Find a Lawyer

Criminal Appeals Nos. 139 and 140 of 1981, heard on 18th May, 1985.

(On appeal from the judgment and order of the Lahore High Court, dated 8th July, 1980 in Criminal Appeal No. 965 of 1978 and Murder Reference No. 249 of 1978).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Leave to appeal granted to reappraise evidence and also to evaluate nature of offence committed by accused.

‑‑‑Ss. 300--Exception 4& 302/34‑‑Prosecution witnesses suppressing material facts and appearing to have made improvements in their evidence‑‑Statement of eye‑witness who lodged First Information Report looking highly improbable while presence of other eye‑witness doubtful and his evidence also not appearing probable in stated circumstances‑Sudden fight taking place at spur of moment and when parties confronted each other in background of motive and provocation provided by complainant party, they indiscriminately fired at each other Question as to who was aggressor not of any consequence in circumstances High Court while acquitting accused of charge of rioting impliedly rejected deliberate attack by accused‑‑Case falling under Exception 4 to 5.300, Penal Code‑‑Conviction altered from S. 302, Penal Code to S.304, Part I, Penal Code, and sentence of death reduced to imprisonment for life in circumstances.

S.M. Zafar, Senior Advocate Supreme Court and Mehmood A. Qureshi, Advocate‑on‑Record (absent) for Appellant (in Criminal Appeal No. 139 of 1981).

Sh. Shaukat Ali, Senior Advocate Supreme Court and M.A. Rehman, Advocate‑on‑Record (absent) for Appellant (in Criminal Appeal No. 140 of 1981).

Mian Inamul Haq Advocate Supreme Court for Advocate‑General Punjab and Rao M. Yousaf Khan, Advocate‑on‑Record for the State.

Date of hearing: 18th May, 1985.

These appeals, by leave, arise from the common judgment of the Lahore High Court, dated 8th of July, 1980, by which the convictions and sentences were to an extent modified while maintaining the convictions of Noor Muhammad and Ahmad Sher on the capital charge under section 302, P.P.C. read with section 34 P.P.C. and the capital sentence awarded to Noor Muhammad. By the same judgment the revision petition for the enhancement of sentence awarded to Muhammad Noor and Muhammad Khan was dismissed.

The incident occurred at noon on 19th of July, 1976 at a place on Khushab Road opposite the District Jail Shahpur, District Sargodha. One Haji Ghulam Muhammad, a Lambardar, was murdered four years prior to the present occurrence and for whose murder Muhammad Afzal, a maternal cousin of the two deceased Sikandar Hayat and Sarfraz (real brothers) was tried and sentenced to death. He was lodged in the District Jail, Shahpur: and as the story goes, Sher Muhammad, Sarfraz, Sikandar Hayat, Atta Muhammad and Shamir went to the Jail to meet him, and after having met him they came out of the jail and proceeded towards the metalled road for returning to their village and at the stated place they were accosted by Zafar Iqbal, Noor Muhammad son of Fateh Khan, Ahmad Sher son of Alam Sher, Muhammad Noor son of Sher Muhammad and Muhammad Khan son of Ghulam Muhammad, all armed with shot‑guns, who were coming from the side of the Tehsil. Zafar Iqbal gave a Lalkara to kill them, and thereafter fired a shot at Sikandar Hayat causing him pellet injuries on his chest followed by Noor Muhammad whose shot struck him on his right eye, as a result of which he fell down. Sarfraz, who had a licensed gun, fired shots in the air in self‑defence, nonetheless Ahmad Sher again fired at Sikandar Hayat causing him pellet injuries on his left shoulder. Muhammad Noor fired at Sher Muhammad (P.W. 1) which struck him on his arm: another shot was fired by Muhammad Khan which struck him on his left hand finger. Sarfraz, who had in the meantime taken refuge behind a wooden cabin and had been firing in self‑defence, was shot at by Zafar Iqbal and Noor Muhammad killing him at the spot. In the same transaction Zafar Iqbal and Ahmad Sher also sustained gun‑shot injuries as a result of which Zafar Iqbal died in the hospital. Shamir, who had taken refuge by the side of the jail wall, escaped the on‑slaughter. Mumtaz who was at the bus stand came to the spot on hearing the gun‑shots ‑and witnessed the incident. The present incident, it was stated, was a sequel to the murder of Haji Ghulam Muhammad and committed to seek revenge for that murder.

From the spot a licensed gun lying near the dead body of Sarfraz and some live Cartridges were seized. Four empties, which were also lying there, were also taken into possession and these matched with the lecensed gun of deceased Sarfraz. 12 empties lying scattered on the road were also seized. Out of them, three matched with the licensed gun of Zafar Iqbal which was seized at the hospital on 19th of July, 1976. Another licensed ,gun was also seized from Ahmad Sher on the same day from the hospital, which also matched with three other crime empties. Three other guns were seized one each from Noor Muhammad, Muhammad Noor and Muhammad Khan on 23rd of July, 1976. Out of the six remaining cartridges, two each respectively matched with the other three guns.

Zafar Iabal had one gun‑shot injury on his right chest while Ahmad Sher had three such injuries on his person. Sher Muhammad (P.W. 1) had suffered one gun‑shot injury on his left upper arm while the other on the back of his left little finger was caused by a blunt weapon. On Sarfraz there were two wounds of entrance and two wounds of exit and also a stray pellet‑injury on the upper part of his left arm. Sikandar Hayat had six gun‑shot injuries.

It will be noticed that as for Zafar Iqbal, apparently he ‑was shot from front while the injuries on Ahmad Sher were caused from behind. Another factor, giving rise to suspicion, was that a bullet was extracted from the body of Zafar Iqbal. At the trial, the prosecution examined Sher Muhammad (P.W. 1) and Mumtaz (P.W. 2). The other two eye‑witnesses namely, Shamir and Atta Muhammad, were abandoned as being unnecessary.

Ahmad Sher one of the appellants in the case when examined under section 342, Cr. P.C. stated:

"During the days of occurrence Noor Khan, a phopair of Zaffar Iqbal deceased was in jail of Shahpur Saddar in connection with the murder case of Manzoor Manda. He had to appear in the Court of Assistant Commissioner, Shahpur on that day. After he had appeared in Court, I and Zaffar Iqbal deceased alongwith Lal, Ali Khan and Jahan Khan had gone to the Jail, in order to escort him as in those days there were cases of murders of under‑trial prisoners in the police custody. When we reached the western gate of the Jail compound, we were attacked by Sikandar and Sarfraz deceased persons and their three companions, namely Sher Muhammad, Azam and Allah Bakhsh accused persons of the cross‑case. All of them were armed with guns. They fired at us and injured me and Zafar Iqbal deceased who died later on at Lahore as a result of the injuries. The licensed gun of Zafar Iqbal was picked up by Lal P.W. when Zafar Iqbal had fallen on the ground and Jahan Khan our companion and Lal fired in our defence."

As will appear from the prosecution case and the defence, both sides pleaded self‑defence and charged the other as being the aggressor. The trial Court also appraised the question which it termed as crucial as to which party was the aggressor, and in arriving at its decision it took motive as the prime factor. While considering the two versions it held the prosecution case as having been established and rejected the defence plea that they had gone to escort Noor Khan, their relative, from the gate of the Jail to the Court of Assistant Commissioner, Joharabad at Shahpur and back because of the fear of his being murdered in police custody, as improbable as it was not supported by any document. Accordingly, while giving credence to the ocular testimony of Sher Muhammad (P.W. 1) and Mumtaz (P.W. 2) and the corroborative evidence of the guns having matched with the crime‑empties, it convicted and sentenced the appellants as under:‑‑

Under section All the appellants were convicted and sentenced

148, P. P. C. to suffer rigorous imprisonment for two years.

Under section Appellants Noor Muhammad and Ahmed Sher

302, P.P.C. were each convicted on two counts for the

read with section murders of Sarfraz and Sikandar Hayat, and

149, P.P.C. sentenced to death and also to pay a fine of

Rs.2,000 each on each count or in default to

undergo rigorous imprisonment for six months

on each count. Additionally, Rs.5,000 on each

count for murder was awarded as compensation

to the heirs of the two deceased or in default

to suffer rigorous imprisonment for six months.

Appellants Muhammad Noor and Muhammad Khan

were convicted on two counts of murder and

sentenced on each count to imprisonment for

life. The same amount of fine and compensation

was ordered to be paid by them.

Under section All the appellants were convicted and sentenced

307, P. P. C to suffer rigorous imprisonment for three years.

read with section

149, P.P.C.

On appeal and reference, the High Court acquitted all the appellants on the charge of rioting, ,i.e. under section 148, P.P.C. But on the charge of murder Noor Muhammad was alone held responsible for causing the murders of the two deceased. As for Ahmad Sher it was said that he had not fired the fatal shot at Sikandar Hayat although he shared the common intention to kill the deceased. He was not held liable for the murder of Sarfraz. However, both of them were acquitted on the charge under section 307/109, P.P.C. Appellants Muhammad Noor and Muhammad Khan were acquitted of the charge of murder, but were held responsible for causing gun‑shot injuries to Sher Muhammad (P.W. 1) by reference to common intention. The High Court, however, maintained the death sentence of Noor Muhammad on two counts while the sentence of Ahmad Sher was altered to imprisonment for life and he was ordered to pay a fine of Rs.10,000 or in default to undergo rigorous imprisonment for three years. Consequent upon the findings of the High Court although those convicted were by reference to section 34, P.P.C. yet impliedly their individual participation was the main consideration.

Leave was granted to re‑appraise the evidence and also to evaluate the nature of the offence committed by the appellants.

The incident occurred in broad daylight at a place very near the District Jail Shahpur. Both the sides have given explanations of having come across each other, but the explanation given by the appellants was rejected as it was not supported by any documentary evidence. The fact nonetheless was that Noor Khan, a relative of Zafar Iqbal, was lodged in the very jail as he was booked for the murder of one Manzoor Manda. Sher Muhammad (P.W. 1) has admitted this fact but has denied any knowledge as to whether he had to be produced in Court on that date. There is nothing to rebut this fact and if, at all, the appellants had gone to accompany him there could not be any documentary evidence to establish it. It is also of significance to note that in the record produced at the trial Mumtaz (P.W. 2) is not mentioned as having visited the jail to meet Muhammad Afzal although he is cited as a witness. Similarly, Shamir was stated to have gone along with the other persons to meet the condemned prisoner, but his name does not appear in ‑the document. Atta Muhammad, who, in fact, had gone to the jail, and Shamir were abandoned and not examined at the trial. It has also come on record that the parties resided in the same village, and if, at all, they wanted to commit the murders there was no obstacle in the way of accomplishing their object. In the milieu of this background, one bullet was extracted from the body of Zafar Iqbal although none from the side of the complainant party was said to be armed with a pistol or a rifle. Again the injuries on one of the appellants namely, Ahmad Sher were caused from behind. Either the shot fired by Sarfraz may have caused the injuries or someone else who, though armed amongst the complainant party, may have fired. There is also a blunt‑weapon injury on Sher Muhammad which has not been explained. There is, therefore, suppression of material facts by the prosecution witnesses.

Again I find that the witnesses are not truthful as they appear to be as they have made improvements in their evidence. Sher Ahmad while being examined stated:‑‑

"We started running towards bus stand, whereas all the five accused chased us. Safraz and Shamir, my companions, took shelter behind a Khokha of tea‑stall. Atta Muhammad, P.W. ran towards the office of the Agricultural Department."

In cross‑examination he was confronted with his F.I.R., but despite his assertion that he had stated so all what he afore‑stated was missing. Shamir has not been examined and if he had taken shelter as stated I wonder how he could have escaped from being shot at. Again the roles assigned to Muhammad Khan and Muhammad Noor of having fired ai Sikandar while he was lying on the ground are also missing from his F.I.R. It looks highly improbable that if Sarfraz alone was armed with a gun, the appellants would have allowed him to escape and take shelter by the side of the tea‑stall and fire at Zafar Iqbal, as he would have been the first victim considering the factor of safety to their own lives. If, at all, the shots were fired as the witnesses had said when the appellants faced the complainant‑party hardly there was any chance for any body to take shelter. Additionally, Mumtaz (P.W. 2) had not accompanied the complainant‑party, but had come from Sargodha and happened to be at the spot by chance as he had also wanted to visit the condemned prisoner in the Jail. His presence at the spot appears to be improbable and even otherwise his evidence does not stand on any higher footing than that of Sher Muhammad. Apparently what appears to me is that there was a sudden fight at the spur of moment as when the parties confronted each other, in the background of the motive and the provocation provided by the visit of the complainant‑party to the jail for meeting the condemned prisoner, they had indiscriminately fired at each other. It cannot be a case of free fight as its basic elements are wanting or where either party could claim to be the victim of the aggression by the other. The High Court also while acquitting the appellants of the charge of rioting has impliedly rejected the deliberate attack by the appellants in which case the question as to who was the aggressor is not of any consequence. From the side of the complainant two persons had died while one from the side of the assailants had lost his life in the same transaction. It is accordingly a case of Exception IV to section 300, P.P.C. where neither party can be said to have taken any undue advantage over the other as both of them were equally armed.

Accordingly, the conviction of Noor Muhammad for the murders. of Sikandar Hayat and Sarfraz is altered from section 302 P.P.C. to section 304, Part‑I, P.P.C. and a sentence of imprisonment for life is substituted on each count of murder. The sentence of fine and the compensation awarded is also maintained. As for Ahmad Sher, he was held to have fired a shot at Sikandar Hayat and convicted for his murder and sentenced to imprisonment for life. His conviction is also altered from section 302 , P . P . C . to section 304, Part I , P. P . C , while his sentence of imprisonment for life is maintained and so also the fine awarded by the High Court. The conviction of Muhammad Noor and Muhammad Khan under section 307/34, P.P.C. is altered to section 308, P.P.C. However, the sentence earlier awarded is maintained. All the sentences are to run concurrently, and the appellants shall be entitled to the benefit of section 382‑B, Cr.P.C. while computing their sentences.

Criminal Appeal No. 139 of 1981 is, therefore, dismissed subject to the above modification. As a result thereof Criminal Appeal No. 140 of 1981 stands dismissed.

M . Y . H. Appeals dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.