1992 PLP 2037 (SCMR)

3. On the 30th of December, 1990 at about 3‑00 p.m. Manzoor appeared at the shop of Abdul Rahman (P.W.6) riding a mare. He was in the company of seven others, all riding four mares, two on each mare. Manzoor and Ikram were on one mare, Ahma and an unidentified person on another, Maula Dad and Allah Ditta son of Jehangir on third, Allah Ditta son of Hamaon and Aman on the fourth. Manzoor had a 7mm rifle. So had Ahma. Ikram had .12 bore gun and Allah Ditta son of Jehangir, Allah Ditta son of Hamaon, Aman and Maula Dad had also .12 bore guns. Seeing their aggressive designs, Abdur Rahman (P.W.6) went through the back door of his shop to his own house which is adjacent, brought out a rifle and took cover. In the meantime the' others present on the shop ‑‑ Bashir Ahmad (P.W.7), Ikram and Sharif (not produced) and many others in the neighbourhood raised an alaram against the accused which attracted a large number of villagers to the spot; a mosque was close by. It was time for Asar prayers. Faced with this situation, Manzoor appellant/convict fired the first shot hitting Nazir in the chest. The second shot was fired by Ikram hitting the mouth and head of Nematullah. Ahma fired the third shot hitting Rehmatullah. There was thereafter a general firing by all the accused persons. All the accused managed to escape towards the east. In the occurrence, Nazir, Nematullah and Rehmatullah were fatally injured and died of the injuries. Four others ‑‑ Abdul Wahab (P.W.8), Yasin (P.W.9), Barkat Ali (P.W.12) and Saleemullah (P.W.13) were injured and appeared at the trial to state about the occurrence. Three others injured ‑‑ Amin Ali Zafar, Shan Ali and Tariq were not produced at the trial.

4. Taj Din Inspector the then S.H.O. Police Station Choochak, District Okara (P.W.17) had left the Police Station at 1‑00 p.m. with Police strength for patrol duty. He was in village Joyia when he was informed about the firing that had taken place in village Jandhraka. He immediately rushed to the spot. He first of all recorded the statement of Abdur Rahman. Having learnt that the accused had gone towards Pattan with a view to cross the river and to enter their own village in District Sheikhupura, he with his police party followed their path. Reaching the bank of the river, he saw that the accused ‑‑ six or seven of them alongwith four mares were being taken across the river in a boat which had already gone about two acres from the bank. He called out at the accused to stop. The accused started firing. The police party also fired. One of the mares after being injured fell in the river. The accused party was successful in crossing the river. They left the injured horses on the bank and disappeared in Sarkandas ahead. He left the mares in charge of Ghulam Muhammad S.I. and returned to the spot and carried out the preliminary examination after dispatching the report of the case. The dead body of Nazir was lying and of Nematullah was brought to the spot who while being taken. to the hospital died on the way. He prepared the necessary injury sheets and inquest reports. Rehmatullah injured died in the hospital on 31‑12‑1990.

5. On 5‑3‑1991, Manzoor, Ikram, Ahma, Allah Ditta son of Jehangir, and Aman accused were arrested from Pattan Pir Ali Ikram was carrying .12 bore gun (P.1), Manzoor and Ahma 7mm rifles, Allah Ditta and Aman had pistols and these were taken into possession. Allah Ditta son of Hamaon was arrested on 6‑3‑1991 and Maula Dad could be arrested on 27‑5‑1991.

6. Dr. Mirza Nasarullah Beg (P.W.2) examined the injuries of the injured persons. The injuries found were mostly of fire‑arm. In the case of Amin Ali Zafar and Wahab, there was blackening at the entry wounds. Dr. Ishtiaq Ali (P.W:18) performed autopsy on Nazir and Nematullah and Dr. Abid Karim (P.W.19) performed autopsy on Rehmatulah. They had also fire arm injuries. Dr. Ijaz Hussain, Radiologist (P.W.1) ex‑rayed the injured and found the right orbit bone of right eye and pituitary fractured of Salimullah but not in the case of Wahab. There was no fracture in the case .of Tariq Parvez, Amin Ali War and Barkat Ali.

7. The three mares were examined by Bashir Ahmad veterinary doctor (C.W.1) for their injuries. He found 68 gunshot wounds on one of the mares. The second mare had only one injury measuring 3 inch x 1‑1/2 inches on the left front knee joint. The leg bone was broken. The third mare had six gunshot wounds one of which was considered to be caused by bullet.

8. Manzoor appellant denied his presence or participation in the occurrence or the recoveries at his instance as did the other appellants. Manzoor attributed a false case against him for the reason that a buffalo of his maternal‑cousin was stolen and case was registered against one Aslam Ranseen of P.S. Chuchak. He was a witness in that case and for that reason he was falsely implicated in this case. Ahma claimed to be a tenant of Ikram and to have been falsely implicated.

9. The trial Court recorded the following conclusions of fact and law after appraising the evidence led at the trial:‑‑

"(i) Over the motive as given by Abdul Rehman complainant, Manzoor accused alongwith his companions reached the village to avenge the insult on horses back. He had no intention to commit his murder or attempt the murder. Even no violence was meant by him, that is why, no firing was done at him or towards his premises ................................... .............. When Manzoor accused alongwith his companions reached the shop of the complainant to insult him not intending to murder or even attempt violence at him, otherwise there would have been firing towards his premises, the complainant either himself slipped to the mosque or got an announcement made on the loudspeaker of the mosque attracting the villagers in general. (ii) The culprits had, therefore, no alternative but to push and force their way to the West to the river. The occurrence being of broad daylight, the most probable thing is that the villagers in large number were attracted in the street and finding them in very precarious and difficult situation, the culprits forced their way in the street towards the West. It was in that situation that firing was resorted to by them causing the injuries to the three deceased and the injured witnesses ........................ Manzoor accused and his companions to extricate themselves and to force their way out, resorted to firing. All the ruing by the accused can be visualized not in the streets but in the outskirts as well up to the river bank. (iii) As per the statement of Zawar Ahmad A.S.I. (P.W.11) 145 shots were fired from the service rifles by the Constables and 105 shots (rounds) by a Constable from a sten gun. This was in addition to that of the Investigator and his accompanying Sub‑Inspectors and A.S.I. who fired from their service revolvers. (iv) One of the eye‑witnesses is truthful and I see no reason not to place reliance upon him. He is Barkat Ali (P.W.12). His statement has been detailed and analysed above. (v) The investigation seems to have been if not dishonest, extremely inefficient and careless."

10. Mr. Asif Saeed Khan Khosa, Advocate the learned counsel for the convicts/accused contended that‑‑ "(1) on the finding of fact and law recorded by the trial Court no case of Qatl‑i‑amd inviting the punishment of death by way of Qisas was made out. It was on its own finding a case of self‑defence recognised even in Muhammadan Law as a good defence. (2) the type of witnesses required and the test required to be undertaken by such witnesses for proving Qatl‑i‑amd liable to Qisas was not available in the case. None of the injured witnesses had named their assailants and three of the injured had not appeared as witnesses. In the absence of positive testimony linking the actual perpetrator of the crime with the injury caused no punishment und& Islamic law could be awarded. (3) the investigation having been held .to be dishonest, there was no corroborative material to sustain the conviction of the appellants. (4) the evidence with regard to unknown dacoits having come and raided the village being available on the record and Umari being accepted as a real culprit who was killed in encounter, there was no occasion to substitute on such evidence the appellants for the dacoits. (5) the medical evidence is inconsistent with the ocular evidence as the injuries were not caused from a higher level (horseback). (6) Barkat Ali has alone been taken by the trial Court to be a truthful witness. His statement only establishes the presence of the convicts but not their participation in the crime."

11. The trial Court having come to the conclusion that Manzoor and his companions had come on horseback, two persons riding each horse and armed with fire‑arms in order to avenge the insult at the hands of Abdur Rahman it could not at all be held that they had no aggressive designs, that they had approached for a peaceful purpose or that they were not at fault. There is inconsistency in the two parts of the conclusions drawn by the trial Court. This conclusion has been drawn by the trial Court from the fact that no firing at Abdur Rahman or his shop took place. None at all. Abdur Rahman had gone to his house, emerged with a rifle and had taken precautions not to expose himself. In. the meantime, there was an alarm that the appellants and their companions had come there with hostile intention. They were thereafter involved in an altogether different situation not in their anticipation. This alone accounts for the fact that Abdur Rahman and his shop were spared. It is true that the right of self‑defence is available under Islamic Law but it is also established law that the plea of self‑defence is not available to an aggressor. The law on the subject was correctly laid down in Kirpal Singh v. The State AIR 1951 Punjab 137 in the following words:‑‑ "It is an accepted proposition of law that a person cannot avail himself of the plea of self‑defence in a case of homicide when he was himself the aggressor and wilfully brought on himself, without legal excuse, the necessity for the killing. It would be strange indeed if a, person who provokes an attack, brings on a combat and then slays his assailant were to take shelter behind the plea of self‑defence in justification of the blow which he struck during the encounter:" This view was reiterated in Dhanno Khan v. The State AIR 1957 All. 317 in the following words:‑‑ "The law does not confer a right of self‑defence on a man who goes and seeks an attack on himself by his own threatened attack on another an attack which was likely to end in the death of that other. The right of self‑defence conferred by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify the exercise of such a right." This view was again reiterated in Raising Mohmia v. The State of Gujarat AIR 1962 Gujarat 203 in the following words:‑‑-- "The right of self‑defence is not dependent on the actual criminality of the person resisted; it depends solely on the wrongful, or apparently wrongful, character of the act attempted. If the apprehension is real and reasonable, it makes no difference that it is mistaken."

12. The trial Court committed an error in taking the access of the appellants and their companions to the shop of Abdur Rahman to be innocent and their act of firing as an attempt to extricate themselves from a difficult situation. Keeping in view the purpose for which they had come, the manner in which they had come, the company in which they had come and the arms which they had equipped themselves left no manner of doubt that their arrival was not innocent. The alarm raised by those present did attract others and in order to extricate themselves they had no right to fire.

13. As regards it being a case of Qatl‑i‑amd liable to death by Qisas, the requirement of the Islamic Law is that the witnesses must stand the test of Tazkiya‑tul‑Shahood and the importance of it has been emphasised in Sanaullah v. The State PLD 1991 Federal Shariat Court 186, in the following words:‑‑ "Tazkiya‑tul‑Shahood is obligatory in cases punishable with Hadd and Qisas, even. if the competency of a witness is not challenged by the Mashhood alaih. : I0n the case of Ghulam Ali v. The State PLD 1986 SC 741 it was held that where proper Tazkiya‑tul‑Shahood was not done of an eye‑witness, the conviction under Islamic Law could not be sustained. In the present case this requirement having not been satisfied, the conviction under injunctions of Islam could not be awarded.

14. As regards the factual aspect of the case, it has been contended that Abdur Rahinan had other gainful business and he was not dealing with Milk supply at all. The very fact that he had other business enabled him to have, like a good businessman, the supplemental business of the supply of milk as an intermediary contributing capital to the enterprise and providing the link between supplier and the industrialist. There is nothing to doubt his engagement in such a lucrative activity and also his having advanced the loan and dispute having taken place over it.

15. It is true that the investigation has not been conducted with the required thoroughness, nor did all the injured witnesses come forward, nor any witness was able to describe the entire occurrence in its entirety. All the same, this is bound to happen where canvass is so large, the involvement of persons is so extensive and the active participation on the two sides is not confined to a few. There was no motive on the part of Abdur Rahman to falsely implicate the convicts. In evaluating the evidence the trial Court has by way of abundant caution eliminated some of the companions of the appellants but that has been done to arrive at the hard core of persons about whom consistent evidence existed that they were present and participating in the occurrence. It is also correct that Barkat Ali had not attributed any role to these convicts but his evidence is corroborative of the fact that in fact these appellants were present in the occurrence, the extent of their participation as well as manner of it having been described by witnesses who were more vigilant, close, and were present from the very beginning of the occurrence.

16. Now, in criminal trials when the parties have a right to institute proceedings and to compound it, it is their statements which have the primary importance. The investigator is relegated to a secondary position. If the injured persons do not meaningfully implicate a person, then, notwithstanding the superior quality of investigation, the prosecution case cannot succeed. Similarly, if the eye‑witnesses are creditworthy to the extent they are believed, then the defect or the shortcomings of the investigation would not stand in the way. The legal aspect "of this question has been dealt with by us in detail in Asghar Ali alias Sabah and others v. The State Criminal Appeal No.34/SAC/L of 1992 decided by this appellate Court.

17. From the statement of Zawar Ahmad (P.W.11)/A.S.I., it appears extensive firing had been, done by the Police party as well and they had come after the main occurrence was over and they were engaged in hot pursuit. They could accomplish only the injuries to the mares and nothing more. Even the mares had gunshot injuries which would negate their being all caused by the Police party. Alarm of dacoits did not necessarily exclude the presence of the appellants, for those who did not know the background, the appellants could have the character of dacoits in view of their weapons, their number, their aggressive design and their manifest hostility. To some villagers they could be known because they were residents of neighbouring village across the river and Manzoor had been earlier, according to all evidence, supplying milk in this area.

18. The level of the injuries as ascertained from the medical opinion is not destructive of the ocular evidence with regard to the actual firing done by the accused/appellants. Such expert opinion cannot prevail over the reliable ocular evidence as held in Yaqoob Shah v. The State PLD 1976 SC 53.

19. In Asghar Ali alias Sabah's case (Criminal Appeal No.34/SAC/L of 1992) it has been held that under the injunctions of Islam the injured person has to come forward and charge someone for his injury. In his absence, without satisfactory reasons, others cannot make up for his non‑appearance. His non appearance can be legally excused only if there is good and satisfactory reason. Under the present law it is possible that one may waive the right of Qisas forgiving the culprit and in either case his conduct after doing so would be not to appear at the trial to make, a statement against the culprit. In the circumstances, under the Islamic Law punishment could not be awarded for the injuries of those injured who did not appear at the trial nor accounted for their absence satisfactorily. Similarly, under Qisas law the conviction and sentence could not be awarded for the injured who appeared at the trial but were not able to name their assailants. In the present case all the injured were unable to name their assailants. Such a situation should have been dealt with under Ta'zir.

20. In the circumstances, the conviction of the appellants should have taken place under section 302(b) of the Pakistan Penal Code read with section

34. Similarly, the conviction of the appellants in respect of the injuries to the witnesses who appeared to state about their injuries should have taken place under second part of section 324/34, P.P.C. As regards the sentence for these offences, we find that the trial Court had come to the conclusion that they had come to the shop of Abdur Rahman in order to disgrace and to insult him not to do any more violence. It was evidently a hostile act. Whether they had the intention to fire at and kill someone in the process may be doubtful. Nevertheless, when they were taken to be hostile group, which they were, and they did not clear their position and instead fired extensively and caused the death of three persons and injuries to so many others, the criminality of their act was established. In such a situation, may be the extreme penalty of death is not called for. On their part, there was restraint in opening the fire. Against persons killed and injured there was no animus. Whatever animus existed was against Abdur Rahman and even on seeing him and encountering him in spite of having weapons with them, they did not react violently immediately.' These factors and such a conduct acts as a mitigation. In this background, we maintain the conviction of the appellants under section 302, P.P:C. but it shall be under clause (b), and do not confirm the death sentence by way of Qisas but convert it into life imprisonment on three counts to be undergone concurrently. Where an offender is punished with death by way of Qisas, no further punishment under section 544‑A of the Criminal Procedure Code can be added to it, under the, injunctions of Islam, because such compensation or payment is due only under a compromise or by way of Arsh, Daman etc. It will be contrary to the injunctions of Islam to enhance the Islamic punishment by such additions. However, in case the offence is being reduced from one of Qisas to Ta'zir, section 544‑A of the Criminal Procedure Code will get attracted. Hence, each of the appellants/convicts is fined Rs.25,000 on each count, which on recovery shall be paid in its entirety as compensation to the heirs of the deceased. In default, they shall undergo two years' R.I. each on each count.

21. As regards the four injured witnesses who have appeared at the trial to state about their injuries, the conviction of the appellants under section 324/34, P.P.C. on four counts is maintained and also the sentence but with the additional order under section 544‑A of the Criminal Procedure Code. The injured be compensated from the fine of Rs.10,000 recoverable from each of the accused, on each count. In default of the payment of fine, the convicts shall undergo R.I. for one year, on each count. The sentences awarded under section 302(b) and 324, P.P.C. shall run concurrently. The appellants shall also have the statutory benefit of section 382‑B of the Criminal Procedure Code to the extent admissible to them.

22. The appeal of the convicts is allowed to the extent of the modification just indicated in paragraphs 20 and 21.

23. As regards the State appeal, the grievance with regard to non observance of requirement of section 544‑A of the Criminal Procedure Code has been explained and on modification of conviction and sentence appropriately applied and observed. As regards the acquittal of the other co -accused of the appellants, we find that the trial Court has in appraising the evidence adopted the well‑recognized principles for safe administration of Criminal justice inasmuch as the benefit of reasonable doubt has been extended to them. Hence, State appeal is dismissed. N.H.Q./54/SAC Order accordingly.