KHADIM HUSSAIN Versus THE STATE

KHIZAR HAYAT, J. ‑‑ Khadim Hussain (24), his brother Mazloom Hussain (18), appellants herein, were tried alongwith their brother Abid Hussain and one Ghulam Hussain son of Sahib Din for the murder of Ghulam Murtaza, by learned Additional Sessions Judge, Sialkot, who vide judgment, dated 19‑2‑1985 while acquitting Abid Hussain and Ghulam Hussain, convicted both the appellants under section 302/34, P.P.C. and sentenced them to death and fine of Rs.5,000 each or in default of payment of fine to undergo two years' R.I. each. It was directed that half of fine, if recovered, shall be paid to the complainant and that they shall farther pay Rs.15,000 each to the heirs of the deceased as compensation under section 544‑A, Cr.P.C. or in default to suffer 6 months' R.I. each. Feeling aggrieved the convicts have filed appeal (Criminal Appeal No. 173 of 1985) and the trial Court has sent the proceedings to this Court under section 374, Cr.P.C. for confirming the death sentence. Abdul Samad, complainant has filed Criminal Revision No. 727 of 1985 against the acquittal of Chulam Hussain and Abid Hussain. We propose to dispose of the abovementioned three matters by this single judgment.

2. The occurrence took place at 'Peshiwela' on 12‑7‑1983 in front of the house of Abdul Samad situated in village Kakeki, about three miles away from P.S. Sadar Sialkot, Abdul Samad, (P.W.5) who is father of Ghulam Mustafa, brother of Ghulam Murtaza deceased, reported the incident, the same day at 4 p.m. vide F.I.R. Exh.P.C. recorded by A.S.I. Abdul Haq (P.W.12) at the police station.

3. The motive for the occurrence was stated to be that about two years before the occurrence Ghulam IMustafa brother of Ghulam Murtaza deceased, and his nephew Javid were challaned and convicted for the murder of Ghulam Nabi, father of the appellants. About 6 months before the occurrence Ghulam Mustafa was acquitted by the High Court and Javid was sentenced to five years' R.I. A month after Ghulam Mustafa's acquittal, Khadim Hussain, appellant and Masood Ahmad caused him serious injuries and were challaned under section 307, P.P.C. Due to this enmity the instant occurrence took place.

4. The prosecution case as set up at the trial was that on 12‑7‑1983, it was Eid‑ul‑Fiter day. Abdul Samad, complainant (P W.5) was resting at home after taking his lunch. At about 'Peshiwela he and his son Ghulam Murtaza, deceased, on hearing noise of abuses and Lalkaras went (at the outer door) and saw Khadim Hussain and Mazloom Hussain, (appellants) armed with daggers, Abid Hussain and Ghulam Hussain (since acquitted) empty‑handed, present there. Ghulam Hussain caught hold of Ghulam Murtaza, deceased and pulled him out in the street and raised Lalkara that he be murdered. At this, Mazloom Hussain, appellant, attempted to inflict dagger blow on chest of the deceased who warded it off with his right hand. As a result of it, back side of his right hand and chin was injured. Meanwhile Zafar (P.W.8) nephew of the deceased carrying Chhuri rushed out of the house and inflicted a Chhuri blow on the abdomen of Mazloom Hussain, appellant who was attempting to stab the deceased for the second time. The deceased tried to run inside his house to save his life but Abid Hussain accused (since acquitted) took him in his clasp whereupon Khadim Hussain (appellant) inflicted a dagger blow at left side of the back of his chest. At this stage, Ghulam Zakiria (given up P.W.) brother of the deceased, arrived and in order to save lives of his partymen, fired a shot in the air from his licensed revolver. At this, the accused party ran away. Ghulam Murtaza was removed to Civil Hospital Sialkot, in injured condition and got admitted there for treatment. Abdul Samad, complainant then went to the police station with medico‑legal report of Ghulam Murtaza and lodged F.I.R. Exh.P.C. there.

5. Abdul Haq S.I. (P.W.12) having recorded the F.I.R. Exh.P.C. under section 307/34, P.P.C. went to Civil Hospital, Sialkot. He inquired from the doctor about fitness of Ghulam Murtaza to make statement but the doctor replied in the negative. Ghulam Murtaza succumbed to the injuries the same night at 2‑50 a.m. Learning about the death, the S.I. altered the offence to 302, P.P.C. and went to the hospital and after preparing injury statement and inquest report Exh.P.K./P.L. got the dead body post‑mortem. He visited the spot the same day and secured blood‑stained earth vide memo. Exh.P.H. He arrested Khadim Hussain, appellant, and Abid Hussain (since acquitted) on 24‑7‑1983. On 31‑7‑1983 he recovered blood‑stained dagger (P.6) from weeds on the back of Nullah Aik at the pointation of Khadim Hussain, appellant and secured it under memo. EXh.P.L. Muhammad Sarwar S.I. (P.W.9) who partly investigated the case arrested Mazloom Hussain on 10‑8‑1983 who produced blood‑stained dagger (P.2) at the time of his arrest which was seized under memo. EXh.P.B. (wrongly dated as 10‑9‑1983). Both these weapons Exh.P.2 and P.6 were found as stained with human blood vide reports Exhs. P.N. and P.O. of Chemical Examiner and Serologist, respectively.

6. Dr. Syed Sajid Ali, Medical. Officer (P.W.6) who examined the deceased, while alive, on 12‑7‑1983 at 3‑15 p.m. noted three incised injuries on his person, namely; an incised wound " x 1/8" on right side of chin, an incised wound 1" x 1/8" on dorsum of right hand, both skin deep, and an incised wound 1 " x " x depth not probed, on back of chest, left side lower part just at the costal margin. The last mentioned injury was kept under observation and the rest were found as simple caused within about half an hour's duration with sharp‑edged weapon.

The same doctor, on the same day at 4‑20/4‑40 p.m. had examined from the accused side Mazloom Hussain (appellant) and his brother Abid Hussain. He found incised wound 1 " x " x abdomenal cavity deep with a portion of intestines protruding out from the wound on the person of. Mazloom, caused with sharp‑edged weapon within half an hour's duration. On the person of Abid Hussain, the doctor noted two circular wounds 1/8 c.m., depth was not probed, in front of right knee lower part, and the other circular wound ;" diameter on inner and back aspect of right knee joint. The opinion as to the weapon used and nature of these injuries was postponed. They were, however stated to have been caused about half an hour before examination. According to him the possibility of these injuries having been caused with fire‑arm was not ruled out. The patient could not be X‑rayed as he had left the hospital.

Ghulam Murtaza, deceased, died the same night at 2‑50 a.m. Post‑mortem examination on his dead body was conducted by the same doctor at 1‑10 p.m. on 13‑7‑1983. On internal examination, the doctor opined that injury No.3 of the deceased had resulted in death, which was sufficient in the ordinary course of nature to cause death. Probable duration between injury and death was about 12/13 hours and between death and post‑mortem was about 10 hours, 20 minutes.

7. It may be mentioned that on 15‑7‑1.983 at 7‑30 p. m. Muhammad Hussain son of Sahib Din, a brother of Ghulam Hussain (since acquitted) got registered F.I.R. Ex h.D. A with Hassan Akhtar, A.S.I. of Police Station Sadar, Sialkot, against Murtaza deceased, Zakria and Zafar P.Ws. alleging that he alongwith Abid Hussain (acquitted accused) were returning home after collecting subscription. When they passed near Ahmad Ali P.W.'s house, Abid Hussain, proclaimed loudly that the oven be removed from the street, whereupon Zakria brought out revolver from his house, saying that he would teach him (Abid Hussain) lesson for demolishing the oven and fired at him hitting his right knee. Hearing commotion Khadim Hussain, appellant, came from his house taking a Chhuri, Zakria fired at him but missed the target, Meanwhile Ghulam Murtaza (deceased) armed with Chhuri also came out of his house and attacked Khadim Hussain, appellant but, he had escaped unhurt. Khadim Hussain, appellant then inflicted Chhuri blow on his (deceased's) chest as a result of which he fell down. Thereafter Abid Hussain and Khadim Hussain decamped. The occurrence was witnessed by Sardar Muhammad. About an hour later Mazloom Hussain reached there in a Rickshaw. He was busy paying fare, when Zafar P.W. armed with Chhuri came there and stabbed Mazloom on the abdomen and ran away brandishing his weapon. Mazloom was removed to the hospital by Nazir Hussain. This case was, ultimately, cancelled, and the murder case registered against appellants was challaned placing Ghulam Hussain in column No.2. Learned trial Court however, summoned him and tried him with appellants for murder of Ghulam Mustafa deceased.

8. At the trial 13 witnesses were produced in support of the prosecution version. Abdul Samad, complainant (P.W.5), Ahmad Ali (P.W.7) and Zafar (P.W.8) furnished ocular account. Muhammad Sardar (P.W.4) and Ahmad Ali (P.W.7) besides the police officers (P.W.9) and (P.W.12) deposed to about the recovery of blood‑stained daggers P.2 and P.6 effected from the appellants while Dr. Sajid Ali (P.W.6) proved injuries of the deceased as well as those of Mazloom Hussain (appellant) and his brother Abid Hussain (since acquitted).

9. Abdul Samad complainant (P.W.5) father of Ghulam Murtaza deceased narrated the story as given in paras. 3 and 4 above. He admitted that Ghulam Mustafa and Ghulam Zakria are his sons and Zafar (P.W.8) is his grandson and Ahmad Ali (P.W.7) is his younger brother who lives towards south of his house. The house of accused party is at a distance of one or two Killas from his house towards East. He admitted that Muhammad Hussain (brother of acquitted accused) got a criminal case registered against him but he was discharged by the police. He denied the suggestion that at fateful time Ghulam Murtaza (deceased), Zakria and Zafar (P.Ws.) were sitting in their corridor, Khadim Hussain and Mazloom Hussain (appellants) and Abid Hussain (acquitted accused) happened to pass through the street, Zakria seeing them started firing at them, and a bullet had hit Abid Hussain (since acquitted). He further denied that on the alarm raised by Abid Hussain (since acquitted) Khadim Hussain and Mazloom Hussain (appellants) reached there, Zafar P.W. stabbed Mazloom and Ghulam Murtaza attacked Khadim Hussain appellant who in self‑defence of his own person as well as of Mazloom had caused two injuries to Ghulam Murtaza deceased.

10. Ahmad Ali (P.W.7) real brother of complainant and father‑in‑law of the deceased stated that hearing 'Rolla' he went up the roof and from there he saw the occurrence. He gave details of the occurrence similar to those given by Abdul Samad complainant (P.W.5). He stated that when he had first seen Zakria, he was standing about a pace outside his door, holding a revolver. He stated that only two blows were inflicted to the deceased. He denied that Mazloom, appellant, and Abid Hussain (since acquitted) were attacked by the complainant party or that Khadim Hussain appellant had injured the deceased in self‑defence.

11. Zafar (P.W.8) also made similar statement. He stated that Zakria came out of the house after he (witness) had stabbed Mazloom appellant and that Zakria fired only one shot. He admitted that intestines of Mazloom appellant had protruded out of wound but he did not see his blood falling down.

12. When examined under section 342, Cr.P.C. Ghulam Hussain accused (since acquitted) denied his presence at the time of occurrence. Abid Hussain accused (since acquitted) denying the allegations explained that he was sitting in his Baithak with his guests from Sialkot. He heard noise from the street and went out. He learnt that his brother Mazloom Hussain had been injured by Zafar P.W. He found Mazloom Hussain lying on the ground in injured condition. He started weeping loudly, whereupon Zakria fired at him with his revolver. The shot hit his leg and he ran away. He did not know who took Mazloom Hussain to the hospital. He was hospitalized for two days.

13. Mazloom Hussain (appellant) stated that at the fateful time he was going to his sister's house and happened to pass through the street of the complainant. Zafar P.W. was standing in the door of his house, who stabbed him in the abdomen and he fell unconscious. He did not injure the deceased. He denied that Zafar P.W. had injured him in self‑defence. His brother Abid Hussain came to remove him from there when Zakria opened fire at him and injured him. He said, he learnt about all this in the hospital. Khadim Hussain (appellant) stated that on the day of occurrence he had gone to village Langraywali for giving Eidi to the children of his maternal‑uncle Muhammad Boota which is at a distance of one mile from the village. He returned from there and was attacked by the complainant party whereupon he injured Ghulam Murtaza deceased in his self‑defence. He denied the recovery of dagger P.6 from him. In their ‑defence, appellants examined 4 witnesses. Sardar (D.W.1) and Allah Rakha (D.W.2) deposed about the plea of alibi raised by Ghulam Hussain (since acquitted), Khurshid Ahmad A.S.I. (D.W.3) proved the registration of cross‑case on 15‑7‑1983 at the instance of Muhammad Hussain vide F.I.R. (copy Exh.D.A.) under section 307/326, P.P.C. which was cancelled, as stated earlier.

14. Learned trial Court on consideration of the material on record found participation of Abid Hussain and Ghulam Hussain as doubtful and acquitted them while Mazloom and Khadim Hussain (appellants) have been held to be guilty of committing the murder of Ghulam Murtaza and sentenced them to death as no extenuating circumstance existed for awarding them lesser sentence. The State has not filed appeal against the acquittal of Abid Hussain and Ghulam Hussain. They on prosecution's own showing, had come to the spot empty‑handed, and only 'Japha' had been attributed to Abid Hussain and Lalkara to Ghulam Hussain. Khadim Hussain could inflict the solitary injury to the deceased, ascribed to him, even if the deceased was not held by Abid Hussain. The insignificant role of raising Lalkara and holding the deceased in Japha appear to have been allotted just for implicating them, therefore, we find that learned trial Court had rightly acquitted them. Complainant's revision challenging the acquittal of Abid Hussain and Ghulam Hussain thus stands dismissed as being without merit.

15. It is argued on behalf of the appellants that the prosecution story is unnatural and improbable; that although the occurrence took place in a street of the village yet no independent witness has come forward to support the prosecution case; that the recovery of weapons of offence effected from the appellants is fake; that there exists long standing enmity between the parties, therefore, the testimony of the eye‑witnesses cannot be believed without independent corroboration which is wanting in this case; and that the counter‑version put forth by the appellants appears to be nearer the truth than the prosecution story, which must be accepted. Lastly it was urged that at best the prosecution evidence discloses an offence under section 304, P.P.C. and not under section 302, P.P.C., therefore, conviction and sentence of the appellants must be altered. Learned counsel for the complainant also conceded that the appellants are guilty of committing culpable homicide not amounting to murder and that he would have no objection if the conviction and sentence is altered accordingly. Learned State counsel has‑ defended the impugned judgment.

16. It is common ground between the parties that the occurrence took place in the street in front of the house of the complainant on the day and time as alleged by the prosecution; that the house of the accused as shown in the site plan adjoins the back side of complainant's house; that during the occurrence Ghulam Murtaza (deceased) alone had been injured from the complainant side and received two blows while from accused. side Abid Hussain (since acquitted) and Mazloom Hussain (appellant) in all received two injuries. With slight variation presence of Abid Hussain (since acquitted), Mazloom Hussain and Khadim Hussain (appellants) from the accused party and that of Zafar (P.W.8), Ghulam Murtaza (deceased) and Zakria P.W. from complainant party is admitted. Each party has told its own version of the incident. Each party has blamed the other to have committed planned aggression and pleaded for itself to have acted in self‑defence by reaching the spot one after the other. We have considered both versions by placing them in juxtaposition. We are of the view that each party has minimised its own role laying maximum blame on the other and has told incomplete story. Had the accused party gone to complainant's house duly armed with an avowed purpose to kill the deceased then they would have caused far more harm to complainant party than giving only two blows to the deceased. Similarly, had the complainant party, after arming themselves with fire‑arms and daggers, sat in wait for the appellant the appellant' party would have received many more and extensive injuries than the two injuries in all suffered by Abid Hussain (since acquitted) and Mazloom Hussain (appellant). Two injuries suffered by each party clearly suggests that it was shortlived and sudden clash of the parties in the nature as hit and run. Furthermore Ghulam Murtaza (deceased) did not cause injury to any person, therefore, he appears to be empty‑handed at the time of occurrence. Khadim Hussain caused single knife blow on the back of the deceased's chest which means that the deceased was inflicted the blow when he was not in a position to attack Khadim Hussain muchless to pose Great to his life, therefore, Khadim Hussain (appellant) cannot be held to have injured the decease in his self‑defence.

17. Considering the entire material on the record, the occurrence, in our opinion, had taken place in the manner that Mazloom Hussain (appellant) and Ghulam Murtaza (deceased) having come across each other per chance started quarrelling. On hearing their shouts, Zafar and Zakria P.Ws. from the complainant side and Abid Hussain and Khadim Hussain from accused side came there from their nearby houses, one after the other duly armed in order to help their own party men. It was thus free for all. In the circumstances, as indicated above, there was no meeting of their minds before coming to the spot, therefore, each one of them was responsible for his individual act. Mazloom Hussain (appellant) caused two simple injuries with one knife blow to the deceased on non‑vital, part of the body, therefore, he is‑liable under section 324, P.P.C. Consequently, his conviction and sentence under section 302/34, P.P.C. is set aside and he is convicted under section 324, P.P.C. and is sentenced to two years' R.I. which he has already served. He shall be set at liberty forthwith if not required to be detained in any other case. So far Khadim Hussain is concerned, he stabbed the deceased on back side of his chest. He did not repeat the blow. Therefore, intention to kill the deceased, on his part, is negatived. However, he gave him a dagger blow with sufficient force which damaged the deceased's kidney and spleen, therefore, it can be safely inferred that by giving such a blow he knew that it would cause such bodily injury to 'the deceased as would result in his death. He is, therefore, held to be guilty under section 304 (Part I) , P. P. C . Consequently, his conviction and sentence under section 302/34, P.P.C. is altered accordingly. He sentenced to ten years' R.I. and a fine of Rs. 5,000 or in default to undergo two years' S.I. The fine, if recovered, shall be paid to the heirs of the deceased. He shall get benefit of the provision of section 382‑B, Cr.P.C. as well.

18. Criminal Revision No.728 of 1985, filed by Abdul Samad complainant, fails and is hereby dismissed.

M.Y.H./K‑88/L Appeal partly allowed.