BASHIRUDDIN AHMAD, J.---Asghar (36), his elder brother Shaukat (28) and their uncle Munir (40) were tried on a charge of double murder of Abdul Aziz and Abbas and attempted murder of Muhammad Akram, in furtherance of their common intention, on November 12, 1967, by the Additional Sessions Judge, Lahore, Camp Sheikhupura, who acquitted Shaukat and Munir on both the charges and convicted Asghar on each count under section 302, P. P. C. To suffer death. He was also convicted under section 307, P. P. C. For attempt at the life of Akram and was sentenced to transportation for life. The sentence of imprisonment was ordered to take effect in the event of death sentence being not confirmed by this Court.
2. The condemned-person appealed and the case is also before us under section 374, Cr. P. Code for confirmation of the death sentence. Muhammad Ashraf, the father of Asghar, filed Criminal Appeal No. 112 of 1969, from the order of the trial Judge confiscating the shot gun, Exh. P. 8, to the State. We propose to dispose of the appeals and the reference by a Single Judgment.
3. Shortly stated, the facts are that on the eventful day, at peshi-vela, Arshad had gone to the shop of Asghar at Nangal Waris Khan for purchasing a packet of cigarettes. They had a controversy over the price and the appellant abused Arshad who returned the abuse. Abbas deceased, who was returning from the well of Akram, took offence at the abuse given by the appellant to Arshad, his brother, and started grappling with him. Arshad and Abbas manhandled the appellant and also gave him fist blows. Akram and Abdul Aziz deceased who had also come up separated the parties.
The appellant went towards his house. The deceased persons alongwith Akram moved towards the well of Abdul Aziz. They had hardly gone to a distance of 5 or 7 karams from the shop of Asghar, when the appellant alongwith his co-accused came from their houses. The appellant had a .12 bore shot gun, Shaukat was armed with a revolver, while Munir carried a spear. Munir instigated his companions to kill the deceased. Abdul Aziz deceased started running in a bid to save his life.
Asghar fired with the gun hitting Abdul Aziz in the back. Shaukat fired twice with his revolver, but nobody was hit. Asghar fired another shot, which hit Abbas deceased who fell down. Akram was also hit with a pellet on the left wrist. Abdul Aziz died and the assailants ran away. Akram, Arshad, Zafar A.I, Muhammad Nawaz and Muhammad Shafi witnessed the occurrence. Abbas was taken by his cousin Muhammad Yaqub to the Mayo Hospital for treatment.
The motive for the murder was that six months prior to the occurrence, which is the subject-matter of this case, Akram, his brother Arshad, their father Ghulam Mustafa and others, who had assaulted Munir, uncle of Asghar appellant, got acquitted. The appellant, therefore, nourished a grudge against them.
4. After the occurrence, Akram proceeded to Narang Police Station, eight miles away, and reaching there at 4-40 p.m., the same day, lodged the report, Exh. P. O. Sub-Inspector Izzat Beg (P. W. 18), who took down the report, prepared the injury-sheet of Akram and sent him to the Civil Dispensary for medical examination. The S. I. Visited the spot, took into possession blood-stained earth from the place where Abdul Aziz was lying dead and sealed it into a parcel. He prepared the injury-sheet and the inquest report and then despatched the dead body to the mortuary for post-mortem examination. Abbas died in the hospital at 7-15 p.m. On 13-11-1967. The Sub-Inspector visited the hospital, drew up the inquest report and then despatched the dead body to the mortuary for post- mortem examination.
On November 15, 1967, the appellant led to the recovery of gun, Exh. P. 8, from a steel box lying in his house. Two live cartridges Exhs. P. 9 and P. 10 and two empties Exhs. P. 11 and P. 12 were also recovered with the gun and were taken into possession and sealed into parcel by the police. The revolver, Exh. P. 13 alongwith 4 live cartridges Exhs. P. 14 to P. 17 and two empties Exhs. P. 18 and P. 19 were recovered from the search of the person of Shaukat at the time of his arrest and were sealed into parcels. Munir led to the recovery of spear Exh. P. 20 from underneath a cot lying inside his house, which was taken into possession and sealed into a parcel.
On November 13, 1967, Muhammad Ashraf, father of Asghar appellant, produced his gun licence.
Exh. P. M. Which was taken into possession by the police. The appellant was arrested on November 15, 1967.
5. (i) Dr. Muhammad Bashir Ahmad (P. W. 1) conducted the post-mortem examination on the dead body of Abdul Aziz on 13-11-1967 at 3-15 p. m. And found the following injuries:
(1) A penetrating wound 1/3" x 1/3" on the back of right scapular region close to its medial border in the middle. Its margins were blackened and inverted.
(2) A penetrating wound 1/3" x 1/3" on the back of left side of chest, close to the mid-dorsal spine. Its margins were blackened and inverted.
(3) A penetrating wound 1/3" x 1/3" on the back of left side of chest 3" below injury No. 2 and in line with it. Its margins were blackened and inverted.
(4) A circular wound 1/3" x 1/3" on the back of right lumber region. Its margins were inverted.
(5) A circular wound 1/3" x 1/3" on the most and inner most part of right buttock. Its margins were inverted.
(6) A circular penetrating wound --" x --" with margine everted in front of left side of chest, 2 --" above the nipple and in the mid-clavicular line.
(7) A penetrating circular wound --" x 1/3" in the left anterior axillary line. Its margins were inverted and it was 12" from nipple and 3" below injury No. 6.
(8) A circular penetrating wound --" x 1/3" with margins everted on front of left side of chest 3--" below injury No. 7 and 5" to the left of mid-sternal line.
(9) A circular penetrating wound --" x --" in the left iliac fossa 2" from the root of penis and 5" from the anterior--superior iliac spine.
Death, in the opinion of the doctor, was caused by shock and haemorrhage resulting from fire-arm Injuries Nos. 1 to 9, which were sufficient to cause death in the ordinary course of nature.
(ii) On November 12, 1967, at 11-50 p.m. Dr. Mushtaq Ahmad Sheikh (P. W. 3) examined Abbas during his lifetime and found the following injuries on his person:-
(1) Gun-shot wound on the left lower chest at the rib--margin --" x 1/3", circular in shape.
(2) Gun-shot wound on the left lumber region 4/10" x 4/10", circular, bleeding profusely.
(3) Gun-shot wound on right upper arm on the back near the elbow --" x 1/3".
(4) Gun-shot wound on the right upper arm near the elbow on the front side, approximately --" x -- ".
(5) Gun-shot wound, 4" above injury No. 4, --" x --".
(6) A small swelling about 1/3" x --" at the right upper arm, 3" below injury No. 3.
(7) Gun-shot wound on the right thumb, proximal phalanx wound of entry and exit each about --" x --"
All the injuries were caused by firm-arm.
(iii) Dr. Nusratullah (P. W. 2) performed post-mortem examination on the dead body of Abbas after his death in the hospital, on 14-11-1967, and noticed almost the same injuries which were found by Dr. Mushtaq Ahmad Sheikh (P. W. 3) at the time medico-legal examination of Abbas. The doctor, however, opined that the cause of death was cardio respiratory failure due to shock and haemorrhage and generalised peritonitis resulting from injury No. 2, which perforated the abdominal wall.
(iv) Dr. Muhammad Latif Qureshi (P. W. 4) examined Muhammad Akram P. W. On 12-11-1967 and found a gun--shot wound of the entrance of the size of --" x 1/8" oval in shape. Margins were inverted and slight blackening was present, situated in front and under side of left forearm, a" above left wrist-joint and wound of exit of the size of --" x --" situated at back of left forearm, 1--" above left wrist joint. Margins were lacerated. Both the wounds communicated each other and were 4" apart. The injury was simple in nature caused by fire-arm.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He also denied the story about the motive. He pleaded self-defence and the state--ment made by him in this respect is reproduced below for the sake of convenience:-- "On the day of occurrence I was sitting at my kiriana shop at about noon time. The shop is owned by me, my brother Shaukat and father Muhammad Ashraf. At that time, Abbas deceased armed with a revolver and Akram with a barchhi came to my shop. They started abusing me and threatened me that they would teach me a lesson for getting possession of land from them. I also abused them in turn. They assaulted me. Akram (P. W.) got into my shop and forcibly dragged me outside. I raised alarm and after getting release from them again went into my shop. Aziz deceased came in the meantime and intervened by standing between Abbas and Akram for stopping them from assaulting me. At that time, Abbas deceased fired a revolver shot pointing towards me. I sat down. A '12 bore gun belonging to my cousin Muhammad Shabbir along with a cartridge petti was lying in the shop which Muhammad Shabbir had left there a little before and had himself gone to the well for some work. I picked up the gun and while sitting in the shop fired outside. Another shot of revolver was fired from outside to which I again fired another gun-shot out of my shop. I fired the shots in order to save my life as I apprehended death from Abbas deceased and Akram (P. W.) I could not say who was hit by the fire shots. After some time, Muhammad Shabbir also came to my shop. He picked up the gun, empty and the live cartridges and we both then went away to our houses. On the same night, at about 8 or 9-00 p.m. S. I. Izzat Beg (P. W.) sent for me from my house in the baithak of Abdul Majid (P. W.) and handcuffed me. Shaukat and Munir co-accused were also called at about midnight and they were also arrested We three were kept by the S. I. In custody in the village up to 15-11-1967 and then were taken to police station. Shaukat and Munir co-accused were never present at the shop at the time I was assaulted by Abbas and Akram The complainant- party had a grudge against us because my father and my uncle Majid accused had obtained possession of 2 Killas of land from Ghulam Mustafa father of Akram (P. W.) through process of law which they had earlier refused to hand over. I have not committed any offence. I am innocent."
7. The appellant examined Musa Khan, Assistant Record --keeper, Judicial Record-Room Sheikhupura, Mr. Muhammad Mubaraz Khan, D. S. P., C. I. A., Lahore and H. C. Bashir Ahmad in his defence. The Assistant Record-keeper proved that in the civil suit filed by Muhammad Shafi son of Abdullah, case Rajput, resident of Nangal Waris Khan, District Sheikhupura, against Yagub son of Allah Dad and others. Muhammad Ashraf son of Nabi Bakhsh, Rajput, had appeared as a witness for the defendants. He also produced the file of a criminal case decided by Mr. Muhammad Sharif, Section 30 Magistrate, Sheikhupura. It was a case under section 307, P. P. C. In which Muhammad Shafi, son of Abdullah, Zafarullah, son of Shafi, Sanaullah and others, residents of Nangal Waris Khan figured as the accused, Muhammad Munir, son of Balund Khan, Rajput of Nangal Waris Khan, had appeared as a prosecution witness in that case. The Deputy Superintendent deposed that the case was marked to him by the Deputy Inspector-General, Lahore, for re-investigation. He found that in the site-plan the local police had only shown one place of occurrence where Abdul Aziz had fallen down. They had not shown the place where Abbas had fallen down after the receipt of the injuries. The Deputy Superintendent pointed out this fact. It is also in the statement of Muhammad Mubaraz Khan that the appellant had taken the plea of self-defence. H. C. Bashir Ahmad deposed that the medico-legal cases which are not referred by the local police to the Mayo Hospital are entered in the register when the injured arrives in the hospital and that there is no entry in the register regarding the arrival of Abbas son of Ghulam Mustafa resident of Nangal Waris Khan, Tehsil Ferozewala, District Sheikhupura in the Mayo Hospital. The witness continued that on November 13, 1967 at 7-30 p.m., he made an entry in the register regarding the death of Muhammad Abbas, referred to above. There is nothing material in the defence evidence except that the appellant took the plea of self-defence at the earliest opportunity with which we shall deal in the later part of the judgment.
8. At the trial, Akram (P. W. 11), Arshad (P. W. 12), Zafar A.I (P. W. 13), Muhammad Nawaz (P. W. 14) and Muhammad Shafi (P. W. 15), furnished direct evidence-. Arshad was already at the shop of Asghar when Akram happened to come there accompanied by Abbas deceased. Arshad was having a dispute with the appellant over the price of a packet of cigarettes. Asghar abused him. Arshad returned the abuse. Abbas took offence and started grappling with Asghar. Arshad joined his brother Abbas. They manhandled Asghar, who was also given fist blows. Abdul Aziz came to the spot. Akram and Abdul Aziz separated the parties. Asghar went away towards his house. Akram.
Arshad, Abbas and Abdul Aziz moved towards the well of Abdul Aziz and had hardly covered a distance of 5 or 7 Karams from the shop of Asghar when the appellant appeared at the scene. He was armed with a ' 12 bore shot-gun Exh. P.
8. Shaukat had a revolver. Munir, uncle of Asghar, who carried a spear shouted to his co-accused to kill the deceased. Asghar fired at Abdul Aziz with his shot-gun hitting him in the back. Shaukat co-accused fired with his pistol, but nobody was hit.
Asghar fired at Abbas deceased who was hit and fell to the ground. Abdul Aziz died at the spot.
Zafar A.I and Muhammad Nawaz P. Ws. Who were returning from the well of Zafar A.I also saw the occurrence. Muhammad Shafi P. W. Had come to make purchases from the shop of the appellant when the tragedy was enacted.
The trial Judge relied on ocular evidence and found its corroboration from the testimony of the medical witnesses. He disbelieved the recoveries of weapons of offence which were supported by Muhammad Asghar (P. W. 16) and Abdul Majid (P. W. 17), besides the investigating officer, learned counsel, who appeared for the State, did not rely on the evidence of recoveries, and rightly too, because the witnesses to the recoveries are close relatives of victims of crime. There are other unsatisfactory features in their evidence, which make it unacceptable. He, therefore, exclude the recoveries from consideration.
9. The occurrence being admitted, the question that calls for determination is which of the two rival stories is correct. It is proved on the record that Akram complainant, his brother Arshad, their father Ghulam Mustafa, Muhammad Nawaz and others, wt o had assaulted Munir, uncle of the appellant, were acquitted in that case. This served as a motive. 1 he immediate cause of the assault was the beating administered to the appellant by Arshad and his brother Abbas deceased. Akram and Arshad P. Ws. Are the real brothers of Abbas deceased. Arshad is betrothed to the daughter of Abdul Aziz deceased. He was their maternal uncle. "They had another maternal uncle Rabeem A.I by name. Zafar A.I P. W. Is his son. The sister of Zafar A.I is married to Asghar, a brother of the complainant. Mst. Nazer, a sister of Akram, is married to Muhammad Nawaz P. W. It is thus clear that the eye-witnesses with the exception of Muhammad Shafi are not only related inter se but are also closely related E to the deceased persons. Muhammad Shafi admitted that he was challaned under the West Pakistan Control of Goondas Ordinance and that a case under section 392, P. P. C., was pending against him. He admitted further that he instituted a civil suit against one Yaqub in respect of certain land and that Muhammad Ashraf, father of the appellant, bad given evidence in that case. It is proved from the copy of the statement on the record that Muhammad Ashraf appeared as a witness for the defendant in the civil case. It is also established that Munir, uncle of the appellant, had given evidence in a criminal case under section 307, P. P. C. Against Muhammad Shafi P. W. Prior to the occurrence under consideration. Muhammad Shafi was challaned for breach of the peace at the instance of the father of Asghar appellant. The father of the appellant had obtained a decree for Rs. 255.00 from Union Council Mehta Suja against Muhammad Shafi. The trial Judge also relied on the evidence of Muhammad Shafi in convicting the appellant. Muhammad Shafi, in our opinion, is proved to be inimical to the appellant and we decide to exclude his evidence from) consideration.
10. We are thus left with the evidence of Akram. Arshad, Zafar A.I and Muhammad Nawaz. They fully implicated the appellant for the crime committed. Learned counsel for the appellant vehemently argued that the conduct of Akram and Zafar A.I P. Ws. Who rode to the police station on horse back immediately after the occurrence without even informing Arshad, Mubammad Nawaz and Muhaturnw'. Shafi P. Ws. About it was unnatural. It was further argued in this connection that it was unbelievable that Zafar A.I, who accompanied Akram, stopped short of going inside the thana and when Akram came out of the police station, he found that Zafar A.I had already left. It is proved from the statement of Akram 'complainant that immediately after the occurrence, he alongwith Zafar A.I rode to the police station without informing any one about it, that Zafar A.I did not go inside the thana and when Akram came out of the building of the police station after lodging the report and was being taken to the dispensary for medical examination, he found that Zafar A.I had left the place. But we cannot from this conduct of the complainant and his witness 2afar A.I infer that they had not seen the occurrence and much less that they rode to the police station immediately to make a deal with the Sub-Inspector police, and persuaded him not to register a case at the opposite-party. No explanation is forth--coming for the conduct of the first informant and the prosecution witnesses in withholding the information regarding the death of the deceased from their relatives. There is also no explanation as to why Zafar A.I, who accompanied the first informant to the police station, decided to stay away, but that, by itself, is, in our opinion, not sufficient to discard their testimony. We, therefore, attach no importance to the conduct of Akram and Zafar A.I described by the counsel for the appellant as `unnatural' and we cannot dismiss the case on this ground alone.
There is nothing on the record to support the argument of the counsel for the appellant that a bargain was struck between the complainant and the Sub-Inspector at the thana and muchless that the case was registered after the investigating officer had inspected the spot. Assuming for the sake of argument that the case was registered after spot inspection by the police, still we D cannot throw out the prosecution case for an irregularity on the part of the police officer.
11. Next, it was argued that the conviction of the appellant could not be sustained on evidence which was dis--believed by the trial Court in respect of two other accused without its corroboration from an independent source. We do not agree. The finding by the trial Court was not that it was a case of false implication. The witnesses did not state to the police that Munir accused exhorted his co-accused to kill the deceased. In acquitting Shaukat accused, the trial Judge took into consideration the circumstance that the shots fired by him did not hit any one. The learned trial Judge conveniently lost sight of the fact that Shaukat came armed with a pistol which he used twice and although the firing by him was ineffective, still he could not have been absolved of the vicarious liability, but as there is no appeal by the State or a revision application by the complainant against his acquittal, therefore, it is not necessary to dilate any more on this aspect of the case.
12. There is evidence that trouble began between the parties over a dispute regarding the price of a packet of cigarettes. This is not only proved from the statement of Arshad, but also from other evidence. There was exchange of abuse. Akram complainant alongwith Abbas deceased were returning from the well to their house in the village when they were attracted to the spot on hearing tile exchange of abuse between Arshad and the appellant. It appears the abuse given by the appellant was offensive and it provoked Abbas deceased who joined Arshad and they manhandled the appellant. Abdul Aziz deceased came up and separated the parties, who were grappling, with the help of Akram. The appellant went away towards his house and returned shortly afterwards accompanied by his co-accused and shot dead Abdul Aziz and mortally wounded Abbas.
13. In view of the plea of the appellant, it is immaterial if Akram and his brother did or did not go and narrate the occurrence to any one at their house including their father or the mother. Similarly, it is of no consequence if the details regarding the occurrence were narrated by Arshad to his mother and not to his father. There is evidence of a number of witnesses that the appellant shot dead Abdul Aziz and seriously wounded Abbas who died later in the hospital. The appellant admitted that he was assaulted and he fired the shots with the gun of his cousin Muhammad Shabbir while sitting in his shop in order to defend himself as he apprehended danger to his life. The plea is untenable. If Akram complainant carried a spear and Abbas deceased was armed with a pistol, as alleged by the defence, then there was no point in Akram dragging the appellant out of the shop.
Spear is even more effective weapon than a fire-arm and Akram could have easily speared the appellant without dragging him outside the shop. It is unbelievable that the appellant was dragged outside the shop by a person armed with a spear when Abbas deceased had a pistol with him and the appellant was able to extricate himself, get inside the shop, load the gun of his cousin lying there and fire effectively on the victims without himself getting a scratch on his person. The appellant was pitted against two, who had lethal weapons and he would have us believe that he killed two persons and himself came out unscathed.
The plea of self-defence is completely negatived by the circumstances that the victims sustained the injuries not on front but at the back, particularly, Abdul Aziz deceased which conclusively proved that the victim was fired at when he tried to flee. In the circumstances, there could be no right of self--defence because the victims were fleeing. It also indicates that they were unarmed.
There is not even a suggestion in the cross-examination to the investigating officer that blood was found at places other than the one where the prosecution alleged and as such we cannot hold that the occurrence took place at the shop of the appellant. Similarly, there is no indication in evidence to the effect that any wads or pellets were found near the shop from where the appellant alleged to have fired at the victims. Even, according to the appellant, the deceased Abdul Aziz was not armed and there was hardly any justification for firing at him from behind, while he was fleeing.
What happened to the pistol of Abbas if he had any after he was mortally wounded is also not explained. Normally it should have been left at the spot. It is not the defence case that the same was taken away by the companions of Abbas deceased. We, therefore, hold that the appellant was the aggressor and the right of self-defence did not accrue to him in the circumstances of the case.
14. In desparation, it was contended by the counsel for the appellant that the ocular evidence deserved to be thrown out being inconsistent with the medical evidence. The ocular evidence is to the effect that the firing was done from a distance of seven or eight karams. The doctor noticed blackening of margins of wounds. There was no blackening on the clothes of the victims, as is clear from the statement of Dr. Muhammad Bashir Ahmad in cross-examination. It is in the statement of Dr. Muhammad Latif that blackening is possible if firing is done from a distance of 4 to 12 feet and not beyond it. Mian Hameedud-Din, learned counsel for the appellant, therefore, contended that the so-called eye-witnesses did not see the occurrence and volunteered evidence on account of their relationship with the deceased persons. We do not agree because in view of the spread of pellets, it is not possible for us to hold that the firing was made from a close range. The pellets did not enter the bodies of the victims en masse. The spread of pellets indicates that the firing was done from a distance and in all probability the doctors mistook contusion caused by the entry of the missile into the body of the victim as a blackening of the margins of the wound There are black sheep in all walks of life, but by no means all sheep are black and we should not be taken to mean by the observations made that medical witnesses deliberately misbehaved by telling a lie in Court on the point. 'The possibility of an honest error on the part of the doctors could not be ruled out. We, therefore, repel the contention that nobody had seen the occurrence.
15. The argument that the case deserved to be thrown out because the prosecution did not produce a single disinterested witness of the locality to corroborate interested evidence which had been partly disbelieved is without any substance, because the killings were admitted and it has been demonstrated in this case that the right of self-defence was not available to the appellant.
16. On a careful consideration of the facts and the evidence, we find that the conviction of the appellant under section 307, P. P. C. Cannot be sustained, as in all probability a flying pellet and not a direct shot hit Akram complainant. The conviction of the appellant under section 307, P. P. C. Is, there--fore, set aside. We maintain the conviction of the appellant on E two counts under section 302, P. P. C. The crime was committed in cold blood and in the absence of any extenuating circumstance, we confirm the sentences of death. The appeal is accepted only to the above extent.
17. Taking up the appeal of Muhammad Ashraf from the order confiscating the gun, Exh. P.
8. We feel that the appeal should succeed as the recoveries had been disbelieved b3 the trial Judge for good and sufficient reasons. It cannot be positively held that gun, Exh. P. 8, was actually used in the commissioner of the offence. The appeal of Muhammad Ashraf is allowed and the gun Exh. P. 8 is ordered to be restored to him subject to his having a valid licence for its possession.