BASHIR AHMAD Versus THE STATE

This judgment will dispose of Criminal Appeal No. 1217 of 1998 filed by Bashir Ahmad who was convicted and sentenced by the learned Additional Sessions Judge, Hafizabad vide his judgment, dated 2‑11‑1998 to undergo 14 years R.I. and compensation of Rs. 25,000 and in default six months S.I. under section 302(c), P.P.C., with the benefit of section 382‑B, Cr.P.C., for committing the murder of Nathay Khan.

2. Occurrence in this case had taken place at 7‑30 p.m. on 3‑5‑1996 within the revenue estate of Mauza Chak Bhatti, 6 Kilometres away from Police Station Jalapur Bhattian, District Hafizabad and the formal F.I.R., Exh.P.G./1 was recorded at 9‑00 p.m. the same day on the basis of complaint Exh.P.G. lodged by Muhammad Arshad.

3. Brief facts of the case were that on 3‑5‑1996, Muhammad Arshad, complainant, alongwith Noor Muhammad, Zahid and Mst. Balqees were taking meal in, their respective houses when they heard a noise from the dera of one Abdul Khaliq upon which the complainant alongwith abovementioned companions rushed to the dera and witnessed Abdul Aziz (since dead) empty handed, Bashir Ahmad armed with .12 bore gun, Nazir alias Papu and Ghafoor Ahmad, armed with hatchets in furtherance of their common intention were standing there. Nathey Khan, father of the complainant, his brothers Javed and Abid were standing on the southern side of the dera. Abdul Aziz raised lalkara that Nathey Khan and his companions be killed today upon which Bashir Ahmad climbed up the roof of the ice factory and with the intention to kill, fired with his gun straight at Nathey Khan which hit him at his right thigh, through and through. Bashir Ahmad fired a second shot hitting Abid on his nose. Then Nazir alias Papu inflicted hatchet blows which landed on his head. Thereafter, Ghafoor Ahmad inflicted hatchet blow hitting Javed at his head. Nathey Khan succumbed to the injuries at the spot. Injured were taken to the hospital and the accused after committing the crime fled away from the spot.

The motive was attributed to Bashir Ahmad as Nathey Khan (deceased) had been admonishing him not to tease the young girls of the village.

4. After registration of the formal F.I.R., Muhammad Anwar Gondal S.I. (P.W.13) proceeded to the spot, prepared injury statement Exh.P.L., inquest report Exh.P.M.; despatched the dead body of Nathey Khan to Mortuary; took into possession blood‑stained earth vide memo. Exh.P.H. prepared rough sketch of place of occurrence Fxh.P.N. on 11‑5‑1996 Abdul Aziz, Beshir Ahmad, Nazir Ahmad and Ghafoor Ahmad were arrested; Bashir Ahmad while in Police custody led to the recovery of .12 bore double barrel gun P.3 which was taken into possession vide memo. Exh.P.D.; Abdul Ghafoor produced Bamboo club P.4 which was taken into possession vide memo. Exh.P.E.; Nazir Ahmad also produced hatchet P.5 which was taken into possession vide memo. Exh.P.F. and after completion of the investigation, all the accused were challaned to face the trial.

5. Prosecution in order to prove its case produced 13dwitnesses in all out of whom Muhammad Arshad (P.W.5) and Abid Ali (P. W .6) were eye‑witnesses while the doctor who conducted the post‑mortem examination on dead body of Nathey Khan was examined as P.W.1. Thereafter, the learned D.D.A. tendered in evidence report of the Chemical Examiner Exh.P.O., report of the Forensic Science Laboratory Exh. P.P. and report of the Serologist Exh.P.Q. and closed the case of prosecution. Then statements of the accused were recorded under section 342, Cr.P.C., in which they denied the allegations and pleaded innocence.

6. After conclusion of the trial, the learned Additional Sessions Judge acquitted Nazir Ahmad and Ghafoor Ahmad and convicted Bashir Ahmad, appellant, as stated above.

7. Learned counsel for the appellant submits that in all there were four accused named in the F.I.R., and one of them namely Abdul Aziz died during the trial while Ghafoor who was acquitted by the Trial Court died after his acquittal. As to merits of the appeal, learned counsel submits that on the same evidence, Nazir Ahmad and Ghafoor (now deceased) co‑accused were acquitted by the Trial Court; in fact the complainant party was aggressor; on the appellant's side present appellant and his co‑accused, namely, Nazir Ahmad, Abdul Ghafoor and Abdul Aziz were also injured but their injuries were suppressed by the prosecution; some injuries on tire person of the appellant and his co‑accused were on vital parts of their bodies; medical evidence negates ocular account because according to the post‑mortem report, injuries received by deceased Nathey Khan were having blackening and it could only be caused within range of 3 feet while according to site plans Exhs.P.B. and P.B./i the distance between points E and A is 25 feet, as stated by the P. Ws. before the draftsman, so this negates the prosecution story; according to F.I.R., appellant Bashir first fired a shot which hit Abid but according to medico legal examination of Abid, it was not a fire‑arm injury but injury with a blunt weapon; in fact the complainant party while armed with fire arms and blunt weapons attacked the appellant and his co‑accused when they were going out of ice factory and. caused them injuries; and that Nathey Khan deceased was armed with .12 bore gun and he tried to cause injury on the person of Bashir Ahmad, appellant who tried to snatch the rifle and during the scuffle it went off and hit on the thigh of Nathey Khan. Further submits that three doctors were examined in this case one of them conducted post‑mortem examination on the dead body of Nathey Khan and examined Abid and Javed, P.Ws. i.e., Dr. Shaukat Mumtaz (P.W.1) who admitted in cross‑examination that he had medically examined Abdul Aziz and Abdul Ghafoor vide Exhs.D.A. and D.B. Learned counsel lastly submits that no offence whatsoever has been committed by the appellant.

8. Learned counsel for the State is not in a position to rebut the submissions made by learned counsel for the appellant.

9. I have heard learned counsel for the parties. In the instant case, appellant Bashir Ahmad and his co‑accused were injured and in all there were 16 injuries on the persons from the side of the appellant, most of the injuries were on vital parts of their bodies while on the other hand there were three injured P.Ws. on the side of the complainant party who were having 7 injuries with blunt weapon and also with fire‑arms. The injuries of the appellant and his co‑accused were suppressed by the prosecution. In the side plans Exhs.P.B. and P.B./l, distance between the deceased and Bashir Ahmad, appellant at the time of firing was 25 feet but according to the statement of the doctor who conducted the post‑mortem examination, there' was blackening on the injury of Nathey Khan. It means that the fire was shot from a very close range and the version put forward by the appellant during the trial that Nathey Khan tried to attack upon him in which and he wanted to snatch the rifle which went off and hit Nathey Khan on his thigh is plausible and near to reasons. Reply to question No.6 given by the appellant Bashir Ahmad in his statement under section 342, Cr.P.C., may also be reproduced here:‑‑‑

"I was working in the ice factory of Abdul Khaliq and I had a donkey cart for the transportation of the ice. On the day of occurrence, in the morning, my donkey cart collided with .the bicycle of the Sajid (who is cousin of the complainant) in the bazar over which an altercation took place between him and the said Sajid but the matter was settled by the elders. On account of this altercation, the said Sajid threatened me to teach the lesson to me for his insult. In the evening on the same day when I finished my work and I alongwith my brothers Nazir Ahmad and Ghafoor Ahmad co‑accused and Abdul Aziz co‑accused (since dead) were coming out of the said, factory and when we reached at the gate of said ice factory, Nathey Khan, deceased Zahid, Javed P.Ws. while armed with sotas and Abid P.W. with gun, intercepted us and launched attack upon us and severely injured us with their respective weapons of offence. During this scuffle the complainant party also sustained injuries. When I tried to snatch the gun from Abid P.W. it went up in the hand of Abid which hit Nathey Khan deceased, consequently he died. In fact the complainant party was the aggressor and they also managed to lodge the F.I.R., containing false version. They suppressed the injuries sustained by us (the accused party). During the course of investigation, the police got me medically examined vide medico‑legal certificates Exh.D.D. My brother Nazir Ahmad co‑accused was medically examined vide medico legal certificates Exh.D.E. and Ghafoor Ahmad co‑accused vide medico‑legal certificate. Exh.D.A. We were admitted to Hospital during investigation: We were admitted to hospital for the above said injuries and remained for the .above said injuries and remained admitted from 5‑5‑1996 to 11‑5‑1996 1 have been falsely involved in this case. The P.Ws. are either related to the deceased or interested witnesses."

A bare perusal of the above said reply of Bashir Ahmad appellant would show that, the version, he has given during the trial and in his statement under section 342, Cr.P.C., is more convincing and plausible. Observations made by the learned Trial Court in para.29 of the judgment may also be advantageously be reproduced: ‑‑‑

"From this statement of the accused and the prosecution version and that the occurrence is admitted, it should be seen as to whether the occurrence took place in the manner as stated by the prosecution or Bashir Ahmad accused fired at Nathey Khan deceased in self‑defence? From the perusal of the prosecution version, evidence and statement of the accused, I have come to the conclusion that as a matter of fact the complainant party was the aggressor. On account of the altercation which took place between Sajid the cousin of complainant and Bashir Ahmad accused, the complainant party attacked the Ice Factory of Abdul Khaliq. Where all the accused, Bashir Ahmad, Nazir Ahmad and Ghafoor Ahmad and their father Abdul Aziz accused (since dead) were present. As it is stated above that all the abovementioned accused sustained injuries in the occurrence therefore, it is held that the complainant party was the aggressor. In evidence it has come on record that the house of the complainant party is situated at some distance from the place of occurrence and if at all the accused would have attacked the complainant party the house of the complainant party was on their way, so they could have attacked easily the complainant party while they were in their house. On the other hand, from the site plans Exh.P.B. and Exh.P.B./1 drawn by the draftsman together with the site plan Exh.P.N. drawn by, the Investigating Officer the site of occurrence is the Ice Factory of Abdul Khaliq. "

Similarly, the observations made in para.30 of the judgment are also re‑produced:‑‑

"As per post‑mortem report Exh.P.A. and the sketch of injury Exh.P.A./1, the seat of injury on the person of Nathey Khan deceased was parallel. From the direction of the injury, this contention of the prosecution that Bashir Ahmad accused climbed over the roof from where he fired at Nathey Khan deceased, stands contradicted. According to the post‑mortem examination report Exh.P.A. Nathey Khan deceased received one injury which means that Bashir Ahmad accused has not repeated his act. The injury was not on vital part of the body of the deceased and in ordinary course of nature it does not prove fatal. On the other hand, it is in the evidence that Bashir Ahmad accused was armed with gun who fired in his. self‑defence. The plea of self‑defence is hereby accepted which has been taken by the accused."

10. After going through these findings of' the learned Trial Court, I think if the appellant had acted in his self‑defence even then he did not exceed the same and if version of the appellant is accepted in to, then no offence has been committed by the appellant and his co‑accused. So, in my view version of the appellant seems to be more plausible and correct one.

Taking into consideration the over all facts and circumstances of the case, this appeal is accepted, conviction and sentence recorded by the learned Trial Courts against the appellant Bashir Ahmad is set aside, he is in jail and shall be released forthwith; if not required to be detained in any other case.

N.H.Q./B‑11/L

Appeal accepted.