1. ' AMIRUL MULK MENGAL, J.--- Appellant Jawad All was tried for an offence under section 302/307, P.P.C. He was found guilty for the offence under section 302, P.P.C. And was convicted by learned Sessions Judge (ad hoc), Quetta on 20-4-1992 who passed the following sentence:-- "On the basis of the above discussion it is established that the accused has committed murder by intentionally causing serious injuries to Muhammad Ismail (Milo) by means of fire-arms which resulted his death. But under the circumstances it was done warrants that punishment for imprisonment for life is enough to meet the ends of justice. The accused is, therefore, convicted and sentenced to suffer life imprisonment with fine of Rs,5,000 under section 302, P.P.C. The offence against 307, P.P.C. Is not established as no evidence has come on record to establish that the accused went at the trust with intention to commit murder of Fida Hussain, Syed Hashim and Munawar Hussain. It was an accident and was done in self-defence. Case property clothes be destroyed and pistol be confiscated."
2. ' Being aggrieved from the said judgment Jawad Ali filed an Appeal No,90 of 1992 against his conviction. Simultaneously the State also filed an Appeal No,83 of 1992 challenging the acquittal of convict Jawad All under section 307, P.P.C. And a Criminal Revision No,39 of 1992 against the lesser sentence awarded to the appellant with the prayer for enhancement of the same to death.
3. Similarly the complainant filed a Criminal Revision No,29 of 1992 for enhancement of sentence of imprisonment for life to death.
4. ' Since both the appeals as well as the revision petitions challenge the same judgment passed by .Learned Sessions Judge (ad hoc), Quetta and the facts and law points being the same, therefore, we intend to dispose of all the aforesaid matters by this common judgment.
2. Relevant facts, if put succinctly, are that an F.I.R. No,42 of 1990 was registered on basis of Fard-e- Bayan of Muzzaffar Ali complainant with Quaidabad Police Station on 11-5-1990 at 9-10 p.m. It was disclosed therein that complainant was informed by one Muhammad Hashim that appellant Jawad Ali had fired at his brother namely Muhammad Ismail alias Milo and inflicted grievous injuries to him. The complainant proceeded to Falahi Trust situated at Alamdar Road, Quetta where he learnt that Jawad Ali had injured Muhammad Ismail, Syed Hashim, Muhammad Essa and Munawar Hussain. The injured persons had been taken to. Hospital, therefore, he also reached Casualty Department of Civil Hospital, Quetta where he found the dead body of his brother Muhammad Ismail Milo who had succumbed to injuries on reaching hospital. He had received bullet injuries on his neck and on the right rib. Jawad Ali had fired and killed his brother, and he requested for legal action to be taken against accused. F.I.R. Was registered and the S.H.O.
5. Alongwith other police personnel after receiving information from the Casualty Department proceeded to Civil Hospital, Quetta.
3. Another F.I.R. No,43 of 1990 was registered regarding the same incident at 12-05 o'clock (at night) under section 326, P.P.C. Wherein appellant Jawad Ali stated that at about 8-45 p.m. When he was sitting in his hotel he was called by Munawar Hussain and when he reached near Munawar Hussain, he found him drunk. He abused him and said why he propagated against Milo and Syed Hashim. He replied that he had never propagated against them. In the meanwhile Munawar Hussain took out a Rumbi from his pocket and attacked him. He sustained injuries on the left side of his buttock and backside. He requested action against Munawar Hussain.
4. Police after registering the aforesaid two F.I.Rs, started investigation and conducted necessary inquiries. Finally challan was put up for trial.
5. Charge was framed by Additioal Sessions Judge-I, Quetta on 29-11-1990 to which the appellant Jawad Ali PLEADED NOT GUILTY. The prosecution examined 16 witnesses in support of the allegation of murder namely P.W.1 Muzaffar Ali, P.W.2 Syed Hashim, P.W.3, Abid Hussain, P.W.4 Fida Hussain, P.W.5 Ghulam Hussain, P.W.6 Noor Khan, P.W.7 Muhamad Rafiq, P.W.8 Haji Abdul Wahid, P.W.9 Ghadeer Ali, P.W.10 Muhammad Ayub, P.W.11, Dr. Abdul Sattar, P.W.12 Yaseen Ali, P.W.13 Munawar Hussain, P.W.14 Mubarek Shah, P.W.15 Dr. Amin Malghani and P.W.16 Abdul Aziz. Appellant did not produce any evidence in defence except his own statement recorded under section 340(2), Cr.P.C.
6. He was also examined under section 342, Cr.P.C.
6. On appraisal of evidence learned trial. Judge found the appellant guilty for murder of Muhammad Ismail Milo and passed the aforesaid sentence. However, he acquitted him from the charge under section 307, P.P.C. Hence this appeal.
7. Learned trial Judge settled following points for determination:-
(1) Whether Muhammad Ismail died unnatural death;
(2) Whether Muhammad Essa, Syed Hashim and Munawar Hussain sustained bullet shot injuries.
(3) Whether accused made indiscriminate firing on account of his self-defence.
(4) Whether accused committed murder by intentionally causing death of Muhammad Ismail by means of firing.
(5) Whether accused injured Syed Hashim, Muhammad Essa and Munawar Hussain intentionally or on account of his self-defence.
7. ' Case of prosecution hinges on the following pieces of evidence:--
(1) Ocular evidence of eye-witnesses namely P.W.2 Syed Hashim, P.W.3 Abid Hussain, P.W.4 Fida Hussain and P.W.13 Munawar Hussain Gunju.
(2) Circumstantial evidence like blood-stained earth secured from Wardat, (Exh.P.5/A), eight empties of pistol (Exh.5-B), four lead (spent bullets) from Wardat (Exh.5-C), recovery of pistol from graveyard at the pointation of accused (Exh.P.8/A) alongwith eight live cartridges and bag containing 13 catridges.
(3) Ballistic Expert Report (Exh.P.16/E) which is positive.
(4) Medical evidence of Dr. Abdul Sattar who issued death certificate (although post-mortem was not allowed by the relatives of deceased). Statement of Dr. Amin Malghani regarding injured persons and the appellant.
(5) Motive.
8. ' According to prosecution Muhammad Ismail Milo was running Flahi Trust where heroin addicts were treated. Appellant Jawad Ali although ostensibly was running a hotel but in fact it was a place where he used to sell heroin and drugs. He was aggrieved of the Welfare Trust which besides treating the addicts was against drugs, therefore, this had caused a grievance against Muhammad Ismail Milo and accused went there armed with a loaded pistol and started quarrel and ultimately on seeing Muhammad Ismail Milo coming out of Falahi Trust fired at him, then he fired at Syed Hashim. Thereafter he injured the remaining P.Ws. Including Essa who was not examined.
9. ' It is pertinent to mention that in support of the second F.I.R. i,e. No,43 of 1990, the accused gave a statement before the trial Magistrate, which will be discussed at a relevant stage of judgment.
10. However, no witness was produced in defence.
11. ' From perusal of ocular evidence and taking into consideration the other circumstantial evidence the prosecution case is that on the night of incident deceased Ismail Milo was in the Falahi Trust and Muhammad Hashim (injured) was sitting on pavement of the Trust. Appellant Jawad Ali came there and started quarrelling with Muhammad Hashim. Hearing the commotion, Muhammad Ismail alias Milo came out of Trust and asked appellant not to do illegal things/actions. Seeing him on the spot appellant stated that he would not, spare him for the reason that it was he who instigated the police to raid his hotel for drugs. At this moment he fired two shots at Muhammad Ismail Milo who fell down. Then he fired 3/4 shots at P.W. Muhammad Hashim who was injured and fell down but he was still conscious. Accused then proceeded towards Muhammad Ismail who had fallen injured on the ground. Accused saying that he would not spare him today and will finish him once for all then aimed at his neck and fired the fatal shot. In the meanwhile a large number of people had gathered who after seeing that accused had injured Muhammad Ismail Milo and Muhammad Hashim were enraged. They tried to catch hold of the appellant. To this appellant started firing as a result whereof P.W. Munawar Hussain alias Gunju and Muhammad Essa also received bullet injuries. P.W. Munawar Hussain saw a Rumbi lying there and he inflicted injuries on the buttock of Jawad Ali who while firing astray ran from the place of incident.
12. ' Appellant's case as put before us in appeal was that he is a man running a hotel having no connection with drug business. Since his hotel and Falahi Trust of Milo were at a close distance and that members of the Trust very often used to take tea without paying the bill, therefore, he went to ask for the payment of the bill for the tea, taken by the incumbents of the Welfare Trust. To this P.W.
13. Syed Hashim told him "URDU TEXT". Then Muhammad Ismail Milo along with Munawar Hussain came out of the Trust and said "take him inside the trust and set him alright". Then there was a scuffle and Muhammad Hashim took out his pistol which went off hitting Milo. He then ran away.
14. ' Thus there are two conflicting versions of the incident before us. Therefore, while disposing of the matters, these two divergent pleas have to be put in juxtaposition in order to reach a just conclusion.
15. ' We firstly proceed to see the prosecution version and to re-assess the evidence produced before the trial Court. There are four eye-witnesses who deposed against the present appellant. P.W.2 Syed Hashim who himself was injured in the incident stated that on 11-5-1990 he was sitting at the gate of Welfare Trust. At about 9-00 p.m. Appellant Jawad Ali came there and was very infuriated.
16. As soon as he reached, he said that Milo had done no good by asking the police to raid his hotel.
17. He further said that he would not spare both of them. Meanwhile Milo (deceased) came out of the Welfare Trust and on seeing him, accused Jawad Ali became further enraged. Milo wanted to pacify him by saying that he should not do wrong acts. At this accused Jawad took out his pistol which was tied with his waist and fired two shots at Milo. Thereafter he fired 3/4 shots at the witness. At the same time Master Fida Hussain, Abid Ali and many other passers-by gathered at the spot. The witness received one bullet injury on the thigh, two bullets on the left arm and one bullet at the back of his neck and he fell down. Jawad went near Milo who had fallen on the ground and addressing him said that he would not spare him alive today. He then fired a further shot on the neck of Milo. When people saw Milo injured they were enraged and attacked accused Jawad who started firing indiscriminately. Munawar Hussain was hit with one bullet and one bullet hit Muhammad Essa a vegetable-seller. Later on people put him and Milo in a jeep and took them to hospital. On reaching hospital Milo died. The witness is the incharge of the Trust whereas Milo was President of the Trust. The witness further stated that there is a hospital in the Trust in which narcotics addicts are treated.
18. ' In cross-examination the witness denied the suggestion that the people of Trust used to take tea without payment and demanded contribution. He also denied the suggestion that accused came to the office of Trust to receive payment of tea and that he had a fight with them. The witness also denied that Milo came out of the Trust alongwith Munawar Hussain. The witness also did not admit that Milo asked him and Munawar to take the accused inside the trust in order to set him alright. He denied that he had a pistol and took out the same. He also denied that the pistol went off during the struggle with the accused and 3 bullets hit Milo. Then pistol was left by the witness and accused took it.
19. ' P.W.3 Abid Hussain is the second eye-witness to support the prosecution version. According to him he learnt that some quarrel was going on in front of the Trust. It was about 9-00 p.m. He immediately went there and saw that accused Jawad Ali Hotelwala was quarrelling with Hashim (Note: the learned trial Judge has translated "URDU TEXT" as fighting which in our view is not correct translation). Jawad was saying that by asking the police to raid his hotel Milo had done no good and told P.W. Hashim that he would not spare Milo and him (P.W. Hashim). Meanwhile Milo came out of the Trust and he tried to make understand Jawad asking him not to do wrong acts. Jawad became angry and took out his pistol from. His waist and fired two shots at Milo. The bullets hit Milo and he fell on the road. Meanwhile Fida Hussain alias Khan reached there. Ali Hassan also reached there. The witness and All Hassan tried to stop Jawad but Jawad threatened them not to go near him otherwise he would shoot. Jawad fired 3/4 shots at Syed Hashim (P.W.2) who received injuries and fell down. Thereafter Jawad went near Milo and said that he would not spare his life and fired one shot at his neck. Seeing this people became furious and some of them started to beat Jawad while others tried to save him. Jawad started indiscriminate firing as a result of which Muhammad Essa vegetable-seller and Gunju P.W.13 received injuries. Jawad went towards Saidabad waving the pistol. Ghulam Hassan was coming from city side on his scooter. The witness then took alongwith others the injured persons to hospital. Same suggestions were put to the witness to which he had stated that he had no knowledge.
20. ' The next eye-witness is P.W.4 Fida Hussain who is a Primary School Teacher. He stated that on 11- 5-1990 he was having tea at the hotel of Muhammad Hussain. On hearing commotion, he came out of the hotel. It was about 9-00 p.m. He saw accused Jawad standing and Syed Hashim (P.W.) was sitting on the pavement of a close cabin. Jawad was telling Syed Hashim that they arranged a raid on his hotel today and his companions were arrested. He further stated that he was fed up due to all these acts and would not spare him (P.W. Hashim) and Milo. Meanwhile Milo came out of the Trust. On seeing Jawad who was angry he started to admonish him. On seeing Milo accused Jawad became more furious and took out the pistol tied with his waist and fired two shots at Milo.
21. Milo fell down after receiving the bullet injury. After 3/4 seconds accused Jawad turned and fired 3/4 shots at Syed Hashim who also fell down on receiving injuries. Meanwhile Ali Hassan and other persons gathered there. Ali Hassan tried to stop Jawad on which Jawad warned him not to go near him otherwise he would also be shot. When Milo was lying on the road, Jawad went near him and said "today I have particularly come to kill you and will not spare your life", and then fired a further shot at the neck of Milo. People who had gathered on seeing this became angry and attacked Jawad. Some people were trying to beat him and some were trying to save him. Jawad started indiscriminate firing. Due to this firing Muhammad Essa vegetable-seller and Munawar alias Gunju were injured. Accused then waving his pistol went towards Saidabad. The witness then alongwith Ali Hassan took the injured persons in a jeep to Civil Hospital, Quetta. He further stated that Jawad had a hotel of cards, narcotics and gambling. This witness denied having any connection with Welfare Trust. He stood the test of cross-examination. In cross-examination he also stated that accused was already involved in two murder cases.
22. ' P.W.13 Munawar Hussain alias Gunju who was also injured in the incident is the last eye-witness.
23. According to his statement on 11-5-1990 after having his dinner he was sitting on pavement ( 1 j ) in front of Welfare Trust. It was at about 9-00 p.m. Accused Jawad present in the Court came in front of the Trust where Syed Hashim was sitting. Accused Jawad told Hashim that by getting his hotel raided by police Milo had done no good and further said that his persons have been arrested and today he would not spare both of them. On hearing the noise Milo also came out of the Trust.
24. Jawad seeing Milo got infuriated. Milo tried to make him understand saying that he should not indulge in illegal, business. Meanwhile accused Jawad took out a pistol and fired two shots on Milo.
25. As a result of which Milo fell down. Thereafter accused Jawad Ali fired 3/4 shots on Syed Hashim.
26. Syed Hashim also fell down. Then Jawad went close to Milo saying that he would not spare him alive today at any cost and fired another shot on the neck of Milo. During this time a number of passers-by gathered at the spot and some people seeing Milo injured were enraged and attacked accused while some were busy in separating them. Accused Jawad started firing indiscriminately.
27. As a result of this firing one bullet hit on the right side of his chest below the rib and he got angry and joined the crowd. He injured accused Jawad Ali with a Rumbi, who after receiving the injury ran towards Saidabad waving his pistol. The witness was put a in a rickshaw and taken to Civil Hospital.
28. In cross-examination the witness was not shaken on material points. He stated that he had no connection with the Welfare Trust. This witness was tried by a Magistrate under section 326, P.P.C.
29. And was convicted for injuring Jawad. However, he was acquitted of the charge by the appellate Court.
30. ' This was the gist of ocular version as stated by four eye-witnesses. We now proceed to take into consideration the remaining evidence produced by the prosecution. Circumstantial evidence consists of recovery of, eight empties of pistol and 4 leads (spent bullets) from the place of incident. Besides this the recovery of pistol at the pointation of accused Jawad Ali from the graveyard is also an important piece of evidence which was witnessed by two independent witnesses including Councillor Haji Abdul Wahid. The place of incident as well as time of incident are also almost admitted.
31. ' Medical evidence was also produced to support the prosecution regarding injuries on the dead body of deceased. Although post-mortem was not allowed by relatives of deceased but P.W.11 Dr. Abdul Sattar was examined who issued death certificate and gave his expert opinion regarding cause of death which went unchallenged. Then there is positive report of Ballistic Expert.
32. ' However, the accused challenged the motive. According to all the eyewitnesses, accused/appellant started quarrel with P.W. Syed Hashim saying that Muhammad Ismail Milo (deceased) did no good by instigating police to raid hotel of appellant. This version is supported by all the eye-witnesses. Motive to kill deceased was disclosed by appellant himself, who after reaching the Welfare Trust stated as to why his hotel was raided by police at the instance of deceased. It has also come on record through the mouth of prosecution witnesses that in the disguise of a hotel in fact, appellant was running a business of drugs. According to appellant, however, the motive was that the Members of the Trust used to take tea from his hotel without paying the bill. He went to receive the payment for the bills when he was dragged at the instance of deceased. He :then picked up a quarrel with Syed Hashim who took out his pistol and the accused tried to snatch the same which went off and three bullets hit deceased who was standing nearby alongwith Munawar Hussain. P.W. Syed Hashim got frightened and left the pistol and the accused taking the pistol from his hand ran away.
33. ' In support of his contention the appellant led no defence except his own statement recorded under section 340(2), Cr.P.C. He repeated the same ' story contending that he went to the Welfare Trust to receive money due to the members of Falahi Trust and asked Syed Hashim for payment of money. Syed Hashim replied "URDU TEXT" otherwise his hotel would be set at fire. In the meantime Ismail Milo and Munawar Hussain alias Gunju came out of the Trust. Syed Hashim told Milo that accused had come to take money; whereupon Milo said "take him inside the Trust we will set him alright". Then P.W. Hashim pulled him towards the Trust and accused gave a fist blow to him. Then Syed Hashim took out his pistol from his pocket in order to kill the accused. Accused caught hold of his hand and then a struggle started. In this struggle the pistol went off and three bullets hit Milo.
34. Being frightened Syed Hashim left the pistol. Accused bent to pick it when he was hit by P.W.
35. Munawar Gunju with a Rumbi. Other Goondas also attacked him. The accused then fired in the air to save his life as a result of which all ran away. Accused then threw the pistol near the Trust. He then saw a Rickshaw coming and sitting in the Rickshaw he went to the police station.
36. ' According to accused he gave the same statement to the police but the police did not record it.
37. He was not taken to the hospital till the next day when he was near to die. He was then taken to hospital and admitted there. He was in hospital when he saw in the newspaper regarding recovery of pistol. He was discharged from the hospital when he had not fully recovered. In the end he stated that he had not committed any offence but pistol went off incidentally during struggle with P.W. Syed Hashim.
38. ' As already pointed out in preceding paras. Of this judgment that these are the two drastically divergent stories of the case.
39. ' We agree with Mr. S.A.M. Quadri, learned counsel for appellant that if the story of accused/appellant is believed then it is a case of reduction of sentence. But on the contrary if the prosecution story is believed in toto then it is a case of brutal murder.
40. ' We have already reproduced the gist of prosecution evidence as well as defence version.
41. However, firstly we want to discuss the case of the defence in the light of available record. At the very outset it may be pointed out that defence took a specific plea but failed to bring any evidence on record to substantiate the same except his own statement recorded on oath. It is pertinent to note that police also registered a case under section 326, P.P.C. Against P.W. Munawar Hussain at the instance of accused Jawad Ali. Challan was put up before a Magistrate before whom the accused made a statement. (Exh.P.29) page 261 of the Paper Book. This was put to the accused in cross-examination in the case registered under section 302, P.P.C. And he admitted the same. He has given the following story before the Magistrate in the said case:-- "On 11-5-1990 at about quarter to 9-00 p.m. I was going towards my home when on the junction I saw Syed Hashim and Munawar Ali. They waylaid me and sent a person to inform Milo that they had caught hold of Jawad Ali. Munawar Hussain Gunju was drunk and told me as to why I propagate against the hospital. I stated on oath that I have stated nothing against it, and when I started to proceed Syed Hashim took out his pistol and fired at him. In the meanwhile Milo came out of the hospital and gave me 2 to 3 slaps and tried to take me to the hospital. When I was being dragged, Milo asked Hashim and Munawar to beat me. In the meanwhile Munawar who was standing behind us injured me with Rumbi on my thigh and waist. Syed Hashim hit me on the head with the butt of his pistol. Milo asked them to take me in the hospital and untie my Nara. I reported this matter with the police which is Exh.PA. And I correctly identify my signatures."
42. ' We have already produced his statement recorded before the trial Court in this ease under section 340(2), Cr P.C. Besides this learned counsel produced before us a copy of the FIR. Lodged by the appellant on the same night under section 326, P.P.C. In which he stated that he was sitting in his hotel when at about quarter to 9-00 p.m. Munawar Hussain who was standing in front of Falahi Trust called him. When he went near him, he found him drunk. He said to the appellant as to why he was propagating against Milo and Syed Hashim. The appellant denied that he has ever propagated against them. In the meanwhile Munawar Hussain took out a Rumbi and attacked him.
43. He received two injuries with Rumbi on his buttocks and behind his waist. Hence he came to report the matter.
44. ' Thus, the appellant has given 3 different versions of the incident. The first version is the statement given by him before the trial Magistrate wherein he stated that when he was going home at about quarter to 9-00 p.m. Syed Hashim and Munawar Hussain came on his way and stopped him. They sent a person to inform Milo that they had caught hold of him. Munawar Hussain was drunk and asked him why he was propagating against the hospital. The appellant denied on oath regarding any propaganda.Syed Hashim took out his pistol and fired at him. In the meanwhile Milo came and gave him 2/3 slaps and Munawar hit him with a Rumbi.
45. ' The second statement of the appellant is that which he got recorded under section 340(2), Cr.P.C.
46. To the effect that he went to Falahi Trust in order to receive money for the tea taken by the members of the Trust. There was some quarrel with Hashim and Milo alongwith Munawar Hussain came out of the Trust. Hashim took out his pistol and accused in order to save his life grappled with him the, pistol went off and hit Milo who got three bullet injuries. He then snatched pistol from Hashim and ran away firing indiscriminately. He, however, dropped the pistol near the Trust. The 3rd version is the F.I.R. Lodged in the case under section 326, P.P.C. Although this F.I.R. Was not shown to him in cross-examination but Mr. Quadri admits that accused had filed an F.I.R. Against Munawar Hussain. A totally different version is given in the said F.I.R. It is very pertinent to note that regarding a part of the main incident, accused gave his statement before the Magistrate in which neither he stated that he had gone to take money for the tea nor he stated the story as disclosed by him in his statement on oath before the trial Court in the murder case. Similarly in F.I.R. Lodged by him he gave a third version of the story. He has been changing pleas, giving different versions at different times. But he did not produce any witness to support his contentions. Thus against the overwhelming evidence of prosecution, the appellant confined to his own statements which were inconsistent and totally unbelievable.
47. ' On query learned counsel stated that people regarded Milo as "Shaheed", therefore, no one in the vicinity came to depose in favour of appellant Furthermore it transpires from the statement of appellant as if every body was hostile towards him. According to him the police did not take him to hospital in time. The doctors did not properly treat him and discharged him from the hospital when he had not yet fully recovered. The witnesses deposed against him because they were men of Falahi Trust. But he produced no evidence to the effect that there was mala fides on the part of police or the doctors or the citizens of the area.
48. ' His statement on oath, regarding throwing of pistol near Trust is belied by the statement of P,W.8 Haji Abdul Wahid. According to whom the pistol was recovered at the pointation of appellant from eastern portion of the graveyard under a bush. Furthermore his contention is contradicted by statement of P.W.9 Ghadeer Ali. According to whom he was going towards Bazar on his motor- cycle. The house of appellant Jawad Ali is situated in the lane where this witness resides. Jawad Ali stopped him and asked the witness to take him to Khushk Talab via Imam Bargah. The witness refused upon which the accused took out his pistol. Being frightened the witness took him to Khushk Talab. Pistol was still with the accused/appellant.
49. ' Thus keeping in view the contradictory statements made by the appellant regarding the incident and the fact that he produced absolutely no evidence in support of his contention but kept on changing his statement before different forums, we are inclined to hold that his statement recorded on oath under section 340(2), Cr.P.C. Is unbelievable and false.
50. ' As compared to the bald statement of the appellant, the prosecution produced overwhelming evidence to establish the charge against the accused. Four eye-witnesses of the incident were produced. Two of them were injured in the incident. Two were independent witnesses. All the four eye-witnesses stood the test of cross-examination and were not at all shaken. Their statements were consistent, coherent and confidence inspiring. The medical evidence fully supports the prosecution version. The circumstantial evidence is yet another important piece of evidence to corroborate the prosecution version. Eight empties of pistol were recovered from the place of incident and 4 spent bullets (lead) were also recovered. It is admitted by the accused that the place of incident was in front of the Welfare Trust. The weapon of offence was also recovered at the pointation of appellant and was witnessed by independent Councillor of the area. Thus the prosecution produced prepondering evidence before the trial Court to prove the charge against the appellant.
51. ' We now embark upon to determine whether accused has made out a case for private defence. In this regard at the cost of repetition we have to point out that the only piece of evidence in his defence is the statement of appellant himself recorded under section 340(2), Cr.P.C. We have already disbelieved the same. We, therefore, consider the prosecution evidence in order to find out whether there is any material suggesting that accused acted in private defence. In this regard Mr. SA.M. Quadri invited our attention to the statements of eye-witnesses produced by the prosecution where they deposed that after when accused fired and injured P.W. Syed Hashim and Muhammad Ismail Milo, the people gathered on the spot were infuriated. Some of them attempted to beat the appellant whereas the others were stopping them. He also referred to the medical evidence showing two grievous injuries on the buttock of accused with a sharp weapon. Learned counsel suggested that if these two pieces of evidence are read together then a case of self-defence can be borne out from the record. He, therefore, argued that learned trial Judge has also kept these facts in view and concluded that accused acted in self-defence as far as injuries to P.W. Hashim and P.W. Munawar Hussain alias Gunju were concerned.
52. ' It is important to point out that the eye-witnesses of the case consistently deposed that people got enraged only after when appellant fired at the deceased and Syed Hashim. Thus, there are two parts of the story. The first was when the appellant went to the Welfare Trust and found P.W. Syed Hashim sitting there. He went there armed with a loaded pistol. He told P.W. Syed Hashim that deceased Milo has done no good by getting a raid on his hotel. When there was commotion deceased Milo came out of the Trust and on seeing him appellant fired at him. Soon after he also fired at P.W. Hashim who received 3/4 bullet injuries and fell down.
53. ' The second part of the incident started when people seeing deceased Muhamad Ismail Milo and P.W. Syed Hashim injured at the hands of the appellant became frantic. Some of them started beating the accused/appellant whereas some tried to save him. During this period the appellant started indiscriminate firing and injured Muhammad Essa as well as Munawar Hussain Gunju. It was at this stage that Munawar Hussain Gunju hit the appellant with a Rumbi and he got two injuries on his buttock. Thus. As far as first part of the prosecution story is concerned, there was absolutely no occasion for the appellant to have fired at Muhammad Ismail Milo and then injuring Syed Hashim. Neither anyone of them was armed with lethal weapons nor they used any weapon or force against the appellant. The life of accused Jawad Ali was not endangered at the hands of deceased Muhammad Ismail Milo or Syed Hashim. The accused offered no explanation regarding 3/4 injuries to deceased without any provocation and without any danger to his life. It has come on record that till then none of the passersby had attacked the appellant. The question of private defence thus did not at all arise as far as this part of the incident was concerned. We have already disbelieved the solitary statement of accused in his defence. We therefore, firmly believe that accused fired at deceased Muhammad Ismail Milo and then P.W. Syed Hashim when he was not apprehending any grievous injury by them or by the passersby, therefore, he had no right of self- defence. Thus there is absolutely no justification for the accused to claim right of private defence when, he being armed with a pistol went to the Welfare. Trust and inflicted bullet injuries to deceased as well as to Syed Hashim.
54. ' Even otherwise regarding the second part or the incident we agree with the contention raised by Mr. Azizullah Shaikh counsel for complainant that when any private person sees an accused committing cognizable and non-bailable offence, then he is entitled under law to arrest him.
55. Referring to section 59, Cr.P.C. Learned counsel contended that any private person may arrest any person who commits a non-bailable and cognizable offence in his view. Appellant in the instant case fired and injured two persons in view of the passersby thus he had committed a non-bailable and cognizable offence, and people gathered there could arrest him.
56. ' It has come on record that people who had gathered there wanted to arrest the appellant. Thus the appellant started firing as a result whereof two persons were injured. In such like circumstances the passersby were well within their rights to arrest accused who injured, in their view, two persons.
57. To our calculated view a right of self-defence cannot be justifiably claimed by an offender who has committed a non-bailable offence and when attempt is made for his apprehension he uses force to resist. Our attention was drawn to the case of Durya Khan v. The Crown 1969 SCMR 637 where some bullocks were stolen and the owner alongwith others pursued the thieves who after seeing the owner left the bullock behind while attempting to escape and then inflicted injuries to avoid their pursuers. Although sentence from section 302, P.P.C. Was converted into 326, P.P.C. But the reason was that there was no sufficient material regarding the intention and knowledge etc. Our attention was also drawn to PLD 1980 Kar. 199 wherein it was held that accused while in flight firing wildy in a desperate attempt to shake off his pursuers resulting in death of deceased would not provide him a right of private defence against pursuers; even if there was any apprehension of beating or receiving grievous hurt at the hands of his pursueRs, In view of the aforementioned authorities we are of the view that in the circumstances of the case the accused had no right of self-defence even against the pursueRs, Thus, on this score, too, the accused had no Tight to fire and injure the pursuers in exercise of his defence.
58. ' After dilating upon plea of accused regarding self-defence we now proceed to see whether anything emanates from the record to show that accused acted in self-defence. Facts in the case indicate that accused himself went to the Welfare Trust with a loaded pistol and saw Syed Hashim sitting. He started quarrel with him as to why his hotel has been raided at the instance of Muhammad Ismail Milo. On seeing Ismail Milo he fired at him who fell down. He then fired at Syed Hashim. Thus, no right of private defence at all ' accrued in favour of accused. In this connection reference may be made to PLD 1979 Lah.
59. 757.
60. ' Another important aspect regarding the question of private defence is to see as to which party was aggressor. There is prepondering evidence that it was appellant who initiated quarrel and then started firing. So he was aggressor and an aggressor cannot claim right of self-defence. Reliance if at all necessary may be made on 1987 SCM R 385.
61. ' From the aforesaid discussion we have come to the conclusion without any hesitation that accused had no right of private defence in the attending circumstances of the case.
62. ' This leads us to the offence committed by accused under section 307, P.P.C. Learned Sessions Judge (ad hoc) acquitted the accused without assigning any reason in respect of the offence committed under section 307, P.P.C. This will also involve to evaluate this portion of the judgment of learned trial Judge. Learned trial Judge has concluded as under:- "The offence against 307, P.P.C. Is not established as no evidence has come on record to establish that accused went at 'the Trust with intention to commit murder of Fida Hussain, Syed Hashim and Munawar Hussain. It was an accident and was done in self-defence."
63. ' We are constrained to observe that a serious matter where three persons received bullet injuries should not have been disposed of in such a light manner. No reason whatsoever has been assigned by learned trial Judge except that it was an accident and was done in self-defence. We expect the trial Judge to take each and every aspect of the case very seriously and to give cogent and logical reasons for the inferences drawn. As far as injuries to Syed Hashim are concerned those were intentional, deliberate and pre-meditated. He received three bullet injuries.
64. Astonishingly learned trial Judge has termed this as an accident, although sufficient evidence was produced by the prosecution to substantiate the charge under section 307, P.P.C. Learned Sessions Judge has rightly believed the statement of P.W. Syed Hashim regarding the murder of Milo but without rejecting any portion of his deposition he came to the strange conclusion that injuries to.Syed Hashim were as a result of accident or in self-defence. There are 4 eye-witnesses who fully corroborate each other and whose presence is also not challenged. All of them fully involve the accused with the commission of an offence under section 307, P.P.C. As stated earlier the testimony of the eye-witnesses is credible, consistent, unshaken and confidence inspiring. Furthermore the same is fully corroborated by the medical evidence and other circumstantial evidence like recovery of empties from the place of incident and recovery of pistol at the pointation of accused.
65. Thus, we set aside this portion of the judgment where the accused has been acquitted of the charge under section 307, P.P.C. Charge for committing an offence under section 307, P.P.C. Is thus proved against the appellant from the record.
66. ' After discussing the prosecution as well as defence evidence we have already inferred that the prosecution brought prepondering evidence on record to establish the charge of murder of Muhammad Ismail Milo at the hands of the appellant. The version taken by defence is totally afterthought and worthy of no credence. On the contrary the four eye-witnesses produced by the prosecution gave a consistent version fully implicating the appellant with the commission of murder of Muhammad Ismail Milo. Their testimony inspires confidence. Their presence on the place of incident is not disputed. P.W. Hashim himself received 3 injuries with fire-arm. Two of the witnesses are totally independent having no nexus or connection with the Welfare Trust run by deceased Muhammad Ismail Milo. The ocular testimony is fully corroborated by medical evidence and sufficiently substantiated by circumstantial evidence i,e. Recovery of empties from place of incident, recovery of pistol at the instance of appellant, which was witnessed by independent witnesses and positive report of the Ballistic Expert. Keeping in view this overwhelming evidence, learned trial Judge has rightly concluded that appellant committed murder of Muhammad Ismail Milo. We fully agree that appellant was responsible for committing murder of deceased, thus, the charge under section 302, P.P.C. For committing murder of Muhammad Ismail Milo is proved beyond any reasonable doubt against the appellant.
67. ' Next question is about the sentence awarded to the appellant. The question of sentence awarded to the appellant was hotly contested by learned Advocate-General, Balochistan and Mr. Azizullah Shaikh counsel for complainant on one hand and Mr. SAM. Quadri learned defence counsel on the other.
68. ' At this, stage the question of motive also came under discussion and Mr. SA.M. Quadri vehemently urged that prosecution need not necessarily set up motive for /commission of the offence, but once the motive is set up then it must be proved through independent evidence. Reliance was placed on the case of Hakim Ali and 4 others v. The State and another 1971 SCM R 432. In the aforecited judgment it was held by the Honourable Supreme' Court that prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish the same, then the prosecution must suffer in consequence and not the defence. Keeping the aforesaid principle in view learned counsel argued that apparently motive for murder as set up by prosecution was that the police raided the hotel of appellant Jawad on suspicion that some drug business was going on in the hotel. This prompted appellant to go and kill the Patron and President of the Welfare Trust where drug addicts were treated. But according to learned counsel prosecution failed to produce any police official to establish whether in fact any raid was at all made by the police on the said hotel. He vehemently argued that the prosecution could conveniently produce the police officials who raided the hotel of the appellant but nobody from the police was produced in support of establishing that any raid was committed, ' It may be observed that neither in the F.I.R. Nor in his statement P.W.1 the complainant ever mentioned any motive for the commission of the offence. However, the eye-witnesses stated what they heard and saw on the spot. According to statement of Syed Hashim the accused on reaching Welfare Trust said that Milo had done no good by raiding his hotel. He further stated that he would not spare both of them. This version is fully corroborated by the remaining 3 eye-witnesses. In view of these circumstances the ratio decidendi of case of Hakim Ali does not apply for the simple reason that the prosecution did not establish a motive. However, the eye-witnesses stated what they have heard from the mouth of appellant. Thus, we see no force in the contention raised by Mr. Quadri that prosecution has alleged a motive but failed to prove the same.
69. ' In this regard the observations made by the Honourable Supreme Court in case of Iqbal v. The State 1986 SCMR 982 are very pertinent regarding motive. It was observed that motive need not necessarily be strong. Even attrocious crimes are committed due to very slight motives, not merely because of impulse or revenge but to gain a small pecuniary advantage and to drive off a time- pressing difficulty. It was further observed that evidence of guilt of accused even if available would be a circumstance corroborative of case against him. These observations are a complete answer to the argument raised by Mr. S.A.M. Quadri.
70. ' In this case it was the prosecution witnesses who disclosed that they heard appellant saying that deceased Milo did no good by getting a raid of police on his hotel. None of the four eye-witnesses were shaken on this point in cross-examination.
71. ' As observed by Honourable Supreme Court in case of Ahmad Nisar v. The State and Amir Khan v.
72. Ahmad Nisar 1977 SCMR 175 that motive more or less is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to the witnesses. Absence of motive or even failure on the part of the prosecution to prove the same does not, therefore, adversely affect the testimony of eyewitnesses, if they be otherwise reliable. Applying this principle on the facts of the case it can be gathered that the witnesses did not know about motive but they disclosed what they heard from the appellant. Since the prosecution did not establish a motive in this case but the eye-witnesses stated what they heard, therefore, the prosecution was not under any legal compulsion or obligation to have gone a step further to establish the factum of raid on the hotel of appellant; particularly so when it was not established that factually the police raided the hotel of appellant at the instance of deceased or Syed Hashim. Besides this, the prosecution through reliable evidence fully established that the appellant came to the Welfare Trust where he found P.W. Hashim sitting, he started a quarrel saying that Milo did no good by asking the police to raid his hotel. Milo came out of the Trust and on seeing him, the appellant fired with his pistol at him. He fell down and then appellant fired at P.W. Syed Hashim who also received three bullet injuries and fell down. The question, therefore, arises whether the sentence awarded to the appellant by the learned trial Judge was a legal sentence and whether learned trial Judge assigned any reason for not passing normal sentence of death. Our attention was drawn by Mr. Azizullah Sheikh and Advocate-General, Balochistan to the portion of the judgment where the learned trial Judge passed the sentence. We have already reproduced the same. Learned trial Judge has not assigned any reason whatsoever for not passing normal sentence of death to the appellant. It is now well-established that if an accused is found guilty for an offence of brutally killing deceased, and there exist no extenuating circumstances, on record for awarding lesser sentence then sentence of death is the normal sentence for an offence under section 302, P.P.C. Reliance can be placed on the following judgments of the Honourable Supreme Court in this regard:--
(1) 1974 SCMR 242; (2) PLD 1975 SC 174; (3) PLD 1976 SC 452; (4) 1977 SCM R 389;(5) 1985 SCM R 484 and(6) 1991 SCM R 1622.
73. ' From perusal of aforesaid judgments it is established that although the discretion of the Court is wide in awarding sentence but the same should be exercised judicially and if it is found that an accused person has committed murder in a wanton and cruel manner, then the Courts should not hesitate in awarding death sentence in a murder case. It has also been observed that in a number of murder cases there is a kind of inhibition or hesitency on the part of the trial Court in awarding normal penalty of death. It is necessary in order to do complete justice to award the legal sentence of death if the charge against the accused under section 302, P.P.C. Is otherwise fully established. In case of Muhammad Shard v. Muhammad Javed alias Jeda Tedi and five others PLD 1976 SC 452 guidelines were provided for passing of sentence by Honourable Supreme Court in the following words:-- "In an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. The impression is unavoidable that there is often a marked tendency in the High Courts to find a labourered pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The Law of Evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the fmality of judicial proceedings as the executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not confined to the actual killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable: The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishmnent. The exaggerated and distorted F.I.Rs, the reluctance of eye-witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subornation and above all the lingering trials or appeals all combine to help out the murderers of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence, thus indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape their share of responsibility."
74. ' Applying the aforesaid principles on the facts of the present case it may be observed that the accused appellant proceeded to Welfare Trust with a loaded pistol. On seeing Syed Hashim he said in an angry mood that Milo did no good by asking the police to raid his hotel. On commotion deceased Milo came out of the Trust. On seeing Milo the deceased fired at him and receiving bullet injuries he fell down. He then fired at P.W. Syed Hashim who also received 3 bullet injuries and fell down. From here henceforth he proceeded towards Milo saying that he would not spare him today.
75. Milo was falling on the ground in a helpless condition after receiving two bullet injuries. Despite that the accused aiming at his neck fired the 3rd bullet which pierced in his neck and caused his death.
76. This part of the action to our calculated view was the most gruesome, brutal and inhuman. The appellant was not satisfied with the two bullet injuries inflicted to the deceased. He still proceeds further and from a very close range fires at the deceased aiming at his neck so that there should be no chance of his remaining alive. He does this in a cruel manner. These facts have been fully established on record through the testimony of eye-witnesses. Learned trial Judge totally ignored the manner in which accused acted. The appellant in fact committed cold blood murder in a cruel and wanton manner. There is absolutely no extenuating circumstance on record to justify a lesser punishment in the circumstances. Thus following the dictum laid down by the Honourable Supreme Court in the aforementioned judgment and the law we are inclined to accept the revision petition for enhancement of sentence, from life imprisonment to death which in fact is the normal sentence which ought toll-1 have been awarded by the trial Judge.
77. 'Since we have come to the conclusion that Jawad All committed murder of Muhammad Ismail Milo in a gruesome and wanton manner, therefore, he is found guilty for an offence under section 302, P.P.C. And is convicted for the said offence to death. He shall be handed by neck till he is dead.
78. Furthermore he shall be liable to pay a fine of Rs,50,000 or in default to suffer 3 years' R.I.
79. From the aforesaid discussion we have also inferred that case under section 307, P.P.C. Has also been proved against appellant Jawad Ali, therefore, J he is convicted under section 307, P.P.C. And is sentenced to suffer 10 years' R.I. And to pay a fine of Rs,10,000 or in default to suffer another 2 years' R.I.
80. ' Criminal Acquittal Appeal No,83 of 1992, Criminal Revision No,32 of 1992, Criminal Revision No,29 of 1992 and Criminal Jail Appeal No,90 of 1992 are thus disposed of in the aforesaid terms.