'MUHAMMAD AHSAN BHOON, J.---This judgment shall dispose of Criminal Appeal No, 467 of 2001 filed by Muhammad Safdar and Sajawal Khan, Criminal Appeal No,14 of 2002 filed by Sohanda Khan and Muhammad Sharif against their conviction and sentences, Criminal Revision No,56 of 2002 filed by Adil Khan, complainant against Sajawal Khan, Sohanda Khan, Muhammad Sharif, Muhammad Safdar for enhancement of sentence of the respondent for causing injuries on the person of Mushtaq Hussain and Dildar Hussain with fire arms and the Murder Reference No,870 of 2001 submitted by the learned trial Court, as all arise out of the same judgment dated 14-12-2001 passed by Syed Ikhlaq Hussain Shah, the learned Additional Sessions Judge, Chakwal, whereby he convicted and sentenced the accused/appellants as under:-- {{TABLE}} {{DATA MISSARRANGED}} be ruled out and they were acquitted accordingly. [pp. 804, 805, 806, 8071 A, B, C, D, E, F , G, H & I
(b) Penal Code (XLV of 1860)--- ----Ss. 302 (b), 452 & 324/149--- Appreciation of evidence---Facts suppressed by parties---Principles---Incompleteness of S. No,
(1) Name of accused. Muhammad Safdar Offence u/s 302(b) P.P.C. Sentences Sentenced to death as Tazir and compensation of Rs,2,00,000 as required under section 544-A, Cr.P.C. To the legal heirs of the deceased Anwar Bibi and in default whereof to undergo R.I for six months.
(2) Sajawal Under Sentenced to Khan, section seven years Sohanda 452, R.I. And fine Khan, P.P.C. Of Rs,25,000 Muhammad each, in Sharif, default Muhammad whereof to Safdar undergo R.I. for six months each.
(3) Sajawal Under Sentenced to Khan, section seven years Sohanda 324/149, R.I. On two Khan, P.P.C.
Counts each Muhammad and fine of Sharif, Rs,25,000 on Muhammad two counts Safdar each, in default whereof to undergo R.I for six months each. All the sentences were ordered to run concurrently. Benefit of section 382B, Cr.P.C. However, was extended to the accused. {{TABLE}} {{DATA MISSARRANGED}}
2. Precisely, the prosecution story as alleged in F.I.R. Is that Adil Khan, complainant of this case is serving in Cigaratte Factory Jhelum. During the days of occurrence he had come on leave due to Eid-ul-Fitar. On 11-1-2000 he was to go back on duty at Jhelum. His sister Mst. Hameeda Begum wife of Fida Hussain and his maternal aunt Mst. Anwar Bibi wife of Wajid Hussain, both residents, of Ransial along with his maternal cousins Dildar Hussain son of Wajid Hussain and Mushtaq Hussain son of Abid Hussain had come to his house. They all were sitting inside his house. The other inhabitants of the house namely the wife, children and the mother of the complainant were also present. At about 11-30 a.m. Sajawal Khan son of Mian Khan, Muhammad Safdar son of Sajawal Khan, both armed with Pakki Rifle, Muhammad Akhtar son of Sajawal Khan armed with Pakki rifle Klashnikov type, Muhammad Aslam son of Sajawal Khan armed with Pakki rifle automatic, Sohanda Khan son of Mian Khan armed with pistol, Muhammad Sharif son of Sohanda Khan armed with gun automatic, Raees son of Sohanda Khan armed with .12 bore gun, Zahoor alias Dhawarr son of Sohanda Khan armed with Pakki rifle and Allah Ditta son of Muhammad Khan armed with Sota resident of Ransial came to their house. After entering into the house, Muhammad Akhtar raised lalkara to forcibly take Rasheeda Begum and whosoever comes in the way he be murdered.
Meanwhile the complainant side came near the door of the room. Mst. Hameeda Begum and Anwar Bibi came out to beseech the matter. In their view Muhammad Akhtar made a fire, which hit Mst. Hameeda Begum. Second fire was shot by Muhammad Safdar, which hit Anwar Bibi. Both of them fell down. All the accused started indiscriminate firing upon them. The complainant along with Dildar Hussain, Mushtaq Hussain, Mst. Asmat Zohra wife and Rehmat Begum mother of Adil Khan complainant dragged Hameeda Begum and Anwar Bibi inside the room. During this Mushtaq Hussain and Dildai Hussain also became injured due to the firing of the accused. The complainant side shut the doors of the rooms of the house from inside. All the accused went on the rooftop of the house and also made firing from there. Their fires hit the doors and the walls. They saved their lives by hiding backside the wall. The occurrence was witnessed by Riaz Hussain and Subedar Nazar Hussain, who restrained the accused from doing so.
'Motive behind the occurrence was that Rasheeda Begum the sister of Adil Khan complainant was married with Muhammad Aslam accused. Out of the said wedlock, three children are alive. About 10 days back Muhammad Aslam snatched the children from Rasheeda Begum due to family dispute and turned her out of the house. Besides this, they had already taken into possession of the complainant's land and they had exerted threats to forcibly take away Rasheeda Begum and her Bhabi.
3. After due investigation report under section 173, Cr.P.C. Was submitted against the present appellants-accused. Charge was framed against the appellants accused, who denied of the charge, pleaded not guilty and claimed trial. To prove the charge the prosecution produced its evidence. The appellants accused were examined under section 342, Cr.P.C. In answer to question No,7 Sajawal Khan accused replied as under:-- "Adil Khan P.W. Is from my brotherhood. He is also brother-in-law of my deceased son Muhammad Aslam. Rasheeda Bibi is a quarrelsome woman and Adil Khan and others are dreadful people in the village. Due to bad behaviour of Rasheeda Bibi, my son Muhammad Aslam had sent her to her house keeping the kids with him, but it was due to the fear of Adil and others that my son was not divorcing her. On the day of occurrence complainant side assaulted my son Muhammad Aslam who received fire-arm injuries and thereafter complainant side started firing on us. Safdar my son was not available in the village. There took place cross-firing. Anwar Bibi and Hameeda Bibi were hit in cross-firing while I remained present inside my house being an old man. Subsequently complainant side in connivance with the local police got this false case registered, as they are influential people."
'Sohanda Khan, Muhammad Sharif, Muhammad Safdar and Allah Ditta relied on the explanation given by their co-accused Sajawal Khan. None of the accused either opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C.
Nor did he produced defence evidence. The learned trial Court after hearing the learned counsel for the parties passed the above said judgment which is being assailed through these appeals and revision.
4. We have heard the learned counsel for the parties, gone through the evidence and record available with their able assistance.
5. Adil Khan, P.W.6 is an eyewitness, as well as complainant of the case, who while appearing before the learned trial Court reiterated the story of F.I.R. With certain improvements, according to -which, the accused-appellants Sajawal Khan, Muhammad Safdar, Muhammad Akhtar (since P.0), Muhammad Aslam (since murdered in police encounter) armed with rifles, Sohanda Khan accused-, appellant armed with pistol, Muhammad Sharif son of Sohanda Khan armed with .12 bore gun, Raees son of Sohanda Khan armed with .12 bore gun, Zahoor alias Dhawarr (since P.0) armed with rifle, Allah Ditta armed with Sota entered in the house of the complainant where accused Muhammad Akhtar raised lalkara to forcibly took away Mst. Rasheeda Begum (wife of Muhammad Aslam accused since murdered). Meanwhile Mst. Hameeda Begum and Mst. Anwar Begum came out to avoid the situation. Muhammad Akhtar since P.O made a fire short which hit Mst. Hameeda Begum, deceased, second fire made by Muhammad Safdar appellant hitting Mst.
Anwar Begum deceased, then all the accused made indiscriminate firing. Thereafter, the complainant along with Dildar Hussain, P.W.7 and Mushtaq Hussain (not examined) dragged Mst.
Hameeda Begum and Mst. Anwar Begum inside the room to save them and in that process Mushtaq Hussain and Dildar Hussain P.Ws. Were also injured. He also in addition to version of F.I.R.
Made some improvements, as he in his examination-inchief deposed "that he also made fire with his licensed weapons to protect himself. He also stated that some of the accused, who were present on the rooftop of his house made fire shot which hit Dildar Hussain and Mushtaq Hussain P.Ws. He also stated that as the accused were making fire shots through walls and windows inside the room where they were present and sensing the situation he made 3/4 successive shots from inside the room to save themselves and other inmates of the house." The ocular account furnished by the complainant Adil Khan, P.W.6, was corroborated by Dildar A Hussain, injured P.W-7 and Riaz Hussain, P.W.14. Admittedly, the complainant P.W.6 is real brother of Mst. Hameeda Begum, deceased, whereas, Mst. Anwar Begum, deceased was his maternal aunt. Similarly, Dildar Hussain, P.W.7 is real son of Mst. Anwar Begum deceased whereas Riaz Hussain P.W-14 is maternal uncle of the complainant, and Dewar of Mst. Anwar Begum and paternal uncle of Dildar Hussain, P.W-7. All the three eyewitnesses are inter se related to one another. Whereas the accused party was one of the collateral of the complainant party and accused Muhammad Aslam (since murdered) was real brother in law (Behnoi) of the complainant. It is also admitted in the F.I.R. That relations between Muhammad Aslam accused and her wife Mst. Rasheeda Begum, sister of the complainant, were strained, despite the fact that there were three children out of the their wedlock.
According to the prosecution, due to said strained relations, Mst. Rasheeda Begum was turned out of the house by the accused Muhammad Aslam whereas all the three minor children were retained by the said Muhammad Aslam. It is also an admitted fact that out of those children one was a suckling baby girl of 20 days whereas rest of two were aged about three and five years respectively. It is also admitted in evidence by the complainant that one maternal Muhammad Khan, uncle of Muhammad the real Aslam, accused visited the house of the complainant 4/5 days before the occurrence for the return of Mst. Rasheeda Begum. It is also admitted by the complainant that the complainant party attempted to get the above children back to their sister, which was refused by the accused. Whereas, he admitted that there was no other litigation between the accused and the complainant party, which fact shows that there was no other motive of the alleged occurrence except due to strained relations between Muhammad Aslam accused (since murdered) and Mst. Rasheeda Begum (sister of the complainant.) So the story of grabing of landed property by accused is not borne out from the record, as there was no evidence except oral assertion of the witnesses rather it was negated by the complainant himself in his cross examination, when he had admitted the fact that there was no other litigation or civil suit pending between the parties. Secondly, the improvements made by the complainant qua the admission of firing by the complainant was duly confronted by the defence, as the same was not available in the complaint Exh.PA/F.I.R. And similarly, it was also confronted that due to defensive firing made by the complainant the other accused went on the rooftop. It was admitted by the complainant that his house and house of Muhammad Yaqoob, his uncle, having no intervening well between them, had common courtyard. He further explained the location of house of the accused persons in the following words:-- "From the house of my uncle Muhammad Yaqoob there situates open land on the eastern side of my house. Further from above-mentioned open land situate houses of Muhammad Safdar, Muhammad Akhtar accused and that of Muhammad Aslam accused (since dead) which are located from southern and northern. It is correct that houses of Akhtar, Aslam and Safdar accused are situated at the lower point than to our house.
'They are located at a depression of 3/4 feet. Some of the courtyards of the accused side are visible from top roof of our house whereas some are not."
The above quoted description given by the complainant would show that the accused and the complainant are not only the residents of the same locality but they were neighbours and there were cross-firing B between the parties as admitted by all the three eye-witnesses in their cross examination before the learned trial Court. Although it was denied by the complainant that anybody was injured due to his defensive firing but Muhammad Aslam, accused (since murdered) ,was examined by Dr. Tariq Mahmood DW-1 on the day of occurrence i.e, 11-1-2000 and his medical report is Exh.DE, which is available on the record and the same was proved by Dr. Tariq Mahmood DW-1, who examined the said injured accused and found the following injuries:--
(1) A lacerated wound 1.8 x 1.2 c.m. On left eyelash. It was about 5 c.m. From midline and about 9 c.m. From trigger of left ear. Piece of skin and flesh was completely removed from wound. Bone was visible. Left eye was intact. Eyelids were not bruised.
(2) A bruise 4.0 x 5.0 c.m, red in colour on right side of chest involving medical part of the right clavicle, mild swelling was visible. It was about 15 c.m. From midline.
The factum of injuring Muhammad Aslam accused was concealed by the prosecution which fact would show that the prosecution has not come with clean hands and has not given the complete tale and true accounts of occurrence. Riaz Ahmad, P.W.-14 admitted in his cross examination that the quarrel between the complainant and accused party Sajawal etc., took place due to exchange of hot words and same is reproduced below for facility of reference:-- {{URDU TEXT}} ' Similarly, defence has also not given the actual accounts of occurrence. However, it is settled proposition of law that incompleteness of tale given by the parties would not deter the Court of drawing conclusion, which was otherwise decipherable from the evidence available on record. It is an admitted fact between the parties that there was strained relations between the parties due to immediate separation of accused Muhammad Aslam and Mst. Rasheeda Begum and retaining of children by the accused Muhammad Aslam (since murdered) and negotiations between the parties were going on to settle the matter. As per the version recorded in Urdu of evidence of P.W- 14 the parties might have sat together for the resolution of dispute and that may be the reason of presence of all relatives on the spot including both deceased and injured P.W.7, who were otherwise not the residents of house which is place of occurrence and during that process exchange of hot words might occurred and in consequence thereof this occurrence took place there and unfortunately two ladies lost their lives whereas Muhammad Aslam accused suffered fire-arm injury near his eyebrow. So the presence of Sajawal accused was natural being elder of the family. However, he was convicted under section 452, P.P.C. And sentenced to undergo seven years' R.I. Along with fine of Rs,25,000 each, vide the judgment dated 14-12-2001 he was, also convicted under section 324/149, P.P.C. And sentenced to undergo R.I for seven years along with fine of Rs,25,000 on two counts vide the same judgment. Whereas the appellant accused Sajawal is aged about 75 years when his statement under section 342, Cr.P.C. Was recorded on 13-12-2001. So, in view of the above situation, we reduce the sentence awarded to the appellant Sajawal Khan to that of already undergone by him, which would meet the ends of justice. Whereas Muhammad Safdar appellant was attributed role of causing fatal fire-arm injury to the deceased Mst. Anwer Begum but as the occurrence was the result of a sudden flare up due to exchange of hot words between the two families who were closely related to each other and there is no other motive available on record coupled with the facts G that there was cross firing and firing made by Adil Khan, P.W.6 complainant which is admitted by the eye-witnesses, was initially suppressed by the prosecution, hence that would be mitigating circumstances in favour of Safdar appellant-accused.
7(sic). As far as Sohanda Khan and Muhammad Sharif, appellants-accused are concerned, Sohanda Khan was aged about 72 years whereas the other accused-convict Muhammad Sharif is his real son and similarly Sohanda Khan is real brother of Sajawal appellant-accused and paternal uncle of Safdar accused. It is admitted by the complainant that relations between Sohanda Khan and accused Muhammad Safdar accused were strained about seven years ago and accused Sohanda Khan lodged criminal case against Muhammad Safdar, Muhammad Akhtar and Muhammad Aslam accused, as well as against the , complainant and all the accused were challaned in that case and later on, were acquitted. It was also admitted by the complainant that he along with Sajawal Khan accused had filed a civil suit against Sohanda Khan, which was dismissed by the learned lower Court as well as the learned appellate Court and Muhammad Yaqoob, uncle of the complainant was still pursuing the civil cases against Sohanda Khan. Similarly the criminal litigation between Sohanda Khan and other accused, inter se is also available on the record and in that scenario it would not be possible for the accused-appellants Sohanda Khan and Muhammad Sharif to join hands with their co-convict Muhammad Safdar etc, against whom they had pitched litigation and even otherwise, they both, have not been attributed any specific role of causing IH injuries to any of the deceased or the P.Ws. Possibility of false implication to widen net of the prosecution due to civil litigation against Sohanda Khan and his son Muhammad Sharif accused cannot be ruled out. So giving them benefit of doubts both the appellants accused namely Sohanda Khan and Muhammad Sharif are entitled to the acquittal.
8. For what has been discussed above, Criminal Appeal No,14 of 2002 filed by Sohanda Khan and Muhammad Sharif is allowed. The impugned judgment of conviction and sentence to their extent is set aside and they are acquitted of the charge. They are on bail, their sureties stand discharged.
The conviction of Muhammad Safdar under section 302(b), P.P.C. Is maintained however, sentence is altered from death to life imprisonment with benefit of section 382-B, Cr.P.C. And rest of his convictions and sentence are maintained while convictions of Sajawal Khan accused-appellant are maintained, however, sentences are reduced to that of already undergone by him and Criminal Appeal No,467 of 2001 is dismissed with I the above modification in the sentences.
Criminal Revision No,56 of 2002 for enhancement of sentences filed by the complainant having no merits is hereby dismissed.
'Murder Reference is answered in negative.