RAJA AFRASIAB KHAN, J: - Javed Mahmood (44) son of Ghulam Rashid was tried by Mr. Abdul Hamid Khan Khatak, learned Additional Sessions Judge, Rawalpindi, for the double murder of Muhammad Hafeez (26) and Muhammad Hanif (37) sons of Ghulam Haider. By judgment dated 12-1-1987, the learned trial Judge convicted and sentenced Javed Mahmood to death on two counts under section 302, P.P.C. Plus a fine of Rs.20,000 or in default thereof to suffer two years' R.I. It was directed that in case of recovery of fine, it shall be paid as compensation to the legal heirs of the deceased in equal proportion.
The convict has appealed against his conviction and sentence. The learned trial Judge sent a reference under section 374, Cr.P.C. For confirmation of death sentence. The complainant Muhammad Rafique son of Ghulab Khan filed a revision praying that the compensation awarded to the legal heirs of the deceased may be enhanced. We propose to dispose of the above matters by this judgment. .
2. The prosecution story is that on 6-3-1985 at 6 p.m., Muhammad Rafique (complainant), his brothers-in-law Muhammad Hanif and Muhammad Hafiz (both deceased) were sitting in a shop at Lorry Adda, Taxila. Muhammad Ayub son of Akber Ali reached there on his Suzuki Van from Suzuki Adda Sarai Kalla. He disclosed that Javed Mahmood had abused him and also gave him a thrashing because he did not pay him Adda Tax and that he should take away his Suzuki from the Adda. On receiving the information, Muhammad Hanif, Muhammad Hafiz, Muhammad Ayub and Muhammad Rafique came to Javed Mahmood at Suzuki Adda with a view to lodge a complaint with him. Javed Mahmood was asked as to why he hurled abuses upon Muhammad Ayub and also gave him a beating. On this, Javed Mahmood abused Muhammad Hanif and Muhammad Hafiz and directed them to go away from the Adda immediately. In return, Muhammad Hanif also abused him. On this, Javed Mahmood took out a pistol from his Dabb and fired at Muhammad Hanif which hit him on the chest. He fell down. Muhammad Hafiz advanced in order to apprehend Javed Mahmood whereupon he fired a second shot which hit Muhammad Hafiz on his chest. He too fell down. The accused shouted that nobody should dare to come near him. He ran away from the Adda towards Sarai Kala The occurrence was witnessed by Muhammad Rafique, Muhammad Ayub and Shaukat Mahmood. Motive is that Muhammad Hanif was in possession of 2/3 shops at Suzuki Adda, which were owned by Javed Mahmood appellant. He got these shops vacated forcibly about 2/3 months ago and also occupied the Adda. Because of this grudge, on an earlier occasion too, there them. Muhammad Hanif and Muhammad Hafiz died on their way to hospital.
On statement,, Exh PA of Muhammad Rafique formal F.I.R. Exh. PA./1 was registered by Muhammad Farooq Moharrar H.C. P.W.2.
3. Muhammad Jalal-ud-Din, S.I. P.W.12 investigated the case. He recorded the statement Exh PA. Of the complainant. Injury statement Exh P.H. And inquest report Exh P.J. Of Muhammad Hanif,, deceased were prepared by him. Similarly, he prepared the injury statement Exh. P.K. And inquest report Exh. P.L. Of Muhammad Hafeez deceased. Dead bodies were sent to Civil Hospital, Rawalpindi for post-mortem examination under the care of Muhammad Asif and Muhammad Riaz Constables.
Two crime-empties and one bullet led were recovered from the spot and were taken into possession vide memo. Exh. P.D.
Last-worn clothes of Muhammad Hanif (deceased) Shalwar P.1, Shirt P.2 and Salooka P.3 and likewise, Shalwar P.4, Shirt P.5 and Salooka P.6 of Muhammad Hafeez deceased were taken into possession together vide memo. Exh P.C. The accused was arrested by the Sub Inspector on 8-3- 1985. Site plans Exh. P.B and Exh.P.B./1 of the place of occurrence were got prepared from Muhammad Ishaq, Draftsman. On 11-3-1985 the accused led to the recovery of pistol P.10 from the Tube well of his brother Muhammad Tariq situated in Jamil Abad, which was taken into possession vide memo. Exh P.E. The report of the Forensic Science Laboratory Exh P.N. Was tendered in evidence by the prosecutor.
4. Dr. Muhammad Tasneem P.W.11 on 7-3-1985 at 9-30 a.m. Conducted the post-mortem examination on the dead body of Muhammad Hanif and found the following injury on it: "A circular wound of entry 1 c.m. x 1 c.m. With blackened and inverted margins at the right side of the front of the chest in the mid-clavicular line 10 c.m. Below the mid-clavicle point and 5 c.m.
Above the right nipple. It was 11 c.m. Lateral to the mid-line on the right side. No wound of exit was present. Corresponding cuts to injury No. 1 were present over the Qameez and Salooka, which were marked, signed and handed over to the police. No other external injury was detected."
It was opined that death occurred due to haemorrhage and shock on account of injury No. 1, which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and was caused by a fire-arm. Probable time between the injury and death was immediate and between death and post---mortem examination was 16 to 20 hours.
On the same day at 11 a.m., the same Doctor conducted the post---mortem examination on the dead body of Muhammad Hafeez and found the following injuries on his person: "1. A circular wound of entry measuring 1 c.m. x 1 c.m. With inverted and blackened margin at the left side of the front of the chest 2.5 c.m. Above the interfamily line, 2 c.m. Lateral to the mid-line and 7.5 c.m. Medial to the left nipple.
(2) It was exit wound of injury No. 1. It was lacerated wound at the left side of the back of the chest 2 c.m. Lateral to the vertebral column. The wound was 1.5 c.m. x 1.5 c.m. And it was 8 c.m. From the tip of the left scapula. Corresponding cuts on the clothes to the injuries were present which were marked, signed and handed over to the police.
It was opined that death occurred on account of shock and haemorrhage as a result of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. Probable time between death and post-mortem examination was about 18 to 24 hours.
5. Eye-witness account,, was furnished by Muhammad Rafique P.W.4, Shaukat Mahmood P.W.5 and Muhammad Ayub P.W.6. The appellant made a detailed statement under section 342, Cr.P.C.
Claiming the exercise of his right of self-defence in firing at the deceased. He pleaded that he did not commit any offence. According to him, on 6-3-1985, he was earlier vacated by Muhammad Haneef and Muhammad Hafeez while pistol and a chhuri, him. He was frightened and consequently he came deceased chased him. Muhammad Hanif wanted to fire while aiming at him and as such he tried to snatch away the pistol from his hand and during this grappling having taken place between them, the pistol went of accidentally and hit Muhammad Hanif. On seeing Muhammad Hanif in an injured condition, his brother Muhammad Hafiz advanced towards him to attack him with his chhuri. He made an attempt to inflict an injury with the chhuri in his chest. He, therefore, genuinely apprehended an imminent attack from him and as such in the exercise of his right of self-defence, fired at Muhammad Hafeez as well. He stated that both the deceased came while armed with deadly weapons in his premises in order to kill him. He also disclosed that after the occurrence, he left the pistol of Muhammad Hafeez on the spot, which was later on taken away by the complainant party. He stated that he had no motive whatsoever to kill Muhammad Hanif and Muhammad Hafeez. In support of his plea, the appellant produced Shahzad alias Shada D.W.1, Dr. Ernest Lall D.W.2 and Sh. Abdul Rashid D.W.3. The learned trial Judge rejected the defence plea and while accepting the version of the prosecution convicted and sentenced the appellant as observed earlier.
6. Learned counsel contends that it is established that the appellant was justified in killing Muhammad Hanif and Muhammad Hafeez in the exercise of his right of self-defence. Learned counsel has attacked the evidence of Muhammad Rafiq P.W.4, Shaukat Mahmood P.W.5 and Muhammad Ayub P.W.6 contending that their evidence being interested is liable to be rejected. The learned counsel has relied upon the statements of Shahzad alias Shada D.W.1, Dr. Ernest Lall D.W.2 and Sh. Abdul Ras hid D.W.3 in support of his plea. The learned State counsel defended the conviction and sentence of the appellant. He maintains that the very statement of the appellant demonstrates beyond doubt that he has no right whatsoever to exercise his right of self-defence in face of facts and circumstances of this case.
7. We have heard the learned counsel for the parties at considerable length and have read the record with utmost care. The time,, date and place of occurrence are admitted by the appellant himself in his statement under section 342, Cr.P.C. He, however, asserts that it was the complainant party who came at his premises duly armed with pistol and chhuri and attacked him and as such he was justified to retaliate and kill the assailants in the circumstances detailed by him in his statement. It is undoubtedly a case of two versions. According to the prosecution, Javed Mahmood did not allow Muhammad Ayub to use the Suzuki Adda for parking his vehicle without having paid him Adda Tax. He was given abuses and beating by Javed Mahmood. The version of Muhammad Rafique complainant appears to be truthful and appeals to reason while the plea taken by the appellant is certainly false and has been fabricated with an ulterior motive to save his skin. The statement,, of Muhammad Rafique P.W.4 was substantially supported by Shaukat Mahmood P.W.5 and Muhammad Ayub P.W.6. These witnesses were subjected to lengthy cross-examination by the learned defence counsel but their evidence remained almost consistent and was not shaken. Their evidence is confidence inspiring and is worth reliance. It is established on record that on receipt of the complaint, Muhammad Hafiz, Muhammad Hanif, Muhammad Rafique and Shaukat Mahmood accompanied Muhammad Ayub. They reached the spot and made a complaint before Javed Mahmood as to why he abused and beat Muhammad Ayub. There is absolutely nothing wrong or unusual with this attitude of the complainant party. There is no evidence to show that they were armed. We, therefore, believe the prosecution version and reject that of defence, being afterthought and fabricated. The appellant deposed that he was sitting in his office when the complainant party came. If the defence version is accepted, on its face value, the complainant party could very easily finish the appellant in his office. The appellant states that Muhammad Hanif and Muhammad Hafeez (deceased) while armed with a pistol and a chhuri attacked him in his office. He further says that the complainant party chased him even outside his office. However, admittedly, no physical, harm whatsoever was done to the accused by the assailants both inside and outside his office. This shows that the complainant party was not armed at all. They simply came there to lodge a protest with the appellant. We believe that it was the appellant who might have been infuriated on lodgement of protest by the complainant about the earlier incident. The appellant thus had no legal justification whatsoever to commit the double murder. The site plan Exh. P.B. Shows that the occurrence took place at Suzuki Stand, which is owned by the Highway Department. Points No. 1 and 2 at the site plan are the places where murders took place. It further shows that the shops of the appellant are situated far away from the place of occurrence. The appellant, therefore, had no right whatsoever in law to attack and kill the two innocent people at the Suzuki Stand over a trifle. It appears that the appellant came out while armed with a pistol to teach a lesson to the complainant party over their protest. It is a case of single accused and also a broad daylight occurrence. After the murder of Muhammad Hanif and Muhammad Hafiz, pistol was admittedly with the appellant and he did not produce the weapon before the police voluntarily to prove his bona fides. Similarly, the chhuri, which was allegedly held by the deceased Muhammad Hanif disappeared mysteriously from the spot. All these circumstances do persuade us to hold that it was Javed Mahmood in fact who was armed with the pistol which was used by him in the commission of the crime. The appellant did not himself surrender before the police. He was arrested by Muhammad, Jalal-ud-Din P.W.12 on 8-3-1985 after two days of the occurrence. This circumstance also implicates the appellant with the commission of the crime. We have straightway rejected the defence plea of the appellant and as such we are not persuaded to discuss the evidence of D.W s. In detail. Suffice it to say that Shahzada alias Shada D.W.1 is a tenant of the appellant. He toed the line of the appellant while deposing evidence. He appears to us a wholly tutored witness. His evidence being highly interested cannot be accepted and as such is rejected forthwith. The remaining two witnesses viz. Dr. Ernest Lal D.W.2 and Sh. Abdul Rashid D.W.3 did not witness the occurrence. Their evidence, in our view, is altogether irrelevant. We, therefore, proceed to discard their evidence as well.
8. Conclusion of the above discussion is that the prosecution has successfully proved its case against the appellant beyond any shadow of doubt. p Accordingly, the conviction of the appellant is maintained. The appellant has committed the gruesome double murder of two real brothers without any justification. This being so, we do not find any mitigating circumstance to award I lesser penalty to him. The appeal being devoid of force fails and is dismissed. The E death sentence of Javed Mahmood is confirmed. The Murder Reference is answered in positive.
9. In view of the peculiar circumstances of this case, we do not find any force in the revision, which is hereby dismissed.