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Criminal Appeal No. 15 and Murder Reference No. 35 of 1983, decided on 20th April, 1986.

‑‑‑S. 302 read with S. 100‑‑Evidence, appreciation of‑‑Sentence, reduction in‑‑Accused on hearing cries coming to spot, armed with a gun and firing a shot hitting deceased‑‑Accused, however, firing at deceased when he had already receded, and reached courtyard of his Haveli‑‑Right of self‑defence, held, was no longer available to accused in circumstances‑‑Sentence of death, however, reduced to imprisonment for life in circumstances.

‑‑‑S. 302‑‑Evidence, appreciation of‑‑Benefit of doubt‑‑Accused attacked on head, cutting skull bone leaving him incapable of using a fire‑arm‑ Accused given benefit of doubt and acquitted, in circumstances.

‑‑‑Ss. 302 & 307‑‑Offence, alteration of‑‑Pellets hitting deceased and deceased remaining in bed for over a month before he died‑‑Fact whether deceased died due to negligence of hospital authorities or long immobilization for his fractured leg, not ascertainable‑‑Offence under S. 302, P.P.C., altered .to that under S. 307, P.P.C. in circumstances.

M.B. Zeman for Appellants.

Pervaiz Alamgir for the State.

Munir Ahmed Bhatti for the Complainant.

Date of hearing: 20th April, 1986.

Muhammad Nawaz (45), Muhammad Sadiq (50), Fateh Khan (55), Sher Shah (70), Sher Bahadar (50) and Lal Khan (45) were tried for the murder of Abdul Ghafoor and his father Muhammad Khan and for having murderously assaulted Mst. Bahishtan by the Sessions Judge, Attock. On 22‑12‑1982 Nawaz and Muhammad Sadiq were convicted under section 302/34, P.P.C., on the two counts. Nawaz was sentenced to death and Sadiq to imprisonment for life each on two counts. They were, however, acquitted on the charge under section 307, P.P.C. The remaining accused were acquitted of the charge.

Appeal of the convicts, the connected murder reference, Siddiq, petitioner's revision against the acquittal, for the enhancement of sentence and for awarding the sentence of fine and the revision filed by the accused against the acquittal of complainant and others in the cross‑case under section 307, P.P.C., are before us.

2. Muhammad Nawaz and Muhammad Sadiq accused are sons of Sher Shah, accused. Sher Shah accused is the maternal‑cousin of Muhammad Nawaz and Muhammad Sadiq. Wife of Sher Bahadar is the maternal cousin of Sher Shah. Wives of Muhammad Sadiq and Fatah Khan are sisters. Muhammad Khan son of Abdullah (informant) had litigation with Sher Shah, acquitted‑accused over a piece of land situate in Khaara No. 2360 village Balwal. The case was decided by the A.D.C.(G), Attock, in favour of the informant. He also won the case in the High Court in appeal. This was the motive for the crime. According to the prosecution, on 25‑P2‑1981 in the absence of the informant, Sher Shah. accused, plug out foundations in the said land in ,the morning at about 9 a.m. Sher shah, Sher Bahadar, Nawaz and Muhammad Sadiq all armed with 12 bore guns, Fateh Khan armed with a stick and Lal Khan with a Vahola came over for carrying out construction in the said land. Muhammad Khan informant's son Abdul Ghafoor who was present in the courtyard of his house shouted at them that since the case had been decided in their favour, therefore, no construction be made on their land. An altercation ensued. Besides Muhammad Khan (informant) his son Muhammad Siddiq and his wife Mat. Bahishtan were also present in the courtyard. Muhammad Nawaz fired a shot which hit Abdul Ghafoor in the cheat. Sher Bahadar fired the second shot which hit him in the abdomen. The two again fired at Abdul Ghafoor who fell dead at the spot. Muhammad Khan went up to his son but was fired at by Muhammad Sadiq, the shot hit him on the left leg. Sher Shah accused hurled stones which hit the informant on his arms. Lal Khan hit him with a Vahola on his right hand. Fateh Khan gave the second blow to the informant which hit him on the left arm. Mst. Bahiahtan went near her son Abdul Ghafoor. Sher Bahadar hit her with the Butt‑end of his gun in the back and on her shoulder. Muhammad Sadiq (accused) also got injured. Besides the informant, the occurrence was also witnessed by Muhammad Siddiq, his. son and his wife Mat. Bahishtan. Muhammad Khan was carried to Police Station Laws where he made F.I. R. Bxh. C.W.1/1 to C.W.1 Mehmoad Akhtar S.I. Since the police did not challan Sher Bahadar, the informant filed the complaint and the Magistrate summoned Sher Bahadar, accused. C.W.1 Mehmood Akhtar, S.I./S.H.O. P.S. Laws, after registering the case, went to the place of occurrence, prepared the necessary documents and sent the dead body of Abdul Ghafoor for its post‑mortem examination.

3. P.W. 7 Dr. Abdur Razzaq, Medical Officer, Pindigheb on 26‑12‑1981 at 11‑50 a.m. examined Muhammad Khan who was then alive and found the following injuries on him:‑‑

(1) A fire‑arm wound of entry of 1 c.m. diameter circular in shape on the upper outer part of left lower leg. Its margins were lacerated and contused 4 c.m. below and outer to tibial tuberosity. There was a corresponding wound of exit on the upper inner part of left lower leg towards back at a slightly lower level. The tibia bone was found fractured underneath and its proximal fragment was lying partially out of the wound at a lower level which was 9 c. m. x 3 c. m.

(2) Three minor abrasions in an area of 5 c.m. x 4 c.m., on the outer aspect of upper 1/3rd of left forearm.

(3) An abrasion 5 c.m. x 2 c.m. on the outer part of right forearm at its middle.

(4) A diffused swelling 8 c. m. x 5 c. m. on the back of right hand outer part.

Injury No. 1 was grievous caused by firearm and the rest were simple caused by blunt weapon.

P.W.8 Lady Doctor Hamida Khatun W.M.O. examined P.W. 5 Mst. Bahishtan same day of 7 p.m. and found two contusions on her; one on the back of right shoulder 3 c. m. x 1 c. m. and the other on the back of right side of chest 3 c.m. x 1 c.m.

On the following day, Dr. Abdur Razzaq, M.O. held the autopsy on the dead body of Abdul Ghafoor and found the following injuries on it: ‑‑

(1) A circular wound of entry with a diameter of 1 c.m. inner to right nipple at 3 o'clock position. It was muscle deep. A corresponding wound of exit 7 c.m. below and outer to right nipple.

(2) A circular wound of entry of 1 c. m. diameter x abdominal cavity deep on the right side upper part of abdomen, 14 c.m. from right nipple at 5 o'clock position. A corresponding wound of exit was found on the right loin 27 c.m. from umbilicus and at 10 o'clock position. On dissection, there was perforation in the peritoneum and there was gutter like injury on interior surface of liver; peritoneal cavity was full of blood.

(3) A circular wound of entry of 1 c.m. diameter into abdominal cavity deep 14 c. m. from umbilicus at 1 o'clock position on the front of left side upper part of abdomen. On dissection there were perforations in the peritoneum, stomach and mesentery underneath; one pellet was recovered from right pare colic gutter.

(4) A circular wound of entry of 1 c.m. diameter x chest cavity deep on the left side front part of chest 4 c.m. from left nipple at 8 o'clock position. On dissection, it was found to have passed through 5th intercostals space, pleura and pericardium, diaphragm and then through the substance of the liver. There was perforation of right ventricle of heart near apex pericardial cavity contained blood‑clotted and non‑clotted. There was perforation of upper pole of right kidney. One pellet was found lodged in the subcutaneous tissues after grazing the lower border of the 11th rib and was taken out.

(5) A circular wound of entry of 1 c.m. diameter into chest cavity deep on the left side front upper part of chest just below inner end of left clevicle 2 c. m. from mid line. On dissection underneath 2nd rib was found fractured at sterno costal junction. There were formations in the left pleura, right pleura and upper lobe of right lung underneath and the pellet recovered from the subcutaneous tissues of the right chest wall at the level of posterior axillary line. This had caused the fracture of the 5th rib.

(6) A circular wound of entrance of 1 c. m. diameter into cheat cavity deep on the front of left side upper part of chest, just below clavicle at its middle. On dissection underneath there was grazing of the lower border of the second rib, perforation of left pleura and upper lobe of left lung, right pleura and right lung. There was fracture 8f the 8th rib at the posterior axillary line. A pellet was recovered from the subcutaneous tissues adjacent to the 8th rib.

(7) An abrasion 3 c.m. x c.m. on the right loin posteriorly.

(8) An abrasion 5 c.m. x 1 c.m. on the back of left forearm at the junction of lower and middle third part.

Deceased's stomach contained 50 grams of semi‑digested food. There was 40 mil gm. urine in. the bladder. In doctor's opinion, death occurred due to shock and haemorrhage caused by injuries Nos. 2 to 6 which were individually and collectively sufficient to cause death in the ordinary course of nature.

4. On 30‑12‑1981 C.W. 1 Muhammad Akhtar, S.I. arrested Sher Shah, Muhammad Nawaz and Fateh Khan. On 2‑1‑1982 Nawaz accused in custody led to the recovery of his gun P. 6 alongwith three live cartridges P.711‑3 which were taken into possession through memo, Exh. P.E. Fateh Khan got recovered his stick P. 9, which was taken into possession through memo. Exh. P.F. On 12‑1‑1982, the S.I. arrested Lal Khan who led to recovery of Vahola from his house. It was taken into possession through memo. Exh. P.G. All the mentioned recovery memos were attested by P.W. 4 Nur Khan and P.W. Fateh Khan (given up as unnecessary) besides the Investigating Officer. On 25‑1‑1981 Sadiq was arrested. Since he‑was injured, therefore, the S.I. registered a case under sections 307/148, 149, P.P.C., on his statement. Sher Bahadar was placed in column No. 2 and was found innocent by the police.

5. Muhammad Khan who was admitted in the D.H.Q. Hospital, Pindigheb on 16‑1‑1982 expired on 3‑2‑1982. His post‑mortem examination is Exh. P. K. held by Dr. Irahad Ahmed Pirzada, Medical Officer. Since the said doctor could not be traced as reported by P.W. 9 Allah Diwaya on his summons Exh. P.W. 9/1, to avoid further undue delay secondary evidence was led by P.W. 11 Abdul Karim Janjua, Dispenser, D.H.Q. Hospital, Attock, who had worked with the said doctor. He proved the post‑mortem report Exh. P.K. The doctor found "an open wound 7.5 c.m. x 5 c.m. on the left lower leg. Tibia can be seen with plating bone." In doctor's opinion, Muhammad Khan died due to pulmonary embolism, the embolus originating from the peripheral vessels of the body due to long immobilisation of the patient for his fractured leg. Sudden and complete occlusion of main pulmonary artery resulted in sudden death. After completing the investigation, the accused were sent up for trial.

6. Denying the prosecution case, Sher Shah said that only one Kanal of land out of the said Khasra No. 2360 on which Muhammad Khan built his house was 'Bila Lagan'. He claimed to be in possession of the disputed plot. He added that within the knowledge and view of the complainant party, a day before the occurrence, the foundations were dug by Muhammad Sadiq, Fateh Khan and Lal Khan. Explaining the case against him, he made the following statement:‑‑-

"Three Kanals 9 Marlas of land belonged to me. It bore two Khasra numbers. Muhammad Khan made an application to the Revenue Authorities for its demarcation. A Girdawar went to the spot and, after taking measurements of the land in presence of both the parties, held that the piece of land that on which Muhammad Khan's Haveli stood constructed was in possession. In front of his house, the passage was a thoroughfare and about 17 Marlas of land situated across the lane somewhat in front of Muhammad Khan's Haveli which is adjacent to the house of Muhammad Sadiq co‑accused to its West was held to be in my possession. I place the copy of the report (Exh. D.C.). It was accepted by Muhammad Khan deceased who thumb‑marked the same. The attested copy of the decision of A.D.C.(G) Exh. D.D. is also placed on the file. The copy of decision of revision filed by Muhammad Khan is, also brought on the file as Exh. D. E.

On 24‑12‑1981 Muhammad Sadiq, Lal Khan and Fateh Khan collected stones on the plot. On the following day they dug foundation thereon, for raising a wall and on 26‑12‑1981 at about 9 a.m. when they were arranging the stones in order to lay foundation of the wall, Abdul Ghafur Armed with a hatchet, Muhammad Siddiq complainant with a Chhuri and Muhammad Khan with a Soti while Mst. Azizan and Bahishtan with stones came to the plot, forbade Muhammad Sadiq and his companions to raise the wall but he insisted saying, that the land belonged to them. Meanwhile I also reached there. I was empty handed. The controversy assumed the form of altercation and thereupon the complainant party attacked us. Ghafur attacked Sadiq with hatchet giving him 2 blows with it on his head. Lal Khan tried to intervene but he was given a Sots blow by Muhammad Khan while Mst. Bahishtan pelted stones on him. Siddiq and Met. Azizan attacked me. I held the chhuri of Siddiq in my hand and got injured while the lady threw stones on my leg. Meanwhile, Muhammad Nawaz (co‑accused) with a gun reached there. Seeing us being beaten, he went up a small heap of stones and standing their fired at Ghafur which hit Muhammad Khan on his leg. Both of them were hit and fell down. Ghafur died at the spot and he was removed by his relations to his house while our relations removed our injured to our house. I was taken for report to the police but they refused to register our case. Later we were removed to D.H.Q. Hospital, Attock as the doctor was not available. at Talagang and there we were medically examined. Later, on the statement of Sadiq co‑accused, a case was registered against the complainant's party under section 307, P. P. C.

Fateh Khan, Lal Khan, Muhammad Sadiq and Muhammad Nawaz supported the statement of Sher Shah. Muhammad Nawaz claimed to have acted in defence of his brother and father and fired a shot at Abdul Ghafur which also hit Muhammad Khan in the leg. Besides the doctor who had examined the accused, the accused led no other evidence in defence.

Explaining the case against him, Sher Bahadar made the following statement: ‑‑

"I was S.I. in Police Department and I came to the village about 10 days before the occurrence on L.P.R. and the complainant party falsely implicated me in this case merely on account of my kinship with the co‑accused and probably they might lee apprehensive that being in Police Department I might pursue their case".

7. D.W. 1, Dr. Faiz Muhammad Farooqi, Medical Officer, Attock, was produced in defence. He examined Muhammad Sadiq accused on 26‑12‑1981 and found two incised wounds; (1) 7 c.m. x 1 c.m. on she back of skull cutting the bone and the other 4.5 c.m. x 5 c.m. on the back of skull 2 c.m. from injury No. 1. Muhammad Sadiq also complained of paralysis of both the legs. The two injuries were grievous caused by a sharp‑edged weapon. He remained in the hospital till 25‑1‑1982. Same day, the doctor also examined LAI Khan accused and found a contusion wound 6 c. m. x 5 c. m. in the centre of skull and the other abrasion 6 c.m. x 1 c.m. on the upper side of left forearm. The injury was simple caused by a blunt weapon. The doctor also examined Sher Shah accused same day and found an incised wound 2 c.m. x 5 c.m. on the right middle finger '(2) abrasion 2 c.m. x 5 c.m. on the right thigh, (3) abrasion 6 c.m. x 1 c.m. on the right lower leg.

8. Trial Court came to the conclusion that Sher Bahadar who denied his presence at the spot, had no direct interest in the land in dispute. It observed that the injury attributed to him could not have peen inflicted by him because Abdul Ghafur deceased already fell after receiving the injury in his chest at the hands of Nawaz. Police also found him innocent during investigation. Consequently, he was acquitted. About Sher Shah, trial Court observed that he was an old man and was alleged to be armed with a gun which he never used though he was said to have thrown stones at Muhammad Khan. Trial Court also came to the conclusion that the role attributed to him was improbable, he was, therefore, acquitted. Determining the liability of Fateh Khan, and Lal Khan, trial Court observed that were working as labourers for the construction which was objected to by the complainant party. Lal Khan was said to have inflicted a Vahola blow on the arm of Muhammad Khan but there was no sharp‑edged weapon injury there. Further concluded that since it could not be ascertained whether the injury on the hand of the deceased was caused by a stone or a stick blow, Fateh Khan was also given the benefit of doubt like Lal Khan. The plea of se‑111‑defence of Muhammad Nawaz that in defence of his brother Muhammad Sadiq and father Sher Shah, he opened fire at Abdul Ghafoor and the shot also hit Muhammad Khan in the leg was disbelieved by the trial Court. It, however, observed that these two accused were trespassers and aggressors.

8‑A. Criticizing the finding, learned counsel for the appellants contended that the defence has clearly proved their possession on the piece of land adjacent to his house over which they were king to raise the construction and were obstructed to with force by the complainant party which they justifiably resisted by firing a single shot with the licensed gun of Muhammad Nawaz. Further contended that the complainant party had tried to rope in large number of persons. Sher Bahadar was not even challaned by the police who was, However, summoned in the complaint case but acquitted by the trial Court. On the other hand, the evidence against the remaining three acquitted accused has also not been found consistent with the medical evidence. They were also rightly acquitted by the trial Court. It was further, argued that under the circumstances, it would not be safe to rely the statements of the prosecution witnesses against the appellant.

9. We have considered the matter. No doubt the order Exh. D.D. of the A.D.C.(C), dated 20‑10‑1979 and the order passed in revision Exh. D.E., dated 14‑4‑1980 lend support to the case of Sher Shah that he was in possession of the disputed piece of land which was adjacent to the house of the accused and was situate towards the south of 12 feet wide thoroughfare which separated it from the Haveli of Muhammad Khan (deceased) situate in the north. At this stage, it may be mentioned that towards the east of this land is the property of one Ghulam Muhammad potter which admittedly was sold by Sher Shah to him but it was never objected to by the complainant, then. Admittedly, the portion sold to the poter was part of the same disputed land. Trial Court has also observed that the defence could have produced the Patwari or Girdawar of the Consolidation who had demarcated and given the possession of the land but in the absence of his statement, it held that the complainant on account of the entries in the revenue record was in possession of the piece of land. The order of A.D.C. (C) Exh D.D. and that of Commissioner in revision Exh. D.E. relied upon by the accused, undoubtedly, supported the ownership of the accused over the disputed land of which he has also claimed possession. It may also be mentioned at this stage that in the First Information Report Exh. C.W.1/1, complainant claimed that he had won the case before the A, D.C. (C) and even in the High Court but no such document giving the decision in his favour has been produced by the prosecution except for the revenue Khasra Girdawari, etc. It is further to be noted that when the foundations were being dug in the evening, no objection was raised. In view of these circumstances, we are not satisfied with the prosecution case with regard to the possession of the land. But on the other hand, we find that Muhammad Nawaz accused fired at a time when Abdul Ghafoor had receded and had reached the courtyard of his Haveli which would mean that if at alt the accused had any right of defence of his brother and father, it had become extinct on the receding of the deceased. It is also evident from the medical evidence and the other circumstances of the case that except Muhammad Nawaz no other accused was armed with a fire‑arm. In fact when the construction of the wall was on, there was no fire‑arm with them. Had there been four guns with them as alleged by the prosecution, the complainant party would not have dared to go near them, what to say of having caused sharp‑edged weapon injuries to two of the accused. The fact that Muhammad Sadiq suffered an incised injury which cut the skull bone, Lal Khan had a contusion wound on the skull and Sher Shah suffered an incised wound on his hand are clear indications that the accused who were present at the spot were unarmed. In all probability on hearing the alarm of his co‑accused, Muhammad Nawaz appeared with a licensed gun who lives near the place of occurrence and on seeing him, the complainant party receded towards their Haveli and out of excitement and anger, he fired at them. He, therefore, cannot be said to have acted in defence. Had he fired at the deceased at the, place of occurrence when his brother and father were being attacked, then the matter would have been different but since the two deceased were hit in the courtyard of their Haveli which is across the thoroughfare, it is obvious that they were attacked when the right of defence had become extinct because the deceased had receded. Muhammad Nawaz thus acted out of vengeance and fired a shot which in all probability hit both Abdul Ghafur and Muhammad Khan in the leg. It may be mentioned at this stage that according to the doctor, the fire‑arm injury to the two deceased could be the result of a single shot Moreover, the other circumstances of the case also lend support to the fact the only Muhammad Nawaz used a fire‑arm. Muhammad Sadiq had been so incapacitated by the attack on his head which had cut the skull bone that he could not use a fire‑arm nor is one recovered from him during the investigation. We, therefore, give him the benefit of doubt and acquit him.

For the foregoing reasons, we maintain the conviction of Muhammad Nawaz on the first count but in view of the circumstances of this case, we do not propose to confirm his death sentence which is altered to life imprisonment. The fine for his conviction is mandatory, we, therefore, fine him Rs.10,000 in default to undergo two years R.I. further. On the second count, since the pellets hit in the leg of Muhammad Khan and he remained in the bed for over a month and it is not certain whether due to the negligence of the hospital authorities he died on account of long immobilisation for his, fractured leg. We, therefore, alter his conviction to section 307, P.P.C. and sentence him to seven years' R.I. He is fined Rs.2,000 in default to undergo one year's R.I. further. If recovered the total fine on each court shall be paid to the heirs of the deceased. The sentences of Muhammad Nawaz, are directed to run concurrently. He shall also be extended the benefit of section 382‑B, Cr.P.C. Since the appeal of Muhammad Sadiq is accepted, he is directed to be released forthwith if not required in any other case.

S.G.D. Order accordingly.

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