1985 P Cr (PLP)

4. On 23‑5‑1981 at 2‑45 a.m. Dr. M. Altaf Hussain P.W.6 medically examined Pervaiz Iqbal injured and found five fire‑arm wounds of entry on the front of right abdomen in an area of 8 c.m. x 8 c.m. with four lacerated wounds of exit on the back of his right side. The fire‑arm injuries were declared to be dangerous to life and caused within a period of one hour.

5. On 25‑5‑1981 Pervaiz Iqbal breathed his last. Dr. M. Altaf Hussain P.W. 6 conducted the post‑mortem examination on the dead body of Pervaiz Iqbal, deceased, and found that the deceased had died due to the same fire‑arm injuries on his person as he had found earlier. Death was due to multiple perforations in the small intestines and ascending colon, which was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about two days and that between death and post‑mortem examination within about six hours.

6. On the same day both the accused were arrested. Maula Bakhsh, accused, produced Sots. P.7, which was taken into possession by the police vide memo. P.G. in the presence of Ali Sher P.W.4, Kifayat Hussain S.I. P.W.8 and Abdul Rashid (given up P.W.).

7. On 1‑6‑1981 Rahim Bakhsh, accused, led to the recovery of a gun P.6, which was taken into possession by the police vide memo. P.F., in the presence of the same witnesses that had witnessed the recovery of the Sota.

8. After completing the investigation, the challan against both the accused was sent up.

9. At the trial, the prosecution produced Muhammad Siddique P.W.5 and Muhammad Yousaf P.W.7 in proof of the motive and the ocular account, Ali Sher P.W.4, Muhammad Siddique P.W.5 and Kifayat Hussain S.I. P.W.8 in support of the recoveries, Dr. M. Altaf Hussain P.W.6 in corroboration of the medical testimony and Kifayat Hussain S.I. P.W.8 in proof of the dying declarations made by the deceased.

10. Maula Bakhsh, accused, denied all the accusations that were levelled against him including that relating to the recovery of the. Sota P.7 effected at his instance. He stated that he was in his village at the time of occurrence and had nothing to do with the parties of this case. He stated that he had been falsely implicated at the instance of his enemies through the influence which they had with the complainant party and the police. He stated that he had no connection with Rahim Bakhsh, accused, nor knew him or the complainant party and that Rahim Bakhsh had made him a scapegoat because he was a licencee of a gun. He also stated that his licenced gun was never used in the occurrence. Rahim Bakhsh, accused, admitted that his saw machine situated adjacent to that of Ibrahim the father of the deceased. He denied that Muhammad Ibrahim owned land around his saw machine over which he had built a Chapper. He submitted that the said land was under his possession and he had built a Kotha over it which Ibrahim and his sons wanted to demolish in order to take over possession of the said land. He submitted that on the date and time of occurrence Pervaiz Iqbal, deceased and his hirelings were demolishing his Kotha and had partly pulled down its roof but that Muhammad Siddique P.W.5, Muhammad Yousaf P.W.7 and Umer Farooq (won over P.W.) were not present there. He submitted that the deceased and his hirelings had attempted to attack him and Maula Bakhsh, accused, whereupon they fled from the place of occurrence on his scooter which was being driven by him, while Maula Bakhsh, accused, was sitting behind. He further submitted that Pervaiz Iqbal, deceased overtook them at Sherpawo Chowk and fired at them with a pistol which shot luckily missed him. He further submitted that after the deceased had fired at them, Maula Bakhsh accused who was sitting behind him in order to scare away the deceased fired a shot with his licenced gun at random but unluckily the shot hit the deceased. He finally submitted that he had been falsely involved by the complainant, who was an Advocate and a rich person through the influence he wielded with the police.

11. The learned trial Judge relying upon the motive, the ocular account, the dying declaration of the deceased, the recoveries and the medical evidence convicted and sentenced both the accused as stated in para. 1 above.

12. I have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards motive is furnished by Muhammad Siddique complainant P.W.5 and Muhammad Yousaf P.W.7. According to their testimony, Muhammad Ibrahim, the father of the complainant, had installed a saw machine on a plot measuring six Kanals on Kot Farid Road, Sargodha, where he had constructed a Kotha and a. Chapper. Rahim Bakhsh, appellant,had also installed a saw machine on a plot adjacent to that of Muhammad Ibrahim to its south. Rahim Bakhsh, appellant, wanted to demolish the Chapper of Muhammad Ibrahim and to annex the site thereof with his own land. Accordingly, on the night between 22/23‑5‑1981 Rahim Bakhsh, appellant, armed with a gun, Maula Bakhsh, appellant, armed with a Sota, and their other companions, with arms as listed in para. 2 above, proceeded to demolish the boundary wall and the Chapper on Ibrahim's land. On receipt of information from Karim Khan, his servant, Muhammad Siddique P.W.5, with his brother Pervaiz Iqbal, deceased, proceeded to his father's saw machine. Muhammad Yousaf P.W.7 and Umer Farooq (won over P.W.) were not with them at that time, but they met them at Chandni Chowk, about a hundred yards from their house, as they were proceeding to the saw machine. Muhammad Yousaf P.W.7 and Umer Farooq (won over P.W.) were coming back after seeing a cinema. All the then preceded to the site of Ibrahim's saw machine, where they found both the appellants and their companions demolishing the Chapper and wall of Ibrahim's saw machine. On behalf of the appellants it is suggested that actually the complainant party had demolished the Chapper and wall of Rahim Bakhsh, appellant's saw machine and that after Pervaiz Iqbal died, the complainant party, who were influential, pulled down the Chapper and wall of Rahim Bakhsh appellant's saw machine in order to foist a motive against the appellants. Muhammad Siddique P.W.5 in his cross‑examination was put a leading question as to whether Rahim Bakhsh, appellant, had leased out his saw machine to Mukhtar since its installation, which question he confirmed. It is, therefore, obvious that had the complainant party proceeded to pull down the Chapper and wall of Rahim's saw machine, the lessee and his servants would have been in the picture, which is not the case. It is, therefore, clear that the demolition operation was launched by the accused party. The evidence of Muhammad Siddique P.W.5 and Muhammad Yousaf P.W.7 is natural and convincing. In these circumstances, the motive stands established in the case.

13. The ocular account in this case is furnished by the same two, witnesses who have proved the motive. Rahim Bakhsh, appellant, in his statement under section 342, Cr. P. C., admits the occurrence to the extent that he and Maula Bakhsh, appellant, fled frpm the spot on a scooter, which was driven by him, in order to escape the assault of Peraiz IqbaI, deceased, and his hirelings, who had come and demolished his Kotha and partly pulled down its roof. According to his statement, the deceased overtook them at Sherpawo Chowk and fired at them from behind with a pistol, but luckily the shot did not hit them. Maula Bakhsh, appellant, who was sitting behind on the scooter, in order to scare away the deceased, fired a shot at random from his licenced gun, but unluckily the shot hit the deceased. According to him, he was still driving the scooter when the deceased was hit. According to his story, Muhammad Siddique P.W.5, Muhammad Yousaf P.W.7 and Umer Farooq (won over P.W.) were not present when the deceased was hit. Maula Bakhsh, appellant, however, in his statement under section 342, Cr. P. C., has denied his participation and the story given by his co‑appellant. The ocular account given by Muhammad Siddique P.W.5 and Muhammad Yousaf P.W.7 already stands reproduced in para. 2 above and need not be repeated. The fleeing of both the appellants on the scooter from the side where the two saw machines were installed and their pursuit by Pervaiz Iqbal, deceased, on his vehicle, also stands admitted. Muhammad Yousaf P.W.7 is an independent witness. Though it is admitted that he is a friend of Muhammad Siddique P.W.7 and has had some financial dealings in partnership with him, but he has no enmity with any of the appellants. According to his cross?examination, he was driving the scooter of Umer Farooq (won over P.W.) on which Umer Farooq was also sitting, when they were pursuing the appellants. Muhammad Siddique P.W.5 was on his own scooter, when pursuing the appellants. The F.I.R. was lodged promptly within two hours, no sooner the medico‑legal report of Pervaiz Iqbal injured was secured. The names of the witnesses thus stood recorded at the earliest instance in the F.I.R. The participation of the two appellants therefore, in the crime in instance, in the manner stated by these two eye‑witnesses, stands established to the hilt by their evidence.

14. The dying declaration Exh. P.S. and that recorded under section 161, Cr. P. C. of Pervaiz Iqbal, deceased, stand proved by the evidence of Kifayat Hussain Shah S.I. P.W.8. According to his testimony, after recording the statement of the complainant, he proceeded to the hospital' where he inquired from Dr. M. Altaf Hussain P.W.6, vide application Exh. P.K/2, as to whether Pervaiz Iqbal injured was fit to make a statement. The said doctor vide his endorsement Exh. P.K/3 certified that the patient was in a fit condition to make a statement. Accordingly, he first recorded the statement Exh. P.S. of Pervaiz Iqbal, deceased, under which he took the deceased's signature, and thereafter recorded the second statement of the deceased, almost verbatim on the same lines as his earlier statement, under section 161, Cr. P. C. There is nothing on the record to show that these statements were fabricated at the instance of the police officer. These dying declarations corroborate the ocular account furnished by Muhammad Siddique P.W.5 and Muhammad Yousaf P.W.7. They also show that these witnesses alongwith Umer Farooq (won over P.W.) also witnessed the occurrence.

15. The recovery of the crime empty P.3 from the spot which matches the gun P.6 recovered at the instance of Rahim Bakhsh, appellant, also support the prosecution case. The learned counsel for the appellants has not attacked these recoveries. Since the firing is admitted by Rahim Bakhsh, appellant, in his statement, I need not labour any further on these recoveries or on the medical testimony, both of which corroborate the ocular account.

16. The upshot of the above discussion is that the participation of both the appellants in the crime in instance stands established. The only question that remains is as regards the offence committed by each' of them. It cannot be denied that both the appellants were fleeing from the saw machine of Muhammad Ibrahim, after having been successful in demolishing its Chapper and walls, with the assistance of some of their companions. Pervaiz Iqbal, deceased, and his three companions were obviously not going to allow these two persons to escape. Whilst fleeing, Maula Bakhsh and Rahim Bakhsh, appellants, had a Dang and a .12 bore gun with them. The probability that the deceased and his companions picked up some Sotas with them, whilst chasing the appellants on their respective motor cycle and scooters, cannot be excluded. Finding that they would be overtaken, it is alleged that Maula Bakhsh, appellant, stopped the scooter and exhorted his companion to fire at the deceased. The deceased it seems had also stopped his vehicle and had come down, when he was fired upon by Rahim Bakhsh, appellant, which hit him in his abdomen. The shot fired by Rahim Bakhsh, appellant, was clearly seen by all the eye‑witnesses. The probability that the eye‑witnesses, who were chasing the appellants on their vehicles, had also stopped their vehicles near that of the deceased and were running up to capture and assault Rahim Bakhsh, appellant, with whatever light weapons (like Dangs or Sotas) they then carried, cannot be excluded. Rahim Bakhsh, appellant, anticipating capture and hurt, recklessly fired at Pervaiz Iqbal, deceased, in his self‑defence. Taking all circumstances into consideration, it appears that he exceeded his right of self‑defence. He is, therefore, liable under section 304‑I P.P.C. As regards the case of Maula Bakhsh, appellant, it is alleged) that he exhorted his companion to fire at the deceased. Since Muhammad Siddique P.W.5 and Muhammad Yousaf P.W.7 were on their scooters some distance behind the deceased, when this alleged Lalkara was raised, it is not possible that these witnesses would have been able to hear this alleged Lalkara. The noise of the scooters would have prevented them from hearing this so‑called Lalkara. In these circumstances, it is, not possible to unequivocally hold that Maula Bakhsh, appellant, shared any common intention with Rahim Bakhsh, appellant, to fire and kill Pervaiz Iqbal, deceased, as the latter did. In these circumstances. Mauls Bakhsh, appellant, is entitled to the benefit of doubt.

17. For the foregoing reasons, Maula Bakhsh, appellant, is entitled to the benefit of doubt. His appeal is accepted. His conviction anti sentence is set aside. He shall be set at liberty forthwith, if not required in any other case. The fine, if any recovered from him, shall be refunded to him.

18. The conviction of Rahim Bakhsh, appellant, is altered from one under sections 302/34, P.P.C. to that under section 304‑I, P.P.C. He is sentenced to undergo ten years' rigorous imprisonment and to pay a fine of Rupees One Thousand (Rs.1,000) or in default thereof to undergo further rigorous imprisonment for one year. Rahim Bakhsh, appellant', shall also pay Rupees Ten Thousand (Rs.10,000) to the legal heirs of Pervaiz Iqbal, deceased, as compensation under section 544‑A, Cr. P. C. In default of payment of compensation, he shall undergo rigorous imprisonment for two years. The benefit of section 382‑B, Cr.P. C. shall be allowed to this appellant. The appeal of Rahim Bakhsh, appellant, therefore, stands partly accepted, in terms of alteration of conviction and reduction in sentence, as stated above. He is on bail. He is ordered to be taken into custody and sent to Jail to serve out the remaining portion of his sentence.

19. There being no merit in the revision petition (Cr.R.337 of 1983) filed by Muhammad Siddique, the same is dismissed in limine. M. Y. H. ???????????????????????????????????????????????????????????????????????????????? Appeal partly allowed.