RIAZ AHMAD Versus THE STATE

The appellant, Riaz Ahmad son of Shaman, aged 25/26 years, was convicted under section 304, Part I, P.P.C. for the murder of Muhammad Yousaf aged 26 years and was sentenced to 10 years R.I. by the learned Sessions Judge, Bahawalnagar on 17‑3‑1986. One Allah Ditta, co‑accused of the appellant, was, however, acquitted by the learned trial Court. The appellant has challenged his conviction and sentence by filing this appeal through Jail.

2. Briefly stated, the prosecution case is that Mst. Shaman widow of Ghulam Muhammad was living in village Hafizabad District Bahawal nagar alongwith her two daughters and one son Muhammad Yousaf (hereinafter to be referred as the deceased). On 21‑8‑1985 at about 3/4 p.m. both the complainant and the deceased were sitting in their house. The appellant Riaz Ahmad and the acquitted co‑accused Allah Ditta came to the house of Mst. Waziran widow of Muhammad Ashraf, whose house is situate next to the house of the complainant. The appellant and his co‑accused persuaded Mst. Waziran as well as her daughters to go with them to live in their house in village Bara Aaku, Police Station Dunga Bunga. The deceased objected and declared that Mst. Waziran was his aunt and that her husband has died and as such, he will not allow them to take Mst. Waziran and her daughters with them in their village. The appellant and the acquitted co‑accused started hurling abuses upon the deceased and declared that they will take Mst. Waziran and her daughters with them under any circumstances. The acquitted co‑accused Allah Ditta held the deceased by his hairs, whereupon the appellant inflicted knife injuries on his left shoulder and wrist of his arm successively. Upon the hue and cry being raised by the complainant, Muhammad Idrees. and Muhammad Yar, who were present nearby came there and witnessed the occurrence. On the receipt of the injuries the deceased fell down on the ground. The appellant and his acquitted co‑accused tried to run away from the place of occurrence, however, the witnesses Muhammad Idrees and Muhammad Yar apprehended them alongwith the weapon of offence. Both the appellant as well as the acquitted co‑accused were handed over to the police.

3. Sher Muhammad Sub‑Inspector, Police Station Takht Mahal p.W.10 investigated the case. He stated that on 21‑8‑1985, he was present at the Bus Stand of Takht Mahal on patrol duty when Mst. Shaman P.W.8 appeared before him alongwith Muhammad Idrees P.W.9 and Muhammad Yar P.W. (not produced) who produced before him the appellant Riaz Ahmad and the acquitted co‑accused Allah Ditta. The statement of the complainant was recorded and both the accused were arrested by the witness. Knife P.4 was taken into possession vide memo. Exh.P.H. The spot was visited by the witness and the site plan of the place of occurrence (Exh.P.I) was prepared. The blood‑stained earth vide Exh.P.G. was taken into possession. The witness went to the hospital where the injury statement of the deceased Muhammad Yousaf was prepared. An application Exh.P.M. for the purpose of recording the statement of the deceased was presented by the witness before the doctor. However, the doctor vide his report Exh.P.C. stated that the injured was not in a position to make a statement. The injured died at 7‑30 p.m. and thereafter the inquest report Exh.P.K./1 was prepared. The dead body of the deceased was sent to mortuary for the purpose of conducting post‑mortem examination. The last worn cloth of the deceased, Kurta P.1. Chadar P.2 and vest P.3 were taken into possession vide memo. Exh.P.E. The site plan vide Exh.P.D. and Exh.P.D./1 was got prepared from the Patwari. The formal F.I.R. Exh.P.F./1 was recorded by Muhammad Rafique Inspector and the witness identified his handwriting and signature. In cross‑‑examination the witness admitted that he found two injuries on the person of the appellant Riaz Ahmad. The injury statement Exh.P.L. was prepared and the witness got the appellant medically examined. He admitted in cross‑examination that the injuries of the appellant Riaz Ahmad were caused with a sharp‑edged weapon and despite that he did not investigate this aspect of the case as to how he received these sharp‑edged weapon injuries. He further admitted that in his report under section 173, Cr.P.C. he did not mention the injuries of the appellant Riaz Ahmad.

4. Dr. Capt. Abdul Majeed, Senior Medical Officer P.W.1 medically examined the deceased on 21‑8‑1985 at 6‑30 p.m. and found the following injuries on his person:‑

(1) An incised wound 6 x 3 x 4 c.m. on the outer part of the left upper arm about 9 c.m. below the shoulder joint. Direction was oblique and the underlying muscles nerves and vessles cut and exposed.

(2) An incised wound 5 x 2 x 5 c.m. on the front of left upper arm about 6 c.m. below and medial to injury No.1. Direction was oblique. Underlying muscles, nerves and vessles cut and exposed.

(3) An incised wound 2‑3/4 x 1 x 1 c.m. on back of left forearm about 11 c.m. below the elbow joint. Direction was oblique and the underlying muscles, nerves and vessels were cut and exposed.

Injury No. 2 was declared dangerous to life and as such the same was found grievous in nature. Injury No.1 was kept under observation whereas injury No.3 was declared simple. All the injuries were caused with a sharp‑edged weapon within the duration cf 4 to 6 hours.

On 22‑8‑1985 the said doctor at about 7‑30 a.m. conducted the post‑mortem examination upon the deceased and found the following injuries on his person:‑

(1) An incised wound 6 x 3 x 4 c.m. on the outer part of the left upper arm and about 9 c.m. below the shoulder joint. Direction was oblique, underlying muscles, nerves and vessels cut and exposed.

(2) An incised wound 6 x 21 x 51 c.m. on the front of left upper arm about 6 c.m. below and medial to injury No.1. Direction was oblique. On dissection, clotted blood was present under subcutaneous tissues and muscles chambers. On deep dissection underlying muscles, nerves and vessels (bronchial artery and vein alongwith their branches) cut through and through.

(3) An incised wound 2‑3/4 x 1 x 1 c.m. on the left forearm about 11 c.m. below the elbow joint. Direction was oblique and underlying muscles, nerves and vessels cut and exposed.

In the opinion of the doctor, the cause of death was due to shock and haemorrhage because of injury No.2. All the injuries were ante‑mortem. Injury No.2 was sufficient to cause death in the ordinary course of nature. The probable time between the injuries and death was 4 to 6 hours and that between the death and post‑mortem examination was about 12 hours. Exh.P.B. is the carbon copy of post‑mortem report whereas Exh.P.B./1 and Exh.P.B./2 are the diagrams of the injuries.

5. Mst. Shaman P.W.8 and Muhammad Idrees P.W.9 are the two eye‑witnesses in the cases. Mst. Shaman is the complainant as well as mother of the deceased. She has supported the case of the prosecution. She deposed that her deceased son did not allow fist. Waziran as well as her daughters to accompany the appellant whereupon the acquitted co‑accused Allah Ditta held the deceased by his hair and the appellant inflicted injuries with his knife upon the arms of the deceased. She said that on the hue and cry being raised, Muhammad Idrees P.W.9 and Muhammad Yar. (not produced) reached the spot and witnessed the occurrence. To the same effect is the statement of Muhammad Idrees P.W.9. The appellant while making a statement under section 342, Cr.P.C. submitted that Mst. Waziran was the wife of his deceased uncle and that his deceased uncle made a promise with him that his eldest daughter Mst. Amiran would be married with him. He said that there was nobody to look after Mst. Waziran and her grown up daughters and as such on their request he went to the village of Mst. Waziran to take them to his village. However, this arrangement was not acceptable to the deceased when Mst. Waziran and her daughters were ready to go with him. The deceased persuaded them not to go with the appellant. The ladies persisted in going with the appellant. Upon this, the deceased took out a knife and inflicted injuries on his head. The appellant went on to say that he picked up a Chhuri from the house of Mst. Waziran and inflicted injuries on his person in the exercise of the right of self‑defence of his person.

The appellant in his defence produced Dr. Muhammad Aslam Tariq D.W.1. The witness stated that on 22‑8‑1985 at 11‑15 a.m. he medically examined the appellant and found the following injuries on his person:‑

(1) An incised wound 2 x 1/6 c.m. x subcutaneous deep on the right side of the head rather posterior part about 6 c.m. above the pinna of the right ear. Vertical in direction.

(2) An incised wound 1 x 1/6 c.m. x subcutaneous deep on the right temporal region about 2 c.m. above the pinna of the right ear.

Both the injuries were simple, caused by sharp‑edged weapon within duration of 14 to 20 hours.

6. The learned State counsel supported the conviction and sentence of the appellant. The learned counsel argued that Mst. Shaman P.W.8 and Muhammad Idrees P.W.9 have supported the prosecution version and as such the case of the prosecution is proved beyond doubt.

7. I have heard the learned State counsel and have perused the record. It is crystal clear from the statements of Mst. Shaman P.W.81 and Muhammad Idrees P.W.9 that there is absolutely no mention of the injuries on the person of the appellant Riaz Ahmad. AS stated earlier, the appellant was medically examined by Dr. Muhammad Aslam Tariq D.W.1 on 22‑8‑1985 at i1‑15 a.m. and the doctor found as many as two injuries on the vital parts of his body. Injury No. 1 is an incised wound 2 x 1/6 c.m. x subcutaneous deep on the right side of the head rather posterior part about 6 c.m. above the pinna of the right ear which is vertical in direction. Similarly, injury No.2 is an incised wound 11 x 1/6 c.m. x subcutaneous deep on the right temporal region about 2 c.m. above the pinna of right ear. The doctor categorically stated that these injuries cannot be self‑inflicted. To begin with, Mst. Shaman P.W.8 admitted in cross‑examination that the appellant did not receive any injury on his person during the occurrence. Similarly, Muhammad Idrees P.W.9 says in his cross‑examination that the appellant did not get any injury in the occurrence. He further said that till the time the appellant was handed over to the police he had no injury on his person. However, Sher Muhammad S.I. P.W.10 has clearly mentioned in his cross‑examination that when he arrested the appellant he found two injuries existing on his person. He further stated that the injury statement Exh.P.L. was prepared and that he got the appellant medically examined by the doctor referred to above. The Investigating Officer admitted that he did not mention the fact of injuries of the appellant in his report submitted by him under section 173, Cr.P.C. From the narration of the above said evidence, it is clear that the eye‑witnesses intentionally did not mention the fact that the appellant was injured in the occurrence. The evidence of the Investigating Officer has negated the evidence deposed by P.W.8 and P.W.9 by saying that he found injuries on the person of the appellant at the time of his arrest. The Investigating Officer has further explained in his cross‑examination that blood was oozing out from the injuries of the appellant at the time of his arrest. In my view, it is established beyond any shadow of doubt that the appellant was injured during the occurrence in which the deceased Muhammad Yousaf was done to death. The prosecution witnesses have concealed this material fact and did not at all mention the injuries on the person of the appellant, in their statements. The appellant has taken the clear stand while making a statement under section 342, Cr.P.C. that he was subjected to an attack by the deceased when he was about .to take with him Mst. Waziran as well as her daughters with their consent. The statement of the appellant is that the deceased opened an aggression upon him and was given injuries by the deceased with a sharp‑edged weapon and that he in order to save his life, picked up a Chhuri from the house of Mst. Waziran and caused injuries on the person of the deceased in order to save his life. The fact of the appellant being injured was noted by the Investigating Officer immediately after the occurrence had taken place. It is clear from the evidence that the Investigating Officer when arrested the appellant on 21‑8‑1985 found fresh injuries on his person and that the blood was coming out from the injuries on the person of the appellant. The case of the prosecution is that the appellant was apprehended red‑handed alongwith the knife at the spot and was handed over to the police by Muhammad Idrees P.W.9 and Muhammad Yar (not produced). Therefore, it is established on record that there was no occasion whatsoever with the appellant to fabricate these injuries on his person. The appellant all the time remained in the custody of the prosecution witnesses and was handed over to the police immediately thereafter. There is, therefore, sufficient evidence available on record to show that the appellant was injured during the occurrence at the hands of the deceased. This being so, the prosecution is guilty of the suppression of material facts in the case. The defence version appears to be more close to the truth than the prosecution version. The prosecution case, as disclosed by Mst. Shaman P.W.8 and Muhammad Idrees P.W.9 is that the appellant wanted to take with him Mst. Waziran and her daughters to his village. According to the witnesses it was the appellant who attacked the deceased with a knife and caused injuries to him. I am not prepared to believe the evidence of P.W.8 and P.W.9. These witnesses, as observed earlier, have not deposed evidence honestly and truthfully and that they have concealed material evidence. Mst. Shaman P.W.8 is the mother of tire deceased and as such she is interested witness. Similarly, Muhammad Idrees P.W.9 is the uncle of the deceased. He too is highly interested witness in the case. No other independent witness has been produced by the prosecution to depose truthfully in the case. Muhammad Yar was an independent witness in the case but he had not been produced by the prosecution. The adverse inference of his non‑production in the case is that if he had come in the witness‑box he would not have supported the case of the prosecution; rather he would have deposed in favour of the defence. Additionally, it is admitted by Mst. Shaman P.W.8 that Mst. Waziran and her daughters were ready and willing to go with the appellant to live with him in his house. Thus, there was absolutely no legal justification with the deceased to enter in the house of Mst. Waziran and to compel her not to go to live with the appellant in his village. Mst. Waziran as well as her daughters were free to move about under the law and as such the deceased committed a trespass by entering into the house of Mst. Waziran and by making a declaration that he will not allow them to accompany the appellant. It is established that the appellant had come to the house of Mst. Waziran with her consent to take her with him as well as her daughters to his village. It is further proved that the appellant did not come in the village with some ulterior motive to commit some offence. He is closely related to Mst. Waziran and that he was justified in law to come at her request to take her with him. Thus, the appellant, in my view, has committed no offence whatsoever. He was justified in law in causing injuries on the person of the deceased in the exercise of the right of self‑defence of his person. It is apparent on the record that in fact the deceased had opened an attack upon the appellant so that he may be prevented from taking Mst. Waziran and her daughters with him. Thus, there is no alternative but to accept the statement of the appellant that he was attacked first by the deceased. The facts, circumstances and the available evidence on record will show that the deceased was the first to open an attack upon the appellant and that the appellant in retaliation in order to save his life as well as to safeguard the liberty of Mst. Waziran and her daughters caused injuries on the person of the deceased. It may be noted that the appellant did not act cruelly but on the contrary he only caused injuries which were entirely necessary under the circumstances. Injuries Nos. 1 and 3 are simple, whereas injury No.2 is grievous. All the injuries are on the left arm of the deceased. The appellant obviously did not cause any injury on the vital part of the deceased. This further shows that he was warding off the attack made upon him by the deceased. On' the contrary, the injuries on the person of the appellant are on the vital part of his body inasmuch as there are two injuries on the head of the appellant. In my view, if the appellant had not acted by giving injuries to the deceased, he would have been done to death by the deceased. Thus, the appellant has committed no offence in view of section 96, P.P.C. The case in hand is covered under proviso 'first' and 'sixthly' of section 100, P.P.C. Proviso 'first' of the said section says that if there is an apprehension that death will follow if the assault made upon the victim is not thwarted. In my view, after receipt of two injuries with a sharp‑edged weapon and that too on the very vital part of the appellant, there was enough apprehension with him that if he did not react he might be done to death by the deceased. Similarly, 'sixthly' of the said section is attracted because Mst. Waziran as well as her grown up daughters had themselves invited the appellant to come to their house and to take them with him to live in his village. The liberty and honour of the ladies was endangered by the uncalled for and wholly illegal act of the deceased. Under these circumstances, the case of the appellant is covered by the provisions contained in sections 96 and 100 of the P.P.C. Consequently, no offence whatsoever has been committed by the appellant.

8. The upshot of the above discussion is that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. The appeal is accepted and the appellant is acquitted of the charge. He shall be released forthwith provided of course he is not required in any other criminal case. The appeal succeeds and is allowed.

M.Y.H./A‑95/L Appeal allowed.