1. The appellants were charged and tried alongwith Din Muhammad and Rana Muhammad Akber under sections 302, 307/34, P.P.C. Before the learned IIIrd Additional Sessions Judge, Karachi, who has convicted and sentenced them as under:-- (1)Under section 304/34, P.P.C. , R.I. For 10 years and to pay fine of Rs.10,000 and in default of payment of fine to suffer further R.I. For.
2. Six months.
3. (2)Under section 307/34, P.P.C.
4. R.I. For 7 years and to pay fine of Rs.10,000 each in default of payment of fine to suffer further R.I. For six months.
5. While co-accused Muhammad Akbar and Din Muhammad were acquitted vide judgment, dated 23-9-1989.
6. The brief facts giving rise to the present appeal are that on 19-7-1987, one Wazir Khan made a statement under section 154, Cr.P.C. Which was later on incorporated in 154, Cr.P.C. Book, which reads as under:-- "I do construction work. Today, of 2-30 p.m. I alongwith my friend Hakamdad had gone to Rana Akbar in Gilgit Colony, Korangi, for recovery of loan amount of Rs.15,000 from him and were sitting at the Dera of Muhammad Shafi Oadri, General Secretary. In the meanwhile, Rana Akbar came there alongwith his both sons, namely, Zulqarnain and Ghayur and one Din Muhammad Kabari (Kabari). Zulqarnain had .12 bore single barrel gun while Ghayur was armed with revolver. Rana Akbar told Muhammad Shafi that he had been defeated in election and he should clear the complete account of the company and thereafter, he should go away from there, on which Muhammad Shafi replied that he was still General Secretary legally and he will not clear the account. Rana Akbar asked his sons to kill him, accused Din Muhammad observed that the decision will be made by firing. First. Zulqarnain fired with his gun at Muhammad Shafi as a result of which Muhammad Shafi fell down on the ground after sustaining the injuries. Labourer Mumtaz Ali who was working nearby tried to pick up the injured. Zulqarnain fired on him and he received injury on his chest and as such he fell down on the ground. I, Riaz and Aurangzab tried to intervene on which Zulqarnains and Ghayur started firing indiscriminately due to which I sustained bullet injuries on my fingers of left hand and on forehead. Riaz was also injured. I snatched gun from Zulqarnain and gave a blow with the butt to Zulqarnain due to which the butt of the gun was broken.
7. Aurangzaib snatched revolver from Ghayur. I took injured Mumtaz, Muhammad Shah and Riaz to Jinnah Hospital in the Taxi of Aurangzaib but Mumtaz succumbed to his injury on the way. This incident has been witnessed by Fida Hussain Shah, Muhammad Arshad and, Pir Muhammad and other people present on the spot. I produce the gun snatched from Zulqarnain and revolver snatched from Ghayur. Legal action may be taken."
8. The above statement was recorded by Sub-Inspector Ghulam Ahmed of Police Station Korangi.
9. After recording the above statement, the same was sent to Police Station through Police Constable Muhammad Sultan Ghalib for registration of the case.
10. The above F.I.R. Was incorporated by Inspector Jamil Akhtar Kiayani P.W.9, in 154, Cr.P.C. Book.
11. Thereafter, he went to J.P.M.C. And verified the proceedings under section 174, Cr.P.C. Which were carried out by Sub---Inspector Ghulam Ahmed. He recorded statements of P.Ws. Who were present there. He then arrested accused Zulqarnain from J.P.M.C. Under Mashirnama Exh.11. He has produced the F.I.R. As Exh.33. Thereafter he sent accused Zulqarnain under custody to police station. He then went to the place of incident alongwith the complainant and prepared Mashirnama of place of incident., which has been produced as Exh.19. He also prepared sketch of place of incident, which has been produced by him as Exh.34, thereafter, he arrested Rana Akbar from Gilgit Colony in presence of Mashirs under Mashirnama which has been produced as Exh.17.
12. On search of the house of accused Rana Akbar he secured two licences of gun and revolver and prepared such Mashirnama which has been produced as Exh.18. Accused Rana Ghayur was arrested under Mashirnama which has been produced as Exh.16. Accused Din Muhammad Kabari was arrested on 24-7-1987, under Mashirnama which has been produced as Exh.22. He then produced P.Ws. Muhammad Shafi, Raja Naeem, Muhammad Irshad and Pir Muhammad before the Magistrate and got their 164, Cr.P.C. Statements recorded. He registered two separate cases under section 13-D of the' Arms Ordinance against the present appellants. He recorded 164, Cr.P.C.
13. Statements of the witnesses and after completing the investigation challaned the accused before the Court.
14. A formal charge was framed against the appellants and co-accused, to which they pleaded not guilty.
15. At the trial prosecution examined complainant Wazir Khan, P.W.1, he has produced his statement recorded under section 154, Cr.P.C. As Exh.8, Mashirnama regarding seizure of arms as Exh.9, Hakamdad P.W.2, an eye--witness, he has also produced Mashirnama of arrest and personal search of accused Zulqarnain and Ghayur as Exh.11. A.S.I.P. -Ghulam Ahmad, P.W.3, he had recorded the statement of the complainant under section 154, Cr.P.C. And carried on proceedings under section 174, Cr.P.C. He has produced the Mashirnama of dead body and inquest report as Exh.13 and Exh.14. He had also prepared Mashirnama Exh.9. Mashir Raja Naeem Akhtar, P.W.4 he has produced Mashirnama of arrest and personal search of accused Zulqarnain and Rana Ghayur as Exh.16 and Exh.17. However, he has denied that they were arrested in his presence. He has also denied that the arms were produced in his presence, but he has produced Mashirnama as Exh.18.
16. He was declared hostile and was cross-examined by the State counsel. He has also produced Mashirnama of place of Wardat as Exh.19, Mashir Pir Muhammad, P.W.5, he had acted as Mashir of dead body and inquest report. He was also an eye--witness. Muhammad Shari an eye-witness P.W.6, he has produced Mashirnama of arrest and personal search of accused Din Muhammad as Exh.22 and his 164, Cr.P.C. Statement as Exh.23. Aurangzeb an eye-witness P.W.7. Mr. Thanwar Das the then Additional City Magistrate P.W.8, he had recorded 164, Cr.P.C. Statements of P.Ws.
17. Muhammad Shafi, Raja Naim, Muhammad Irshad and Peer Muhammad which have been produced as Exh.28 to Exh.31. Jamil Akhtar Kayani the then S.H.O. Police Station Korangi, Karachi, he has produced F.I.R. Registered by him on the basis of 154, Cr.P.C. Statement as Exh.33, sketch of Wardat as Exh.34 and after completing the investigation had challaned the accused before the Court. Dr. Amanullah P.W.10, he has produced injury certificate in respect of injured Muhammad Shafi as Exh.36, injury certificate of accused Rana Zulqarnain as Exh.37 and supplementary certificate as Exh.37-A, injury certificate of complainant Wazir Khan as Exh.38, injury certificate of Riaz as Exh.39 and supplementary certificate as Exh.39-A, and post-mortem report of deceased Mumtaz Ali as Exh.40, medical certificate as Exh.40-A, separate certificate regarding cause of death issued by him as Exh.40-B and deAth certificate as Exh.40-C.
18. After close of the prosecution case, the statements of the accused were recorded in which they have denied the allegations. They have further stated that they are innocent and have been falsely implicated at the instance of Wazir Khan. Accused have also examined themselves on oath as envisaged by section 340(2), Cr.P.C. They have also examined Sultan Muhammad and Bati Khan in their defence.
19. The learned trial Judge after taking into consideration the evidence produced by the parties has convicted appellants Rana Zulqarnain and Rana Ghayyur under sections 304, 307/34, P.P.C. And sentenced them as described above, while co-accused Muhammad Akbar and Din Muhammad were acquitted. The present appeal is directed against the above judgment of conviction.
20. I have heard Mr. MA. Kazi learned counsel appearing for the appellants, Mr. Shaukat H. Zubedi learned AA.-G. Appearing for the State, and have gone through the record and proceedings.
21. It was contended by Mr. MA. Kazi learned counsel appearing for the appellants that the case was false and was the result of enmity. He has further contended in the alternative that appellant Rana Zulqarnain had also sustained injuries in the fight and therefore, he had a right of private defence.
22. That in case a different view is taken, then there was no intention to kill the deceased, the fight was sudden and the appellant Zulqarnain has remained in custody for nearly three years and therefore, the substantive sentence may be reduced to one already undergone. He has further contended that there was no evidence against Rana Ghayyur and he was entitled to acquittal.
23. Mr. Shaukat H. Zubedi learned AA.-G. Appearing for the State has contended that there was sufficient evidence against Rana Zulqarnain and he was rightly convicted. However, he was also of the view that looking to the facts and circumstances of the case the sentence of Rana Zulqarnain may be reduced. As far as appellant Rana Ghayyur was concerned he did not support the contention and was of the view that the case against him was doubtful, and therefore, he was entitled to acquittal.
24. I have considered the contentions. The evidence of Dr. Amanullah P.W.10 shows that deceased Mumtaz and P.Ws. Muhammad Shafi and others had sustained following injuries:-- Deceased Mumtaz Ali Multiple small fire-arm injuries more than 100 on front of chest, abdomen, neck and right arm, more on the chest about 1/6" in diameter, margins rough and inverted (wound of entry).
25. Internal Damages
(1) Chest cavity full with blood.
(2) Multiple punctures in both lungs.
(3) Two holes in heart found, and heart was empty.
26. Stomach contained digested food.
27. The death was due to cardio respiratory failure due to severe haemorrhage and shock resulting due to fire-arm injuries on chest. Time between death and post-mortem about 3 to 4 hours.
28. 8 pellets were recovered from the dead body which were sealed and handed over to S.I. Ghulam Ahmed.
29. Injured Muhammad Shafi
(1) 8 small fire-arm injuries in the area of right shoulder upto right elbow joint 1/6" in diamdeter margins rough and inverted.
(2) Two small fire-arm injuries below right clavicle region 1/6" in diameter, inverted.
(3) One small fire-arm injury 1/6" in diameter at right illiac fossa.
(4) Three small fire-arm injuries on the front of neck 1/6" in diameter, margins rough and inverted.
30. According to the Medical Officer injuries were simple in nature and appeared to have been caused by fire-arm.
31. Complainant Wazir Khan
(1) 5 small fire-arm injuries 1/6---, in diameter on left hand, margins rough and inverted.
(2) One small fire-arm injury 1/6" in diameter on right hand, margins rough and inverted.
(3) Lacerated wound left forehead 2" x 1/4" x 'muscle deep.
32. All the injuries were simple in nature. Injuries Nos.1 and 2 appeared to have been caused by fire- arm while injury No.3 was caused by hard and blunt object. Injuries were fresh in nature.
(1) 8 small fire-arm injuries 1/6" in diameter on right elbow and upper 2/3 right forearm, margins rough and inverted.
(2) Two small fire-arm injuries about 1/6" in diameter on back of left lower chest, margins rough inverted. The injuries appeared to have been caused by fire-arm.
33. Ranu Zulqarnain
(1) Contusion just above righ elbow 4" x 2".
(2) Contusion lower 1/3" right forearm.
34. The injuries were fresh and appeared to have been caused by hard and blunt object. The same were simple in nature.
35. I have considered the contentions and have gone through the R&P of the case very carefully.
36. Complainant Wazir Khan P.W.1 has not supported the prosecution as far as the allegation regarding firing by the appellants was concerned. He has specifically stated that `we were sitting in the `Dera' and in the meantime heard noise of firing from our backside. Due to this firing Muhammad Shafi, Riaz and Mumtaz who is deceased now received injuries. I also received injuries on account of the firing on my left hand as well as on my forehead. I started running from the Dera of Muhammad Shafi in order to catch gun. I snatched gun from the hands of accused Zulqarnain while Aurangzeb snatched revolver from the hands of accused Ghayyur. I hit accused Persons with the butt of gun.
37. In cross-examination he has stated that he had heard firing from one side. He could not say as to how many persons were firing outside the Dera. He had produced the revolver and gun before the police at police station. In his presence the gun, and revolver were not sealed. However, he was not declared hostile nor cross-examined by the A.P.P. Hakamdad P.W.2 had also not supported the prosecution regarding firing by the accused/appellants. However; he was neither declared hostile nor cross--examined. He had stated that the police had arrested accused Zulqarnain and Ghayyur and he acted as Mashir. He has produced the Mashirnama as Exh.11 S.I.P. Ghulam Ahmed P.W.3, had received wireless message that Dr. Amanullah had rung up the police that one injured was brought to the hospital who has died. He went to the hospital and prepared Mashirnama of dead body and inquest report which have been produced by him as.Exh.13 and ExhA4. He also recorded statement of Wazir Khan under section 154, Cr.P.C. The gun and revolver were produced before him by the complainant and he had prepared Mashirnama Exh.9. Mashir Raja Naim Akhtar had acted as Mashir of arrest of accused Muhammad Akbar and Rana Ghayyur and has produced the Mashirnamas of arrest as Exh.16 and Exh.17, however, he has - denied contents thereof and has stated that he never acted as Mashir. He had also acted as Mashir of production of weapons and has produced Mashirnaraa as Exh.18 but has stated that the contents are not true. He had also aceted as Mashir of place of Wardat, and has produced the Mashirnama as Exh.19: He was declared hostile and cross-examined by A.P.P. Mashir Din Muhammad P.W.5, he had acted as co- Mashir of Mashirnama of dead body and inquest report Exh.13 and Exh.14. He had also acted as Mashir of place of Wardat.
38. Injured Muhammad Shafi, he has deposed that on 19-7-1987 Wazir Khan, Hakamdad and taxi- driver Aurangzeb came to his Rera. They called Rana Muhammad Akbar at his Dera and started talking with each other. During their talk there was exchange of hot words between them, in the meanwhile Rana Ghayyur and Rana Zulqarnain alongwith 5/6 other persons came and had dispute with him on account of Anjuman as he was General Secretary of Anjuman Falah-o- Bahbood Gilgit Colony. Rana Zulqarnain was armed with .12 bore gun, whereas Rana Ghayyur Ahmed and the remaining persons were armed with pistol, revolver, and shotgun. They started firing and some pellets hit on his neck, shoulder and face. P.W. Wazir Khan was also injured. One labourer namely Mumtaz was working opposite to his Dera, who also received pellet and bullet injuries on the front part of his body. They were removed to J.P.M.C. By taxi-driver Aurangzeb, Mumtaz died: on the way to the hospital. P.W., Wazir was discharged on the same day after treatment, while he remained in the hospital for two days. He has produced Mashirnama of arrest and search of accused Din Muhammad as Exh.22. He has also produced his 164, Cr.P.C. Statement as Exh.23. Accused Din Muhammad was not present at the time of incident nor he was arrested in his presence. In cross-examination he has admitted that he had stated before the police as well as before the Magistrate whatever was disclosed to him by P.W. Wazir Khan. He went unconscious on receipt of pellet injuries. He could not say due to whose firing he sustained injuries.
39. Aurangzeb P.W.7'has deposed that on 19-7-1987 at 3 or 4 p.m. He was sitting in his taxi at Gilgit Colony. P.W. Wazir Khan took him to his Jhuggi where 3/4 persons were already sitting. Wazir Khan went inside the Jhuggi while he remained present in his taxi outside Jhuggi. After 5 minutes accused Rana Akbar came alongwith his sons Zulqarnain and Ghayyur and one Din Muhammad.
40. There was some talk between Muhammad Shafi, Rana Akbar and his sons and there was exchange of hot words between them. In the meantime he heard gun reports and went to the place of firing and saw that Rana Zulqarnain and Rana Ghayyur alongwith other persons-were firing at the persons sitting in the Jhuggi. He and Wazir Khan went near the accused, Wazir Khan snatched gun from the hands of Zulqarnain, while he snatched revolver from Ghayyur. Wazir Khan gave butt blows to Zulqarnain and the gun was ~r broken. Shafi and Mumtaz had received injuries. He and Wazir Khan took the injured in taxi to the hospital. Mumtaz died outside the hospital. Wazir Khan went to the police station and lodged his report. In cross-examination he has deposed that. He, P.W. Wazir Khan and P.W. Hakamdad come from Hazara but they are not related inter se. Rana Ghayyur was not present at the time of incident but he came later on.
41. Mr. Thanwar Das A.C.M. P.W.8 had recorded 164, Cr.P.C: statements of witnesses Muhammad Shafi, Raja Naim, Muhammad Irshad and Pir Muhammad, and has produced the same as Exh.28 to Exh.31.
42. Inspector Jamil Akhtar Kayani the then S.H.O. Of Police Station Korangi, Karachi P.W.9 had verified the investigation carried on by S.I. Ghulam Ahmad. He had registered the case on the basis of 154, Cr.P.C. Statement and has produced the F.I.R. As Exh.33. He had prepared Mashirnama of place of Wardat which has been produced as Exh.19. He had also prepared sketch of the place of incident which he has produced as Exh.34. He had arrested accused Rana Akbar vide Mashirnama Exh.17. He had also secured two licences of gun and revolver from the house of accused Rana Akbar and the Mashirnama has been produced as Exh.18. He had registered the cases under section 13-D of the Ordinance against the two appellants and had also recorded statements of witnesses, and thereafter, challaned the case before the Court: In cross-examination he has deposed that the gun in question was in the name of Nizamuddin, while revolver was in the name of Zulqarnain. Accused Zulqarnain was injured when he arrested him from the hospital. He had recorded his statement but did not register any case on the basis of his statement.
43. The evidence of all the witnesses shows that there was exchange of hot words between the parties before the fight took place. The evidence of Wazir Khan complainant shows that they were fired at from outside and he has not named any person who fired at them. The evidence of P.W. Hakamdad also shows that the firing started outside due to which the witnesses and the deceased were injured. The evidence of P.W. Muhammad Shah shows that the accused had gone to his Dera alongwith 5/6 persons and all of them were armed with fire-arms. They started firing and he also sustained injuries so also the witnesses and deceased. He has not specifically stated as to who fired at him and at the witnesses. Aurangzeb P.W.7 has stated in his examination-in--chief that he saw the two appellants alongwith other persons firing on the persons sitting in the Jhuggi but in cross-examination he has stated that 'Rana Ghayyur was not present at the time of incident but he came later on'.
44. From the evidence it is clear that the fight took place all of a sudden and there was exchange of hot words between the, parties therefore the fight took place. None of the witnesses have specifically stated that appellant Rana Ghayyur had fired at a particular person. P.W. Aurangzeb has stated in cross-- examination that Rana Ghayyur was not present at the time of incident but he came later on. It is also an admitted position that there was a dispute between the parties over accounts of Anjuman and their relations were stained. In this view of the matter I am of the considered view that the case against appellant Rana Ghayyur is doubtful and therefore, while extending benefit of doubt to him, his appeal is allowed, his conviction and sentence are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.
45. As far as appellant Rana Zulqarnain is concerned, all the witnesses are unanimous except Wazir Khan and Hakamdad that appellant Zulqarnain had fired alongwith other persons and a gun was also secured from him, He had also sustained injuries in the fight and therefore, his presence in the fight at the time of incident stands proved, and therefore, he has been rightly convicted. However, looking to the facts and circumstances of the case, including the fact that he himself was injured in the incident, I reduce his substantive sentence under section 304, fart I, P.P.C. From 10 years to 5 years. However, sentence of fine of Rs.10,000 is maintained, in default whereof he shall suffer further R.I. For six months. As far as conviction under section 307 is concerned, injuries sustained by the witnesses are simple in nature and p therefore, the same is altered from section 307, P.P.C. To section 324, P.P.C. And the sentence is reduced from 7 years to 3 years. The two sentences shall run concurrently. The appellant shall be entitled to the benefit of provisions of section 382-B, Cr.P.C.
46. The appeal of Rana Ghayyur is allowed and he is acquitted of the charges, while appeal of appellant Rana Zulqarnain is dismissed with modification in sentence.
47. I had decided the above appeal by a short order on 9-4-1991 and these are the reasons for the same.