' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.472 of 2001 filed by Ghulam Farid, appellant, who was convicted under section 302(b), P.P.C. And sentenced to death and to pay compensation to the tune of Rs.50,000, in default six months' R.I. The conviction and sentence was recorded vide the judgment dated 28-6-2001 rendered by learned Additional Sessions Judge, Jampur District, Rajanpur.
2. Murder Reference No.329 of 2001 for confirmation or otherwise of death sentence shall also be replied through this single judgment.
3. Occurrence in this case had taken place at about 2 a.m. (midnight) on 22-12-1999 within the revenue estate of Mauza Nawan Begraj which is at a distance of 8 kilometres from Police Station, Jampur District Rajanpur, while the matter was reported to the Police by Muhammad Fayyaz and formal F.I.R. Exh.P.F. Was recorded at 3-30 a.m. On the same night by Amir Abdullah Khan, Inspector/S.H.O.
4. Briefly stated the facts of the case as stated by Muhammad Fayyaz, complainant are that on at about 2 a.m. (Midnight) the complainant and Allah Bachaya woke up due to barking of the dogs and found Mst. Pathani, wife of Allah Bachaya missing from her cot. Upon suspicion, the complainant along with Allah Bachaya went in the Haveli and found Mst. Pathani standing along with Ghulam Farid in the Haveli. Ghulam Farid was having a .12-bore gun in his right hand. He was identified in the light of bulb and moonlight. On seeing the complainant and Allah Bachaya, the accused Ghulam Farid came out of the Haveli and ran towards eastern side. The hue and cry attracted Goshal and Muhammad Afzal. The complainant party chased the accused and in that process when they reached near the land of Laloo Khan, Allah Bachaya who was ahead of the complainant, was fired at by Ghulam Farid with his .12-bore gun. The shots hit on the front of neck, chest and chin. The victim fell down and succumbed to his injuries at the spot.
' The motive alleged was that Ghulam Farid accused had illicit relations with Mst. Pathani wife of Allah Bachaya since long and the accused murdered said Allah Bachaya in order to marry with her.
5. Inspector, Amir Abdullah Niazi, P.W.9 took over the investigation. He after registration of the formal F.I.R. Rushed to the place of occurrence, examined the dead body, took into possession the blood- stained earth vide memo. Exh.P.G., prepared injury statement (Exh.P.C.) and inquest report (Exh.P.D.) and completed other formal investigation. He arrested the accused on 31-12-1999 along with a .12 bore gun which was secured vide memo.
Exh.P.J. The accused was found guilty and sent to face the trial.
6. At the trial, prosecution in order to prove its case produced nine witnesses in all. The eye-witness account was furnished by Muhammad Fayyaz, P.W.7 and Muhammad Afzal P.W.B. Dr. Tariq Saleem P.W.3 conducted post-mortem examination on the dead body of the deceased. The learned D.D.A.
Tendered in evidence report of the Chemical Examiner (Exh.P.L.) report of the Serologist (Exh.P.M.) and closed the case of prosecution. The accused in his statement under section 342, Cr.P.C.
Pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
7. Learned counsel for the appellant at the very outset submits that it is a case of right of self- defence. To elaborate his submission, learned counsel submits that if the case of prosecution is taken as it is, the plea of right of self-defence is fully proved. He submits that case set up by the prosecution in the F.I.R. Is that at 2 midnight on barking of the dogs, the complainant and the deceased woke up and found both Mst. Pathani wife of the deceased Allah Bachaya, and Ghulam Farid accused standing together, the accused on seeing them ran away, he was chased by the complainant and the deceased for four/five acres and when the complainant party reached near the land of Lalu Khan, Ghulam Farid accused fired a shot which hit the deceased. From this, learned counsel wants to draw the inference that had the complainant and the deceased while armed with Dandas not chased the deceased, the accused could not have fired and he fired only to avoid his capture at the hands of the complainant party which may also entail murder of the appellant himself. Much stress is laid to submit that if an accused commits the murder to avoid his own capture; his case does not fall under section 302(b) but under section 302(c), P.P.C. It is also submitted by learned counsel that the appellant and Mst. Pathani were not committing any offence rather according to case of the prosecution itself, they both were standing only. According to learned counsel, the appellant did not commit any cognizable offence, as such, the attempt of the deceased to capture/arrest him was not justified hence the appellant was within his right to exercise the right of self-defence. To support this submission, learned counsel relies on PLD 1953 Lahore 207 and PLD 1966 SC 432.
' The next submission made by learned counsel for the appellant is that it is the case of prosecution that Mst. Pathani had illicit relation with appellant Ghulam Farid. According to learned counsel, if the is the position, then the appellant had not gone to the house of deceased at his own but on the invitation of an inmate of the house, that is, Mst. Pathani wife of the deceased hence the appellant did not commit any offence under section 451, P.P.C. And this was the reason that neither the police added the said section nor the trial Court framed charge under the said section. Further submits that the appellant had gone to the house of Mst. Pathani for love and not with the intention to kill any one. Relies on 1995 SCMR 1639. A reference is also made to AIR 1938 Lahore (sic); AIR 1941 Peshawar 9 and 1986 PCr.LJ 2833.
' As to carrying of gun by the appellant, learned counsel submits that it was his licensed gun and he took the same in order to avoid any danger to his life and he had no intention whatsoever to kill the deceased.
' While coming to merits of the prosecution case, learned counsel submits that occurrence having taken place in dead dark hours of the night, it was not possible for the P.Ws. To have identified the appellant. In fact, according to learned counsel, it was unwitnessed occurrence and the eye- witnesses are cooked up.
' On the other hand, learned counsel for the State submits that the act done by the appellant is fully covered by section 302(b), P.P.C. And not under section 302(c), P.P.C. For the reason that had he wanted to avoid his capture at the hands of complainant party, he could have fired in the air or on the legs of the deceased but the shot fired by him landed on the chest which shows his intention.
Further submits that there was no previous background of enmity between the parties so there was no question for false deposition against the appellant.
' We have heard learned counsel for the parties at length and have gone through the record and the precedents cited at the bar.
' First of all, we would respectfully take up the precedent reported as Muhammad Arshad alias Achhi v. State 1995 SCMR 1639. In the precedent, the facts were that the victim was sleeping in a room of her house when the accused entered the room and committed Zina-bilJabr with her. On conclusion of the trial, the trial Court recorded conviction under section 452, P.P.C. Apart from the offence under section 10(3) of Ordinance VII of 1979. The Federal Shariat Court in appeal though maintained the conviction and sentence under the aforesaid sections but reduced the sentences.
On petition for special leave to appeal before the Honourable Supreme Court, the conviction of appellant .Under section 451, P.P.C. Was not maintained on the ground the Federal Shariat Court has converted the conviction from section 10(2) to section 10(3) of Ordinance VII of 1979 and made the offence as Zina-bil-Raza. In the instant case, Mst. Pathani was not alone in the house but her husband (later on murdered) was also present. So the facts of the case in hand are totally different to the precedent. It is settled law that the Court can convict and sentence an accused for an offence if the ingredients of said offence flow from the evidence on record although the police has not challaned the accused under that section of the P.P.C.
' Before the trial Court, the case of the appellant was of clean denial. Before this Court, he had taken the plea of self-defence. According to learned counsel, it is the case of prosecution itself that both Mst. Pathani and the accused were just standing; they were neither embracing nor kissing or committing sexual intercourse so they did not commit any offence. We are afraid, this argument of learned counsel has no force for the reason that offence under sections 18, 10(2) or 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 are cognizable. This Court has to see the intention of the appellant and the purpose for which he criminally trespassed in the house at dead dark hours of the night; that is 2-00 a.m. He was carrying a gun with him only for the reason that if any resistance is therefrom any of inmates of the house, he would have to face the consequences.
This act of the appellant, in our considered view, is dare devil. Had he intended to avoid his capture, he could have either fired in the air or on the legs of the deceased but he chose the most vital part, that is, chest of the deceased. It has come on record that Muhammad Afzal and Goshal P.Ws. On hearing the hue and cry, picked up the sticks. Further the prosecution has itself brought on record while cross-examining P.W.8, Muhammad Afzal that P.Ws. Were at a distance of 10/11 paces from the accused when he fired at the deceased. The appellant has miserably failed to prove his plea of self-defence. The precedents cited at the bar by learned counsel for the appellant are not applicable to facts and circumstances of the case.
' It is also a case of single accused.
' The P.Ws. Had no motive or against the appellant to involve him in a false case. No suggestion whatsoever was put to any of the P.Ws. For false implication of the appellant.
' No crime empty was recovered from the spot as such mere recovery of .12 bore gun on pointation of the appellant does not lend any further corroboration to the prosecution story. Be that as it may, it is settled law that recoveries are only corroborative piece of evidence and when the ocular account having come from an unimpeachable source is there, corroboration is only a rule of prudence.
' For what has been discussed above, we are of the considered view that prosecution has been able to prove its case against the appellant to its hilt beyond any shadow of doubt. The act of the appellant having gone at dead dark hours of the night duly armed with a fire-arm to the house of a lady with whom she had no relation leaves no room for any mitigation. Resultantly, the appeal filed by Ghulam Farid appellant is dismissed. The conviction and sentence recorded against him by the trial Court vide the impugned judgment is maintained in toto. The death sentence of appellant is confirmed and murder reference is answered in the affirmative.