NAZAR HUSSAIN Versus STATE

CH. GHULAM SARWAR, J: -- Nazar Hussain (40), Talib Hussain (25) and Ghulam Hussain (30) were tried by the learned Additional Sessions Judge, Multan for having committed the murder of Allah Ditta son of Sardar Muhammad deceased on $-5-1988 at 5 p.m. in an open field of Village Mubarikpur situated at a distance of seven miles from Police Station Basti Malook, District Multan.

Vide judgment, dated 31-7-1989 Nazar Hussain appellant was convicted under section 302/34, P.P.C. and was sentenced to death with a fine of Rs.15,000. In default of payment of that to further undergo two years' R.I. He was also ordered to pay Rs.15,000 as compensation under section 544-A, Cr.P.C. to heirs of the deceased and in default to undergo six months' R.I.

Talib Hussain appellant was convicted under section 302/34, P.P.C. and was sentenced to life imprisonment with a fine of Rs.10,000 and in default to undergo R.I. for two years. He was directed to pay Rs.10,000 as envisaged under section 544-A, Cr.P.C. as compensation to the legal heirs of Allah Ditta deceased or in default to suffer six months' R.I.

Ghulam Hussain accused was acquitted vide the same judgment.

2. Criminal Appeal.No.196 of 1989 filed by the appellants, Criminal Revision No. 117 of 1989 filed by the complainant for the enhancement of sentence and Murder Reference No. 197 of 1989 made by the learned trial Judge for confirmation of death sentence are being disposed of together.

3. F.I.R. Exh.P.L. was registered at Police Station Basti Malook by Muhammad Nawaz, S.I. P.W.10 at the statement of Muhammad -Amin P.W.8 on 8-5-1988 at 10-05 p.m.

According to the F.I.R. Muhammad Amin P.W.8 was present in his fields when Karam Hussain P.W.9 and Allah Ditta deceased both real brothers of the complainant were cutting Burseen from Square No.40 of Killa No.12. Talib Hussain, appellant brought his goats in the Burseen crops which started grazing the same. Karam Hussain, P.W. restrained him; upon which some altercation between him and Talib Hussain appellant took place. They also grappled with each other, after the exchange of abuses. Karam Hussain brother of the complainant gave a slap to Talib Hussain. Talib Hussain, appellant then rushed towards his house immediately. After about half an hour Nazar Hussain, appellant, armed with Kassi, Talib Hussain armed with hatchet and Ghulam Hussain empty-handed reached there while raising Lalkaras. Ghulam Hussain accused raised Lalkara to the effect that Karam Hussain and Allah Ditta brothers, be done to death and their graves be made there. Karam Hussain and Allah Ditta raised alarm, upon which Muhammad Amin complainant P.W.8, Muhammad Ashiq and Pir Bakhsh P.Ws. who were thrashing wheat in the nearby field reached at the spot. Upon their seeing, Ghulam Hussain caught hold of Allah Ditta from his both hands, whereas Nazar Hussain appellant inflicted two Kassi blows on the head of Allah Ditta deceased from its wrong side which landed on the right side of his head. Allah Ditta fell down on the ground, whereafter Talib Hussain appellant inflicted a hatchet blow from its wrong side on the head of the deceased. On their alarm many persons from the nearby locality were attracted to the scene. All the accused, after seeing the persons who came, fled away from the scene alongwith the weapons of offence. Allah Ditta deceased was taken in an injured and unconscious condition to Lar Hospital through a tractor-trolly. He was admitted there and was also medically examined. After sometime, Allah Ditta succumbed to the injuries in the said hospital. Leaving Muhammad Ashiq, brother of the complainant and Muhammad Ashiq son of Gaman in the Hospital, for the safeguard of the dead body Muhammad Amin, complainant reported the occurrence at the Police Station Basti Malook. He also produced the medico-legal report of Allah Ditta, before the police.

The motive behind the murder was stated that Nazar Hussain etc. the accused had murdered Allah Ditta, with their common intention due to restraining by the deceased from the damage of Burseen crops by the grazing of goats.

4. Muhammad Nawaz, Sub-Inspector P.W.10J while posted as Sub Inspector at Basti Malook on 8-5-1988 recorded the F.I.R. Exh.P.L. on the statement of Muhammad Amin P.W.8 and visited the Rural Dispensary Lar, where Allah Ditta had been admitted. He prepared his injury statement Exh.P.D. and inquest report Exh.P.G. He despatched the dead body to Nishtar Hospital, Multan for its post-mortem examination. The Investigating Officer visited the place of occurrence in the morning of 9-5-1988 and took into possession the blood-stained earth vide memo. Exh.P.G. after making it into a sealed parcel. A pair of shoes of Talib Hussain appellant P.5/2-1 was also secured by him vide memo. Exh.P.H. The S.I., also secured Chaddar P.2, shirt P.3 and Safa P.4 vide recovery memo. Exh.P.F. He prepared rough site plan Exh.P.M. and also got prepared the site plans Exhs.P.E., P.E./1 and P.E/2 from the Patwari.

He, arrested all the three accused on 11-5-1988. Talib Hussain appellant got recovered hatchet P.6 from his house on the same day and also produced his blood-stained clothes Chaddar P.7 and Shirt P.8 which were taken into possession vide recovery memo. Exh.P.K. Nazar Hussain appellant led to the recovery of blood-stained Kassi from his house which was secured vide recovery memo. Exh.PJ. This witness completed the investigation and challaned the appellants.

5. P.W.1 Dr. Fateh Muhammad, M.O. Rural Health Dispensary, Lar, medically examined Allah Ditta deceased on 8-5-1988 at 9-20 p.m. and found the following injuries on his person:--

(1) A contused wound 5-1/2 c.m. x 1-1/2 c.m. bone deep on head 9 c.m. from right ear.

(2) Contused wound 1 c.m. x 1-1/2 c.m. x bone deep on head 13 c.m. from right ear; and ,

(3) Contused wound 1 c.m. x 1/2 c.m. x bone deep on head 10 c.m. from right ear.

6. P.W.2 Dr. Aqeel Ahmad M.O., Civil Hospital, Multan on 9-5-1988 at 4-00 p.m. did the post-mortem examination on the dead body of Allah Ditta deceased. The dead body was brought to him by Riffat Hussain, Constable No.875 of Police Station Basti Malook. During the post-mortem examination, he observed the following:--

"It was a dead body of a young male, wearing shirt and Dhoti which was signed and handed over to the police. Post-mortem staining and rigor mortis was present. There was Patka on the head. Eyes and mouth were closed. Injuries were present on the dead body, according to medico-legal report No.46/88, dated 8-5-1988, written by the Medical Officer, Rural Dispensary, Lar, District Multan.

In the opinion of the doctor the cause of death was due to shock and intra cranial haemorrhage due to injuries mentioned in the medico-legal report No.46/88, dated 8-5-1988. All the injuries were ante-mortem and caused with blunt weapons. The injuries were sufficient to cause death in the ordinary course of nature, individually as well as collectively. Probable time between injuries and death was six hours whereas between death and post-mortem examination, thirty hours. Exh.P.B. is the copy of the post-mortem report. Exh.P.E./1 is the diagram showing the locale of the injuries.

7. In order to substantiate the charge the prosecution examined as many as ten witnesses in support of its case. P.W.1 and P.W.2 are the doctors who medically examined and did the post-mortem examination on the dead body of Allah Ditta deceased respectively. P.Ws3, 4, 5 and 6 are the formal witnesses; P.W.7 Abdul Qadir is the witness of recoveries, P.W.8 Muhammad Amin and P.W.9 Karam Hussain are the eye-witnesses of the occurrence whereas P.W.10 Muhammad Nawaz, S.I. is the Investigating Officer of this case. The learned Public Prosecutor tendered in evidence of the report of Chemical Examiner Exh.P.P. and that of Serologist Exh.P.Q. to prove the origin of the blood upon articles secured by the police from the place of occurrence.

8. When confronted with the prosecution evidence during their statements recorded under section 342, Cr.P.C. the appellants traversed the allegations of the prosecution and Nazar Hussain appellant admitted the occurrence but in the manner that he was coming with his four goats and when reached on the Khaal (water channel) Allah Ditta encircled his goats. He requested him not to take his goats, but he did not listen to him rather he assaulted him with a sickle which he had at that time. He had no way out but to save himself and his goats, and in exercise of the right of private defence of body and property, he gave Kassi blow from its wrong side, which unfortunately landed on his head. He did not repeat the blow. He stated that all happened due to sudden flare up and he had absolutely no intention to cause fatal blow but he acted just to ward off sickle blow of the deceased. He also stated that his brothers Ghulam Hussain and Talib Hussain were not with him nor any occurrence, half hour before the actual occurrence, ever took place. Regarding P.Ws. he stated that they were interested and told a lie to implicate his brothers. He stated that the police had come to the village on the following morning and concocted a false case. Actually he himself appeared before the police and produced Kassi P.1,

Nevertheless he opted to produce defence evidence but he declined to appear in his defence as envisaged under section 340(2), Cr.P.C.

Talib Hussain appellant and Ghulam Hussain accused while professing their innocence denied of having participated in the occurrence and nor they produced any defence evidence and even they did not opt to appear in disproof of the allegations levelled against them.

9. The learned counsel for the appellants at the very outset contended that F.I.R. in this case was lodged after due deliberation and consultation as the same was lodged after preliminary investigation when the Investigating Officer reached at the place of occurrence. He highlighted some discrepancies in the statements of the P.Ws. on the point of time given regarding the lodgment of the F.I.R. He vehemently contended that according to both the doctors the three injuries on the persons of the deceased could be the result of one blow caused with Kassi and the learned trial Judge did not give any weight to this aspect of the case. He submitted that both the eye-witnesses are real brothers of the deceased and both having not witnessed the occurrence so their testimony could not have been accepted unless corroborated by another independent source. Regarding recoveries it was argued that those were also not proved and the investigation in the case was also made dishonestly. Lastly it was argued that it was a case of sudden flare up and sudden fight which took place between Allah Ditta deceased and Nazar Hussain and no other person was present at the time of occurrence.

10.' The learned Assistant Advocate-General assisted by the learned counsel for the complainant contended that it has been proved that it was a gruesome, cruel and pre-meditated murder, for which respondent No.2 did not deserve any leniency towards the sentence. It was argued that the ocular evidence is corroborated by the medical evidence, recoveries and motive and all these pieces of evidence have brought home the guilt against the appellants beyond any reasonable doubt.

11. We have heard various arguments advanced by the learned counsel and have carefully gone through the entire evidence. Nazar Hussain appellant took up the plea that he had been assaulted by Allah Ditta deceased with a sickle which he had at the time and he, therefore, inflicted Kassi blow to ward off the sickle blow by the deceased. We are of the view that if the deceased had assaulted Nazar Hussain appellant when necessarily there should have been an injury on his person but nothing has been proved on record to show that Nazar Hussain appellant received any injury at the hands of the deceased. No such circumstances have been explained from which it could be presumed that the assault, if any, by the deceased would have reasonably caused the apprehension that death would otherwise be the consequence of such assault particularly when the appellant himself was armed with a Kassi which admittedly had long handle than sickle. We, therefore, find that no apprehension of such assault was present there. Only encircling of goats by the deceased was not sufficient and provoked the appellant warranting to cause such a fatal blow to the deceased. Since the deceased had not caused any harm to the appellant so the question of exercising the right of private defence did not arise in this case. It may be pointed out that no question was put to any of the witnesses whether Allah Ditta deceased had a sickle in his hand and whether he assaulted Nazar Hussain with this sickle and then the appellant inflicted a Kassi blow upon him. When the plea of self-defence had been taken up by the appellant then the burden of proving the same had also shifted upon him. In the circumstances we are of the view that the plea taken up by the appellant in this case as found by the learned trial Court is sheerly an afterthought and is not worthy to be IB believed.

12. In this case both the eye-witnesses P.Ws.8 and 9 have been cross-examined at length but the defence failed to elicit anything favouring the appellants. On the other hand we have noticed that both the witnesses had no direct enmity with the appellants and thus, there was hardly any reason for them to falsely implicate them in this case. Unfortunately, there is nothing on record, nor any suggestion has been made, nor any material has been brought on record to show some animus of the appellants with the eye-witnesses so as to necessitate to seek for corroborative evidence. This was such a case which hardly required corroboration because we do not find any animus between the appellants and the eye-witnesses.

13. The learned counsel for the appellants had laid much stress on the point that all the three injuries on the person of Allah Ditta are the result of one blow caused with Kassi with which Nazar Hussain appellant was armed. He argued that no injury with hatchet appears to have been caused on the person of the deceased, so the version of Talib Hussain appellant that he did not participate in the occurrence is more probable than that of the prosecution. We find that the deceased received three injuries and all the injuries according to the doctors are within the distance of 4 c.m. P.W.1 Dr. Fateh Muhammad did not rule out the possibility about the receipt of all injuries' by one Kassi blow from the joining place of handle and back of the blade of Kassi P.1. P.W.2 Dr. Aqeel Ahmad Khan also stated that it was possible that all the three injuries were the result of Kassi P.1 from its backside, having three edges near handle which is fixed in the blade. We also find that P.W.7 Abdul Qadir also corroborated the statement of P.W.1 and P.W.2 by saying that Kassi was blood-stained from back near its handle. We are, therefore, of the considered view that all the three injuries on the head of Allah Ditta deceased being bone deep and being situated towards the right ear of the deceased so it could actually be the result of one blow of Kassi which was given by Nazar Hussain appellant from its back side. A Kassi has edges on its backside and by its one blow it can appear as if three injuries were caused.

14. In this view of the matter we hold that the prosecution has brought guilt home to Nazar Hussain appellant, only, hence the appeal to his extent is dismissed accordingly. The conviction and sentence of Nazar Hussain appellant are maintained. His death sentence is confirmed.

So tar as Talib Hussain appellant is concerned his appeal is allowed. The sentence recorded against him is set aside and he is acquitted of the charge of murder.

15. Resultantly the criminal revision filed by Muhammad Amin complainant is dismissed. The reference made by the learned trial Court is answered in the positive as the death sentence of Nazar Hussain has been confirmed and the criminal appeal to the extent of Talib Hussain has been accepted.

N.H.Q./N-238/L

Order accordingly.