ZAHID HUSSAIN Versus THE STATE
MUHAMMAD MUNIR KHAN, J. ‑‑This Criminal Appeal No. 140 of 1985 and the connected Murder Reference No. 103 of 1985 arise from the judgment of the learned Additional Sessions Judge, Faisalabad whereby he on 18‑2‑1985 while acquitting Muhammad Younas, Muhammad Aslam and Muhammad Ayub co‑accused convicted Zahid Hussain (17) under section 302, P.P.C. for the murder of Muhammad Hayat (70172) and sentenced him to death and a fine of Rs.10,000 or in default thereof to further R.I. for one year. It was directed that the fine, if realized, half of it be paid to the legal heirs of the deceased.
2. The occurrence took place on 26 6‑1983 at 4‑30 p.m. in Chak No. 102/JB. Mandi Burj at a distance of seven miles from the Police Station Chak Jhumra. F.I.R. is statement Exh. P.D. of Farooq Hussain P. W. 6, the grandson of Muhammad Hayat deceased which was recorded by Javed Feroze, S.I. P.W. 12 on the same day at 6‑30 p.m. near Khichian More. 'The distance between Khichian More and the spot is 4/5 miles. Formal F.I.R. Exh. P.B. was drawn up by Ismat Ullah Head Clerk P. W. 3 on the same day at 7‑15 p.m.
3. The motive, alleged by the prosecution was that about 2 months before the occurrence, Aslam and Younas co‑accused and Nazir launched attack on Ghulam Qadir P.W.8 son of the deceased and fractured his leg. A case under section 307/325, P.P.C. was registered against them which was pending adjudication before the trial Court at the time of occurrence. The relations of the parties were strained on account of this incident. The immediate motive and cause of attack was exchange of rebukes and Sota blows between Farooq Hussain complainant son of Ghulam Qadir P.W. 8 and Zahid Hussain appellant over a taunt by Zahid Hussain.
4. As for the main occurrence, it has been stated that at the eventful time, Ghulam Qadir P.W. 8 and Abdul Ghani P.W. (not produced) were present in the shop of Safdar. Farooq complainant and Muhammad Hayat deceased were standing near the door of the shop. Nawab P.W. had also arrived there. In the meantime Zahid appellant who is maternal‑grandson of Nazeer one of the assailants of Ghulam Qadir who had broken his leg, came there and sarcastically told Farooq Hussain complainant that they had broken the leg of his father and he walks like a lame man. Farooq Hussain expressed annoyance. Zahid Hussain then rebuked him and also gave him Sota blow. In the meantime, Mst. Sarwari maternal‑aunt of Zahid Hussain arrived there. Farooq Hussain in retaliation inflicted blow with a bamboo stick which hit Zahid Hussain appellant as well as Mst. Sarwari. Thereafter Zahid Hussain and Mst. Sarwari went to their house and after a few minutes Zahid Hussain appellant, armed with gun, Younas armed with gun, Aslam with Berchha and Muhammad Ayub with Sota came out of the house. Zahid Hussain fired shot from his gun at Farooq Hussain which missed the target and instead hit on the front of chest of Muhammad Hayat who fell down and expired on the spot. Zahid Hussain appellant and his co‑accused ran away to their houses taking weapons with them.
5. On 27‑6‑1983 Dr. Iftikhar Ahmad Paracha conducted post‑mortem examination on the dead body of Muhammad Hayat and found following injuries:‑‑---
(1) An oval fire‑arm wound 1 c.m. x 1 c.m. on front right chest 3 c.m. from right nipple at 2 o'clock position with inverted margin which was blackened.
(2) An oval fire‑arm wound 2 c.m. x 1 c.m. x 3 c.m. from No. 1 with inverted margin 6 c.m. from right nipple.
(3) An oval fire‑arm wound 1 c.m. x 1 c.m. on left side chest with inverted black margin 7 c. m. from injury No. 2 and left nipple.
(4) A fire‑arm wound 2 c.m. x 1 c.m. on front right chest 5 c.m. from right nipple at 10 o'clock position inverted black margin.
(5) An exit wound to injury No. 4, 2 c. m. from injury No. 4 with averted margin 1 c.m. x 2 c.m.
(6) An oval fire‑arm wound with black inverted margin 1 c.m. x 1 c.m. x 5 c.m. from right nipple and 2 c.m. from injury No. 4.
(7) An oval fire‑arm wound with black inverted margin 1 c.m. x 1 c.m., 1 c.m. from and above injury No. 6.
(8) A fire‑arm wound on middle front chest at 2 o'clock position and 10 c. m. from right nipple with inverted margin.
(9) An oval fire‑arm wound with inverted black margin 1 c.m. x 1 c.m. on left manubruo‑clavicular joint.
(10) Three fire‑arm wounds 2 c.m. and 3 c.m. from each other in right axilla with exit from injury number three on back of upper end of right arm and lower area of right shoulder.
On internal examination walls, pleura, right lung, left lung, aorta were found injured. The stomach contained two ounces fluid. Right fifth rib, third rib right third rib and right first rib were found fractured. One pellet was recovered from chest cavity.
In his opinion, the death was on account of shock and haemorrhage due to the injuries found on the person of the deceased which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire‑arm. The death was immediate and the time between death and post‑mortem was 15 hours. In cross‑examination, the doctor stated that there was no blackening around the wound. The shots were fired from a distance of more than 10 feet. He further stated that in the instant case the shot might have been fired from a distance of about 20 feet.
6. On 26‑8‑1983 Javed Feroze S.I. P.W. 12 lifted crime empty Exh. P.5 from the place of occurrence vide Memo. Exh. P.E. attested by Farooq Hussain P.W. 6 and Muhammad (not produced). The recovery Memo was prepared by Javed Feroze, S.I. P.W. 12.
7. On 29‑6‑1983, Zahid Hussain appellant was arrested by Abdul Ali, S.I. P.W.
5. On 1‑7‑1983 he led to the recovery of gun P.4 (the licensed gun of his maternal‑uncle Muhammad Bashir) from his house which was taken into possession vide memo. P.C. attested by Muhammad Ali P.W. 4 and Muhammad Akram (not produced). The recovery was effected by Abdul Ali Shah, S.I. P.W.
5. It may be noted here that no report of Forensic Science Laboratory has been tendered. The trial Court has not relied on the recovery of gun P.4 from the appellant.
8. To prove its case, the prosecution produced 12 witnesses in all. Farooq Hussain P.W. 6, Nawab Din P.W. 7 and Ghulam Qadir P.W.8 have given the ocular account of the occurrence. They claimed to have seen Zahid Hussain appellant firing fatal shot hitting Muhammad Hayat. They supported the prosecution version of the main occurrence. Farooq Hussain P.W.6. Ghulam Qadir P.W. 8 also deposed about the background of the occurrence and also the immediate cause of attack by Zahid. Hussain and his co‑accused resulting in the death of Muhammad Hayat. Farooq Hussain P.W. 6 is the grandson of the deceased and father of Farooq Hussain complainant. Nawab Din P.W. 7 is an independent witness. He is neither related to the deceased nor inimical towards the appellant or the acquitted accused. Dr. Iftikhar Ahmad Piracha P.W. 11 has proved the post‑mortem examination report. Muhammad Ali P.W. 4 and Abdul Ali Shah P.W. 5 stated that gun P.4 was recovered on the pointation of Zahid Hussain appellant. Farooq Hussain P.W. 6 and Javed Feroze P.W. 12 have proved the F.I.R. Exh. P.D. and have also supported the recovery of crime empty P.5 from the spot. The rest of the evidence is more or less of formal nature.
9. When examined under section 342 Cr.P.C. the appellant denied all the incriminating circumstances. He raised the plea of self‑defence. In reply to question No. 10 he stated:‑‑
"My father was a Bank Manager. We have built a house at Jhal Khaniwala, `Faisalabad and lived there. My father died long ago. I am the eldest son and was the student of 10th Class in Rehmania High School, Faisalabad during the days of occurrence. On 26‑6‑1983 I had gone to see my maternal relatives in Chak No. 102/J.B. At the time of occurrence I and Mst. Sarwari were present in the house I heard an alarm and came out of the house and saw that Farooq, Zulfiqar, Nazir and Muhammad Hayat deceased armed with hatchet and Dangs were assaulting Mst. Asghari. I ran forward to save her. I was also belaboured by the above persons. When I and Mst. Asghari were being given blows, Mst. Sarwari took out licensed gun of Bashir Ahmad my maternal‑uncle and with it fired in our defence hitting Muhammad Hayat deceased. I and Mst. Asghari were medically examined."
The three co‑accused stated that they were not present on the spot and were falsely involved due to previous enmity with the complainant party. The appellant produced Dr. Muhammad Ajmal Khan D.W. 1 in his defence. He stated that he had examined Mst. Asghari on 27‑6‑1983 at 10 p.m. and found following injuries on her person:‑‑
(1) A lacerated wound 3 c.m. x 1 c.m. into bone deep on the middle front top of head over hair margin.
(2) An incised wound 4 c.m. x 3‑3/4 c.m. into bone deep across the back inner part of left hand with fracture of bone underneath crepitus was present.
(3) An incisea wound 1 c.m. x 1/2 c.m. muscle deep above injury No. 2."
Injury No. 2 was grievous in nature. Injuries Nos. 2 and 3 were caused by the sharp‑edged weapon whereas injury No. 1 was caused by the blunt weapon. All the injuries were caused within about 30 to 36 hours of the examination.
10. On the same day, he examined Zahid Ali appellant and found following injuries on his person:‑‑---
(1) A lacerated wound 3 c.m. x c.m. sculp deep on the top of head.
(2) A contused swelling 2 c.m. x 2 c.m. on back of head.
The injuries were caused by the blunt weapon and were within 30 to 36 hours of the examination. The injuries were simple. Mst. Asghari appeared as D.W.
2. She stated that at the eventful time when she alongwith Zahid Hussain appellant reached near the shop of Safdar. She saw Muhammad Hayat deceased, Farooq Hussain P.W. 6, Zulfiqar and Qadir standing in front of the shop. Farooq Hussain was armed with hatchet and others were carrying Dangs. Zulfiqar abused her and also made objectionable remarks against her, whereupon she protested. On this Zulfiqar gave Lathi blow on her forehead. Farooq Hussain gave hatchet blow on her left hand. Zahid Hussain appellant tried to rescue her but the complainant started giving him Dang blows. In the meantime Mst. Sarwari, her younger sister came there armed with a gun and fired shot to defend them which hit Muhammad Hayat deceased who fell down on the ground and died. She got herself medically examined on the next day.
11. Learned trial Court while believing the alleged motive and the ocular evidence and disbelieving the plea of self‑defence raised by Zahid Hussain appellant and the defence evidence as well has convicted and sentenced the appellant as stated above. The trial Court acquitted Muhammad Younas, Muhammad Aslam and Muhammad Ayub co‑accused on the ground that they were declared innocent during investigation and their names were placed in Column No. 2 of the challan; that no overt act was attributed to them and as such the provisions of section 34, P.P.C. are not attracted; that they had not inflicted any injury to the deceased and their names were rightly placed in Column No. 2 of challan.
12. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt and there is a reasonable possibility of the defence version of the self‑defence raised by the appellant being true. He argued that the F.I.R. was recorded on the spot after preliminary investigation; that Farooq Hussain and Ghulam Qadir P.Ws are related to the deceased; that Nawab Din P.W. is a chance witness and is also not reliable in the sense that he did not explain the injuries of Mst. Asghari D.W. and that from the circumstances of the case it is very much obvious that the occurrence took place in the manner as stated by the appellant. Learned counsel for the State has supported the judgment of the trial Court.
12‑A . We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements made by the appellant and his co‑accused under section 342 Cr.P.C., the defence evidence and the circumstances appearing in the case, with care. Since it is a case of two versions, so keeping in mind the guiding principles for appreciation of evidence on such like cases, we propose to examine prosecution case and its evidence more particularly the ocular evidence, first in order to arrive at independent conclusion as to the truth of the prosecution case and the credibility of the three eye‑witnessess. We find that the occurrence took place on 26‑6‑1983 at 4‑30 p.m. and the F.I.R. was recorded on the same day at 6‑30 p.m. i.e. after two hours. The F.I.R. contains the names of the/ eye‑witnesses, names of the accused, the weapons carried by them, the part played by them and the manner in which the occurrence took place. In the F.I.R. it has also been stated that Zahid Hussain appellant and Mst. Sarwari had received injuries at the time of occurrence at the hands of Farooq Hussain complainant. There is' nothing in the evidence to show that the F .I. R. was in fact recorded, after the preliminary investigation. The promtitude with which the F.I.R. was lodged, excludes the possibilities of consultation, deliberations and procurement of false witnesses. This genuine F.I.R. lends support to the statement of its maker i.e. Farooq Hussain complainant made by him at the trial.
12‑B. Adverting to the statement of Farooq Hussain PW.6, Nawab Din PW.7 and Ghulam Qadir PW.8, we find that the names of these witnesses are mentioned in the promtly lodged F.I.R. No doubt Farooq Hussain PW.6 being grandson and Ghulam Qadir PW.8 being son of the deceased are closely related to him but their statements cannot be discarded on the grounds of mere relationship. Nawab Din PW.7 is neither related to the deceased nor was inimical towards the appellant and co‑accused. He has given plausible explanation of his, presence on the spot at the time of occurrence. He has successfully faced the test of cross‑examination. The statement made by him is in consonance with the probabilities and materially fits in with the rest of the evidence. He has not suppressed the injuries received by Zahid Hussain appellant and woman during the occurrence. He frankly stated that he did not know the name of the lady who had suffered injuries during the occurrence. Since it is doubtful that Mst. Asghari had really received injuries during the occurrence, therefore, it cannot be said that he had suppressed her injuries. Dr. Muhammad Ajma Khan DW.1 has been produced to prove medico‑legal report of Mst. Asghari. He stated that Ex. DC is the attested photostat of his medico‑legal report pertaining to the injury of Mst. Asghari. Strangely enough Ex. DC does not bear thumb‑impression of Mst. Asghari. This document shows that the lady who was examined by the doctor was aged 45 years, whereas age given by Mst. Asghari at the time of her examination before the Court was 30 years. Mst. Asghari was not identified by the doctor at the time of her examination as DW.2. She was not present in the Court when statement of the doctor was recorded and as such it cannot be said with certainty that the lady who was examined by the doctor Muhammad Ajmal Khan DW.1 was Mst. Asghari and nobody else. We have been very much impressed by the straightforward manner in which Nawab Din PW.7 made statement in the Court. He could easily say that the name of woman who had suffered injuries during the occurrence was Mst. Asghari. He stated that the police had told the complainant on the spot that it will register the case according to the true facts and on his oath the police recorded his statement. Had he been a tutored witness or had he any inclination towards the complainant party, he would not have stated so. This shows that he gave evidence with a motive to tell the truth. He categorically stated that Muhammad Hayat had died by the shot fired by Zahid Hussain appellant. He refuted the defence version. He did not accept the suggestion that Mst. Asghari was coming to her house from the Railway side when on the way she was attacked by Farooq Hussain complainant and Hayat deceased. Zulfiqar and Nazeer who were armed with hatchets and dangs and that when Zahid Hussain appellant tried to rescue her, he was also assaulted by Farooq Hussain and others and thereafter Mst. Sarwari in order to defend Zahid Hussain and Mst. Asghari, fired shot which hit the deceased. Nawab Din PW.7 seems to be absolutely dependable and confidence inspiring witness. He has confirmed the presence of Mushtaq Hussain PW.6 and Ghulam Qadir PW.8 on the spot. The presence of. Mushtaq Hussain PW .6 has also been admitted by the appellant in his, statement recorded under section 342, Cr.P.C. They have faced the test of 'cross‑examination successfully. In cross‑examination their veracity and integrity remained intact. The statements made by them do not suffer from infirmities such as material contradictions, major discrepancies and dishonest improvements. Since the three eye‑witnesses had not assigned any active part to the three‑accused therefore, their acquittal does not adversely affect their credibility. For all these reasons we are of the view that the statements made by the three eye‑witnesses cannot be discarded.
13. Taking up the defence version of the occurrence given by Zahid Hussain appellant in his statement recorded under section 342 Cr.P.C. and deposed by Mst. Asghari DW.2, we proceed to examine the two rival cases placing them in juxtaposition and will review the entire evidence and the circumstances at the close to arrive at a conclusion regarding the truth and falsity of the plea of self‑defence and will estimate its total effect in relation to two questions viz. (i) Is plea of Zahid Hussain appellant satisfactorily established by the evidence and the medical report in the case? (ii) If the answer be in the negative, is there yet a reasonable possibility that the plea of self‑defence raised by the appellant might be true so as to caste reasonable doubt upon the prosecution case?
In his statement recorded under section 342 Cr.P.C. the appellant stated that at the eventful time, he and Mst. Sarwari were present in the house of his maternal relatives Chak No.102 J.B. On hearing an alarm he came out of the house and saw that Farooq Hussain complainant Muhammad Hayat deceased, Zulfiqar and Nazeer armed with hatchets and dangs, were assaulting Mst. Asghari his maternal‑aunt. When he interfered to save her, he was also belaboured by the deceased, complainant and their companion. It was 'at this juncture that Mst. Sarwari arrived there armed with a licensed gun of Bashir Ahmad and in order to defend them she fired shot which hit Muhammad Hayat deceased. To prove his version of the occurrence, he produced Mst. Asghari DW.2 in defence. But she narrated a different story. She stated that just before the occurrence, she and Zahid Hussain appellant were going to her house in Chak No.102/JB and were assaulted by Muhammad Hayat deceased, Farooq Hussain complainant, Zulfiqar and Nazeer on the way. On hearing the noise, her younger sister Mst. Sarwari arrived on the spot with a gun in her has and in order to defend them, she fired shot which hit the deceased. We have already disbelieved the factum of Mst. Asghari having received injuries in the occurrence. It is worth notice that in cross‑examination it was suggested to Farooq Hussain PW.6:‑---
"Is it correct that when he and Zahid Hussain exchanged rebukes and blows, Zahid Hussain went to his house, came armed with a gum and fired a gun shot."
The suggestion was accepted by the witness and he stated:‑
"It is correct that when I and Zahid Hussain exchanged rebukes and blows, Zahid went to his house came armed with a gun and tired a gun shot."
The aforesaid suggestion given by the learned defence counsel to Farooq Hussain PW.6 excludes the possibility of Mst. Sarwari having fired any shot in self‑defence. It is well settled that the plea o defence can be inferred not only from the statement of the accused recorded under section 342 Cr.P.C. but also from the trend o cross‑examination of the prosecution witnesses and also from the arguments of defence counsel at the close of the trial. It is thus very much obvious that the appellant has taken contradictor, stands which do not and cannot reconcile. The manner of the occurrence as told by Mst. Asghari DW.2 is altogether different from the manner of occurrence stated by Zahid Hussain in his statement under section 342 Cr.P.C. Mst. Sarwari the real aunt of Zahid Hussain appellant who had fired shot in defence of Zahid Hussain appellant has not been produced in the Court. For all these reasons, we are of the view that neither the plea of the appellant has satisfactorily been established by the evidence and circumstances appearing in the case nor there is a reasonable possibility of its being true. On our independent assessment of the evidence on record and circumstances appearing in the case, we are convinced that the occurrence took place in the manner as stated by the prosecution and that Muhammad Hayat died at the' hands of the appellant and not with the shot fired by Mst. Sarwari.
14. Now we proceed to determine the criminal liability of Zahid Hussain appellant. In the peculiar circumstances of the case, we feel that the act of killing of Muhammad Hayat deceased does not amount to murder but was culpable homicide not amounting to murder. Zahid Hussain had no motive against Muhammad Hayat deceased; that h came across with Farooq Hussain complainant all of a sudden; that there was exchange of rebukes and Dangs blows between Zahid Hussain and Farooq Hussain immediately before the killing of the deceased; that Zahid Hussain did not fire at Muhammad Hayat deceased. He fact fired at Farooq Hussain which missed target and hitting. Muhammad Hayat resulting in his death and that according to the prosecution case, Farooq Hussain had inflicted bamboo stick blow on Zahid which had also hit Mst. Sarwari aunt of the appellant.
15. The upshot of the above discussion is that the appeal is partly accepted. The conviction and sentence of Zahid Hussain appellant under section 302, P.P.C. is set aside. Instead he is convicted under section 304 Part II, P.P.C. and sentenced to 10 years' R.I. and a fine of lts.10,000 in default thereof one year's R.I. The amount of fine if realised will be paid to the legal heirs of the deceased.
Death sentence is not confirmed.
M.Y.HJZ‑40/L Appeal partly accepted.