Malik Saeed Ejaz, J.--Aurangzeb, Muhammad Javed and Ahmad Nawaz, all three sons of Khan Bahadur, were tried by a learned Additional Sessions Judge, Attock in case FIR No, 230 dated 4.9.2002 under. Sections 302, 337-A(ii)/34 PPC registered with Police Station Saddar Attock and on completion of trial, vide judgment dated 14.01.2003 following convictions and sentences were passed:-- AHMAD NAWAZ was convicted under Section 302-b PPC and sentenced to death with further direction to pay Rs, 1,00,000/- compensation to the legal heirs of the deceased, failing which to suffer six months rigorous imprisonment; MUHAMMAD JAVED & AURANGZEB, convicted under Section 337-A(ii) PPC and sentenced to three years rigorous imprisonment each; further ordered to pay Rs, 15000/- each as Arsh to Afsar Khan and Shaukat Khan injured witnesses; JAVED, convicted under Section 337-F(i) PPC and sentenced to six months rigorous imprisonment, plus Rs,5000/- as daman to Masood injured witness.
Javed and Aurangzeb were extended the benefit of Section 382-B Cr.P.C. Criminal Appeal No, 24/2003 has been filed by Ahmad Nawaz, Aurangzeb and Javed challenging their above convictions and sentences, Criminal Revision No, 47/2003 has been filed by Afsar Khan complainant seeking enhancement of sentence, whereas, Murder Reference No, 82/2003 has been sent by the learned trial Court seeking confirmation or otherwise of death sentence qua Ahmad Nawaz. All three matters have been taken up for decision through this single judgment.
2. The case of the prosecution succinctly as it emerges from the contents of FIR got lodged by Afsar Khan complainant/PW-9, is that on 4.9.2002 at about 8.00 a.m. he (the complainant) along with Dadu Khan and Masood Ahmad (nephews) were coming towards the shop of Masood Ahmad and when reached near the shrine of Chorra Baba, from the front Ahmad Nawaz armed with Kalashnikov, Aurangzeb armed with hatchet, Muhammad Javed armed with danda came and Ahmad Nawaz shouted lalkara for teaching them a lesson over a day earlier quarrel between the children and fired a straight Kalashnikov shot hitting the front side of chest of Dadu Khan who fell down. Aurangzeb inflicted a hatchet blow from its wrong side on the head of the complainant and danda blow by Muhammad Javed hit the head of Shaukat. When Masood Ahmad came ahead to rescue, Muhammad Javed inflicted repeated danda blows hitting his right leg and left ear. Where after, the complainant party scuffled with Ahmad Nawaz and others, the complainant snatched Kalashnikov from Ahmad Nawaz. On hearing the noise, Muhammad Javed son of Banaras and Arshad Khan son of Nawab Khan also attracted to the scene and they snatched hatchet and danda from Aurangzeb, etc. and inflicted danda blows to Ahmad Nawaz and others, whereupon they were also slightly injured and ran away from the spot. Dadu Khan was taken to the Hospital in injured condition, but he succumbed to the injuries.
The motive was stated to be that previous evening Nasir nephew of the complainant had quarrel with Faraz nephew of Ahmad Nawaz and because of that grudge Ahmad Nawaz and two others after consulting each other committed the murder of Dadu Khan and injured other persons from complainant's side. The Kalashnikov which was allegedly snatched by the complainant from Ahmad Nawaz accused was also produced at the time of lodging the complaint by Afsar Khan complainant.
3. The investigation of the case was taken up Sabir Hussain Sub-Inspector PW-11, who on receipt of information about the occurrence reached Hospital where Afsar Khan Complainant made statement as has been detailed above while narrating the prosecution story. The Investigating Officer prepared injury statements of Afsar Khan, Masood Ahmad and Shaukat injured and inquest report of deceased Dadu Khan. The Investigating Officer also collected the Kalashnikov produced by the complainant, which according to him had been snatched from Ahmad Nawaz accused/ appellant and the Investigating Officer while de-loading the said weapon took out six live rounds.
Statements of the witnesses under Section 161 Cr.P.C. were recorded, prepared recovery memo. of a Motorcycle No 3246/BRD lying at the spot. On 4.9.2002 Muhammad Javed and Aurangzeb were arrested in injured condition; Mst. Nasim Akhtar and Khan Bahadur also appeared before the Investigating Officer in injured condition. Ahmad Nawaz accused/ appellant was arrested by the Investigating Officer on 19.11.2002, and thereafter after completion of investigation challan was sent to Court.
4. The trial commenced with framing of charge, to which the accused/ appellant pleaded not guilty and claimed to be tried. During trial the prosecution examined eleven witnesses in all, which consist of statement of Sabir Hussain Sub-Inspector PW-11 who explained his investigation notes; Dr. Muhammad Ijaz Khan PW-5 who had conducted autopsy over the dead body of Dadu Khan and medically examined Afsar Khan, Shaukat and Masood Ahmad; Afsar Khan complainant injured/ PW-9, Masood injured/PW-10, Javed son of Banaras PW-7 and Arshad PW-8 appeared to furnish assigned, were treated harshly and were given severe beatings, including the womenfolk i,e, Mst Nasim Akhtar. Furthermore, recovery of motorcycle from the place of occurrence, which admittedly belonged to the accused side, was also an indication that defence version as put forth by Aurangzeb accused/appellant was true that Muhammad Javed was on his way back home after duty when his motorcycle was intercepted by the complainant party to launch attack upon him.
Otherwise, presence of such motorcycle at the place of occurrence was not shown by the prosecution at the site, either in the FIR or in the statements of the witnesses before the Court. This circumstance is sufficient to belie the prosecution case so for as it alleges the accused party to be aggressors.
5. While making above observations, we are fortified by the fact that Dadu Khan deceased had received just one fire arm injury, which is admitted by the defence to have been caused by Aurangzeb in exercise of right of self-defence; one lacerated wound was received by Afsar Khan, one lacerated injury was sustained by Shaukat Khan and one lacerated injury with one small bruise was received by Masood PW. On the other hand, from the accused side Mst. Naseem Akhtar had sustained three injuries which also include a stab wound, Javed accused/appellant had sustained six injuries, Aurangzeb accused/appellant had sustained five injuries and Khan Bahadur had received four injuries. The number of the injured persons and number of the injuries sustained the motive as well as ocular account of the occurrence. The rest of the prosecution witnesses are all formal, whereas, the learned trial Court also examined Dr. Tabassam Shaheen Medical Officer as CW-1 who had conducted medical examination of Mst. Nasim Akhtar and Dr. Abdul Hameed Medical Officer CW-2 who had medically examined Javed son of Khan Bahadur, Aurangzeb and Khan Bahadur. On close of the prosecution evidence the same when put to the accused, Muhammad Javed in his statement under Section 342 Cr.P.C. while refuting the prosecution evidence, narrating the occurrence in a different manner from that as had been alleged by the prosecution in the FIR. According to Muhammad Javed accused/appellant:-- "On 4.9.2002 after finishing my duty, I was going from Attack to village Mari on my Motorcycle No, VRD/3246. When I reached near the shop of Masood alias Goga PW at about 8.00 a.m. In the meantime the complainant Afsar Khan armed with a knife, Javed s/o Banaras armed with hatchet, Masood Ahmad, Shaukat, Arshad end Dadu Khan, deceased armed with dandas emerged out of the shop of Masood Ahmad alias Gaga PW. Afsar Khan complainant stopped me and raised a lalkara while armed with a knife that they will tell me a lesson for the quarrel of the children occurred a day earlier. Javed accused gave me a hatchet blow with its reverse side landing on my head. Dadu Khan since dead, gave me a danda blow which hit me on left arm, and I fell down on the ground along with the motorcycle. I raised hue and cry. On my hue and cry my Khala Mst.
Naseem Akhtar, my father Khan Bahadur and my brother Aurangzeb also reached at the spot.
Arshad PW gave a danda blow to Aurangzeb hitting him on his head and there after gave many blows with danda landing on the different parts of the body of Aurangzeb. Aurangzeb ran away from the place of occurrence, my aunt Mst. Nasim Akhtar and my father Khan Bahadur went forward to lift me from the ground, when Masood PW gave danda blow hitting on the head of my father khan Bahadur. Afsar Khan PW gave a knife blow to my khala Mst. Nasim Akhtar landing on her arm Thereafter, Arshad PW inflicted injuries on the person of my khala hitting on different parts of her body. Thereafter, Masood and Shaukat PWs caused injurie3 to my father with their respective weapons. I again raised alarm thereupon, Dadu Khan, deceased and Javed PW caused me injuries with their respective weapons. In the meantime, Aurangzeb my brother came at the spot and fired a shot with a Kalashnikov in order to defend ourselves which after deflecting the ground hit Dadu Khan deceased. In the meantime, Allah Bakhsh and Muhammad Safdar and other members of the brotheri were attracted to the spot and they caused minor injuries to Masood, Shaukat and Afsar PW in order to defend us from their hands. If Allah Bakhsh, Muhammad Safdar and other persons had not attracted to the spot we would have been killed at the hands of the PW.
The motive for the occurrence was that my nephew Ahmad Faraz and the Bhanja of Afsar Khan namely Nisar and Shaukat had quarreled a day earlier to the day of occurrence.
Similar statements were made by the other accused persons. Apart from making statements under Section 342 Cr.P.C. all the three accused/ appellants also appeared in the witness box in terms of Section 340(2) Cr.P.C. in their defence and were subjected to cross-examination by the prosecution. Anyhow, on the conclusion of the trial, they were convicted and sentenced as detailed in the opening paragraph of this judgment.
6. We have heard the arguments of learned counsel for the parties at considerable length and have also gone through the entire material with their assistance.
7. Firstly, we take up the motive part of the occurrence, which in fact is admitted by both the sides that one day earlier to the occurrence, a quarrel had taken place between the children of both the families. As such both the parties have tried to use the said motive against the other side to launch aggression upon them. In such a situation, when both the parties are admitting the motive, we have no doubt in our mind to hold that at least this piece of evidence cannot be used for benefit of one party and to the detriment of other.
8. Now while considering the ocular account of the occurrence, Afsar Khan complainant injured/PW-9, Masood injured/PW-10, Javed son of Banaras PW-7 and Arshad PW-8 appeared to furnish the ocular account of the occurrence. Afsar Khan made statement in line with the contents of the FIR to the effect that on the fateful day, and time he along with Dadu Khan and Masood Ahmad (nephews) was coming to the shop of Masood Ahmad when reached near the shrine of Chorra Baba, from the front Ahmad Nawaz armed with Kalashnikov, Aurangzeb armed with hatchet, Muhammad Javed armed with danda came and Ahmad Nawaz shouted lalkara for teaching them a lesson over a day earlier quarrel between the children and fired a straight Kalashnikov shot hitting the front side of chest of Dadu Khan and he fell down. Aurangzeb inflicted a hatchet blow from its wrong side on the head of the complainant and danda blow by Muhammad Javed hit the head of Shaukat. When Masood Ahmad came ahead to rescue, Muhammad Javed inflicted repeated danda blows hitting his right leg and left ear. Where after, the complainant party scuffled with Ahmad Nawaz and others, the complainant snatched kalashnikov from Ahmad Nawaz. On hearing the noise, Muhammad Javed son of Bananas and Arshad Khan son of Nawab Khan also attracted to the scene and they snatched hatchet and danda from Aurangzeb, etc. and inflicted danda blows to Ahmad Nawaz and others, whereupon they were also slightly injured and ran away from the spot. Dadu Khan was taken to the Hospital in injured condition, but he succumbed to the injuries. The other witnesses also tried to toe the statement of the complainant.
As shall be seen from the above, the complainant has alleged that accused party had in fact launched attack upon the complainant party and their person Dadu Khan had been murdered whereas, others had sustained injuries and while giving a passing reference the complainant and the witnesses deposed that during scuffle Ahmad Nawaz and others had also sustained some minor injuries at the hands of the prosecution witnesses, Muhammad Javed son of Banaras PW-7 during course of cross-examination stated that Mst. Nasim Akhtar (from the accused side) had also been injured during the occurrence, whereas, according to the complainant in cross- examination only Javed and Aurangzeb were injured. On the other hand, when statements of the accused under Section 342 as well as 340(2) Cr.P.C. are read they have claimed themselves to be the victims and beposed that they had in fact been attacked by the complainant party, where in injuries were caused to them and in order to save their lives Aurangzeb took out his Kalashnikov and its one fire hit Dadu which proved fatal. It therefore, becomes quite obvious that both the parties had tried their level best to suppress the injuries sustained by their rivals at their hands. The prosecution had suppressed the injuries sustained by Mst. Nasim Akhtar as well as Khan Bahadur, whereas, the accused side had not disclosed and explained the injuries sustained by Afsar Khan, Shaukat Khan and Masood Ahmad. Therefore, in suck like situation when both the parties are concealing the true facts, we juxtapose the prosecution case as well as the defence, so as to sift the grain from chaff.
9. According to the case of the prosecution the fatal fire shot on the deceased was fired by Ahmad Nawaz from his Kalashnikov. Admittedly, Ahmad Nawaz is attributed just a single fire shot and that on the person of the deceased without its repetition either on the accused or any of the other prosecution witness. It is the statement of the complainant in the FIR as well as before the Court that they had snatched the Kalashnikov from Ahmad Nawaz which Kalashnikov was produced by the complainant himself before the police. It is shocking that when a person (Ahmad Nawaz) was so desperate that he had fired a direct shot at Dadu deceased, when he was being apprehended by the complainant side, he did not even attempt to make even aerial firing from his Kalashnikov to keep away the complainant party, rather he voluntarily surrendered the crime weapon to the complainant party. This appears to be more ridiculous when we read the evidence of Sabir Hussain Investigating Officer according to whom when the complainant produced the Kalashnikov allegedly snatched from Ahmad Nawaz accused, it had six live rounds in it which were taken out by him. In this situation when the crime weapon carried by Ahmad Nawaz was fully loaded, it was quite natural that he could easily use the remaining armory to ward off the attack from the complainant party or at least to frighten them to avoid his arrest.
10.Further more, according to the prosecution case as set in the FIR, some persons from the accused side were injured during the occurrence and in his statement before the Court the complainant made an explicit statement that Javed and Aurangzeb were the persons from the accused who had been injured at their hands. Therefore, it is no where the case of the prosecution that Ahmad Nawaz had even received a simple scratch during the occurrence at the hands of the prosecution. When this circumstance is evaluated with the case of the prosecution that Ahmad Nawaz was the person who had fired at the deceased, then as a matter of fact the first and foremost target of the complainant party would have been Ahmad Nawaz, who according to them was in fact the perpetrator and it was his fire shot which had taken the life of Dadu deceased, especially when according to the complainant himself he came so near to them that they even succeeded in snatching the crime weapon from him. But, admittedly not a single injury was caused to Ahmad Nawaz accused/appellant, whereas, his other companions, to whom according to the prosecution case no vital role had been by them, clearly indicate that in fact the complainant had launched attack upon the accused side, which exactly had been the stance of defence in their statements that Ahmad Nawaz was even not present at the site of the occurrence and was falsely involved in the case, so that he being an employee in the District Courts, could not pursue the case of other nominated accused. Further-more it is admitted by the Investigating Officer that at one stage the D.S.P. (Investigation) had also observed that Ahmad Nawaz was not present at the scene of occurrence and while declaring Ahmad Nawaz as innocent, his name was placed in Column No, 2 of the report under Section 173 Cr.P.C. Although opinion of the police is not binding on the Court, yet we are confident that the same is fully supported by the evidence available on record, The above factors, lead us to hold that although one person from the prosecution side had lost his life, but the prosecution has not been able to prove its case at least against Ahmad Nawaz accused/appellant, as the above discussed circumstances are sufficient to negate the presence of Ahmad Nawaz accused/appellant at the site. Therefore, this criminal appeal to the extent of Ahmad Nawaz accused/appellant is allowed, his conviction and sentence is set-aside, he is acquitted of the charge against him and ordered to released forthwith if not require in any other case.
11. Although the prosecution has failed in its responsibility to prove its case beyond any shadow of doubt, yet the fact remains that Dadu who belonged to the prosecution side, had lost his life during the same occurrence. In these circumstances, we are left with no other option but rely upon the statement of Aurangzeb accused/ appellant, whose statement appears to be truthful or at least more nearer to truth as compared to the prosecution testimony, in his statement Aurangzeb implicates himself to be the person who had fired at Dadu deceased but in exercise of right of self- defence as well as to save the lives of his other house inmates. The statement of Aurangzeb appears to be fully justified when it is evaluated with the fact that it was the accused party which had received so many injuries at the hands of the complainant party and Mst. Nasim Akhtar from the accused side had even received a stab wound at the hands of Afsar Khan complainant. In such a situation it is quite natural that Aurangzeb who himself had received injuries and his father, brother and Khala were also being inflicted merciless injuries, he went inside the house, took out Kalashnikov and in order to safe his life as well as lives of his other close relatives, he fired just a single fire shot from his Kalashnikov which hit Dadu and ultimately proved fatal. As such, when Aurangzeb himself admitted the responsibility of having fired a shot at the deceased, but the above circumstances that complainant party had launched attack upon the accused party; wherein, so many persons from accused side had sustained a number of injuries, we considering these aspects as sufficient mitigating factors, hold that his case was fully covered by Section 302(c) PPC. Accordingly, in criminal revision for enhancement of sentence we put the learned counsel for Aurangzeb on notice, which he accepts and as such while recording conviction against Aurangzeb under Section 302(c) PPC sentence him to the period already undergone by him.
12.As regards remaining convictions for causing hurts to the witnesses and sentences recorded there under by the learned trial Court against Aurangzeb and Muhammad Javed, as already observed .above Afsar. Khan, Shaukat Khan and Masood Ahmad sustained one injury each, and it has come in the evidence Dr. Muhammad Ejaz Khan PW-5 that all these injuries were simple in nature and it was quite possible that these could be result of stone pelting. In these circumstances, when it is proved that actually the complainant party was aggressor to have mounted attack, sustaining such minor injuries during course of scuffle and melee cannot be made basis to record conviction against any specific person. As such, this criminal appeal to the extent of convictions and sentences for allegedly causing injuries to the prosecution witnesses is allowed and both accused/appellants namely Muhammad Javed and Aurangzeb an acquitted of this charge against them.
13.In nutshell, Criminal Appeal No, 24/2003 to the extent of Ahmad Nawaz is allowed as a whole, similarly to the extent of conviction and sentence of Muhammad Javed and Aurangzeb for allegedly causing injuries to the PWs is also allowed and they are acquitted of this charge against them.
14.However, as discussed above in Criminal' Revision No, 47/2003 after putting Aurangzeb on notice, he is convicted under Section 302-C PPC and sentenced to the period already undergone by him. This Criminal Revision to the extent of Ahmad Nawaz and Muhammad Javed, fails and is accordingly dismissed.
Murder Reference is Answered in the negative.
Sentence of death is not confirmed.