1986 PLP 100 (SCMR)

148, P. P. C. to suffer rigorous imprisonment for two years. Under section Appellants Noor Muhammad and Ahmed Sher 302, P.P.C. were each convicted on two counts for the read with section murders of Sarfraz and Sikandar Hayat, and 149, P.P.C. sentenced to death and also to pay a fine of Rs.2,000 each on each count or in default to undergo rigorous imprisonment for six months on each count. Additionally, Rs.5,000 on each count for murder was awarded as compensation to the heirs of the two deceased or in default to suffer rigorous imprisonment for six months. Appellants Muhammad Noor and Muhammad Khan were convicted on two counts of murder and sentenced on each count to imprisonment for life. The same amount of fine and compensation was ordered to be paid by them. Under section All the appellants were convicted and sentenced 307, P. P. C to suffer rigorous imprisonment for three years. read with section 149, P.P.C. On appeal and reference, the High Court acquitted all the appellants on the charge of rioting, ,i.e. under section 148, P.P.C. But on the charge of murder Noor Muhammad was alone held responsible for causing the murders of the two deceased. As for Ahmad Sher it was said that he had not fired the fatal shot at Sikandar Hayat although he shared the common intention to kill the deceased. He was not held liable for the murder of Sarfraz. However, both of them were acquitted on the charge under section 307/109, P.P.C. Appellants Muhammad Noor and Muhammad Khan were acquitted of the charge of murder, but were held responsible for causing gun‑shot injuries to Sher Muhammad (P.W. 1) by reference to common intention. The High Court, however, maintained the death sentence of Noor Muhammad on two counts while the sentence of Ahmad Sher was altered to imprisonment for life and he was ordered to pay a fine of Rs.10,000 or in default to undergo rigorous imprisonment for three years. Consequent upon the findings of the High Court although those convicted were by reference to section 34, P.P.C. yet impliedly their individual participation was the main consideration. Leave was granted to re‑appraise the evidence and also to evaluate the nature of the offence committed by the appellants. The incident occurred in broad daylight at a place very near the District Jail Shahpur. Both the sides have given explanations of having come across each other, but the explanation given by the appellants was rejected as it was not supported by any documentary evidence. The fact nonetheless was that Noor Khan, a relative of Zafar Iqbal, was lodged in the very jail as he was booked for the murder of one Manzoor Manda. Sher Muhammad (P.W. 1) has admitted this fact but has denied any knowledge as to whether he had to be produced in Court on that date. There is nothing to rebut this fact and if, at all, the appellants had gone to accompany him there could not be any documentary evidence to establish it. It is also of significance to note that in the record produced at the trial Mumtaz (P.W. 2) is not mentioned as having visited the jail to meet Muhammad Afzal although he is cited as a witness. Similarly, Shamir was stated to have gone along with the other persons to meet the condemned prisoner, but his name does not appear in ‑the document. Atta Muhammad, who, in fact, had gone to the jail, and Shamir were abandoned and not examined at the trial. It has also come on record that the parties resided in the same village, and if, at all, they wanted to commit the murders there was no obstacle in the way of accomplishing their object. In the milieu of this background, one bullet was extracted from the body of Zafar Iqbal although none from the side of the complainant party was said to be armed with a pistol or a rifle. Again the injuries on one of the appellants namely, Ahmad Sher were caused from behind. Either the shot fired by Sarfraz may have caused the injuries or someone else who, though armed amongst the complainant party, may have fired. There is also a blunt‑weapon injury on Sher Muhammad which has not been explained. There is, therefore, suppression of material facts by the prosecution witnesses. Again I find that the witnesses are not truthful as they appear to be as they have made improvements in their evidence. Sher Ahmad while being examined stated:‑‑ "We started running towards bus stand, whereas all the five accused chased us. Safraz and Shamir, my companions, took shelter behind a Khokha of tea‑stall. Atta Muhammad, P.W. ran towards the office of the Agricultural Department." In cross‑examination he was confronted with his F.I.R., but despite his assertion that he had stated so all what he afore‑stated was missing. Shamir has not been examined and if he had taken shelter as stated I wonder how he could have escaped from being shot at. Again the roles assigned to Muhammad Khan and Muhammad Noor of having fired ai Sikandar while he was lying on the ground are also missing from his F.I.R. It looks highly improbable that if Sarfraz alone was armed with a gun, the appellants would have allowed him to escape and take shelter by the side of the tea‑stall and fire at Zafar Iqbal, as he would have been the first victim considering the factor of safety to their own lives. If, at all, the shots were fired as the witnesses had said when the appellants faced the complainant‑party hardly there was any chance for any body to take shelter. Additionally, Mumtaz (P.W. 2) had not accompanied the complainant‑party, but had come from Sargodha and happened to be at the spot by chance as he had also wanted to visit the condemned prisoner in the Jail. His presence at the spot appears to be improbable and even otherwise his evidence does not stand on any higher footing than that of Sher Muhammad. Apparently what appears to me is that there was a sudden fight at the spur of moment as when the parties confronted each other, in the background of the motive and the provocation provided by the visit of the complainant‑party to the jail for meeting the condemned prisoner, they had indiscriminately fired at each other. It cannot be a case of free fight as its basic elements are wanting or where either party could claim to be the victim of the aggression by the other. The High Court also while acquitting the appellants of the charge of rioting has impliedly rejected the deliberate attack by the appellants in which case the question as to who was the aggressor is not of any consequence. From the side of the complainant two persons had died while one from the side of the assailants had lost his life in the same transaction. It is accordingly a case of Exception IV to section 300, P.P.C. where neither party can be said to have taken any undue advantage over the other as both of them were equally armed. Accordingly, the conviction of Noor Muhammad for the murders. of Sikandar Hayat and Sarfraz is altered from section 302 P.P.C. to section 304, Part‑I, P.P.C. and a sentence of imprisonment for life is substituted on each count of murder. The sentence of fine and the compensation awarded is also maintained. As for Ahmad Sher, he was held to have fired a shot at Sikandar Hayat and convicted for his murder and sentenced to imprisonment for life. His conviction is also altered from section 302 , P . P . C . to section 304, Part I , P. P . C , while his sentence of imprisonment for life is maintained and so also the fine awarded by the High Court. The conviction of Muhammad Noor and Muhammad Khan under section 307/34, P.P.C. is altered to section 308, P.P.C. However, the sentence earlier awarded is maintained. All the sentences are to run concurrently, and the appellants shall be entitled to the benefit of section 382‑B, Cr.P.C. while computing their sentences. Criminal Appeal No. 139 of 1981 is, therefore, dismissed subject to the above modification. As a result thereof Criminal Appeal No. 140 of 1981 stands dismissed. M . Y . H. Appeals dismissed.