P L D 1967 Lahore 572 (PLP)

ABDUL GHANI KHATTAK, J.‑(1) Muhammad Shafi, aged 30 years, (2) Muhammad Sharif alias Jatta, aged 28 years, and (3) Karam Bakhsh, aged 32 years, sons of Bassa, (4) Muhammad Sadiq alias Bhola, aged 22 years, son of Imam Bakhsh, (5) Imam Bakhsh, aged 55 years, son of Bassa, (6) Elahi Bakhsh, aged 52 years, son of Bassa, and (7) Muhammad Shafi, aged 45 years, son of Ranjha, were tried under sections 302/307/454/323/118/149, P. P. C. and by his order of 31st March 1965, the learned Addi tional Sessions Judge, Lahore, acquitted Elabi Bakhsh, Imam Bakhsh and Shafi, son of Ranjha of all the charges. By the same order Muhammad Sadiq alias Bhola, Sharif alias Jatta, Shafi, son of Bassa and Karam Bakhsh were convicted under section 302/34, P. P. C. for the murders of Buta and Rashid alias Kala, deceased. Muhammad Sadiq alias Bhola was sentenced to death while the remaining three were sentenced to five years' R. 1. each. All the four appellants were further convicted and sentenced under section 307/34, P. P. C. to three years' R. I. each for having attempted at the lives of Muhammad Ali and Mst. Natho P. Ws. Each of them was also convicted under section 452, P. P. C. for having trespassed into the residential house of the complainant and sentenced to one year's R. I. each, and lastly they were convicted under section 323/34, P. P. C. and sentenced to six months' R. I. each for causing simple injuries to Rehmat and Latif P. Ws. The sentences were ordered to run concurrently and in the case of Bhola the sentences of imprisonment were ordered to take effect if the death sentence is not confirmed by this Court. The convicts and the condemned person have appealed against their convictions and sentences. There is a revision petition for the enhancement of the sentences of Karam Bakhsh, Muhammad Sharif alias Jatta and Muhammad Shafi sons of Bassa, who have been sentenced to five years' R. I. under the charge of section 302/34, P. P. C. The reference for the confirmation of death sentence of Muhammad Sadiq alias Bhola is also before us. This judgment will dispose of the appeal, the reference and the revisions petition.

2. The occurrence took place on the 3rd of November 1963, at 7 p. m. in Baghbanpura, two furlongs from the police station. The F. I. R. Exh. P. L. was made to Fazal Abroad, S. I. (P. W. 22) who was on patrol duty, at 7‑30 p. m. by Muhammad Bashir, son of Salabi Bakhsh (P. W. 19). Formal report Exh. P. L./1 was drawn up at 8 p. m. by Barkat Ali M. H. C. (P. W. 7) in the police station.

3. Briefly stated the prosecution case is : At about 7 p. m. Rehmat (P. W. 17) was coming frown the house of his maternal Uncle. At the shop of Lal 'kulchewala' situate in Bazar Huq Nawaz Road, Muhammad Sharif alias Jatta and his brother Shafi, appellants, were sitting who accosted Rehmat to have been coming from the house of eunuchs. This led to an exchange of abused between them. Latif and Muhammad Bashir P. Ws. sons of Mst. Natho P. W. who happened to be closely reached there. They effected separation and started to their house along with Rehmat. Buta, deceased, father of Rehmat had also reached there who was being apprised of the matter, that in the meanwhile Imam Bakhsh, Karam Bakhsh, Sharif alias Jatta, Elahi Bakhsh, Muhammad Shafi son of Bassa, Muhammad Sadiq alias Bhola son of Imam Bakhsh, and Muhammad Shafi son of Ranjha carne there armed with different weapons. Muhammad Sharif alias Jatta had a dagger, Muhammad Sadiq had a revolver and the rest were armed with dangs. In Sam Bakhsh and Elahi Bakhsh exhorted to attack the complainants. Muhammad Sadiq alias Bhola opened the attack with fire shot which hit Muhammad Ali (P. W. 14), a passerby. All the witnesses ran to their house. They were followed by the assailants to their house. Muhammad Sadiq fired at Buta which hit him at his chest. He fired another shot at Abdur Rashid which hit him in the belly. Mst. Natho (P. W. 15), mother of Muhammad Bashir and Muhammad Latif P. Ws. tried to cover Buta, her brother. Sharif alias Jatta gave her dagger blow and injured her. Muhammad Latif (P. W. 13) was also injured with dagger blow by sharif. Latif and Rehmat, sons of Buta were injured by Muhammad Shafi, son of Ranjha, and Muhammad Shafi, son of Bassa with dang blows. The occurrence was witnessed by Siraj Din (not produced), and Karim Bakhsh (P. W. 16). The complainant party pelted brickbats at the assailants and used sticks to ward off the attack on than, which injured Muhammad Sadiq alias Bhola Karam Bakhsh, Sharif and Shafi, sons of Bassa, appellants. The injured persons were despatched to the hospital before the arrival of the Investigating Officer at the spot who reached there at 8. p. m. Buta expired on the way to the hospital, and Rashid alias Kala died in the hospital at 2‑30 a. m. the following day.

4. On the 3rd of November 1963, at 7‑50 p. m. Dr. Fateh Ullah (P. W. 3 as marked by the C. M.) examined Abdur Rashid deceased, while he was alive, and found one gun shot wound 1/4" x 1/8" on the left groin 1" medial to the anterior superior iliac spine. Charring of the skin on the margin of the wound. The patient was conscious, restless, sweating. The pulse was rapid and weak. The injury was grievous caused by a firearm within 6 to 8 hours' duration. On the same day at 8‑10 p. m. the same doctor examined Muhammad Latif (P. W. 13) and found one lacerated wound 2" X 2" with haematoma on the back of right side of skull and an incised wound 3/4" x 1/8" skin deep on the back of right hand 1" below the joint. Both the injuries were simple in nature caused with blunt weapon and sharp‑edged weapon respectively, within 6 to 8 hours' duration.

6. On the 4th of November 1963, at 3 p. m. Dr. Nasib R. Awan, Police Surgeon (P. W. 21, as marked by the C. M. conducted the post‑mortem examination on the dead body of Buta, deceased, and found the following injuries :‑ (1) A circular lacerated wound 1/4" x 1/4" x chest cavity ‑deep on the left front of chest, 3" above the left nipple and x It" from the middle line. The corresponding mark on the shirt was encircled and signed by the doctor. (Wound of entry). (2) A contusion 2" x 1/2" on the right side of the right eye. (3) A contusion 1/4" x 1/4" on the right knee. (4) A contusion 1/4" x 1/4" on the left knee. On dissection the doctor found the 3rd and 4th left ribs, and six theorasic vertebra, fractured. Left pleura, left lung, paricardium, right auricle, spleen and left kidney were ruptured. In the opinion of the doctor the death was caused due to shock and haemorrhage following injury No. 1 which was the result of gunshot. Injury No. 1 was sufficient to cause death in the ordinary course of nature. Rest of the injuries were caused by blunt weapon. All the injuries were ante‑mortem. The probable time that elapsed between the injuries and death was immediately after and that between death and post‑mortem was within 36 hours. On the same day, the same doctor performed the post‑mortem examination on the dead body of Abdur Rashid, deceased, and found the following injuries :‑ (1) A stitched wound 11" long having 14 stitches on the left side of the abdomen, slightly to the left of middle‑line. (2) A circular lacerated wound 1/4" x 1/4" x bone deep which was fractured on the left iliac region. The corresponding mark on the shirt was encircled and signed by the doctor. On dissection the doctor found the peritoneum ruptured and large intestine stitched. In the opinion of the doctor, the death of the deceased was caused due to shock and haemorrhage following the injuries noted above. Injury No.1 was post operative and injury No. 2 was caused by gunshot and was sufficient to cause death in the ordinary course of nature, and was antemortem. The probable time that elapsed between the injuries and the death was within a few hours and between the death and post‑mortem was within 36 hours. On the 4th of November 1963, at 12‑6 p. m. the same doctor examined Rehmat Ali (P. W. 17) and found the following injuries on his person :‑ (1) A lacerated wound 2" x 1/2' x skin deep on the left forearm. (2) A lacerates wound 2 " x 1/2" x scalp deep on the front of the head. (3) A lacerated wound 3" X 1/2" x scalp deep in the right side of the neck. (4) A lacerated wound 1 " x 1/2" x scalp deep on the left side of the neck. (5) A contusion 1` x 1" on the top of the left shoulder. (6) A contusion 5" x "side of the abdomen. (7) A contusion 3"x2" on the front of the neck. (8) An abrasion 5" x 1/l0" on the back of the neck. Injuries Nos. 1 to 4 were kept under observation, rest of the injuries were simple, caused with blunt weapon within 24 hours.

6. On the 3rd of November 1963, at 8‑5 p. m Dr. Muhammad Anwar (P. W. 24) examined Muhammad Ali (P. W. 14) and found one gunshot wound piercing bone 1/3" x 1/3" on the left side of forehead 1/2' above right eye brow. The wound was bleeding. There was swelling on the left upper eye‑lid. The patient was comatose. Pulse was 116 per minute. Bleeding was sterterous. Pupils were constricted and moderately reaching to life. The injury was caused by a firearm and was of within 6 to 8 hours of duration. On the same day, thereafter, the same doctor examined Mst. Natho (P. W. 15) and found one incised wound 2" x 1/2" x 3/4" on the left cheek close to mouth with an abrasion 1' x 3/4" above it, and one bruise 4" X 1" on the right side of abdomen, slightly above umblicus. The injuries were kept under observation, injury No. 1 excluding abrasion was caused by a sharp‑edged weapon and in jury No. 2 plus abrasion on the left cheek were due to blunt weapon. Both the injuries were 6 to 8 hours of duration. On the same day, thereafter, the same doctor examined Muhammad Latif (P. W. 18) and found the following injuries on his person :‑ (1) One contused wound 3" x 1/2" x bone deep on the left side of the top of scalp. (2) One contused wound 3/4" x 1/2" X bone deep on the right side anterior part of scalp. (3) One contused wound 1" x 1/3" x bone deep on the left side anterior part of scalp. (4) One bruise 2" x 3/4" on the outer aside of right shoulder. (5) One bruise 2" x 3/4" on the right lower chest. Injuries Nos. 1 and 5 were kept under observation. Rest were simple. All were caused by blunt weapon with 6 to 8 hours' duration.

7. On the 3rd of November 1963, at 11 p. m. Dr. Ghulam Haider (P. W. 25) examined Muhammad Sharif, appellant, and found seven simple injuries on his person caused by blunt weapon, within six hours' duration. On the same day, the same doctor examined Karam Bakhsh, appellant, and found five injuries on his person. Injury No. 1 which is a lacerated wound 2"x 1/2"x3/4" on the lower part of pinna of left ear, was kept under observation, and the others were simple in nature, caused with blunt weapon, within six hours' duration. On the 12th of November 1963, injury No. 1 was also declared as simple in nature. On the same day, the same doctor examined Muhammad Shaft, appellant, and found five simple injuries on his person, caused with sharp‑edged pointed weapon and blunt weapon within six hours' duration. On the same day, the same doctor examined Muhammad Sadiq, appellant, and found five simple injuries on his person. Kh All the injuries were caused with blunt weapon and were within six hours' duration.

8. All the accused, except Muhammad Sadiq alias Bhola and Elahi Bakhsh, were arrested the same day. Sharif, Shaft and Karam Bakhsh, sons of Bassa were found injured whose injury statements were prepared by the Sub‑Inspector. Revolver Exh. P. 1 was recovered from the possession of Muhammad Sadiq, appellant, at the time of his arrest which was taken into possession vide memo Exh. P. M. witnessed by Karim Bakhsh (P. W. 16), Muhammad Bashir (P. W. 19) and Fazal Ahmad S. I. (P. W. 22). He was also found injured and his injury statement was prepared by the S. I. Two empty crime shells Exh. P. 2 and P. 3 of '32 bore were recovered from the spot (courtyard of the house of Latif P. W.) vide memo. Exh. P. Q. and P. Q. 1 witnessed by the same witnesses. Blood was recovered from the courtyard of the house of complainants, Katri Jawaharlal, vide memo Exh. P. BB. The site plan Exh. P. A. was prepared by Haji Inayatullah (P. W. 5).

9. Except Bashir (P. W. 19), the other inmates of the house, namely, Muhammad Latif (P. W. 13), Mst. Natho (P. W. 15), Rehmat (P. W. 17) and Muhammad Latif (P. W. 18) were injured in the transaction. The prosecution also produced Karim Bakhsh (P. W. 16). He is neither related to the complainants nor any enmity has been established between him and the appellants, as such he is independent witness. Karim Bakhsh (P. W. 16) stated that at 7 p. m. on the day of occurrence he saw Buta, deceased, advising Rehmat, Latif and Bashir P. Ws. to go home. In the meanwhile he saw the appellants and the acquitted accused coming from the side of Shalamar Bagh. Out of the assailants, Ilahi Bakhsh and Imam Bakhsh were empty handed, who exhorted the other accused to murder. Karam Bakhsh, appellant, gave a sota blow to Latif P. W. Sadiq opened fires which hit Muhammad Ali, a passerby. Buta and his companions got into the Katri Jawaharlal, where they were followed by all the seven persons. Buta deceased turned round and was hit by Sadiq in the chest, and fell in the courtyard. Mst. Natho P. W. tried to cover her injured brother and was injured with dagger by Sharif, appellant. She also fell down. Rashid alias Kala was about to come out of the room, where he was shot at by Sadiq and dropped him there. Latif, Sharif and Rehmat P. Ws. had thrown brick bats at the assailants, who then retired. At the trial the witness identified the revolver Exh. P. 1 that had been used in the crime.

10. The prosecution case detailed above by the eye‑witnesses stands corroborated by the circumstantial evidence which indicates the occurrence to have happened in Katri Jawaharlal (house of the deceased). As against this, Muhammad Sadiq alas Bhola stated at the trial and before the committing Magistrate that the deceased party had gone into the haveli of the appellants and had attacked them there. The learned counsel for the appellants did not stick to that position before us. However, it was urged that the entire incident happened in front of Katri Jawaharlal and that the appellants acted in their defence therefore, they were justified under the circumstances to kill and cause injuries to their adversaries. We shall take up this point subsequently,

11. The learned counsel for the appellants argued that the witnesses were disbelieved by the learned trial Judge as against the acquitted accused, therefore, their evidence should not have been acted upon against the appellants. Reliance is placed on the case of Ahmad Khan v. The State (PLD1962 Lah. 390) wherein it was held :‑ "Where prosecution witnesses are discredited in respect of majority of the accused, it will not be safe to believe their evidence in respect of the remaining accused unless there is some independent corroboration in respect of each of the accused .. unless there be evidence aliendi e.g. a confession or circumstantial evidence which by itself may suffice to show, beyond reasonable doubt his implication in the crime." The contention raised by the learned counsel is evidently devoid of force. In the instant case the appellants bore the stamp violence pointing to their participation in the crime. The deponent of the F. I. R. at the first opportunity gave out that the complainant party had pelted brickbats at the assailants which fact is borne out by the injuries on the appellants. The learned trial Judge as abundant precaution declined to accepted the testimony of the eye‑witnesses against the acquitted accuse d without independent corroboration. As regards the appellant the witnesses, one of whom is disinterested, are adequately corroborated, by the circumstantial evidence. The complicity of Muhammad Sadiq alias Bhola in the crime is further established by the recovery of the revolver which was found to have been used in the crime by the Ballestic Expert. This brings us to the plea of the right of private defence claimed by the appellants.

12. At the trial the appellants had professed to have been followed by the victims up to their residence. Chaudhry Nazir Ahmad Khan learned counsel for the appellants in his arguments shifted the venue from the house of the appellants, and tried to explain that the fight began and ended in front of the house of the victims. In support of this argument it was suggested that Sadiq alias Bhola had fired to save his relatives from the attack of the complainants, or in the alternative, in pursuance of the right o f Private defence the shots were fired by him in the middle of the fight. Both the positions alleged by the learned counsel are not the record and are liable to be repelled. The evidence is consistent that shot was fired first which Muhammad Ali (P. W. 14) followed by the chasing of the victims up to their house. The recovery of blood and the crime empties from the courtyard does not admit another interpretation. This is an established fact that the fight ended inside the house of the victims. The circumstances of the case have convinced us beyond any reasonable doubt that both the deceased were shot at in their house whereby no stretch of imagination could be considered that the appellants were acting in their right of private defence.

13. The learned counsel lastly argued that the witnesses stand constradicted by each other inasmuch as each witness gave contradictory sequence of the events in respect of the injuries caused by the appellants to the witnesses. The case on its broad features is adequately proved and if there are minor discrepancies in the detail of the transaction, they are bound to creep in, which should not reflect on the authenticity of the witnesses and must be ignored. We are convinced that all the appellants were rightly, convicted under section 302/34, P. P. C.

14. As regards the sentences of Karam Bakhsh, Muhammad Sharif alias Jatta and Muhammad Shafi, sons of Bassa, the penalty for an offence punishable under section 302, P. P. C. is either death or transportation. As such while maintaining the convictions of all the appellants the sentences of the three convicts, namely, Muhammad Sharif, Karam Bakhsh and Muhammad Shafi are enhanced each to transportation for life. The sentence of death passed on Sadiq alias Bhola is confirmed. Their appeal stands dismissed, and the revisions for enhancement is partly accepted. The sentences under sections 307/34, 452, 323/34 are also maintained which shall run concurrently with that under section 301/34, P. P. C. K. M. A. Appeal dismissed.