1977 P Cr (PLP)

(2) A contused wound " X 1/6" skin deep on the left side of scalp 4 " above the left ear. (3) Complained pain all over the body. All the injuries were simple in nature caused by a blunt weapon. On 16‑4‑1973, Dr. Muhammad Taqi, Medical Officer Dharyala Jalap, District Jhelum, examined Feroze Khan P. W. and found the following injuries on his person :‑ (1) Contusion mark with brown colour 1" below the left nipple on the front of the left side of the chest 2" x 1 ". (2) Moderate swelling on the upper aspect of left shoulder joint. (3) Contusion mark 1 1/4" X 1 1/4" on the right angle of the lower jaw. (4) Moderate swelling on the lower aspect of the chin. All the injuries were simple in nature caused by blunt weapon within the duration of 96 hours. On 24‑4‑1973 Dr. lbrar Elahi, Medical Officer, D. H. Q. Hospital, Jhelum, examined acquitted accused Muhammad Afzal and found the following injuries on his person:‑ (1) A healed wound (lacerated) 3" X " on the parietal part of the scalp (ten days old). (2) A healed wound (lacerated) 2" X " on the occipital part of the scalp. (3) A fading contusion (ten days old), 4" X 1" on the left side of back of chest. (4) A fading contusion (ten days old) vertically on the back of the right chest. All the injuries were simple in nature caused by blunt ‑weapon within the duration of ten days. 6. 1n support of its case the prosecution examined three eye‑witnesses, namely Qadar Dad (P. W. 13), Ghulam Ali (P. W. 14) and Sardar Beg (P. W. 15). Another eye‑witness namely, Feroze Khan P. W. was examined in the committing Court but he died before the trial and his statement was transferred to the Sessions file under section 33 of the Evidence Act and is substantive evidence in the case. The prosecution also relied on the motive and the evidence relating to the recovery of licensed weapons of Sardar Beg and Ghulam Ali P. W. from Muhammad Iqbal and Muhammad Asghar appellants.

7. The accused persons pleaded not guilty to the charge. Muhammad Iqbal appellant admitted that acquitted accused Abdul Rehman alias Abdul was his friend and the other accused were closely related to him. He also admitted that 12 or 13 days prior to the occurrence there was a quarrel between his sons Iftikhar and Zulfiqar on one side and Tariq Mahmud and Israr Mahmud sons of Mst. Iqbal Begum on the other and that Tariq Mahmud and Israr Mahmud complained to Javid Akhtar P. W. (not produced) son of Feroze Khan P. W. whereupon he reprimanded lftikhar and Zulfiqar and also slapped them, lie also admitted that he had given beating to Feroze Khan P. W. and his son Javid Akhtar for maltreating his children in his absence and gave a counter‑version of the occurrence as under :‑ "On the day of occurrence I and Muhammad Afzal were present at my house. There we were assaulted by Abdul Hamid deceased with a Lathi. Sardar Beg P. W. with revolver and Ghulam Ali with a gun. Abdul Hamid on coming to my house raised a Lalkara and abused me. Muhammad Afzal, co‑accused not to do so, checked him. On this he gave Lathi blows to Afzal accused and when Ghulam Ali P. W. was loading the gun, I jumped at him and snatched it. Afzal accused snatched Soti of Hamid deceased and with it he injured Sardar Beg and when the revolver of Sardar Beg fell down, as his first shot had missed, Afzal accused picked the same up. Hamid deceased and Sardar Beg P. W. tried to snatch the revolver from Afzal accused and when they were grappling the revolver was fired and in that state the deceased was injured." He produced a copy (Exh. DH) of the statement of Muhammad Zaman P. W. made before Civil Judge, Jhelum. Acquitted accused Muhammad Afzal also adopted the statement of Muhammad Iqbal appellant. Muhammad Asghar and Abdul Rashid appellants stated that they were not present at the spot and had been falsely implicated due to enmity. No evidence was led in defence.

8. After a detailed discussion of the evidence the learned trial Judge observed that Lai Khan, Muhammad Afzal and Abdul Rehman alias Abdul were entitled to the benefit of doubt and consequently he acquitted them of all the charges. About Muhammad Afzal accused he observed that it could be said that he had acted in exercise of the right of self‑defence when some one from the complainant party assaulted him. He believed the prosecu tion evidence against the remaining three accused, namely, Muhammad Asghar Muhammad Iqbal and Abdul Rashid and convicted and sentenced them as mentioned above.

9. The learned counsel for the appellants vehemently argued that in the earlier incident Muhammad lqbal appellant had insulted and disgraced Feroze Khan P. W., therefore, :he grievance was on the complainant side and the accused party had no motive to kill the deceased. He contended that the occurrence took place in front of the house of Muhammad Iqbal appellant and according to prosecution's own showing two members of the complainant party were armed with fire‑arms when they left village Rasul for Chak Memda and these facts were consistent with the assumption that the members of the complainant party were the aggressors. He further submitted that the accused party had no information that the complainant party would come to their village, therefore, there was no occasion for them to sit in ambush for the complainant party as alleged by the prosecution and it was the complainant party who after arming themselves with fire‑army and blunt weapons launched attack on the accused party in order to avenge the earlier incident in which Feroze Khan P. W. a close relative of the complainant party, was beaten and disgraced. He contended that acquitted accused Muhammad Afzal was injured during the occurrence but his injuries were suppressed by the eye‑witnesses obviously with a view to defeat the plea of self‑defence. Therefore, their testimony was not entitled to any credence. Lastly, he submitted that the investigating officer deliberately delayed the despatch of the dead body to the mortuary in order to gain time to build up a story, therefore, the prosecution version was extremely doubtful.

10. The motive alleged by the prosecution is that 12 or 13 days prior to the occurrence Tariq Mahmud and Israr Mahmud sons of Mst. Iqbal Begum daughter of Feroze Khan P. W. had a quarrel with Iftikhar and Zulfiqar sons of Muhammad lqbal appellant about which Tariq Mahmud and Israr Mahmud complained to their maternal uncle Javid Akhtar who reprimanded Iftikhar and Zulfiqar and also slapped them. Muhammad Iqbal appellant was employed in the Army in those days and his father Lai Khan accused informed him about this incident through a letter and he came to the village on leave about five or six days before the occurrence. A day prior to the occurrence at about 9 or 10 a.m., Muhammad Iqbal appellant and his nephew Muhammad Khurshid gave beating to Feroze Khan P. W. when he was returning to his house in the company of his son Javid Akhtar. They also felled him down as a result of which his loin‑cloth got untied and he became naked. These facts were almost admitted by acquitted accused Lai Khan, Muhammad Afzal and Muhammad lqbal appellant in their statements under section 342 of the Code of Criminal Procedure. Feroze Khan P. W. is no doubt very closely related to Muhammad Iqbal appellant but the evidence shows that serious estrangement had developed between the parties much before the occurrence. It was suggested to Feroze Khan P. W. that Muhammad Ayub brother of Muhammad Iqbal appellant had deserted his daughter but he denied the suggestion as incorrect. He, however, admitted that Muhammad Ayub had been a P. O. W. in India and Lai Khan accused had been receiving his pay during his detention and his son made a complaint to the Superintendent of Police against Lai Khan in that connection. The deceased and the eye‑witnesses, namely, Sardar Beg, Qadar Dad, Ghulam Ali and Mst. Sahib Nur, are also closely related to Feroze Khan P. W. and the evidence shows that they had very cordial relations with him. Mst. Sahib Nur is the real sister of the wife of Feroze P. W. Sardar Beg P. W. is the son of Asst. Sahib Nur and so was Abdul Hamid deceased. Qadar Dad and Ghulam Ali P. Ws. are the cousins of Mst. Sahib Nur Mst. Irshad Begum daughter of Feroze Khan P. W., is married with Abdul Aziz, son of Mst. Sahib Nur. It is obvious that they must have felt aggrieved on coming to know that Muhammad Iqbal appellant had beaten and disgraced Feroze Khan P. W. Since Feroze Khan had come out worse in the earlier incident, therefore, the grievance was clearly on the side of the complainant party. The complainant party are residents of village Rasul while the earlier incident in which Feroze Khan was beaten and insulted, had taken place in Chak Memda, the village of Feroze Khan P. W. and Muhammad IqbaI appellant. An important question that arises in this case is as to how the complainant party came to know about this incident and for what purpose they visited Chak Memda. Qadar Dad, Ghulam, Ali and Sardar Beg P. Ws. stated that on the day of occurrence Abdul Hamid deceased told them that some body had informed him that Muhammad Iqbal appellant had injured Feroze Khan P. W. and they thought of going to Chak Memda in order to bring about a reconciliation between Feroze Khan P. W. and Muhammad Iqbal appellant. It is pertinent to note that all the above mentioned eye‑witnesses improved their statements with regard to the source of their information about the incident in which Feroze Khan was beaten as also the purpose for which they visited Chak Memda. In their statement before the police they did not mention that Abdul Hamid deceased told them that is was informed by some one about the assault on Feroze Khan P. W. In their statements before the police with which they were duly confronted, they simply stated that they had received information that Feroze Khan had been injured by his nephew Muhammad IqbaI without saying anything about the source of this information. Again, at the trial Qadar Dad, Ghulam Ali and Sardar Beg P. Ws. stated that on receiving the information about the assault on Feroze Khan P. W. they started for Chak Memda in order to bring about a compromise between Feroze Khan and Muhammad Iqbal appellant. They were confronted with their statements before the police where it was not so recorded. According to their police statements, they had gone to Chak Memda in order to sympathise with Feroze Khan P. W. (for pursi). Admit tedly, Feroze Khan P. W. had strained relations with his brother Lai Khan accused and his nephews Muhammad Iqbal, Asghar and Afzal accused, therefore, it appeals to reasons that he had sent some one to village Rasul to inform his relatives about the incident in which he was beaten and humiliated by Muhammad Iqbal appellant and the suggestion put to Qadar Dad and Ghulam Ali P. Ws. that Javid Akhtar P. W. had gone to them at Rasul to inform them about the incident, appears to be correct. The above‑mentioned eye‑witnesses have made an attempt to suppress the purpose of their visit to Chak Memda. In the F. I. R. it was stated that they had gone there to sympathise with Feroze Khan P. W. but at the trial they deposed that they visited that village, as they wanted to bring about reconciliation between the parties. It is, however, not very difficult to find out the real purpose of their visit. The prosecutions own case is that the Ghulam Ali P. W. was armed with his licensed gun and Sardar Beg P. W. with his licensed revolver when they and other eye‑witnesses went to Chak Memda. It is not under standable why the eye‑witnesses thought of going armed if the purpose of their visit was to bring about reconciliation between the parties or to sympathise with Feroze Khan P. W. No arm was required either for bringing about a compromise or for sympathizing with aforementioned Feroze Khan. The arms were only required for the purpose of taking revenge from Muhammad Iqbal appellant and there are circumstances indicating that the members of the complainant party armed them selves for that purpose and went to Chak Memda. The eye‑witnesses stated that on reaching Chak they were proceeding on the Banna of the field of Muhammad Khan and when they reached in front of the house of Muhammad Iqbal appellant they saw the appellants and the acquitted accused variously armed sitting in his courtyard. On seeing them, acquitted accused Lai Khan asked them to stop and they told him that they were going to the house of Feroze Khan but he replied that he would not allow any body to visit the house of Feroze Khan P. W. and exhorted his co‑accused to kill them upon which they opened the attack. Qadar Dad P. stated that they started from Rasul at 12 noon and after crossing, Tile River they reached village Bajwala and from there to Chak Memda. In the. Committing Court Sardar Beg P. W. had stated that there is a Kachha‑Pacca road connecting Bajwala with Chak Memda from which a street goes to the house of Feroze Khan P. W. and if one goes along this route then the house of Muhammad IqbaI appellant does not fall on the way. In the. Committing Court Khalid Mahmud Patwari stated: "It is correct that only one passage (path) leads to Chak Mehmind from the villages Mandi Bahauddin, Rasul and Chakri Rajghan. This path is a road. There is no other path coming from the aforementioned villages to Chak Mehmind. It is correct that the house of Feroze Khan P. W. is situated by the side of that road and comes first when one enters the village. It is further correct to suggest that the house of Muhammad Iqbal accused is at a distance of 300 yards from the house of Feroze Khan and it comes next when one passes in front of the house of Feroze Khan". If it were so, then there was no occasion for the eye‑witnesses to reach in front of the house of Muhammad Iqbal appellant while proceeding to the house of Feroze Khan P. W. The evidence and the circumstances lend support to the view that the eye‑witnesses felt aggrieved over the earlier incident in which Feroze Khan P. W. was beaten and disgraced and after having armed themselves they started for village Mernda in order to teach a lesson to Muhammad Iqbal appellant. There is absolutely no evidence on the record to show that the accused party .had the knowledge that the complainant party would be coming to Chak Memda on the day of occurrence and the prosecution version that the accused persons after having armed themselves with firearms and blunt weapons were sitting in ambush does not appear to be correct. The investigat ing officer stated that he arrested Muhammad Afzal (acquitted accused) on 21‑4‑1973 and after preparing his injury statements sent him to Dharyala Jalap for medical examination but the Medical Officer reported that he Muhammad Afzal accused) was unwilling to get himself examined. Muhammad Afzal accused was later on examined on 24‑4‑1973 and four injuries were found on his person, which had been caused within the duration .of ten days, which corresponded with the time of occurrence. According to the medical evidence, these injuries had been caused by a blunt weapon, which shows that besides Ghulam Ali and Sardar Beg who were armed with firearms, at least one member of the complainant party was also armed with blunt weapon. Out of the four injuries, two were on his head (parietal and occipital part), which is a vital part of the body. The learned ‑trial Judge held that Muhammad Afzal accused had acted in self-defence when he was assaulted but observed that in view of the peculiar circumstances, of the case the same right was not available to the appellants and it is here that he erred. The peculiar‑circumstances according to him, were that Sardar Beg and Ghulam Ali P. Ws. had firearms but they did not use them at all which indicated that there was no bad intention on the part of the. Complainant party. He proceeded on the assumption that the occurrence took place when a Punchayat of the brotherhood was being held to bring about a compromise between Feroze Khan P. W. and Muhammad IqbaI appellant and observed as under :‑ "When a Panchayat of the brotherhood was being held including the members of the family of Feroze Khan P. W., the family from Rasool and the family of the accused, then if some body had the bard headedness to cause injuries to Afzal accused, then he could well have been stopped by the participants of the Panchayat. It seems in the circumstances of the case that these accused had predetermined to teach a lesson to the family from Rasool, who had come to sympathize with Feroze Khan P. W. and perhaps found an excuse when Mohammad Afzal accused was injured to fire at the deceased and others. The assault was so concerted that it continued for ten/fifteen minutes and even a lady was injured. So Mohammad Iqbal, Muhammad Asghar ‑and Abdul Rashid accused had right from the beginning the common intention to cause the murder, which they did, and also to injure others. Mohammad 1qbal accused seems to be a desperate type of man who as per medical evidence so beat Feroze Khan (P. W. 10) that his chin and lower jaw were swollen. Over a petty affair he had so disgraced his uncle Feroze Khan P. W. that he was made naked in broad daylight and in presence of women and men. In the circumstances ‑the right of self‑defence of the person of Mohammad Afzal accused cannot be extended to these accused." I am constrained to say that there is not an iota of evidence on the record even to suggest that any Panchayat was being held when this occurrence took place and the finding of the trial Judge to that effect is wholly conjectural. It is admitted by the prosecution that Sardar Beg and Ghulam Ali who were injured during the occurrence, had firearms with them. Had they gone to attend any Panchayat they would not have taken the firearms with them because Panchayats are held to settle the disputes or to bring about reconciliation between the rival parties and not to provoke the opponent party hey show of arms. The finding of the learned trial Judge that "if some body had the hardheadedness to cause injuries to Afzal accused, then he could well have been stopped by the participants of the Panchayat" is entirely whimsical. Not only Muhammad Afzal accused had the right to defend his person but his other companions, including the appellants, had also the same right to defend his person. Under section 97 of the Pakistan Penal Code every person has a right, subject to the restrictions contained in section 99, to defend his own body and the body of any other person, against any offence affecting the human body. Relying on the statement of the eye‑witnesses, the learned trial Judge further observed that Sardar Beg and Ghulam Ali P. Ws. had firearms but they did not use them at all, therefore, the complainant party had no intention to injure any body. What the eye‑witnesses have stated is not the gospel truth. They are not trustworthy because they tried to suppress the injuries of Muhammad Afzal accused obviously with a view to show that they were subjected to aggression without any excuse. Their very presence in front of the house of Muhammad Iqbal appellant with firearms and blunt weapons is a very strong circumstances against the prosecution. It was not out of love and affection for the accused party that they refrained from using the firearms and the defence version that the accused party did not allow them to use these weapons, seems to be more plausible. It is an admitted fact that one day prior to the occurrence Feroze Khan P. W. was beaten and insulted by Muhammad Iqbal appellant. Circumstances are consistent with the assumption that information of that incident was sent to the deceased, the injured P. Ws. and Qadar Dad complainant at Rasul and they were called for help. They responded to the call and after having armed themselves with firearms and blunt weapons went to Chak Memda to avenge the beating given to Fer07e Khan P. W. There can be an argument that Mst. Sahib Nur was also injured and if the complainant party had gone to attack the accused party they would not have taken her along. After perusing the record I am of the view that the prosecution evidence relating to her injuries is highly unsatis factory and it cannot be said with judicial certainty that she had sustained the injuries during the occurrence. She was the best witness of her injuries but the prosecution and the other eyewitnesses made material improvements with regard to the seats and number of her injuries with a view to come in line with the medical evidence did not examine her. After having juxtaposed both the versions, I am clearly of the view that the complainant party had a motive to attack Muhammad Iqbal appellant and after arming themselves with deadly weapons they went towards his house and there is a reasonable possibility that the appellant had acted in self-defence. Two injuries were on the head of Muhammad Afzal accused, which is vital part of the body and by causing the death of the deceased; they did not exceed the right allowed to them by law.

11. I am constrained to say that the investigating officer committed very serious irregularities during the investigation. A bullet was recovered from the dead body and according to the prosecution, Muhammad Iqbal appellant had produced the revolver of Sardar Beg P. W. before the S. H. O. on 16‑4‑1973 but, strangely enough, the bullet was not sent to the Forensic Science Laboratory for expert opinion. The learned counsel for the appellants contended with some justification that the investigating officer was aware that the bullet had been fired from the said revolver as alleged by Muhammad Iqbal appellant and was apprehensive that the report of the Firearms Expert to that effect would wash away the entire prosecution version, therefore, the bullet was purposely not sent to the Forensic Science Laboratory.

12. The inordinate delay in despatching the dead body to the mortuary is another circumstance, which discredits the prosecution version and lends support to the view that the investigating officer gained sufficient time to build up a story. The occurrence took place on 14‑4‑1973 shortly before sunset but the post mortem examination on the dead body was conducted on 16‑4‑1973. The investigating officer and Ghulam Haider F. C. (P. W. 7) who escorted the dead body to the mortuary tried to explain this delay but their statements are full contradictions and do not inspire confidence. Ghulam Haider F. C. stated that he reached the spot at 11 or 12 noon along with the investigating officer and escorted the dead body to the mortuary at Pind Dadan Khan but the doctor was not available there and then he took it to Jhelum where the post mortern examination was performed. In cross examination lie stated that Dharyala Jalap Hospital is nearest to the spot and post mortem examination are also conducted there. He further stated that Jhelum is nearer than Pind Dadan Khan and expressed his inability to explain as to why he was not sent to Dharyala Jalap Jhelum in the first instance but in the same breath he stated that from the spot he came to Dharyala Jalap Hospital but the doctor was not available there and then he proceeded to Pind Dadan Khan but since no doctor was available there as well, therefore, he took the dead body to the mortuary at Jhelum. He further stated that he had gone to Dharyala Jalap for post‑mortem examination under the written instruction of the S. H. O. and from there he did not return to the spot or to the police station to get any order from the investigating officer for the hospital at Pind Dadan Khan. He added that application Exh. PN (injury statement) was given him by the S. H. O. for the doctor at Pind Dadan Khan and no such application was given to him for the doctor at Dharyala Jalap and he was unable to explain as to why he had gone there. He further stated that on his way from Pind Dadan Khan to Jhelum he did not see the S. H. O. and took the dead body to the mortuary at Jhelum with the application Exh. PN referred to above. He, stated that he had no other application with him but when application .Exh. PN/1 addressed to the Medical Superintendent, Jhelum, was shown to him he stated that he had taken that application to the doctor .at Jhelum. He was asked to explain as to how he got application Exh. PN/I from the S. H. O. when he had gone straight from Pind Dadan Khan to Jhelum without seeing any police officer and he replied that Exh. PN/] was brought to hilt by Zaman constable. The investigating officer. Gave a totally‑ different version with regard to the carriage of the dead body to the mortuary. He stated that on 15‑4‑1973 he visited the spot and in the, very beginning prepared two injury statements Exhs. PN and PN/1 and entrusted the dead body to Ghulam Haider and Zaman constables for post‑mortem examination. He explained that he gave two injury statements to the foot constables so that if the doctor was not available at Pind Dadan Khan they might get the postmortem conducted at Jhelum. He admitted that the distance between Pind Dadan Khan and Jhelum was fifty miles and Chakwal was at distance of thirty miles from Pind Dadan Khan and he had not written any Ruqqa for the doctor at, Chakwal. It has already been mentioned that Ghulam Haider P. W. had stated that Dharyala Jalap Hospital is nearest to the spot and Jhelum is ‑nearer to the spot than Pind Dadan Khan. It is not understandable why the S. H. O. in the first instance, did not send the dead body to Dharyala Jalap or Jhelum which were nearer to the spot than Pind Dadan Khan and why he did not instruct the constables to take the dead body to Chakwal instead of Jhelum in case the doctor was not available at Pind Dadan Khan. The prosecution has thus miserably failed to explain the delay in despatching the dead body to the mortuary and there is much force in the submission that the investigating officer wanted to gain time to build up a story.

13. Since serious irregularities were committed during the course of ‑investigation and the investigating officer was guilty of padding, therefore, no importance can be attached to the. Evidence relating to the recovery of firearms from Muhammad Iqbal and Mohammad Asghar appellants.

14. For all the foregoing reasons, I am of the view that the prosecution version of the occurrence is fraught with serious doubts and the defence version is more plausible than the prosecution case. I, therefore, accept this appeal, set aside the conviction and sentence of the appellants and acquit them of the charges against them. They shall be set at liberty forthwith if not required to be detained in any other case.

15. Criminal Revisions Nos. 189 and 190 of 1976 automatically fail and arc dismissed. Appeal allowed.