ASLAM RIAZ HUSSAIN, J.--Rab Nawaz and Ghulam Muhammad petitioners were tried alongwith Shah Jehan and Ata Muhammad for the murder of Muzaffar Khan (deceased) and causing injuries to Sher Muhammad (P.W. 6) and Ghulam Muhammad (P.W. 7).
2. The motive for the occurrence was that Mst. Panno Bib daughter of Muzaffar Khan (deceased) and sister of the complainant (Sher Muhammad P.W.) was engaged to Shah Jehan in the childhood but on account of some differences, four/five months prior to the occurrence, she was married with Muhammad Hayat.
3. The facts of the case as given in the judgment of the High Court are, that on the day of occurrence Muzaffar Khan (deceased), the father of the first informant Sher Muhammad (P.W.6), had gonE out of his house to pass water. At that time the complainant (Shei Muhammad P.W.) was present in the house. After a few minutes, ht heard hue and cry. Sher Muhammad came out of the house. He say his father being beaten by Shah Jehan and Ata Muhammad. They were hitting him with stones. Meanwhile, Rab Nawaz and Ghulam Muhammad son of Fateh Khan, armed with .12 bore guns came from the side of the mosque. As soon as they crossed in front of the door of the house of Sher Muhammad complainant, Shah Jehan raised Lalkara that Muzaffar Khan should not be spared. He threw a stone, Muzaffar Khan was hit in the waist. Ghulam Muhammad fired which hit Muzaffar Khan again in the waist, Then Rab Nawaz fired and Muzaffar Khan was hit in the left shoulder and near the neck. He fell down. Ghulam Muhammad P.W. Who reached the spot, went ahead to save Muzaffar Khan. Rab Nawaz and Ghulam Muhammad fired and shot at Muzaffar Khan. Those missed Muzaffar Khan. Rab Nawaz fired again. Ghulam Muhammad P.W. Was also hit in the right arm and chest. In the meantime members of the complainant party threw stones on the accused which hit Ghulam Muhammad, Shah Jehan and Sher Muhammad. Rab Nawaz, Ghulam Muhammad son of Fateh Khan and Shah Jehan were hit. Sher Muhammad complainant P.W. Snatched gun with cartridges' bag from Rab Nawaz. Similarly, Muhammad Hayat snatched gun and bag of cartridges from Ghulam Muhammad. All the accused then ran away. In the meanwhile Ahmad Yar P.W. Came to the spot. He was entrusted with the guns and cartridges' bags. Injured Muzaffar Khan and Ghulam Muhammad were put on the cots and taken to the hospital. Muzaffar Khan died at Rokhela Mandi. The dead body was taken to the Civil Hospital, Qaidabad.
4. At the trial the prosecution produced two injured eye-witnesses namely (1) Sher Muhammad P.W.
6 and Ghulam Muhammad P.W. 7 and sought to support their testimony with the guns P. 4 and P, 7 said to have been snatched from the accused.
5. The accused, however, denied their guilt. They admitted the occurrence but gave a different version. It was stated that on the date and time of occurrence their brother Shah Jehan went out to ease himself when he was assaulted and injured by Sher Muhammad and Ghulam Muhammad.
On the alarm raised by him (i.e. Shah Jehan), Rab Nawaz and Ghulam Muhammad (accused petitioners) rushed to the spot to save him. They too, were attacked by the complainant party and were injured. In the meanwhile sympathizers of both sides collected and there was a cross-firing in which Ghulam Muhammad petitioner also received injuries.
6. The learned trial Court rejected the defence version and convicted Ghulam Muhammad and Rab Nawaz under section 302/34, P.P.C. And sentenced each to death and a fine of Rs.2,000 (six months'
R.I. In default thereof). They were also convicted under section 307/34, P.P.C. For which he was sentenced to 5 years' R.I. The trial Court also convicted Shah Jehan co-accused (who died after the filing of the present petition and is not before us now), under section 323, P.P.C. And sentenced him to 6 months' R.I. Ata Muhammad co-accused was, however, acquitted.
On appeal the High Court maintained the conviction of Rab Nawaz and Ghulam Muhammad petitioners but reduced their sentence from death to imprisonment for life. It also maintained the conviction of Shah Jehan.
Not feeling satisfied, the petitioners have filed the present petition for leave to appeal.
7. Before us the learned counsel for the petitioners argued that the learned Courts below had erred in rejecting the defence version lie submitted that in view of the number and location of injuries on the three accused persons, most of which were on their heads, show that they were inflicted from very close quarters because it would be unreasonable to assert that the P.Ws. Were such good marksmen that each of the brickbats pelted by them at the three accused, hit the latter on their heads. The injuries on the persons of the two petitioners may be reproduced here for facility of reference:-- Ghulam Muhammad Petitioner
(i) A 'T' shape lacerated wound -- " x 1/8" x -- " deep on the top of the front of the head.
(ii) A lacerated wound 1 -- " x -- " x -- " deep on the top of the right side of head.
(iii) A lacerated wound 1/6" x .l/8" deep on the right side back of the head.
(iv) A lacerated wound -- x 1/6" x 1/6" deep on the back right side of the head.
(v) A lacerated wound 3/4" x 1/6" x 1/4" deep on the back upper left side of the head.
(vi) A lacerated wound 1/4" x 1/6" x 1/6" on the back of the head.
(vii) An abrasion 1/4" x 1/4" on the bridge of the nose.
(viii) A lacerated circular wound 1/8" x 1/8" on the back of left index finger of the head in the middle.
(ix) An abrasion 2" x 1" on the back outer side of the right buttock.
Rab Nawaz accused
(i) A lacerated wound 1 -- x-- deep on the right side of the forehead.
(ii) A lacerated wound 2" x -- " x -- " deep on the back side of head.
(iii) A lacerated wound 1" x -- " x -- " deep on the back of right side of head 1" medial to injury No. Ii.
Learned counsel pointed out that out of the 9 injuries on Ghulam Muhammad petitioner 6 were on his head and one on the nose. Similarly all the 3 injuries on the person of Rab Nawaz were on his head.
He submitted that in the circumstances of this case the petitioners were justified in feeling grave apprehension to their lives at the hands of the complainant party. He submitted that had they been carrying guns they would not have allowed anyone to come so near to them. He also submitted that Ghulam Muhammad accused-- petitioner had himself suffered fire-arm injury (see injury No. Viii), which must have caused him grave apprehension regarding his life.
8. Learned counsel argued that the medical evidence goes to show that the plea of defence taken by the petitioners might possibly be true.
9. After having carefully considered the number and nature of injuries on the persons of the three accused we feel that the matter needs consideration.
Leave is, therefore, granted to consider whether in view of the location of the injuries and the statements of the accused --petitioners, the right of defence of persons had not accrued to the petitioners.