Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah Title: MUHAMMAD KHURSHID And 3 Others vs The STATE Case No.: Criminal Appeal No. 585 of 1968 Date of Judgment:1971-12-08 Reported As: 1972 P Cr. L J 975 Result: Order accordingly

JUDGMENT

JUDGMENT Muhammad Khurshid, his two brothers Shamas Din and Yasin and his cousin Muhammad Akhtar have been convicted by a learned Magistrate Section 30, Sargodha, vide his judgment dated 27-6- 1968 under section 307/34, P. P. C. Muhammad Khurshid has been sentenced to six years* R. I. and a fine of Rs. 300 in default to suffer one year R. I. Muhammad Akhtar, Yasin and Shamas Din have been sentenced to four and a half years' R. I. and a fine of Rs. I0O each in default to suffer three months* R. I. each. All the convicts have filed this joint appeal. Abdul Aziz, the injured, has filed Criminal Revision No. 792 of 1968 for enhancement of the sentence. Both the matters are being disposed of together. The prosecution case, as disclosed in the statement of Abdul Aziz (P. W. 1), who was the victim of the attack, is as follows Abdul Aziz obtained 14 acres of land in Square No. SS in Chak No. 127/N. B. Sillanwali, on lease from Azizur Rehman and Abdul Rehman in 1963. In the same year, an area of 7 acres out of this land was sold to him for Rs. 19,000. According to an agreement, the remaining area was also to be sold to Abdul Aziz within a year. The proprietors did not perform this contract, therefore Abdul Aziz filed a civil suit for specific performance against them. The latter sold the land to Akhtar appellant and his brother Gulzar and Marghoob, the father of Muhammad Khurshid appellant. Since the entire land was in possession of Abdul Aziz the accused tried to take possession thereof by force. On this, Abdul Aziz filed proceedings in the civil Court and before the Collector and also lodged a report at Police Station Sillanwali apprehending danger from the accused. On the day of occurrence, i. e., on 23-1-2-1965 at about 4 p.m., Abdul Aziz was going to his land. When he passed near a sugar-cane field of Haji Muhammad Sharif, all the four appellants came

---

## Page 2

out and attacked him. Yasin and Akhtar appellants held him by hands while Shamas Din shouted a lalkara to his companions to do away with him. Thereupon, Khurshid appellant gave a knife blow in his abdomen. The alarm raised by the victim attracted Bashir Ahmad (P. W. 2), Khurshid Alam (P. W. 3) and Mahmood Iqbal (P. W. 5) to the spot. They witnessed this occurrence. On seeing the witnesses, the appellants ran away. Abdul Aziz became unconscious. He regained consciousness on the following day in Sillanwali hospital. Bashir P. W. stated that after the injured became unconscious, he and the other witnesses carried him to the hospital. After a short while Manzoor Ahmad Head Constable (P. W. 8) on receipt of ruqqa (Exh. P. B.) from the doctor of Sillanwali hospital reached there and recorded the statement (Exh. P. E.) of Bashir Ahmad (at 6-30 p.m.). A case was subsequently registered on the basis of this report at Police Station Sillanwali which is at a distance of half a mile from the place of occurrence at 6-45 p.m. vide F. I. R. (Exh. P. E./1). During the investigation, Khurshid appellant produced a knife (P. 3) which was taken into possession vide memo. (Exh. P. J.). On medical examination, Dr. Abdul Qayyum (P. W. 4) found the following injury on the person of Abdul Aziz :-- "An incised wound 2 x V with intestine, outside the wound on the right side of abdomen 2|" from the midline, vertical in direction." The patient was under shock. Injury was fresh and caused with a sharp-edged pointed weapon. The condition of the patient was serious, therefore he was removed to the District Headquarters Hospital, Sargodha, on 25-12-1965. The injury was ultimately declared as grievous and dangerous to life. On the same day, i.e. 23-12-1965, the doctor had also examined Khurshid appellant at 5-15 p.m. and had found the following injuries on his person:-- "(1) Two superficial incised wounds f'x on the outer aspect of the right eye-brow, both vertical in direction. (2) Two superficial incised wounds l x|" and |'x|" respectively, apart on the inner aspect of the right eye-brow, both vertical in direction. (3) A superficial incised wound 3'x on the upper part of front of left forearm, vertical in direction. (4) A superficial incised wound 3' x J" on the front of left forearm, vertical in direction. (5) An incised wound 8' x x skin deep on the front of left forearm, vertical in direction. (6) A superficial incised wound 3' x on the lower part of front of left forearm vertical in direction." All the injuries were simple in nature, were fresh in duration and were caused with a sharp-edged weapon. At the trial, the prosecution case was supported by Abdul Aziz, Bashir Ahmad, Khurshid Alam and Mahmood Iqbal P. Ws. in so far as the ocular account is concerned. The recovery of knife (P. 3) has been proved by Manzoor Ahmad, Head Constable. When examined under section 342, Cr. P. C., the appellants admitted their relationship inter se. Khurshid admitted that his cousin Akhter appellant had bought the land but it was not in possession of Abdul Aziz P. W. He denied that Abdul Aziz had filed any suit against them and that he had the knowledge that a report was made to the police. About the occurrance, he gave a counter version that on the day of occurrence he was present in his field when Abdul Aziz P. W. along with Khurshid Alam P. W. came up in the field and assaulted him with sickle .and knife and in order to save himself he snatched the knife from Aziz P. W. and gave a blow to him in self-defence. About his own injuries, he stated that they were indicted on him by Abdul Aziz and Khurshid Alam P. Ws. at the time of assault on him. He admitted his production of blood-stained knife (P. 3) before the police but explained that it was the same which he had snatched from Aziz P. W. The other appellants made almost similar statements about the motive as made by Khurshid appellant. They denied their participation in the occurrence. All of them pleaded alibi. Twelve witnesses were produced in defence. Rana Manzurul Haq Khan (D. W. 1), Mirza Ali : Nawaz Khan (D. W. 3) and Noor Hussain (D. W.

---

## Page 3

l2) deposed about the alibi of Akhtar and Shamas Din appellants while Noor Ahmad (D. W. 2) and Ahmad Sher (D. W.4) supported the plea of alibi of Yasin. Muhammad Shabhir and Muhammad Ashiq (D. Ws. 6 and 7 respectively) have tried to prove the relationship t of the prosecution witnesses inter se while Phul Muhammad (D. W. 5), Ramzan (D. W. 8), Zaheer Hyder (D. W. 9) and Phool Muhammad (D. W. 10) have tried to support the plea of self-defence raised by Khurshid appellant. Ch. Khizer Hayat (D. W. 11) is Sub-Inspector of Police who had partly investigated this case. He deposed that he did not Ghallan Yasin, Akhtar and Shamas appellants because he found them innocent. The report submitted by him under section 173, Cr. P. C. was exhibited as D. A. He further stated that he had recorded the statements of witnesses produced by the accused in their defence. The leamed trial Magistrate believed the eye-witnesses, rejected the plea of self-defence and alibi and convicted and sentenced the appellants as noted above. It is necessary to mention here that according to the learned counsel for the appellants a report was recorded by the police at the instance of Khurshid appellant for an offence under section 324, P. P. C., but the case was subsequently cancelled on the basis of the opinion of the doctor that the injuries on the person of Khurshid appellant were self-inflicted. A private complaint was then filed in the Court of a learned Magistrate, but the learned counsel did not. know as to what was the result thereof. The statement with regard to the report by Khurshid appellant to the police about his version and the result thereof is, at least, in part supported by the statement of Manzoor Ahmad, Head Constable (P. W. 8) and also by some of the observations made by the leamed trial Magistrate in his judgment. With the help of the learned counsel, I have gone through the evidence. He has raised the following contentions :-- (i) that the motive is proved but it works many ways in this case : namely, for attack on Abdul Aziz and or Khurshid appellant and also for false implication of the accused; (ii) that the land in dispute was not owned by Abdul Aziz. That being so, he was annoyed by the sale thereof to the accused party, therefore he had a strong reason to attack someone from the accused party; (iii) that even though the witnesses have denied the relationship inter se, they have been proved to be related to each other by defence evidence and the medical report Exh. P.A. where Bashir Ahmad P. W. is mentioned as cousin of Abdul Aziz, the injured ; (iv) that two of the P. Ws. have admitted that bundles of cut fodder were lying at the place of occurrence while Aziz P. W. has denied this fact; therefore, the defence story as contained in the statement of Ramzan (D. W. 8), that he having purchased the fodder from Khurshid appellant was cutting the same on the day of occurrence when Aziz P. W. and his companions came there, objected to his cutting the fodder, stopped him from doing so and then Abdul Aziz and Khurshid Alam P. Ws. attacked Khurshid appellant, appears to be correct. In this behalf, the learned counsel has relied on the doctor's statement who found several injuries on the person of Khurshid appellant; and (v) that the three appellants other than Khurshid were innocent and their plea of alibi should have been accepted. I agree with the learned counsel that the parties, namejy, Abdul Aziz on the one side and the accused on the other being inimical to each other, there is motive with either of them to attack the other. This circumstance, however, does net necessarily go against the prosecution though it will have to be kept in mind that in so far as the motive is concerned the plea of self- defence raised by Khurshid appellant stands on the same footing as the prosecution case. If the prosecution version is accepted, Khurshid appellant and his companions were annoyed with Abdul Aziz complainant because if they had paid the consideration for the land they were not being allowed by Abdul Aziz to take possession thereof. On the other hand, according to the statement made by Abdul Aziz P. W.

---

## Page 4

he was in possession and the owners had promised to sell the land in dispute to him while the appellants had, by an allegedly underhand deed, deprived him of the benefit of agreement with the owners. He having resorted to litigation had not, by then, succeeded in getting the land. I would, therefore, while judging the relevant strength of the plea of the appellants ; keep in view the above analysis of the motive. The case put forward by Abdul Aziz complainant is supported by three eye-witnesses, namely, Bashir Ahmad, Khurshid Alam and Mahmood Iqbal. They have denied that there is any relationship between them. An effort has been made in the defence evidence (Muhammad Bashir and Muhammad Ashiq D. Ws.) to show that Bashir and Mahmood Iqbal and Abdul Aziz P. Ws. are related to each other. The statements made by these two D. Ws. do not inspire confidence. However, even if it be assumed that Mahmood Iqbal and Bashir are related to the complainant, there is no proof that Khurshid Alam, the .other eye-witness, is also related to him. Learned counsel for the appellants stated that Khurshid Alam is the father of Abdul Aziz P. W. He has not pointed out any material to prove this fact. On the other hand, the particulars of Abdul Aziz P. W. given in his statement show that he is the son of Haji Abdul Haq. I, therefore, agree with the learned trial Court that it has been proved that Khurshid Alam P. W. is either interested in the complainant or is inimical to the appellants. He had no motive to falsely implicate any of the appellants. The statement of the defence witnesses by the trial Court appears to be unexceptionable. After going through their statements. I agree that they do not inspire confidence. While agreeing with the other remarks of the learned trial Magistrate in this behalf, I do not agree with his sweeping remark that if a witness is a Moeen he can necessarily be procured to make a false statement. Even if the statements of D. Ws. 1 to 4 and l2, who deposed in support of the pleas of alibi of Muhammad Akhtar, Shamas Din and Yasin appellants have not been believed, it does not mean that by failure of their plea of alibi, the prosecution gained something and thus charge against them has been proved beyond reasonable doubt. It is obvious that all three of them have been attributed insignificant role which, in view of the solitary injury on the complainant, was not a necessary part of the occurrence. Secondly, all the appellants are alleged to have concealed themselves in a sugar-cane field. Bashir Ahmad, Khurshid Alam and Mahmood Iqbal P. Ws. have not stated that all the appellants had concealed themselves in a sugar-cane field before the occurrence. Moreover the site plan indicates as if the place of occurrence where the complainant was injured is away from the sugar-cane field and he was not likely to pass nearby it. It is, therefore, not unlikely that the appellants were present at the place where the occurrence took place and had not concealed themselves in the sugar-cane field. It is not necessary to assume that there was a pre-concert. Thirdly, none of the eye-witnesses stated that before the actual assault, the knife was openly seen in the hand of Khurshid appellant. The motive is such that the common intention between the appellants could have been only to over-awe the complainant or at the most, to give him beating so that he might give up his claim in the land. It is not necessary that they should have all intended to kill him. In these circumstances, even if all or some of them grappled with him and one of them shouted that he should be done away with it does not necessarily mean that all of them had a common intention to kill him and they acted in furtherance of common intention of all. The fact that knife was not seen in the hand of Khurshid appellant before the actual assault is a very important and significant circumstance, due benefit of which cannot be withheld from the appellants other than Khurshid. I am, therefore, in serious doubt with regard to the culpabiliy of Shamas Din, Yasin and Akhtar appellants in so far as the offence charged is concerned. At the most they might have been guilty of a simple assault. It is not necessary to record a conviction of assault against them. They have already undergone some sentence. I, therefore, accept their appeal and by giving them benefit of doubt, acquit them of the( offence charged.

---

## Page 5

The case against Khurshid appellant is on a different footing. He has raised a counter-version, namely, that he voluntarily caused the injury to the complainant but this act on his part was in exercise of right of private defence. The prosecution case that he did cause the injury is not only supported by the eyewitnesses but also by his own admission. The question to be examined is whether there is a reasonable possibility that Khurshid appellant acted in exercise of right of private defence or in other words whether the prosecution has proved the case against him beyond reasonable doubt, I agree with the learned counsel that both the versions have to be put in juxta position and they cannot be considered in isolation. It is true that Abdul Aziz P. W. even if he were an aggressor would not admit that he aggressed against Khurshid appellant. Therefore, his statement alone is not enough to reject the plea of self-defence. But it is not the statement of Abdul Aziz P. W. alone which has been used against Khurshid appellant. There are statements of other eye-witnesses which have been believed and, as already noted, there is no . reason to assume that Khurshid Alam P. W. had any motive to falsely implicate Khurshid appellant or not to tell the truth if the appellant was a victim of aggression. With regard to defence witnesses on the plea of self-defence, I may again note that the reasons given by the learned trial Court for not relying on them are unexceptionable and I have not been impressed by their statements. Thus in so far as the ocular evidence is concern-. ed, the prosecution case is on much stronger footing. But that would not end the matter. In such a case, the weight of available circumstances must always be considered so as to reach a correct conclusion. There is one circumstance which goes in favour of the defence plea, namely, that even according to the prosecution there were about a dozen bundles of cut fodder lying at the spot when the occurrence took place. From this an argument can be raised that Khurshid appellant was in possession. He had sold the fodder to Ramzan P. W. and therefore Abdul Aziz attacked him and tried to kill him. But this is not the only inference. This circumstance also supports the prosecution case, even if its truthfulness has been denied by Abdul Aziz. If Abdul Aziz was in possession, it would be a normal method of forcibly taking over the possession to cut the fodder in large quantity (bundles) and to take it away. In this manner, the possession would not only have been asserted but to some extent established. The presence of all the four appellants at the spot when the fodder was being cut on a large scale, gets explained that they tried to assert, take over and establish their possession on the land in dispute. In these circumstances, if Abdul Aziz intervened and dissuaded them from doing so, he was not committing any offence. Therefore, Khurshid appellant had no right of private defence of property. But the above circumstances are not as important as what I am going to notice. After carefully going throtigh the evidence, I am not satisfied that Abdul Aziz, in fact, assaulted Khurshid appellant. Firstly, the plea in respect of this assault is not consistent at various stages of the trial, namely, in cross-examination on the eye- witnesses; in the statement under section 342, Cr. P. C.; and in the defence evidence. Secondly, it is highly improbable rather impossible that if about four persons wanted to attack Khurshid appellant and if two of them were armed, one with a knife and the other with a sickle, they would not have been able to inflict any substantial injury to him and would, instead, suffer one from themselves, i. e., Abdul Aziz complainant, mortally injured in abdomen by Khurshid appellant, single handedly. Thirdly, even if the statement of the Head Constable (Manzoor Ahmad) that the doctor had declared the injuries on Khurshid appellant as self-inflicted be ignored as not being, strictly speaking, evidence, the fact remains that on such an opinion case under section 342, P. P. C. against the complainant party was cancelled. There is nothing illegal in Manzoor Ahmad, H. C. making a statement in respect of cancellation of the case and that part of the statement, therefore, is legal evidence. The learned trial Magistrate has also noted this fact. Moreover even without the aid of a medical expert, the Court is competent to look into the nature of the injuries. It is not always necessary that

---

## Page 6

the Court must depend upon the opinion of a medical expert on the question whether or not a certain injury is self- ^ suffered or self-inflicted. I have carefully scrutinised the ' dimensions and the location of the injuries on the person of Khurshid appellant. I have also perused the pictorial diagram of those injuries. All the injuries are concentrated on two parts of the body and are in sets of several parallel superficial linear incisions which are only skin deep. It is impossible to believe that they were caused by an adversary. They clearly appear to have been either self-suffered or self-inflicted. It is not possible to imagine that two persons assaulting with knife and sickle would cause the injuries found, on the person of Khurshid. Fourthly, if the complainant party assaulted the appellant in such number, they, as noted above, would not have suffered so badly. Moreover, they would not have allowed Khurshid appellant to take away the knife which, according to his statement belonged to Aziz complainant. Only Abdul Aziz was injured at the spot. If four persons had come there with the intention of assaulting Khurshid appellant, they could at least retrieve the knife from him. Qn the other hand, the production of the bloodstained knife by Khurshid. supports the prosecution case. Considering all the circumstances, I am satisfied that there are no reasonable grounds to believe that Khurshid appellant acted in exercise of right of private defence. The prosecution has been able to prove the case against him beyond reasonable doubt. Therefore, I maintain his conviction for offence under section 307, P. P. C. The sentence of six years' R. I. and a fine of Rs. 300 awarded to him, in the circumstances, is not excessive. I, therefore, maintain the same and dismiss his appeal. In respect of Criminal Revision No. 792 of 1968, it is to be remarked that there is no justification for enhancing the sentence. However, it is directed that the amount of fine of Rs. 300 when realised from Khurshid appellant, shall be paid as compensation to Abdul Aziz P. W. and, in case of his death before realisation, to his heirs. .

Related Legal Research & Directories

• Browse all judgments from Lahore High Court
• Browse Pakistani court decisions from the year 1971
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant