RAHIM BAKHSH Versus THE STATE Sardar Ahmad Khan , Nazir Ahmad Bhatti

This criminal appeal arises from the judgment of learned Additional Sessions Judge, Bahawalpur, whereby he, on 20‑5‑1987, while acquitting Khuda Bakhsh and 4 others, convicted Rahim Bakhsh appellant under section 304(1), P.P.C. for causing death of Abdul Razzaq and sentenced him to imprisonment for life and a fine of Rs.5,000, in default thereof 3 months R.I. It was also directed that the appellant shall also pay Rs.5,000 as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. or in default thereof 3 months' R.I.

2. The occurrence took place on 1‑3‑1986 at 1‑30 p.m. in the area of village Daulatpur of Police Station Uch Sharif. The distance between the place of occurrence and the police station is 4 k.m.

3. The F.I.R. Exh.P.E. was lodged by Muhammad Nawaz, brother of the deceased, on the same day at 3‑15 p.m. and was recorded by Madad Hussain, A.S.I., P.W.11.

4. The motive as alleged by the prosecution, briefly, was that 1 years before the occurrence, there was a quarrel between Khuda Bakhsh co‑accused on one side and Abdul Razzaq deceased, Iqbal and Abbas, on the other side, hence this occurrence.

5. As for the main occurrence, it has been stated that at the eventful time, Muhammad Nawaz complainant and Khadim Hussain P.W. were picking onions seed from their fields, when they heard alarm raised by Abdul Razzaq deceased, they rushed to the spot and saw that Abdul Razzaq was being forcibly removed by Khuda Bakhsh and 5 others. Khuda Bakhsh, Sarwar, Ghulam Ali and Ghulam Hussain were armed with sticks whereas Rahim Bakhsh and Hakeem were carrying hatchets. Abdul Razzaq was dragged into the house of one Karim Bakhsh where Rahim Bakhsh appellant inflicted hatchet blow on his neck who fell to the ground. When Khadim Hussain P.W. tried to intervene, he was given hatchet blow on his head by Hakeem, acquitted accused. The other co‑accused namely Khuda Bakhsh, Sarwar, Ghulam Ali and Ghulam Hussain also gave injuries with their respective weapons to Khadim Hussain. The appellant and his co‑accused made good their escape taking the weapons with them. Abdul Razzaq succumbed to the injury on the spot.

6. Dr. Zuliiqar Ali P.W.12 conducted post‑mortem examination on the dead body of Abdul Razzaq. He found following injury on his person.

"There was no mark of ligature on the neck except an incised wound running transversely 7 x 2 c.m. at the root of the right side of the neck extending from right side‑of the neck to the back of the mid of the neck. All the muscles, right common carotid artery, right side of the vertebra at the left was cut in the line of the wound."

In his opinion, the death was due to shock and excessive haemorrhage as a result of the injury found on the person of the deceased. The injury was caused by sharp‑edged weapon and was sufficient to cause death in the ordinary course of nature.

The doctor also examined Khadim Hussain P.W. and found the following injuries:‑

"(1) An incised wound 1 x c.m. bone deep at the root of the nose.

(2) An incised wound 2 x c.m. x skin deep at the palmer side of the distal phalanx of left thumb.

(3) Two contused swellings 10 x 2 c.m. parallel to each other running horizontal on the right side of back of chest 3 c.m. equal to midline.

(4) A contused swelling 5 x 1 c.m. on the left side of the back of the lower thorax."

Injuries Nos. 1 and 2 were caused with sharp‑edged weapon and the rest with blunt weapon. Injury No.1 which was on the nose was declared grievous and the rest were simple.

Dr. Muhammad Sher Zaman P.W.1 medically examined Ghulam Hussain. He found following injuries on his person:‑

"(1) An incised bleeding wound 5 x 2 x 3 c.m. at the back and top of the mid of head. This wound was transverse in direction.

(2) An abrasion 5 x 1 c.m. at the back of right fore‑arm.

(3) A redish contused swelling 5 x 5 c.m. on the outer part of thigh."

Injury No. 1 was caused by sharp‑edged weapon and the rest with blunt weapon. All the injuries were declared simple.

7. The appellant was arrested on 3‑3‑1986 by Madad Hussain A.S.I. P.W.11. On 9‑3‑1986, he led to the recovery of blood‑stained hatchet Exh.P.7 from the house of the appellant which was taken into possession vide memo. Exh.P.F. by Riaz Hussain P.W.6 and Muhammad Ramzan (not produced). The Serologist's Report Exh.P.V. reveals that the hatchet was stained with human blood.

8. To prove its case, prosecution examined 12 witnesses. Muhammad Nawaz P.W.4, Khadim Hussain P.W.8 Abdul Hadi P.W. 9 appeared as eye‑witnesses of the occurrence. They claim to have seen the appellant giving hatchet blow to the deceased and his co‑accused causing injuries to Khadim Hussain P.W. Muhammad Nawaz also supported the alleged motive. Riaz Hussain P.W.6 and Madad Hussain S.I. P.W.11 supported the recovery of blood‑stained hatchet Exh.P.7 from the appellant. The rest of the evidence is more or less of formal nature.

9. When examined under section 342, Cr.P.C. the accused other than the appellant and Ghulam Hussain, acquitted accused, denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. The appellant and Ghulam Hussain, acquitted accused, however, raised the plea of self‑defence. In reply to Question No.10, 'Why this case against you?', Rahim Bakhsh appellant stated:‑

"The P.Ws. are related to the deceased and have deposed falsely due to enmity. I have been involved because Abdul Razzaq deceased and Khadim Hussain P.W. had trespassed into the house of Ghulam Hussain and caused hatchet and Dang blows to him. The police got Abdul Hakeem discharged."

Ghulam Hussain accused almost made similar statement.

10. The learned trial Court while disbelieving the prosecution case and its evidence has convicted the appellant on his own statement for having exceeded the right of self‑defence of person and has convicted and sentenced him as stated above.

11. Learned counsel for the appellant contended that the prosecution evidence has totally been disbelieved; that the trial Court in its judgment has observed that the deceased was aggressor; that the deceased had opened the attack and had given hatchet blow on the person of Ghulam Hussain, father of the appellant and thereafter the appellant gave solitary blow to deceased in order to defend his father. Learned counsel for the State has supported the judgment of the trial Court.

12. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that the trial Court has totally disbelieved the prosecution evidence and has based the conviction on the statement of the appellant, which has not been accepted as a whole; that although the trial Court was of the view that the deceased after having made preparation committed trespass into the house of the appellant and initiated attack by inflicting injury on the head of Ghulam Hussain co‑accused and thereafter in order to save his father, the appellant gave one blow to the deceased, yet has convicted and sentenced the appellant under section 304, Part I, P.P.C. for having exceeded the right of self‑defence. I am afraid that the statement made by the accused/appellant, and the observation made by the trial Court if accepted at its face value, no case of exceeding right of self‑defence is made out. I am of the view that in the circumstances of the case which have been believed by the trial Court, the accused was well within his right to cause death of the deceased under section 100, P.P.C.

The upshot of the above discussion is, that there being no satisfactory basis to uphold the conviction and sentence of the appellant, while giving benefit of doubt, he is acquitted of the charge.

He shall be released forthwith, if not required to be detained in any other case.

S. A./R‑96/L Appeal accepted.