Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Criminal Appeal No. 36 and Murder Reference No. 16 of 1985/BWP, decided on 30th November, 1986.
---Ss. 303 & 307/34--Self-defence, right of--Deceased armed with rifle opening fire at acquitted co-accused -Evidence showing complainant also armed with hatchet and causing injuries to one accused--Grievous injury caused to acquitted co-accused--Injuries of accused purposely suppressed by complainant--Apprehension of death existing--Right of self-defence, having rightly been exercised by them, the accused were acquitted.
Ejaz Hussain Batalvi for Appellants.
Nazir Ahmed Bhatti for the State.
Ch. Muhammad Idrees for the Complainant.
Date of hearing: 30th November, 1986.
Mr. Ataul Mohsin Lak, the learned Additional Sessions Judge-11, Bahawalpur had convicted Zafar Hussain and Zafar Iqbal under section 302/34, P.P.C. Both of them have been sentenced to death and a fine of Rs.2,000 each or in default thereof to suffer R.I. for one year each. They have been directed to pay Rs.3,000 each as compensation to the legal heirs of the deceased as envisaged under section 544-A of the Cr. P. C ., or to undergo six months R.I. each in default thereof. Both Zafar Iqbal and Zafar Hussain, two real brothers, have been convicted under section 307/34, P.P.C. and have been awarded 4 years R.I. and a fine of Rs.1,000 each or to suffer six months' R.I. each in default thereof. They have been directed to pay Rs.2,000 each by way of compensation to the complainant or in default thereof to suffer six months' R.I. each. The sentences were ordered to run concurrently in case the death sentence of each was not confirmed by this Court. The learned Additional Sessions Judge, Bahawalnagar has referred the case to us under section 374 of the Cr.P.C. for the confirmation of the death sentence. Both Zafar Iqbal and Zafar Hussain have lodged an appeal and both the reference and appeal are being disposed of by means of this consolidated judgment.
2. The facts of the instant case in substance are that Mukhtar Ahmad, the brother of Abdus Sattar, the complainant had murdered Muhammad Ishaq, the father of the present appellants who was awarded death sentence and was lodged in jail at Bahawalpur. In order to slake the sense of revenge and retribution, Zafar Iqbal, Zafar Hussain, the present appellants and their uncle Ali Ahmad are stated to have come to the village Chowk in order to kill Abdul Ghaffar, the complainant's brother. The present appellants were armed with hatchets whereas Ali Ahmad had a Sota. On 27-8-1984 at about sunset when the complainant was present in his house, he saw Abdul Ghaffar alias Mast entering his house who was murmuring. Abdul Ghaffar lifted his licenced rifle and the bandolier containing bullets and went outside. The complainant asked him as to where he was going to and he advised the complainant not to jabber. The complainant followed Abdul Ghaffar, who went to the village Chowk located near the house of Noor Bahl, headman. The appellants and Ali Ahmad, their accomplice, who has been acquitted in this case, surrounded Abdul Ghaffar. Abdul Ghaffar wanted to fire at the appellants and Ali Ahmad but was restrained from doing so by the complainant. When the complainant's brother Abdul Ghaffar sensed that he shall not be spared, he fired in the air to defend himself and fired the Second shot which hit the leg of Ali Ahmad who fell down. In the meantime, both the appellants gave hatchet blows to Abdul Ghaffar and caused his instantaneous death. The complainant advanced to save the life of his brother Abdul Ghaffar and he, too, was injured by both the appellants. On his alarm, Rashid Ahmad and Abdul Haq reached the spot and witnessed this occurrence.
3. The F.I.R. Exh.P.P. was lodged at the Police Station, Chishtian by Abdus Sattar which was recorded by Bashir Ahmad, A.S.I. The police went to the spot and after preparing the injury statement and the inquest report, sent the dead body for autopsy. Zafar Iqbal produced the rifle of the deceased which he had snatched from him, and the hatchet was recovered from Zafar Hussain. After the completion of the investigation, the challan of the appellants and Ali Ahmad was submitted. As a sequel to the impugned trial, All Ahmad was acquitted whereas the appellants were awarded the sentences as stated supra.
4. In this case, Abdus Sattar, P.W.3 and Rashid Ahmad P.W.4 are the only ocular witnesses of this incident. Abdul Sattar has repeated his statement made in the F.I.R. He his clarified that Abdul Ghaffar fired on the air for the first time and then he fired at Ali Ahmad which hit him and then Zafar Iqbal and Zafar Hussain gave hatchet blows to Abdul Ghaffar deceased who succumbed to the hatchet injuries given by the appellants.
The motive for the commission of this crime is stated to be the murder of Muhammad Ishaq, the father of the appellants at the hands of Mukhtar Ahmad, the brother of complainant and the deceased. It may be noted that he has suppressed the injuries of Zafar Hussain and has posed to be empty handed when the incident took place.
5. Rashid Ahmad, P.W.4. has stated that Ghaffar died on the spot as a consequence of injuries inflicted by Zafar Iqbal and Zafar Hussain and he had heard the report of two fires. He does not know what happened before Abdul Ghaffar was injured nor does he know that Zafar Hussain was also injured.
6. Dr.Irshad Ahmad, Medical Officer, Tehsil Headquarters Hospital, Chishtian, P.W.7 had conducted the autopsy on the dead body of Abdul Ghaffar and had observed the following injuries:-----
(1) An incised wound situated atrleft side of the head 12 x 2 c. m. in size and 7 c.m. deep, scalp, skull bones were cut A piece of bone was separated mengines and brain was cut and pieces of brain was 6 c.m. deep.
(2) An incised wound 1 x x c. m. in size.
(3) An incised wound at right side of mendible and face 3 x x c.m. in size.
(4) An incised wound at right side of front of chest 11 c. m. long 1 c.m. wide and 1 c.m. deep.
(5) An incised wound situated in front of left upper arm 11 c.m. x 3 c.m. in size.
He had also medically examined Abdus Sattar, the complainant and had listed the following injuries on his person:----
(1) An oblique lacerated wound at the centre of head 4 x c.m. in size and scalp deep.
(2) An incised wound at right fore-arm 1 x c.m. in size.
(3) An oblique incised would at right knee joint 5 c.m. x 3 x 4 in size.
Injury No.3 was grievous in nature whereas injuries Nos. 1 and 2 were found to be simple. This medical expert also examined Zafar Hussain, one of the appellants and had found the following injuries on his person:----
(1) An incised wound at right side of scalp 2 x x c.m. in size.
(2) An incised wound at the back 8 x x c.m. in size.
He also examined Ali Ahmad son of Muhammad Ali, the acquitted accused and found a fire-arm injury with a diameter of 3 x 4 c.m., its margins were inverted and burnt and there was an exit injury at the posterior side of the knee joint 9 x 9 c.m. in size and the pieces of the broken bones were coming out of the wound. There was a fracture of knee and had been deformed. The injury was grievous in nature. When subjected to cross-examination, this medical expert has elaborated that Ali Ahmad accused remained admitted in the hospital for sufficient time and was then referred to B.V. Hospital, Bahawalpur.
7. Nabi Bakhsh, P.W.8 had conducted the investigation in this case. He had formally registered this case and had prepared the injury statement of Abdus Sattar and those of Ali Ahmad and Zafar Iqbal which were placed in a cross case. He took the blood-stained earth from the spot and recovered two empties from the place of occurrence. Zafar Iqbal produced his hatchet Exh. P.1' at the time of his arrest and Zafar Hussain also produced his hatchet Exh. P.2 which, was taken into possession vide recovery memo. Exh.P.E. According to him Masood Ahmad, Constable, had produced the autopsy report and the last worn clothes of the deceased alongwith a bandolier Exh.P.9 and knife Exh.P.10. He also produced another bandolier with 33 live bullets and 7 empty bullets, Ali Ahmad was arrested from the hospital on 29-9-1984. According to the Investigating Officer, the complainant, had attacked the accused party and he had found Abdus Sattar armed with a hatchet during the investigation of t .his case and, therefore, he was challaned in a case under section 307, P.P.C. There is nothing on the record as to what was the result of the case against Abdus Satter complainant, but the learned counsel for the complainant has, frankly conceded that Abdus Sattar has been convicted and sentenced in a case under section 307, P.P.C. and no appeal is pending before any Court now. Nabi Bakhsh P.W.8 has stated that 5 cases against Abdul Ghaffar deceased had been registered at Police Station, Chishtian pertaining to theft, keeping an unlicenced gun and the liquor.
8. In their statements under section 342 of the Cr. P. C ., the appellants have stated that Abdul Ghaffar was armed with a rifle and a knife and Abdus Sattar complainant was armed with a hatchet who attacked them with their respective weapons and caused injuries to Ali Ahmad and Zafar Hussain and in self-defence, they caused injuries to the complainant and Abdul Ghaffar.
9. The story narrated in the F.I.R. and as stated by Abdus Sattar the complainant has made 'things easier for us. Abdul Ghaffar hurriedly went to his house to bring his rifle and the bandolier and fired at Ali Ahmad. The complainant poses himself to be empty handed. But the evidence shows that he was armed with a hatchet and he caused injuries to Zafar Hussain which he has purposely suppressed. Abdul Ghaffar had fired at Ali Ahmad and had caused a grievous injury on the knee of Ali Ahmad who remained in the hospital for a considerable time. Zafar Hussain was also injured as the medical evidence shows.
Under section 100, P.P.C. the right of private defence of body extends to causing death when the assault is such as may reasonably cause the apprehension that death will otherwise be the consequence of such assault or it would reasonably cause an apprehension that grievous hurt will otherwise be the consequence of such assault. In this case grievous injury was inflicted by the deceased on the knee of Ali Ahmad. The deceased had a rifle in his hand and his bandolier contained 33 live bullets. There was every apprehension that he would cause the death of the appellants and their uncle Ali Ahmad. In the circumstances, the appellants deservedly exercised their right of private defence of the body and caused injuries to Abdul Ghaffar and the complainant. It cannot be termed a case of free fight and we, therefore, accept this appeal, acquit both the appellants of the charge framed against them and quash their conviction and sentence awarded under sections 302/34 and 307/31, P.P.C. They shall be set at liberty forthwith if not required to be detained in any other case. The sentences of death awarded to each of them are not confirmed. The reference is answered accordingly.
S. A.(638/L) Reference answered accordingly.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer