1. HAMOODUR RAHMAN, C. J-This appeal, by special leave, is directed against a judgment of a Division Bench of the former High Court of West Pakistan, Lahore Seat, whereby the convic--tions and sentences of the appellant under sections 302 and 307, Pakistan Penal Code, were maintained.
2. The appellant, who is an ex-Assistant Sub-Inspector of Police, was convicted for having committed the murder of his wife on the 25th of July 1966 at about 10-30 a.m. In Mohallah Chah Fateh Khan at Bhawalpur Town, as also for having made a murder--ous assault on one Lal Din, a rickshaw driver, at the same time and place. He was sentenced to death on the first count and to five years' rigorous imprisonment on the second count in the event of the sentence of death not being confirmed by the High Court.
3. On appeal and reference, the High Court, as already stated, upheld the convictions and maintained the sentences of the appellant.
4. He then came up to this Court for special leave to appeal, but leave was at first refused on the 24th of February 1970. There-- after, he applied for a review of the order of this Court, and the Court, on the 18th of March 1971, acceded to his request, on the ground that the discovery of a "wad" (card board disc) of a L. G. Cartridge seized from near the dead body of the appellant's wife could not have come from any shot fired by the appellant himself, as he was firing, according to the prosecution witnesses themselves, from a distance of about 80 to 85 feet. It could not also, as opined by the High Court, have come from any shot fired by Sajjad A.I, brother of the deceased, at the appellant, because, he, on his own admission, had used a No. 4 cartridge. In the circumstances, it was contended that the possibility of someone else, other than the appellant or Sajjad A.I having fired at the deceased, had not been satisfactorily excluded.
5. Leave was granted to consider whether "the possibility of the "wad" seized by the investigating agency belonging to a cartridge used by someone else other than the petitioner or Sajjad A.I has been satisfactorily excluded upon the evidence in this case".
6. The appellant, who was previously married and had several children from his former wife, it is said, married the deceased some 5 or 6 years before her death, when he was still in service. The inevitable result of such a marriage was that the two wives fell out and the deceased left the appellant's house a couple of months prior to the incident. On a previous occasion, about a year earlier, too the deceased had similarly left the house of the appellant and was living with her mother Mst. Khalida at Paposhnagar, Karachi. From there she was forcibly abducted by the appellant, and a case was registered in connection there with at Nazimabad Police Station.
7. Karachi. The case was later, cancelled and a counter-complaint was got filed by the deceased under section 107/150, Criminal Procedure Code, against her own mother and her step-father in the Court of a Magistrate at Gujranwala, where the appellant used to reside, on or about the 4th of August 1965.
8. This was not surprising after the appellant had managed to take her back from her mother's house; but, on tie second occasion, things were more serious, for, after rejoining her mother at Bhawalpur, the deceased, on the 11 of May 1966, actually filed a suit for the dissolution of nor marriage in the Family Court at Bhawalpur on a number of grounds, which it is not necessary to recapitulate at this stage. Suffice it to say that this case was fixed for the 25th of July 1966, but the appellant sent his written statement by post on the 21st of May 1966, denying all the allegations and in turn charging that the suit had been instigated by the parents of the deceased who wanted to sell her away to someone else.
9. On the 25th of July 1966, both parties appeared in Court, but the case was adjourned to the 5th of September 1966. The deceased was on this occasion accompanied not only by her mother and her step-father but also by her brother Sajjad Alt (P. W. 17) who carried a 12 bore licensed gun with him, it is said, as a precautionary measure. In the Court, it is further alleged, the appellant again repeated his threat that he would teach them a lesson for having filed the suit for the dissolution of the marriage.
10. On the adjournment of the case, however, the deceased and her party left the Court premises in two cycle rickshaws: In the first rickshaw sat her mother Mst. Khalida (P. W. 13) and her step-father Abdul Shakoor (P. W. 14). This rickshaw was driven by Qamar Din (P. W. 16). In the second rickshaw sat the deceased and tier brother Sajjad A.I (P. W. 17). This was drived, by Lai Din (P. W. 15). It followed the first rickshaw, but as the two rickshaws turned round the corner of the lane known as Gandi Gali only a few yards away from the house of Mst. Khalida, the appellant, who was already waiting at the corner of the road under a telephone post, fired at the, deceased. The deceased fell down from the rickshaw. At this stage he fired a second shot and the deceased fall down dead.
11. As the appellant was trying to re-load his gun, Sajjad A.I, it is said, fired at him and injured him. He tried to run away, but Sajjad A.I gave chase. He could not, however, apprehend him. Sajjad A.I, thereafter, went away to his house from there and did not return to the spot until the following day when he appeared before the police.
12. One of the pellets from the gun of the appellant, it is said, also hit the rickshaw driver Lai Din on his buttock, another pellet hit the back of the rickshaw.
13. Finding her daughter dead, lust. Khalida proceeded towards the Kotwali Police Station, Bhawalpur, but met Sub-Inspector seed Akhtar (P.V. 22) near the house of one Abdul Haq Shah; a Shahi Bazar not very far away from the spot. She made her report (Exh. P. B) to him at about 11-40 a. m, and this was later registered as Exh. P. B./ I at the police station at about 12, noon by Ghulam Sarwar, A. S.1.
14. (P. W. 4).th Sub-Inspector Saeed Akhtar along with another Assistant Sub-Inspector Abdul Hamid, who was on his way back from the Court, hastened to the spot which was only about 100 or 150 yards away from the house of Abdul Haq. When they reached there, they saw A. S. I. Sadiq A.I (P. W. 5) already present there. The latter was preparing the injury statement of Lai Din. Lai Din was sent to the hospital and A. S. I. Sadiq All was deputed to search for the appellant. The search proved futile, as the appellant had in the meantime already been taken under arrest by A. S. I. Muhammad Jamil (P.
15. W. 9) and removed to the hospital (B. V. Hospital, Bahawalpur).
16. Sub-Inspector Saeed Akhtar meanwhile continued with his investigation and recorded a supplementary statement of Mst. Khalida, as she had not mentioned about the injuries of Rick-- shaw Driver Lai Din, in her first information report. He also recovered blood-stained earth, two pellets, one wad (Exh. P. 6/1-3) and a pair of shoes belonging to the deceased (Exh. P. 6/1-2) from the place where she was lying. The right shoe had, it is said two boles in its sole. The rickshaws were also taken inter possession.
17. Blood-stained earth was also seized from the place where the appellant was allegedly standing at the time of firing the shots. This place, as already stated, was about 85 feet away from the dead body. From this place, an attache-case (Exh. P. 27) containing a revolver licence, a bedding, some rather article, including two empties were also seized (vide memo. Exh. P. E.).
18. The statement of the prosecution witnesses was also recorded .At this place and from there the Sub-Inspector went to the -hospital where he found the appellant already under treatment and in custody. Thereafter, the supplementary statements of, Lai Din, Qamar Din and one Ismail were also recorded at the hospital with a view to fixing the identity of the assailant (appellant).
19. According to Muhammad Jamil A. S. I. (P. W. 9) he was at about 10-30 a. m., present at the B. V.
20. Hospital, Bahawalpur, n connection with some other investigation when he learnt from Foot Constable Faqir Muhammad that a man after having murdered his wife was running away armed with a gun. He: immediately set out in pursuit of the accused along with the Foot Constable, and when he reached near the October, Post on Ahmadpur East Road, he met two other persons, Muhammad Yar and Rahmat (P. Ws. 7 and 8) and with their 'help succeeded in locating the appellant sitting under a shisham, tree by the side of a jowar field, holding a double-barrel gun 4Exh. P.7). At this time, four live cartridges were also recovered from the back pocket of his trousers and four live cartridges from the right pocket thereof. In addition a pistol (Exh. P. 9) and a bandolier (Exh. P. 11) were also seized from him. The magazine of the pistol contained seven live bullets while the bandolier contained 20 live bullets. He took him to the B. V. Hospital where his blood-stained clothes were taken into possession and his statement was also recorded.
21. Sajjad A.I (P. W. 17), as already stated, appeared before the Police on the following day along with his licensed gun (Exh. D. 1) and its license (Exh. D.2), which were taken into possession. His statement (Exh. P. Z) was also recorded.
22. Enquiries were further made at Al-Hilal Hotel where the appellant was said to have stayed the night before and as a result, of these enquiries, Shabbir Ahmad (P. W. 18), the driver of the Motor- Rickshaw in which the appellant, it is alleged, travelled from the Court premises to the place from which be fired at the deceased, was also traced and his statement recorded at about 5 p. m. Of the following day.
23. After the post-mortem examination of the deceased, seven mutilated pellets recovered from the body were also taken into possession. The two empties seized from the place, where the appellant was allegedly standing at the time the shots were fired, and the pellets were all sent to the Forensic Laboratory. Lahore. The blood-stained clothes and the blood-stained earth were also sent to the Chemical Examiner.
24. The Ballistics Expert (P. W. 12) in his report (Exh. P. BB.) found that the two crime empties (C. 1 & C. 2) were fired respectively from the right and left barrels of the shot-gun (Exh. P. 7) seized from the appellant at the time of his arrest. He could not, however, give any definite opinion with regard to the mutilated pellets removed from the dead body or with regard to the two pellets and the "wad" recovered from near the dead body.
25. The Chemical Examiner reported that the clothes and the earth had been found by the Serologist to be stained with human blood.
26. The medical examination of the deceased revealed as many as 14 injuries, but unfortunately the doctor had mad--- no attempt to classify these injuries or to point out as to which of them were wounds of exit and which of entrance. The High. Court, however, by reference to the pictorial diagram, managed, to discover that these were altogether 21 and not 14 injuries on the body of the deceased and as to which of these were wounds of exit and which were wounds of entrance. But the prosecution, we regret to observe, made no attempt to have these matters clarified either by further examination or re-examination of the doctor. Hence the entire defence is now sought to be built up mainly on the alleged discrepancies between the medical evidence and the recoveries ore the one hand and the oral testimony on the other.
27. But before we come to the points raised by the defence, we have t o ascertain as to what was the earliest position taken up by the appellant himself. It appears that while he was in custody, the appellant, on the 2nd of August 1966, at about 9 a.m., purported to lodge a counter-report from jail to the following effect: - It will be noticed that in this report his case was that, while he was returning from the Court, the brother and step-father of the deceased followed him, and in front of the office of the Municipal Committee the brother fired two shots at him one after the other and it was only in reply or in retaliation that the appellant fired in self-defence. According to him the deceased was killed by the shots fired by Sajjad A.I (wrongly described as Sajjad Hussain) and Shakoor, because, they were aware that she wanted to live with him. After he was hit by the shots fired by Sajjad he tried to run away but fell down unconscious after going a little distance and from there he was taken in that unconscious condition to the hospital.
28. The appellant was defended very ably throughout. Before the trial Court he was represented by two learned counsel, namely, Ch. Muhammad Shafiq and Ch. Muhammad Aslam. In the High Court, Mr. M. Saleem assisted by Mr. Sana Ullah Bajwa represented his case, and before us he has been repre--sented by Mr. Manzoor Qadir. Almost every defence available has been taken on his behalf and full advantage has been sought to be taken of every infirmity is the prosecution case which was supported not only by three completely independent and unrelated witnesses but also by a very strong piece of circumstantial evi--dence furnished by the matching of the empties with tile licensed gun of the appellant recovered from his actual possession. Nevertheless the High Court, after an exhaustive and detailed analysis of each and every point urged in support of the defence case, came to the conclusion that the guilt of the appellant had been established beyond any reasonable doubt.
29. It may also be mentioned here that at each stage full advantage has been sought to be taken of the unsatisfactory manner in which the medical evidence has been recorded. It had, first been suggested that the medical evidence completely belles the prosecution case, for, the injuries on the back of the deceased could not have been caused if she was sitting in the rickshaw at the time the shots were fired. Similarly, the injury on the buttock of Lai Din the Rickshaw Driver, could not have been caused if he was in front of the deceased. The injuries on the breast of, the deceased were also inexplicable upon any theory propounded by the prosecution.
30. The large number of injuries caused and the number of pellets recovered also, it is argued, demonstrated that the prose--cution witnesses were lying when they said that all these injuries were caused by only two shots fired using L. G. Cartridges.
31. An L. G. Cartridge, it has been demonstrated in Court, contains only six pellets and, therefore, the total number of, pellets in 2 L. G. Cartridges could only be 12, and 12 pellets could not possibly cause 21 injuries, as depicted in the pictorial diagram. Again 7 pellets having been recovered from inside the dead body and 2 pellets from near the dead body, only 3 pellets could have passed through and through the body. The pellets that were recovered from the body could not have caused any exit wounds, nor could the pellets recovered from near the dead body have caused any injury at all on the deceased. Therefore, fourteen Injuries could not conceivably have been caused by three pellets going through the body, under any reconstruction, even if, as suggested by the prosecution, some of the pellets had caused more than one wound of entrance. If, in addition to this, the injury on Lal Din is taken into account, then we are left with only two pellets, which are unaccounted for.
32. The suggestion, therefore, is more than plausible that more than, two shots must have been fired. If so, then by whom?--The number of shots fired by the appellant are fixed by the recovery of 2 empties from the place where he was said to be standing. No other empty was recovered from any other place or from inside the barrels of the appellant's gun. The other shots must, therefore it is suggested, hive been fired either by Sajjad A.I or this step-father Abdul Shakoor or someone else.
33. There is, of course, no evidence that Abdnl Shakoor was armed with any kind of weapon. Nor is there anything on the record to indicate if anyone else was present there with a gun. Therefore, Sajjad A.I must have fired more than one shot and one or more of these must also have hit the deceased. It is for this reason that he ran away immediately after the incident and was not persuaded to return until the next day to give his statement to the Police. Such conduct on his part clearly suggested a guilty conscience.
34. The theory that has been put forward before us is that Sajjad is obviously telling a lie when he says that he used a No. 4 cartridge, because, none of the injuries found on anyone of the victims or the appellant could have been caused by a No. 4 cartridge. He too, therefore, was using an "L. G." cartridges and the presence of the "wad" (card-board disc) with letters `L. G." printed on it is significant. It confirms that both sides were firing L. G. Cartridges. The "wad" from the shot fired by the appellant could not possibly have travelled 80 or 85 feet and, therefore, the "wad" recovered from near the dead body could only have come from the weapon of Sajjad A.I.
35. It is not unlikely it is urged, that seeing the appellant standing in the corner of the road the deceased jumped out of the rickshaw and tried to run towards her husband. Seeing this Sajjad A.I opened fire on her and/or the appellant. The appellant fired back in self-defence and it may well be that the deceased also came into the line of the cross-fire between the two, namely, Sajjad A.I and the appellant, and received so many injuries.
36. Alternatively, it is suggested that Abdul Shakoor too was armed and he also joined in the firing when he saw the deceased running towards her husband. Some of the shots on the breast of the deceased could have been received as a result of the shots fired by Abdul Shakoor.
37. Let us now examine these theories. So far as Abdul Bhakoor's joining in the fray, is concerned, this theory can be ruled; but straightaway, because, there is nothing on the record to show that he was armed with any kind of weapon. No witness hart said so although the suggestion was put to him that he and Sajjad All had pursued the appellant and fired at him "with the result that Mst. Bint-e- Rasool (the deceased) having run towards him, she was also fired at and murdered while the accused was injured." In any event, even assuming but not admitting that he was armed and that he too fired, the possibility of any of his shots hitting the deceased can be safely ruled out, because he was in a rickshaw in front of the deceased. If he fired from that direction, the shots would have hit the deceased in the front; but they did not do so. All the shots found on the deceased were fired from the left side. The shots, if any, fired by Abdul Shakoor, would, on the other hand, have entered from the right side; if the suggestion be correct that the deceased was running towards. Her husband when she was hit.
38. The next theory is that the deceased was killed by the shots fired by Sajjad A.I and not by the shots fired by the appellant. Though this appears at first sight to be attractive it cannot bear closer scrutiny. It is quite possible that, on seeing the appellant waiting at the corner of the road, Sajjad A.I,-- apprehending danger from him, may have opened fire at then appellant and the appellant fired in return. At this stage the deceased seeing her husband being fired at might have jumped out of the rickshaw and tried to run towards her husband or to stand in between to prevent her brother from firing at her husband and so falling a victim to the cross-fires of both her brother as well as the appellant. In such a situation, however, benefit will accrue to the appellant only if it can be shown that Sajjad A.I fired first and the appellant only fired in self-defence. If in the course thereof he hits some other innocent stander-by, the question arises as to whether he can be convicted for the: murder of that person.
39. It is said that he cannot be convicted, because, he never Intended to kill such a per3on but intended to prevent some one also killing her. But for the contributory negligence of the person actually killed, she would not have been placed in this difficult situation. Contributory negligence by a person whose death is caused is by itself no defence, even if death could not have occurred without such contributory negligence, but If the act which results in the death is itself not unlawful the it will not become so merely because someone else accidentally comes to receive the brunt of the act. If one, without any justification, intends to kill A and in so doing kills B that will, clearly be murder but if the attack on A was justified then it would not become unjustified if B suddenly throws himself before A In order to protect him. It is necessary, therefore, first to consider whether the plea of self-defence sought to be set up by the appellant receives any support at all from the evidence on the record: Learned counsel for the appellant, even after the close of his arguments, has strived to counter by a written petition, the contention advanced on behalf of the State that the appellants could not have fired in self-defence after receiving the injuries that Ire did actually receive.
40. The injuries on the appellant were as follows: - "(1) Multiple punctured wound round about quarter Inch circular into skin deep on the left shoulder and upper arm. X-ray was advised.
(2) Two punctured wounds in the middle of chest quarter inch circular into skin deep. X-ray was advised.
(3) One punctured wound quarter-inch circular on the bridge of the nose above its middle. X-ray advised.
(4) One punctured wound quarter-inch circular on the right aide of upper lip. X-ray was advised.
(5) Complains of absence of vision in the left eye-pupil dilated and fixed. Definite opinion will be given after the opinion of the Opthalogist is received.
41. According to the report of Dr. Abdus Samad, Registrar, Eye Department B. V. Hospital, Bahawalpur, dated 25th July 1966: - Left lid Chemosed.
42. Conjunctive-sub-conjunctival haernorrage-left eye-pupils---slightly dilated, non-reaching to light-left eye.
43. Finding--At present nothing abnormal detected. Definite opinion was to be given by him after two weeks. This report in Exh. PQ/I signed by Dr. Abdus Samad whose signatures I recognise. According to X-rays report Exh. P. R. No nosal bony injury was found. There is Radio-opaque dense foreign body seen in the region of or but and maxillary home. Only Radio-opaque foreign bodies are seen in the soft tissues of the left shoulder joint. According to the above-mentioned X-ray reports no grievous injury was found. According to Exh. P. S. Radio-opaque dense foreign body in the region of left orbit of the shape of a pellet seen. Two Radio-opaque foreign bodies in soft tissues around left ramhs of mandible. One Radio-opaque foreign body dense in the region of left maxilla. X-Ray reports Exh. P. R. And Exh. P. S. Are signed by Dr. Maqbool Ahmad Hasan Siddiqi, Medical Superintendent, B. V. Hospital, Bhawalpur."
44. 'If such is the nature of the injuries caused to the appellant by the shots by Sajiad A.I, then can it be said that he would still have been in a position to fire any retaliatory shot?--The learned counsel for the State, has taken pains to point out that the medical evidence also reveals that there were 26 pellet injuries on the appellant and that the appellant's own version is that soon after he received these injuries he fell unconscious. It is not possible, in the circumstances, to accept that he could have been in a position to fire the retaliatory shots in self-defence after receiving such an injury.
45. The shots fired by him, therefore, must have been fired before he received his own Injuries.
46. Learned counsel for the appellant next points out that the very fact that 26 pellet injuries were found on him would seem to Indicate that Sajjad, who was also using L. G. Cartridges, had fired more than one shot and it may be that the injury may be as a result of the last shot and not the first or earlier shots. This theory again is unacceptable because it still proceeds on the premise that only one shot hit him. If other shots had missed the appellant corresponding pellet marks would have been found on the walls on the Municipal, Committee building or on some other object on the other-- side of the appellant. Nothing of the kind was discovered. Therefore, it seems to suggest that all the shots fired by Sajjad A.I found their mark and hit the appellant. In such a situation, if the appellant was hit first, then it would have been impossible for him to fire back in retaliation. At any rate, if Sajjad A.I had used a double-barrel gun; the gun (Exh. D. 1) seized from him was a double- barrel gun; then he could only have fired at most two shots. If he used L. G. Catridges, then two shots would not have produced 26 pellet injuries. Furthermore, since no empties were recovered from near the rickshaw or the dead body, it would seem to suggest that Sajjad A.I never unloaded his gun. It is difficult, therefore, to accept the-- contention of the learned counsel for the appellant that Sajjad A.I must have fired several shots of which, may be, the last, hit and incapacitated the appellant.
47. Again looking at the injuries on the person of the deceased, we are inclined to agree with the Courts below that the shots must have come from the left side and hit her first on her chest from the left side and then, after she toppled over, then second shot came and hit her on the knee, groin and buttock. The shots that hit her wet thus the shots that came from the, gun of the appellant. The shot or shots of Sajjad A.I could not possibly have hit her on the breast from the left side. They could only have hit tier on the back.
48. The theory that Sajjad A.I must have fired several shots and only the first shot hit the appellant giving him sufficient time to fire in self-defence, is untenable, for the additional reason, that if that had been the position, there would certainly have been some injuries on Sajjad, because, the first target of the appellant would have been Sajjad and not the woman. The shots on her back were only on the buttocks and the knee and these were not fatal shots. It is difficult, therefore, to accept that the deceased could have died as a result of any shot fired by Sajjad A.I.
49. A great deal has next been said about the L. G. "wad" (card-board disc) discovered from near the dead body. It is true that normally a cartridge manufactured by a manufacturer of repute has the calibre or number of the cartridge printed on the top disc; but since there is no evidence as to the make of the cartridge used by Sajjad A.I, we are not in a position to say that he definitely used an L.
50. G. Cartridge and that the: 'wad' was from his cartridge, because, if he had fired from: an L. G.
51. Cartridge from a close range at the deceased, the chances were that the disc would have been inside the wound and not lying outside near the dead body. This too would seem to suggest that the target of Sajjad was not the deceased but the appellant. Even assuming that the disc came out of a cartridge fired by Sajjad it does not cast such a doubt on the prosecution case that it must be rejected in toto. All that it shows is that Sajjad A.I was not telling the truth when No. 4 cartridge.
52. It could not possibly have come out of any shot fired by Shakoor because the distance between the two rickshaws was about 12 feet and the disc could not have travelled that distance unless there was strong wind to carry it. There is no evidence that it was a windy day.
53. Learned counsel has also severely criticised the conduct of Sajjad A.I immediately after the incident and has suggested that such conduct can only be explained on the basis that Sajjad A.I ran away due to the qualms of his own guilty conscience. It may be that he was under the mistaken belief that his shot o: shots may have hit the deceased as well; but, as we have pointed out earlier in this judgment, the death of the deceased could not possibly have resulted from any shot fired by Sajjad A.I from behind. The injuries caused to the deceased from behind were on her buttocks, the left groin and the left knee joint. These could not have been proved fatal. The fatal injuries were those, which were caused from the front. The shots of Sajjad A.I, therefore, could not have caused the fatal Injuries.
54. Similarly, assuming but not accepting that the step-father Abdul Shakoor was also armed and he too fired his weapon, then his shot too could not have caused any one of the injuries found on the deceased, because, that shot would have come from the right side. The doctor's opinion, however, with regard to the injuries on the deceased, is that the direction of firing was only from one side, namely, the left. The possibility of the deceased having been killed either by a shot fired by Sajjad or her step-father Abdul Shakoor, is thus clearly, excluded.
55. The contention that 26 or 27 pellet injuries on the appellant himself, as found by the doctor, could not have been caused only by the shot/shots of Sajjad A.I, is based upon the assumption that he used either an L. G. Cartridge or a No. 4 cartridge. An L. G. Cartridge contains, as earlier stated, six pellets and a No. 4 cartridge contains nine pellets. The size of the Injuries on the appellant were all uniform, namely, 1/4 each. This would suggest that whoever fired on the appellant used cartridge of the same calibre. Again, the size of the injury does not necessarily, fix the size of the pellet used, because, the aperture of the injury depends to a great extent on its location. If the injury is on a soft tissue, it is likely to be smaller than the pellet used, but if it is on a bony surface, then it may well be of the same size or even larger. In the present case, the Injuries on the shoulder and chest of the appellant were skin-deep and on the nose and lip superficial. None were grievous. It appears, therefore, that the pellets struck him from the side. In such a situation, the size of the injury will not necessarily represent the true calibre or the true size of the pellet used nor will the number of injuries determine the actual number of the pellets that hit the appellant. The same pellet may have caused more than one aperture by re-entering the skin and then again going out. It is difficult therefore, to accept the doctor's version that there were 26/27 pellet injuries on the appellant.
56. Unfortunately, the medical evidence, as already stated, is not clear on any point. He evidently did not have much experience of medico-legal examinations of fire-arm wounds. His evidence leaves much to be desired. His examination and cross---examination also do not appear to have been directed towards eliciting the necessary information regarding the nature of the wounds, their directions or their points of entry and exit. It was with great difficulty that the High Court could after examining the pictorial diagram determine some of these points. We have also tried to do so but the tattered state in which they are at present have prevented their correct deciphering, 8e that as it may we find it difficult, therefore, to place much reliance on this medical evidence. Nevertheless, the suggestion that the appellant must have been hit both by Sajjad All as well as Abaci Shakoor cannot be accepted, because, if that had been the position, then it would have been impossible for him to use his gun, as he admits to have done, after receiving the injuries, in self-defence. Again if this suggestion be correct, then our view that the appellant must have fired the first shot which hit the deceased from the left side on the breasts and the mandible appears to be more consistent and probable, rather than the defence suggestion that the appellant fired only in self-defence after he had been fired at either by Sajjad A.I or Abdul Shakoor. The running away of Sajjad All, therefore, has neither any important bearing in the case nor does it demolish the prosecution case, as suggested by the learned counsel.
57. Learned counsel's next contention that Mst. Khalida, the mother of the deceased, was not a person whose antecedents could inspire any confidence in her word of mouth appears to find considerable support from the evidence on the record but even so, if we exclude the evidence of Mst. Khalida (P. W. 13), Sajjad A.I (P. W. 17) and Abdul Shakoor (P. W. 14), we are still left with the eye- witness account of Lal Din (P. W. 15), Qamar Din (P. W. 16) and Shabbir Ahmad (P. W. 18). These are three absolutely independent and unrelated witnesses who have no concern at all with the warring parties in this case.
58. Lal Din actually received an injury in the course of this incident. His presence is thus confirmed and we can see no reason as to why any of these three eye-witnesses should, leaving out the real culprit, rope in an absolutely innocent person in a daylight incident in which one of teem actually received an injury. The suggestion that because they are rickshaw drivers they must be under the influence of Police, is much too nebulous to be accepted. There is no suggestion, to them that they were suborned to give false evidence by the police or that they were in any way beholden to the police or inimical towards the appellant.
59. The contention that the evidence of Lal Din (P. W. 15) does not fit in with the prosecution story is equally without any substance. He has substantially supported the prosecution case and his lengthy cross-examination has not elicited any material contradiction.
60. Nothing has been brought out in his cross-examination to affect his credibility. There is no reason, therefore, to disbelieve this witness. His evidence fixes beyond any doubt that it was the appellant who fired first. This story is fully corroborated by the other two rickshaw drivers and has the ring of truth about it.
61. Lastly, learned counsel for the appellant has contended that since the High Court has found as a fact that the F. I. R. Was "recorded at the spot" and that the manufacturing of the holes in the shoes seized from near the dead body were "crude fabrications", the only inference possible from these findings was that the Police had been attempting to fabricate a case which could not be relied upon even with regard to the other details supported by the prosecution witnesses. We regret our inability to accept this contention, because, in the present case, the oral testimony of the three independent eye-witnesses corroborated by the matching of the empties with both the barrels of the gun recovered from him, the injuries on his person and his own admission that he participated in this incident, is more than sufficient to bring home the guilt to him, 49 has been found by the Courts billows without any shadow of doubt. We cannot overlook such direct testimony merely on the basis of conjectures and surmises sought to be built up on the basis of isolated discrepancies in the prosecution evidence with regard to details.
62. It remains now to consider the last contention advanced on behalf of the appellant that at worst this is a case of culpable homicide not amounting to murder-an offence only under section 304, Part 1, Pakistan Penal Code. There is no basis for this submission at all. Either the appellant had the right of self-defence or he did not. If such a right did accrue to him, then, as we have already pointed out, there was no question of his exceeding that right, in the facts and circumstances of this case. But since we have come to the conclusion that such a right did not accrue to him and he fired first at the deceased, and Sajjad A.I and/or Abdul Shakoor fired at him oily in protection of the deceased in exercise of the right of private defence of the person of the deceased, the question of the offence being only culpable homicide not amounting to murder does not at all arise. Having regard to the weapon used, the viral part of the body at which the shot was fired and the intent with which it was fired, we are clear in our mind that the offence made out is one under section 302, Pakistan Penal Code, and nothing less.
63. The conduct of the appellant as deposed to by the P. Ws. Clearly shows that he had the necessary motive as also the intent to kill the deceased. Otherwise he would not have threatened the deceased and her companions in the Court premises, be would not have hired a faster vehicle, taken a more devious route and asked the motor rickshaw driver to stop at this particular point just at the entrance to Gandi Gali, the place of residence of Mst. Khalida. Ail these circumstances clearly indicate that this was a pre-planned, premeditated affair and, therefore, the offence came under section 302, Pakistan Penal Code, and not under any other section.
64. The fact that more than 4 1/2 years have elapsed since his conviction is not a circumstance, which we can take into consideration. If the delay in the execution of the sentence can by itself be a sufficient ground for commutation then the appellant can approach the Executive authorities for such commutation; but, so far as this Court is concerned, it cannot, in the facts and circumstances of this case, recommend any such action.