GHULAM MUSTAFA Versus THE STATE
The appellant was convicted by Sessions Judge, Sahiwal on 7-7-1985 under section 302, P.P.C. for committing the murder of Abdul Ghaffar alias Phanna and under section 307, P.P.C. for mounting murderous assault on Anwar-ul-Haq injured P.W. respectively. The appellant was sentenced to life imprisonment and a fine of Rs.1,000 under section 302, P.P.C. In default of payment of fine, he was to further undergo S.-I. for 6 months and was also to pay compensation of Rs.1,000 under section 544-A, Cr.P.C. and to default of payment he was to suffer further S.I. for 6 months and in case the amount was received, the same was to be paid to the legal heirs of the deceased. For the commission of offence under section 307, P.P.C. the appellant was sentenced to 3 years' R.I. and a fine of Rs.500. In default of payment of fine, he was to suffer further S.I. for 3 months. He was ordered to pay compensation in the sum of Rs.500 under section 544-A, Cr.P.C. which was to be paid to Anwar-ul-Haq injured P.W.8. Both the substantive sentences of imprisonment were ordered to run concurrently. His co-accused Ghulam Abbas was acquitted by the trial Court, extending him the benefit of doubt.
2. The occurrence took place at about 5-30 p.m. on 8-10-1984 in the revenue limits of Chak No.17/11-L Police Station Chicha Watni and was reported at 6-00 p.m. at the police station by Murid Hussain son of Bashir Ahmad, the real brother of deceased Abdul Ghaffar alias Phanna. In his statement under section 154, Cr.P.C. he stated that at 5-30 p.m. that day, he was proceeding to see Maila Pir Hakim Ali Shah in Chak No. 13/11-L alongwith Muhammad Akram son of Muhammad Boota. When they reached near the Atkairian Rest House, they saw Abdul Sattar P.W. smoking Huqqa in his fields. They sat near him and started smoking. After some time they heard noise at the bridge. They saw Abdul Ghaffar alias Phanna deceased and Anwar-ul-Haq P.W.8 present there. They also saw Ghulam Abbas, acquitted accused, having taken Abdul Ghaffar in his Japha. Ghulam Mustafa appellant who was holding a Chhuri at that time, inflicted a blow on the chest of Abdul Ghaffar on the left of his chest and on seeing they ran away. He also gave a Chhuri blow to Anwar-ul- Haq on the left side of his back. Abdul Ghaffar fell down after suffering the injury. Abdul Ghaffar deceased and Aawar-ul-Haq, who were in their senses, were removed to Civil Hospital. Chicha Watni. Abdul Ghaffar died on his way to the hospital. After reaching the hospital, he left for the Police Station Chicha Watni. He made his statement Exh.P.J. which was read over to him and he signed the same in token of its correctness. The statement was recorded by Muhammad Munawar, S.-I. who arrested both the accused on 14-10-1984 and the appellant allegedly led to the recovery of Khanjar P.10 on 17-10-1994. Muhammad Munawar Khan P.W.11 conducted investigation and after completion of the same got the accused in the case challaned.
3. The appellant and his co-accused were sent up to stand their trial by the Magistrate having jurisdiction in the matter. Charge was framed on 7-4-1985 under section 302/34, P.P.C. for committing the murder of Abdul Ghaffar alias Phanna and under section 307/34, P.P.C. for mounting murderous assault on Anwar-ul-Haq P.W. in furtherance of the common intention of the present appellant and Ghulam Abbas; his co-accused. The charge was read over to the accused and explained. They pleaded not guilty to the charge and claimed trial.
4. At trial, the prosecution produced Malik Muhammad Aslam, M.I.C., Multan P.W.1 who had, during his posting as R.M. Chicha Watni, recorded statement of Anwar-ul-Haq P.W. as dying declaration at the instance of Muhammad Munawar Khan, S.-I. at Civil Hospital, Chicha Watni in the presence of Dr. Muhammad Salim, Medical Officer. He recorded the statement of the Medical Officer Ekh.P.A./1 and after satisfying himself that the witness was fit to make the statement, recorded the same in his own hand which is Exh.P.A./2. The same was read over to the witness and certificate Exh.P.A./3 was recorded by him. He admitted that he had not obtained the signatures or thumb-impression of Anwar-ul-Haq, injured P.W., on his statement and note to the effect that the statement was read over to the witness was also not given by him.
5. Dr. Muhammad Saleem, Medical Officer, appeared as P. W.2. He medically examined Anwar-ul-Haq P.W.8 and found the following injury on his person:--
"An incised wound 3 c.m. x 1-1/2 c.m. x deep going on the left lumber region with Haemoatoma around the wound 10 c.m. x 10 c.m. Corresponding cut was on the shirt and Banian. Fresh bleeding was coming from the wound. Pulse was 84 per minute. D.P. 100/80. Temperature 99/4F. The condition of the patient was serious. "
The injury was kept under observation and was caused by sharp-edged weapon. Exh.P.B. was the correct carbon copy of his medico-legal report and the injury aforesaid was subsequently declared as simple.
6. On 9-10-1984 P.W.2 conducted the post-mortem examination on the dead body of Abdul Ghaffar alias Phanna, which was identified by Bashir Ahmad and Muhammad Sadiq P. Ws. and was brought by Mohabbat Khan Constable No. 195, The following injury was found on the dead body:--
"An incised wound 3 c.m, x 2-1/2 c.m. x deep going on the front of mid of left chest, 2 c.m. below and inner to the left nipple. There was corresponding cut on the shirt."
On dissection, 4 rib of left side of chest was found cut. Left pleura and lungs were cut at two places. So was the pericardium aid diaphragm under injury No. 1. Left side of chest cavity was full of clotted blood. The death, in his opinion, was the result of shock and haemorrhage due to injury No. l which was fatal, grievous and sufficient to cause, death in the ordinary course of nature. Time between injuries and death was 20 to 30 minutes and between death and post-mortem 12 to 14 hours. Exh.P.C. was the post-mortem report whereas Exh.P.C./1 was the diagram showing location of injuries. He handed over the last-worn clothes of the deceased and the relevant papers to the constable. On 8-10-1984, the statement of Anwar-ul-Haq was recorded in his presence by P. W.1 and the injured remained conscious during the recording of his statement. He made his statement to that effect which was signed by him and the same was Exh.P.A./1. He admitted that the injury on the person of Anwar-ul-Haq was not dangerous to life. The witness was, however, referred to D.H.Q. Hospital, Sahiwal the same night. The injury, in his opinion, on the person of Abdul Ghaffar was caused with sharp-edged weapon but he could not say that it was pointed weapon or not. The bleeding, according to the witness, would be slow on suffering injury and there was no profused bleeding.
7. Manzoor Hussain, Patwari appeared as P. W.3. He stated that he had visited the spot on 1-11-1984 and had prepared the site plan of the place of occurrence Exhs.P.D. and P.D./1 at the instance of the police and on the pointation of witnesses in the scale of 8 Karams to an inch. The drawings and notes in black were in his hand and Rajbah was shown in-blue pencil. According to this witness. Thanedar had shown him the points which were shown by him in the site plan. Names of the accused were not mentioned to him nor were shown in the site plan. He admitted that Rest House Atkiarian was adjacent to point No.l on Exh.P.D. and there were residential quarters of Overseers and other staff of the Irrigation Department. The residential quarters were of Ziladar, Overseers, Telegram Clerk, Peon, Mate and Chowkidar etc. The land of Chaudhary Bashir Ahmad, Chak No. 13/11-L was on the eastern side of Rajbah whereas the occurrence took place on the western side. Muhammad Rafiq, Constable P.W.4 was handed over two sealed parcels of this case on 21-10-1984 which he delivered intact on 23-10-1984 at the office of the Chemical Examiner. Mohabbat Ali, Constable P.W.5 was handed over the dead body of Abdul Ghaffar which was taken by him to the mortuary at Chicha Watni and delivered in tact to Medical Officer for. post-mortem examination. After the post-mortem examination, he was delivered the last-worn clothes of the deceased, Shalwar P.1 and shirt P.2 which he delivered to the Investigating Officer who secured the same vide memo. Exh.P.E. Muhammad Sadiq P.W.6 had identified the dead body of Abdul Ghaffar at the time of post-mortem examination and was also a marginal witness of memo. Exh.P.E. Muhammad Faiz P.W.7 was the witness of recovery of blood-stained earth from the place of occurrence which, according to him, was made into a sealed parcel and secured through memo. EXh.P.F. He was also a marginal witness to the recovery memo. of blood-stained shirt P.3 and Shalwar P.4 belonging to Anwar-ul-Haq P.W. which were secured vide memo. Exh.P.G. In his presence, Ghulam Mustafa appellant/accused while in custody led to the recovery of Khanjar P.5 from the Almirah of his Baithak which was blood-stained, was made into a sealed parcel and was secured through memo. Exh.P.H. He was marginal witness of the memos. He admitted that the statement of Murid Hussain first informant was recorded in the hospital by the Thanedar and it was in his presence in the hospital that thumb-impression of Murid Hussain was obtained on the statement by Muhammad Munawar Khan, S.-I. Regarding recovery of Khanjar, he stated that the Almirah had no shutters and was facing the outer door of the Baithak. After recovery of Khanjar they went to the Dera of Raja Farzand Ali Lambardar where Khanjar P.5 was made into a sealed parcel and he had provided the cloth for the purpose of parcel. The, recovery memo. was also signed by him at the Dera of Lambardar. He, however, denied that Khanjar was planted on the appellant.
8. Anwar-ul-Haq P.W.8 was injured during the occurrence. He stated that at the shrine of Pir Hakim Ali Shah in Chak No. 13/11-L he had gone on bicycle alongwith Abdul Ghaffar alias Phanna. Ghulam Mustafa and Ghulam Abbas accused were present there who were close friends. Ghulam Abbas accused locked the bicycle and handed over the key of the lock to Ghulam Mustafa. They demanded the key back but Ghulam Mustafa refused. They grappled with each other but were separated and the persons who assembled there got the key returned to them. They threatened them. After seeing the Maila they were coming back. When they reached near the Rest House of Atkairian the accused were sitting in ambush. They stopped the P.W. and the deceased and stated that they would take the revenge. The appellant was holding a Chhuri. He inflicted the same on the left side of the chest of Abdul Ghaffar who fell down. Ghulam Abbas took him in Japha and Ghulam Mustafa inflicted a Chhuri blow on his back. Akram, Abdul Sattar, Murid Hussain P.Ws. came there. They were taken to the Civil Hospital, Chichawatni where he was medically examined. His statement was recorded and the police took his blood-stained clothes from the hospital. He admitted that Ghulam Mustafa appellant was a Mochi whereas the deceased and the P.Ws. were Arains by caste. Ghulam Abbas accused was Sheikh. He was son of shopkeeper. Ghulam Mustafa was studying in a college. Ghulam Abbas accused was studying in 9th class. The witness was engaged in agriculture. He denied that Abdul Ghaffar was known as Phanna because he was a man of immoral character and that was the reason of his nick name. The deceased was his maternal-cousin. The fathers of both the deceased and the P.Ws. were landless tenants. The witness admitted that he made a statement before a Magistrate. When confronted, there were very material improvements. The witness also contradicted the statement Exh.P.A./2 recorded by the Magistrate P.W.I. He also made improvements in his statement made under section 161, Cr.P.C. He, however asserted that "I had narrated the true facts of the occurrence in detail to the Magistrate and Thanedar". It shall not be out of place to reproduce the English rendering of his statement made to the Magistrate. It reads:-- "stated that he had gone to witness Maila at Chak No.13/11-L at 4-00 p.m. Mustafa son of Siraj locked his cycle and on his asking of the key, he started quarrelling but the people around separated them. At 6-00 p.m. He, Phanna, Ghulam Abbas and Mustafa were coming back. When they reached near the Bungalow, all the four started quarrelling. Abbas caught hold of him. Mustafa gave a Chhuri blow to Phanna on his chest and a blow to him and ran away. The other companions took them to the hospital. He was making the statement in his full senses and was not in the state of unconsciousness."
In the statement recorded under section 164, Cr.P.C. P.W.8 excludes the presence of Murid Hussain, Muhammad Akram and Abdul Sattar P.Ws. and this was his statement which was made by the witnesses to the Magistrate under apprehension of death. There was no reason for omitting the names of P.Ws. otherwise. It rather infers, that some persons other than the P. Ws. were accompanying them at that time and had taken them to the hospital. The prosecution 'failed to produce them in the witness-box leading to adverse inference.
9. Murid Hussain P.W.9 was the first informant and he gave almost the same story which he had given in the statement under section 154, Cr.P.C and recorded as Exh.P.J. His presence at point No.3 is not believable as according to the Patwari the land of Bashir Ahmad P.W. was on the right side of the Rajbah. In any case, P.W.9 is a chance witness and has not been mentioned by Anwar ul-Haq P.W. in his statement under section 164, Cr.P.C. (Exh.P.A./2) and thus I am of the view that Murid Hussain had not witnessed the occurrence. I would also exclude the evidence of Abdul Sattar P.W.10 on similar grounds. He, however, admitted that the Rest House was at the equal distance from the place of occurrence, to the one where they were smoking Huqqa. Abdul Sattar P.W. was the uncle of Anwar-ul-Haq P.W. and was an interested witness and as such I exclude his evidence from consideration. Muhammad Akram P.W. was given up by D.D.A. on 9-1-1985. Muhammad Sadulla Khan, S.-I. was also given up on the same day being unnecessary. Muhammad Anwar P.W.12 was posted as Muharrir Head Constable at Police Station Chicha Watni on 9-10-1984. He was delivered one sealed parcel for safe custody by Muhammad Munawar Khan P.W.11. On 17-10-1984 the S.-I. delivered him the sealed parcel containing Khanjar. Both the parcels were delivered by him to Muhammad Rafiq Constable P.W.4 for onward delivery at the Office of Chemical Examiner.
10. Muhammad Munawar Khan, S.-I. had registered the F.I.R. on the statement of Murid Hussain on 8-10-19884 when he was posted as Additional S.H.O. Chicha Watni. The same was read over to admitted correct and signed by Murid Hussain. It was Exh.P.J. He went to the hospital and inspected the dead body of Abdul Ghaffar, prepared Inquest Report Exh.P.K. and injury statement Exh.P.K./1 and sent the dead body for post-mortem examination under the escort of Mohabbat Ali P.W.5. He got recorded the statement of Anwar-ul-Haq injured P.W. by the R.M. Chicha Watni. On 9-10-1984 he visited the spot, inspected the same and collected the blood-stained earth, made the same into a sealed parcel and secured the same vide memo. Exh.P.F. Last worn clothes of the deceased, Shalwar P.1, shirt P.2 were produced before him by P.W.5 which he secured vide memo. Exh.P.E. One Muhammad Riaz produced blood-stained clothes of Anwar-ul-Haq, shirt P.3, Shalwar P.4 which were secured vide memo. Exh.P.G. He prepared Exh.P.L., the rough site plan of the place of occurrence and also got prepared the site plans by Manzoor Hussain, Patwari. He gave notes Nos. l, 2 and 3 in red ink, under his hand. On 14-10-1984 he arrested both the accused.
11. Ghulam Mustafa while in custody led to the recovery of a Khanjar P.5 on 17-10-1984 from the Almirah of his Baithak of his residential house. The same was made into a sealed parcel. The parcels were deposited by him with P.W.12 Muharrir Head Constable for safe custody and despatched to the Office of the Chemical Examiner. He admitted that he had not mentioned in the first inspection note that the complainant and the P.Ws. were smoking Huqqa at the time of occurrence. He also admitted that in recovery memo. Exh.P.H. he first wrote Chhuri and then changed the same into Khanjar. He had not searched the house of the accused on the date of his arrest effected from his house. He was suggested that he fabricated the recovery of Khanjar and also the story of the prosecution after making preliminary investigation, in consultation with the complainant. He denied that Anwar-ul-Haq and Abdul Ghaffar deceased had taken Ghulam Mustafa accused for the purpose of sodomy at a deserted place and he, in order to save his honour and person, acted m self-defence and caused injuries to Abdul Ghaffar and Anwar-ul-Haq with an ordinary knife. He also denied that Ghulam Abbas was falsely involved in the case at the instance of Muhammad Sadiq, a Councillor and a friend of the complainant.
12. On 29-4-1985, the Special Public Prosecutor tendered in evidence the report of the Chemical Examiner Exh.P.M. and that of the Serologist Exh.P.N. and closed the case of the prosecution.
13. The statement of both the accused were recorded on 29-4-1985 under section 342, Cr.P.C. Ghulam Mustafa (17) made the following statement:--
"In fact Abdul Ghaffar alias Phanna and Anwar-ul-Haq P.W., who are habitual sodomist, caught me near the Canal Rest House Atkairian. They attempted to commit sodomy with me. I resisted but when I feel that they would not spare me and would commit sodomy with me, I had a knife with me. I gave blows to the deceased and Anwar-ul-Haq P.W. to save myself from sodomy. My co-accused Abbas was not present there."
He also made statement on oath under section 340(2), Cr.P.C. in which he stated that he was proceeding to Abadi near Atkairtan Rest House on the said date. When at 5-00 or 5-30 p.m. he reached near the bridge he found Abdul Ghaffar deceased and Anwar-ul-Haq there. They tried to commit sodomy with him. They removed his Shalwar and he raised noise. Abdul Ghaffar deceased gagged his mouth; he had been trying to resist; he had a knife in his pocket meant for cutting Miswak; brought out that knife and inflicted one injury each to Abdul Ghaffar deceased and Anwar-ul-Haq P.W. to save his honour and went to the village. When the police came to his village, he handed over the knife to the police. No Khanjar was recovered from him. He was put to a lengthy cross examination and was also put the prosecution version which was denied by him.
14. Statement of Ghulam Abbas (aged 15/16 years) was also recorded under section 342, Cr.P.C. He denied the prosecution story' and claimed innocence. He al o made the statement on oath under section 340(2), Cr.P.C and stated that he w s not present at the place of occurrence and that he was innocent.
15. Amir Ali Signaller was produced as D.W He stated that he was posted at Dad Fatiana for the last I years. Rajbah 11-L flows from the Lower Bari Doab Canal and was in his circle. He has to maintain a register for making entries regarding signals received by him from the XEN. He produced said register. According to his register, he received Canal Wire No.401 from XEN, Sahiwal through Signaller, Sahiwal on 7-10-1984, that "Rotational programme for the period 8-10-1984 to 15-10-1984 Group ' A' will be in first preference and Group ' B' will be in second preference. All channels of Group ' A' shall be open to 11-L and 5-L should be closed with immediate effect. He had to get the implementation of the message through Pansaal Nawees. He conveyed the message of XEN to Muhammad Hussain Pansaal Nawees on 7-10-1984. He had also brought the Gage Register. According to the entries made by him, Rajbah 11-L remained closed from 8-10-1984 to 15-10-1984. Muhammad Hussain D.W.2 was Pansaal Nawees. He supported D.W.1-in entirety and according to him, Rajbah 11-L was closed on 8-10-1984 and remained closed till 15-10-1084 according to the entries in the register, maintained in the ordinary course of official functions. According to the register, Rajbah 11-L was closed by him at 6.00 a.m. on 8-10-1994. The canal water which be already in the Rajbah was to flow out of it within 2/3 hours making it dry. The defence was closed thereafter.
16. The trial Court disbelieved the three alleged eye witnesses and held that the story of the prosecution was not established in toto. The accused and the victims were returning from the Maila, the accused did not sit in ambush near the bridge and it was an abrupt fight having taken place at the place of occurrence.
17. I do agree with the trial Court that the story of the prosecution was not proved and that the three P.Ws. of the occurrence including Anwar-ul-Haq injured P.W.8 were of no credence and if that be the case, there remains only the statement of Ghulam Mustafa accused. Had this statement not been made by Ghulam Mustafa appellant, it was a case of no evidence, but where the appellant has himself taken a plea of private self-defence, he was obliged to prove the same. The presence of P.Ws.8 and 9 near the place of occurrence was also belied by the official record produced by D.Ws.1 and 2. The water was not running in the canal and so there could be no question of watering the field by Abdul Sattar P.W.
18. I am left with the defence plea of the appellant, who was aged about 17 on the day he made the statement in Court. The age of Anwar-ul-Haq as given in the medico-legal report, was 25 years. The deceased and the P.W. were two in number and had not only the numerical majority but had also the psychological advantage over Ghulam Mustafa appellant who was a Mochi by caste as against the deceased and injured P.W. who were Arains and tillers of the land, enjoying the status in agrarian society. The appellant had not repeated injury on the person of deceased or on the person of Anwar-ul-Haq, The place of occurrence was a deserted place and the intended assault by the deceased and P.W.8 of committing sodomy cannot be ruled out in the circumstances. One injury to each of Abdul Ghaffar alias Phanna and Anwar-ul-Haq was given by the present appellant and in my view, while under the apprehension of being made a victim of sodomy, he had a right of private-defence and by inflicting one injury each to both, the appellant had not exceeded the right of self defence. He is accordingly acquitted of the charge. He is on bail. He is discharged from the bail bonds.
N.H.Q./C-315/L Appeal accepted.