This judgment will dispose of Criminal Appeal No, 1716 of 2005 filed by Sajid Hussain appellant and Criminal Appeal No 1622 of 2005 filed by Nasir Nawaz, Muhammad Nawaz, Manzoor Ahmad and Abdul Ghafoor appellants. They were convicted and sentenced by learned Addl. Sessions Judge, Sheikhupura vide judgment dated 21.9.2005 as under: Sajid Hussain Under Section 302(b) PPC imprisonment for life and to pay Rs, 50,000/-, in default thereof six months R.I.
Under Section 337-F(1) PPC two years R.I and to pay Daman of Rs, 2000/- to Ma Sakina Bibi injured PW.
Under Section 337-L (ii) PPC two years R.I and to pay Daman of Rs, 2000/- to Mst. Sakina Bibi injured PW.
Under Section 337-L (ii) PPC two years RI and to pay Daman of Rs, 2000/- to Mst. Nadia Bibi injured/PW.
Under Section 337-A(I) PPC two years R.I. and to pay Daman of Rs, 2000/- to Muhammad Yousaf injured/PW.
Under Section 337-L (ii) PPC two years R.I. and to pay Daman of Rs, 2000/- to Muhammad Yousaf injured/PW.
Under Section 337-F(i) PPC two years R.I. and to pay Daman Rs, 2000/- to Muhammad Yousaf injured/PW.
Under Section 337-F(iii) PPC two years R.I. and to pay Daman Rs, 2000/- to Muhammad Yousaf injured/PW.
Nasir Nawaz, Muhammad Nawaz, Manzoor Ahmad and Abdul Ghafoor, Under Section 337-F(I) two years RI, each and to pay Daman Rs, 2000/- to Mst. Sakina Bibi injured/PW.
Under Section 337-L(ii) PPC two years R.I. each and to pay Daman Rs, 2000/- to Mst. Sakina Bibi injured/PW.
Under Section 337-L(ii) PPC two years R.I. each and to pay Daman Rs, 2000/- to Mst. Nadia Bibi injured/PW.
Under Section 337-A(1) PPC two years R.I. each and to pay Daman Rs, 2000/- to Muhammad Yousaf injured/PW.
Under Section 337-L(I) PPC two years R.I. each and to pay Daman Rs, 2000/- to Muhammad Yousaf injured/PW.
Under Section 337-F(I) PPC to two years R.I. each and to pay Daman Rs, 2000/- to Muhammad Yousaf injured/PW.
Under Section 337-F(ii) PPC two years R.I. each and to pay Daman Rs, 2000/- to Muhammad Yousaf injured/PW.
All the sentences were ordered to run concurrently with benefit of Section 382(b) Cr.P.C.
2. Occurrence in this case had taken place at 9.00 a.m. on 19.11.2003 within the revenue estate, of Dera Cheemiawala which is at a distance of 8 kilometers for Police Station Sadar Farooqbabad, District Sheikhupura while the matter was reported to the Police by Muhammad Yousaf at 1.50 a.m., the same day and the formal FIR Ex. PK was recorded by Muhammad Ashraf ASI.
3. Briefly stated the facts of the case as disclosed in the FIR Ex PK. are that on 19.11.2003 at about 9.00 a.m., Muhammad Yousaf, complainant alongwith his son Muhammad Amin, his daughter in law (bahu), Mst. Nadia Bibi and his wife Mst. Sakina Bibi were present in his house, Nasir accused armed with 12 bore gun, Arshad accused (since P.0) armed with .12 bore gun, Sajid Hussain accused armed with gun Nawaz accused armed with 12 bore gun, Manzoor Ahmad accused armed with rifle and Ghafoor accused armed with .12 bore gun entered in the house of the complainant and got abducted Muhammad Amin son of the complainant and took him to their tubewell while giving beating to him with butts. The complainant and witnesses followed them, shouting and beseaching for life of Muhammad Amin deceased, while Muhammad Yasin PW also reached there.
In the sight of complainant and witnesses Nasir accused fired a shot with his gun which hit Muhammad Amin on his face, Arshad accused (Since P.0) fired second shot which hit on forehead of the victim. Sajid accused fired third shot, which hit him on below the right side of ribs, who fell down. Accused Nawaz Manzoor and Ghafoor and three unknown accused also fired shots one after the other which hit Muhammad Amin deceased on various parts of his body, who succumbed to the injuries. On hue and cry of the complainant many--people from the village reached there and the accused had also given beating to the complainant and witnesses with butts of their respective weapons and made good their escape.
4. Sub-Inspector Mukhtar Ahmad PW. 14 took over the investigation. He after sending the complaint to the Police Station for registration of formal FIR, went to the place of occurrence; took into possession the dead body of Muhammad Amin deceased, prepared injury statement (Ex. PL) inquest report (Ex. PK/2), secured the blood stained earth vide memo Ex. PA, also took into possession 15 empty cartridges of .12 bore gun vide memo Ex.PI. On 8.12.2003 he got medically examined Muhammad Nawaz and Sajjid Hussain accused. Thereafter investigation was entrusted to Altaf Hussain PW. 15. on 1.1.2004 he arrested Muhammad Nawaz, Manzoor Hussain; Abdul Ghafoor, Nasir Nawaz and Sajid Hussain accused. On 8.1.2004 Nasir Nawaz led to the recovery of .12 bore gun which was taken into possession vide memo Ex. PF. On the same day Sajid Hussain accused also led to the recovery of carbine which was taken into possession vide memo Ex. PE. On 14.1.2004 Muhammad Nawaz accused led to the recovery of carbine which was taken into possession vide memo Ex. PG. Finally, the accused mentioned above were sent to face the trial.
5. At the trial prosecution in order to prove its case produced 16 witnesses in all. Dr. Muhammad Aslam SMO appeared as CW. 1 while Dr. Tahir Bashir Radiologist appeared as CW.
2. The learned SPP tendered in evidence report of the Chemical Examiner Ex. PP, report of the Serologist Ex. PQ and report of Forensic Science Laboratory Ex PR and closed the case of prosecution. The accused in their statements under Section 342 Cr.P.C. pleaded false implication. After conclusion of the trial, appellants were convicted and sentenced as stated above.
6. Learned counsel for the appellants submits that FIR was recorded after due deliberation and after consultation and the same was recorded at the place of occurrence; that the place of occurrence is tubewell of appellants; that two accused namely Sajid Hussain and Nawaz were also injured with fire-arms by the complainant party during the occurrence and their injuries were suppressed by the prosecution; that recovery evidence had been disbelieved by learned trial Court; that learned trial Court had held in the impugned judgment that motive is very weak and also held that version of appellants is more plausible and convincing one; that it was wrongly held by the learned trial Court that appellant Sajid Hussain had exceeded his right of self defence; that there are two fire-arms injuries on the person of two appellants as stated above; that there are two fire-arm injuries on the person of deceased; that as far as allegation of the prosecution in the FIR is that the deceased was abducted by the appellants from his house to the place of occurrence but that was not believed by the learned trial Court. Learned' counsel submits that in view of above submissions all the appellants are entitled to acquittal. Further submits that four appellants who were convicted and sentenced on seven counts have already undergone one year and ten months and it is sufficient in the circumstances that the said period may be treated as undergone; that the injuries on the persons of injured PWs were simple in nature.
7. On the other hand learned APG submits that appellants had a strong motive to kill the deceased and that the case of prosecution is supported by three injured PWs whose presence at the spot has not been denied even by the appellants; that recovery of fire-arm, from Sajid Hussain appellant was effected and the report of fire-arm expert is positive and he supports the impugned judgment.
8. I have heard learned counsel for the parties. Occurrence in this case took place on 19.11.2003 at 9.00 a.m. matter was reported to the police at, the spot at 12.30 p.m. and formal FIR was lodged at 1.50 pm, the distance between place of occurrence and police station is 8 miles. Complainant is Muhammad Yousaf and injured PW. He is also father of the deceased Muhammad Amin. There are two other injured PWs namely Mst. Sakina Bibi mother of the deceased PW. 11 and Mst Nadia Bhabi, Bhabi of the deceased W. 12 Muhammad Yasin PW was not produced by the prosecution.
Muhammad Arshad accused is proclaimed offender and is still at large. All the appellants including Arshad (PO) were armed with fire-arms alongwith three unknown persons at the spot. Dr. Muhammad Ramzan PW. 3 on 19.11.2003 at 7.30 p.m. medically examined through police Mst.
Sakina, Mst. Nadia and Muhammad Yousaf injured/ PWs and found 3, 1, 7 injuries on their persons respectively caused with blunt weapons and duration of injuries was given 6 to 12 hours. Dr. Mukhtar Ahmad Pw. 16 conducted the postmortem examination on the dead body of the deceased Muhammad Amin on 19.11.2003. According to post-mortem report there were two injuries with blunt weapon and two with fire-arm on the dead body of the deceased. The time between injuries and death was immediate while between death and post-mortem was 12 to 18 hours. Then them is an important witness i,e, Dr. Muhammad Aslam CW. 1 who had medically examined both the appellants Sajid Hussain and Muhammad Nawaz at 12.30 p. . on 19.11.2003. He found one injury each with fire-arm on their persons. The date of arrest of all the appellants was 1.1.2004.. Though recovery had not been believed by learned trial Court but recovery of carbine from Sajid Hussain appellant was found to be positive with the five crime empties recovered from the spot although 15 crime empties were taken into possession by the police while there is no matching report against the other co-accused from whom the recovery of fire-arms was affected. For the just decision of this case reply of Sajid Hussain accused/appellant of Question No, 8 is given below in his statement recorded under Section 342 Cr.P.C.
"Q.
8. Have you anything else to say?
I am innocent. The occurrence did not took place in the manner as alleged by the complainant.
The motive has been falsely set up by the complainant. PWs did not see that occurrence. In fact the occurrence had taken place in the manner, that on the day of occurrence I (Sajid Hussain) and Muhammad Nawaz, my co-accused, were present at our tubewell (peter engine) and were busy in repairing the same in the room of the said tubewell. At about 9.00 a.m. all of a sudden I and Muhammad Nawaz heard the fire reports outside the tubewell and we both came out of the room, saw Muhammad Amin deceased armed with a carbine, who made fire shots upon me and Muhammad Nawaz, my co-accused, with the intention and knowledge to kill both of us. I received fire shot injuries on my chest whereas Muhammad Nawaz received injuries on his right shoulder.
Muhammad Nawaz used to keep his licensed double barrel shot gun for the self defence, which was present in the room of the said tubewell, after having sustained injuries and apprehending imminent danger to my life, as well as life of Muhammad Nawaz, I picked up the same and in order to save myself and Muhammad Nawaz, in the exercise of right of self-defence, made fire shots which hit Muhammad Amin deceased, who after sustaining injuries fell to the ground and succumbed to the injuries there. After hearing the fire reports women folk and children from our dera as well as from the house of the deceased party came at the spot and in between the women folk and children they scuffled, grappled and a fight took place, as a result of which Muhammad Yousaf, complainant, Mst. Nadia Bibi and Mst. Sakina Bibi received minor injuries. The carbine of the deceased which fell on the ground, was picked up by me. I and Muhammad Nawaz were taken to the police station Saddar Farooqabad in an injured condition. We also took alongwith us the carbine of the deceased, licensed gun of Muhammad Nawaz, which were produced there and narrated the entire incident in the manner in which it had happened. I and Muhammad Nawaz were medically examined at DHQ Hospital Sheikhupur a on the day of occurrence, immediately after the occurrence. Our medico-legal reports were received by the I.O. Mukhtar Ahmad S.I./P.W. 14, myself and Muhammad Nawaz were admitted in the hospital due to our precarious condition. Due to my condition, as well as the condition of Muhammad Nawaz, our arrest was deferred by the I.O. by that time. The complainant Muhammad Yousaf after due deliberation and consultation got a false case registered against me and my co-accused. My co-accused namely Muhammad Ashraf, Nasir Nawaz, Manzoor and Ghafoor were not present at the placed of occurrence at the time of occurrence and they did not participate in the occurrence and they had also not caused injury to the deceased Muhammad Amin. After the occurrence, from the hospital I appeared before the I.O. forthwith and I pleaded my version, which I pleaded on the first .day of the occurrence, immediately after the occurrence. The police also initiated proceeding against Muhammad Amin deceased for causing injuries to me as well as Muhammad Nawaz, may co-accused, but for the reasons best known to the police, these proceedings were not accomplished by it. During the investigation it was also categorically held by the police and the I.O. had opined, that Muhammad Amin deceased came at our tubewell, while armed with carbine and initiated occurrence, launched murderous assault upon me and my co-accused Muhammad Nawaz and first caused injuries to me as well as Muhammad Navvaz and thereafter in the exercise of right of private defence, I exercised right of private defence. I committed no offence."
9. A bare perusal of above said reply would show that it is a case of two versions and Court had to see that which version is more plausible and convincing one. It may be stated here that FIR was not recorded at the time, which the prosecution wants to believe. Had it been recorded at 12.30 p.m. on the same day, then there could not have been delay of 7 hours for medical examination of PWs. Moreover, none of the injured PW went to hospital himself for medical examination. They were got medically examined by the police. Neither the complainant nor any injured PW went to the police station for 3-1/2 hours in order to lodge the FIR and according to prosecution, this case was reported at the spot. On the other hand there were two injured accused namely Sajid Hussain and Muhammad Nawaz from the side of accused party. They were got medically examined at 12.30 pm. through the police that's 7 hours prior to the medical examination of three PWs. The prosecution had suppressed the firearm injuries on the person of the injured two appellants. During the cross- examination of Dr. Muhammad Aslam CW. 1 it had come to light that condition, of Sajid Hussain was serious because injury was no his chest. Muhammad Nawaz injured received fire-arm injury on his body and there was a fracture of his shoulder. Learned trial Court had not believed story of abduction of the deceased from his house to the tubewell of the appellants, which observation of learned trial Court seems to be correct. Only five empties taken from the spot had matched with the carbine of Sajid Hussain appellant while remaining 10 crime empties never matched with the fire-arm of Nasir and Nawaz accused, it means that other fires were shot by the complainant party which resulted into injuries on the persons of two appellants. Taking into consideration all above said facts possibility of version of Sajid Hussain appellant given in reply of Question No, 8 in his statement under Section 342 Cr.P.C. to be correct cannot be ruled out. Learned trial Court had convicted and sentenced Sajid Hussain appellant for life imprisonment on the ground that he exceeded his right of self-defence. My observation in view of above submission made by learned counsel for the appellants after perusal of record is that it is not a case in which one can say that Sajid Hussain appellant had exceeded his right of self-defence. Learned trial Court had not convicted other four appellants under Section 302(b) PPC. Neither the State nor the complainant had filed any appeal against their acquittal under Section 302(b) PPC.
10.After having heard learned counsel for the parties, going through the evidence on record I am of the considered opinion that Sajid Hussain had not exceeded his right of his self-defence. In this view of the matter, the appeal filed by Sajid Hussain appellant is accepted and conviction and sentence recorded against him by the learned Addl: Sessions Judge vide impugned judgment is set aside. He is behind the bars. He shall be released forthwith if not required to be detained in any other case.
11.As far as Crl. Appeal No, 1622 of 2005 filed by the other appellants is concerned, they have already undergone one year and ten months sentence. Thus the conviction and sentence which they have already undergone is treated to be sufficient to meet the ends of justice. They are on bail and they shall be discharged from their bail bonds.
12.As far as criminal revision filed by complainant for enhancement of sentence is concerned, no body has appeared on behalf of the complainant for the last five dates. In view of judgment given in two criminal appeals this revision petition is hereby dismissed.