SHAFI-UR-RBHMAN, J.-Leave to Appeal was granted to the convicts to examine whether the prosecution evidence in the light of the facts proved, furnished a safe foundation on which the .Guilt of the appellants could be rested beyond reasonable doubt. Leave to appeal was also granted to the brother of the deceased, to examine the non-observance of mandatory provisions of section 544-A, Cr. P. C. As against Gulab Khan appellant.
2. On the 4th of March, 1977 between 3 p.m. And 4 p.m. Telephonic message was received at Police Station Doaba that firing between two groups was going on in village Naryab. This information was transmitted to the S. H. O. Arbab Qudratullah, P. W. 12 who happened to be in Doaba Bazar attending to the duties concerning a procession, which was taken out that morning. He asked for more strength from the police station and thereafter proceeded to village Naryab, which was at a distance of about six miles from Police Station Doaba. When he reached there, he found that Mst.
Gulsima was carrying the dead body of Islam Gul, her son, on a bus. She lodged a report with the S. H. O, which was recorded at 17-45 hours disclosing that the same morning while Islam Gul was bringing stones on a tractor trolley to the village, the car of Said Rahman, appellant, offered an obstruction and when the deceased objected to it and asked for- way, there was an altercation between them. The same afternoon, while; Islam Gul deceased alongwith Nawab Khan, P. W. 11, Mst.
Khiala P. W. 10 and Gulsima P. W. 8 were carrying the malba of their demolished house to her daughter's house, Said Rahman and his two servants Gulab Khan and Badshah Khan appellants all armed with topaks, intercepted them in the Bazar and started reckless firing on them injuring Islam Gul who died at the spot, and Nawab Khan, Mst. Khiala and one Hayat Hasan Khan P. W.
9. Another report of the cross case was lodged with the same S. H. O. By Gulab Khan appellant in which the time of occurrence recorded was 16-00 hours and the report itself was made at 7-45 p.m. In that report, he disclosed that he along with Badshah Khan, appellant, was working in the flourmill when he heard the report of shots fired outside. He came out and found that the motor-car of Said Rahman, his master, was parked outside and Nawab Khan and Sharbat Khan were firing at it from pistols. When he advanced further, Nawab Khan effectively fired at him and then he rushed back to the flourmill. He also stated about the morning altercation between Said Rahman, Nawab Khan, Sharbat, etc.
3. Islam Gul had fire-arm injuries on his person. There were six inlet wounds of which one was on the front chest, which proved fatal and five others were on foot or heel. There were four outlet wounds in the autopsy a pellet was recovered from his left foot and a piece of lead of the bullet from the right shoulder. Hayat Hassan Khan P. W. 9 had one fire-arm inlet wound on the right buttock and an exit wound on the left buttock. Nawab Khan P. W. 11 had one fire-arm inlet wound on the inner side of the left forearm and an outlet wound on the same forearm. Mst. Khiala P. W. 10 had a firearm wound over the eye-ball of the right eye touching and injuring the eye-ball from the side causing ultimately total damage to the eye. Gulab Khan, appellant, had a lacerated wound on the left side of head and afire-arm wound over the inner side of left upper arm blowing away fascia.
4. The S. H. O. Arbab Qudratullah P. W. 1 on reaching the spot found the car of Said Rahman parked near the place where the occurrence had taken place. The ignition key of the car was in the switch.
The front screen of the car had "cracked" with a clean circular hole in it. There were four bullet marks in all on the bonnet of the car. The lead of a bullet was recovered from the seat of the car from inside and one pellet was recovered from underneath the car.
5. Said Rahman, appellant, admitted the morning occurrence as well as the occurrence that took place in the afternoon on the 4th of March, 1977. However, he gave a different version of both.
According to him, as the procession had to be taken out that morning, a number of vehicles bad gathered on the road and in fact obstructed the path of the deceased. When he objected. He was told that all the vehicles were moving towards Hango in a moment and he could wait for some time as all could not tie removed for his tractor. This had led to an altercation and exchange of hot words. As regards the afternoon occurrence, he stated that he returned from Hango at about 3 or 3-30 p.m. And when his car reached near the house of Mst. Khiala, P. W. 10, the deceased and his companions who were accused in the cross case waylaid and started firing at his car. On the report of the shots fired, Gulab Khan his servant and the other appellant came out and he was also injured. He claimed to have left the car and ran towards the field. Gulab Khan made substantially the same statement.
6. The trial Court concluded that there was no previous enmity between the parties and the motive for the occurrence stood proved on the statement of the witnesses as well as of the appellant. Mst.
Khiala P. W. 10 was held to be an independent witness, not a relation of the complainant party, and hired for work by the deceased a few days prior to the occurrence. Nawab Khan P. W. 11 was held to be relation of the deceased but was found to have nothing "to grind against Said Rahman and his servant". Hayat Hasan Khan P. W. 9 was held to be a poor village barber ordinarily incapable of falsely charging a powerful man. Mst. Gulsima was held to be credit-worthy because she had lodged a detailed F. I. R. Soon after the occurrence. The plea of the accused was disbelieved as the lacerated wound of Gulab Khan remained unexplained. Gulab Khan was not found to be in the firing line from the site plan of the cross case and the presence of the car at the spot was disbelieved because it was not shown by the Investigating Officer in the site plan of the main case nor the splinters of the wind screen of the car were found at the spot of occurrence. Rejecting the defence version and believing the prosecution case, the trial Judge convicted both the appellants under section 302/34, P. P. C. For causing the death of Islam Gul and for having caused murderous assault on Nawab P. W. 11 and Mst. Khiala P. W. 10 and Said Rahman alone under section 326, P. P. C.
For causing injury with fire-arm to Hasan Khan P. W. 9 Said Rehman was also on conviction sentenced to death under section 302/34 and to seven years' R. I. On each count under section 307/34 and to five years' R. I. Under section 326, P. P. C. For injury to Hayat. Gulab appellant was sentenced to imprisonment for life under section 302/34, P. P. C. And to seven years' R. I. On each count for attempt on the life of Nawab Khan and Mst. Khiala.
7. On appeal and while disposing of the reference, the learned Judges in the High Court found Mst.
Khiala P. W. 10 to be distantly related to the complainant party but her presence at the time of occurrence was believed. Nawab Khan P. W. 11 another injured and related witness was held not to be interested witness. The defence version was disbelieved on the ground that none on the prosecution side "was armed as per statements of Hayat Hasan Khan and Mst. Khiala and Nawab Khan P. Ws.". It was also found that the injuries on Gulab Khan could be fabricated. As regards the bullet marks on the car of said Rahman, the learned Judges considered that "it was an afterthought to create a defence version of the occurrence in order to escape consequence of the act as how else a person sitting in the car would have escaped the volley of shots fired at him, as stated by Said Rahman, app--1lant, in his statement at the trial. Moreover, the Investigating Officer had admitted that there was "no shattered glass inside the car". The plea of self-defence of the accused was disbelieved ; the prosecution case was believed in its entirety ; the conviction was upheld and the sentence of death was confirmed and the appeals dismissed.
8. The learned counsel for the convict appellants has contended that the case of the appellants was not viewed in the correct perspective. Not only there were two versions of the same occurrence, in fact two cases had been registered in respect of it. In such a situation, the absence of previous enmity, disinterested character of the witnesses and their presence at the time of occurrence, could not materially weigh in determining whether what they were stating was correct and true. Independent tests had to be applied for preferring one version over the other and the same test could not be applied to the prosecution case as was applicable to the defence version.
Further, it lids been contended by the learned counsel that the reasoning given by the two Courts for arriving at the conviction of the appellants and upholding it are manifestly incorrect. For example, the learned trial Court as well as the learned Judges in the High Court disbelieved that the car was involved in the occurrence in which firing took place and injuries were caused resulting in the death. The reason given by the trial Court was that the Investigating Officer did not "recover any piece of broken wind screen from the place of the motor-car". The learned Judges in the High Court drew the same conclusion from the fact that "there was no shattered glass inside the car".
According to the learned counsel for the appellants, the windscreen glass of a modern car is so made as to completely disintegrate instead of throwing out splinters, which could be another and independent source of injury and damage. The absence of such splinters inside or outside the car could not at all be made a ground for rejecting the defence version. The trial Court disbelieved the presence of the car because the Investigating Officer had not shown it in the site plan of the main case but took note of the presence of the same car from the site plan of the cross --case with a view to find out whether Gulab Khan was in the line of firing or not. The Investigating Officer's statement had not been rejected and if he had should the presence of the car in the other site plan his omission to show the car in site plan of the main case could not be deliberate. The trial Court drew an adverse inference against Gulab Khan appellant from the injury found on his person, which it was held remained unexplained. No question was put to Gulab Khan to explain it.
9. The trial Court also held that if Gulab Khan had been the victim of aggression as claimed by him, he would have been the first to report about the occurrence and would have not waited till the time the Investigating Officer came to his master's Hujra. This reasoning, according to the learned counsel, omits to take note of the fact that the Investigating Officer as well as the constable both stated that the report of the incident had been received on telephone at the police station and this report, from all appearances, was by Said Rehman appellant or at his instance. One who fabricates a defence will not be the first to report to the Police about the occurrence and that too so promptly.
10.The position, which clearly emerges from the record, and admits no doubt, is that the venue of occurrence was a Bazar, a public place. Every one could explain his presence at that place. Motive for the occurrence was not of a prior date or had any different origin, than the morning dispute over a trivial matter. The police station had been promptly informed of the occurrence on telephone by Said Rahman or someone on hiss behalf. The S. H. O. On arrival at the spot found damage or injuries caused mostly by fire-arms to both the sides. The venue of occurrence being a public place, fabrication of evidence after the event would not have gone unnoticed. The prosecution version was significantly deficient in one respect. If three persons, effectively armed had taken up positions and indulged ii reckless firing on a group of persons at their mercy not the injuries which were found but more numerous and far graver ones would have been caused. The complainant's version of the occurrence also offers no explanation for the injuries of Gulab Khan and the serious damage by firing to the car of Said Rahman appellant. One can justifiably, therefore, conclude that none of the parties has made a complete and true disclosure of the facts, that, there is material suppression in both the versions. The Court's duty in such a case of sudden or free fight has been fully brought out in Syed Ali Bepari v. Nibasan Mollah and others PLD1962SC502, in the following words: - "In a case of this type the parties do not generally come out with the true story. It is a normal incident of an `adversary proceeding' to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances."
11. In this case, it appears that a chance encounter of the two groups took place in the bazar. The morning incident being fresh it flared up one again and both the sides fired at each other. This is consistent with the injuries or damage caused and with the first report received on telephone at the police station and reproduced in the opening sentence of the F. I. R. This also gets support from the fact that certain apparently unconcerned persons, who happened to be there in routine, also received injuries from stray shots. Even the deceased himself was not the object of any planned or brutal attack for he received only one inlet firearm wound on the front chest and five others on foot or heel. Bullet and pellet were both recovered from the dead body suggesting that more than one weapon was used and more than one person was the assailant. At the same time the plea of the appellants that they were directly the object of a surprise attack and were on the defensive does not appear plausible or consistent with the venue, the nature and extent of damage to the person and property. Consistently with the material on record it can reasonably be concluded that there was a sudden fight in which both the sides used fire-arms, non acting more cruelly than the other or taking undue advantage. It being sudden affair there was no element of common intention. So each person was responsible for his own acts. Said Rahman appellant was armed with 7 mm rifle.
His very first shot hit the deceased who fell on the ground. A bullet was extracted from his dead body. Said Rehman was responsible for the fatal injury of Islam Gul. His act, therefore, clearly falls under Exception IV to section 300, P. P. C. And he is guilty of offence under section 304, Part 1. He is found guilty and sentenced to ten years' R. I. And a fine of Rs. 2;000 and a further sum of rupees five thousand payable as compensation under section 544-A to the heirs of deceased Islam Gul. In default of payment of fine, he shall suffer two years' R.
1. Hayat Hasan P. W. 9 was got injured by a bullet shot and has attributed the injury to Said Rahman. For this offence Said Rahman is held guilty under section 308, P. P. C. And convicted to three years' R. 1 and to pay a fine of Rs. 1,000 and a sum of Rs. 2,000 payable as compensation to Hayat Hasan or in default to suffer R. I. For one year. The injuries of Mst. Khiala and Nawab are not directly attributed to Said Rahman nor specifically to Gulab. Hence we find that the prosecution has failed to prove its case as against Gulab.
12. The convicts, appeal is allowed and results in the acquittal of Gulab and conviction of Said Rahman under sections 304, Part I and 308, P. P. C. In substitution of his conviction under sections 302, P. P. C. And 307, P. P. C. The sentence of death is set aside. The appeal of the complainant which is directed against Gulab Khan fails on account of his acquittal.