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Criminal Appeal No.188 and Murder Reference No. 71 of 1984, decided on 6th October, 1985.

(a) Penal Code (XLV of

1860)‑--‑

‑‑‑S. 302/307/34‑‑Presence of eye‑witnesses at spot established by reason of their receiving injuries during occurrence and by admission of accused in their statement under section 342, Cr.P.C.‑‑Both parties looking for opportunity to seek vengeance against each other‑‑Accused having received injuries during occurrence claiming that they acted in self‑defence but circumstances showing that they acted beyond limits and were guilty of having exceeded right of private defence‑ Accused on available strength of prosecution evidence could not be held liable for culpable homicide amounting to murder or for having launched murderous assault‑‑Accused adjudged liable for culpable homicide not amounting to murder and his conviction altered from section 302/307, P.P.C. to section 304, Part II, Penal Code, and sentence of death reduced to ten years' rigorous imprisonment‑ Conviction of co‑accused also altered from section 302/307, P.P.C. to section 324, Penal Code, and his sentence reduced to imprisonment already undergone by him.

Syed Ali Bepari v . Nibaran Mollah etc. P L D 1962 S C 502 ref.

(b) Penal Code (XLV of

1860)‑---‑

‑‑‑S. 302/307/34‑‑Motive‑‑Motive available to both parties‑‑If one party felt aggrieved because of acquittal of other in earlier case registered between them, other party, held, would be surging under impulse of being chased and dragged for quite a few years in the case because a revision petition had been filed against them.‑‑[Motive].

(c) Penal Code (XLV of

1860)‑‑

‑‑‑S. 302/307/34‑‑Injuries on person of accused‑‑Injuries visible even on 'seventh day of occurrence and noted by Investigating Officer and doctor who immediately examined accused‑‑Injuries were held to be serious in nature although, using medical terms, they were declared simple.

(d) Penal Code (XLV of

1860)‑‑

‑‑‑S. 302/307/34‑‑Criminal trial‑‑Joint liability‑‑Accused and co‑accused, held, could not be held liable jointly for acts done by each of them but liable for an individual act as one could not have known how another was going to react and in what manner and to what extent‑‑They both could not have shared common intention with each other.

(e) Criminal Procedure Code (V of

1898)‑‑

‑‑‑S. 439‑‑Penal Code (XLV of 1860)‑‑S. 302/307/34‑‑Revision against acquittal‑‑No material existing on record against acquittal‑‑Order of acquittal maintained.

Ch. Khalid Mahmood for Appellants. Shabbir Lali for the State. Nemo for the Complainant. Dates of hearing: 5th and 6th October, 1985.

SARDAR MUHAMMAD DOGAR, J.‑‑ F.I.R. (Ex.P.G.) was registered at Police Station Khurrianwala, District Faisalabad, on 9‑6‑1982, under section 302/307/34, P.P.C., on the statement of Mukhtar Ahmad (P.W.8), for an occurrence which took place on the same day at 5 p.m. in the fields of Chak No.60 R.B.

According to the F.I.R., Mukhtar Ahmad complainant, Munir Ahmad (deceased) and Tanvir Ahmad PW, were attacked by Ahmad Din, Muhammad Anwar and Abdul Ghafoor, armed with guns, accompanied by Meraj Din, armed with a Sota, in the field of Jhande Khan, while on way to their deras from the village. The assailants had emerged from the bushes where they were hiding and had raised a Lalkara before launching the attack. The shots fired by Ahmad Din and Muhammad Anwar had hit Munir Ahmad on the head and right arm, as a result of which he had fallen down. Thereafter, Abdul Ghafoor had fired a shot hitting the complainant on the forehead. Meraj Din had given two Sota blows to Tanvir Ahmad on the right‑ear and right shoulder.

The occurrence was also witnessed by Boote Khan (P.W.10) and Liaqat Ali (not produced at the trial).

The accused after causing injuries went away to their Dera.

Munir Ahmad died on the spot.

Four years prior to the occurrence, all the four accused had suffered injuries in a fight with the complainant party. A case under section 325/148/149 PPC was registered against the complainant andothers. They were acquitted by Assistant Commissioner, Jaranwala. The complainant of the case under section 325 PPC etc. had filed a revision petition against their acquittal and the parties had appeared before the Additional Sessions Judge in the revision petition on the day of occurrence. According to the complainant the accused had launched the attack because of that case.

2. Ghulam Siddique ASI (P.W.12), after registration of case, visited the spot, prepared the inquest report (Ex.PN) and sent the dead body of Munir Ahmad, for post‑mortem.

During inspection of spot, blood‑stained earth was taken into possession vide memo. Exh.PH, two empty cartridges of .12‑bore were also taken into possession from the spot, vide memos. Exhs. P.J. and PK.

3. The autopsy on the dead body of Munir Ahmad was conducted by Dr. Imtiaz Ahmad Gill (P.W.6). He noted ten fire‑arm wounds, four of which were exit wounds. The entry wounds were on the back of right ear, on the left side of forehead, on the back of right shoulder, on the upper part of right upper arm, on the inner side of right upper arm and, on the back of right upper arm.

The doctor opined that death was due to shock and haemorrhage, as a result of these injuries, which were sufficient to cause death in the ordinary course of nature. Injuries 1, 2 and 6, on the back of right ear, on the left side of forehead and on the upper part of right upper arm', were declared grievous.

Mukhtar Ahmad complainant was examined by Dr. Akhtar Ali, M.O. (P.W.1), at 8 p.m. on the same day in the hospital. The doctor noted a fire‑arm wound of entry, circular in shape, on the right forehead, another fire‑arm wound of entry, circular in shape, on the left fronto‑partietal region of head, above left ear pinna, and the third fire‑arm wound of entry, oval in shape, on the right parietal region of head. All the injuries were declared simple.

On the same day at 11 p.m., the doctor (Dr. Akhtar Ali) examined Tanvir Ahmad P.W., who was found to have suffered a lacerated wound on the top of right ear pinna, four redish contusions and a contused swelling, on the right parietal region of head. All the injuries were declared simple.

4. Muhammad Anwar accused was arrested on 16‑6‑1982. He had produced licensed .12 bore shot gun P.3, 8 live cartridges and the licence. All these articles were taken into possession vide memo Exh.P.D. The other accused were arrested .on different dates, but no recovery was effected from anyone.

5. The investigation apart from Ghulam Siddique, A.S.I. (P.W.12) was also conducted by SDPO/A.S.P. Jaranwala. In the challan submitted to Court, the names of Ahmad Din and Mehraj Din accused were placed in column No.2, of the challan, on having been found innocent in the investigation.

6. The accused were tried by Additional Sessions Judge, Faisalabad. Prosecution in addition to the two doctors produced ten other witnesses. The ocular account was furnished by Mukhtar Ahmad complainant (P.W.8), Tanvir Ahmad (P.W.9)

and Boote Khan (P.W.10).

All the witnesses are at one in stating that Mukhtar Ahmad, Munir Ahmad and Tanvir Ahmad were attacked by the four accused, while they were going towards their dera, that the shots fired by Muhammad Anwar and Ahmad Din had hit Munir Ahmad, deceased, on the' right arm and right side of head, as a result of which he had fallen on the ground and that Abdul Ghafoor had fired at Mukhtar Ahmad, as a result of which he had received injuries on the head and forehead. Although each one of them has stated that Tanvir Ahmad was caused injuries by Mehraj Din, but their statements are discrepant with regard to the number of injuries.

Tanvir Ahmad and Mukhtar Ahmad stated that they were accompanying the deceased while Boote Khan stated that he had witnessed the occurrence while he was cutting green fodder alongwith Liaquat Ali (not produced at the trial) from nearby land.

The motive given in the F.I.R. by the complainant was repeated at the trial with some details. According to him, he alongwith 24 others were named as accused in the case registered under section 325/342/148/149, P.P.C. Fifteen of them were declared innocent. Challan was submitted against others, but the Court had summoned all the persons placed in column No.2 of the challan as well, and that after acquittal, the revision filed by the complainant of that case was admitted to a regular hearing against all the 25 persons and they used to appear in the Court of Additional Sessions Judge.

Tanvir Ahmad admitted in cross‑examination that he alongwith his brother Tafseer was .accused in the aforesaid case under section 325/342/148/149, P.P.C.

Boote Khan also admitted that he alongwith his brother Abdul Hamid and Muhammad Tufail were accused in that case. It is also in evidence that a cross F.I. R. was lodged on his behalf, which was cancelled.

Apart from the ocular account and the medical evidence, opinion of the Examiner of Fire‑arms, Forensic Science Laboratory, Lahore (Exh.P.Q.) was

also tendered in evidence. According to Exh.P.Q., the two empties recovered from the spot were found to have been fired from the licensed shot gun of Muhammad Anwar.

7. Ahmad Din and Mehraj Din during their statements under section 342, Cr.P. C. denied the prosecution allegations. They pleaded innocence and took up the plea that they have been falsely involved because of previous enmity.

Muhammad Anwar appellant while denying the prosecution case, in answer to the question, "it is in the evidence that at the time of your arrest, you were having injuries on your person, for which you were medically examined by the M.O. at Khurrianwala What do you want to say in that behalf ", made the following statement:‑

"On the day of occurrence, I was proceeding towards my Dera situate. near the place of occurrence and at that time Mukhtar Ahmad, Tanveer Ahmad P.Ws and Munir Ahmad deceased alongwith others waylaid me and caused injuries on my person with the lathis with which they were armed. At that time, some persons from my Dera were attracted to the place of occurrence because of hue and cry raised by me. One of them was carrying my licensed shot‑gun and the others were carrying Sotas. The person carrying the shotgun had fired at from a distance which hit Mukhtar Ahmad P.W. but despite that the P.Ws. and the deceased continued beating me and the said person fired a second shot from a comparatively nearer place which hit the deceased. The persons who were carrying Sotas had inflicted injuries to Tanveer Ahmad and thus, I was rescued from the P.Ws.

The case which was registered against P.Ws and others in the year 1978 remained pending for three years and all the accused were summoned in revision also and the complainant party had motive to attack and cause injuries to me. Apart from that, there was a dispute between us and the complainant party with regard to a passage. The application for temporary injunction filed by Mukhtar Ahmad P.W. was dismissed and same happened to his appeal."

He also took up the stand that he had appeared before the ASI alongwith his shotgun on the day of occurrence, but the ASI for ulterior motive had kept him in custody without formal arrest till 16‑6‑1982.

Abdul Ghafoor while denying the prosecution case in answer to the question, why this case against you and why ‑the P.Ws have deposed against you, made the following statement:‑

"I used to work at the Dera of Muhammad Anwar accused with whom the complainant party had long‑outstanding enmity because of criminal cases and the dispute regarding a passage. For that reason, I have been falsely involved in this case.

On the day of occurrence, I was working in the fields of Muhammad Anwar accused and my attention was drawn towards the place of occurrence because of hue and cry. I saw that Muhammad Anwar accused was being beaten with Sotas by Mukhtar Ahmad, Tanveer Ahmad P.Ws. Munir Ahmad deceased and others. At that time, some person from the Dera of Muhammad Anwar accused reached the place of occurrence when one of them was armed with the shotgun belonging to Muhammad Anwar and the others were armed with Sotas. Those persons caused injuries to the deceased and the P.Ws. and rescued Muhammad Anwar from them."

No defence evidence was produced by any of the accused. However, medicolegal report (Exh.D.A./1) of Muhammad Anwar accused was got proved during cross‑examination of Dr. Akhtar Ali, M.O. Civil Hospital, Toba Tek Singh, who had examined him on 16‑6‑1982, at the instance of police. In fact, at the time of arrest, he was found injured and the A.S.I. after preparing the injury statement had got him medically examined. According to medico‑legal report (Exh.D.A./1) the doctor had noted one abrasion and 8 contusions on his person.

8. Learned trial Judge vide judgment dated 16‑4‑1984 convicted Muhammad Anwar and Abdul Ghafoor under section 302/34 P.P.C. Muhammad Anwar was sentenced to death, plus a fine of Rs.8,000, in default whereof to undergo two years' R.I. Under section 544‑A, Cr.P.C. he was also ordered to pay compensation of Rs.8,000, or in default to suffer six months' R.I. Abdul Ghafoor was sentenced to imprisonment for life, plus a fine of Rs.8,000, in default whereof to undergo R.I. for two years. He was also ordered to pay a sum of Rs.6,000 as compensation, in default whereof to undergo R.I for six months.

Both of them were also convicted under section 307/34, P.P.C. and were sentenced to seven years' R.I. plus a fine of Rs.6,000 each, in default whereof to suffer two years' R.I. each.

Their co‑accused Meraj Din and Ahmad Din were acquitted.

9. Learned Additional Sessions Judge, Faisalabad, has made reference under section 374, Cr.P.C. for confirmation of sentence of death awarded to Muhammad Anwar. The convicts have filed appeal. The complainant has filed revision petition against the acquittal of Ahmad Din and Meraj Din and for enhancement of sentence of Abdul Ghafoor from life imprisonment to death. The revision petition has been directed to be heard alongwith the appeal. As all the matters arise from the same judgment, they are being disposed of by one judgment.

10. Learned counsel for the appellants contended, (a) that the prosecution has not been able to prove motive, (b) that the P.Ws. were related, interested and inimical, and as such no reliance can be placed on their statements, and (c) that the version put-forth by Muhammad Anwar appellant and the corroborative statement made in this behalf by Abdul Ghafoor appellant bears semblance of truth. In this regard learned counsel argued that the failure of the eye‑witnesses to explain the injuries of Muhammad Anwar appellant, leads, only to one conclusion, that the witnesses of the prosecution had not told the whole truth and had concealed something about the occurrence.

11. Learned counsel for the State defended the judgment of the trial Court. His stance was that Muhammad Anwar had not suffered injuries during the occurrence and injuries on his person seem to be self‑suffered.

12. We have considered the contention of the learned counsel for the appellants that the eye‑witnesses in this case are related and interested. Although we find substance in the argument, but we do not feel inclined to brush aside the statements of these witnesses, particularly of Mukhtar and Tanvir, as they had received injuries during the occurrence and as such their presence at the spot cannot be denied. Yet the other important thing, in this connection is, that the presence of these two witnesses has even been admitted by Abdul Ghafoor and Muhammad Anwar appellants in their statements under section 342, Cr. P. C . In this view of the matter, their presence stands established undisputably.

The question which remains to be considered, therefore, is whether their statements have to be believed as a whole or have to be sifted, to find out, as to what extent, the same can be relied upon. Even otherwise, since the appellants have put up their own version, the evidence of the prosecution and the position taken up by the appellants will have to be examined in juxta position.

In this connection we would like to observe, that motive in this case was available to both the parties. If one party was feeling aggrieved because of the acquittal of the others in the earlier case B registered between the parties, the other party must be surging under the impulse of being chased because of the revision petition having been filed against 25 of them and they must have also been

feeling aggrieved for having

been dragged for quite a few years in( the case.

In this view of the matter we agree with the argument of the learned counsel for the appellants that the prosecution has not been able to prove the motive, as alleged, against the appellants. Nevertheless, both the parties were looking for an opportunity to seek vengeance against each other.

13. The undisputable thing in both the versions is, that while the P.Ws. have not explained the injuries on the person of Muhammad Anwar, who was found injured at the time of arrest and was medically examined, at the stance of the police, none of the appellants has come up in a straightforward manner to accept the responsibility of having played actual part in the occurrence. Muhammad Anwar appellant while putting forth his own version of the occurrence stated that he was attacked by Munir Ahmad (deceased), Mukhtar Ahmad and Tanvir Ahmad P.Ws. He took up the stand that some of his sympathiser came to the spot with his licensed gun in order to rescue him from the complainant party. Abdul Ghafoor appellant thought it safe to support the version of Muhammad Anwar, his master, by stating that he had seen all this while working in the nearby field.

14. It is in the light of these facts that we have to sift and weigh the versions of both the parties to come to a definite conclusion. Reference in this connection can be made to Syed Ali Bepari v. Nibaran Mollah etc. P L D 1962 S C 502, wherein it had been observed:‑

"Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an 'adversary proceeding' to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances. "

The presence of Mukhtar Ahmad and Tanvir Ahmad P.Ws.I stood proved, for, it is the case of both the parties that they were present at the spot and had received injuries.

The argument of the learned counsel for the State that injuries on the person of Muhammad Anwar seem to be self‑suffered, has not convinced us. The injuries on the person of Muhammad Anwar were not, so ordinary, as to be termed as "slight' or 'minor' injuries. The fact that they were visible even on the seventh day of the occurrence and were noted by the A.S.I. as well as by the doctor, who had medically examined him, shows that the injuries were of serious nature, although using medical term, they were declared simple.

We feel no hesitation in concluding that Muhammad Anwar had suffered injuries in this occurrence and the eye‑witnesses of the occurrence did not mention this fact only to hide the role played by them and their party. Similarly, we do not feel inclined to accept the position taken by Muhammad Anwar appellant, that when he was under attack some of his sympathisers had come there, with his licensed gun and in order to rescue him, had caused injuries to the deceased and Mukhtar and Tanvir P.Ws. His Dera, according to him, was at a distance of one and a half acres from the spot and we believe that if he alone was under the attack of 3/4 persons, they would have succeeded in causing more harm than he underwent before arrival of any helper. Similarly, we do not believe that Abdul Ghafoor would have kept on working in a nearby field and watching his master being belaboured and waiting that somebody else will come from the Dera and rescue him. It is in the light of these facts that we have come to the conclusion that on the day of occurrence when the parties returned from the Courts, on account of some unknown immediate cause, fight took place, in which, from the accused side, Muhammad Anwar received injuries while from the complainant side, one person lost his life and two suffered injuries. The fact that Muhammad Anwar was found to have suffered a large number of injuries shows that the complainant party would have taken precedence, in causing injuries because if Muhammad Anwar had initiated the attack by resorting to firing, it would have been difficult for his adversaries to have reached him, to cause injuries with blunt weapon in such a large number.

In this view of the matter our conclusion is that the appellants had acted beyond the limits and thus are guilty of having exceeded the right of private defence. On the available strength of the prosecution evidence they cannot be held liable for culpable homicide amounting to murder, or for having launched murderous assault.

The next aspect of the case which requires attention is, whether the two appellants can be held liable jointly for the acts done by each of the two Our answer is in the negative. The reasons are that, one could not have known, how the other is going to react, in what manner and to what extent They could not have shared common intention with each other. We, therefore, hold them guilty for .the individual acts.

15. For the reasons enumerated above, we hold Muhammad Anwar liable for culpable homicide not amounting to murder and convict him under section 304, Part I, P.P.C and sentence him to undergo ten years' R.I. plus a fine of Rs.20,000, in default of payment of fine, to undergo three years' R.I. the amount of fine, on recovery, shall be paid as compensation to the heirs of the deceased. His conviction under sections 302/34, and 307/34 P.P.C. is set aside. He shall be given the benefit of the provisions of section 382‑B Cr.P.C.

The conviction and sentence of Abdul Ghafoor appellant under section 302/34, P.P.C. is set aside. His conviction under section 307/34, P.P.C. is altered to one under section .324, P.P.C. He has remained in jail for about two years. We feel that in view of the fact that he has remained in jail for about 2 years since after his arrest and conviction, sentence of already undergone, plus a fine of Rs.3,000 would meet the ends of justice. We order accordingly. He is on bail. If he does not pay the fine within one month, he shall be caused to be arrested and lodged in jail to undergo one year R.I. in lieu of payment of fine. If fine is recovered, the same shall be paid to the legal heirs of the injured.

16. Criminal Revision No.531 of 1984 has not been admitted to a regular hearing. It was directed to be heard alongwith the appeal (Cr.A.188/84). In spite of the publication of the name of the learned counsel for the petitioner in the list, he did not turn up, nor anybody else had put in appearance on his behalf. However, we have gone through the judgment and we feel that there is no material to set aside the acquittal of Ahmad Din and Meraj Din respondents.

No interference in the judgment of acquittal is called for.

So far as, the prayer for enhancement of the sentence

of Abdul Ghafoor, from life imprisonment to death is concerned. Suffice it to say that we have acquitted him of the charge under section 302/34, P.P.C. and question of enhancement of his sentence, therefore, does not arise. The revision petition stands dismissed.

M.Y.H./M‑359/L Appeal partly accepted.

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