' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,665 of 2002 filed by Gulzar Ahmad Butt through his learned counsel and Criminal Appeal No,232/J of 2003 filed by Salman and Gulzar Ahmad through Jail, who faced trial in. Case F.I.R. No,176 registered at Police Station Race Course, Lahore, on 23-6-2000 for offences under sections 302/34/324/337- F(i)/337F(iii)/337-D, P.P.C. Before, learned Additional Sessions Judge, Lahore, who after conclusion of trial, vide his judgment, dated 29-4-2002 convicted. Gulzar Ahmad. Butt-appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs,50,000 or in default six months'
R.I. He was further convicted 'for attempting to commit Qatl-e-Amd of Asif Mehmood for offence under section 324, P.P.C. And sentenced to 10 years' R.I., under. Section 337-F(i), P.P.C. One year's R.I., under section 337-F(iii), P.P.C. Three years' R.I., under section 337-D, P.P.C. 10 years' R.I. For causing injuries to Asif Mehmood-appellant with imposition of Arsh amounting to Rs,50,000, while Salman- appellant was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with compensation of Rs,50,000 or in default six months' R.I.
2. Murder Reference No,318 of 2002 for confirmation or otherwise of death sentence awarded to Gulzar Ahmad Butt-appellant shall also be decided through this single judgment.
3. Brief facts of the case as narrated by Khizar Hayat/complainant/P.W.1 in F.I.R. Exh.PA/1 are that on the day of occurrence at about 2-00 p.m. Nephew of the complainant Iqbal told him that 3/4 days prior he had a quarrel with Shahbaz nephew of Gulzar Butt alias Toto Langra, who threatened him that he will take revenge through his uncle Gulzar Butt. Thereafter the complainant along with his son Moeen Khizer went to the house of Iqbal and took along with him Asad and Asif. Thereafter at about 5-30 p.m. They reached the shop of Goga (Salman), where Gulzar along with Goga was present. The complainant tried to settle the matter but Goga started abusing to Iqbal. In reply Asad and Asif also started abusing. Meanwhile, Goga picked up a hammer from his shop and raised Lalkara. Thereupon Gulzar took out a pistol from the folder of his trousers and started firing. The fires landed on different parts of bodies of Asad and Asif. It is also alleged in the F.I.R. That Goga gave a hammer blow on the head of Asad, who fell down. Thereafter accused ran away from the spot. The complainant informed the police on emergency number, so Mujahid Force reached the scene of occurrence and took both the injured to Mayo Hospital.
4. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Aish, S.-I./P.W.14, who conducted thorough investigation, arrested the accused and after effecting recovery of weapons used during the occurrence, sent them to face trial.
5. At the trial, the prosecution in order to prove its case produced 15 witnesses in all and after tendering in evidence the reports of Forensic Science Laboratory Exh.PQ, Chemical Examiner Exh.PR and Exh.PS and that of Serologist Exh.PR/1 and Exh.PS/1 closed its case.
6. In his statement recorded under section 342, Cr.P.C. Gulzar Ahmad Butt-appellant has taken a specific plea of self defence, which is being reproduced below:--- ' "I am innocent in this case. I had no knowledge and intention to commit the murder of Asad deceased. I had not committed Qatl-e-Amd of Asad deceased and there was no arranged meeting between the complainant party with me about the motive alleged in the F.I.R. Exh.PA and no altercation took place between me and Asad Mahmmod deceased etc., as admitted by the complainant party in the F.I.R. Exh.PA and also in the statements of P.Ws. Regarding the motive mentioned in the F.I.R. Because even I was not aware of the arrival of the deceased/complainant party and even I have no knowledge or intention about the alleged motive alleged by the complainant party in the F.I.R. Till the present occurrence took place.
' On 23-6-2000 I was present at Allah Hoo Steel Works about 5-45 p.m. Mad deceased and Asif along with their companions on the motor cycle who was armed with a pistol .30 bore came at the above said shop. Asif P.W. Raised Lalkara that Gulzar would not go alive today and also alleged that on 11-6-2000 Gulzar prevented us from teasing his maternal niece. Asad deceased pushed me, I fell down because I am disabled by my right leg. Companion of Asif and Asad deceased took out pistol .30 bore and started indiscriminate firing with knowledge and intention to kill me but did not hit me at that moment my life was not secure. I wanted to save my life; I lost my sense and confidence. Therefore I in exercise of my right of private defence, I also started firing, during the cross firing Asad and Asif sustained injuries by the firing of their companions, who were also armed with pistol .30 bore.
' In fact on 11-6-2000 at about 4-00/5-00 p.m. Asif, Asad, Iqbal etc. Were flying kites and also were firing on their roof of the house and they were teasing my maternal niece who was sitting in the yard of her house. I came at the house of my paternal niece. I prevented them to do so. As a result of which, the above said persons came at the house of my paternal niece where I was severely beaten by Asif, Asad etc. At that moment they also threatened me that they will see me. Thereafter 2/3 times Asif and Asad and Iqbal etc. Along with their friend threatened me with dire consequence. Due to this revenge the said Asif, Asad and his companions attacked me at Allah Hoo Steel Works with the intention and knowledge to murder me. The alleged shop is owned by my friend.
' The complainant namely Khizar Hayat and his son Moin Khizar, Iqbal P.W. Were not present at the time of occurrence.. All the P.Ws. Are close relatives and they concealed the facts of this occurrence. The motive alleged in the F.I.R. Is baseless and fabricated."
' While Salman-appellant in his statement recorded under section 342, Cr.P.C. In reply to the question No,7 replied as under:-- ' "I have been falsely implicated in this case. There is no motive against me and nothing has been recovered from me. When the police arrested me my statement was recorded before the police in which I stated that I am innocent and I have not caused injuries to Asad Wajid Mehmood deceased. The other accused also made his statement in this regard that I am innocent. On 14-7- 2000, 17-7-2000, 18-7-2000, 23-7-2000 and 24-7-2000 about 30 persons appeared before the I.O.
Aish Muhammad P.W.14 and D.S.P. They stated that the police during investigation declared Salman accused as innocent. He has not caused injury upon Asad deceased. Especially Shahid Iqbal and Muhammad Ilyas who were present at the time of occurrence stated that Salman alias Goga is innocent. He was not armed with any Hammer. They also submitted their affidavits in this regard before the police which are on police file.
' Syed Iftikhar Hussain, Mian Muhammad Nazeer, Bashirt Ahmad, Syed Sarwar Shah, Shahid Iqbal, Muhammad Afzal, Muhammad Hassan, Mujahid Butt, Barkat Masih, Muhammad Farooq, Muhammad Hanif, Muhammad Arif, Abdul Rasheed, Muhammad Ilyas, Abdul Waheed, Muhammad Asghar, Muhammad Latif, Shahzad Hussain, Ghulam Murtaza, Zulfiqar Ali, Muhammad Pervaiz made their statements before police during investigation that Salman alias Goga was not armed with any weapon with him and he has not caused any injury to Asad Mehmood deceased and he is innocent. There was some motive if any is against Gulzar Butt alias Toto. There is no pre-planed and premeditation on ,his behalf. The police falsely implicated me in this case. The police failed to join the shop keepers, passerbys and residents of the area initially. The persons mentioned above who appeared before the police were residents of the area and same were present there. I had acquaintance with Gulzar Butt that is why I have been implicated in this case falsely. Eye-witnesses of the prosecution appeared in this Court are false and not truthful and they have relationship with each other."
' Both the appellants did not appear as witness under section 340(2), Cr.P.C. However, in this case Abdul Rehman, Ali, Imran, Muhammad Raza and Shahid Iqbal appeared as D.Ws'. 1 to 4. After conclusion of trial, the learned trial Court convicted and sentenced the appellants as stated above.
7. The learned counsel for Gulzar Ahmad-appellant submits that undeniably it was the complainant party which went to the shop of Salman where Gulzar used to sit; that it is also admitted that hostility already existed between the parties, so these two facts support the plea of self-defence of Gulzar-appellant; that Khizar Hayat was chance witness who lived at a 'distance of 10/15 miles from the place of occurrence and he had no business to be present there; that Khizar Hayat was a patent liar as is evident from the fact that he stated before the Court that he did not know as to from sun arose and despite being matriculate he stated that he did not know A to Z alphabet; that Iqbal, who was the best witness of motive, was not produced before the learned trial Court; that the accused was the best judge of danger to life; that sensing danger to his life Gulzar- appellant fired in his self-defence; he relies upon 1993 PCr. LJ 133 and 2001 SCM R 51; that the empties recovered from the spot did not tally with the weapon recovered at the instance of Gulzar which clearly shows that the fires were caused by the complainant party; that statement of Asif Mehmood/P.W.2 was recorded on 3-7-2000 after ten days of the occurrence, while he was present in his house; that there was no explanation why he did not go to the police station after discharge from the hospital or why his statement was not recorded while he was in the hospital; that statement of Asif Mehmood was tutored one; that he being injured would not be termed into a truthful witness; and that in any case it was not a case of capital sentence.
8. The learned counsel for Salman has argued that undeniably no previous ill will, grudge, enmity or motive existed between the complainant and Salman-appellant; that it is in evidence that deceased and the P.Ws. Were standing outside the shop when Gulzar started firing and in that case it would not be possible for Salman to go out of the shop at the risk of his life and cause single injury, to the deceased; that both the medical officers have stated that the injury could be caused by fall; that the P.Ws. Admitted that Watta, Sarya and other iron articles were lying outside the shop of Salman who dealt in steel works; and that P.W.14/I.O. Did not state that allegedly recovered hammer was bloodstained, hence the evidence of recovery cannot be used against Salman- appellant.
9. On the other hand, the learned counsel appearing on behalf of the complainant submits that it was a day light occurrence; that presence of Asif Mehmood has been admitted; that statement of Asif Mehmood P.W. Was fully supported by the medical evidence and corroborated by the circumstances of the case; that though it was alleged that Gulzar-appellant was beaten by the complainant party on 11-3-2000 yet no evidence was produced in support of the allegation; that in any case if Gulzar was beaten on the said date then Gulzar must have reported the matter to the police; that right of private defence of person was contrary to section 99, P.P.C. As in the instant case Gulzar did not receive even scratch and he had no apprehension of death yet he repeatedly fired at the deceased and Asif Mehmood-P.W; that according to case of the accused themselves the deceased and Asif Mehmood P.Ws. While injured were taken to hospital by Mujahid Force in their official vehicle; that in case either of the two injured were equipped with any weapon then it could easily be spotted by the Mujahid Force; and that it was a cold-blooded murder.
10. The learned Additional Prosecutor General adopts the line of arguments advanced by the learned counsel for the complainant.
11. We have heard the learned counsel for the parties at length and scanned the entire evidence.
Out of the two appellants, Gulzar appellant has taken specific plea of self-defence of person, which has been reproduced in para 6 (ante). According to settled principle the prosecution case and the defence plea are to be put in juxtaposition in order to ascertain which of the two is true or nearer to the truth.
12. The prosecution case merely rests on the statement of Khizar Hayat/complainant (P.W.1), uncle of the deceased and Asif Mehmood/P.W.2, brother of the deceased. As far as Khizar Hayat is concerned, he was chance witness and lived at a distance of 10/15 miles from the place of occurrence. He is not shy of telling lies in order to adjust his statement. When he was questioned about the directions, his answer was that he could not tell the directions- in the terms of North, South etc. And he went to the extent of saying that he could not tell the direction from where the sun arose, so either he was liar or imbecile. In both cases it would not be safe to rely upon his evidence. According to F.I.R., he rang up emergency number 15 after the occurrence while it is proved from record that it was one Aamir who informed the police about the incident on emergency number. Statement of this P.W. Was recorded at Mayo Hospital after one hour of the occurrence. Asad-deceased and Asif Mehmood-P.W. While injured were taken to hospital by Mujahid Force. Mark-A (COD Daily Register), which was brought on record through Abdul Rehman, Superintendent (A and E Department), Mayo Hospital, Lahore, who appeared as D.W.1, reveals that it bears the name of Muhammad Afzal son of Mian Muhammad Rafiq and the names of injured were mentioned as "Namaloom" (unknown). Subsequently the names of Asad-deceased and Asif Mehmood were entered after cutting. It appears that the complainant being uncle of the deceased and the injured was summoned from his house after the occurrence. As far as Asif Mehmood/ P.W.2 is concerned, his presence at the spot could not be denied. He received four fire-arm injuries on his person during occurrence. He was taken to the hospital along with Asad by Mujahid Force.
His presence has also been admitted by the appellant Gulzar. After receiving injuries he remained admitted in the hospital and was operated upon. In these circumstances, no benefit can be given to the defence for the delay in recording of his statement. Asif Mehmood has given a detailed account of the occurrence. He was subjected to very lengthy cross-examination but no dent could be caused in the veracity of his statement as far as Gulzar-appellant is concerned.
13. The ocular account is fully supported by medical evidence. The occurrence took place at about 5-30 p.m. Asif Mehmood was examined by Dr. Khalid Hussain/P.W.6 at 6-10 p.m. At the time of examination he was irritable and semi-conscious. The doctor observed four injuries on the person of Asif Mehmood. Injury No,1 was on the upper back of left leg and it was a grazed wound; injury No,2 was on the front of upper left abdomen; injury No,3-A was on the left shoulder; injury No,3-B was an exit wound, while injury No,4 was on the mid lower front of the abdomen. Statement of doctor further reveals that Asif was operated upon and after receipt of report from the Registrar, West Surgical Ward, Mayo Hosptial, the injuries were described as follows:-- ' Injury No,1 337-F (i)
' Injury No,2 337-C (Jaifa)
' Injury No,3 337-F(iii)
' Injury No,4 337-C (Jaifa)
' The same doctor examined Asad while he was injured. At the time of examination Asad was unconscious, cold and pulse-less. He was not responding to vocal stimuli. He was in I.C.U. And the doctors were trying to save his life. The doctor observed 8 injuries on the person of Asad. Injury No,1 was on the left forearm; injury No,2-A was on the back of right arm; injury No,2-B was an exit wound; injury No,3 was a grazed wound on the lateral side of right arm; injury No,4-A was on the medial side of left arm; injury No,4-B was an exit wound; injury .No,5-A was on the back of chest; injury No,5-B was an exit wound; injury No,6-A was on the lateral side of right chest; injury No,6-B was an exit wound; injury No,7 was swelling on the right side of head; injury No,8-A was on the back of chest; and injury No,8-B was on the front of left chest (though it has not been mentioned but it appears to be an exit wound of injury No,8-A). According to the opinion of doctor, injury No,7 was caused by a blunt weapon while the rest of the injuries were caused by fire-arm. The number of injuries on the person of Asad and Asif Mehmood fully supports the prosecution case that Asad and Asif Mehmood both were repeatedly fired upon.
14. It was stated in F.I.R. That bone of contention was the dispute between Shahbaz and maternal nephew of Gulzar Ahmad and Iqbal brother of the deceased, which happened 3/4 days prior to the occurrence and Shahbaz had threatened that he would take revenge through his uncle Gulzar appellant. The learned counsel for the appellant has argued that the alleged motive could not be proved as Iqbal was not produced before the learned trial Court. The argument of the learned counsel is not valid as it was suggested to P.W. 2 that it was correct that quarrel took place between his brother Iqbal and Shahbaz. The suggestion amounts to admission of motive B and no further proof was needed.
15. According to report of Forensic Science Laboratory Exh.P.Q., empties recovered from the spot did not tally with the weapon recovered at the instance of Gulzar-appellant, hence the evidence of recovery cannot be used as corroboratory evidence against Gulzar-appellant.
16. Now coming to the defence plea, according to Gulzar-appellant, Asad deceased and Asif Mehmood P.W. (minus complainant) had gone to the shop of Salman where Gulzar was present.
Asif raised Lalkara that Gulzar should not be spared as he prevented him from teasing his maternal niece then Asad pushed Gulzar, who fell down and thereafter companions of Asif and Asad started indiscriminate firing. However, none of the fires hit Gulzar and he in order to save his life took out pistol and started firing. He further stated that during cross-firing Asad and Asif sustained injuries.
This story is neither supported by any evidence nor circumstances of the case. After falling down Gulzar would have been easy prey and if the complainant party wanted to take his life they could easily do so by firing directly at him. On the contrary, Gulzar did no receive any injury and no marks of firing by the complainant party were seen inside the shop. Undeniably, Asad and Asif both were taken to the hospital by Mujahid Force in the official van occupied by them. The members of Mujahid Force did not spot any pistol lying near the injured persons or within their possession. The story of coming on motorcycle is also not supported by any evidence whatsoever. The occurrence took place not in the shop but outside the shop of Salman. Most of the injuries on the person of Asad-deceased were caused from the behind. It appears that while he was running away Gulzar kept on firing at him. According to defence plea, on 11-6-2000 Asif, Asad, Iqbal and others were present on the roof of their house and they were flying kites and firing in the air. They were also teasing maternal niece of Gulzar, who was present in the compound of her house, which was situated at the back of the house of complainant party. When Gulzar objected to the doings of Asif, Asad and others they went to the house of sister of Gulzar and gave severe beating to him. This story is also not supported by any independent evidence. There is no reason as to why Gulzar did not report the matter to the police when he was severely beaten by the complainant party, who had gone to his house and had been teasing his niece. It may be noted here that Asad-deceased was about 24 years of age while Asif was about 19/20 years. Both of them were young boys, while Gulzarappellant was a matured person of about 35 years of age. It was not likely that when admonished, instead of feeling ashamed Asad and Asif, who were almost teenagers, would go to the house of sister of Gulzar and give severe beating to him. There is no explanation as to why the neighbours of the house did not react to the beating of Gulzar or why the neighbours did not interfere. It is common knowledge that in our society the activities like teasing of girls are not appreciated and in case the complainant party had been teasing the girl then neighbours would have taken side of Gulzar. On the contrary, not a single witness from the neighbourhood was produced in support of the story that on 11-6-2000 the complainant party was flying kites and firing on the roof top; and that they were also teasing the niece of Gulzar. The crux of the whole discussion is that the plea of self-defence as well as the motive dating back to 11-6-2000 is neither supported by any evidence nor by the circumstances of the case. Hence, the plea of self-defence is rejected.
17. Gulzar-appellant appears to be a trigger-happy person, who repeatedly fired at Asad- deceased and Asif-P.W.; both of them were young boys; seven injuries on the person of Asad- deceased were caused by fire-arm; four injuries on the person of Asif-P.W. Were also caused by fire-arm; two of the injuries were on the abdomen; he acted in a very cruel and heartless manner, thus, no mitigating circumstance exists in his favour. Resultantly appeal filed by Gulzar Ahmad Butt-appellant through his learned counsel (Criminal Appeal No,665 of 2002) and the appeal filed through Jail (Criminal Appeal No,232/J of 2003) to his extent are dismissed. The impugned judgment to his extent is upheld and the order passed by the learned trial Court under section 544-A, Cr.P.C. Is modified to the extent that in default of realization or payment of the amount of compensation the convict would suffer" S.I. For six months. Murder reference is answered in the affirmative and sentence of death awarded to Gulzar Ahmad _ Butt-appellant is confirmed.
18. Now coming to the case of Salmanappellant, undeniably he had no motive to join the occurrence. One single injury with hammer on the head of Asad-deceased was attributed to him.
Both doctors (P.W.5 and P.W.6) have stated that injury could be the result of fall at a hard surface.
P.Ws. Have admitted, that Salman was running a shop relating to steel works and steel doors, windows etc. Were manufactured there. It was also admitted that different iron articles remained scattered outside the shop and that in, front of shop Wattas were also lying. According to P.W.2 Asif Mehmood, first fire shot was received by Asad at his chest. Furthermore according to P.Ws., it was Guizar who started firing first, so falling of Asad after receipt of injuries on the ground and possibility of hitting by a hard object could not be ruled out. The occurrence, undeniably, took place in front of the shop; Guizar Ahmad-appellant was repeatedly firing at the complainant party; it was most unlikely that Salman, who had no enmity with the complainant party, would risk his life by getting out of the shop in the presence of firing and cause injury to Asad, who had already received fire- arm injuries. In these circumstances, we are inclined to extend benefits of doubt to Salman and allow Criminal Appeal No,232/J of 2003 to his extent. The judgment passed by the learned trial Court to his extent is set aside. He is acquitted of. All the charges. He would be released from jail forthwith, if not required in any other case.
19. For the same reasons criminal revision seeking enhancement of sentence is dismissed.