HABIB ULLAH Versus STATE
Habibullah (30 years), Abdul Ghaffar (19 years) and Abdul Sattar (22 years) appellants were convicted and sentenced for the murder of Manzoor Ahmad by the learned Sessions Judge, Rahimyar Khan on 17-2-1991 under section 302/34, P.P.C. to undergo imprisonment for life each and a fine of Rs.3,000 each, in default whereof to suffer further 6 months' R.I. each. They were also directed to pay Rs.3,000 each as compensation to the legal heirs of the deceased and in default of its payment to suffer further R.I. for four months each. Appellant Abdul Sattar was also convicted and sentenced under section 307, P.P.C. to undergo 7 years' R.I. and a fine of Rs.2,000, in default whereof to suffer further R.I. for 4 months for causing injuries to Abdul Aziz. He was also directed to pay compensation of Rs.2,000 to injured P.W. Abdul Aziz, in default whereof to undergo further R.I. for 4 months. The appellants have preferred this appeal to assail their conviction and sentence. The connected Criminal Revision No.20 of 1991/BWP shall also be disposed of by this judgment.
2. The prosecution case as unfolded in the F.I.R. Exh.P.O./1 recorded on the basis of complaint Exh.P.O. made by Manzoor Ahmad deceased on 17-12-1988 before P.W.10 Shabbir Hussain A.S.I. at Railway Crossing Liaqatpur at 1-00 p.m. is that the complainant was a cultivator and on the day of occurrence, his paternal cousin Muhammad Akram P.W. (not produced) and Muhammad Arshad (P.W.7) were cutting the Banna of the adjacent land of Habibullah appellant. Habibullah appellant had given slaps and fist blows to Muhammad Arshad (P.W.7) and restrained him from cutting the Banna. Muhammad Akram P.W. (given up) and Muhammad Arshad (P.W.7) left the work and went away. At about 11-00 a.m. P.W.7 Muhammad Arshad again came for work. Habibullah appellant stopped him, on which P.W.7 Muhammad Arshad called the complainant that Habibullah appellant was not permitting him to work, on which Manzoor Ahmad complainant and his father Abdul Aziz (P.W.4) reached there. Appellants Habibullah armed with a hatchet, Abdul Ghaffar armed with hatchet and Abdul Sattar armed with a Sota reached. Habibullah inflicted a hatchet blow on the head of Manzoor Ahmad, a second hatchet blow was given by Abdul Ghaffar on the head of Manzoor Ahmad. Abdul Sattar inflicting Dang blow on the head of Manzoor Ahmad. Thereafter Abdul Sattar appellant gave a second Dang blow on the head of Abdul Aziz (P.W.4). On the hue and cry of Manzoor Ahmad and his father Abdul Aziz (P.W.4), Muhammad Akram P.W. (given up) reached running, on which the appellants escaped. The occurrence was witnessed by Muhammad Akram P.W. (given up), Muhammad Arshad (P.W.7), Manzoor Ahmad complainant alongwith his father Abdul Aziz (P.W.4). Manzoor Ahmad complainant was going to report the matter, when P.W.10 Shabbir Hussain, A.S.I. met him on his way to police station, who. recorded his statement Exh.P.O. was sent to the police station where P.W.5 Muhammad Tufail Wattoo, Inspector/S.H.O. on its basis correctly recorded the F.I.R. Exh.P.O./1. The matter was reported to the police vide Exh.P.O. on 14-12-1988, whereas the case under sections 325, 307/34, P.P.C. was registered on 17-12-1988. Manzoor Ahmad complainant expired in the hospital on 22-12-1988 and section 302, P.P.C. was added.
3. The appellants were challaned and sent up for trial. A charge under sections 302/34 and 307/34, P.P.C. was framed, to which they denied and claimed trial.
4. The prosecution examined 10 P.Ws. in all to substantiate its case. The appellants when examined under section 342, Cr.P.C._ denied the prosecution evidence against them. Appellant Habibullah while answering to a question "why this case against you and why the P.Ws. have deposed against you? stated:--
"I have been falsely involved in this case. In fact the complainant party launched the aggression against us and injured Ghaffar and our mother Mst. Ghulam Bibi during the course of an attempt to break the Banna of our land in order to take the possession of it illegally and forcibly. We defended our property and person within our lawful right as a result of which the complainant party including the deceased sustained injuries."
He further claimed himself to be innocent. Appellants Abdul Ghaffar and Abdul Sattar in answer to the question "why this case against you and why the P.Ws. have deposed against you?" stated that they had been falsely involved in this case, and relied upon the statement of their co-appellant Habibullah in this behalf. The appellants neither made statement on oath nor produced evidence in defence. The learned trial Court found the appellants guilty and vide its impugned judgment had awarded the sentence and convicted them.
5. 1 have heard the learned counsel appearing for the parties at length and have perused the record. Manzoor Ahmad complainant was allegedly injured at the hands of the appellants on 14-12-1988 when on the way to the police station he made his statement Exh.P.O., on the basis of which formal F.I.R. Exh.P.O./1 was recorded on 17-12-1988.. Manzoor Ahmad had died in the hospital on 22-12-1988. Exh.P.O. was treated as dying declaration by the trial Court. It is pertinent to mention here that on 14-12-1988 when Manzoor Ahmad deceased made statement Exh.P.O., he was not under the apprehension of death, Exh.P.O. was made in the presence of other P.Ws. Manzoor Ahmad deceased never expected that he would meet his death. Moreover, even the Investigating Officer Shabbir Hussain, A.S.I. (P.W.10) had not thought of the same, otherwise he would have requested the doctor to become a witness to the recording of the statement Exh.P.O. or at a later stage in the hospital. It is pertinent to mention here that appellants Habibullah, Abdul Ghaffar and their mother Ghulam Bibi had received injuries during the occurrence and the same were suppressed by Manzoor Ahmad, which is clearly indicative of the fact that Manzoor Ahmad never expected or apprehended that he would go to the world hereafter and in that case he would have stated the truth. In the circumstances, I am of the view that Exh.P.O. is not a dying declaration of the deceased.
6. The motive behind the occurrence has been stated by P.W.4 Abdul Aziz and P.W.7 Muhammad Arshad i.e. that P.W.7 was cutting the common Banna of the land of the complainant party and the accused party on which Habibullah appellant in the morning had given slaps and fist blows to him, who left the job and went away and at 11-00 a.m. he returned, when again he was restrained from cutting the Banna. P.W.4 Abdul Aziz had supported the statement of P.W.7 Muhammad Arshad. P.W.2 Muhammad Jamil, Patwari stated during cross-examination that it was correct that the accused party was in possession of 10 Marlas in Killa No.9 which belonged to the complainant party, and that land of 10 Marlas was contiguous to their Killa No.8. The place of occurrence shown at point No.l Exh.P.H. was a marginal lane of Killas Nos.2 and 1. He further stated that according to the Khasra Girdawari the appellant was in possession of above 10 Marlas of land from Kharif 1984 till the day of the present occurrence. He had also refuted the suggestion that the revenue record had been manipulated to favour the appellant by indicating their possession of 10 Marlas of land. It is pertinent to mention here that P.Ws.4 and 7 stated that they had exchanged their 10 Marlas of land with the land of the appellant for erecting a Khaal. In the circumstances the motive set up by the prosecution has not been proved on record.
7. The eye-witness account has been furnished by the statement of P.W.4 Abdul Aziz, injured father of deceased Manzoor Ahmad and P.W.7 Muhammad Arshad, who is nephew of P.W.4 Abdul Aziz paternal cousin of the deceased. P.W.4 Abdul Aziz stated that at the relevant time he alongwith his deceased son Manzoor Ahmad was collecting chaff when P.W.7 Muhammad Arshad made a call that Habibullah appellant was not permitting him to lay a Banna, on which they went to him. Habibullah appellant was armed with a hatchet and from its blunt side he gave a blow hitting Manzoor Ahmad deceased on his head. Abdul Ghaffar appellant who carried a hatchet inflicted injuries thereafter on the head region of Manzoor Ahmad. Abdul Sattar appellant gave a Dang blow to Manzoor Ahmad near the ear. Abdul Sattar appellant also inflicted Dang blow on the head of Abdul Aziz. P.W.7 Muhammad Arshad stated that at about 11-0 a.m. he was cutting Banna when Habibullah appellant forbade him, on which he called P.W.4 Manzoor Ahmad deceased and told them that Habibullah appellant was not allowing them to cut the Banna. Habibullah appellant and Abdul Ghaffar appellant armed with hatchets and Abdul Sattar appellant armed with a Sod reached. Habibullah appellant gave hatchet blow from its wrong side on the head of Manzoor Ahmad. Abdul Ghaffar appellant also inflicted a hatchet blow from its wrong side on the head of Manzoor Ahmad and Abdul Sattar appellant extended a Dang blow on the head of Manzoor Ahmad. Abdul Sattar appellant also inflicted a Dang blow on the head of his uncle P.W.4 Abdul Aziz and at that time all the appellants were saying that they would kill Manzoor Ahmad and would teach him a lesson for cutting the Bannn of their field. In the meanwhile Muhammad Akram P.W. (given up) reached and witnessed the occurrence and the appellants escaped.
8. P.W.4 Abdul Aziz and P.W.7 Muhammad Arshad, father and paternal cousin of the deceased respectively stated before the police in Exhs.DA. and D.B. that appellants Habibullah and Abdul Ghaffar had given hatchet blows on the head of Manzoor Ahmad deceased, whereas before the trial Court they made a somersault and stated that the appellants had given hatchet blows from the wrong side on the head of the deceased and P.W.4 Abdul Aziz. Habibullah appellant received 8 injuries on his person during the occurrence caused with blunt weapons and injury No.2 was declared grievous. Abdul Ghaffar appellant received 3 injuries caused with blunt weapon, all declared simple and Mst. Ghulam Bibi, mother of the appellants had received 2 injuries with blunt weapons and the same were declared simple. The injuries on them were suppressed by the prosecution.
9. P.W.1 Dr. Gulzar Muhammad Khan medically examined appellant Habibullah and appellant Abdul Ghaffar alongwith their mother on the request- of the police on 14-12-1988. On the said day Manzoor Ahmad deceased was also medically examined. P.W.10 Shabbir Hussain, A.S.I. stated that the appellants alongwith their mother had met him at the gate of T.H.Q. Hospital, Liaqatpur in injured condition and had stated that they had been injured during the occurrence at the hands of the complainant party. P.Ws. 4 and 7 had specifically refuted the suggestion by the defence that appellants Habibullah and, Abdul Ghaffar alongwith their mother Ghulam Bibi were injured during the occurrence at the hands of the complainant party. The deceased, P.W.4 and P.W.7 had concealed the injuries on the person of appellants Habibuilah and Abdul Ghaffar. In the circumstances, the statements made by P.W.4 and P.W.7 cannot be relied upon unless corroborated by strong independent evidence.
10. Medical account on record has been furnished by the statement of P.W.1 Dr. Gulzar Muhammad Khan who on 14-12-1988 medically examined P.W.4 Abdul Aziz and found a contusion 4 c.m. x 2 c.m. on the right side of the head over frontal area. The area was swollen. The injury was caused by blunt weapon and was kept under observation, and vide X-ray Exh.P.A./2, the fracture of the skull was seen in the skiagram. The injury was declared as grievous and dangerous to life. His report is Exh.P.A. /3.
On the same day P.W.1 medically examined Manzoor Ahmad deceased in injured condition and had found the following injuries on his person:-- .
(1) ??????? A lacerated wound 3-1/4 c.m. x 1/2 c.m. x bone deep on the left side of the head over frontal area.
(2) ??????? Lacerated wound 4-1/2 c.m. x 1 c.m. x scalp deep on the frontal area 4 c,m. behind injury No.1.
(3) ??????? Lacerated wound 4 c.m. x 1 c.m. x scalp deep over left side of the head over occipital area.
All the injuries were kept under observation. The injuries were caused by blunt weapon. Exh.P.B. is the copy of medico-legal report. Injury No.2 was declared as grievous as there was fracture of the skull seen in the skiagram. Exh.P.B./3 is the opinion of the Doctor regarding the nature of injuries.
On 22-12-1988 P.W.1 Dr. Gulzar Muhammad Khan conducted autopsy on the dead body of Manzoor Ahmad deceased and found three injuries on his person, as mentioned above. Skull of the deceased was fractpred under injury No.2. Scalp was injured vide injuries Nos, 2 and 3. There was extensive clotted blood under the scalp, skull and membrane. The brain was healthy. Fracture line was over the frontal area on both sides. After careful external and internal examination of the deceased, he was of the opinion that the death was caused due to intra-cranial haemorrhage caused by injury No.2, and injury No.2 individually was sufficient to cause death in the ordinary course of nature. All the injuries were caused by blunt weapon and were ante-mortem. Probable time, that elapsed between injuries and death was about 8 days and between death and post-mortem was 7-1/2 hours. Exh.P.C. is the correct carbon copy of post-mortem report.
P.W.1 on 14-12-1988 the same day medically examined Habibullah appellant and found the following injuries on his person:--
(1) ??????? A shaped lacerated wound 6-1/2 c.m. x 1 c.m. x scalp deep on the left side of the head over the frontal area.
(2) ??????? A contusion 4-1/2 c.m. on the back of left hand area was swollen.
(3) ??????? A contusion 4 c.m. x 2 c.m. on the middle third portion of left fore? arm.
(4) ??????? A contusion 14 c.m. x 2 c.m. on the back of right and left chest oblique.
(5) ??????? A lacerated wound 1 c.m. x 1/2 c.m. x muscle deep on the web in between the little and the ring finger of left hand. Both fingers were swollen.
(6) ??????? A contusion 7 i;.m. x 2 c.m. on the back of left chest over the scapular area oblique.
(7) ??????? Lacerated wound 1 c.m. x 1/2 c.m. x skin deep on the medial side of left leg over the middle third portion.
(8) ??????? Two lacerated wounds 4 c.m. apart from each other on the upper third portion of the left leg measuring 2 c.m. x 2 c.m. each.
All the injuries were caused by blunt weapon within the duration of 24 hours. Injury No.2 was declared grievous as there was fracture of first mata-carpal of left hand seen in skiagram. Injuries Nos.l, 3, 4, 5 were simple. Exh.P.F./2 was the opinion of the doctor, while Exh.P.F./3 was the X-ray report.
On the same day P.W.1 medically examined Abdul Ghaffar appellant and found three injuries on his person, which were declared simple, caused with blunt weapon. On the same day the same doctor medically examined Mst. Ghulam Bibi, mother of the appellants and had found a lacerated wound 4 c.m. x 1/2 c.m. x scalp deep on the frontal area over the mid line of the head oblique and complaint of pain on the back of neck, which was declared simple caused with blunt weapon.
11. The recoveries of hatchet P.3, stick P.4 and hatchet P.5 at the instance of Habibullah, Abdul Ghaffar and Abdul Sattar were not wedded and also disbelieved by the trial Court as the same were not stained with blood.
12. The learned counsel appearing for the complainant has urged before me that P.W.4 Abdul Aziz was injured during the occurrence and his presence at the relevant time cannot be doubted. No doubt P.W.4 Abdul Aziz was injured during the occurrence and his presence at the spot is established, but his statement cannot be relied upon unless corroborated by independent strong evidence. He is father of the deceased and has suppressed the fact of the receipt of injuries by appellants Habibullah, Abdul Ghaffar as well as their mother during the occurrence. P.W.10 Shabbir Hussain, A.S.I. specifically stated that the appellant Abdul Ghaffar had stated before him when he alongwith co-accused Habibullah and mother Ghulam Bibi met him at the gate of the hospital that they had been injured at the hands of the opposite party, but they had also suppressed the injuries caused by them on the person of the complainant party. The complainant as well as the accused party had not come with clean hands. Both parties had suppressed injuries on each other. Exh.D.C. is the statement of Habibullah appellant before P.W.10 which is clear on the point that he had suppressed the injuries caused by them to the complainant party.
13. The appellants have raised a specific plea that the complainant party launched aggression against them and injured Habibullah, Abdul Ghaffar and their mother Mst. Ghulam Bibi during the course of their attempt to break the Banna of their land in order to take possession illegally and forcibly. They had defended their property and person within their lawful right, and as a result the complainant party including the deceased sustained injuries. The case of the prosecution, if placed in juxtaposition with that of the defence, it has to be seen that in case of two versions which is to be accepted. The statements made by the P.Ws. have already been found not confidence inspiring and in such a case the statements of the appellants are to be believed in totality. P.W.2 Muhammad Jamil Patwari specifically stated that the Banna cut by P.W.7 Muhammad Arshad was a common Banna between the lands of the appellants and the complainant party. There was no previous enmity between the parties and both the parties were found to be armed from the evidence on record and the circumstances appearing in the case at the relevant time. They had suppressed the injuries on each other. The plea raised by the appellants is spelt A out from the evidence on record and the circumstances appearing in the case. As the prosecution evidence has been disbelieved, the statements of the appellants are to be believed in totality.
14. Pursuant to the above discussion, I am 9f the view that the appellants in the exercise of lawful right of defence of their property and person had caused injuries to the deceased and P.W.4 Abdul Aziz. Resultantly the appeal is allowed and the appellants are acquitted of the charge. The appellants are in jail and shall be released forthwith, if not required in any other case. Connected Criminal Revision No.20 of 1991/BWP has no force and is dismissed.
N.H.Q./H-99/L ??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.