SARDAR MUHAMMAD DOGAR, J.--- Abdul Hamid alias Hamid Ullah Khan (29-30), son of Khan Zaman,. Khalid Khan (25) and his brother Abid Khan (22) were tried by the Additional Sessions Judge, Bhakkar, for having murdered Abdul Majid and for having launched murderous assault on Zia Ullah Khan and Matiullah Khan P.Ws. On 19-6-1987 at 6-30 p.m. On the Pacca Road leading to southern volleyball ground in village Roadi Dakhli Ghulaman, at a distance of 9 miles from Police Station Kallurkot, District Bhakkar. Vide judgment dated 21-8-1989, learned trial Judge convicted Abdul Hamid alias Hamid Ullah under section 302, P.P.C. And sentenced him to death plus to pay a fine of Rs.20,000 in default whereof to suffer R.I. For 3 years. Half of the fine, on realisation, was directed to be paid as compensation to the heirs of the deceased.
Khalid Khan was convicted under section 323, P.P.C. For having caused simple injury to Matiullah Khan P.W. And was sentenced to undergo R.I. For one year plus to pay a fine of Rs.1,000 in default whereof to suffer R.I. For 2 months. Abid Khan was convicted under section 324, P.P.C. For having caused simple injury to Zia Ullah Khan P.W. And was sentenced to undergo R.I. For 1-1/2 years, plus to pay a fine of Rs.1,000 in default whereof to suffer R.I. For 2 months.
Khalid Khan and Abid Khan were extended the benefit of the provisions of section 382-B of the Code of Criminal Procedure.
2. The convicts have filed appeal. Learned trial Judge has made reference for confirmation of death sentence, while the complainant has preferred revision petition, wherein prayer has been made for convicting Khalid Khan and Abid Khan under section 302/34, P.P.C. And awarding them sentences in accordance with law. Prayer has also been made for convicting all the three accused under section 307/34, P.P.C. For having launched murderous assault on P.Ws. Zia Ullah Khan and Matiullah Khan and awarding them sentences in accordance with law. As all the matters have arisen out of the same judgment, they are being disposed of together.
3. F.I.R. Exh. P.N. Was recorded at the police station by Habib Ullah, S.I. P.W.13 on 19-6-1987 at 9-00 p.m. On the statement of Zia Ullah Khan P.W.9.
According to FIR the complainant and his brother Matiullah Khan were sitting outside their Baithak.
Abdul Majid (deceased) after coming out of the house, started for volleyball ground, situated on the southern side of the village. When he was at a distance of 5/6 Karams'from the Pacca Road, Abdul Hamid armed with a gun, Khalid Khan armed with a Danda and Abid Khan armed with a knife, appeared from the southern side, raising Lalkaras. The complainant and Matiullah Khan P.W.
Walked towards their brother Abdul Majid. Abdul Hamid appellant fired a shot which struck Abdul Majid on the chest. He fell down. P.W. Matiullah Khan quickly caught the gun of Abdul Hamid, whereupon Khalid Khan appellant gave- a Danda blow on his head but he (Matiullah Khan) did not leave the gun. When the complainant intervened, he was inflicted an injury by Abid Khan with knife on the palm of his right hand.
The occurrence,, apart from the complainant and Matiullah Khan P.W., was also witnessed by Rustam Khan and Ghulam Hussain. On the noise raised by the P.Ws. Abdul Hamid ran away alongwith Khalid Khan and Abid Khan, leaving his gun behind. Abdul Majid was removed to Jandwala Hospital. However; he died soon after reaching there.
The complainant while lodging the F.I.R. Produced the gun snatched from Abdul Hamid appellant with empty in its chamber.
4. Motive for 'the occurrence was the suspicion of Abdul Hamid appellant about illicit connection of Abdul Majid (deceased) with hi 'step Mst. Surat Khatoon.
5. Habib Ullah S.1. After registering the case took gun P.7 into possession alongwith the empty, vide memo. Exh. P.O. The gun was sealed into a parcel. Matiullah Khan P.W. Had accompanied Zia Ullah Khan P.W. To the police station. After preparing injury statements of Zia Ullah Khan and Matiullah Khan, he got them medically examined from Jandwala Civil Hospital.
He examined the dead body of Abdul Majid lying at Jandwala Hospital and despatched the same for post-mortem examination, after preparing necessary papers, and recorded statements of the P.Ws. He went to the place of occurrence on 20-6-1987 and collected blood-stained earth from there vide memo. Exh. P.A. During spot inspection.
Abdul Hamid appellant was arrested by him on the same day. As he was found injured, the S.I, prepared his injury statement Exh. P.Q. And sent him to the hospital for medical examination. Khalid Khan & Abid Khan appellants were arrested on 22-6-1987. Danda P. 4 got recovered by Khalid Khan on 30-6-1987 from his Baithak was taken into possession vide memo Ex. PD while knife P.5 got recovered by Abid Khan on the same day from his Baithak was taken into possession vide memo.
Ex. PE. Challan was submitted to Court after completion of necessary investigation.
6. Statements of thirteen P.Ws. Were recorded at the trial.
Dr. Qamar-ud-Din who had medically examined Zia Ullah Khan P.W. On 19-6-1987, appeared as PW
6. He had noted a linear, superficial incised wound 3 cm in length on medial aspect of right palm, 3 c.m. From the root of little finger. The injury, which was opined to have been caused within a duration of 5 hours with a sharp-edged weapon, was declared simple.
He had noted a lacerated wound 3 c.m. x 1/2 c.m. Scalp deep on right side of skull, 12 c.m. From right ear of Matiullah Khan P.W. On his medical examination on the same day. The injury, which was opined to have been caused within a duration of 5 hours by a blunt weapon, was declared simple.
The same doctor had performed autopsy on the dead body of Abdul Majid (deceased) on 20-6- 1987 at 7-00 a.m. And had noted following injuries thereon:
(1) Eight wounds of entry in an area of 7 cm x 5 cm on front of left lower chest, 5 c.m. From mid line, 8 c.m. Below left nipple. Each wound measuring 1 c.m. x 1.2 c.m. In horizontal direction.
(2) A wound of exit 1/2 c.m. x 1/2 c.m. On back, 10 c.m. To the left of mid line at the level of second number vertebra.
(3) A wound of exist 1/2 c.m. x 1/2 c.m.,16 c.m. To the left side and 5 c.m. Above the level of injury No. 2.
On dissection, 6th to 12th ribs were found fractured, Diaphragm, Peritoneum and Pancreas were punctured while spleen and left kidney were smashed. Death was opined to have occurred due to haemorrhage and shock, resulting from injury No. 1. All the injuries were opined to have been caused by firearm. Time between injuries and death was opined to be within half an hour while the duration between death and post-mortem was opined to be within 12--13 hours.
During cross-examination he did not rule out the possibility of injury on Zia Ullah Khan P.W. Having been self-suffered. He also did not rule out the possibility of injury on Matiullah Khan P.W. Having resulted from a fall on the hard ground. He stated that injury No.1 on the deceased, could have resulted from a shot fired from 2-3 yards. He stated that he could only detect two exist wounds, which indicated the exist of two pellets.
7. Ocular account was deposed to by Zia,, Ullah Khan P.W.9, Matiullah Khan P.W.10 and Rustam Khan P.W.11.
Zia Ullah Khan repeated the facts given by him in the F.I.R. During cross-examination he stated that his father was not convicted and sentenced to imprisonment for life since after he had reached the age of discretion. While admitting that his uncle Muhammad Khan was sentenced to imprisonment for life for having murdered Muhammad Khan son of Wali Beg, he expressed ignorance about the fact that Muhammad Khan uncle of Abdul Hamid appellant was an eye-witness in that case. He expressed ignorance about the civil litigation between his father and father of Khalid Khan and Abid Khan, over the inheritance of Anwar Khan their common relative. He did not deny that uncle of Khalid Khan and Abid Khan appellants had divorced his mother's sister and that she had been living with them after the divorce. According to him the deceased was married, had four children and his eldest son was studying in 10th Class. He denied the suggestion that they suspected that Abdul Hamid appellant was having illicit connections with his sister N2si ' Akram Hazoor, and that it was on that account that the deceased had fact Abdul Hamid appellant, 2 years before the occurrence. While admitting that the case was also investigated by Muhammad Nawaz and Ali Muhammad, Deputy Superintendents of :police, he denied the suggestion that both of them had declared the accused innocent and found them (complainant party) as the aggressors. He denied the suggestion that Khalid Khan appellant was playing volleyball at the time of occurrence. He stated that they had taken Abdul Majid (deceased) to Jandwala Hospital as they were told by Javed Khan P.W. That the doctor at Kallurkot Hospital was not available. While admitting that there was a Police Post at Jandwala, he added that he had not seen that. He declared that none of the appellants had suffered any injury during the occurrence.
He denied the suggestion that a volleyball match was being played on the day of occurrence between two teams, one of which was headed by Khalid Khan and that the team of Khalid Khan after having won the match had asked the defeated team, either to entertain them or pay a sum of Rs.100 in lieu thereof, and that a row had taken place between the teams and supporters of the teams on that account. He denied the suggestion that Aman Ullah maternal-uncle of Khalid Khan, to whom the latter had handed over his gun before playing the match, passed on the gun to him (Abdul Hamid appellant) for taking the same to the house of Khalid Khan appellant so that no mishap occurs at the hands of Khalid Khan as he was a young chap. The suggestion that when Abdul Hamid was going home, holding the gun of Khalid Khan, he was attacked by him (the complainant), his deceased brother, armed with knives and Matiullah Khan armed with a Danda, and that they had caused injuries to Abdul Hamid appellant and tried to snatch the gun from him during which scuffle the gun went off and struck Abdul Majid (deceased) was also denied by him.
The suggestion,, that it was during this scuffle that Abdul Hamid had caused injury, with butt of the gun on the head of Matiullah, was also denied by him. He further denied the suggestion that Khalid Khan and Abid Khan appellants had not participated in the occurrence and that they had got registered the case against the appellants by giving a false version of the occurrence with the help and support of Khawaneen of Jandawala.
8. Matiullah Khan P.W.10 corroborated the statement made by Zia Ullah Khan P.W. During cross- examination he admitted that some of the shops around. The place of occurrence were open while the others were lying closed. He stated that neither he nor Zia Ullah Khan had any acquaintance in Jandawala as they had never gone there, before. He denied knowledge that there was any police force in Jandawala. He admitted that his father and his uncle had been convicted, separately in different murder cases, and sentenced to imprisonment for life each. The suggestion to Zia Ullah Khan P.W. About the occurrence having taken place in a different manner was also put to him, which he denied like his brother Zia Ullah Khan.
9. Rustam Khan P.W.11 corroborated the statements made by P.Ws. 9 and 10. He admitted during cross-examination that the complainant was related to him. He denied the suggestion that he had made a false statement and actually was not present when the occurrence had taken place. .
10. Dr. Muhammad Zafar Iqbal Khan who had medically examined Abdul Hamid alias Hamid Ullah appellant on 20-6-1987 at 9-30 p.m. At Kallurkot Civil Dispensary, at the request of the police appeared as P.W,12. He had noted following injuries:
(1) A lacerated wound 6.5 c.m. x 0.5 c.m. Skull deep on right head 10 c.m. Above the right ear, wound was already stitched.
(2) An incised wound 2 c.m. x 0.5 c.m. Muscle deep on upper outer right upper arm, Wound was already stitched.
(3) An abrasion 8 c.m. Running forward and downward from the mid injury No.2.
(4) An incised wound 2 c.m. x 0.5 c.m. Muscle deep on upper back right upper arm, 6.5 c.m. Above and behind the injury No.2. Wound was already stitched.
(5) An incised wound 2 c.m. x 0.25 c.m. Sub-coetaneous deep on back right shoulder.
(6) A bruise 3 c.m. x 1.5 c.m. On the outer right shoulder.
(7) An incised wound 0.75 c.m. x 0.25 c.m. Sub-coetaneous deep already stitched on back of left neck.
(8) An incised wound 0.75 c.m. x 0.25 c.m. Sub-coetaneous deep on upper mid left back extending a linear abrasion 3 c.m. Towards left side.
(9) An incised wound 1.5 c.m. x 0.5 c.m. Depth not probed already stitched on left back chest extending as curved linear abrasion, 4 c.m. Long from outer end, 4 c.m. Below outer to injury No.8.
(10) An incised wound I c.m. x 0.5 c.m. Depth not probed on mid upper back chest. Wound was already stitched.
(11) An incised wound 1.5 c.m. x 0.25 c.m. Muscle deep on upper outer back left upper arm.
(12) An incised wound 3.5 c.m. x 0.75 c.m. Depth not probed on outer mid left chest. Wound was already stitched.
(13) An abrasion 2 c.m. x 0.5 c.m. On inner back left elbow joint.
(14) An incised wound 1.5 c.m. x 0.5 c.m. Sub-coetaneous deep on lower right abdomen with an abrasion extending 0.5 c.m. To right side.
(15) An incised wound 2 c.m: x 0.5 c.m. Depth not probed on front outer right inguinal region. Wound was already stitched.
(16) Abrasion 6 c.m. x 4 c.m. On front left knee joint.
(17) A bruise 2 c.m. x I c.m. On front-right knee joint.
(18) An abraded swelling 10 c.m. x 0.5 c.m. On back right elbow joint.
He explained that the injuries which were already stitched,. Were examined after removing stitches.
Injuries Nos.1, 3, 6, 13, 16, 17 and 18 were opined to have been caused by a blunt weapon while the rest were opined to have been caused by a sharp=edged weapon.
The duration of injuries was opined to be about 24 hours. During cross-examination he stated that the injured was brought before him in handcuffs. He gave out that the accused had remained admitted to the hospital for treatment till 4-7-1987. He denied the suggestion that he had given opinion about duration of the injuries at the instance of the police and under the influence of the complainant party.
11. Habib Ullah., S.I. Who had registered the case, investigated the same and got submitted challan to Court from the S.H.O., after arrest of the appellants, appeared as P.W.13 and gave the details of the investigation conducted by him. He specifically stated that at the time of arrest he had found Abdul Hamid appellant injured, and that after preparing injury statement Exh. P.Q. He had sent him.
For medical examination, in custody. While admitting that it had come to his notice during the investigation that a volleyball match was being played on the day of occurrence, he stated that it had come to his notice that a dispute had arisen between Khalid Khan appellant and Sher Abbas Khan, who were heading the teams as Captains, on Khalid Khan having demanded a sum of Rs.100 from Sher Abbas Khan for entertainment as the team of Sher Abbas had lost. He admitted that Abdul Hamid had stated before him that he was attacked,, by Abdul Majid (deceased), Zia Ullah Khan and Matiullah Khan with knives and Soti, when he was proceeding to the house of Khalid Khan to deliver the gun. He denied the suggestion that he had favoured the prosecution and suppressed the actual facts.
The statements of the remaining P.Ws. Are more or less of a formal nature.
12. Positive reports from the offices of the Chemical Examiner, Serologist and the Forensic Science Laboratory were also tendered in evidence.
13. Abdul Hamid appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to the question, `Do you want to say anything else?': "On the date and time of occurrence there was a volleyball match in our village Roadi. After the match was over, the winning team headed by Khalid Khan co-accused demanded entertainment or in lieu thereof an amount of Rs.100 from the defeated team headed by Sher Abbas who is related to the complainant party. The defeated team however, refused to entertain the winners, whereupon there was a row between the players of the two teams. Whereupon Aman Ullah, the maternal-- uncle of my co-accused Khalid Khan handed over the gun P.7 belonging to Khalid Khan co-accused to me as I was present there as spectator of the volleyball match. Before the start of match Khalid Khan accused was proceeding to his land with iris licensed gun when on his way he was asked to play the volleyball match. My co-accused Khalid Khan therefore, handed over the.
Gun to -his maternal-uncle Aman Ullah and when the row started, the said Aman Ullah handed over the said gun to me with a direction to take away the gun to the house of Khalid Khan co- accused because he- was a young boy. I, therefore, proceeded with the aforesaid gun towards the house of Khalid Khan but I did not know that it was loaded. As was proceeding towards the house of my co-accused Khalid Khan, the deceased Abdul Majid and his two brothers namely Zia Ullah and Matiullah P.Ws. Came there while armed with knives and Danda and attacked upon me. The deceased Abdul Majid and his brothers Ziaullah were armed with knives while their brother Matiullah P.W. Was armed with a Danda. The deceased and his two brothers namely Matiullah and Zia Ullah P.Ws. Also tried to snatch the gun of Khalid Khan from me but I resisted and during this scuffle the gun which I was holding, went off as it was loaded and the fire hit Abdul Majid whereby he died then and there. In this attack I sustained injuries with sharp-edged weapon as well as with the blunt. During this scuffle I also caused an injury on the head of Matiullah P.W. With the butt of the gun. The butt of the gun got loosed. After sustaining the injuries at the hands of the deceased and his two brothers I fell down while somebody from the complainant party picked up the said gun and took away the same. On the day of occurrence my ailing mother was admitted in the D.H.Q. Hospital Mianwali, therefore, having found me in an injured condition my relatives took me to the said Hospital at Mianwali for treatment. At the said Hospital I was given the first aid but my medical examination was not done as the case related to the District Bhakkar. Therefore, on the following morning I appeared before the police of Kallurkot and surrendered myself and the police got me medically examined. I am innocent. It was the deceased and his two brothers namely, Zia Ullah and Matiullah P.Ws. Who attacked upon me and tried to snatch away the gun from me and it was just an accident that the gun went off as it was loaded. The complainant party is influential and it has; in league with the influential Zamindars and political figures, managed to involve me in this case falsely and for that purpose they got the post-mortem of the deceased and medico- legal examination of the two witnesses done at the R.H.C. Jandawala while the occurrence took place within the territorial jurisdiction of the hospital of Kallurkot. Since the police was under the influence of the complainant party they recorded the F.I.R. After preliminary investigation and also conducted the mala fide investigation.
He tendered in evidence licence of his gun Exh P.F. And licence of his revolver P.G. He did not opt to make statement on oath under section 340(2), Cr.P.C.
Khalid Khan while denying the prosecution case as a whole and pleading innocence, corroborated the statement made by Abdul Hamid with regard to the fact of the gun having been handed over to Abdul Hamid for taking the same to his house.
Abid Khan while denying the prosecution case pleaded innocence.
Neither Abid Khan nor Khalid Khan opted to make statements on oath under section 340(2), Cr.P.C.
14. We have gone through the evidence with the assistance of learned counsel for the appellant and considered the contentions raised by learned counsel for the parties.
Abdul Hamid who stands convicted under section 302, P.P.C. And sentenced to death, did not deny that the deceased had died as a result of the cartridge having been fired from the gun of Khalid Khan when it was in his hands. He did not specifically deny the place of occurrence.
Although all the three eye-witnesses made consistent statements about the stance of the prosecution reported by the complainant while lodging the F.I.R. Yet they failed to explain as to how Abdul Hamid was found bearing injuries? Even on being specifically asked, Zia Ullah P.W.
Categorically denied that any of the accused had suffered injuries during the occurrence, at their hands.
15. Abdul Hamid appellant during his statement under section 342, Cr.P.C. While explaining his injuries had given his own version of the manner in which the occurrence had taken place.
As it is a case of two versions, both the versions have got to be examined in a juxtaposition, to find out if the version put forth by the prosecution inspired confidence or the version put forth by the appellant was more probable and nearer the truth.
As noted above, the eye-witnesses did not furnish any explanation as to how Abdul Hamid appellant was found injured? Actually the Investigating Officer who had arrested him and had got him medically examined, also did not give any explanation as to in what manner, where and at whose hands he had suffered the injuries?
According to medical examination, Abdul Hamid appellant was found to have suffered 18 injuries.
Eleven of them were incised wound while 5 injuries were opined to have been caused by a blunt weapon. The seats of injuries included chest, abdomen, neck, arms and other parts of body. Some of the wounds at the time of medical examination were found stitched. Even the lacerated wound noted on the head of Abdul Hamid was found stitched. In the circumstances, it is very difficult to assume that the injuries might or could have been self-suffered.
16. The half-hearted argument of learned counsel for the complainant that Dr. Muhammad Zafar Iqbal who had medically examined Abdul Hamid, might have been a party to fabrication of such injuries, has not impressed us at all. He was produced at the trial by the prosecution. The complainant party was represented at the trial. Neither counsel for the State nor the complainant's counsel put him a single question, even by way of re-examination that he was a party to fabrication of injuries on the person of Abdul Hamid appellant. That is not all, even the Sub- Inspector, who had found Abdul Hamid bearing injuries at the time of arrest and who had got him medically examined, did not make any inquiry from the doctor whether those injuries could have been self-suffered or fabricated. The duration,, of injuries given by the doctor tallies with the time of occurrence.
Failure of the eye-witnesses and of the Investigating Officer to come A out with any explanation regarding the injuries found on the person of Abdul Hamid appellant makes the whole case of the prosecution 'highly doubtful.
17. It is worth noticing that the prosecution,, version of the occurrence has been deposed to by two real brothers and a relative. Neither any independent witness was named nor produced at the trial, even though the occurrence had taken place at a place around which there were some shops, which were open. It is also in evidence that volleyball match had been played between two different teams shortly before the time of occurrence and quite a large number of persons were present there to watch the match. That being so the occurrence must have-been witnessed by quite a large number of persons.
The failure on the part of the prosecution, in the circumstances, to name or produce any independent witness also casts doubts on their credentials.
18. Not only the eye-witnesses in this case were interested for being related to the deceased, they were even otherwise not on good terms with the C appellants. It is borne out from the cross- examination of Zia Ullah P.W. That the parties had been at variance with each other due to civil and criminal litigation.
19. The prosecution has failed to prove the motive set up for the lp occurrence, in that, none of the P.Ws. Stated that any of them had ever seen the deceased with the sister of Abdul Hamid appellant. Zia Ullah P.W. During cross-examination stated that he had come to know for the first time about suspicion of Abdul Hamid appellant when his father had asked the deceased about that. There is no evidence that Abdul Hamid appellant or any of his relatives had ever complained to the P.Ws. The deceased or his father that deceased was indulging in such an affair. It is also on record that the deceased was a married person and was having four children, the eldest of whom was studying in 10th Class. The lady with whom the deceased was allegedly carrying on, was allegedly suffering from Tuberculosis since childhood and was in a bad shape of health during the year 1987, i.e. The year of occurrence.
20. The recovery of the gun , from Abdul Hamid appellant does not advance the case of the prosecution in any manner as he also did not disown that he was holding the gun when the occurrence had taken place and that it was due to the cartridge which had gone off from that gun that the deceased had met death.
21. Important in this regard, is also the fact, that the appellant (Abdul Hamid) possessed licensed gun and licensed revolver. If he had any intention to commit the murder, he would have carried his own gun or revolver. The gun of Khalid Khan could have been wielded and used by Khalid Khan himself.
For all the reasons noted above, we are convinced that version of the occurrence put forth by the prosecution, was neither true nor inspired confidence. The same is, therefore, rejected.
22. Notwithstanding the fact that we have not accepted the version put forth by the prosecution, we are not convinced about the stance of Abdul Hamid that the deceased had died as a result of accidental shot, which had gone off from gun P.7 when the deceased and P.Ws. Matiullah and Zia Ullah were giving him injuries and snatching the gun from him. We have formed that view keeping in view the shape of injury, which resulted in death. It does not indicate that the shot had been fired from a very close range, which would have been the case if the gun had gone off when it was being snatched by the deceased and the P.Ws. From the appellant. We are of the view that Abdul Hamid appellant after having been attacked upon, fired the shot in self-- defence, which resulted in the death of Abdul Majid. We feel that if the appellant had been a little bit careful, he could have warded off the attack by firing in the air or could have fired at the deceased on a less vulnerable part of body. While acting in self-defence he appears to have exceeded that right. F Therefore, while setting aside his conviction and sentences under section 302, P.P.C. We hold him guilty under section 304, Part I, P.P.C., convict him thereunder and sentence him to undergo R.I. For 7 (seven) years plus to pay a fine of Rs.5,000 (Rs. Five thousand), in default whereof to undergo R.I. For six months. He shall also be given benefit of the provisions of section 382-B, Cr.P.C.
23. Since we have rejected the ocular version, the appeal qua Khalid Khan and Abid Khan appellants is accepted. They are acquitted. If they are still in IG jail, they shall be released forthwith, if not required in any other case.
24. As -we have rejected the prosecution version of the occurrence and acquitted Khalid Khan and -Abid Khan appellants, there is, therefore, no question of convicting and sentencing them for offences under section 302/34 or 307/34, P.P.C. For the same reason there is no question of convicting and sentencing Abdul Hamid under section 307, P.P.C. The revision petition, which is still at motion stage, therefore, stands dismissed.