MUHAMMAD IRSHAD Versus THE STATE

ALI NAWAZ CHOWHAN, J.‑‑ This judgment shall dispose of. Criminal Appeal No. 746 of 1997 as well as Murder Reference No. 286 of 1997.

2. The matter arises on account of F.I.R. No. 94, dated 9‑12‑1993 registered under section 302/34, P.P.C. at Police Station Qila Sobha Singh, District Narowal.

3. Mr. Khushi Muhammad Sohail, learned Additional Sessions Judge, Narowal had convicted the appellant under section 302(b), P.P.C. and sentenced him to death while he acquitted two of the co‑accused who faced trial with the appellant namely Inayat Bibi, the mother of the appellant, and Muhammad Shafi. A private complaint which had been filed by the appellant side, was also dismissed.

4. Muhammad Sharif who is the brother of Ulfat deceased, is the author of the F.I.R. (Exh. P.J.). In his testimony before the Court (P.W.8), he supported his F.I.R. case by stating:

"My residence is on the roadside in village Nonar. After the death of my father, we shifted our residence to the house of Muhammad Akram. I and Ulfat deceased were demolishing our house for the construction of shops. When we were going to demolish the wall, Khan Muhammad said that the wall was common one. Khan Muhammad conveyed a Panchait. Panchait decided about four thousand bricks which shall go to Muhammad Sharif. When we demanded the bricks, wife of Khan Muhammad refused to give the same. His wife's name is Inayat Bibi. Khan Muhammad later on got the stay order. Muhammad Ulfat met Khan Muhammad and said to him that he is a Nimazi having beard and in spite of this he on the instigation of his wife has resiled from the decision of Panchait Khan Muhammad felt insult. Khan Muhammad sent a message to Muhammad Irshad that he has been insulted by Muhammad Ulfat deceased. On 9‑12‑1993 Muhammad Irshad came in village Nonar at 10.00 a.m. We were constructing shops and I was throwing bricks from the ground level and Ulfat was catching the same. Inayat Bibi was standing on the corner of street, she raised Lalkara to teach lesson to Ulfat for insult of his father. Muhammad Irshad accused fired thrice at my brother Muhammad Ulfat with his Mauzer. Mauzer was brought out by Irshad from his Shalwar. The fire shot hit Ulfat on the right side of chest. Muhammad Ulfat was standing at that time on the roof. He fell on the ground and breathed his last. Muhammad Shafi then fired at me with pistol twice. I saved my life by entering in the shop. Mushtaq Ahmad, P.W. caught hold Irshad accused from his back. Muhammad Shafi and Inayat Bibi accused fled away. When I and Mehdi reached on the roof of the shop Ulfat had died. We placed his dead body in the house of Sadiq our uncle. After a short while police reached there and police inspected the dead body of Ulfat. After this polite, recorded my statement Exh. P.J."

Some relevant excerpts from his cross -examination which are of interest, are re produced below in extenso:‑‑

"We and the accused party did not participate in the Panchait. We were not heard by the members of Panchait "About ten days before the occurrence we demanded the bricks from the member of Parichait, Rana Nazar Muhammad. Rana Nazar Muhammad told us that Inayat Bibi refused to give the bricks."

"About two days before the occurrence Khan Muhammad sent a message to his son Irshad. Later on after the murder of Ulfat I came to know that people had been saying that Mst. Inayat Bibi was saying that after a short while they will come to know how they dishonoured my husband. I do not know the names of those persons. I heard from others that Khan Muhammad had sent a message to his son. Relieving other persons, I recorded, this fact in the F.I.R. After the occurrence one Muhammad Khan cousin of Khan Muhammad had told Mushtaq my maternal uncle that a message has been sent by Khan Muhammad to Muhammad Irshad accused about his alleged disgrace by the deceased Ulfat. "

"It is correct that on 6‑12‑1993 Khan Muhammad got stay order from Civil Court, Narowal, restraining us from the construction of wall. We were further, directed to maintain status quo by the Civil Court. I was not served but my brother Ulfat was served with the order of the Court and he had informed me the next date of hearing was 12‑12‑1993."

"It is correct that Khan Muhammad has instituted a complaint against Ulfat deceased, Ashfaq and Idrees which is pending."

"It is incorrect that Ashfaq was armed with pistol and he started indiscriminate firing. It is incorrect that there was panic. It is incorrect to suggest that in panic the fire shot of Irshad hit Ulfat deceased. It is incorrect to suggest that Irshad and his mother Inayat Bibi received injuries by our brick‑batting. I do not know they were medically examined. I do not know police got Irshad accused medically examined."

"P.Ws. Mehdi Khan and Mushtaq are my relatives. So, many persons other than Mehdi Khan and Mushtaq P. Ws. witnessed the occurrence."

"Before the occurrence the construction was being made by Muhammad Akhtar mason. Muhammad Yousuf and Ghulam Nabi were labourers with said Muhammad Akhtar mason. I do not know they were examined by D.S.P. Shakargarh. We refused to take oath regarding the occurrence before D. S. P. Sharkargarh."

5. Mushtaq Ahmad, an eye‑witness of the occurrence (P.W.9) supported the case of Muhammad Sharif. Some relevant excerpts from his statement in examination‑in‑chief and in cross‑examination are also re‑produced below in extenso:‑‑

"Then Khan Muhammad got a stay order from the Civil Court. A process server of Civil Court got the construction work closed. "

"I as well as Irshad accused received scratches on our' bodies. I confined Irshad accused in the room of Dera of Ashraf and kept two or three persons to guard at."

"Then I and Mehdi Khan accompanied Thanedar to the roof of shop. From where police took into possession blood‑stained earth vide recovery memo. Exh. P.K. I and Mehdi Khan attested the recovery memo. The blood‑stained earth was made into a sealed parcel. From the place of occurrence police also took into possession two empty cartridges of 30 bore P‑4/1‑2 vide recovery memo. Exh. PL. I and Mehdi Khan attested the recovery memo. The empties were made into a sealed parcel. From there we went to the Dera of Rana Ashraf. Police opened the door and Muhammad Irshad accused handed over pistol/revolver P‑5. On unloading the same, three empty cartridges, again said live cartridges were also recovered. On personal search of Irshad accused licence of pistol was also recovered. Police took all these into possession vide recovery memo. Exh.PK."

"Khan Muhammad did not send message to his son to Lahore that Ulfat deceased had insulted him in my presence. I heard from the other persons of the locality."

"It is incorrect to suggest that Ulfat deceased threw brick‑bats from the roof of the shop which hit Inayat Bibi and broke her tooth and also caused other injuries to her."

"During investigation one I.O. offered to Sharif complainant at the instance of accused party that presence of Muhammad Shafi accused be decided on special oath but Sharif did not agree and said that as his real brother has been murdered he would not take special oath. "

"It is correct that before this occurrence Khan Muhammad procured stay order regarding the disputed property in his favour. "

"According to the investigation of these police officers Muhammad Shafi was not recommended for challan."

6. Dr. Saadat Ali (P.W. 4)on conducted the autopsy on the dead of Muhammad Ulfat which was identified by Muhammad Sharif, his brother, and the dead body to be of a young man of about 22 years of age having the following injuries:‑‑

(1) A circular wound 1 x 1 c.m. on right side of chest at six rib level on posterior axillary line.

(2) A swelling 2 x 2 c.m. bruising on left shoulder a hard body felt under skin.

His observation after dissection was as follows:

"On dissection underline rib was broken and wounds directed upward to left side perforating pleura of right side of chest lower lobe of right lung, posterior mediastrnum upper zone of left lung and ended at left shoulder, back to clavicle. There was fracture of scapula.

On dissection of injury No.2 there was found a bullet, heart was intact and chest cavity was full of blood."

His opinion was as follows:‑‑

"Cause of death in this case in my opinion was shock and haemorrhage by bullet injury on chest (injuries Nos.1 and 2) which perforated lungs and was sufficient to cause death in ordinary course of nature. Injuries were ante-mortem and by fire‑arm. Probable time that elapsed between injury and death was within half an hour and that between death and post‑mortem about four to six hours. "

Exh. P.G. is the carbon copy of the post mortem examination, while Exh. P.G/1 is the diagram of the injuries.

7. Dr. Pervaiz Iqbal Najam (P.W.S) had medically examined on the same day the appellant Muhammad Irshad produced by the police and he found the following injuries on his person:‑‑

"(1) A lacerated wound 6 c. m. x 1/2 c.m. bone deep across the midline of verdicts in the obleague fashion 14 c.m. from left ear. The hair were metted with semi dried blood. No bleeding from ear, nose and threat. Muhammad Irshad was well‑oriented in time, space and person. Bone was intact.

(2) Muhammad Irshad complained of pain on right wrist but there, was no physical or any sign of active and passive pain in wrist movement. These injuries were caused by blunt weapon. "

Injury No. 1 was Shajjah Mudiah and injury No.2 was simple. Exh. P.H. is the carbon copy of the M.L.R.

8. Muhammad Siddique (P.W.10) is the Investigating duty when he received the information about the occurrence and he proceeded to the spot. He recorded the statement of Muhammad Sharif and forwarded it to police station for lodging of the F.I.R. The dead body, however, had been removed from the place of occurrence which is a roof. He prepared the inquest report (Exh.P.N.) of the deceased and his injury statement (Exh.P.O.) and forwarded the dead body for post‑mortem examination. At the spot, he collected blood stained earth vide memo. Exh.P.K. attested by the eye‑witness Mushtaq. He also took into possession two crime empties vide memo. Exh.P.L., attested by P.Ws. and secured these into a parcel. The appellant was produced by Mushtaq and Mehdi Khan (given up P.W.) from a nearby room. He was in an injured state and after preparing his injury statement (Exh.P.F.) he referred him for medical examination. The Investigating Officer went on to say:-

"Mushtaq and Mehdi Khan P.Ws. produced Irshad accused themselves from a nearby room. Irshad accused was not tied down by the P.Ws. and tie was holding the alleged weapon of offence in his hand and apparently there was nothing to stop him from making fire with his weapon of offence on the P.Ws."

Later he received the last worn clothes of the deceased handed over to him by Faryad Ali, A. S.‑I. vide memo. Exh.P.J. He got prepared the site plans and scribed his own notes on it. During his cross‑examination, he went on to say that Muhammad Shafi was found innocent not only by himself but also by Incharge of the Circle.

9. Irshad Khan appellant had his own version which perhaps was also reflected in the private complaint which was too tried by the same Court and was dismissed. In his statement under section 342, Cr.P.C. he mentioned about common wall which separate the house of the parties and which became the bone of contention inter se them. And regarding the stay order which has been obtained by his father from a Civil Court, he mentioned that the orders were served on the complainant side. According to him, the complainant and the deceased in violation of the stay order, continued constructing the wall and he while standing in the courtyard of his house restrained them from violating the injunctive order of the Civil Court. That Inayat Bibi, his mother and the acquitted accused was also present there but she did not raise any Lalkara. Talking about the manner in which the occurrence had taken place, he stated:

"It is incorrect and a concoction. The fact is that on my objection Muhammad Idrees, Muhammad Ulfat now deceased armed with brick‑bats and Muhammad Ashfaq a relative of Muhammad Ulfat armed with pistol while standing on the roof of their shop started firing and throwing brick‑bats upon me and my mother. Both of us were standing inside of our house and while Idrees and Ulfat were throwing brick‑bats upon us Muhammad Ashfaq was tiring but in pell‑mell his fire hit Muhammad Ulfat deceased who died on the spot. The complainant party knowing fully well that Ulfat died of fire‑arm injury caused by Muhammad Ashfaq took his dead body in their house but in the meantime the complainant party concocted this story and involved me, my mother and another Muhammad Shafi co‑accused. The complainant party involved us in order to save the skin of their relative and to satisfy their revenge for obtaining injunction against their illegal construction. We all are innocent. I and my mother who is a deceased old lady sustained injuries by the complainant side' i.e. Muhammad Idrees and Muhammad Ulfat during the incident."

10. It was also the case of the appellant that the witnesses were related to the deceased side and were inimical.

11. During the trial, the appellant side produced Lady Dr. Naurin Rasool. According to her, Mst. Inayat Bibi had suffered the following injuries:‑‑‑

(1) Upper right central incisor tooth was partially broken.

(2) Upper left central incisor tooth was missing.

(3) Upper left lateral incisor tooth was shaky.

Injury No. 1 was kept observation and referred to F. O.

However, during her cross‑examination, she stated that Mst. Inayat Bibi was not produced before her by the police. She went on to say:‑‑

"I have not mentioned in my report the condition of other teeth of the patient but they were normal teeth. There is a possibility that this may be a self‑inflicted injury."

12. The unfortunate happening may have been averted if the complainant side had obeyed the injunctive order of the Court and restrained itself from raising construction until the injunctive order was vacated. Thus, the complainant side was admittedly breaking the law and was responsible for giving rise to a provocation which did not remain confined to mere verbal altercation but went beyond. The appellant suffered an injury on the head which fact was suppressed by the complainant side and this shows that the prosecution case was riot straightforward.

13. The motive part of the story did not get support from anyone and the statements of Mushtaq P.W. as well as of the complainant were just based on hearsay. The possibility that the appellant being the son of the owner of the property Khan Muhammad, was attacked to the house in view of the dispute not because he was, called to inflict any injury on Ulfat deceased but to be a source of strength to the parents involved in a clash of interest over the wall with the neighbours is there. If the complainant side had been truthful enough in stating about the injury suffered by the appellant, the prosecution case would have been explained better. The suppression, therefore, suggests that the purpose of hiding this fact deliberately was to conceal its own aggression by the complainant side.

14. These inferences appear natural and while we appraise the evidence and analysis the facts, we can always draw plausible inferences and even complete the incomplete part of the story. Reliance in this connection may be placed on the case of Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; and Qazi Siraj‑ud‑Din v. Misbah-ul- Islam PLD 1977 SC 14.

15. So, there was a dispute and there was an injunctive order and the complainant side was violating it with impunity and continued with the construction with the help of a mason and the labourers whose names have also come on record. The appellant also received an injury on his head coming from above i.e. the roof top. Which obviously showed that the deceased was not a Masoom‑ud‑Dam. He had in fact contributed actively to the occurrence anti thus to the retalisation part and such circumstances appropriately lend benefit to an accused.

16. The conduct of the appellant after his arrest and as mentioned by the Investigating Officer, has already been reflected above. Although he had a weapon in his hand, he did not proceed to cause further damage and when he was held by Mushtaq P.W. he sheepishly proceeded with them and who confined him in a room until the Sub‑Inspector arrived and he was handed over.

17. Learned counsel for the appellant stated that the act of the appellant was in his self‑defence and his arguments appear persuasive under the circumstances. The injury suffered by the convict, anyhow, was not grievous. But having received a brick‑bat on his head, should it not be presumed that he expected further danger to himself. The answer will be in the affirmative and an individual under imminent threat to his person is not expected to "weigh in golden scales" or to keep his own re‑actions in total control and as long as the apprehension persists, his right to re‑act also continues. In this connection, reference may be made to the case of Malik Waris Khan and another v. Ishtiaq alias Naga and others PLD 1986 SC 335.

18. It was stated that the amplitude of right of self‑defence under the Injunctions of Islam, is far wider than what is available under the Anglo Sexon Law or the Pakistan Penal Code. This is true.

19. In this connection, we may refer to the Chapter of Retaliation appearing as Chapter III in volume II and Book XV of Mishkat‑at‑Masabih, translated by James Robson, Which reflects the following incidents taking place during the time of the Holy Prophet (S.A.W.):‑‑

"(i) Abu Huraira told that he heard God's Messenger say, "if anyone were to look into your house without receiving your permission and you were to throw a pebble at him and put out his eye, you would be guilty of no offence". (Bukhari and Muslim).

(ii) Sahl B. Sa'd said that a man looked through a hole in God's Messenger's door when God's Messenger had a spike with which he was scratching his head, so he said, "If I knew that you were seeing me I would poke it in your eyes, for asking permission has been appointed only on account of what people may see." (Bukhari and Muslim).

(iii) Abu Dharr reported God's Messenger as saying, "If anyone removes a curtain and looks into a house before receiving permission and sees anything in those within which should not be seen, he has committed an offence which it is not lawful for him to commit. If a man confronted him when he looked in and put out his eye, I would not blame him; but if a man passes a door which has no curtain and is not shut and looks in, he has committed no sin, for the sin pertains only to the people inside." Tirmudhi transmitted it, saying. this is a Gharib tradition. "

20. Anyway, instead of using a brick‑bat in retaliation he used his pistol which has been recovered and here he committed an excess while under provocation hitting the man standing on a roof top from below and for this excess in the exercise of his right of defence and while provoked, we have to assess what offence he had committed.

21. We are of the considered view that when the complainant side is responsible for breaking the law itself and for providing a provocation, it is responsible for the occurrence and an accused in re‑action to this, has to be extended the benefits of mitigation. We, are, therefore, convinced that the case of the appellant comes under the purview of section 302(c) of the P.P.C. and for the excess committed by him befittingly, he should get a sentence of 12 (twelve) years. While upholding this, we have taken support from the case of Allah Diwaya v. The State PLD 1993 SC 35. We order accordingly, thus modifying the judgment impugned in appeal. Benefit of section 382‑B, Cr.P.C. is extended to the appellant. We are not inclined to give any compensation under section 544‑A, Cr.P.C. to the complainant in view of what we have observed above against the complainant side. The appeal is decided accordingly and the Murder Reference is answered in the negative.

N.H.Q./M‑1394/L Order accordingly.