' JUSTICE RAJA AFRASIAB KHAN (MEMBER).--- Muhammad Siddiq son of Jan Muhammad, Shabbir Hussain and Nadeem Hussain sons of Muhammad Siddique and Muhammad Muslim son of Muhammad Sharif, were tried by the learned Special Court for Speedy Trials, Multan, in a case having been registered against them under sections 452/34, 324/34, 302/34 and 354, P.P.C. At Police Station Sadar Sadiqabad, vide F.I.R. No,11/92, dated 20-1-1992. The learned trial Judge vide his judgment, dated 8-11-1992, acquitted all the accused on the ground that they committed the murder of Muhammad Mansha and Sarfraz in the exercise of their right of private defence.
Aggrieved by these findings the State has filed this appeal before this Court against acquittal of the above-named accused/respondents.
2. The facts as alleged in the F.I.R. Lodged by Allah Yar complainant son of Abdul Sattar are that he being a resident of Chak No,186/P, District Rahimyar Khan, his house was situated in the centre of the village. He used to earn his livelihood by cultivating the land of Muhammad Akram Gujjar as his tenant. Nadeem Hussain respondent son of Muhammad Siddiq also being a resident of the same village, used to often pass in front of his (complainant) house, playing obscene songs in louder tone on the tape-recorder mounted on his tractor and often teased his daughter-in-law, Mst.
Farhana Bibi, whenever he came across her in the village. Nadeem Hussain respondent was many a time asked to desist from doing so, but he continued his nefarious activities uninterrupted. On 20-1-1992 at about 7-30 p.m. When he (complainant) was present in his house alongwith his other family members, he was attracted by an alarm having been raised by his daughter-in-law Mst.
Farhana Bibi P.W. From the courtyard where she was washing the utensils. It was a moonlit night.
Reaching near her, he saw Nadeem Hussain respondent having caught her by the arm and she was trying to release herself from his clutches. Allah Yar complainant's elder brother Muhammad Mansha, his nephew Sarfraz and his cousins Malla and Ali Sher also came out from their nearby houses situated in the same premises. They got Mst. Farhana Bibi P.W. Released from the grip of Nadeem Hussain respondent and, after overpowering him, made him sit in a corner of their house.
After a while when they were just discussing the incident, Muhammad Siddiq respondent, the father; Shabbir Ahmad respondent, the brother; and Muslim respondent, the cousin, respectively, of Nadeem Hussain respondent, entered the house of the complainant. Muhammad Siddiq respondent was armed with an iron bar (Sarya) and the two other respondents were carrying .12 bore guns. No sooner as they stepped into his house, than they shouted at Allah Yar, saying that in case he wished to remain alive, he would have to release Nadeem forthwith. The complainant party refused to oblige them and instead stated that Nadeem had made an attempt to outrage the modesty of Mst. Farhana Bibi. They insisted to take Nadeem to the police station for a legal action to be taken against him. Muhammad Siddiq shouted that Allah Yar should be taught a lesson for taking Nadeem to police station. Muhammad Siddiq gave a Sarya blow which hit Sarfraz on his head. He fell down. Muslim fired which hit Sarfraz on his chest. Shabbir Ahmad fired at Muhammad Mansha and injured his left thigh. He also fell down. Allah Yar went ahead with a view to separate them. Nadeem came forward and dropped him on the ground. Muhammad Siddiq inflicted blows upon Allah Yar with his Sarya, causing two injuries, one on the left elbow and the other on the left forearm. Shabbir Ahmad fired and injured his left leg. Ali Sher and Malla also came forward to help the victim. However, Nadeem and his father shouted that in case they came near, they would also be done to death. They were pushed aside. The accused after committing the crime, left the house and ran away with their weapons. Muhammad Siddiq, Sher Muhammad and other people of the village also came there on hearing the alarm. Muhammad Mansha and Sarfraz died on the spot on account of their injuries. Muhammad Siddiq and Sher Muhammad were left behind to guard the dead bodies while Allah Yar in an injured condition alongwith Noor Muhammad, Abdul Khaliq, Liaqat Ali Khokhar, Abdul Haleem and Maratab Ali came to the police station to give information about the incident. It was mentioned that in the incident, Muhammad Siddiq, Nadeem and Shabbir Ahmad etc., were also injured.
3. Bashir Ahmad, Inspector P.W.10 recorded the F.I.R. Exh.P.S. On 20-1-1992 in the police station. He prepared injury statement (Exh.P.R.) of Allah Yar. The injury statements and inquest reports of Sarfraz and Mansha deceased (Exh.P.L., Exh.P.M., Exh.P.N. And Exh.P.O.) were prepared by the police officer by going to the spot. The dead bodies were sent to the mortuary for conducting their post- mortem examination through Muhammad Riaz, Constable. Blood-stained earth was collected. It was sealed into separate parcels. Three empties (Exh.P.10 to Exh.P.12) were collected from the spot and taken into possession vide memo. Exh.P.F. Siddiq, Muslim and Shabbir accused were arrested by the police officer on 4-8-1992. Siddiq and Shabbir accused were got medically examined on 7- 2-1992. Muslim accused led to the recovery of gun P.13 from his house which was taken into possession vide memo. Exh.P.G. On the same day, Shabbir accused led to the recovery of double barrel gun P.14 which was taken into possession vide memo. Exh.P.H. Siddiq accused also got recovered a Sarya which was found to have been stained with human blood. It was taken into possession vide memo. Exh.P.J. Reports of the Chemical Examiner and Serologist were reported as positive. Similarly the report of the Forensic Science Laboratory Exh.P.AA. Was declared to be positive.
4. Dr. Abdul Wahab P.W.1, M.S. Tehsil Headquarter Hospital Sadiqabad, on 21-1-1992 at 8-00 a.m.
Conducted the post-mortem examination on the dead body of Sarfraz and found the following injuries on it:--
(1) Seven lacerated wounds of entry 1/4" x 1/2" in diameter on the front of left side of chest around the left nipple spread in the area of 4" going backward and downward.
(2) A lacerated wound of exit 1/4" in diameter on the back of chest on lower part. Four pellets left under the skin on the back of chest lower part and lumber region. Four pellets were recovered and handed over to police in a sealed bottle.
(3) A contused wound 3/4" x 1/6" x scalp deep on the right side of head 3" above the right car.
' In the opinion of the doctor, death occurred due to damage to heart and left lung on account of injury No,1 having been caused by fire-arm. The injury No,3 was found to have been caused by blunt weapon. All the injuries collectively and injury No,1 individually were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem. The probable duration between the injuries and death was instantaneous. However, the time between death and post-mortem examination was about twelve houRs, ' On the same day, at about the same time dead body of Muhammad Mansha was also subjected to post-mortem examination by the said doctor. He noted the following injuries on it:--
(1) A circular lacerated wound of entry; margins were burnt and blackened, surrounding area of skin blackened, 1" in diameter on the front and inner side of left thigh lower 1/3rd going backward, waddings were removed.
(2) Six small 1/4" x 1/3" in diameter and two big 4" x 1" and 3" x 1" wounds of exit on the back of left thigh, middle one third. Femoral vessels and nerve were injured.
' It was opined by the doctor that the cause of death was shock and haemorrhage as a result of injury No,1 which was caused by fire-arm. Injury No,1 was sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem. The probable duration between injuries and death was within an hour while between death and post-mortem examination, it was about 12 houRs, ' On 20-1-1992 at 10-20 p.m., the said doctor examined Allah Yar and found the following injuries on his person:-
(1) A lacerated wound 3" x 2" x bone deep on the medial side of left knee. Margins were burnt and blackened, knee joint was opened. Medial ends of Tibia and condyle of femur were fractured.
(2) A contused wound 3/4" x 1/4" x bone deep on the back of left elbow. Olecranon was fractured.
(3) A contused wound 1-1/4" x 1/6" x bone deep on the back of left forearm upper part. Left ulna was fractured.
' Injuries Nos.1 to 3 were found to be grievous in nature. Injury No,1 was caused by fire-arm while injuries Nos.2 and 3 were caused by blunt weapon.
' Muhammad Siddiq accused was medically examined by the said doctor on 4-2-1992 at 4-00 p.m.
And following injuries were found on his body:--
(1) An irregular almost healed (contused) wound on the top and right side of head 1-1/2" x 1/8".
(2) A swelling and tenderness on the back of left hand, movement restricted.
(3) Complained of pain in left forearm, no visible mark of fresh injury.
(4) Complained of pain in right forearm, no visible mark of fresh injury.
(5) Complained of pain on the back of right shoulder.
' On the same day and time, Shabbir Hussain accused was examined by the said doctor and following injuries were noted on his person:--
(1) A healed contused wound 3/4" x 1/10" on the top of head.
(2) Complained of porn on right side of face. No visible mark of fresh injury.
(3) Complained of pain on left side of face. No visible mark of fresh injury.
(4) Complained of pain on the back of right hand. Slight swelling and tenderness.
(5) Complained of pain on the back of chest and neck.
(6) Complained of pain in right knee. No visible mark of fresh injury. The injuries were simple in nature and were caused by blunt weapon.
5. Eye-witness account was furnished by Allah Yar P.W.8 and Mst. Farhana Bibi P.W.9. The respondents accused denied the allegations levelled against them in their statements under section 342, Cr.P.C. Nadeem Hussain accused made a detailed statement. In reply to a question, he stated that he was severely beaten by the complainant party by giving him fist and kick blows.
However, his injuries were not visible and as such he did not go to the doctor for his medical examination. He disclosed that Ramzan, father of Mst. Farhana, was cultivating the land of his father Muhammad Siddiq as his tenant. He suspected him to have illicit relationship with his daughter. Muhammad Siddiq also suspected that Muhammad Ramzan, the father of the girl, was looking for an opportunity to cause harm to him (Nadeem). In consequence, Muhammad Siddiq asked Muhammad Ramzan to abandon his land. Muhammad Ramzan, ultimately, left their land.
Thereafter, Mst. Farhana was married with Iqbal son of Allah Yar. Allah Yar, Iqbal, Sarfraz and Mansha had also suspected him for having illicit link with Mst. Farhana. They, therefore, were determined to take revenge from him. On the day of occurrence, he was going to his house and when he reached near the house of Allah Yar on a thoroughfare, he was caught by the wife of Allah Yar. Allah Yar, Iqbal, Sarfraz and Mansha also came there and took him forcibly to their house. They bolted the door from inside the house and made him naked by removing his shirt and Shalwar. He was given a severe beating and then confined in a room of their house. They wanted to murder him alongwith Mst. Farhana to make out a case of grave and sudden provocation. On alarm, Muhammad Siddiq came and requested the complainant party to release him. They however, declared that they would murder him. Upon this, Muhammad Siddiq, Shabbir while armed with their licensed guns came forward and requested Allah Yar to release him forthwith. They refused to do so. Instead they opened an attack upon them. In return, his father and brother also injured the complainant party with their weapons.
' Muhammad Siddiq accused supported the statement of Nadeem. He stated that he was inflicted injuries by the complainant party. He stated that Muhammad Ramzan was his tenant. He suspected illicit liaison of Nadeem with Mst. Farhana. He mentioned that on the day of occurrence, he came to know that his son had been abducted forcibly by the complainant party to murder him.
He, therefore, went to Allah Yar and requested him to release his son. The complainant party opened an attack and injured him. Shabbir also reached there to save his life and that of Nadeem.
He admitted that Shabbir fired from his licensed gun. Muslim, the third accused deposed that the licensed gun of his father was planted upon him. He pleaded his innocence. Shabbir Hussain adopted the statements of his co-accused. Muhammad Ramzan D.W.1 was produced by the accused in their defence. He deposed that on 20-1-1992, at about 7-00 p.m., Allah Yar, Sarfraz, Iqbal and Mansha caught Nadeem from a thoroughfare of the village and brought him forcibly to the house of Allah Yar. He stated that more than 20 villagers collected at the spot. He also claimed to have informed Muhammad Siddiq that his son had been taken forcibly to the house of Allah Yar. He also deposed that Nadeem was suspected to have his illict liaison with Mst. Farhana Bibi.
6. It is contended forcefully by the learned counsel that admittedly the incident of double murder took place inside the house of Allah Yar. He maintains that on the basis of overwhelming prosecution evidence, there was absolutely no justification for the learned trial Judge to have acquitted the respondents of the double murder charge. He says that there was no legal justification to hold that the accused party had committed the murders in the exercise of their right of self-defence. There was not a shred of evidence to justify the accused respondents to take the law into their own hands in the house of the complainant. Learned counsel appearing on behalf of the accused respondent supported the judgment of the learned trial Judge by adopting the reasons given therein.
7. We have heard the learned counsel for the parties at considerable length and have also gone through the record with utmost care. We hold that on the basis of overwhelming evidence available on record, there existed no right of self-defence to the respondents in opening an attack and killing the innocent people in the house of the complainant during night. The occurrence admittedly took place in the house of Allah Yar. He deposed that Mst. Farhana was washing the utensils while sitting in the courtyard of his house. He came out of his room on her alarm. The other P.Ws. Also came in the courtyard on hearing her shrieks. Nadeem was found to have held Mst.
Farhana in his arms. He was overpowered by the witnesses and confined in a room of their house.
This is in evidence that they waisted to take Nadeem to police station to hand him over to the police for legal action. Muhammad Saddiq, Shabbir Hussain and Muslim respondents trespassed into their house while armed with deadly weapons. The respondents directed the complainant party on gun point to immediately release Nadeem. They, however, made it clear that Nadeem would be produced before the police for initiating legal action against him. Muhammad Sadiq gave a blow with his iron rod which hit Sarfraz on his head. Sarfraz fell down. Muslim fired from his gun which hit Sarfraz on his chest. Shabbir fired with his double barrel gun which hit Mansha on his left thigh. He also fell down. Allah Yar went ahead to save Muhammad Mansh whereupon Nadeem held him in his fold and also dropped him on the ground. Muhammad Saddiq inflicted injuries upon him with his Sarya. Shabbir Hussain also injured his left knee. The evidence of Allah Yar was materially corroborated by Mst. Farhana Bibi P.W. The medical evidence is also in line with the ocular account. There was also a very strong motive for the accused to commit the offence. The motive is also proved to our satisfaction. The scrutiny of the evidence does persuade us to believe that the incident took place in the manner as disclosed by the prosecution in the house of Allah Yar P.W. According to the defence story, the complainant party suspected Nadeem to have established illicit relationship with Mst. Farhana. Their case was that Muhammad Ramzan was a tenant of Muhammad Siddiq and he had left his land on account of aforesaid suspected illicit relationship of Nadeem and Mst. Farhana. We do believe that Nadeem had come to win the sexual favour of Mst.
Farhana to her house in the cover of night. He was caught red-handed by the complainant party on the spot. The defence version that Nadeem was apprehended from a thoroughfare is not at all believable in the given facts and circumstances of the case. We, therefore, do not accept it for several reasons. There is no evidence having been led by the accused-respondents to show that the first occurrence took place outside the house and that it did not take place in the house of Allah Yar P.W. A heavy burden was surely on them to prove their plea. The plea was not proved by the defence with some plausible evidence. This version obviously appears to have been concocted by the accused-respondents to save their skin. We do hold that the complainant party wanted to produce Nadeem before police for taking legal action against him. They, therefore, did not cause any injury to him. Nadeem alleged that he was given a brutal beating but admittedly he was not medically examined. There is no evidence on record to show that he was injured. This fact itself negates the whole defence version. Thus, it is established that the complainant party did not take the law into their own hands. The respondents trespassed into the house of Allah Yar while armed with deadly weapons. The P.Ws. Are the most natural witnesses of both the incidents which took place inside the house of Allah Yar. Their presence in the house cannot be doubted in the given circumstances. They are, therefore, believed for all intents and purposes. The defence version, when placed in juxtaposition, is established to be an afterthought and has been concocted to defeat the very ends of justice. The accused had no right in law to kill Muhammad Mansha and Sarfraz by firing at them in the house of Allah Yar P.W. The only conclusion that we have reached, in these circumstances, is that Muhammad Siddique, his son Shabbir Hussain and his nephew Muhammad Muslim, the respondents, on hearing the news of the detention of their relation Nadim Hussain respondent, went to the house of complainant party after arming themselves with deadly weapons, not only to obtain his release but also to teach a lesson to them for detaining him in their house in a derogatory manner. Reaching the house of the complainant party, Muhammad Siddique respondent demanded the release of his son but when they refused to oblige him on the plea that they intended to hand him over to the police, he gave a `Sarya' blow on the head of Sarfraz (deceased), followed by Muhammad Muslim respondent, who fired at him with a .12 bore gun, hitting his chest. He fell down. Shabbir Hussain respondent, who was also weilding a .12 bore gun, fired a shot at Muhammad Mansha (deceased), hitting his left thigh and he too fell down.
Allah Yar P.W. Tried to rescue the victims but Nadeem Hussain respondent felled him on the ground.
When he was so lying, Muhammad Siddique respondent caused him two injuries with iron-bar (Sarya), one on the left elbow and the other on his left forearm, followed by Shabbir Hussain respondent who fired at his left leg. The aforesaid three armed respondents in this way obtained the release of their relation Nadeem Hussain respondent from the custody of the complainant party, after killing two persons on the spot and causing grievous injuries to the third in their own house.
8. The manner the three respondents went to the house of complainant party and rescued their detained co-respondent leads us to conclude that each of the respondents has to account for his own act because all it seems to have happened so quickely on the spur of the moment that there could be no community of purpose amongst them, reflecting their common intention and its furtherance. To be a little more precise, iron-bar (Sarya) is not the kind of an object commonly used as a weapon of offence like a rifle, gun, hatchet or a `Sota', but Muhammad Siddique respondent, having come to know about the detention of his son in the house of his erstwhile tenants, picked it up at random and went to the house of the complainant party. Similarly, his son Shabbir Hussain respondent picked up his licensed gun, while his nephew Muhammad Muslim respondent happened to weild a gun and they also went to the house of complainant party and started using their respective weapons in the manner aforesaid. So we hold all the respondents, including Nadeem Hussain respondent, liable for their individual acts and not for vicarious liability.
In that context, Shabbir Hussain respondent, who killed Sarfraz by a gun-fire, and Muhammad Muslim respondent, who killed Muhammad Mansha by his gun-shot, both are convicted under section 302(b), P.P.C. And each of them is sentenced to death and shall be hanged by the neck till be is dead. Since Shabhir Hussain respondent had also caused a fire-arm injury on the left leg of Allah Yar P.W. He is also convicted under section 324, P.P.C. And sentenced to three years' R.I. This sentence of this convict shall be executed only if, for any reason, his death sentence is not carried out. Muhammad Siddique respondent, who appears to be a person of advanced age, caused a contused wound of a small dimension, hardly scalp deep, on the right side of the head of Sarfraz (deceased) and two fractures on the left arm of Allah Yar P.W. For causing simple head injury (Shajja-e-Khafifa) he is convicted under section 337-A(i), P.P.C. And sentenced to 1 year's R.I. And for causing fracture of the left elbow and left forearm (Jurah-e-Hashimah) of Allah Yar P.W. He is convicted under sectin 337-F(v), P.P.C. And sentenced 2 years' R.I. As Tazeer. He is also directed to pay Daman to Allah Yar injured P.W. Amounting to Rs,5,000 or in default to further undergo 1 year's R.I. As all the respondents, including Nadeem Hussain, had committed house trespass by going to the house of the complainant party, they are also convicted under section 452, P.P.C. And each of them is sentenced to 2 years' R.I. And a fine of Rs,2,000 or in default to further undergo six months'
R.I. Each. All the substantive sentences of Muhammad Siddique respondent shall, however, run concurrently and he alongwith Nadeem Hussain shall be entitled to the benefits of section 382-B, Cr.P.C.
9. The State appeal is accepted to the extent indicated above. Since all the respondents are on bail, the learned District Magistrate, Rahimyar Khan, shall cause their arrest and send them to the prison for carrying out their respective sentences.