BASHIRUDDIN AHMAD, C. J.--Taza Gul (50) was tried for the murder of Ghulam Mohammad and attempted murder of Mohammad Gul and Khaista Gul on March 29, 1967, by the Addl. Sessions Judge, Mardan, who convicted and sentenced him under section 304, Part I, P. P. C. to undergo rigorous imprisonment for a period of eight years plus a fine of Rs, 1,000.00 or in default of payment thereof to undergo R. I. for a further period of two years. He was also held guilty on two counts under section 307, P. P. C. and was sentenced to undergo rigorous imprisonment for a period of five years on each count. The sentences of imprisonment were ordered to run concurrently.
2. The convicted person did not appeal against his conviction or the sentences. Gul Rasul preferred Criminal Revision No, 269 of 1968 for retrial of Taza Gul for the offence under section 302, and in the alternative for enhancing the sentence awarded to him under section 304, Part I and also under section 307, P. P. C. On October 5, 1970, a learned Single Judge ordered the issuance of a notice to Taza Gul to show cause why he should not be retried for offences under sections 302, and 307, P. P.
C. or in the alternative the sentences awarded to him under section 304, Part I, P. P. C. and on two counts under section 307, P. P. C. be not suitably enhanced.
3. The facts of the case are that on the eventful day, at 8-00 a.m. Taza Gul fired with a shot-gun at Ghulam Mohammad in the area of Spin Kani. Ghulam Mohammad was mortally wounded and dropped to the ground. The firing also resulted in injuries to Muhammad Gul and Khaista Gul. Abdul Akbar, Abdul Hakim and Zaman Khan witnessed the occurrence.
The motive for the assault on Muhammad Gul and his brother Khaista Gul was the dispute over the partition wall in between their house and that of Taza Gul. Prior to the occurrence, which is the subject-matter of the case. Taza Gul had brought a complaint against Mohammad Gul and his brother Khaista Gul for having taken forcible possession of a piece of land and also for belabouring him. Mohammad Gul and his brother were summoned by the Chairman, Union Council, but ultimately they were exonerated. On the day of the alleged occurrence, Taza Gul on one side and his nephews Mohammad Gul and Khaista Gul on the other were called by Abdul Akbar alias Babar, a B. D. Member, Zaman Khan and Abdul Hakim P. Ws. to settle the dispute between the parties. Taza Gul and his nephews went to the hujra of Abdul Akbar where Abdul Akbar, Abdul Hakim Khan and Zaman Khan tried to intercede and bring about a compromise between the parties, but without any success. They also inspected the site in dispute and in the presence of some of the elders, Muhammad Gul and his brother demanded one-half share out of the vacant piece of land and also desired to construct a partition wall, but Taza Gul was not agreeable to it. When all attempts by the elders to bring about reconciliation between Taza Gul and his nephews failed, they left the place for their hujra telling the parties to decide the matter between themselves. Taza Gul brought out his licensed S. B. shot-gun from his house and started going towards his hujra. Muhammad Gul and Khaista Gul also started going in the direction of the hujra and in the way they were joined by Ghulam Muhammad deceased who came from his house. They were talking among themselves while proceeding towards the hujra, and when they reached the courtyard of the hujra they noticed Taza Gul standing by the side of a wall which separated their hujra from the mosque Abdul Hakim and Zaman Khan were also standing by the side of the wall at a distance of about four paces. Abdul Akbar was present in the hujra. Taza Gul fired towards his nephews resulting in injuries to Muhammad Gul, Khaista Gul and Ghulam Muhammad deceased. Since Ghulam Mohammad was seriously injured, he was removed to Police Station Kalu Khan, five miles away, where at 9-30 a.m. the same day, Abdul Akbar, lodged the report Exh. P. A.
Sub-Inspector Mir Rehman (P. W. 13) prepared the injury-sheet Exh. P. E. of Ghulam Mohammad and sent him to the Civil Hospital for medical examination. The Sub-Inspector reached the scene of crime at 11-00 a.m. He sent for Muhammad Gul and Khaista Gul. They had injuries on their persons.
The Sub-Inspector prepared their injury-sheets and sent them to the doctor for medical examination. He inspected the spot and prepared the site plan Exh. P. J. at the pointing out of the witnesses. Point No, 1 in the site plan denotes the courtyard of hujra of Matyal which is used as a thoroughfare. The deceased received his injuries at this point. Point No, 2 indicates the presence of Muhammad Gul at the time of the occurrence. It lies at a distance of one pace from point No,
1. The place where Khaista Gul was injured is shown in the site plan as No,
3. The distance between points Nos, 1 and 3 is one pace. Points Nos, 2 and 3 are also one pace apart from each other. Point No, 4 indicates a thoroughfare inside the mosque. It is adjacent to the northern wall of the mosque. Taza Gul fired while standing at point No,
4. The distance between points Nos, 1 and 4 is four paces. Point No, 5 shows the hujra of Matyal, where Abdul Akbar alias Babar P. W. was present at the time of the occurrence. The distance intervening between points Nos, 1 and 5 is ten paces. Point No, 6 denotes the presence of Abdul Hakim at the time of the occurrence. The distance between points Nos, 1 and 6 is roughly six paces. Points Nos, 4 and 6 are at a distance of three paces from each other. Point No, 7 is situated on the path of the mosque, where Zaman Khan P. W. was present. The distance between points Nos, 1 and 7 is seven paces. The distance place marked 'A' indicates the northern wall of the mosque. The height of the said wail from the side of the hujra is five feet and its height from the side of the mosque is 3i feet. Taza Gul was arrested on the same day and was called upon by the investigating officer to produce his licensed shot-gun which he failed to do. On 30-3-1970, at 6-00 a.m., Assistant Sub Inspector Mohammad Fayaz Khan (P. W. 5) received information regarding the death of Ghulam Mohammad in the Civil Hospital, Mardan. He went to the hospital, prepared the injury-sheet, drew up the inquest report and then despatched the dead body to the mortuary for post-mortem examination.
4. Dr. Muhammad Azam who medically examined Ghulam Mohammad, when he was alive, and P.
Ws. Mohammad Gul and Khaista Gul left in connection with higher studies and was, therefore, not available for evidence in this case. Lady Dr. Hamida Rahim (P. W. 1) proved his handwriting and stated that Ghulam Muhammad was examined by Dr. Mohammad Azam on 29-3-1967 at 10-00 a.m. who found the following injuries:-- (1)Multiple pellet wounds of entrance covering the posterior, lateral and anterior aspect of right upper arm in the area of 8" x 7", each measuring 1/6" in diameter. Blackening of the area was present.
(2)Four pellet wounds of entrance over the front of right upper chest, each measuring 1/6" in diameter.
(3)Three pellet wounds of entrance over the right side of neck, each measuring 1/6k in diameter.
(4)Two pellet wounds of entrance over side of right chest, upper part, each measuring 1/6" in diameter.
(5)Multiple pellet wounds over the right scapular region and back of the right chest, upper part, in the area of 6" x 5". Blackening of the area was present.
(b) Muhammad Gul P. W. was examined by Dr. Muhammad Azam on 29-3-1967 at 5-00 p.m. who found the following injuries on his person :- (1)A fire-arm (pellet) wound over right temple 1/6" in diameter.
(2)A grazed fire-arm wound over right pinnaX 1/6" x skin deep.
Both the injuries were simple and had been caused by fire-arm.
(c) Khaista Gul P. W. was also examined by Dr. Muhammad Azam the same day at 5-10 p.m. and was found to have a firearm (pellet) wound over the lateral aspect of right elbow joint, 1/6" in diameter. The injury was simple and had been caused by fire-arm.
5. After the death of Ghulam Muhammad, Dr. Johar Shah (P. W. 2) held the autopsy on the dead body on March 30, 1967 at 9-40 a.m. and found the following injuries :-
(1) Multiple (more than thirty) fire-arm pellet wounds of entrance each l/5" x 1/5 muscle and cavity deep scattered on the right shoulder, right side of neck and the right side of chest. There was neither charring nor any exit wound.
The doctor recovered five small pellets. In the opinion of the doctor, the death was due to shock and haemorrhage resulting from the injuries caused, by fire-arm.
6. The defence of Taza Gul was a bare denial. He admitted that Muhammad Gul and Khaista Gul P.
Ws. are his nephews. When called upon to explain why he failed to produce his licensed shot-gun to the police, Taza Gul made the statement which runs :- "I was not in the village at the time of the alleged occurrence and when I came to the village in the afternoon and went to the hujra of Derai Malik, I learnt of this false charge and the investigating officer arrested me there forthwith without giving me any chance of going to my house at all. My son was a retainer in the licence and he used to carry the shot-gun in question."
Taza Gul asserted that he was innocent and had been falsely charged. Elaborating the point, Taza Gul made a statement, at the trial, which is reproduced below for the sake of convenience :- "Khaista Gul and Muhammad Gul P. Ws. are on inimical terms with me. I made a complaint against them to the police as a result of which they were bound down in security proceedings two or three months prior to the occurrence. Abdul Hakim and Abdul Akbar P. Ws. both are the aunt's son of Ghulam Muhammad. One sister of Ghulam is married to Abdul Akbar and another to Abdul Hakim.
Zaman Khan is a collateral and Tarbur of Abdul Hakim P. W. Zaman Khan was stabbed by one Asiam, his brother. I was cited as a witness. I refused to give false evidence for Zaman Kban. Since then, be is annoyed with me. Abdul Hakim was contesting the B. D. Election and I was the party man of his opponent. Since then he is also annoyed with me. I had also opposed Abdul Akbar P. W. in the last B. D. Election and since then he has also been instigating Mohammad Gul and Khaista Gul against me. They are in the party of Abdul Akbar and Zaman Khan P. Ws. I am also implicated by these witnesses to get my security forfeited besides other consequences.
7. No evidence was produced in defence.
8. At the trial, Abdul Akbar (P. W. 8), Muhammad Gul 4P. W. 9), Khaista Gul (P. W. 10), Abdul Hakim (P.
W. 11) and Zaman Khan (P. W. 12) furnished direct evidence. They narrated the circumstances which culminated in the death of Ghulam Muhammad and injuries to Muhammad Gul and his brother Khaista Gul in the course of the same transaction. Abdul Akbar is a B.ID. Member. As already observed, Muhammad Gul, and Khaista Gul are the nephews of Taza Gul. They are in no way related to the deceased, but a sister of the deceased is married to Abdul Hakim. The deceased was the maternal cousin of Abdul Akbar. The evidence is that there arose a dispute between Taza Gul and his nephews over the partition wall between their houses. Abdul Akbar, Zaman Khan and Abdul Hakim tried to bring about a reconciliation, but the efforts did not bear fruit. Then they went to the spot from the hujra, but even there no result could be achieved. Taza Gul was reluctant to allow his nephews to erect the partition wall. Abdul Akbar and others sensed trouble and left the place telling the parties to follow them to the hujra. Abdul Akbar went to the hujra while Abdul Hakim and Zaman Khan stood by the side of a wall near the mosque. Taza Gul arrived there armed with S. B. shot-gun. Muhammad Gul and Khaista Gul came from the western direction accompanied by Ghulam Muhammad deceased. They were at a distance of six or seven paces from Taza Gul in the hujra when he fired at them. Ghulam Muhammad fell down after the receipt of the injuries and Taza Gul escaped.
9. The story about the dispute between Taza Gul and his nephews was narrated in Court by Abdul Akbar and his statement is amply corroborated on this point not only by what he stated in his report to the police, but also from the testimony of other witnesses, particularly Ghulam Jilani, Secretary, Union Council, Sheikh Jana, who was called as the 7th witness for the prosecution. He produced the file of the complaint under sections 447, 323 and 504, P. P. C. lodged by Taza Gul against his nephews. Mohammad Gul and Khaista Gul appeared and nominated their representative. Taza Gul nominated Abdul Akbar to represent him in the proceedings before the Union, Council. There is thus sufficient evidence on the record to prove that there had been bad blood between Taza Gul and his nephews. Their relations had been strained.
10 .Learned counsel for Taza Gul, who appeared in obedience to a notice to show cause against retrial of Taza Gul for the offence under section 302, P. P. C. and in the alternative for the enhancement of sentence, referred to certain omissions in the statements of ocular witnesses and contended that in view of the material contradictions brought out in the evidence, the case against Taza Gul deserved to be thrown out. We perused the evidence with care and came to the conclusion that the so-called contradictions are mere omissions in the previous statements of witnesses which had not been recorded in very great detail, but comparatively a brief narration is to be found of the occurrence in those statements. These omissions in no way proved that Abdul Akbar, Mohammad Gul, Khaista Gul, Abdul Hakim and Mohammad Zaman Khan did not see the occurrence. Muhammad Gul and Khaista Gul bear gun shot injuries which is a hallmark of their presence at the spot at the time of the alleged occurrence. The injuries could not be fabricated.
There was no appreciable time lag between the occurrence and the lodging of the report which could enable them to fabricate the injuries or concoct the story. The occurrence took place in broad day-light and we are not prepared to believe that no body saw it. At any rate, the two injured witnesses were there and substantially corroborated the prosecution story. They are closely related to Taza Gul and although their relations with Taza Gul were strained, but there had been no blood- feud between them to make their testimony unacceptable. They ascribed the fatal shot to their uncle and there is no reason to doubt the correctness of their testimony. They themselves sustained injuries in the course of the same transaction.
11.Dr. Mohammad Azam, who examined Ghulam Muhammad when he was alive, found a number of gun shot injuries on his person from which the learned counsel concluded that injuries Nos, 2 and 5 found on the person of Ghulam Mohammad could not be the result of one shot. It was, therefore, contended that the eye-witness account being inconsistent with the medical evidence could not be believed. We find that Dr. Johar Shah, who held the autopsy on the deceased's dead body, made a categorical statement to the effect that injuries Nos, 1 and 5 as noted by Dr. Muhammad Azam could be the result of one shot. Dr. Johar Shah said further in his statement that all the injuries which he found on the person of the deceased were the result of one shot. He gave reasons for his opinion. He said that there were large number of entrance wounds of smallest dimensions and moreover he recovered five small pellets from the dead body. The injury mentioned as wound No, 2 in the medico-legal report Exh. P. B. was on the right upper chest. Injury No, 5 was on the back of right chest upper part. Blackening on injuries Nos, 1 and 5 was present. The doctor explained that blackening in a wound is some time the result of clot of blood around the wound and it is mistaken as blackening. Dr. Johar Shah in the concluding lines of his statement said that in this particular case, he could exclude the possibility of two different shots as regards injuries Nos, 2 and 5. In view of the evidence of the doctor who performed the postmortem examination, we are satisfied that the medical evidence is in no way inconsistent with the eye- witness account of the occurrence. We, therefore, hold that Taza Gul was responsible for the death of Ghulam Muhammad and injuries to Mohammad Gul and Khaista Gul.
12.This brings us to the question as to what offence was committed by Taza Gul. So far as Muhammad Gul and Khaista Gul are concerned, we are of the view that the offence committed by Taza Gul fell under section 307, P. P. C. of which he has been rightly convicted and properly punished. However, in the case of Ghulam Muhammad who got killed as a result of firing from close range, we are clear in our mind that Taza Gul when he fired with the shot-gun from a short distance at the victim on a vital part could well be presumed to have intended to cause death or such bodily injury as was likely to cause death. The act which he committed was so imminently dangerous that he could very well realise that it must in all probability cause death. The trial Judge gravely erred in coming to the conclusion that the death of Ghulam Muhammad was caused in a sudden fight. He failed to realise what is a sudden fight. There was no fight. It was a sudden affair no doubt, but the attack was completely one-sided and it was not the defence case that any one from the other side was armed and muchless that Taza Gui was attacked. There was not even evidence of any grappling between the parties before the firing of fatal shot by Taza Gul. The crime committed, therefore, did not fall under section 304, Part I, P. P. C., but clearly amounted to murder punishable under section 302, P. P. C. The Assistant Advocate-General who appeared on behalf of the State supported the revision petition. We have given our anxious consideration to the facts and the circumstances and feel that the conviction of Taza Gui under section 304, Part I, P. P. C. is improper, but at the same time we think that a retrial is bound to result in long delay. We are, therefore, of the opinion that the ends of justice will be fully met if the sentence of Taza Gul under section 304, Part I, P. P. C. is enhanced to transportation for life and we order accordingly. The sentence of fine is also maintained. The conviction and sentence awarded to him on two counts under section 307, P. P. C. appears to us to be adequate and we see no ground to enhance it. 1 he sentences to run concurrently. The revision petition is accepted to this extent only. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.