This Criminal Appeal No. 397 of 1979 and connected Criminal Revision No. 321 of 1979 arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 13th March, 1979 while acquitting Jalal Din, Sabir Hussain, Muhammad Ali, Ahmad Ali and Ahmad Din convicted Falak Sher and his son Mushtaq under various sections of Pakistan Penal Code, (f) under section 302/34, P. P. C. For causing the death of Taj Muhammad and sentenced them to imprisonment for life and a fine of 5,000 or in default thereof to further R. I.
For three years, (ii) under section 307/34 for murderous assault of Mst. Sardaran Bibi P. W. To 3 years' R. I. And a fine of Rs. 1,000 or in default thereof one year R. I., each, (iii) under section 452, P. P. C. For criminal trespass after having made preparation to cause hurt, into the house of Rehmat Ali and sentenced them to three years'
R. I. And a fine of Rs. 1,000 or in default to further R. I. For one year each with the direction that the sentences would run concurrently And the fine when recovered half of it shall be paid to the legal heirs of the deceased.
2. The occurrence took place on 20th October, 1975 at 3-00 p.m in the house of Rehmat Ali situated in Chak No. 58/S. P. Of Police Station Malka Hance. F.I. R. Exh. P. A. Was lodged at the Police Station by Bashir Ahmad P. W. 1, brother of the deceased at 5-00 p.m. On the same day and was recorded by Maqbool Ahmad, S. L/S. H. O., P. W.
11. The distance between the place of occurrence and the police station is 4 miles.
3. Then prosecution case is that on the eventful day at about 1Z-00 noon, Maham Ali, P. W. 3, Taj deceased and Rehmat Ali, were sitting at the tube-well of Muhammad Ali, when Mushtaq, appellant, came there and asked.
Maham Ali to supply tube-well water to him. Since Mushtaq, appellant, refused to give him the tube-well water there ensued altercation over the purchase of tube-well water. Abuses were exchanged and Taj deceased gave beating to Mushtaq, appellant who challenged that he would avenge his disgrace. Thereafter, at about Peshiwala Bashir Ahmad, P. W. 1, Bagh Ali (not produced) and Taj deceased were sitting outside the Ihata of Rehmat Ali, maternal uncle of the deceased. When Falak Sher and Mushtaq, appellants armed with guns alongwith the acquitted co-accused who were armed with sticks appeared from the northern side of that theta.
The appellants hurled abuses and also fired shots whereon Taj, deceased, Basher Ahmad and Bagh Ali went into the Ihata of Rehmat Ali to take shelter then the appellants and their co-accused trespassed into Ihata of Rehmat Ali. The co-accused namely ; Jalal Din and Muhammad Ali raised lalkara that Tai should not be spared alive. Falak Sher fired at Taj hitting his left arm. Mushtaq fired from his gun which hit on the right hand of Taj. On this Taj who was also carrying his licensed gun did fire in response-but it hit none Mushtaq appellant" again fired at the deceased hitting near his right armpit. On receiving this injury Taj fell down. In, the meantime Mst.
Sardaran P. W. The wife of Rehmat Ali intervened but was fired at by Falak Sher, appellant. Thereafter, making some fire in the air, the appellants and the co-accused went out of the Ihata of Rehmat Ali. Taj expired on the spot. It has further been alleged that the appellants and others after having caused the death of Taj and injuries to Mst. Sardaran Bibi went to the tube-well of Maham Ale where Mushtaq appellant injured him with the butt of his gun.
3. Dr. M. A. Tanveer, P. W. 4, conducted post-mortem examination on the dead body of Taj and found the following injuries------ (1)A fire-arm wound of entrance 1/4'' x 1/4" x going deep on the back of right upper arm 3Y below the shoulder top.
(2)A fire-arm wound of entrance 1/4'' x 1/4' x going deep close to the chest cavity 1-- x medial to injury No. 1 on the lateral side of right chest close to the posterior fold axilla. On dissection this injury entered the chest cavity on the side of lateral right chest between the space in 5th and 6th ribs, injured the lower lobe of right lung on the outer surface entered the lung and came out through the medial surface of right middle lobe entered the right side of heart and pellets were recovered from the heart cavity.
(3)A fire-arm wound of entrance 1/4' x 1/4' into going deep on the back of right forearm 2--" below the elbow and came out ass a wound of exit on the front of right forearm 5'' above wrist 1/3'' x 1/3''.
(4)A fire-arm wound of entrance 1/4'' x 1/4'' into going deep l--'' below injury No. 3 and pellet recovered under the skin of right forearm 2'' below the exit of injury No. 3. Right radius bone was fractured underneath.
(5) A firearm wound of entrance --'' x --'' into going deep on the inner side of left forearm 5 --'' above wrist-joint.
In the opinion of the doctor the death was due to shock and haemorrhage as a result of injury No. 2 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire- arm within about 22 hours of the post-mortem examination. The time between the injuries and the death was within few minutes.
The same doctor examined Mst. Sardaran P. W. And found following injuries on her person :- (1)A fire-arm wound of entrance 1--'' x 1--'' going deep situated obliquely on the back of left forearm in middle.
The pellet was lying under the skin at a distance 2r above the injury.
(2)A burnt abrasion --'' x --on the outer side of left upper arm in middle.
(3)A burnt abrasion --'' x --" on the outer side of left mammary gland. The skin over the injury was torn.
These injuries were simple caused by fire-arm within 24 hours of the post--mortem examination.
4. The same doctor also medically examined Muham Ali and found the following injuries on his person :- (1)A contused wound --" x --cartilage torn into two on the front of right ear close to the root.
(2) Abrasion 1/6'' x 1/8'' on the tragus of right ear.
These injuries were simple caused with blunt weapon within 24 hours of the examination.
5. Maqbool Ahmad, S. I., P. W. 11 arrested the appellants on 21 October, 1975. On 23rd October, 1975 Falak Sher appellant got recovered his licensed gun P. 5 from a Paroly lying in his house which was taken into possession vide Memo. P.M. Attested by Khan Muhammad P. W. 6 and Nizamuddin (not produced). On the same day Mushtaq appellant got recovered his unlicensed gun P. 4 from Barthen Bin lying in his house vide Memo. P. L. Attested by the same witnesses.
6. On 20-10-1975 Maqbool Ahmad, S. I., P. W. 11 had already removed gun P. 1 and 6 crime empties P. 2/1 to 6 from the spot vide Memos.. P. H. And P. J. Respectively, attested by the same witnesses.
7. The report of the Director Forensic Science Laboratory Exh. P. B. B. Shows that two empties were fired from the shot gun No. 3170 recovered from Mushtaq appellant and four empties were fired from shot--gun No. 90727st recovered from Falak Sher, appellant and that one empty was also fired from gun No. 2066 of Tai.
8. To prove its case the prosecution has examined as many as 11 witnesses, out of whom Bashir Ahmad P. W. 1 and Mst. Sardaran P. W. Have supported the prosecution case on all material particulars. Bash E Ahmad P. W. 1 and Maham Ali P. W. 3 have also proved the motive i.e the first incident which took place on the tube-well at 12- 00 noon wherein Mushtaq appellant was given beating by the deceased.
9. Khan Muhammad P. W. 6 has proved the recovery of the crime empties from the spot and the recoveries of guns from Falak Sher and Mushtaq, appellant. He stated that the crime empties were collected from inside the Ihata of Rehmat Ali. The evidence of the remaining Witness --is more or less, of formal nature.
Falak Sher, appellant when examined under section 342, Cr. P. C denied all the incriminating circumstances and stated that he was not present at the time of occurrence on the spot and has been falsely involve: on account of enmity.
Mushtaq, appellant, however, owned the responsibility of the death of Taj and injuries to Mst. Sardaran. He took up the plea of self-defence He has partly accepted the incident which took place at 12.00 noon on the tube-well of Maham Ali P. W.
3. In reply to the question "Do you want to say anything else?" he made a detailed statement with regard to the alleged motive and the occurrence, which reads as follows :- "Q. No. 15.-Do you want to say anything else "Ans.-I am innocent. On the fateful day I went to the tube-well of Maham Ali and requested him to give tube-well water for irrigation to me. He refused and on my insistence he abused me and also gave me 213 slaps whereupon I picked up a small soti lying nearby and gave beating therewith to Maham Ali. Taj deceased inter-- vened. He snatched a stick from me and abused me. He raised his stick to beat me whereupon 1 gave few fist blows on his face. 1 then went away.
Taj deceased was a hot-headed man. He felt offended. I then came home waited for my father who was at Harripur. He did not Tie. Then I made up a mind to go to Harripur to inform him about this incident and then to go the police station. As the house of Taj deceased fell the way. Apprehending trouble from him I took the licensed gun of my father. As I reached near the Khalil sukhera adjacent to the house of Rehmat P. W. I found Taj deceased standing there with a Gun in his hand on the thoroughfare. He fired at me which missed. On hearing the report of the gun fire Mst. Sardaran came out of the ihata. Taj loaded his Gun second time and aimed at me and wanted to fire at me. My Gun was double barrel. In order to save my life, fling apprehension of death at the hand of Taj deceased who bad aimed his gun towards me I fired from my Double-Barrel Gun, by pulling both the triggers which hit him and Mst. Sardaran. Taj deceased after receiving the said injuries entered the Ihata of Rehmat Ali P. W. Where he, fell down.
The gun of Taj deceased which was secured by the Police after the occurrence contained a stuck up cartridge in it. It was so mentioned in the recovery memo. Today when the report of the fire-arm has been produced for the first tune it transpired that cartridge contained in the gun of the deceased had been replaced by empty by the Police before sending it to the Forensic Expert.
At the time of the occurrence I was less than 15 years of age.Was born on 10-7-1961 as shown in my School Leaving Certificate (copy Exh. D.C.)."
The appellants, however, did not lead any evidence in defence.
10.Learned counsel for the appellants has submitted that .The prose--cution has failed to prove its case beyond reasonable doubts the occurrence in fact did not take place in the manner as alleged by the prosecution; that since Mushtaq appellant had given beating to Mabarn Ali and Taj at 12-00 noon, therefore avenge the insult the deceased had opened the attack by firing with his short-gun on Mushtaq appellant who in order to save himself opened fire which caused the death of Taj and injuries to Mst. Sardaran ; that in the circumstances of the case there is a reasonable possibility of the defence being true inasmuch as the prosecution case that Tai after having received injuries on his both arms had fired the gun, is not believable.
11 As against this the learned counsel for the State has vehemently defended the judgment of the trial Court.
12. I have considered the arguments advanced by the learned counsel for the parties in the light of the record with care. Since Falak Sher appellant has denied all the incriminating circumstances and Mashtaq appellant has taken the plea of self-defence I propose to discuss the pro--secution case first so as to come to an independent finding on the truth or falsity of the story related by them and would then consider the statement the accused arid the possibility of its being true if necessary.
13. After having considered the prosecution case I find that it is a case 1rompt F. I: R. The occurrence took place at 3-00 p.m. And the F.I. R. Was lodged at 5-00 p. m. On the same day at the police station which is at a distance of four miles from the place of occurrence. The names of the appellants and the specific part they had fired at the deceased and Mst. Sardaran have been clearly stated therein. The defence has not been able to show that the F.I. R. Exh. P. A. Is not a genuine document or that it was not prepared at the time and the place as it purports. To my mind the F.I. R. Which is a genuine document can be used to corroborate its maker namely Bashir Ahmad P. W.1.
14. As for motive Maham Ali, P. W'. 3 and Bashir Ahmad P. W. I have supported it by saying that Mushtaq had come to the tube-well on the day of occurrence at 12-00 noon. He wanted to purchase the tube-well water from Maham Ali who refused to supply the water whereon there ensued quarrel followed by abuses and beating to Mushtaq appellant by Taj, deceased. This incident has almost been admitted by Mushtaq, appellant, of course with a little difference, inasmuch as he admits his going to the tube-well, his request for the supply of tube-well water, refusal by Maham Ali and his (Mushtaq) appellant, insistence, therefore, the exchange of abuses and the fact that he was given beating at that time. He, however, stated that when Maham Ali gave him 2/3 slaps he also picked up a stick and caused injury to Maham Ali and that when Taj tried to intervene and snatched the stick from him and raised the stick to beat him, he then gave few fist blows on the face of Taj deceased.
15. Now coming to the ocular evidence I find that the eye-witnesses have no enmity whatsoever with the appellants; that their evidence is in consonance with the probabilities and materially fits in with other evidence.
The witnesses have stood the test of cross-examination. Nothing adverse could be elicited from them; their statements stand supported by the circumstances that according to the report of the Forensic Science Laboratory the empties recovered from the spot were found to have been fired from more than one gun. I have been very much impressed by the straight ward manner in which these eye-witnesses have not suppressed the holding of gun and actually fired by the deceased. Since no one from the accused side had received injuries, therefore, the eye-witnesses could easily suppress the gun and the fire by the deceased but they have not done so. Furthermore, the fact of injuries on the person of Mst. Sardaran proves her presence on the spot at the time of occurrence beyond any doubt.
As for the story of the prosecution I am inclined to believe the same for the reasons that the same finds support from circumstances which are not open to any doubt. For example the blood was taken into posses--sion from inside the Ihata of Rehmat Ali; that the six empties were recovered from inside the Ihata and the number of the injuries does commensurate with number of the appellants.
Since I have not disbelieved the prosecution case I proceed to examine the plea of self-defence raised by Mushtaq appellant to satisfy myself, whether there is a reasonable possibility of its being true or not, I am fully conscious that the burden to prove the plea of self-defence is not much heavy on the appellants and they have simply to show from the evidence o the circumstances that there is a reasonable, possibility of the existence o the right of self-defence. I have considered the plea raised by the learned counsel with utmost care and caution but I have not been able to persuade myself to accept the likelihood of the existence of the right of self-defence amongst the others on the short ground that when Taj had run into the house of Rehmat Ali there was no legal justification for the appellants to enter into the Ihata of Rehmat Ali and since their entry into the Ihata of Rehmat Ali amounts to .An offence they cannot claim any right of self-defence which is always available against some offence. Assuming for the sake of arguments that Taj had fired while standing on the thoroughfare outside the Ihata of Rehmat Ali there was no right of defence available to Mushtaq appellant after the retreat of Taj into the Ibata. Furthermore, the defence version is that Taj and Mst. Sardaran were fired at outside the Ihata on a thoroughfare whereas not only the blood but the empties also have been recovered from inside the Ihata as proved by the site plan, statement of the Investigating Officer and from the evidence of Khan Muhammad P. W.
6, Lambardar of the Chak who appears to be an quite independent person. To my mind these two circumstances successfully belie the version given by Mushtaq and as such it is held that there is n reasonable possibility of the defence being true. Even otherwise the defence plea has neither been proved by the defence nor the same is spelt out from the prosecution evidence or the attending circumstances.
16. The upshot of the discussion is that the prosecution has proved, its case against the appellants beyond reasonable doubts and there is no/F reasonable possibility of the plea of self-defence raised by Mushtaq appellant being true.
17. As for the connected Criminal Revision: I find that the acquitted co-accused although allegedly were armed with sticks yet they did not cause any injury to any one and as such their participation in the crime appears to be doubtful. The trial Court has, therefore, rightly acquitted them.
18. As for the request for the enhancement of the sentence o Mushtaq and Falak Sher, I find that the learned trial Court has give reasons for not awarding capital punishment and I do not see any reason t differ with him.
Resultantly the Criminal Appeal as well as the Criminal Revision are dismissed. The appellants shall however get benefit of section 382-B, Cr. P. C. Falak Sher appellant ho is present in the Court is hereby, directed to surrender himself before the learned Sessions Judge, Sahiwal on 16th April, 1983, who would send him to Jail to serve out the sentence. The learned Sessions Judge, Sahiwal may be intimated on phone.