1. Ahmed Khan Lashari, J.--The learned Sessions Judge, Nushki vide judgement dated 29-10-2005, convicted appellant Amir Hamza and sentenced him under Section 302 (b) PPC to suffer life imprisonment and to pay Rs, 150,000/- as compensation to the legal heirs of deceased as provided under Section 544 Cr.P.C. or in default whereof to further undergo SI for two years, under Section 324 PPC to suffer three years RI and to pay fine of Rs, 10,000/-, in default whereof to further undergo SI for three months, with benefit of Section 382-B Cr.P.C. The appellant has challenged his conviction by filing Criminal Appeal No, 317 of 2005, while petitioner Muhammad Tariq has filed Criminal Revision Petition No, 115 of 2005, seeking enhancement of the sentence to death penalty.
2. Since both the matters are outcome of the impugned conviction order, thus, we propose to dispose of them with this common judgement.
2. The stated facts of the prosecution case are that complainant Muhammad Tariq in his written report dated 09-12-2002 registered vide Crime No, 57 of 2002 at levies Thana, Nushki, offence under Sections 324, 337-ADF/34 PPC, alleged that in the morning, when he came to Bazaar, accused Amir Hamza son of Ali Dost and his sons Saifullah and Dawood attempted to Snatch the keys of vehicle from Attaullah (the brother of appellant), however, the matter was settled. Later on, at about 1.30 p.m., when he returned to his house, where he came to know that accused persons have fired on his father, he rushed to the place of incident and saw accused Amir Hamza was holding a rifle/gun.
3. The eyewitnesses Attaullah and Qudratullah told him that accused persons had beaten his father and caused him injuries. The injured, subsequently, expired on the said date at about 8.00 p.m. at Civil Hospital, Nushki and the offence was altered to Section 302 PPC.
4. The record indicates that the son of appellant Dawood went to levies Thana and also registered a case vide Crime No, 58 of 2002 against the complainant party, offence under Section 337-A PPC for causing injuries to his father and brother, where his arrest was made the present case, while his father and brother were shifted to hospital for treatment and on their, discharge from the hospital they were also arrested.
5. PW-11 Muhammad Azam Shahwani, Tehsildar, after registration, of the crime, proceeded with the investigation. He reached at the place of occurrence and after recording statement of injured Aurangzaib under Section 161 Cr.P.C, referred him to Civil Hospital, Nushki, where he during the course of operation expired. On inspection of the site, he collected one empty, secured blood- stained earth and seized the clothes of deceased vide memos, recorded the statements of witnesses and prepared the site sketch. He referred the injured/appellant and his son Saifullah to Civil Hospital, Quetta for treatment. PW Muhammad Azam produced an unlicensed rifle bearing No, 0102728 along with two live cartridges to the Investigating Officer, which was seized vide memo and a case under the Arms Ordinance was registered against the appellant. On receiving the FSL report, the challan of the case was filed in the Court of Sessions Judge, Nushki and the appellant as well as acquitted accused persons were sent up to face the trial.
3. On the stated allegation, charge was framed and read over to the accused persons, to which they pleaded not guilty and claimed trial. The prosecution, in order to prove the accusation, produced '11 witnesses. The accused persons in their examinations under Section 342 Cr.P.C. and statements on oath under Section 340(2) Cr.P.C. denied the prosecution accusation and claimed to be innocent. They produced Khair Bibi (DW-1), Faiz Bibi (DW-2) and Muhammad Amin (DW-3) in defence. The learned trial Court, on close of parties' evidence, vide judgement dated 31-03-2004 convicted and sentenced the appellant under Section 302 (b) PPC to death penalty and sent Murder Reference No, 03 of 2004 for confirmation, of the sentence or otherwise and co-accused Saifullah was acquitted of the, charge. The appellant preferred Criminal Appeal No, 80 of 2004, seeking his acquittal. The matters came up for hearing on 18-07-2005 and, accordingly, the murder reference was answered in negative and case to the extent of appellant was remanded to the trial Court with direction, after recording the statements of medical Officers and rehearing the parties, to decide the case on merit afresh. On remand, the medical officers were summoned and their statements were also recorded and vide judgement dated 2910-2005, the appellant was, convicted and sentenced as mentioned hereinabove.
4. Mr. Kamran Murtaza, learned counsel for appellant, contended that there is no independent witness to prove that the appellant made a fire or caused the injury to the deceased. The PWs are related and interested witnesses and they deposed against the appellant due to ill will. The complainant party entered into the house of appellant and gave him beatings as well as his son and other family members, but the investigating officer dishonestly did not record their statements during investigation to get know about the real facts and circumstances leading to the incident.
6. The trial Court by ignoring all these aspects of the case illegally convicted the appellant on mis- appreciation and wrong conclusion of evidence. It was also contended that if his arguments did not prevail, then in alternate, the benefit of self-defence be extended to the appellant, as the complainant party entered in his house and caused serious injuries to him and his son and other female members of the family.
5. Mr. Asadullah, learned counsel for complainant/petitioner, stressed for enhancement of the sentence awarded to the appellant on the ground that the evidence, which has come on record, is sufficient for recording capital punishment to the appellant. Although the trial Court at the first instance convicted the appellant to death penalty, but later on, on remand of the case by this Court, it has acted illegally and with material irregularity and without any plausible reasons, awarded him lesser punishment. It was further argued that the defence did not set up the plea of self-defence during trial of the case; therefore, the appellant is not entitled to the benefit at this stage.
6. Malik Sultan Mehmood, Acting Prosecutor General, supported the arguments of complainant's counsel and also requested for enhancement of the sentence.
7. We have heard the learned parties' counsel and have gone through the record as well as impugned judgement. Before dealing with the arguments of learned parties' counsel, it would be more appropriate to resume the evidence of the parties produced before the trial Court.
7. PW-1 is Muhammad Tariq, he deposed that in the morning at Jinnah Road, Nushki Bazaar, accused Amir Hamza tried to snatch the keys of vehicle from his brother Attaullah, however, the matter was settled. Thereafter, at about 1.30 p.m., when he returned to home, he learnt that his father Aurangzaib is injured. On his query, his father told him that accused Amir Hamza had shot injured him. Accused Amir Hamza, having a gun along with Saifullah and Dawood, was standing there, while the eye-witnesses Attaullah, Qudratullah, Abdul Khaliq and his grand-mother were also present on the spot. He shifted his father to Civil Hospital; where he succumbed to the injuries and he reported the matter to Tehsildar.
8. PW-2 Moula Bakhsh, levies Sepoy, is witnesses to the seizure of pieces of bones, which the doctor, during operation of the deceased, collected and produced to the Tehsildar.
9. PW-3 Muhammad Azam received information of the incident at his woodshed, wherefrom he went to hospital and shifted the dead body to his house. The inmates of his house produced a rifle to him with live cartridges, which Attaullah and others snatched from accused Amir Hamza. He produced the gun to Tehsildar on 10-12-2002.
10. PW-4 Bibi Zulekha, on hearing gunshot report, hue and cry came out from the house of her uncle Ali Dost and saw Attaullah snatched the gun from accused Amir Hamza, while he was prepared to fire on him. She collected the gun and took it to her uncle's house in order to avoid any further untoward incident. She stated that prior to it Amir Hamza had shot injured Aurangzaib and was shifted to hospital.
11. PW-5 Bakht Bibi, the mother of deceased, on hearing gunshot report, came to the house of accused and saw her son Aurangzaib was lying injured; who told her that accused Amir Hamza had injured him. She stated that when she asked accused Amir Hamza as to why he had injured his son, who told her that he will kill her too, at which she threw herself on her son and became unconscious.
12. PW-6 Abdul Khaliq, claimed to be the eye-witness of incident, deposed that he was accompanying his father, who, firstly, came to the house of Attaullah to advise him as to why he quarreled with Amir Hamza and thereafter when they went to the house of appellant Amir Hamza, saw him armed with a rifle along with his son Saifullah. On query of his father about the quarreling, he fired a shot on him, due to which he fell down. The accused also made a fire on him, but he escaped and ran away to the house of his uncle Akhtar Muhammad. His father was shifted to hospital, where he died.
13. PW-7 Attaullah, the brother of accused, deposed that in the morning, the accused and his son Dawood tried to snatch the keys of his vehicle and gave him beatings. He told about the beatings to his cousins and father. Thereafter, his maternal uncle Aurangzaib came to his house and, after advising him, went to the house of his brother/accused to advise and ease him. All of sudden, a fire-arm report attracted him, at which he rushed to the house of accused and saw his uncle was lying , injured. The accused also made fire on him, however, he caught hold the gun and kept it down to the ground. The accused made another fire, which hit on his shalwar; however, he snatched the gun and threw it away. Thereafter, somebody collected and took the gun. to the house of his uncle Muhammad Azam. The womenfolk gathered and separated them. Aurangzaib told him that accused Amir Hamza had injured him.
14. PW-8 is Muhammad Sarwar, levies Sepoy, in whose presence, one empty was collected from the place of occurrence and memo was prepared.
15. PW-9 Qudratullah stated that, on hearing gunshot report, he came to the house of appellant and saw Aurangzaib was lying injured, while his brother Attaullah was holding and keeping the barrel of the gun downward to save him from the firing, however, he succeeded to snatch the gun and threw it. The deceased was taken to hospital, where he succumbed to the injuries.
16. PW-10 Dr. Zafarullah Mengal, Medical Officer, Civil Hospital, Nushki, on examination of the dead body of deceased Aurangzaib, noted the following injuries:-- "Entrance: Posetero inferior aspect of left thigh.
17. Exit: Anterior aspect of right iliac fossa."
18. The probable cause of death was opined as massive bleeding.
19. The appellant in his statement on oath deposed that prior to the incident, when he and his son were loading fuel-wood in their vehicle, his brother Attaullah tried to run over him his vehicle, but he escaped. When he questioned him about the act, he slapped him. Jehanzaib and Naseebullah also appeared there and all of them started beating him. On interference of the, people, they left the place. He after the incident decided to leave the house and to shift Killi Qadir Abad. When his son Saifullah took some of the luggage to the Killi, while other son went for a tractor for shifting the rest of luggage and he was busy in opening the water pumping machine, he received a telephonic call from Faiz Muhammad, who started abusing him, in the meanwhile someone entered in the house and hit him from the back, due to which he became unconscious and was taken to Civil Hospital, Quetta, where he gained the senses. His wife told him that Jehanzaib, Naseebullah, Qudratullah, Mehboob, Tariq, Bismillah, Mehrullah and Munir Ahmed attacked upon them. His son Dawood lodged the report Ex.D/1-A with levies Thalia Nushki. The motive of the incident was property dispute between the parties. He denied that by firing he killed Aurangzaib or had any gun at the time of incident.
20. DW-1 Khair Bibi, the wife of appellant, deposed that on the day of incident, when they were preparing to shift to Killi Qadir Abad, Attaullah, Tariq, Jehanzaib, Khalid, Naseebullah and Aurangzaib entered in their house and attacked upon them. Tariq hit a danda to Amir Hamza, who became unconscious and blood started oozing from his nose and ears. When she and her daughters came to rescue him, the accused persons beat them. When her son Saifullah, after dropping luggage at Killi Qadir Abad, came to house, Attaullah started beating him and tried to crush him with his vehicle, due to which his shoulder and arm were fractured. His son Dawood came and shifted the injured persons to Civil Hospital, Nushki and thereafter to Civil Hospital, Quetta for better treatment.
21. DW-2 Faiz Bibi, daughter of appellant, deposed that earlier her father and Attaullah entered into fighting at Bazaar. Thereafter his father, came and decided to shift to KO Qadir Abad. Her brother Saifullah took some luggage in the vehicle to Killi Qadir Abad, while her brother Dawood went for a tractor to shift the rest of luggage; while his father was opening the water pumping machine, accused Tariq, Jehanzaib, Naseebullah, Khalid and others entered in the house and attacked upon his father. When his brother Saifullah came, the accused persons also beat him. His brother.
22. Dawood, as soon came to the house, took the injured persons to hospital.
23. DW-3 Muhammad Amin deposed that on the day of incident, When he was present in the house of his relative Abdul Hakeem, two vehicles rashly entered in the street and stopped, in the meanwhile, he heard fire-arm reports and the women and others started' crying. He tried to go there, but his relative prohibited him. Thereafter, he saw a person, having a gun known as Khalid when coming out from the house, was stopped by the women folk.
24. DW-4 Dr. Zafarullah Mengal, Medical Officer, DHQ Hospital, Nushki deposed that on 09-12-2002, one Dawood brought an injured, namely, Amir Hamza, who was unconscious and blood was oozing from his nose and left ear. He, after examination, referred the inured to BMC Hospital, Quetta. He produced certificate, wherein he noted the following injuries on the person of appellant:
(i) Multiple lacerated wounds on scalp,
(ii) Fresh bleeding from left ear and nose.
25. Duration Fresh, X-Ray Fracture of skull, Weapon hard and blunt.
26. PW-5 Dr. Mohabat Khilji, Medical Officer issued discharge certificate Ex.D/5-A of accused Amir.
27. Hamza, showing that he remained in hospital from 09-12-2002 to 11-12-2002.
9. It is the case of prosecution that deceased. Aurangzaib went to the house of appellant to advise him or to settle the dispute arose between the appellant and his brother (PW-7 Attaullah) in the morning at Nushki Bazaar. PWs 1, 5, 7 and 8, who are respectively son, mother and nephews of deceased, claimed that on hearing a fire-arm report, they rushed to the house of appellant and saw deceased was lying injured while appellant, having a rifle, was standing there. PW-6, who was accompanying his father, deposed that when his father asked from the appellant about the quarrel with PW Attaullah, he fired on him. On the other hand, the appellant alleged that the complainant party entered into his house and gave him beatings. The statements of DWs and the medical report show that the appellant sustained serious injuries on his head causing fracture to the skull and blood was oozing from his nose and ears. The doctor referred him to Civil Hospital, Quetta in an unconscious state. The investigating officer during investigation did not record the statement of appellant or his family members, in whose house the incident took place in order to know the factual position and background of the unfortunate incident. PW-1 in his report alleged that when he came to the house of appellant, he was present there with a gun. The PWs Qudratullah and Attaullah told him that the appellant and his sons Saifullah and Dawood had injured his father. He in' his Court-statement made improvement that his father told him that the appellant by firing caused him the injuries. He in cross-examination admitted that he had not mentioned the PWs Bakht Bibi and Abdul Khaliq were present on the spot. PWs 4 and 7 stated that appellant was present on the spot and they did not depose about the presence of appellant's son in the house, while contrary to it, PWs 5, 6 and 9 stated that appellant's son Saifullah was also present there. When PW-9 was confronted with his police statement, he had not stated that the son of appellant Saifullah was present in the house. The trial Court, considering the above evidence, acquitted co-accused Saifullah of the charge and no appeal against him was filed and the findings of the trial Court attained finality The PWs were suggested that they all along with Khalid and Jehanzaib entered in the house of appellant and beat him, which was denied. PW-11 during trial produced the police-statement of deceased as dying declaration, which he recorded at hospital. The PWs did not depose about recording of such statement at hospital. PW-10 Dr. Zafarullah Mengal to the contrary deposed that after examination of the injured, he, immediately, shifted him to Operation Thereafter, thus, in the circumstances the dying declaration is of no legal consequence. Both the parties have suppressed the actual facts, the accused in the course of incident sustained serious head injury and the prosecution omitted to explain the same. The parties' evidence leads us to the conclusion that the appellant, after quarreling with his brother in the Bazaar while preparing to leave the house and to shift to Killi Qadir Abad, whereas his two sons were out in shifting the luggage, the complainant party entered into his house and started beating him, who made a single shot, which hit the deceased on his thigh. PWs 6 and 7 though deposed that the appellant also made firing on them, but it does not find corroboration from the record. The Investigating Officer during inspection of the site collected one empty from the place of incident and, that none of the witnesses received any fire-arm injury, thus, the ocular account furnished by the witnesses is not worthy of credence. PW-10 Dr. Zafarullah Mengal, on examination of the deceased, noted one entrance injury on his left thigh, which exited from anterior aspect of right iliac fossa, thus, it can safely be concluded that the appellant made a solitary shot. The two essential requirements in the right of self-defence, that the complainant party initiated the fight and the accused suffered injury in the incident and that the resort was taken to defend against the aggressor as held in the case of Kala vs. the State reported in 1987 SCM R 385, are fully established.
28. Learned counsel for petitioner/complainant contended that the defence did not set up the plea of self-defence during trial of the case; therefore, the appellant is not entitled to the benefit. The defence plea B may be taken or may not be taken, the prosecution is duty bound to prove its case.
29. The defence plea is to cause dent in the credibility of the prosecution case as held in the case of Syed Saeed Muhammad Shah and another vs. the State reported in 1993 SCM R 550(m). We in this context may refer the case of Muhammad Fiaz vs. the State reported in PLD 1993 Peshawar 138, wherein it has been held that: "It is settled principle of law that even if the appellant had failed to establish his plea of self- defence, he was nevertheless, entitled to the benefit of such doubt and gaps as appeared in the prosecution case particularly the same raised the possibility of the existence of a case of self- defence."
30. What has been discussed' hereinabove, we are of the view that the case of appellant Amir Hamza does not fall within the definition of Qatl-i-Amd, but he exceeded his right of defence by making fire at deceased Aurangzaib, causing the death of deceased Aurangzaib, thus, he is convicted and sentenced under Section 302(c) PPC to suffer seven years RI only, which would meets the ends of justice. With the above modification in the conviction and quantum of sentence of imprisonment of the appellant, the appeal and revision petition being devoid of any merit are dismissed. The benefit of Section 382-B Cr.P.C. has already been extended in favour of the appellant.