' AKHTAR ZAMAN MALGHANI, J.---This jail appeal is directed against the judgment dated 16th April, 2002 rendered by Sessions Judge, Loralai, whereby; the appellant was found guilty under section 302(b), P.P.C. And sentenced to life imprisonment. He was also directed to pay Rs.1,00,000; as compensation to the heirs of deceased as provided under section 544-A, Cr.P.C.; in default whereof he was directed to further undergo six months imprisonment. Benefit of section 382-B, Cr.P.C. Was also extended in his favour.
' It may be added that during pendency of appeal, the appellant submitted another jail appeal, which was registered by, office as Criminal Jail Appeal No.109 of'. 2002, which was directed to be fixed along with Appeal No.96 of 2002. As both the appeals are against the same judgment, Appeal No.109 of 2002 is treated as part and parcel of Appeal No.96 of 2002 and is being disposed of by this judgment.
2. Briefly stated, facts of the case are that on 8-3-2001 a case under section 302, P.P.C. And 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered in Levies Station, Loralai on the report of Ahmed Zai, wherein it was alleged that on the preceding night Abdul Razaq son of Musa in order to commit zina went to the house of Mst. Mashmara Bibi and attempted to commit Zina Biljabar with her whereupon Mst. Mashmara Bibi in order to save her honour fired at him due to which Abdul Razaq sustained injures who in injured condition fired at Mst. Mashmara Bibi, on account of which she died at the spot. After registration of case, investigation was carried out by P.W.6 Abdul Khaliq Naib Tehsildar, Loralai who proceeded to the place of occurrence and prepared site plan Exh.P/6-A, he recovered T.T. Pistol along with two live rounds and one empty lying by the side of appellant and a spare magazine from his possession, which were taken into possession through seizure memo. Exh.P/3-B. He also seized one T.T. Pistol along with three rounds, magazine and blood-stained Chadar lying near the dead body of Mst. Mashmara Bibi through seizure memo.
Exh.P/3-C. Thereafter he prepared "statement of injury" of Mst. Mashmara Bibi Exh.P/3-A. He arrested the appellant and shifted him to District Headquarter Hospital, Loralai for treatment. He also recorded statements of the witnesses and after completion of investigation submitted challan.
3. On commencement of trial, charge under section 302, P.P.C. Was read over to the appellant, to which he pleaded not guilty. Whereafter prosecution produced following witnesses in support of accusation:- ' P.W.1 Ahmed Zai deposed that on 8-3-2001 at about One O'Clock night mother of deceased Mashmara. Bibi came to his house and informed him that Abdul Razaq had committed murder of Mashmara Bibi whereupon; he went to the place of incident and found dead body of Mashmara Bibi lying in the courtyard. He further stated mother of deceased informed him that accused used to visit her house and misbehave with Mashmara Bibi and on the night of incident Mashmara Bibi made fire at the appellant due to which accused sustained injuries who also fired at Mashmara Bibi, due to which she died at the spot. He lodged report Exh.P/ 1-A.
' P.W.2 Khan deposed that on 8-3-2001 he was present in his house. At about 1-30 a.m. He went to the place of occurrence where dead body of Mashmara Bibi was lying. Appellant Abdul Razaq was also lying injured in front of the house of Mashmara Bibi.
' P.W.3 Abdul Manan Levies Sepoy deposed that on 8-3-2001 he went to Zar Karez along with Naib Tehsildar where he prepared Mushirnama (statement of injury) of the dead body of Mashmara Bibi Exh.P/3-A. He further stated that the Naib Tehsildar also took into possession one pistol along with two live rounds, one spare magazine from the appejlant and prepared seizure memo. Exh.P/3-B. He also stated that Naib Tehsildar also took into possession through seizure memo. Exh.P/3-C a pistol along with three rounds and one Chadar lying near the dead body of Mashmara Bibi.
' P.W.4 Musa deposed that on the night of incident he was present in his house situated at Zar Karez and after firing he rushed to the place of incident where dead body of Mashmara Bibi was lying and appellant was also present there in injured condition. It is worth to note that this witness is father of the appellant.
' P.W.5 Mst. Babo, mother of the deceased deposed that between the night of 7th and 8th March, 2001 at about one O'Clock the appellant entered into her house with bad intention whereupon her daughter Mashmara Bibi made firing due to which accused sustained injuries. She further stated that accused also started firing at her daughter on account of which she died on the spot, she informed inhabitants of the area.
' P.W.6 Abdul Khaliq Naib Tehsildar investigated the case. After registration of case he prepared site plan and took into possession the incriminating articles as well as recorded statements of the witnesses.
4. The appellant in his examination under section 342, Cr.P.C. Denied prosecution allegations and claimed innocence. He also got recorded his statement on oath wherein he stated that he has not committed murder of Mashmara Bibi and has been falsely implicated in the case by his enemies.
He did not produce any witness in defence.
5. On conclusion of trial, the learned Sessions Judge, Loralai found the appellant guilty under section 302(b), P.P.C. And sentenced him as mentioned above.
6. It is pertinent to mention here that after scrutiny of record a show-cause notice was issued to the appellant as to why the normal penalty of death may not be imposed. In response to show-cause notice the appellant through Superintendent Central Jail, Mach submitted that he is not in a position to engage a counsel of his choice, as such; a counsel be appointed for him at State expenses. Therefore; we appointed Mr. Nasir Kasi, Advocate at State expenses to argue the appeal on merits as well as on the point of enhancement of sentence.
7. We have heard the learned counsel for the appellant as well as learned Assistant Advocate- General and have also gone through the impugned judgment. The learned counsel for the appellant contended that the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt by producing independent evidence. The: only eye-witness produced during the trial is mother of deceased, as such; an interested witness and her evidence alone is not sufficient to sustain conviction without independent corroboration, lacking in the case.
He further contended that statements of witnesses are liable to be excluded from consideration because their statements were not recorded at the spot. Similarly; so-called recoveries effected from the spot are also unbelievable as no independent witness was associated in recovery proceedings despite availability of such evidence. He further contended that the articles which were allegedly collected from the spot were neither sealed into parcel nor sent to expert, as such; have no corroboratory value. In support of his arguments he placed reliance on the judgment reported in PLD 2003 Supreme Court 644.
8. On the other hand, the learned Assistant Advocate-General rebutting the arguments advanced by the counsel for, the appellant contended that the occurrence has taken plke in, the house of deceased, as such; her mother was natural witness and her evidence cannot be lightly ignored which is further corroborated by the presence of appellant in the house in injured condition as well as by statements of other witnesses including father of appellant who reached at the spot soon after the occurrence and found Mst. Mashmara Bibi dead and the appellant in injured condition. He further contended that the appellant is liable to be sentenced to death as there were no 'mitigating circumstances. The appellant committed cold-blood murder of an innocent woman who refused to submit to appellant's satanic demands.
9. We have carefully considered the contentions put forth by the parties' learned counsel in the light of evidence available on record. Ft is case of the prosecution that the appellant in order to satisfy his lust entered in the house of Bibi Mashmara during odd hours of night whereupon; deceased lady in order to protect her modesty made fire at the appellant who was injured, however he also fired at Bibi Mashmara which hit her on forehead and she died at the spot. As far as unnatural death of deceased Mst. Mashmara Bibi is concerned, same has not been denied by the defence which has been, otherwise proved through overwhelming evidence on record. P.W.1 Ahmed Zai, P.W.2 Khan, P.W.4 Musa and P.W.5 Mst. Babo stated in their statements that Mst.
Mashmara Bibi died due to bullet injury received by her and their such depositions were not challenged in cross-examination. The "statement of injury" (Exh.P/3-A) prepared by Investigating Officer further confirms that Mst. Mashmara Bibi died due to bullet injury which hit her on forehead and made its exit from skull. Though no medical examination of the deceased was carried out but in view of above discussed evidence it can be safely concluded that Mst. Mashmara Bibi met 'with violent death. In the judgment reported in 1998 SCM R 1778 the :; Honourable apex Court held that where there is other sufficient evidence to prove unnatural death of deceased, nonperformance of Post-mortem would not be fatal. Relevant observations are reproduced herein below:-- "Now adverting to crucial point involved in the present case, it may be seen that when factum of Qatl-eKhata or Qatl-e-Amd had been independently _established through strong and convincing evidence, mere fact that dead body was not discovered or post-mortem was not conducted has altogether no material effect or legal consequence."
10. Now the question arises whether the appellant has committed Qatl-i-Amd of Mst. Mashmara Bibi. In this regard the prosecution mainly relies upon the evidence of P.W.5 Mst. Babo, mother of deceased who stated that between the night of 7th and 8th March, 2001 at about one O'Clock the appellant entered into her house with bad. Intention, at whom her daughter made firing due to which he sustained injuries. She further stated that the appellant also fired at her daughter due to which she died at the spot. Being inmate of the house where occurrence took place, her presence at the relevant time could not be doubted. Her statement is further corroborated by P.W.1 Ahmed Zai, P.W.2 Khan and P.W.4 Musa who reached at the spot and found appellant present there in injured condition. It may be noted that P.W.4 Musa is father of the appellant, therefore; it could not be expected from him to have deposed falsely against the appellant. Similarly; P.W.4 Mst. Babo is also an independent witness having no or motive to falsely implicate the appellant in the commission of offence, therefore; she could not be termed as interested witness, merely because she is mother of deceased nor on such account her evidence could be discarded, more particularly when story narrated by her is supported by P.W.1 Ahmed Zai to whom she informed about the incident soon after its happening and further corroborated by recovery of pistols lying by the side of appellant and deceased as well as recovery of empty from near the appellant. The presence of appellant in injured condition in the house further shows that P.W.4 Mst. Babo has furnished true account of the incident. However; one important aspect which needs consideration is that according to P.W.4 Mst. Babo, deceased was the first who fired at appellant and in retaliation the appellant fired at her which proved fatal. The question arises as to whether under such circumstances the appellant had any right of private defence against the deceased or whether he exceeded such right. It may be seen that the appellant entered into the house of deceased during night at about one O'Clock duly armed, therefore; the deceased might have reasonable apprehension of danger to her person and property at the hands of appellant, as such; she was within her right to have dispel such danger by resorting to firing at an armed person without waiting for actual harm caused to her person or property. In the judgment reported in AIR 1926 Lahore 28 it was held that the accused, owner of house, did not exceed right of private defence by striking the burglar three times and rendering him incapable of doing any further injury to his person or property because he had every reason to believe that the burglar has committed theft or was going to do so, and if he met, he would presumably strike him. Relevant observation are reproduced herein below:-- "All that he knew was that a burglar was in his house in the middle of the night in a dark room. He had every reason to suppose that the burglar had committed theft or was going to do so and that if he (the owner of the house) met him he would presumably strike him. He could not know in the dark whether the burglar was armed or not and taking everything into account I do not think that he exceeded his right of private defence by striking the burglar three times and rendering him incapable of doing any further injury to his person or property."
On the other hand, the appellant himself was a trespasser, as such; no right o f private defence was available to him against the lawful occupants of house unless he had first brought to an end his own act of trespass as held by Honourable apex Court in the judgment reported in PLD 1983 Supreme Court 135, wherein it was observed as under:-- "As the petitioner himself committed trespass into the house "This made the intruders the trespassers and the established law against trespassers is that they cannot claim the right of private defence or their person unless they first bring to an end their own act of trespass."
' In another case reported in 1987 SCM R 293 it was held that the accused himself having committed trespass into the house of complainant to commit act of adultery with his wife, he could not plead self defence against his own unlawful act. We find it beneficial to reproduce the relevant observation of Wazir Ali to commit an act of adultery with Safia Bibi wife of Wazir Ali, he cannot plead self-defence against his own unlawful act. The plea for lenient sentence is also in vain. He had stealthily come to the house at night to bring dishonour to the family by having intercourse with one of its female members, and if he was caught, he had no reason to cause fatal injuries to the deceased as even under the law the deceased was entitled to apprehend him. His act rather aggravated the offence."
From above discussion it has been proved beyond reasonable doubt that the appellant had committed Qatl-iAmd of deceased Mst. Mashmara and he was rightly found guilty so by the trial Court.
' Next question which is to be resolved in view of show-cause notice issued to the appellant for enhancement of sentence, is whether the appellant is liable to be sentenced to death or otherwise.
It may be seen that normal penalty for voluntarily causing Qatl-i-Amd is death and if the Court is going to award him any other punishment than death, it shall in its judgment state the reason; why the sentence of death was not passed. The perusal of impugned judgment shows that no reasons whatsoever have been recorded by the learned Sessions Judge for not imposing death sentence which is violation of the provisions contained in section 367(5), Cr. P. C . The appellant has been charged to have entered in the house of deceased duly F armed with bad intention and while confronted by the deceased he murdered her by firing at her, therefore, there were no mitigating circumstances for sentencing him to imprisonment for life and he was liable to normal penalty of death for his wicked and wanton act of committing murder of an innocent lady who attempted to save her person and property, instead of retreating. Therefore; we are inclined to exercise our suo motu revisional jurisdiction and enhance the sentence imposed by the trial Court to that the death.
He be hanged by neck till dead. The appeal being devoid of any merit is dismissed.