This judgment shall dispose of Criminal Appeal No,353 of 2000 as well as Criminal Revision No,327 of 2000.
2. The matter arises from the judgment dated 9-3-2000 passed by Mr. Ijaz Mehmood Chaudhry, learned Additional Sessions Judge, Depalpur. Whereby, he while acquitting two co-accused of the appellant Iftikhar Ahmad, convicted him under section 302(b), P.P.C. and sentenced him to imprisonment for life. While also directing the payment of Rs,10,000 as compensation to the legal heirs of the deceased or in lieu thereof, he was to suffer simple imprisonment for six months. The appellant was given the benefit of section 382-B. Cr.P.C.
3. The matter pertains to case F.I.R. No,267 dated 14-8-1995 registered under section 302/34, P.P.C. at Police Station Depalpur, District Okara.
4. Muhammad Hussain (P.W.1) lodged in F.I.R. (Exh.P.A.) in this case. But as he was dissatisfied with the investigation, he also made a private complaint and eventually both the cases were clubbed together and proceeded culminating in the judgment aforementioned.
5. Muhammad Hussain (P. W.1) supported the facts of the private complainant and the F.I.R. in his testimony by stating:-- "About three and half years ago, I alongwith Buphay Khan deceased Barish Ali and Nausha P.W. came to see a fair held at the Darbar of Baba Bhure Shah within the area of Kot Sher Khan. There was a Kabaddi Match and we all the four persons mentionedabove went there to witness the match. All of a sudden Ghulam Ahmad accused, Zulfiqar and Iftikhar Ahmad alias Majo accused persons present in Court came there. Ghulam Ahmad accused was empty-handed, Zulfiqar accused was armed with .30 bore pistol while Iftikhar Ahmad has .32 bore pistol. On seeing us, Ghulam Ahmad accused raised a Lalkara that Buphay Khan be killed, upon which Iftikhar Ahmad alias Majo made a fire shot which hit on front side the left side of the chest of the deceased. Zulfiqar Ali accused made a fire shot which hit at the abdomen of Buphay Khan on the right side. The occurrence was witnessed by me. Nausha and Barish Ali P.Ws. Buphay Khan fell down after receiving injuries. Ghulam Ahmad accused ran away from the spot while Zulfiqar and Iftikhar were injured by the people present there. Sarfraz P.W. snatched pistol from Iftikhar accused."
Speaking about the motive part of the story. he stated:-- "The motive behind the occurrence was that four/five days before the occurrence the rainy water had gathered in the fields of Ghulam Ahmad accused, which made way to the crops of the complainant and Buphay Khan field and the said water caused damage to the standing crops of the complainant and Buphay Khan. upon which they complained and Buphay Khan abused to Ghulam Ahmad and in turn Ghulam Ahmad abused and threatened that he would definitely teach a lesson for abusing. Due to this, they have caused the murder of Buphay Khan."
Some relevant excerpts from his statement in cross-examination are also reproduced below in extenso:-- "My sister's daughter (Bhanji) Mst. Halima Bibi was married with Buphay Khan deceased. It is correct that the sister of Buphay Khan deceased Mst. Shama is married with my Bhanja Abdul Malik. My another sister is also married with Kali, Chacha of Buphay Khan deceased. Sarfraz P.W. is my real brother. The wife of Sarfraz P.W. is the Chachazad of Ghulam Mohy-ud-Din P.W. It is correct that Barish Ali P.W. is the cousin of Muhammad Yar who is father of Buphay Khan deceased.
Nausha P.W. is son of my Mamoo."
"The altercation in between us took place in the Khoh and not in the field."
"Except the motive mentioned above, no other enmity was in existence between us and the accused persons."
"All the Investigating Officers declared Ghulam Ahmad as innocent and he was not arrested by the police."
"The accused persons mentioned in the complaint under sections 324 and 364, P.P.C. are my relatives."
6. Muhammad Nausha (P.W.2) supported the prosecution version.
7. Sarfraz (P.W.4) was also present at the fair (Mela) when the Kabaddi Match was being played.
According to him:-- About 3-1/2 years back I was present in the Mela in the area of village Kot Sher Khan. A Kabaddi Match was being played. At about 5/6 p.m. I heard fire and reached the spot. I found Buphay Khan deceased found lying on the ground. Muhammad Hussain, Muhammad Nausha and Barish Ali P.W. were also present there. I saw Iftikhar accused having been encircled by some people and I snatched pistol P.5, from Iftikhar accused. I then went to my house. On the following day I produced pistol, P.5, before Mehr Allah Yar, S.I. at the spot and the same was taken into possession by recovery memo. Exh.P.E. which I signed.
8. It may be mentioned that the said P.W. Sarfraz is the brother of the complainant and it has come in the examination-in-chief that he is one of the accused in the private complaint filed by the opposite side.
9. Shoeb Ahmad, Inspector (C.W.1) on 5-9-1995 was posted at the Police Station Basirpur in the area where the occurrence took place. According to him, during his investigation he had come to the conclusion that Ghulam Ahmad as well as Zulfiqar, co-accused, were innocent although he did challan them. His statement in cross-examination is quite relevant to be reproduced which is as under:-- "I found in investigation that there was no dispute of Ghulam ,Ahmad and Buphay Khan deceased prior to the occurrence. I did not find any enmity between the parties prior to the occurrence. I also found that Ghulam Ahmad and Buphay Khan were not known to each other. I also found in investigation that the occurrence had started over throwing the dust by Sher Ali Wattoo at Iftikhar alias Majoo accused and this was the bone of contention between the parties. It is correct that both the arms of Iftikhar accused were fractured during the occurrence. It was also found by me that Buphay Khan deceased has rushed to the place of occurrence for help of Sher Ali Wattoo. I also found during the investigation that there was no dispute of letting the water by Ghulam Ahmad accused into the cotton crop of Muhammad Hussain complainant. It is correct that my investigation was verified by Shahid Ahmad, D.S.P./S.D.P.O. of the circle and he also found Ghulam Ahmad accused as innocent and Zulfiqar Ali accused merely present without taking part in the occurrence. It is correct that my investigation was also verified by Rana Muhammad Tariq Hayat D.S.P. who also found Ghulam Ahmad accused as innocent and Zulfiqar accused merely present. It is correct that it was come to my notice that Iftikhar accused was taken away by the complainant party to their Dera in injured condition."
10. Dr. Rana Muhammad Rafique, Medical Superintendent (P. W.8) conducted the autopsy on the dead body of Buphay who was 32 years of age and was brought to the hospital for this purpose. He found the following injuries on his person:-- 11.A lacerated wound 1/2 x 1/2 c.m. deep going, margins were inverted with slight blackening at front outer and upper part of left chest, 10 c.m. below top of left shoulder on anterior axillary line.
Corresponding injury hole were present on the shirt and under shirt. On opening the bullet passed from muscles below left clavicle, supra-clavicular fosse to muscles of back of chest just above left scapula and left the body through a lacerated wound 1/2 x 1/2 c.m. margins were everted at back and upper part of left chest. 5 c.m. below shoulder line.
(2)A lacerated wound 1/2 x 1/2 c.m. deep going margins were inverted at front and lower chest slightly on right side 1.5 c.m. from midline at 5'O Clock position and 13 c.m. from right nipple.
Corresponding injury hole was present on the shirt and under shirt. The bullet ruptured and passed through enterior surface of liver to right dome of diaphram, 9th right rib was fractured, and left the body through a lacerated wound 1/2 x 1/2 c.m. with margins everted at posto lateral position of lower part of right chest, 12 c.m. from midline of back, about one liter of dark blood was present in his abdomen and one liter in right chest cavity."
His further observations were as follows:-- "All the organs were healthy except walls of abdomen and perotineum were ruptured as a result of injury No,2. Right dome of diaphragm was ruptured as a result of Injury No,2. Stomach was healthy and contained 4/5 ounce semi digested fluid. Liver was ruptured in area 2 x 1 c.m. and through and through as a result of injury No,2. Bladder was healthy and almost empty. After external and internal examination of the dead body, in my opinion, the cause of death was shock and haemorrhage as a result of above mentioned injuries which were sufficient to cause death in ordinary course of nature. All injuries were ante-mortem and caused by fire-arm weapon. Probable time between injury and death was within six hours and between death and post-mortem was 12 to 24 hours. After post-mortem examination dead body alongwith its last LCD worn clothes, police papers and copy of post-mortem report were handed over to Allah Ditta 137-C. Exh.P.J. is the carbon copy of post-mortem examination report which is in my hand and is signed by me.
Exh.P.J./1 is the diagrams showing the location of injuries which is also signed by me."
11. Previously, he had medically examined Buphay Khan on 13-8-1995 when he was brought in an injured state to the hospital. His observations are reflected in Exh.P.H. the M.L.R. prepared and signed by him.
12.During his cross-examination he stated that the injuries on the dead body were the result of two fire shots of bullets.
13.Amongst the formal witnesses, Allah Ditta (P.W.3) had escorted the dead body of Buphay Khan to the hospital for post-mortem examination. Whereafter he received his last-worn clothes which he handed over to the Investigating Officer who took the same into possession vide memo. Exh.P.B.
Qasim Ali P.W.5) is a recovery witness of a Sota belonging to Zulfiqar accused and produced by Haqnawaz, which was taken into possession vide memo. Exh. P.F . He also received the blood- stained earth from Allah Yar, S.1 which he entrusted to Constable Talib, P.W., for delivery to the office of the Chemical Examiner. Talib Hussain, Constable (P.W.6) corroborated the testimony of Qasim Ali P.W. with respect to the delivery of the parcel to the office of the Chemical Examiner. Muhammad Siddique (P.W.7) prepared the site plans (Exh.P.G'. and Exh.P.G/1) on the asking of the police and he scribed his own notes in black on the same.
14.In his statement under section 342, Cr.P.C.. the appellant Iftikhar Ahmad advanced me following versions:-- "I had gone to see the Mela and Kabaddi Match on 13-8-1995. Zulfiqar accused was also present there but Ghulam Ahmad accused was away from us. We were empty-handed. Sher Ali who was armed with .32 bore pistol came there and threw dust upon the people and on me accused also, upon which they started quarrelling each other. They also exchanged abuses.
Both Iftikhar and Sher Ali P.W. grappled with each other. The companions of Sher Ali, Zahoor Ahmad etc. including Baphay Khan deceased armed with Sotas assaulted upon me and started inflicting injuries upon my person. As a result of which both my arms were fractured. It was during the grappling that two fires were let off from the pistol of Sher Ali .which hit Buphay Khan. The people fled away from the Kabaddi Ground. The complainant party abducted me and Zulfiqar. Zulfiqar was let off in the way but I was taken to the Dera of one Sarfraz at Chah Ghulamay Wala wherefrom I was rescued through police. I was taken to hospital for treatment. I remained admitted in the hospital for about 1-1-1/2 months. The police did not register the case for my injuries because Baphay Khan had expired and the police in connivance with the complainant party registered the present case with a false motive. Ghulam Ahmad and Zulfiqar was declared innocent during the investigation."
"This question relates to motive of the case. The factual position remains that the P. Ws. do not own any land near to the land of Ghulam Ahmad accused. The quarrel in fact had started because of throwing of dust by Sher Ali P.W. on Iftikhar accused and other people. The rest of my answer has already been given in the preceding para. Myself and Zulfiqar received injuries not after the occurrence but during the occurrence, when I was grappling with Sher Ali. The other persons of the complainant party Zahoor Ahmad etc. started beating myself and during rescuing me Zulfiqar accused also sustained injuries from the hands of complainant party. Pistol (P.5) was planted upon me. The P.Ws. are related to Baphay Khan and Sher Ali. They have told lie in the Court. being partisan in character and had tried to minimize their role during the occurrence. Their statements are based on falsehood."
15. The place and the time of occurrence are almost admitted facts. The occurrence taking place during a Kabaddi Match is also an admitted fact. Two fire shots had been attributed to Iftikhar on the deceased and the third fire was attributed to Zulfiqar, the acquitted accused, who was declared innocent by the police. The doctor also stated before the Court that the injuries suffered by Buphay Khan could be from two fires instead of three.
16.In this case, no previous enmity existed between the parties and although the witnesses were related they were believed by the trial Court to the extent of the appellant. The presence of the eye-witnesses was also accepted by the trial Court.
17.Reliance was placed by the trial Court on the testimony of Shoeb Ahmad, Inspector (C.W.1) with respect to the acquitted accused Zulfiqar, to whom the third fire was attributed and from whom no fire arm was recovered as well as about the innocence of Ghulam Ahmad, to whom Lalkara had been attributed.
18.Reliance was placed on the testimony of Sarfraz (P.W.4) who was present at the Kabaddi Match and was attracted because of the report of fire and he found the deceased lying on the ground and Muhammad Hussain and Muhammad Nausha present there alongwith Barish P.W., not produced. He also saw Iftikhar appellant to be encircled by some people and from whom pistol (P.5) was snatched which Sarfraz later produced to the police at the spot and which was taken into possession vide memo. Exh.P.E. The testimony of this witness with respect to his presence and the episode he narrated, remained unshaken. There is nothing to suggest that he would be making a false statement having no enmity with Iftikhar. Iftikhar, it appears, had also received injury during the occurrence and this is said to be caused with Sota blow which the deceased inflicted on his left arm and he was attempting to hurl another blow when Iftikhar appellant fired two shots on Buphay Khan which proved fatal.
19.After hearing the learned counsel from both sides and after appraisal of the record, this Court is of the view that the conclusions drawn by the trial Court with respect to the role of the appellant in firing at the deceased Buphay Khan and doing him to death are correct. There is no previous enmity inter se the parties and it has come on record that the occurrence had taken place as a person from the gathering had thrown dust on the people gathered in the Kabaddi Match, which offended the appellant and this resulted in physical altercation and later the death of Buphay Khan. It was also believed that the injury received by Iftikhar of Sota blow was at the hands of the deceased and before the deceased could land another blow, he fired at him. In his statement under section 342, Cr.P.C. Iftikhar appellant claimed that his arms were fractured by the deceased but he has not taken a specific plea under section 100 of the P.P.C. Leaving a doubt whether the fracture of his arms was caused after the occurrence when he was encircled by the people present there who snatched his pistol or this had happened at the hands of the deceased. But the fact is established that he received a Sota blow at the hands of the deceased before he fired at him.
Should not, therefore, his case fall under section 302-C of the P.P.C. rather than under section 302-B of the P.P.C. under which he was convicted by the trial Court. This Court is of the view that there was a streak of provocation and there was the desire of defending himself at the hands of the appellant who was being beaten with a Sota and the offence, therefore, was made out under section 302-C of the P.P.C. It would, therefore, be in the fitness of things if the orders is so modified and brought under section 302-C of the P.P.C. and the sentence is reduced from life imprisonment to eight years' R.I. Since the provocation came from the deceased, this Court would not award any compensation nor would pass any sentence of fine. The appellant shall be given the benefit of section 382-B, Cr.P.C.
20. After these observations, and findings, this Court is not inclined `to accept the version petition asking for enhancement of sentence from life imprisonment to death and the revision petition is, therefore, dismissed.