1993 P Cr (PLP)

(1) A lacerated wound 3" x 2" x bone deep on the medial side of left knee Margins were burnt and blackened, knee joint was opened. Medial ends of Tibia and condyle of femur were fractured. (2) A contused wound 3/4" x 1/4" x bone deep on the back of left elbow. Olecranon was fractured. (3) A contused wound 1-1/4" x 1/G" x bone deep on the back of left forearm upper part: Left ulna was fractured. Injuries Nos.1 to 3 were found to be grievous in nature. Injury No.1 was caused by fire-arm while injuries Nos.2 and 3 were caused by blunt weapon. Muhammad Siddiq accused was medically examined by the said doctor on 4-2-1992 at 4-00 p.m. and following injuries were found on his body:-- (1) An irregular almost healed (contused) wound on the top and right side of head 1-1/2" x 1/8". (2) A swelling and tenderness on the back of left hand, movement restricted. (3) Complained of pain in left forearm, no visible mark of fresh injury. (4) Complained of pain in right forearm, no visible mark of fresh injury. (5) Complained of pain on the back of right shoulder. On the same day and time, Shabbir Hussain accused was examined by the said doctor and following injuries were noted on his person:-- (1) A healed contused wound 3/4" x 1/10" on the top of head. (2) Complained of pain on right side of face. No visible mark of fresh injury. (3) Complained of pain on left side of face. No visible mark of fresh injury. (4) Complained of pain on the back of right hand. Slight swelling and tenderness. (5) Complained of pain on the back of chest and neck. (6) Complained of pain in right knee. No visible mark of fresh injury. The injuries were simple in nature and were caused by blunt weapon.

5. Eye-witness account was furnished by Allah Yar P.W.8 and Mst. Farhana Bibi P.W.9. The respondents accused denied the allegations levelled against them in their statements under section 342, Cr.P.C. Nadeem Hussain accused made a detailed statement. In reply to a question, he stated that he was severely beaten by the complainant party by giving him fist and kick blows. However, his injuries were not visible and as such he did not go to the doctor for his medical examination. He disclosed that Ramzan, father of Mst. Farhana, was cultivating the land of his father Muhammad Siddiq as his tenant. He suspected him to have illicit relationship with his daughter. Muhammad Siddiq also suspected that Muhammad Ramzan, the father of the girl, was looking for an opportunity to cause harm to him (Nadeem). In consequence, Muhammad Siddiq asked Muhammad Ramzan to abandon his land. Muhammad Ramzan, ultimately, left their land. Thereafter, Mst. Farhana was married with Iqbal son of Allah Yar. Allah Yar, Iqbal, Sarfraz and Mansha had also suspected him for having illicit fink with Mst. Fafhana. They, therefore, were determined to take revenge from him. On the day of occurrence, he was going to his house and when he reached near the house of Allah Yar on a thoroughfare, he was caught by the wife of Allah Yar. Allah Yar, Iqbal, Sarfraz and Mansha also came there and took him forcibly to their house. They bolted the door from inside the house and made him naked by removing his shirt and Shalwar. He was given a severe beating and then confined in a room of their house. They wanted to murder him alongwith Mst. Farhana to make out a case of grave and sudden provocation. On alarm, Muhammad Siddiq came and requested the complainant party to release him. They however, declared that they would murder him. Upon this, Muhammad Siddiq, Shabbir while armed with their licensed guns came forward and requested Allah Yar to release him forthwith. They refused to do so. Instead they opened an attack upon them. In return, his father and brother also injured the complainant party with their weapons. Muhammad Siddiq accused supported the statement of Nadeem. He stated that he was inflicted injuries by the complainant party. He stated that Muhammad Ram7an was his tenant. He suspected illicit liaison of Nadeem with Mst. Farhana. He mentioned that on the day of occurrence, he came to know that his son had been abducted forcibly by the complainant party to murder him. He, therefore, went to Allah Yar and requested him to release his son. The complainant party opened an attack and injured him. Shabbir also reached there to save his life and that of Nadeem. He admitted that Sh'7bbir fired from his licensed gun. Muslim, the third accused deposed that the licensed gun of his father was planted upon him. He pleaded his innocence. Shabbir Hussain adopted the statements of his co-accused. Muhammad Ramzan D.W.1 was produced by the accused in their defence. He deposed that on 20-1-1992, at about 7-00 p.m., Allah Yar, Sarfraz, Iqbal and Mansha caught Nadeem from a thoroughfare of the village and brought him forcibly to the house of Allah Yar. He stated that more than 20 villagers collected at the spot. He also claimed to have informed Muhammad Siddiq that his 'son had been taken forcibly to the house of Allah Yar. He also deposed that Nadeem was suspected to have his illict liaison with Mst. Farhana Bibi.

6. It is contended forcefully by the learned counsel that admittedly the incident of double murder took place inside the house of Allah Yar. He maintains that on the basis of overwhelming prosecution evidence, there was absolutely no justification for the learned trial Judge to have acquitted the respondents of the double murder charge. He says that there was no legal justification to hold that the accused party had committed the murders in the exercise of their right of self-defence. There was not a shred of evidence to justify the accused respondents to take the law into their own hands in the house of the complainant. Learned counsel appearing on behalf of the accused respondent supported the judgment if the learned trial Judge by adopting the reasons given therein.

7. We have heard the learned counsel for the parties at considerable length and have also gone through the record with utmost care. We hold that on the basis of overwhelming evidence available on record, there existed no right of self-defence to the respondents in opening an attack and killing the innocent people in the house of the complainant during night. The occurrence admittedly took place in the house of Allah Yar. He deposed that Mst. Farhana was washing the utensils while sitting in the courtyard of his house. He came out of his room on her alarm. The other P.Ws. also came in the courtyard on hearing her shrieks. Nadeem was found to have held Mst. Farhana in his arms. He was overpowered by the witnesses and confined in a room of their house. This is in evidence that they waited to take Nadeem to police station to hand him over to the police for legal action. Muhammad Saddiq, Shabbir Hussain and Muslim respondents trespassed into their house while armed with deadly weapons. The respondents directed the complainant party on gun point to immediately release Nadeem. They, however, made it clear that Nadeem would be produced before the police for initiating legal action against him: Muhammad Sadiq gave a blow with his iron rod which hit Sarfraz on his head. Sarfraz fell down. Muslim fired from his gun which hit Sarfraz on his chest. Shabbir fired with his double barrel gun which hit Mansha on his left thigh. He also fell down. Allah Yar went ahead to save Muhammad Mapsh whereupon Nadeem held him in his fold and also dropped him on the ground. Muhammad Saddiq inflicted injuries upon him with his Sarya. Shabbir Hussain also injured his left knee. The evidence of Allah Yar was materially corroborated by Mst. Farhana Bibi P.W. The medical evidence is also in line with the ocular account. There was also a very strong motive for the accused to commit the offence. The motive is also proved to our satisfaction. The scrutiny of the evidence does persuade us to believe that the incident took place in the manner as disclosed by the prosecution in the house of Allah Yar P.W. According to the defence story, the complainant party suspected Nadeem to have established illicit relationship with Mst. Farhana. Their case was that Muhammad Ramzan was a tenant of Muhammad Siddiq and he had left his land on account of aforesaid suspected illicit relationship of Nadeem and Mst. Farhana. We do believe that Nadeem had come to win the sexual favour of Mst. Farhana to her house in the cover of night. He was caught red-handed by the complainant party on the spot. The defence version that Nadeem was apprehended from a thoroughfare is not at all believable in the given facts and circumstances of the case. We, therefore, do not accept it for several reasons. There is no evidence having been led by the accused-respondents to show that the first occurrence took place outside the house and that it did not take place in the house of Allah Yar P.W. A heavy burden was surely on them to prove their plea. The plea was not proved by the defence with some plausible evidence. This version obviously appears to have been concocted by the accused-respondents to save their skin. We do hold that the complainant party wanted to produce Nadeem before police for taking legal action against him. They, therefore, did not cause any injury to him. Nadeem alleged that he was given a brutal beating but admittedly he was not medically examined. There is no evidence on record to show that he was injured. This fact itself negates the whole defence version. Thus, it is established that the complainant party did not take the law into their own hands. The respondents trespassed into the house of Allah Yar while armed with deadly weapons. The P.Ws. are the most natural witnesses of both the incidents which took place inside the house of Allah Yar. Their presence in the house cannot be doubted in the given circumstances. They are, therefore, believed for all intents and purposes. The defence version, when placed in juxtaposition, is established to be an afterthought and has been concocted to defeat the very ends of justice. The accused had no right in law to kill Muhammad Mansha and Sarfraz by firing at them in the house of Allah Yar P.W. The only conclusion that we have reached, in these circumstances, is that Muhammad Siddique, his son Shabbir Hussain and his nephew Muhammad Muslim, the respondents, on hearing the news of the detention of their relation Nadim Hussain respondent, went to the house of complainant party after arming themselves with deadly weapons, not only to obtain his release but also to teach a lesson to them for detaining him in their house in a derogatory manner. Reaching the house of the complainant party, Muhammad Siddique respondent demanded the release of his son but when they refused to oblige him on the plea that they intended to hand him over to the police, he gave a `Sarya' blow on the head of Sarfraz (deceased), followed by Muhammad Muslim respondent, who tired at him with a .12 bore gun, hitting his chest. He fell down. Shabbir Hussain respondent, who was also weilding a .12 bore gun, fired a shot at Muhammad Mansha (deceased), hitting his left thigh and he too fell down. Allah Yar P.W. tried to rescue the victims but Nadeem Hussain respondent felled him on the ground. When he was so lying, Muhammad Siddique respondent caused him two injuries with iron-bar (Sarya), one on the left elbow and the other on his left forearm, followed by Shabbir Hussain respondent who fired at his left leg. The aforesaid three armed respondents in this way obtained the release of their relation Nadeem Hussain respondent from the custody of the complainant party, -after. killing two persons on the spot and causing grieve, us injuries to the third in their own house.

8. The manner the three respondents went to the house of complainant party and rescued their detained co-respondent leads us to conclude that each of the respondents has to account for his own act because all it seems to have happened so quickely on the spur of the moment that there could be no community of purpose amongst them, reflecting their common intention and its furtherance. To be a little more precise, iron-bar (Sarya) is not the kind of an object commonly used as a weapon of offence like a rifle, gun, hatchet or a `Sota', but Muhammad Siddique respondent, having come to know about the detention of his son in the house of his erstwhile tenants, picked it up at random and went to the house of the complainant party. Similarly, his son Shabbir Hussain respondent picked up his licensed gun, while his nephew Muhammad Muslim respondent happened to weild a gun and they also went to the house of complainant party and started using their respective weapons in the manner aforesaid. So we hold all the respondents, including Nadeem Hussain respondent, liable for their individual acts and not for vicarious liability. In that context, Shabbir Hussain respondent, who killed Sarfraz by a E gun-fire, and Muhammad Muslim respondent, who killed Muhammad Mansha by his gun-shot, both are convicted under section 302(b), P.P.C. and each of them is sentenced to death and shall be hanged by the neck till leg of Allah Yar P.W. he is also convicted under section 324,~P.P.C. ands sentenced to three years' R.I. This sentence of this convict shall be executed only if, for any reason, his death sentence is not carried out. Muhammad Siddique respondent, who appears to be a person of advanced age, caused a contused wound of a small dimension, hardly scalp deep, .on the right side of the head of Sarfraz (deceased) and two fractures on the left arm of Allah Yar P.W. For causing simple head injury (Shajja-e-Khafifa) he is convicted under section 337-A(i), P.P.C. and sentenced to 1 year's R.I. and for causing fracture of the left elbow and left forearm (Jurah-e-Hashimah) of Allah Yar P.W. he is convicted under section 337-F(v), P.P.C. and sentenced 2 years' R.I. as Tazeer. He is also directed to pay Daman to Allah Yar injured P.W. amounting to Rs.5,000 or in .default to further undergo 1 year's R.I. As all the respondents, including Nadeem Hussain, had committed house trespass by going to the house of the complainant party, they are also convicted under section 452, P.P.C. and each of them is sentenced to 2 years' R.I. and a fine of Rs.2,000 or in default to further undergo six months' R.I. each. All the substantive sentences of Muhammad Siddique respondent shall, however, run concurrently and he alongwith Nadeem Hussain shall be entitled to the benefits of section 382-B, Cr.P.C.

9. The State appeal is accepted to the extent indicated above. Since all the respondents are on bail, the learned District Magistrate, Rahimyar Khan, shall cause their arrest and send them to the prison for carrying out their respective sentences. N.H.Q./93/SAC Appeal accepted.