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Criminal Appeal No.650 of 1981 and Murder Reference No.2 of 1982, decided on 20th October, 1985.

‑‑‑‑S. 302/307/323/34‑‑Self‑defence‑‑Plea of‑‑Interested witnesses‑ Appreciation of evidence‑‑Witnesses injured, though related to deceased and their presence at spot established and admitted‑‑Accused also injured‑‑Injuries of accused explained in F.I.R. and depositions of witnesses corroborated by medical evidence‑‑Nature of injuries on persons of both parties considered‑‑Evidence of motive unchallenged‑‑Plea of self‑defence, held, could not be established by comparison of prosecution evidence and statements of accused, nor their story could be found correct or probable in circumstances.

‑‑‑S. 302/307/323/34‑‑Origin of fight‑‑No evidence produced by prosecution as to cause or origin of incident‑‑Legitimate inference, held, could be drawn that either prosecution did not know or did not want to produce such evidence‑‑In either case benefit had to go to accused‑‑Death sentence was, therefore, reduced to life imprisonment in circumstances.

Sardar Muhammad Latif Khan Khosa for Appellants.

Shaukat Ali for the State.

Date of hearing: 20th October, 1985.

Ghulam Muhammad son of Fateh Khan, his brother Rab Nawaz, another brother Shah Jehan and Ata Muhammad son of Sher Muhammad, were tried under sections 302/34 and 307/34, P.P.C., by the Additional Sessions Judge, Sargodha. The charge against them was of murder of Muzaffar son of Khan and for causing injuries to Sher Muhammad and Ghulam Muhammad. The occurrence took place on 11‑3‑1980 at 8‑00 a.m. in the torrent outside Abadi Warchha. Police Station Ganjial, District Sargodha.

The trial Judge by judgment, dated 30‑11‑1981 convicted Ghulam Muhammad and Rab Nawaz under section 302/34, P.P.C. and sentenced both of them to death. They were also fined Rs.2,000 each, or in default to undergo 6 months' R.I. each. Another amount of Rs.5,000 was imposed on each of them under section 544‑A, Cr.P.C. to be paid as compensation [o the legal heirs of the deceased. In default of payment of compensation they were to further undergo four months' R.I. Both of them were also convicted under section 307/34, P.P.C. and sentenced to five years' R.I. each and fine of Rs.1,000 each; or in default to undergo further three months' R.I.

Shah Jehan was convicted under section 323, P.P.C. and sentenced to six months' R.I.

Ata Muhammad was acquitted of all the charges.

The convicts have appealed to this Court. Reference for confirmation of death sentence is also before us. Sher Muhammad, complainant, has filed criminal revision against the acquittal of Shah Jehan and Ata Muhammad under section 302/307/34, P.P.C. The revision has been ordered to be heard alongwith the appeal.

On 11‑3‑1980 at 9‑30 a.m. report about the incident was lodged by Sher Muhammad son of Muzaffar, at Police Station Ganjial. It was recorded by Nusrat Ali, S. I./S.H.O.

According to the first informant, on the day of occurrence his father Muzaffar Khan had gone out of the house to pass water. He (complainant) was present in the house. After few minutes, he heard some hue and cry. Sher Muhammad came out of the house. He saw his father being beaten by Shah Jehan and Ata Muhammad. They were hitting him with stones. Meanwhile, Rab Nawaz and Ghulam Muhammad, son of Fateh Khan, armed with .12 bore guns came from the side of mosque. As soon as they crossed in front of the door of the house of Sher Muhammad, complainant, Shah Jehan raised Lalkara that Muzaffar should not be spared. He threw a stone. Muzaffar was hit in the waist. Ghulam Muhammad fired which hit Muzaffar again in the waist. Then Rab Nawaz fired. Muzaffar was hit in the left shoulder and near the neck. He fell down. Ghulam Muhammad son of Ghaus Muhammad, who reached the spot, went ahead to save Muzaffar. Then Rab Nawaz and Ghulam Muhammad fired one shot each. Those missed Muzaffar, But hit the wall of Hafiz Noor Muhammad. Rab Nawaz again fired. Ghulam Muhammad son of Ghaus Muhammad was hit in the right arm and chest. In the meantime, Ata Muhammad threw a stone. Ghulam Muhammad was hit on the head. Shah Jehan also threw a stone which hit Sher Muhammad, complainant, in the for head. Ata Muhammad again threw a stone. It hit Ghulam Muhammad on the head on left side. Sher Muhammad and Muhammad Hayat also threw stones to save themselves. Rab Nawaz, Ghulam Muhammad son of Fateh Khan and Shah Jehan were hit. Sher Muhammad, complainant, snatched gun with cartridges‑bag from Rab Nawaz. Similarly, Muhammad Hayat snatched gun and bag of cartridges from Ghulam Muhammad. All the accused ran towards south.

Ahmad Yar in the meanwhile came to the spot. He was entrusted with guns and cartridges bags.

Injured Muzaffar and Ghulam Muhammad were put on the cots. They were being taken to the hospital. Muzaffar died at Rokhala Mandi. The dead body was taken to Civil Hospital, Qaidabad.

The motive for the occurrence was that Mst. Panno Bibi, daughter of Muzaffar, deceased, and sister of the complainant, was engaged to Shah Jehan in the childhood, but on account of some difference, four‑five months prior to the occurrence she was married with Muhammad Hayat.

At the trial, Sher Muhammad affirmed his above statement on oath.

Ghulam Muhammad (P.W.7) stated that on the day of occurrence he was returning from Rokhala Mandi to his house. It was morning time. He heard cries near the house of Noor Muhammad. He reached by the banks of hill torrent and found Shah Jehan and Ata Muhammad throwing stones at Muzaffar. Muzaffar was on the eastern bank of the stream. The two accused were in the hill torrent. The rest of his version is the same as that of the first informant. He attributed Lalkara to Shah Jehan and then respectively assigned the same role to the accused as attributed by the first informant. He said that he intervened to rescue Muzaffar Khan. Meanwhile Rab Nawaz reloaded the gun and fired at him, which hit him in the chest and right arm. Ata Muhammad hit him with stones in his head. Shah Jehan threw stones and injured Sher Muhammad, complainant, on his forehead.

Ghulam Muhammad admitted that Sher Muhammad and Muhammad Hayat threw stones in retaliation as a result of which Rab Nawaz, Ghulam Muhammad and Shah Jehan were injured.

The witness then gave the story as to how guns and cartridge bags in the hands of the two accused were snatched by Sher Muhammad and Muhammad Hayat. He said that when all this was going on, some ladies from the house of Muzaffar came. They were crying. The accused ran away.

Gun Exh. P.4, alongwith Plastic Bag Exh. P.5 and Licence Exh. P.6 were produced by Sher Muhammad, complainant, before the Investigating Officer, who took them into possession, vide memo. Exh.P.L. on 11‑3‑1980. Sher Muhammad also produced gun Exh. P.7, plastic bag Exh. P.8, containing live cartridges Exh. P.9/1‑2, and licence P. 10 before the Investigating Officer the same day. These articles were taken into possession, vide recovery memo. Exh. P.M. The crime empties recovered from the spot and sent for the examination to Forensic Science Laboratory alongwith the guns were reported to have been fired from the guns, vide report Exh .P.C.C.

On 11‑3‑1980, at 3‑10 p. m. Dr. Pirzada Muhammad Alam Shah conducted the post‑mortem examination of Muzaffar and found nine fire‑arm lacerated wounds of entry, each 1/3" x 1/3" x deep into the abdomen in an area of 3 " x 3 " in a ring form on the back of lumbar spine. One rounded abrasion 1" x 1" was above these injuries. There were 3 fire‑arm lacerated wounds of exit of the above injury, on the front of left side of abdomen and chest edges everted. Besides these injuries, the doctor found one lacerated wound on the angle of root of the neck and left shoulder and a bruise on the outer side of middle of the left forearm.

On internal examination, second and third lumbar vertebra spine were found damaged. The spinal chord at third lumbar vertebrae was lacerated.

Death in the opinion of the doctor was due to shock and haemorrhage, as a result of injuries Nos. 1 and 2, which were sufficient to cause death in the ordinary course of nature. These injuries were caused by fire‑arm, whereas injury No. 3 was caused either by fire‑arm or with a blunt weapon. The last injury was the result of blunt weapon.

On the same day at 2 p.m. the doctor medically examined Ghulam Muhammad P.W. and found nine injuries on his person. Three of the injuries were caused by a blunt weapon and the rest with fire‑arm. All the injuries, after X‑ray were declared simple.

Sher Muhammad, complainant, was medically examined by the same doctor at 2‑20 p. m. and was found to have suffered three simple injuries caused with blunt weapon.

On the same day (11‑3‑1980) at 2‑30 p.m., the same doctor medically examined Ghulam Muhammad, appellant, and found as many as nine injuries on his person. All the injuries except No.8 were declared simple, caused by a blunt weapon.

At 2‑45 p.m., the same day, the same doctor medically examined Rab Nawaz, appellant. Three injuries were found on his person. All the injuries were simple, caused by a blunt weapon.

At 2‑55 p.m., the same day, Shah Jehan, appellant, was medically examined by the same doctor, who found four simple, blunt weapon injuries on his person.

Ghulam Muhammad in his statement under section 342, Cr.P.C. admitted his relationship with the other appellants as well as with the complainant. He denied the other allegations against him. He explained his injuries stating that his brother Shah Jehan went to Khola of Mianas to ease himself, where he was assaulted and injured by Sher Muhammad, Ghulam Muhammad and deceased Muzaffar. On alarm raised by him, he (Ghulam Muhammad) rushed towards the spot to save him. When he was passing near the spot, he was also attacked by the complainant party and was injured. In the meantime, sympathizers from both sides collected there and there was cross‑firing. He also received gunfire injury.

Rab Nawaz and Shah Jehan, appellants, also denied the allegations against them and explained their injuries as stated by Ghulam Muhammad.

Learned counsel for the appellants, after taking us through the evidence, contended that the motive was false. If it had been genuine, then the best person to prove the same would have been Muhammad Hayat who was given up by the prosecution.

It was next submitted that both the eye‑witnesses, namely, Sher Muhammad and Ghulam Muhammad, were relatives of the deceased and related inter se. Their evidence, as such, was of interested type.

Great stress was laid by the learned counsel on the defence version. Learned counsel submitted that the story given by the appellants 'in their statements was more probable whereas the one of the prosecution was unlikely/unnatural. The fact that all the three appellants were injured supported their version.

Learned counsel also tried to make out a case of self‑defence and submitted that even if this plea had not been specifically taken by the appellant, but if it could otherwise be spelt out from the evidence on record then it was the duty of the Court not only to take into consideration but also to give its benefit to the appellants.

Last of all, learned counsel submitted that if the F.I.R. the ocular version and the rest of the evidence was to be believed, then at least one thing the prosecution had failed to establish and that was the origin of the fight.

The factual position, which cannot be doubted either by the prosecution or the defence is that Muzaffar died from the side of the complainant. Two others from that side, namely Sher Muhammad and Ghulam Muhammad, were injured. From the side of the accused the three appellants were injured. We have to analyse as to which version is to be believed or preferred, whether the prosecution story is true or the one told by the appellants is probable.

We find that the first informant as well as Ghulam Muhammad P.W. though relatives of the deceased, were injured. Their presence at the spot is thus established. They were injured in the manner in which they deposed on oath before the trial Court. Similarly, the three appellants were injured. Here the point to be considered is whether the prosecution concealed their injures. The answer is in the negative. In the F.I.R. as well as in the evidence on oath an explanation was given of the injuries of the appellants and this application finds due corroboration from the medical evidence, because the type of injuries received by them could be caused by stones. None of the injured from the appellant's side except Ghulam Muhammad, who had a grievous injury on a finger, had any grievous injury. These facts are undisputed.

Now, we have to examine the contentions of the counsel referred to above.

The mere fact that Muhammad Hayat was not examined does not mean that the motive was either false or had not been established. Sher Muhammad on oath said what was the cause of attack on his father. The choice of citing and producing a particular witness rested with the prosecution. Undoubtedly, an adverse inference can be drawn where an important witness is not produced. But the evidence of the first informant about the motive has gone unchallenged. So, this contention is repelled.

Similarly, after comparing the evidence of the prosecution witnesses with the statements of the appellants we don't think that the defence has succeeded in establishing the plea of self‑defence or that their story was correct or even probable. We, therefore, do not accept either of them.

There appears to be some force in the last contention of the learned counsel for the appellants which is about the origin of the fight. The prosecution did not lead any evidence as to what was the cause or the origin which started the whole incident. A legitimate inference which can be drawn by this is that either the prosecution did not know or it did not want to produce evidence about the same, because it was against their interest. In either case, its benefit has to go to the defence. Therefore, all what we can do for the appellants is to give them concession in the quantum of sentence.

For the foregoing reasons we decline to confirm the death sentence of Ghulam Muhammad and Rab Nawaz, appellants. Their sentence is altered to imprisonment for life. The sentence of fine is maintained. It shall also be paid as compensation to the legal heirs of the deceased, besides the amount of compensation imposed by the trial Judge.

The conviction and sentence of both these appellants under section 307/34, P.P.C. is upheld. The amount of fine imposed for this offence shall also be paid as compensation to the injured P.Ws. Both the sentences shall run concurrently.

While maintaining the conviction of Shah Jehan, appellant, under section 323, P.P.C., we reduce his sentence to the one already undergone by him. He is on bail. His bail bond shall stand discharged.

For the reasons given above, there is no merit in the criminal revision, which is hereby dismissed.

S. A. Appeal dismissed.

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