son of Khuda Bakhsh and Ghulam Hussain (20 years), son of Qadir Bakhsh, Baloch by caste, the former resident of Chak No. 53/M and the latter of Chak No. 52/M, Tahsil Lodhran, District Multan, have filed this appeal against the judgment of the learned Additional Sessions Judge, Multan, dated the 16th May, 1977, whereby they were convicted under section 302 read with section 34 of the Pakistan Penal Code for murdering one Ashiq, son of Karim Bakhsh, aged 45 years, resident of Chak No. 43/M, in furtherance of their common intention and sentenced to undergo imprisonment for life and pay a fine of Rs.1,000.00 or in default of payment thereof to suffer rigorous imprisonment for one year each. Half of the fine, if realized, was directed to be paid to the legal heirs of Ashiq deceased. They were further convicted under section 324 read with section 34 of the Pakistan Penal Code for causing hurt to Mitha (P.W. 6), son of Ashiq deceased; Muhammad Amin was sentenced to pay a fine of Rs.300 and on failure to pay the same to suffer rigorous imprisonment for three months and Ghulam Hussain was sentenced to pay a fine of Rs.200 or in default of payment thereof to undergo rigorous imprisonment for two months.

2. The motive behind the murder of the deceased was that the appellants wanted to avenge dishonour to the family as Ashiq deceased had developed illicit connection with Mst. Ghulam Jannat, mother's sister and step‑mother of Muhammad Amin and relative of Ghulam Hussain.

3. The occurrence, as alleged by the prosecution, took place in the following manner. On the night between the 15th and 16th June, 1975, Ashiq deceased slept at his Behk of cattle within the area of Chak No. 83/M. His son Mitha (P.W. 6), slept at the nearby door less Haveli. Art about midnight Mitha (P.W. 6) heard noise raised by his father from the Behk where he had slept. Mitha ran towards his father and at the same time raised alarm hearing which Allah Ditto (P.W. 7) and Muhammad Ramzan also came to the spot. Mitha saw that Muhammad Amin appellant armed with a hatchet and Ghulam Hussain appellant equipped with a stick had rounded up his father and were causing him injuries. Mitha requested the appellants to desist but they raised Lalkara and forbade him to come near. They said that they would leach Ashiq a lesson for their insult. They proclaimed that whoever carne near would not be left unhurt. Muhammad Amin administered a hatchet blow on the head of Ashiq and he fell down on the ground. Ghulam Hussain gave him a stick blow which landed on his left shoulder. Mitha (P.W. 6) went forward to intervene. Muhammad Amin inflicted a hatchet blow on the head of Mitha and he fell down. Ghulam Hussain caused him stick injuries. The appellants alongwith their weapons of offence fled away.

Mitha (P.W. 6) and his father, Ashiq deceased, who was in a serious condition, removed to Civil Hospital, Lodhran, and himself went to nearby Police Station Lodhran where he lodged at 8.00 a.m., on the 16th June, 1975, the First Information Report, Exh. P.E. which was recorded by Muhammad Aslam, the then Assistant Sub‑Inspector of Police, P.W.

11. The case in the first instance was registered under section 307/34 of the Pakistan Penal Code‑but after the death of the deceased the offence was changed to one under section 302/34 of the Pakistan Penal Code. Muhammad Aslam deputed Abdus Sattar, Head Constable to prepare injury statements .of the complainant on the deceased. He prepared the injury statement of Mitha and Ashiq deceased, Exhs. P.O. and P.P., respectively. As Civil Hospital, Lodhran, was without any Medical Officer, Mitha and Ashiq were both referred to Nishtar Hospital, Multan. However, Ashiq expired on his way to Multan.

4. Muhammad Aslam (P.W. 11) went to the mortuary of Nishtar Hospital, Multan, prepared inquest report in respect of death of the deceased Exh. P.Q. and had post‑mortem examination of his dead body performed.

5. Muhammad Aslam visited the spot on the 16th June, 1975, collected blood‑stained earth from there, made it into a sealed parcel and took it in his possession vide memorandum Exh. P.F., which was attested besides him by Allah Ditto son of Piran Khan, P.W. 8, and Ahmad Khan.

6. On the 18th June, 1975, Ahmad Khan Lambardar of Chak No. 53/M, and Allah Ditto, son of Piran Khan, P.W. 8, produced the appellants before Muhammad Aslam (P.W. 11) who placed them under arrest. That very day Ahmad Khan Lambardar produced the blood‑stained shirt, Exh. P. 7, blood‑stained Chadar, Exh. P. 8 and blood‑stained hatchet, Exh. P. 11, given to him by Muhammad Amin appellant before Muhammad Aslam who took them in his possession after having made them into sealed parcels, vide memoranda, Exhs. P.H. and P.K., whose attesting witnesses were Allah Ditto (P.W.8) and Ahmad Khan Lambardar. The blood‑stained shirt, Exh. P.9, blood‑stained Chadar, Exh. P.10, alongwith blood‑stained stick, Exh. P.12, made over by Ghulam Hussain appellant to Ahmad Khan Lambardar were produced by the latter before Muhammad Aslam who took them in his possession after having made them into sealed parcels, vide memoranda, Exhs. P.J. and P.L., which were attested by the same recovery witnesses.

7. According to the report of the Serologist, Exh. P. U. blood with which were stained the abovementioned articles of clothings, Exhs. P.7, P.O, P.9, P.10 and weapons of offence, namely, hatchet, Exh. P.11, and stick, Exh. P.12, was of human origin.

8. Doctor Muhammad Zubair Chaudhry, Medical Officer, Nishtar Hospital, Multan P.W. 5, examined Multan (P.W. 6) on the 16th June. 1975, at 2.35 p.m. and found the following injuries on his person:‑

(1) An incised wound 2 " x 1 at the too of the skull, in antroposterior direction bane deep almost in midline.

(2) An incised wound 21" over the left parietal area of the head posterior part 1 " from midline antro‑posterior in direction bone deep.

(3) A contusion 2 " at the right scapular region.

(4) A contusion 10‑3/4" starting just below injury No. 3, and going downward and to the left side of the chest.

(5) A contusion 3" x 3/4" at the left scapular region.

All the injuries were caused within 12 to 18 hours. First two injuries were caused with sharp‑edged weapon while the other with blunt weapon. All the injuries were ultimately found to be of simple nature. Exh. P.D. is copy of the medico‑legal examination report.

9. Doctor Altaf Hussain Gardezi, Medical Officer, P.W. 10, conducted autopsy on the dead body of the deceased on the 16th June, 1975, at 5.45 p.m., and found the following injuries thereon:‑

(1) A contused wound 3" x " x bone deep on the left parietal region of the skull with swelling 4" x 5" around it and an abrasion " x " near the bone wound.

(2) Multiple abrasions 1 " x 1 " or the top of left and right shoulders and on the back.

(3) Two contusions 5" x 1" each on the back of right chest in its lower part.

On dissection, there was found a depressed fracture of left partical, left temporal and left frontal bone. There was fracture of the bone of left skull in its anterior part and there was clotted blood under the scalp over the membrane and on the surface of the brain.

The internal organs were normal.

All the injuries were ante‑mortem and caused with blunt weapon. In the Opinion of the Medical Officer cause of death was shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature. Time between infliction of injuries and death was assessed by the Medical officer at about 12 hours and between death and post‑mortem examination about 16 hours. Exh. P.N. is the copy of post‑mortem examination report.

10. The appellants denied point blank their participation in the commission of crime in any manner. They did not admit that they suspected that the deceased was carrying on with the step‑mother of Muhammad Arvin. They disclaimed ownership of the clothes, Exhs. P. 7 to P. 10, and denied their recovery from them. Likewise they did not admit that they had produced their weapons of offence hatchet, Exh. P. 11, and stick Exh. P. 12, to the police through Ahmad Khan Lambardar or that they belonged to them. They stated that they had been falsely involved due to misunderstanding. They did not choose to produce any evidence in defence.

11. The learned trial Judge accepted the testimony of Mitha (P.W.6), who gave an eye‑witness account of the occurrence, supported as it was by the medical evidence, to be true. Consequently, he convicted and sentenced the appellants as indicated in the beginning of this judgment. They have challenged the correctness of the findings of the learned trial Judge in appeal before this Court.

12. The ocular evidence of the occurrence proving the prosecution case consists of the statement of Mitha (P.W. 6) alone. The other alleged eye‑witness, Allah Ditta (P.W. 7), turned hostile, give a he to everything favourable to the prosecution and admitted everything that went against the prosecution and helped the accused. It seems that he had been completely won over by the appellants and a cursory glance on the evidence given by him confirms that he made no secret of switching‑ over of his allegiance to the appellants. Therefore, little importance can be attached to his testimony which should better be kept out of consideration. It has rightly been ignored by the learned trial Court while deciding the question of determination of guilt or innocence of the appellants. Attempt made by the learned counsel for the appellants to get his statement used in favour of the appellants on the basis of the observations made by the High Court of Sind in Kaloo v. State 1973 P Cr. L J 334 touching the value of the evidence of a hostile witness simply could not succeed. No doubt evidence of a hostile witness cannot always be discredited in its entirety and some portion of his statement if found to be trustworthy can be made use of to decide the matter in issue. However, a bare reading of the statement of Allah Ditta (P.W. 7) creates the impression that he has gone out and out to say anything favourable to the appellants and damaging the interests of the prosecution. It is practically impossible to sift some part of his statement which represents true facts. Therefore, it is better to exclude his evidence altogether from consideration.

13. Mitha (P.W. 6) is the son of Ashiq deceased. It was not unnatural for him to sleep in his Haveli not far away from the place where his father had slept. He would have certainly responded to the call of succour given by his father. He was injured during the occurrence. In these circumstances even the learned counsel for the appellants conceded that his presence could very well be marked at the spot at the time of occurrence. He narrated how the appellants had injured him as well as his deceased father. Hearing hue and cry raised by his father he rushed towards him. He saw Muhammad Amin appellant armed with a hatchet and Ghulam Hussain appellant holding a stick causing injuries to the deceased. He tried to intervene and beseached the appellants but the appellants threatened him not to go near them and said that if any one went near them he would not be spared. They also proclaimed that they would teach a lesson to Ashiq deceased for his evil deeds. Muhammad Amin appellant first inflicted a hatchet blow on the head of the deceased as a result whereof he fell on the ground and thereafter Ghulam Hussain appellant administered a stick blow on his left shoulder.

Mitha deposed that he could not say if Muhammad Amin had used the blunt end or the sharp‑edged side of the hatchet while causing injury to the deceased as it was a dark night. When Mitha went forward to intervene Muhammad Amin dealt him a hatchet blow on his head and he fell down. Thereafter, Ghulam Hussain inflicted blows on his back with stick.

14. Mitha (P.W. 6) and the appellants lived in the same locality. They knew each other well. Therefore, Mitha could not have had any difficulty in identifying them even though it was dark night. It has not been proved that Mitha bore any hostility towards the appellants or had any motive falsely to implicate them in the case. No previous enmity was shown to exist between the appellants and the family of the deceased. In such a situation Mitha would not have gone to the extent of branding the appellants as aggressors and responsible for causing injuries to his deceased father and injuries to him had they not actually caused such injuries. His evidence rings truth and inspires confidence. There is no reason for discarding it. Supported as it is by the medical evidence, it is to be believed and acted upon.

15. The learned counsel for the appellants contended that non -existence of any sharp‑edged weapon injury on the body of the deceased would discredit the testimony of Mitha that Muhammad Amin had administered hatchet blow on the head of the deceased and would consequently eliminate the alleged participation of Muhammad Amin in the attack upon the deceased. In this connection the learned counsel added another argument to impeach the veracity of Mitha. He pointed out that Mitha had introduced in his statement the fact that he "could not say if Muhammad Amin accused had used the blunt end or the sharp‑edged side of hatchet as it was a dark night in order to cover up the contradiction between what he had stated at the time of lodging report with the police and what had been turned out as a result of the post‑mortem examination of the deceased. In his report to the police, Exh. P.E., he had simply stated that Muhammad Amin had attacked the deceased with hatchet which had struck him on his head without speci fically mentioning as to which side of the hatchet, whether sharp‑edged or blunt, fell on the head of the deceased'. In the absence of description of the side of hatchet striking the head of the deceased Mitha's statement would be interpreted to mean that it was with sharp‑edged side of the hatchet that Muhammad Amin administered blow to the deceased because quite generally if the blunt side of the hatchet is used it is specifically so mentioned whereas use of sharp side of the blade is taken for granted. Nevertheless, all the attending circumstances of the occurrence will have to be kept in view to appreciate the narration of facts given by Mitha in the report, Exh. P.E. It was dead of night when he was suddenly awakened by the disturbing noise raised by his father. Alarmed as he would have been rushing to the scene of occurrence he would have certainly been horrified to see what was happening which he would have least expected. In such state of mind if he failed to notice with particularity the precise mode of application of steel portion of the hatchet during the process of administration of blow by Muhammad Amin to the deceased in the darkness of night he is not much to be blamed. The deceased must have also offered some resistance to save his life. The appellants, sensing arrival of Mitha and others and realizing the gravity of the situation in which they were placed must also have been in a peculiar state of mind and action. It is possible that in such a situation the hatchet wielded by Muhammad Amin struck the head of the deceased in such a fashion as the wound caused thereby was otherwise than incised one. Presence of two incised wounds on the person of Mitha confirms the use of sharp‑edged weapon by at least one of the assailants. The nature of injuries found on the body of the deceased and of Mitha indicates use of two different types of weapons, one sharp‑edged as hatchet is and the other blunt like a stick As already remarked Mitha bore no ill‑will against the appellants. His presence .at the spot at the time of occurrence being beyond dispute and he not having shown to have indulged in any exaggeration in A attributing to the appellants role larger than the one they played or increasing the number of the assailants so as to implicate innocent persons, his testimony is worth placing reliance upon. His statement before the Court to the effect that he could not say if Muhammad Amin accused had used the blunt end or the sharp‑edged side of the hatchet as it .was a dark night could not be said to be an improvement of importance in his report made to the police justifying drawing of inference that his evidence on other points should be disbelieved as hat, been thought of by the learned counsel for the appellants. The rule quoted in Qaimuddin v. State 1971 P Cr. L J 229, referred to by the learned counsel in this behalf is not applicable to the facts of the instant case for the simple season that Mitha did not make any crude attempt to improve his evidence at trial of the case on material points. Mitha's testimony taken as a whole in so far as it implicates the appellants for the commission of assault attributed to them has to be accepted at face value. His ocular account of the occurrence found to be true needs no further corroboration. So even if the recovery of the appellants' wearing apparels and weapons of offence said to have been produced by Ahmad Khan Lambardar, who was not examined by the prosecution, before the investigating Officer, cannot be directly linked with the appellants, their murdering the deceased and causing hurt to Mitha is established on the basis of Mitha's testimony supported as it is by the medical evidence.

16. In view of what has been stated above, the charge could be said to have been brought home to the appellants beyond a reasonable manner of doubt. They were rightly convicted and sentenced by the learned trial Judge. Their conviction and sentence awarded to them are maintained. Their Appeal is dismissed.

S.G.D. Appeal dismissed