1. ' IJAZ NISAR, J.-- Zahid Bashir (20), his brother Tariq Mubeen (32), their father Muhammad Bashir
(63) and their sister's husband Tahir Mahmood (24) were tried for the murder of Muhammad Akram, A.S.I. By judgment, dated 29-4-1987 the learned Sessions Judge, Lahore convicted and sentenced them as follows:-
(1) Zahid Bashir to death plus a fine of Rs,5,000 or in default to undergo one year's R.I. Under section 302/34, P.P.C.
(2) Tariq Mubeen and Tahir Mahmood to imprisonment for life plus a fine of Rs,5,000 or in default to undergo one year's R.I. Under section 302/34, P.P.C.
2. ' All of them were also convicted under section 353/34, P.P.C. And sentenced to one year's R.I. Plus a fine of Rs,5,000 each or in default to undergo four months' R.I. The sentences of imprisonment were ordered to run concurrently. The amount of fine was ordered to be paid to the heirs of the deceased as compensation.
3. ' Muhammad Bashir was given benefit of doubt and acquitted.
2. The convicted accused have appealed against their conviction and sentences while Ghulam Yasin, father of the deceased has filed a revision for enhancement of the sentence of Tariq Mubcen and Tahir Mahmood as also for setting aside the acquittal of Muhammad Bashir. The trial Court has also made a reference for confirmation of the death sentence of Zahid Bashir. All the matters shall be disposed of by this judgment.
3. The prosecution case is that Zahid Bashir appellant was wanted in a case under section 307/34, P.P.C. By Police Station Gulbcrg, Lahore. To arrest him Anees-ur-Rehman, S.H.O., P.S. Gulberg formed a raiding party comprising Muhammad Akram, A.S.I. Deceased, Jamait Ali Bokhari, S.I. (P.W.10), Haji Abdul Mannan (P.W.11), Naveed Akbar Butt and Basharat Ali (not produced) and five constables.
4. Muhammad Akram, A.S.I. Was in plain clothes while the others were in police uniform. The raiding party encircled the house of Zahid Bashir. Muhammad Akram, A.S.I. Deceased was asked to ring the bell. When the bell was rung Muhammad Bashir father of Zahid Bashir and Tariq Mubeen appellants came out. The deceased was armed with his official revolver 455 bore. He enquired from Muhammad Bashir about his son Zahid Bashir. Muhammad Bashir entered into a cross-talk with him and started altercating with the deceased saying that the police visited his house daily to harass them. He raised a noise attracting his co-accused. Zahid Bashir was armed with a revolver, Tariq Mubeen with a .12 bore gun while Tahir Mahmood carried .7 m.m. Rifle. They started grappling with Muhammad Akram A.S.I. Deceased and gave him fist and kick blows. The deceased also acted in self-defence and gave them fist and kick blows. Muhammad Bashir (since acquitted) exhorted his co-accused to do away with the deceased and that the police should be taught a lesson for raiding their house. Zahid Bashir appellant fired a revolver shot at the deceased hitting him on the neck. Tariq Mubeen fired from his gun hitting the deceased on the back of his right hand. Tahir Mahmood fired a revolver shot at the deceased hitting him on the left side of the abdomen. Zahid Bashir appellant also hit the deceased on his head and shoulder with the butt of his revolver. The appellants also fired with their respective weapons at the raiding party to prevent them from making any attempt to rescue the deceased. As a result of the injuries the deceased fell down and the accused took him inside their house dragging. The police party also fired at the accused as a result of which Tariq Mubeen and Tahir Mahmood appellants were injured. The raiding party sent a wireless message on which Zafar Ullah Khan S.H.O., P.S. Wandat Colony (P.W.12) reached the spot with a police contigent. The police were then able to arrest the accused persons from their house.
5. The accused had removed the official revolver of Muhammad Akram A.S.I. Deceased. He was lying dead on the grass on the left side of the gate of their house. Anees-ur-Rehman S.H.O. (P.W.9) lodged report Exh.P.A. With Zafar Ullah Khan S.H.O. (P.W.12) at the spot at 1-05 a.m. Zafar Ullah Khan S.H.O. Took into possession .32 bore revolver P.15 alongwith 7 crime empties P.16/1-7 from Zahid Bashir accused vide memo. Exh.P.I. .12 bore gun P.17 alongwith bandolier P.18, 2 empties P.19/1-2 and 5 live cartridges P.20/1-5 were seized from Tariq Mubeen appellant. .7 m.m. Rifle P.21 of Tahir Mahmood appellant alongwith bandolier P.22 containing 19 empties P.23/1-19 and 10 live bullets P.24/1-10 were also secured. Blood-stained clothes of the accused were also taken into possession by the police. Blood-stained earth and grass was also collected from the spot. Zafar Ullah Khan S.H.O. Prepared injury statement Exh.P.O. And inquest report Exh.P.Q. In respect of the deceased.
6. Tariq Mubeen and Tahir Mahmood appellants were bearing injuries on their persons. The S.I.
7. Prepared the injury statement Exh.P.S. And P.T of Tahir Mahmood and Tariq Mubeen respectively and got them medically examined. On 13-6-1986 Tariq Mubeen while in custody led to the recovery of .455 bore service revolver P.25 of the deceased with 6 live bullets P.26/1-6 from under a Sofa from the drawing room of his house.
8. ' The crime empties of .32 bore revolver were found to have been fired from revolver P.15 recovered at the instance of Zahid Bashir appellant. The crime empties of .7 m.m. Bore were found to have been fired from rifle P.21 (recovered at the instance of Tahir Mahmood). The crime empty of .12 bore was found to have been fired from DBBL shot gun recovered from Tariq Mubeen appellant. The report of Forensic Science Laboratory in this respect is Exh.P.W. (page 35 of the printed paper book).
9. All the three weapons were licensed in the name of Tariq Mubeen appellant.
4. Dr. Saeed Ahmad P.W.4 conducted autopsy on the dead body of Muhammad Akram A.S.I.
10. Deceased on 11-6-1986 at 9-30 a.m. And found the following injuries thereon:-
(1) Y-shape lacerated wound right parietal of the skull 8 c.m. Posterior to right eye-brow and 11 c.m.
11. Above right pinna. Wound was scalp deep and was antero-posterior in direction with lower limb on anterior side.
(2) Curved lacerated wound 3 c.m. x 0.5 x scalp deep top of head in the centre.
(3) Bruise 1.5 x 1 c.m. Left ear pinna.
(4) Abraided bruises around 3 x 2 c.m. Left cheek.
(5) Two bruises size 2 x 1 and 1 x 1 c.m. With 1 c.m. Apart, right side forehead just above the right eye- brow.
(6) Contused swelling bluish in colour right upper and lower lips 3.5 c.m. Long; adjacent teeth were healthy.
(7) Abraided bruise top of right shoulder 2.5 x 1.7 c.m.
(8) Bruise 1.5 x 0.5 c.m. 3 c.m. Back to injury No,7.
(9) Bruise 2.5 x 2 c.m. Right shoulder 2 c.m. Posterior and outer to injury No,7.
(10) Gutter wound with ragged lacerated and bruised margins back of right hand 8 x 9 c.m. On the inner side. Wound was contaminated with sand particles. 3rd, 4th and 5th right metacarpus bones were fractured. Short bones were also fractured and a few were missing.
(11) Circular wound with lacerated inverted and bruised margins 0.5 x 0.5 c.m. Front of neck centre just at the upper border of juglar notch.
(12) Abrasion 0.7 x 0.5 c.m. Left side neck 5 c.m. Below and anterior to left ear louble.
(15) Abrasion 0.5 x 0.2 c.m. Right chest front upper part 13.5 c.m. From right nipple 3.5 c.m. Midline and 4.5 c.m. Below medial and right clavical.
(14) Circular wound with inverted margins 0.7 x 1 c.m. Left side abdomen 4.5 c.m. Left to umblicus and a little below it with colour of abrasion on the outer and upper aspect.
(15) Circular wound with lacerated everted margin 1.5 x 1.25 c.m. In size. Back of left chest middle 11 c.m. From midline.
12. ' Bullet lead was recovered from right inginal region of injury No,14. Left 8th rib was fractured on the hack below injury No,15. Peritonium was injured. Stomach contained about 150 c.c. Of semi- digested food. Small intestines were perforated at 5 places. Urinary bladder contained 100 c.c.
13. Urine. Death was the result of injuries Nos. 11 and 15 caused by fire-arm. The other injuries were caused by blunt means. The time between injuries and death was immediate and that between death and post-mortem 8 to 15 hours.
14. ' According to the doctor the deceased was not in police uniform when he conducted the post- mortem examination. His clothes had no dragging marks nor were they soiled with earth.
15. ' Lead bullet recovered from the body of the deceased was sent to the Forensic Science Laboratory for examination and vide report Exh.C.A. (page 218 of the printed paper book) the Fire-arm Expert opined that the crime bullet of .455 bore could not have been fired from a weapon of 7 m.m. Bore.
16. ' Dr. Imran Mirza P.W.5 medically examined Tariq Mubeen accused on 11-6-1986 at 7-15 a.m. And found the following injuries on his person:-
(1) A penetrated lacerated wound 1 x 1 c.m. D.M.P. Black right shoulder with blackening around the wound.
(2) Lacerated wound 3 x 2 c.m. Outer upper right arm.
(3) Abraided swelling 3 x 2 c.m. Front upper right chest near upper hand.
(4) Multiple abrasions area 6 x 1 c.m. Back left hand.
(5) Abrasion 3 x 0.5 c.m. Back right hand.
(6) Complained of pain right hand.
(7) Abrasion 1 x 0.5 c.m. Back right ring finger.
(8) Complained of pain on left foot.
(9) Multiple abrasions 7 x 6 c.m. Back left elbow.
(10) Multiple abrasions in the area 24 x 5 c.m. Outer front left arm and shoulder.
17. ' Injury No, 1 was caused by fire-arm and the rest by blunt weapons.
18. ' He also examined Tahir Mahmood appellant and found the following injuries on his person:
(1) A lacerated wound 1 x .5 c.m. Left neck about 5 c.m. From left ear.
(2) A lacerated wound 0.5 x .3 c.m. Left lobule of car. The duration of injuries of Tariq Mubeen and Tahir Mahmood was within 6 to 9 hours.
5. The accused pleaded not guilty to the charge and denied the prosecution allegations. Zahid Bashir denied knowledge of being required in a case under section 307, P.P.C. Registered at P.S. Gulberg, Lahore. Explaining his involvement he made the following statement: "On the night of the incident I was seeing a film on the VCR in the drawing room of my House No, 32, Umar Block, Alama Iqbal Town, Lahore. Suddenly a well-built person forced his entry into the drawing room by opening the door of the drawing room by a kick. I was sitting on a Sofa. The man started grappling with me. I raised an alarm calling for help, saying thief, thief. Tariq Mubeen accused who is my elder brother came rushing. During grappling the man whom I later came to know was Muhammad Akram A.S.I. Fired two shots with his revolver. As a result of his firing my brother Tariq Mubeen was injured and the lights of chandelier were damaged. Muhammad Akram A.S.I. Then started going out of the drawing room, I chased him. I tried to catch hold of him. My brother also reached to help me. He raised a noise. Upon his noise there was firing from outside. As a result of that firing Muhammad Akram A.S.I. Was hit. In the meantime, Tahir Mahmood accused who is my brother-in-law also reached. He was also hit by one of the shots fired from outside.
19. Muhammad Akram A.S.I. Died at the spot as a result of the shots received by him, which shots came from outside. The shots which were fired from outside hit our gate, cars standing in our porch and window-panes etc. Nobody from those who had fired from outside had entered our house. We went into our house and Tariq Muheen accused rang P.S. Wandat Colony to tell them what had happened. Then after about 15 minutes of the phone call Zafar Ullah Khan S.I. Reached with a police party. He saw the deceased and told us that he was an A.S.I. Of the police. We explained to him the circumstances in which the incident had occurred. Nobody would believe us. He started threatening us. Zafar Ullah Khan S.H.O. Then informed Ances-ur-Rehman Inspector of P.S. Gulberg and he also reached the spot. At the time of the incident my father Muhammad Bashir was asleep in his air-conditioned bed-room in the upper storey of the house. The police then took me and my co-accused including Muhammad Bashir to the police station."
20. ' Tariq Mubeen and Tahir Mahmood accused also adopted the statement made by Zahid Bashir.
21. Tariq Mubeen stated that he was injured when he had grappled with the deceased on the grassy plot. In an attempt to over-power him Muhammad Akram deceased had fired at him with his revolver hitting him on his right shoulder. When the deceased tried to fire again he caught his hand holding the revolver and pressed it as a result of which the revolver went off hitting the deceased in the abdomen. According to him the deceased was hit twice by the shots coming from outside the house. He stated that they had taken the deceased to be a decoit and learnt on the arrival of the police on their telephone call that he was a Police Officer. Muhammad Bashir also denied the prosecution allegations and stated that he had been involved because the occurrence had taken place in his house. According to him he was a heart patient and was sleeping in his air- conditioned bed-room when at about midnight he was awoken by his wife on hearing gun reports and after a short while some Police Officers entered into his bed-room and took him to the ground floor and told him that Muhammad Akram A.S.I. Had died in his bungalow. Thereafter he, his sons and son-in-law were taken to the police station and arrested in the case. According to him he had protested to the police authorities and his wife had moved a number of applications to the higher authorities and got published appeals in the newspaper as a result of which the case was re- investigated by the S.P. Crimes Branch who found him innocent and placed him in column No,2 of the challan.
22. ' None of the accused called any evidence in defence.
23. ' The learned trial Court in para. 28 of the judgment observed that the eye-witnesses produced by the prosecution could not be explicitly relied upon unless corroborated. The Court further observed that 'had the deceased been injured and man-handled by the accused outside the gate, as stated by the three eye-witnesses, the matter would have ended at the gate and the accused would not have received the minor sort of injuries by fire-arm, as appear on their person and the blunt weapons injuries on the person of Zahid Bashir and Tariq Mubeen and that the occurrence cannot be countenanced to have taken place in the manner stated by the eye-witnesses. The learned Court also observed that in the site plans or in the spot inspection note there was no mention at all that there was blood outside the gate or drag marks leading to the grassy plot where the dead body was found lying or any trail of blood. It further observed that had the deceased received the three fire shot injuries outside the gate, there must have been a trail of blood as well as drag marks but the doctor did not observe any drag marks on the dead body. None of the members of the raiding party was injured in spite of the fact that as per version of the complainant in cross- examination the accused were a few steps outside the gate of the house and had continued firing even while taking the dead body inside the house. In such a situation some one of the police raiding party must have also been injured. The learned trial Court observed in para. 33 of the judgment that the investigation carried out by Zafar Ullah Khan S.I. Was not up to the mark and rather tainted in favour of the police. The Court further observed that no public person was associated to witness the recovery of the weapons from the accused. In para. 37 the learned trial Court made the following observations:- "This, therefore, clearly means that Zahid accused was awake. He was wanted by the Gulberg Police in case under section 307, P.P.C. So when the deceased was deputed by the complainant S.H.O. To ring the bell, he would have been the first to see or peep outside as to who it was at the gate. As there was sufficient light inside as well as outside, so he would have clearly seen that the police had reached and a strong man like the deceased was ringing the bell. In such circumstances, the refusal to open the gate can clearly be imagined on the part of Zahid and the insistance of the deceased that it be opened. The witnesses are believable that the deceased introduced himself as Police Officer and that Zahid accused was wanted. It was it: this scenario that the deceased, strong man as he was, jumped over 4/5/6 feet high wall, so as to kick open the drawing room to effect the arrest of Zahid accused. It was the forcible opening of the door and the struggle which ensued with Zahid which attracted Tariq Mubeen and Tahir Mahmood who also grappled with the deceased. It was in such a situation that one can visualize that the deceased tried to fire his revolver on the chandelier and the walls of the drawing room to scare away the accused and to extricate himself which led to the taking hold of the fire-arms by the accused as well and chasing him when he came out of the drawing room. It was then that the police party also opened fire from outside."
6. It is contended on behalf of the appellants that the story of forming a raiding party for the arrest of Zahid Bashir accused was concocted to show that the deceased had gone to his house in connection with the performance of a public duty. The non-inclusion of Abdul Hameed S.I., who was carrying out investigation of the case under section 307, P.P.C. Against Zahid Bashir appellant in the raiding party falsifies the prosecution story. None of the members of the raiding party was acquainted with Zahid Bashir appellant nor was complainant of the said case taken along by the police for his identification nor was any person associated from Police Station Wandat Colony within the territorial limits of which the house of Zahid Bashir was situated. There was no apparent reason for forming such a big raiding party headed by Ances-ur-Rehman S.H.O. (P.W.9) to arrest an accused of a 307 case at midnight in which no one had been hurt. Haji Abdul Manan P.W. Is stated to he a close friend of Anees-ur-Rehman S.H.O. His evidence is assailed on the ground that he was not a resident of Wandat Colony where the house of Zahid appellant was situated and that there was no occasion for him to have joined the raiding party. He remained involved in some criminal cases and was also arrested alongwith Naveed Akbar Butt a given up P.W. As suspect in Zamurad Dacoity Case. His evidence is said to be in conflict with the other eye-witnesses on the point of arrest of the co-accused of Zahid Bashir appellant in the case under section 307, P.P.C. The evidence of Jamait Ali Bokhari S.I. (P.W.l0) is challenged on the ground that he was a subordinate of Anees-ur-Rehman, Inspector and since an A.S.I. Had been killed in the incident he could not be expected to make a true statement. The evidence of the eyewitnesses is said to be in conflict with the medical evidence. According to the eyewitnesses the occurrence had take."' place at the main gate of the house of the accused and that the deceased was dragged inside after having been injured but no drag marks were found on the dead body or trail of blood was noticed at the main gate. It is further contended that the learned trial Court had expressed the view that the eye- witnesses examined by the prosecution were not credit worthy without corroboration which according to them is not available. The prosecution story was a mere concoction and the defence plea was more plausible and was supported by the position and circumstances obtaining at the spot, it is added.
7. Learned counsel for the State and the complainant contend that the prosecution story is based on evidence and that the F.I.R. Was promptly lodged with all the necessary details. The presence of dead body of Muhammad Akram A.S.I. Deceased in the house of the accused supports its version.
24. Zahid Bashir appellant was wanted in a case under section 307, P.P.C. And that the police had gone to his house to arrest him. He and his relatives resisted the arrest and fired shots at the deceased and the police party as a result of which Muhammad Akram, A.S.I. Lost his life. Therefore, all the accused deserve exemplary punishment.
8. Though F.I.R. Of the case under section 307, P.P.C. In which Zahid Bashir appellant was wanted has not been brought on record by the prosecution but it stands established from the other evidence that he was wanted in that case. The formation of raiding party for his arrest was thus plausible.
25. The Gulberg Police had authority to arrest Zahid Bashir appellant and as such they could enter and search his house under the law but it is not understandable as to why Muhammad Akram A.S.I.
26. Deceased was not clothed in police uniform when he raided the house of Zahid Bashir appellant.
27. No reasonable explanation has been advanced by the prosecution in this behalf. The P.Ws. Have admitted that during those days many incidents of dacoity and murder had taken place in Allama Iqbal Town where the house of the accused was situate. According to the accused Zahid Bashir appellant was watching a film on the VCR in the drawing room of his house when a well-built person forced his entry into the drawing room by opening the door by a kick and on entering into the room started grappling with him. On the alarm, Tariq Mubeen brother of Zahid Bashir came rushing and during grappling the deceased fired two shots with his revolver resulting in injuries to Tariq and breaking of chandelier hanging in the drawing room. The deceased tried to run away and was hit as a result of firing from outside which proved fatal. According to the accused the deceased did not tell them that he was a police man and had come to arrest Zahid Bashir appellant. They had no means of knowing his real identity or intention and they feared that he may not kill them because he had already fired shots with his revolver. From the accused side Tariq Mubeen and Tahir Mahmood appellants were injured. Both of them had fire-arm injuries on their persons of the same duration as that of the deceased. According to the prosecution they had received these injuries when the police party had fired at them from outside. The prosecution stands belied by the presence of blackening around injury No,1 of Tariq Mubeen. Likewise, the defence version that the deceased was hit by the shots fired from outside is also incorrect because on the corresponding hole to injury No,14 blackening was found on the shirt of the deceased. The margins of some of the fire-arm injuries were inverted or everted showing that the firing had been done from a close range. The recovery of lead bullet of .455 bore service revolver from the abdomen of the deceased is totally unexplained. It could not have been the result of the shots fired by the accused because the weapons wind from them were .32 bore revolver, .12 bore gun and .7 m.m. Rifle. The fire-arm expert had categorically stated in his report Exh.C.A. (page 218 of the printed paper hook) that the crime bullet of .455 bore could not have been fired from a weapon of .7 m.m. Bore. The prosecution story that the deceased was injured and manhandled by the accused outside the gate was not accepted by the trial Court (see para. 28 of the judgment page 143 of the printed paper book). The trial Court rightly held that had the deceased been injured and manhandled outside the gate the matter would have ended there and the accused would not have received blunt weapon injuries. The other reason advanced by the learned trial Court for not accepting the prosecution story was the absence of drag marks on the body of the deceased or a trail of blood. The trial Court further observed that if the accused had fired at the police party as alleged by the prosecution more damage would have been caused and other members of the raiding party must have also been injured. The recovery of service revolver of the deceased at the instance of Tariq Mubecn on the third day of incident i,e, on 13-6-1986 stands belied by the evidence of Zafar Ullah Khan S.I. P.W.12 according to whom revolver P.25 was found lying at a distance of 10/12 feet from the place where the dead body lay. The learned trial Court was of the view that the deceased, strong man as he was, had jumped over 4/5/6 feet high wall and kicked open the drawing room to effect the arrest of Zahid Bashir and that it was the forcible opening of the door and the struggle that had ensued between the deceased and Zahid Bashir appellant which attracted Tariq Mubeen and Tahir Mahmood who also grappled with the deceased and it was in that situation that the deceased tried to fire his revolver on the chandelier and the walls of the drawing room to scare away the accused and to extricate himself which led to the taking hold of the fire-arms by the accused, as well and chasing him when he came out of the drawing room.
28. It was then that the police party also opened fire from outside. A reference may also be made to the statement of Ghulam Rasul Qureshi Superintendent of Police C.W.1 who stated during the course of his inspection he had found a scratch mark on the outer door of the drawing room possibly caused by a foot and the bolt of the said door was broken from inside. He had also found three lights and three shades of the chandelier in the drawing room broken and found fire marks on the northern and western walls of the drawing room. As a result of his investigation he had reached the conclusion that the incident of murder had taken place in the compound of the house of the accused persons.
29. It appears from the above circumstances that both parties have not come forward with the true story and have tried to suppress material facts in order to minimise their part but from the material on record one thing is clear that the occurrence had taken place inside the house of the accused after the deceased had entered therein for effecting the arrest of Zahid Bashir appellant. The manner in which he had forced his entry into the house of the accused at midnight in plain clothes was sufficient to raise an apprehension in the minds of the accused that they might he killed or grievously injured by him. Probably the deceased had gone there in plain clothes to dupe Zahid Bashir appellant so that he may not make any attempt to escape. But on meeting resistance by Zahid Bashir he must have disclosed to him his identity as well as purpose of visit. There seems to be no point in not disclosing these things to him because he was accompanied by a Senior Police Officer who was present outside. Even if the accused had not believed the deceased to be a Police Officer by his strange conduct still they had no right to kill him. They must have overpowered him by causing as many as ten blunt weapon injuries to him on the vital parts like skull, chest and neck etc. In causing fire-arm injuries to the deceased they had certainly exceeded the right of self- defence. Though the occurrence was without any premeditation on the part of the accused but they had certainly caused more harm than was necessary. In these circumstances the culpable homicide committed by them would not amount to murder and the offence would fall under section 304, Part I, P.P.C. Accordingly we alter their conviction from section 302/34, P.P.C. To one under section 304 (I), P.P.C. And sentence them to five years' R.I. Plus a fine of Rs,15,000 each or in default to undergo six months' R.I. With benefit of section 382-B, Cr.P.C. The amount of fine, if realized, shall be paid to the heirs of the deceased as compensation.
30. ' The conviction of the appellants under section 353/34, P.P.C. Is set aside for the reason that the deceased did not take due care in effecting his entry into their house at dead of night not dressed up in police uniform and the accused might have taken him as an intruder or thief.
31. ' The appeal is accordingly disposed of in the above terms.
32. ' The death sentence of Zahid Bashir appellant is not confirmed.
33. ' For the reasons discussed above the revision against acquittal of Muhammad Bashir accused and for enhancement of the sentence of Tariq Mubeen and Tahir Mahmood appellants fail and arc dismissed accordingly. /order accordingly.