1976 P Cr (PLP)

Muhammad Aslam, aged 36 years aid his brother Muhammad Akram, aged 27 years, both sons of Ghulam Murtaza, have been convicted under section 304(1) read with section 34, P. P. C. for causing the death of Sharaf Din, aged 38/40 years and each of them was sentenced to 10 years' R. I. plus fine of Rs. 2,000 or in default to undergo two years' R. I. and if the fine was realized from them, out of the same Rs. 2,000 was to be paid to Khuda Bakhsh (P. W. 11) as heir of the deceased ; they were likewise con victed under section 308/34, P. P. C. for the attempted murder of Khuda Bakhsh (P. W. 11) and Mst. Gohar Bano (P. W. 12) and each of them was sentenced to live years R. I. plus fine of Rs. 1,000 or in default to undergo one year' R.I. and it the fine was realized from them it was to be paid in equal shares to Khuda Bakhsh and Mst. Gohar Bano P. Ws. as compensation, vide judgment, dated the 30th of April 1975, of the Sessions Judge, Campbellpur. The sentences were ordered to run concurrently. The appeal of the convicts is before me which is being disposed of by this judgment The accused and the complainant‑parties are inter‑related. Both the appellants in this case had sustained injuries in the course of occurrence. Similarly. Mst. Gohar Bano, wife of Muhammad Aslam appellant was also injured during the course of occurrence at the hands of the complainant party. Khuda Bakhsh (P. W. 11) is brother‑in‑law of the deceased i.e. he is married to Mst. Gohar Bano (P. W. 12) who is sister of the deceased.

2. The occurrence took place at 8‑20 a.m. on the 4th of June 1973, in the area of village Dher Moond, at a distance of seven miles from Police Station Taman, District Campbellpur. Statement Exh. P. H. was made by Khuda Bakhsh (P. W. 11) at the Civil Hospital Talagang at 8‑10 p.m. on the same day and it was recorded by Hazreb Khan S. I. (P. W. 13) who had gone to the hospital on receiving information respecting the occurrence. Formal F. I. R. (Exh. P. H./1) was registered at the police station on the basis of the aforesaid statement at 11 p.m. on the same day by Muhammad Anwar, M. H. C., (P. W. 4). Originally a case was registered against the appellants under section 307/34, P. P. C. but on the death of the deceased on the same night at about 10 p.m., it was altered to section 302/34, P. P. C.

3. The motive for crime as stated in the F. I. R. is that Ghulam Muhammad paternal uncle of the deceased had died issueless and his landed property was inherited by the deceased and his brothers, namely, Roshan Din and Siraj Din (P. W. 8). However, the paternal uncle of the deceased, namely, Hayat Muhammad and his sons Ahmad Slier. Dost Muhammad, Sher Muhammad, Ghaus Muhammad and Misri Khan did not get any share from that inheritance. It is stated that two sisters of the appellants are wives of Ahmad Sher and Ghaus Muhammad and, therefore, the appellants had always sided with the family of Hayat Muhammad in their demand of share of property from the deceased and his brothers. It is further on the record that about four bighas of the said land were given as a gift by the complainant‑party to the sons of Hayat Muhammad and this led to some sort of compromise due to which the family of Hayat Muhammad had withdrawn their civil suit against the deceased etc. However, the sons of Hayat Muhammad were not satisfied with it and demanded half share of the said property. It has been stated that the appellants sided with them and that the occurrence took place because of the background of strained relations between the parties.

4. The prosecution has produced two eye‑witnesses of the occurrence, namely, Khuda Bakhsh (P. W. 11) brother‑in‑law of the deceased and Mst. Gohar Bano (P. W. 12), wife of Khuda Bakhsh P. W. and sister of the deceased. Both these eye‑witnesses were injured in the course of occur fence. However, they are closely related to the deceased and in the property dispute with the ether side, they were partisans of the deceased side. In this respect I am inclined to think that they are interested witnesses. The only independent or disinterested eye‑witness named in the F. I. R. i.e. Khewan Barber was not produced as he did not support the prosecution version. He was given up as won over.

5. Both the appellants were arrested on the 5th of June 1973, by Hazreb Khan S. I. (P. W. 13). Licensed revolver P. 20 was recovered at the instance of Muhammad Aslam appellant from the house of Ahmad Sher, his brother‑in‑law and was taken into possession vide memo. Exh. P. U., dated the 6th of July 1973. The only attesting witness produced is Nazim Ali S. I. (P. W. 7). Mst. Gohar Bano, wife of Muhammad Aslam appellant handed over from her house to Fateh Khan (P. W. 10) bag P. 7, revolver and gun licences issued in the name of Muhammad Aslam appellant P. 8 and P. y, pull‑through P. 10, letters P. 11 and P. 12 and bandolier P. 13, containing five live cartridges P. 14 to P. 18 which were taken into posses sion, vide memo. Exh. P. R., dated the 5th of June 1973. The two attesting witnesses produced are Fateh Khan (P. W. 10) and Hazreb Khan S. I. (P. W. 13). Licensed gun P. 6 was produced by Muhammad Aslam appel lant and taken into possession vide memo. Exh. P.O. dated the 5th of June 1973. The attesting witnesses are the same as above. Lead bullet was taken out from the dead body of the deceased by the medical officer and it was handed over to the police. This lead bullet in phial P. 5 was sent to the Fire Arms Expert alongwith revolver P.

20. In the opinion of Anwarul Haq Bajwa (P. W. 6) Fire Arms Expert this lead bullet was found to have been fired through revolver P. 20. (His report is Exh. P. BB.). Nothing was recovered from Muhammad Akram appellant. It may be pointed out at this stage that both the fire‑arms namely, revolver P. 20 and gun P. 6 stated to have been used in the commission of crime were licensed in the name of Muhammad Aslam appellant and he did not disown them in his statement before the trial Court.

6. The appellants in their statements before the trial Court did not deny the occurrence. However, they gave their own version of the same. Muhammad Aslam appellant stated as follows :‑ "in collusion with the police the complainant‑party have twisted facts to bide their aggression and tried to prove their wrong stand through false evidence by getting a case registered against us. We had been helping the sons of Hayat Muhammad. For this reason the com plainant‑pasty is inimical towards us. On the day of occurrence, when we two brothers, our mother, my wife and other relatives were coming back from Dhok Mushib after condoling with Ata Muhammad Barber the death of his sister's son Akhtar, the deceased, P. Ws. Khuda Bux and Siraj Din, Nurzaman and three other persons assaulted us on the path leading to our village. At that time, Nurzaman was armed with a pistol and others with sticks. They injured my brother Muhammad Akram and myself and my wife with sticks. We fell down but even then we were continued to be thrashed. Our relatives and passers by intervened and in order to save us they deliver ed blows to the deceased and P. W. Khuda Bux. We had been admitted to the hospital first and my brother Muhammad Akram earlier lodged a report at the police station. He had taken our medical reports with him. As unfortunately Sharaf Din died, the police showed partiality by doing nothing in our case and instead put a challan against us. Since the complainant party were at fault, they did not make a prior report and made a delayed report after the death of Sharaf Din. The occurrence took place on the path and not away from it as indicated by the complainant party. Blood had dropped on the very path and from there had the police collected it. Blood was not found at any other spot. In free fight the deceased and P. W. Khuda Bux had been wounded."

7. In the F.I. R. the occurrence is reported to have taken place in the following manner : On the fateful day the deceased was grazing his cattle when the appellants were coming from the direction of Dhok Mohasib. Muhammad Aslam appellant had '12 bore gun in his hand whereas Muhammad Akram appellant was armed with a pistol. Both the appellants raised a lalkara to the deceased upon which the deceased started running. The appellants chased him. Because of the alarm Khuda Bakhsh (P. W. 11) was attracted to the scene of crime as he was nearby in his Dhok. His wife Mst. Gohar Bano (P. W. 12) on hearing the voice of her brother, the deceased, also rushed to the scene of crime. At that time Khuda Bakhsh P. W. was ploughing his field. His wife Mst. Gohar Bano P. W. told him that someone was killing Sharaf Din deceased. The appellants were firing at the deceased. Muhammad Akram appellant fired through his pistol and the shot hit the deceased. As a result he fell down. Mst. Gohar Bano P. W. fell upon her brother in order to save him, In the meantime, Khuda Bakhsh P. W. threw a stone at Muhammad Aslam appellant which hit him and he fell down. Thereafter Khuda Bakhsh P. W. gave 2/3 stick blows to Muhammad Aslam appellant. In the meantime, two persons appeared at the scene who also saw the occurrence. One of them was Khewan Barber but the name of the other was not known to Khuda Bakhsh P. W. although he was of dark complexion and of middle height and he could identify him if he was produced before him. Khewan Barber (not produced) held Khuda Bakhsh P. W. In the meantime, Muhammad Akram appellant threw a stone at him which hit Khuda Bakhsh P. W. on the forehead. He managed to release himself from the grip of Khewan. Then both the appellants ran away. Muhammad Aslam appellant had fallen down, and his gun had been picked up by his wife Mst. Gohar Bano. But Muhammad Aslam appellant on getting up snatched the gun from the hand of his wife Mst. Gohar Bano and fired through it four shots on Khuda Bakhsh P. W. from a distance of about 30/35 yards. The shots hit him on left arm, chest, face and thighs. As a result of these injuries he fell down. Thereafter, the appellants ran away from the scene of crime. It may be mentioned at this stage that in the F. I. R. as well as in the statement of Khuda Bakhsh P. W. made before the Committing Magistrate the injuries sustained by his wife, namely, Mst. Gohar Bano P. W. do not find any mention.

8. Dr, Muhammad Usman Qureshi (P. W. 1) medically examined Sharaf Din deceased while he was still alive at 2‑10 p.m. on the 4th of June 1973, and found on his person a fire‑arm wound on the left hip as well as three contusions on the left arm right knee and left shoulder. The first injury was grievous and was caused by a fire‑arm whereas the rest were simple caused by a blunt weapon. The first injury was grievous and was kept under observation. The patient died on the same night. The same medical officer performed the post‑mortem examination on his dead body at 8 a.m. on the 5th of June 1973, and noticed the same injuries on his person. In his opinion, the death was due to haemorrhage stud shock as a result of the first injury which had damaged vital organs of the stomach. This injury was dangerous in nature and was sufficient to cause death in the ordinary course of nature. A bullet was taken out from this injury and sealed in a bottle and handed over to the police. The same medical officer on the 4th of June 1973, at 2‑10 p.m. medically examined Khuda Bakhsh P. W. and found on his person 18 pellet wounds on the right arm, 10 pellet wounds on the right chest, pellet wound on the neck, pellet wound on the left neck, two pellet wounds on the left chest, pellet wound below the chin making wound of exit, one inch below the above injury, pellet wound on the right cheek, lacerated wound on the left head above the left eye, pellet wound above umbilicus, pellet wound on the thigh, two pellet wounds on the right ring finger. The first and the second injuries were declared grievous and the rest of the injuries were found simple. Most of the injuries had been caused by a tire‑arm. Lady Doctor Hameeda Khatoon (P. W. 2) medically examined Mst. Gohar Bano P. W. on the 4th of June 1973, at 5 p.m. and found on her person pellet wound on the back of head and contused wound on the left forehead. The injuries were simple, one caused by fire‑arm and the other by blunt weapon. The same lady doctor medically examined Mst. Gohar Bano, wife of Muhammad Aslam appellant and found on her person contused wound and swelling over an area of 10" on right upper arm, contusion on left knee joint and abrasion on left leg. The first injury was kept under observation and was found grievous as it had led to a fracture. The injuries had been caused by a blunt weapon. Dr. Muhammad Usman Qureshi P. W. had medically examined Muhammad Akram appellant at 12 noon on the 5th of June 1973, and found on his person a contused wound on the left side of back, abraded con tusion on the right shoulder, five contused wounds in an area measuring 7'x6' on the left buttock ; contused wound on the back of left elbow, contused wound on the right groin, abrasion on the left leg, abrasion on the lower part of left leg, and contusion on the back of neck. All injuries were caused by blunt weapon and were simple. On the 4th of June 1973, at 1‑40 pm. he medically examined Muhammad Aslam appellant and found on his person 14 injuries ail over the body caused by some blunt weapon. The injuries were subsequently declared as simple. From the medical evidence it appears that the two appellants as well as Mst. Gohar Bano, wife of Muhammad Aslam appellant had received injuries in this case out of which some of them were possibly caused by the throwing of stones but most of them had been caused by a blunt weapon such as a dang or a laths. On the other band, the injuries caused on the person of the deceased as well as Khuda Bakhsh P. W. and his wife Mst. Gohar Bano P.W, had been inflicted mostly by fire‑arm. Mst. Gohar Bano P.W., wife of Khuda Bakhsh P. W. appears to have received one injury from a stray pellet and the other possibly due to fall. Khuda Bakhsh P. W. appears to have received a number of gun shot injuries. The deceased bad received a fatal pellet injury on his hip bone possibly from bullet of a pistol or revolver.

9. I have heard learned counsel for both the sides and carefully perused the record. It has already been pointed out that strained relations hats existed between the parties although they are inter‑related because of the dispute pertaining to share of landed property. The finding of the trial Court is correct that the occurrence resulted due to a sudden confrontation between the parties in which blows were exchanged between the members of the two factions in a free fight. It may be pointed out at this stage that there was also evidence of dying declaration Exh. P. DD. of the deceased in this case. The case of the prosecution was that the statement of the deceased was recorded by Hazreb Khan S. I. (P. W. 13) under section 161, Cr. P. C. on the 4th of June 1973, after the recording of the statement of Khuda Bakhsh P. W. on which the F. I. R. was founded. But since the deceased died subsequently his statement wax treated as a dying declaration. However, on the evidence of Khuda Bakhsh P. W. to the effect thaw the deceased had died shortly after the recording of the statement of Khuda Bakhsh P. W., the dying declaration of the deceased had been rightly con sidered as doubtful lay the trial Court for the reasons stated in para. 24 of the judgment. The trial Court also arrived at the finding that the occur rence appeared to have taken place in some different manner than that being stated by the prosecution. The finding of the trial Court was that what happened earlier was a mystery because the injured eye‑witness had started from the point when the deceased was being challenged and chased. He has observed that it was difficult to explain in the light of the ocular evidence as to how the two appellants and the wife of Muhammad Aslam appellant received so many injuries. It is stated by him that it was difficult to believe that she sustained injury on her arm whets her husband had a scuffle with her in order to snatch the gun. This injury was a fracture and could have not been possibly sustained in the manner described by the pro secution. Thus, the conclusion of the trial Court is that blunt weapons were used by the complainant side too because injuries to the accused side and the nature and number of injuries on the persons of the accused party indicated that they had been repeatedly bit by the complainant side. I have carefully examined the record. It appears that the complainant side had caused injuries with dang or laths to the accused side. Some of the injuries were probably given by stone throwing. If the appellants were armed with fire‑arms and had intended to use the same by opening an attack, then the complainant side could have not dared to be close enough to them so as to cause or inflict dang injuries on their persons. From tide circumstances it appears that the complainant side was the aggressor by opening an attack with Tang/laths/stick with which they inflicted injuries to the appellants and their lady companion ; and it was only then that the accused side used the firs‑arms which they might have carried, in the exercise of their right of self‑defence. It can, therefore, be stated that if it was a sudden fight, then it had started because the complainant side was the aggressor. I have two versions before me of the same occurrence, one given by the prosecution through the interested ocular testimony of Khuda Bakhsh and Mst. Gohar Bano P. Ws. and the other given in defence by the appellants. The question which requires determination is as to which of these two versions is more probable, The prosecution version does not appear to be absolutely true. In that case the benefit should go to the appellants as the defence version appears more possible although it may be a case on the part of the appellant for exceeding their right of self‑defence. Even in a sudden fight if it appears that the complainant side was the aggressor and the defence version was probably correct, then the accused side should get the benefit. Reliance is placed on Muhammad v. Ghaus and 4 others (1972 S C M R 264 ). In my view, in the present case, both the Exceptions, namely, Exception 4 to section 300, P. P. C. as well as Exception 2 to section 300 P. P. C, are applicable. The occurrence may have started as a sudden fight. But the complainant side which was armed with blunt weapons like dangs or sticks attacked and caused injuries to the accused side whereupon the accused side used their fire‑arms in the exercise of their right of private defence. When they had put the complainant side on the run, at this stage they should have stopped. But the circumstantial evidence indicates that they continued chasing the complainant side and also continued to fire at them. This would mean that they had exceeded their right of self‑defence. In the light of the above discussion I am of the considered opinion that the convictions of the appellants under section: 304(I) read with section 34, P.P.C as under section 308/34, P. P. C. were quite proper and are accordingly maintained. However, in the circumstances, their sentence under section 304(1),

17. P. C. read with section 34, P. P. C. is reduced front ten years R. I. each to that which they have already undergone. I am given to understand that the appellants had remained behind the bars for about three years and in my view, therefore, the sentence which they have already undergone is sufficient to meet the ends of justice in the circumstances of the case. Their fine is reduced from Rs. 2.000 each to Rs. 1,000 each, or in default to undergo one year R. I. If the fine is realized from them it should be paid as compensation to Khuda Bakhsh P. W. as heir of the deceased. If the appellants pay up the fine, they should be released from jail forthwith if not wanted in any other case. Their sentence on two counts under section 308/34, P. P. C. is also reduced from 5 years R. I. each to that which they have already undergone as their sentences were to run concurrently. The amount of fine imposed under this section is also reduced from Rs. 1,000 to Rs. 500 each or in default to undergo six months' R. I. each. If the fine is realized from them. it should be paid in equal shares to Khuda Bakhsh P. W. and 41st. Gohar Bano P. W. 1f the appel lants pay tip the fine, they should he released from jail forthwith if not wanted in any other case. The appeal is accepted to this extent. Order accordingly.