1999 PLP 798 (MLD)

After the medical examination, the doctor handed over the carbon copies of the Medico-legal Reports to the police. Duration of all the injuries was within four hours. P.W.3. Dr. Abdul Bari then Medical Officer, District Headquarter Hospital, Sheikhupura performed post-mortem examination on the dead body of Abdul Majid on 10-11-1991 at 3-00 p. m. and he found the following injuries on the dead body: (1) A contused swelling 17 x 16 cm over the right side of head and forehead. (2) Contused swelling 11 x 10 on top of head left. On internal examination, a large blood clot was seen present outside the skull. Under injuries Nos.1 and

2. There were fractures of both right and left parietal bones (top of head). A large blood clot was also present under the skull Brain was congested. (3) Contused swelling 4 x 4 c.m. of right eye. (4) Firearm wound of entrance .8 x .8 c.m. on inner and upper part of left knee joint, making exit would .9 x .9 c.m. on the back side of left knee joint outer part. The lower end of femur was seen fractured. (5) Firearm wound of entrance .8 x .8 c.m. on inner part of left leg lower part. One pellet was removed from muscle which was damaged. All the injuries were ante mortem. Injury No.4 and injury No.5 were caused by firearm whereas the rest of the injuries were caused by blunt weapon. In the opinion of the doctor, death had occurred due to severe shock and haemorrhage due to injuries Nos'.1 and 2 which wed each individually and all injuries collectively sufficient to cause death in the ordinary course of nature. The probable time between the injuries and death was within two to four hours and the time between death and post-mortem examination was within 18 to 24 hours. Exh.PE is the carbon copy of the post-mortem examination report whereas Exh.PE/1 is the diagram Showing the locale of injuries.

8. Dalil Khan (P.W.6) is the marginal witness of the recovery memo Exh.PG by virtue of which blood-stained earth was taken into possession by A.S.I. in his presence. He is also the marginal witness or recovery memo Exh.PF by means of which the Investigating Officer, had taken into possession the last worn Shalwar Exh.P.I of the deceased when the same was produced before him by the constable after the post mortem examination. Sufaid Khan (P.W.10) has stated that gun Exh.P.2, Dang Exh.P.3., Dang Exh.P.4. and iron pipe Exh.P.5 were got recovered by Muhammad Hussain, Mouj Khan, Muhammad Tufail and Muhammad Hasan accused respectively vide recovery memos Exh.PH, Exh.PJ, Exh.PK and Exh.PL which were also thumb marked by him.

9. After the completion of investigation all the four accused/appellants were challaned and were sent up to face trial.

10. All the accused were charged under section 302/34 P.P.C. to which they pleaded not guilty and at the trial the prosecution examined Abdul Aziz (P.W.1), who reported the matter to A.S.I. Maqbool Ahmad Exh.PA, Dr. Muhammad Afzaal Khawaja (P.W.2) who examined the injured Abdul Majid and produced medico-legal report Exh.PB and diagram Exh.PB/1, he also examined injured Abdul Aziz and produced his medico-legal report Exh. PC and diagram of injuries Exh.PC/1 and examined Mst. Fajri Bibi and produced medicolegal report Exh.PD and skigram of injuries Exh.PD/1, Dr. Abdul Bari (P.W.3) who conducted the post-mortem examination of dead body of Abdul Majid and produced the post-mortem examination report Exh.PE and the diagram EXh.PE/l. Muhammad Abbas Constable (P.W.4) who brought blood stained Shalwar after post mortem examination Exh.P.l and one sealed phial containing a pellet which were taken into possession by the Investigating officer vide memo Exh.PF, Constable Ijaz Ahmad (P.W.5) who took the statement of the complainant to Police Station Narang for registration of formal F.I.R. and delivered it to Moharrir of the Police Station, Dalil Khan (P.W.6) in whose presence Investigating Officer recovered the blood-stained earth Exh.PG, Abdul Hamid (P.W.7) identified the dead body, Mst. Fajri Bibi (P.W.8) who gave the eye-witness account, Muhammad Iqbal Moharrir Head Constable (P.W.9) who formally recorded F.I.R. Exh.PA/l, Sufaid Khan (P.W.10) in whose presence gun Exh. P.2 was got recovered by Muhammad Hussain accused which was taken into possession by the Investigating Officer vide recovery memo Exh.PH and accused Mouj Khan got recovered Dang Exh.P.3 which was recovered vide recovery memo Exh.PJ accused Tufail got recovered Dang Exh.P.4 which was taken into possession vide memo Exh.PK and Muhammad Hasan got recovered iron pipe Exh.P.5 which was taken into possession vide recovery memo Exh.PL, A.S.I Maqbool Ahmad (P.W.11) conducted the investigation and prepared rough sketch of the place of occurrence Exh.PM, the application made by Medical Officer, General Hospital, Lahore for recording statement of Abdul Majid on 9-11-1998 Exh.PN, opinion of the Doctor that he was unable to make statement is Exh.PN/1, report about the death of Abdul Majid Exh.PO, the site plan prepared by the Patwari Exh.PQ and notes of the Investigating Officer Exh.PQ/1, with red ink. The death. certificate collected by the Investigating Officer Exh PS, notes of the Investigating Officer on the death certificate Exh.PS/1. P.Ws. Shamas Din, Nasarullah Khan and Mazhar Mahmood were given up by the District Attorney being unnecessary. Niaz Hussain Patwari Halqa (P.W.12) prepared the site plan Exh.PT and Exh.PT/1, Akbar Ali, Traffic Inspector (P.W.13) prepared rough sketch of place of recovery of gun Exh.P.2 which is Exh.PH/1 who also conducted partial investigation of the case. The District Attorney tendered in evidence report of Chemical Examiner Exh.PU, report of Serologist Exh.PV and report of Forensic Science Laboratory Exh. PW and closed the case of prosecution.

11. Statements of the accused were recorded under section 342 Cr P. C in which they stated the prosecution story being incorrect and to question No.10 Muhammad Hussain accused replied as under:- "I and my brothers, challaned alongwith me jointly own a tractor, which was under my management and I used to give it on rent to other cultivators for ploughing their land. Abdul Majid and his brother had no tractor. They used to hire my tractor for cultivating their land and they owed us a rent Rs.7500. A day prior to the occurrence Abdul Majid came to me and asked for the tractor but I refused to give him tractor unless the outstanding amount was paid, whereupon a quarrel ensued and I gave him fist blows. On the day of occurrence I was going towards my land. Abdul Majid was armed with a licensed gun and revolver, came out and coming close to me aimed his gun at me saying that he would not spare me for insulting him. I succeeded in snatching his gun from him and started running towards south. It was a single barrel gun which was loaded. Nevertheless he took out his revolver and fired two shots at me but fortunately I escaped. He had aimed the third fire at me that I gave him three butt blows of the said gun which fell on his head and face. He fell down. The revolver was still in his hand and aimed at me which I snatched from him. Thereafter, Abdul Aziz and Mst. Fajri P. Ws, came running from the house who attempted to snatch the gun and the revolver from me and during the scuffle that ensued, both of them received injuries at my hands. I fired and gave injuries to Abdul Majid in self defence. I appeared at the police station and produced the gun and revolver of the deceased before the I.O. The entire of the episode has been suppressed by the police m collusion with the complainant party. Had I not fired at the deceased and given butt blows, I would have lost my life at the hands of the deceased. None of my brothers who are my co-accused was present at the spot. They have been implicated falsely being my real brothers. I am innocent." 12 In their defence the accused produced Suleman alias Sullay Khan. Accused Mouj Khan tendered in evidence his Nikahnama Exh.DB and closed his defence evidence.

13. The learned Sessions Judge disbelieved the motive version of defence and also the plea of self defence and came to the conclusion that the medical evidence was in line with the ocular evidence, it confirmed the time of occurrence, the types of weapons and the seats of injuries sustained by the deceased and the injured P.Ws. and that the recoveries of the weapons of offence were made at the pointation of the accused themselves and that, as such, the participation and guilt of all the four accused was proved. The learned Sessions Judge opined that originally it were Muhammad Hussain and Muhammad Hasan accused who were present at the place of occurrence and had launched attack on Abdul Majid deceased who according to the disclosure made by P.W.8 was going ahead of Abdul Aziz and Mst. Fajri Bibi and that Mouj Khan and Muhammad Tufail joined thereafter though in the same transaction. Mouj Khan did not inflict any injury to Mst. Fajri Bibi and Muhammad Tufail did not cause any injury to Abdul Aziz and thus all the four accused did not act during occurrence of common intention of them all. In his view Muhammad Hussain and Muhammad Hasan accused acted in furtherance of their common intention in taking the life of Abdul Majid' and thus held them guilty and convicted them under section 302/34 P.P.C. Regarding the quantum of sentence the circumstances of Muhammad Hussain and Muhammad Hasan being sons in law of Sullay Khan weighed with the learned Sessions Judge and he imposed lesser sentence than the capital punishment. Mouj Khan and Muhammad Tufail were held by him individually responsible and they were convicted under section 337 P.P.C.

14. The learned counsel for the appellants has submitted that the conviction and sentence of the appellants are not justified in law and on facts and that the occurrence was admitted by appellant Muhammad Hussain and his defence version was quite plausible and reasonable and plausible defence has been put up by him and that the prosecution has failed to prove its case beyond reasonable doubt and that the prosecution has cast his net too wide and father, Sufaid Khan and his four sons have been involved and that the four persons are not required to injure three persons and that the investigation only partly believed the prosecution and they found Sufaid Khan innocent and got him discharged from the case and that in such circumstances independent corroboration was necessary to support the tainted evidence of interested and inimical witnesses who are closely related inter se and that even the medical evidence supported the defence version.

15. On the other hand learned counsel for the complainant has submitted that the learned Sessions Judge was wrong in not awarding death sentence to Muhammad Hussain and Muhammad Hasan after believing the whole prosecution story and that the reason given for lesser sentence was not recognized by law or by the Superior Courts and that all the accused should have been convicted under section 302 P.P.C. and that in the present case there was no previous enmity between the parties and the parties were so closely related that they were real cousins inter se, so the question of false implication or deliberations or consultations on the part of the complainant to falsely implicate the accused did not arise and that the evidence produced by the prosecution was independent and not of partial nature and that the sentence be enhanced.

16. I have given due consideration to the valuable arguments on both the sides at length and have also perused the record with their able assistance.

17. At the very outset the learned counsel. for the appellants did not press the appeal to the extent of Mouj Khan and Muhammad Tufail, as such, to their extent the appeal stands dismissed and the arguments have been advanced to the extent of Muhammad Hussain and Muhammad Hasan.

18. The incident of murder, the nature, number and seat of injuries to the deceased, the date, place and time of occurrence are all admitted on both sides. A The only thing to be determined in this case was the stand taken by Muhammad Hussain accused that it was the deceased who made an attempt to take his life and issued fires from his rifle which missed and the accused became successful to snatch the gun from the deceased and issued only one fire on the leg of the deceased and thereafter butt blows to the deceased. The complainant, injured Abdul Aziz (P.W.1) has admitted in his cross-examination that it was correct that while leaving the place Muhammad Hussain accused had taken with him the licensed gun and the revolver of deceased Abdul Majid. He also admitted that he did not state that fact before that police. He also could not deny the fact that Muhammad Hussain accused had appeared before the police after five days of the occurrence. He also admitted it correct that the gun and revolver were returned to them by the police. He also admitted that it was correct that the gun and the revolver were handed over by Muhammad Hussain to the police and then the same were returned to them. He also admitted that the gun of deceased was a single barrel gun. Further in the cross-examination Mst. Fajri Bibi (P.W.8) who was also an injured witness was confronted with her statement Exh.DA that Muhammad Hussain accused had given blows to Majid deceased on his forehead and left leg. She also admitted that the deceased had licence of 12-bore gun and a revolver. She also stated in the cross-examination that as Majid deceased was firing at Muhammad Hussain accused with his revolver in spite of having received injury he was given three successive injuries on his head by Muhammad Hussain accused with the butt of the gun.

19. These statements of the eye-witnesses leave no doubt that the version as put by Muhammad Hussain accused regarding his acting in his self defence stands fully proved. Section 100 P.P.C. is fully applicable in the circumstances of this case which reads as under:-

100. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First.

Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;] Secondly ............. Thirdly ............. Fourthly ............ Fifthly ............. Sixthly.............

20. Further the S.B.B.L. shotgun of 12 bore bearing No.257578 in working order was allegedly recovered by the Police vide memo Exh.PH on 22-11-1991 at the pointation of Muhammad Hussain from his residential house from Jisti Peti from inside the room below the beds which was a licenced weapon and the opinion of the Examiner of fire arms was that no foulings were recovered from the barrel of the shotgun of 12 bore "butt signed" , hence nothing could be said as to when it was last fired. The non-mention of the production of the revolver and the gun of the deceased which was produced by the accused Muhammad Hussain as admitted by the eye-witnesses in their deposition clearly shows that the Investigating Officer did not conduct the investigation honestly. The learned trial Court has also not taken note of the, report of the Fire Arm Expert.

21. The argument of learned counsel for the State that the accused did not receive any injury before the apprehension could have been entertained as has been stated by the accused is not legally sound because the law does not place any such limitation on the person exercising such defence that he should first receive an injury. Reference can be made to the case of Aludo alias Ali Bux v. The State (1976 PCr.LJ 329).

22. The appellant Mohammad Hussain was, therefore, fully justified in killing the deceased who was not only armed with gun but also with pistol and made every attempt to take the life of the appellant. The way he has acted was a natural way and there is no reason or circumstance to disbelieve it.

23. For the above reasons, this appeal is allowed to the extent of Muhammad Hussain and Muhammad Hassan, appellants and they are acquitted of the charge. The revision petition having no merit is dismissed. Both the appellants Muhammad Hussain and Muhammad Hassan are on bail and they are discharged of their bail bonds. N.H.Q./M-766/L Appeal allowed.