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Criminal Appeal No. 46 and Murder Reference No. 70 of 1983, decided on 30th March, 1987.

---S.302--Evidence, appreciation of--Private defence, right of- Twenty-one injuries caused with sharp-edged blunt weapons and fire-arms found on the persons of accused as compared to three persons injured on complainant's side, including deceased--Occurrence taking place in front of accused's shop and complainant part" appearing to have taken lead in opening their attack on accused and then latter taking up arms lying in their shop, and using them effectively in self-defence against complainant party--Alleged motive for crime as attributed to accused appearing flimsy and remaining unsubstantiated and on the contrary motive lay with the complainant party--Accused, held, in no manner exceeded their right of private defence, in circumstances--Conviction and sentence set aside.

Sardar Muhammad Ishaque Khan for Appellants.

Muhammad Aslam Malik for the State.

Raja Muhammad Anwar for the Complainant.

Dates of hearing: 29th and 30th March, 1987.

-Abdul Rahman alias Mana (32) and his three brothers Tariq Ahmad (25), Allah Ditta (40) and Shamroz (23) alongwith their relatives Malikdad (55) and Abdul Rahman alias Kariri (58) were tried by Additional Sessions Judge, Rawalpindi on the charges under sections 148, 307 and 302 read with 149, P.P.C. who, vide his judgment, dated 13-3-1983 convicted Abdul Rahman alias Mans and Tariq Ahmad both under section 307, P.P.C. and further convicted Abdul Rahman alias Mana under section 302, P.P.C. while the rest were acquitted of all the charges. Under section 307, P.P.C. they have been sentenced to 3 years' R.I. each and a fine of Rs. 5,000 each or in default thereof to undergo 6 months' R.I. each and under section 302, P.P. C. Abdul Rahman alias Mana has been sentenced to death and a fine of Rs.10,000 or in default to suffer R.I. for two years. It was further directed that the fine, if realised, shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Both the convicts have filed joint appeal Criminal Appeal No. 16/1983 against their conviction and sentence and the State has filed appeal Criminal Appeal No. 125 of 1983 against the acquitted accused in which notice has been issued to Tariq Ahmad and Shamroz only against their acquittal from the charge under section 302, P.P.C. A reference Murder Reference No. 78/1983 under section 374, Cr.P.C. for confirming the death sentence of Abdul Rahman alias Mana is also before us. We propose to dispose of the aforementioned two appeals and the murder reference by this single judgment.

2. The occurrence took place on 11-11-1980 at Maghribwela in the area of village Pindora, suburbs of Rawalpindi city, wherein Sufi Shamim (deceased) and his cousins Muhammad Hanif and Muhammad Sohail P.Ws. were injured. They were removed to Holy. Family Hospital, Rawalpindi, for treatment. Hearing about the incident A.S.I. Ghulam Yasin (P.W.15) reached the Hospital at 11-30 p.m. There he learnt that Sufi Shamim had died, so having obtained opinion of the doctor that Muhammad Hanif P.W. was fit to make a statement he recorded his statement Exh. P.E. and sent it to police station New Town, Rawalpindi, for registering a case, where P.H. Muhammad Hayat (P.W.10) on the basis of Exh. P.E. drew up formal F.I.R. Exh. PK under section 302/307/148/149, P.P.C. The A.S.I. then prepared inquest report Exh. P.P. of the deceased and sent the dead body under police escort for post-mortem examination. He then visited place of occurrence and collected blood, four empties P.1 to P.4 and three live cartridges P.5 to P.7 lying there. He again visited the Hospital and found Abdul Rahman alias Mana, Shamroz and Malikdad accused admitted there for treatment of their injuries. He recorded statement of Abdul Rahman alias Mana and forwarded it to police station whereupon a cross-case under section 307/148/149, P.P.C. was registered against complainant party.

3. Abdul Rahman alias Kariri, Tariq Ahmad (appellant) and Malikdad while in police custody got recovered blood-stained Churris P.8, P.9 and 16 respectively on 16, 17 and 18-11-1980 which were secured under memos. Exhs. PF, PI and PG respectively. On 23-11-1980 Abdul Rahman alias Mana (appellant) being in police custody recovered revolver P.10 from the roof of his garage which was unloaded and four empties P.11 to P.14 and one live cartridge P.15 recovered from it and seized under memo. Exh. PH. The empties P.11 to P.14 according to fire-arms expert's report Exh.PZ/B matched with pistol P.10 and blood found from the spot and that; Chhuri was of human origin according to Serologist's report Exh.PZ/C.

4. Dr. Abdul Razzaq (P.W.1), Medical Officer, D.H.O. Hospital, Rawalpindi who performed post-mortem examination on the dead body of Sufi Shamim (deceased) noted the following injuries on it:

(1) An incised wound 2 c.m. x 0.6 c.m. x muscle deep on front of left side of chest over last rib 13 c. m. from left nipple at 6 O'clock position.

(2) An incised wound 11 c.m. x 8/10 c.m. x muscle deep on front of left lumbar region 7 c.m. from umbilicus at 3 O'clock position.

(3) An incised wound transverse 11 c.m. x 7/10 c.m. x muscle; to deep on front of chest right side 1J c.m. from midline upper part.

(4) An incised wound 2.5 c. m. x 1 c. m. x muscle deep on outer part of left buttock.

(5) A fire-arm wound of entry 0.7 c.m. in diameter 6n right side of chest 7 c.m. from right nipple at 9 o'clock position. The margins of the wound were burnt. The bullet fracturing the right 5th rib entered chest cavity, perforated through and through the middle lobe of right lung, entered into left chest cavity after rubbing the posterior part of heart, then perforated the left lung, lower lobe and got lodged in its outer and front part. The bullet was dissected out and handed over to police in a sealed bottle. Both chest cavities were full of blood. Pulmonary blood vessels were found injured under injury No.5 alongwith lungs.

In the opinion of the doctor, the deceased died of shock and haemorrhage caused by injury No.l inflicted with a fire-arm and found to be sufficient to cause death in- ordinary course of nature. Remaining injuries were simple in nature caused with sharp-edged weapon. Time elapsed between injuries and death was given as 6 hours and between death and post-mortem examination as 12 hours.

5. On 11-11-1980 Dr. Muhammad Saghir Iqbal medically examined Muhammad Sohail and Muhammad Hanif of the complainant party at 8-45 p. m. and issued medico-legal reports Exhs. PY and PZ respectively, while Shamroz, Abdul Rahman alias Mana, Malikdad, Allah Ditta and Tariq Ahmad from the accused party were examined by him between 8-45 p.m. and 11-15 p.m., and issued medico-legal reports Exhs. D.R., D.I., D.M., D.N. and D.O. respectively. This doctor could not be examined at the trial as he had gone abroad, therefore, above-mentioned medico-legal reports were got proved through Tariq Mahmood (P.W.15) Record Keeper of Holy Family Hospital, by way of secondary evidence. According to these medico- legal reports, Muhammad Hanif (P.W.3) suffered four injuries, i.e. two with sharp-edged weapon, one with fire-arm and one with blunt weapon. Out of two injuries caused with sharp-edged weapon one in the chest was found grievous and Muhammad Sohail (P.W.5) suffered two simple injuries caused with blunt weapon. On the accused side, twelve simple injuries were noted on the person of Abdul Rahman alias Mana (appellant) of which seven are caused with sharp-edged weapon mostly on head and five with blunt weapon, two simple injuries caused with blunt weapon were seen on the person of Tariq Ahmad (appellant); and three injuries on the person of Shamroz (respondent) were noted. Two of them caused with blunt weapon are simple in nature and the third found on his neck was declared as caused with firearm and grievous in nature. Allah Ditta suffered one simple injury but Malikdad suffered four injuries and his 10th rib was fractured. So three persons injured on the prosecution side suffered ten injuries in all including one grievous hurt and one fatal injury while five persons injured on the accused side suffered twenty-two injuries including two grievous hurt.

6. Prosecution case as disclosed at the trial was that on the fateful day 11-11-1980 at 10 a.m. Muhammad Hanif (P.W.3) was sitting at the cycle shop of his cousin Sufi Shamim (deceased). Abdul Rahman alias Mana (appellant) came there and demanded a cycle on hire. The deceased refused to give him cycle on hire whereupon they quarrelled and abused each other. Muhammad Hanif P.W. separated them. Abdul Rahman alias Mana went away threatening the deceased that he would take revenge before evening falls. The same day, Sufi Shamim (deceased), Muhammad Hanif (P.W.3), Muhammad Sohail (P.W.1) and Abdul Qadeer (P.W.5) went to enquire about the health of mother of Muhammad Hanif in village Dena, a few furlongs away from Pindora.

They returned from there in the evening and when they passed in front of the house of Abdul Rahman alias Kariri (since acquitted) the accused party comprising Abdul Rahman alias Mana (appellant) armed with revolver, Shamroz (respondent). Tariq Ahmad (appellant), Malikdad and Abdul Rahman alias Kariri (since acquitted) armed with Chhuris and Allah Ditta (acquitted accused) armed with rifle emerged from the house of Abdul Rahman alias Kariri and raising Lalkara at the deceased to the effect that they would teach him lesson for insulting Abdul Rahman alias Mana 'in the morning, attacked him. 4Abdul Rahman alias Mana fired at the deceased hitting him in the 'chest. Shamroz and Tariq Ahmad inflicted Chhuri blows on his abdomen and hip region as a result of which he fell down. Muhammad Sohail P.W. went forward to rescue the deceased whom Malikdad dealt blow on his head with blunt side of his Chhuri. At this, Muhammad Sohail P.W. picked up an iron Patri lying on the spot and inflicted blows with it to Shamroz (respondent). Abdul Rahman alias Kariri gave Chhuri blow to Muhammad Hanif P.W. in the left flank. Muhammad Hanif P.W. picked up a Bailcha from there and struck it 6/7 times on the head of Abdul Rahman alias Mana (appellant). At this, Abdul Rahman alias Mana fired at Muhammad Hanif P.W. hitting on his right shoulder Abdul Rahman alias Kariri also gave him Chhuri blow on the back side of left shoulder. In the meantime, Abdul Qadeer P.W. arrived who pelted stones on Malikdad and Abdul Rahman alias Mana. In this situation, Abdul Rahman alias Mana fired 2/3 shots in confusion which hit his own companions Shamroz and Malikdad (acquitted accused). Allah Ditta (acquitted accused) kept firing in the air with his rifle during the occurrence for creating harassment. All of them then ran into the house of Abdul Rahman allas Kariri. Sufi Shamim, Muhammad Sohail and Abdul Qadeer, injured, were removed to the hospital where Sufi Shamim died a few hours later.

7. Muhammad Hanif (P.W.3), Muhammad Sohail (P.W.4) and Abdul Qadeer (P.W.5) largely supported the above story. They admitted that they were accused in the cross-case registered at the instance of Abdul Rahman alias Mana (appellant) They however improved upon their police statements while giving explanation of injuries of the accused party at the trial, e.g., the story that Muhammad Hanif P. W. picked up a Bailcha from the spot and caused injuries with it to Abdul Rahman alias Mana and that Qadeer P.W. peltrd stones on Abdul Rahman alias Mana, Shamroz and Malikdad, does not find mention in the F.I.R. Exh. PK lodged by Muhammad Hanif P.W. and police stat8ments Exhs. D.A. and D.B. of Muhammad Sohai: and Abdul J Qadeer P.Ws respectively. The story that shots fired by Abdul Rahman alias Mana in confusion had hit Shamroz and Malikdad is also absent from F.I.R. Exh. PK. Abdul Qadeer P.W. admitted that he had been challaned in two criminal cases but was acquitted. He stated that he did not remember, in how many cases he had been challaned but conceded that he was challaned in a case of abduction of a girl and also in a theft case wherein Sharif, Muhammad Sohail Muhammad Hanif and Wazir P.Ws were his co-accused. He expressed his ignorance if his brother Muhammad Suleman was challaned number, of times under Gambling Act. He stated that when he was pelting stones on Abdul Rahman alias Mana and Malikdad from a distance of six feet from them he was neither fired at nor attacked by the accused. He also conceded that when the A.S.I. came to the hospital on the night of occurrence at 12-30 p.m., he was present there but he did not tell him that he was an eye-witness of the occurrence although the A.S.I. remained there for half an hour and that he appeared before him at 11-00 a.m., on the next day. He admitted that village Pindora is part of Rawalpindi city and is thickly populated.

8. When examined under section 342, Cr.P.C. , Abdul Rahman alias Mana (appellant) replying the question, "Why this case against you", stated as under: -

"I alongwith Malikdad and Shamroz were present inside my garage. The complainant party armed variously committee trespass and started belabouring us. We rushed outside and were still beaten. A cross case was registered against the complainant party, and is pending adjudication in this Court. The P.Ws. have deposed in order to save their skin in the cross case."

Malikdad and Shamroz stated that they were present alongwith Rahman alias Mana in his shop at the time of occurrence when the complainant party variously armed came there and attacked them. Allah Ditta and Tariq Ahmad stated that hearing the alarm at the shop of their brother Abdul Rahman alias Mana they went there and saw the complainant party injuring Shamroz, Malikdad and Abdul Rahman alias Mana. They intervened to rescue them but they too were belaboured. Abdul Rahman alias Kariri denied his presence and participation in the occurrence and stated that he had been involved due to his relationship with the accused. They did not produce any evidence in defence.

9. Learned trial Court on consideration of the material on record disbelieved the defence version and observed that it was highly improbable that all the accused had the knowledge about passing of the complainant party in front of their house at the relevant time or that for that matter they were sitting fully prepared in prosecution of their common object to do away with the deceased and murderously assault the P. Ws, therefore, it held that each accused was responsible for his own individual act Learned trial Court looked for corroboration before acting upon the evidence of the P.Ws and thus using recovery of revolver P.10 made from Abdul Rahman alias Mana and blood-stained Chhuri P.16 recovered from Tariq Ahmad as circumstances corroborating the ocular testimony, it convicted them for their individual acts under sections 302 and 307, P.P. C. respectively but acquitted the rest as no such corroborative evidence was available against them. It may be stated here that three blood-stained Chhuris were recovered during investigation but Chemical Examiner's report Exh. P.7/B shows that only one Chhuri was received in his office for analysis which was found stained with blood. It is not at all discernible from the record that this Chhuri (found to be blood-stained) was recovered from Tariq Ahmad (appellant). Again, fire-arms expert's report Exh. P.7/D was wrongly treated as confirmatory circumstance because empties found to be wedded with pistol P 10 were not recovered from the scene of offence muchless prior to the recovery of the pistol.

10. It is contended on behalf of the convicts/ appellants and Shamroz respondent (acquitted accused) that complainant party was the aggressor which actually came and attacked Abdul Rahman alias Mana (appellant) and his companions at his garage; that five persons on the side of appellants have been injured who received about two dozen injuries including two grievous hurt caused with lethal weapons including fire-arms as well, as compared to three persons injured on the complainant side including the deceased, who in all suffered less than a dozen injuries; that the convicts/ appellants put forth cross version immediately after the occurrence wherein prosecution witnesses, as admitted by them, have been challaned, and defence story being equally probable deserves to be accepted in preference to the prosecution version; that the injuries of the .appellants and their companions (since acquitted) were deliberately and dishonestly suppressed and the attempt to explain them made at the trial was afterthought and must be disbelieved; that the prosecution witnesses are closely related to the deceased and are having criminal history therefore, their testimony hardly inspires confidence; and that although the appellants have not specifically pleaded that they had caused injuries to th e complainant party and the deceased in self-defence yet such an inference flows from the prosecution evidence itself, hence they are entitled to get its benefit.

11. To the contrary, learned Assistant Advocate-General assisted by learned counsel for the complainant has submitted that the injuries found on the persons of the accused have been fully explained and that failure on the part of complainant to explain them in the F.I.R. is hardly of any consequence because ordinarily each and every detail is not expected to be given in F. I. R.; that the appellants have not come to tire Court with clean hands as they have not specifically pleaded self-defence; and that firing of pistol shot by Abdul Rahman alias Mana (appellant) at the deceased hitting him in the chest clearly established his intention to murder him, therefore, he has been rightly convicted under section 302, P.P.C. Finding of trial Court that the accused in the circumstances of the case were responsible for their own individual acts, however, is not challenged before us and similarly State appeal against the acquittal of Tariq Ahmad (appellant) and Shamroz (respondent) from the charge of murder has not been pressed with any seriousness.

12. We have given our anxious thought to the facts and circumstances of the case and have minutely gone through the record with the assistance of parties' counsel in the light of contentions raised by them.

13. The admitted facts are that Abdul Rahman alias Mana (appellant) and the deceased had quarelled in the morning of the occurrence and had exchanged abuses; that the occurrence took place in front of shop of Abdul Rahman alias Mana; that both the parties suffered injuries with deadly weapons including fire-arms: that injured persons of both sides were admitted in the hospital the same evening; that both the sides have lodged their version with police the same evening and that the police has challaned both parties to Court however, result of cross-case is not ascertainable from record.

14. The only question which remains to be decided, therefore, is, whether the accused party had waylaid the complainant party when it passed in front of the shop of Abdul Rahman allas Mana while returning, empty handed, from the house of Muhammad Hanif's mother after enquiring about her health or that it was the complainant party who as equal to the morning incident having armed themselves variously went to the shop of the appellants and attacked them and the accused party exercising its right of private defence of person and property caused injuries td deceased and the P.Ws.

15. We would at once agree with the finding of learned trial Court that there is nothing on record showing that Abdul Rahman alias Mana and his companions knew it beforehand that the deceased and his companions had gone to enquire about the health of mother of 'Muhammad Hanif complainant and that they would return at the relevant time and that while going to their house they would pass in front of their shop and that they sat duly armed for killing Sufi Shamim and injuring others in prosecution of their common object particularly because, admittedly there are four her passages which lead to their houses from the house of mother of Muhammad Hanif P.W. Again, it tusks to us improbable that, complainant party risked to pass empty handed in front of shop of Abdul Rahman alias Mana who had allegedly issued serious threats to the deceased in the morning that he would take revenge of his insult before the evening falls. If the complainant party was returning home innocently and empty-handed then how were they able to cause about two dozen injuries to five persons of the accused party, is a question which asks for a plausible and. convincing answer. As pointed out earlier, no explanation has been given in the F.I.R. for the injuries of the accused persons except a vague and obscure sentence that they were injured during scuffle-----but according to medical evidence 21 injuries caused with sharp-edged and blunt weapons and fire-arms were found on their persons. Explanation of these injuries furnished by the P.Ws. at the trial besides being afterthought lends support to appellants' version than to the prosecution case. Prosecution witnesses claimed that they were unarmed at the relevant time and when attacked by the accused, Muhammad Hanif P.W. picking up a Bailcha and Muhammad Sohail P.W. an iron 'Patri' from the spot. wielded them in their defence. Muhammad Hanif P.W. hated that he had struck Bailcha 7/8 times on the head of Abdul Rahman alias Mana (appellant) and then the latter had fired at him to means that Abdul Rahman alias Mana was not sitting in wait of arrival of complainant party duly armed with revolver because in that case Abdul Rahman alias Mana would have pumped number of bullets in Muhammad Hanif's body without being hit with Bailcha for so many times at his hands. Abdul Qadeer P.W. had allegedly pelted stones on the appellants from a distance of 5/6 paces from them yet he was not attacked or fired at by any member of the accused party. It. therefore, appears to us that the complainant party had attacked the accused first and then the latter took up arms lying in their shop and used them effectively in self-defence against the complaint party. We are conscious that the appellants' act of keeping arms at their shop was not without purpose but it is explainable, i.e. that due to the quarrel which took place between Abdul Rahman alias Mana (appellant) and the deceased on that morning they were sensing trouble from the complainant party who .are criminals as admitted by themselves, therefore, the appellants' intention for keeping arms was only to meet the expected aggression. So keeping of arms by them in this situation was neither objectionable nor actionable. The fact that they had not gone to the place of complainant party to attack them is sufficient to infer that neither Abdul Rahman alias Mana was insulted by the deceased nor he was to take revenge rather the boot seems to be on the other leg. In this view of the matter we find that the appellants, (though not specifically stated) appear to have caused death of the deceased and injured the P.Ws. in exercise of thei right of private defence of person and have not exceeded the righ in any manner. Consequently, we allow Criminal Appeal No. 46/198 filed by Abdul Rahman alias Mana and Tariq Ahmad (convicts/ appellants) and dismiss the State appeal. The reference for confirming the death sentence of Abdul Rahman alias Mana is rejected and he death sentence is not confirmed. He shall, therefore, be release forthwith if not wanted in any other case and Tariq Ahmad (appellant)) who is on bail is discharged from his bail bonds.

S.G.D./A-108/L Appeal accepted.

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