1. RAJA JALAL-UD-DIN, C.J.---This criminal appeal under section 410, Cr.P.C. Is preferred against the order/judgment of the Additional Sessions Judge Skardu dated 6-6-2009 whereby the convict/appellant Afzal Joo has been convicted under section 302 and sentenced to death with a fine of Rs. 1,00,000 and in default thereof to suffer six months' R.I. And appellant Wali Joo is sentenced to life imprisonment under section 302/34, P.P.C. And fine of Rs. 1,00,000 and in default to suffer six moths' R.I. With the benefit of 382-B, Cr.P.C. Extended.
2. The background of the case as elaborated in the F.I.R. No.4 of 2006 dated 11-5-2006 wherein the F.I.R. Lodger Haji Fida Hussain the real brother of the deceased disclosed that the occurrence took place on 11-5-2006 at about 1300 hours at a distance of about half a kilometer from the police station. The facts narrated in the F.I.R. Are that on 11-5-2006 that his brother Haji Muhammad Ali was proceeding towards his house after offering his Zohar prayers. When he reached near the polo ground chowk he was attacked by Muhammad Afzal, Sikandar Wali, Munir, Mushtaq son of Wali Joo, Wali Joo son of Taqee Joo, Ejaz Hussain, Ashraf Hussain, Shafqat, Muhammad Kazim son of Muhammad Hussain, Ghulam Mehdi son of Ali with firearms, stones, axe and dandas and injured him and then dragged him into the compound of their house and again attacked him and murdered the deceased. The dead body was found in the compound of the house of convict/appellant. The motive put forward pertains to various differences between the parties.
3. Resultantly after lodging of the F.I.R. The government machinery came into motion. The dead body recovered from within the compound of the house. Recoveries were made and arrests took place.
4. The dead body was taken into custody and examined by the Investigating Officers and sent for postmortem. The statements of the witnesses were recorded. Recovered weapon of offence was sent for the forensic laboratory test. The accused were also apprehended and investigation started against them. After the completion of the investigation the case was sent for trial. Accused were charged for which they did not plead guilty. After the conclusion of the trial the ADSJ found them guilty and sentenced them as aforesaid while co-accused were released by giving benefit of doubt.
5. Counsel for the convicts/appellants pleads that the F.I.R. Lodger is not an eyewitness of the occurrence and he does not disclose the source of the information as incorporated in the F.I.R. The F.I.R. Lodger being the real brother of the deceased has also not specified the role of the individual accused as the time of occurrence. He does not attribute specific roles committed by each individual convict. It is not disclosed as to who had opened the fire shots on the deceased and the type of weapon used for the commission of the offence. It is also not elaborated that which of the accused used the axe upon the body of the deceased. The lathies and dandas as well as the stones thrown at the deceased have not been particularly attributed to any of the implicated persons. The F.I.R. Has also been attacked on the grounds of being recorded after deliberation and consultation between the complainant party and the, maximum number of the accused party have been named with mala fide intentions to hurt the same.
6. Counsel for the convicts/appellants pointed out that during their examination in the trial Court the F.I.R. Lodger has admitted that he had presented a written report in the thana but the same is not present on file as the contents of that written report were not similar to the contents of the F.I.R.
7. Regarding the written report the P.W.21 namely Ali Muhammad SIP has also admitted that a written statement had been presented in the police station. That the F.I.R. Does not disclose the existence of such written report but it is a result of oral report of the complainant. The Statement of the F.I.R.
8. Lodger (P.W.5) in his statement states that the facts of the case as incorporated in the F.I.R. Were derived from the information of Mst. Aamina whose statement was recorded under section 161, Cr.P.C. After a delay of 11 days of the occurrence The witness also admits that P.W. Mst. Aamina had not given a detailed version of the incident but had simply said that Wali Joo party had murdered my brother. The F.I.R. Lodger persists that the F.I.R. Was the result of a written report but the said written report is not present on file. The. P.W. 6 Mst. Aamina says that she had informed the F.I.R.
9. Lodger Haji Fida Hussain that the convict Muhammad Afzal opened fire-shot at the deceased whereas accused Wali Joo inflicted hatchet blow, Sikandar attacked with lathi and Shafqat with a stone. The said statement has been confronted under section 161, Cr.P.C. Where it is not so recorded. Hence it is of no consequence. As Aamina is the source of information of the F.I.R. Lodger and she admits that she had narrated the facts to the said P.W. But the said information does not appear in the contents of the F.I.R. Counsel for the convicts/appellants pleads that the occurrence is unseen by P.W. Aamina and has cooked up the story being related to the deceased. The statement of the other eyewitness Wazir Fida Hussain is attacked by the defense on the ground that the statement of section 161, Cr.P.C. Pertaining to him was recorded three/four days after the occurrence. He is a planted witness based on his relationship with the deceased. The P.W. 8 Shakir Hussain is also closely related to the deceased as his father is the cousin of the complainant Haji Fida Hussain and the deceased Muhammad Ali. His statement is also not confidence inspiring as his statement under section 161, Cr.P.C. Has not been recorded well within time and he also prompts the same story as put forward by most of the witnesses. The defense attacks the recoveries of the incriminating articles as well as the medical report stating that they do not connect the convicts to the commission of the offense. The lacunas in the medical report are of a nature which contradicts the manner of the commission of the offense because it has been alleged that the deceased had been dragged for about 300 yards on an un-paved road of Shigar where the occurrence took place but the medical report does not prove the same as the rashes and injuries which could have been sustained by the body of the deceased are not present and found by the doctor. The manner in which the deceased was done away is not supported by the medical evidence. There are unexplained circumstances of the case which are not explained. Counsel for the petitioner relied upon the following case-laws; 1987 PCr.LJ 1502, 1989 PCr.LJ 2179, 1992 SCMR 2007, PLD 1994 SC 879, PLD 2003 Peshawar 123, 2003 SCM R 459, PLD 2005 Quetta Page 99, 2006 SCM R 1139, 2008 PCr.LJ 613, 2008 M LD 686.
10. The prosecution on the other hand is very confident about the genuine nature of the crime and natural witnesses who have been examined and produced in Court. The matter being of a day light occurrence and at the busiest section of Shigar tehsil where nearby the school, bazaar and polo ground exists. There is no chance of mistaken identity as the accused and the P.Ws. Are all co- villagers who reside within the vicinity of the place of occurrence. The F.I.R. Has been promptly lodged and the investigating authorities have reached the house of Wali Joo and from whose compound the dead body was recovered in the presence of the Magistrate as well as the police officials who had reached there from Skardu. The police from the local police station had also reached the scene of occurrence immediately after hearing the hue and cry and fire shots. The statements of the P.Ws. Are recorded well within reasonable time and all the material recoveries pertaining to the case have been conducted in a manner which is required under law and procedure. The dead body of the deceased recovered from within the house of the convicts/appellants proves their guilt and leaves no chance for fabrication of the facts. The recovery of the dead body of the deceased from within the house of Wali Joo has not been contested nor shattered by the defense. The said piece of evidence itself is enough for the conviction of the convicts/appellants. The material piece of evidence of the recovery of the dead body from within the house of Wali Joo, the blood stained hatchet, the recovery of weapon of offence from within the house of Wali Joo are all natural and leaves no chance for fabrication of evidence or otherwise. The postmortem conducted by the competent authority clearly proves the prosecution case and confirms the statements of the eye-witnesses as the injuries sustained by the deceased by hatchet blows and the bullet injury on the head of the deceased proving the firearm used as elaborated by the P.Ws. And the other injuries on the body of the deceased which pertain to stick/danda blows and injuries of the stones on the dead body. The medical evidence is fully corroborating the statements of the P.Ws. Which can not be rebutted and shattered. The murder of the deceased is brutal, preplanned, premeditated whereby a single person has been ambushed and murdered in a very heartless manner to avenge a small altercation between the parties and who had been bound down under sections 107/151, Cr.P.C. Such a large number of people taking law in their own hand in the centre of Bazar and then dragging the dead body to their house and there again taking the law in their own hands, closed the doors of their compound of their house and not letting the people to carry away the dead body of the deceased. The retention of the dead body itself proves that the convicts/appellants are hot headed people who have no regard to law and justice. It show their criminal sick mind by venturing into adventurism by "larkar" and display of arms from the top of their roofs after murder of the deceased.
11. The area of Shigar in Baltistan is the most peaceful valley where murders, dacoit (sic) and other serial offences are seldom seen and the present murder is surely going to dis-balance the area. By giving maximum punishment to the proved case would amount to satisfy the retributive sense of the deceased party.
12. We have given full thought to the contentions of both the parties in the light of the statements recorded by the prosecution under section 161, Cr.P.C, 164, Cr.P.C. And contents of the F.I.R., the recovery memos prepared the results of the forensic tests, the medical opinion of the postmortem and the circumstances of the case. We have gathered that the incident between the parties had taken place as a result of minor difference which slowly have matured in intensity resulting in being bound down under sections 107/151, Cr.P.C. Now the reason for the differences between the parties has not been brought on record openly. It may pertain to petty political differences or any other exchanging of hot words which resulted into strong strained relations between the parties. On the fateful day the prosecution alleges that the convicts/appellants due to a preplanned mission had waylaid the deceased by first opening fire shots at him and then giving hatchet blows and stone and danda blows then dragged the body into their own house which is at a distance of about 300 yards from the place of occurrence.
13. Now we have to see and examine the initial spot where the occurrence allegedly took place. The spot of occurrence is the busiest area with the school, polo ground, shops and houses all around.
14. The time mentioned of the occurrence is also of importance because it was about 1300 hours which is the time of the closure of the school, other offices etc. It can be termed as the peak hour of the village Shigar at the busiest intersection from where road leads to different directions. Now if it is to be believed that the deceased received the fire shot at the most vital part of the body i.e. The head and the bullet had pierced the skull and had exited on the other side. The bullet injury is of a nature which can result to instantaneous death. The second injury on the dead body of the deceased as elaborated by the P.Ws. Pertains to the hatchet blow received by the deceased. The said injury is also of a nature which can result at instantaneous death of deceased. The witnesses examined have all stated that the hatchet blow was received by the deceased at the initial spot of occurrence. The other injuries also received by the deceased at the same spot. It can safely be presumed that the deceased had no chance to struggle in defense or to act in defense by taking out any pistol. Neither has any witness recorded the fact that the deceased had acted in any manner by producing a pistol or any fire shots in defense. The strange question arises that after doing away with the deceased what was the good reason of dragging the deceased to a distance about 300 feet from the place of occurrence to within their compound of the house. Any prudent person would not in natural circumstances murder the person on the main road and dragged the dead body into their house to make matter worse. It can be argued and it would be possible that the accused wanted to take the defense that the deceased had violated the sanctity of their house and hence was done away with. But this version is again negated with a very vital piece of information supplied by the D.S.P. The A.C. And one other P.W. Who disclose that as they entered the compound where the dead body of the deceased was lying they saw that on the left side of the dead body towards the west a hatchet was lying which was blood stained and a pistol was lying in the right hand of the deceased. The pistol was half loaded and the said pistol belonged to the deceased which was of .30 bore and license number 3398 belonging to the deceased along with six live cartridges. Now we are highly impressed with the said piece of material evidence which has not been explained by the prosecution. Now a twist appears in the prosecution story as to how was it possible that the deceased who had been shot to death 300 yards away from the compound of the house of Wali Joo who at that instant time had not made any attempt by taking out a pistol from his body and firing a shot. After being dragged 300 feet into the house of Wali Joo how did the pistol belonging to the deceased come along with the deceased to within the compound. Naturally the pistol if at all had been used by the deceased at the initial site where the deceased had been shot it should have been left there. This material fact of a half loaded pistol belonging to the deceased has not been questioned in any way which could have thrown light on the manner of the occurrence. We feel that the murder may not have happened in the manner as put forward by the prosecution. The only explanation regarding the holding of a half loaded pistol within the compound of Wali Joo means only thing and that is may be the whole matter of altercation between the parties resulting in the fire-shot received by the deceased and the hatchet blow has all taken place with in the four walls of the compound of Wali Joo. Wherein it can again be safely presumed that the first fire-shot must have been opened by the deceased and the second fire- shot got stuck in the muzzle resulting in the half loaded pistol in the hand of the deceased. It can again safely be presumed that the deceased has received the fatal fire-shot in his head by either the convicts/appellants or his own pistol. The greater chance of the pistol injury of the deceased was by the convicts/appellants as when the occupants of the house saw a person taking fire-shots at any of the family members he was shot dead and also hit by the hatchet. It is again a question of presumption that after the initial fire-shot by the deceased the hatchet blow may have resulted first and then the fatal fire-shots on the deceased. Now the whole matter is being presumed by the Court that the circumstances put forward by both the parties may not be correct but both the parties may be concealing facts. Now in such circumstances the Court has perused the statement of convict/appellant Muhammad Afzal which is reproduced as under:-- Q.23. Have you anything to say?
15. Ans. On the day of occurrence, I was sitting on the road, when the deceased emerged from the street and taunted at me and after exchange of hot words, he not only abused me but also gave me fist and kick blows. I took a small stone and pelted the same at the deceased, which hit his on the forehead and blood started oozing from the head. I ran to my house and the deceased followed me and I entered into my compound which was on the main road and lock the same from inside. The deceased went back and I was still inside the compound when after 2/3 minutes the deceased returned again holding a .30 bore pistol and a dagger in his hand. On seeing him my younger sister who was on the roof of the house cried "thief thief' the deceased kick the door from outside and the door of the compound was opened. The deceased intruded in the compound and grappled with me and in process of grappling his own pistol went off and he fell down on the ground. He wanted to repeat the fire but the cartridges stuck in the chamber of the pistol and under immanent danger and sure threat to my life, I took a hatchet lying near by for cutting of wood and inflicted a single blow on the head of deceased in my self defense. None of my co- accused was present nor was any P.W. Present. My mother locked the door from inside and opened the same on arrival of Wazir Yasin and SSP Skardu to whom she and my sister narrated about the whole incident. But the police maliciously did not record the statement of my mother and my sister and twisted the real fact and involved whole of my family including my 72 years old aged father and the family of my uncle Haji Muhammad Hussain on the behest of MNA Imran Nadeem as we were opposing him in the election. I was under moral and legal compulsion to save my life from the aggression of last degree, when the deceased transgressed into my house with a clear intention to take my life.
16. R.0 & AC. 20-10-2008 Sd/- Sd/- Muhammad Afzal Additional Sessions Judge, Accused Skardu Counsel for the convict/appellants has taken the stand that the statement of the convict Muhammad Afzal may be taken as a whole or discarded as worthless. Pick and choose from confessional statements has been discouraged by the superior Courts. If the statement recorded under section 342, Cr.P.C. Is discarded as a whole then also the case of murder is proved against the convict namely Muhammad Afzal from the gathered material on record. In the instant case we feel that the facts narrated and the background along with the altercation between the parties prior to the murder are very convincing and cannot be taken lightly. Discarding the whole of the statement or relying on it as a whole would be very unfair and unjust.
17. The statement referred above gives a lot more information regarding the occurrence than the whole investigation, which we feel is not up to the mark as many facts have been concealed, distorted and new matters introduced. The greater part of the story narrated seems to be very logical and convincing but when he states that the deceased received the bullet shot from his own pistol and fell down and the convict/appellant Muhammad Afzal fearing for his life struck a hatched blow on the deceased. We are convinced that as the deceased entered into the compound and fired a shot, the deceased was done away by the present convict/appellant by opening fire shot at him and then struck an axe blow to close the chapter. But if at all the bullet injury to the deceased was from his own pistol and the fire shot was of a very fatal nature then the complimentary axe blow would amount to the exceeding of his private defense. The right of private defense has been extended IA under law where reasonable apprehension of danger arises from an attempt or threat to life. It is a right of protection and not of aggression. The law does not provide the inflicting of more harm than is necessary. It does not confer the leniency of crossing the limit of inflicting more harm than is necessary, otherwise it would amount to becoming an offense. The circumstances of the right of private defense depend upon the apprehension of the eminent danger apprehended and the necessary steps to disarm or do away with the aggressor. The law does not give an individual the right to go on repeating firearm shots on the aggressor after he has been neutralized and then using 'axe blows on the deceased repeated by Lathi blows and stones used as projectiles when the aggressor has been incapacitated. In the instant case the medical report proves that the deceased has received a number of injuries on the body, thereby crossing the limits laid down by law in self-defense. As such we cannot give the privilege of section 100, P.P.C. As pleaded by the convict in his statement recorded under section 342, Cr.P.C. The part committed as alleged by the convict/appellant Wali Joo is not proved from record.
18. In view of the above discussions and considering the mitigating circumstance, convict/appellant Muhammad Afzal who was awarded death sentence by Additional Sessions Judge Skardu vide order dated 6-9-2009 is converted into life imprisonment while conviction and sentence of convict/appellant Wali Joo is set aside. The appellant Wali Joo may be released forthwith if not detained in any other case.
19. The appeal stands disposed of accordingly.