SHAH NAWAZ Versus THE STATE

RIAZ KAYANI, J. ‑‑‑ Shah Nawaz son of Muhammad Siddiq and Muhammad Ijaz son of Ghulam Muhammad have assailed the validity of judgment, dated 21‑9‑1988 passed by Sessions Judge. Khushab, whereby the appellants were convicted under section 302,/34, P.P.C. to life imprisonment and a fine of Rs.2,000 or in default to undergo one year's R.I. A sum of Rs.20,000 was imposed as compensation on each of the appellants to be given to the heirs of the deceased failing which they had to undergo further one year's R.I.

2. Vide the same judgment ' Muhammad Jahangir and Muhammad Nasim co‑accused were acquitted by extending them benefit of doubt. The 5th accused Mumtaz was declared as absconder and has been proceeded against under section 512, Cr.P.C.

3. Muhammad Sharif has filed Criminal Revision No.739 of 1988 seeking enhancement of sentence of Shah Nawaz and Muhammad Ijaz and against the acquittal of Muhammad Nasim and Muhammad Jahangir. Admitting order, dated 27‑3‑1989 after its perusal indicates that learned counsel did not press against the acquittal of Muhammad Jahangir and Muhammad Nasim, revision petition to this extent was dismissed, however, notice was issued to Shah Nawaz and Muhammad Ijaz, the present appellants as to why their sentence may not be enhanced.

4. I intend to deal with all these matters through this single judgment.

5. The occurrence which resulted in the death of Zafar Iqbal took place on 1‑5‑1986 at 6‑45 p.m. in the vicinity of Block No.6, Jauhar Abad at a distance of four miles from the Police Station Khushab.

6. The complaint was made by Muhammad Sharif maternal‑uncle of the deceased through a written application which was received by Khan Muhammad, A.S.‑I. at Police Post Jauhar Abad at 7‑30 p.m. on 1‑5‑1986 and consequently formal F.I.R. was registered at 8‑00 p.m.

7. The allegations levelled in the first information report authored by Muhammad Sharif are that at 6‑45 p.m. on the fateful day he alongwith Zafar Iqbal, Hafeezullah and Saeedullah sons of Noor Muhammad, Javaid his own son and Ashiq Hussain were present in their house when somebody knocked the door of Haveli which was answered by Zafar lqbal his nephew who stepped outside in street and a voice audible to them threatened Zafar Iqbal that he should get ready to face the consequences, upon which Hafeezullah, Saeedullah, Javaid and Ashiq Hussain ran out and found Shah Nawaz son of Muhammad Siddiq armed with Khanjar, Muhammad Ijaz son of Ghulam Muhammad armed with a knife, Muhammad Jahangir son of Muhammad Ameer Awan armed with hockey and Muhammad Naseem son of Ameer Din armed with .12 bore gun, standing in the street and within their sight first Khanjar blow was given by Shah Nawaz which hit Zafar lqbal on his neck near his windpipe followed by a blow by Muhammad Mumtaz with a knife which hit him on the right side of his chest and lastly Muhammad Ijaz made attack with a knife which hit Zafar Iqbal on the left elbow at the outside. His nephew Zafar lqbal fell to the ground and when they went to his rescue all the accused pounced upon them, prompting them to use force to save themselves, resulting in injuries to Shah Nawaz and Muhammad Ijaz, etc. Muhammad Nasim one of the accused made 2/3 fires with his gun but luckily no one was hurt. All the accused ran away and when they attended Zafar Iqbal he had already succumbed to his injuries. Muhammad Jahangir and Muhammad Nasim were standing nearby during the occurrence raising Lalkaras.

8. Motive for the occurrence is that on the same day about two hours earlier children fought with each other and his nephew Zafar Iqbal and his son Javaid gave fist and kick blows to Muhammad Mumtaz and in order to avenge the heatings, all the accused by forming an unlawful assembly in furtherance of their common object killed Zafar Iqbal. Leaving Ashiq Hussain and Javaid to guard the dead body he has come to submit the report.

9. Khan Muhammad, S.‑I. after submitting the complaint to the police station registration of formal F.I.R. reached the spot and found dead body of Zafar Iqbal which he inspected, prepared the injury statement Exh.P.N. and the Inquest Report Exh.P.O. and thereafter despatched the dead body to the mortuary at Jauharabad for post‑mortem examination. Blood‑stained earth was taken in possession vide memo.. Exh.P.F. and he also secured the empty P.3 lying at the spot vide recovery memo. Exh.P.G. He left for Jauharabad Hospital where he found Muhammad Jahangir, Shah Nawaz and Ijaz. Jahangir was sitting in his Suzuki van when he was arrested. Hockey P.4 in his hand was taken in possession vide recovery memo. Exh.P.H. Ijaz and Shah Nawaz were admitted in the hospital and after interrogating them he formally effected their arrest. On 7‑5‑1986 Muhammad Nasim appeared at Lorri Adda, Jauharabad carrying an unlicensed .12 bore gun P.5 which was secured in possession vide memo. Exh.P.K. Ijaz was discharged from Civil Hospital on 10‑5‑1986 and while in custody on 11‑5‑1986 he got recovered knife P.6 which was taken in possession vide recovery memo. Exh.P.L. Similarly on 12‑5‑1986 Shah Nawaz in police custody led to the recovery of Khanjar P.7 which was blood‑stained, and was taken in custody vide memo. Exh.P.M.

10. Dr. Muhammad Sarfraz, Medical Officer, D.H.Q. Hospital, Jauharabad on 2‑5‑1986 at 7‑00 a.m. conducted the post‑mortem examination on the dead body of Zafar Iqbal son of Noor Muhammad and found‑ the following injuries:‑‑

(1) A stab wound 2‑1/2 c.m. x 1 c.m. x 8 c.m. deep lying obliquely 2 c.m. on the right side and 1/2 c.m. on the left side of the mid line of the neck, 1‑1/2 c.m. above from supra sterned notched, 3 c.m. below from pomamadami.

(2) A stab wound 2 c.m. x 1 c.m. in the fourth intercastal space 3‑1/2 c.m. above the medial to the axilla, 5‑1/2 c.m. from the mid line probed 10 c.m.

(3) An incised wound 1/2 c.m. x 1/4 c.m. x skin deep on the back of forearm, 3 c.m. from the left elbow joint.

In the opinion bf the doctor, injury No.1 was fatal in nature because both large blood vessels were cut and death wax due to haemorrhage and shock. Trachea was also cut and due to respiratory failure death occurred. Injury No.1 was so fatal that it was sufficient to cause death by haemorrhage and shock. Injury No.2 was not so fatal as injury No.1. Death due to these injuries may be caused due to haemorrhage and shock. Injury No.3 was simple in nature. Duration between injuries and death was within few minutes while between death and post‑mortem was 12 to 16 hours.

On 1‑5‑1986 at 9‑30 p.m. the said doctor examined Shah Nawaz son of Soofi Muhammad Saddique aged 25 years and found the following injuries on his person:‑‑

(1) An incised wound 18 c.m. x 3 c.m. muscle cut obliquely extending 8 c.m. below the axilla downward to the vertebral column, 4 c.m. left to the vertabral column.

(2) Incised wound 3 c.m. x 1 c.m. muscle deep obliquely from 3 rd lumber vertebral towards left side upward.

(3) An incised wound 3 c.m. x 2 c.m. skin cut from vertebral column extending obliquely upwards at the level of medial angle of scapula.

(4) An incised would 4 c.m. x 1/4 c.m. skin cut, 3 c.m. from the vertebral column below injury No.2.

(5) An incised wound 5 c.m. x 2 c.m. muscle cut from the mid line of the neck extending obliquely upward near the top of the left ear.

(6) An incised wound 3 c.m. x 1/4 c.m. skin cut, 6 c.m. above the left nipple.

Injuries Nos.1 and 5 were kept under observation. All rest were simple. All the injuries were inflicted by sharp weapon within duration of 3 to 4 hours on 11‑5‑1986. Injury No.1 and Injury No.5 was declared as simple as the patient was not willing for X‑ray. Date of admission was 1‑5‑1986 and was discharged on 11‑5‑1986.

On the same day at 10 p.m. the abovesaid doctor examined Ijaz Hussain son of Ghulam Muhammad aged 19 years and found the following two injuries on his person:‑‑

(1) An incised wound 10 c.m. x 2 c.m. x muscle cut, extending 7 c.m. below the lateral side of left clavical and then 5 c.m. from the left shoulder‑joint extending obliquely downwards up to just below the

(2) A contused swelling 3 c.m. rounded on the left side of the skull, 6 c.m. from the top of the left ear.

Injury No.1 was simple and caused with sharp‑edged weapon while injury No.2 was kept under observation and was caused by blunt weapon. The duration of injuries was within three to four‑hours. On 10‑5‑1986 injury No.2 was declared simple as the patient was not willing for X‑ray.

11. After submission of challan in the Court the trial commenced. Appellants were indicted, they denied the charge, pleaded not guilty and the prosecution examined nine witnesses. Ocular testimony account was furnished by Muhammad Sharif complainant P.W.4 and Javaid Iqbal P.W.6.

12. Khanjar recovered from Shah Nawaz was blood‑stained vide report of the Chemical Examiner Exh.P.U. and the Report of the Serologist Exh.P.X. confirmed that the blood was of human origin. Report of the Forensic Expert Exh.P.V. found that the crime empty recovered from the spot was wedded with the single barrel shot gun of .12 bore recovered from Naseem accused.

13. Appellants were examined under section 342, Cr.P.C. Shah Nawaz appellant in reply to the question as to why the prosecution has brought the case against him stated as under:‑‑

"The facts have been misreported. In fact me and Ijaz were attacked by Zafar lqbal deceased near the house of Mumtaz absconder and so I received injuries by a knife at the hands of aforementioned Zafar Iqbal who was then given injuries by Mumtaz absconder for our defence. After the occurrence I myself went to Civil Hospital, Jauharabad where I was admitted and so was medically examined.

I have been falsely implicated against facts which really are that on the day of occurrence at about evening time me and Ejaz my co? accused while passing near the house of Zafar Iqbal in the same Mohallah were attacked by Zafar Iqbal and so me and Ejaz were given injuries by him where Mumtaz gave injuries to Zafar Iqbal for our defence and the complainant side then approached the police and so fabricated the present version and so also changed the venue of the occurrence."

Ejaz appellant adopted the answers of Shah Nawaz appellant in his statement under section 342 Cr.P.C.

14. Learned counsel appearing for the appellants contended vehemently that the occurrence was result of a sudden fight in which both the parties were armed and caused injuries to one and other, therefore, the case fell within the ambit of section 304, Part 1, P.P.C. and since both the appellants had suffered sharp weapons injuries the ends of justice warranted the reduction of sentence of imprisonment to already undergone. Conversely learned counsel appearing for the complainant in this appeal as well as in the revision petition stated that the appellants came to the house of the complainant where Zafar Iqbal was present armed to teeth alongwith their co-?accused, therefore, the murder of Zafar Iqbal was a well thought out occurrence having pre‑planned it earlier, therefore, there being no extenuating circumstance normal penalty of death should be imposed. Counsel for the State toed the line of the counsel for the complainant.

15. We have heard the arguments of the respective counsel at length and have also gone through the record.

16. The ocular testimony has been furnished by Muhammad Sharif complainant as P.W.4 and his son Javaid Iqbal as P.W.6. Both of them have reiterated the prosecution version as narrated in the first information report. Some improvements have been made to the examination‑in‑chief of these witnesses to the extent that when Zafar Iqbal opened the door to answer the knock he was injured by the appellants alongwith the absconding accused Mumtaz and in exercise of right of self‑defence Hafeezullah P.W. (not examined) gave some blow to Shah Nawaz and Ijaz with a knife.

17. The first occurrence where it is stated by the prosecution that the children fought with each other and in consequence Mumtaz was given fist and kick blows by Zafar Iqbal deceased and Javaid P.W.6 two hours before the main occurrence, has been denied by the defence. In any case since the eye‑witnesses have not been seriously examined regarding the earlier fight which provided motive we are of the view that the occurrence did take place outside the house of Mumtaz the absconding accused but it seems that duration between the earlier fight and the main occurrence was not of two hours because had it been so, the matter would have been reported either to the police or the elders of the locality, would have come into action. To our mind after the first occurrence where Mumtaz was beaten, he collected all the appellants whereas Zafar lqbal reached the house of his uncle Muhammad Sharif and called for help which was made available through Hafeezullah, Javaid and others and a pitched battle took place in the street outside the house of Sharif. Cross‑examination of Muhammad Sharif shows that Zafar Iqbal was residing on the other side of the Railway line at a distance of about one mile and while he was present in Ward No.6, Jauharabad the earlier fight took place in which Mumtaz P.O. was beaten. Zafar Iqbal had a criminal propensity, although P.W.4 Muhammad Sharif has given evasive answers regarding involvement of Zafar Iqbal in many criminal cases but he admitted that the deceased was booked in a case under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read with section 377, P.P.C. vide F.I.R. No.61, dated 30‑5‑1985 registered at Police Station Mithha Tawana and was convicted in the said case. The witness expressed his inability to throw light whether the deceased and his brother Hafeezullah were charged under sections 307 and 148/149, P.P.C. vide F.I.R. No.82, dated 3‑8‑1981 again registered at Police Station Mithha Tawana.

18. Mumtaz was residing in the same lane at a distance of 20 yards from the place of occurrence. The occurrence of beating to absconder Mumtaz was neither witnessed by the eye‑witnesses in this case nor anyone else has been produced, therefore, we are convinced in our mind that soon after being beaten Mumtaz rallied and gathered essential force in the form of joining the appellants and thereafter went to the house of the complainant where Zafar Iqbal was sitting prepared to meet any eventuality when the present occurrence took place. In other words the insult of beating given to Mumtaz by Zafar Iqbal deceased and Javaid Iqbal P.W. simmered in the mind of Mumtaz and the appellants and the mental agitation continued when the present occurrence took place in the lane, 20 yards from the house of Mumtaz and almost immediately in front of the house of the maternal‑uncle of Zafar lqbal, both sides exchanged and traded blows with sharp weapons. Undoubtedly the deceased suffered two injuries on the vital part of the body one inflicted by Shah Nawaz and the other by absconder Mumtaz whereas Shah Nawaz had 6 incised wounds on his vertebrae, neck near the top of left ear and on the left nipple. He alongwith Ijaz who had two injuries one of them was incised wound on the left clavical extending up to 7 c.m. from left shoulder joint and going up to axilla, remained in hospital for about ten days. The duration between the two occurrences seems to us to be very short, therefore, we can safely assume that the incident took place in the heat of the moment upon a sudden quarrel between the two warring groups. The deceased, as we have observed had marked proclivity towards crime and the venue was changed only to the extent of 20 yards. In the heat of moment both sides exchanged blows and it was very difficult to determine as to which party started aggression. The voice of reasons was heard by neither side, passions which had arisen to the maximum became more intense with every blow exchanged from either side. In such an eventuality advent of the fight becomes insignificant, therefore, the killing cannot be said to be premeditated and for this reason it would be traversity of justice to term the unfortunate death of Zafar Iqbal as a pre‑planned and well‑thought killing. Resultantly after due consideration we convert the conviction to section 304, Part I, P.P.C. Muhammad Ijaz was arrested on 1‑5‑1986 and was bailed out on 18‑12‑1990 by this Court after he filed appeal and as such he spent about 4‑1/2 years in jail for causing a simple injury to the deceased. Similarly Shah Nawaz was arrested on 1‑5‑1986 and was allowed bail after he filed appeal in this Court on 28‑5-1994 i.e. having spent more than six years in jail. We reduce the sentence of imprisonment to the period already undergone by giving them benefit of section 382‑B, Cr.P.C. The sentence of fine is reduced to 1,000 rupees each and in default of payment of fine to undergo six months' R.I. The amount of compensation under section 544‑A, Cr.P.C. is reduced to 10,000 rupees each and in default to undergo six months' imprisonment. The fine and compensation shall be paid within two months from today failing which the imprisonment in default of payment of fine and compensation, shall commence after the appellants are arrested.

Criminal Revision bearing No.739 of 1988 for reasons rendered in this judgment is without merit and is accordingly dismissed.

N.H.Q./S‑255/L ???????????????????????????????????????????????????????????????????? Order accordingly.