MUHAMMAD ASHFAQ AHMAD Versus THE STATE

KHIZAR HAYAT, J. ‑‑ This Criminal Appeal No. 384 of 1984, Murder Reference No. 163 of 1984 and Criminal Revision No.1‑14 of 1985 filed by Muhammad Hayat complainant against acquittal of the five accused arise from the judgment of learned Additional Sessions Judge, Sargodha, whereby he on 23‑7‑1984 while acquitting Nazar Muhammad, Muhammad Riaz, Muhammad Mumtaz. Gul Muhammad and Muhammad Hayat co‑accused, convicted Muhammad Ashfaq (30) and Muhammad Shafi (30) appellants under section 302/34, P.P.C. for the murder of Zil Muhammad deceased and sentenced them as under:‑

Muhammad Ashfaq Death and a fine of Rs.5,000 in appellant. default thereof two years' R.I.

Muhammad Shafi, Imprisonment for life and fine of appellant. Rs.3,000 in default thereof 1f' years' R.I. with the direction that out of the fine when recovered Rs.3,500 be paid to the legal heirs of the deceased. We propose to dispose of these three matters by single judgment.

2. The occurrence took place on 22‑1‑1982 at 9/10 p.m. in the Dera of Zil Muhammad deceased situate outside the Abadi of Chak No.17/N.B., District Sargodha. F.I.R. Exh.P.E. was lodged by Muhammad Hayat P. W .6, a cousin of the deceased on the same night at 12‑30 a. m. on 23‑1‑1982 at Police Station Bhalwal and was recorded by Altaf Hussain Shah, S.I. P.W.16. The distance between the place of occurrence and the police station is 7 miles.

3. The background of the occurrence was a 14 years old land dispute between Zil Muhammad deceased and the acquitted accused Muhammad Hayat, Gul Muhammad and their brother Muhammad Nawaz. As a sequal to the land dispute Muhammad Khan, step‑brother of Zil Muhammad deceased was murdered and a case under section 302, P.P.C. was registered against the aforesaid Muhammad Nawaz and others. On conclusion of the trial, Muhammad Nawaz was convicted and sentenced to death. On this they became more annoyed. About 3/4 days before the present occurrence, the 5 acquitted accused and Muhammad Ashfaq appellant assembled in the Dera of Nazar Muhammad and hatched conspiracy to kill Zil Muhammad and his brother Sarwar Khan P.W.7 in the presence of Muhammad Siddiq P.W.11, hence this occurrence.

4. One day before the occurrence, Muhammad Siddiq P.W.11 came to Sarwar Khan P.W.7 in Mauza Jhawrian and apprised him of the conspiracy. On the eventful day Sarwar Khan P.W.7 alongwith Allah Bakhsh P.W. went to the Dera of Zil Muhammad situate in Chak No.17/N.B. Reaching there at evening time they told him about the conspiracy of the acquitted accused and Muhammad Ashfaq appellant to do away with him. At about 9/10 p.m. Sarwar Khan P.W.7, Allah Bakhsh and Subhani were present in the Eastern Kotha of the house whereas Muhammad Hayat P.W.6, Muhammad Akbar P.W.8 and Zil Muhammad deceased were present in the Western Kotha. The lantern was lit in the room where the deceased and others were sitting. Muhammad Ashfaq armed with revolver and Muhammad Shafi appellant empty‑handed trespassed into the house. Muhammad Ashfaq appellant raised Lalkara that they had come to teach a lesson for having got Muhammad Nawaz sentenced to death and also for the land dispute. Muhammad Ashfaq then fired four shots at Zil Muhammad hitting on his chest, buttock and right hand. On receiving injuries Zil Muhammad fell down. The alarm attracted Sarwar Khan P.W.7, Allah Bakhsh P.W.9 and Mst. Subhani to the spot. Muhammad Hayat P.W.6 and Muhammad Akbar P.W.8 and Allah Bakhsh P.W.9 overpowered Muhammad Ashfaq and Muhammad Shafi appellant. Muhammad Hayat snatched revolver and bandolier from Muhammad Ashfaq appellant. Leaving the two appellants in the custody of Sher Khan and others, Muhammad Hayat P.W.6 and Allah Bakhsh P.W.9 left for the police station to lodge the report. After lodging the report Muhammad Hayat P.W.6 produced revolver Exh.P.5 alongwith bandolier Exh.P.7 containing 10 live cartridges Exh.P.8/1‑10 before Altaf Hussain Shah, S.I. P.W.16. The revolver contained four empties Exh.P.6/1‑4. All these articles were taken into possession vide memo. Exh.P.F. attested by Muhammad Hayat P.W.6 and Allah Bakhsh P.W.9.

5. On reaching the spot Altaf Hussain Shah, S.H.O., P.W.16 arrested Muhammad Ashfaq and Muhammad Shafi appellants. He also took into possession lantern Exh.P.4 vide memo. Exh.P.D. Since the two appellants were found injured, therefore, they were sent for medical examination.

6. Dr. Muhammad Rahim Piracha P.W.10 examined Muhammad Ashfaq appellant on 23‑1‑1982 and found as many as 10 injuries on different parts of his body, all caused by blunt weapon. Injuries Nos. 8 and 9 were simple and the rest were kept under observation.

On the same day, the doctor examined Muhammad Shafi appellant and found as many as four injuries on his head, right thumb, fore‑arm and left palm. The injuries were caused by blunt weapon within 24 hours of the examination and were kept under observation.

On the same day, the doctor conducted post‑mortem examination on the dead body of Zil Muhammad and found following injuries on it

"(1) A fire‑arm wound 1 c. m. circular on the right chest, 3 c. m. below the nipple.

(2) A fire‑arm wound 1 c.m. circular on the right upper chest, 3 c.m. below the axilla.

(3) A circular wound 1 c.m. radius on the back of left chest about 6th' ribs exit margin everted.

(4) A fire‑arm wound 1 c.m. circular on the back of right fore‑arm in the middle blackening around the wound.

(5) A wound of exit on the anterior surface of the right fore‑arm in the middle 2 c.m. in radius.

(6) A fire‑arm wound 1 c.m. on the right hip 1 c.m. in radius and blackening around the wound.

(7) Bruise 4 x 1 c.m. on the left fore‑arm."

In his opinion, the death was due to shock and haemorrhage as a result of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. The death was immediate and the time between death and post‑mortem was 24 hours. Injuries Nos. 1‑6 were caused by fire‑arm and injury No.7 with blunt weapon.

7. To prove its case, prosecution produced as many as 17 witnesses. Muhammad Hayat P.W.6, Sarwar Khan P.W.7, Muhammad, Akbar P.W.8 and Allah Bakhsh P.W.9 are the eye‑witnesses of the occurrence. They have supported the prosecution case in all material particulars. Muhammad Hayat P.W.6 and Muhammad Akbar P.W.8 claim to have seen Muhammad Ashfaq appellant armed with revolver and Muhammad Shafi empty‑handed entering into the room. They stated that after having entered the room, Muhammad Ashfaq had raised Lalkara and also fired four shots hitting the deceased. Allah Bakhsh P.W.9 and Sarwar Khan P.W.7 reached the place of occurrence immediately. They found Muhammad Ashfaq armed with revolver and Muhammad Shafi empty‑handed ,present in the Western Kotha of the house. They saw Muhammad Hayat P.W.6 and Muhammad Akbar P.W.8 trying to overpower the two appellants. Allah Bakhsh P.W.9 helped them and the two appellants were apprehended on the spot and then confined in a Kotha till the arrival of the police on the spot. Muhammad Hayat P.W.6 had produced, revolver and bandolier snatched by them from Muhammad Ashfaq appellant, before the police in the presence of Allah Bakhsh P.W.9. Muhammad Hayat P.W.6 and Sarwar Khan P.W.7 have also told the background of the occurrence. Muhammad Siddiq P.W.11 deposed about the conspiracy hatched up by the acquitted accused and Muhammad Ashfaq appellant for murdering Zil. Muhammad. Dr. Muhammad Rahim Piracha P.W.10 has proved the medico‑legal reports of the two appellants and the post‑mortem examination resort of the deceased. The Forensic Science Laboratory Report Exh.P.EE reveals that the four crime empties recovered from the revolver were fired from revolver seized from Muhammad Ashfaq appellant. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr.P.C. the appellants did not deny the time of occurrence, the place of occurrence and the fact that they were apprehended on the spot by the complainant party. Muhammad Ashfaq appellant also admitted that he was carrying revolver with him. He, however, raised the plea of self‑defence in the following words:‑

"On 22‑1‑1982, I and Muhammad Shafi accused who is my friend and class‑fellow had gone to Chak No.17/ N . B . on the invitation of Riaz accused for a dinner at his Dera in his land. He .had promised to receive us at the 'More' of Sher Muhammadwala Road in the evening and to lead us to his Dera but our bus reached there later and we did not find Muhammad Riaz accused there. We had reached the said 'More' at about 8‑30 p.m. when it was dark. We asked some passers-by about the location of the Dera of Riaz and on that information we started for the Dera of Riaz along Sher Muhammadwala Road and then on the boundaries of fields. On the way we saw light coming out from a Kotha at a Dera and we went there I called out for some one to come out of the said Kotha and guide us to the Dera of Riaz accused. A person came out and shouted to some other person present inside the Kotha about my presence. Some one from inside the Kotha asked him to take me into the Kotha whereupon I and Muhammad Shafi went in. A person who later came out to be Zil Muhammad deceased was sitting on a Charpai in that Kotha. He inquired from me about my identity and I gave him my name, parentage and residence. He got up and told his companions to catch hold of me and to finish me, I being their enemy. They attacked and injured me. I tried to escape but in the meantime Zil Muhammad fired at me from his gun. The shot missed me and hit the wall of Kotha. In order to save myself and to escape from there I fired at random from a revolver I had with me which I had obtained from a Pathan. The deceased and his companions who are not witnesses in this case but appeared to be servants of Zil Muhammad also caused injuries to Muhammad Shafi accused when Muhammad Shafi and I had tried to run out on the challenge of Zil Muhammad at the earlier stage of occurrence. It was in this manner and under the above circumstances that I received injuries. The police came to the spot and rescued me from the servants of Zil Muhammad and I produced revolver Exh.P.5 before the police. The case was registered on the following day after preliminary investigation at the spot."

In defence three witnesses namely Mian Khan D.W.1, Abdul Majeed D.W.2 and Rana Muhammad Aslam Khan D.W.3 were produced. Mian Khan, Inspector, C.I.A. D.W.1 stated that he had .prepared supplementary Challan Exh.D.H. as per direction of D.S.P. Sultan Ahmad. In cross‑examination, he stated that he had placed all the 7 accused in column No.3 of the challan. Abdul Majeed S.I., D.W.2 stated that he had prepared incomplete challan Exh.D.J. in which the accused other than Muhammad Ashfaq and Muhammad Shafi were placed in column No.2. Rana Muhammad Aslam D.S.P. D.W.3 stated that on 9‑2‑1982 as many as 19 witnesses were produced before him in defence of the acquitted accused and thereafter he had directed the S. H .O. to place the names of the accused other than Muhammad Ashfaq and Muhammad Shafi appellants in column No.2 of the challan. Muhammad Ashfaq tendered documents Exhs.D.K., D.L., D.M., D.N. and D.O. in defence.

9. The learned trial Court disbelieved Muhammad Siddiq P.W.11 and acquitted Nazar Muhammad, Muhammad Riaz, Muhammad Mumtaz, Gul Muhammad and Muhammad Hayat of the charges and while believing motive to the extent of the appellants, ocular evidence furnished by the four eye‑witnesses and medical evidence, has convicted and sentenced the appellants as stated above.

10. Learned counsel for the appellants contended that the occurrence did not take place in the manner as stated by the eye‑witnesses and that there is a reasonable possibility of the defence version of Muhammad Ashfaq appellant, being true. The learned counsel maintained that the eye‑witnesses are related inter se and are inimically disposed towards the appellants; that the testimony of Sarwar Khan and Allah Bakhsh P.Ws. has been disbelieved qua 5 acquitted accused and as such, it is highly unsafe to convict the appellants on the basis of their evidence; that the story of the prosecution is highly improbable; that the prosecution witnesses had materially improved upon their statements recorded under section 161, Cr.P.C., hence they are incredible and untrustworthy, moreso, when they have suppressed the injuries of the appellants; that the defence version was disclosed by the appellants at the earliest during investigation of the case and the same being reasonably possible deserves to be accepted in preference to the prosecution case. In reply, the learned counsel for the State assisted by the learned counsel for the complainant supported the conviction and sentence recorded by the trial Court. The learned counsel for the complainant prayed for the enhancement of the sentence of Muhammad Shaft from imprisonment for life to death and also for the enhancement of the fine awarded to the appellants.

11. We have anxiously attended to the elaborate arguments of the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, statements of the accused recorded under section 342, Cr.P.C., the statements made by the defence witnesses, the documents tendered by the accused and the circumstances appearing in the case, carefully. From the aforesaid state of affairs, it is very much obvious that there is no dispute as to the time of occurrence, place of occurrence, presence of the appellants at the time of occurrence on the spot, their arrest on the spot by private persons and their being kept in custody till the arrival of the police on the spot. It is also an admitted fact that Zil Muhammad died as a result of shots fired from revolver Exh.P.15 by Muhammad Ashfaq appellant. The parties as usual have blamed each other for aggression. According to the prosecution, Muhammad Ashfaq armed with revolver accompanied by Muhammad Shafi empty‑handed came to the house of the deceased and entered into the room where the deceased, Muhammad Hayat and Muhammad Akbar P.W. were sitting. Muhammad Ashfaq raised Lalkara and fired four successive shots from his revolver at the deceased. In the meantime Sarwar Khan P.W.7 and Allah Bakhsh P.W.13 reached the place of occurrence. The witnesses overpowered the appellants and snatched revolver and bandolier from Muhammad Ashfaq which was subsequently produced before the police. While admitting to have caused the death of Zil Muhammad by shots fired from his revolver, Muhammad Ashfaq pleaded right of self‑defence. According to him, the companions of the deceased opened attack and injured him. He tried to run away but in the meantime Zil Muhammad deceased fired at him from his gun. The shot missed and hit the wall of Kotha, so in order to save himself and escape from there, he fired at random from his revolver which was already with him. He did not deny that he was apprehended on the spot and subsequently made over to the police on the spot. So the question for determination is as to whether Zil Muhammad was killed in a manner alleged by the prosecution or in the circumstances stated by the appellants? To resolve the controversy we would examine prosecution case first to find about its truth or falsity as well as about the credibility of the prosecution witnesses. The prosecution examined Muhammad Hayat P.W.6, Sarwar Khan P.W.7, Muhammad Akbar P.W.8 and Allah Bakhsh P.W.13 as eye‑witnesses of the occurrence. They supported the prosecution version in all material particulars. They did not suppress the injuries of the appellants. No major contradiction or material discrepancy is pointed out. Their evidence is in consonance with the medical evidence. The narration of facts given by them is straightforward and free from exaggeration. There are four fire‑arm wounds on the person of Zil Muhammad and they could easily assign fire‑arm injury not only to Muhammad Shafi but also to some of the acquitted accused against whom they had some enmity but they refrained from doing so. The story told by them gets support from the circumstances i.e. the appellants were apprehended on the spot; that they bear injuries caused to them while being overpowered and that they remained under private arrest till the arrival of the police. These facts indicate that there were at least 3/4 other persons present with Zil Muhammad (deceased), at the time of occurrence. Muhammad Ashfaq stated that the persons who were present on the spot and caught hold of him and Muhammad Shafi were the servants of the deceased and not the four eye‑witnesses but neither names of these servants of the deceased were disclosed by him in his statement recorded under section 342, Cr. P. C . nor were they suggested to the eye‑witnesses in cross‑examination. There is nothing on record to show that Zil Muhammad had any servant during the days of occurrence. The occurrence took place at night time in the house of the deceased, so presence of Muhammad Akbar P.W.8, the son of the deceased was very much natural. Muhammad Hayat, Sarwar Khan and Allah Bakhsh P.Ws. have also given plausible explanation of their presence in the house of the deceased at the time of occurrence. Their names are mentioned in the promptly lodged F.I.R., the authenticity whereof remains undoubted. We are, therefore, fully convinced that the companions of the deceased at the time of occurrence were none else but the four eye‑witnesses. No doubt Muhammad Hayat P.W.6, Sarwar Khan P.W.7 and Muhammad Akbar P.W.8 are cousin, brother and son respectively of the deceased, but their evidence cannot be rejected because of this relationship. The eye‑witnesses have no direct enmity with the appellants. .according to Muhammad Ashfaq he was not even previously known to the deceased; or the persons present in his house at the time of occurrence. Allah Bakhsh P.W. is quite independent witness. He is a Councillor of Halqa. It was not possible to induce him to become false witness in the case. The prosecution has explained the injures of the appellants from the stage of the F.I.R. The nature of the injuries of the appellants show that the same were suffered during the grappling and process of overpowering them. Zil Muhammad deceased had a licensed gun in his house. Had he or his companions initiated the attack then they could have easily done the appellants to death before Zil Muhammad could be fatally fired at by Muhammad Ashfaq appellant or in any case, the nature of the injuries on the person of the appellants would have been of different nature and dimension. The criticism of‑ the learned counsel directed against the credibility of the ocular evidence and truth of the prosecution version is absolutely devoid of force and substance.

12. Coming to the plea of self‑defence raised by the appellants, we find that. the appellants have not been able to establish .their version by direct. or indirect evidence. The same ‑is also not spelt out from the prosecution evidence or the surrounding circumstances. Excepting the bald statement of the appellants, there is nothing on the file supporting the defence version. There is no reasonable possibility of this version being true either. The absence of any fire‑arm injury on the person of the two appellants negates the story of defence that the deceased fired shot from his gun at the time of occurrence. This falsifies the defence version that the deceased and his companions were aggressors. If gun was available to the deceased then what restrained the companions of Zil Muhammad, who, were naturally infuriated after the murder of Zil Muhammad, to kill the appellants in their house at night time when they were completely at their mercy before arrival of the police. This shows that the occurrence did not take place in the manner as stated by the appellants. The defence evidence as well as the documents tendered in defence do not help the defence in any manner. The presence of revolver with four bullets with Muhammad Ashfaq, shows that he was not an innocent visitor. The trial Court has discussed the defence version in detail and has given sound reasons for disbelieving the same: From the trend of the statement of Muhammad Ashfaq, it appears that he was not even known to Zil Muhammad before the occurrence. It does not, therefore, appeal to reason that Zil Muhammad and his companions belaboured the appellants merely because they were the guests of their enemies. For all these reasons, we are convinced that the occurrence took place in the manner as stated by the prosecution and not in the circumstances pleaded by the defence.

13. Now we proceed to consider the question of the constructive liability of Muhammad Shafi appellant. He was empty‑handed at the time of occurrence and caused no injury to the deceased. He did not raise Lalkara nor did he instigate Muhammad Ashfaq by his words or deeds to kill Zil Muhammad. There is no evidence of pre‑concert between the two appellants. It is also not discernible from the evidence that he knew that Muhammad Ashfaq carried a revolver to kill the deceased. In the circumstances, to our mind, he could not be said to be sharing common intention with Shafiq of killing the deceased. So without disbelieving the eye‑witnesses we give him benefit of doubt on the, question of constructive liability.

14. Taking up the question of the sentence of Muhammad AShfaq appellant, we find that there are mitigating circumstances in his favour for lesser penalty. He had no direct enmity with the deceased. According to the prosecution, he killed the deceased in pursuance to the conspiracy of Nazar Muhammad and 4 others, the acquitted accused which story has been disbelieved by the trial Court, of course, for good reasons.

In pursuance of the above discussion, Muhammad Shafi appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case. The conviction of Muhammad Ashfaq appellant under section 302, P.P.C. for the murder of Zil Muhammad is upheld. The sentence of death is, however, altered to imprisonment for life. The fine imposed by the trial Court and the sentences awarded in lieu for non‑payment of the same, are maintained. The connected revision automatically fails.

Death sentence is not confirmed.

M.Y.H./M‑698/L. Appeal partly allowed.