' SYED SHABBAR RAZA RIZVI, J.---This Criminal Appeal No,1223 of 2002 has been filed by appellant, Saeed Ahmed alias Papoo son of Inayat Ali against judgment of Ch. Zafar Iqbal Naeem, Additional Sessions Judge, Faisalabad, dated 29-6-2002. He along with Amir, Liaquat Ali alias Kala, Inayat Ali and Naveed alias Needa were tried in F.I.R. No,117 of 2000, dated 28-2-2000, under sections 302, 342, 148 and 149, P.P.C., registered at Police Station Factory Area, Faisalabad, for committing murder of Muhammad Shafi and causing fire-arm injuries on Abdul Rashid. After conclusion of the trial, appellant Saeed Ahmed alias Papoo was convicted and sentenced to death as Tazir under section 302(b), P.P.C. For murder of Muhammad Shafi. He was also liable to pay an amount of Rs,100,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default of payment to further undergo imprisonment for 6 months. The appellant was also convicted and sentenced under section 324, P.P.C. To 10 years imprisonment as Tazir for launching murderous assault on Abdul Rashid, with a fine of Rs,25,000, in default of payment of fine to further undergo three months imprisonment. The appellant was further convicted and sentenced under section 337- F(iii), P.P.C. To three years' imprisonment as Tazir for causing injuries to Abdul Rashid. He was ordered to pay Rs,10,000 as Daman to Abdul Rashid injured. He was also convicted under section 337-F(i), P.P.C. And sentenced to one years's imprisonment with a fine of Rs,5,000 as Daman to the injured. Till the payment of Daman amount, he was to remain in jail. He was extended benefit of section 382-B, Cr.P.C. In sentences under sections 324, 337-F(i) and 337-F(iii), P.P.C.
2. Through the same judgment, accused Amir, Liaquat Ali alias Kala, Naveed alias Needa and Inayat Ali were acquitted of the charge.
3. The prosecution story set up as per F.I.R. Exh.P.D.1 is that complainant, Muhammad Rafi on 28-2- 2000 at about 6 p.m. Was coming back to his house and when he reached at the corner of his street, he saw that accused Saeed alias Papoo armed with pistol, Naveed alias Needa, Liaquat Ali alias Kala, Amir and Liaquat All were quarrelling with Muhammad Shafi (deceased) brother of the complainant and his father Abdul Rasheed and beating them. Saeed alias Papoo raised Lalkara not to let alive Muhammad Shafi and within view of complainant, appellant Saeed alias Papoo fired 3/4 shots with his pistol straight at Muhammad Shafi deceased at his abdomen, near his neck and upper arm who was being held by accused Naveed and Kala. Due to these injuries Muhammad Shafi fell down and was being grappled and beaten by accused Amir and Inayat Ali. Abdul Rasheed, father of the deceased and complainant moved forward to save his son Muhammad Shafi, whereupon appellant Saeed alias Papoo fired three consecutive shots on his abdomen and right leg. In the meantime, an alarm was raised that Muhammad Shafi had been murdered, on which all the accused fled away while raising Lalkaras. The occurrence was witnessed by Muhammad Ramzan and Shahbaz Ahmad, P.Ws. The motive for the occurrence was stated that two hours prior to the occurrence, a quarrel took place between children of accused party and complainant party. For which, the accused murdered Muhammad Shafi and injured Abdul Rasheed.
4. Maqbool Sardar, S.-I./ Investigating Officer P.W.13 after registration of the F.I.R., reached at the place of occurrence and prepared the injury statement Exh.P.F. And inquest report Exh.P.B. Of Muhammad Shafi, deceased. Then he handed over the dead body to Jaffar Ali Constable, P.W.4 for getting post-mortem examination of the deceased from Allied Hospital, Faisalabad. Therefore, the Investigating Officer secured the blood-stained earth from the place of occurrence through memo.
Exh.P.H., which was attested by Muhammad Ramzan and Shahbaz Ahmad, P.Ws. Thereafter, he collected four empties of .30 bore pistol Exh.P.4/1 to 4 from the place of occurrence through memo.
Exh.P.J., attested by Ramzan and Shahbaz, P. Ws. He also prepared the rough site plan of the place of occurrence through memo. Exh.P.L. And recorded the statements of the P.Ws. Thereafter, Jaffar Ali, Constable produced before him post-mortem report Exh.P.E. And last worn clothes of the deceased which were taken into possession through memo. Exh.P.C., which was attested by Jaffar Ali Constable. On 29-2-2000, he got prepared scaled site plan of the place of occurrence by Aurangzeb, Draftsman vide memos. Exh.P.A. And Exh.P.A./1. The Investigating Officer submitted applications Exh.P.M. And Exh. P.N. To D.M.0 . Civil Hospital, Faisalabad for recording statement of injured Abdul Rashid, P.W.11 and recorded statement of the injured on 1-3-2000. He arrested the accused Saeed Ahmad, Amir aria Inayat Ali on 10-3-2000. On 15-3-2000, Saeed alias Papoo, appellant while in police custody led to the recovery of pistol .30 bore P.5 along with license, which was taken into possession through memo. Exh.P.K., attested by Muhammad Ramzan and Shahbaz, P. Ws. On the same day, he arrested Naveed and Liaquat accused and sent them to the judicial lock up. Thereafter, he completed the investigation and submitted challan under section 173, Cr.P.C.
Declaring accused Saeed Ahmad alias Papoo, Amir and Inayat Ali guilty and placed Naveed in Column No .
2.
5. The trial Court after submission of the challan framed the charge on 1-8-2001 which was denied by the accused and they claimed trial. During the trial, the prosecution examined 13 witnesses in total.
6. P.W.3 Dr. Zubair Saeed, SMO, on 28-2-2000 medically examined Abdul Rashid, injured and found the following
(1) A grazing fire-arm wound 5 x 2-1/2 c.m. On front of right side upper part muscle deep with tattooing on borders.
(2) A fire-arm wound 2-1/2 x 1-1/2 c.m. With tattooing on front of abdomen right side in skin deep.
(3) A fire-arm wound 2-1/2 x 1-1/2 c.m. With tattooing on front of abdomen middle part and skin deep.
(4) A fire-arm wound of entry with tattooing of margin 1/2 x 1/2 c.m. On inner side of right side middle part.
(5) A fire-arm wound of exit 1/2 x 112 c.m. On back of right leg upper part.
' Injury No,1 falls under Jurh Ghair Jaifah Mutlahima. Injuries Nos.2 and 3 fall under Jurh Ghair Jaifa Damiayah. Injuries Nos.4 and 5 were kept under observation. The injuries were caused by fire-arm.
Probable time fresh on arrival.
7. P.W.9 Dr. Ghulam Mustafa, M.O. On 29-2-2000 at about 9-30 a.m. Conducted the post-mortem examination on the dead body of Muhammad Shafi. The doctor said that according to the police papers the date and time of death was 28-2-2000 and 6 p.m. Caused by fire-arm weapon. The doctor found the following injuries on the dead body:---
1. A fire-arm entry wound 1 x 1 c.m. On front of left side of chest just below left clavicle 5 c.m. Lateral to midline.
2. A fire-arm exit wound 1 x c.m. On outer side of right arm, 14 c.m. Above elbow.
3. A fire-arm entry wound I x 1/2 c.m. On back of left chest just below the tip of left scapula.
' A fire-arm exit wound 1 x 1/2 c.m. On outer side of right chest, 8 c.m. Below exilla 16 c.m. From nipple.
' A fire-arm exit would 1/2 x 1/2 c.m., 7-1/2 c.m. Below exilla on inner side of right arm.
' A fire-arm exit would 1 x 1/2 c.m. On outer side of right arm, 14 c.m. Below right shoulder, 8 c.m.
Above exit wound 1(B).
' A fire-arm entry wound 2 x 1 c.m. In mid line 8 c.m. Above umbilicus.
' A fire-arm exit wound 1 x 1/2 c.m. On back of upper part of left gluteal region, 12 c.m. From midline.
' In the opinion of the doctor, the cause of death in this case was Injuries Nos.2 and 3 resulting in haemorrhagic shock and hence death. Probable time that elapsed between injury and death was within a few minutes to half an our and between death and post-mortem was within 24 hours.
8. The ocular account was furnished by Muhammad Rafi, P.W.10 and Abdul Rashid, P.W.11.
Muhammad Rafi, P.W.10 was an eye-witness of the occurrence and brother of the deceased. Abdul Rashid, P.W.11 was father of the deceased and also injured in the occurrence. Both the witnesses supported the prosecution version as narrated in the application Exh.P.D. Shahbaz Ahmad, P.W.12 was also an eyewitness of the occurrence. He stated that he along with Muhammad Ramzan was present at the corner of Street No,18 Mohallah Khalid Abad when they saw the occurrence. He also supported the prosecution story as narrated by P.W.10 and P.W.11.
9. Muhammad Afzaal No,2096/C was examined as P.W.1. On 7-3-2000, the Moharrir of the Police Station Factory Area, Lahore handed over to him sealed parcels of blood-stained earth and sealed parcel of empties, which he delivered on 9-3-2000 to the office of Chemical Examiner and Forensic Science Laboratory respectively. On 27-3-2000, the Moharrir handed over to him sealed parcel of pistol which he delivered on 28-3-2000 to the office of - Forensic Science Laboratory, Lahore. P.W.2 Aurangzeb Draftsman prepared the site plan of the place of occurrence Exh.P.A. And Exh.P.A./1. P.W.4 Jaffar Ali No,4091/C escorted the dead body of Muhammad Shafi, deceased to the hospital for its post-mortem examination. After post-mortem examination, he handed over the Investigating Officer post-mortem report and last worn clothes of the deceased. P.W.5 Abdul Rashid A.S.-I.
Recorded the formal F.I.R. Exh.P.D./1 on the basis of complaint Exh.P.D. P. W.6 Ghulam Mustafa A.S.-I.
Was Moharrir of Police Station Factory Area, Lahore on 28-2-2000. He kept the sealed parcels of blood-stained earth and empty cartridges in police Malkhana. On 7-3-2000 he handed over the said parcels to Muhammad Afzaal, P.W.1 for its transmission to the office of Chemical Examiner and Forensic Science Laboratory. On 27-3-2000 he handed over the sealed parcel of pistol to Muhammad Afzaal, P.W.1 for its onward transmission to Forensic Science Laboratory. P..W.7 Muhammad Yousaf identified the dead body of Muhammad Shafi at the time of post-mortem examination. P.W.8 Sultan Sikandar, S.-I. Stated that on 6-5-2000 he received the police file of this case and he recorded the statements of A.S.-I. Ghulam Mustafa and Muhammad Afzaal No,2096/C under section 161, Cr.P.C. Maqbool Sardar, S.-I. P.W.13 deposed his version as per para. 4 of this judgment.
10. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exh.P.P., Serologist Exh.P.R. And Forensic Science Laboratory Exh.P.Q.
11. After close of the prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegations, claimed his innocence and false involvement. In reply to question No,9, "why this case against you and why the P. Ws. Have deposed against you", he replied as under:-- ' "P.Ws. Are related inter se and deposed against me falsely. On the day of occurrence, no quarrel between the children of the parties had taken place. In fact on the day of occurrence at morning time, I was going to my job and at that time motorcycle of Shafi deceased had struck with me on which I gave slaps to deceased on which the deceased went away while threatening me to teach a lesson. At the time of occurrence, I was returning to my home after doing my job, when I reached in front of my house, the deceased along with his companion had way laid while armed with Chhuris and hockeys attacked upon me. I while exercising my right of self-defence fired at them which hit Shafi deceased and Abdul Rashid injured P.W. At the time of occurrence no P.W. Except Abdul Rashid was present at the place of occurrence. My co-accused Liaquat alias Kala, Naveed alias Needa, Amir and Inayat were not present at the time and place of occurrence. My co- accused were falsely implicated in this case being my father and brothers."
12. The trial concluded in conviction and sentence of the appellant as mentioned above and acquittal of the co-accused.
13. We have heard the learned counsel for the parties and considered their arguments with care and due consideration. We have also examined the relevant record referred to by the learned counsel as well as for our own satisfaction on different points. It is obvious from the preceding paras that prosecution and defence have offered two different versions of the occurrence. Thus, it is duty of this Court to evaluate the above discussed two versions and also to consider the probability of one of these versions and also to consider the probability of one of these versions.
The prosecution version is given by ocular account of P.W.10, P.W.11 and P.W.12. All these three P.Ws.
Have been consistent in their depositions and we have not noticed any serious discrepancy in their statements. Their statements/ ocular account are fully corroborated by medical evidence, recoveries and by expert evidence i.e, report of Chemical Examiner, report of Serologist and report of Forensic Science Laboratory. The ocular version of P.W.10 was not only fully supported by visibly strengthened by deposition of P.W.11. It' may be recapitulated that P.W.11 was injured with fire-arm.
According to P. W.3, ' Dr. Zubair Saeed, P.W. 11 Abdul Rasheed was caused as many as 5 fire-arm injuries on different parts of his body i.e, abdomen, upper part of leg, etc. It Is to be further noted that appellant himself in his statement under section 342, Cr.P.C. Conceded presence of P.W.11 at the scene of occurrence.
The relevant sentence of appellant may be reproduced herein:-- ' "I while exercising my right of self-defence fired at them which hit Shafi deceased and Abdul Rashid injured P.W. At the time of occurrence no P.W. Except Abdul Rashid was present at the place of occurrence."
' In the presence of above statement of appellant, there is no doubt left as far as presence of P.W.11 is concerned. It is settled proposition that even evidence of a single witness is sufficient to sustain or upheld the judgment of the trial Court. Thus, even for the arguments sake if P.W.10 and P.W.12 are to be disbelieved, yet evidence of P.W.11 is sufficient to sustain the decision of the learned trial Court.
The ocular account is supported by other pieces of evidence of corroborative nature as noted above i.e, medical evidence, etc.
14. On the other hand, the defence version given by the appellant himself in statement under section 342, Cr.P.C. Is not believable for many reasons. According to section 99 of Pakistan Penal Code, the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Likewise, section 100, P.P.C. Provides that the right of private defence of the body extends, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated namely:-- Firstly, such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly, such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. According to the appellant, "at the time of occurrence he was returning home after doing his job and when reached in front of his house, the deceased along with his companions had waylaid while armed with Churries and hockeys and they also attacked him. The above version is not supported by any piece of evidence by the appellant. Moreover, the record shows that what to speak of any injury, he did not even receive a single scratch on his body.
According to the defence, the appellant caused death to the deceased and 5 fire-arm injuries to P.W.11. The evidence discussed above clearly shows that the appellant fired 6 to 7 shots with his pistol and killed one person and seriously injured another one while he himself received no scratch.
There is no doubt that even if it is believed that he acted in his self-defence, he exceeded right of self-defence. It is also clear that he had no apprehension of threat to his life or any serious injury on his person yet resorted to repeated firing. Therefore, his case is not covered by section 100 P.P.C..
Moreover, Article 121 of Qanun-e-Shahadat Order, 1984 reads as under:-- ' "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the ease within any of the General Exceptions in the Pakistan Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him , and the Court shall presume the absence of such circumstances."
' In our opinion, since the appellant had taken plea of self-defence i.e, exception, burden to prove his stance was on him, in which he miserably failed.
15. As a result of above discussion and analysis of two versions, one of the prosecution and another of the defence, we hold that prosecution version stands proved beyond any shadow of doubt and defence version is improbable and unbelievable.
16. In view and consequent upon the above, Criminal Appeal No,1223 of 2002 is dismissed and the order of the learned trial Court is upheld
17. Murder Reference No,551 of 2002 is answered in Affirmative.