RAJA AFRAS1AB 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 Hafiz (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 PPC 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 persecution story is that on 6.3.1985 at 6.00 p.m., Muhammad Rafique (Complainant), his brothers-in-law Muhammad Hanif and Muhammad Hafiz (both deceased) were sitting in a shop at Lory Adda, Taxila, Muhammad Ayub son of Akbar 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 Muhammad 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 no body should dare to come near him. He ran away from the Adda towards Sarai Kalla. The occurrence was witnessed by Muhammad Refique, 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 was a quarrel between them. Muhammad Hanif and Muhammad Hafiz died on their way to hospital. On statement Ex.PA of Muhammad Rafique formal FIR Ex.PA/1 was registered by Muhammad Faruq Moharrar H.C.PW2.
3. Muhammad Jalal-ud-Din S.I. PW12 investigated the case. He recorded the statement Ex.PA of the complainant. Injury statement Ex.PH and inquest report Ex.PJ of Muhammad Hanif deceased were prepared by him. Similarly, he prepared the injury statement Ex.PK and inquest report Ex.PL of Muhammad Hafiz 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 Ex.PD. Last worn clothes of Muhammad Hanif (deceased) Shalwar PI, Shirt P2 and Salooka P3 and likewise, Shalwar P4, Shirt PS and Salooka P6 of Muhammad Hafiz deceased were taken into possession vide memo Ex.PC. The accused was arrested by the Sub-Inspector on 83.1985. Site- plans Ex.PB and Ex.PB/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 P10 from the Tube-well of his brother Muhammad Tariq situated in Jamil Abad which was taken into possession vide memo Ex.PE. The report of the Foresic Science Laboratory Ex.PN was tendered in evidence by the prosecutor.
4. Dr. Muhammad Tasneem PW11 on 73.1985 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 can. 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-clavicular 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 dur 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 I6 to 20 hours.
On the same day at 11.00 a.m., the same Doctor conducted the post-mortem examination on the dead body of Muhammad Hafiz 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 intermammry 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. Laternal to the vertebral column. The wound was 1.5 c.m. x 1.5 c.m. And it was 8 c.m. For 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 No.1 & 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 PW4, Shaukat Mahmood PW5 and Muhammad Ayub PW6. 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 sitting in his office which was earlier vacated by Muhammad Hanif and Muhammad Hafiz deceased. Muhammad Hanif and Muhammad Hafiz while armed with an unlicenced pistol and a chhuri, respectively, came straight to his office and started abusing him. He was frightened and consequently he came out of his office. Both the 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 off accidently and hit Muhammad Hanif. On seeing Muhammad Hanif in an injured conditions, 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 to self-defence, fired at Muhammad Hafiz as well. He state 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 Hafiz 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 Hafiz. In support of his plea, the appellant produced Shahzad alias Shada DW1, Dr. Ernest Lall DW2 and Sh. Abdul Rashid DW3. 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 Hafiz in the exercise of his right of self-defence. Learned counsel has attacked the evidence of Muhammad Rafiq PW4, Shaukat Mahmood PW5 and Muhammad Ayub PW6, contending that their evidence being interest is liable to be rejected. The learned counsel has relied upon the statements of Shahzad alias Shada DW1, Dr. Ernest Lai DW2 and Sh Abdul Rashid DW3 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 hs 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 giving paid him adda Tax. He was given abuses and beating by Javed Mahmood. The version of Muhammad Rafique complainant appears to he 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 PW4 was substantially supported by Shaukat Mahmood PW5 and Muhammad Ayub PW6. 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 Refique 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 after- thought 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 Hafiz (Deceased) while and 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 minder. The site-plan Ex.PB 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 day-light 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 PW12 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 DWs in detail. Suffice it to say that Shahzada alias Shada DW1 is a tenant of the appellant. He told 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 Lai DW2 and Sh. Abdul Rashid DW3 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. 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 lesser penalty to him. The appeal being devoid of force fails and is dismissed. The 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.