1976 P Cr (PLP)

ABDUL JABBAR KHAN, J.‑Safdar Hussain (24) and Karamat Hussain (32), sons of Karam Ullah, Muhammad Asghar son of Nasarullah (47) and Ghulam Muhammad alias Muhammad Azam son of Allah Bakhsh (25), were tried by the learned Sessions Judge, Jhelum, under sections 302, 452 and 325/34, P. P. C. for committing the murder of Khuda Dad deceased and causing injuries to Sardar Khan, Mst. Rasool Bi, Fazal Dad and Abdul Khaliq P. Ws. during the course of criminal trespass committed by them in furtherance of their common intention in the house of the complainant. Vide his judgment 17th January 1975, the learned trial Judge found all the accused guilty and sentenced them as follows:‑ Safdar Hussain accused was sentenced to death under section

302. P. P. C. with a fine of Rs. 1,000 or in default thereof to undergo one year's R. I. Safdar Hussain, Karamat Hussain, Muhammad Asghar and Ghulam Muhammad accused were convicted and sentenced to two years' R. I. each under section 325/34, P. P. C. with a fine of Rs. 200 each for causing grievous injury to Mst. Rasool Bi P. W., or in default of payment of fine to undergo further two months' R. I. each. All of them were further sentenced to five years' R. I. with a fine of Rs. 300 each or in default of payment of fine to three months' R. I. each under section 452/34, P. P. C., for committing criminal trespass into the house of Sardar Khan P. W.

11. All the convicts have filed a joint appeal against their conviction and sentences while there is also a Murder Reference before us under sec tion

374. Cr. P. C. for the confirmation of sentence of death awarded to Safdar Hussain accused. We will dispose of both, the appeal as well as the Murder Reference by a single judgment.

2. It may be mentioned here that Karamat Hussain, Muhammad Asghar and Ghulam Muhammad appellants, were enlarged on bail by the order of this Court dated 18‑2‑1975.

3. The occurrence took place on 11th May 1972 at sunset time (6‑30 p.m.) within the abadi of village Langarpur In the house of complainant Sardar Khan P. W.

11. The place of occurrence was situated at a distance of 7 miles from Police Station, Saddar Jhelum. In this connection F. I. R. Exh. P. A. was lodged by Sardar Khan P. W. 11 at 10‑30 p.m. which was recorded by Muhammad Anwar S. I. P. W. 16.

4. The motive as set up by the prosecution in this case is that Mst. Manzoor Begum, sister of Karamat Hussain and Safdar Hussain appellants, was married to Abdul Khaliq P. W. 12, cousin of deceased's father, 13 years prior to this occurrence. In exchange Mst. Fateh Begum, sister of Abdul Khaliq P. W. was married to Karamat Hussain appellant. It was only 7 months before this occurrence that relations between the two sets of spouses became strained and women‑folk returned to their parents' houses. A Panchayat was held sometime earlier to this occurrence at the request of the accused party to sort out the differences between them. Sardar Khan P. W. 11 Vice‑Chairman of the Pakistan People's Party, who headed the Panchayat decided that Mst. Manzoor Begum, the sister of Karamat Hussain and Safdar Hussain appellants should be restored to her husband in the first instance and thereafter Abdul Khaliq P. W. would be asked to send his sister to the appellant Karamat Hussain's house. This decision was resented by the accused party and it was stated that Karamat Hussain appellant threatened to take revenge.

5. The narration of the events has been given by Sardar Khan P. W. 11, in F. I. R. Exh. P. A., which is as under:‑ On the fateful evening at about sunset time while Sardar Khan com plainant was sitting alongwith his maternal nephew Khuda Dad deceased, his brother Mst. Rasool Bi P. W. 14 and his brother‑in‑law Fazal Dad, in the courtyard of his house, Abdul Khaliq P. W. 12 also came and joined them. Soon after Karamat Hussain appellant armed with rifle, Safdar Hussain appellant armed with gun, Muhammad Asghar appellant armed with a lathi accompanied by another person whose name later on was confirmed as Ghulam Muhammad alias Ghulam (appellant) entered into the courtyard of the complainant. Safdar Hussain appellant challenged and asked his companions to catch hold of the complainant. Ghulam Muhammad appellant initiated the attack and gave a lathi blow on the head of Sardar Khan whereas Karamat Hussain inflicted a blow on the right upper arm of the complainant with the butt of his rifle. Muhammad Asghar appellant gave a lathi blow which fell on the right wrist of complainant's mother. Similarly Fazal Dad was hit by Ghulam Muhammad with the lathi and Abdul Khaliq P. W. was given lathi blows by Muhammad Asghar appellant. The com plainant with the help of Fazal Dad and Abdul Khaliq dragged Ghulam Muhammad appellant into their room and gave him beating in their self- defence. While inside the room the complainant saw from its window that Khuda Dad deceased had pushed his maternal grandmother Mst. Rasool Bi P. W. into a corner of veranda and rushed towards the appellants. It was within his and other witnesses' view that Safdar Hussain appellant fired four shots from his gun one after the other at Khuda Dad deceased, who fell down by the impact of the shots fired at him and died. Karamat Hussain appellant, during this opisode, kept on goading his other compatriots to destroy and kill the complainant party. On the hue and cry ensued during the course of this occurrence, one Rehmat son of Jiwan (not produced as won over), Muhammad Gulzar P. W. 13, also reached the place of occurrence and witnessed the same. Muhammad Asghar, Safdar Hussain and Karamat Hussain appellants ran away while firing in the air, whereas Ghulam Muhammad appellant was apprehended at the spot alonwith his lathi. This Ghulam Muhammad on interrogation, revealed his identity as one of the friends of Safdar Hussain appellant and told the complainant party that he had joined Safdar Hussain, Karamat Hussain and Asghar Ali appellants, in order to help them in this aggression.

6. After recording the statement Exh. P. A. of Sardar Khan P. W. 11, Muhammad Anwar S. I. left for the spot in the company of the complainant and reached there at 1‑00 p.m. He found Fazal Dad, Rasool Bi and Abdul Khaliq P. Ws. in an injured condition and prepared their injury statements Exhs. P. S., P. R. and P. T., respectively. Fazal Dad P. W. also produced blood‑stained lathl P. 6 which was taken into possession vide memo. Exh. P. E. He also prepared injury statement Exh. P. U. in respect of Ghulam Muhammad appellant, at the spot and arrested him. Next morning he prepared inquest report Exh. P. X. and injury statement Exh. P. V. of Khuda Dad deceased and sent his dead body to the mortuary for post- mortem examination under the escort of Muhammad Amin F. C. Blood stained earth was taken into possession, from the spot, vide memo. Exh. P. F. Crime empties P. 7 to P.10 were picked up by the Investigating Officer who sealed them into parcel vide memo. Exh. P. G. and also secured three 7 MM rifle empties P. 11 to P. 13 vide memo. Exh. P. H. and sealed them into separate parcels. He sent the injured witnesses and the accused with Muhammad Amin F. C. for medical examination. On 13th May 1972 he got site‑plans Exhs. P. Y. and P. Y./1 prepared from Muhammad Usman draftman P. W.

4. He arrested Muhammad Asghar and Safdar Hussain appellants on 23‑5‑1972. On interrogation, Safdar Hussain appellant made a disclosure on 26‑5‑1972 and then led to Pind Dadan Khan‑Jhelum Road, in the area of village Bagga and from near a culvert got recovered gun P. 1 with three cartridges, which be took into possession vide memo. Exh. P. B. He also prepared rough site‑plan of the place of recovery of gun vide Exh. P. G Thereafter Muhammad Asghar appellant led him to his village and got recovered licensed gun P. 3 with licence P. 4 which were taken into possession vide memo. Exh. P. C. The Investigating Officer arrested Karamat Hussain appellant on 28‑5‑1972. Nothing was recovered either from his person or at his instance. The recovery of crime empties as well as the weapons of offence recovered at the instance of the appellants was considered by the learned trial Court as highly doubtful, according to observations made by it in paragraphs Nos. 34, 35 and 36 of its judgment at pages 76, 77 and 78 of the Paper Book. The trial Judge also held the statement of Sh. Muhammad Usman Fire Arms Expert (P. W. 15) as of no avail to the prosecution. We have gone through the reasoning of the learned trial Court in this regard and are in full accord with it. However, lathi P. 6 was found to be stained with human blood vide report of the Serologist Exh. P. J. J. at page 14 of the Paper Book.

7. Dr. Muhammad Hussain P. W. 1, performed post‑mortem examina tion on 12th May 1972 at 1‑30 p.m. on the dead body of Khuda Dad deceased and found the following injuries on his person:‑ (1) Multiple pellet marks on front of neck and upper part of chest. (2) A lacerated wound on upper part of chest 1 " x 1" x into the body. Skin near the injuries blackened. Margins inverted. In his opinion the death occurred due to shock and haemorrhage as a result of Injuries Nos. 1 and 2, which were sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injury and death was immediate and that between death and post‑mortem was abut 24 hours. This doctor, on the same day, medically examined Ghulam Muhammad appellant and found seven injuries on his person. Out of which two were contusion, two were lacerated wounds one swelling and two complaint of pain. All the injuries were simple caused by a blunt weapon within the duration of 24 hours. On the same day the same doctor medically examined Abdul Khaliq P. W. 12 and found three injuries on his person. Out of which one was mere complaint of pain, the second an abrasion and the third a contusion mark. All these injuries were simple in nature caused by a blunt weapon within the duration of 24 hours. On the same day this doctor medically examined Sardar Khan P. W. 11 and found five injuries on his person. Out of which one was a lacerated wound while rest four were abrasions. All these injuries were simple and caused by a blunt weapon within the duration of 24 hours. On the same days, this doctor, medically examined Fazal Dad son of Ghulam Qadir and found only one injury on his person by saying that he explained pain in his left forearm. He found no mark of violence. This injury was simply caused by a blunt weapon within the duration of 24 hours. Lady doctor Zubaida Khatun P. W. 2, medically examined Mst. Rasool Bi P. W. 14 on 12th May 1972 and found two injuries on her person, out of which first was a swelling while the second was complaint of pain. On X‑Ray Injury No. 2 revealed the fracture of collis meaning thereby that the bone was fractured on the both sides. The injuries were caused by a blunt weapon.

8. All the appellants denied their participation in the crime and had professed their innocence. However, Ghulam Muhammad appellant in his statement under section 342, Cr. P. C. before the trial Court stated that while he was passing from Langarpur village and was going to Dina at evening time, he was hauled up by the complainant party on suspicion and was injured at their bands.

9. The learned trial Court while disbelieving Muhammad Gulzar P. W. 13 and relying on the ocular testimony of the P. Ws. supported by the medical evidence and motive, found that there was no common intention shared by all the appellants to commit any murder and therefore, it held each one individually responsible for his own act. In its view as Safdar Hussain appellant was responsible for the only and fatal injury on the person of the deceased, therefore, he was found guilty of murder.

10. We have heard the learned counsel for the appellants as well as for the State at length and have perused the record of the case carefully with their assistance. It has been submitted that conviction of Karamat Hussain, Ghulam Muhammad and Muhammad Asghar appellants cannot be main tained under section 452/34, P. P. C. for the manifest reason that the court yard into which the trespass had been committed, was not bounded by four walls and therefore, at the most, their offence will fall within the purview of section 447, P. P. C. and similarly as the injuries attributed to them, were simple in nature, therefore, they could not be convicted under section 325/34, P. P. C. In view of these contentions it was urged that the sentence of five years' R. I. under section 452/34, P. P. C. and two years' R. I. under section 325/34, P. P. C. were not maintainable. As regards Safdar Hussain appellant, it was submitted that even if it was proved that Safdar Hussain appellant had fired the fatal shot at Khuda Dad deceased, he in fact had acted in self‑defence, therefore, his conviction under section 302, P. P. C. was not justified. In this connection the learned counsel relied on the statement of Mst. Rasool Bi P. W. 14 and that of the complainant Sardar Khan P. W. 11, in, which it has been stated by them that Khuda Dad deceased after leaving Mst. Rasool Bi P. W. in a corner of the veranda rushed towards the deceased It was thereby contended that as it looked more likely that the deceased wanted to snatch the gun from the hands of Safdar Hussain appellant, in order to disarm him and kill him, therefore, the appellant was fully justified to shoot him for the safety of his own person. In support of this argument reliance was placed on the medical evidence in which it was stated that the skin was blackened near the injury. It was urged that this observation in the medical evidence proved that the deceased was shot at from a very close quarter.

11. While going through the evidence on record, we find that con tention regarding conviction under section 452/34, P. P. C. of Muhammad Asghar, Ghulam Muhammad and Karamat Hussain appellants, finds support from the evidence of Sardar Khan P. W. 11 and Muhammad Usman Draftsman P. W. 4 who had stated before the trial Court that the street ran on the east of the house of the complainant and that there was no wall between the street and the courtyard. 7herefore, we are of the considered opinion that the conviction under section 452/34, P. P. C. cannot be maintain ed against them and in view of the matter they would at the most be con victed for committing criminal trespass as contemplated under section 447, P. P. C. The scrutiny of medical evidence on the record does show that it was only Mst. Rasool Bi P. W. who received a grievous injury, as injuries on the persons of other P. Ws. were found to be simple in nature. This will in no way advance the case of the defence as in the presence of a grievous injury on Mst. Rasool Bi P. W., the learned trial Court was fully justified to hold the others guilty alongwith Muhammad Asghar appellant under section 325/34, P. P. C. Keeping in view the circumstances of this case and the unfortunate matrimonial background between the parties, we think that the ends of justice would be met if the sentences under sections 452/34 and 325/34, P. P. C. are reduced to the period already undergone by Muhammad Asghar, Ghulam Muhammad and Karamat Hussain appellants. We order accordingly. They have been in judicial lock‑up since 1972 and have also suffered substantive sentence of one month. Since, they are on bail, they are discharged of their bail bonds.

12. We have taken into consideration the plea of self‑defence as raised by the learned counsel on behalf of Safdar Hussain appellant. We are afraid that we cannot contribute to this plea and repel it as being without any substance. Safdar Hussain appellant and his companions had com muted criminal trespass while armed with deadly weapons and thus by no stretch of imagination, he could have apprehended a potential threat either of grievous hurt or danger to his life, from an empty‑handed person like Khuda Dad deceased. The action of Khuda Dad deceased in rushing towards this appellant was based on the natural instinct of self‑preservation which might have given courage to this unfortunate person to reach near Safdar Hussain appellant and to push aside the weapon of offence which he was going to aim at him. This leap of the deceased towards the appellant under no circumstances gave him any right under the law to shoot Khuda Dad deceased who was empty‑handed. Learned defence counsel has tried to make capital out of the observation of the learned trial Court in para graph No. 39 of its judgment, which runs as follows:

. . Khuda Dad deceased who was a young man ran towards the other accused and it seems that in spite of the first two shots of Safdar Hussain accused, he did not retreat and rather proceeded ahead and rather seems to have caught hold of the barrel whereupon Safdar Hussain accused was forced in the situation to directly fire at him from a very close range hitting him in the chest, neck and face." Learned counsel forcefully contended that in fact this picture of the occurrence as constructed by the learned trial Court, fully revealed that the appellant was cornered by the deceased and was forced in the situation to directly fire at him. We are of the firm view that this observation of the learned trial Court, in no manner, assists the defence in setting up a plea of private defence and we consider it nothing but a vain attempt to make a mountain out of a mole hill. We therefore, reject it as being without any force. However the learned counsel has failed to appreciate that it was also observed by the learned trial Court in the same paragraph that when Safdar Hussain appellant leapt forward, he had already been hit twice by the shots of the appellant. Anyhow in view of the picture so drawn by the learned trial Court, we, as a matter of abundant caution, refrain from visiting death penalty upon Safdar Hussain appellant.

13. The upshot of the above discussion is that we dismiss the appeal of Safdar Hussain appellant and maintain his conviction under section 302, P. P. C. but modify his sentence from death to that of imprison ment for life. The sentences under section 452/325/34, P. P. C. awarded to him are reduced to the period already undergone by him. The Murder Reference for the confirmation of his death sentence is hereby rejected.

14. With the above modification the appeal is partially accepted. Order accordingly.