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Petitioner: MUHAMMAD SHAFI And 3 Others VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Aslam Riaz Hussain, Muhammad Afzal Khan Title: MUHAMMAD SHAFI And 3 Others vs The STATE Case No.: Criminal Appeal No. 252 of 1968 Date of Judgment:1971-11-03 Reported As: 1972 P Cr. L J 292 Result: Appeal dismissed
JUDGMENT
JUDGMENT Aslam Riaz Hussain, J.--Muhammad Shall, aged 31 years, Luqman aged 26 years Muhammad Din aged 41 years and Muhammad Ramzan aged 46 years were tried by Mr. Masud Ahmad Ansari, Additional Sessions Judge, Lahore Camp, Kasur under section 302/326/325/34, P. P. C. for the murder of Ghularn Muhammad deceased and causing injuries to Mst. Hayat Bibi and Mst. Amina P. W. 9. The learned Judge found them guilty of all the above said offences. He sentenced all of them to transportation for life, with a fine of Rs. 500 each (or six months' R. I. in default of payment of fine) under section 302/34, P. P. C. to three years' R. I. each for the offence under section 326/34, P. P. C. and to two years' R. I. each for the offence under section 325/34, P. P. C. AH the sentences were ordered to run concurrently. The four accused have come up in appeal against their conviction and sentences. 2. The facts of the prosecution case briefly stated are that two years prior to the occurrence Ghulam Muhammad deceased and his wife Mst. Amina P. W. 9 who originally belonged to village March Bhagaun District Sheikhupura shifted toChak No. 9 Gehlan, Police Station, Pattoki, District Lahore along with their children, Mst. Sharifan (P. W. 8) aged 13/14 years (but whose age is given 15/16 years in the F. I. R.) and their son Ashraf, aged 5 years. They took up residence in the Ihata of Muhammad Shafi appel lant. Muhammad Shafi started visiting their house and developed illicit relations with Mst. Sharifan P. W. When the parents of the girl came to know about this they left the Ihata of Muhammad Shafi appellant and shifted to the Ihata of Qamar Din P. W. 7 and after a few days sent Mst. Sharifan to the house of her maternal uncle Noor Muhammad in village Lakho Dehr. Muhammad Shafi appellant was not happy about their shifting to the house of Qamar Din and repeatedly asked Ghulam Muhammad deceased to come back to his ihata, but the latter refused.
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Muhammad Shafi appellant took to roaming near the house of Ghulam Muhammad (deceased) in order to find out if Mst. Sharifan was there. Ghulam Muhammad (deceased) told him to discontinue this practice. On the day of the occurrence i.e. on 21-12-1966 at about peshiwela Ghulam Muhammad (deceased) was sitting in the courtyard of his house with his wife Mst. Amina P. W. Noor lMuhammad a brother of Mst. Amina had also come to visit them. Muhammad Shafi appellant came into the street and stood in front of their house. Ghulam Muhammad (deceased) went out and objected to his standing there. This resulted in altercation between the two. They also exchanged abuses. Muhammad Shafi appellant then left the place, threatening that he would teach the deceased a lesson. After a short time he returned along with the other three appellants. Muhammad Shafi, Luqman and Muhammad Ramzan appellants were armed with hatchets while Muhammad Din appellant was armed with a dang. They raised a lalkara. Ghulam Muhammad deceased went out from his house. Mst. Amina Bibi P. W. 9 also followed him but her brother Noor Muhammad stayed inside the house. Shortly afterwards, however, Noor Muhammad also came out. All the appellants then assaulted Ghulam Muhammad deceased. Aslam Riaz Muhammad Din appellant caught hold of Ghulpm Hussain, j Muhammad while Muhammad Shaft appellant gave a hatchet blow on the right side of his head. Ghulam Muhammad deceased fell down on the ground with his face downward. Luqman and Muhammad Ramzan appellants thereupon struck blows on the deceased from the blunt side of their hatchets while Muhammad Din gave him injuries with his dang. Mst. Amina stepped forward to rescue her husband but Luqman appellant gave her a blow on her right arm with the blunt side of his hatchet which resulted in the fracture of the bone underneath. Mst. Hayat Bibi the landlady {i.e. the owner of the lhata in which the deceased was living) also came out and intervened, but Muhammad Ramzan appellant gave a blow on her left forearm, with the right side of his hatchet causing the fraction of the bones underneath. She too fell down on the ground. Another motive for the attack alleged by the prosecution is that Din Muhammad appellant suspected Ghulam Muhammad deceased of having illicit relations with his wife. Muhammad Din P. W. 10 and one Sarwar also witnessed the occurrence. Qamar Din P. W. 7 and Taj reached the spot immediately after the occurrence but by that time, the appellant had fled away with their respective weapons. Ghulam Muhammad (deceased) and Mst. Hayat Bibi had become unconscious on receiving the injuries. Qamar Din P. W. Taj and Noor Muhammad carried them to the Civil Dispensary, Pattoki where they were examined by Dr. Muhammad Amin A. M. O. (P. W. l). The doctor also sent an information to Police Station Pattoki vide ruqa Exh. P. Q. On receiving the information Khurshid Ahmad S. I. (P. W. 11) who was incharge of the police station went to the hospital. He also took a Magistrate along with hint to the hospital for record ing the statement of Ghulam Muhammad who was still alive. The doctor however told them that Ghulam Muhammad was not in a fit condition to make a statement. The S. I. thereupon recorded the statement Exh. P. D. of Mst. Amina Bibi P. W. at 4 p.m. He sent the statement to the police station for the registration of the case. Sultan Mahmood, M. H. C. recorded the formal F. I. R. Exh. P. D./l under section 307/34 and325/34, P. P. C.at4-30 p.m. on the same day. The S. I. then inspected the spot and collected some blood-stained earth from the spot. Ghulam Muhammad died at 8-45 p.m. on the night. On receiving this information the S. I. went back to the hospital and after preparing the necessary documents forwarded the body for post-mortem examination. The F. I. R. was amended and converted to one under sections 302/34 and 325/34, P. P. C. 3. The S. I. arrested all the accused on the next day. While in police custody Muhammad Shah appellant led to the recovery of a blood-stained hatchet P. 4 from his house, Luqman appellant led to the recovery of a hatchet P. 5 from his house, Muhammad Ramzan appellant led to the
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recovery of hatchet P. 6 from his house and Muhammad Din appellant led to the recovery of dang P. 7 from the house of his father-in-law Allah Din. The S. I. took all these weapons into possession and sealed into parcels. The site plan was also got prepared. At the time of arrest Muhammad Din appellant was found to have a slight injury on the second finger of his right hand. He was, therefore sent for medical examination. 4. Dr. Muhammad Azim Qureshi P. W. 2, who performed the post-mortem examination on the body of Ghulant Muhammad deceased found the following injuries :-- (1) A slight oblique incised wound 51"xlf" and deep into brain matter, over the middle part of the right side of the head extending from as point 1" in front of the upper part of the right ear obliquely upwards of backwards near the top of the head. The skull bone underneath was cut through under the whole length of the wound and so the brain matter. The brain matter was protruding out of the wound. (2) A contused wound l"x i"x over the inner side of the right part of the lower hip. (3) An abrasion l"xf" over the upper part of the middle of the forehead. (4) An abrasion Y x " over the bridge of the nose. (5) An abrasion V x Y over the lower part of the front of the nose. (6) An abrasion 11" x 1/6" over the lower part of the right scapulary region. (7) An abrasion l"x l" over the lower part of the back of the left side of the chest. (8) A contusion mark 6" x 1" over the left side of the back of the chest in its middle part. (9) A contusion mark 6' x 1" over the lower part of the upper part of the left buttock. (10) An abrasion I"x 1/8" over the upper part of the left hip just above injury No. 9. Death in the opinion of the doctor was caused mainly due to injury No. 1, which was sufficient in the ordinary course of nature to cause death. This injury had been caused by a sharp-edged weapon. All the other injuries had been caused with blunt weapons. The probable time between injury and death was between 3 to 8 hours and between death and post-mortem was about 6 hours. 5. Dr. Muhammad Amin P. W. 1 who had examined Mst. Hayat Bibi and Mst. Amina Bibi P. W. found the following injuries on the person of Mst. Hayat Bibi :-- An incised wound 2J*x J"x bone deep situated on the back of left forearm leading to fracture of bone radius and ulna bone on its middle. The injury was grievous inflicted with a sharp- edged weapon within 12 hours. He found the following iujury on the person of Mst. Amina Bibi P. W. 9 :-- An abrasion 1" x 1/6" situated on the upper outerpart of right forearm and accompanied by swelling and fracture of right ulna bone in its upper third. The injury was grievous and had been caused by a blunt weapon within a duration of 12 hours. 6. After the completion of preliminary inquiry all the appel lants were committed for trial to the Court of Session. At the trial the prosecution produced 11 witnesses in support of its case. When examined under section 342, Cr. P. C. the appellants denied their guilt and pleaded innocence. Muhammad Din appellant admitted the occurrence but gave the following version :-- Yes I came to know of it on the day of occurrence. When I surprised both of them on return to my house. I returned to my house on that day a little afternoon but before normal time. I had a hatchet in my hand with which I had cut fuel wood. I found my house bolted from inside. I knocked at the door. Ghulam Muhammad deceased opened the door and ran away. I followed him and struck blows with the blunt side of my hatchet. When he reached near the shop of Noor Muhammad he picked up a sota and struck at me. I warded off two blows on the hatchet while the third blow hit me on my hand. In the meanwhile Mst. Amina and Hayat Bibi intervened and they received injuries. After that I gave a hatchet blow from the right side of the hatchet to the deceased and he fell down. I acted under grave and sudden provocation as well as in self-defence." Muhammad Shall appellant also stated that Ghulam Muhammad deceased had never taken up
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residence in his ihata but had occupied the ihata of Siddiq and Sharif and hadjnever shifted to the ihata of Qamar Din. He denied the allegation of having cultivated illicit relations with Mst. Sharifan. He stated that he had been involved falsely due to enmity with Muhammad Din and Qamar DinP. Ws. and Sarwar and Taj Din. He stated further that Mst. Amina P. W. had been prevailed upon by these persons to inflict him i.e. Muhammad Shaft appellant and his brother Luqman appellant on the promise that they would support the prosecution case by appearing as prosecution witnesses. Luqman appellant gave a similar statement and said that Qamar Din P. W. was inimical to them because they (Muhammad Shah and Luqman appellants) were in forcible possession of the share of Mst. Hayat Bibi in the property left by their father Sohna. Muhammad Ramzan appellant stated that he had been falsely involved in the case by Muhammad Din P. W. 10 due to an election dispute. He explained that in the last election of the Union Council Muhammad Din P. W. supported Abdullah Lambardar while he supported one Yahya. Since he (Muhammad Ramzan) was the head of the Machhi family and had a large Mohd. Shaft number of votes under his control, Muhammad Din P. W. wanted him to use his influence and get the votes cast in favour of Abdullah but he refused. This had resulted in exchange of Aslam Riot abuses and Muhammad Ramzan had hit Muhammad Din P. W. Hussain, J The latter had, therefore, invloved him falsely in the case. 7. We have heard the learned counsel for the parties at length. The learned counsel for the appellants contended that the defence version given by Muhammad Din appellant was correct and that in any case the version offered by the prosecution had not been established- beyond reasonable doubt. He also contended that the eye-witnesses were not telling the truth and attacked the prosecution story on the ground that the motive had not been established that the injury on Muhammad Din appel lant had not been explained and that some of the eye-witnesses hud not been produced which raises a presumption against the prosecution version. It may be mentioned that five eye-witnesses were mentioned by Mst. Amina P. W. in the F. 1. R. They were Noor Muhammad, Sarwar, Mst. Hayat Bibi, Muhammad Din P. W. 10 and Mst. Amina P. W. 9 herself. Out of these the lirst three persons were not produced at the trial. Mst. Amina and Muhammad Din P. Ws. were however, produced, who fully supported the prosecution version. 8. The learned defence counsel attacked the statement of Mst, Amina P. W. on the ground that she was closely related to the deceased being his widow. She could not deny her presence at the spot in view of the injury sustained by her, but contended that she had been prevailed upon by Qamar Din and Muhammad Din. P. Ws. enemies of Muhammad Shall and Luqman appellants to name them i.e. Shall and Luqman falsely in return of a promise that they would appear as prosecution witnesses in the case and give her full support. He contended further that the story about Muhammad Shall appellant having developed illicit relations, as given by Mst. Amina P. W. was incorrect and disputed the motive for the offence as far as it relates to Muhammad Shali and contended that the real cause for the attack was the suspicion of Muhammad Din appellant that Ghulam Muhammad deceased was carrying on with his wife which is admitted in the F. I. R. itself. 9. Mst. Sharifan the daughter of Ghulam Muhammad deceas ed was produced by the prosecution, as P. W. 8 in support of its case. She has admitted that after her parents had taken up residence in the Ihata of Muhammad Shah appellant, the latter started visiting their house and bringing present for her and developed illicit relations with her but when her parents came to know about the affairs they shifted their residence and sent her to live with her maternal uncle Noor Muhammad at village Lakho Dehr. She however, denied that Muhammad Shah appellant had committed sexual intercourse with her. The learned counsel for the appellants argued that in view of the fact that the girl had (VOL. V
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with her. He argued further that it is admitted that since that IIiata of the house of Qamar Din P. W. to which Ghulam Muhammad deceased and Mst. Antina P. W. had shifted is visible from the Ihata of Muhammad Shah the latter had no ticed to roam about in the street near the ihata of Qamar Din P. W. to find out whether Mst. Sharifan was there or not. 10. We arc not impressed by these arguments. As rightly pointed out by the learned trial Court it is not necessary that sexual relations must be established between a man and womau (who are not married to each other) before it can be said that they have developed illicit relations. The dictionary meaning of illicit relations are prohibited or forbidden 'relations. As observed by the learned trial Judge, free meeting between a young girl with a member of opposite sex is strictly forbidden in our society specially in the absence of elders. Secret or clandestine meeting between members of the opposite sex is also not perniis- i sible and are in fact prohibited. If a young man develops such 1 relations with a girl which gives him access to her when she is alone this would certainly be resented by the parents of the girl. If a youngtnan develops physical relations with a girl short of sexual intercourse it is to be regarded as illicit relations in view of the above-mentioned social taboos. There is therefore no force in the contention that since Mst. Sharifan P. W. has not admitted having had sexual intercourse with Muhammad Shah appellant it cannot be said that there were any illicit relations between them. It is no doubt correct that in the Court of the committing Magistrate Mst. Atnina'P. W. 9 stated that the compound of her Ihata (i.e. that of Qamar Din P. W.) was visible from the house of Muhammad Shaft appellant but she denied this at the trial. To check up as to which one of her two statements is correct we examined the site plan Exh. P. C. The house of Muhammad Sliafi appellant as well as the house of Ghulam Muhammad deceased are shown in the plan. There are houses on both sides of the street in which the occurrence took place. The ihata of Qamar Din P. W. where Mst. Amina P. W. and Ghulam Muhammad deceased resided at the time of the incident is shown at point No. 4. A look at the plan would show that a number of house intervene between the house Of Muhammad' Shafi appellant and the ihata where Ghulam Muhammad deceased lived and that this ihata could not Be visible from the house of Muhammad Shah appellant. In any case being enamoured of Mst. Sharifan who as stated by the learned trial Court in para graph 11 of his judgment is a young blood with attractive looks and having developed illicit relations with her, he was not satisfied with looking at the ihata from his own house situated far away, and must have felt compelled to roam around the house of Mst. Sharifan in the hope that; he1 might be able to contact her or he was seen by her. Wc arc, therefore, of the view that the present story relating to the motive is fully established. 11. As to the seqond. motive namely that Muhammad-Din appellant suspected Ghulam Muhammad deceased of having illicit relations with his wife, this motive has been admitted by Muhainmad Din appellant himself. The prosecution was, therefore not required to establish it by producing evidence. 12. It will be noticed that the occurrence itself is not denied. Only a different version of the same has been put forward by. the defence. Muhammad Din appellant has'stated that he alone had caused injuries to the deceased under grave and sudden, provocation and in the exercise of the right of self- defence. The difference version has already been given above in detail. The question for determination, therefore is as to which one of the two versions is correct. While considering this ques tion it has, of course, to, be kept in mind that while the prosecu tion is under a duty, to establish its case beyond reasonalrle doubt, the accused, person is only required to show that there is a reasonable possibility that the version put forward by him might be true. 13. It will be appropriate to discuss, at the outset, the version put forward by Muhammad Din appellant. Tt will be noticed that before the committing Magistrate Muhammad Din appellant gavethe following version :-- "On the day of occurrence I went to the fields for collecting and cutting chappas for use in the
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Tandoor. When I returned back to my house at 11 a.m. I saw the door of my outer gate of the house shut. Nobody replied me on my call from inside. I peeped through the slit of the door and found that my wife and Ghulam Muhammad deceased were coming out of the kotha in a suspicious position. The deceased ran after scaling over the wall of my house. The hatchet which was with me already for cutting chappas, I used it from its right and wrong side in sudden provocation and due to rage by pursuing the.deceased. I had no doubt about the fidelity of my wife before this occurrence. I did so in sudden provoca tion and to save, my respect. I produce my written statement." At the trial, however, he gave a different version which has already been reproduced in paragraph No. 6 above. In the later statement he has made a number of improvements and apart from taking up the plea of grave and sudden provocation he has added circumstances which would enable him to take the plea of the exercise - of right, of private defence. Apart from his bare word there is hardly any evidence on the record to support the version given by him. Nor has he cared to produce any witness in support of his version. The occurrence admittedly took place in front of the itaho of Qamar Din where Ghulam Muhammad deceased and Mst. Amina P. W. were residing at the relevant time. It was from there that the blood-stained earth was collect ed by the Investigating Officer. Even Qamar Din P. W. himself, who had tried to help the appellants, has admitted that Ghulam Muhammad used to reside in the said ihata. This completely negatives the defence version, The counsel for the appellants attempted to argue that the deceased did not live in the said ihata and was overtaken by Muhammad Din appellant where he was running towards his house which was situated far away. The argument however ignores the fact that apart from the deceased two women, namely Mst. Amina, P. W. and Mst. Hayat Bibi were also injured during the incident at that very place. The defence version gives no explanation whatsoever as to how these women came - to present there. The only possible explanation for these injuries is that given by the prosecution, namely that Mst. Amina and Mst. Hayat Bibi also came out of the house and tried to intervene, but were given injuries by the appellants. The fact that Mst. Amina P. W. came out of the said house further supports the prosecution version that the occurrence had taken place in front of the house of the deceased. Three persons have been injured during the incident. These injuries have already been enumerated in paragraphs Nos. 4 and 5 above. The number and the nature of the injuries support the prosecution version and completely negative the story put forward by Muhammad Din appellant that he alone had attacked Ghulam Muhammad deceased. It is true thttf even according to the prosecution Muhammad Din appellant had a motive to attack Ghulam Muhammad inasmuch as he suspected him of having illicit relations with his wife. But the version given by him is completely belied by the evidence on the record as mentioned above. We are, therefore of the view that the defence story is utterly false and merits to be rejected. 14. Tt might be mentioned that out of live eye-witnesses men tioned in the F. I. R. only two namely Mst. Amina P. W. 9 and Muhammad Din P. W. 10 were produced at the trial. The remaining three, namelv Sarwar, Noor Muhammad and Mst. Hayat Bibi were not produced. Out of the last mentioned three witnesses Noor Muhammad is the real brother of Mst. Amina P. W. and Mst. Hayat Bibi was herself injured during the incident. The learned counsel for the appellants contended that the non-production of these eye-witnesses raises a strong presumption against the prosecution, namely that if produced they would not have supported the prosecution version. In support of this con tention the learned counsel referred to Ghulam Muhammad and another v. The State (1). Abdul Monan v. The State (2) and Serajul Mir and others v. The State (3). 15. We have considered this question and have gone through the authorities mentioned by the learned counsel but we are not pursuaded to agree with him on this point.
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The Karachi case relates to offences under section 323/324/ 326/34, P. P. C. Three of the eye- witnesses were not produced by the prosecution and the learned Judge observed that in view of the prevaricating statements made by the eye-witnesses pro duced by the prosecution as well as non-examination of three [8] close relations of the complainant it will be unsafe to hold that the version given by the two eye- witnesses produced by the prosecution is worthy of reliance. In the case of Abdul Manan, it was found that the withholding of certain witnesses, who were essential for the unfolding of the prosecution story gave rise to a presumption under section 114(g) of the Evidence Act against the prosecution. In the case of Sirajul Mir the learned Court after con- gidering a number of authorities laid down the principle that although there is no obligation on the prosecution to produce every available witness and the prosecutor has the discretion to decide which witnesses should be examined and which witnesses should be dropped and no presumption can be raised against the prosecution merely because some of the eye witnesses are not produced yet even a witness is essential for the unfolding of the narrative on which the prosecution is based and the prosecution has an oblique motive for withholding any witness, a presumption under section 114(g) of the Evidence Act shall arise against the prosecution namely that if produced such a witness would not support the prosecution story. 16. Tn the present case Mst. Hayat Bibi has been given up by the prosecution as having been won over as also because of her old age and infirmity. As already observed there is good…
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