NOOR MUHAMMAD Versus THE STATE

1. MUHAMMAD HALEEM, J. ‑The appellant along with Muhammad Aslam, Pir Muhammad. Ghulam Jan. Muhammad Karim, Muhammad Hassan, Abdul Nabi, Qaim Khan and Muhammad Gal was tried for the murders of Mehr Dii and Muhammad Rahim, and convicted by the learned Sessions Judge, Quetta under section 304 of the Pakistan Penal Code and sentenced to suffer rigorous imprisonment for ten years by judgment dated 14‑11‑1968.

2. The appellant preferred Criminal Appeal No. 9 of 1963 and the State challenged the acquittal of the appellant on the charge of murder and the acquittal of those tried along with him in Criminal Appeal No. 7 of 1968.

3. By a common judgment dated 10‑7‑1974 both the appeals were disposed of by a Division Bench of the High Court of Sind & Baluchistan. Criminal Appeal No. 9 of 1968 was dismissed and Criminal Appeal No. 7 of 1968 was allowed to the extent that while maintaining the acquittal of the others tire conviction of the appellant was altered to section 302 of the Pakistan Penal Code and a sentence of imprisonment for life was substituted. The appellant has preferred this appeal as of right under Article 185 (2) (a) of the Constitution of the Islamic Republic of Pakistan, 1973 to assail the judgment of the High Court.

4. It is the prosecution case that Mst. Neki wife of Abdul Karim and a cousin of Pundokh, was under the spell of a 'Jin' and she became mentally disturbed whenever the appellant played his flute. On 15‑7‑1966 at 5‑30 p.m. the appellant again played his flute to which exception wail taken by Mst. Neki but the appellant did not desist from playing it. Pandokh intervened and asked the appellant as to why he was quarrelling with Mat. Neki upon which they abused each other. This enraged the appellant who went to rooftop of his father's house, armed with a gun, followed by Aslam who also had a gun. The appellant then challenged Pandokh saying that if he had any courage, he should face him and fired a shot at Pankokh who, on being hit fall down. Mehr Dil on hearing the gunshot also came theta but he too was fired at and having sustained gunshot injury on the chest, died at the spot. In the meantime in that house which belonged to his father Pir Muhammad 50 or 60 persons collected. Of those assembled, Pit Muhammad was armed with a pistol, Ghulam Jan and Muhammad Karim had guns, while Muhammad Haman, Qaim Khan, Abdul Nabi, and Muhammad Gul were armed with Lathis and hatchets. They came out of the house and threatened those who had come from the by Janes to find out as to what was happening. Fir Muhammad shouted that any one who would face them would be shot and no sooner had he said so, those armed with guns fired at the persons who had collected there, injuring Abdur Rahim. Dar Muhammad, Abduilah Jan, Badal Khan, Muhammad Azeem, Chakar Khan, Nabi Dad and Jan Muhammad. Muhammad Rahim, a Pathan, intervened but he too was shot at and injured.

5. Before the incident was over, Raja Muhammad Afsar, Station House Officer, Sadar Police Station, Quetta who was on petrol duty, on being told that a fight was taking place in village Sarki went post‑haste towards the village where he saw Mehr Din lying dead and others having suffered gun shot injuries, He recorded the statement of Pandokh which was treated as First Information Report. On being told that Noor Muhammad, Muhammad Aslam, Muhammad Hassan, Qaim Khsn, Muhammad Gal and Abdul Nabi were in the house he called them out. Noor Muhammad responded to the call lied came out with the licensed gun which was seized. Muhammad Aslam was in the house but no gun was recovered from him. The Station House Officer seized two crime empties from the roof‑top of tire house, two from the courtyard and two) from the tool of the cattle‑shed. He also secured s flute and some of the brick‑bats lying is the house, Fire‑arms were also seized from other persons but they were not established to be the crime weapons. The Station House Officer also noticed the broken door of the house. The appellant and Muhammad Aslam were taker to the Police Station when: Vie appellant lodged a counter report of the incident and a case of rioting was registered against 12 persons but subsequently in the Challan 13 persons were mentioned. Except for Rasool Bakhsh and Nazar Muhammad the others were the eyewitnesses in the case.

6. The injured and the deceased on being medically examined were reported to have sustained gunshot injuries. Tae five crime empties were testified by the Ballistic Expert to have matched with the licensed gun of the appellant.

7. In the context of the plea of self‑defene raised by the appellant it would be worthwhile to state as to what he had pleaded. According to him a few days before the incident there was a quarrel between 'Lehris' and 'Langoh' and through the intervention of Shah Muhammad and Yar Muhammad Mari, the dispute wa3 settled by Haji Noor Muhammad Lango on 14‑7‑1966. On the following day 'P. W. Rehan' informed him that he was suspected of having supported the Letris and therefore, he should come for settlement otherwise he would b: killed but he denied his involvement. On the same day in the evening about 50 or 60 Langus including Chakar Khan, Dur Khar, Nabi Dad, Badal Khan, Muhammad Rahim, Dost Muhammad, Haji Noor Muhammad, Raza Muhammad, Khan Muhammad, Pandokb, Abdullah Jan and Nabi Bakhsh, Muhammad Azeem, Muhammad Rafique, Muhammad Unar, Takari Muhammad Khan, Rasul Bakhsb w id Nazar Muhammad assembled in front of Isis house. 'Rehab' was also present armed with a gun. From amongst those named, Nabi Dad, Chakar Khan, Dur Khan and Raza Muhammad had hatchets while the others had Lathis. At that time his mother, sister and Muhammad Adam were in the house. On hearing the commotion he went towards the door when he was fired at by Rehan but ire managed to hut and chain the door from inside. Those who had collected outside thereupon started pelting stores into the house and also attempted to break‑open the door 'with Lathis and bricks' upon which he went to the roof top with his gun but he was again fired at by Rehan with the remit that he sustained injuries on his chest and abdomen. He then fired in the air to save himself and other inmates of the house. One of the brick pats bad struck his maternal uncle Muhammad Aslam injuring him on the forehead. After five or ten minutes there was a knock at the door and he was told to come out as the Police had arrived. Both he anti Adam responded to the call and came out. Later the Police took them in a truck to the Police Station but left the family members at Gowalmandi where he lodged the counter‑report (Exb. D. A/1), on which he relied at the trial.

8. On appraisal of the evidence the trial Court held that the prosecution witnesses being connected in one way or the other either with the injured or Mst. Neki, have involved as many persons as possible; and considering the quality of the evidence the prosecution has failed to establish the presence of others except the appellant arid Muhammad Aslam. Accordingly the Court ruled out the prosecution case qua the formation of an unlawful Assembly and the murders being committed in prosecution of the common object of the unlawful assembly. As to the motive imputed, the trial Court held that the prosecution failed to establish that the present incident was a sequel to the playing of the flute by Noor Muhammad on which there was altercation between him and Pandokh and held that it was obscure as to what had led to the quarrel.

9. While assessing the defence version pleaded by the appellant the trial Court was influenced by the fact that the appellant himself stated that the dispute was settled between the mart contestants i.e. the Lehris and the Langos arid, therefore, there was no occasion for Rahan who was riot connected with either party to have approached the appellant with the allegation that lie had sided with the Lehris and for that reason he was required to stile the matter failing which was threatened to be killed. The trial Court also felt doubtful to regard to the factum of the dispute itself from the non‑examination of Shah Muhammad, Yar Muhammad Mari and Haji Noor Muhammad Lango. In case there was such dispute, the likely persons who had any grievance were Khair Bakhsh, Pandokh or Boota but none of them approached the appellant for settling the affair. Again if the dispute was settled, the Trial Court held that it looked unrealistic that P. W. Rehan would contact the appellant for settling the dispute which had already been settled a day before. Again it was unlikely that the incident would have occurred the very day without giving some time to the appellant to think over the matter. Accordingly the trial Court was not impressed by the probability of the version given out by the appellant and held that the appellant could not be said to be involved in the dispute between the Langos and Lehris for having allegedly shown his sympathy towards Lehris.

10. As to the breaking open of the door and the throwing of brick‑bats into the house of Pir Muhammad the trial Court held that the crowd which had collected outside the house must have thrown the brick‑bats and attempted to brew: open the door in an attempt to apprehend the appellant on seeing him firing indiscriminately at the crowd in consequence of which one person died at the spot and the others received fire‑arm injuries and that such reaction was normal in that situation. The trial Court repelled the plea of self‑defence on the ground firstly that the attack by the mob was after the appellant had opened fire and secondly, that by firing repeated shots he could not take the benefit of the plea.

11. While distinguishing the case of Muhammad Aslam from that of the appellant the trial Court held that only one licensed gun was seized from the possession of the appellant and therefore the pact assigned to Muhammad Aslam of having fired the shots was doubtful. He was also given the benefit of doubt. The trial Court held the appellant guilty (If intentionally causing the death of Mehr Dil but convicted him under section. 304, P. P. C. In regard to the death of Muhammad Rashim the trial Court held teat he died as a result of some other intervening cause and, therefore, the appellant cannot be held responsible for his death.

12. On appeal the Division Bench did not agree with the finding of the trial Court that the cause of the incident was not the playing of the flute but some other obscure reason. The Division Bench further held that it was established on record that there was an altercation between the appellant end Pandokh and when Pandokh pushed him into the house, he 1jecame enraged and there after fired shots from the roof top of the house. The Division Bend' agreed with the opinion of the trial Court that it was only when the appellant hart fired shuts that the crowd which had collected outside the house had broken open the door in order to apprehend the appellant. The defence plea was rejected for the reasons given by the trial Court. It was further held that there was no explanation as to how so many persons suffered gunshot injuries if the appellant had fired in the air to scare the crowd, nor was any injury noticed on him, in spite of the allegation that Rehan had fired a shot at him. The Division Bench further held that there being no substance in the allegation that the Langos wanted to settle the dispute with the appellant. Therefore, there was no reason for them to take revenge. In assessing the guilt of the appellant the Division Bench Geld that the incident took place in broad daylight in the village and despite the fact that the witnesses were related to each other and had made improve ments in their evidence which was also discrepant in some other respects, still they were natural witnesses as being residents of the same village and their evidence stood corroborated by the recovery of the licensed gun which was proved to be the crime weapon and the arrest of the appellant from his house soon after the occurrences" The Division Bench farther hold that the admission of the appellant that he had fired the shots and had produced the gun did inculpate him and furnished guarantee to prosecution evidence. The Division Bench did not agree with the finding of the trial Court in regard to the nature of the offence committed by the appellant, for in the face of the finding that the appellant had intentionally shot the deceased the trial Court could not here convicted him of culpable homicide not amounting to murder. His conviction wag, therefore, altered to section 302, P. P. C.

13. As regards the culpability of the others, the Division Bench agreed with the opinion of the trial Court that their participation was not established.

14. On behalf of the appellant it was contended by Mr. Mahmud Ali Qasuri that the trial Court did not place implicit reliance on the ocular testimony in the context of its finding that six of those acquitted, namely, Muhammad Karim, Muhammad Jan, Muhammad Hassan, Qaim Khan, Muhammad Gul and Abdul Nabi were not established to be the members of the unlawful assembly, hence the culpability of the appellant based on the same evidence should not be accepted the further contended that the High Court has not adverted to this aspect of the case in the judgment while assessing the guilt of the appellant.

15. This contention has no force for it overlooks the other evidence on record. The Courts below rested conviction on circumstances such as his arrest from the louse and the seizure of his gun which was established to be the crime weapon and so also his plea that he had fired shots in the air. They also took note of the fact that there was no explanation as to how as many as 11 persons received gunshot injuries if it were to be accepted that the appellant had fired shots in the air to frighten the crowd, particularly when the part attributed to Muhammad Aslam of having fired shots was held to be doubtful as no other gun was seized from the house. In regard to the culpability of the appellant the Courts below believed the evidence of the witnesses which stood duly corroborated but gave the benefit of the weakness in tire evidence to the others who were acquitted. This conclusion was consistent with the appraisal of evidence for safe dispensation of justice, for, it was open to the Courts to accept that part of the evidence which could be relied on. The Division Bench while maintaining the acquittal of those acquitted by the Trial Court did consider the quality of tile evidence and it is wrong to say that the Division Bench did not advert to it. There is, therefore, overwhelming evidence against the appellant to establish his culpability beyond doubt.

16. It was contended in the alternate that there was material on record to sustain that not only brick‑bats were thrown into the house but the violent crowd had chained the door from outside to prevent the appellant from having recourse to the public authorities, and therefore, it was reasonable for him to apprehend either being killed or caused grievous injury. If, therefore, he lead fired shots his action was justified within the enumeration, Sixthly of section 100 of the Pakistan Penal Code. In support of his contention the learned counsel relied on certain admissions made by the prosecution witnesses. Abdul Karim in his cross‑examination was confronted with the statement made in the lower Court wherein he hack stated that Noor Muhammad had come on his bicycle and on being belaboured in front of his house, he threw his bicycle and no sooner had 'they' pushed him into the house he chained the door from inside and that 'they' chained the door from outside. He also admitted that the inmates of the house were raising cries while the brick‑bats were being thrown into the house and that they had beets breaking open the door till the arrival of the Police. Again he was confronted with the statement made before the Tribunal to which the case was referred under the provisions of the Quetta and Kalat (Civil and Criminal Law) Ordinance, 1965, wherein he had stated that those who suffered injuries had thrown brick‑bats into the house. He also stated that ten or twelve Langos had thrown brick‑bats at the roof‑top where the appellant was standing. Yet he was confronted with another admission made in that statement that the Police had seized a gun and two crime empties lying near the house of one Din Muhammad. Again tie learned counsel invited our attention to the contradiction in the deposition of Badal Khan wherein he denied to have stated in his Police statement that Pir Muhammad and Karim were fired at from the main entrance of the house. Lastly the learned counsel relied, on the statement of Abdur Rahim who admitted in cross‑examination that it were the Langos who were attacking the house and trying to break open tee door which was bolted from inside, with Lathis and bricks and that Mehr Dil was amongst them. In assessing as to the worth of these admissions it is necessary to determine as to what led to the incident. It is a matter of record that the statement of Pandokh was recorded at the spot in which he stated about the altercation between him and the appellant over the playing of the flute. It is not believable that he would coin such a reason on the spur of the moment and introduce Mst. Neki who otherwise had no reason to be concerned in the affair. Not only Met. Neki but Pandokh and Abdul Karim had supported this part of the prosecution case but the trial Court felt doubtful for the reasons thus stated :

17. "The case of prosecution that the quarrel had started when Noor Muhammad had played the flute and Mst. Neki was affected has not been proved satisfactorily and properly. None of the witnesses corro borate each other as to the actual playing of the flute and presence of each other at the spot. The prosecution has also failed to prove that Noor Muhammad had started playing the flute and when he was forbidden to do so, he rushed inside the house, took a gun on the roof and started killing. No doubt Noor Muhammad has admitted to have fired from the gun, but not in the way suggested by the prosecution."

18. The Division Bench did not agree with the conclusion and held that this taco was disclosed in the First Information Report and consistently maintained by the witnesses. The reasoning of the trial Court that none of the witnesses corroborated each other as to the actual playing of the flute is hardly a justification for rejecting the evidence of Mst. Neki and for that matter the evidence of Pandokh and Abdul Karim. The trial Court in spite of having held that the cause of the fight was obscure yet concluded that the brick‑bats were thrown after the appellant had reputedly fired shots. The Division Bench while assessing the plea was influenced by the fact that there was no substance in the explanation of the appellant that the Langos had attacked and further that if they load wanted to kill him, they could have achieved their object even before the appellant could enter the house. The Division Bench thus agreed with the conclusion of the trial Court. This conclusion to my mind has great weight ire tilting the balance against the plea of self‑defence. Admittedly there was a tiff and the appellant was pushed inside the house but then the incident was over. The moment the appellant bolted the door from inside, there was no occasion for either Pandokh or Abdul Karim or ethers to have attacked the house. Neither the appellant nor any one else in the house had suffered injury either with a fire‑arm or with brick‑bats. It is also not believable that the injured would lee in a fit condition to throw brickbats into the house. Again the admission of Abdul Karim that they had chained the door from outside appears to be out of some confusion, for, it goes not stand to reason as to why they would chain the door if the allegation was that the attackers had been breaking open the door with Lathes and bricks: and if at all the attackers had come to avenge the grievance, then they would have used sharp cutting weapons instead of using Lathis and brick‑bats w4ch in the circumstances shows certain reaction to a situation in a state of unprepared ness.

19. The village was inhabited by Langos and Mengals Therefore, the presence of Langos per about the house cannot be construed as the appellant wants us to believe, that they has come to attack, In all probability they must have come on hearing the gunshots and as the Courts below have held, with which I agree, that the breaking of the door and the pelting of the stones was a reaction to the indiscriminate firing by the appellant. In this background nothing turns on the admissions which left to themselves, do not establish that those injured and the other Langos had attacked the house. The breaking of the door and the throwing of the brick‑bats into the house were, therefore, in the sequence of the events that followed on the repeated firing of shots which cannot to be pivotol in tilting the scale in favour of the plea of self defence. Accordingly, this plea has no substance. No exception can also be taken to the alteration of the conviction of the appellant to section 302, P. P. C. and I would maintain it.

20. As for the sentence, the Division Bench bas substituted a sentence of imprisonment for life which was not a legal sentence as at the time the offence was committed, it was prescribed by section 302, P. P. C. I would, therefore, for this reason substitute a sentence of transportation for life. However, it is open to the Provincial Government under section 55 of the Pakistan Penal Code as it stood then to commute it to punishment for imprisonment for a term not exceeding fourteen years. In the circumstances it Is not for this Court go prescribe the period of imprisonment.

21. Subject to this modification I would dismiss the appeal.

22. MUHAMMAD YAQUB ALI, C. J.‑ I agree that the appeal be dismissed.

23. ANWARUL HAQ. J.‑ I agree.

24. DORAB PATEL, J‑ I agree.

25. Appeal dismissed.