Alam Khan and Azmatullah Khan, appellants in Criminal Appeal No. 393 of 1986, Khan Muhammad, Abdus Sattar, Abdul Ghaffar, Muhammad Azeem, appellants in Criminal Appeal No. 396 of 1986 and Aslam Khan appellant in Criminal Appeal No. 408 of 1986 were tried under section 302/429/148/149, P.P.C. Alongwith Muhammad Khan, Samand Khan, Hayatullah and Lal Khan, for having allegedly murdered Mst. Anar Khatun and for having killed her cow at Jheki Degarwela, in her house in village Paikhel, at a distance of five miles from Police Station Mochh on 27-6-1982.
The learned trial Judge vide judgment dated 7-6-1986, convicted Khan Muhammad and Abdus Sattar under section 302/149, P.P.C. And sentenced each of them to undergo imprisonment for life, plus to pay a fine of Rs.2,000 in default whereof to suffer R.I. For four months each. They have also been directed to pay Rs.2,000 each as compensation to the heirs of the deceased, in default whereof to undergo R.I. For four months. Abdul Ghaffar, Azmatullah, Muhammad Azeem, Alam Khan and Aslam Khan were held guilty under section 429/149, P.P.C., convicted accordingly, and sentenced to undergo R.I. For two years each, plus to pay a fine of Rs.1,000 each, in default whereof to suffer R.I. For and a quarter years each. All seven of them have also been convicted under section 148/149, P.P.C. And sentenced to undergo R.I. For two years each, plus to pay a fine of Rs.2,000 in default whereof to undergo R.I. For nine months each. All the sentences have been ordered to run concurrently. Benefit of the provisions of section 382-B, Cr.P.C. Has also been given to them.
Muhammad Khan, Samand Khan, Hayatullah and Lal Khan, their co---accused, were acquitted vide the same judgment.
2. F.I.R. (Exh.P.N.) was' registered at Police Station Mochh by Asghar A.I S.I./S.H.O. (P.W.18), at 9-15 p.m.
On 27-6-1982, on the statement of Abbas Khan (P.W.13).
According to F.I.R., the complainant was present in his house alongwith his brother Aslam Khan P.W.
And other family members. At Jheki Degar wela, Khan Muhammad, Abdul Sattar, Lal Khan, Muhammad Azeem, Azmatullah, Abdul Ghaffar, Samand Khan and Aslam Khan son of Samand Khan armed with guns, entered the Morcha, on the roof of the house of Muhammad Khan son of Dillasa Khan, adjoining the eastern side of the house of the complainant. Alam Khan, Muhammad Khan son of Dillasa Khan and Hayatullah Khan armed with guns were also present there.
Muhammad Khan called out the complainant to be prepared as they had come to teach him a lesson for fight (~J). Simultaneously, Muhammad Khan and Abdul Sattar fired shots from their guns raising Lalkaras, which struck Anar Khatun on the head and breast, who was putting fodder in the courtyard to the cattle. She fell down. Thereafter, Azmatullah, Alam Khan, Lai Khan, Muhammad Azeem, Abdul Ghaffar, Samand Khan, Aslam Khan, Muhammad Khan and Hayatullah fired shots one after the other, some of which struck the cow tied in the courtyard. In the meantime, Muhammad Iqbal Khan, Sikander Khan and Muhammad Amin Khan, who were nearby, reached the spot and witnessed the occurrence. On their beseeching, the accused stopped firing. Mst. Anar Khatun and the cow died at the spot.
For motive for the occurrence, it is stated that a month prior to the occurrence, the complainant and persons of his Berathari had stopped Azmatullah and Abdul Ghaffar Khan from sitting in the Chowk in front of their house, as their womenfolk used to pass that way. They had also given fist blows to them.
3. Muhammad Azeem Khan, Alain Khan, Azmatullah, Abdul Ghaffar and Aslam Khan appeared before Asghar A.I S.I. (P.W.18) on 31-7-1982 and produced unlicensed gun (P.7) alongwith cartridge (P.7/1), Rifle (P.8), gun (P.6) alongwith cartridge (P.6/1), gun (P.5) alongwith cartridge (P.5/1) and pistol (P.9) alongwith cartridge (P.9/1), respectively, which were taken into possession vide respective memos. Muhammad Khan also appeared before him on the same day alongwith his licensed gun. Samand Khan, Hayatullah and Lal Khan were arrested by him on their appearance before him on 27-8-1982. Khan Muhammad and Abdul Sattar could not be arrested. Their warrants of arrest were obtained. On failure of the execution of the warrants, proceedings were taken against them for declaring them as proclaimed offenders. They were serving in the army and were arrested later on 21-4-1984 with the permission of the army authorities. After arrest gun (P.3) alongwith cartridges (P.4/1-2) were recovered from Khan Muhammad while gun (P.1) alongwith cartridges (P.2./1-2) were recovered from Abdul Sattar.
After completion of necessary investigation challan was submitted to Court.
4. Statements of 18 P.Ws. Were recorded at the trial.
Dr. Muhammad Akram Khan Niazi, who had performed the autopsy on the dead body of Mst. Anar Khatun on 28-6-1982 at 9-30 a.m. Appeared as P.W.10. He had noted following injuries on the body of the deceased:- (1)A fire-arm wound of entry 1 c.m. x 1 c.m. On left side of fore-head 2 c.m. Above left eyebrow with a wound of exit 1-1/2 c.m. x 1 c.m. On the back side of head at middle. It was 11 c.m. From right ear.
(2)Abraded area 1-1/2 c.m. x 1 c.m. On right and front of nose.
(3)A fire-arm wound of entry 3/4 c.m. x 3/4 c.m. On right side chest, 5 c.m. From middle 4 c.m.
Below right clavial, with wound of exit 1 c.m. x 1 c.m. On right side back just below right scapula and 11 c.m. From midline.
(4)A fire-arm wound of entry 3/4 c.m. x 3/4 c.m. On front of left arm just under shoulder-joint, with wound of exit 1 c.m. x 1 c.m. On left side back 5 c.m. From axilla.
On internal examination skull was found fractured. Pleura and right lung were found perforated.
Nasal bone was found fractured. Death was opined to have occurred due to shock and haemorrhage caused by injuries Nos. 1 and 3. The injuries were opined to have been caused by fire-arm, within duration of 14/15 hours from the time of post-mortem examination.
During cross-examination, the doctor stated that injuries 1, 3 and 4 could have resulted from one shot by .12 bore weapon. He opined that the injuries would have been inflicted to the deceased while standing in front.
5. Dr. Abdul Khaliq of Veterinary Hospital, Piplan, who had post---mortemed the cow appeared as P.W.1. He had noted five fire-arm, entry wounds on the body of the cow. He had expressed the opinion that the animal had died due to the injuries on the spleen and lung and due to bleeding of injuries from those parts.
6. The ocular account was deposed to by Abbas Khan (P.W.13), Aslam Khan (P.W.15), Muhammad Amir Khan (P.W.16) and Sikandar Khan (P.W.17).
Abbas Khan complainant re-narrated the facts given by him in the F.I.R. During cross-examination, he denied that Muhammad Afzal Khan son of Madad Khan was injured during the course of this occurrence. He, however, admitted that said Muhammad Afzal Khan had instituted a private complaint under section 307/148/149 P.P.C. Against him, all the witnesses in this case and other persons totalling 16 in number, and that they were facing trial of the said case before the trial Judge of this case. He admitted that the grocery shop of Muhammad Afzal Khan was in front of their house in the lane. He denied the suggestion that they had launched attack on Muhammad Afzal Khan on the Lalkara raised by PW Muhammad Iqbal or it was during exchange of firing thereon that his mother suffered injuries and died thereof. In answer to another question, he stated that firing continued from late Degarwela upto evening time.
Muhammad Aslam Khan(P.W.15) corroborated the statement made by Abbas Khan complainant.
Like Abbas Khan, he also denied the suggestions that they had launched attack on Muhammad Afzal Khan (complainant of the cross case) and that it was during the exchange of firing resulting therefrom, their mother and cow were fatally injured from the shots fired by them.
Muhammad Amir Khan (P.W.16) while corroborating the statement made by Abbas Khan admitted during cross-examination that he alongwith 15 others were summoned in the complaint filed by Muhammad Afzal Khan son of Madat Khan a/s 307 P.P.C. Etc. He denied the suggestion that they had launched attack on said Muhammad Afzal Khan on the Lalkara raised by Muhammad Iqbal P.W. And that it was during the exchange of firing between them that Mst. Annar Khatun and cow were killed as a result of the shots fired by their party. In answer to another question, he stated that all the 11 accused were standing in one line while firing. Like Abbas Khan and Muhammad Amir Khan P.Ws, he denied the suggestions that the attack, in fact, was launched by them on Muhammad Afzal Khan son of Madat Khan on the Lalkara raised by PW Muhammad Iqbal or that the deceased and the cow had died as a result of the shots fired during that occurrence.
7. Evidence of recovery of weapons from Abdul Ghaffar, Azmatullah, Muhammad Azeem, Alam Khan, Aslam Khan and Muhammad Khan was deposed to by Walter Masih, SI (P.W.9). His statement in this regard has been corroborated by Asghar A.I, S.H.O. (P.W.18).
Sher Muhammad, S.H.O. (P.W.2) deposed about the recoveries of guns at the instance of Khan Muhammad and Abdul Sattar. His statement with regard to the recovery of gun at the instance of Abdul Sattar has been corroborated by Muhammad Amir F.C. (P.W.8) while Inayatullah, H.C. (P.W.7) corroborated the statement of Sher Muhammad, SHO with regard to the recovery of gun from Khan Muhammad.
Asghar A.I, S.H.O., who appeared as P.W.18 after giving the account of registration of case, the arrest of the accused and the recoveries effected from them, stated during cross-examination that according to his inspection note the said Morcha could not have accommodated 11 persons at one and the same time. He also admitted that according to his inspection note firing was also done from the Chobara and Morcha on the house of Muhammad Amir Khan P.W. He conceded that the firing from the Chobara and Morcha of Muhammad Amir Khan PW could have easily hit the inmates of Abbas Khan. He stated that according to his inspection note Muhammad Afzal Khan was injured in his shop during this occurrence. He also admitted that it was brought to his notice during investigation that Mst. Anaran deceased was hit by the firing of complainants themselves. In answer to another question, he stated that Muhammad Afzal Khan son of Adam Khan had produced before him MLR No.52/82 on 29-6-1982 in respect of the injuries of Muhammad Afzal Khan son of Madat Khan. He conceded that he had not recorded the statement of Muhammad Afzal Khan son of Adam Khan.
8. All the appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole.
Muhammad Khan in answer to the question. "Why this case against you and why the P.Ws have deposed against you", stated as follows:- "On 27-6-1982 at about late Degarwela Muhammad Afzal Khan son of Madad Khan, his son Hayatullah and -Muhammad Khan son of Dilasa Khan were present in the courtyard of said Muhammad Afzal Khan. Saifullah son of Muhammad Afzal Khan was present in the adjoining shop.
Muhammad Iqbal Khan P.W. Raised Lalkara you people of A.I Khan Khel tribe come out. Muhammad Afzal Khan, Muhammad Khan and Hayatullah Khan went to the said shop when they saw Muhammad Iqbal Khan and Muhammad Afzal Khan, P.Ws armed with rifles chasing Abdul Ghaffar Khan son of Sher Muhammad who were running towards the said shop. Abdul Ghaffar took shelter behind the wall of the house of Muhammad Khan son of Dilasa Khan. Muhammad Afzal Khan son of Madad Khan was closing the door of his shop at that time when Muhammad Afzal Khan and Muhammad Iqbal Khan P.Ws fired from their rifles. The shot fired by Muhammad Afzal Khan PW hit the right side chest of Muhammad Afzal Khan son of Madad Khan and he fell down grievously injured. Muhammad Ashraf Khan son of Madad Khan, Rafi Ullah Khan son of Ashraf Khan, Sher A.I Khan son of Akbar Khan and Muhammad Aslam Khan son of Noor Khan, armed themselves with fire arms and went up the Morcha on the roof of the house of Muhammad Amir Khan PW. Aslam Khan son of Ayaz Khan, Saif Ullah Khan son of Muhammad Ameer Khan, Azmat Ullah Khan son of A.I Khan, Huqdad Khan son of Sikandar Khan, Khaliq Dad Khan son of Sikandar Khan and Muhammad Ameer Khan son of Muhammad Khan went up the roof of the house of Muhammad Amir Khan son of Muhammad Khan, armed with fire arms while Sikandar Khan son of Jhangir Khan, Aslam Khan son of Madad Khan, Ayaz Khan son of Nawaz Khan and Abbas Khan son of Ayaz Khan armed themselves with fire arms and taking positions by the house of Muhammad Khan son of Afzal Khan, in the lane, resorted to indiscriminate firing towards the house of Muhammad Afzal Khan son of Madad Khan which continued for about half an hour. The shots fired by the complainant party hit the walls of the shop and the house of Muhammad Afzal Khan son of Madad Khan. In fact, the complainant party is the aggressor and it was the complainant party who launched attack on us."
He also examined in defence Muhammad Amir, HC as D.W.1 who proved the registration of F.I.Rs. In 1953 and 1985. The F.I,Rs. Pertained to different occurrences.
9. Learned counsel for the appellants after having gone through the evidence criticised the impugned judgment and contended that no reliance can be placed on the statements of the eye- witnesses, who are related and interested, that the occurrence, in fact, had occurred due to the aggression committed by the complainant party and that the appellants cannot be held guilty for anything more than acting in self-defence. Learned counsel contended that even if the stance of Muhammad Khan appellant that Mst. Anaran had died as a result of the shots fired by the complainant party and that the cow was also killed due to that, is not accepted, the position which clearly emerges is that the deceased and the cow had suffered injuries as a result of the shots fired in self-defence and so the conviction of Khan Muhammad and Abdul Sattar a/s 302/149, P.P.C.
Cannot be maintained and that at the best they can be convicted under section 304 Part I P.P.C.
For having exceeded the right of private defence.
10. Learned counsel for the State defended the judgment of the trial Court.
11. It may be noted here that the parties have compromised. The statements of the heirs of the deceased including the witnesses recorded on the last date of --hearing are placed on the file.
12. Although the eye-witnesses have denied the suggestions during cross examination that they had attacked Muhammad Afzal Khan son of Madat Khan and the deceased had died due to cross firing between them and the appellants party but all of them admitted that they were facing trial under section:; 307/148/149 P.P.C., for having formed an unlawful assembly and for having launched murderous assault on said Muhammad Afzal Khan son of Madat Khan. It is also a fact that all these four eye-witnesses alongwith 12 others were convinced by the same trial Judge vide separate order passed on the same day a/d 148 P.P.C., and sentenced accordingly. The appeal filed by them against the-- conviction and sentences is also pending before this Court.
13. Notwithstanding the denial of the suggestions to the witnesses about the aggression committed by them and their co-accused, the fact remains that the St; admitted during cross-examination that according to his investigation cross firing had taken place between the complainant party and the accused party and that MLR of Muhammad Afzal Khan son of Madat Khan of having suffered injuries during the occurrence was also produced before him. The learned trial Judge also in para.50 of the impugned judgment has observed as follows:- ".....In this case 11 persons formed unlawful assembly and took their positions duly armed with guns in the Morelia situate on the roof of the house of Muhammad Khan son of Dilasa Khan, whereas rival party was taking their position in the Morcha made on the roof of the house of Muhammad Ameer Khan and in his Chobara. Both the parties were firing on each other from their bunkers. Mst.
Anaran Khatun died having received fire-arm injuries on her person by Abdul Sattar Khan and Khan Muhammad Khan accused, as alleged by the prosecution------.." while holding Abdul Sattar and Khan Muhammad liable for having murdered Mst. Anar Khatun.
14. In view of the above exposure of the manner of occurrence, there seem to be weight in the argument of the learned counsel for the appellants that the occurrence had resulted due to aggression initiated by the complainant party. Notwithstanding the attempts made by the complainant party to bide the real facts, it seems more probable and nearer the truth that the occurrence had resulted due to the initiation of attack by the complainant party. As such, Abdul Sattar and Khan Muhammad appear to have acted in self-defence, though they obviously seem to have exceeded that. The conviction and sentences under sections 302/149 P.P.C. Are set aside and they instead are convicted under section 304 Part I, P.P.C. They were arrested on 21-4-1984. They were neither allowed bail during trial nor their sentences were suspended during appeal. They are thus in jail since five years. They might have earned some remissions also after conviction on 7-6- 1986. They have entered into compromise with the complainants, who have pardoned them. The inter se relationship of both the parties is also admitted. In fact, this was the first occurrence that had taken place between them. In the circumstances, I feel that the sentences already undergone plus to pay a fine of Rs.300 each, in default whereof to undergo R.I. For one month each, would meet the ends of justice. Order accordingly.
15. The convictions of all the appellants under section 148/149, P.P.C. Are maintained. The convictions of Abdul Sattar, Muhammad Azeem, Alam Khan Abdul Ghaffar and Aslam Khan under section 429/149, P.P.C. Are also maintained. Their sentences of imprisonment are, however, reduced to that of already undergone, in view of the fact of a compromise having been entered into between the parties. The sentence of fine of Rs.1,000 of all the appellants under section 148/149, P.P.C. Is reduced to Rs.200 in default whereof to undergo R.I for fifteen days. The sentences of fine of Rs. 1,000 each for conviction under section 429, P.P.C. To Abdul Ghaffar, Azmatullah, Muhammad Azeem, Alai Khan and Aslam Khan are also reduced to Rs.200 each, in default whereof to undergo R.I. For fifteen days each. The appellants who are on bail shall deposit the amounts of fine within fifteen days, failing which 'they shall be taken into custody and sent to jail to undergo the sentences awarded in lieu thereof.
SA./A-649/L Sentence altered