TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Murder Reference No. 21 of 1992, Criminal. Appeal No.191 of 1991 file, by the convicts, Criminal Revision No.77 of 1992 filed by the complainant for enhancement of the sentence, of the convicts and Criminal Appeal No.80 of 1992 filed by the State against the acquittal of the co-accused as they arise out of the same judgment dated 17-10-1991, passed by Muhammad Saleerk, Qureshi, Additional Sessions Judge, Rawalpindi whereby while acquitting Babar, Zubair alias Zamir and Abdul Shakoor, he convicted the appellants it, following terms:-
(i) Muhammad Zaroof:-convicted under section 302, P.P.C. On twp counts for the murder of Rukhsar and Iftikhar and sentenced to death and a fine of Rs.50,000 in default whereof to undergo further R.I. For five years.
(ii) Muhammad Jamil:--convicted under section 302, P.P.C. Sentenced to life imprisonment for the murder of Rukhsar and a fine of Rs.50,000 in default whereof to undergo further R.I. For five years.
(iii) Javed Akhtar:--convicted under section 302, P.P.C. And sentenced to life imprisonment for the murder of Rukhsar and a fine of Rs.50,000 in default whereof to undergo further R.I. For five years.
(iv) Kamran:--convicted under, section 307, P.P.C. For murderous assault upon Akhlas and Muhammad Rahman and sentenced to 10 years R.I. In default whereof to undergo further R.I. For one year.
It was further directed that half of the fine, if recovered shall be given to the legal heirs of the deceased as compensation. Benefit of section 382-$, Cr.P.C. Was, however, not extended to the convicts.
2. The prosecution story as given in the (F.I.R. Exh.PC/1) recorded at 6-15 p.m. In Police Station, Murree by Adalat Hussain moharrir A.S.I. (P.W.8) on the written application (Exh. P.C) of Muhammad Fazil, complainant (P.W.5) which was received in the Hospital by Mian Muhammad Afsar (P.W.16) at 6.00 p.m. Briefly stated is that on 9-7-1989 at 9.00 a.m. Complainant received information that Rukhsar deceased and Jamil Javed, Kamran and Shakoor accused had a quarrel with each other.
Muhammad Fazil (P.W.5) complainant, Haji Abbas, Haji Taj Muhammad, Muhammad Farooq and Haji Maqsood went to village Numble to have the matter settled. A Jirga was convened after Zohar prayers at Dhobi Ghat. The Jirga listened to Jamil accused. At the asking of Haji Abbas, Farooq and Shakoor, deceased Rukhsar was sent for in the meeting. Complainant told that his presence was not necessary and that if he is at fault his brother Nazar would apologise. On their insistence Rukhsar was called and the moment he reached there, Farooq started rebuking Nazar Muhammad, the brother of Rukhsar deceased. Realizing the tense situation, Rukhsar deceased was sent back by the Jirga. Nazar Muhammad and Farooq were still exchanging hot words when Zaroof and Tamil accused joined them and started abusing Nazar Muhammad. The members of the Jirga reprimanded them and asked them to leave. They went towards the road where Rukhsar and Iftikhar deceased, Rahman, Akhlas, Ishtiaq, Aziz-ur-Rehman, Fayyaz and Muhammad Iftikhar were already sitting. In the meanwhile, Zaroof accused armed with a revolver and a chhuri, Jamil accused armed with a revolver and a knife, Javed accused armed with chhuri, Kamran armed with chhuri, Babar accused armed with soti, Abdul Shakoor accused armed with soti and Zamir- accused emerged out of the shop of Zamir accused. Zameer accused called out Rukhsar, Iftikhar, Ramzan, Akhlas and Abdul Rehman who went towards him and then all the seven accused launched a murderous assault upon them. Zaroof and Jamil accused fired shots from their pistols.
Javed gave a chhuri blow to Rukhsar on his neck. Jamil gave chhuri blow to Rukhsar on his left ribs.
Zaroof gave a chhuri blow to Rukhsar which hit him under his left arm pit. Rukhsar fell down and Shakoor gave a soti blow to him. Iftikhar deceased came forward to the rescue of Rukhsar but Zaroof accused gave a chhuri blow to him which hit him on his left chest. Zubair accused gave a soti blow to Iftikhar which hit him on his head. Thereafter, Abdul Shakoor accused caught hold of Ramzan P.W. And Kamran accused gave a chhuri blow to him which landed on his neck. Shakeer accused have a soti blow to Akhlas on his chest. Babar accused gave soti blow to Akhlas on his buttocks. Rukhsar, Iftikhar, Ramzan and Akhlas were seriously injured. They were being taken to Hospital when Rukhsar and Iftikhar succumbed to the injuries on the way and died. Muhammad Fazil (complainant) was in Hospital to attend the injured when police came there. He handed over a written application (Exh.PC) for registration of a case to Muhammad Afsar S.I. (P.W.16) which was sent to the police station and a formal F.I.R. (Exh.PC/1) was lodged. Thereafter, Muhammad Afsar S.I (P.W.16), prepared injury statement of Iftikhar deceased (Exh.PQ) and inquest report (Exh.PR) and injury statement of Rukhsar deceased (Exh.PW) and his inquest report (Exh.PV). He also prepared the injury statements of the injured Akhlas and Ramzan. On 10-7-1989, he visited the spot and collected blood-stained earth from two places where Rukhsar and Iftikhar deceased received fatal injuries vide memo (Exh.PZ). On 11-7-1989, he arrested Muhammad Zaroof, Muhammad Jamil and Javed Akhtai. Zaroof produced his licensed revolver and licence P-6 and 15 live cartridges P8/1-5 which were taken into possession vide memo. (Exh-PE) which was witnessed by Mushtaq Ahmad H.C. (P.W.9) and Afsar (P.W.16). On 21-7-1989, Jamil led to the recovery of knife P-18 from the bushes which was taken into possession vide memo. (Exh.PK) and the same was witnessed by Muhammad Ashfaq (P.W.11) who is first cousin of Iftikhar deceased ad Ghulam Sarwar S.-I. (P.W.17). On the same day, Zaroof led to the recovery of blood-stained chhuri P-6 which was taken into possession vide memo. (Exh. PH) and the same was witnessed by Muhammad Ashfaq (P.W.11) and Ghulam Sarwar (P.W.17). On 20-7-1989, Javed accused led to the recovers of chhuri P-19 and it was taken into possession vide memo. (Exh.PL) which Was witnessed by Amjad Mahmood, Inspector (P.W.18). On the same day, Kamran led to the recovery of blood-stained chhuri P-20 which was taken into possession vide memo. (Exh.PM) and the same was witnessed besides P'W' 18, by Ghulam Sarwar (P.W.13).
3. C.W. 1 Muhammad Sohail Butt, furnished secondary evidence qua medico-legal reports issued by Dr. Amjid Saeed with regard to injuries caused to Muhammad Jamil as Dr. Amjid Saeed was away to 5audi Arabia as also qua medico-legal report issued by Dr. S. Hassan vtehrnood who medically examined Muhammad Zaroof accused as D.S. Gysan Mehmood was not traceable and could not be served. As both the Dctors were not available, this witness identified their signatures on the afore-referred M.L.Rs. C.W. 2 is Zulqarnain Process Server. He stated that despite efforts made, service could not be affected on the afore referred Doctors.
4. During trial, the prosecution examined 18 witnesses including the Doctor and the Investigating Officer.
5. Dr. Ijaz Ahmad appeared as (P.W.14). He examined Mid Akfrlas (P.W:17) and found three injuries on his person. The same day, i.e. On 9-7-1989, he examined Ramzan (P.W.6) and found to two injuries on his person. On 10-7-1989, he conducted post-mortem examination on Muhammad Iftikhar deceased and found following injury on his person:--
(1) An incised wound 1-1/2" directed slauntingly downW9rd and to the right. Wound communicating with the chest cavity after passing through sternum. Wound is -2" to the right arm, left nipple.
Internally the sternum periced under Injury No.1 and pericardium was incised and blood accumulating in chest cavity The stomach contained party digested food and there was no urine in the bladder. Rest of the organs were found healthy.
According to him, this injury was sufficient to cause death in the ordinary course of nature. The same day, he conducted post-mortem examination on Rukhsar deceased and found following injuries on his person:_
(1) Incised wound 1-1/2 x 1/2" going through and through the neck communicating with Injury No.5 half inch to the right of mid line, 2-1/2" below the right angle of mendable.
(2) Incised wound 1" x 1/2" x skin deep on the left side of chest, 2" above and to the left of left nipple, corresponding cut in the shirt present.
(3) Incised wound 3" x 1" on the left side of left chest below arm pit, 3" below the post axillary wall, corresponding mark on shirt.
(4) Incised wound 1 " x 1 /2" , 2" below and to the left of injury No.3 on the back of left side of chest.
Corresponding mark on shirt present.
(5) Incised wound 1/2" x 1/2" on the right side of neck near back, 2" below the right ear. This injury in communicating with Injury No.1.
(6) Incised wound 1/2" x 1/4" on the side of neck anteriorly 1/2" to the right of mid line and skin deep.
(7) Four bruises on side of left buttock in area of 2" x 2"
Death, according to him, was caused collectively by Injuries Nos. 1, 3 and 4 due to haemorrhage and shock. As per his opinion, these injuries were sufficient to cause death in the ordinary course of nature. On 12-7-1989, he examined Javed Akhtar accused and found four injuries on his person.
These were merely scars and brusises. The same day, he examined Zubair accused and found four injuries i.e. a scaled wound, two brusises and a laceration wound.
6. While appearing as (P.W.5) Muhammad Fazil (complainant), made statement consistent to the story given in the. F.I.R. (Exh.PC/1). Muhammad Razzan (P.W.6) and Muhammad Akhlas (P.W.7), appeared as eye-witnesses and corroborated the statement of (P.W.5).
7. The convict Zaroof when examined under section 342, Cr.P.C. While admitting the occurrence, took up the plea of self-defence but gave his own version in his detailed statement which reads as under:-- "There is Government water tap in front of my house, from where all the villagers fetch water for domestic use. On 7-7-1989 Ikhlas P.W. Was married. He affixed plastic pipe with water tap,and got a supply to his house for ceremonial purposes. It continued till the evening of 8-7-1989 when the women-folk removed the same for fetching water. This was objected to by Ikhlas and there was some row between them. On 9-7-1989, Ikhlas, Iftikhar, Rukhsar, Aziz-ur--Rehman and Razan at about 8.00 a.m. Started breaking even the iron pipe of the said water tap. We saw it -and dissuaded them, upon which they became nasty. Myself, Javed and Jamil slapped them and Aziz- ur-Rehman suffered injuries during the occurrence. They took to their heals then. A Jirga was convened in his regard at Dhobi Ghat. We were told by elders to stay aside and that we will be called there shortly. I alongwith Muhammad Jamil, Javed Akhtar and Zubair were present at the shop of Zubair in Charra Gali, when without waiting for decision of Jirga suddenly Rukhsar and Iftikhar deceased alongwith Razan and Ikhlass P. Ws. Armed vecariously arrived there and raised lalkara that they have come to avenge the morning incident, I became afraid and in order to terrif them fired shots in air, but they did not desist and opened attack upon us. I picked up chhuri from the shop of Zubair and in order to save my life as well as that of my co-accused I caused them injuries. Janul, Javed and Zubair did nothing else except getting beating. Kamran, Shakoor and Babar accused were not even present there. After the occurrence. We. Four went to Ghora Gali Police Post and informed Muhammad Afsar S.-I., who took along Jamil accused to Murree as his condition was serious, but confined us there at Police Post. It was on the following day that said Muhammad Afsar S.-I. In collusion with the complainant partly fabricated this false story against us."
Muhammad Jamil, Javed Akhtar and Zubair accused while adopting the plea of Zaroof accused, submitted that they were present at the spot but did nothing and that they were beaten by the complainant party.
8. All the remaining accused denied the prosecution story, denied their presence at the spot and attributed false implication to relationship with the co-accused.
9. In support of his appeal, learned counsel for the appellants-convicts has made following submissions:--
(i) that the F. I. R. Was lodged after a preliminary inquiry and not on the day on which it is shown to have been registered. According to him, the Police Station is at a distance of 100 yards from the Hospital. The complainant reached Hospital at 4.30 p.m. Alongwith the injured and there was no justifiable reason to wait for two hours and lodge the F.I.R. At 6.15 p.m. This delay, it was further contended, would adversely affect the-veracity of the F. I. R.
(ii) that the complainant was not present at the time of occurrence. Had he been present instead of going to the Hospital, he would have straightaway gone to the police station. Further, proof of his non-presence at the spot is the non-mention of his name in the site plan.
(iii) that the motive lay with the complainant party to attack the appellants as according to P. W.7 Iron tap was broken by the complainant for which Aziz-ur-Rehman was beaten up by the accused and complainant party wanted to avenge this incident.
(iv) that the complainant party has come to the Court with unclean hands inasmuch as they suppressed the injuries caused to Muhammad Jamil, Muhammad Zaroof and Zubair.
(v) that it is a case of self-defence Zaroof was attacked by the complainant party and with a view to protect, himself and the other accused, he responded and gave blows to the complainant party.
Anything done in self-defence, according to learned counsel is not an offence and at worst it is case of 304 (Part_I) P.P.C. And not under section 302, P.P.C.
(vi) that there is no evidence that Javed and Jamie appellants caused any injury to Rukhsar and their conviction under section 302, P.P.C. For having caused the death of Rukhsr is not sustainable in law.
10. Learned counsel for the complainant, on the other hand, while defending the impugned judgment and while pressing his revision for enhancement has raised following points:--
(i) that the appellants-accused had launched a premeditated attack. The place of occurrence, motive and the time is admitted by the accused. It is in evidence that accused Rukhsar was specially called by the accused. P.W.5 states that he had undertaken before the accused party that if Rukhsar was found at fault, his real brother Nazar would apologise. According to him, since the iron pipe was broken by the members of the complainant party which is evident not only from prosecution evidence but also from the statement of Zaroof convict, the motive lay with the appellant accused to attack complainant party and not vice versa.
(ii) that P.W.6 Razzan and Akhlass have specifically stated that Javed and Jamil accused gave knife blows to Rukhsv and their conviction under section 302, P.P.C is not bad in law.
(iii) that the plea of self-defence is not available to the appellants as there is nothing in evidence that the complainant party initiated the attack or that the appellant, had an honest belief that there was danger to their life and liberty.
11. Learned counsel for the State, mainly adopted the arguments of the learned counsel for the complainant. While arguing State appeal, against acquittal of Babar, Zamir and Abdul Shakoor, he pointed out that there was, no justification in law for acquitting the accused on the same set of evidence, on which the co-accused have been convicted.
12. We have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the bar and have also gone through the record.
13. The prosecution case is based on the ocular account, the medical evidence, the evidence of recovery and that of motive. Muhammad Fazil (P.W.5), Muhammad Ra2an (P.W.6) and Muhammad Akhlas (P.W.7) have furnished the ocular account. Out of these P.Ws. 6 and 7 are injured witnesses.
Muhammad Afzal (P.W.5) who is complainant in this case, reported the matter through a written application to Police wherein he narrated the alleged occurrence and assigned specific roles to the applicants --accused. His statement is corroborated by the afore-referred injured witnesses whose presence at the spot is admitted and who despite having been subjected to lengthy cross- examination could not be discredited. An attempt was made to show that P.Ws. 6 and 7 had not attributed any injury on the person of Rukhsar deceased to Javed and Jamil convicts. These witnesses specifically attributed injuries to these convicts-appellants in their statements during trial. However, when they were confronted with their earlier statements recorded under section 161, Cr.P.C. The specific attribution was missing. We note that ,4 the injuries attributed to Jamil and Javed appellants-convicts are not only corroborated by Muhammad Fazil (P,W.5) but also by the medical evidence in minute detail. That being so mere omission of specific injuries in their earlier statements recorded under section 161, Cr.P.C, (which are Exh.D-1 and Exh. DO-2 respectively) would not discredit their testimony as this could be the result of dishonest investigation.
The ocular evidence is corroborated by the medical evidence i.e. The injuries on the deceased, and the injured eye-witnesses. The evidence of recovery has rightly been disbelieved by the learned trial Court and for valid reasons. The evidence of recovery being a circumstance to corroborate the ocular account, its infirmity would not be fatal for prosecution case when the direct evidence is overwhelming and the presence of eye-witnesses and even the occurrence (of course with a different version) is -admitted by the defence.
Coming to the question of motive, we find that P.W:6 tat page 62 of the paper book), stated that the water pipe was broken by him, Akhlas, Rukhsar and Iftikhar. This finds support from the statement of Zaroof convict-applicant who (at page 138 of the paper book) while admitting the occurrence stated that the afore-referred persons had broken the water tap. The accused party, therefore, had a grievance against the complainant party and specifically against the afore-referred persons out of which, Rukhsar and Iftikhar were made' victims to the fatal attack and they died. Thus, motive lay with the appellants-convicts to attack.
14. In a criminal case where there are two opposite versions of the same incident and a plea of self- defence is missed, motive assumes importance. On E the one hand, it explains the conduct of the persons involved in a transaction and on the other hand, it helps in a better appreciation of the evidence on record. In the case in hand, the incident took place on account of break up of a water pipe by Akhlas (P.W.7), Iftikhar and Rukhsar deceased. After the breaking of the pipe, a Jirga was convened to resolve the issue. It is in the statement of P.W.5 that Haji Abbas had asked that Rukhsar deceased should be sent for. P.W.5 further added that, "it was also suggested by him that brother of Rukhsar would apologise if he is found guilty. In the meantime, someone called out Rukhsar who came there. The moment he came, Farooq started bitter words qua Nazar, brother of the Rukhsar deceased. "The afore --referred narration would show that the accused party had a grievance against those who had broken the pipe particularly against Rukhsar deceased. The number and nature of the injuries received by the complainant party would also suggest that they were the victims of attack and that the accused party were armed with deadly weapons. Akhlas P.W.7 received three injuries out of which one was incised. Rukhsar deceased received one deadly injury which proved fatal. Rukhsar deceased received six incised wounds. Razan P.W. Also received two injuries. Both of which were incised wounds. Zaroof convict-appellant while adopting the plea of self-defence did not specify those weapons which the complainant party was carrying and whom did they injured or attached. He even does not say that the complainant party initiated the attack. He merely stated.
"Suddenly Rukhsar and Iftikhar deceased alongwith Razan and Ikhlas P. Ws. Armed variously arrived there and raised lalkara that they have come to avenge the morning incident. I become afraid and in order to terrify them tired shots in the air, but they did not desist and opened attack upon us "
15. In order to plead the right of self-defence, certain pre-conditions are imperative. In Imtiaz Ahmad v. The State (PLD 1988 Supreme Court (AJ&K) 134) at page 141, it was held as under:-- "The exception of right of self-defence of person or property is permitted under law but at the same time, in order to avail the exception of self-defence, it is essential to show; (i) that the occurrence was not due to fault or act of accused; (ii) that there was an immediate danger to life, in honest belief of accused; (iii) that no reasonable course was available to accused to escape oar avoid the necessity; and (iv) that there was no intention to cause more harm than necessary for the purpose."
16. There is nothing on record to show that the complainant party was armed with deadly weapons i.e. Fire-arms, knives or even sticks or that they did any overt act which could raise an honest and reasonable belief in the mind of the accused party that they were being attacked and there was no option for them but to attack the complainant party in self-defence. The plea that four unarmed persons (Iftikhar Rukhsar, Akhlas and Ramzan) wanted to attack the accused who were (admittedly arms' with deadly weapons) is repellent to common sense and not tenable in law. And to say that Javed and Jamil accused through present at the 'spot "did nothing except getting beating" (defence .Plea) is not only against normal human conduct but also against the weight of evidence. If the complainant party wanted to attack, they would have come with deadly weapons.
Zaroof appellant-convict, on his showing was armed with a gun which he used. He admittedly used chhuri and gave injury to Iftikhar deceased which provided fatal. It is in evidence that Rukhsar deceased was at the spot on being summoned in the Jirga and that P.W.5 was apologetic and had expressed that if he was at fault, his brother would apologise.
17. Exh. C.W. 1/1, medico legal report of Muhammad Jamil, appellant --convict and Exh.CW-1/2, the medico-legal report of Muhammad Zaroof appellant-convict which were tendered in evidence during trial, would show that Muhammad Jamil received three injuries out of which one is incised wound `whereas one is laceration and the third one is a mere bruise. Muhammad Zaroof convict- appellant -received only two bruises. Thus, there is only one incised wound received by the accused party and about the rest, the Doctor opined the possibility that these were caused by a friendly hand cannot be ruled out. The single incised injury would not prove that the complainant party initiated the attack or there was an immediate danger to the life of the accused. The medico-legal report of Jamil appellant (Exh. CW 1/1) shows that he was examined at 2.10 a.m. On 10-7-1989. The duration of injury given is 2 hours. The occurrence took place on 9-7-1989 at 4.00 p.m. The duration of injuries does not tally with the time of occurrence. These injuries it seems were fabricated to raise plea of self-defence. On a query, learned counsel for the appellants submitted that the accused party got a counter case registered but the same was cancelled by the Police.
However, the accused never filed any private complaint making a grievance and raising the plea of self-defence. Appellant Zaroof neither produced any evidence in defence nor gave evidence on oath in disproof of the charge against him or in support of the plea of self-defence taken in his statement under section 342, Cr.P.C. The accused produced medico-legal report of Aziz-ur- Rehman son of Abdul Rehman as Exh.CW-1/3 to show that the same day, at 8.00 a.m. There was an occurrence in which Aziz-ur-Rehman who is nephew of Rukhsar deceased was given beating by the accused party and in order to avenge that the complainant party launched the attack. A look at afore-referred medico---legal report would show that the injured was examined at 9.00 a.m.
And the duration opined by the Doctor is four to six hours. Thus, these injuries could not have been caused at 8.00 a.m. Moreover, the parentage given in the said report is Aziz-ur-Rehman son of Abdul Rehman whereas Abdul Rehman is nephew of Rukhsar and son of Banaras.
As there is no evidence of pre-concert and that the occurrence took place all of a sudden, the question of vicarious liability would not be attracted. Jamil and Javed convicts-appellants are attributed injuries to Rukshar deceased. Zaroof-convict-appellant gave fatal blow to Iftikhar deceased and Kamran appellant convict gave two chhuri blows to Razzan on his neck and libs.
Each of the appellants has rightly been convicted for the individual role that each played and the finding and the sentence, therefore, arrived at by the learned trial Court is not open to exception.
18. Coming to Criminal Revision No.77 of 1992 for enhancement of sentences of Javed, Jamil and Kamran appellants-convicts, we find that as per the opinion of the Doctor (P.W.14), Injuries Nos.1, 3 and 4 received by Rukhsar deceased were sufficient collectively to cause the death of Rukhsar deceased. Injury No.1 is attributed to Javed appellant-convict where as Injury No.2 on the person of Rukhsar deceased is attributed to Jamil appellant-convict. Since it is not shown that the injuries attributed to both these appellants were individually sufficient to cause death, the extreme penalty of death would not be warranted in the instant case. Similarly, Kamran gave a single blow to Akhlass and two blows to Razzan (P.Ws.) and he did not repeat the blows and the injuries attributed to him are not grievous, the enhancement of sentence, in his case is also not called for.
19. Coming to Criminal Appeal No.80 of 1992 filed by the State, we find that the accused Babar, Zamir alias Zubair and Abdul Shakoor have rightly been acquitted by the trial Court as the soti blows attributed to them have not been proved by the medical evidence. The learned trial Judge, has given valid reasons for their acquittal which finding is neither perverse nor against the weight of evidence. An accused is presumed to be innocent in law and if after a regular trial, he is acquitted he earns a double presumption of innocence and the onus is on prosecution to rebut said double presumption. Learned counsel for the State, has not been able to refer to any material on record to rebut the said presumption. Therefore, there is no merit in the said State appeal which is dismissed.
20. In view of what has been discussed above, Criminal Appeal No.191 of 1991 filed by the appellants-convicts is dismissed. Criminal Revision No.77 of 1992 filed by the complainant for enhancment of the sentences also meets the same fate.
21. While parting with the Criminal Appeal No.191 of 1991 we note that the learned trial Court has not extended benefit of section 382-B, Cr.P.C. To the appellants-convicts which is mandatory in law.
We, therefore, direct that while computing their period of sentences, their period of detention during trial shall also be counted for in terms of section 382-B, Cr.P.C.