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Petitioner: STATE VS Respondent: ISMAIL AND ANOTHER
Court Name: Lahore High Court Judge(s): Muhammad Ilyas, Ghazanfar Ali Gondal Title: STATE vs ISMAIL AND ANOTHER Case No.: Criminal Appeal No. 288 and Criminal Revision No. 475 of 1974 Date of Judgment:1982-11-27 Reported As: 1983 P Cr. L J 658 Result: Order accordingly
JUDGMENT
JUDGMENT GHAZANFAR ALI GONDAL, J.-Ismail son of Gulab Din, aged 50 years, and his wife's brother Abdul Hamid son of Barkat Ali, aged 25 years, both Mashki by caste, residents of Chak No. 205/GR, Police Station Sammundri, District Faisalabad, were tried by the Sessions Judge, Faisal--abad, for offences under section 302/307/34, P. P. C. For committing, in furtherance of their common intention, the murder of Abdul Hamid and for making murderous assault on Liaqat P. W. The Sessions Judge vide his judgment dated 17th October, 1973, acquitted the accused of the charges under section 302,1307/34, P. P. C. This is a State appeal against the acquit--tal of the respondents. The complainant has also filed a revision (Criminal Revision No. 475 of 1974), which is not yet admitted to regular hearing. This judgment will dispose of both the matters. 2. According to the prosecution story, as disclosed in the prosecution evidence, Muhammad Ramzan, father of Abdul Majid (P. W. 10) and Abdul Hamid deceased is the owner of about 61 killas of land in Chak No. 205/GB, Tehsil Sammundari, District Lyallpur and is also the owner of about three squares of land in village Kharianwala, District Sheikhu--pura. Abdul Majid P. W. 10 and Abdul Hamid deceased resided in Chak No. 205/GB. Respondent Ismail and Abdul Hamid are Mueens in this village. Sometimes before the occurrence, Abdul Hamid deceased and Abdul Majid P. W. Had employed Muhammad Ramzan aged 9/10 years, son of Ismail respondent, as a servant for putting fodder to their cattle. A day prior to the occurrence, Muhammad Ramzan did not turn up for performance of his duty and deceased Abdul Hamid had called Ismail respondent to his house and enquired from him the reason why Ramzan had not come on duty and thereupon Ismail had promised that Ramzan will attend his duty next day and if he does not turn up, he (Ismail) himself would come. Razman did not turn up even on the day of occurrence i.e. 15th June, 1971. Abdul
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Hamid deceased wanted to go to Torianwala on that day to purchase a shoe while Abdul Majid P. W. Wanted to go to Kharianwala. On coming to know that Abdul Hamid deceased was also to go to Torianwala, Abdul Majid at about 7-00 a.m. On 15th June, 1971, asked Abdul Hamid deceased to get Muhammad Ramzan and put him on his duty so that the work may not suffer in their absence. Thereupon, Abdul Hamid in the company of Liaqat P. W. Who had also come to their house went to the house of Ismail to fetch Ramzan therefrom, while Abdul Hamid went to the house of Muhammad Rashid (P. W. 12), as Muhammad Rashid was to accompany him to Kharianwala. There when he called Muhammad Rashid and Muhammad Rashid had come out of the house, they heard noise coming from the lane in front of the house of Ismail respondent. The two rushed towards the house of Ismail and saw Ismail giving knife blows to Abdul Hamid deceased upon which Abdul Hamid deceased fell down in the street. They also saw Abdul Hamid respondent giving a knife blow to Liaqat P. W. Who was injured in his right thigh. Thereafter, the respondents, with their blood-stained chhuris. Had gone inside their own house. They had also taken away into their house the licensed rifle of Abdul Hamid deceased after taking it of the shoulder of said Abdul Hamid. Abdul Majid P. W. Had gone near Abdul Hamid but had found him dead. On injury Liaqat Ali P. W. Who was accompanying Abdul Hamid deceased had explained that after they had knocked the door of house of Ismail respondent, respondents Ismail and Abdul Hamid had come out and deceased Abdul Hamid enquired from Ismail as to why he had not sent his son Ramzan to work in their house as promised on the previous day and on this Ismail reason--dent had told the deceased that his son Ramzan was not willing to serve him and on this deceased asked Ismail respondent if his son was not will--ing to do the work, then he should himself work in his place as promised by him. He had also told him that only a few days back, he had received money and food grains for service of his son and now he should either send his son or himself come to perform duty on his behalf. Ismail reason--dent had, however, refused to accompany the deceased and this led to exchange of hot words and both the respondents had attacked the deceased and him (Liaqat P. W.) and had inflicted above said injury. 3. Abdul Majid P. W. Entrusted the care of dead body of Abdul Hamid to Sardar Khan his uncle and himself proceeded to the Police Station Sammundari which is situated at a distance of 16 miles from the place of occurrence and had lodged there the F. I. R. Exh. P. B. At 10-00 a.m. The said F. I. R. Was recorded by Nazar Hussain A. S. I. (P. W. 14). Since the S. H. O. Sher Muhammad (P. W. 13) was not available at that time in the police station, Nazar Hussain A. S. I. Himself proceeded to the spot for investigation. On reaching the spot at about 12-00 noon he found the dead body of the deceased lying in the lane passing in front of the house of Ismail respondent. He prepared the injury statement Exh. P. L. And inquest report Exh. P. M. And despatched the dead body to the mortuary for post-mortem examination. The A. S. I. Took into possession blood-stained earth from the spot where the dead body was lying and made it into a sealed parcel vide memo. Exh. P. C., which was witnessed by Ghulam Ahmad (P. W. 8) and Allah Ditta (P. W. 9). He also took into possession the licence P. N. Of the rifle of the deceased which was produced before him by Abdul Majid P.W. Vide memo. Exh. P. F./l. Liaqat Ali P. W. Who was injured had gone to Rural Dis--pensary in adjoining village namely, Chak No. 210/GB and got himself medically examined. The said A. S. I. Went to said Dispensary on the next day viz. 16th June, 1971 and took into possession chaddar P. 1 of Liaqat P. W. Vide memo. Exh. P. D. The said chaddar was blood-stained and had a cut corresponding to injury on the right thigh of Liaqat P. W. Memo. Exh. P. D. Was witnessed by Ghulam Ahmad P. W. 8 and Muhammad Ashraf, Constable P. W. 4. In the meantime, Sher Muhammad S. H. O. (P. W. 13) reached the spot on 16th June, 1971 and took over the investigation from Nazar Hussain A. S. I., who gave to him the sealed parcels containing blood-stained earth. Sher Muhammad S. I. P. W. 13 thereafter investigated the case. The respondents appeared before him voluntarily on 16th June, 1971, in the presence of Ghulam Ahmad P. W. 8 and Allah Ditta P. W. 9. The wearing clothes of
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these respondents were blood-stained and, therefore, Sher Muhammad got their clothes viz. Chaddar P. 2, shirt P. 3 and salooka P. 4 of Ismail respondent and dhoti P. 5, and shirt P. 6 of Abdul Hamid respondent removed from their persons and made them into separate sealed parcels and took them into possession vide memo. Exhs. P. G. And P. H. He interrogated Ismail who led to the recovery of blood-stained knife P. 7 and rifle P. 8 from beds lying on the cot in his house. The said knife was reduced into sealed parcel and taken into possession by memo. Exh. P. E. The rifle P. 8 was taken into possession vide memo. Exh. P. F. These recoveries were also made in the presence of P. W. 8 Ghulam Ahmad and P. W. 9 Allah Ditta. On the same day, Muhammad Siddique F. C. P. W. 5 produced the last worn clothes of the deceased and ring and currency notes of Rs. 11 which the doctor had handed over to him. The said S. I. Took these into posses--sion vide memo. Exh. P. J/2. The said Sub-Inspector gave four sealed parcels, one containing blood-stained earth, other one containing knife and two containing the clothes of the respondents to Sher Ali Muharrir A. S. I. P. W. 6 on 17th June, 1971 for keeping them in Malkhana and their sub--sequent onward transmission to the office of the Chemical Examiner, Lahore. The said sealed parcels were sent to the said office on 24th June, 1971 through Muhammad Ashraf P. W. 4. The reports Exh. P. O. P. Q., P. R. And P. S. Of the Chemical Examiner and Exhs. P.T.P. U., PV. And P. X. Of the Serologist show that the earth, dhoti taken into possession from Abdul Hamid respondent and dhoti, shirt and salooka taken into possession from Ismail were stained with human blood. However, so far as knife P. 7 is concerned it was found by Chemical Examiner to be stained with blood, but the report of Serologist was that due to disintegration of the blood on the said knife, its origin could not be determined. After the usual investigation the respondents were challaned. 4. In order to establish the case, the prosecution produced 12 witnesses. The depositions of Dr. Muhammad Riaz Ali, Medical Officer, before the Committing Magistrate in regard to post-mortem examination of Abdul Hamid and that of Dr. Iqbal Chaudhry, in regard to injury of Liaqat Ali P. W. Were transferred to the Session file under section 509, Cr. P. C. And statements of P. W. I and P. W. 2. On external examina--tion Dr. Riaz Ali had found the following injuries on the person of Abdul Hamid deceased (1) A stab wound. 1--" x -- x deep 3" left to the umbilicus, peritoneum was protruding out of the wound. (2) A stab wound 1" x 1/3" x deep 2", below the left nipple. (3)A stab wound, 1" x --" x deep on the front of the neck, 2' above upper and of sternum. (4)A stab wound, 1" x " x 11", in front of the right shoulder. (5)A stab wound, 1" x 1/3 " x 1--", on back of the left arm at upper end. On dissection of the dead body, the pericardium at point corresponding to injury No. 2 was found injured and full of blood; left ventricle was also found injured at the same point. On opening the abdomen, its wall and peritoneum corresponding to injury No. 1 was found injured. Stomach was empty and healthy. Small intestines were empty and cut at two points. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of multiple injuries. Injuries Nos. 1 and 2 were declared dangerous to life and sufficient to cause death individually and collectively in the ordinary course of nature. Injury No. 3 was declared grievous and the rest simple. All the injuries were declared to have been caused by sharp-edged weapon. Probable time between injuries and death was instantaneous and between death and post-mortem examination was between 24 hours. On examination of Liaqat Ali P. W. On 15th June, 1971, at 8-30 p. m. Dr. Iqbal Chaudhry found a stab wound --" x 1/3" x 1/3" on the middle of upper side of the outer side of the right thigh which was directed from back to the front. The injury was declared simple caused by sharp edged pointed weapon within about 12 to 18 hours.
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5. Recovery evidence in the case in respect of bloodstained earth, knife P. 7 and rifle P. 8 and the wearing clothes of the respondents and chaddar of Liaqat Ali P. W. Was furnished by Ghulam Ahmad P. W. 8, Allah Ditta P. W. 9, Muhammad Ashraf Constable P. W. 4 and two investigating officers who appeared as P. Ws. 13 and 14. They fully sup--ported the prosecution in respect of these recoveries. 6. Ocular evidence in this case was furnished by Abdul Majid, Liaqat Ali and Muhammad Rashid as P. Ws. 10, 11 and 12. All the three witnesses supported the prosecution version. Abdul Majid is the complainant and brother of the deceased. He also gave the above account of the facts which bad led to the said occurrence. Liaqat Ali P. W. Is injured. He was accompanying Abdul Hamid deceased and, therefore, besides the ocular evidence of the actual infliction of injuries, he also gave the details of the conversation between Ismail respondent and Abdul Hamid deceased which had taken place before the actual occurrence. P. W. 10 Abdul Majid and P. W. 12 Muhammad Rashid also deposed in regard to the details of said conversation furnished to them by Liaqat Ali P. W. Immediately after the occurrence. 7. As already shown, investigation in this case was partly conducted by Nazar Hussain A. S. I. And partly by Sher Muhammad S. I. They appeared respectively as P. Ws. 14 and 13. Their statements accord with the details of the investigation given above. 8. After the close of the prosecution evidence, the respondents were examined. They admitted their relationship inter se. In his examination under section 342, Cr. P. C. Ismail respondent denied his guilt and in reply to question as to why the case had been brought against him, gave the following statement :- ---Due to enmity. About sargiwela, the deceased came to my house armed with rifle and he tried to forcibly abduct my younger daughter Parveen. My brothers Allah Rakha and Abdul reside with me. They inflicted injuries to rescue my daughter and I have been falsely involved in the case. Abdul Hamid died in my house and his dead body was taken by the police from my house. The deceased even fired few shots to kill my family. The rifle was also taken by the police lying near the dead body.--- Abdul Hamid respondent, however, did not say so, and after denying his complicity in the said offences, he only said that the case against him had been brought due to enmity with the P. Ws. He did not give the details of the said enmity. The respondents did not produce any evidence in defence. 9. Learned Sessions Judge disbelieved the- basic circumstance of Ramzan having been engaged as a servant of Abdul Majid on the ground that he was a by of the age of 9/10 years only and was not, therefore, in a position to perform the strenuous job of putting fodder to the cattle. H e also disbelieved the prosecution version that on 14th June, 1971, the deceased Abdul Hamid had called Ismail in his house and enquired from him as to why his son had not turned up for duty on the ground that it had not been proved and that it was an afterthought as it had not been stated in the F. I. R. He disbelieved the ocular evidence of all the three P. Ws. On various grounds. He disbelieved the evidence of the recoveries also. Furthermore, he found that the defence plea was not absurd or ridiculous and was to some extent supported by the medical evidence to the effect that stomach of deceased was empty and by the circumstance that deceased was carrying his licensed rifle when he went to the house of Ismail respondent and by the further circumstance that according to the investigating officer, some persons had deposed before him that a few shots had been fired during the occurrence. He held that deceased might have disgraced the accused and inmates of the house including women and even the possibility of his having resorted to firing on account of refusal of Ismail to accompany him could not be ruled out. In his view, therefore, right of self- defence was available to respondents. After having come to this finding he proceeded to hold that
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prosecution had failed to bring home the guilt of the respondents beyond reasonable doubt and acquitted res--pondents by giving them the benefit of the doubt. 10. We have heard Mr. Muhammad Rafiq Butt, Advocate, learned counsel appearing on behalf of the State and have also heard Mr. Ghulam Murtaza, Advocate, learned counsel on behalf of acquitted respondents. From the details given above, it is clear that in this case, there are two counter-versions, one furnished by prosecution and the other by Ismail respondent. The killing of Abdul Hamid deceased is accepted by res--pondent Ismail. The difference in the two versions is as follows :- (1)In regard to actual place of occurrence. The prosecution case is that it happened in the street passing in front of the house of res--pondent Ismail while the case of respondent Ismail is that it hap--pended inside his house. (2)In regard to persons who actually inflicted injuries with knives to the deceased, the prosecution alleges that it were the respondents who did that while the case of respondent Ismail is that persons who inflicted the injuries to the deceased were Allah Rakha and Abdul who according to Ismail respondent resided with him in the same house and that he had been falsely involved. (3)In regard to the circumstances in which such injuries were given. The prosecution alleges that these were inflicted when Abdul Hamid pressed Ismail respondent to come for work of putting fodder to their cattle when his son Ramzan was refusing to do that service and on his refusal to accompany him, there was exchange of hot words while the case of the respondents in defence is that they had been implicated falsely due to enmity and that actually deceased had at sargiwela come to Ismail's house armed with a rifle and had tried to forcibly abduct his younger daughter Parveen and had even fired a few shots to kill his family and that his brothers Allah Rakha and Abdul had inflicted injuries upon the deceased to rescue his daughter. The respondents have not produced any witnesses in defence to establish their plea. Therefore, we are constrained to scan the prosecution evidence to find out if the said plea stands established or at any rate any doubt stands created in the truth of the prosecution story detailed in pro--secution evidence or in answers elicited in cross-examination of witnesses of prosecution conducted on the basis of defence plea and other judicial material on record or on the other hand the story ;of the prosecution stands proved beyond any shadow of doubt. For that purpose we have to take up first assessm ent of the evidentiary value of the statements of prosecution witnesses. 11. An important feature of this case is that there is no enmity between the prosecution witnesses, who gave ocular account and the respondents. Thus, none of them have any motive to falsely implicate the respondents. It is no doubt true that Abdul Majid P. W. Is brother of the deceased and two other eye-witnesses are Jat Randhawas i.e. They belong to the brotherhood of the deceased, but it is now settled that mere relationship or the mere fact that witnesses belong to brotherhood of deceased or complainant is no ground to discard their evidence. There being no dispute that previously there was no enmity between parties, we find that all the said three witnesses were disinterested and their evidence could not have been discarded on the ground that one is a real brother of the deceased and other two are from brotherhood of the deceased and the complainant. The rejection by the Sessions Judge of the testimony of these witnesses on this ground is opposed to the principles laid down by superior Courts for appreciation of evidence of the witnesses. Further--more, the evidence of all those witnesses is consistent on all the material points and discrepancies, if any, are only in respect of minor details and are, therefore, of little consequence. 12. Taking the case of each eye-witness, we do not find any valid reason to disbelieve the statement of Abdul Majid P. W. On the point that Ramzan, aged 9/ 10 years, son of Ismail respondent was engaged by deceas--ed and Abdul Majid as a personal servant to put fodder to their animals and that on account of his absence from duty, a day earlier the deceased had called
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respondent Ismail where he had promised either to send Ramzan or to come himself to work in his place if Ramzan did not turn up. In our view, by of 9/10 years can undertake the job of putting fodder to animals and it is common knowledge that boys of this age are quite cap--able of performing and usually perform such functions in villages. In the cross-examination of this witness there is no suggestion by the defence itself that Ramzan was not in a position on physical plane to perform the duty of putting fodder to the animals or that he had not been engaged by Abdul Majid P. W. As a personal servant to do the said job. The learned Sessions Judge outdid the defence in holding that Ramzan could not do the job in question. Therefore, statement of this witness that Ramzan had been engaged by him and Abdul Hamid deceased does not deserve to be disbelieved. It is no doubt true that in the F. I. R., Abdul Majid P. W. Had not stated that on account of absence from duty of Ramzan a day earlier, Abdul Hamid deceased had called respondent Ismail to his house and enquired from him as to why his son Ramzan had not come for duty and Ismail respondent had promised that his son would come or he would in place of Ramzan come for duty, but F. I. R. Is not a repository of everything and it cannot be exhaustive of every bit of prosecution story and B absence of a circumstance from it cannot be considered to be contradiction unless it is in derogation of the main story as related in the F. I. R. In the present case, the circumstance that Ismail respondent had been called a day earlier in that connection and had promised either to send the by or come himself does not conflict with the main line of the story as given in the F. I. R. And its omission from F. I. R. Cannot be considered to be a contradiction. This part of the evidence of this witness is also fit to be believed. Furthemore, there is no doubt that in the examination---in- chief this witness had stated that after deceased and Liaqat left his house, he also left for the house of Rashid P. W. And the moment he called Rashid P. W. He heard some noise coming from the lane passing in front of the house of Ismail respondent and he and Rashid P. W. Who had in the meantime come out, rushed towards the house of Ismail res--pondent and saw the occurrence, while in cross-examination he admitted that before the police he had not stated that when deceased and Liaqat left the house for calling Ramzan, he went to the house of Rashid P. W. And had further admitted that before the police he had stated (in the F. I. R.) that when deceased and Liaqat P. W. Left the house for calling Ramzan, he heard noise coming from the lane passing in front of house of Ismail respondent and he rushed towards that side and on the way he met Rashid P. W. Who accompanied him to the spot, but the two state--ments disclose discrepancy only in the manner of reaching the spot and in the manner of Rashid P. W. Accompanying him to the spot and do not in any way show that he had not reached the spot at the time of infliction of injuries and had not seen the actual occurrence. Such like discrepancies are natural and are to be expected when actual evidence is recorded after a lapse of two years of the actual occurrence. In any way, even if the said portion of the Court statement is considered to be an improvement which may be said to have been made in order to show that he was avail--able near the place of occurrence wherefrom he could hear the noise emanating from near the house of Ismail respondent and due to that his statement in regard to ocular account is discarded, even then the said account relied upon by prosecution stands established from statements of other P. Ws. Namely Liaqat P. W. 11 and Rashid P. W. 12. So far as Rashid P. W. Is concerned, no question was put to him in respect of the distance of his house from place of occurrence to show that he could not hear noise emanating from the scene of occurrence (place in front of the house of Ismail, respondent) nor was there any suggestion that his house was too far away wherefrom he could not hear the noise raised at time of altercation before actual infliction of injuries and that, therefore, he could not reach the place of occurrence in time to see the occurrence. On the other hand, it was from P. W. 10 Abdul Majid that question was asked in respect of the distance of his house from the place of occurrence. Even from Abdul Majid P. W. No question was asked in respect of distance of house of Rashid P. W. From the place of occurrence nor was a suggestion given to him that house of Rashid P. W. Was situated at a
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distance from where the noise emanating from place of occurrence could not be heard. The trend of cross-examination of Abdul Majid, therefore, is calculated to set up a case on behalf of the defence that house of Rashid P. W. Is nearer the -house of Ismail respondent wherefrom the noise coming from the place of occurrence could be heard. The rejection by the Sessions Judge of the evidence of this witness is, therefore, unreasonable. Furthermore, the suggestion that deceased Abdul Hamid was his collateral and he had not seen the occurrence and had made a false statement at the instance of relatives of the deceased was denied by him. There is, therefore, nothing on record which impinges upon the credibility of this witness. 13. As for Liaqat Ali P. W. 11, his statement that he accompanied the deceased from the house of the deceased to the house of Ismail reason--dent is consistent with first version as given in the F. I. R. Furthermore, another important circumstance…
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