1. MUSHTAQ HUSSAIN, J.-Jamat A.I son of Barkat A.I, aged 60 years, and his sons Akbar A.I, aged 17 years, Asghar A.I, aged 21 years and their tenant James Masih Bon of Bachan Masih, aged 23 years, all resident of Chak No. 373/JB, Tehsil Toba Tek Singh, District Lyallpur were tried by the learned Sessions Judge, Lyallpur, who by his order dated11-5-1971 acquitted the two sons and James Masih and convicted Jamat A.I appellant---
(1) under section 302, P. P. C. And sentenced him to death for having caused the death of Mst.
2. Sardaran on 25-9-1969 at peshiwela near a Chowk in Chak No. 373/J. B. 13 miles from Police Station Toba Tek Singh; and
(2) under section 307, P. P. C. And sentenced him to 7 years' R. I. For a murderous assault on Talib Hussain (P. W. 10) on the same day, place and time.
3. The convict has felt aggrieved and filed an appeal against his con--victions and sentences and his case is also before us for confirmation of the death sentence.
4. The prosecution story is that on 25-9-1969 at about peshiwela Ghulam Sarwar (P. W. 9), a son of the deceased, came to the carpenter's shop from his house. He found Arshad son of Subedar Niaz (P. W. 11), who is his first cousin, was getting the handle of a steel trunk repaired by Boota son of Roora, a carpenter. Asghar and Akbar, the two sons of Jamat A.I, Barbar by case, and James Masih, a tenant of Jamat A.I, came and sat down there. They then loudly hurled abuses which were ostensibly meant for Arshad because nobody else was there. He consequently got up to leave but Asghar and Akbar held him by his arms. James Masih took a bell from the carpenter's shop and hit Arshad with it on his back. Ghulam Sarwar (P. W. 9) got him released from their clutches and both of them went and stood in the bazar. Talib Hussain son of Muhammad Siddiq, Muhammad A.I and Muhammad Siddiq having heard about it arrived there and stood nearer. Meanwhile Asghar, Akbar and James Masih brought spears from their house. Ghulam Sarwar P. W. 9's mother Mst. Sardaran came forward and asked the three persons to desist from what they were doing. Jamat A.I appellant was standing on the roof of his house with a ' 12 bore gun. Talib Hussain then shouted to his mother that she should not stand in their way and let them come because they wanted to see what they could do. The appellant then fired his gun from the roof which hit Mst. Sardar Bibi on her face felling her down. He fired again hitting Talib Hussain (P. W. 10) on his neck. Arshad, Muhammad Siddiq and Muhammad Siddiq son of Ghulam Muhammad took shelter behind a wall. Jamat A.I fired five shots and then descended in his own courtyard. Mst. Sardar Bibi had meanwhile breathed her last.
5. The motive for the assault was that about four years ago, Habibur Rahman, a Rajput, had been murdered by Jamat A.I appellant, Wali Muhammad, Mochi, and Muhammad Arshad, Gujjar. They were challaned but were acquitted about a year before the incident. Jamat A.I and his sons used to mention in the village that name of the former had been mentioned in the F. I. R. By Subedar Niaz Muhammad father of Arshad (P. W. 11). Since they had this grievance against Arshad's father they, therefore, caught hold of Arshad at the carpenter's shop as stated above and gave him a beating.
6. Leaving Munawar Hussain to guard the dead body Ghulam Sarwar (P. W. 9) and Arshad carried Talib Hussain in an injured condition to the Civil Hospital, Toba Tek Singh and had him medically examined by the doctor. He then repaired to Police Station Toba Tek Singh alongwith Arshad and produced the medical examination report to the Sub-Inspector.
7. A. S. I. Raja Fazal Azeem (P. W. 13) recorded the F. I. R. Exh. P. A. On the basis of the statement at 6-30 p.m. On the same date.
8. Having recorded the statement, he proceeded to Civil Hospital Toba Tek Singh where Talib Hussain had been admitted as an indoor patient. He recorded his statement and took into his possession shirt Exh. P. I from his person which bore holes corresponding to his injuries and was stained with blood.
9. He went to the spot reaching there on 29-9-1969. He went through the usual process of investigation. He, inter alia, recovered 7 pellets from different places and arrested all the accused on that day.
10. Jamat A.I appellant produced before him his licensed gun P. 9 and licence P. 15 live cartridges P. 10 to P.
14. Having completed the investiga--petition he challaned the accused.
11. At the trial, Jamat A.I appellant took the plea that he fired from the roof of his house because he saw his wife and daughter being assaulted and insulted. He, however, maintained that he fired in the air. The full answer that he gave to the question by the learned Sessions Judge was as follows:- "What actually happened was like this: James Masih was previously employee of Subedar Niaz Muhammad father of Arshad P. W. On the day of occurrence, James beat Arshad in the shop of the carpenter and some incident took place there, but I was not there. I heard the voices of several persons in the street and came to know that Arshad, Talib Hussain and several others had assembled in front of my house armed with weapons like sticks, hatchets and two guns. My wife Mst. Naziran and my daughter Mst. Surriya aged about 22 years, went out to entreat those persons not to advance towards our house and not to attack us. They were beaten by those persons with sticks and were pushed about. It was at this stage that I climbed the roof of my house and seeing my wife and daughter being assaulted and insulted, l fired in the air. The complainant party were also firing in the air. I do not know how Mst. Sardar Bibi was injured."
12. Dr. Mian Habibullah appeared as P. W. 1 and deposed to having per--formed the autopsy on the dead body of Mst. Sardar Bibi on 26-9-1969 at (sic) p.m. He found 5 wounds of entry caused by shots fired from a fire-arm. He also found that the stomach contained about 9 oz. Of semi- digested food. He was of the view that death was caused by haemorrhage and shock, which resulted from the fire-arm injury to the big blood vessels in the right side of the neck.
13. He also deposed to having examined Muhammad Arshad P. W. On 22.9-1969 at 5-54 p.m. And having found a contusion 6" x 1----- on the small of his back.
14. He also examined Talib at 5-30 p.m. And found four pellet wounds on his person.
15. The statement of the doctor proved that Mst. Sardaran died a violent death on account of fire-arm injuries, that Muhammad Arshad P. W. Suffered a blunt weapon injury while Talib P. W. Suffered injuries from shots fired from a fire-arm.
16. Ghulam Sarwar (P. W. 9), the author of the F. I. R., appeared as an eye-witness and narrated the prosecution story in the same strain as had been given by him in the F. I. R. A laboured cross- examination followed but nothing of any consequence was either elicited from him or was pointed out to us by learned counsel while we were going through his statement. Learned counsel, however, laid great stress on the reply of the witness to the suggestion made by the defence that the accused persons "had come armed with weapons to avenge the beating given to Arshad P. W. At the shop of Boota Tarkhan, that Mst. Naziran wife of Jamat A.I and Mst. Surriya daughter of Jamat A.I came in the street to beseech them not to attack; and both of them were injured at the hands of the accused persons that it was upon this that Jamat A.I accused climbed the roof of his house and fired in self-defence". We are unable to appreciate how this helps the appellant because this suggestion was stoutly denied by the prosecution witness. This may be the case of the defence, but its denial by the prosecution witness does not constitute a circumstance favourable to the defence.
17. Talib Hussain (P. W. 10) who is an injured witness corroborated the story given by the a ore- mentioned accused as did Muhammad Siddiq (P. W. 12).
18. This submission prosecution case that Mst. Sardaran had come out of her house for dissuading Asghar, Akbar and James. Their stand is that she had come out of the house into the street. She might have come out for any other purpose, but when these three accused persons appeared she tried to dissuade them from attacking the complainants and received injuries and succumbed to them.
19. Learned counsel also submitted that Raja Afzal Azeem (P. W. 13) the Investigating Officer, had admitted that when Jamat A.I appellant appeared before him he took up the position that the complainant had come out armed with weapons, that his wife Mst. Naziran and his daughter Mst.
20. Surriya went in the open space in front of his house to entreat the complainant party to dissuade them from attacking them and that both Mst. Naziran and Mst. Surriya were injured with sticks by the complainant party. He also admitted that Jamat A.I had told him that he acted in self--- defence and out of ghairat. He also admitted that Jamat A.I had produced his wife and daughter before him and he saw injuries on the hand and arm of Mst. Naziran. He also admitted that he produced Mst. Naziran and Mst. Surriya before the lady doctor of Toba Tek Singh and obtained the certificates of their medical examination, he produced in Court as Exhs. D. B. And D. C., but since the doctor was neither produced by the prosecution nor by the defence, these documents could not be admitted to evidence.
21. Learned counsel submitted that it was the duty of the prosecution to have produced the lady doctor and if they did not do so the Court should summon her as a witness. We have gone through the two certificates and have found that the only injuries found on the persons of Mst. Naziran and Mst. Surriya were:- Exh. D. B.
(1) Contusion 2" x ----- on back of right thumb.
(2) A contusion on front of immediate of left upper arm 1" x 1".
(3) Complains of pain in the contusion on back of right hip 1" x 1".
22. Exh. D. C.
(1) Contusion 1" x 1" on the upper part of right shoulder joint.
23. These marks could have been caused by anything and could be self-inflicted. No useful purpose would therefore, be served by sending for the doctor because even if the documents are admitted into evidence they would not improve the case of the defence.
24. The appeal is, therefore, rejected, the Reference is accepted, the death sentence is confirmed, the conviction and sentences are maintained.