JUDGMENT ZAFAR PASHA CHAUDHRY, 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 FIR No. 124, dated 15.10.1980 registered with P.S. Saddar, Rawalpindi u/S. 302/307/34, P.P.C. Criminal Appeal No. 92/84 has been filed by Abdul Malik and Muhammad Hussan 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. PPC.
2. Three accused persons namely Muhammad Hussan, 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 u/S. 302/307/34, PPC. Originally in the FIR for accused persons had been nominated as accused but Noor Ahmad coaccused 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 Hussan accused u/S. 304. Part-I PPC, Abdul Malik was sentenced to undergo ten years' R.I. And to pay a fine of Rs. 7500/-. Out of which Rs. 6500/- were to be paid to the heirs of the deceased and the remaining amount of Rs.
1000/- to go to the State. Muhammad Hussan accused was sentenced to undergo five years' R.I.
With a fine of Rs. 4000/-. Out of which Rs. 3000/- to be paid to the injured PW Mst. Shehnaz Begum and the remaining Rs. 1000/- 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 Mansahdar PW-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 Hussan proceedings 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 Hussan all armed with guns came in the street in front of the door of Fazal Dad. Abdul Malik shouted that Mansahdar be brought out, on which Mst. 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 fired 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 Hussan by taking shelter behind the wall fired a shot out of which one pelleted hit Mst. Shehnaz Begum on the 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 for 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 for accused persons mounted a preconcerted 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 PW 3 conducted the post-mortem examination of Mst. Sahib J'an 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 em above left eye-brow.
(3) Five-arm wounds of impact and entry on the right side of forehead above right eye-brow, and frontal area of adjoining part of head.
(4) A fire-arm wounds of entry on the bridge of nose of upper part:
(5) Two fire-arm wound of entry exit on the front of right for arm lower part above wrist. The entry wounds are on the middial 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 for- rib 10 cm from left nipple at lO'O 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 PW-3 also medically examined Fazal Dad PW-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 cm and an other wound 2 cm x 1 cm and an 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 parties, left writs 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, right 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 cm. 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 cm x 11 cm x bone deep on the left fore ar back and outer aspect up to upper part of front of left elbow. The margins were burnt underneath muscles were badly torn. There was profused bleeding from the wounds. There was also multiple wounds of impact/entry on the left upper arm front outer part caused with tire-arm. The duration of injuries was about 3 to 6 hours.
9. Dr. Mehmood Khan PW-6 on the same day i.e. 15.10.1980 at about 8.30 p.m. Medically examined Mst. Shehnaz Begum PW-9 and described a grazed wound 1/5 cm 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 PW-8, Mst. Shehnaz Begum PW-9 and Fazal Dad PW-10 furnished the eye-witness account which in substance is the same as has been detailed supra. All the witnesses made consistant statements supporting each other on all material points. Muhammad Akram PW- 7 Draftsman prepared the site plan Ex.PK and Ex.PK/1 in duplicate of the place of occurrence with the help of witnesses.
11. After dose of the prosecution case, the accused were examined u/S. 342, Cr F.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 proceedings 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 PW. 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 of fire on me they were also injured in this indiscriminate tiring Riasat was also injured. Noor Muhammad co-accused in his self-defence and the defence on my person he also tired 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 hemophaiigia. In fact the complainant party was the aggressor. My relatives had gone to made 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 PW-10. He was chased by Mansabdar. Fazal Dar and two others and on his house 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 tire but on account of indiscriminate firing they were injured. Riasat has also injured during that tiring. Noor Muhammad also opened fire at the complainant party. Abdul Malik accused stated to be empty handed was injured seriously as a result of w-hich he remain in hospital for eight months.
12. To assess the possible credibility of the defence version, the prosecution and the defence version have to be juxta-posed which will be discussed in the later part of the judgment.
Muhammad Hussan co-accused also while making statement u/S. 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 tire first the members of the complainant party would have remained inside the house and would not have left their women- folk to go out of the house in the street to pursuade the accus'ed not to fire at them. Ht? Was therefore, not persuaded to believe that the accused party had any motive to attack the complainant party as the same was corning from the mouth of the PWs. 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 Hussan and Abdul Malik they had a right of self-defence but only against injured PWs i.e. Fazal Dad etc. Mst. Sahib Jan and Mst. Shehnaz were un-armed. 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 u/S. 304. Part-1. PPC' and was sentenced to ten years' R.I. With a fine of Rs 7500/-. As regards Muhammad Hussan who had caused injuries to Mst Shahnaz. He was convicted under section 304, Part- II, PPC and was sentenced to five years' R.I. With a tine 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 come forward with counter pleas, both have to be juxta-posed and onus to discharge on the prosecution is heavier then 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 FIR was further reiterated during the trial by the three PWs namely complainant Mansabdar PW-8, Mst. Shehnaz Begum PW-9 and Fazal Dad PW-10 As Mst.
Shehnaz Begum and Fazal Dad PWs 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 EXPL at 12.00 (noon) when the Police Station is located at a distance of 20 K.Ms, 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 Hussan co-accused deserves equal attention and assessment.
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 Ex.PK was prepared by Muhammad Akram PW-7 which bear 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. 1 which is located in the court-yard 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. 1 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 wall 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 ;ounsel for the defence has tried to dispute that the occurrence did not take flace inside the house and the same occurred in the street but he has not peen able to establish the same from any evidence or from any other pircumstance. The blood-stained earth was collected from the place of |njuries of the deceased and injured persons i.e. Inside the house.
Mere lenial that the occurrence did not take place without suggesting that as to vhere the same took place, would be no avail to the defence.
16. Keeping that scenario in view, the next important aspect is the nedical examination which in the present case appears to be extremely lelpful 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 y firing a straight shot on the person of Mst. Sahib Jan and other persons /hich was received on her vital parts and she succumbed to the injuries, 'he secund Tire of course is attributed to Noor Ahmad which statedly was red simultaneously. Whether Mst. Sahib Jan received one shot or two, the it remains that first shot which the witnesses would have definitely noted I assigned to Abdul Malik and the same proved fatal. As against that wording to the defence the complainant party opened fire, as a result of hich Abdul Malik received injuries on his face, which ho doubt he istained and remained in hospital for a considerable long time, the injuries I the person of Abdul Malik and especially the nature of the injuries tceived by him on his hand clearly show that Abdul Malik would have ;en incapacitated after receipt of the injuries on the hand and on the face > fire a shot from his gun.
The defence also admits that after receipt of this jury Abdul Malik would not have been in a position to tire a shot. It eans that the injuries received by Abdul Malik were subsequent to the re shot by him. As to how he received injury, the prosecution version that izaldad on seeing that his mother had received injuries, he fired in order defend him and his mother from the attack, this version has been taken om the very beginning i.e. In the FIR lodged promptly. We therefore, are :the view that the prosecution stance at this point is truthful and merits to \ accepted.
17. The learned Trial Judge appears to be influenced by the fact that bdul Malik received serious injuries on his face and arm but the question mains that if he had caused an injury on the person of Mst. Sahib Jan iceased then her son i.e. Fazaldad had a right to defend the life of his other who was admittedly empty handed, was present in the house and iturally she must have implored the accused persons to resist from unching the attack. The learned Triai Judge appears to have not taken into msideration that all injured persons were present in the house and they remained present till they perceived the injuries which is evident from the fact that blood-stained earth was secured from respective laces 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. Shehnaz 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 inconsistant 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 was also erred in observing that the house 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 PW-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 Hussan, 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 tire in defence, whereafter. Muhammad Hussan accused tired 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 in uries. /
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. |Vol.XX The State V. Muhammad Hussan #tbs Cr.C 181 #the (Zufar Pasha Cluunlhry, J.} there remains no grievance with [lie accused party as alleged. Apart from that both the parties were living together for the last quite some time after the demarcation hut 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 before 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, inconsistant 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 dne 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 act 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, PPC 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 done 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 u/S. 302, PPC 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 Hussan, he was convicted u/S. 304, Part-II, PPC and was sentenced to undergo R.!. For five years with a fine of Rs. 4000/- According to the learned counsel a pellet allegedly from the fire shot by Muhammad Hussan hit Mst. Shehnaz Begum who has 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- conertaion that would have been directed against Muhammad Sarwar and Muhammad Arif cousins of the complainant and not against the deceased or injured PWs, as alleged by the prosecution itself, therefore, even if Abdul Malik is burdened with the liability of murder, Muhammad Hussan cannot be burdened with similar liahility. 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 pf 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 sentence Muhammad Hussan to imprisonment already undergone by him. However, we impose a tine 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 PW-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, extent the benefit of doubt to him and as such upheld and maintain his acquittal. The State appeal to his extant stand 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 u/S. 302, PPC and sentenced to imprisonment for life.
Muhammad Hussan's conviction u/S. 304, Part-II, PPC 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 orthwith to serve out his sentence. Similarly is Muhammad Hussan do t not pay the tine will be taken into custody to undergo imprisonment in default thereof. Benefit u/S. 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.
[Vol.XX Muhammad Gulzar Kiani V. Doctor Ashfaq Ahmad #tbs Cr.C. 183 #the (Iftikhar Ahmad Cheenm, J.)