1976 P Cr (PLP)

FAKHRUDDIN G. EBRAHIM, J.‑On 7‑9‑1970, at 19.00 hours the injured complainant Ashiq lodged First Information Report at the Brigade Police Station which was recorded by A. S. I. Gul Rehman. In this complaint it was alleged that on 6th of September 1970, a variety programme was held at the tongs stand behind Jacob Lines in connection with the Defence Day when the appellant, a sepoy Shabbir Khan Kalabwala and 5 or 6 other persons came that way in jeep and finding no passage for the jeep to go through, departed from the scene after hurling abuses. That on the follow ing day on 7‑9‑1970 at 6 p.m. the complainant alongwith the deceased Zabir went to Abbysinia Line Bus stop, when Khaliq, Munawar Khan, Nizam, Shaffi, Bibbo and others were also present. The appellant sepoy Shabbir was sitting at his but situate at Abyssinia bus stop and with whom were Khan Kalabwala. Zia, Raja Mubajawar, Mairaj and a few other persons. On seeing the complainant and the deceased Zahir, started abusing them. The compliments were returned whereupon the said persons beat up the complainant and Zahir with slaps and fists. At this time the appellant Shabbir took his gun and said "Move aside. Today I finish them." His companions moved aside and the appellant Shabbir fired three times one after the other on the deceased Zahir Ahmed and the complainant. The complainant was injured in the chest on the right side below the ribs and on the right arms and was taken by some one to Jinnah Hospital. The incident was said to have been seen by Munawar alias Kazoo, Nizam, Shaffi, Bibbo and several other persons. The accused named in the First Information Report were, the appellant Shabbir, Zia, Raja. Khan Kalabwala, Mairaj and 5 or 6 other persons whom the complainant could identify.

2. The deceased Zahir died in the Jinnah Hospital at 02‑00 hours, but prior to that, on 7‑7‑1970 his statement under section 161, Cr. P. C was recorded by police which may be immediately referred to. According to this statement the deceased knew the appellant Shabbir who had come to him a few days prior to the incident alongwith his companions to the rickshaw stand behind Jacob Lines. The appellant abused him in connec tion with plying of rickshaws and left saying "I will see your" due to which there was grudge between the parties. The witness then referred to the incident of 6th September 1970, when the people of the mohalla behind Jacob Lines bad arranged a variety programme in connection with tire Defence Day. At about 6 p.m. Appellant Shabbir, Khan. Kalabwala, Zia. Mairaj, Raja and two or three persons whose names the witness did not know came in the jeep and asked for the persons who had blocked the passage and started abusing. The compliments were returned by sonic people in the mohalla. The appellant went back threatening "we will take away your girls". The mohalla people intended to hold a variety programme on 7‑9‑1970 at about 5 p.m. Appellant Shabbir alongwith Khan Kalabwala, Zia, Raja Mairaj passed through behind Jacob Lines in a jeep. A short while after that there was a commotion in the mohalla that the aforesaid persons of the jeep had taken away a boy. Upon this all the Mohalla people gathered and said "Let us go and see as to whom they have taken." The witness and Ashiq went alongwith the people. They reached Abyssinia Lines and saw appellant Shabbir, Khan Kalabwala, Zia, Raja and Mairaj sitting in the garrage of the appellant. They started pelting stones and the mohalla people also pelted stones in response. In the meanwhile Zia took out gun and the cartridges belt, gave it to appellant Shabbir, who fired thrice resulting injury to the witness and Ashiq. The incident was witnessed, according to Zaheer by Nizam, Bibbo, Shaffi, Kalu. Tahir, Gul Zarin, Ashiq Muhammad, Ishaque, Maqbool Ahmed. Muhammad Ibrahim arid several other persons.

3. The complaint followed the normal investigation. The investiga ting Officer Shaikh Abdul Sattar secured two empties and two wads of cartridges from the vardat. On the same day the investigating Officer received from P. W. Muhammad Hussain, a constable in the C. I. A., Karachi a gun No. 14661 belonging to appellant Shabbir alongwith its license, which the officer seized. The blood‑stained clothes of the injured Ashiq and deceased Zahir were also seized and sent to the Chemical Examiner. The gun, two empties of .12 bore and two wads of cartridges were sent to the Ballistic Expert. The appellant alongwith the co‑accused Muhammad Zia Khan, Mairajuddin, Qamaruz Zaman were arrested and alongwith abscond ing accused Muhammad Kamil Khan alias Khan Kalabwala, were charged with offences under sections 147 and 148, P. P. C., and sections 302, 307 read with section 149, P. P. C. and sent up for trial.

4. By his impugned judgment the learned IV Additional Sessions Judge, Karachi convicted the appellant under sections 3102 and 307, P. P. C. and sentenced him to suffer imprisonment for life for the former offence, and for the latter for six years R. I., both the sentences were to run con currently. The other co‑accused were given benefit of the doubt and acquitted.

5. This case has one remarkable feature and that is that the witnesses examined on behalf of the prosecution including the complainant turned hostile and resiled from their earlier statements. The learned Sessions Judge observed that this was on account o ' the fact that the appellant was Dada of the locality and the witnesses have turned hostile due to fear of the appellant lest in case of his acquittal they may become his next victims. The conviction has been based on the evidence of the eye‑witnesses recorded by the Enquiry Court, which were transferred to the tile of the Sessions Court under section 288, Cr. P. C. which evidence according to the learned Additional Sessions Judge was fully corroborated by she evidence of recovery of the gun, and the empties which were duly matched by the Ballistic expert. On behalf of the appellant plea of self‑defence was raised, thought to the statement under section 342, Cr. P. C. he had decried that he had fired his gun, but is did not find favour with the Court, who described it as in the nature of a forlorn hope.

6. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant contended that the ocular evidence in this case does not establish beyond doubt that it was the appellant who had fired at the deceased Zahir and the complainant Ashiq with the gun or that the weapon used was the weapon recovered and that in any event it was a clear case of self‑defence.

7. The prosecution relied on the ocular evidence of as many as five eye‑witnesses. The first is Laiq Muhammad, a watch‑maker who knew the accused. He was at the time of the incident standing at the bus stop of Abyssinia Lines when he saw a crowd and heard a gunshot report. He did not proceed towards the crowd but alongwith other persons, started running. In his examination‑in‑chief, he categorically stated that he neither saw the accused persons there nor did he see anybody firing. The witness was declared hostile and permitted to be cross‑examined. He denied that he saw the accused firing at deceased Zahir and complainant Ashiq. The extract from the lower Court deposition of this witness, which was brought on record is not of any assistance for it only mentions that the witness on 7‑9‑1970, at about 5 or 6 p.m. go down at the Abyssinai Lines bus stop from a four seater rickshaw and went to a pan shop far taking cigarettes.

8. The next eye‑witness is P. W. Muhammad Atiq, a rickshaw driver. This witness deposed that he knew all the accused including the appellant and that on the day of the incident he was, at about 5‑00 or 5‑30 p.m. going to Saddar from Simla Hotel of Abyssinia Lines in his rickshaw. He saw the complainant Ashiq injured lying 10 or 15 paces away from the shop of the appellant. He did not see the appellant at the vardat. He was declared hostile and allowed to be cross‑examined. He admitted that he carried the complainant Ashiq in his rickshaw but denied that he saw deceased Zahir. He also denied that he was produced before a Magistrate for has 164, Cr. P. C. statement. He complained that he had been wrongly confined for 9 days in the police lock up. He denied the suggestion that he saw the appellant sitting on a chair in front of his garrage or that the mob had stoned at him, The extracts which were brought on record from his deposition in the lower Court and with which the witnesses was confronted disclosed only this much that the witness had seen a quarrel between the people ; that stoning was going on there ; he had heard a gunshot report ; seen the appellant running with a gun in his hand and the crowd was throwing stones at the appellant.

9. The third eye‑witness is rickshaw mechanic Muhammad Shafiq. He is the cousin of deceased Zahir. He deposed that he did not know the accused and denied that he had given their names before the committing Court, in his examination‑in‑chief he said that at the vardat he heard a guts‑report, saw a fight but did not know who had fired the shot, and that there were as many as 60 or 70 persons present but he did not know anybody from the mob. He was declared hostile and permitted to be cross‑examined. He denied his previous statement that he had heard somebody calling "Fire Shabbir" and that there were 200 or 250 persons present at the bus stop. He denied his earlier statement relating to the incident of 6‑9‑1970 when there was quarrel between the mohalla people and accused party. As regards the incident of 7‑91970 he denied that there was a quarrel between all the accused present in Court and two others, or they were fighting with Ashiq and beating him up which led to the intervention of deceased Zahir whereupon appellant asked Zia to bring the gun and belt of cartridges from the house. Zia complied and appellant fired at Ashiq and Zahir and the accused persons ran away. The lower Court statement of this witness, which was brought on record shows that in his cross‑examina tion this witness had unlike in his police statement alleged that he had seen Zahir and Ashiq being beaten up with dandas. He denied his police statement that there was a rumour in mohalla that the appellant had taken away a boy from the mohalla to his garrage and that there was great resent ment on this account among the mohalla people. He did say before the Inquiry Magistrate that the mohalla people got resented and gathered infront of appellant Shabbir.

10. The fourth eye‑witness is Nizamuddin, a butcher by profession. In his examination‑in‑chief this witness admitted his presence at the vardat where he saw a fight going on. He denied that he knew the accused or their names. He neither saw deceased Zahir nor complainant Ashiq. He was declared hostile. He denied his lower Court statement that he could identify the appellant and that the appellant had asked accused Zia to bring him his gun, who brought it and the cartridges from the garrage and the appellant fired 5 or 6 times as a result of which complainant Ashiq and deceased Zahir were injured. He also dented his lower Court statement that he sawn the accused persons running away. In his cross‑examination he complained that he had been detained by the police before his statement had been recorded and the police had threatened him in Court to give evidence as suggested by them. The lower Court statement of this witness was also brought on record. In this deposition the witness had stated that he identified accused Qamaruz Zaman and Merajuddin as the persons who had alongwith other accused beaten up complainant Ashiq and Zahir with dandas ; that the gun was loaded by accused Zia and somebody from the accused persons shouted that all should be killed ; that the appellant fired the gun 5 or 6 times as a result of which complainant Ashiq and deceased Zahir were injured and the accused persons then ran away. He admitted that the police had registered a case against him and others for rioting which was a result of a complaint of a neighbouring hotel near the appellant's garrage.

11. The last eyewitness is the injured Ashiq Hussain. In his examination‑in‑chief he denied that he knew the appellant or the other accused. He admitted his presence at the vardat where he saw the crowd and Zahir lying injured. He heard the gunshot report by which he was also hit but he did not see the assailants. He did not see the accused persons at the vardat at that time. He denied his lower Court statement that he saw the accused persons present at the vardat when appellant asked him as to what he had done on the previous day and gave him a beating that thereafter the appellant asked Zia to bring the gun which was leaded by Zia and fired 5 or 6 times by the appellant at him and deceased Zahir who were both injured.

12. Additionally the prosecution relied on the statement of witness Tahir Rasool recorded in the lover Court which was brought on‑record by the learned Sessions Judge. According to his deposition the witness was present at the Variety show on 6‑9‑1910. He had seen Kalabwala the appellant, accused Zia, Mairaj, Raja and one more person coining in a jeep and complaining about the obstruction, they abused the mohalla people. There was harsh language but no fight and the accused persons left. On the next day at 4 or 5 p.m. the witness saw some people collected at the same spot and came to know from them that the same people who had come on the jeep the previous day had taken away somebody. A little later, he passed by Abyssinia Line Bus Stop on his way to Saddar and saw that a number of people had collected. He saw accused Khan Kalabwalla, Shabbir, Zia Mairaj and Raja on one side and a crowd on the other side. He saw accused Zia, Raja beating up deceased Zahir and Ashiq with sticks. The appellant asked Zia to bring his gun, which he did and the appellant fired at Ashiq and Zahir both of whom fell down on the ground. While leaving the place he saw the appellant running with his gun. In his cross‑examination the witness admitted that there was a commotion in the area as there was rumour that the appellant had abducted somebody and that the crowd at the bus stop consisted of about 100 persons but nobody from the crowd went to save Ashiq and Zahir and that when he fired the appellant was standing 6 feet away from Zahir and Ashiq.

13. According to the medical evidence the deceased Zahir had received as many as 13 gunshot injuries fired from a '12 bore gun from a distance over 3 feet and probably less than 10 feet. According to the same evidence the complainant Ashiq had received 5 injuries all caused by fire arm from a distance of more than 3 feet. Additionally there is medical evidence of a simple injury on the left occipital region 1' in length to accused Qamar Zaman.

14. The recoveries made by the police include a '12 bore single barrelled gun and two empties secured from inside of the garrage of the appellant. These empties were found by the Ballistic Expert to correspond to '12 bore gun recovered as aforesaid.

15. Shaikh Abdus Sattar, the investigating officer deposed that he did not examine anybody on the point of abduction of a boy by appellant Shabbir as it was a rumour and was not found to be correct. He further stated that there was a hotel by the side of the house of the appellant at that time which he found ransacked on account of the false rumour of abduction of a boy by appellant Shabbir. Lastly, he admitted that some of the prosecution witnesses were accused in the counter‑case for rioting.

16. In his statement the appellant Shabbir stated that on 6‑9‑1970 at about 6‑30 p.m. he alongwith his colleagues, namely, Khan Kalabwala, Zia, Mairaj and Raja Were going in a jeep behind Jacob Lines when the road was found blocked as some variety programme was going on. There was some altercation with the mohalla people who started throwing stones at the accused and they left. On the next day there was a rumour in the mohalla that the appellant had abducted a boy due to which a crowd of about 100 persons armed with knives, dandas and sticks gathered in front of my garrage and started abusing him. They attacked the garrage as wall as the neigh. bouring hotel causing considerable damage to the latter and the appellant apprehending danger to his life at the hands of the mob ran away.

17. The finding of the learned Additional Sessions Judge that the appellant Shabbir tired at the complainant Ashiq and deceased Zahir is based on the evidence of Muhammad Shafiq, Nizamuddin and Ashiq Hussain recorded by the Enquiry Magistrate. The learned Judge rightly sought corroboration, for these witnesses were dishonest having perjured themselves, and this corroboration was sufficiently available in the recovery of the appellant's gun, the recovery of the empties which were duly matched and the admitted presence of the appellant at the vardat. The learned Additional Sessions Judge could have additionally relied upon the statement of deceased Zahir under section 161, Cr. P. C. as a dying declaration but rejected it on the ground that the same had been thumb‑marked by the deceased and the inference drawn was that it had been so fixed after the demise of Zahir. Merely because 161, Cr. P. C. statement was signed by the witness wax by itself not sufficient to make it inadmissible for all purposes. In any event this statement could have been treated as a dying declaration of the deceased and, therefore, available to the prosecution in support of its case that the appellant Shabbir had fired at the deceased and Ashiq Hussain. There was, therefore, ample evidence to justify the finding that the appellant Shabbir had fired at deceased Zahir and complainant Ashiq Hussain resulting in the death of the former and grievious injuries to the latter. This is, however not the end of the shatter. The learned Additional Sessions Judge has, lightly brushed aside cogent evidence on record which, to my mind, establishes beyond reasonable doubt that the act complained of, namely, firing by appellant Shabbir was in the exercise of his right of his private defence.

18. I have earlier referred to the evidence of several eye‑witnesses and in particular the dying declaration of Zahir which go to show that there was a quarrel between the mohalla people and tile accused party on the previous day ; that there was on the day of the incident resentment in the mohalla over a rurnour that the appellant, and his companions had abducted a boy ; that the mohalla people gathered and marched to the premises of the appel lant near Abyssinia Bus Stop ; the mohalla crowd, according to the witness varied from 70 to 250 persons ; there was pelting of stones between the accused party and the rnohalla people ; the appellant and his companion were sitting within his own premises, from where the shots were fired ; the complainant Ashiq and deceased Zahir were within 10 feet of the appellant when they were fired at ; one of the co‑accused received simple injury, the neighbouring hotel was ransacked by the mob and the police had registered case of rioting against some of the prosecution eye‑witnesses. No doubt some of the eye‑witnesses did say that it all started with the beating up of deceased Zahir and complainant Ashiq with dandas, but this allegation was rightly disbelieved by the learned Additional Sessions Judge for medical evidence did not disclose any such injury. It, therefore, follows that the appellant was in these circumstances under reasonable apprehen sion of grievous hurt from the large and resentful crowd which was headed by the deceased Zaheer and complainant Ashiq and he is, therefore, as conceded to by the learned Assistant Advocate General, entitled to the benefit of the exception laid down in section 100 of the Pakistan Penal Code.

19. The result is, that this appeal is allowed anti the appellant's con viction is set aside and he is set at liberty unless required to be detained in any other case. Appeal allowed.