MUHAMMAD AKSAR Versus THE STATE
MUHAMMAD NAWAZ ABBASI, J. --- Muhammad Aksar son of Muhammad Shafi aged 31 and Ahmad Khan son of Abdul Qayyum aged 32 years along with Ghulam Hussain, Sultan Ahmad. Muhammad Salim, Muhammad Akram_and Abdul Razzaq (deceased) were tried for the charge under sections 302, 148, 149, P.P.C. for the allegation of committing the murder of Muhammad Ashraf and Rab Nawaz deceased by the learned Additional Sessions Judge, Rawalpindi, who vide his judgment dated 16-3-1988 convicted Muhammad Aksar and Ahmad Khan appellants under section 302, P.P.C. Muhammad Aksar appellant in Criminal Appeal No.45 of 1988 was convicted for committing the murder of Rab Nawaz deceased under, section.302, P.P.C. and was awarded death sentence with fine of Rs.10,000 and in default of payment of fine to undergo R.I. for one year.
2. Ahmad Khan was convicted under section 302, P.P.C. for the charge of committing the murder of Muhammad Ashraf and was sentenced to imprisonment for life with a fine of Rs.10,000 and in default of payment of fine to undergo R.I. for one year with the benefit of section 382, Cr.P.C. The remaining accused namely Ghulam, Sultan Muhammad and Muhammad Salim were acquitted of the charge.
3. The Criminal Appeal No.45 of 1988 filed by Muhammad Aksar appellant and Criminal Appeal No.53 of 1988. filed by Ahmad Khan appellant along with connected Murder Reference No.119 of 1988 and Criminal Revision No.67 of 1988 shall be disposed of through this judgment.
4. The occurrence in the present case took place on 28-7-1986 at about 7 a.m. near Band Pathanawala in the area of Village Dewal at a distance of about 20 kilometres from the Police Station Fateh Jang, District Attock. The report of the occurrence was lodged by Muhammad Amin son of Muhammad Khan through his statement Exh.P.B. recorded by Amir Khan Inspector S.H.O. on the basis of which case was registered under sections 302, 148, 149, P.P.C. against the appellants and their co-accused vide F.I.R. Exh.P.D./1 recorded by Muhammad Maqbool, Naib-Moharrir P.W. 3 at 11-00 a.m. on the same day.
5. The brief facts of the prosecution case as contained in the complaint Exh.P.D. are that on the fateful day Muhammad Ashraf son of Nawab Khan, Rab Nawaz son of Lai Khan were proceeding towards Chowk Sayyedian Wali to'offer condolence on the death of Mst. Chandani Bibi daughter of Ghulam Haider, when reached Band Pathluiwala at a distance of one furlong from the village Dewal at 7-00 a.m., the accused namely Abdul Razzaq armed with Danda, Muhammad Akram with Hatchet, Muhammad Aksar, Ghulam Hussain and Sultan Muhammad armed with .12 bore guns, Muhammad Salim .with revolver and Ahmad Khan with .7 mm rifle in furtherance of their common intention appeared raising Lalkaras. Ahmad Khan appellant fired with .7 mm rifle at Muhammad Ashraf hitting on his left shoulder, whereas, Muhammad Aksar fired with his .12 bore gun which hit Rab Nawaz on his chest. Ghulam Hussain and .Sultan Muhammad also fired with their 12 bore guns causing injuries to Rab Nawaz on the different parts of his body. Whereas, Muhammad Ashraf, Muhammad Akram, Muhammad Salim have been raising Lalkaras at the spot and Muhammad Salim fired with his.revolver. Muhammad Ashraf and Rab Nawaz succumbed to the injuries at the spot However, during the occurrence Muhammad Akram son of Hayat and Abdul Razzaq son of Noor Abdullah of the accused party were also killed at the spot and Ahmad Khan appellant and Muhammad Salim accused were injured.
6. The motive allegedly was that on 16-7-1986, Noor Muhammad son of Sher Gul had a quarrel with Abdul Qayyum son of Hayat near Koh-e-Noor Mills, Rawalpindi and a case under sections 32S; 147, 118, " P.P.C. was registered against Noor Muhammad etc. at the instance of Abdul Qayyum etc. which was the result of present occurrence. Amir Khan Inspector S.H.O. (since died) after recording the statement of Muhammad Amin complainant proceeded to the place of occurrence. He prepared the injury statement Exh.PA./2 and inquest report Exh.PA./3 of Muhammad Ashraf deceased and injury statement Exh.P.B./2 and inquest report Exh.P.B./3 of Rab Nawaz deceased in the house of Muhammad Ashraf deceased as both the dead bodies were brought to the house of Muhammad Ashraf deceased before his arrival. He despatched the dead bodies for post-mortem examination.
7. Dr. Babar Ali P.W.1 Medical Officer, Civil Hospital, Fateh Jang conducted post-mortem on the dead body of Muhammad Ashraf deceased on 28-7-1986 and found the following injuries on his person.
(1) A fire-arm inlet wound 2-1/2 c.m. in diametre and going in ward edges inverted, on front lateral part of left side of, chest at the upper border of left exilla. A corresponding hole was present on the shirt.
8.The injury was found caused with fire-arm and fatal to life which was sufficient to cause death in the ordinary course of nature. Doctor recovered one pellet near six and seven thoracic vertebra under injury No.l.
9. The same Doctor on the same day performed post-mortem examination on the dead body of Rab Nawaz deceased and found following injuries on his person:-
(i) A fire-arm inlet wound,-edges inverted, 1 c.m. in diametre going in wards on left flateral chest 6 c.m. below axilla. A 'hole was present on the shirt.
(ii) A fire-arm inlet wound 1 c.m. in diametre, 'edges inverted, skin deep on front to lateral left chest 13 c.m. below left nipple. A hole was' present on the shirt:
(iii) A fire-arm outlet wound 1-1/4 c.m. x 1 c.m. x skin deep, edges everted, going outward 2 c.m. medial to injury No.2. It was the exit wound of injury No.2. A hole was present. on the shirt.
(iv) A fire-arm grazed wound 3 c.m. x 1 c.m. on front left chest '8 c:m. below left nipple. A hole was present on the shirt.
(v) A fire-arm inlet wound 1 c.m. in diametre skin deep on front right chest, 5 c.m. below right nipple. A hole was present on the shirt.
(vi) A fire-arm outlet wound 1 c.m. x 3/4 c.m. going onward (skin deep) 2-1/2 c.m. lateral to injury No.5. It is the outlet wound of injury No.5.
(vii) A fire-arm- outlet wound 1-1/2 c.m. x 1-1/4 c.m. edges everted lateral side of right chest 10 c.m. below axilla. It was the exit wound of injury No.l. A hole was present on the shirt.
(viii) A fire-arm inlet wound edges inverted, going inward 1 c.m. in diarnetre on left lateral side of the abdomen, 2 c.m. above iliac crest. A hole was present on the shirt.
(ix) A fire-arm inlet wound 1 c.m. in dia, skin deep and going through and through and making outlet on the medial side of the left forearm. The dimention of the outlet was, 1 c.m. in the dia. A hole was present on the shirt.
(x) A fire-arm inlet wound 1 c.m. in dia, skin deep and going through and through making an outlet on the .medial side of left forearm. The dimention of outlet was 1 c.m. in dia and was 2 c.m. distal to injury No.9. A hole was present on the shirt.
(xi) A fire-arm wound 1-1/2 c.m x 1/2 c.m. with underneath fracture of proximal phalynx of index ringer of left hand.
(xii) A fire-arm wound 1-1/2 c.m. x 1/2 c.m. underneath bone fractured i.e. middle phalynx of index finger of left hand.
(xiii) A fire-arm wound 1-1/2 c.m. x 1/2 c.m. with underneath fracture of the bone i.e. middle and distal phalynx of middle finger of left hand.
(xiv) A fire-arm wound 1 c.m. x 1 c.m. with underneath bone fractured i.e. proximal phalynx of ring-finger of left hand.
10. On dissection fifth lumber vertebra was found fractured and one pellet was recovered from injury No.8. The injuries were found caused with fire-arm. Injuries Nos.l and 8 were grievous and fatal. Injuries Nos.ll to 14 were grievous and rest simple in nature.
11. In the opinion of Doctor, death occurred due to shock and haemorrhage as a result of injury Nos. i to 14. However, injury Nos. 1 to 8 were found sufficient to cause death in the ordinary course of nature individually and collectively.
12. This Doctor also conducted medical examination of Muhammad Salim, Abdul Qayyum and Mst. Begum Jan vide medical reports Ex.D.A.; Exh.D.B. and Exh.D.D. respectively. The same Doctor also conducted post mortem examination upon the dead body of Abdul Razzaq son of Abdullah deceased accused and found three fire-arm injuries on his person vide post mortem report Exh.D.E. He also conducted post-mortem on the dead body of Muhammad Akram son of Hayat and found 9 injuries with fire-arm and one with blunt weapon to have been caused to him vide post-mortem report Exh.D.F. Injuries to Muhammad Ashraf and Rab Nawaz deceased and also to the injured witnesses namely Ahmad Khan, Muhammad Salim and Mst. Begum Jan and the injuries to Abdul Razzaq and, Muhammad Akram deceased accused were caused at the same time. However, the Doctor opined that injuries on the person of dead body of Rab Nawaz and Muhammad Ashraf were not of the same weapon. After the post-mortem examination the last worn clothes of Muhammad Ashraf deceased with a sealed phial Exh.P.4 containing lead of a bullet were produced before the Investigating Officer, who took the same into possession vide memo Exh.P.E. Moreover, sealed phial when opened in the Court, the bottle was found broken containing no lead of any bullet or pellet. A sealed phial Exh.P.7 containing pellet along with last worn clothes of Rab Nawaz deceased produced before the Investigating Officer was taken into possession vide Exh.P.F. The Investigating Officer during the spot inspection took blood-stained earth into two separate sealed parcels vide memo Exh.P.L. and Exh.P.M. The Investigating Officer collected 8 empties of .12 bore gun from the spot and sealed them into parcels vide memos Exh.P.O., Exh.P.Q., Exh.PR. and Exh.P.S. Muhammad Aksar accused after his arrest while in police custody led to the recovery of SBBL shotgun Exb.88 from his residential house on 10-8-1986, which was taken into possession vide memo Exh.P.B. Ghulam Hussain acquitted accused led to the recovery of SBBL shotgun P.9 on 8-8-1986 from his residential house which was taken into possession vide memo. Exh.P.H. Muhatnmad Salim got recovered revolver P.10 from his residential house on 5-&1986 which was taken into possession vide memo Exh.PJ. Ahmad Khan also got recovered .7 mm rifle Exh.P.ll on 15-8-86 from his residential house which was taken into possession vide memo Exh.P.K. He after completing the investigation submitted the challan against the appellant and their co-accused to face the trial.
13. The prosecution apart from the formal witnesses namely Muhammad Akbar Patwari, who prepared the site plan Exh.P.C. and Exh.P.C./ t of the place of occurrence, Muhammad Yaqoob, Naib-Moharrir P.W.3 of the Police Station, Fateh Jang who recorded the formal F.I.R. Exh.P.D./I on the basis of complaint Exh.P.D., Amir Dad Constable P.W.4 was handed over the sealed parcels containing blood-stained earth, crime empties by Muhammad Yaqoob Moharrir Constable for their delivery to the office of Chemical Examiner and the Forensic Science Laboratories, Naik Muhammad P.W.5 and Noor Muhammad P.W.6, who escorted the dead bodies of Muhammad Ashraf and Rab Nawaz to the mortuary, Muhammad Maskin P.W.8 recovery witness of shotgun Exh.P.8 from Muhammad Aksar appellant, Muhammad Arif P.W.9 and Ghulam. Hussain P.W.10 recovery witness of .7 mm rifle Exh.P.11 from Ahmad Khan accused. Muhammad Arif witness of the recovery of the gun Exh.P.9 from Hussain acquitted accused. Habib-ur-Rehman P.W.11 who is a witness of recovery memos Exh.P.L. and Exh.P.M. of blood-stained earth secured from the place of occurrence, a marginal witness of recovery memos Exh.P.N., Exh.P.O., Exh.P.Q., Exh.P.R. and Exh.P.S. of .12 bore empties recovered from the place of occurrence examined. Muhammad Amin, the first informant P.W.12, Fazal Dad P.W.13 and Muhammad Riaz P.W.14 as eye witnesses to the occurrence. Muhammad Bashir, Moharrir Head Constable Police Station Fatch Jang was examined as P.W.15 to prove the documents prepared by Amir Khan Inspector, who died during the trial before his statement could be recorded.
14: The appellants in their statements under section 342, Cr.P.C. denied the prosecution allegations. Muhammad Aksar pleaded that he was erroneously substituted for one Muhammad Aksar son of Fazal Dad, who in fact fired during the occurrence. He stated that he had been involved in the case because Muhammad Riaz his brother-in-law was P.W. in the cross-case against Muhammad Amin and others. Ahmad Khan appellant admitted the occurrence giving the version that Muhammad Amin and other accused in the cross-case F.I.R. No.193 alongwith Muhammad Ashraf and Rab Nawaz, the two deceased attacked and caused injuries to him and also to Muhammad Salim acquitted accused, Mst. Begum Jan, Muhammad Akram and Abdul Razzaq the deceased accused. It was maintained that the said Muhammad Amin and others having committed aggression caused death of Muhammad Akram and Abdul Razzaq and also made murderous assault on Muhammad Salim and Mst. Begum Jan. It was pleaded that during the occurrence Muhammad Aksar son of Fazal Dad fired at Rab Nawaz, Muhammad Ashraf. Muhammad Salim the acquitted accused while making a similar statement admitted the occurrence. The accused made similar statement under section 340, Cr.P.C. However, Sultan Muhammad acquitted accused tendered the copies of F.I.R. Exh.D.K., and copies of recovery memos Exh.D.L. to Exh.D.Y. in the cross-case, in his defence.
15. The trial Court disbelieving the defence version came to the following conclusion:--
"That both parties had armed themselves in full expectation of armed conflict and each party anticipated resistance from the other and was determined to have trial of strength to establish each others supremacy. There was no circuiu,tances to conclude that it was a chance encounter or was a sudden light. Thus,'in the present conflict each party deliberately had taken upon themselves the risk of an encountcr and as such the right of self-defence could not be claimed and was not available to either of the parties.
16. Sardar Muhammad lshaq Khan learned counsel for the appellants questioning the findings of learned trial Court contends that it was a free fight between the parties in which two persons from each side lost fives and P.Ws from both sides received injuries in the occurrence and thus each accused was responsible for his individual act. He argued that in fact the complainant party was the aggressor, but during the occurrence that member., of their party namely Muhammad Ashraf and Rab Nnwaz also lost their lives at the hands of one Muhammad Aksar sun of Fazal Dad. He next argued that both the eye witnesses in the case are related inter se and being accused in the cross-case are inimical towards the appellants. He submitted that it is not safe to place reliance on the testimony of a partisan witness if not corroborated by an independent evidence of an unimpeachable character, which in the present case, is not forthcoming. His next argument was that it was unnatural and unbelieveable that the accused carrying firearm, allowed their opponent to cause them injuries with, blunt weapons. According to him blunt weapon injury on the person of Mst. Begum Jan is an, evident proof of aggression of the complainant party as in the normal course in a case of armed clash the ladies are not allowed to participate or to be involved in such cases. He vehemently contended that Muhammad Aksar appellant being Rajput by caste having no concern with the parties who arc Awan and had no mason to participate in the oceurrenee being-not inimical to the complainant party and also having no motive to join the hands of the accused in the commission of offence, his involvement in the case is not free .from doubt. The learned counsel in the alternative argued that even if the prosecution case is believed in to to, maximum an offence punishable under section 304, P.P.C. is made out and the conviction and sentence under section 302, P.P.C. is not sustainable. He finally argued that in any case, it being not a case of capital punishment, under section 3o2, P.P.C. the death sentence awarded to Muhammad Aksar appellant was not justified.
17. Conversely the learned AA.-G. argued that the both sides having gone to the place of occurrence outside the Village Abadi in the early hours of the day with full preparation entering into an armed encounter with the intention to cause injuries to each other have rightly been found guilty of commission of an offence under section 302, P.P.C
18. We have anxiously attended the arguments of the learned counsel for the parties and reviewed the entire evidence produced by the prosecution and the defence and also carefully examined the circumstances of the case. The occurrence in the, present case has taken place early in the morning; when the parties came into contract with each other in an open place outside the village. The material facts of the case i.e. the time, the place of occurrence, and the participation of the accused, death of two persons from each side are admitted. The receiving of injuries by Muhammad Salim and Ahmad Khan, the two accused and Mst., Begum Jan is also an undeniable fact. The presence of Muhammad Aksar appellant is, however, denied with the version that Muhammad Aksar son of Fazal Dad fired at the two deceased. In these peculiar circumstances of the case, we while assessing and evaluating the evidence of the witnesses observed as under:--
According to Muhammad Amin; the first informant of the case, Abdul Razzaq deceased fired which did not hit anybody and that fire shot by Ahmad Khan with his rifle hit Muhammad Ashraf on his left shoulder and the fire shot by Muhammad Aksar hit Rab Nawaz on his chest region. The taking place of the quarrel between Noor Muhammad and Abdul Qayyum etc. near Koh-i-Noor Mills and registration of case against Noor Muhammad etc. providing motive to the present occurrence is not denied by the defence. The witness has not offered any explanation that how Muhammad Salim and Ahmad Khan accused were injured during the occurrence and under what circumstances Muhammad Akram and Abdul Razzaq deceased in the cross-case suffered injuries. He had admitted that Abdul Razzaq deceased in the cross-case was armed with shotgun but as stated none was injured of the shot fired by him. According to him when he met the Inspector at Adda Jaffar, Ahmad Khan accused who is complainant in the cross-case was already present there along with Muhammad Salim accused and Inspector had recorded the complaint lodged by him in the cross-case. The defence despite cross examination of this witness at considerable length, has not been able to bring on record any material suggesting the aggression of the complainant, party or that the accused being defensive caused injuries to deceased in their protection. The defence taking benefit of the death of two persons of their side pleaded it a case of self-defence.
19. Fazal Dad P.W.13 and Muhammad Riaz P.W. 14, the other eye witnesses also deposed on the similar lines with no noteable discrepancy or contradiction. These witnesses, however, suppressed the receiving of injuries by Abdul Razzaq and Muhammad Akram and also did not explain the injuries of Muhammad Salim and Mst. Begum Jan. They have admitted the removal of dead bodies to the house of Muhammad Ashraf from the place of occurrence, but denied the suggestion that it was with the purpose to remove the effect of their aggression in the occurrence and dislodge the defence plea. The witnesses have also denied the suggestion that not Muhammad Aksar appellant but Muhammad Aksar son of Fazal Dad was the actual culprit. The defence despite best efforts could not bring anything on record during the cross examination of Fazal Dad and Muhammad Riaz to suggest that trouble was called by the complainant and the accused were not responsible for the occurrence.
20. The motive given by the prosecution in the, present case was the incident of 16th July, 1986 between Noor Muhammad etc. and Abdul Qayyum etc. which was pleaded by the defence a ground for the involvement of the accused in the case. The defence having not denied the taking place of this earlier incident admitted the motive. The parties blaming each other for committing the aggression with the background of tension between them due to this incident between Noor Muhammad and Abdul Qayyum must be expecting clash at any moment, thus the motive in the present case equally provided a cause of occurrence to both the parties.
21. The recoveries of the empties from the spot and the weapon of offence was challenged on various grounds. However, we in view of the fact that the occurrence is not denied, did not feel necessity of discussing the recoveries as the fate of the prosecution case depends on the evidence of eye witnesses. According to the evidence of eye-witnesses, the individual liability of Ahmad Khan and Muhammad Aksar of having caused death of Muhammad Ashraf and Rah Nawaz deceased respectively is established beyond doubt.
22. The independent assessment of evidence with the admitted facts of the case, that two persons namely Muhammad Ashraf and Rab Nawaz of the complainant party and two persons namely Muhammad Akram and Abdul Razzaq of the accused party were done to death during the occurrence. Ahmad, Muhammad Salim and Mst. Begum Jan of the accused side were injured. Noor Muhammad, Munawar, Muhammad Amir, Muhammad Riaz, Abid, Muhammad Munir son of Sikandar, Mukhtar Ahmad, Jahandad, Iftikhar and Akhtar Hussain were convicted in the cross-case registered against them vide F. I. R. No. 193 of even date pertaining to the same occurrence containing a counter-version at the deceased accused and the receiving of injuries by the two deceased during the occurrence, the presence of the deceased accused and the receiving of injuries by' the two deceased during the occurrence, and the presence of Ahmad Khan accused is admitted. However, Muhammad Aksar had denied his presence with the plea that he was substituted with one Muhammad Aksar son of Fazal Dad. Both parties have blamed each other of committing the aggression and tried to minimise the part played by them in the occurrence. The prosecution has not offered any satisfactory explanation of the injuries sustained by the accused side. The accused also have not accepted the liability of causing death of Muhammad Ashraf and Rab Nawaz with the version that two deceased were done to death by Muhammad Aksar son of Fazal Dad. It is, thus obvious that both parties suppressed material facts regarding their participation and causing of injuries to each other. The complainant as well as the defence disclosed incomplete table of occurrence, which is evident from the fact that complainant party while proceeding to condolence on the death of Mst. Chandani Bibi was not supposed to have weapons with them and similarly, the accused party while going towards the Nullah for taking bath in the morning was not required to carry weapons with them. This indicates that both parties expecting attack from each other happened at the spot came with full preparation to face the situation. It is admitted fact that occurrence took place in an open place at a distance of one furlong from the village, therefore, it can be legitimately inferred that parties having armed themselves before the occurrence expecting resistence from each other were determined to have a trial of strength and as A such it was a case of free fight and not a case of self-defence or sudden fight to attract the provisions of section 304, P.P.C. However, each accused being responsible for his individual act, the conclusion arrived at by the learned trial Court is unexceptionable.
23. After coming to the conclusion that it was a free fight, the sole question left for determination is that of the liability of each accused. The proposition put by the learned counsel that it being free fight, the offence committed was not culpable homicide amounting to murder to be convicted, under section 302, P.P.C. is not acceptable. The act of causing death in the free fight even if excluded from the application of vicarious liability in an individual 8 case, the nature of offence qua individual act is not changed and it amounting to murder is to be punished under section 302, P.P.C.
We, therefore, hold that the conviction of both the appellants under f section 302, P.P.C. is not questionable, hence both the Criminal Appeals bearing Nos.45 of 1988 and 53 of 1988 stand dismissed, maintaining the conviction of appellants.
However, taking notice of the fact that the injuries Nos.l to 8 on the person of Rab Nawaz deceased individually and collectively were sufficient to cause death in the ordinary course of nature. However, the death was caused due to the shock and haemorrhage as a result of injuries Nos.l to 14 caused with fire-arm. Muhammad Aksar appellant, Ghulam Hussain and Sultan Muhammad, the acquitted accused are attributed injuries to Rab Nawaz deceased, with .12 bore gun. Injury No.l specifically attributed to Muhammad ID Aksar was fatal to life. However, the remaining injuries attributed to the two acquitted accused also had some contribution in causing death. Therefore, we are of the view that lesser penalty of life imprisonment to Muhammad Aksar shall be sufficient to meet the ends of justice. We, therefore, alter the sentence of death awarded to Muhammad Aksar appellant into life imprisonment. The sentence of fine and compensation awarded to the appellant by the learned trial Court, shall, however, be maintained and they shall be entitled to get the benefit of section 382-B, Cr.P.C. subject to their payment of compensation as directed by the trial Court, to the legal heirs of the deceased. The murder reference is answered in the negative. Criminal Revision No.67 of 1988 is also dismissed.
N.H.Q./M-1688/L Order accordingly.