ABDUL MAJEED MALLICK, CJ.-Abdul Razaq, Taj Muhammad, Noor Ahmad, Mahboob Khan and Mst.
Resham Jan (deceased), accused, were tried on the charge of murder of Khan Muhammad Khan deceased, infliction of injuries on Muhammad Shafait Khan and attempt to murder by forming unlawful assembly, under sections 5, 15, Islamic Penal Laws Act, read with Sections 307, 149,148 and 147, APC. Mst. Resham Jan died during the trial. Noor Ahmed Khan and Mahboob Khan were acquitted. Abdul Razaq was convicted on the charge of murder and was awarded sentence of 'diyyat' in the sum of Rs. 1.00,000/-, payable to the legal heirs of Khan Muhammad Khan deceased.
Taj Muhammad was convicted on the charge of infliction of injuries on Muhammad Shafait and was awarded sentence of 'Hakoomat-a-Adal', in the sum of Rs.10,000/-, payable to Mohammad Shafait Khan, the injured person. The order of Conviction was passed by the District Criminal Court, Bagh, on August 26,1980. The convicts, the complainant and the State preferred appeals and revision before this Court. The appeal and revision petition addressed against the order of the District Criminal Court, were turned down by this Court vide its order passed on February 12,1984. On appeal before the Supreme Court by Abdul Razaq and Muhammad Shafait, the injured person, the order of conviction passed by the trial Court and its approval by this Court, was set aside, on May 2,1988 and the case was remanded to the District Criminal Court, for making purgation in the light of the observations of the Supreme Court. On the second round, by complying with the dictum of the Supreme Court, the District Criminal Court once again found the accused-respondents guilty and maintained its finding resulting in conviction of Abdul Razaq and Taj Muhammad Khan. The order was passed on September 30, 1990. This order, again, has been assailed by the convicts through an appeal and by the state, by revision, for enhancement of the sentence. As both the matters arise out of the common order, these are, therefore, disposed of together.
2. The incident of murder took place on October 10,1977, at morning time at Dawakan, Baran, village Sahlian, Police Station, Dhirkot. Muhammad Habib made a report to the effect that it was 7 O' Clock in the morning when he was informed at his house by Mst. Zabeel Begum, wife of Muhammad Shafait,' that Khan Muhammad Khan, her father-in-law and Muhammad Shafait, her husband, went to the house of Taj Muhammad. There was hue and cry about the fight, as such she asked him to reach on the spot. On arrival on the scene' Muhammad Shafait, Khan Muhammad Khan and Taj Muhammad Khan were found injured. Khan Muhammad was unconscious and in the state of death. Muhammad Shafait informed him that he got up early in the morning, to report back on his duty. He was accompanied by his father. On his way, he went to see Mst. Goreza Begum his sister.
Mst. Goreza Begum was wife of Taj Muhammad. During those days, Mst. Goreza Begum and Taj Muhammad lived in the house of Mahboob Khan, brother-in-law of Taj Muhammad. On reaching near the house of Mahboob Khan, he called his sister to come outside. Taj Muhammad came out of the house. He was carrying a hatchet. Taj Muhammad said that he could riot see his sister. There was exchange of hot words between them. Meanwhile, Noor Ahmed, Abdul Razaq and Mahboob, also arrived on the scene. They were followed by Mst. Rasham Jan, wife of Mahboob. Abdul Razaq and Noor Ahmed carried their hatchets while Mahboob was armed with pistol. They assaulted on Khan Muhammad. Noor Ahmed caught Khan Muhammad when Abdul Razaq struck a hatchet blow on his head. Khan Muhammad fell down. He was grabbed by Mst. Resham Jan and Noor Ahmed.
Mahboob, accused fired with his revolver on Muhammad Shafait, by hitting him on arm. Taj Muhammad struck a hatchet blows on face and head of Muhammad Shafait. In order to defend him, Muhammad Shafait fired with his 12-bore gun which hit Taj Muhammad. Khan Muhammad expired on spot. The incident was seen by Mst. Goreza Begum. Thereafter, Senaullah, Lambardar Sultan Ahmed, Muhammad Aziz and others also arrived on the scene who were appraised of the incident.
3. The accused pleaded not guilty. Abdul Razaq, Mahboob Khan and Noor Ahmed, pleaded alibi. Taj Muhammad pleaded not guilty and explained that he was engaged in absolution for morning prayer when Khan Muhammad and Muhammad Shafait attacked him. They wanted separation of Mst. Goreza Begum, his wife. Muhammad Shafait carried a gun and camouflaged his face to hide his identification. He fired on the accused by hitting on his body. They grappled with each other, in consequence of which the gun was broken. Khan Muhammad deceased was carrying a hatchet.
Muhammad Shafait took the hatchet from his father and attempted to kill him. The accused moved aside, on which the blow struck on Khan Muhammad. The incident took place in the door of the residence of Mahboob Khan. Khan Muhammad, and Shafait attacked on the accused, to kill him. Mst. Rasham Jan explained that she was sleeping in the house alongwith her children. On hearing the firing, she came out of the house and found Taj Muhammad lying injured. Khan Muhammad was also lying injured, but Shafait was standing near them.
4. The prosecution produced Muhammad Habib, who made the first information report, Muhammad Shafait, the injured person, Mst. Goreza Begum wife of Taj Muhammad, accused convict, Mst. Baggi, widow of Khan Muhammad deceased, Muhammad Aziz Khan, Lambardar Sultan Khan, Ali Akbar Khan, Head Constable, Sher Afzal, Head Constable, Sardar Muhammad Ashraf, Sub- Inspector, Raja Muhammad Saeed Khan, S.L, Munshi Lal Khan, Patwari, & Dr. Muhammad Rahim, C.M.O., Rawalakot. Muhammad Arif, Muhammad Azad, Sanaullah, Mst. Zabeel Begum, Imtiaz, Muhammad Shah, Constable Muhammad Yunus, Constable, were given up. In defence, the convicts produced Abdul Hussain and Abdul Rehman.
5. Sardar Muhammad Arif Khan, the learned Counsel for the defence contended that the deceased and Muhammad Shafait, the injured person, in consequence of their preconcert, attacked Taj Muhammad, to kill him. They wanted to eliminate him on account of marriage of Mst. Goreza Begum with Taj Muhammad, against their consent. They were aggressors. Taj Muhammad was justified to inflict injuries on the complainant party, in-exercise of his right of private defence. It was emphasised that the prosecution witnesses were related, interested and inimical. Their evidence was not supported by any independent corroboration. Moreover, the prosecution evidence suffered from material contradictions. Reference was made to different parts of the evidence of the witnesses, in support of points raised by the learned Counsel for defence. Sardar Muhammad Sadiq Khan, the learned Additional Advocate General controverted the aforesaid points by supporting the impugned order. It was argued that in view of the manner, place and time of incident, the plea of self defence was not available. Moreover, the defence was unable to justify its action of killing of Khan Muhammad.
6. Three sets of evidence have been produced by prosecution, (i) direct evidence of eye-witnesses, namely, Muhammad Shafait Khan, the injured person and Mst. Goreza Begum, ii) evidence of witnesses who immediately arrived on the scene, namely, Habib Khan, Mst. Baggi, Muhammad Aziz Khan and Lambardar Sultan Muhammad, and (iii)medico legal report and recoveries.
7. The first objection of the defence is that the deceased and Muhammad Shafait Khan, the injured person, were aggressor as they trespassed in the premises of Mahboob Khan, the acquitted accused, with the intention to murder Taj Muhammad Khan, convict. In support of the contention, reference was made to the evidence of Habib Khan, Mst. Baggi and Muhammad Saeed Khan, Sub- Inspector.
8. It is enjoined upon the prosecution to prove its case beyond reasonable doubt. Thus, the initial onus of proof lies on the prosecution. In the present case, the prosecution produced Muhammad Shafait Khan. He is an injured witness. He sustained 7 injuries, out of which injury No.1 was grievous.
The presence of Muhammad Shafait Khan in the incident is undisputed. He testified that he was serving in the Army. He had come on 2 months' leave. Mst. Goreza Begum, his sister was married to Taj Muhammad Khan. On account of strained relations, she was not allowed to see him. In view of this background, on completion of his vacations, while on way to Kohala, he decided to call upon his sister. He was accompanied by Khan Muhammad Khan, his father. Both of them, on reaching near the house of Mahboob Khan where Taj Muhammad Khan and Mst. Goreza Begum resided during those days, he called her sister to come out, to see him. On his call, Taj Muhammad came out first and said that he would not allow his wife to see him. There was exchange of words which resulted in assault by Abdul Razaq and Noor Ahmed, the brother and father of Taj Muhammad Khan who also appeared on the scene. Abdul Razaq struck a hatchet blow on the head of Khan Muhammad. He fel1. Down and was grabbed by "Noor Ahmed and Mst. -Rasham Jan. Mahboob Khan fired with his pistol on Muhammad Shafait which hit on his left arm. He was about to fire again when Muhammad Shafait, in self defence, fired with his 12-bore gun which hit Taj Muhammad Khan instead of Mahboob Khan. Thereupon, Taj Muhammad Khan fell down.
Meanwhile, the witnesses arrived on the scene. He was subjected to lengthy cross-examination.
The witness categorically deposed that the place of incident was the State land and not the court- yard of Mahboob Khan. He was corroborated by Mst. Goreza Begum, wife of Taj Muhammad Khan and sister of Muhammad Shafait Khan. The presence of Mst; Goreza Begum was also undenied. He also gave the details of incident and deposed that she was taking test along with her husband, inside the house of Mahboob Khan when her brother (Muhammad Shafait Khan) called her outside.
Taj Muhammad Khan came out of the room and started row with Muhammad Shafait Khan.
Meanwhile, Mahboob Khan and Mst. Rasham Jan also reached. Mahboob Khan was armed with pistol. Noor Ahmed, Abdul Razaq also arrived on the scene. They carried hatchets. Noor Ahmed grabbed Khan Muhammad from his neck when Abdul Razaq struck a hatchet brew on the head of Khan Muhammad. Taj Muhammad Khan, her husband, struck a hatchet blow on the parietal bone of Muhammad Shafait Khan. Abdul Razaq also inflicted a hatchet blow on the back of Muhammad Shafait Khan. Mahboob Khan fired on Muhammad Shafait with his pistol which hit on his arm.
Mahboob was about to fire second time when Muhammad Shafait fired with his 12-bore gun on Mahboob Khan, but instead of Mahboob Khan, Taj Muhammad Khan was hit with the pellets. After the occurrence, Mst. Baggi, her mother, Habib, Sanaullah, Muhammad Aziz and Sultan Muhammad, Lambardar, arrived on the scene. Khan Muhammad succumbed to the fatal injury. Khan Muhammad deceased, Muhammad Shafait and Taj Muhammad Khan were put on cots and were shilled in the court-yard of Mahboob Khan.
9. Both the eye-witnesses of the incident were in agreement that the place of incident was the State land and not the court-yard of Mahboob Khan as claimed by defence. The testimony of the eye-witnesses was further corroborated by the evidence of Sultan Muhammad, Lambardar who was impartial and disinterested person. It is, therefore, well established that the place of incident was not the court-yard of the house of Mahboob Khan, the acquitted accused. The plea of aggression raised by defence finds no support from the evidence on record. The defence evidence was equally insufficient to support the plea of defence.
10. Taj Muhammad Khan, convict, in his statement under Section 342, Cr.P.C, disclosed that he was busy in doing absolution for morning prayer when the deceased and Muhammad Shafait attacked him inside the door of room he occupied at the time.
11. The rule of law is that the statement of an accused is taken into consideration as a whole and not in parts. Thus, in order to bring the case of defence within the scope of one of the exceptions, the statement of the accused was to be read as a whole along with the circumstances appearing from the record, to accept or reject the plea of defence.
12. In the present case, the statement of Taj Muhammad Khan-accused, was not supported by any circumstance, so as to accept is probable or plausible, to sustain the plea of aggression ascribed to the complainant party. The defence was unable tp dig. Out anything out of the evidence of Muhammad Shafait Khan and Mst. Goreza Begum and other witnesses, so as to satisfy that the plea of defence was plausible and the case of defence fail within the scope of one of the exceptions available under law.
13. The second objection of defence pertained to plea of self defence. It was emphasised that Taj Muhammad, accused-convict, was justified to inflict blows on Muhammad Shafait and Khan Muhammad, to ward off danger to his life. The contention was not sustainable.
14. The question of right of self-defence is necessarily the question of fact. It has to be decided in the light of circumstance of each case. Where the right of private defence is claimed by an accused, such right has to be inferred from the statement of the accused coupled with defence evidence, if any, and circumstances which arise out of the testimony of the prosecution witnesses.
15. It is that necessary that an accused should plead right of self-defence in his statement or by leading defence evidence. Such right may be claimed even on the basis of the inference flowing, from the prosecution's evidence.
16. In the present case, Taj Muhammad Khan, convict, alone pleaded right of self-defence while Abdul Razaq, the other accused, pleaded alibi. In the circumstances, the question of self-defence raised on behalf of Taj Muhammad Khan has to be ascertained from (i) his statement made under Section 342, Cr.P.C, (ii) defence evidence and (iii) the evidence of prosecution. It is already noticed that the statement of the accused finds no support from the record. The tendency of cross- examination of the defence is quite different from the plea raised by the accused in his statement.
The accused nowhere admitted the infliction of injuries on the deceased at his hand. It was explained that the accused was attacked by Khan Muhammad deceased and Muhammad Shafait. Muhammad Shafait fired on him which struck on the body of the accused. They grappled with each other and the accused tried to snatch the gun from Muhammad Shafait Khan. The gun was broken into pieces. Khan Muhammad was carrying a hatchet. Muhammad Shafait took the hatchet from him and tried to strike it against the accused who shifted from the place of target, on account of which the hatchet fell on the head of Khan Muhammad. The statement of the accused, therefore, does not admit the inculpatory part of infliction of injuries to the deceased at the hand of accused. It rather shifts the burden Of infliction of fatal injury at the hand of Muhammad Shafait.
The defence failed to make such suggestions to Muhammad Shafait and Mst. Goreza Begum, in their cross- examination. That suggests that the plea of self-defence in the line of statement of accused was an after-thought.
17. Khan Muhammad, according to prosecution received fatal injury at the hand of Abdul Razaq, convict. Both the eye-witnesses were unanimous on that part of the accusation. The defence failed to create any discrepancy or shatter the testimony of eye-witnesses, on that score. Besides, in the light of plea of defence, Abdul Razaq could not claim right of private defence of his person or that of Taj Muhammad Khan who was injured in the incident. The evidence shows that Khan Muhammad was attacked first of all, by Abdul Razaq and Noor Ahmed. It was after infliction of fatal injury to him that Muhammad Shafait and Taj Muhammad were injured in the incident. Thus, it cannot be argued that at the time of infliction of fatal injury to Khan Muhammad, Abdul Razaq caused a hatchet blow to Khan Muhammad on account of reasonable apprehension of danger to the person of Taj Muhammad and Abdul Razaq. Therefore, the plea of right of self-defence to the extent of Khan Muhammad deceased was not available in the case.
18. Muhammad Shafait also received injuries. The number of injuries sustained by him is 7. Out of these injuries, injury No.1 was given grievous. Taj Muhammad Khan received 3 injuries. All the injuries were caused with pellets. The nature of injuries was simple, as the depth of pellets was only skin deep. According to evidence of Mst. Goreza Begum, Muhammad Shafait fired on Mahboob Khan when he was already injured by the firing of Mahboob Khan and hatchet blows caused by Taj Muhammad. The defence failed to question the testimony of the witnesses on this score.
Muhammad Shafait also explained the position of his firing with 12-bore gun. It was stated that he opened fire when he was already hit with the firing of Mahboob Khan with his revolver. That suggests that Muhammad Shafait fired with his 12-bore gun when he had already sustained injuries at the hand of accused party. So that as it amy, the defence has admitted that there was grappling between Taj Muhammad and Muhammad Shafait, during which the gun was broken into pieces. In case of the gum was broken after sustaining injury of Taj Muhammad Khan, in that case, the right of private defence to Taj Muhammad, against Muhammad Shafait deceased to exist. As Muhammad Shafait was disarmed, there remained no apprehension of danger from him to the person of Taj Muhammad. Therefore, Taj Muhammad had no reason to inflict injuries on the person of Muhammad Shafait, after disarming him. In case Muhammad Shafait received injuries prior to breaking of his gun, in that case, he was justified to fire on Mahboob Khan, resulting in infliction of injuries to Taj Muhammad. In both the cases, as noticed from the circumstances of the case, the accused were not justified to cause injuries to Muhammad Shafait. This view finds support from Fazed Dad's case (PLD 1956 Lahore 33).
19. Sardar Muhammad Arif Khan, the learned Counsel for defence argued that the ocular evidence rested on testimony of related, interested and inimical eye-witnesses. Therefore, it was not safe to, record conviction on such evidence unless it was corroborated by independent evidence.
20. The rules of evidence nowhere provide that the evidence of related witnesses is to be discarded outrightly on account .Of mere relationship. The consensus is that the testimony of related and interested witnesses is to be construed strictly and as a rule of abundant caution, independent corroboration may be asked for, where such evidence could be available.
21. In the present case, Muhammad Shafait and Mst. Goreza Begum are brother and sister. Khan Muhammad was their father, in view of the location, time and manner of incident, the parties do not dispute the absence of independent witnesses in the case. Mst. Goreza Begum was wife of Taj Muhammad Khan, her presence at the place of incident is undenied. The fact of the matter is that Muhammad Shafait, and Khan Muhammad wanted to see her before departure of Muhammad Shafait. In the circumstances, the presence of both the eye-witnesses is natural, probable and admitted. Their evidence has been strictly scrutinized to establish the guilt of the accused persons, as free from doubt and suspicion. Their testimony finds corroboration from the evidence of Sultan Muhammad, Lambardar. He is an impartial and disinterested witness. The material particulars of the incident were disclosed by this witness in the light of information he received from Muhammad Shafait, on his arrival on the scene, immediately after the incident. It was further corroborated by Habib Khan who lodged the first information report. Besides that, the medical evidence and the site plan prepared at the instance of Mst. Goreza Begum, lend full support to prosecution version. In the circumstances, the prosecution's case could not be thrown out, merely on account of relationship, .Interest or strained relationship between the parties.
22. According to prosecution, the visit of Muhammad Shafait to see his sister, was quite natural as she was not allowed by her husband to see her parents and brother. Mst. Goreza Begum was subjected to very lengthy cross-examination on this aspect of the case and her answers fully satisfied the state of relationship of the parties, as claimed by prosecution. Therefore, there was no reason to entertain the suspicion or doubt, to hold that Muhammad Shafait had valid cause to visit the place of incident.
23. The defence endeavoured to shift the time of occurrence, showing thereby that Muhammad Shafait and Khan Muhammad, deceased, in fact, wanted to kill Taj Muhammad, as they were unhappy in his marriage with Mst. Goreza Begum. Various suggestions were put to Mst. Goreza Begum in that direction. The fact of the matter is that prosecution's evidence was quite sufficient to hold that the alleged incident took place at the time of sunrise and not predawn lime, as suggested by the defence. Muhammad Aziz, Sultan Muhammad, Habib Khan and other witnesses fully corroborated the prosecution's case on that score. '
24. The trial Court convicted Abdul Razaq on the charge of murder and awarded him sentence of 'diyyat' in absence of requisite standard of evidence, required for awarding sentence of 'Qisas'. The finding of the trial Court docs not suffer from any error of law or fact on that score. It is, therefore, affirmed. Taj Muhammad accused was also found guilty on the charge of infliction of injuries to Muhammad Shafait and was imposed sentence of 'diyyat' in the sum of Rs. 10,000/-. The defence was unable to challenge the finding of the trial Court on that score. As the plea of self-defence or the act of aggression attributed to the deceased and Muhammad Shafait, was not found plausible and probable, the sentence awarded to Taj Muhammad accused is also not found defective. The appeal of the convicts 'stands dismissed. However, in view of nature of injuries sustained by Muhammad Shafait, the amount of diyyat' is reduced to Rs.2,000/-, payable by Aaqle of Taj Muhammad.
25. The state also preferred a revision petition for enhancement of sentence of the convicts. The petition was not pressed by the learned Additional Advocate General, in support of enhancement of sentence. It, therefore,, merits no consideration and stands dismissed.
26. Abdul Razaq, convict-appellant shall pay the amount of 'diyyat' in the sum of Rs.1,00,000/- as determined by the trial Court, to the legal heirs of Khan Muhammad deceased, by three instalments. The first instalment shall be paid by July 5th, 1992. The second instalment shall be paid by July 5th, 1993 and the third instalment by July 5,1994. Taj Muhammad convict-appellant shall pay the amount of 'diyyat', in the sum of Rs.2,000/'- to Muhammad Shafait, injured person by one instalment, the same shall be paid by July 5, 1992. The convict-appellants shall furnish bail bond consisting of two sureties who shall undertake the responsibility of payment of 'diyyat' in the light of the order of the Court. In case of their failure to furnish bail bond to the satisfaction of Registrar Shariat Court, they shall remain in the Judicial Lock-up. The appeal against conviction and petition for enhancement of sentence are disposed of accordingly.