1. RASHID AZIZ KHAN, J.- Muhammad Sadiq (60), Muhammad Aslam(45), Muhammad Nasir(32) and Khaliq Hussain(27) were reported against with Police Station Mautra, District Sialkot for the murder of Gulfam Hussain(27/28). Additional Sessions Judge, Sialkot, vide judgment dated 31.5.1990 gave the benefit of doubt and acquitted Muhammad Nazir and Muhammad Aslam, Khaliq Hussain was found guilty under section 302 PPC and sentenced to imprisonment for life with a fine of Rs.10,000/-, or in default of payment of fine undergo R.I. For 3 years. It was further directed that the fine, if recovered, one half of it shall be paid to the legal heirs of the deceased. Muhammad Sadiq was acquitted from the charge, of murder. However, he was found guilty under section 307 PPC and sentenced to three years' R.I. With a fine of Rs.5000/-, or in default six months' R.I. It was directed one half of the fine, if recovered, shall be paid to Qaisar Abbas injured PW. Convicts Muhammad Sadiq and Khaliq Hussain have appealed. Complainant lias filed a Revision bearing Crl. R.No.477/90 seeking enhancement of sentence of Khaliq Hussain, in which notice was issued to him. Another Revision bearing Crl. R. No.559/90 was filed by, the complainant challenging the acquittal of Muhammad Aslam, Muhammad Nazir and Muhammad Sadiq of the charge under section 302 PPC.
2. The Revision qua Muhammad Aslam and Muhammad Nazir was dismissed. However, notice to Muhammad Sadiq was issued to show cause why his acquittal be not set aside. All these matters shall be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in FIR Exh. PH lodged by Muhammad Hussain was to the effect that on 6.12.1988 the first informant learnt that Muhammad Sadiq and others had an altercation with Qaisar Abbas and Muhammad Aslam regarding the house. On 7.12.1988 the first informant with his brother Gulfam Hussain, Ihsanullah and Muhammad Fayyaz came to the house of Qaisar Abbas to enquire about the quarrel which had taken place a day earlier in the evening.
3. When they reached near the house of Muhammad Sadiq at about 7 A.M., Khaliq armed with Chhuri, Muhammad Sadiq with 12 bore gun, Nazir and Muhammad Aslam empty handed, who were standing in front of their house in the lane, on seeing them Muhammad Sadiq raised a Lalkara that their relatives wen coming, they should be done to death. Nazir and Aslam caught hold of Gulfam, anu Khaliq gave a knife blow on the front of the chest of Gulfam who fell down. Sadiq fired at the witnesses but missed. On hearing commotion Qaiser Abbas came and Sadie) fired at him. The firing attracted many people who witnessed the occurrence from their roof tops and in the street.
4. The said people started brick-batting therefore, they ran away. Gulfam died at the spot. Motive for the occurrence was that the accused persons suspected that Ghulam Muhammad was abducted by Qaisar Abbas and others for purposes of murder.
5. Occurrence took place on 7.12.1988 at 7 A.M. In a lane in front of the house of Muhammad Aslam accused in village Berh, 10 K.M. From Police Station Mautra. District Sialkot. FIR Exh.PH was lodged on the same day at 8:30 A.M. By Muhammad Hussain, PW-11, which was recorded by Muhammad Boota Khan, SI, PW-15.
6. Muhammad Boota Khan, SI, PW-15 after recording the FIR went to the spot am1 prepared inquest report Exh.PI and injury statement Exh.PL of Gulfam deceased and sent the deadbody for autopsy.
7. Blood-stained earth from the spot was secured vide memo. Exhs.PD. He arrested Muhammad Sadiq, who was injured, therefore, he prepared his injury statement Exh.PO and sent him for medical examination. He got prepared site-plan Exh.PE and PE/1 and gave his notes in red ink thereunder.
8. On 9.12.1988, Qaidar Abbas, who was injured, appeared before him and produced medico-legal report regarding his injuries. Muhammad Sadiq on I 1.12.1988 while in custody got recovered gun P.4 from his house, which was secured vide memo. Exh.PF. He arrested Khaliq Hussain and Muhammad Aslam on 18. 12.1988. On 22.12.1988 Khaliq. Hussain accused while in custody got recovered blood- stained Chhuri P.5 from his house, which was secured. At the conclusion of investigation the accused were challenged.
9. Dr. Saadat Ullah Cheema. C.M.O, Civil Hospital, Daska, PW-3, on 7.12.1988 conducted the post- mortem examination on the deadbody of Gulfam Hussain and found an incised wound 5 x 2 cm transversely on front of left side of chest,"6 cm below-and medial to the left nipple. In his opinion, death had occurred on account of the injury, which was ante-morten and was caused with a sharp-edged weapon. The injury was fatal and sufficient to cause death in the ordinary course of nature.
10. PW-4 Dr. Muhammad Nasarullah Khan, C.M.O. Civil Hospital, Daska, on 9.12.1988 medically examined Qaisar Abbas and found the following injuries:-
(1) A semi-circular wound 1/2 x 1/4 cm on the back of right shoulder 12 cm from the right shoulder joint.
(2) There was semi-circular wound 1/4 and 1/8 cm on the back of right shoulder with the distance of 1cm from the injury No.1. Injury Nos.1 and 2 communicate with each other on probing.
(3) An abrasion 1/2 x 1/4 cm on the top of right shoulder.
(4) A circular wound 1/4 cm on the outer aspect of right shoulder.
(5) Two semi-circular wounds 1/4 cm and 1/8 cm on the inner aspect of right thumb.
11. All the injuries were caused with firearm. Injury No.4 was kept under observation while the rest were declared simple.
3. Prosecution in support of its case produced 15 witnesses in all. PW-2 Muzaffar Hussain, MHC was handed over sealed parcels containing blood-stained -earth, which he kept in the Malkhana and nobody tempered with them. He also kept in safe custody the parcel of blood-stained chhuri and sent the same to the Office of Chemical Examiner. Dr. Saadatullah Cheema, PW-3 had conducted the postmortem examination. Dr. Muhammad Nasarullah, PW-4 had examined Qaisar Abbas, PW- 12, PW-5 Ghulam Muhammad had witnessed the recovery of bloodstained earth from the spot and signed the memo. PW-6 Akhtar Naqqash, Draftsman had prepared the site-plan Exhs.PE and PE/1 on the directions of the police. PW-7 Muhammad Hanif has witnessed the recovery of 12 bore gun P.4 at the instance of Muhammad Sadiq accused and signed the recovery memo. Muhammad Sharif, PW-8 had witnessed the recovery of blood-stained chhuri P.5 at the instance of Khaliq Hussain. Ocular account was furnished by Muhammad Hussain, Qaisar Abbas, Muhammad Fayyaz and Ihsanullah, PWs.11, 12, 13 and 14. Respectively. The case was investigated by Muhammad Boota Khan SI, PW-15.
12. At the conclusion of prosecution evidence the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They also appeared on oath in their defence as well as produced defence evidence. In answer to a question Muhammad Sadiq stated that he along with his brother (Ghulam Muhammad and sister Mst. Sajida had received injuries from the deceased and Aslam and Akram. He further stated that he alongwith his co-accused wa' falsely implicated in the case. In fact, Muhammad Hussain complainant and other PWs. Namely, Ihsanullah, Muhammad Fayyaz and Qaisar Abbas were not even present at the spot. He stated that on 29.9.1985 he purchased a house from one Jalal Din. It was through a sale-deed, which was duly registered. Aslam filed a civil suit against Muhammad Sadiq accused challenging the sale-deed.
13. The said suit was dismissed; therefore he filed another suit against Jalal Din, which was also dismissed. Thereafter Muhammad Sadiq accused filed a suit for possession of the house from Jalal Din, Muhammad Aslam and others. The suit was decreed on 10.10.1988 and decree was executed through a Bailiff of the Civil Court with the help of police on 5.12.1988. The house was in occupation of Muhammad Aslam and Qaisar Abbas, PWs. This infuriated Muhammad Aslam who on 7.12.1988 with his brother Muhammad Akram and cousin Gulfam came to his house. At the said time Mst.
14. Sajida, were of Khaliq accused, and Muhammad Sadiq accused were present. The above said persons started abusing them and broke open the door by brick-batting. Aslam and Akram were armed with iron bars and Gulfam had a Dang. Muhammad Sadiq and his brother Ghulam Muhammad acted in right of private defence and caused injuries. He was injured by the assailants and got examined by the police. The police, however, did not get Mst. Sajida Bibi and Ghulam Muhammad examined medically on account of mala fides. Thereafter Ghulam Muhammad moved an application before a Magistrate and on his directions he and Mst. Sajida were medically examined. The rest of the accused adopted the same statement.
15. They had also produced six defence witnesses. Muhammad Iqbal, DW-1 stated that Muhammad Aslam accused was with him on the fateful day and time in his village Rajokey. DW-2 Allah Rakhah stated that he had seen Khaliq Hussain accused on the fateful day present at his shop at bus-stop Aadah. Muhammad Iqbal, DW-3 stated that he knew Khaliq Hussain accused who was present at his shop on the fateful day. DW-4 Dr. Zia-ur-Rehman's stated on oath that he had medically examined Muhammad Sadiq on 7.12.1988 at 9:30 P.M-, who was brought by the police and he found a lacerated wound 4 x 1 cm in size tearing skin and underlying muscle on back of head. The injury was simple in nature and caused with blunt weapon.
16. Under the orders of R.M., Daska, on 26.3.1989 he, DW-4, medically examined Ghulam Muhammad and found the following injuries:-
(1) A triangular Healed scar 2 1/2 x 2 x 2 cm in size in centre of frontal region of head.
(2) Healed scarsabout 1/2 cm in diameter to 1 cm in diameter in different positions over right skin.
(3) Healed scar of minute size over left shin.
(4) Healed scar over knucle of right finger of left hand.
17. On the same day, under the orders of R.M., Daska, he had examined Mst. Sajida Bibi as well and found the following injuries:-
(1) No scar mark present over right wrist joint. A depression measuring 2 x 1 'h cm in diameter over back of right wrist joint.
(2) Proximal interphalageal joint of little finger of right hand stiffed: No scar mark present over joint.
18. DW-5 Dr. Zafar Tanveer Ahmad. Radiologist, Allama Iqbal Memorial Hospital, Sialkot, had examined the X-rays of both the injured Ghulam Muhammad and Mst. Sajida Bibi.
19. DW-6 Muhammad Bashir stated that on 7.12.1988 he was present at the Adda Adalia and saw Khaliq accused present at his shop at the said Adda.
4. It was contended by learned counsel for the appellants that the prosecution has not been able to prove its case beyond doubt at all. Contended that the motive for launching an attack was not with the appellant side because they had already taken possession of the house through Bailiff of the Court as well as police and in such circumstances there was no occasion for them to have launched an attack. Contended that the complainant side was the aggressor, they launched an attack, whereupon the appellant had no choice but to defend their person as well as property of brother of Muhammad Sadiq and sister. Asserted that the defence version found corroboration from the medical evidence, according to which Muhammad Sadiq as well as his brother Ghulam Muhammad and sister Mst. Sajida were injured, that the prosecution had not come up with clean hands because they did not disclose the injuries on the accused side. The contentions were opposed by learned counsel for the State as well as for the complainant. It was argued that the eye-witnesses were natural therefore could safely be relied upon. It was asserted thru the appellants had the motive to launch an attack, which they did without any provocation.
5. We have heard the learned counsel at length and gone through the file. The prosecution in order to establish its case relied upon the ocular account and sought corroboration from motive and medical evidence. As far as the motive for commission of the offence in the instant case is concerned, according to the FIR the appellants had suspected that Qaisar Abbas PW and others had abducted one Ghulam Muhammad Ansari, brother of Muhammad Sadiq appellant for murder therefore the present occurrence. An examination of the statement of the eyewitnesses reveals that no details about the suspected abduction were given by any of the witnesses. Even at the time of-occurrence the assailants did not even bother to enquire where Ghulam Muhammad was being kept. If they really suspected his abduction, the natural course of action would have been to find out his whereabouts rather than committing the murder. In these circumstances, without hesitation we are of the view that the motive as set up by the prosecution has not been proved.
20. The ocular account was furnished by Muhammad Hussain, Qaisar Abbas, Muhammad Fayyaz and Ihsanullah, PWs-11,12,13 and 14, respectively. They gave a detailed account of the occurrence and ascribed specific role to each of the appellants. In cross-examination, however, it was revealed that civil litigation between the parties was going on about the possession of a house, which was purchased by Muhammad Sadiq appellant. The house in question was purchased from the Jalal Din through a sale-deed. It was challenged by Muhammad Aslam, and after prolonged litigation the suit was decided in favour of Muhammad Sadiq, therefore, he obtained possession of the house through a Bailiff of the Court with the help of local police. The house was in occupation of Muhammad Aslam and Qaiser Abbas PWs. It was resented by both the witnesses. This part of the prosecution story was brought on record in cross-examination. The eye-witnesses had not uttered a word about this aspect in their statements before the police or in their examination-in-chief. The eye-witnesses in cross-examination also admitted that there was brick-batting inside the courtyard of the house of Muhammad Sadiq appellant.. The assertion of the defence was that the complainant side had launched an attack, therefore, in self-defence the appellant side gave injuries. Muhammad Hussain, PW-11 in cross-examination admitted that Muhammad Aslam, Muhammad Akram, Gulfam deceased and others had come to the house of Muhammad Sadiq and gave them filthy abuses. It was admitted by all the witnesses that the occurrence took place in front of the house of Muhammad Sadiq appellant. It is also apparent from the record that neither the prosecution witnesses nor the deceased lived near the place of occurrence. The occurrence had taken place at 7 in the morning and the assertion of the witnesses that they were going to the house of a relative to enquire about a certain incident, which took place a day earlier does not appeal to reason. Normally such like visits are made in the evening. As far as Qaisar Abba.; witness is concerned, though he was injured yet does not inspire confidence at all. His demeanour indicates that he was neither present at the spot nor is a truthful witness. According to him, he had received an injury and thereafter went away from the spot to the house of a friend in a different village. He appeared lie l ore the police two days after the occurrence.
21. All the eye-witnesses were put to the test of lengthy cross-examination but they did not admit that Muhammad Sadiq was injured in the occurrence as well as his sister Mst.Sajida Bibi and his brother Ghulam Muhammad. The witnesses stand belied from the fact that Muhammad Sadiq appellant was got examined by the police the same day and the doctor found injuries on his person. This belies the prosecution story and corroborates the defence version. Ghulam Muhammad and Mst.
22. Sajida were got examined under the orders of the Court and the doctor found healed injuries on their person. The eye-witnesses have positively discredited! Themselves by suppressing the injuries on the person of Muhammad Sadiq and others. No plausible explanation has been given by them why they came to the house of the appellant side when a day earlier the eye-witnesses had been dispossessed from the same house under the orders of a civil Court. The motive as set up by them was neither proved nor pursued by the witnesses. No effort by the Investigating Agency was made to record the statement of Ghulam Muhammad to find out if he had been abducted or not. The same Ghulam Muhammad was allegedly injured in the same occurrence.
23. Keeping the prosecution case in juxtaposition with the defence version we feel the defence version is more plausible. The prosecution side had the motive to launch an attack,. Injuries on the person of Muhammad Sadiq have been withheld and none of the witnesses could give an explanation why they failed to disclose the said injuries. Therefore, we are of the view that the defence version is more probable and the appellant side had acted in the right of private defence when the complainant side attacked the house by brick-batting and causing injuries to the inmates. As far as Muhammad Sadiq, appellant is concerned, he had given an injury to Qaisar Abbas which was declared simple. He was sentenced to three years' R.I under section 307 PPC. We feel he has been rightly convicted, therefore, his conviction and sentence needs no interference. His appeal stands dismissed.
24. As far as Khaliq Hussain, appellant, is concerned, he had caused the death of Ghulam Hussain who had come alongwith others to the house of Muhammad Sadiq and Khaliq Hussain. He gave a knife blow which resulted in the death of said Ghulam Hussain. Therefore, partly accepting his appeal, his conviction and sentence is altered from section 302 PPC to section 304 Part-II PPC. His sentence - of imprisonment for life is reduced to seven years' R.I. The sentence of fine, or imprisonment in default of payment of fine, is, however, maintained. He shall also be entitled to the benefit of section 382-B Cr.P.C.
25. For the same reasons, both the revisions filed by the complainant are also dismissed.