1. M. R. KHAN, J. The appellants Bashir Ahmad and Noori, along with 9 others, were placed on trial before the Sessions Judge, Gujranwala, for offences under sections 148, 302/149, 307/149, 324/149 and 323/149 of the Pakistan Penal Code. The learned Sessions Judge acquitted all the accused persons other than the two appellants. He convicted both the appellants under sections 302 and 307 of the Penal Code and sentenced each of them to transportation for life under the former section on 4 counts for intentionally causing the death Chiragh, Zafar, Nasir Din and Jamal Din and to 10 years' rigorous imprisonment on the latter section on 8 counts for attempting to murder Muhammad Ashraf, Ashiq Hussain, Abdul Majid, Muhammad Ayyub, Suba, Maqbul Hussain, Muhammad Tufail and Mubarak all of whom were prosecution witnesses in the case. The sentences of both the appellants were to run concurrently. On appeal, the convictions and the sentences of the appellants were upheld by a learned Single Judge of the former High Court of West Pakistan, Lahore.
2. The appellants stated in their petition for special leave that the plea of self-defence taken by them at the trial was wrongly rejected by the trial Court and the learned Single Judge of the High Court Leave was accordingly granted to consider it the plea of self-defence said to have been taken by the appellants was rightly overruled.
3. In order to appreciate the alleged plea of self-defence, it is necessary to state the facts of the case which are as follows; There are two factions in village Kot Hassan to which both the parties belong. Faiz Muhammad is the leader of the complainant party, whereas the acquitted accused Ismail is the leader of the other party. There have been criminal litigation between the parties in the past and one such litigation was pending on the date of occurrence on the 7th February 1964. On that date, at about 3 p. m., 4 deceased persons and 8 injured prosecution witnesses, named hereinbefore, came out of the Jamia Mosque in their village after offering Juma prayers and were returning to their respective houses. When they had crossed the shrine of Baba Izzat Shah and were towards its West, all the accused persons including the two appellants came from behind and raised lalkara. Of the accused persons Ismail was armed with a double-barrel gun, Mumtaz, Karar and the two appellants were armed with a single-barrel gun, each, Ibrahim and Tufail carried ballams and Jamil, Riaz, Abdul Hakim and Abdul Majid were armed with dangs. Ismail fired his gun at Chiragh, deceased who having received the shot on the head fell down. Bashir (appellant) fired at Jamal, deceased. This hit him on the chest and he fell down. Karar fired a shot at Nasir Din, deceased, which hit him in the belly and he fell down. Zafar, deceased received in the chest a gun-shot fired by Mumtaz and fell down. Noori (appellant) fired a shot at Zafar while he was lying on the ground and this shot hit him on the chest. Noori fired a second shot which hit P. W. Abdul Majid. The rest of the complainant party, who had not received injuries in the firing lay down on the ground to save themselves. While Zafar was lying on the ground with gun-shot injuries, Ibrahim and Tufail, accused gave him ballams blows. Abdul Hakim gave dang blows to Chiragh, while he was lying on the ground with gun-shot injury. Jamil accused gave dang blows to Jamal when he was lying injured by gun-shot. In the course of the attack, P. W. Ashraf snatched away the ballam from the hand of Ibrahim, accused and P. W. Ashiq snatched away the dang from Jamil, accused P. W. Ashraf and Ashiq then inflicted blows to the accused Abdul Majid, Abdul Hakim, Riaz and Jamil with the respective weapons snatched away by them. Having received the dang and ballam blows, the accused Abdul Majid, Abdul Hakim, Riaz and Jamil retreated. Thereafter the accused persons, who had been armed with guns, opened fire indiscriminately as a result of which Maqbul (P. W. 11), Abdul Majid (P. W. 14), Suba (P. W. 15), Tufail (P. W. 17), Ashiq (P. W. 1 6), Ayyub (P. W. 19), Mubarak (P. W. 20) and Ashraf (P. W. 22) sustained gun-shot injuries. All the accused persons then went away leaving behind the four dead bodies of Zafar, Chiragh, Jamal Din and Nasir Din. P. W. 24 Faiz Ahmad (this Faiz is other than the leader of the complainant party) went to the Police Station, Hafizabad, at a distance of 10 miles, and lodged the F. I. R. To the above effect at 9-30 p.m.
4. The defence plea, as it transpired from the cross-examination of some of the prosecution witnesses, particularly P. W. 14 Abdul Majid was that on the morning of the date of occurrence the accused Karar and Mumtaz, while passing by the house of Faiz, the leader of the complainant party, fired shots towards that house and thereby caused an injury on the forehead of Faiz's father Barkat and that, in order to take retaliation for this morning incident, the four deceased persons and P. W. Abdul Majid came to the houses of accused persons, ramed with ballams, dangs and hatchets and attacked them whereupon the accused persons counter-attacked them in self- defence and that in the midst of the fight two other persons came there with guns and opened fire injuring the four deceased and the eight prosecution witnesses all of whom had by then arrived there.
5. The statements made by the two appellants under section 342 of the Code of Criminal Procedure, far from being consistent with the above a lea of self-defence, appeared to be opposed to it Both of them denied the alleged morning incident at or near .The house of Faiz Ahmad which was said to have provided the motive for the party of the deceased to retaliate by attacking the accused persons in their houses. Again, both of them denied their presence at the spot at the time of the occurrence and asserted that they had been falsely implicated in this case on account of enmity and party faction. In his statement before the committing Court, the appellant Noori rather took a plea of alibi saying that he was at a different village named Momen on the day of occurrence. Thus it appears that self-defence was not the appellants' real plea. At any rate, the plea of self-defence, so far as the appellants are concerned, was not clearly spelt out during the trial. If, however, it is assumed that the plea of self-defence was there on behalf of the appellants, as well, it was the duty of the Court, as laid down in Shamshad v. State (PLD 1963SC740) "to place the allegations for the prosecution and those for the defence in juxta--position against the background of the proved facts and circum--stances and thereafter to consider whether the case set up by the accused was not a reasonably possible one".
6. Having discussed the evidence, the learned Sessions Judge came to the following conclusion with regard to the plea of self---defence so far as it concerned the two appellants: "I, therefore, come to the conclusion that Bashir Ahmad and Nuri accused made deliberate and sustained attack on the deceased and the P. Ws. And their attack could, not be in Self---defence or to defend the four injured accused persons, namely, Abdul Hakeem, Jameel, Abdul Majid and Riaz and, therefore, they are guilty under sections 302 and 307, P. P. C."
7. The learned Single Judge agreed with the trial Court in this regard saying that `the plea of self- defence was not available to the appellants in the circumstances of the case'.
8. Learned counsel for the appellants contended that the plea of self-defence was not rightly overruled inasmuch as both the Courts blow believed that the complainant party including the four deceased persons had attacked the houses of the accused persons by way of retaliation for the morning incident. In this connection, the learned counsel drew our attention to the observations made by the Courts below. The learned Sessions Judge observed : "It is quite believable that as two of the accused persons made firing at the house of very ring leader of the complainant party and injured the father of their ring leader, they could not tolerate it, and, therefore, might have attacked on Mumtaz Ahmad accused whose house and the dera are situate at a distance of about 120 feet from the house of Faiz convict."
9. In this regard, the learned Single Judge made the following observation :-- "Under the circumstances, it looks mere probable that the complainant party including the above- mentioned deceased persons took the initiative and retaliated for the attack made at the house of Barkat."
10. These observations appear to be mere inferences drawn mainly from the fact that the parties had enmity against each other and that there had been a morning incident in which Barkat, the father of leader of the complainant party sustained an injury at the hands of two of the acquitted accused persons. But these observations can not be considered in isolation and are not, by themselves, sufficient to sustain the plea of self-defence. This plea should be considered in the light of the entire evidence relevant thereto.
11. In this case, Murad Ali (P. W. 6) a draftsman prepared a site plan (Exh. PX) in the scale of 60 feet to an inch, on the pointing out of the prosecution witnesses. This site plan shows the location of the village mosque, the shrine of Baba Izzat Shah, the places where the four dead bodies were lying and the places wherefrom blood-stained earth had been taken by the Police. Several houses have also been shown in this plan, but the houses of all the accused persons said to have been attacked by the party of the deceased have not been depicted therein. The same draftsman prepared another site plan (Exh. D. A.) in the scale of 48 feet to an inch, on the showing of the accused persons. In this plan, the houses of the parties have been shown and named, but the places where the four dead bodies were lying and the places wherefrom blood-stained earth had been collected have not been shown therein. Nevertheless, the place of occurrence has been shown in the site plan-Exh. D. A. As well. It appears from both the plans that a street runs straight from the village mosque towards West. This street almost reached the shrine of Baba Izzat Shah. The distance between the mosque and the shrine appears to be about 550 feet. There are lanes on either side of this street. The last lane runs from south to north and is at a distance of 52 feet towards east from the said shrine. On the eastern side of that lane, there lies the house of the acquitted accused Abdul Hakim. This is the accused party's nearest house from the places where the dead bodies were found and from where blood-stained earth was collected. The distance between the said places and the house of the acquitted accused Abdul Hakim, towards east according to both the plans, appears to be about 280 feet in straight line. But the lane running from south to north and the house of Nazir Ahmed, a third person intervene the house of the said Abdul Hakim and the places where the dead bodies were found and from where blood-stained earth was collected. The houses of some other accused persons are at greater distances and scattered on either side of the street running from the mosque towards the shrine. When the nearest house of the accused Abdul Hakim is at a considerable distance from the places where the dead bodies were lying and the places wherefrom blood-stained earth was collected and when the said house was intervened by a lane and the house of a third person, it is indeed difficult to accept the defence version that the complainant party including the four deceased persons attacked the houses of the accused whereupon they fought back in self --defence. The evidence is that all the four deceased persons died at the spot immediately on receipt of the gun-shots, and none of them could run away to any distance from the places where they had received the shots. This makes the defence version as to self-defence all the more improbable. The houses of the accused persons, as stated earlier, are scattered, but the defence did not pinpoint any particular house where the alleged attack by the complainant party had been launched. This is yet another reason weighing against the probability of the plea of self--defence.
12. According to the medical evidence all the fire-arm injuries on the four deceased, other than Jamal Din, had burnt margins. The medical evidence further shows that the fire-arm injury on Jamal Din, deceased and all the fire-arm injuries on all the eight prosecution witnesses had black margins.
13. These burnt and black margins obviously go to show that the gun shots were indeed fired from a very close range. This fact is very significant and clearly indicates that the incident in which the four deceased persons lost their life took place not near the house of any accused person but in the close proximity of the places where their dead bodies were found. This is yet another reason going strongly against the plea of self-defence.
14. It may be mentioned here that the appellant Noori is a man of different village and is not related to the other accused persons. That being so, the question of the complainant party's attacking his house could not possibly arise. For all these reasons, the plea of self-defence does not appear to be a reasonably possible one. We are, therefore, satisfied that the Courts below were right in rejecting the plea of self-defence. Even if it is conceded that the plea of self-defence was available to the appellants, this will make no difference as regards the sentences of transportation for life awarded to them.
15. The prosecution case rested on the direct evidence of ten eye-witnesses of whom eight had sustained fire-arm injuries. Therefore, the presence of these eight injured witnesses at the time of the occurrence could not be doubted. As, however, there had been enmity between the parties from before and the injured witnesses themselves belonged to the complainant party, both the Courts below thought it safe not to rely on their evidence in the absence of independent corroboration. Such corroboration according to them, was not available except in respect of the present two appellants. The police recovered seven empty cartridges from the spot. Besides, one gun and nine live cartridges were recovered front the appellant Bashir and one gun and thirteen live cartridges were recovered from the appellant Noori, All these articles had been duly sent to the Ballistics Expert for examination. The Expert was of the opinion that out of the seven crime empties two were proved to have been fired from the gun recovered from the appellant Bashir and two from the gun seized from the appellant Noori. Thus, the Expert's opinion furnished valuable corroboration to the evidence of the eye--witnesses according to whom Bashir fired a shot on the chest of Jamal Din, deceased and Noori's shot hit the chest of Zafar, deceased. Neither of the appellants had sustained any injury at the hands of the complainant party. Therefore, the appellants, on the facts proved in this case, obviously exceeded the right of private defence, if they had 'at all any and, as such, the offence committed by them in inflicting fire-arm injuries on the chest of Jamal Din and Zafar, deceased was culpable homicide not amount--ing to murder. But since the gun-shots had been fired by them from a very close range on the most vital part of the body of the said two deceased, it is manifest that both the appellants had fired shots with the intention to kill them. Accordingly, the offence committed by them falls under Part I of section 304 of the Penal Code. The maximum punishment under Part I of that section being transportation for life, the sentences imposed on the appellants shall, therefore, remain unaffected in any case.
16. In the result, we dismiss the appeal.