' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.738 of 2002 directed against the judgment, dated 12-4-2002 passed by the learned Additional Sessions Judge, Ferozewala, whereby he convicted Tahir appellant under section 302(b), P.P.C. And sentenced him to undergo life imprisonment with fine of Rs.25,000 or in default thereof six months' R.I. While Aamir appellant was convicted under section 324, P.P.C. Was sentenced to undergo 10 years' R.I. With fine of Rs.25,000 or in default six months' R.I. Benefit of section 382-B, Cr.P.C. Was also awarded to the appellants.
2. The facts of the instant case in brief as narrated by the complainant Ghulam Yousaf in the F.I.R.
Exh.P.H./1 are that on 17-9-1999 at about 12 noon Naveed and Abdul Rehman both sons of the complainant were passing through Tanki Bazar Muridke and the complainant was himself coming behind them at a small distance. When Naveed and Abdul Rehman reached in front of Vedio Centre of Asif accused, Tahir and Abid armed with pistols and Asif empty-handed came there. Asif raised a lalkara on which Tahir appellant fired a pistol shot on Naveed hitting on his left thigh. The accused Aamir fired at Abdul Rehman with his pistol hitting on his both thighs as well as penis on which Abdul Rehman fell down. Both the accused resorted to indiscriminate firing with their pistols due to which one passerby named Muhammad Aslam also became injured. Naveed succumbed to the injuries on the way to Hospital but Aslam died later on. The motive behind the present occurrence was quarrel between Naveed and Asif which had taken place 3/4 days prior to the present occurrence.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Shahid Hafeez Inspector along with his subordinates proceeded to the spot. He prepared the inquest report Exh.P.M. Regarding dead-body of Naveed deceased and took into possession blood-stained earth vide memo. Exh.P.N. He also took into possession the blood- stained earth from the place of murder of Muhammad Aslam vide memo. Exh.P.L. He also received last-worn clothes of Naveed deceased vide memo. Exh.P.I. After the death of Aslam deceased, he prepared his inquest report vide Memo. Exh.P.S. He received last-worn clothes of Aslam vide memo.
Exh.P.A. Thereafter investigation of the case was entrusted to Muhammad Sarwar S.H.O. Who interrogated Tahir and Aamir accused. On 27-10-1999 Tahir appellant got recovered pistol vide memo. Exh.P.C. And vide memo. Exh.P.D. He got pistol from Aamir. He completed the investigation and ultimately challaned the accused.
4. Prosecution in order to prove its case has produced as many as 15 witnesses including Doctor, Investigating Officers, eye-witnesses and other formal witnesses. After tendering in evidence the reports of Chemical Examiner Exh.P.T., Exh. P.U. And that of Serologist Exh.P.V. And Exh.P.W. And report of Forensic Science Laboratory Exh.P.S. Learned 'DDA, closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial Court after taking into consideration every aspect of the case and hearing arguments advanced by both the parties, convicted and sentenced the appellants as mentioned above. Hence this appeal.
5. Learned counsel for the appellants in support of this appealsubmits that place of occurrence is just in front of the house of the appellants party while the complainant party reside three miles away from the place of occurrence, that there was no plausible explanation about the presence of the complainant party at the spot. Learned counsel submits that recovery of licensed weapon of Abdul Rehman speaks volume about the presence of Abdul Rehman in an armed condition at the place of occurrence.
6. Learned counsel submits that the motive asserted by the prosecution was hearsay as both the eye-witnesses were not present at the time of earlier quarrel which was the reason for the murder of the deceased persons and causing injuries to Abdul Rehman injured. Learned counsel submits that admission on the part of the complainant that the quarrel had taken place 2/3 hours before the occurrence also belies the version of the complainant given in the F.I.R. Learned counsel for the appellants has relied upon 1971 SCMR 432 head-note "b", according to which, if once prosecution set up a motive and failed to establish, the prosecution must suffer consequences and not defence. Learned counsel submits that on the same evidence Asif has been acquitted by the learned trial Court although no corroborative piece of evidence has been produced by the prosecution. Learned counsel submits that occurrence had taken place at the spur of the moment in a state of nervousness and in this regard he has relied upon PLD 1974 SC 432 and PLD 2002 Lah.
19. He lastly submits that both the appellants are entitled to acquittal.
6-A. Learned counsel for the State on the other hand submits that neither place of occurrence and time of occurrence is disputed nor the weapon of offence is a disputed issue. She submits that what type of nervousness was there when according to the appellants in their statements recorded under section 342, Cr.P.C. The complainant party himself killed two persons and also injured Abdul Rehman the star witness of this case. Learned counsel submits that as far as Asif is concerned he was empty handed at the time of occurrence. She has relied upon 1999 SCMR 2088 in which single shot was not found to be mitigating circumstance for lesser sentence.
7. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. The main stress of the learned counsel for the appellant is that the occurrence had taken place just in front of the house of the appellant party but in that regard complainant had given the explanation that they were passing nearby that house where the occurrence had talc" place, a very short point is involved in this case because neither the place of occurrence, time of occurrence is disputed between the parties. Two persons have been murdered and one person Abdul Rehman has been injured. This fact is not disputed by any party even the presence of appellants and the eyewitnesses is not disputed. To reach at a just conclusion of the case,I would like to reproduce the answer to question No.6 put to Tahir appellant which is at pages 120 to 121:-- "The P. Ws. Have made false statement, except Abdul Rehman P.W. No eye-witness was present at the spot at the time of occurrence. The complainant after due . Deliberation and consultation has cooked up a false story suppressing the real facts of the case. As a matter of fact on the day of occurrence at about 11 a.m. Naveed and my brother Asif quarrelled in the school where Asif (my brother) was sitting on a chair and Naveed quarrelled with him and there pulled the same from him upon which Asif had given blows to Naveed deceased thereafter they were separated by the students and both went home at about 12 noon. Naveed and Abdul Rehman having armed themselves with pistol and revolver came at the house of my father and knocked the door upon which myself, my brother and Asif came there. Asif my brother apologized from Naveed deceased and requested him to forgive him. Naveed asked his brother that the matter was over, Asif had tendered an apology, therefore, we should go but Abdul Rehman insisted and asked his brother to fire at us. Abdul Rehman pulled out his pistol upon which Asif my brother ran to the house out of fear Abdul Rehman was about to fire at me but Tahir pushed his hand a bit upward and the fire hit Muhammad Aslam deceased a passerby on his head. Abdul Rehman and Naeed then grappled with us. Abdul Rehman intended to fire at me but the fire hit Naveed deceased on his leg. The revolver of Naveed fell down which was picked up by my brother Tahir accused Abdul Rehman who was a desparade landlord was outraged with anger and wanted to kill us but my brother Tahir fired at him in a self-defence and he was also injured. His pistol was left at the spot which was picked up by me, Abdul Rehman was going to fire at me but in the exercise of right of private defence fired at Abdul Rehman. He also fell down, his pistol also fell down on the ground. One Gulzar and Ijaz carried all the injured i.e. Naveed Ahmad, Muhammad Aslam and Abdul Rehman in a car to T.H.Q. Hospital Muridke, Tehsil Ferozewala, District Sheikhupura while any other relative or servant of the complainant was not present there.
8. If one goes through the above said answer, he will come to the conclusion that Aslam died due to injury caused by Abdul Rehman P.W. By firing at him which hit Aslam a passerby though according to the prosecution Abdul Rehman and Tahir quarrelled with each other. Abdul Rehman wanted to fire at Tahir but the fire hit Naveed deceased on his leg though, according to him revolver of Naveed fell down which was picked up by Tahir himself and he fired at Abdul Rehman in his defence, so he was also injured but the pistol was left on the spot which was picked up by Tahir appellant. He further stated that Abdul Rehman was going to fire at him (Tahir appellant) but while exercising the right of self-defence he fired at Abdul Rehman who also fell down and his pistol also fell down on the ground. If both the versions are put in a juxta position then the version put forward by the appellants is totally unbelievable. For the sake of arguments this Court may discard the presence of the complainant but the presence of Abdul Rehman cannot be disbelived with any stretch of imagination. Muhammad Aslam received an injury on his head. He was a passerby. Then Naveed also met his death. Unfortunately Abdul Rehman received 3 injuries on his person. None of the appellant received a single scratch on his body. There is not a single fire-arm sign of any bullet either on the outer wall of the house of the appellant or in their video shop which was situated there. According to the appellant Tahir he had also taken into possession the pistol of Naveed deceased which was never produced by the prosecution. It was stated that the injury on the person of Muhammad Aslam was received by him when Abdul Rehman wanted to make a fire at Tahir appellant but he pushed his hand a bit upward and the fire hit Muhammad Aslam deceased on his head. It means that both of them were near to each other. Muhammad Aslam deceased had got no burning on his injury when the revolver of Naveed fell down on the ground and he became empty-handed then there was no need to exercise the right of self-defence and to cause his death when there was no apprehension of his death. I have gone through the impugned judgment passed by the learned trial Court. The learned trial Court has acquitted all the appellants for the murder of Muhammad Aslam without any cogent reasons. Unfortunately neither the State nor the complainant party has filed any appeal against their acquittal about the murder of Muhammad Aslam. I am also unable to understand that why the learned trial Court had not convicted Tahir appellant under section 324, P.P.C. It was a case of common intention and every body was liable for the act of others while on the other hand Aamir was not awarded any sentence under section 302(b) P.P.C. Learned trial Court had convicted Aamir appellant under section 324, P.P.C. And sentenced him to undergo 10 years' R.I. He was not awarded any separate sentence for causing injuries to Abdul Rehman which are three- in numbers. Even no plausible and sound reasons have been given by the learned trial Court for awarding lesser sentence to Tahir appellant.
What type of right of self-defence it was while no body from the appellant side received a single scratch on his body. I myself have gone though the judgments referred and read before me by the learned counsel for the appellants, those are totally inapplicable. In these cases the facts and the law laid down by the honour-able Supreme Court, is totally different to the fact and circumstances of the instant case. In PLD 1971 SCMR 432, five accused were falsely implicated and the injuries of the accused persons were suppressed which facts are not available in the instant case. As far as other judgment PLD 2002 Lah. 19, is concerned, from the side of the accused person the police had murdered two near relations of the accused so the sentence was converted from section 302(b), P.P.C. To section 302(c), P.P.C. As far as acquittal of Muhammad Asif co-accused is concerned, no injury was attributed to him and even he was empty-handed, so he was rightly acquitted by the learned trial Court.
9. As far, as motive is concerned, it was the learned defence counsel who himself during cross- examination brought the motive on the record that two hours prior to the present occurrence a quarrel had taken place between Naveed deceased and Asif acquitted accused.
10. After having heard the learned counsel for the parties and going through the evidence available on the record, I am of the considered opinion that no case for right of self-defence is made out in favour of the appellant. Already a very lenient view has been taken by the learned trial Court. No case for interference is made out. This appeal is dismissed.