' ALI NAWAZ CHOWHAN, J.---This judgment shall dispose of two Criminal Appeals bearing No, 513 of 2000 (filed by Munshi Khan and Alam Sher, appellants) as well as 512 of 2000 (filed by Khizar Hayat, appellant).
2. The matter pertains to case F.I.R. No, 354, dated 9-7-1999, registered under sections 302, 324 and 34, P.P.C., at Police Station Jauharabad, District Khu4,hab.
3. Through his judgment, Ch. Sarfraz. Ahmad Tarar, learned Judge, Special Court Khushab, convicted the appellants Munshi Khan and Alamsher under section 302(b) read with section 34, P.P.C. And sentenced both of them to capital punishment as Ta'zir, and also to a fine of Rs,25,000 each as a compensation to be paid to the heirs of each deceased. While Khizar Hayat appellant was also convicted under section 302(b) read with section 34, P.P.C. And sentenced to life imprisonment and also to a fine of Rs,25,000 as a compensation to be paid to the heirs of the deceased. The learned Judge further convicted the appellants under section 324 read with section 34, P.P.C. And sentenced them to 10 years R.I. Each and to a fine of Rs,10,000 each, or in lieu thereof, to suffer further 6 months S.I. Each. The appellants were also convicted under sections 336 read with section 34, P.P.C. And sentenced to 4 years R.I. Each as Ta'zir and they were also held liable to pay Arsh to injured Muhammad Ramzan which would be equal to half of the Diyyat. All the sentences were ordered to be run concurrently and the appellants were given the benefit of section 382-B, Cr.P.C.
4. This occurrence resulting into death of two persons and injury to one, took place in the Court- house of Jauharabad, District Khushab. Exh. P.G. The site plan, reflects the place where the occurrence had taken place.
5. Fateh Sher, the complainant in this case, got registered the F.I.R. (Exh. P.C.) and came to support his case through his testimony before the trial Court. In which he gave the manner in which the occurrence had taken place as well as the reason for it. He stated:--- "Muhammad Riaz real brother of Munshi Khan accused now present in the Court and Muhammad Khan now P.O. Was murdered. He was also real brother of Khizar Hayat accused present in the Court. In the said case, Muhammad Ramzan, Ameer Abdullah and Muhammad Sher were challaned. They were in custody. On 9-7-1999, case No, 255 of 1998, relating to the murder of Muhammad Riaz was fixed for hearing before Sessions Judge, Khusbab. I along with Ahmad Hayat Khan and Mehr Khan P. Ws. Came to Sessions Court, Jauharabad to pursue the case of Ameer Abdullah and others. Ameer Abdullah, Muhammad Ramzan and Muhammad Sher were also brought from Shahpur Jail for attending the case. At about 11.30 a.m. Case was called for.
Accordingly, Ameer Abdullah, Muhammad Ramzan and Muhammad Sher Khan in the company of police as well as Muhammad Ramzan, Ameer Abdullah and Muhammad Sher left for Court premises. When we reached in the gallery adjacent to Court, then Khizar Hayat and Alamsher accused now present in the Court were seen at stair-case of Court. When Ameer. Abdullah and others along with us reached in the center of gallery, " then Alamsher accused present in the Court made a signal of his hand. Then immediately, Munshi Khan accused present in the. Court along with Muhammad Khan now P.O. Emerged out. They brought out pistols from their Dubs. Thereafter, accused Khizar Hayat raised a Lalkara that today revenge of the murder of Muhammad Riaz should be taken. Thereafter, Muhammad Khan accused now P.O. Opened fires with his pistol which hit Muhammad Sher at different parts of the body. Thereafter, Munshi Khan accused now present in the Court opened fires at Ameer Abdullah and one fire hit him at front of chest. After receipt of fire- arm injuries, Ameer Abdullah and Muhammad Sher fell down in the gallery. Thereafter, Munshi Khan and Muhammad Khan opened repeated fires at Muhammad Ramzan P.W. Who received fire-arm injuries at different parts of body, on front side as well as on the back side. Ameer Abdullah and Muhammad Sher died at the spot. Munshi Khan and others fled away from the place of occurrence. At the place of occurrence, Munshi Khan accused was overpowered and was taken into custody, while remaining accused fled away. Occurrence was witnessed by me, Mehr Khan, Ahmad Hayat and Muhammad Ramzan."
6. The motive part of the story narrated by him was in the following words:--- "Motive behind the occurrence was that Muhammad Riaz real brother of Munshi Khan, Khizar Hayat and Muhammad Khan accused was murdered and in the said ' case, Muhammad Ramzan, P.W.
Ameer Abdullah and Muhammad Sher now dead were involved. Due to this reason in a pre- meditated manner, the four accused committed intentional murder of Ameer Abdullah and Muhammad Sher and committed murderous assault at Muhammad Razman."
7. The following excerpts from his cross-examination are also relevant facts and are reproduced below:-- "We are having enmity with Alamsher, Munshi Khan and Khizar Hayat accused for the last about 20 years. During the aforementioned period, so many criminal cases were got registered in between us."
8. Muhammad Ramzan (P.W.10) is the injured eye-witness, who corroborated the testimony of the complainant Fateh Muhammad while supporting him fully. Besides the said two witnesses, we have Ahmad Hayat (P.W.42) another eye-witness of the occurrence who supported the prosecution case.
9. Jalil-ur-Rehman (P.W.14) was the Constable who was then posted at Jauharabad Police Lines and was assigned the duty of bringing the under trial prisoners to the Court from District Jail, Shahpur. And on that date, he had brought the under trial piisoners including the two deceased and the injured P.W. Muhammad Ramzan. They were later kept in the Bakhshi Khaild until the call of the case. He went on to say:--- "At about 11.30 a.m. Case was called for from the Court of Sessions Judge, Khushab. I along with Zafar Iqbal, Constable No,458 accordingly brought out Ameer Abdullah, Muhammad Sher and Muhammad Ramzan from Bakhshi Khana and started walking towards Sessions Court room. When we reached in a gallery adjacent to the Court then all of a sudden, I saw Alamsher and Khizar Hayat accused available in front of verandah. Alamsher accused made a signal with his hand.
Therefore, Munshi Khan accused present in the Court alongwith Muhammad Khan now P.O.
Emerged out in gallery duly armed with 30 bore pistols. Khizar Hayat raised a Lalkara that revenge should be taken for the murder of Muhammad Riaz, brother. Thereafter, Munshi Khan, Muhammad Khan accused started opening fires with their pistols. Muhammad Khan accused now P.O. Opened fires at Muhammad Sher while Munshi Khan accused now present in the Court opened fire at Ameer Abdullah. Ameer Abdullah and Muhammad Sher fell down in the gallery. Thereafter, Munshi Khan and Muhammad Khan opened repeated fires at Muhammad Ramzan P.W. Muhammad Ramzan P.W. Also fell down in the gallery. I alongwith Zafar Iqbal made an attempt to overpower the accused. We succeeded in overpowering Munshi Khan but the remaining accused fled away.
We arso snatched away pistol from Munshi Khan. In the meanwhile, other police employees including officers, also came to Sessions Court."
10. Dr. Muhammad Sabtain Shah, Medical Officer (P.W.9) conducted postmortem examinations on the dead bodies of Ameer Abdullah and Muhammad Sher, brought to him under police escort. He found the following injuries on the person of Ameer Abdullah, deceased:--- (1)A fire-arm wound of entry 1 x 1 c.m. With inverted margins and edges were burnt in the front of left chest below left mumma.
(2)A fire-arm wound of exit 1 x 1 c.m. With inverted margins in the right hypocondrium.
' Craneal cavity NAD.
' The following was his opinion with respect to the injuries on Ameer Abdullah deceased:--- "In my opinion, injuries Nos.1 and 2 were ante-mortem caused by firearm. These injuries lead to .
Damage to left lung; heart and liver which were the vital organs of the body and led to death.
Probable time between injuries and death was immediate and probable time between death and post-mortem was within 5 hours."
' Exh. P.J. Is his post-mortem report, while Exh. PJ/1 is the pictorial representation.
11. Whereas, the following injuries were found by the same doctor on the person of Muhammad Sher:--
(1) Fire-arm wound of entry with inverted margins measuring 1 c.m. x 1 c.m. On the left side of neck.
Edges of the wound were tinrnt,
(2) Fire-arm wound of exit of injury No,1 with everted margins 1 c.m. x 1 c.m. On the right side of.The neck.
(3) Fire-arm wound of entry on the external side of the left arm measuring 1 c.m. x 1 c.m. With inverted margins and edges were burnt.
(4) Fire-arm wound of exit of injury No,3 with everted margine on the internal side of the left arm.
(5) Fire-arm wound of entry measuring 1 c.m. x 1 c.m. With the inverted margins on the left side of the chest.
(6) Fire-arm wound of the exit of the wound No,5 with everted margins on the back of left chest, just below left scapula measuring 1 x 1 c.m.
(7) Fire-arm wound of entry measuring1 x 1 c.m. On the top of the left shoulder. Margins were inverted and edges were burnt.
(8) . Fire-arm wound of exit of wound No,7 on the back of left chest, 4 c.m. Below injury No,6.
(9) Fire-arm wound of entry of 1 c.m. x 1 c.m. In the lower and the front of right chest with inverted margins. Edges were burnt.
(10) Fire-arm wound , of exit of injury No,9 on the left buttock.
' Carnal cavity NAD.
' The following was his opinion in respect of the injuries of Muhammad Sher deceased:---'
"In my opinion, all injuries were ante-mortem, caused by fire-arm injuries. Injuries Nos. 1, 2, 5, 6, 7 8, 9 and 10 were sufficient to cause death -because they damaged left caroted artery, left lung and liver respectively and led to death. Probable time between injuries and death was immediate while between death and post-mortem was within 5 hours."
' Exh. P.M. Is his post-mortem report, while Exh. P.M./1 is the pictorial representation of the injuries.
12. More details need not be repeated here since these are already reflected in the testimonies of the P.Ws.
13. Dr. Mehmood Ahmad Zubairi (P.W.8) had examined Muhammad Ramzan (P.W.) and found the following injuries on his person:-- -
(1) A fire-arm entry wound on the lateral aspect .Of left arm size 2 x 2 c.m.
(2) A fire-arm entry wound on left side of the chest on posterior exillary line at the level of nipple, size 1.5 x 1.5 c.Rn.
(3) A fire-arm entry wound on the spine at the level of injury No,2, size 1 x 1 c.m.
(4) A fire-arm entry wound on left side of the back of chest, size 2 x 2 c.m. This injury was 9 c.m.
Below the level of Injuries Nos.3 and 20 c.m. From the midline.
(5) A fire-arm entry wound on the front of right elbow, size 3 x 1 c.m.
(6) Four superficial fire-arm wounds on the entrilateral aspect of right chest, average sizes 1 x 2 c.m.
(7) A fire-arm exit wound on the medical- aspect of left arm, size 1.5 x 1.5 c.m. Exh.P.B. Is the carbon copy of the Medico Legal Report, while Exh. PH/1 is the pictorial representation.
14. Dr. Muhammad Abdullah (P.W.15) had later operated upon Muhammad Ramzan (P.W.) and who remained in the Hospital until 15-9-1999.
15. Amongst the formal witnesses, are Noor Muhammad (P.W.1). He had taken warrant of arrest against Muhammad Khan, Proclaimed Offender. Shah Nawaz (P.W.2) had taken the proclamation declaring Muhammad Khan as a proclaimed offender and had pasted the same at his house.
Muhammad Mumtaz (P.W.3) had taken the two parcels of the blood-stained earth to the office of the Chemical Examiner at Lahore, as well as three parcels containing empty cartridges, pistol and magazine, to the office of the Forensic Science Laboratory, Lahore. Fateh Muhammad (P.W.4) had drafted the formal F.I.R. (Exh. P.C./1) verbatim on the statement of the complainant (Exh.P.0 .).
Muhammad Zaman (P.W.5) had kept the five parcels of the case property containing the blood- stained earth, a pistol, empty cartridges and a magazine, intact in the Malkhana and later he handed over these parcels to Mumtaz, Constable (P.W.3) for onwards transmission to the office of the Chemical Examiner. Muhammad Ramzan has escorted the dead bodies to the mortuary and, had received the last worn clothes of both the deceased which he handed over to the Investigating Officer who took the same into possession vide memo. Exh. P.D. And Exh. P.E. He also obtained the last worn clothes of Muhammad Ramzan (P.W.) who has medically been examined and a sealed bottle containing one pellet which was given to him by the doctor and these he later handed over to the Investigating Officer who took the same into possession vide memo. Exh. P.F. Mirza Muhammad Saeed, Draftsman (P.W.7) had made the site plan Exh. P.G. And its copy (Exh.PG/1) on getting instructions from the police and the P.Ws.
16. Muhammad Khan (P.W.17) is the Investigating Officer. On hearing the reports of fires, he rushed to the Sessions Court, Jauharahad, accompanied by constables. There he saw two dead bodies and he met Fateh Sher, complainant, whose statement he recorded and forwarded the same for registration of the case. Thereafter, he prepared the injury statement (Exh. P.K..) and inquest report (Exh.P.L.) relating to Ameer Abdullah deceased. Also prepared the injury statement and inquest report (Exh.P.N. And Exh.P.O.) relating to Muhammad Sher and later he sent the dead bodies under an escort for post-mortem examination. He arrested Munshi Khan accused at the spot. He also received a 30 bore pistol which was taken from Munshi Khan when he ivps caught. It had two magazines and six live cartridges and a licence of Munshi Khan which he took into possession vide memo. Exh. PP, duly attested. He then inspected the place of occurrence and secured six empty cartridges of 30 pistol vide memo. Exh.P.B. He secured the blood-stained earth from a place where Ameer Abdullah had fallen after the receipt of fire-arm injuries, vide memo. Exh.P.Q. He also obtained blood-stained earth from the place where Muhammad Sher had fallen after the receipt of fire-arm injuries, vide memo. Exh.P.R. Blood-stained earth was also secured by him from the place where Muhammad Ramzan P.W. Had fallen after the receipt of injuries, through memo.
Exh.P.S. He then drew the sketch of the place of occurrence and scribed his own notes in his hand.
He received the last worn clothes of both the deceased in the Hospital, vide memos. Exh.P.D. And Exh. P.E. From the constable as well as of the injured P.W. Muhammad Ramzan, vide memo. Exh.P.F.
He then searched for the accused. On 18-7-1999, he arrested Khizar Hayat and Alamsher appellant.
Muhammad Khan had absconded and was declared as a proclaimed offender. He then got the site plans of the site prepared. While Muhammad Ramzan, P.W. Was in an injured state, he made three applications for recording of his statement and it was against his application (Exh. PX/2) on 13-7-1999 when he recorded his statement under section 161 of the Cr.P.C. During his cross- examination he stated:-- "It is correct that from the very outset, stand of Khizar Hayat and Alamsher was that, they are innocent. Stand of Alamsher was that he never made any sort of signal and stand of Khizar Hayat was that he never raised any Lalkara. Subsequent to me, investigation was carried out by Ghulam Ali, Inspector. Stand of Khizar Hayat and Alamsher before Ghulam Ali, Inspector that they are innocent. It is correct that about 13 persons were produced by Khizar Hayat and Alamsher before Ghulam Ali, Inspector to prove their innocence."
17. In their statements under section 342 of the Cr.P.C. The case of the appellants was one of denial.
It was their case that because of their enmity with the complainant side, they have been involved.
18. The motive part of the story is established. The deceased and the injured P.W. Were being brought in custody for appearance before the learned Sessions Court, Jauharabad, who were attacked and Munshi Khan was apprehended along with his pistol there and then. It is true that the complainant and the other eye-witnesses were inimical to the appellants side and all care had to be taken in believing their statements. But for the most important and independent witness Jalil- ur-Rehman, Constable who was present there on duty, assigned the duty of bringing the undertrial prisoners to the Courts including the deceased and the injured P.W. And who saw the occurrence.
His testimony remained unshaken. There was nothing to suggest that he would falsely implicate the appellants and, therefore, reliance can be safely placed on his testimony with respect to how the occurrence may have taken place.
19. We feel that the testimony of Jalilur-Rehman and of other eye-witnesses have no material clash inter se and flow in C harmony unshaken by the cross-examination through which all of them went.
This is a daytime occurrence within the Court house. The F.I.R. Is prompt.
20. The only exception in this case is with respect to Alamsher appellant who is assigned the role simpliciter of having signalled the assailants about the movements of the deceased and the injured P.W. When they were fired at. It was said that he made a signal with his hand. But Jalil-ur- Rehman (P.W.14) in his testimony has stated:-- "Khizar Hayat and Alamsher were standing at stair-case wherein other public persons were also available. Alamsher had not opened any sort of voice from his mouth. Alamsher accused just raised his hand. Since he raised his hand, so I concluded that he made a signal."
' The other eye-witnesses too without any elucidation or elaboration attributed to him the raising of the hand and no other overt act even not a shout. We have carefully seen the site plan and we are convinced that the assailants could have been alerted about the arrival in the Court house of the deceased and the injured P.W. Even others, particularly when they were in fetters. Raising of the hand may have many reasons and the case of the prosecution, therefore, while we keep in mind the long-standing enmity inter se the parties, is not established beyond a reasonable doubt against Alamsher appellant. We, therefore, feel that he/deserves acquittal and thus he is acquitted and be released forthwith if not required in any other case.
21. The learned counsel for the appellants on similar ground asked for the acquittal of Khizar Hayat as well, to whom a Lalkara is ascribed. While we believed that under the circumstances he must have hurled one for giving vent to his own anger against the complainant party. A Lalkara becomes an overt act for purposes of exhortation and provocation. So, that the assailants may attack at once and this cannot be equated with the case of the signal by raising of the hand by Alamsher under the circumstances. Lalkara also is an expression of anger, hate and acrimony against the one to whom it is addressed, while exhorting and provoking those sharing the feelings to attack. It is like a command in a battle field for heating up the passions. It also serves as a reminder of what had been previously agreed. Lalkara may be simplicter or it may combine a physical gesture. Every allegation of Lalkara which is often termed as a proverbial Lalkara because of its misuse, is not to be always taken as a falsely ascribed role and the circumstances ensuing are to be deeply appreciated and evaluated for coming to a conclusion. Therefore, the role of Khizar Hayat and Alamsher cannot be equated and under the circumstances of the case, we are not inclined to accept this argument of the learned counsel for the appellants.
22. One of the assailants of the occurrence is a Proclaimed Offender and his case has been separated.
23. After hearing all sides, appraising and evaluating the evidence and keeping in view all circumstances, whereas while acquitting Alamsher appellant giving him the benefit of doubt, we maintain the conviction and sentence of the other two appellants namely Munshi Khan-and Khizar Hayat.
24. Consequently, the appeal bearing No, 513/2000 to the extent of Alamsher appellant is accepted and to the extent of Munshi Khan appellants is dismissed. While Appeal bearing No, 512 of 2000 filed by Khizar Hayat appellant is also dismissed.