MUHAMMAD ASHRAF Versus THE STATE
RASHID AZIZ KHAN, J.--- Muhammad Ashraf alias Achhu (64) with his wife Mst. Rashidan Bibi (49) and their two sons Muhammad Shahbaz (19) and Muhammad Nawaz (32) were sent up by Police Station Model Town, Gujranwala to face the charge of murder of Javed Iqbal. Additional Sessions Judge, Gujranwala vide judgment, dated 14-7-1993 gave the benefit of doubt and acquitted Muhammad Nawaz, Muhammad Shahbaz and Mst. Rashidan Bibi of the charge. Muhammad Ashraf was, however, found guilty under section 302, P.P.C. and sentenced to death with a fine of Rs.30,000 or in default of payment of the same undergo R.I. for two years. He was also directed to pay compensation of Rs.30,000 to the legal heirs of the deceased or suffer six months' R.I. The convict has appealed. Case is also before us for confirmation of death sentence. Complainant Inayat Ali Butt has also filed a revision bearing Criminal Revision No.453 of 1993 challenging the acquittal of three accused. All these matters will be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.E./1, got registered by Inayat Ali, was to the effect that his son Javed Iqbal was Councillor of the area. Muhammad Ashraf, who was a narcotic Pedlar, had his house about 300 yards from the house of first informant's son. First informant's son had forbidden many a time Muhammad Ashraf to desist from his illegal activities. On 31-10-1988 first informant had come to visit his son who also told him that a day earlier he had an altercation with Muhammad Ashraf over narcotics but were separated by witnesses. The same day at about 8 p.m. first informant's son Javed Iqbal with Muhammad Abbas\ and Muhammad Aslam were present in the vicinity in connection with canvassing for votes. Muhammad Ashraf was standing outside his house. On seeing Javed Iqbal he raised a Lalkara\ that he would be dealt with. In the meanwhile, Muhammad Nawaz armed with pistol, Shahbaz with carbine with Mst. Rashidan Bibi, wife of Muhammad Ashraf, came out of their house. Muhammad Ashraf took out a pistol from the Nefa of his Shalwar and fired at Javed Iqbal hitting on his forehead, who fell down. Mst. Rashidan Bibi picked up a brick and gave a blow on the chest of Javed Iqbal. Muhammad Nawaz and Shahbaz kept on firing with their respective weapons. Muhammad Abbas and Muhammad Aslam could not intervene on account of firing. On hearing the fire-arm reports first informant reached the spot and found his son in blood. Muhammad Ashraf with his sons Muhammad Shahbaz and Muhammad Nawaz and his wife Mst. Rashidan Bibi after the occurrence got into the car and ran away while firing. Motive for the occurrence was that first informant's son Javed Iqbal used to forbid Muhammad Ashraf from the sale of narcotic, therefore, the occurrence.
Occurrence took place on 31-10-1988 at 8 p.m. in front of the house, of Muhammad Ashraf accused, one mile from Police Station Model Town, Gujranwala. Complaint Exh.P.E. was drawn the same day at 8-45 p.m. on the statement of Inayat Ali, P.W.6, which was recorded by Muhammad Bashir. S.-I., P.W.12; at the spot on the basis of which formal F.I.R. Exh.P.E./1 was drawn the same day at 9-05 p.m. by Muhammad Akram, A.S.-I. P.W.S.
Muhammad Bashir, S.-I., P.W.12 after recording complaint Exh.P.E. sent the same to police station ,for formal registration of the case. Thereafter, he prepared injury statement Exh.P.F. and inquest report Exh.P.G. and sent the dead body for autopsy. From the spot blood-stained earth was secured vide memo. Exh.P.H. Four crime-empties P.12 to P.15 were found at the spot which were secured vide memo. Exh.P.K. A brick P.16 was taken into possession vide memo. Exh.P.L. Last-worn blood-stained clothes of the deceased were taken into possession vide memo. Exh.P.D. Site plan of the spot was got prepared by him on 4-11-1988 and he gave his notes in red ink thereunder.
Sh. Muhammad Siddique, Inspector/S.H.O., P.W.13 also investigated the case and arrested Mst. Rashidan Bibi on 5-11-1988 and had her medically examined.-On 12-11-1988 Ashraf, Nawaz and Shahbaz appeared before him, whom he formally arrested. From Nawaz licensed pistol P.8 with licence was taken into possession. On the same day Muhammad Ashraf got recovered pistol P.8 with licence P.9, which were secured vide memo. Exh.P.L. After usual investigation the accused were challaned.
Dr. Muhammad Naseer Rana, Medical Officer, D.H.Q. Hospital, Gujranwala, P.W.2, on 1-11-1988 at 11-30 a.m. conducted the post-mortem examination on the dead body of Javed Iqbal and found the following injuries:--
(1) A lacerated oval wound 1.2 c.m. x 6 c.m. x going deep through and through on the right side of forehead medial part 5.5 c.m. above the medial end of right eyebrow and adjacent to the anterior hair line with inverted edges wound of entry.
(2) A lacerated oval wound 1 c.m. x .4 c.m. x. going deep through and through on back of head lower part 10.5 c.m. from the right ear and 14 c.m. from left ear with everted edges-wound of exit.
(3) A lacerated wound .7 c.m. x .3 c.m. x scalp deep on the right eyebrow 2.5 c.m. from its medial end.
(4) An abraded contusion 10.5 c.m: x 5 c.m. on the anterior lateral side of left chest 3 c.m. below and outer to the left nipple and 11 c.m. from anterior mid line.
(5) An abrasion 3.5 c.m. x 2 c.m. on the postero lateral side of left thigh upper part 20 c.m. below the left anterior superior iliac spine.
In his opinion, death had occurred on account of shock and haemorrhage because of injuries Nos. l and 2 caused with fire-arm. The injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.
On 5-11-1988 at about 2 p.m. he medically examined Mst. Rashida Bibi and found the following injuries:--
(1) A lacerated oval wound 1.3 c.m. x .5 c.m. x scabbed with black scab on the right side of abdomen front 10 c.m. from the umbilicus and above its level with a contusion of 7 c.m. x 5 c.m. around the wound.
(2) A lacerated oval wound 1.4 c.m. x .5 c.m. x scabbed with black scab on front of right abdomen 10 c.m. below the previous injury with a contusion 7 c.m. x 5 c.m. around the wound.
(3) A lacerated wound scabbed 1.2 x .4 c.m. on front of right abdomen 9 c.m. below the previous injury with contusion 6. x .4 c.m. around the wound.
(4) A lacerated oval wound 1.2 c.m. x .5 c.m. on front of right thigh upper part with contusion 6 c.m. x 4 c.m. around the wound.
(5) A lacerated oval wound 1 c.m. x .5 c.m. x scabbed with black scab on front of right thigh with contusion of 7 c.m. x 3 c.m. around the wound.
3. Prosecution in support of its case had produced 13 witnesses in all. Arif Hussain Ayaz, Draftsman had prepared site plan Exhs.P.A. and P.A./1 on the directions of police. P.W.2 Dr. Muhammad Naseer Rana had conducted the post-mortem examination. P.W.3 Faiz Alam, Constable had delivered the sealed parcels in the respective offices at Lahore intact. P.W.5 Muhammad Akram, Moharrir/A.S.-I. had drawn formal F.I.R. Exh.P.A./1. Eye-witness account was furnished by Inayat Ali, Muhammad Aslam and Muhammad Abbas, P.Ws.6, 7 and 8, respectively. P.W.10 Naseer-ud-Din Hamayun had witnessed the recovery of pistol P.8 effected at the instance of Muhammad Ashraf, convict. The case was initially investigated by P.W.12 Muhammad Bashir, the then A.S.-I. and thereafter, by Sh. Muhammad Siddique, Inspector/S.H.O., P.W.13.
At the conclusion of prosecution evidence the appellant and the acquitted accused were examined without oath wherein they refuted the prosecution allegations and pleaded innocence. In answer to a question appellant stated that deceased Javed Iqbal was a desperado and used to collect Jagga Tax. On the fateful day the deceased came to his house when his wife was standing outside and started abusing his wife and fired at her hitting in her abdomen. Apprehending danger to his wife and to his person he also fired with his licensed pistol. Co-accused of the appellant, i.e. his sons were not present at the spot. Nawaz and Shahbaz denied their involvement. Mst. Rashidan Bibi, however, supported the version of her co-accused Muhammad Ashraf. The accused also produced two defence witnesses as well. D. W.1 Dr. Sher Muhammad Khan, the then Surgeon Medico-legal, Punjab, Lahore, on 20-4-1989 examined Mst. Rashida Bibi under the directions of the Court and issued certificate Exh.D.D. to that effect as well. According to the report Exh.D.D. Mst. Rashida Bibi had received fire-arm injuries on her person. D.W.2 Dr. Iftikhar Hussain Mir, Assistant Radiologist, Services Hospital, Lahore had conducted X-Rays of the right side of abdomen of Mst. Rashida and found a small rounded metallic in her abdomen.
4. It was contended by learned counsel for the appellant that the case against the appellant was not proved at all. Submitted that the eye-witnesses have been completely belied by the fact that they were not relied upon by the trial Court qua the acquitted accused and in such circumstances they cannot be relied upon against the appellant. Argued that all the eye-witnesses suppressed material fact which is injuries on the, person of Mst. Rashida, therefore, the ocular account be discarded from consideration. It was lastly argued that even if the entire prosecution story is relied upon yet the appellant had acted in the right of private defence of his wife, therefore, did not commit any offence. The contentions were vehemently opposed by learned counsel for the complainant. According to him, it was cold-blooded murder and injuries on the person of Mst. Rashida Bibi could have been engineered. Argued that had the deceased been armed with carbine then the same should have been available near his dead body which was not so. Submitted that both the doctors, who appeared as D.Ws., had been won-over and may not be relied.
5. We have heard the learned counsel at length and gone through the file. Prosecution in order to establish its case has relied upon ocular account furnished by Inayat Ali, Muhammad Aslam and Muhammad Abbas, P.Ws.6. to 8, respectively. Corroboration was sought from the report of the Forensic Science Laboratory, according to which four crime empties recovered from the spot matched with the pistol P.8 of the appellant. As far as Inayat Ali, P.W. is concerned, according to the F.I.R., he came to the spot immediately after the occurrence, therefore, he is not an eye-witness of the incident. According to Muhammad Aslam and Muhammad Abbas, both were present at the spot and witnessed the occurrence. Strangely enough, there is no explanation how Mst. Rashida Bibi got injured. Instead their consistent story is that Mst. Rashida Bibi picked up a brick-bat and gave a blow on the chest of Javed Iqbal when he had fallen down after having received an injury with fire-arm. Statement of both the eye-witnesses cannot be relied upon because the doctor who had examined Mst. Rashida on the directions of the Court, found fire-arm injuries on her person: The doctor, who took X-Ray films found pellets in the wounds. This fact alone renders the ocular account highly doubtful. Motive for the occurrence was that the deceased used to indulge in the sale of narcotic, but no evidence has been produced to substantiate the same. Not even an application against the conduct of the appellant was ever moved before the Authorities. In these circumstances, we hold that the motive as alleged is not free from doubt.
The appellant, however, in his examination without oath admitted his presence at the spot. He also admitted being armed with licensed pistol and fired at the deceased in the defence of his wife who had been hit with the carbine by the deceased. This version finds corroboration from the statement of the doctor who examined Mst. Rashida Bibi as well as the Radiologist who took X-Ray films. In these circumstances, while juxtaposing both the versions, we find the defence version is nearer to truth for the reasons already discussed above. The contention of the learned counsel that the carbine was not found near the dead body cannot be of much significance because after the occurrence the assailants allegedly ran away and the first informant being father of the deceased with two close relatives of the deceased were only present near the dead body. If they could go to the extent of suppressing fire-arm injuries on the person of Mst. Rashida Bibi, they could also remove the carbine before the arrival of police. Occurrence had also taken place in front of the house of the appellant, therefore, the deceased had come there. We have, however, noticed that the appellant had fired more than one shot hitting the deceased and in such circumstances he had certainly exceeded the right of private defence of his wife.
For the reasons discussed above, we set aside the conviction recorded under section 302, P.P.C. and convert it to section 304, Part II, P.P.C. and reduce the sentence to seven years' R.I. The sentence of fine and compensation is, however, maintained. He shall also be entitled to benefit of section 382-B, Cr.P.C.
For the same reasons, the revision fails, which is dismissed
Death sentence is NOT confirmed.
N.H.Q./M-217/L Order accordingly.