KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.601 of 1998 filed by Ghulam Qasim, Sabir Hussain, Ahmad Khan, Intizar Hussain, Mst. Bhawan, Mst. Aslam Khatoon, Mst. Ghulam Sakina and Mst. Afzal Khatoon, appellants who were convicted and sentenced by learned Additional Sessions Judge, Khushab vide judgment dated 30-6-1998 as under:-- Two years R.I. Each under section 148, P.P.C.; Ghulam Qasim Death under section 302(b), P.P.C. With further direction to pay compensation of Rs.5,000 in default six months' S.I. Under section 302(b), P.P.C. For the murder of Ghulam Nabi, 3 years' R.I. And to pay a fine of Rs.5,000, in default S.I. For six months under section 324, P.P.C. And 2 years' R. I. And to pay Rs.12,500 as Arsh under section 337-A(ii), P.P.C. For causing injuries to Muhammad Sher, P.W.
Sabir Hussain: Death and to pay compensation to the tune of Rs.5,000, in default six months' S.I.
Under section 302(b), P.P.C. For the murder of Muhammad Arif.
Ahmad Khan: 2 years' R.I. And to pay Arsh of Rs.12,500 for causing injuries to Ghulam Mustafa, P.W.
Intizar Hussain: 5 years' R.I. And to pay Arsh to the tune of Rs.12,500 and also to pay Daman to the tune of Rs.500 under section 337-A(ii), P.P.C. For causing injuries to Mst. Sabhai.
Mst. Bhawan F.I. For six months and to pay, Daman of Rs.5,000 under section 337-F(i), P.P.C. For causing injuries to Afzal P.W.
Mst. Ghulam Sakina One year R.I. And to pay Daman of Rs.5,000 under section 337-F(i), P.P.C. For causing injures to Muhammad Afzal, P.W. With the benefit of section 382-B, Cr.P.C.
Mst. Afzal Khatoon: Daman to the tune of Rs.5,000 and also to pay Arsh of Rs.12,500 under section 337-A(i), P.P.C. For causing injuries to Mst. Azizan P.W.
Mst. Aslam Khatoon: Daman of Rs.5,000 and also to pay Arsh of Rs.12,500 under section 337-A(i) and (ii), P.P.C. For causing injuries to Mst. Azizan P.W.
Murder Reference No. 154 of 1998 for confirmation or otherwise of death sentence of Ghulam Qasim and Sabir Hussain, appellants alongwith Criminal Appeal No.641 of 1998 filed by the complainant and Criminal Revision No.315 of 1998 also filed by the complainant shall be disposed of through this single judgment.
2. Occurrence in this case had taken place at 7-00 a.m. On 12-8-1995. Within the revenue estate of Adhi Kot at a distance of 17 miles from Police Station Noorpur, District Khushab while the matter was reported to the police by Allah Diwaya on the same day and formal F.I.R. Exh.P.NN. Was recorded by Muhammad Shabbir, S.-I. At 8-30 a.m.
3. Briefly stated the facts of the case are that on 12-8-1995 at about 7-00 a.m., the complainant Allah Diwaya alongwith Ghulam Nabi (deceased), Muhammad Sher son of Allah Wasaya, Muhammad Arif son of Ghulam Mustafa, Muhammad Afzal son of Allah Jawaya, Ghulam Mustafa son of Muhammad Khan, Mst. Sabhai were of Ghulam Mustafa and Mst. Azizan daughter of Muhammad Khan had come to Adhi Kot to plaster the house of Muhammad Ashraf, maternal cousin of the complainant. When they had hardly reached in the courtyard, Ghulam Qasim, accused went on to the roof of the house of Muhammad Ashraf and raised Lalkara that he will not leave them alive on that day and he will teach them a lesson for getting a case registered against him. Lie fired with his gun which hit brother of the complainant Ghulam Nabi on his right thigh who fell down. He then made a second fire which hit Muhammad Sher, P. W. On his left cheek. Meanwhile Sabir Hussain and Ahmad Khan accused both armed with hatchets, Intizar Hussain, Mst. Bhawan, Mst. Afzal Khatoon and Mst. Aslam Khatoon armed with Sotas and Mst. Sakina armed with a Wahola entered the courtyard of the house. Sabir Hussain accused inflicted hatchet blow which landed on the left side of forehead of Muhammad Arif, deceased. He fell down. Ahmad Khan accused inflicted hatchet blow which landed on the right side of head of Ghulam Mustafa who also fell down. Intizar Hussain inflicted Sota blow on both lips of Mst. Sabhai. Ghulam Sakina accused inflicted Wahola blow to Muhammad Afzal hitting him on his right arm and belly. Mst. Afzal and Mst.
Aslam Khatoon gave Sota blow on the person of Mst. Azizan P.W. Hitting on her forehead and right eyebrow. Ghulam Qasim continued raising Lalkara that if any body came near, he will be done to death. The occurrence was allegedly witnessed by Haji Muhammad Ashraf and Muhammad Aslam.
The motive alleged was that two years back, Ghulam Qasim and his womenfolk had injured his maternal cousin Muhammad Ashraf and Ghulam Qasim and others were proceeded against in that case but were acquitted. Muhammad Ashraf had filed a revision petition against that order which was pending in the Sessions Court. Due to this grudge, the accused persons had launched murderous assault on them while armed with fire-arms, hatchets, Sotas and Wahola. Ghulam Nabi while in his way to hospital succumbed to his injuries.
4. Investigation of the case was taken over by Muhammad Shabbir, S.-I./S.H.O. The blood-stained earth where Ghulam Nabi deceased was murdered was taken into possession vide memo. Exh.P.C.
Two crime empties of .12 bore gun were also secured vide memo. Exh.P.D. Similarly, the blood-- stained earth where Arif (deceased) was injured was taken into possession vide memo. Exh.P.E.
Ghulam Qasim accused while on physical remand got recovered .12 bore gun which was secured vide memo. Exh.P.J. Sabir Hussain accused also while in custody got recovered hatchet which was taken into possession vide memo. Exh.P.K. Ahmad Khan accused also got recovered hatchet which was secured vide memo. Exh.P.L. Similarly Intizar Hussain accused led to the recovery of Soti which was taken into possession vide memo. Exh.P.M. Khizar Hayat, S.-I. (P.W.17) partly investigated the case. He had arrested Ghulam Qasim, Sabir Hussain, Intizar Hussain and Ahmad Khan accused on 23-9-1995. Mst. Bhawan, Mst. Aslam Khatoon and Mst. Ghulam Sakina appeared before him when they were on interim bail. The bail was cancelled on 26-9-1995 and all the three ladies were arrested. On 24-9-1995, Mst. Bhawan produced Sota P.8 while Aslam Khatoon produced Sota P.9.
Both were taken into possession vide memo. Exh.P.F. And Exh.P.G. On the same day Ghulam Sakina got recovered Wahola P.10 which was secured vide memo. Exh.P.H. After completion of the remaining formal investigation, all the eight accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 17 witnesses in all. Tusawar Hussain, F.C. Was produced as C. W.1. Then the learned A.D. A. Tendered in evidence certified copy of the complainant Exh.P.VV, reports of the Chemical Examiner, Exh.P.XX and Exh.P.YY, reports of the Serologist Exh.P.ZZ, Exh.P.ZZ/1, report of the Ballistic Expert Exh.P.ZZ/2 and closed the case of prosecution. After that statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence. However, after conclusion of the trial, all the eight accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants submits that the story set up by the prosecution in the F.I.R.
That the complainant had come to house of Muhammad Ashraf for the purpose of plastering the roof is false because neither any implements were present at the spot nor there was any Ghanee.
Further submits that the appellants party put forward a cross-version which was not accepted by the police and thereafter the appellants had to file a writ petition and also a private complaint though the complaint was ultimately rejected by the trial Court. Further submits that four accused including 3 women were injured from the side of the appellants inasmuch as they received grievous and simple injuries but the same were dishonestly suppressed by the complainant in the F.I.R. And also before the trial Court. According to learned counsel, this Court has the power to reconstruct the situation when both the sides are not telling the whole truth and attempting to throw responsibility on each other. In fact, it is submitted by learned counsel for the appellants, that both the sides gathered for a very lawful purpose of settling matrimonial relationship and during the discussion, heated arguments took place, passions ran high and the sudden quarrel took place and when the mother and were of Ghulam Qasim, appellant were injured, he lost control of his senses and fired a shot which hit on the thigh of Ghulam Nabi deceased and it did not hit the vital part of body of Ghulam Nabi. Similarly, Sabir appellant made a solitary blow with hatchet which hit on the forehead of Muhammad Arif. Me did not repeat the blow. Further submits that Muhammad Sher P.W. Appears to have been hit by a stray pellet of the same fire-arm which was used by Ghulam Qasim. Adds that according to case of the prosecution, Ghulam Qasim fired at Ghulam Nabi but a perusal of the site plan makes it clear that the accused could not have fired at the deceased Ghulam Nabi from the place where he was standing. The houses being jointly owned, there was no question of any unlawful assembly on the part of the appellants, it was argued by the learned counsel. Learned counsel submits that there was no premeditation rather the occurrence had taken place at the spur of the moment and it is clear from the fact that the weapons of offence are normally kept in the houses of agriculturists. Learned counsel for the appellants have drawn our attention to the evidence of P.W.16 to support the case set up by the defence. At this stage, learned counsel again submits that story of the prosecution is also belied from the fact that Ghulam Qasim, appellant was present alongwith a gun at the roof top of house of Muhammad Ashraf and when the complainant party came there, he fired. If Qasim appellant was armed with a gun then nobody could have dared to come near and caused injuries to the ladies of his family. At the most, it is a case in which the provisions of section 302(c), P.P.C. Are fully applicable. In support of his submissions, learned counsel has relied upon 2000 SCM R 423; 1347 and 1352.
7. On the other hand, learned counsel for the complainant who has filed appeal against acquittal of convicts under sections 302 and 452, P.P.C. And also revision petition for enhancement of sentences, submits that admittedly defence has now set up a plea of exercise of right of self- defence though there is clear contradictions in their statements under section 342, Cr. P. C. And the private complaint Exh.P.VV filed by Mst. Bhawan but even then the accused have failed to prove the said plea. Further submits that in fact the complainant party was aggressor and it is so proved from the fact that two crime empties recovered from the roof top of Muhammad Ashraf wedded with the gun recovered on the pointation of Ghulam Qasim, appellant. Adds that the very fact that some of the appellants were injured is sufficient to prove their presence at the spot. In nutshell, learned counsel submits that the prosecution has been successful in proving its case against all the appellants to its hilt.
8. Learned counsel for the State is not present despite the repeated calls.
9. We have heard learned counsel for the parties at length and have gone through the record with their able assistance. The rain question involved in this case is suppression of injuries on the persons of four accused, namely, Ahmad Khan, Mst. Bhawan, Mst. Adam Khatoon and Mst. Ghulam Sakina. It may be noted here that Ahmad Khan, appellant had got four injuries on his person with blunt weapon and such number of injuries were also found on the persons of Mst. Bhawan and Mst.
Aslam Khatoon while Mst. Ghulam Sakina received 5 injuries. In all there were 17 injuries on the persons of four above named accused. Some injuries were grievous and fractures also took place.
In this regard, the defence has produced Dr. Malik Rab Nawaz (D.W.1) who medically examined all the four injured accused. Their MLRs. Are Exhs.D.B. To DE. Mst. Bhawan is mother of Ghulam Qasim while Mst. Ghulam Sakina is were of Ghulam Qasim. In the case of Haider Zaman and others v.
Suleman and others 2000 SCM R 423 where true facts were suppressed both in the F.I.R. And the private complaint and both the parties tried to throw burden on the shoulder of the other and the injuries suffered by the injured persons were not explained, conviction was altered from section 302, P.P.C. To section 304, Part I, P.P.C., as it then was.
10. The main contention of learned counsel for the complainant was that a specific plea was taken by Ghulam Qasim, appellant in his statement under section 342, Cr.P.C., while replying to question No.8 but in the private complaint Exh.P.VV, a contradictory plea was taken. It may be noted here that though both the parties lived in different haveli but boundary wall is common. In fact .The prosecution has suppressed its role before the police and also before the trial Curt. They did not approach the Court with clean hands. At this stage, we would like to reproduce the reply given by I appellant Ghulam Qasim in his statement under section 342, Cr.P.C. Which reads as under:-- "About 12/13 years before this occurrence, Mst. Siani and Mst. Azizan sisters of Muhammad Ashraf P.W. Were got married me and Sabir Hussain co-accused whereas my sister Mst. Aslam Khatoon was given in Nikah to Muhammad Aslam P.W. In exchange of above said marriages. Three marriages collapsed within a span of two years. Consequently, Mst. Siani and Azizan were deserted and they started living in their paternal house. On account of failure of three marriages relations between the parties became strained. Muhammad Ashraf P.W. And his family shifted his residence from village Adhi Kot to his Dera Gullay Khailanwala and the whole haveli came under our possession and we are enjoying its peaceful possession since then. On 11-8-1995, Muhammad Aslam complainant entered into our haveli without our permission whereupon my mother scolded him and had asked him as to why he had entered in our haveli when were not in good relations with him. Thereupon Muhammad Ashraf gave a threat that he will teach a lesson for his insult.
Thereafter on 12-8-1995 at about 6-00 a.m. When my mother and family members were present in our house Muhammad Ashraf along with 25 persons armed with hatchets, Waholas and other lethal weapons while riding on tractor entered into our house forcibly and launched murderous assault on us. They removed Alam of Ghazi Abbass installed in our house and desecrated it. These persons caused injuries on the person of Mst. Aslam Khatoon, Sakina, Mst. Bhawan and Ahmad Khan who became seriously injured. On our hue and cry many persons of the locality gathered at the spot in order to rescue us from the clutches of the complainant party and some people amongst the rescuers who had gathered there had also made firing to save us and in that melee the complainant party also sustained injuries in the occurrence. In fact we were aggressed by the complainant party. We tried our best to get a case registered against them and even we moved the Honourable Court in this respect and the Honourable High Court issued a direction in this regard but local police with the collusion of the complainant party twisted the real facts of the case and we were falsely challaned in the present case."
After considering both the versions one set up by the prosecution and the other introduced by the defence, we are of the considered view that it was a case of exceeding right of self-defence. We may state here that Ghulam Qasim appellant had made only one shot which hit on right thigh of Ghulam Nabi, deceased. The other shot fired by him hit on the cheek of Muhammad Sher P.W.
According to case of the prosecution itself, Sabir appellant had given a hatchet blow which landed on the forehead of Muhammad Arif while the second blow was given by Ahmad Khan, appellant which hit on the right side of head of Arif. Both Ghulam Qasim and Sabir appellants are real brothers. It seems that in fact the complainant party first gave beating to womenfolk of appellants namely Mst. Bhawan, the mother of Ghulam Qasim, appellant, Mst. Sakina, the were of Ghulam Qasim, and then under provocation and while using the right of self-defence, both Ghulam Qasim and Sabir appellants caused injuries on the persons of Ghulam Nabi and Arif, deceased.
As far as different plea taken by Ghulam Qasim appellant is concerned, an accused can take different pleas. In the case of Ashiq Hussain v. The State 1993 SCM R 417 it was observed by their Lordships of the Honourable Supreme Court as under:-- "Needless to repeat that it is bounden duty of the prosecution to prove the case against accused beyond doubt and this duty does not change or vary in the case in which any defence plea is taken. Burden of prosecution to prove its case beyond doubt remains the same. Of course, defence plea is to be considered in juxtaposition with prosecution case and in the final "analysis if the defence plea is proved or accepted then the prosecution case would stand shattered and discredited. It would be enough if plea is substantiated to the extent of creating doubt in the credibility of the prosecution case. If defence plea is not substantiated, no benefit accrues to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false."
The plea of defence that they have acted in right of self-defence seems to be more plausible and reasonable one in the facts and circumstances of this case, so we are of the opinion that it was a case of right of self --defence but exceeded one. In Manzoor v. The State 1993 SCM R 1624 relying on the provisions of section 97; Cr.P.C.. Their Lordships of the Honourable Apex Court held the act of convict appellant in that case to be covered by Exception 2 to section 300, P.P.C. On the ground that the convict had a right to save the person of his .Nephew and that only one blow was attributed to the convict but since it was inflicted on the vital part of the body, therefore, it can safely be held that he exceeded the right of private defence. Resultantly, conviction of the appellant under section 302, P.P.C. Was, altered into one under section 304, Part I, P. P. C. And he was sentenced to undergo R.I. For 10 years.
The net result of above discussion is that so far as Ghulam Qasim appellant is concerned, his conviction under section 302(b), -P.P.C. Is altered and he is convicted under section 302(c), P.P.C.
And is sentenced to undergo R.I. For 10 years. The sentence of fine is set aside as it was a case in which firstly the womenfolk of accused were injured and it was only thereafter that the appellants launched attack in exercise of right of self-defence. However, his sentence for causing injuries to Sher Muhammad P.W. Is maintained in toto. Both the sentences shall run concurrently with the benefit of section 382-B, Cr.P.C. The death sentence of Ghulam Qasim is not confirmed and murder reference is replied in the negative.
Similarly, the conviction of Sabir appellant is converted from section 302(b) to section 302(c), P.P.C.
And he is sentenced to undergo R.I. For 10 years with the benefit of section 382-B, Cr.P.C. The sentence of fine is set aside. His death sentence is not confirmed and murder reference is replied in the negative.
Ahmad Khan and Intizar Hussain appellants after serving their full term of sentence have been released from the jail, so to their extent, the appeal filed by the convicts has been rendered infructuous.
So far as Mst. Bhawan, Mst. Aslam Khatoon, Mst. Ghulam Sakina and Mst. Afzal Khatoon are concerned, the period which they had remained in the jail is treated to be sufficient punishment to meet the ends of justice. They are on bail. Their bail bonds shall stand discharged.
Appeal filed by the convict appellants is disposed of in the above terms. While the appeal and revision filed by the complainant are dismissed.