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Petitioner: ABDUL RASHID And 2 Others VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Aslam Riaz Hussain Title: ABDUL RASHID And 2 Others vs The STATE Case No.: Criminal Appeal No. 841 of 1969 Date of Judgment:1971-11-26 Reported As: 1972 P Cr. L J 796 Result: Appeal accepted
JUDGMENT
JUDGMENT Aslam Riaz Hussain, J.--Abdur Rashid, aged 25 years, Qudrat Ullah, aged 25 years and Muhammad Boota, aged 35 years, appellants and their co-accused Khushi Muhammad, aged 61 years, Khalil Ahmad, aged 26 years, Muhammad Jamil, aged 23 years and Allah Din, aged 25 years, residents of village Darveshke, Police Station Ahmadnagar District Gujranwala, were tried for offences under sections 148, 302/149 and 324/149, P. P. C. by the Additional Sessions Judge, Gujranwala. By his judgment dated 10-11-1969 the learned trial Judge acquitted Khushi Muhammad, Khalil Ahmad, Muhammad Jamil and Allah Din, but found the three appellants to be guilty of different offences. He convicted Abdur Rashid appellant for an offence under section 302, P. P. C. for the murder of Mushtaq Ahmad and sentenced him to transportation tor life, while he convicted Qudrat Ullah and Muhammad Boota appellants under section 324, P. P. C. for causing injuries to Inayat Ullah and Yousaf P. Ws. respectively and sentenced them to two years' R. I. each. Abdur Rashid, Qudrat Ullah and Muhammad Boota appellants have come up in appeal against their conviction and sentences. 2. The facts of the case as stated by Inayat Ullah complainant (P. W. 9) are briefly that he along with his son Khurshid P. W. 11 and Khushi Muhammad (anacquitted accused), had set up a plant for the production of Kulfi (ice-cream) in their village (i.e. village Darveshke). The relations between Inayat Ullah and Khushi Muhammad became strained and it was decided to dissolve the partnership. Inayat Ullah made an offer to Khushi Muhammad (an acquitted accused), that he should either pay Rs. 3,200 and take over the factory or, in the alternative, take Rs. 1,600 in lieu of his share and quit. Khushi Muhammad chose the second alternative. Inayat Ullah, therefore, paid Rs. 1,600 to him and acquired the entire factory.
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Qudratullah appellant was also running an ice-cream (Kulfi) plant in the same village. Khushi Muhammad and his son Abdur Rashid appellant started a propaganda compaign against Inayat Ullah and induced the customers to buy Kulfi from Qudrat Ullah instead of Inayat Ullah P. W. 9. On 23-7-1967, sometime before sun-set, Inayat Ullah P. W., his sons Khurshid, Latif, Yousaf as well as one Sabir were sitting at the factory. One Chiragh, who used to sell their kulfi had also com6 there to render accounts. After the accounts had been given Sabir and Chiragh started cutting jokes with each other. In the meantime Muhammad Jamil (an acquitted accused) and his nephew Qudrat Ullah appellant happened to pass by. Muhammad Jamil reprimanded Chiragh for making fun of Sabir, who was his (i.e. Jamil's) cousin. Chiragh replied that Sabir and he were on joking terms with each other and that he (i.e. Jamil) should not interfere. Muhammad Jamil started abusing Chiragh, who returned the abuse. Muhammad Yousaf P. W. 10, a son of Inayat Ullah P. W. told Muhammad Jamil to get away from the factory and settle his dispute elsewhere. On this Muhammad Jamil also abused Muhammad Yousaf. This resulted in a scuffle between them and they freely gave fist blows to each other. Inayat P. W. 9 separated them. Muhammad Jamil went home abusing and threatening that he would 'manage' them. Shortly thereafter Mushtaq Ahmad, deceased son of Inayat Ullah P. W. 9 came to the spot and enquired what was happening, but he was informed that, it was nothing serious. Sometime later Inayat Ullah closed the factory and left for his house. His sons Khurshid. Yousaf, Latif and Mushtaq Ahmad (deceased) as well as Chiragh accompanied him. The house of Khushi Muhammad co-accused fell on the way. When Inayat Ullah etc. reached near his house, all the accused persons including the three appellants came out raising lalkaras. Abdur Rashid, Qudrat Ullah and Muhammad Boota appellants were armed with hatchets, while their companions, the four acquitted accused, were armed with dangs. Abdur Rashid appellant gave a hatchet blow on the forehead of Mushtaq Ahmad whereupon he fell down. Khushi Muhammad co-accused then gave him kicks, which fell on his testicles. Inayat Ullah P. W. came forward to rescue him but Qudrat Ullah appellant gave a hatchet blow to him which fell on his head. Inayat Ullah P. W. caught hold of Abdur Rashid appellant and snatched the hatchet from him, but all the accused fell upon him. Muhammad Boota appellant also gave a hatchet blow to Muhammad Yousaf, P. W. 10, who also fell down on receiving it. Khurshid and Latif, sons of Inayat Ullah P. W. raised an alarm. The accused ran away with their weapons. The injured persons were taken to the hospital. Mushtaq Ahmad deceased, who was still alive was placed on a charpai, which Was carried by some persons to the Dispensary at Kalaske. Others went on tongas. At the Dispensary Mushtq Ahmad was given an injection. Subsequently he and the other injured persons were taken to Gujranwala and admitted in the Civil Hospital at about mid-night. All of them were medically examined by Dr. Imtiaz Ali Cheema P. W. 8. The doctor sent information about the arrival of the injured persons to Police Station Ahmadnagar, vide rttqa P. K. Mushtaq Ahmad deceased died at about 4-30 a. m. Muhammad Aslam, Sub-Inspector (P. W. 12), S. H. O. Police Station Ahmadnagar, left for Civil Hospital, Gujranwala on reciving ruqa Exh. P. L. reaching there at 2-30 p.ra. He recorded the statement (Exh. P. A.) of Inayat Ullah P. W. 9 and sent it back to the Police Station for the registration of the formal F.I.R. (Exh.P.A./l). After preparing the relevant documents he sent the body to the mortuary through F. C. Muhammad Fazal P. W. 3. He himself went to village Darveshke and inspected the spot. He took some blood-stained earth from the wall of the house of Khushi Muhammad (an acquitted accused) vide memo. Exb. P. C. and also recorded the statements of the witnesses. The accused persons produced medicolegal reports relating to Muhammad Jamil, Abdur Rashid and Qudrat Ullah appellants and other injured accused before him. No recovery of any weapon of an offence was made from any of the accused persons. 3. Dr. Imtiaz Ali Cheema, Medical Officer, Civil Hospital Gujranwala, examined Mushtaq Ahmad deceased, when he wa
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still alive. He also examined the injured persons of both sides. As the injuries are of some importance in the decision of the case, it would be appropriate to reproduce the injuries on each of them. The following injuries were found on the body of Mushtaq Ahmad deceased, when he was still alive :-- (1) An oblique incised wound about 3" x J* x bone deep on the middle of frontal bone, 2' above the left eye-brow. (2) The patient was unconscious, breathless, pulse was weak and rapid. Pupils were dilated and did not react to light. (3) There was swelling on left testicle on area 4" x 4". (4) Patient's general condition was very poor and precarious. Injury No. 1 is grievous and caused by a sharp-edged weapon. 4. The doctor found the following injuries on the person of Inayat Ullah P. W. 9 (1) An oblique incised wound about 2*x 1/3" x scalp deep on the left side of the scalp above the left eye-brow. (2) A contusion 2"xl" on the outer side upper 1/3rd of the right forearm with slight swelling. (3) Contusion l"x on the back right side of neck. (4) Contusion 2" x on the back of left side of the chest middle. (5) Abrasion 1/6"x 1/8" on the front and lower l/3rd of the left arm. (6) Linear abrasion l"x 1/10" on the back of lower l/3rd of left forearm. (7) Incised wound ^"xl/8"xskin deep on the lower part of the left middle finger. (8) Contused wound on the middle of the left index finger. (9) Complaint of pain on the left little finger. (10) Swelling on the left thumb. No external injuries. (11) Slight swelling on the back of right calf muscle and complaint of pain. All the injuries were found to be simple. Injuries Nos. 1 and 7 were caused with sharp-edged weapon and the remaining were caused with blunt weapon. 5. On. the same day he examined Muhammad Yousaf P. W. 10 and found the following injuries on his person (1) An incised oblique wound 1" x 1/3" x muscle deep on the front of right side lower l/3rd of the thigh. (2) An abrasion 1/3" x 1/5" on the left toe. 6. On the same day (i.e. 23-7-1967) he examined Abdur Rashid appellant and found the following injuries on his person :-- (1) Swelling on the right side of the scalp about 2" above the right ear. (2) Nail of the left thumb was blue and terminal phalanx of left thumb was slightly swollen. Both the injuries were caused with blunt weapon. The duration of the injuries was within l2 hours. 7. He also examined Qudrat Ullah appellant and found the following injuries on his person :-- (1) Contusion on the back of chest middle size 3" x (2) Contusion with swelling on the back of upper chest. (3) Abrasion 1/8' x 1/8" on the middle and outer of left forearm. (4) Contusion on the left thumb and nail was blue. (5) An incised curved shape wound about x 3/4" x scalp deep on the left side of parietal about 2" above the left ear. All the injuries were simple. Injury No. 5 was caused with sharp-edged weapon and rest were caused by blunt weapon. The duration of the injuries was within l2 hours. 8. He also examined Khalil Ahmad (acquitted accused) and found the following injuries on his person :--
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(1) An oblique incised wound about 2J"xl/6' on the left cheek in front of the left ear. (2) An abrasion on the left thumb. (3) Incised wound on the pulp of the left middle finger of the size of 1/6'x 1/8'. (4) Incised wound on the middle left ring finger palmer aspect about l/6"xl". (5) Abrasion on the back of right scapula. (6) Taint abrasion on the left elbow. All the injuries were simple. Injuries Nos. 1, 3 and 4 were caused with sharp-edged weapon and the rest were caused by blunt weapon. The duration of injuries was within l2 hours. 9. He also examined Muhammad Jamil (acquitted accused) and found the following two injuries on his person :-- (1) An oblique incised wound 3/4" x j" x muscle deep on the right upper part of the chest 2' away from the middle line. (2) Contusion 1/16'x 1/16" on the right lower arm with swelling. Both the injuries were simple. Injury No. 1 was caused with sharp-edged weapon while injury No. 2 was caused with blunt weapon. The duration of the injuries was within l2 hours. 10. On 24-7-1967 he examined Khushi Muhammad (an acquitted accused) and found the following injuries on his person :-- (1) An incised wound l*x*xbone cut on the left middle finger to its middle. The half portion of the finger was hanging from the injured area. (2) The incised wound li'x 1/3'x bone cut on the middle part of the ring finger. (3) An oblique incised wound 3/4*x 1/8' on theinnef back side of the left wrist. (4) Linear cut 1/8* x 1/8" on the distal phalanx of left little finger anteriorly. (5) An oblique incised wound lj*x" on the right side of the parietal region 2\" above the right ear. (6) A lacerated wound 1x J* x scalp deep on the middle of the scalp anteriorly. Injuries Nos. 1 and 2 were declared grievous. Injuries Nos. 1, 2, 3 and 5 were caused with sharp- edged weapon and rest by blunt weapon. The duration of the injuries was given as within l2 hours. 11. After completion of the investigation Muhammad Aslam Sub-Inspector, filed a challan in the Court of the inquiry Magistrate and on the conclusion of the inquiry all the accused persons were committed for trial to the Court of Session. The result of the trial has already been stated above. 12. In support of its case the prosecution produced l2 witnesses including three eye-witnesses, namely, Inayat Ullah P. W. 9. and his two sons Muhammad Yousaf P. W. 10 and Khursheed P. W. 11. 13. The accused when examined under section 342, Cr. P. C. did not admit their guilt. Some of them showed their ignorance about the incident but others admitted their participation in it, giving a different version. Khushi Muhammad (an acquitted accused) is one of those who admitted the occurrence. When asked to explain his injuries, he replied :-- "The real position is that I advanced a sum of Rs. 2,000 to one Ghulam Muhammad for installing one Rice Husking Machine and Flour Mill at my door-way, then Inayat, Mushtaq, Khurshid, Latif, Yousaf attacked on me. Inayat gave me a hatchet blow on my little finger of the right hand. Then I snatched the hatchet from Inayat. Then Mushtaq came forward and inflicted a hatchet blow, which I saved. Then I inflicted a' hatchet blow in the hand of Mushtaq. Mushtaq was alright at that time." In an answer to the same question Abdur Rashid appellant stated that "I was medically examined. I do not know wherefrom I received the injury, the fact was that I was sitting in the house of my uncle, I heard the noise, I ran up towards the noise. Before door-way, there was a fight in between Inayat, Mushtaq deceased, Khurshid, Latif and Yousaf and all were beating my father. Latif and Khurshid were armed with dangs. Yousaf, Mushtaq deceased and Inayat were armed with hatchets. I came forward and was injured." Qudrat Ullah appellant also admitted his participation in the incident and said that he received
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hatchet blow but he went forward to save Khushi Muhammad co-accused. Khalil Ahmad and Muhammad Jamil (the acquitted accused) gave the same statement. Allah Din and Muhammad Boota co-accused denied any knowlegde about the occurrence. They produced two witnesses in defence, namely, Nawab, D. W. 1 and Barkat Ali D. W. 2, who supported the version given by Khushi Muhammad co- accused. 14. We have heard the learned counsel for the parties and have also gone through the entire record. It shall be noticed that the accused party has not denied the occurrence. The place as well as the time of the occurrence is admitted by some of them including Abdur Rashid and Qudrat Ullah appellants. They have, however, given an entirely different version of the same. There are, therefore, two versions of the same incident before us. According to the prosecution version Inayat P. W. 9 and his four sons were attacked by the accused party when they were passing near the house of Khushi Muhammad, as a result of which Inayat Ullah P. W. 9 and Muhammad Yousaf P. W. 10 were injured and Mushtaq Ahmad died. The substance of the defence version, on the other hand, is that Inayat Ullah P. W. and his sons went armed with hatchet and dangs to the house of Khushi Muhammad (acquitted accused) and attacked him but the latter's son and other relatives rescued him by inflicting injuries on the assailants in the exercise of right of private defence. 15. What requires determination is as to which one of these two versions is correct. While deciding this question it has to be kept in mind that whereas the prosecution is required to establish its case beyond reasonable doubt, the onus on the accused persons is comparatively light and they are not to prove their innocence but have only to show that the version put forward by them might reasonably be true. 16. We now proceed to consider the two versions in the light of the above-noted principle. Six eye-witnesses have been mentioned in the F. I. R. These are Inayat Ullah, Muhammad Yousaf, Khurshed, Latif, Chiragh and Muhammad Ali. Out of these the prosecution has only produced the first three. Latif was given up as unnecessary while Chiragh and Muhammad Ali were given up as having been won over. Out of the eye-witnesses examined at the trial, Inayat Ullah and Muhammad Yousaf had sustained injuries during the incident. Their presence at the spot cannot, therefore, be denied. The question, however, is as to whether they are telling the truth and the version given by them is correct, because according to the learned defence counsel the story put forward by them was fabricated during the interval between the incident and the lodging of the F. I. R. and that the prosecution witnesses have suppressed or minimised their own part and have given a twist to the facts in order to show ihat the other side was the aggressor. 17. It shall be noticed that all the three eye-witnesses produced by the prosecuion at the trial are very closely related to the deceased. Inayatullah P. W. is the father of the deceased, while Muhammad Yousaf and Khursheed P. Ws. are his (deceased's) real brothers. Although the relationship with the deceased does not by itself discredit the witnesses but in the circumstances of the present case it can be safely said that they are at least partisans and their statements require to be scrutinised carefully and it would be unsafe to rely on them without independent corroboration. 18. A salient feature of this case is that the F. I. R. was lodged after a considerable delay. The incident took place before sun-set on the evening of 23-7-1967. But the statement Exh. P. A., on which the F. I. R. is based, was recorded at 3 p. m. on the next day although the police station is only 5 miles from the place of occurrence. It is in evidence that two sons of Inayatullah P. W. namely, Khurshid and Latif had not been injured during the incident, Anwar, the son-in-law of Inayatullah was also available but, it is admitted by
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him (Inayatullah) that no one from their side tried to approach the police for lodging the report although Police Station Ahmadnagar is only 5 miles away from the place of occurrence. It is also in evidence (through Muhammad Aslam, S. I. P. W. l2), that a police post is situated at a distance of only one furlong from the hospital. The S. I. has also admitted during the cross-examination that "in cases of death, the doctors inform about the death to the nearest police station." It is surprising that neither any member of the complainant party cared to go to the police post, which was so near, nor did the doctor send any information to that chowki. There is a belated attempt on the part of the witnesses to explain this delay. Inayatullah P. W. stated at the trial that after the incident Mushtaq Ahmad deceased was placed on a charpai and was first taken to Kalaske dispensary where he was given an injection and from there he was taken to the Civil Hospital at Gujranwala. The other two eye-witnesses, namely, Muhammad Yousaf P. W. 10 and Khurshid P. W. 11 have also stated this fact at the trial. But Muhammad Aslam S. I. P. W. l2 stated during cross-examination :-- "During my investigation it was never brought to my notice, that the deceased was injected.by a Dispensar of Kalaske Dispensary. Had it been brought to my notice, I should have cited him as a witness." They were also confronted with their earlier statements and it was found that Inayatullah P. W. had not stated so in the F. I. R. Similarly it was found that Muhammad Yousaf and Khurshid P. Ws. had not stated so either in their statements under section 161, Cr.P.C, or in their statements before the committing Magistrate. It is, therefore, evident that this story was invented merely to explain away the delay in lodging the report. 19. In view of the above-mentioned facts there appears to be considerable force in the contention of the learned counsel for the appellants that the real reason for the delay in making the report was that the complainant party had spent the interval in fabricating a false story with a view to suppress their own actions and to paint the other side as the aggressor. 20. Another question which has an important bearing on the correctness or otherwise, of the prosecution story is as to why Inayatullah P. W. and his companions took that particular route on the day of occurrence, lt is in evidence that two paths lead to the house of Inayatullah from his factory. The street in the north leads straight to his house and is the shorter of the two routes. The other one goes to the east and connects-up with the street in which the house of Khushi Muhammad (acquitted accused) is situated. From there one has to take a left turn to pass in front of the house of Khushi Muhammad for reaching the house of Inayatullah P. W. This route is admittedly longer. According to the prosecution case Inayatullah P. W. etc. took this route on the day of the occurrence. A question arises as to why did they choose to go by the longer route on the day of occurrence. No explanation of this has been given in the F. 1. R. by Inayatullah P. W. The other witnesses, however stated that it had rained in the morning and that a drain carrying rain-water runs through the street which leads to their house from northern side and the same got flooded. This explanation, however, does not stand the test of scrutiny. Muhammad Ibrahim P. W. 1 the Draftsman who had visited the spot, has stated that the drains carrying water run in both the streets, namely, the street passing in front of the house of Inayatullah P. W. in the east- western direction as well as in the street running in south-north direction, in which the house of Khushi Muhammad is situated. He stated further that rain water runs through both these drains and then falls in a pond situated in the north. The following is portion of the Draftsman's statement about the existence of a drain in the street through which Inayatullah and the other P. Ws. decided to go on that day :-- "The house of Khushi Muhammad is situate in the street which runs from south to north. The main population^ towards the south excepting one house which is on the north and adjoins the house of
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Khushi Muhammad. I have seen the spot. The street is in slope towards the north and the drain runs from south to north in front of the house of Khushi Muhammad. Likewise the rain water runs through this street and falls in the pond." This is what the Investigating Officer Muhammad Aslam P. W. l2 had stated on this aspect of the case. "I went to the spot and had the inspection of it. The rain water passes by the house of Khushi Muhammad and then it reaches the pond. The width of street is 6 to 7 feet from wall to wall. The dehories are at a higher plinth than the lane. The lane situate from east to west ends in Gali Shar-i- Am and then the way goes to the fields. The site plan has been made out correctly and the situation therein are correctly placed. All the lanes are Kacha ones and if there is rain, they become muddy. The jai safeda shown in the plan, marked "Z" in the site plan Exh. P. E. is level. When I reached the spot, the earth was still wet due to rain. No water was standing in jai safeda, marked as "Z" in Exh. P. E." It appears from the statement of the Investigating Officer quoted above that the street passing from in front of the house of Khushi Muhammad (acquitted accused) was equally muddy and rain water also flowed through a drain passing in that street. The place marked 'Z' is the open space lying behind the factory of Inayatullah P. W. and the road situated on the north. According to the Investigating Officer, no water was standing there. This knocks the bottom out of the explanation given at the trial by Inayatullah P. W. and his sons as to why they had chosen the route passing from in front of the house of Khushi Muhammad and in fact goes to support the version that they had come to the house of Khushi Muhammad in order to attack him. 21. Another important feature which has a material bearing on the determination of the truth or falsity of the prosecution version is the place of occurrence. It is admitted that blood was scrapped, collected and sealed into a parcel from the western wall of the house of Khushi Muhammad (acquitted accused). This definitely establishes that the occurrence took place right in front of the house of Khushi Muhammad. This too lends support to the defence version that the complainant party had come to attack them at their house. 22. The number of injuries sustained by each party is also an important indication of the correctness or otherwise of the prosecution story. On the complainant side Mushtaq Ahmad deceased suffered One incised injury on the head, which was grievous in nature and his left scrotum was swollen. Inayatullah P. W. suffered 11 injuries, out of which two were caused with sharp-edged weapon. The nature of the injuries was, however, simple. Muhammad Yousaf P. W. suffered injuries and complained of pain on right toe. Injury No. 1 was caused with sharp-edged weapon. The nature of the injuries was simple. On the side of the accused party five persons, namely, Khushi uhammad, Muhammad Jamil and Khalil Ahmad (who have all 806 Pakistan Criminal Law Journal [Vol. V Abdul Rashid V. State been acquitted), and Qudratullah and Abdur Rashid appellants sustained injuries. Aslam Riaz Hussain, J Abdur Rashid appellant received two injuries. Both were simple and were…
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