MUHAMMAD AFZAL ZULLAH, J.-By his judgment, dated 30th July 1968, the learned Additional Sessions Judge, Lyallpur,' has convicted Muhammad Faqir, aged about 48 years under section 302, P. P. C., and sentenced him to death, for the murder of one Niaz Ahmad in front of Abdullahpur Branch, of National Bank of Pakistan, Lyallpur, on 26th September 1967, at about 8 a.m. The convict; has appealed and the reference under section 374, Cr. P. C. Or the confirmation of the sentence of death awarded to him is also before us. Both the matters are being disposed of by this judgment.
2. The essential facts of this case are contained in the dying declaration of Niaz Ahmad recorded by a Magistrate about an hour after the occurrence. It is in Urdu. For convenience of reference its English translation is reproduced :- "At 8 a.m. Today I was going towards Bus Stand in search of some employment as a driver. When I passed in front of the Abdullahpur Branch of National Bank, the Chowkidar of the Bank whose name I do not know was on his duty. He abused me and told me not to pass that way. I replied that I shall pass on that way. On this he became enraged and fired a shot from his gun at me which hit me on the right hand and abdomen. The motive is that one day on seeing him commit-- ting sexual intercourse (badkari) with a small girl, I had reprimanded him. He was annoyed for this reason and thus had become inimical to me. The place where I was going is a thoroughfare. Other persons were also passing that way. This occurrence was witnessed by Muhammad Aslam son of Ghulam Din."
3. The place of occurrence is the foot path on a main road. There are some shops on the to sides of bank premises. Almost in front of the bank at a distance of about 70 ft. Is an ascending approach to an overhead bridge where under there are openings called darras. These darras are utilised, by various persons for different uses. The deceased used to reside in one of these darras. Muhammad Aslam (P. W. 2) and Ghulam Mustafa (P. W. 3) used to keep their tongas under another durra during the night. About three or four days before the occurrence the appellant passed near those darras, on which Niaz Ahmad deceased abused him and told him not to pass that way. When questioned by Muhammad Aslam P. W. About this misbehaviour towards the appellant, the deceased had explained that he had seen the appellant committing zina, therefore he thought him to be a bad man and for that reason had told him (the appellant) not to pass that side Shortly before the occurrence the, deceased told Muhammad Aslam P. W. That he was going towards the Bus Stand in search of a job as a motor driver. The deceased then crossed the road and went to the shop of Abdul Hamid (P. W. 6). He enquired from Abdul Hamid about a Goldsmith whose shop is nearby. On being told that the Goldsmith had not then arrived, the deceased proceeded towards the level crossing at some distance and when he passed in front of the gate of the bank, he was shot at by the appellant in the manner disclosed in the-dying declaration.
Muhammad Aslam, Ghulam Mustafa aforesaid and Talib Hussain (P. W. 5) who while going towards Tariqbad from Abdullahpur, was walking a few karams behind the deceased, saw the occurrence. Abdul Hamid had also rushed to the spot on hearing the gunshot. He heard the deceased shouting "catch, catch, he had been shot at". He saw Niaz Ahmad lying in front of the bank in an injured condition. Niaz Ahmad at that the pointed towards the appellant, who was standing with a gun in his hand on the inner side of the gate, and said he (the appellant) fired at him when he was passing that way.
At that very moment Muhammad Latif (P. W. 9), a tonga driver, passed that way in his tonga. The persons who had collected at the spot put Niaz Ahmad in his tonga and asked him to take the injured to the hospital. Latif who described as "Lahoria" took him to the hospital. Dr. Ahmad Ghulam Muhammad (P. W. 1) sent ruqqa (Exh. P. J.) to the police at 8-30 a.m. Advising them that the statement of the injured be recorded. Ahmad Khan, A. S. I. (P. W. 17) on reaching the hospital asked the doctor vide application (Exh. P. K.) whether the injured was in a fit condition to make the statement ; on which the doctor gave the opinion (Exh. P. K./l) that he was fit to make a statement.
Syed Tufail Haider (P. W. 4) the Magistrate, who was incidentally present in the hospital in connection with the illness of her daughter, was then approached by the A. S. I. Vide application (Exh. P. L.) for recording the statement. The Magistrate made a note (Exh. P. L./1) about his presence in the hospital and then recorded the statement of Niaz Ahmad (Exh. P. A.). He was in his proper senses while making that statement. The doctor remained with the patient during the the that his statement was recorded. On the basis of the said statement, a case was registered at Police Station Peoples Colony which is at a distance of one mile from the place of occurrence, vide F. I. R.
(Exh. P. A./ 1) at 9-15 a.m.
Syed Rukana Alam S. I. (P. W. 18) investigated the case. According to him, the place of occurrence is about 2/3 furlongs from the hospital. He collected the persons of the locality and inspected the spot with the help of Muhammad Aslam, Ghulam Mustafa and Talib P. Ws. Blood was taken into possession from a place on the foot path in front of the premises of the National Bank. The appellant was arrested from the bank at about 10-30 a.m. He was then carrying the gun (Exh. P. 11) and the bandolier (Exh. P. 1) containing 10 live cartridges (Exh. P. 2/1-10) and an emply cartridge (Exh. P. 12). The gun and the cartridges were taken into possession and sealed into a parcel, ride memo. (Exh. P. C.).
Niaz Ahmad died on 27th September 1967, at 8 p.m. On autopsy the doctor found the following injuries:-
(1) Multiple pellet wounds in area of 1--" x 1--" six in number situated on the right side of the abdomen 5" from the middle line and just above the level of umbilicus each --" x --" going inside the abdomen.
(2) A lacerated wound 1--" x --" bone deep on the little finger of the right hand. The bone was fractured.
(3) The ring finger of the right hand was badly smashed and hanging with a tag of skin.
Four pellets were removed from the abdominal cavity. The death was due to shock and haemorrhage on account of damage to the ascending colon due to injury No. 1 which was caused by firearm. It was sufficient in the ordinary course of nature, to cause death. The other injuries were also caused by firearm. The probable the between the injuries and the death was 35/37 hours and between death and post-mortem about 16 hours. In the opinion of the doctor, the shot must have been fired from a distance beyond four feet. He also expressed an opinion that the pellets travelled in the body in almost parallel direction which was not slanting. According to the recollection when the Magistrate recorded the statement of Niaz Ahmad, none of his relations was present.
4. The following items of evidence were produced in support of the prosecution case, at the trial :-
(i) The dying declaration (Exh. P. A.) ;
(ii) The eye-witness account given by Muhammad Aslam, Ghulam Mustafa and Talib Hussain P. W.
6. They have deposed to the facts which have already been noticed above; (i.e) the statement of Abdul Hamid (P. W. 6) who, as noted earlier, deposed that in his presence the deceased had pointed towards the appellant as his assailant. Soon thereafter when the witness was returning to his shop, the appellant told him that "Niaz Ahmad wanted keys of the bank from him and so he had shot at him. He also said, that Niaz Ahmad had to other companions with him".
(iv) the motive part of the prosecution case, as already men--tioned, is supported by the dying declaration, Muhammad Aslam and Ghulam Mustafa P. Ws. Aslam Beg (P. W. 7) is another witness of the incident which took place between the deceased and the appellant a few days before the occurrence in which the deceased had misbehaved towards the appellant and had explained the reason or his conduct ; and
(v) Muhammad Sarwar (P. W. 19) a Firearm Expert from Central Forensic Science Laboratory, proved that the crime empty (Exh. P. 12) was fired from the gun (Exh. P. 11).
The plea of the appellant was that of denial before the learned committing Magistrate. He explained that he had been implicated due to suspicion. He also denied the motive part of the prosecu--tion case. At the trial, he stated that many persons resided in the darras. He did not know whether the deceased was one of them because he did not know him. He denied any connection with the occurrence and stated that he was on duty till 7-30 a.m. And not till 8 a.m. On the day of occurrence. He also denied the recovery of the gun and the empty from him, and finally stated that the Thanedar had implicated him "God knows better why". No evidence in defence was produced.
The learned trial Judge relying on all the pieces of evidence mentioned above has found the appellant guilty under section 302, P. P. C.
It may be stated here that in the grounds of appeal submitted through jail, the appellant raised the plea of exercise. Or right of private defence and stated that on the day of occurrence at about 8 a.m. When he was standing at the gate and was on duty, three strangers who were armed came near him and asked for the keys of the bank. He refused to hand over the keys. They insisted but he continued to refuse. Thereafter, one of those three persons rushed towards the appellant with a raised pistol and the latter, in order to defend himself and further to protect a national asset, fired with the service gun. His assailant was injured and fell down while his to companions were able to escape by means of a tonga. It is further stated in the grounds that after a few moments the police arrived, put the appellant, under arrest and took the gun into possession. It is also stated therein that the allegation against him about "Zina" is a concoction and further that the appellant did not even know those bad characters who had come to rob the bank. It was, however, learnt by him subsequently that those persons are bad characters of the locality and their names are entered in the police record as such. About the Bank Manager it is complained that he also was afraid of the robbers; therefore he did not help the appellant. It is further stated in the grounds that the appellant made similar statements before the learned committing Magistrate as well as before the learned trial Judge. The appellant wanted to make a statement before us which we have recorded separately. It is a short statement and is reproduced for convenience sake :- "I am innocent and in point of fact while I was present on duty at the Abdullahpur Branch of National Bank of Pakistan, Lyallpur, the deceased came there fully armed with a revolver with a deceased view to commit robbery and on being challeng--ed, he fired at me but I was providentially saved. I then shot at him in self-defence. The revolver of the deceased was recovered by the police but I do not, know whether it has been exhibited or not. I had made a similar statement before the learned Additional Sessions Judge, Lyallpur, and I do not know whether the same was correctly recorded or not."
5. The dying declaration (Exh. P. A.) was recorded by Magistrate after due observance of all formalities. It appears to have been made in natural circumstances, and there is no indica--tion that it was as a result of any prompting. In fact, there is nothing in the evidence to show that any relation of the deceased or any other person interested in him was able to approach him before the dying declaration was recorded. We have, however, noticed from the statements of Abdul Hamid and Syed Rukane Alam P. Ws. That for some the the deceased was shown as a bad character in the records of the police. For this reason, out of abundant caution we consider it necessary to see whether the dying declaration is corroborated by independent evidence. Three eye--witnesses, namely, Muhammad Aslam, Ghulam Mustafa and Talib Hussain, have fully supported the prosecution case. None of them is shown to have any interest in the deceased or against the appellant. Similarly, Abdul Hamid who knew the deceased as a bad character and had stopped selling his merchandise to him on credit because he had failed to pay the arrears, has also supported the prosecution case. With regard to the motive part of the prosecution case, the main source of information, therefore, it is admitted, whether contained in the dying declaration or in the statements made by Muhammad Aslam, Ghulam Mustafa, and Aslam Beg P. Ws. Is the deceased. Even if the fact that the deceased had actually seen the appellant in the at of committing sexual intercourse with some girl is excluded for want of any other confirmatory circumstances, and because no details of that incident are forthcoming, the fact remains that due to some cause to relations between the deceased and the appellant were estranged. One demonstration of that estrangement was seen by three afore--said witnesses when a few days before the occurrence, the deceased abused the appellant because the latter had passed near his darra, on the ostensible ground that the appellant was of bad character. It is quite possible that the appellant who is not very old either from looks or with respect to the age 48 years, and the deceased, who was a bad character and aged about 40 years had some rivalry over some woman and for that reason did not like each other. There is no doubt about the fact that due to some similar reason the deceased had insulted the appellant some days before the occur--rence in presence of other persons. This, in our view, was a very strong motive for the appellant to have attacked the deceased. The evidence provided by the Ballistics Expert, in so far as it goes, also supports the prosecution case. Therefore; apart from the admis--sions made by the appellant in the grounds of appeal and in the statement made before us, we are satisfied from the prosecution evidence that the appellant did cause the death of Niaz Ahmad at the the and place alleged by the prosecution.
6. The next question to be examined is whether the plea of self-defence taken by the appellant in this Court has any substance. No doubt the appellant told Abdul Hamid P. W. That the deceased wanted keys of the bank from him, therefore he shot at him; and further that the deceased was accompanied by to other persons. Abdul Hamid stated the above fact in his examination-in-chief.
This fact was, however, challenged in cross-examination and it was suggested to the witness that he made a false statement on the asking of the police. It was in line with this suggestion in cross- examination that the appellant pleaded total denial in the committing Court as well as in the trial Court: It is only in the grounds of appeal that he reverted to the original position. He, however, introduced many more facts ; for example, that the three robbers were strangers and were armed with weapons, and further that one of them rushed at him with a pistol aimed at him. Further improvement was made in the statement made by him before us, in that the appellant was fired at by the deceased but was only providentially saved. He also stated that the revolver of the deceased was recovered by the police. It is significant to note that in the latest statement he has riot mentioned that the deceased was accompanied by to other persons. The above facts would show that the appellant was not serious, at any stage of the enquiry or trial, about the plea of self- defence. It is also clear that he took inconsistent pleas at different stages. The fact that he pleaded self-defence immediately after the occurrence does not help him in the circum--stance of this case, already noticed and hereinafter discussed.
It is not improbable to think that he might have immediately after the occurrence, thought of raising a false plea of self-defence in order to save himself from the consequences of his at.
We have noticed many other circumstances which show that the plea of sell-defence raised by the appellant is false. Had the deceased been armed with a revolver, the same would have been noticed by the eye-witnesses whose names have already been mentioned. They are entirely independent persons. There is no reason why they should have concealed this fact, from the police during the investigation and from the Court, at the trial. Similarly, the statement of the appellant that a revolver was recovered from the deceased by the police cannot be accepted because the police could not have any soft corner for the deceased, who, admittedly, was mentioned as bad character in their records. Had a revolver been recovered from the deceased, there was no reason for the police to have concealed this fact. It is in evidence that the deceased was living is an improvised residence in front of the bank for about a decade. It is unlikely, that the appellant would not have known the deceased. If that is so, it is unnatural that the deceased would have attempted to commit robbery whether singly or with the help of others, at about 8 a.m. When people were around. There is no evidence, nor any sugges--tion that, the deceased, at the the of occurrence, had put on a mask to conceal his identity. Moreover, the claim of the appel--lant that he did not know the deceased previously is directly contradicted by several witnesses. Some of them deposed that some days before the occurrence the deceased had abused the appellant on account of a previous estrangement. The building of the bank abuts on a main street and is flanked by several shops. The impression gained from the evidence is that it is a busy street. Had there been any truth in the plea of the appellant, he could, have, at least, cited some witness who could depose in support of that plea. It is not possible to imagine that all the neighbours turned immediately against the appellant for the sake of a bad character who had no relations around.
There is not an iota of evidence not even a suggestion, that any other person saw somebody trying to commit robbery in the bank on the morning of the occurrence. If all the three statements made by the appellant in connection with the plea of self-defence, are read together, one assertion is common to them. The appellant claimed that the robbers asked the keys of the bank from him.
Firstly, it is not possible to think that the keys of the bank would be with a Chowkidar ; and secondly, it is highly improbable that a robber will ask for the keys of the bank from the Chowkidar when the former is standing outside a closed door on the foot path and the latter is standing inside. If the gate was not locked, the would-be robber would before asking for the keys try to go on the inner side and then might ask for the keys of the bank. And if the gate was locked, the would-be robber would either scale over, the gate or would try to break open the lock and, at the most, though it is very unlikely, would ask for the key of the lock on the gate. The conduct attributed to the so-called robber/robbers, by the appellant is most unnatural and cannot be accepted on any reasonable hypothesis. The location of the fatal injury in "on the right side of the abdomen 5" from the middle line and just above the level of umbilicus. This com--pletely fits in with the narrative of the occurrence given by the eye-witnesses. According to them after a brief verbal encounter, with the appellant, the deceased proceeded onward and had walked some paces when the appellant fired at him. If the situation, as described by them, is visualised keeping in view the site plan, the shot fired by the appellant, from the iron grill of the gate, would cause the injury as described by the doctor. On the contrary, the position of the would-be robber described by the appellant does not fit in with the location of the injury. According to him, the deceased rushed at him with a revolver in his hand. Had it been so, the injury would have on the front of the body of the deceased and not on the side.
There is another such circumstance which negatives the defence plea. The blood of the . Deceased was found at a place about 10 ft. From the middle of the gate. That point has been indicated as No. 2 in' the site plan. Even' if some margin of distance is allowed because the deceased may have taken couple of steps after having been hit, the fact remains that keeping in view the position of the gate, the appellant (who admittedly was inside the gate) and the place where the deceased was hit or had fallen down, it becomes absolutely, clear that the appellant did not fire at him when he was facing the gate/the appellant ; but the fire was shot when the deceased had walked away a couple of paces beyond the point where the appellant was standing. Therefore, the location of the injuries as well as the place of occurrence do not support, rather contradict the defence plea.
Considering all -the circumstances, and keeping in view, the fact that the eye-witnesses, are independent and none of them has even indirectly supported the plea of self-defence, we hold that .It is not. Available to the appellant. Therefore, he has rightly, been held guilty and convicted of the murder.
7. Muhammad Aslam (P. W. 2) stated in his examination-in---chief, that when the deceased reached in front of the gate of the bank, the appellant "said something" to him in angry tone to which the deceased "also replied in an angry tone". Ghulam Mustafa (P. W. 3) also made a similar statement. But Talib Hussain, P. W. While stating this circumstances did not mention that the verbal encounter between the to was in angry tones. It is an admitted position that the talk between them was not heard by the witnesses. Therefore, keeping in view of the above difference, in respect of "angry tone," it will not be safe to conclude that so far as the appellant is concerned, he adopted more harsh attitude than the deceased or that he was first to become harsh in tone. The background of relations between the to is such that the possibility cannot be excluded that on the appellant's asking the deceased not to pass that way, the latter might have replied in a harsh tone or might have said something g on which the appellant shot at and killed the deceased. The possibility visualised by us above also gets some support from the fact that the deceased was a bad character and had abused the appellant on an earlier occasion. On this occasion as well, he might have adopted a similar attitude. Therefore, keeping in view all the circumstances, we are of the view that the capital punishment should not be exacted from the appellant. We reduce the same to transportation for life. His appeal, therefore, is partly accepted and the sentence of death awarded to him is not confirmed.