1992 P Cr (PLP)

Mr. Shaukat H. Zubedi learned AA.-G. appearing for the State has contended that there was sufficient evidence against Rana Zulqarnain and he was rightly convicted. However, he was also of the view that looking to the facts and circumstances of the case the sentence of Rana Zulqarnain may be reduced. As far as appellant Rana Ghayyur was concerned he did not support the contention and was of the view that the case against him was doubtful, and therefore, he was entitled to acquittal. I have considered the contentions. The evidence of Dr. Amanullah P.W.10 shows that deceased Mumtaz and P.Ws. Muhammad Shafi and others had sustained following injuries:-- Multiple small fire-arm injuries more than 100 on front of chest, abdomen, neck and right arm, more on the chest about 1/6" in diameter, margins rough and inverted (wound of entry). (1) Chest cavity full with blood. (2) Multiple punctures in both lungs. (3) Two holes in heart found, and heart was empty. Stomach contained digested food. The death was due to cardio respiratory failure due to severe haemorrhage and shock resulting due to fire-arm injuries on chest. Time between death and post-mortem about 3 to 4 hours. 8 pellets were recovered from the dead body which were sealed and handed over to S.I. Ghulam Ahmed. (1) 8 small fire-arm injuries in the area of right shoulder upto right elbow joint 1/6" in diamdeter margins rough and inverted. (2) Two small fire-arm injuries below right clavicle region 1/6" in diameter, inverted. (3) One small fire-arm injury 1/6" in diameter at right illiac fossa. (4) Three small fire-arm injuries on the front of neck 1/6" in diameter, margins rough and inverted. According to the Medical Officer injuries were simple in nature and appeared to have been caused by fire-arm. (1) 5 small fire-arm injuries 1/6 , in diameter on left hand, margins rough and inverted. (2) One small fire-arm injury 1/6" in diameter on right hand, margins rough and inverted. (3) Lacerated wound left forehead 2" x 1/4" x 'muscle deep. All the injuries were simple in nature. Injuries Nos.l and 2 appeared to have been caused by fire-arm while injury No.3 was caused by hard and blunt object. Injuries were fresh in nature. (1) 8 small fire-arm injuries 1/6" in diameter on right elbow and upper 2/3 right forearm, margins rough and inverted. (2) Two small fire-arm injuries about 1/6" in diameter on back of left lower chest, margins rough inverted. The injuries appeared to have been caused by fire-arm. (1) Contusion just above righ elbow 4" x 2". (2) Contusion lower 1/3" right forearm. The injuries were fresh and appeared to have been caused by hard and blunt object. The same were simple in nature. I have considered the contentions and have gone through the R&P of the case very carefully. Complainant Wazir Khan P.W.1 has not supported the prosecution as far as the allegation regarding firing by the appellants was concerned. He has specifically stated that `we were sitting in the `Dera' and in the meantime heard noise of firing from our backside. Due to this firing Muhammad Shafi, Riaz and Mumtaz who is deceased now received injuries. I also received injuries on account of the firing on my left hand as well as on my forehead. I started running from the Dera of Muhammad Shafi in order to catch gun. I snatched gun from the hands of accused Zulqarnain while Aurangzeb snatched revolver from the hands of accused Ghayyur. I hit accused Persons with the butt of gun. In cross-examination he has stated that he had heard firing from one side. He could not say as to how many persons were firing outside the Dera. He had produced the revolver and gun before the police at police station. In his presence the gun, and revolver were not sealed. However, he was not declared hostile nor cross-examined by the A.P.P. Hakamdad P.W.2 had also not supported the prosecution regarding firing by the accused/appellants. However; he was neither declared hostile nor cross examined. He had stated that the police had arrested accused Zulqarnain and Ghayyur and he acted as Mashir. He has produced the Mashirnama as Exh.11 S.I.P. Ghulam Ahmed P.W.3, had received wireless message that Dr. Amanullah had rung up the police that one injured was brought to the hospital who has died. He went to the hospital and prepared Mashirnama of dead body and inquest report which have been produced by him as.Exh.13 and ExhA

4. He also recorded statement of Wazir Khan under section 154, Cr.P.C. The gun and revolver were produced before him by the complainant and he had prepared Mashirnama Exh.9. Mashir Raja Naim Akhtar had acted as Mashir of arrest of accused Muhammad Akbar and Rana Ghayyur and has produced the Mashirnamas of arrest as Exh.16 and Exh.17, however, he has - denied contents thereof and has stated that he never acted as Mashir. He had also acted as Mashir of production of weapons and has produced Mashirnaraa as Exh.18 but has stated that the contents are not true. He had also aceted as Mashir of place of Wardat, and has produced the Mashirnama as Exh.19: He was declared hostile and cross-examined by A.P.P. Mashir Din Muhammad P.W.5, he had acted as co-Mashir of Mashirnama of dead body and inquest report Exh.13 and Exh.14. He had also acted as Mashir of place of Wardat. Injured Muhammad Shafi, he has deposed that on 19-7-1987 Wazir Khan, Hakamdad and taxi-driver Aurangzeb came to his Rera. They called Rana Muhammad Akbar at his Dera and started talking with each other. During their talk there was exchange of hot words between them, in the meanwhile Rana Ghayyur and Rana Zulqarnain alongwith 5/6 other persons came and had dispute with him on account of Anjuman as he was General Secretary of Anjuman Falah-o-Bahbood Gilgit Colony. Rana Zulqarnain was armed with .12 bore gun, whereas Rana Ghayyur Ahmed and the remaining persons were armed with pistol, revolver, and shotgun. They started firing and some pellets hit on his neck, shoulder and face. P.W. Wazir Khan was also injured. One labourer namely Mumtaz was working opposite to his Dera, who also received pellet and bullet injuries on the front part of his body. They were removed to J.P.M.C. by taxi-driver Aurangzeb, Mumtaz died: on the way to the hospital. P.W., Wazir was discharged on the same day after treatment, while he remained in the hospital for two days. He has produced Mashirnama of arrest and search of accused Din Muhammad as Exh.22. He has also produced his 164, Cr.P.C. statement as Exh.23. Accused Din Muhammad was not present at the time of incident nor he was arrested in his presence. In cross-examination he has admitted that he had stated before the police as well as before the Magistrate whatever was disclosed to him by P.W. Wazir Khan. He went unconscious on receipt of pellet injuries. He could not say due to whose firing he sustained injuries. Aurangzeb P.W.7'has deposed that on 19-7-1987 at 3 or 4 p.m. he was sitting in his taxi at Gilgit Colony. P.W. Wazir Khan took him to his Jhuggi where 3/4 persons were already sitting. Wazir Khan went inside the Jhuggi while he remained present in his taxi outside Jhuggi. After 5 minutes accused Rana Akbar came alongwith his sons Zulqarnain and Ghayyur and one Din Muhammad. There was some talk between Muhammad Shafi, Rana Akbar and his sons and there was exchange of hot words between them. In the meantime he heard gun reports and went to the place of firing and saw that Rana Zulqarnain and Rana Ghayyur alongwith other persons-were firing at the persons sitting in the Jhuggi. He and Wazir Khan went near the accused, Wazir Khan snatched gun from the hands of Zulqarnain, while he snatched revolver from Ghayyur. Wazir Khan gave butt blows to Zulqarnain and the gun was ~r broken. Shafi and Mumtaz had received injuries. He and Wazir Khan took the injured in taxi to the hospital. Mumtaz died outside the hospital. Wazir Khan went to the police station and lodged his report. In cross-examination he has deposed that. he, P.W. Wazir Khan and P.W. Hakamdad come from Hazara but they are not related inter se. Rana Ghayyur was not present at the time of incident but he came later on. Mr. Thanwar Das A.C.M. P.W.8 had recorded 164, Cr.P.C: statements of witnesses Muhammad Shafi, Raja Naim, Muhammad Irshad and Pir Muhammad, and has produced the same as Exh.28 to Exh.31. Inspector Jamil Akhtar Kayani the then S.H.O. of Police Station Korangi, Karachi P.W.9 had verified the investigation carried on by S.I. Ghulam Ahmad. He had registered the case on the basis of 154, Cr.P.C. statement and has produced the F.I.R. as Exh.33. He had prepared Mashirnama of place of Wardat which has been produced as Exh.19. He had also prepared sketch of the place of incident which he has produced as Exh.34. He had arrested accused Rana Akbar vide Mashirnama Exh.17. He had also secured two licences of gun and revolver from the house of accused Rana Akbar and the Mashirnama has been produced as Exh.18. He had registered the cases under section 13-D of the Ordinance against the two appellants and had also recorded statements of witnesses, and thereafter, challaned the case before the Court: In cross-examination he has deposed that the gun in question was in the name of Nizamuddin, while revolver was in the name of Zulqarnain. Accused Zulqarnain was injured when he arrested him from the hospital. He had recorded his statement but did not register any case on the basis of his statement. The evidence of all the witnesses shows that there was exchange of hot words between the parties before the fight took place. The evidence of Wazir Khan complainant shows that they were fired at from outside and he has not named any person who fired at them. The evidence of P.W. Hakamdad also shows that the firing started outside due to which the witnesses and the deceased were injured. The evidence of P.W. Muhammad Shah shows that the accused had gone to his Dera alongwith 5/6 persons and all of them were armed with fire-arms. They started firing and he also sustained injuries so also the witnesses and deceased. He has not specifically stated as to who fired at him and at the witnesses. Aurangzeb P.W.7 has stated in his examination-in chief that he saw the two appellants alongwith other persons firing on the persons sitting in the Jhuggi but in cross-examination he has stated that 'Rana Ghayyur was not present at the time of incident but he came later on'. From the evidence it is clear that the fight took place all of a sudden and there was exchange of hot words between the, parties therefore the fight took place. None of the witnesses have specifically stated that appellant Rana Ghayyur had fired at a particular person. P.W. Aurangzeb has stated in cross examination that Rana Ghayyur was not present at the time of incident but he came later on. It is also an admitted position that there was a dispute between the parties over accounts of Anjuman and their relations were stained. In this view of the matter I am of the considered view that the case against appellant Rana Ghayyur is doubtful and therefore, while extending benefit of doubt to him, his appeal is allowed, his conviction and sentence are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case. As far as appellant Rana Zulqarnain is concerned, all the witnesses are unanimous except Wazir Khan and Hakamdad that appellant Zulqarnain had fired alongwith other persons and a gun was also secured from him, He had also sustained injuries in the fight and therefore, his presence in the fight at the time of incident stands proved, and therefore, he has been rightly convicted. However, looking to the facts and circumstances of the case, including the fact that he himself was injured in the incident, I reduce his substantive sentence under section 304, fart I, P.P.C. from 10 years to 5 years. However, sentence of fine of Rs.10,000 is maintained, in default whereof he shall suffer further R.I. for six months. As far as conviction under section 307 is concerned, injuries sustained by the witnesses are simple in nature and p therefore, the same is altered from section 307, P.P.C. to section 324, P.P.C. and the sentence is reduced from 7 years to 3 years. The two sentences shall run concurrently. The appellant shall be entitled to the benefit of provisions of section 382-B, Cr.P.C. The appeal of Rana Ghayyur is allowed and he is acquitted of the charges, while appeal of appellant Rana Zulqarnain is dismissed with modification in sentence. I had decided the above appeal by a short order on 9-4-1991 and these are the reasons for the same. N.H.Q./Z-172/K Order accordingly.