Bashir Ahmad (60), Muhammad Siddiq (55), Qasim A.I (50), sons of Abdullah, Muhammad Yusuf
(18) son of Bashir Ahmad, Zulfiqar (22) son of Muhammad Siddiq, Falak Sher (17) son of Qasim A.I, Muhammad Amin (55), Muhammad Sharif (35), sons of Shahab Din, and Mazhar Iqbal (22) son of Muhammad Amin, all Bhatti by case, residents of Centre Colony, Chhanga Manga, were tried by the learned Additional Sessions Judge, Kasur, under sections 148, 302 and 307/149, P.P.C. On the allegations that on 1st July, 1986 at about 5 p.m. They formed themselves into an unlawful assembly with the common object of committing the murder of Bashir son of Shahab Din and making murderous assault on Nur Muhammad P.W. And his son Anwar, and in prosecution of that common object of the aforesaid unlawful assembly actually committed the murder of aforesaid Bashir and made murderous assault on aforementioned P.Ws., in the area of Centre Colony, Chhanga Manga. By judgment dated 14-12-1987, Bashir Ahmad and Muhammad Amin were convicted under section 304, Part 1/34, P.P.C. And sentenced to imprisonment for life and a fine of Rs.5,000 each or in default in the payment thereof to undergo rigorous imprisonment for two years each. The entire amount was ordered to be paid to the legal heirs of the deceased as compensation. The remaining accused were acquitted of all the charges. The convicts have appealed.
2. Bashir Ahmad, Muhammad Siddiq and Qasim A.I accused are brothers inter se. Muhammad Yusuf accused is son of Bashir Ahmad, Zulfiqar accused is son of Muhammad Siddiq and Falak Sher accused is son of Qasim A.I. Muhammad Sharif and Muhammad Amin accused are brothers inter se and cousins of Bashir Ahmad accused and his aforementioned brothers. Mazhar Iqbal accused is son of Muhammad Amin accused. On the complainant side, Shafiq Ahmad, Muhammad Rafiq and Nur Muhammad, P.Ws., are real brothers.
3. The brief facts of the prosecution case are that Shafiq Ahmad complainant and Muhammad Yusuf accused used to work as gangmen in the Forest Department. On 1st July, 1986 at 2 p.m. They quarrelled with each other. Muhammad Anwar P.W. Intervened and separated them and both of them left for their houses. Muhammad Yusuf accused brought a Kandala from his house and gave two blows to Muhammad Anwar hitting his arm and fingers of the left hand. In the meantime, Nur Muhammad P.W. Came there and separated them. Then both the parties approached Malik Abdul Rauf, Range Officer, who directed them to come `for compromise' at 6 p.m.
At about 5 p.m. Mst. Fazal Bibi, mother of the complainant, passed by the house of Muhammad Yusuf while proceeding to her own house. Muhammad Yusuf, Mazhar and Zulfiqar accused were present there. They insulted her by Saying (KANIAA KHODHAAY KHALL MEIN NAA GERR JAA NAA). The old lady narrated this incident to her son Nur Muhammad C.W., who went to the house of Muhammad Yusuf accused and complained to his father Bashir Ahmad accused. Bashir Ahmad accuses! Gave a Sota blow to Nur Muhammad and in the meantime Bashir Ahmad deceased also came there. Muhammad Siddiq accused gave him a Thapa blow hitting his head and Bashir Ahmad accused gave him two Sota blows, as a result of which he fell down. Then Muhammad Amin accused gave a Sota blow hitting his left eye and Qasim A.I and Falak Sher accused caused him injuries with Kandala and Soul, respectively. Muhammad Yusuf and Muhammad Sharif accused then dragged the deceased in a Khala while Zulfiqar and Mazhar accused caused him injuries with brickbats. During the scuffle, the accused persons also suffered injuries. Shafiq Ahmad complainant reported the occurrence to Ahmad A.I, A.S.I., at Police Post Chhanga Manga, on the same day, at 7 p.m. Vide his statement Exh.P.A., on the basis of which formal F.I.R. (Exh.P.A./1) was recorded at the police station at 7--55 p.m.
The deceased expired on the same day at 11-55 p.m.
4. The case was partly investigated by Ahmad A.I, A.S.I. And partly by Saeed Hussain Shah, S.H.O., who arrested all the accused on 15th July, 1986. On 20-7-1986 Bashir, Muhammad Siddiq, Muhammad Amin, Muhammad Shari f, Falak Sher and Qasim A.I accused led to the recovery of Sota (Exh.P.I), Thapa (Exh.P.2), Sota (Exh.P.3), Sota (Exh.P.4), Sota (Exh.P.5) and Kandala (Exh.P.6), which were taken into possession vide memos. Exh.P.D., Exh.P.E., Exh.P.1 , Exh.P.G., Exh.P.H. And Exh.P.J., respectively. After the investigation, the acculca persons were challaned.
5. On 1st July, 1986 at 7 p.m. Dr. Muhammad Rafi Chaudhary examined Bashir Ahmad deceased, when alive and found a contusion with small wound on right side of head, another contusion with swelling on right eye and a contused swelling on right side of head. The injuries were kept under observation.
On the same day, the same doctor examined Anwar and Nur Muhammad P.Ws. Anwar had a contusion on back of right forearm and contused swelling on left ring and middle fingers. Injuries were simple caused by blunt weapon.
Nur Muhammad P.W. Had two contusions and one abrasion, simple in nature caused by blunt weapon.
Muhammad Sharif, Bashir Ahmad, Qasim A.I and Muhammad Amin accused were also examined on the same day. Muhammad Sharif had a contusion with swelling on the back of right hand and contusion on back of right forearm. Due to fracture of metacarpal bone, injury No.1 was declared grievous.
Bashir Ahmad accused had a contusion with swelling on the back of right hand, another contusion with swelling on the right side of head and contusion on the back of chest. Injury on the back of right hand was declared grievous.
Qasim A.I accused had three contusions and a contused wound, all simple in nature caused by blunt weapon.
Muhammad Amin accused had a contusion and a contused wound, both simple in nature, caused by blunt weapon.
6. In support of its case, the prosecution examined three eye-witnesses, namely, Nur Muhammad, Muhammad Rafiq and Shafiq Ahmad. It also relied on the evidence relating to motive and recoveries.
7. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Bashir Ahmad appellant admitted having injured the deceased but he gave a counter- version of the occurrence as under:-- "The fact is that on 1-7-1986 at about 2 p.m. Yousuf accused and Shafiq Ahmad complainant had quarreled with each other. Muhammad Anwar son of Noor Muhammad P.W. Intervened, but he had shown sympathy towards the complainant. Just after a while when the said Anwar alongwith Shafique P.W. Was coming to his house, Yousuf accused gave beating to Anwar aforesaid. Noor Muhammad P.W. Arrived at the spot and separated them. Anwar and Noor Muhammad P.W. Went to the Range Officer Malik Abdur Raouf and complained against Yousuf accused. I and my son Yousuf also reached there and apprised him all the circumstances. The Range Officer told both the parties to come here at 5 p.m. And he will settle the matter. At about 5 p.m. When Fazal Bibi the mother of Noor Muhammad P.W. Was passing in front of my house, my son Yousuf asked her to walk carefully otherwise she would fall in the watercourse. She misunderstood this remark and took it as a joke to her and she reported this incident to Noor Muhammad who felt annoyed over it. Just after a while Noor Muhammad P.W. In order to take the revenge of the beating given to his son Anwar and that of the joke cut tohis mother, he alongwith Anwar and Bashir Ahmad deceased while armed with Sotas came to my house and attacked me and my son Yousuf accused. At that time Yousuf accused was not present in the house as he had gone to collect some persons to go to the Range Officer at 6 p.m. Amin, Qasim and Sharif co-accused were present in my house as they had to accompany me towards the Range Officer at 6 p.m. Noor Muhammad P.W. And Muhammad Anwar and Bashir Ahmad deceased attacked me and started injuring. When Amin, Sharif and Qasim co-accused intervened to save me, then Muhammad Anwar, Noor Muhammad and Bashir Ahmad deceased attacked them and injured them also. When I was given a Sota blow on head by Bashir Ahmad deceased, I apprehending danger to my life, picked up a Sota from my house and in the exercise of right of self-defence gave two injuries on the person of Bashir deceased, one on his head and other on his chest. Amin co-accused picked up a Sota and in the exercise of the right of self- defence gave only one injury to Bashir deceased near to his eye. Sharif my co-accused in exercise of the right of self-defence injured Noor Muhammad P.W. Qasim A.I co-accused did not cause any injury to anybody and he was empty handed. All the other co-accused were not present on the spot and they have been falsely implicated in this case as they are related to me. Bashir Ahmad deceased lived at a distance of one mile from the place of occurrence and he had come while armed with Sota to attack upon me and he opened attack. I am innocent. The complainant party is the aggressor. The P.Ws. Are related to the deceased and due to enmity they have deposed against me."
Muhammad Amin appellant also adopted the above statement. No evidence was' led in defence.
8. After examining the evidence on the record, the learned trial Judge; disbelieved the prosecution version and accepted the plea raised by the appellants, at the same time observing that they had exceeded the right of private defence. He, therefore, convicted and sentenced them as mentioned above.
9. Learned counsel for the appellants contended that the plea raised by the appellants having been accepted there was no justification for the findings that they had exceeded the right of private-defence, particularly when it was proved on record that Bashir Ahmad appellant and co- accused Muhammad Sharif had suffered grievous injuries at the hands of the complainant party.
The learned State counsel supported the judgment of the trial Court.
10. Perusal of the file reveals that it is admitted by both the parties that on 1-7-1986 at about 2 p.m.
Acquitted accused Muhammad Yusuf and Shafiq Ahmad complainant had quarrelled with each other. Muhammad Anwar, son of Nur Muhammad P.W. Intervened and separated them. Thereafter, Muhammad Anwar was beaten up by aforesaid Muhammad Yusuf when he passed by his house.
Nur Muhammad P.W. Reached there and separated them. Thereafter Anwar and Nur Muhammad went to Range Officer Malik Abdur Rauf Muhammad Yusuf accused etc. Also came there. The Range Officer was apprised of the situation, upon which he advised the parties to come to him again at 5/6 p.m. At about 5 p.m. Mst. Fazal Bibi, mother of Nur Muhammad P.W. Passed by the house of Muhammad Yusuf accused. According to the prosecution, Muhammad Yusuf, Mazhar and Zulfiqar accused were present there. Muhammad Yusuf insulted Mst. Fazal Bibi by saying (KANIAA KHODHAAY KHALL MEIN NAA GERR JAA NAA) She apprised her son Nur Muhammad of this incident who went to Bashir Ahmad accused, father of aforesaid Muhammad Yusuf accused, and made protest, but he gave him a Sota blow, upon which Bashir Ahmad deceased got attracted and the accused party launched the attack. However, the defence version is that Muhammad Yusuf accused had asked the old lady to walk carefully so that she may not fall in the watercourse but she misunderstood the remarks and reported this incident to Nur Muhammad who felt annoyed over it and in order to take revenge of this incident and the beating given to his son Anwar, he alongwith Anwar and Bashir Ahmad deceased armed with Sotas came to the house of Bashir Ahmad appellant to attack him and his son Muhammad Yusuf Muhammad Amin, Qasim A.I and Muhammad Sharif accused were present in the house of Bashir Ahmad appellant as they had to accompany him to the residence of the Range Officer. Nur Muhammad, Anwar P.Ws. And Bashir Ahmad deceased attacked Bashir Ahmad appellant. Muhammad Amin appellant, Muhammad Sharif and Qasim A.I accused tried to save him-but the complainant party attacked them also, upon which, Bashir Ahmad and Muhammad Amin appellants caused injuries to Bashir deceased while co-accused Muhammad Sharif injured Nur Muhammad in exercise of the right of self- defence. There are thus two versions of the same occurrence, one pleaded by the prosecution and the other by the defence. The learned trial Judge has accepted the defence version and held that the appellants had acted in self-defence but had exceeded the right allowed to them by law.
11. Although the finding of the trial Court that the appellants had acted in exercise of right of private-defence, has not been challenged by the complainant or the State, yet I have examined the entire evidence in order to sec whether the reasons given by the trial Court have the support of evidence.
12. The prosecution version is supported by three eye-witnesses, namely, Nur Muhammad (P.W.6), Muhammad Rafiq (P.W.7) and Shafiq Ahmad (P.W.8).
They are real brothers inter se. The deceased was their real maternal-uncle. They have supported the prosecution version, as detailed in the earlier portion of this judgment. After carefully examining their evidence, I find that, with a view to rope in as many of their enemies as possible, they have given an exaggerated version of the role of the accused party and at the same time tried to suppress their own role. Dr. Muhammad Rafi Chaudhry, Senior Medical Officer, Civil Hospital, Pattoki, examined Bashir Ahmad deceased, when alive, and found only three injuries on his person. It is evident that these injuries could not have been caused by more than three persons. However, at the trial Nur Muhammad P.W. Stated that Muhammad Siddiq gave Thapa blow on the head of the deceased, Bashir accused gave him two blows hitting his head and right flank, as a result of which he fell down, then Muhammad Amin gave him a Sota blow on the eye, Qasim A.I and Falak Sher also caused him injuries with Sotas hitting his head while Mazhar Hussain and Zulfiqar accused gave him three/four injuries each with brickbats. This brings the total number of injuries to twelve, whereas the deceased, as already stated, had only three injuries on his person. Evidence of Muhammad Rafiq and Shafiq Ahmad P.Ws. Suffers from the same defect. In the occurrence members of the accused party, namely, Muhammad Sharif, Bashir Ahmad, Qasim A.I and Muhammad Amin also suffered injuries. The total number of injuries on the accused side was eleven. Injury No.1 on the back of right hand of Muhammad Sharif accused was grievous in nature.
Similarly, injury No.1 on the back of right hand of Bashir Ahmad accused was also grievous in nature. All the three eve-witnesses stated that during the occurrence the accused also suffered minor injuries but they were not prepared to disclose as to who was the author of those injuries.
Again, all the eye-witnesses stated that Sharif and Yusuf accused dragged the deceased and threw him in the Khaal. The medical evidence does not show any dragging mark on any part of his body. Out of his three injuries, two were on the head and one on the right eye. These circumstances should be enough to discard their evidence. Muhammad Rafiq and `Shafiq Ahmad P.Ws. Are the sister's sons of the deceased and brothers of Nur Muhammad P.W. They did not suffer any injury during the occurrence. The accused persons were not armed with any fire-arm. The learned counsel for the appellants has contended with some justification that they were expected to intervene and likely to suffer injuries during the scuffle but they did not have even a scratch, therefore, their presence at the spot was doubtful.
13. The plea of the appellants finds ample support from the facts and circumstances of the case.
Nur Muhammad P.W. Admitted that the occurrence took place in front of the house of Bashir accused. On the accused side, as many as four persons suffered injuries at the hands of the members of the complainant party. The prosecution evidence having been rejected in toto, the plea raised by the appellants alone remained in the field and was rightly accepted by the trial t hurt.
The only question required to be determined in this case is whether the appellants were within their right to cause the death of the deceased or had I exceeded the right allowed to them by law. In such cases the accused is the sole Judge of his own danger and law allows him to pursue his defence even to the extent of causing the death of the aggressor if he apprehends that death or grievous hurt would be the consequence of the assault on him. In the present case two members of the accused party, namely, Bashir Ahmad appellant and acquitted accused Muhammad Sharif, suffered grievous injuries. I, therefore, feel inclined to hold that the appellants had not exceeded the right of self-defence in causing injuries to the deceased which ultimately resulted in his death.
14. For the foregoing reasons, this appeal is allowed, the conviction and sentence of the appellants is set aside and they are acquitted of the charge. They shall be set at liberty forthwith if not required to be detained in any other case.
S.A./B-140/L