ZAFAR PASHA CHAUDHARY, J.---This judgment will dispose of Criminal Appeal No.31 of 1985 as well as Criminal Appeal No.92 of 1984 together, as both arise out of same judgment dated 4-10-1984 passed by Mr. Saleem Aftab Sheikh, learned Additional Sessions Judge, Rawalpindi in case F.I.R.
No.124, dated 15-10-1980 registered with Police Station Saddar, Rawalpindi under sections 302/307/34, P.P.C. Criminal Appeal No.92 of 1984 has been filed by Abdul Malik and Muhammad Hussain accused against their conviction whereas, Criminal Appeal No.31 of 1985 has been moved by the State against the acquittal of the accused persons of the charge under section 302, P.P.C.
2. Three accused persons namely Muhammad Hussain, Abdul Malik and Muhammad Riasat were sent up to face trial in the above-noted case in the Court of Mr. Saleem Aftab Sheikh, learned Additional Sessions Judge, Rawalpindi under sections 302/307/34, P.P.C. Originally in the F.I.R. Four accused persons had been nominated as accused but Noor Ahmad co-accused died before the commencement of trial, therefore, proceedings against him stood abated. The learned trial Judge on conclusion of the trial convicted Abdul Malik and Muhammad Hussain accused under section 304, Part-I, P.P.C., Abdul Malik was sentenced to undergo ten years R.I. And to pay a fine of Rs.7,500, out of which Rs.6,500 were to be paid to the heirs of the deceased and the remaining amount of Rs:1,000 to go to the State., Muhammad Hussain accused was sentenced to undergo five years R.I with a fine of Rs.4,000, out of which Rs.3,000 to be paid to the injured P.W. Mst. Shehnaz Begum and the remaining Rs.1,OQ0 was to be paid to the State. Third accused namely Muhammad Riasat was acquitted of the charges against him.
3. The prosecution case in brief as revealed from the statement of Mansabdar P.W.8 is that on 15- 10-1980 at about 8.30 a.m. When he was getting ready for going to Rawalpindi, he saw Abdul Malik, Muhammad Riasat, Noor Ahmad and Muhammad Hussain proceeding towards the house of Noor Ahmad. The complainant came to the house of his aunt Mst. Sahib Jan where Fazal Dad.
Muhammad Ashraf, Mst. Sahib Jan and Mst. Shehnaz Begum were already present. He told Fazal Dad and Muhammad Ashraf that Abdul Malik etc. Were roaming about together and the same should be reported to the police. In the meanwhile, at about 1.00 a.m. Abdul Malik, Muhammad Riasat. Noor Ahmad and Muhammad Hussain all armed with guns came in the street in front of the door of Fazal Dad. Abdul Malik shouted that Mansabdar be brought out, on which Msz, Sahib Jan entreated that they should refrain from killing him but Abdul Malik fired a straight shot from his gun hitting Mst. Sahib Jan on her forehead, nose and head. Simultaneously Noor Ahmad also tired a shot hitting Mst. Sahib Jan on her chest and right hand. She fell down at the spot. On seeing this, Muhammad Ashraf and Mst. Shehnaz Begum hid themselves behind the wall when Fazal Dad who was witnessing the occurrence fired a shot in self-defence on the assailants but Muhammad Hussain by taking shelter behind the wall fired a-- shot out of which one pellet hit Mst. Shehnaz Begum on her right flank. Fazal Dad was advancing to rescue his injured mother but Riasat fired a shot hitting Fazal Dad on his left buttock. On alarm raised by Fazal Dad all the four accused fled away towards the mosque. Mst. Sahib Jan had succumbed to the injuries: Had Fazal Dad not fired, the accused could have caused more loss.
4. The motive was stated to be that Muhammad Sarwar and Muhammad Arif cousins of the complainant had started construction of their house which adjoins the land of Multan Khan father of Abdul Malik accused. Multan Khan blocked the way but demarcation was got effected from the Tehsildar in favour of the complainant. Out of this grievance all the four accused persons mounted a pre-concerted attack murdering Mst. Sahib Jan and injuring Mst. Shahnaz Begum and Fazal Dad.
5. The prosecution in order to prove its case examined 12 witnesses, out of them Dr. Abdul Razzaq P.W.3 conducted the post-mortem examination of Mst. Sahib Jan aged about 60/70 years on 16- 10-1980 at about 8-30 a.m. And noted the following injuries on her dead body:- .
(1) A fire-arm wound of entry on left cheek.
(2) A fire-arm wound of impact on left side of forehead 4 c.m. Above left eye-brew.
(3) Fire-arm wounds of impact and entry on the right side of forehead above right eye-brew and frontal area of adjoining part of head.
(4) , A fire-arm wound of entry on the bridge of nose of upper part.
(5) Two fire-arm wounds of entry exit on the front of right fore-arm lower part above wrist. The entry wounds are on the middle side.
(6) A fire-arm wound of entry on the right side of nose of upper part.
(7) A fire-arm wound of impact below left clavicle outer part.
(8) A fire-arm wound of entry on front of chest in the middle at the level of four rib 10 c.m. From left nipple at 10'0 Clock. Under this injury thoracic aorta was found perforated at its root.
(9) A fire-arm wound of entry on palm of right hand.
All the injuries were ante-mortem caused by fire-arm, Injuries Nos.3 and 8 were individually sufficient to cause death in ordinary course of nature and duration in between injuries and death was immediate.
6. Dr. Abdul Razzaq P. W.3 also medically examined Fazal Dad P.W.10 on 15-10-1980 at about 1.00 p.m. And noted three fire-arm wounds of entry and exit on the back of sacral region, a wound on the right buttock 2 x 1 c.m. And another wound 2 c.m. x 1 c.m. And a corresponding wound of exit.
7. On 15-10-1980 he also examined Abdul Malik accused and found multiple fire-arm wounds of entry, as a result of impact of pellet on forehead, tip of nose, right upper eye lid, below left eye both cheeks, lower lip chin, tip of tongue, left side of neck upper part, on back of left fore-arm at middle and lower parts, left wrists back and back of left hand opposite index finger and on back of left index finger, back of right elbow, ~ back and inner part of right fore-arm, back of right wrist and right hand, rig4t upper arm front middle and upper part, back of left upper arm and back of left upper part of chest, face was swollen. Diameter of each wound was 3 x 10 c.m. Injuries had been caused with fire-arm within a duration of three to six hours.
8. He also medically examined Muhammad Riasat accused and noted a fire-arm wound of entry and exit 24 c. m. x 11 c. m. x bone deep on the left fore-arm back and outer aspect up to upper part of front of left elbow. The margins were burnt underneath muscles were badly torn. There was profuse bleeding from the wounds. There were also multiple wounds of impact/entry on the left upper arm front outer part caused with fire-arm. The duration of injuries was about 3 to 6 hours.
9. Dr. Mehmood Khan P.W.6 on the same day i.e. 15-10-1980 at about 8.30 p.m. Medically examined Mst. Shehnaz Begum P.W.9 and described .a grazed wound 1/5 c.m. On outer part of middle of right breast, slight blackening of edges of wound was present containing corresponding hole on shirt and banyan. The injury was caused with fire-arm within 11 to 12 hours.
10. During the trial Mansabdar P.W.8, Mst. Shehnaz Begum P.W.9 and Fazal Dad P.W.10 furnished the eye-witness account which in substance is the same as, has been detailed (supra). All the witnesses made consistent statements supporting each other on all material points. Muhammad Akram P.W.7 Draftsman prepared the site plan Exh.P.K. And Exh.P.K/I in duplicate of the place of occurrence with the help of witnesses.
11. After close of the prosecution case, the accused were examined under section 342, Cr.P.C. They denied the allegations against them. The defence version in detail, however, was put forward by Abdul Malik accused in answer to question No. 10, which is reproduced as under:-- "On the day of occurrence as I stated above I had blocked the way as the complainant party wanted to encroach upon the land of my father. The complainant party is the most influential party in our village. In order to avoid the complication I was proceeding to the house of Noor Muhammad, co-accused for taking him to police for report. The moment I passed by the house of Fazal Dad P.W. I was chased by Mansabdar, Fazaldad and two relatives holding the guns. I started hue and cry Noor Muhammad who was living nearby came armed with gun I was attacked by the complainant party. Mst. Sahib Jan and Shahnaz came in the lane to check Fazaldad and others not to fire on me they were also injured in this indiscriminate firing Riasat was also injured. Noor Muhammad co-accused in his self-defence and the defence of my person he also fired at the complainant party I was not armed with anything. I was rendered helpless at the spot and fell down. Due to these injuries I remained in the hospital for 8 months because I developed the hemophilia. In fact the complainant party was the aggressor. My relatives had gone to make a report in the police station but since the other party who most of them belong to the police department and due to their influence the present case made against us."
The salient feature of defence is that in fact the complainant party opened attack when he was passing by the house of Fazal Dad P.W.10. He was chased by Mansabdar, Fazal Dad and 'two others and on his hue and cry Noor Muhammad the dead co-accused came armed with a gun. Mst.
Sahib Jan and Mst. Shehnaz came in the lane to check Fazal Dad and his companions not to open the fire but on account of indiscriminate firing they were injured. Riasat was also injured during that firing. Noor Muhammad also opened fire at the complainant party. Abdul Malik accused stated to be empty handed was injured seriously as a result of which he remained in hospital for eight months.
12. To assess the possible credibility of the defence version, the prosecution and the- defence versions have to be juxtaposed which will be discussed in the later part of the judgment.
Muhammad Hussain co-accused also while making statement under section 340, Cr.P.C. Made a similar statement. Riasat, however, stated that the occurrence took place near his house. On hearing the noise he reached the spot and received injuries at the hands of complainant party. In fact he was witness against them but to prevent him from doing the same he was implicated as an accused.
13. The learned Additional Sessions Judge, on conclusion of the trial observed that he was of the opinion that it was the complainant party which had a motive to attack and not the accused.
Moreover, the story of the prosecution that when they saw the accused party roaming about near their house that they would attack the complainant; appears to be a creation of imagination of the complainant party. According to him had the accused party opened fire first the members of the complainant party would have remained inside the house and would not have let their women-folk to go out of the house in the street to persuade the accused not to fire at them. He was therefore, not persuaded to believe that the accused party had any motive to attack the complainant party as the same was coming from the mouth of the P.Ws. Because the demarcation regarding the land had already been done there was no longer any difference of opinion regarding the same. The learned trial Judge proceeded on to comment that yet there was -another aspect of the case according to him as per site plan the place of occurrence is near the house of the accused. Had the accused attacked the complainant party the position would have been otherwise. Therefore, the learned trial Judge held that the complainant party first attacked the accused who in turn opened firing exercising the right of self-defence. Thereafter, the learned trial Judge proceeded to specify the role assigned to individual accused. As regards Muhammad Hussain and Abdul Malik they had a right of self---defence but only against injured P.Ws. i.e. Fazal Dad etc. Mst. Sahib Jan and Mst. Shehnaz were unarmed, therefore, there was no justification to open fire on them, as such they exceeded the right of self-defence in causing death of Mst. Sahib Jan and injuring Mst.
Shehnaz Begum. As Noor Ahmad was already dead, therefore, proceedings against him stood abated. Abdul Malik was, therefore, held guilty for exceeding the right of self-defence under section 304, Part-I, P.P.C. And was sentenced to ten years R.I. With a fine of Rs.7,500. As regards Muhammad Hussain who had caused. Injuries to Mst. Shahnaz, he was convicted under section 304, Part-II, P.P.C. And was sentenced to five years R.I. With a fine and compensation etc. As detailed above.
14. We with the help of the learned counsel for the parties have gone through the relevant evidence and the relevant record, such as site plan, inspection notes etc. We are fully conscious of the fact, that burden of proof in a criminal case always remains on the prosecution and the same has to be discharged beyond any doubt. We also cannot remain unaware of the principle that in case the prosecution and defence came forward with counter pleas, both have to be juxtaposed and onus to discharge on the prosecution is heavier than what on the defence. If after comparing the two versions it is noticed that the defence version as put forward by the accused person might be reasonably true then the benefit of doubt invariably is extended to them. Keeping these principles in mind, we have assessed and appraised the prosecution as well as defence versions. The prosecution version as contained in the F.I.R. Was further reiterated during the trial by the three P.Ws. Namely complainant Mansabdar P.W.8, Mst. Shehnaz Begum P.W.9 and Fazal Dad P.W.10. As Mst. Shehnaz Begum and Fazal Dad P.Ws. Have received injuries, therefore, their presence at the place of occurrence cannot in any manner be doubted nor is being disputed by the defence.
Presence of Mansabdar complainant in the house of Mst. Sahib Jan his aunt is also quite natural.
Apart from that the occurrence took place at 10-00 a.m. And the same was reported at the police station vide Exh.P.L.. At 12.00 (noon) when the police station is located at a distance of 20 kms., abundantly establish that the matter was reported promptly and without any possible deliberations etc. As against the prosecution version, the defence version which has been brought on record by Abdul Malik accused and Muhammad Hussain co---accused deserves equal attention and assessm ent.
15. In order to weigh and appraise the two versions admitted facts, place of occurrence, the manner in which the occurrence took place according to the prosecution and the manner in which the same is described by the defence as well as the motive to commit aggression, are important factors, The site plan Exh.P.K. Was prepared by Muhammad Akram P.W.7 which bears the relevant notes in black in his hand and in red by the police. According to the site plan the main occurrence which is death of Mst. Sahib Jan took place at point No. l which is located in the courtyard of house of Fazaldad who is son of Mst. Sahib Jan. The other two injured i.e. Mst. Shehnaz Begum and Fazal Dad received injuries on Point 8 and 10 respectively, they too are close to point No. l i.e. The place of injury of Mst. Sahib Jan. The accused persons have been stated to be standing outside the house in the street at point Nos.3, 4. 6 and 11 which are located near the house of Muhammad Riasat accused and the corner of the house of Fazaldad. The important factor to be noted is that there is only one door of the house which abuts in the street. The height of the street will has been shown as 3 x 3" i.e. Much shorter then the height of a normal persons. It means that the accused and the members of the complainant party were quite visible to each other and they were in fact confronting each other. One factor remains that the deceased and the injured all received injuries inside the house, meaning thereby, they did not come out of the house and remained present over there. Although the learned counsel for the defence has tried to dispute that the occurrence did not take place inside the house and the same occurred in the street but he has not been able to establish the same from any evidence or from any other circumstance. The blood-stained earth was collected from the place of injuries of the deceased and injured persons i.e. Inside the house.
Mere denial that the occurrence did not take place without suggesting that as to where the same took place, would be no avail to the defence.
16. Keeping that scenario in view, the next important aspect is the medical examination which in the present case appears to be extremely helpful to determine as to which of the party first opened the attack. According to the prosecution Abdul Malik was the first to open the attack by firing a straight shot on the person of Mst. Sahib Jan and other persons which was received on her vital parts and she succumbed to the injuries. The second fire of course is attributed to Noor Ahmad which statedly was fired simultaneously. Whether Mst. Sahib Jan received one shot or two, the fact remains that first shot which the witnesses would have definitely noted is assigned to Abdul Malik and the same proved fatal. As against that according to the defence the complainant party opened fire, as a result of which Abdul Malik received injuries on his face, which no doubt he sustained and remained in hospital for a considerable long time, the injuries on the person of Abdul Malik and especially the nature of the injuries received by him on his hand clearly show that Abdul Malik would have been incapacitated after receipt of the injuries on the hand and on the face to fire a shot from his gun. The defence also admits that after receipt of this injury Abdul Malik would not have been in a position to fire a shot. It means that the injuries received by Abdul Malik were subsequent to the fire shot by him. As to how he received injury the prosecution version that Fazal Dad on seeing that his mother had received injuries, he fired in order to defend him and his mother from the attack, this version has been taken from the very beginning i.e. In the F.I.R. Lodged promptly. We, therefore, are of the view that the prosecution stance at this point is truthful and merits to be accepted.
17. The learned trial Judge appears to be influenced by the fact that Abdul Malik received serious injuries on his face and arm but the question remains that if he had caused an injury on the person of Mst. Sahib Jan deceased then her son i.e. Fazal Dad had a right to defend the life of his mother who was admittedly empty-handed, was present in the house and naturally she must have implored the accused persons to resist from launching the attack. The learned trial Judge appears to have not taken into consideration that all the injured persons were present in the house and they remained present till they received the injuries which is evident from the fact that blood-stained earth-was secured from respective places of the injuries, Apart from that it is highly improbable that the complainant party would have launched attack by associating their women-folk comprising of Mst. Sahib Jan and Mst. Shehnal Begum a young girl alongwith them. The prosecution had come forward with the consistent plea right from the very beginning but on the other hand, as it appears from the various suggestions made during the cross-examination that the accused persons have been shifting their stance from time to time. Moreover, a vague and inconsistent stance has been taken by the defence. When a definite version had been put up by the prosecution that Mst. Sahib Jan lost her life as a result of aimed firing by Abdul Malik, the accused persons could have repelled the same by coming forward with a counter-plea which could be in consonance with the facts and circumstances of the case. The learned trial Judge has also erred in observing that the houses of the accused and the complainant are situated infront of each other. It is true that in the site plan house of Abdul Malik has been shown in front of house of Mansabdar and Mst. Sahib Jan deceased but it has come on the record in the statement of Mst.
Shehnaz Begum P.W.9 in the opening line of the page 41 of the Paper Book that it was correct that in front of house of deceased, Abdul Malik accused owned a house but he was not residing there and same had been let out to some tenant from Azad Kashmir. It appears that confusion arose because Abdul Malik did own a house but mere owning is not relevant, the question was whether he was residing there or not. If he was not residing there then the prosecution version at this point that the accused party came forward as, a result of pre concerted and pre-meditated plan, stands established.
18. Coming to the case of Muhammad Hussain, the allegation against him is that after Mst. Sahib Jan was inflicted injuries, they took shelter behind a wall and before that Fazaldad had also opened a fire in defence, whereafter, Muhammad Hussain accused fired a shot, as a result of which one pellet hit on the right flank of Mst. Shehnaz Begum. Apart from her, Fazaldad has also been injured, as a result of fire shot by Riasat accused. According to the prosecution he had just advanced to rescue his mother but as a result of falling he received injuries.
19. The learned counsel for the defence Malik Rabnawaz Noon, Advocate has argued the case mainly on the ground that Abdul Malik had received very serious injuries. Apart from him Riasat was also injured. Much stress has been laid on the point that the motive as set up by the prosecution is not proved. According to the learned counsel for the accused, if at all there was a dispute with regard to demarcation, the same had been carried out more than a month before the occurrence, therefore, there remains no grievance with the accused party as alleged. Apart from that both the parties were living together for the last quite some time after the demarcation but no untoward incident ever took place. Lastly it was argued that if at all the demarcation was opposed the grievance should be more with the complainant party and not with the accused persons, therefore, he inferred from these submissions that it was the complainant party who committed the aggression.
20. Sardar Muhammad Ishaq, Advocate appearing on behalf of the complainant alongwith the learned counsel for the State have very elaborately argued and demonstrated from the facts of the case that the defence version is vague, inconsistent and unbelievable. We in the light of the discussion as made out are of the firm view that attack was opened by Abdul Malik who being injured his presence at the spot has not been disputed. He fired a shot at an old woman, thereafter, it appears that there was exchange of firing in between Fazaldad on one hand and accused persons on the other hand. Abdul Malik cannot escape his liability merely because he received serious injuries after he had fired a fatal shot at Mst. Sahib Jan, Fazal Dad her son was fully justified to a: -t in self-defence and could cause injuries on the person of Abdul Malik, therefore, in our mind the offence committed by Abdul Malik is not covered by section 304, Part-1, P.P.C. But squarely falls under section 302, P.P.C. Coming to the question as to what sentence to be imposed we find that it is a single injury attributed to Abdul Malik accused which is not repeated at least on the person of Mst. Sahib Jan. The motive as set down by the prosecution could not be fully established, as to what was the igniting cause remains shrouded in mystery, we therefore, are not inclined to award the maximum penalty of death. He is, therefore, convicted under section 302, P.P.C. And sentenced to imprisonment for life and also to pay Rs.10,000 as fine, in default thereof to undergo further R.I.
For two years. He shall also pay a compensation of Rs.10,000 to the heirs of the deceased Mst. Sahib Jan, in default whereof to further undergo R.I. For six months.
21. As regards Muhammad Hussain, he was convicted under section 304, Part-II, P.P.C. And was sentenced to undergo R.I. For five year with a fine of Rs.4,000. According to the learned counsel a pellet allegedly from the fire shot by Muhammad Hussain hit Mst. Shehnaz Begum who ha appeared as a witness, therefore, he cannot be exonerated of his liability.' The learned counsel, however, canvassed vigorously that he was not sharing common intention and the occurrence was result of sudden flare-up in between the parties. It is supplemented that if at all there was some pre--planning or pre-concert that would have, been directed against Muhammad Sarwar and Muhammad Arif cousins of the complainant and not against the deceased or injured P.Ws., as alleged by the prosecution itself, therefore, even if Abdul Malik is burdened with the liability of murder, Muhammad Hussain cannot be burdened with similar liability. Supplements that the occurrence took place in the year 1980 and considering the offence alleged against him, admittedly he has caused only a pellet wound on non-vital part of the body of Mst. Shehnaz Begum, therefore, to imprison him after twenty years would not be just. He has already undergone adequate imprisonment. Therefore, a lenient view may be taken while imposing him the sentence.
We find the prayer quite reasonable. Accordingly, we sentenced Muhammad Hussain to imprisonment already undergone by him. However, we impose a fine of Rs.10,000 on him, in default thereof he will further undergo two years R.I. In case the same is recovered, will be paid to injured Mst. Shehnaz Begum P. W.9.
22. Mr. Abdul Shakoor Paracha, Advocate appearing on behalf of Muhammad Riasat accused has pleaded that he had no community of purpose with his co-accused, his house is situated across the street on the corner, as he was injured in the incident, .He could be an important witness against the complainant party, therefore, to refrain him to stand as a witness against them he has been arrayed as an accused. The possibility of the plea being true cannot be ruled out. We, therefore, extend the benefit of doubt to him and as such uphold and maintain his acquittal. The State appeal to his extent stands dismissed.
23. In view of what has been discussed above, the impugned judgment dated 4-10-1984 passed by Mr. Saleem Aftab Sheikh, learned Additional Sessions Judge, Rawalpindi is set aside. As observed above Abdul Malik accused is convicted under section 302, P.P.C. And sentenced to imprisonment for life. Muhammad Hussain's conviction under section 304, Part-II, P.P.C. Is upheld and maintained.
However, his sentence of five years imprisonment is reduced to the imprisonment already undergone and also impose a fine of Rs.10,000, in default thereof to undergo R.I. For two years, on recovery the same to be paid to the injured Mst. Shehnaz Begum. Muhammad Riasat's acquittal is upheld and maintained. Abdul Malik may be taken into custody forthwith to serve out his sentence.
Similarly if Muhammad Hussain does not pay the fine will be taken into custody to undergo imprisonment in default thereof. Benefit under, section 382-B, Cr.P.C. Is extended.
24. Criminal Appeal No.31 of 1985 and Criminal Appeal No.92 of 1984 stand disposed of in the above terms. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.