' KHALIL-UR-REHMAN RAMDAY, J.--- Ehsan Ullah and his four brothers, namely, Tajammal, Baber, Nasir and Saeed were tried by a learned Additional Sessions Judge at Faisalabad for the murder of one Muhammad Bashir and for causing murderous assault on Faqir Muhammad, Muhammad Nazir and Ali Ahmad out of whom Ali Ahmad and Muhammad Nazir are the brothers of Muhammad Bashir deceased. Through his judgment, dated 26-10-1992 the said learned trial Judge acquitted Baber, Nasir and Saeed of all the chargess. He found Tajammal guilty only of an offence.
Punishable under section 324, P.P.C. For causing simple injuries to Faqir Muhammad and Nazir P.Ws.; convicted him accordingly on two counts and punished him with three years R.I. And a fine of Rs,2,000 or six months R.I. In default of payment of the fine on each count. He also directed the said convict to pay Rs,1,000 as compensation to each of the above mentioned P.Ws. Or to undergo three months R.I. On each count. This Tajammal was acquitted of the charge of murder. Ehsan Ullah was found guilty of both the charges. He was convicted under section 302, P.P.C. For the murder of Muhammad Bashir deceased and was sentenced to death on the said charge and to pay a fine of Rs,20,000 or to suffer three years R.I. In default of the payment of the said fine. He had also been ordered to pay Rs,10,000 to the heirs of Bashir deceased or to suffer six months R.I. In default thereof.
For causing injuries on the person of Faqir P.W. He was further convicted under section 324, P.P.C.
And was directed to suffer three years RA. And a fine of Rs,2,000 or 6 months R.I. In default thereof.
He had also been commanded to pay Rs,1,000 to Faqir Muhammad P.W. As compensation or to undergo three months R.I. In default of the payment of the same.
2. Murder Reference No,406 of 1992 seeks confirmation of the sentence of death awarded to Ehsan Ullah convict who together with Tajammal convict approached this Court through Criminal Appeal No,927 of 1992 to impugn the above mentioned convictions and punishments carded against both of them. The State has filed Criminal Appeal No 312 of 1993 to call in question the acquittal of Babar, Nasir and Saeed as also the acquittal of Tajammal under section 302, P.P.C. Criminal Revision No,240 of 1993 was brought by Rasheed complainant seeking the same relief which was being sought by the State through Criminal Appeal No,312 of 1993. Ehsan Ullah appellant herein had filed a complaint against the complainant party of the present case for the alleged commission of offences punishable under section 324/148/ 149, P.P.C. Which offences. Had been allegedly committed by the present complainant party against the present appellant party in the same occurrence in which Bashir deceased of the present case had lost his life and other P. Ws. Had received injuries. Through a judgment, dated 26-10-1992 a learned Additional Sessions Judge acquitted the accused persons of the said complaint i,e, Faqir Muhammad, Muhammad Nazir, Shehbaz, Muhammad Rasheed and Taj. The said Ehsan Ullah appellant filed Crl. P.S.L.A. No,1 of 1993 seeking leave to file an appeal against the acquittal of the said Faqir Muhammad and others. All these matters are being disposed of together through this single judgment.
3. According to the prosecution case against Ehsan Ullah appellant and others, the occurrence in question had taken place on 21-6-1990 at about 8.30 a.m. In front of the house of the complainant party and near the Sabzi Mandi Chowk in the area of Chak No,591-G.B. About 12 miles from Police Station Lundianwala of District Faisalabad and the said occurrence had been reported at the said police station by Muhammad Rasheed (P.W.6) at about 12.30 p.m. On the same day.
4. Narrating the occurrence and the background leading thereto Muhammad Rasheed complainant had mentioned that he was a resident of Chak No,591-G.B. And that the contract of the Sabzi Mandi of the said village was with his paternal uncle, namely, Faqir Muhammad (P.W.8); that on the day of occurrence he was present in the said Sabzi Mandi along with his paternal uncles, namely, Faqir Muhammad (P.W.8), Muhammad. Nazir (P.W.7) and Muhammad Mansha at about 8.30 a.m. When a son of the said Faqir Muhammad, namely, Shehbaz (P.W.9) left the said Sabzi Mandi to return to his house; that when the said Shehbaz reached in front of the door of his house, Nasir accused armed with a rifle, Ehsan Ullah appellant armed with a gun and a dagger, Tajammal appellant armed with a carbine and Baber and Saeed accused armed with daggers reached there while raising Lalkaras; that thereafter Nasir accused fired a shot at Shehbaz (P.W.9) which however, went a miss whereupon the said Shehbaz rushed to his house and closed the door and the shots then fired by Nasir ,Accused hit the door of the said house; that the said Nasir accused then started firing shots hearing the' report of which Rasheed complainant, Muhammad Nazir (P.W.7), Faqir Muhammad (P.W.8) and Bashir deceased came out of the Sabzi Mandi and rushed towards their house; that the accused persons minus Nasir accused then confronted these members of the complainant party; Ehsan Ullah appellant inflicted repeated dagger blows on the person of Bashir deceased who fell down injured; that Tajammal and Ehsan appellants fired shots with their respective weapons which landed on various parts of the bodies of Faqir Muhammad P.W. Who also fell injured;- that Taiammal appellant then fired further she which hit the back of Nazeer P.W. On his right shoulder and that Saeed and Babe accused then inflicted dagger blows on the person of Nazeer P.W. The complainant ha further alleged that on the alarm raised b them All Ahmad and Taj Din (given up) also reached the place of occurrence and Babe accused inflicted an injury on the person o Ahmad (given up) with his dagger.
5. Disclosing the motive for the assault, the complainant had divulged that day prior to the occurrence Bashir decease was cleaning the water-channel on the outer side of his house when Ehsan Ullah appellant at that time, passed from in front of the house of the said deceased and drops of the dirty water fell on the clothes of the said Ehsan which led to an exchange of hot words between them; that Bashir deceased then beauty up Ehsan appellant with fist blows and that Ehsan Ullah appellant then went away declaring to take evangel of this beating and insult and further that it was on account of this grievance that the appellant party had mounted an attack, on the complainant party causing the abovementioned loss and damage.
6. Muhammad. Ayub S.I./1.0. (P.W.11) reached the place of occurrence and found blood-stained earth at the spot where Bashir deceased, Nazir P.W. And Faqir Muhammad P.W. Had been injured which blood stained earth was secured vide memo. Exh.PB. He also found 10 crime empties (P.14/1- 10) at the venue of the occurrence which he collected vide memo. Exh.PQ. He also took into possession photographs of a door of the house of Faqir P.W. Showing bullet and pellet marks which he took into possession vide memo. Exh.PD. Muhammad Ayub S.I./1.0. (P.W.11) arrested all the accused persons on 30-6-1990 and on 13-7-1990 Ehsan Ullah appellant allegedly led to the recovery of a gun (P.9) and a blood stained dagger (P.10) which were seized vide memos. Exh.PR and PS, respectively. On the same day Tajammal and Baber accused allegedly led to the recovery of a carbine (P.11) and a blood-stained dagger (P.12) respectively which were also secured vide memos Exhs,PT and PU, respectively. Nasir accused allegedly produced his licensed rifle (P.13) along with its license .(P.15) which were taken into possession by the said Investigating Officer vide memo. Exh.PV.
7. When confronted with the prosecution case under section 342, Cr.P.C. Ehsan Ullah appellant pleaded that the police had fabricated a false story of the occurrence in question in collusion with the complainant party. He added that the actual facts of the occurrence in question were that on 21-6-1990 he and his brother Tajammal appellant were coming from their lands while on their way to their house at about 8.30 a.m. And just as they reached the Sabzi Mandi Chowk, Faqir Muhammad and Shehbaz P.Ws. Armed with guns, Nazeer P.W. Armed with dagger, Bashir deceased and Rasheed P.W. Armed with Lathies and Taj armed with a revolver emerged there and launched an attack on them; that Faqir Muhammad P.W. Fired two shots at Ehsan Ullah appellant giving injuries on his person; that Rasheed complainant and Bashir deceased gave one Lathi blow each to 'Ehsan appellant; that Shehbaz P.W. Fired two shots causing injuries on the person of Tajammal appellant and that Nazeer P.W. Gave a dagger blow to Tajammal appellant. Ehsan appellant had further claimed that the above mentioned Taj continued firing shots with his revolver to scare away the intruders and further that Faqir Muhammad and Shehbaz P.Ws. Had also fired indiscriminate shots. The said appellant had further added that his brother and his co-accused, namely, Babel' had come to the shop of one Ghulam Muhammad and finding the two appellants under attack, he picked up a Chhurri from the said shop and inflicted injuries on the persons of Bashir deceased and Nazeer P.W. In order to save the lives of his brothers i,e, the two appellants. The appellant had further claimed that it was the members of the present complainant party who were the actual aggressors and that they had attacked the said appellants in order to take revenge of the beating which they had given to Bashir deceased a day prior to the present occurrence.
8. Tajammal appellant and the three acquitted accused persons adopted the stance taken by Ehsan Ullah appellant. The defence produced four witnesses in defence in order to prove the injuries allegedly received by Ehsan Ullah and Tajammal appellants in the occurrence in question at the hands of the members of the present complainant party.
9. According to Dr. Muhammad Hayat (D.W.4) who had allegedly medically examined Ehsan Ullah and Tajammal appellants on 21-6-1990, Ehsan appellant had received a piercing wound with blackening of adjacent skin on the outer side of his right upper arm with no wound of exit. The shirt of the said appellant at the said point was also found blackened. Dr. Muhammad Hayat had found another piercing wound with blackening of the adjacent skin on the outer side of Ehsan appellant's left thigh with no wound of exit. He had also detected a laceration on the back of the right index finger and a contusion on the outer side of the left forearm of Ehsan appellant. This laceration and contusion were found to have been caused by a blunt weapon while the two injuries first above mentioned were found to have been caused by a fire arm. On the same day he had also allegedly examined Tajammal appellant and had found two piercing wounds with blackening of adjacent skin on the left thigh of Tajammal appellant and on the inner side of his left knee joint. Both these injuries had no wound of exit. According to this doctor, Tajammal appellant had also received a superficial wound n the left side on his front abdomen.
10. Relying upon the injuries allegedly received by the two appellants, Mr. Ijaz Hussain Batalvi, Advocate submitted that the defence explanation of the occurrence in question was a reasonable possibility and thus the injuries received by the members of the complainant party had been caused to than in the exercise of their right of self-defence. The learned counsel further argued that from the evidence available on record it could not be said that the prosecution had successfully proved its case against the appellants. He had also contended that the manner in which the prosecution claims the occurrence to have taken place was open to serious exception.
11. We would first like to examine the defence plea to find out whether the same was a reasonable possibility as canvassed by the learned counsel for the appellants.
12. Tice appellants claimed that six persona of the present complainant party armed with tiaras, Lathis and a dagger had mould an assault on the appellants; that as a result of this assault firearm injuries bad been 'caused of the persons of Ehsan and Tajammal; that Taj, Faqir and Shehbaz were firing shots indiscriminately while slazir, Bashir and Rasheed were giving dagger and Lehi blows to these two appellants and despite all this alone Saber who had picked up a Chhurri from a nearby shop managed to jmflict six sharp-edged weapon injuries to Bashir deceased without any resistance or interference by the five companions of this Bashir who, as has been mentioned above, were armed with firearms, Lathies and a dagger. This claim, to say the least, cannot be said to be reasonably acceptable. It may be added hat this defence plea does not account for two broken teeth of Bashir deceased which were obviously not the result of sharp-edged weapon injuries. The defence explanation also does not explain two firearm injuries on the person of Faqir Muhammad P.W. And eight firearm and two sharp-edged injuries on the person of Nazir P.W.
13. Even the injuries allegedly received by Oman and Tajammal appellants appear to be a doubtful affair. As has been noticed above, Ehsan appellant had received two firearm injuries on his person.
It was a coincidence that one firearm injury had been caused on left thigh and the other firearm injury had been caused on the right upper arm and in case of both these injuries the pellets had entered the fleshy part of the body causing no bony injury and causing no exit wound. Both these injuries had blackening around their margins indicating obviously that the shots causing these injuries had been fired from a close range. Had this been so then the pellets would have entered the places of injuries in a group and would have caused exit wounds also but it was again a coincidence that it was only a single pellet which had been found as a result of an X-ray in the right upper arm and a single pellet which had been found in the left thigh of the said appellant.
Similar was the position of two firearm injuries received by Tajammal appellant out of which one was on the left thigh and the other was on the inner side of the left knee joint. In case of these two injuries also a single pellet had been detected as a result of the X-rays in each of these two injuries neither of them causing any exit wound. Needless to add that the margins of these two injuries also had blackening around them and further that neither of these two pellets had caused any bony injury even to Tajammal appellant. The doctor who had allegedly medically examined these two appellants had not mentioned any bleeding from or any blood .Upon these injuries allegedly received by these two appellants. The doctor had also not found any stains of blood on the clothes worn by these two appellants at the time of occurrence and worn at, the time of medical examination. The nature of these firearm injuries; their seats and the damage caused by them in case of both the appellants was too much of a coincidence. The submissions of the learned counsel for the complainant and the learned State counsel that these injuries allegedly received by the two appellants were a fabrication are, thus, submissions not without merit.
14. We are, thus, led to find that the defence explanation of the occurrence in question and the injuries allegedly received by Ehsan and Tajammal appellants were not a reasonable possibility and we hold accordingly.
15. This then brings us to the prosecution version of the occurrence in question The prosecution case is supported by four eye-witnesses, namely, Rasheed complainant (P.W.6), Nazeer (P.W.7), Faqir Muhammad (P.W.8) and Shehbaz (P.W.9). Faqir 1V1 Muhammad and Muhammad Nazeer P.Ws. Are injured witnesses of the occurrence in question having received at least two and eight firearm injuries on their persons, respective sly. Their presence at the place of concurrent at the relevant time is, thus, not open to any exception or doubt. Rasheed complain cant and Shehbaz P.W. Are also natural witnesses of the occurrence in question whose presence at the place of occurrence had not been denied even by the defence. To the extent that Ehsan Ullah appellant had admitted a fight between him and Bashir deceased day prior to the occurrence we do not find any hesitation in holding that the incident of motive as alleged by the prosecution had also taken place. Needless to mention here that the defence had accepted the presence of the two appellants and their involvement in the occurrence in question.
16. Resultantly, we are in no doubt about the participation of Ehsan and Tajammal appellants in the occurrence in question but the genesis of the said occurrence warrants some further probe and examination.
17. According to the prosecution the proceedings in this occurrence were commenced by Baber accused who fired shots at Shehbaz P.W. When the said P.W. Was alone near his house and who continued to fire shots even when Shehbaz P.W. Had rushed into his house and had closed the door. This aspect of the prosecution case is not readily understandable. In the incident of motive it was Bashir deceased who had caused insult and injuries to Ehsan appellant and Shehbaz P.W. Was only a nephew of the said Bashir deceased. Therefore, the prosecution case that Baber accused launched an attack at Shehbaz P.W. When their actual target i,e, Bashir deceased was nowhere around does not appeal to reason.
18. This is also not reasonably believable that Ehsan appellant would arm himself with a gun and a dagger while his other companions were also armed with firearms and daggers to mount an assault on Bashir deceased. If Ehsan Ullah appellant was also carrying a gun and he had the intention of killing Bashir deceased then there is no satisfactory explanation as to why he would decide not to make a quick work of the deceased by using his gun when he was admittedly only at an arm's length from the deceased and would instead chose to cause injuries to the deceased with his dagger especially when other P.Ws. Were also available at the place who could have caused resistance and intervention.
19. Consequently, we are of the opinion that the manner in which the occurrence had commenced was not free from doubt and the possibility of the occurrence having got started when Ehsan Ullah appellant and Bashir deceased had gut confronted with each other in the Sahzi Mandl Chowk could not be ruled out. Thus, we do not consider the present case one where the sentence of death could be safely awarded to Ehsan Ullah appellant or confirmed.
20.Therefore, while we maintain the conviction of the two appellants as recorded by the learned trial Court, we do not confirm the sentence of death awarded to Ehsan Ullah appellant and he is instead directed to suffer imprisonment for life under section 302, P.P.C. For the murder of Muhammad Bashir deceased.
21.Subject to this substitution of the sentence of death awarded to Ehsan Ullah appellant with a sentence of imprisonment for life, Criminal Appeal No,927 of 1992 is dismissed. It is further directed that the sentences of imprisonment to be suffered by Ehsan Ullah appellant under section 302 P.P.C. And under section 324, P.P.C. Shall run concurrently and the said appellant shall also be entitled to the benefit of the provisions of section 382-B, Cr.P.C.
22. Murder Reference No,406 of 1992 is answered in the negative and Criminal Appeal No,312 of 1993 filed by the State and Criminal Revision No,240 of 1993 filed by Rasheed complainant are dismissed.
23. For the reasons above stated, Criminal Petition for Second Leave to Appeal No,1 of 1993 filed by Ehsan Ullah petitioner is also dismissed. Sentence of death not confirmed.