KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.202 of 1991 filed by (1) Gulfraz, (2) Fiaz Khan, (3) Muhammad Ilyas, (4) Barkat Hussain, (5) Mazhar Hussain, (6)
Muhammad Bashir, (7) Muhammad Ismail (since dead) and, (8) Arshad Mehmood, appellants who were convicted and sentenced by the Judge Special Court No.1, Rawalpindi Division Rawalpindi constituted under the Suppression of Terrorist Activities Act, 1975 vide his judgment, dated 11-3-1991 as under: -- Gulfraz, Fiaz Khan Muhammad Ilyas, Mazhar Hussain, Muhammad Bashir, Muhammad Ismail and Arshad Mehmood.Death under section 302/34, P.P.C. with a fine of Rs.
50,000 each and in default 2 years R. I Compensation of Rs.50,000 each and in default 2 years R.I.
Barkat HussainLife imprisonment with a fine of Rs. 50,000 and in default 2 years' R.I. under section 302/34, P.P.C.
Compensationof Rs.50,000 and in default 2 years' R.I. for the murder of Muhammad Nazir.
All the seven appellants except Barkat Hussain.Death under section 302/34, P.P.C. with a fine of Rs.50,000 each and in default 2years R.I. Compensation of Rs.50,000 each and in default 6 months R.I.
Barkat HussainLife imprisonment with a fine of Rs.50,000 and in default 2 years' R.I.
Compensation of Rs.50,000 and in default 2 years' R.I. for the murder of Ghulam Murtaza All the seven appellants except Barkat Hussain.Death under section 302/34, P.P.C. with a fine of Rs.50,000 each and in default 2years R.I. Compensation of Rs.50,000 each and in default 6 months R.I.
Barkat HussainLife imprisonment with a fine of Rs.50,000 and in default 2 years' R.I.
Compensation of Rs.50,000 and in default 2 years' R.I. for the murder of Haji Mehboob Alam: All the eight appellantsUnder section 324/34, 5 years R.I. with a fine of Rs.5,000 each and in default 3 months R. I. Compensation of Rs.2,000 each and in default 3 months R. I. for murderous assault on Walayat Hussain.
All the eight appellantsUnder section 324/34, 5 years R.I. with a fine of Rs.5,000 each and in default 3 months R. I. Compensation of Rs.2,000 each and in default 3 months R. I. for murderous assault on Mst. Razia Begum All the eight appellants3 years R.I. with a fine of Rs.1,000 each and in default R.I. for one month. for murderous assault on Muhammad Sheeraz.
Barkat Hussain appellant was also convicted under section 13 of Arms Ordinance XX of 1965 and sentenced to five years R.I. with a fine of Rs. 10,000 and in default R.I. for six months vide the seperate judgment, dated 11-3-1991. Criminal Revision No.40 of 1991 filed a Manga Khan, complainant, for enhancement of sentence of Barkat Hussain, appellant enhancement of amount of compensation and against the acquittal of Sheedan Begum, shall also be disposed of through this judgment.
2. Occurrence in this case had taken place on 24-11-1990 at 3-30 p.m. within the revenue estate of Dongee which is at a distance of 3-1/2 kilometres from Police Station Gujjar Khan, District Rawalpindi while the matter was reported by Manga Khan (P.W.17) and the formal F.I.R. Exh.P.M.M. was recorded by Mehdi Khan, S.-I. P.W.20).
3. Briefly stated facts of the case were that in the month of November, 1989 Haji Gulzar was done to death over a dispute of land in which five persons, namely, Ghulam Mustafa, Ghulam Murtaza, Muhammad Sheeraz, Muhammad Ilyas and Zafar Iqbal were challaned. After some time, Sheeraz Ghulam Murtaza, Ilyas and Zafar were released on bail. One Ch. Muhammad Riaz, MPA belonging to the Brotheree of both the parties tried to patch up the matter to which both the parties agreed. On 24-11-1990 at 3 p.m., aforesaid Muhammad Riaz, MPA alongwith Haji Fazal Hussain, Haji Sultan Ahmad, Chaudhry Sharif, Capt. Sadit, Muhammad Amin, Muhammad Riaz and Muhammad Walayat reached the house of Muhammad Sarfraz and Muhammad Riaz in village Doongi and sat in the Baithak of Sarfraz and Riaz. Ch: Riaz, MPA talked with the legal heirs of Haji Gulzar who agreed to enter into settlement on the condition that Manga Khan, the complainant etc. should come to their house and tender apology. On the summoning of Ch: Riaz, MPA, the complainant alongwith others went to the Baithak of Sarfraz and Riaz. After 4/5 minutes of reaching the complainant party, Riaz and Sarfraz called Ch. Muhammad Riaz, MPA saying that they wanted consultation with them in the Haveli of Muhammad Isma il and they went there. The complainant alongwith his companions kept on sitting in the Baithak. At about 3-30 p.m. Gulfraz and Riaz armed with .30 bore pistols, Muhammad Ilyas armed with .32 bore pistol, Sarfraz armed with sword, Arshad and Riaz armed with 7 MM rifles, Ismail, Bashir and Mazhar armed with hatchet, Barkat armed with Kalashnikov alongwith Mst. Sheedan came in the Verandah of Baithak and attacked upon the complainant party. Mst. Sheedan raised Lalkara that none from the complainant party should be spared to take the revenge of murder of Haji Gulzar. Barkat armed with Kalashnikov went to roof top of Sarfraz's house while Gulfraz and Ilyas entered into the Biathak. Gulfraz fired which hit on back side of right shoulder of Razia Begum. Ilyas fired which hit on the right thigh of Walayat. The complainant alongwith his accomplices tried to run away but Sarfraz gave a sword blow on the right hand of Razia Begum. Sooner did Nazir came out of Baithak, Sarfraz gave a sword blow hitting on the left side of his face. From the back side, Ismail 'inflicted hatchet blow on the neck of Nazir who fell down. Bashir inflicted two hatchet blows on the back of Nazir. Riaz fired which hit on the right flank of Nazir. The second fire made by him hit on the head of Nazir. Gulfraz fired which hit on the belly of Nazir. The fire made by 11yas hit near the right side of eye of Nazir. Sheeraz, Ghulam Murtaza and Ilyas ran towards the street to save their lives but they were chased by Riaz, Sarfraz, Fiaz, Ilyas and Gulfraz. In the courtyard Sarfraz inflicted sword blow on the left hand of Ghulam Murtaza. Meanwhile Ghulam Murtaza, etc., while running reached near the Haveli of Ismail in the street, Riaz, Sarfraz, Gulfaraz, Ilyas stopped Murtaza deceased. Fiaz fired with rifle which hit the forehead of Murtaza. Murtaza was in the falling process, when Sarfraz inflicted sword blow on his head. Riaz, Gulfraz and Ilyas fired with their respective weapons, which hit on the right eye, left eye, nose, neck, right shoulder and left shoulder of Murtaza, Sarfraz inflicted many sword blows on Murtaza, which hit on his left leg, left arm and right hand. Muhammad Riaz, accused saw Sheeraz running and fired on him; which instead of Sheeraz, hit Gulfraz on his buttock, who fell down, on the right side on the Pucca drainage. Sheeraz, Ilyas ran towards the lane. The complainant Haji Mehboob Alam, Walayat Hussain, after crossing the southern wall, ran towards the big street, Sarfraz, Mazhar, Arshad, stopped Haji Mehboob Alain. Sarfraz inflicted sword blow, which hit on the head of Haji Mehboob Alain who fell down. Sarfraz again inflicted sword blow on the head of Haji Mehboob Alam. Then, Mazhar inflicted hatchet blow on the head of Haji Mehboob Alam. Barkat during the occurrence continued raising Lalkaras on the rooftop while firing with kalashnikov that if anybody came forward, he would be murdered. Haji Mehboob Alain, Ghulam Murtaza and Muhammad Nazir died at the spot. The occurrence was witnessed by complainant Sheraz, Ilyas, Walayat and Mst. Razia.
4. After registration of the case, Mehid Khan, S.-I. (P.W.20) reached at the spot, prepared injury statement of Mst. Razia Begum Exh.PMN, injury statement of Walayat Khan Exh.P00, injury statement of Gulfraz Exh.PPP, also prepared the inquest report of Nazir deceased, Exh.P.Q., his injury statement Exh.P.P. prepared injury statement of deceased Ghulam Murtaza Exh.P.S., inquest report Exh.P.T. and also prepared the injury statement of Haji Mehboob Alam, Exh.P.M. and inquest report Exh.P.N. He also took into possession an empty of .30 bore pistol, P.38 and another empty of .32 bore pistol P.37 from the place of injury of Razia Begum and Walayat and took the same into possession vide memo. Exh.PJJ. Blood-stained earth with the help of cotton from near the place of murder of Muhammad Nazir was taken into possession vide memo. Exh.PEE. Also took into possession two empties of .30 bore pistol and one empty of .32 bore pistol from near the dead body of Nazir vide memo. Exh.PJJ. Blood-stained earth from near the place of dead body of Ghulam Murtaza was taken into possession vide memo. Exh.PFF, one empty of 7 MM Rifle P.40 and three empties of .30 bore pistol P.41/1-3 and one empty of .32 bore pistol P.42, were taken into possession vide memo.
EXh.P.L.L blood-stained earth from near the dead body of Mehboob Alain was taken into possession vi memo. Exh.P.GG., seven empties of kalashnikov P.39/1-7 were taken into possession from the top of the house of Sarfraz vide memo. Exh.P.KK. and on 25-11-1990 he recorded the statement of Gulfraz in General Hospital and his arrest was kept pending as he was injured. On 26-11-1990 Barkat, Bashir and Mst. Sheedan were arrested. Muhammad Bashir while in custody led to the recovery of blood-stained hatchet P.26 which was taken into possession vide memo. Exh.P.W. Mazhar accused was arrested on 4-12-1990. Thereafter, the investigation was transferred and taken over by Muhammad Asadullah Khan, Inspector P.W.21. Barkat Hussain in police custody led to the recovery of kalashnikov P.27 alongwith 11 live bullets P.28/1-11 which were taken into possession vide memo.
Exh.P.X. A case under section 13 of Arms Ordinance (XX of 1965) was also registered against Barkat Hussain. On 8-12-1990 Mazhar Hussain in custody led to the recovery of hatchet P.29 which was taken into possession vide memo. Exh.P.Y. Gulfraz was arrested on 8-12-1990 from General Hospital, Rawalpindi who in custody on 11-12-1990 led to the recovery of .30 bore pistol P.33 and two live bullets. P.34/1-2 which were taken into possession vide memo Exh.P.BB. On 18-12-1990, Fiaz, Ilyas and Arshad Mehmood were arrested. On 23-12-1990, Fiaz and Ilyas led to the recovery of .32 bore pistol P.35 and rifle 7 MM P.36 which were take into possession vide memo. Exh.P.CC. and Exh.P.DD. respectively Fiaz, while in custody led to the recovery of rifle 7 MM P.36, which was taken into possession vide memo. Exh.P.DD. On 29-12-1990 Arshad Mehmood led to the recovery of rifle 7 MM P.30 which was taken into possession vide memo. Exh.P.Z. On the same day, Ismail (since dead) led to the recovery of hatchet P.32 which was taken into possession vide memo. EXh.P,AA. This witness completed the investigation and challaned the accused to face the trial.
5. Prosecution in order to prove its case produced 21 witnesses in all including three eye-witnesses, namely, Munga Khan complainant P.W.17, Walayat Hussain injured P.W.16 and Razia Begum given up as being unnecessary, thereafter, learned A.A.-G. tendered in evidence reports of the Chemical Examiner Exh.P.RR, Exh.P.TT, Exh.P.VV and Exh.P.XX, reports of the Serologist Exh.P.SS., Exh.P.UU., Exh.P.WW. and Exh.P.YY. and report of the Fornesic Science Labortory Exh.P.ZZ. and closed the prosecution case, then the statements of the appellants were recorded under section 342, Cr.P.C. in which they pleaded innocence. After conclusion of the trial appellants were convicted and sentenced as stated above.
6. Before proceeding with the case it may be noted here that Muhammad Ismail son of Manga Khan had died so to his extent the appeal stands abated. Sarfaz and Riaz, co-accused of the appellants are till at large and had been declared P.O.
7. Learned counsel for the appellants after reading the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. and other relevant material available on record submits that Arshad Mehmood appellant, according to F.I.R., was armed with 7 MM rifle and the allegation against him was that he caused blunt weapon injury on the person of Haji Mehboob Alam deceased but there is no such injury on his person, so, there is conflict between ocular account arid medical evidence. Further submits that as far as, Barkat Hussain appellant is concerned, it was the story of the prosecution that he while armed with kalashnikov went to the top roof of the house where the occurrence took place and resorted to indiscriminate firing but no one was injured and. although a kalashnikov was recovered on his pointation but the empties of kalashnikov which were taken into possession from the spot were never sent to Fire-arm Expert for comparison. Moreover, Barkat appellant was complainant in the murder case of Haji Gulzar, so according to the learned counsel, he was falsely implicated in this case. Also submits that so far as Bashir Ahmad, appellant, is concerned, he was allegedly armed with hatchet and caused two injuries on the person of Nazir deceased but lie was not famed by the injured witness and that Manga, complainant and Sheeraz were not present at the spot, they are inimical witnesses had Sheeraz been present at the spot, he would have also been murdered because he was one of the accused in the murder case of Haji Gulzar. Learned counsel submits that Manga, complainant, is son of Haji Mehboob Alam deceased and brother-in---law of Sheraz, P.W.18 who was one of the accused in the murder case of Gulzar Khan and that the eye-witnesses are inimical towards the appellants as murder case is pending between them inter se. Further submits that there is no surety that Walayat Hussain, injured P.W. was stating the whole truth and was telling the actual facts and he also before the trial Court did not take the name of Bashir Ahmad, appellant. Learned counsel adds that according to Muhammad Riaz, MPA, P.W.15 he remained near the occurrence alongwith Manga, complainant, P.W. and when the Police came at the spot they both were present there. While elaborating this argument, learned counsel submits that in fact Manga Khan P.W. had not gone to police station to inform about the occurrence as stated by him. Adds that due to political pressure of Muhammad Riaz, MPA, P.W. belonging to Pakistan Muslim League during the regim of Pakistan Muslim League used his influence, distorted the actual facts and after due deliberation and consultation got lodged this false case against the appellants and that Walayat injured P.W. is servant of Muhammad Riaz, MPA P.W. and this fact has been admitted by him..
Learned counsel submit that it has not been established on record that as to what immediately happened just before the occurrence and how the fight started, in the Baithak of Sarfraz appellant.
He submits that the place of occurrence is Baithak of house of Sarfraz appellant and that Ch. Muhammad Riaz, MPA P.W.15 stated in his statement at page 78 of the paper book that he alongwith other respectable went to the Baithak of Sarfraz appellant, after reaching there Sarfraz asked Muhammad Riaz P.W. that the murderers of his father namely Haji Gulzar may be called at his Baithak, Riaz called them, there Sarfraz appellant told the complainant party that on the one hand they were asking for a compromise while on the other hand, it was being made a talk of town that Haji Gulzar was murdered by Sarfraz appellant himself, upon which some hot words were exchanged, Muhammad Riaz, MPA, P.W.15 alongwith other respectable came out from there alongwith Riaz and Sheeraz, P.O. and thereafter, due to flare-up the occurrence took place. Further submits that in fact complainant party had come armed at the spot and had caused injuries on the person of Gulfraz, which have not been explained and then a fight started between the parties and in that fight three persons lost their lives and three were injured. Also submits that Qisas and Diyat Ordinance, came into being on 2-10-1990 while the occurrence had taken place on 24-11-1990 so the learned trial Court could not have awarded the sentence of fine under section 302, P.P.C. and moreover, the sentence ordered by the learned trial Court that if death is not confirmed or converted into life imprisonment, the same shall not run concurrently is also unjustified.
8. Mr. Shaukat Rafique Bajwa, Advocate, who is also counsel on behalf of the appellants has adopted the same arguments addressed by Mr. M.A. Zafar, learned counsel for the appellants.
9. On the other hand, Malik Saeed Hassan, learned counsel for the complainant submits that it is a case of old grudges leading to fresh mutinees, complainant party was summoned at the house of Sarfraz appellant by deceiving them and thereafter three persons were murdered and three were injured, the presence of Manga P.W. and Sheeraz P.W.18 was not seriously challenged by the appellants. Appellants further deceived the complainant party after sending Muhammad Riaz, MPA P.W.15 from the place of occurrence and then committed the murders, one does not know what was in the mind of appellant and for what reasons Sheeraz who was one of the accused for the murder of Gulzar, father of Sarfraz appellant was not injured or done to death, prosecution case seeks corroboration from the statement of Walayat injured P.W., who had no enmity against the appellant. Muhammad Riaz, MPA --belonged to Arain Brother and both the parties were also Arain, he had no enmity with the appellants, he wanted to get the matter compromised and wanted to see that there should be peace in his constituency, statement of Manga P.W. is corroborated by Walayat and Riaz P.Ws. F.I.R. was lodged promptly within one hour, motive has been proved by the prosecution, neither the place of occurrence nor the time of occurrence is disputed by the appellants, however, admits that it was a case of general melee and free fight and that though Mst.
Razia Begum injured P.W. was not produced but the fact remains that she was injured. Further submits that complainant party had no grudge to attack the accused party as they had gone to the house of Sarfraz appellant to beg pardon for the murder of Gulzar father of Sarfraz appellant
10. On the other hand, learned counsel for the State has supported the conviction and sentence recorded against the appellants by the learned trial Court.
11. We have heard learned counsel for the parties at a great length and have also gone through the prosecution evidence, statements of the appellants and other material available on record. In the instant case as far as Arshad Mehmood, Barkat Hussain and Bashir Ahmed, appellants are concerned, their case- is totally different from the case of their co-accused for the reason that Arshad Mehmood appellant was attributed blunt weapon injury with the butt of rifle which according to F.I.R. he was holding at the time of occurrence, on the head of Mehboob Alam, deceased but there is no such injury on the person of Haji Mehboob Alain deceased as per post- mortem report. As far as Barkat Hussain appellant is concerned he was allegedly armed with a Kalashnikov and went at the roof top of tl4e Baithak where the occurrence had taken place arid fired indiscriminately at the complainant party but no body was injured. Barkat Hussain was also complainant in the murder case of Haji Gulzar in which the complainant party was accused. The kalashnikov which was allegedly recovered on his pointation and crime empties taken into possession from the spot were never sent to Fire Arms Expert to ascertain whether the empties were fired from the recovered kalashnikov or not, so the ocular account is not corroborated by any piece of evidence. Now we take up the case of Bashir appellant. He was alleged to be armed with a hatchet and caused blow on the back of Nazir deceased but Walayat, injured P.W the star witness of the prosecution did not utter a 'single word against him and about his role. Then Gulfraz, one of the appellant, was also grievously injured having four injuries on his person, one with fire-arm and three with blunt weapon, those have been suppressed by the prosecution. So taking into consideration the evidence against these three appellants and other material available on record we are of the considered opinion that case of Arshad Mehmood, Barkat Hussain and Bashir appellants is not free from doubt; as such, extending them the benefit of doubt we acquit them from the charges levelled in the F.I.R. and set aside the conviction and sentence recorded against them by the learned trial Court. They are in jail and shall be released forthwith, if not required to be detained in any other case. Murder reference to the extent of Barkat Hussain and Bashir, appellants is answered in the negative as their death sentences are not confirmed.
12. Now we take up the case of Gulfraz, Faiz Khan, Muhammad Ilyas and Mazhar Hussain. It may be noted here that occurrence had taken place in this case in the Baithak of Sarfraz appellant. The complainant party had gone there to get the matter compromised with regard to murder of Haji Gulzar: Gulfraz, Faiz Khan and Muhammad Ilyas are sons of Haji Gulzar while Mazhar Hussain is son of Barkat Hussain, acquitted co-accused. It is not disputed that both the parties were at daggers drawn with each other for the murder of Haji Gulzar. In our opinion and what we gathered from the evidence recorded by the trial Court that before going to the house of Sarfraz, P.O. and brother of other appellants as mentioned above they must have gone there while armed with weapons so that no untowards incident may take place. There Sarfraz had an altercation with the complainant party as deposition has been made by Muhammad Riaz, MPA, P.W.15 that Sarfraz told the complainant party that on the one hand they wanted to compromise the murder while on the other hand they have made it a talk of the town that Gulzar was murdered by Sarfraz on which altercation took place. Thereafter Muhammad Riaz, MPA, P.W. alongwith other respectables and Sarfraz and Riaz, both P.Os. went to the house of Ismail appellant .(since dead) and then fight took place in which Gulfraz was also injured inasmuch as he received four injuries which are reproduced below: -- (i)A fire-arm wound 1.5 c.m. x 1 c.m. with inverted edges and bleeding on left posteral lateral upper aspect at junction of buttock and thigh, directed upwards, forward and medial with corresponding cut on Shalwar, with no surrounding burning and blackening.
(ii)A fire-arm wound with everted edges 2.2 c.m. x 1.2 c.m. abdomen deep just above pubics anteriorly about 10 c.m. below ambilcus directed downward, backward and laterally, with three corresponding cuts on Shalwar, bleeding profusely with no blackening or burning around the wound. There was corresponding cut on Qamiz/shirt.
(iii)Lacerated wound .5 c.m. x .5 c.m. anteriorly, on the scrotum skin deep and not bleeding.
(iv)Clinically fractured lower end of right radious and ulna with abrasion .5 c.m. x .5 c.m. on lateral aspect of right wrist with surroundings swellings.
13. From the above it is proved that Gulfraz was injured in the same occurrence 8 and. was medically examined on the same day at 6-15 p.m. when the other injured P.Ws. were examined.
These injuries have been suppressed by the prosecution in the F.I.R. and also before the learned trial Court. In our view a free fight took place and there was a general melee as stated by learned counsel for the complainant and in that melee nobody can weigh the attack in golden scales, still in that process and in sudden flare injuries- were caused to the deceased and the injured P.Ws. We cannot call it a case of right of self-defence but it is a case of free fight. So, taking into consideration the prosecution evidence we are convinced that Gulfraz, Faiz, Ilyas and Mazliar Hussain have taken part in the occurrence but it cannot be said that three persons were murdered with any pre--meditation rather all happened just at the spur of the moment. The conviction of the above---named four appellants is, therefore, converted from sections 302(3), P.P.C. to 302(c), P. P.
C. and they are awarded life imprisonment on three counts. As far as the sentence of fine awarded to the appellants under section 302(b), P.P.C. is concerned that is set aside as the Qisas and Diyyat Ordinance came into force on 2-10-1990 while the occurrence took place on 24-1-1990. As far as sentence of amount compensation is concerned, we have issued notice to learned counsel to the appellants and they have accepted the same with regard to enhancement of amount of compensation. So all the four appellants are directed to pay Rs. 1,00,000 each on three counts to legal heirs of three deceased namely Nazir, Ghulam Muhammad and Haji Mehboob Alam failing which the appellants shall undergo S.I. for 6 months each. As far as conviction and sentence under section 324/34 P.P.C. is concerned no conviction for causing, injuries on the person to Razia Begum can be maintained because she was not produced by the prosecution so, the same is set aside.
However, the conviction awarded to the appellants under section 324/34, P.P.C. for causing injuries to Walayat. P.W. is maintained alongwith the amount of fine and compensation. The sentences of the appellants shall run concurrently with the benefit of section 382-B, Cr.P.C. The death sentence of four appellants namely, Gulfraz, Fiaz Khan, Muhammad Ilyas and Mazhar Hussain is not confirmed and the Murder Reference is answered in the negative.
14. For the foregoing reasons and order of acquittal passed against Arshad Mehmood, Barkat Hussain and Bashir, appellants and reduction of sentence from death to imprisonment for life qua Gulfraz, Fiaz Khan, Mazhar Hussain and Muhammad Ilyas, Criminal Revision No.40 of 1991 filed by Manga Khan, complainant is dismissed.
15. Murder Reference is answered in the negative and the death sentences awarded to Gulfraz. Fiaz Khan, Muhammad Ilyas, Mazhar Hussain and Arshad Mehmood are not confirmed.