KHIZAR HAYAT, J.-- Ghulam Siddiq and his brothers imam Bakhsh and Asghar have separately filed appeals from jail (Criminal Appeals Nos. 193, 194 and 195 of 1984) against the judgment, dated 2-10-1984, of Additional Sessions D.G. Khan, who convicted and sentenced them as under for causing murder of Farid and injuries to Sohrab, Mehrab. Allah Nawaz and Ismaeel:- Name of appellantsConvicted under sectionSentenced to
(1) Ghulam Siddiq and Imam Bakhsh302/34, P.P.C.Death and to pay a fine of Rs.5,000 each or in default to undergo 2 years' R.I. each. They shall also pay Rs.5,000 each as compensation to be paid to the heirs of Ghulam Farid (deceased) or in default to undergo 1 year's S.I. each.
(2) Asghar 302/34, P.P.C.Imprisonment for life and a fine of Rs.5,000 or in default to undergo 2 years' R.I. He shall also pay Rs.5,000 as compensation to the heirs of Ghulam Farid (deceased) or in default of undergo 1 year's S.I.
(3) Ghulam Siddiq, Imam Bakhsh and Asghar.307/34, P.P.C. for making muderous assault on Sohrab P.W.5 yeras' R.I., and a fine of Rs.1,000 each or in default, 6 months' R.I.
(4) Ghulam Siddiq, Imam Bakhsh and Asghar.326/34, P.P.C. on two counts for causing grievous hurt to Allah Nawaz and Mehrab P.Ws.5 years' R.I., and a fine of Rs.1,000 each or in default, 6 months' R.I. each on each count.
(5) Ghulam Siddiq, Imam Bakhsh and Asghar.324/34, P.P.C. for causing injuries to Ismaeel P.W.1 year's R.I. each.
The sentences of imprisonment awarded to Ghulam Siddiq and Imam Bakhsh are directed to run concurrently in case death sentence awarded to them is not confirmed. The sentences of imprisonment awarded to Asghar are also directed to run concurrently. All the convicts are given benefit of the provisions of section 382-B, Cr.P.C., in computing their sentence of imprisonment.
Murder Reference No. 197 of 1984 for confirming the death sentence of Ghulam Siddiq and Imam Bakhsh is also before us. This judgment shall dispose of the three appeals as well as the murder reference as they arise from the same impugned judgment.
2. The three appellants are brothers inter se who are sons of Mst. Taggo (D.W.1). They are brick moulders by profession. Mst. Taggo's sister Mst. Zohra (D.W.2) was taken as second wife by Fateh Muhammad. The other wife of Fateh Muhammad is Mst. Jantan and Allah Nawaz (P.W.7) and Ismaeel (P.W.8) are her sons from seed of Fateh Muhammad. Gul Muhammad, complainant (P.W.6) is their cousin while Ghulam Farid (deceased) was nephew of said Gul Muhammad. Sohrab (P.W.9) and Mehrab (P.W.10) are brothers inter se and their sister is married to Gul Muhammad. It may be mentioned that appellants had built a house on the land of said Fateh Muhammad with his permission at Chah Laungwala in village Nautak Sikhani District D.G. Khan, and were living in that house in the days of occurrence. Fateh Muhammad died a month before the occurrence (2-7- 1982) and, therefore, Fateh Muhammad's sons, namely, Allah Nawaz, Ismail and other shareholders of Chah Laungwala asked the appellants to vacate the said land but they did not do so.
3. According to the prosecution, on the fateful day i.e. 2-7-1982 at about Deegerwela, Asghar (appellant) went towards the Haveli of Allah Nawaz (P.W.7) who asked him not to pass in front of their house in future. This led to an altercation between the two. However, Asghar returned to his house. At Maghribwela, on the same day, Allah Nawaz was going towards the house of Gul Muhammad (complainant). When he was still 20-25 yards behind Gul Muhammad's house, Asghar raised a Lalkara that they would not spare him, and simultaneously he and Imam Bakhsh armed with hatchets and Ghulam Siddiq with a Chhuri coming out of palm-bushes, attacked him. Imam Bakhsh dealt first blow to him on the head with hatchet and Ghulam Siddiq caused him injury with Chhuri on his left hand. Allah Nawaz cried whereupon Ismaeel P.W. Reached, who was injured by Imam Bakhsh with hatchet on the head. Ghulam Siddiq gave him Chhuri blow on his hand and as a result of the injuries he fell unconscious. Then reached Sohrab P.W. Who too was given hatchet blow on the head by Imam Bakhsh and Ghulam Siddiq gave him two Chhuri blows on left arm and Asghar caused injury on his back with hatchet. He also fell down. Then Mehrab P.W. Came who was given injuries by Imam Bakhsh, Ghulam Siddiq with their weapons and Asghar gave injury on his back with wrong side of his hatchet. Rasheed P.W. (not produced) who arrived next was injured by the appellants. Last of all Ghulam Farid (deceased) arrived whom Imam Bakhsh gave hatchet blow on the head and Ghulam Siddiq plunged Chhuri into his chest as a result of which he fell dead. All the appellants then dragged him towards their house. Meanwhile Gul Muhammad (complainant) also reached there. The appellants stook Ghulam Farid (deceased) inside their house and chained the door from within. Gul Muhammad went to Police Station Kala, 6 miles away from there, and lodged F.I.R. (Exh.P.Q.) which was recorded by S.I. Raja Haqdad (P.W.13).
4. S.I. Raja Haqdad after recording F.I.R. (Exh.P.Q.) reached the spot and found Allah Nawaz, Ismaeel, Sohrab and Mehrab P.Ws. Lying injured there. He prepared their injury statements and referred them to the hospital for medical examination. He then went inside the Haveli of the appellants and found Ghulam Farid lying dead there. He-prepared injury statement (Exh.P.C.) and inquest report (Exh.P.B.) of the deceased and sent the dead body for post-mortem examination under police escort. He removed blood stained earth from the house of the appellants and made it into a sealed parcel vide memo. Exh.P.S.
5. On 3-7-1982 at 4-15 p.m., Dr. Ghulam Farid (P.W.2) examined Allah Nawaz (P.W.7) and noted two incised wounds on his person, one on the left side of head 2" x 1/2" x bone deep and the other incised wound 2" x 1" x bone deep on the left thumb while the third was a small superficial incision on his left wrist. Injury No.2 was declared as grievous as there was fracture and cut of bone of right thumb while the rest were simple. Isma eel (P.W.8) suffered three incised wounds, one on the head and two on left wrist and left thumb which were simple in nature. Sohrab (P.W.9) suffered five injuries, three of them are incised wounds one on the head and two on the left forearm. There was also a stab wound on his chest and a superficial incision on the back of lumber region. These injuries were simple in nature except the head injury which was found to be grievous. He observed five injuries on the person of Mehrab (P.W.10). Two of them were incised wounds, one on the left hand and the other on the left wrist joint, and both were grievous in nature. There were two lacerated wounds on his head and nose and one bruise on the back of right chest which were simple in nature. Rasheed P.W. (not produced) suffered one incised wound on the left forearm which was simple in nature.
6. On 3-7-1982 at 9 p.m., Dr. Amjad A.I (P.W.1) performed post-mortem examination on the dead body of the deceased and noted two injuries on it, namely, an incised wound 3" x 2" x brain deep at the right frontal temporal part of the head 2" above the right ear and another incised wound 3" x 1" x sufficiently deep on the front of right half of chest just below the right nipple. Both these injuries were grievous and fatal individually and collectively, caused with sharp--edged weapon. The injuries caused death instantaneously. Time between death and post-mortem examination was 12 to 18 hours.
7. On 5-7-1982, S.I. Raja Haqdad (P.W.13) arrested all the accused. On 7--7-1982 Imam Bakhsh got recovered his blood-stained shirt P.4 and blood-stained hatchet P.1 from his house, which were seized under memos. Exhs. P.N. And P.K. Respectively. Ghulam Siddiq got recovered blood-stained Chhuri P.2 and blood--stained Chaddar P.5 from his house, which were seized under memos.
Exhs.P.L. And P.O. Respectively. Blood-stained hatchet P.3 was got recovered by Asghar the same day which was secured under memo. Exh.P.M. Muhammad Shafi (P.W.5) besides the Investigating Officer (P.W.13) witnessed all these recoveries. Articles P.1, F2, P.4 and P.5 are found to be stained with human blood vide Chemical Examiner's report Exh.P.T. And that of the Serologist Exh.P.U.
8. Foixteen witnesses in all were examined by the prosecution in support of its case. Of them Allah Nawaz (P.W.7), Ismaeel (P.W.8), Sohrab (P.W.9) and Mehrab (P.W.10), the injured witnesses, and Gul Muhammad (P.W.6), the complainant, furnished the eye-witness account besides the medical witnesses who proved the injuries of the P.Ws. And opined- that Ghulam Farid (deceased) died of injuries suffered by him.
9. The appellants when examined under section 342, Cr.P.C. Denied the allegations. Asghar denied his presence at the time of occurrence but Imam Bakhsh pleaded self-defence in the following words:- "We have built our houses in the land owned by the complainant party with the permission of the father of Allah Nawaz but the present P.Ws. And the deceased were compelling us to leave that Haveli after the death of father of Allah Nawaz P.W., namely, Fateh Muhammad but we did not agree to their demand which annoyed them. On the day of occurrence, when we were not in our house, Farid deceased, and Allah Nawaz, Ismacel, Sohrab, Mehrab and Rasheed trespassed into our house, violated the modesty of our womenfolk and also threw out the household effects from outside of our Kotha. On the alarm raised by the ladies I and my brother Siddique were attracted to the spot from the field where we were preparing bricks with the Kassi. We went there and saw that Ghulam Farid was causing injuries to my mother Mst. Taggo and the others were also molesting the modesty of other women including Mst. Amir. We lost our self-control and under the heat of passion and right of private defence of our women-folk we injured Ghulam Farid who fell down on the ground in our Haveli and lost his breath. In the meantime the other eye-witnesses forcibly abducted Mst. Amir and took her outside of our Haveli. We overtook them and also caused them injuries near our Haveli to save her from the clutches of the eye-witnesses. Thereafter we informed the police about this matter who with the collusion of the other party registered a false case against us. When we apprised the police of the facts we had also produced the medical certificate of Mst. Taggo and also produced our ladies before the police and the D.S.P., but they did not register any case from our side. We then sent various applications through registered post to the higher authorities. I produce postal receipts Exhs. D.E., D.F., D.G. D.G/1, D.H., D.H./1, DJ., D.J./1 addressed to D.I., D.I.-G., S.P., D.I.--G. And S.P. Respectively."
Ghulam Siddiq adopted the above plea raised by Imam Bakhsh, his brother. The appellants produced three DWs., namely, Mst. Taggo, their mother, and Mst. Zohra, her sister, as D.W.1 and D.W.2 who supported the defence plea. Lady Dr. Ferzana Bukhari (D.W.3) stated to have observed following injuries on the person of Mst. Taggo on 3-7-1982 at 11-30 a.m.: (1)A linear lacerated wound about 8 c.m. In length on left side of skull, about 5 c.m. Lateral to midline. The injury was skin deep and was bleeding.
(2)A bruise about 5 c.m. x 4 c.m. Over the left shoulder joint. The joint was swollen, movement was restricted and she complained of pain.
(3)Right lower thorax region was swollen and was tender. She complained of pain (4)A linear abrasion about 10 c.m. In length on the left thorax region, starting from just below the left lower angle of scapula.
According to the doctor, her pulse was not palpable, she was sweating and her condition was serious. The injuries were caused with blunt weapon within 8 to 16 hours. Injuries Nos. 1, 2 and 3 were grievous in nature. It may be mentioned that the lady doctor (D.W.3) admitted to have noted down on Exh.D.K./1 that no bony lesion was seen in the X-Ray yet she has not given any reason for declaring injuries Nos. 1, 2 and 3 as grievous. She also admitted that the X-Ray films were not available.
10. Learned trial Court on consideration of the material on record discarded the defence version being not probable but accepting the prosecution version as narrated by the injured witnesses, convicted and sentenced the appellants, as indicated above. It, however, observed that Gul Muhammad (complainant) reached the spot after the occurrence was over and to our mind rightly excluded his testimony from consideration.
11. We have heard learned counsel for the appellants `as well as for the State and also perused the record with their assistance.
12. From the above narration of facts it would be seen that it is a case of two versions. The defence has admitted the occurrence. The presence of the injured P.Ws. And that of Mst.Taggo (D.W.1) is established while Imam Bakhsh and Ghulam Siddiq (appellants) have themselves admitted their participation in the A occurrence claiming that they acted in the exercise of right of their private defence. We have reviewed the entire evidence on record and also considered both versions by placing them in juxtaposition very carefully. The prosecution story that as a sequel to earlier quarrel between Allah Nawaz and Asghar which took place at Digerwela the three appellants hid themselves behind date-palm bushes and when Allah Nawaz P.W. On his way to the house of Gul Muhammad (complainant) passed near the bushes, they attacked him, does not seem to be correct as Ismaeel (P.W.8) has categorically stated that there were no date-palm bushes near the place of occurrence. Again, had the three appellants waylaid Allah Nawaz and attacked him as stated by the P.Ws. Then he would have not escaped with two simple injuries and fracture of the thumb only but would have been dealt numerous and extensive injuries by the appellants before the P.Ws. Had arrived. Furthermore, if the appellants had attacked Allah Nawaz P.W. For avenging the insult of Asghar (appellant) then how is it that Allah Nawaz was spared and Ghulam Farid was killed? There is rather no reliable evidence that there occurred any quarrel between Asghar (appellant) and Allah Nawaz P.W. An hour before the occurrence as Allah Nawaz himself admitted that no female member of his family ever complained against the conduct of Asghar. It appears to have been introduced to provide motive for the occurrence. To the contrary, almost every witness has admitted that being shareholder of Chah Laungwala they wished that the appellants should vacate the land where they had constructed E their house with the permission of their late Fateh Muhammad but despite their efforts they had not given up the possession. Therefore, the cause of dispute between them appears to be the refusal or part of the appellants to vacate the land under their house and nothing else. It is in the evidence that place of occurrence is near the house of the appellants and far from the house of Gul Muhammad (complainant) as well as of Allah Nawaz P.W.
The prosecution story that after Ghulam Farid (deceased) had been fatally injured in the street was dragged inside their house by the appellants is also belied by the fact that the doctor did not find any marks of dragging on the back or other parts of the deceased's body though the witnesses stated that while the deceased was being dragged his back was touching the ground. It, therefore, suggests that deceased was attacked and killed in the courtyard of the appellants. We are fortified by the fact that S.I. Raja Haqdad (P.W.13) collected blood from the house of the appellants and not from the street. Likewise the defence version appears to be improbable one. The appellants' version that five injured witnesses and the deceased duly armed trespassed into their house, threw their household effect out of Kotha, molested their womenfolk and Ghulam Farid (deceased) injured Mst.
Taggo, therefore, they exercising their right of self-defence defended themselves with Kassis, is not probable. Had it been so-then the appellants would have not escaped unhurt and Mst. Taggo too would have received many more and serious injuries than those found on her person. Her itrjuries, we would say, appear to have been caused in scuffle rather than with a weapon, as out of her four injuries, one is linear laceration, one is bruise and two are swellings of thorax. As indicated above, the lady doctor has failed to give any reason for having declared Taggo's injuries as grievous. Even the X-Ray films were not produced. We would, therefore, treat her injuries as simple in nature. Again the plea of Imam Bakhsh and Ghulam Siddiq that in order to fight back the aggression they caused injuries with Kassis to the deceased and the other witnesses, is not supported by the medical evidence, i.e., stab wound found on the chest of Sohrab P.W. And fatal stab injury on the chest of Ghulam Farid (deceased) could not be caused with Kassi blow. So these injuries remain unexplained which renders the appellants' version as false. Likewise their theory that Mst. Amir Bibi was abducted by the complainant party and that they in order to rescue her had caused injuries to the P.Ws., merits no consideration as Mst. Amir Bibi had neither been produced during investigation nor at the trial. There is no evidence that she had at all suffered any injury during the occurrence.
For the foregoing reasons we are of the view that both the parties have told incomplete stories minimising their own role and laying maximum blame on the other. To our mind, the things started when Allah Nawaz P.W. Alongwith his relative Ghulam Farid (deceased) went unarmed to the house of the appellants to ask them to vacate the land as the parties are in a way related and during the discussion they exchanged hot words whereupon the appellants who were in an advantageous position being in their house, had attacked them and also injured the other witnesses who reached there one by one, for rescuing them. So it had happened all of a sudden. If Allah Nawaz and F Ghulam Farid for having remained on the appellant's premises to their annoyance are treated as trespassers even then the appellants had no justification I to kill Ghulam Farid and cause injuries to the P.Ws. The right of self-defence is I to be exercised in good faith and the forcz used in the exercise of such right' cannot extend in any case to inflicting of more harm than is necessary for the purpose of defence. But in this case the force used by the appellants was too excessive which resulted in death of Ghulam Farid and extensive injuries to four P.Ws. Who were not at all armed.
Consequently, Imam Bakhsh and Ghulam Siddiq (appellants) had certainly exceeded the right and are guilty of committing offence of culpable homicide not amounting to murder under section 304,, Part I, P.P.C. Their conviction and sentence is, therefore, altered accordingly and they are sentenced to 10 (ten) years' R.I. And a fine of Rs.10,000 each or in default to undergo 2 (two) years' R.I. Each. The fine, if recovered, shall be paid in full to the heirs of the deceased. Asghar (appellant) did not cause injury to the deceased, therefore, he is acquitted of the charge of murder. The conviction of all the appellants under section 326/34, P.P.C. For injuries of Mehrab and Allah Nawaz P.Ws. And under section 307/34, P.P.C. For injuries of Sohrab P.W. Are, in the circumstances, altered to one under section 308/34, P.P.C. And their sentences are reduced to the period already undergone (which comes to about 5-1/2 years) and a fine of Rs.1,000 each or in default to undergo 6 months' R.I.
Asghar (appellant) is on bail. He is discharged of his bail bonds. The appeals are partly accepted in the terms indicated above. The death sentence awarded to Ghulam Siddiq and Imam Bakhsh (appellants) is NOT confirmed and the reference is rejected.