P L D 1960 Supreme Court (Pak (PLP)

deceased came out of Niaz Muhammad's autak. The two policemen asked Sabzali to surrender Ali Gohar. The deceased told them that they had left Ali Gohar with the policemen and he had not come home. Ali Nawaz began abusing Sabzali who protested. On this, Ali Nawaz was said to have attacked him with his hatchet. Sabzali averted the blow, grappled with Ali Nawaz and felled him to the ground. This struggle was going on when Feroz Khan and Ahmad Shah also arrived at the scene. On the instigation of Feroz Khan, Sachal fired at Sabzali from a close range. The latter fell down and died. Just before the A. S. I's inciting words were uttered, Sabzali had released Ali Nawaz from his grip. As soon as Sabzali fell down, Ali Nawaz struck him two blows with his hatchet.' Ahmad Shah also started firing with his rifle. Umar, who had been attracted to the scene, was injured and fell down in consequence. Niaz Muhammad and Ali Gohar, heard the tumult and came to the spot. At this moment, the policemen left the scene of offence and went back to the autak of Shafi Muhammad. They then departed from the village. Niaz Muhammad had the dead body of his son carried to the hospital at W arch. He then went to the police station to lodge his report. Ghulam Muhammad, Head Constable, took this thumb-mark on a paper, but whatever report was recorded was not read over to him. The old man was kept in police custody for a fortnight and ultimately released. On the day following his release, he lodged a complaint with the District Magistrate, Larkana, on which the accused persons were summoned and proceedings started against them. On the night of the occurrence itself, at 4 a.m. a report had been recorded, at the instance of Ali Nawaz, at the police station, in which a different version was given. After setting out that the police party had gone to village Adho Lashari to investigate the report of Shafi Muhammad, it was stated that the suspects were called in that case, including Ali Gohar, son of Niaz Muhammad. It was alleged that Ali Gohar confessed his guilt before nekmards and subsequently to the A. S. I. and he was therefore, detained in custody, under the charge of Ali Nawaz. At 11-30 p.m. Ali Gohar, slipped away. Ali Nawaz followed him raising cries, in order to catch him.He had left his Government rifle behind while issuing out in haste. At a distance of about 150 paces, he overtook Ali Gohar who grappled with him. The alarm raised by Ali Gohar brought 12 persons, including Sabzali deceased, Niaz Muhammad his father, and others to the spot. Shabzali and Ghulam Shah out of them carried guns and the rest were armed with hatchets and lathis. Nawaz Muhammad incited his companions to attack the policemen on the ground that they had caught their man without just cause. The companions of Niaz Muhammad, except for Sabazali and Ghulam Shah, started attacking Ali Nawaz with their weapons. Ahmad Shah warned those persons not to assault a policeman. Sabazali and Ghulam Shah began firing their guns and Sabazali's shot actually hit Ali Nawaz on the left leg. Ahmad Shah who had his Government rifle, at this juncture, fired in mounted constable, also arrived there. The villagers then retired. In the report it was said that Ali Nawaz had no knowledge whether Ahmad Shah's shot had hit any person or not. The story, as given in Ali Nawaz's report, was adhered to by the accused persons at the trial. No attempt was, however, made to substantiate it by calling any evidence in defence. The autopsy on the dead body of Sabzali revealed a circular gunshot wound on the right intercostal arch, 1J" in diameter and through it the peritoneum had pretruded. He also had an incised wound on the right side of the face from the nose to the neck, under which the skin muscles and bones of the right maxilla and mandible bone were found cut and another incised wound on the left side of the neck, measuring 5" x 1" x 3/4",, beside an abrasion. The seventh to ninth ribs on the right side of the chest were fractured, the stomach was ruptured, liver smashed and spleen punctured at several places under the first wound. Two pellets were removed from the spleen. The doctor was of the opinion that the first injury was caused by a gunshot and the incised injuries with a sharp-edged weapon like a hatchet. He further expressed the view that the man must have died instantaneously on receiving the gunshot wound and that the incised wounds were post-mortem as there was no bleeding from them. Umar P. W. on examination, was found to bear a gunshot wound 3/4" x 1 /4", muscle deep on the left ear. The same doctor also examined Ali Nawaz accused and found some 16 injuries on his person, which included some contusions of a considerable size, four contused wounds on the head and two contused lacerated wounds on the left thigh and the right buttock. This accused was further examined by another doctor who confirmed the result of this earlier examination. Apparently no gunshot injury was discovered on the person of Ali Nawaz. The injuries of Ali Nawaz could have been caused with a blunt weapon, like a lathi. Ocular evidence of what took place at the time that Sabzali was shot dead, was given at the trial by Muhammad Siddiq (P. W. 6), Abdullah (P. W. 7), Muhammad Saleh (P. W. 8) and Umar (P. W. 9). They fully supported the prosecution story and their testimony was accepted as trustworthy by both the Courts below. The trial Judge as well as the High Court further found that the story of Ali Gohar being detained in a theft case was a fabrication and that he had been illegally detained by the police when he and his father refused to give mehmani to them. The evidence of motive was furnished by Shafi Muhammad (P. W. 3), Ali Gohar (P. W. 4) and Niaz Muhammad (P. W. 5). Their statements were regarded as providing enough corroboration of the eyewitnesses' account. It appears that the police had started a counter-case against Niaz Muhammad and others on the report of Ali Nawaz, but the suggestion that the P. Ws. in the present case had deposed falsely in order to meet the counter-case was rejected as untenable, by both the Courts below. The plea of self-defence taken by the accused persons was also negatived. It appears that the trial Judge had doubted the statement of the debtor that the incised injuries found on the person of Sabzali Agree with this oPinion of the trial Judge and held that there was no divergence between the testimony of the doctor and the evidence of the eyewitnesses. The learne9 Judges accepted the doctor's statement that Sabzali must have died on receipt of the gunshot injury an,i that the hatchet injuries caused to him by Ali Nawaz were, tire-efore, legitimately described as post-mortem injuries. It was obs,rved at the same brae that u;ey were unable to under stand why the trial Judge has acquitted Feroz Khan of the charge under secJon 302 read with section 109, Pakistan Penal Code in respect of Sabzali's murder and had convicted him instead under section 326 read with section 109, Pakistan Penal Code. The learned Judges pointed out that the judgment of the trial Court was inconsistent, on this point in the face of the finding that Sabzzli had been fired at by Sachal at the instigation of Feroz Khan. As, however, the acquittal of Feroz Khan on the murder charge had not been challenged on behalf of the State by on appeal, the learned Judges felt they were helpless in the matter ar:d contented themselves by dismissing the appeal of Feroz Khan The first question that arises for consideration is whether Ali Gohar's detention by the police was referable to his position as a suspect in the theft case or represented an act of high-handedness on the part of the accused persons. After going through the evidence on the record, we have no hesitation in agreeing with the concurrent finding of the Courts below that there was no legitimate ground for treating Ali Gohar as a suspect in the case and that t he allegations of the prosecution witnesses as regards the circumstances of his detention were substantially correct. In this connection, it is significant that the police did not take any action against Ali Goliar after they had departed from the village. The report made at the police station by Shafi Muhammad clearly militates against Ali Gol, ar being one of the four persons who had visited his house for the purpose of theft. Shafi Muhammad had explicitly recited in his report that they had not identified the culprits bwt had seen their faces and would be able to recognise them if they came across them again.This would obviously rule out Ali Geohar, who is a fellow-villager of Shafi Muhammad and well knowu to him. The evidence given by Shad Muhammad also bears out the version of Niaz Muhammad and his son Ali Gohar anal beyond the fact that he was also a Lashari like Niaz Muhammad, there is nothing on the record to show that he was in any way connected with the complainants' party. He would have been the last man to favour the complainants' party as against the police who had come to investigate his theft report. There is thus no escape from the conclusion that the detention of Ali Gohar by the police amounted to his illegal confinement and even if he ;slipped a',very from that custody the police had absolutely no right to pursue him in order to catch hold of him. If any one of them did so, was resisted and then resorted to violence to meet that resistance, the plea of self-defence would not be available to him in the circumstances. We next come to the details of the transaction in which Sabzali lost his life. At the initial stage, it was unanimously stated by tithe P. Ws. that only Ali Nawaz and Sachal, out of the policemen, confronted Sabzali and others. We have also no reason to doubt that Sachal had armed himself with the gun which Muhammad Siddiq Chowkidar had with him in connection- with his watch and ward duty. Shafi Muhammad had deposed that when the police were leaving the village, he had taken the gun from them and later returned it to Muhammad Siddiq. The injuries to Ali Nawaz are attempted to be explained by the P. Ws. by the allegation of grappling that Sabzali had with him. We are not satisfied that this was a wholly true expianation. The nature of some of Ali Nawaz's injuries would seem to suggest that he had received a beating with some weapon like a lathi. To this extent, the eyewitnesses' statements appear to have minimised the part played by Sabzali and his companions. Muhammad Siddiq is a cousin of Niaz Muhammad, while Abdullah, Muhammad Saleh and Umar are all his nephews. It is not, therefore, unlikely that they might have been persuaded to water down their statements as regards the attack on Ali Nawdz by Sabzali. It stands to reason that Sabzali must have been incensed by the unreasonable conduct of Ali Nawaz. The latter might even have tried to roughly handle Sabzali while asking him to produce leis brother, Ali Gohar, and thus invited trouble for himself. The complainants' party probably, did not want to own up that Ali Nawaz had been hit with a lathi or any such weapon because of a motion that they might have to s:rffer for attacking a policeman. Despite this infirmity in the evidence of the P. Ws., we see no rea,on to doubt that it was Sachal who fired at Sabzali and killed itim at the spot. If Sabzali had been injured with shots fired by Ahmad Shah, as the defence story tried to make out, there is no reason why tire P. Ws. should have substituted Ahmad Shah by S