MUHAMMAD ASHRAF Versus STATE
The appellant Sabir and his father Nazeer Ahmed were tried by an Additional Sessions Judge, Sialkot on two counts under section 302 read with section 34 of the Pakistan Penal Code for having caused the murders of Abdul Ghani and Arif Mehmood.
2. Vide judgment dated 18‑12‑1984, the learned Additional Sessions Judge acquitted Nazeer Ahmed of the charge but found the appellant guilty on both the counts and thus, the appellant was convicted and sentenced to death and to pay a fine of Rs.10,000 or m default of the payment of fine to suffer simple imprisonment for two years. It was further directed that out of the recovery of fine, half of it, shall be paid to the legal heirs of the deceased under section 544‑A, Cr.P.C. The appellant was also directed to pay another sum of Rs.10,000 as compensation to the legal heirs of the deceased, or in default of its payment, to suffer another term of six months' simple imprisonment. The simple imprisonment in default of the payment of compensation was ordered to run consecutively with the imprisonment awarded in default of the payment of fine.
3. Aggrieved by his conviction, the appellant has preferred an appeal (Criminal Appeal No. 711 of 1984) and the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeal as well as the reference.
4. The unfortunate occurrence resulting into the death of Abdul Ghani and Arif Mahmood took place on 3‑5‑1984 in the lane known as Maulvi Ibrahim Street near the house of the deceased situated at a distance of one furlong from the Police Station City Sialkot. On the receipt of the information about the occurrence Zakir Hussain A.S.I. P.W.19, Police Post `A' Division, Sialkot reached Allama Iqbal Memorial Hospital, Sialkot, where the injured had been removed. Zakir Hussain, A.S.I. P.W.19, sought opinion of the doctor Arshad Ali, P.W.1, about the fitness of both the injured to record their statements vide report Exh.P.E./1. The doctor declared Abdul Ghani injured fit to make a statement. Accordingly, Zakir Hussain A.S.I. P.W.19, recorded the statement Exh. P.J. of Abdul Ghani deceased in the hospital at 8‑50 p.m. and sent the said statement to the police station for the registration of a case. On the basis of the aforesaid statement formal F.I.R. Exh.P.J./1 was drawn at the police station at 9‑15 p.m. by Mehmood Khan A.S.I., P.W.8.
5. In brief, the prosecution case as disclosed by Abdul Ghani (deceased), in his statement, Exh. P.J. made in the hospital which also became the dying declaration, was that the deceased Abdul Ghani was a butcher by profession and was a resident of Lahai Bazar. On the fateful day at 4‑30 p.m. the son of Abdul Ghani namely Tariq aged 10/11 years who was keeping pigeons as pets raised hue and cry on account of theft of pigeons suspected to have been stolen by the son of their neighbourer namely Zafar. Sabir a brother of Zafar abused Tariq son of Abdul Ghani and also threw brick bats. At 7‑30 p.m. on the same day, Abdul Ghani and his son Arif Mehmood complained about the theft of pigeons and the conduct of War to his father Nazeer Ahmad and his elder brother Sabir. It was stated by Abdul Ghana that on hearing the complainant, both' Nazeer and Sabir were infuriated and started abusing Abdul Ghani which led to the exchange of hot words. After a short while, Nazeer and Sabir, both armed with Chhuris came in front of the house of Abdul Ghani and started abusing, whereupon, Abdul Ghani and his son Arif came out of the house in the street. Both Sabir and Nazeer pounced upon Abdul Ghani and his son Arif. Sabir inflicted a Chhuri blow on the right hand of Arif Mehmood and then repeated another Chhuri blow hitting the abdomen of Arif Mehmood, Nazeer Ahmad, one after the other inflicted two blows on the chest of Abdul Ghani. Hue and cry was raised, whereupon, another son of Abdul Ghani namely Abdul Haq, wife of the complainant Abdul Ghani namely Iqbal Begum, Muhammad Ehsan and Muhammad Younus residents of Mohallah Sarai Bhabrian reached the scene of occurrence. Both Nazeer and Sabir threatened the eye‑witnesses that if anybody intervened, he would also be killed and then after brandishing their Chhuris, they disappeared from the scene of occurrence.
6. The deceased Arif Mehmood succumbed to his injuries and thus on 4 th of May, 1984, Dr. Arshad Ali P.W. 1, M.O. Allama Iqbal Memorial Hospital, Sialkot conducted the post‑mortem examination on the dead body. of Arif Mehmood and the following injuries were noticed:‑
"(1) Incised wound 2" x 1" in the right flank of abdomen at the level of umbilicus. Intestines were lying outside.
(2) Incised wound 1" x 1/4" x bone deep on radial side of right wrist."
In the opinion of the doctor, both injuries were caused by a sharp‑edged weapon. Injury No.1 was grievous and dangerous to life while the injury No.2 was simple. The death had occurred due to shock and haemorrhage on account of injury No.1, which was sufficient to cause death in the ordinary course of nature.
7. Dr. Arshad Ali, M.O., P.W.1, also examined Abdul Ghani deceased in the hospital when he was alive on 3rd of May, 1984 and noticed the following injuries on his person:‑
(1) Incised wound one 1‑1/4" x 1/4" depth not probed on left side of chest interiorly near midline 3‑1/2 medial and slightly below the left nipple.
(2) Incised wound 1" x 1/4" x depth not probed on left lateral side of chest in its lower part.
After the expiry of Abdul Ghani, on 20‑5‑1984 at 11‑30 a.m., P.W.2 Dr. Muhammad Saleem, M.O. Allama Iqbal Memorial Hospital, Sialkot conducted the post‑mortem examination on the dead body of Abdul Ghani and noticed the following injuries:‑
(1) An old incised wound 1‑1/2" x 1/4" x muscle deep anteriorly, near the midline three and half inches medial slightly below the level of left nipple.
(2) An old incised wound 1" x 1/4" x chest and abdominal cavity, deep obliquely downwards on the left lateral side of chest in lower part.
The doctor also found the internal injuries.
(1) Under injury No.2, skin, muscles, fascia were cut then penetrating through the last and second last left rib entering the chest cavity passing through the lowermost part of left lung obliquely, further penetrated the diaphragm and entered into the spine which is cut in its upper half.
In the opinion of the doctor, the death had occurred on account of excessive internal bleeding and injury to the peritonitis. The injury No.2 was grievous and dangerous to life and was sufficient to cause death in the ordinary course of nature. Both the injuries were opined to have been caused with a sharp -edged weapon.
8. The appellant Sabir was arrested by Zakir Hussian, A.S.I., P.W.19. On 14th of May, 1984, the appellant led the police to his residential house and got recovered blood‑stained Chhuri P.4 which was taken into possession vide memo. Exh. P.N. attested by' Muhammad Idrees, P.W.18, and Muhammad Yaseen (not produced) besides the Investigating Officer Zakir Hussain A.S.I., P.W.19. The Chhuri P.4 was sent to the Chemical Examiner and Serologist and was found to be stained with human blood.
9. To prove its case at the trial, the prosecution placed reliance upon the dying declaration Exh. P.J., the ocular testimony furnished by Abdul Haq, P.W.12, a brother of Abdul Ghani (deceased) and Iqbal Begum P.W.13 widow of Abdul Ghani (deceased) and Ehsan Khan P.W.14, a person from the brotherhood of the appellant. Reliance was also placed upon the recovery of Chhuri P.4 at the instance of the appellant.
10. When examined under section 342, Cr.P.C. the appellant pleaded the right of self‑defence and made the following statement:‑
"I am innocent: What actually happened was that at about 5‑00 or 5‑30 p.m. on the day of occurrence, my younger brother was falsely accused of the theft of pigeons and on this, an altercation took place between myself and the women-folks of the complainant side. Zafar was also slapped and abused by women-folks. I reacted sharply. Then at about 6‑30 or 7‑00 p.m. when I was present in my house and my father had not returned still from his work. Abdul Ghani deceased and his son Arif returned to their house and after learning of the previous incident started hurling abuses on me and my family members. I also replied. Both of them came out running from the house into the Gali in order to enter my house. Apprehending danger to me, I picked up Chhuri from my kitchen and came in the door of my house in the street. Arif deceased pounced upon me. I gave a single blow with the Chhuri in order to save my life. His father Abdul Ghani also tried to intervene and I inflicted injuries on his person as well just to save my life. I never intended to cause their deaths. Lots of persons from the Bazar and Gali had seen this occurrence. After the incident when I entered my house, my mother locked me in the room just to save me. Police came at night time and took me from that room. I handed over the Chhuri to the police at that time."
11. It was strenuously argued before us that the plea of self‑defence raised by the appellant was nearer the truth and the appellant had no other course of action to inflict blows on the person of Arif Mehmood and his father Abdul Ghani deceased. ‑It was further urged that the appellant had inflicted only one blow to Arif Mehmood deceased, although the medical evidence shows that the deceased Arif Mehmood had received two injuries. In this behalf, reliance was also placed upon the statement of the doctor, who in his cross‑examination stated that both the injuries on the person of Arif Mehmood could be the result of one blow.
12. We have carefully examined the plea of self‑defence raised by the appellant but we are unable to believe it; first of all this plea is belied by the site plan and the place of occurrence from where the blood‑stained earth was collected. According to the appellant, the occurrence had taken place inside his house when both the deceased rushed towards his house to attack him. If this statement is believed, then the occurrence would have taken place inside the house of the appellant and not in the street. Furthermore, the law would not allow the appellant to act in the manner in which he acted because both the deceased were empty‑handed and, therefore, apprehension of grievous injury or death to be suffered by the appellant had no bass. In this view of the matter, we reject the plea of self‑defence raised by the appellant.
13. It was next contended before us that the ocular testimony in this case consisted of the statements of close relatives and, therefore, the same could not be relied upon. It was further argued that even if the statements of Abdul Haq P.W.12 and lqbal Begum P.W.13 were believed even then, the same stand was belied by the statement of Ehsan Khan, P.W.14 who had been prefabricating and had not supported the prosecution case. We have considered this aspect very carefully and we are of the view that the statement of Ehsan Khan, P.W.14, does not in any manner damage the statements of Abdul Haq P.W.12 and Iqbal Begum P.W.13, the brother and the widow of the deceased Abdul Ghani respectively. As far as Abdul Haq, P.W.12 and Iqbal Begum P.W.13 are concerned, they are the inmates of the house are natural witnesses and on C hearing the hue and cry being raised in front of the house had come out of the house and seen the occurrence and their presence at the spot cannot be doubted. We are not prepared to believe that these witnesses would implicate the appellant falsely or would substitute him or would allow the real culprit to go scot‑free.
14. It may be stated here that the defence case from the beginning shows that the acquitted co‑accused Nazeer Ahmed had not participated in the occurrence. Ehsan Khan P.W.14 also deposed to the effect that some Punchayats were convened in which, an effort was made not to involve innocent person. To further substantiate such plea on behalf of the acquitted accused Nazeer Ahmed, two defence witnesses had also entered the witness‑box to state that only the appellant Sabir had committed the offence. This plea alongwith other circumstances found favour with the learned trial Judge who opined that the case of the prosecution against the acquitted co‑accused Nazeer Ahmad was not free from doubt and that is why, his acquittal was recorded.
15. The crucial question arising in this case is whether such defence plea raised and having found favour with the Additional Sessions Judge would affect the case qua the appellant. Our answer to this question is in negative. Ehsan Khan, P.W.14 was not declared hostile and is a relation of the appellant and thus, his testimony qua the appellant cannot be easily brushed aside coupled with the role assigned to the appellant by two other eye‑witnesses whose presence at the spot cannot be doubted. An effort was made by the learned defence counsel to ' show that these two eye‑witnesses are unworthy of credit because Iqbal Begum D P.W.13 denied the convening of Punchayat, whereas, Abdul Haq P.W.12 had affirmed this fact. As it has already been observed that efforts were going on before the trial on the part, of the Brathri to prevail upon the complainant side not to depose against the innocent person and thus, on this score alone, we are unable to agree with the learned defence counsel that these eye‑witnesses had deposed falsely. In the absence of any background of enmity, we are of the view, that these witnesses had no motive to implicate the appellant falsely and thus, by no stretch of imagination, these witnesses can be branded as interested witnesses.,
16. We would like to further add here that the dying declaration Exh. P.J. stands corroborated by the ocular testimony. As far as the dying declaration is concerned, we are of the view that it was properly recorded and the same cannot be brushed aside. We are, further of the view that like other pieces of evidence, the dying declaration is also to be scrutinized to find out its inherent worth. Since E the principle of falsus in uno, falsus in omnibus is not recognized principle in our Courts therefore, the grain has to be sifted from the chaff and even if the dying declaration to the extent of the acquitted accused is found to be unworthy of credit, the dying declaration cannot be brushed aside out of consideration. An effort was made before us to show that the dying declaration was not recorded properly, the time underneath Exh. P.J. had been interpolated but we have examined both the applications moved by Muhammad Idrees, P.W.18 to find out the state of patients and on both the applications, the time mentioned is 8‑30 p.m. No doubt, that on Exh. P.J. a correction has been made but when considered with other application, we are of the view, that there is nothing wrong with the dying declaration and the same cannot be considered to have been fabricated. Therefore, the plea raised by the defence with regard to the dying declaration is also hereby repelled.
17. After careful consideration of all the facts of the case, we are of the view that the appellant Sabir cannot be burdened with the liability for the murder of Abdul Ghani deceased, as even according to the prosecution, the appellant had not played any role, in causing his death. Abdul Ghani, himself, lodging F.I.R., during life time, had also assigned all the injuries suffered by him to Nazeer Ahmed co‑accused. In this view of the matter, we hold the appellant only guilty on a single charge for the murder of Arif Mehmood, deceased. Hence, we find that the prosecution has proved its case beyond any shadow of doubt against the appellant qua the murder of Arif Mehmood, deceased. Accordingly, we find no meats in this appeal and the same is hereby dismissed. Death sentence awarded i to the appellant is confirmed. Death sentence awarded to the appellant for the murder of Abdul Ghani deceased is set aside. Reference is disposed of accordingly.
M.Y.H./S‑469/L Appeal dismissed.