MUHAMMAD ISHAQ---Appellant Versus MUHAMMAD NAEEM and 2 others---Respondents

1. MIAN MUHAMMAD AJMAL, J.‑‑‑ This appeal by leave of the Court calls in question the validity of the judgment dated 22‑2‑2000, whereby a learned Division Bench of the Lahore High Court, Lahore accepted the appeal of respondents Nos. 1 and 2, set aside their conviction and sentences and acquitted them of the charges under sections 302/324/34, P. P. C.

2. Brief facts as per F.I.R. are that on 4‑10‑1996 at 9‑00 a.m., Muhammad Ishaq complainant, appellant herein came to his house from his fields and saw Sharafat Ali respondent No.2 quarrelling with his wife. He asked him to desist from doing so whereupon he started abusing him and then went away. On hearing the noise, his brother Nazir Ahmad and one Abdul Haq came there. His son Asghar Ali was standing in bazaar outside the house. The complainant, Nazir and Abdul Haq went to Asghar Ali, started talking and some other people of the village also gathered there. In the meanwhile Sharafat Ali armed with .12 bore gun and his nephew Muhammad Naeem came there, the latter raised Lalkara that they have come to teach a lesson for suspecting hem for theft. Sharafat Ali then fired a shot, which hit Mst. Shamaila Siddique at her hand and leg.' He fired second shot which hit Mst. Shabila Rafique at her head, hands, chest and shoulder. Thereafter Muhammad Naeem snatched the gun from Sharafat Ali and fired a shot on Asghar Ali which hit him on his chest, face and right leg as a result of which he fell down. The respondents decamped from the spot shouting that they have avenged their insult. Motive for the occurrence was that 3/4 days prior to the occurrence, theft was committed in the house of the complainant, for which he suspected the accused/respondents and the Lambardar of the village asked them to resolve the matter through Punchayat. The respondents felt insulted and committed the crime. Asghar Ali succumbed to his injuries on the way to the hospital. A case under sections 302/324/34, P.P.C. was accordingly registered against the respondents, who were arrested on the same day, .12 bore gun was recovered from Muhammad Naeem at his pointation and a separate case under section 13 of the Arms Ordinance, 1965 was also registered against him. After completion of investigation challan was put in the trial Court who framed charge against the respondents to which they pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced 12 witnesses. The respondents in their statements under section 342, Cr.P.C. denied the allegations and stated that on 3‑10‑1996 Sharafat Ali had reprimanded Muhammad Shafique and Asghar Ali over the quarrel of children who felt insulted and had threatened to take revenge. On 4‑10‑1996 Asghar Ali alongwith 8'others duly armed with different weapons trespassed into the house of Sharafat Ali and Muhammad Shafique, started beating them with their weapons and brought them out of the house. Ghulam Rasul and Alamgir intervened to rescue Sharafat Ali when Wajid Ali gave a hatchet blow with the blunt side on the head of Ghulam Rasul. Rashid, Ali inflicted hocky blow on the head of Ghulam Rasul, Abdul Ghafoor gave a butt blow on the back of Ghulam Rasul, Asghar Ali gave a Bala blow on the left arm of Alamgir, Muhammad Shafique gave a butt blow on the right thigh of Alamgir, Rashid Ali gave a hockey blow to Alamgir. On hearing the noise of Sharafat Ali and Alamgir, Naeem picked up the licenced gun of his uncle and fired a shot in the air but accused encircled him, hence, in order to save himself and his companions he fired a shot in self‑defence which hit Asghar Ali. The trial Court on conclusion of the trial held that respondents guilty of the offence and thus convicted them under section 302(b), P.P.C. read with section 34, P.P.C. vide its judgment dated 29‑5‑1999, sentenced them to death as Ta'zir and to pay Rs.1,00,000 each as compensation to the legal heirs of the deceased. They were also convicted under section 324/34, P.P.C. on two counts and were sentenced to 10 years' R.I. and to pay fine of Rs.50,000 each or in default thereof to undergo two years R.I. each. The sentences awarded under section 324/34, P.P.C. were ordered to run concurrently. Benefit of section 382‑B, Cr.P.C. was also extended to them. The respondents challenged their conviction and sentences before the Lahore High Court, Lahore through Criminal Appeal No.574 of 1999 whereas the trial Court referred Murder Reference No.190/T/1999 for confirmation of the death sentence awarded to them. A learned Division Bench of the High Court believing the defence version, accepted the appeal of the respondents vide its judgment dated 22‑2‑2000, set aside their conviction and sentences, acquitted them of the charges and answered the Murder Reference in the negative. Feeling aggrieved, the complainant/appellant filed petition for leave to Appeal No.102‑L/2000 before this Court wherein leave was granted on 21‑11‑2000 as under:‑‑

3. "3. After careful examination of the facts and circumstances of the case, we are of the view that no right of self‑defence was available to the respondents against the two minor girls namely Shamaila Siddique and Shabeela Rafique. Assuming without conceding, that right of the self‑defence did accrue even then the same had been exceeded. Accordingly, we are of the view that this case requires re‑appraisal of the evidence for safe administration of criminal justice. We grant leave to appeal, accordingly.

4. Bailable warrants in the sum of Rs.50,000 with one surety in the like amount each returnable to District Magistrate, Faisalabad, be issued."

4. Learned counsel for the appellant contended that the High Court has erred in totally ignoring the prosecution case and instead over evaluating the defence plea over and above the prosecution evidence, whereas prosecution has fully proved its case on the basis of ocular evidence of the injured P.Ws. recovery of weapon of offence and the positive report of the Forensic Science Laboratory, as such, prosecution case could not be brushed aside in its entirety in preference to the defence version which had to be considered in juxtaposition with the prosecution case. The two minor girls namely Mst. Shabeela Rafique and Mst. Shamaila Siddique who were seriously injured in the occurrence have fully supported the prosecution version and their evidence could not be taken lightly as they had no motive to falsely implicate the respondents. He further submitted that the F.I.R. of a broad‑daylight occurrence was promptly lodged, wherein names of the eye‑witnesses, weapon of offence and the motive were duly mentioned which firstly eliminated possibility of any fabrication and secondly, prosecution proved its case by the witnesses named in the F.I.R. which finds corroboration by the positive report of the weapon that it matched with the empty recovered from the spot and the motive which was proved by the complainant and Abdul Haq, P.W. Since there was no previous enmity between the parties, therefore, the question of false implication does not arise. According to him, the plea of self‑defence taken by the accused/respondents was not plausible and convincing and the same had been set at naught in the complaint case filed by the respondents. The respondents neither lodged any counter F.I.R. nor such defence was reasonably inferable from the material on record. He further submitted that a private complaint under sections 365/324/148/149/394/452, P.P.C. was filed by Ghulam Rasul against Asghar Ali (deceased) and five others which was dismissed on 25‑9‑1999 by the same Judge, Antiterrorism Court, who tried the present case against which no appeal was filed, as such, that judgment attained finality, hence, such plea could not be attached any significance.

5. On the other hand, learned counsel for the accused/respondents while supporting the impugned judgment submitted that the prosecution had suppressed the injuries of the respondents and their relatives caused to them by the appellants and thus did not approach the Court with clean hands. He further submitted that the respondents were be laboured who in exercise of their right of self‑defence acted to save their lives which plea is reasonably spelt out from the record and which has correctly been appreciated by the learned High Court. He further submitted that the respondents were not duty bound to prove their private defence beyond any doubt but defence was merely to make out a possibility of its version being reasonable which the respondents have successfully brought on record.

6. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance. The occurrence has been admitted by the respondents in their defence plea, hence prosecution case has to be examined in juxtaposition with the plea of private defence. Besides Muhammad Ishaq complainant and Abdul Haq, prosecution produced Mst. Shabeela Rafique and Mst. Shamaila Siddique the injured minor girls, who received fire‑arm injuries in the occurrence, have charged the respondents for effectively firing at them. They had no ill‑will or, grudge against the respondents to falsely implicate them, therefore, the learned High Court was not correct in brushing aside the confidence‑inspiring evidence of the said reliable witnesses. According to the said witnesses, they on hearing the hue and cry from the bazaar, went there where Sharafat accused arrived and fired a shot which hit Mst. Shamaila and thereafter he fired second shot which hit Mst. Shabeela. The complainant and Abdul Haq P.Ws. in their statements have given the details of the occurrence and their testimony could not be shattered in cross‑examination. Both the respondents in answer to question No.9 stated that they were innocent and according to them on Ali had reprimanded' Muhammad Shafique and Asghar Ali deceased over the quarrel of children for which they felt insulted and threatened to take revenge. On 4‑10‑1996 Asghar Ali and Muhammad Sarwar armed with Bala, Abdul Sattar armed with dang, Abdul Ghafoor and Muhammad Shafique armed with .12 bore guns, Wajid Ali armed with hatchet and Rashid Ali armed with hockey forcibly trespassed into .the house of Sharafat Ali, whereupon Muhammad Shafique raised Laikara that Sharafat be, taught a lesson for the insult. The accused mentioned above forcibly pushed Sharafat Ali out of house while beating him and in the Bazaar Muhammad Shafiq gave a butt blow on his left cheek, Muhammad Sarwar gave a bala blow on his right shoulder, Ghulam Rasul and Alamgir who were present nearby went to rescue Sharafat Ali when Wajid Ali gave a hatchet blow with its wrong side on the head of Ghulam Rasul PAW. Rashid Ali inflicted hockey blow on the head of Ghulam Rasul while Abdul Ghafoor gave a butt blow on his back. Asghar Ali gave a. Bala blow on the left arm of Alanigir while Muhammad Shafique gave a butt blow on his right thigh and Rashid Ali gave a hockey blow on his hand. On hearing noise of Sharafat Ali and Alamgir, Muhammad Naeem who had come to see his grandfather, picked up the licenced gun of his uncle Ashiq Ali and came out to the Bazaar. Asghar Ali gave a Bala blow on the head of Sharafat Ali while Abdul Sattar gave a dang blow on‑ his head. Muhammad Naeem fired a shot in the air in order to ward off the accused but the accused encircled him. Muhammad Naeem, while rescuing himself and in order to save his life, fired a shot in self‑defence which hit Asghar Ali. In the meantime, Abdul Ghafoor and Muhammad Shafique fired shots, the pellets of which hit two small girls of the complainant party. The above said accused Asghar Ali etc. caught Muhammad Naeem alongwith his gun and abducted him. His mother Mst. Sughra Bibi informed the Police and he was rescued. His co‑accused presented a cross‑version but the same was not. registered. His co‑accused Sharafat Ali filed a pre‑arrest bail application and on 16‑10‑1996 and withdrew the same by making a statement to the effect that the Police was siding with the complainant party and was not prepared to register his cross version. His co‑accused Sharafat Ali presented the cross‑version in writing before the Court.

7. In support of defence version four D.Ws. were produced by the respondents to show that they acted in exercise of their right of self defence. Assessing the case of the prosecution and defence in juxtaposition we are of the view that the prosecution had proved its case through testimony of Muhammad Ishaq, Abdul Haq eye‑witnesses and the statements of two minor girls namely Mst. Shabeela Rafique and Mst. Shamaila Siddique who sustained injuries at the hands of the respondents whereas defence plea does not appeal to reasons and the same is not convincing and reliable. The testimony of the injured girls was straightforward and honest and they had no motive to falsely implicate the respondents. The empties recovered from‑ the spot duly matched with the .12 bore licenced gun of Ashiq Ali which was recovered from respondent No. 1. It may be mentioned here that Ghulam Rasul brother of Sharafat Ali respondent filed a complaint against Asghar Ali deceased and six others under sections 394/365/324/452/148/149, P.P.C. on 7‑1‑1997 i.e. after three months of the occurrence on the sauce grounds which have been taken in defence by the respondents. The said complaint was tried by the same Court who tried the challan case against the respondents and was dismissed with the following observations:‑‑

8. "I have given my anxious thought to the contentions of the complainant party and the accused party. The statements of the P.Ws. recorded in Court and cross‑examination, if read meticulously, it becomes crystal clear that the complainant party has lodged this complaint in order to create a plea of defence in order to rebut the allegation of murder of Asghar Ali deceased. I have also gone through the statements of the P.Ws. of the murder case. If both the versions of the complainant party of this complaint and the murder case are kept in juxtaposition, it can be said with certainty that the complaint has been lodged with a mala fide just in order to shift the burden of Asghar Ali deceased. The statements of the P.Ws. in the instant complaint do not inspire any confidence. The prosecution version of the murder case is more weighty as compared to the version contended by the complainant and the P.Ws. of the instant case. I have also gone through the medical evidence. The complainant party of the murder case has already explained about the injuries of the P.Ws. in the instant case and they have satisfactorily explained the reasons by which this complaint was instituted by the complainant party as a weapon of defence only but on the other hand this complaint was lodged, instead of creating doubt, rather to strengthen the prosecution version of murder cafe of Asghar Ali deceased because he was abducted, given beating and later on, the licenced gun was forcibly snatched. They made indiscriminate firing, inflicted injuries to two minor innocent girls Mst. Shamaila and Mst. Shabeela.

9. In the light of above discussion, it is crystal clear that the complaint lodged by the complainant party does not hold any water in the eye of law. I, therefore, acquit all the accused from the charges under sections 148/452/324/365/394 read with 149, P.P.C. and charge under section 7 of Anti‑Terrorism Act, 1997, giving them the benefit of doubt. All the accused are on bail, their sureties are discharged."

10. The aforesaid judgment of the trial Court was not assailed by the respondents in appeal before the High Court, therefore, the same attained finality, as such, this plea taken in defence by the respondents was of no avail as it had lost its value and the High Court was not justified to attach overdue importance to it. Even if the plea of self‑defence is presumed to be correct, the respondents exceeded their right of self defence as no right of self‑defence was available to them against the minor girls to whom the injuries were caused with lethal weapons and also had no right to kill Asghar Ali, the only son of the appellant, against whom there was no motive, therefore, in view of the above, we are of the opinion that the prosecution has proved its case under section 302(b), P.P.C. read with section 34, P.P.C. and they were rightly convicted by the trial Court. Consequently, we accept this appeal, set aside the impugned judgment of the High Court and restore their conviction under section 302(b)/34, P.P.C. as recorded by the trial Court. On 8‑10‑2003, following short order was passed.

11. "For the reasons to be recorded later on, this appeal is allowed, the impugned judgment of the High Court is set aside, the respondents Muhammad Naeem and Sharafat Ali are convicted and sentenced to suffer life imprisonment each and to pay Rs.1,00,000 each as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. or in default thereof to undergo six months S.I. each. Out of fine, if realized, Rs.50,000 each be paid to the injured girls namely, Mst. Shabeela Rafique and Mst. Shamaila Siddique. The other sentences awarded to the respondents by the trial Court are restored. All the sentences will run concurrently and the respondents will be entitled to the benefit of section 382‑B, Cr.P.C.

12. The above are the reasons in support of the short order.

13. N.H.Q./M‑48/S Appeal accepted.