1984 P Cr (PLP)

(2) Swelling on the back of head 1" x 1" (3) A contusion, transverse in direction on the medial upper part of right forearm. (4) A scratch on the back of right index finger at middle phlanges. All the injuries were simple and freshly caused by blunt weapon. The medico-legal report is Exh. P. J.J.

13. Muhammad Ashiq P. W. 9 was then examined by the said doctor who found the following injuries on his person:- (1) An irregular contused wound on the left back of head 3' x "x scalp deep. (2) A linear contused wound on the top of head, oblique 2 " x "x scalp deep. (3) An abrasion on the base of left middle finger. The back of left palm was swollen. The second metacarpal appeared to have been broken. (4) An abrasion on the chin 1" long. (5) A contused wound on the back of head " x " x sclap deep. (6) Abrasions on both knees. Injuries Nos. 1, 2 and 5 were kept under observation. As regards injury No. 3, X-Ray was advised while injuries Nos. 4 and 6 were declared simple. All the injuries were freshly caused by blunt weapon. The medico -legal report is Exh. P. K. K.

14. Shaukat (given up P. W.) was also examined by the said doctor who found the following injury on his person:- A contused wound on the top of head, oblique 3" x " x scalp deep. The injury was kept under observation. It was freshly caused by blunt weapon. The medico-legal report is Exh. P. L. L.

15. Mst. Surraya Bibi P. W. 7 was examined by Lady Doctor Mrs. Fayyaz Parvez P. W. 14 who found the following injuries on her person:- (1) A penetrating wound, circular in shape, of " in diameter on the inner aspect of the left leg, in between the two joints of ankle and knee joint. The wound was " deep. (2) A penetrating wound on the outer aspect of the left leg, 5' above the left ankle joint. . The wound was circular, " and " deep. (3) Circular wounds on the inner aspect of the left ankle joint " in diameter. Injuries Nos. 1 and 2 were simple and injury No. 3 was grievous. In the X-Ray, metallic radio-opaque body was seen on the lower end of the tibia bone. Chip-fracture alongwith a crack fracture were seen on the lower end of the tibia. Duration of injuries was within two hours. The injuries were caused by fire-arm. Exh. P. V. is her medico-legal report.

16. On 27-5-1975 Muhammad Nawaz son of Jehan Khan, Rehmat Khan, Muhammad Aslam, Ali Muhammad and Muhammad Khan, accused, were arrested by Abdullah Khalid S. I., P. W..

15. Blood-stained clothes P. 6 to P. 17 of the said five accused were taken into possession vide recovery memos. Exhs. P.H., P. I., P. J., P. K. and P. L, respectively.

17. The same day Dr. Gulzar Ahmad D. W. 1 examined Rehmat Khan, accused, at 1100 p. m. and found the following injuries on his person:- (1) An abrasion ' x ' over the left side of forehead near the outer side of left eye-brow. (2) A contusion 3" x 2" over the right lower leg. Both the injuries were simple, sustained with blunt weapon and caused within the duration about twenty-four hours. Exh. D.F. is the correct carbon copy of the medico-legal report.

18. Thereafter, he examined Muhammad Khan, accused, and found following injuries on his person:- (1) An incised wound 1" x " x " over the left side of face from above downwards. (2) An incised wound 1" x " x " over the front of left hand. Both the injuries were simple, sustained by sharp-edged weapon within the duration of twenty-four hours. Exh. D.G. is the correct carbon copy of the medico-legal report.

19. Muhammad Nawaz son of Jehan Khan, accused was also examined. He had the following injuries on his person:- (1) A lacerated wound 2"x " x scalp deep at left side of head from before backward. (2) Swelling all over the left eye. (3) A contusion 2" x on the back of the left shoulder joint. All the injuries were simple, sustained with blunt weapon within the duration of about twenty-four hours. Exh. D.H. is the correct carbon copy of medico-legal report.

20. On 29-5-1975 Muhammad Bashir, accused, was arrested. The same day, Muhammad Aslam, Ali Muhammad, Muhammad Khan, Rehmat Khan and Muhammad Bashir, accused, led to the recoveries of Dangs P. 18, P. 19, P. 20, P. 21 and P. 22, which were taken into possession vide memos Exhs. P. M., P N., P. O., P. Q. and P. R. respectively in the presence of Bashir Ahmad P: W. 10, Abdullah Khalid S. I. P. W. 15 and Muhammad Ashiq (given up P. W.).

21. The same day at 9-00 p. m. Dr. Gulzar Ahmad D. W. 1 examined Muhammad Bashir, accused, and found the following injuries on his person:- (1) A lacerated wound 2" x " x scalp deep over the right side of head. (2) Swelling 2" x " over the left side of head. (3) A lacerated wound 1" x " x " over the right side of head just in front of ear. (4) An incised wound 1" x " x cutting the pinna through and through. (5) Swelling 2" x " over the left fore-arm. All the injuries were simple. Injury No. 4 was caused by a sharp- edged weapon and the rest with blunt weapon. Their duration was about three days. Exh. D.I. is the correct carbon copy of the medico-legal report

22. On 6-6-1975 Muhammad Nawaz son of Jehan Khan, accused, led to the recovery of gun P. 23, which was taken into possession vide memo. Exh. P.S. in the presence of Bashir Ahmad P.W. 10, Abdullah Khalid S. I. p. W. 15 and Muhammad Ashiq P. W. 9.

23. On 13-6-1975 Muhammad Yaqoob, Muhammad Akram and Muhammad Nawaz son of Nazar Muhammad, accused, were arrested.

24. On 18-6-1975 Muhammad Yaqoob and Muhammad Akram, accused, led to the recoveries of a Khamkhir P. 25 and a Dang P. 28 which were taken into possession vide recovery memos Exh. P. U. and P.G.G. res pectively in the presence of Rehmat Khan, Abdullah Khalid S. I. P. W. 15 and Manzoor Hussain (given up P. W.).

25. On 28-6-1975 Muhammad Nawaz son of. Nazar Muhammad, accused, led to the recovery of gun P. 24, which was taken into possession vide memo Exh. P.T. in the presence of Zaffar Ullah P. W. 11, Abdullah Khalid S.-I., P. W. 15 and Muhammad Ashiq P. W. 9.

26. After completing the investigation, the challan against all the accused, except Nazar Muhammad son of Hassan Muhammad, was sent up. The name of said Nazar Muhammad was, however, placed in column No. 2, but he was summoned to face the trial by the Sessions Judge. .

27. At the trial, the prosecution produced Manzoor Hussain P. W. 5 to prove the motive, the said witness and Muhammad Nawaz P. W. 6, Mst. Surraya P. W. 7, Muhammad Ashiq P. W. 9 and Sain Barkat P. W. 12 in proof of the ocular account, Bashir Ahmad P. W. 10, Zaffar Ullah P. W. 11 and Abdullah Khalid S. I. P. W. 15 in support of the recoveries and Dr. Mrs. Fayyaz Pervaiz P. W. 14 and Agha Zaffar Mirza, Head Dispenser P. W. 16 in corroboration of the medical testimony.

28. All the accused denied all the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance. Nazar Muhammad, accused, did not admit his participa tion, but the remaining accused admitted their participation in the occurrence, though in different circumstances. For the purpose of this judgment, it would be sufficient to refer to the version given by Muhammad Nawaz son of Nazar Muhammad, accused, which is the same as given by all others. His version is as follows:- "On the marriage ceremony of my co-accused Muhammad Aslam, the complainant party was not invited as we were not on good terms with them. They got annoyed. On the following day of his marriage, when his `Waleema' ceremony was taking place at our dera which is generally known as the dera of Yaqub accused, etc., recorded music was being played on the loud-speaker at the aforesaid dera and quite a large number of persons including guests from other villages were present. Muhammad Ashiq P.W. came there and asked us to stop playing music on the loud-speaker. We told him that he had no business to interfere particularly at the time when guests from other villages were present. He became unruly and we gave him some beating. He returned to his house and after some time he alongwith the P.Ws. except Sain Barkat P.W. and many other relations fully armed came to our dera and attacked us after hurling abuses. They injured four of my co-accused. We people also retaliated and it developed into a fight in which many persons including some of our guests participated. The complainant party was also armed with a gun. During the fight two persons Ghulam Rasool and Mst. Bashiran died as a result of fire arm injuries but no one knows at whose hands and the other P.Ws. suffered minor injuries."

29. In view of the occurrence being admitted, the learned trial Judge, after appraising the evidence, found that the incident appeared to have been triggered off by some petty quarrel which took place between Muhammad Ashiq P.W. 9, on one hand, and some members of the accused party, on the other, and that thereafter a free fight ensued, but giving them the benefit of the highest case made out in their favour, namely, that the complainant party was the aggressor, he acquitted eight accused on the ground that they had acted in the exercise of their right of private defence, but convicted Muhammad Nawaz son of Jehan Khan and Muhammad Nawaz son of Nazar Muhammad, accused, on the ground that they had no right of private defence of their persons to the extent of causing the death of Ghulam Rasool, deceased, and his wife Mst. Bashiran deceased, which act was intentional on their part. He accordingly, sentenced these two accused, as stated in para. 1 above.

30. We have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. The incident has been admitted by both the appellants, who are present before us. Their version of the case is that as recorded in para. 28 above. This version can straightaway be discarded on three short grounds alone. First, it cannot be denied that Muhammad Ashiq P.W. 9 had a criminal record and it is unimaginable that he would have gone alone to the dera of Muhammad Yaqub, acquitted accused, knowing full well that many persons were present there, to stop them from playing music on the loud-speaker, merely because he and his relations had not been invited to the Waleema reception relating to the marriage of Muhammad Aslam acquitted-accused. If he bad any such evil design, he would have taken a number of his companions with him. Second, had the said Muhammad Ashiq P. W. 9 been given a beating by the members of the appellant party, as alleged, and he returned to his house and thereafter came along with other prosecution witnesses, excepting Sain Barkat P.W. 12, all duly armed with weapons, including a gun, the greater injuries would have been suffered by the appellants party than what was found on Muhammad Nawaz son of Jehan Khan, appellant, and Rehmat Khan. Muhammad Bashir and Muhammad Khan, acquitted accused. If one of the members of the complainant party had had a gun, he would not have failed to fire, after Ghulam Rasool and Mst. Bashiran, deceased, had been mercilessly gunned down. In such an eventuality, a member of the complainant party having a gun would have even fired at the fag end, causing fire-arm injuries on some of the members of the appellant party; but no fire-arm injuries appear on any of them. Third and last, the suggestion that the complainant party was the aggressor is belied by the fact that injuries sustained by the two deceased and the five injured witnesses inflicted on them at some distance away from the Dera of Muhammad Yaqub, acquitted accused, where the alleged Waleema ceremony was taking place. Had the complainant party gone as aggressors to the Dera of Muhammad Yaqub, acquitted accused, the injuries would have been sustained by them at or around the Dera and not far away from that place. The defence version is, therefore, not true and was rightly rejected by the learned trial Judge and we have no reasons to differ from his finding given in that respect. This leaves us with the ocular account furnished by Manzoor Hussain P.W. 5, Muhammad Nawaz P.W. 6, Mst. Surraya P.W. 7, Muhammad Ashiq P.W. 9 and Sain Barkat P.W.

12. Manzoor Hussain P.W. 5 is the real brother and Muhammad Nawaz P.W. 6 is the cousin respectively of Ghulam Rasool, deceased, whilst Mst. Surraya P.W. 7 is the niece and Muhammad Ashiq P.W. 9 is the real brother of Muhammad Nawaz P.W. 6 Sain Barkat .P.W. 12, however, is a totally disinterested person. The ocular account given by these witnesses at the trial, which is somewhat consistent, is an improvement over the version submitted by Manzoor Hussain P.W. 5 in his F.I.R. Exh. P.E. However, the presence of injuries on four of the members of the appellant party is not properly explained, though it is suggested that Muhammad Ashiq P.W. 9 snatched a sota from the hand of Nazar Muhammad, acquitted accused, and caused injuries with it to as many as four members of the appellant party, which cannot be believed. There is some suppression and exaggera tion on the part of the prosecution witnesses. However, the fact remains, as admitted by Abdullah Khalid S.I. P.W. 15, that on the day of occurrence there was a Waleema ceremony of Muhammad Aslam. acquitted accused's marriage and, as admitted by both the appellants and seven acquitted accused, a fight took place that day near the Dera of Muhammad Yaqoob, acquitted accused. It is the case of the prosecution that Muhammad Ashiq P.W. 9 was first to be attacked by the appellants and the acquitted accused, whereas it is the case of the appellants that Muhammad Ashiq P.W. 9 had come to disrupt their music arrangement and, having become unruly, was given severe beating by them. Inferences which flow from the record and the surrounding circumstances clearly suggest that something untoward did initially erupted between Muhammad Ashiq P.W. 9, on the one hand, and some members of the appellant party, on the other, which led to a sudden fight, resulting to certain members of the complainant party, who were living nearby, rushing up in defence of Muhammad Ashiq P.W. 9 and certain members of the appellant party rushing up in defence of their companions. Since the appellant party, was larger in number, they had the advantage of strength. In the sudden fight, a Khamkhir (large metallic spoon used in cooking rice in degs) was also used by Muhammad Yaqoob, acquitted accused, in inflicting injuries on Ghulam Rasool, deceased. The complainant party was not the aggressor within the exact meaning of that legal term. Mst. Bashiran, deceased, had also run up on the alarm emanating from the spot. One or more members of the complainant party apparently had sharp-edged weapons, which account for two incised injuries on Muhammad Khan, acquitted accused, and one on Muhammad. Bashir, acquitted accused. However, all these injuries were simple. Even conceding that such of the members of the appellant, party who ran to the aid of their companions did so in the exercise of their right of defence, of their companions, neither the number of the members of the complainant party nor the weapons carried by them nor the manner of their sporadic approach, gave any apprehension to the two appellants to use their guns. However, they used their guns mercilessly and recklessly and shot and killed members of the complainant party both from a point blank range, As was done at Mst. Bashiran, deceased, and front various distances, as was done at Ghulam Rasool, deceased, Muhammad Nawaz P.W. 6 and Mst. Surraya P.W.

7. Mst. Bashiran, deceased, received a fire-arm injury which blew away a part of her skull and brain. This wag at point blank range. Ghulam Rasool, deceased, received six pellet injuries on his right shoulder and arm and right chest, two of which caused shock and haemorrhage resulting in his death. Five of the said six injuries were described by the doctor as "going in". This spread was from a shot fired from a near distance. Manzoor Hussain P. W. 5 received three pellet injuries between his neck and upper chest from side and one pellet injury on the back of his hand. A pellet was removed from the right shoulder. This spread apparently was received from a gunshot fired from some distance. Mst. Surraya P, W. 7 received three pellet injuries in between her left ankle joint and middle of left leg. The pellets hitting the lower end of the tibia had caused a chip and a crack fracture. A pellet was seen in the X-Ray. This spread also appeared to have been received from a gun shot fired from some distance. The site plan shows that the injured member of the complainant party fell at varying distances from Muhammad Yaqoob, acquitted-accused's Dera. It seems that the appellant party pursued the members of the complainant party when retaliating. Taking all circum stances into consideration, the action of the two appellants in firing at and killing Ghulam Rasool, deceased, and Mst. Bashiran, deceased, is wilful and intentional murder, which cannot be excused on any ground whatsoever, and no case of self-defence, at least where they are concerned, is made out. Muhammad Nawaz son of Nazar Muhammad, appellant, is the real brother of Muhammad Aslam, acquitted-accused, whose Waleema was being celebrated that day, which accounts for the fact why he acted in this brutal manner. Taking all circumstances into considera tion, the appellants appear to have been properly convicted and sentenced.

31. For the foregoing reasons, there is no merit in this appeal, which is dismissed. The death sentences of both the appellants, are hereby confirmed.

32. There being no merit in the private revision (Cr. R. 563/79) filed by Manzoor Hussain P. W. 5, the same is dismissed in limine. S. G. D. Death sentence confirmed.