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Petitioner: RASHEED AHMAD VS Respondent: THE STATE
2000 Y L R 1331
2000 Y L R 1331
[Lahore]
Before Khawaja Muhammad Sharif, J
RASHEED AHMAD‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 160 of 1989, heard on 10th February, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/304/323‑‑‑Appreciation of evidence‑‑‑Deceased was married to real sister of accused‑‑‑Relationship between husband and wife were not cordial and they used to quarrel with each other so often‑‑ Wife of deceased went to house of accused who was her brother and accused asked deceased to keep his sister in his house, but deceased refused on which an altercation took place between the accused and deceased‑‑ Co‑accused, according to prosecution version, put "Safa (cloth) " around the neck of deceased while accused gave injury with natchet on head of deceased‑‑‑Accused had taken plea of right of self‑defence in his statement recorded under S. 342, Cr. P. C.‑‑ No previous background of enmity was shown between accused and deceased who were closely related to each other‑‑‑Ends of justice would be sufficiently met if conviction of accused was converted from S.302, P. P. C. to S. 304, P. P. C.‑‑‑Accused who was behind the bar since his arrest, sentence already undergone by accused, was treated to be sufficient to meet the ends of justice‑‑ Conviction of co‑accused was also converted from S. 302, P. P. C. to S. 323, P.P.C. and sentence already undergone by him was treated sufficient in the interest of justice.
Sardar Ahmad Khan for Appellant.
Saleem Nawaz Abbasi, A.A.‑G. for the State.
Date of hearing: 10th February, 2000. .
JUDGMENT
This judgment will dispose of Criminal Appeal No. 160 of 1989 filed by Rasheed Ahmad and Muhammad Sadiq, appellants. They were convicted and sentenced by learned Sessions Judge, Bahawalnagar on 22‑10‑1989 for the murder of Khushi Muhammad deceased under section 302, P.P.C. to undergo life imprisonment each with a fine of Rs. 10,000 each and in default thereof to undergo one year R.I. each. Fine if recovered was ordered to be paid to the legal heirs of the deceased "Khushi Muhammad.
2. The occurrence in this case took place in the area of Mauza Haddiwala at a distance of ten k.ms., away from Police Station, Mandi Sadiq Ganj on 21‑11‑1988 at 8‑00 p.m. and the matter was reported to the police by Mst. Fatima w/o Muhammad Saee on 22‑1‑1988 at 12‑15 p.m., on which formal F.I.R. Exh..P.C. was recorded by Mahmood ul‑Hassan, S.I., P.W.9. S.I./S.H.O. of the above said Police Station, on the same day.
3. Briefly stated the facts of the prosecution case are that Khushi Muhammad deceased was married to a sister of Muhammad Sadiq, who was also the sister of the father of Rasheed Ahmad. Unfortunately, Khushi Muhammad deceased had not cordial relations with his wife and they used to quarrel with each other so often that she went to her brother Muhammad Sadiq and then was restored to her husband. At the time of this occurrence, Mst. Kaki wife of khushi Muhammad deceased had been deserted by her husband and both the accused came to the house of Khushi Muhammad and his mother to request that Khushi Muhammad should bring his wife and children in his house but he did not agree and insisted to divorce her. Today, at about 6‑00 p.m. complainant had come in his mother's house, where her husband namely Muhammad Saeed and Muhammad Boota were also present. In the meanwhile, Muhammad Sadiq and Muhammad Rasheed, appellants also came there, Muhammad Sadiq asked to send for Khushi Muhammad and make him to understand to bring his wife namely Mst. Kaki so, Muhammad Boota went to send for his brother Khushi Muhammad. During conversation, an altercation took place between Khushi Muhammad deceased and Muhammad Sadiq, appellant, upon which Khushi Muhammad flatly refused to bring Mst. Kaki a back and went to his house in the other Ihata. It was about 8‑00 p.m. when Muhammad Sadiq and Muhammad Rasheed appellants went to the house of Khushi Muhammad deceased and after some time, the P.Ws. heard hue and cry from the house of Khushi Muhammad. They rushed to the place of occurrence and there they saw Muhammad Rasheed accused/appellant twisting a Safa around the neck of Khushi Muhammad while Muhammad Sadiq gave hatchet blows on the head of Khushi Muhammad deceased and as a result of this Khushi Muhammad fell on the ground and the accused ran away. Khushi Muhammad expired at the spot and M Ghulam Fatima sister of the deceased went the police station and lodged the report.
3. After the registration of case, Mahmood‑ul‑Hassan, S.‑I. P.W.9 reached at the spot, prepared site plan Exh. P.D., injury statement Exh. P.E. and inquest report E. P.F. in respect of Khushi Muhammad deceased. He also collected blood‑star earth from the spot and took the same possession vide recovery memo. Exh. P Rasheed appellant was arrested in this case 14‑12‑1988 while Muhammad Sadiq appeal was arrested on 15‑1‑1989. Muhammad Sa. appellant while in police custody led to recovery of blood‑stained hatchet P.5 which was taken into possession vide memo, F P.C. Reports of Chemical Examiner are E :, P.J. and Exh. P.K. and that of Serologist. Exh. P.L. and Exh. P.M.
4. Prosecution in order to prove its produced 12 witnesses in all, thereat: statements of the appellants were recorded under section 342, Cr.P.C., in which pleaded innocence and claimed false implication.
5. After reading the prosecution evidence and the statements of the appellants recorded under section 342, Cr.P.C., learned counsel for the appellants submits that no case under section 302, P.P.C. is made out, that offence if any would fall under section 304, P.P.C. Further submits that appellant had taken the plea of right of self‑defence in his statement recorded under section 342, Cr.P.C. He submits that as far as, Muhammad Rasheed, appellant is concerned, he was not present at the spot, that occurrence took place at the spur of the moment, the appellants without taking an undue advantage had caused only one injury to the deceased.
6. On the other hand, learned A.A.‑G. submits that both the appellants are named in the F.I.R., that as far as, Muhammad Rasheed appellant is concerned, he put the Safa around the neck of the deceased while Muhammad Sadiq appellant gave hatchet blows on the head of the deceased Khushi Muhammad which proved fatal. Further submits that recovery has also been affected on the pointation of Muhammad Sadiq, appellant, which was found to be stained with human blood.
7. I have heard the learned counsel for the parties and have also gone through the prosecution evidence with their assistance. In the instant case, Muhammad Sadiq, appellant had taken the plea of right of self‑defence in his statement recorded under section 342, Cr.P.C. and specially while replying to question No.7, he has stated that:
"The deceased used to beat and drive out Mst. Kaki from his house alongwith children and I always took them back to his house. About one week before this occurrence Khushi Muhammad again turned out Mst. Kaki alongwith her children from his house. She went to her daughter in village Darbariwala. On getting this information I went to Khushi Muhammad in his house and requested him to bring his wife but he started abusing me and uttered words of Bagharit etc. to me. Then we scuffled with each other. He picked up a hatchet and attacked me but I snatched the hatchet from him and caused an injury to him in order to save myself. I informed the Chairman and he produced me before the police on 'the next day. The police in complicity with .the complainant fabricated this false story against me: The remaining story of the prosecution with regard to the recovery of hatchet etc. is fabricated. Rasheed accused was not with me at that time."
In the instant case, Khushi Muhammad deceased was married to Mst. real sister of Muhammad Sadiq ant. Muhammad Sadiq appellant used to hushi Muhammad deceased to keep his Mst. Kaki in his house but deceased d to do so, on which an altercation took between the parties. On the day of rence, according to the prosecution, Muhammad Rasheed appellant put the Safa d the neck of the deceased while mm ad Sadiq appellant gave an injury hatchet on the head of the deceased. was no previous background of enmity en Muhammad Sadiq appellant and the sed and they are closely related with other. I think, that the end of justice 1 be sufficiently met, if the ction of Muhammad Sadiq is converted from section 302, P.P.C. to section 304 P.P.C. (as it then was) when the occurrence took place. Muhammad Sadiq, appellant was arrested in this case on 15‑1‑1989 and it has been submitted before me that since then he is behind the bars, so the sentence which he has already undergone is treated to be sufficient to meet the ends of justice, in the circumstances of the case. He shall be released forthwith, if not required in any other case. As far as, Muhammad Rasheed. appellant is concerned, his conviction is also converted from section 302, P.P.C. to section 323, P.P.C. and the sentence which he has already undergone is also treated to be sufficient to meet the ends of justice in the circumstances of the case. He is on bail and he shall be discharged from his bail bonds.
H.B.T./R‑6/L
Order accordingly.