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Petitioner: NAZAR HUSSAIN VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Aslam Riaz Hussain Title: NAZAR HUSSAIN vs The STATE Case No.: Criminal Appeal No. 888 and Murder Reference No. 222 of 1969 Date of Judgment:1970-12-23 Reported As: 1972 P Cr. L J 920 Result: Appeal partly accepted
JUDGMENT
JUDGMENT Muhammad Afzal Zullah, J.--Nazar Hussain, aged 25 years has been convicted under section 302, P. P. C. and sentenced to death by the learned Additional Sessions Judge, Rawalpindi, vide his Judgment dated 29th October 1969. He has appealed while the sentence of death is before us for confirmation. Both the matters are being disposed of together. 2. The facts of the case as disclosed in the statement of Feroze Din (P. W. 7) who is also the first informant are as follows:-- On the day of occurrence i.e. 16th November 1968, at about 9 or 10 a.m. the witness was working in the Baghicha of one Abdul Aziz. He saw Mehrban the deceased in this case going towards Gujjar Khan city. Nazar Hussain appellant was coming from the opposite direction. Both of them were previously known to the witness. When they came close to each other the appellant, inflicted nine or ten knife blows to the deceased, and thereafter ran away with the knife. Muhammad Alcram (P. W. 8) and Khadim Hussain (P. W. 9) also saw the occurrence. Leaving them on the spot Feroze Din left for the police station which is at a distance of half a mile and lodged the report Exh. P. D. at 10- 30 a.m. It was recorded by Sher Dil Khan, Sub-Inspector (P. W. 10). When the witness was coming back to the spot in the company of the Sub-Inspector he saw that some persons were bringing the deceased on a cot. They placed it on the ground and it then transpired that the deceased had succumbed to the injuries. The motive for the offence is that the appellant suspected the deceased of having illicit relations with his niece Mst. Balqis. The appellant was arrested on 22nd November 1968. On 4-12-1968, he led to the recovery of knife P. 1 from a bush. It was taken into possession vide memo. Exh. P. C. The knife was not sent to the Chemical Examiner presumably because it was not stained with blood.
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3. On autopsy held by Dr. Muhammad Aslant (P. W. 1), the following injuries were found on the dead body :-- (1) A stab wound 2J' x V x penetrating the chest on 6th intercostal space extending towards the left from middle line. (2) A stab wound 5' x 3" on abdomen, just on umblicus. Intestines and mesentry were protruding out. (3) A stab wound 4" x 1" x penetrating the mouth on right cheek. (4) An incised wound l\' x j' x !' on right upper arm 1* above elbow frontal part. (5) Ail incised wound 3' x x J' on right hand ulnar border extending up to wrist. (6) An incised wound 1* x J' x J* on right little fiugure at its base. (7) An incised wound 1J* x J* x f on right wrist ulnar border. (8) An incised wound J' x J' x |* on left thigh upper one- third. (9) An incised wound J* x J* x J* below left knee. (10) An incised wound }' x J' x J' on right side of nose. The sternum and two ribs on the left side were cut. Pleura was punctured and pleural cavity was full of blood. Heart had been punctured at the ventricles through and through. Wall of the abdomen was punctured at umblicus. Peritoneum had been cut and peritoneal cavity was full of blood. Right cheek had been incised and the tongue had been injured. Small intestines were punctured at various places and large intestines were perforated at transverse colon. Stomach contained semi- digested food. Bladder was empty. The death was immediate after the injuries while the probable time between death and post-mortem was about two hours. The cause of death was shock and internal haemorrhage, due to the injuries on the vital organs i.e. heart, small intestines and large intestines. All the injuries were caused with sharp-edged weapon. Injuries Nos. 1 and 2 were sufficient in ordinary course of nature to cause death. The doctor was of the opinion that in all probability the deceased was not in a position to speak after receiving the injuries and that he might have expired within five minutes after the receipt of the injuries and that during this time he might have remained unconscious. 4. At the trial the ocular account of the occurrence, was given by Feroze Din, Muhammad Akratn and Khadim Hussain P. Ws. They fully supported the prosecution case. Abdul Rehman (P. W. 6) deposed about the motive and supported the prosecution. The motive part of the prosecution case is also supported by Feroze Din (P. W. 7). Abdul Rehman also stated that at the time of occurrence on hearing the alarm he went out of his house and saw the deceased lying injured on a Pagdandi. On inquiry, the deceased told him that Nazar Hussain appellant was his assailant. The recovery of knife is supported by Sher Dil Khan (P. W. 10). 1he memo, of recovery appears to have been signed by Abdul Rehman (P. W. 6) but he did not make any statement in that behalf. 5. The appellant who is an Army employee when examined under section 342, Cr. P. C., denied all the material allegations against him. He also denied the motive part of the prosecution case but admitted that Mst. Balqis is his sister's daughter. About the dying declaration, said to have been made by the deceased and deposed to by Abdul Rehman P. W. he doubted whether the deceased was in a position to speak after receiving the injuries. At the end of his examination, he explained that the deceased Mehrban and the eye-witnesses were on inimical terms with him since the last B. D. Elections and that Feroze Din P. W. had also enmity with him over the dispute of some land. It may, however, be pointed out that there is nothing in the evidence to support this plea of appellant. Earlier at the commitment stage, the appellant had stated that on the day of occurrence he was on duty in his Army Unit at Kharian. He, however, did not produce any evidence in defence. 6. The learned trial Judge believed Abdul Rehman P. W. in so far as the motive is concerned but did not rely on his statement regarding the dying declaration because it was not supported by the
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medical evidence. He also excluded from consideration the recovery of the knife at the instance of the appellant because it was not found to have been stained with blood. 7. We have gone through the evidence with the help of the learned counsel. The learned trial Judge has given good reasons for excluding the evidence with regard to the dying declaration and the recovery of the knife. The learned counsel appearing on behalf of the State has not relied on these two pieces of the evidence. There are no reasons for us to differ with the assessment of the evidence by the learned Judge in this behalf. Therefore, we also would keep these two items out of consideration. 8. The fate of this case hinges upon the appreciation of the eye-witnesses account given by three witnesses, namely Feroze Din, Muhammad Akram and Khadim Hussain. The learned trial Judge observed that Khadim Hussain and Feroze Din P. Ws. are related to the deceased while Muhammad Akram has no relationship with him. We have not been able to find from evidence that Feroze Din P. W. is related to the deceased. When called upon to show any material in support of this finding by the learned trial Judge, the learned counsel for the appellant was unable to find any. It is, however, true that the mother of Muhammad Akram is the niece of Feroze Din P. W. When Feroze Din P. W. was asked whether his sister Mst. Jiwani was married to the maternal uncle of Rajwali, the father of the deceased, the witness showed his ignorance about it. Similarly, Muhammad Akram showed his ignorance whether Mst. Zainab Bibi his maternal grandmother was the daughter of the maternal grandfather of the deceased. The relationships suggested to these two witnesses are so remote that it cannot be said that their answers in cross-examination in that behalf were motivated by desire not to tell the truth. Sometimes in such like circumstances the relationship suggested is not correct to the detail and the witness is unable to accept or deny the suggestion. The relationship suggested related to the maternal uncle of the father of the deceased. In these circumstances we are unable to hold that Feroze Din and Muhammad Akram P. Ws. are related to the deceased. Khadim Hussain P. W., however, has admitted that Mst. Mahmooda Jan, the widow of the deceased, is the daughter of his sister Mst. Khanam Ji. Tn any case the relationship of any of the witnesses with the deceased is not of much help to the appellant. It is in evidence that the house of Muhammad Akram P. W. is at a distance of 16/17 yards from the place of occurrence while that of Khadim Hussain is at a distance of about 200 yards from there. These two witnesses were basking in the sun on a road at the time of occurrence at a distance of 30/35 yards from the place of occurrence. (See examination-in- chief of Khadim Hussain P. W.). The place of occurrence is near the Baghicha of one Abdul Aziz and Feroze Din P. W. was working in that Baghicha when the occurrence took place. Moreover, according to the suggestion made to this witness in cross-examination, it appears, that his house is also very near the place of occurrence. Therefore, it can be held that all these persons are the natural witnesses. 9. There is another aspect of the statements made by these witnesses. None of them has any enmity with the appellant. Therefore, these witnesses who are disinterested and can in the natural circumstances be expected to have seen the occurrence cannot be disbelieved unless there is something inherent in their statements, which makes them unbelievable. 10. Mian Mahmood Ali Kasuri, Advocate, learned counsel for the appellant pointed out certain infirmities in the prosecution case. According to the doctor the depth of injuries Nos. 1 and 2 is more than 6" while the blade of the knife recovered at the instance of the appellant is only 3". Therefore, according to the learned counsel the weapon of offence must have been different one with a longer blade and from this he concludes that the eye-witnesses told a lie, when they stated that they saw the appellant inflicting injuries with a knife to the deceased. It may be pointed out that both these injuries are on such parts where under are cavities of the body. Normally, it is very difficult to give the depth of the wound when the location of the injuries is the chest or the abdomen. The doctor while describing these injuries did not give the depth thereof. It was on
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subsequent questioning that he opined about the depth. Moreover, the knife was not shown to the doctor, therefore it is not possible to hold that these injuries could not have been caused by the knife produced in Court, ln any case, the knife was not stained with blood and the recovery has been kept out of consideration. The result of this finding is that we are not sure whether the same knife was used in the commission of the crime. The appellant might have used a knife with a longer blade which could have caused these injuries. We, therefore, repel the contention of the learned counsel. [3] The injuries on arm, wrist and hand are such which could have been sustained by the victim in his effort to ward off the attack. Similarly, the injuries on his left thigh and knee are of the type which could have been sustained by him if he tried to push the assailant with his left leg. We, therefore, find no force in this contention either. l2. On the basis of the site plan and questions asked from the Investigating Officer in this behalf, it was argued by the learned counsel that the place of occurrence is shown to be in a field which is at some distance from the main road. According to him it is unexplained as to how and why the deceased went.in the field and was attacked there by the appellant. The learned counsel, it appears, has ignored the fact that, according to the prosecution case, the deceased was coming on path which goes through the fields and the appellant was coming from the opposite direction presumably on the same path when the occurrence took place. Abdul Rehman (P. W. 6) has clearly stated in cross-examination that the deceased was lying on a path which passes through the field. Feroze Din (P. W. 7) was questioned about the route the deceased had taken for going from his house to Gujjar Khan city. In answer to the question in this behalf he stated as follows:-- "If somebody goes to Gujjar Khan from the house of the deceased he will have to pass through Kass Pharwal. The way upon which the deceased was coming is different from that way. (Volunteered). It is a shorter route. It is incorrect to say that the way of city Gujjar Khan through Kass Pharwal is shorter than the one upon which the deceased was going. The wheat crop was grown in the field where the occurrence took place. Its height was only about one or two inches. It is incorrect to say that the field of occurrence was vacant site. There is abadi near the place of occurrence." The above statement shows that the deceased was going on a path which passes through the field. It is not uncommon to find such paths in the fields. We, therefore, hold that according to prosecution the occurrence took place on a path which the deceased was following at the time of occurrence. 13. On the basis of statement made by the Investigating Officer that there are shops and abadi near the place of occurrence, it was argued that none from that abadi or from the shops had been cited as a witness. In this very connection it was argued that the occurrence took place in the area of Dhoke Hayat Ali while all the three eye-witnesses are from the city of Gujjar Khan. It appears from the evidence that Dhoke Hayat Ali is suburban extension of the city of Gujjar Khan. The occurrence took place in a field which lies in the area of Dhoke Hayat Ali but is otherwise very near, and if one may say so, is in the city of Gujjar Khan itself. It is in the statement of Ghulain Hussain Patwari (P. W. 5) that only a Kassi (a small stream) intervenes the place of occurrence and Gujjar Khan city and there is a bridge over that Kassi. ln other words, technically speaking, a bridge over a Kassi only, intervenes between tfie city and the place of occurrence. Muhammad Akram (P. W. 8) the eye-witness explained that the aforesaid Kassi intervenes the place of occurrence and the place where his house is situated. While giving his address, he described his residence as Ward No. 1. It, therefore, becomes obvious that the house of Muhammad Akram P. W. though being situate in Ward No. 1 of Gujjar Khan city, is near Dhoke Hayat Ali and the place of occurrence i.e. only 16/17 yards away. We have already noted that the houses of Feroze Din and Khadim Hussain P. Ws. are also not very far away from the place of occurrence. There are
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shops in the abadi of Dhoke Hayat Ali. Therefore, we have not been convinced by the argument of the learned counsel that the eye-witnesses are from a different locality than that of the occurrence. 14. As to the non-production of any other person of locality, it may be pointed out that according to Khadim Hussain P. W. (in an answer to a Court question), shops were closed at the time of occurrence. The attack on the deceased was sudden. The occurrence took place in the month of November 1968. The time of occurrence is said to be between 9 and 10 a.m. During that cold season, at place like Gujjar Khan in the District of Rawalpindi, it is unlikely that people in a suburban locality of the city were moving about in any large numbers, when the occurrence took place. The prosecution has produced three eyewitnesses w'ho, according to their statements were very near the spot when the occurrence took place. None else is said to have seen the occurrence. Therefore, it is not a case of the prosecution withholding some important witness. We therefore, repel the contention of the learned counsel. 15. As a corollary of the above argument it was also contended that Muhammad Akram P. W. used to work as a labourer on a truck-stand and Khadim Hussain P. W. used to sell Gandairis in the city. Therefore, according to the learned counsel, it was unusual for both of them to be basking in the sun and being present near the spot. Muhammad Akram has explained in cross-examination that he used to do his labour at l2 or 1 noon. This claim of the witness was not further challenged in cross-examination and there can be nothing unusual about it; particularly if he used to do the loading work in the trucks which normally ply during the night. Similarly, Khadim Hussain, explained in cross-examination that he used to start selling the Gandairis at about l2 noon. There is nothing wrong in this explanation. A day of about 8/10 hours for a Gandairis seller starting at about 11 a.m. is nothing unusual or improbable. 16. Lastly, it was contended that all the three eye-witnesses are chance witnesses, therefore, their evidence needs strong corroboration. We don't agree with the learned counsel. The eye-witnesses are the residents of the locality. Feroze Din P. W. was working in the Baghicha. He was (in cross- examination) asked, in minute details about his work and the surroundings. He stood the test of cross-examination. His presence at the spot as claimed by him is not at all improbable. Similarly, Muhammad Akram and Khadim Hussain have claimed that they were present near the place of occurrence and were basking in the sun. They have also stood the test of cross-examination and their claim about presence near the spot is not at all improbable. In the circumstances, none of the witnesses can be held to be a chance witness. The names of all the eye-witnesses are mentioned in the F. I. R. which was lodged with a great amount of promptitude. The mention of the name of the appellant, who was an Army employee on leave, in the F. I. R. is very significant. Unless Feroze Din had seen him attacking the deceased he would not have mentioned his name as the assailant. 17. After having read the evidence and having considered points raised by the learned counsel we are satisfied that Mehrban deceased was attacked and killed by the appellant in the circumstances deposed to by the three eye-witnesses, whom we believe to be true. 18. The next question to be determined is as to what offence has been committed. The learned counsel for the appellant in this behalf urged that according to the prosecution (statements made by Abdul Rehman and Feroze Din P. Ws.) the deceased was pursuing a love affair with the niece of the appellant. The latter bad on two occasions previous to the occurrence, tried to dissuade the deceased from this illicit liaison but he continued the same with persistence. It was also pointed out that there is nothing in the evidence to show that before the actual attack the appellant gave any challenge to the deceased or came with an open knife. It was also urged that according to all the three eye-witnesses they did not notice as to how the attack originated. Therefore, considering all the circumstances, the learned counsel, tried to argue that something must have been done by
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the deceased immediately before the attack must have provoked the appellant; and his niece being involved in the affair, the provocation must have been grave and sudden, therefore, the conviction should be under section 304, Part I. There is nothing on record not even a suggestion nor a claim by the appellant to show that the niece of the appellant was present near about the spot or that the appellant on this occasion also tried to remonstrate with the deceased and the latter said or did anything which might have suddenly and gravely, provoked the appellant. The contention of the learned counsel, if we may say so, is based on mere conjecture and we cannot give any effect to it. He, however, cited some ruling which need to be noticed. They are Khan Mir v. Emperor (1), Fateh Muhammad v. The Crown (2), Imam Bakhsh v. The State (3), Fateh Muhammad v. State (4), Muhammad Sadiq v. The State (5), and Fazle Malik v. The State (6). 19. In the Lahore case of Khan Mir, the finding was that a sudden fight arose between accused and the deceased upon a dispute about drawing water from a tap with the result that the (2) PLD 1953 B J 27 (4) PLD 1967 Lah. 579 (6) 1969 SCMR 364 accused drew out a kuife and stabbed the deceased. It was held that the attack was not premeditated and that the accused could only be attributed a knowledge that the injury was likely to cause death. Therefore, he was convicted under section 304, Part II. In Baghdad-ul-Jadid case of Fateh Muhammad the circumstances were somewhat similar to those in the above-noted Lahore case. Following the Lahore case it was observed that "there was a sudden quarrel which led to a sudden fight and an injury with a knife was inflicted on the chest of the deceased which proved fatal. There being no premeditation, and the motive and origin of the fight being unknown it would be not safe to hold that the appellant intended to cause the death of his victim." Therefore, the conviction was altered from section 302, P. P. C. to section 304 (II) : P. P. C. In the Lahore case of Imam Bakhsh, the circumstances which led to the death of the woman deceased had their origin in her quarrel with the accused (her husband) in connection with the property that had been given by her father-in-law to his grandson. The deceased had persistently been following her demand for the partition of the said property and continuously been pestering the accused in that connection. Throughout the night preceding the day of occurrence, the deceased persisted in her quarrel with him and in the morning again pressed her demand for the partition of the property. On the accused's refusal to pay any heed to her demand the deceased ran out of the house thrice, saying she would not like to stay with him if he would not get the property in question partitioned. On the third occasion she fan out of the house even without a burqa and thereafter started abusing the accused. Thereupon, the accused who was already exasperated on account of her pestering demand for the division of the property in question and unreasonable attitude had become so incensed that he picked up a hatchet which was lying nearby, and caused her fatal injuries. Considering this background it was held that the attack was due to grave and sudden provocation, therefore, the case fell under section 304, Part I, P. P. C. The Lahore case of Fateh Muhammad alias Fattu, noted above, also relates to killing by the husband of his wife on a finding that it was due to grave and sudden provocation. In the case of Muhammad Sadiq from Baghdad-ul-Jadid the two judgments in the cases of Ali Muhammad and Imam Bakhsh from Lahore, noted above were followed and it was held that during a family dispute which resulted in a flare-up, in which the appellant lost his powers of self- control and got "highly infuriated" and injured the deceased, it was held that the case fell within section 304, Part I, P. P. C. In the case of Fazle Mali and another, their Lordships of the Supreme Court were dealing with a matter in which both the parties had sustained injuries. In the peculiar circumstances of the case,
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after observing that the learned Judges of the High Court "were unable to regard the attack on Shamshad as having been unprovoked," it was held that action of one of the accused amounted to culpable homicide not amounting to murder "in view of the probability of there having been provocation which in all the circumstances may be assumed to have been of a grave and sudden character." Their Lordships also visualised that the provocation in the case might have been due to the "infliction of injuries as well as by other actions". The facts of all these cases are clearly distinguishable. They are of no advantage to the appellant. It cannot be held that the deceased in this case did anything which might have given rise to grave and sudden provocation to the appellant. We, therefore, hold that his conviction under section 302, P. P. C. is fully justified. 20. On the question of sentence, the learned counsel for the appellant has urged two points. Firstly that the origin of the attack is shrouded in mystery, therefore, Jesser punishment of transportation for life will meet the ends of justice; and secondly, that the deceased having persisted in illicit liaison with the niece of the accused it was due to honour and in utter exasperation that the appellant killed him. Therefore, the extreme penalty of death should not be imposed. The case of Slier Singh v. Emperor (l) has been cited in support of the first contention, ln this case the adversaries had met at about 8 o'clock in the evening and had abused each other but were separated. The occurrence took…
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