MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No. 212/84 and the connected Murder Reference No. 83/84 arise from the judgment of learned Additional Session Judge, Faisalabad, where he on 21-4-1984 convicted Sadiq alias Rehra (24) under section 302, P.P.C. For causing the death of Muhammad Ramzan (25/26) and sentenced him to death and a. Fine of Rs.8,000, in default thereof 2 year's R.I. He was also directed to pay Rs.6,000 as compensation to the legal heirs of the deceased or in default thereof 6 months' R.I.
2. The occurrence took place on 6-10-1982 at 4-00 p.m. In Street No. 7, Mohallah Naseerabad at a distance of 2-- k.m. From P.S. Factory Area, Faisalabad. The FIR is statement Ex.PB of Ghulam Haider P. W 10, father of the deceased recorded by Akbar Ali, ASI P.W. 13 on the same day at 4.30 P.M. At Babar Chowk, near Babar Cinema, Jhang Road, Faisalabad. The formal FIR Ex.PB/1 was drawn up at 4-50 P.M. On the same day by Rashid Ahmad Moharrir Head Constable P.W.5.
3. The motive as alleged by the prosecution was that Sadiq appellant used to visit the Darbar of Sabz Sain, near the house of Ghulam Haider complainant P.W. 10 and used to pass indecent remarks on women visiting the aforesaid Darbar. Ghulam Haider complainant and his son Muhammad Ramzan deceased repeatedly stopped him from visiting Darbar. On evening preceding the day of occurrence Sadiq appellant came to Darbar. He was stopped by the deceased and the complainant. This led to an altercation between them. At 9.00 a.m. On the day of occurrence, the appellant against came to Darbar and Muhammad Ramzan deceased again objected to his coming to Darbar on which the appellant extended threats of dire consequences hence this occurrence.
4. As for the main occurrence, it has been stated that at the eventful time Muhammad Ramzan deceased was present in Street No.7 of Mohallah Naseerabad in front of the house of one Sultan, when Sadiq appellant armed with Chhuri appeared in the Street and declaring that he would teach the deceased a lesson for stopping him from visiting the Darbar, opened attack on him and gave Churi blow on his chest region. On receiving injury Muhammad-Ramzan fell on the ground and expired on the spot. The occurrence was seen by Ghulam Haider P.W.
10. Father of the deceased, Manzor Hussain P.W. 11 and Faryad P.W 12. The appellant ran away taking Chhuri with him. On the alarm raised by Ghulam Haider, people followed the appellant to apprehend him. Amjad Ali P.W. 9 and Mukhtiar (not produced), who were passing from Street No. 11, overpowered and apprehended the appellant. They snatched blood-stained Chhuri Ex.P3 from him and brought him back to the place of occurrence. Ghulam Haider then left for the police station to lodge the report.
After recording the FIR, Akbar Ali ASI, P.W, 13 came to the spot. He found Sadiq appellant in the custody of Amjad.Ali P.W. 9, Mukhtiar (not produced) and others. He arrested the appellants and removed blood-stained shirt Ex. P4 and blood-stained Shalwar Ex.P 5 from his person and took them into possession vide memo Ex.PF attested by Amjad Ali P.W.9 and Mukhtiar (not produced).
Mukhtiar produced blood-stained Chhuri Ex.P.3 snatched from Sadiq alias Rehra appellant before Akbar Ali ASI, who took it into .Possession vide memo Ex.PE attested by the same witnesses. The Serologist Report reveal that Chhuri Ex.P.3, Shirt Ex. P4 and Shalwar Ex.P.5 were stained with human blood.
6. On 7-10-1982 Dr. Muhammad Ajmal Mian conducted post-mortem examination on the dead body of Muhammad Ramzan. He found following injury on his person:- "A stab wound 5 c.m. x 2 c.m. x chest deep situated on the front of left side of chest at 11.00 o'clock position of left nipple, 3 cm. Away and directed towards the centre of chest cutting left chest wall, left pleura, left lung, pericardium, upper end of heart (aorta), pericardium and right cavity through and through passing through the inter-space between left second and third ribs and cutting both of them through and through."
On internal examination he found that ribs, pleura, right and left lungs and pericardium were cut.
In his opinion, the death was due to shock and haemorrhage resulting from injury which was ante- mortem and sufficient to cause death in the ordinary course of nature. The injury was caused with sharp-edged weapon. The duration between the injury and death was immediate whereas between death and post-mortem was about 18 hours.
7. To prove its case prosecution produced 13 witnesses. Ghulam Haider P.W. 10, Manzoor Hussain P.W. 11 and Faryad P.W. 12 have given the ocular account of the occurrence. They claim to have seen the appellant causing injury with his chhuri on the chest region of Muhammad Ramzan resulting in his death. Amjad Ali P.W.9 along with Mukhtiar had apprehended Sadiq appellant and snatched from him blood-stained Churri, at some distance from the place of occurrence. They brought the appellant back to the spot and kept him there till the arrival of the police. He supported the recovery of blood-stained Chhuri from the appellant and its subsequent production by Mukhtiar before Akbar Ali ASI. Ghulam Haider P.W. 10 has supported the alleged motive. Dr. Muhammad Ajmal Mian P.W.7 has proved the post-mortem examination report. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. The appellant did not deny causing the death of Muhammad Ramzan. He raised the plea of self-defence. In reply to question No.10 i.e why this case against you and why the P.Ws have deposed against you?", he pleaded: "The fact of matter was that the deceased and his family were known Ghunda in Mohallah Naseer Abad and were involved in various criminal cases. The deceased was trading in illicit charas. Etc., and for which he was challaned also. The deceased was carrying on the illicit business under the protection of his maternal-uncle Manzoor Hussain P.W., who is a police Razakar, and in connivance with the police post Jhang Bazar.
I informed Saghir Hussain Shah ASI of CIA, Faisalabad and a raid was conducted during which 40 grams of Charas was recovered from the deceased. At that time a bad character woman was also found in his company. The deceased was also addicted to liquor. The deceased, his father Ghulam Haider and his uncle Manzoor Hussain P.W. Suspected me for the abovesaid raid, and they felt aggrieved. A case under section 61-1-14 of Excise Act was registered against the deceased on 21-6- 1975. On the same date, a case under the Arms Ordinance was also registered against the deceased. Amjad Ali P.W. Was involved in similar cases. He was involved in a case under Excise Act on 5-2-1975 and was involved in a case of gambling in the year 1979."
On the day of occurrence, at about Assar time I had come out of my house and was proceeding towards the Rajbah, when I reached the place of occurrence, I was attacked by Muhammad Ramzan deceased, Mukhtar, Yasin, Younis, Bucher and also by Amjad Ali P.W. And they caused injuries to me with the Dandas with which they were armed. I had been making efforts to save myself and apprehending danger to my life, I picked. Up a chhuri from the shop of one Amin and inflicted a chhuri blow on the person of Muhammad Ramzan alias Bills deceased in exercise of my right of private self-defence of my person. Thereafter, I appeared before the police at police post, Jhang Bazar along with the same Chhuri. The police detained me and on the next day, I was sent to jail, I was having injuries on my person which I had pointed out to the police and narrated the occurrence as stated by me today but the ASI was in collusion with the complainant and he refused to prepare an injury statement or to record my injuries in the case diary. I was not even physically produced before the Magistrate when judicial remand was obtained. Later on, the Superintendent Jail carried out the checking parade and noticed the injuries on my person. I was sent for medical examination on 20-10-1982 and was examined at the DHQ, Hospital, Faisalabad with regard to my injuries."
In defence Abdul Rashid, Dispenser, DHQ, Hospital, Faisalabad, D.W. 1 was produced to prove the medico-legal report with-regard to the injuries found on the person of the appellant by Dr. Mumtaz Ahmad. Photostat copy whereof is Ex.DD. Mumtaz Hussain Moharrir Head Constable D.W 2 was examined to prove the FIRS Exs. DE to DL registered at P.S. Factory Area, Faisalabad against Amjad Ali P.W.9, Ghulam Haider P.W.10 and the deceased under various offences. Ex. DE is the photostat copy of FIR No. 91 dated 6-2-1975 under section 6 of the Excise Act against Amjad Ali P.W.9.-Ex. DF is photostat copy of the FIR No. 186 dated 24-3-1979 under Section 6 of the Gambling Act against Amjad Ali P.W.9. Ex.DG is photostat copy of FIR No. 437 dated 21-6-1975 under Section 13 of Arms Ordinance against Muhammad Ramzan deceased. Ex.DH is photostat copy of FIR No. 439 dated 21- 6-1975 under section 6 of the Excise Act against Muhammad Ramzan deceased. Ex. DI is photostat copy of FIR No. 665 dated 13-9-1978 under section 342, P.P.C This report is against Mst. Sharifan and others. Ex.DK. Is photostat copy of FIR No. 691 dated 18-8-1980 under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 against Muhammad Ramzan deceased. Ex. DL is photostat copy of FIR No. 267 dated 31-5-1981 under section 326/146/149 P.P.C. Against Ghulam Haider complainant, his wife Mst. Sharifan and others.
9. Learned counsel for the appellant relied on the circumstances of the registration of cases under various offences against Muhammad Ramzan deceased, Ghulam Haider and Amjad Ali P.Ws. To contend that the deceased was a man of bad character and belonged to desperade and dangerous criminal family and as such there was a reasonable possibility that he might have opened the attack on the appellant entitling him to the exercise of the right of self-defence extending to the causing of the death of the former. The learned counsel also submitted that the alleged motive having not been supported by any independent person has not been proved.
Conversely, the learned counsel for the State supported the judgment of the trial Court.
10. We have considered the arguments advanced by the learned counsel for the parties and have reviewed the entire evidence which has been produced by the prosecution, the statement of the accused appellant recorded under section 342, Cr.P.C., the defence evidence and the attending circumstances, carefully. We have not been able to persuade ourselves to agree with the learned counsel for the appellant. We find that the place of occurrence, the time of occurrence, and infliction of injury with chhuri by the appellant to the deceased, are the admitted facts of the case.
The prosecution and defence have, however, given different versions of. The occurrence. We propose to discuss prosecution case and its evidence more particularly, the ocular testimony first in order to come to an independent finding on its truth of falsehood. We will then consider the statement of the accused appellant recorded under section 342, Cr.P.C. And plea of self-defence raised by him in accordance with the guiding principles laid down by the superior Courts for the appreciation of evidence in such like cases. We find that it is a case of single accused, 'daylight occurrence and promptly lodged FIR wherein the name of the appellant, the weapon used by him, the manner of the occurrence, the names of the eye-witnesses and the motive for the commission of crime are mentioned. There is nothing in evidence to show that the FIR was not recorded at the time and place as it purports. It seems to us that the FIR Ex.PB is a genuine document, which can safely be used to corroborate the statement of its maker namely Ghulam Haider P.W.10.
11. Adverting to the crucial evidence, i.e. The coular account of the occurrence given by Ghulam Haider P.W 10, Mansoor Hussain P.W. 11 and Faryad P.W.12, we find that they are not interested witnesses. No doubt Ghulam Haider is father of the deceased and Manzoor Hussain P.W. 11 is his maternal-uncle but this relation in the absence of any motive on their part to involve the appellant falsely in the case, will not bring them to the category of interested witnesses. The house of Ghulam Haider is at a distance of 50/60 paces from the place of occurrence. Manzoor Hussain P.W.11 and Faryad P.W. 12 reside in the same locality and have also given plausible cause of their presence on the spot at the time of occurrence. Faryad P.W.12 is neither related to the deceased nor inimical towards the appellant. No animus, whatsoever, has been suggested to him. The eye-witnesses had seen the occurrence right from its origin. Their evidence is in consonance with probabilities and materially fits in with the rest of evidence. It does not suffer from infirmity such as material contradictions major discrepancies or dishonest improvements. We, therefore, do not see any reason to disbelieve them. Amjad Ali.P.W.9 who had apprehended the accused appellant along with blood-stained Chhuri and has also deposed about the removal of blood-stained clothes from his person is a quite independent witness having no ill-will against the appellant. He is not related to the deceased either.
12. We now advert to the version of the occurrence told by the appellant wherein he has raised the plea of exercise of right of private defence of person. His case is that he was attacked by Muhammad Ramzan deceased, Mukhtar, Yasin, Younas and Amjad Ali P.W.9, who were armed with dandas and had caused him injuries and that apprehending danger to his life, he picked up a chhuri from the shop of one Muhammad Amin and inflicted blow with it on the person of the deceased in exercise of his right of self-defence. According to him he was attacked because he gave information to Saghir Hussain Shah ASI, CIA Staff, Faisalabad as a result whereof raid wa3 conducted on the deceased and 40 grams of charas was recovered from him. In his statement recorded under section 342, Cr.P.C., he further stated that the police did not get him medically examined. The Superintendent Jail noticing injuries on his person got him medically examined. For the proper appreciation of the plea of self-defence of person, we have examined the entire evidence and circumstances at the close before arriving at a conclusion with-regard to the truth or falsity of the defence plea. We propose to place all factors favouring belief in the accusation in juxta position to the corresponding factors in favour of the plea of self-defence and the total effect will be estimated in relation to two questions, viz.
(1) Is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case? .
(2) If the answer to question No.1 be in the negative. Is there still a reasonable possibility that his explanation might be true so as to cast a reasonable doubt upon the prosecution case?
We have already discussed and believed the ocular account .Of the occurrence given by the eye- witnesses. The appellant did not care to produce any evidence with regard to the main occurrence although he could produce Muhammad Amin shopkeeper from whose shop he had allegedly taken chhuri with which he caused injury to the deceased. So much-so, the appellant did not produce Dr.Captain Mumtaz Ahmad, Medical Officer, who had medically examined him with regard to his injuries and issued medico-legal report Ex DD. Instead he produced Abdul Rashid Dispenser, who brought register containing the relevant M.L.R. Abdul Rashid Dispenser-has stated that Dr. Mumtaz Ahmad was working at Rural Health Centre Chak Jhumra. Strangely enough, nether Dr. Mumtaz Ahmad has been produced nor a case for the production of secondary evidence was made out. So much so Abdul Rashid Dispensar D.W.1 was not asked to identify the handwriting and signatures of Dr. Mumtaz Ahmad on the medico-legal report, photostat copy whereof is Ex. D.D.
Confronted with this situation, Mr. Aftab Farrukh, the learned counsel for the appellant frankly and rightly conceded that there is no option but to exclude this document from consideration. The appellant has also not produced Saghir Hussain Shah ASI to prove motive for attack on him. The defence plea is also not spelt out from the prosecution case and the surrounding circumstances.
So, there can be no manner of doubt that answer to question No.1 must be in the negative. As for question No.2, we feel that on the facts of the present case, there is no reasonable possibility of the defence version being true. The eye-witnesses namely Ghulam Haider, Manzoor Hussain and Faryad P.W.12, who have been found absolutely dependable, had seen the occurrence from the very start. They have refuted the suggestion of attack by the deceased and others on the appellant at the time of occurrence. The Investigating Officer has also denied the presence of injuries on the person of the accused appellant at the time of arrest. The Investigating Officer has also denied the suggestion of the appearance of the appellant at the police post along with Chhuri. The conduct of the appellant that after infliction of injury he ran away from the spot along with chhuri also gives reflection of his guilty mind. The circumstances certainly negate the existence of reasonable possibility of the defence version being true. The fact that the deceased and other members of his family were involved in different cases does not suggest that the attack was opened by deceased or that he was aggressive. There is nothing on record to show that the raid by the police on the deceased was conducted on the information given by the appellant or that the deceased and the complainant were suspecting the appellants as informer of the offences with which they were charged, For all these reasons, we are convinced that the occurrence took place in the manner as alleged by the prosecution and there is no reasonable possibility of the defence plea being true. It appears that it was a case of pre-meditated attack. The appellant had come to the place of occurrence after having armed himself with Chhuri. The kind of weapon, the nature of injury, the force with which the blow was given, the seat of the injury selected by the appellant and the immediate death resulting from that injury, show that he had no intention other than that of killing the deceased. On the facts found proved, the murder of deceased in this case was an act of vengeance falling outside exemption 2 to section 300, PPC.
13. This brings us to the question of sentence. Bearing in mind all the circumstances surrounding the guilt. We do not find any mitigating extenuating circumstance in favour of the appellant to award him lesser penalty. The involvement of the deceased in cases of charas, liquor, Arms Ordinance and hurt can hardly be treated as mitigating circumstances as no one has licence to kill persons of bad character or even criminals.
For what has been said above, the appeal filed by the appellant is dismissed and the sentence of death is confirmed.