P L D 1993 Lahore 481 (PLP)

SH. IJAZ NISAR, J.

Muhammad Nasir (55) and his brothers Muhammad Bashir (56) and Rustam Ali (37/38) sons of Rehmatullah and Abdul Razzaq (51/52) son of Ali. Akbar were tried for the murders of Muhammad Akram, Abdul Ghafoor And Tariq Mahmood deceased and for making a murderous assualt on Muhammad Sardar, Aurangzeb, Zahoor Ahmad, Haji Adalat, Baqar Khan and Muhammad Fiaz P.Ws. on 27-5-1988.

2. By judgment dated 10-10-1988, Judge, Punjab. Special Court No. VII, Rawalpindi acquitted Rustam Ali and Abdul Razzaq accused by giving them the benefit of doubt but convicted Muhammad Nazir and Muhammad Bashir under section 302/34, P.P.C. on three counts and sentenced them to imprisonment- for life and to pay a fine of Rs.25,000 each or in default to undergo further R.I. for two years each. They were further directed to pay a compensation of ks.25,000 to the licirs of each deceased or in default to suffer further R.I. for six months each. For causing injuries to Muhammad Safdar P.W., they were convicted under section 324/34, P.P.C. and sentenced to three years' R.I. each plus a fine of Rs.3,000 each or in default to suffer three months' imprisonment. They were also ordered to pay Rs.2,000 as compensation to him or in default to further undergo two months' R.I. each. Under section 307/34, P.P.C. they were also awarded ten years' R.I. each and to pay a fine of Rs.10,000 each or in default to undergo six months' R.I. each Ior murderously assaulting Aurangzeb and Zahoor Ahmad P.Ws. They were further directed to pay a compensation of Rs.5,000 to them or in default to undergo three months' R.I. each. The sentences were ordered to run consecutively. Muhammad Nazir and Muhammad Bashir have appealed.

3. The State has riled Criminal Appeal No.149 of 1988 challenging the acquittal of Abdul Razzaq and Rustam Ali and for enhancement of the sentences of Muhammad Nazir and Muhammad Bashir appellants. Both the appeals shall be disposed of together by this judgment.

4. The prosecution case is that there was a thoroughfare on the eastern side of the village. Nazir and Abdul Razzaq accused had built their cattleshed by including some portion of the said thoroughfare. The complainant party had asked them to refrain from doing so but they did not listen. On the night of 26-5-1988, Abdul Ghafoor deceased while coming on a tractor-trolley, struck his trolley against the wall of the cattleshed of the accused causing boil, damage to it. On the following day at about 5-00 a.m., Abdul Razzaq (since acquitted) started giving abuses to the complainant party. V11.anityla Safdar P.W. 8 asked them not to call bad names to them which led to . exchange of abuses between them. In the meantime, Abdul Ghafoor deceased Zahoor, Adalat, Aurangzeb P.Ws. and Akram. deceased reached there. Abdul Razzaq appellant called out Nazir, Bashir and Rustam. accused. Both the parties started hurling stones at each other resulting in injuries to Zahoor P.W., Nazir and Bashir appellants. Thereafter, Nazir and Bashir went their house and brought out .12 bore guns. Abdul Razzaq took out a revolver from his Dub. Nazir appellant fired from his gun hitting the chest of Ghafoor deceased who fell injured. Abdul Razzaq accused fired from his gun hitting the neck of Baqar Khan father of Muhammad Safdar P.W. 1~-,hi appellant fired from his gun hitting the chest of Muhammad Akram decease On hearing fire-shots, Tariq Mahmood deceased came out of his house "I Muhammad Nazir appellant fired on his abdomen and right arm. Bashir, another shot hitting the chin of Haji Adalat P.W. Nazir appellant fired shot hitting the left are and right heel of Muhammad Safdar P,W. Bashir at Aurangzeb P.W. and injured him. Nazir also fired and injured Fiaz P Bashir a further shot hitting Zahoor Ahmad P.W. Rustarn ALI accused who was armed with a Soti inflicted a blow 'on Haji Adalat P.W., on his face. , Thereafter, all the accused proceeded to the house of Nazir accused and fired from there after intervals. Muhammad Safdar and Mushtaq P.Ws. took the Nur ! d Kallar Syeddan Hospital. Some of the injured were removed to District Headquarters Hospital, Rawalpindi. Muhammad Safdar P.W. was on way WE Police Station when he met the police party at Chowk Pindori where he got statement Exh. P.DD recorded.

5. After recording the statement of Muhammad Safdar P.W., Inspecion Khan Asadullah Khan P.W.14 left for the spot and arrested Muhammad Nazir A and Abdul Razzaq accused from the house of the former where they had confined themselves. Muhammad Nazir appellant produced his gun alongwith licence while Abdul Razzaq produced revolver P-15 alongwith to empties P.16/1-4. Both the weapons were separately sealed. He prepared the injury statements and inquest reports of Muhammad Akram, Abdul and.Tariq Mahmood deceased. He took into possession eight empties of .12 bore' P.19/1-8 vide memo Exh.P.M0M and sealed them. -tic abio sucured bioo - stained earth from near the dead bodies. He ptepared the site, plan all arrested Muhammad Bashir appellant on 28-6-1988. While in police custody- he led to his house and got recovered .12 bore gun P-17 alongwith its licence vide memo Exh.P.GG. He also took into possession his licensed revolver. He arrested Rustam Ali on 14-6-1988 after the cancellation of his pre-arrest bag from the Court of learned Additional Sessions Judge, Rawalpindi. Rustam A led to the recovery of stick P-18 vide memo Exh. P.SS. He prepared injury statement of Muhammad Nazir, Muhammad Bashir appellants and that Abdul Razzaq accused and after completing the investigation, challaned the accused.

6. Vilde report Exh. P.YY, examiner of firearms reported that four crime empties had been fired from the revolver of .32 bore gun alleged to have been recovered from Abdul Razzaq accused, four crime empties were found to have been fired from .12 bore gun alleged io have been recovered from Muhammad Bashir appellant while four crime empties had been fired from .12 bore gun alleged to have been recovered from Muhammad Nazir appellant.

7. Dr. Basharat Hussain P.W.4 conducted post-mortem. examination on the dead body of Abdul Ghafoor deceased (45) and found firearm injuries thereon. According to him, the injury received by Abdul Ghafoor deceased on chest had proved fatal. He had also conducted the post-mortem examination of Muhammad Akram deceased and found firearm wounds on the front of right side of chest below the right nipple. This had proved fatal. He also conducted autopsy on the dead body of Tariq Mahmood deceased and found firearm injuries thereon. In his opinion, the cause of death was injury No.1 which resulted in excessive bleeding in the pelvic cavity.

8. On 28-5-1988, he medically examined Abdul Razzaq accused and found injuries on his right leg and also found blunt weapon simple injuries on his right leg and chest. On the same day, he medically examined Muhammad Nazir appellant (55) and found two simple blunt weapon injuries on his person of the duration of 24 to 36 hours. 9. - Dr. Muhammad Shakeel P.W.5 examined Aurangzeb P.W. 9 and found four firearm injuries on his person. One of the injuries was declared grievous being on the vital part. He also examined Baqar Khan and Adalat Khan P.Ws. (not examined) and found firearm injuries on their persons.

10. He also medically examined Muhammad Safdar P.W. 'and found two firearm simple injuries on his person.

11. Firearm and blunt weapon injuries were found on the person of Zahoor Ahmad P.W.10 by him. Four of the injuries were declared grievous. He had also medically examined Muhammad Bashir appellant and found seven blunt weapon injuries on his' person. His 7th and 8th left side ribs were found fractured. One of the injuries was on the top of his skull.

12. The prosecution examined Muhammad Saldar P.W.8, Aurangzeb P.W.9 and Zahoor Ahmad P.W.10 as eye-Witnesses. Muhammad Yusuf P.W.13 was examined to. prove the recovery of crime empties from the spot. Muhammad Safdar P.W.8 and Khan Asadullah Khan Inspector P.W.14 testified to the recoveries of the weapons of offence from Muhammad Nazir and Muhammad Bashir appellants.

13. The accused denied the prosecution allegations. Giving his version., Muhammad Nazir stated as under:-- "About 4/5 years prior to the present occurrence, I constructed my house at my own place and my co-accused Abdul Razzaq and constructed our cattleshed also at our own place. Abdul Ghafoor, Muhammad Akrarn deceased and Muhammad Zahoor, Muhammad Mushtaq P.Ws. and Abdul Khan brother of Abdul Ghafoor deceased wanted to demolish my house forcibly alongwith the cattleshed of Abdul Razzaq my co-accused and wanted to encroach upon our land forcibly. Myself and my brother Muhammad Bashir filed a civil suit in the Court of Civil Judge, Kahuta,' for injunction where we prayed for interim injunction also. The learned Civil Judge was pleased to order the injunction. On 24-3-1988, the counsel for the defendants in that case made statement that they will not interfere illegally in the suit property, hence the suit was disposed of. The complainant party in this case, on 1-4-1988, encroached upon two marlas of our land and also demolished the corner of the cattleshed. Myself and my brother Bashir again filed a civil suit under order 21, Rule 32, C.P.C. We also filed an application for the appointment of a local commissioner to visit the spot and inform the Court about the damage, caused to the cattleshed. The learned Civil Judge, was pleased to appoint local commissioner and to submit the report to Court on 30-5-1988. Muhammad Mushtaq P.W. happened to be the Naib-Qasid of the same Court, he info med the defendants telling them that a report will be submitted to the Civil Judge, by the local commissioner. Abdul Ghafoor deceased in order to make it an accidental damage to the cattleshed, intentionally struck his tractor-trolley with the said cattle shed causing quite a loss, and in the meanwhile Abdul Razzaq and myself reached there. There was exchange of abuses and we threatened Abdul Ghafoor etc. to lodge a report against them. After this occurrence, we had come to know that because of this threat, they in connivance with Torabaz Khan (Retired S.I.) went to Raja Munawar DSP, at Rawalpindi and apprised him of the facts. He told them that they being Rajput are afraid of weapons, they should go aid kill one or two of us, and then he will see that the matter will be set right and that he was not in favour of trifling recommendations. On 27-5-1988, my brother Muhammad Bashir and Abdul Razzaq were present with me in the morning and we were having consultation to lodge the report at the police station, when all the three deceased persons alongwith Adalat, Baqar Khan, Zahoor, Fiaz, Aurangzeb and Zahoor PWs while Abdul Ghafoor deceased was armed with .12 bore carbine and the rest were armed with Sotis, entered our courtyard and raised a lalkara that they have come to teach us a lesson for filing civil suit and for the appointment of local commissioner and while saying so, deceased Abdul Ghafoor fired with .1-2 bore carbine hitting me on my left shoulder and Muhammad Akram gave me a soti blow. I ran inside the room and bolted the same from inside. The complainant party started belabouring Muhammad Bashir my brother and Abdul Razzaq in the courtyard with sticks. In the meanwhile- my real sister Ghulam Fatima beseached them and even she was beaten up. Upon this I had no alternative but to save my own life and the lives of Muhammad Bashir, Abdul Razzaq and Mst. Ghulam Fatima. I fired from inside the -room from the window. Abdul Ghafoor and Muhammad Akram fell down in my courtyard and the remaining persons took to heels. I opened the door and Abdul Razzaq and Ghulam Fatima came inside but Muhammad Bashir my brother ran away to the police station. The complainant party started firing and in order to dissuaded them, from coming near, I kept on firing in the air from inside the room with intervals, they went on the rooftop of my house and tried to dig the same in order to pour kerosene oil and set the house at fire, when in the meanwhile, the police arrived there and rescued us. Neither Razzaq, nor Bashir fired any shot upon anyone. I had produced my gun at the same time as well while the licensed gun and revolver of Bashir, my brother, had been taken along by the police on the very first day of occurrence. The local police acted under the advice and direction of Raja Munawar-DSP and concealed each and every fact disclosing the truth. We' were subjected to a naked and brutal aggression. What I did was necessary at the time of the occurrence in the given circumstances . I had filed a complaint against the complainant party giving the above mentioned facts and the complainant party has been summoned as accused under section 307/452/148/149, P.P.C." He produced the order Exh.P.DC passed in the complaint filed by him summoning Muhammad Safdar, Aurangzcb and Zahoor Ahmad P.Ws. and others on 1-10-1988 under sections 307, 452, P.P.C. He also produced the Medico-Legal Report Exh.P.DD of his sister Mst. Ghulam Fatima, certified copy of the injunction Exh.P.DF, statement of the counsel for the defendant dated 24-3-1988 Exh.DG and order of the Court Exh. DH and copy of the application Exh.DK for the appointment of local commissioner. 14, Muhammad Bashir and Rustam Ali also adopted the statement made by Muhammad Nazir appellant. Abdul Razzaq accused stated that he had been involved due to relationship with Muhammad Nazir etc. and advanced the same version as advanced by his co-accused.

15. On the application of Muhammad Nazir, the learned trial Court inspected the spot on 3-10-1988 and found pellet marks on the walls of the house of Muhammad Nazir accused. The left shutter of the door of his house was also found broken afresh. The top roof of his house was also found broken from two places. The cattleshed of the accused Nazir and Razzaq was found constructed near the street which was about 11 feet wide. According to this report, this place was at the distance of about 120 yards from the place wherefrom Akram and Tariq deceased were alleged to have been fired at. Abdul Ghafoor deceased was alleged to have been fired at from a distance of about fifty yards.

16. Relying on the ocular evidence, the learned trial Court convicted and sentenced Muhammad Nazir and Muhammad Bashir appellants, as described above. 17, it is argued by learned counsel for the appellants that it is an admitted position that the cattleshed in question had been constructed by the accused about 4/5 years prior to the present occurrence and that the complainant party wanted to remove it and that Muhammad Nazir and Muhammad Bashir had filed a suit for, injunction against the deceased persons and the prosecution witnesses to restrain them from demolishing the said cattleshed and obtained an injunction from the Civil Court on 6-3-1988. On 24-3-1988, the counsel for the complainant party made a statement that they would not interfere illegally and as a consequence thereof, the suit was disposed of. It is also an admitted position that Muhammad Nazir etc. had filed a fresh civil suit which was pending when the occurrence in question had taken place. The appellants had prayed the Court for the appointment of a local commissioner and before his visit to the spot, damage was caused to the cattleshed by the tractor of Abdul Ghafoor deceased. Muhammad Safdar P.W.8 has admitted in cross examination the construction of the cattleshed by the accused, filing of the civil suit by them and their obtaining injunction against them and disposal of the suit on their assurance that they would not interfere illegally. He also admitted the filing of fresh suit by the appellants against them and its pendency on the day of occurrence. 18, The filing of private complaint by the accused and the summoning of Muhammad Safdar, Aurangzeb, Zahoor Ahmad and the other P.W. also stand established by the documentary evidence produced by the appellants.

19. The complainant party has suppressed material circumstances. For instance, there is no mention in the F.I.R. of the firearm and blunt weapon injuries, suffered by Muhammad Bashir, Abdul Razzaq accused and Mst. Ghulam Fatima sister of Muhammad Nazir and Muhammad Bashir appellants. The injuries of Muhammad Bashir appellant were grievous in nature having fractured two of his ribs. The prosecution witnesses tried to make improvements on their previous statements by explaining the injuries of the accused persons. The ocular testimony furnishe d by Muhammad Safdar, Aurangzeb -and Zahoor Ahmad P.Ws. is contradicted by the medical evidence The blackening of the wounds shows that the deceased and the P.Ws were fired at from close range as against the version advanced by the prosecution witnesses. In the F.I.R., there is no mention of the presence of crime empties at the spot. On the other hand, they were picked up from the courtyard of the house of Muhammad Nazir appellant. The explanation, advanced by the P.Ws that the accused had suffered injuries as a result of the exchange of brickbats, is not supported by the medical evidence because they appear to have been caused by the sticks and not by brickbats. Moreover, firearm injuries found on the person of Muhammad Nazir appellant are not explained, at all, by them.

20. The learned trial Court did not properly discuss the version, put forth by the defence. It was its duty to have put both the versions in juxtaposition and tried to find out the true position. It appears that it was swayed by the number of injuries suffered by the complainant party, despite the fact that it has been held many a time that number of injuries is not criterion to determine the A aggressor.

21. The motive, set up by the prosecution is also not established. No Patwari or any other witness was examined to prove that the appellants had constructed cattleshed on a thoroughfare.

22. The defence version set up by Muhammad Nazir appellant is supported by the material on record. Khan Asadullah Khan Inspector (P.W.14) admitted that when he visited spot he found Muhammad Nazir and Abdul Razzaq accused to have bolted the door of the house of Muhammad Nazir from inside and that he had asked them to come out and that they had stated that they apprehended death at the hands of the complainant party and if he could assure them their safety, they would come out and on his giving the assurance, they opened the door and came out. The presence of pellet marks on the wall of the house of Muhammad Nazir appellant, the damage done to the roof of his house and noticed during the spot inspection by the learned trial Court lend corroboration to the defence plea. The presence of fire-arm and blunt 'weapon injuries on the appellants, their sister Mst. Ghulam, Fatima lends additional corroboration to their version. The filing of the complaint against the complainant party and their summoning to face trial by the llaqa Magistrate is another strong circumstance.

23. Having considered all the pros and cons of the case, we are of the view that the plea, advanced by Muhammad Nazir appellant of having acted in the exercise of private defence is reasonably possible. He cannot be denied the benefit of this right because three persons from the other side had lost their lives. The situation in which he was placed and after he and his companions had been injured, it was not possible for him to assess at which stage he should have stopped causing harm to his assailants. Thus, he could justifiably cause injuries to the deceased and the P.Ws while exercising his right of private defence.

24. For the foregoing reasons, We allow the appeal, set aside the conviction and sentence of the appellants and acquit them of the charges. They shall be released provided they are not required in any other case. As a consequence of the above finding, the State appeal for enhancement of the sentence of Muhammad Nazir and Muhammad Bashir appellants and for convicting Abdul Razzaq and Rustain Ali accused fails and is dismissed accordingly. N.H.O./M-1026/L Appeal allowed.