MEHBUB ALI KHAN, J.---Muhammad Ayub the respondent-accused faced prosecution before Additional Sessions Judge, Haripur on a double murder charge and on the conclusion of trial the learned Court while finding him guilty of the commission of an offence punishable under section 302(b), P.P.C. Convicted the accused and sentenced him to suffer rigorous imprisonment for a term of 7 years with fine of Rs.1,50,000 or 2 years' R.I. In default, vide judgment and order, dated 19-12- 1994. The convict being satisfied with his conviction and sentence did not appeal while P.W.
Muhammad Sheraz (lodger of the report) has moved this Court in revisional jurisdiction under section 435 read with section 439, Cr.P.C. With a prayer, that term of sentence awarded to the accused may be enhanced into death or imprisonment for life as ' Tazir' having regard to the facts and circumstances of the case.
2. The event of murder as we find in the report lodged by P.W. Muhammad Sheraz with Bukhtiar Ahmad S.H.O., Police Station, Ghazi on the spot at 9 a.m. On 12-5-1991 arose as under:-- ---P.W. Muhammad Sheraz accompanied by his father Sikandar Khan, cousin Munsif Khan and brother Muhammad Riaz at morning on the fateful day started from village Ghor-Ghashti for harvesting wheat and when arrived at village Jharian near the Police Post, Muhammad Sheraz and Muhammad Riaz stopped at their tube-well while Sikandar Khan and Munsif Khan proceeded onward. They immediately on the report of fire shots came out of the tubewell and noticed accused Muhammad Ayub firing at Sikandar Khan and Munsif Khan who simultaneously on the receipt of gun shots fell to the ground and expired. P.W. Sher Afzal son of zafar Khan who happened to be present near the spot also witnessed the event besides the complainant and his brother.
Many people from the surroundings were collected at the venue in the meanwhile on the alarm raised by Muhammad Sheraz. The accused by then decamped from the spot with a .12 bore shot gun in hands. Muhammad Ayub had some landed dispute with Sikandar Khan which p. W .
Muhammad Sheraz has mentioned in the report as motive behind the killing of his father and cousin."
3. The event had allegedly taken place at 8-30 a.m. While Muhammad Sheraz lodged the report with Bukhtiar Ahmad, S.H.O. On the spot at 9 a.m. The S.H.O. Happened to be on, ' Gusht' in Bazaar at village Khalu and immediately on hearing the news reached the venue with police party. P.W.
Bukhtiar Ahmad, S.I. After transmitting the Murasila Exh. P.A/1 to P.S. For registration of a regular case took detailed inspection of the spot. He picked four' .12 bore empties from the venue and prepared site plan Exh. P.W.13/1 correct with foot notes at the pointation of eye-witnesses and injury statements, inquest reports Exhs. PWS.8/2, 8/3, 8/5 and 8/6 of the two deceased. The I.O. Found dead body of Sikandar Khan deceased at point No.1 and that of Munsif Khan at point No.2. He took into possession blood-stained earth from these places and sealed it into parcel. P.W. Muhammad Sheraz saw accused Muhammad Ayub while firing with a .12 bore shot gun at the deceased from point No.3. Point No.4 denotes the place of P.W. Muhammad Riaz and point No.5 that of Sher Afzal.
The accused had fired while standing at point No. 6. The distance between points Nos. l and 6 is ten paces, 2 and 6 twelve paces, 1 and 3 thirty-seven paces, 1 and 4 thirty-six paces and 1 and 5 thirty paces. Accused MuhammadAyub during the process of decamping was immediately after the event caught by F.Cs. Jehanzeb, Fazalur Rehman, Sharafat and Fazal Dad and brought to Police Check Post, Jharian. The S.H.O. On arrival to the spot made formal arrest of the accused and disarmed him of a .12 bore automatic shot-gun with a bandolier containing 5 live cartridges (vide memo Exh. P.W.3/1) of which F.Cs. Fazalur Rehman and Sharafat are signatories. The accused on 14- 5-1991 was produced before Mr. Azizullah Khan, Resident Magistrate, Tarbela (P.W.7) who recorded his confessional statement (Exh. P.W.7/3) which after having been read over to the accused was duly signed by him alongwith the questionnaire Exh. P.W.7/2.
4.Dr. Muhammad Qasim (P.W.8) on 12-5-1991 conducted autopsy on the dead body of Sikandar Khan deceased at Rural Health Centre, Ghazi and found on external examination:---
(1) A fire-arm entrance wound on the right side of face over the maxilla (cheek)5 c.m. x 2.5 c.m.
(2) A fire-arm exit wound behind the right ear 7 c.m. x 3 c.m.
The Doctor recovered two pellets from back of the skull.
On internal examination the Doctor found scalp, skull, membrane and brain injured. In his opinion the death had occurred due to fire shot injury to the brain which was instantaneous.
5. On the same day Dr. Muhammad Qasim also conducted post-mortem on the dead body of Munsif Khan and found on external examination:--
(1) A fire-arm entrance wound on the right side of nose 1.5 c.m. x 1.5 c.m.
(2) A fire-arm exit wound on the right side of skull behind the ear 2.5 c.m. x 1 c.m.
(3) Three fire-arm exit wounds 1/2 c.m. x 1/2 c.m.
(4) Right ear pinna injured on the top with a wound 2.5 c.m. x 1/2 c.m. A piece of pellet was recovered from this wound.
On internal examination the Doctor found scalp, skull, brain, membrane injured. In his opinion the death was instantaneous and caused as a result of fire shot injury to brain. He accepted the correctness of his post-mortem report Exh.P.W.8/4.
6. Muhammad Sheraz (P.W.9) is son of Sikandar Khan deceased and lodger of the report Exh.P.A/1 with Bukhtiar Ahmad, S.H.O., Police Station Ghazi on the spot. His statement made before the trial Court would indicate that after taking breakfast in the house on 12-5-1991 Muhammad Sheraz accompanied by his father Sikandar Khan, cousin Munsif Khan and brother Muhammad Riaz started for harvesting wheat and when they reached at tubewell in village Jharian near Police Check Post complainant and Muhammad Riaz stopped on the tubewell Sikandar Khan and Munsif Khan went ahead to the fields for cutting wheat crop. In the meanwhile Muhammad Sheraz heard the report of fire shots and saw accused Muhammad Ayub firing at his father and cousin with a shot gun who simultaneously on the receipt of injuries fell to the ground and expired. Muhammad Sheraz and Muhammad Riaz rushed towards the deceased while accused Muhammad Ayub in the meanwhile decamped from the spot. On their alarm some people from the vicinity gathered on the spot followed by local police headed by Bukhtiar Ahmad, S.H.O., P.S. Ghazi with whom Muhammad Sheraz lodged the report within 30 minutes. Accused Muhammad Ayub resides at the same place where tubewell of the complainant party and the disputed land situate. Police Check Post Jharian according to the statement of P.W. Muhammad Sheraz lies at a distance of about 100 paces from the spot. The complainant stated that accused while decamping from the venue was intercepted by the policemen posted at the Check Post. P.W. Muhammad Sheraz almost on all material particulars corroborated contents of his report. Sher Afzal son of Muzaffar Khan (P.W.10) who is a resident of village Ghor --Ghashti and has been mentioned in the report as an eye-witness by Muhammad Sheraz also narrated happening of the event almost in the same manner. Sher Afzal was going to Ghazi on that day and in order to get some conveyance he went to Jharian Bus Stop.
He heard the report of fire shots in the meanwhile while proceeding towards the road side and saw accused Muhammad Ayub firing at Sikandar Khan and Munsif Khan with a .12 bore shot gun. In his view both the deceased on the receipt of fire shots fell to the ground and succumbed to their injuries. Sher Afzal had before firing seen P.Ws. Muhammad Sheraz and Muhammad Riaz coming out of their tubewell on hearing the fire shots. He stated that on the noise raised by Muhammad Sheraz and Muhammad Riaz people from the surrounding collected on the spot followed by local police headed by S.H.O., Police Station,, Ghazi within 15 minutes. Sher Afzal has stated that Police Post Jharian is at a distance of about 10 to 15 paces from the venue and the S.H.O. Recorded report of Muhammad Sheraz at the Check Post.
7. Bukhtiar Ahmad, S. H. O. Police Station, Ghazi (P.W.13) dtposed, that on 12-5-1991 he was at village Khalu' when got news of the event and immediately proceeded towards the spot alongwith police party and on arrival recorded report Exh.P.A/1 at the instance of P.W. Muhammad Sheraz which he afterwards sent to Police Station for registration of a case against the accused. The S.H.O. Then inspected in detail the venue and took into possession some blood-stained earth and 4 empties of .12 bore shot gun. He drew site plan Exh.P.W.13/1 on the pointation of the eye-witnesses and prepared the injury statements and inquest reports (Exh.P.W.8/2, Exh. P.W.8/3, Exh. P.W.8/4 and Exh.P.W.8/6) of the deceased and sent the dead bodies to Rural Health Centre, Ghazi for post- mortem. Bukhtiar Ahmad S.H.O. Arrested accused Muhammad Ayub on the spot and disarmed him of a .12 bore S.B. Automatic shot gun Exh.P.5 with 5 live cartridges Exh.P.7 and a bandolier Exh.P.8 in presence of witnesses mentioned in the memo. Exh.P.W. 3/1. Bukhtiar Ahmad S.I. Produced accused Muhammad Ayub before a Magistrate on 14-5-1991 and he made a statement confessing guilt. The deceased had gone to harvest wheat from land shown at point ' A' in the site plan wherefrom dwelling house of the accused situates at a short distance of few paces. Mr. Azizullah Khan (P.W.7) was Resident Magistrate at Tarbela during those days. Accused Muhammad Ayub was produced before him on 14-5-1991 by the local police who voluntarily made a confessional statement (Exh.P.W.7/3). P.W. Mr. Azizullah Khan before the trial Court has stated that accused was given sufficient time to ponder over the matter in free atmosphere by making him sit on the dias in his Court-room after his handcuffs were removed and police officials turned out. The appellant in his statement recorded under section 342, Cr.P.C. Although admitted of making a statement before Mr. Azizullah Khan, Resident Magistrate, Tarbela on 14-5-1991 but stated that it is not faithful rendering of the account given by him. He did not, however, make any statement on oath or produced defence.
8. We have heard Mr. Mushtaq A.I Tahir Kheli Advocate on behalf of the petitioner complainant of this criminal revision petition, namely, Muhammad Sheraz son of Sikandar Khan deceased, Mufti Muhammad Idris Advocate for accused-respondent Muhammad Ayub and the State Counsel who mainly spoke in line of the arguments addressed by Mr. Tahir Kheli. It is pertinent to note that accused Muhammad Ayub against his conviction and sentence did not file any appeal. The prosecution ocular evidence in this case consists of the statements of P.Ws. Muhammad Sheraz and Sher Afzal. Muhammad Sheraz who had accompanied his deceased father and cousin early morning from the house had seen event alongwith his brother Muhammad Riaz who on the report of fire shots came out of the tubewell situated at close range from the venue and saw accused Muhammad Ayub firing with an automatic .12 bore shot gun at both the deceased. The occurrence had taken place at 8-30 a.m. On 12-5-1991 on the road side near Police Post Jharian while Muhammad Sheraz lodged a report with P.W. Bukhtiar Ahmad, S.H.O. On the spot at 9 a.m. The police had reached the venue within 15 minutes from village Khalu' where the S.H.O. During gusht' heard the news. The report made by P.W. Muhammad Sheraz is a straightforward narration of facts of the event. He has also mentioned of Sher Afzal as an eye-witness of the happening in the report who appeared before the Court during trial of the case and made a statement as such. The motive was some land dispute between Sikandar Khan and accused Muhammad Ayub which had been allegedly resolved before the occurrence by the partitioning of that piece of land between the deceased and accused Muhammad Ayub as Court statement of the complainant indicates, the fact which has been admitted further by the accused himself in his statement recorded under section 342, Cr.P.C. P.W. Sher Afzal in his statement corroborated the evidence of Muhammad Sheraz complainant on all material particulars. We fail to understand that on what material other than the evidence recorded before the trial Court the learned Additional Sessions Judge showed his doubts on the eye-witness account of the event narrated by P.W. Muhammad Sheraz and about his presence on the spot at the relevant time by advancing a fancy reason, that if Muhammad Sheraz had been armed at the relevant time on the spot alongwith his brother Muhammad Riaz they both would have killed the accused and in case they were not armed the accused would have killed them. It was no occasion for the complainant to have killed the accused even if he was armed for the simple reason, that accused Muhammad Ayub immediately after the event was caught by the Police Constables of Police Check Post, alongwith the crime weapon and produced before the S.H.O. Within few minutes. The presence of P.W. Muhammad Sheraz on the spot is not only established by the reason of his making report with Bukhtiar Ahmad, S. I. At the venue within a span of 30 minutes but also from the statements of P.Ws. Sher Afzal and that of I.O.
Bukhtiar Ahmad himself who happened to be author of the report himself and arrested the accused on the spot. There is nothing on the record to suggest that why P.W. Sher Afzal made a false or biased statement or that he had any axe of his own to grind against the accused. Similarly, the learned trial judge had no reason with him showing doubt on the presence of P.W. Sher Afzal on the spot at the relevant moment. He at the same time, however, got himself convinced with the truthfulness of prosecution evidence that the accused was apprehended by the police at the spot and disarmed of a .12 bore automatic shot gun. He believed evidence of F.Cs. Fazalur Rehman and Jehanzeb on this score by stating that they had neither any animosity against the accused nor a motive to implicate him in a false case. The learned trial Judge further believed opinion of the Arms Expert that 4 empties recovered from the spot had been fired from the shot gun of which the accused was disarmed at the time of his arrest.
9. The accused on the 3rd day of his arrest appeared before Resident Magistrate, Tarbela and made a detailed confessional statement. He subsequently in his statement recorded under section 342, Cr. P.C. Recorded on theconclusion of trial of the case did not disown of making said statement before Mr. Azizullah Khan Magistrate but complained that it is not faithful rendering of the account given by him. The accused did not, however, elaborate that which facts he told to the Magistrate and he did not record or which facts he did not tell but the Resident Magistrate of his own added in the statement. A bare reading of the confessional statement (Exh.P.W.7/3) would indicate that the accused had gone to England in the year, 1953 wherefrom he remitted sizeable amount of money to Sikandar Khan who purchased land for him but the deceased did not afterwards deliver possession of the purchased land to the accused on his return from England despite his best efforts. That on the day of occurrence when Sikandar Khan wanted to cut standing wheat crop from the said land the accused also went there armed with a .12 bore shot gun and on seeing him when Sikandar Khan tried to attack him and snatch from the accused his shot gun it (the shot gun) during the encounter that took place went off and injured Sikandar Khan. That Munsif Khan nephew of Sikandar Khan who was present at the occasion wanted to attack the accused with a dagger and he in private defence of his life fired at Munsif Khan. That in the meanwhile police from check post arrived and caught hold of him and took him to the check post. But the accused in his statement recorded under section 342, Cr. P.C. Showed total ignorance of the event and did not say a word that he ever fired at the deceased in the exercise of his right of private defence of life and property.
10. Mr. Mushtaq A.I Tahir Kheli, Advocate while speaking on behalf of the petitioner stated, that the accused in his confessional statement recorded before a Magistrate on the third day of his arrest stated that Sikandar Khan got killed when the deceased on seeing the accused near the land whereupon he puts an ownership claim advanced towards the accused for snatching .12 bore shot gun from his hands and in the grappling that took place the gun went off and hit Sikandar Khan while he shot at Munsif Khan who immediately after that wanted to attack the accused with a dagger and in this way he pleaded a case of self--defence of life and property. But the accused did not say a word when examined under section 342, Cr.P.C. On the question of confessional statement by answering simply that he made a statement before Mr. Azizullah Khan, Resident Magistrate, Tarbela "but it is not the faithful rendering of the account given by me". That the accused did not, however, elaborate as what part of the statement renders faithful account and what part of it he disowns. He in this way neither accepted truthfulness of this statement nor resiled therefrom. The learned Advocate, therefore, argued by placing reliance on Article 121 of the 'Qanun- e---Shahadat', 1984 that burden of proving that case of the accused comes within exception was on his shoulders and he was to discharge this burden by proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Panel Code, or within any special exception or proviso contained in any other part of the same Code and the Court shall presume the absence of such circumstances. He argued further by referring to Article 122 of '
Qanun-e-Shahadat' that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. By stating further the learned counsel contended that the accused not only could prove that he acted in self-defence in the murdering of two persons showed on the contrary complete ignorance of the event when examined before the Court under section 342, Cr.P.C.
11. Mufti Muhammad Idris, Advocate conversely argued on behalf of the accused, that confessional statement made by his client has to be read as a whole and either accepted or rejected in entirety.
He stated further that nevertheless the accused was entitled to support his plea of private defence from the circumstances appearing from the prosecution evidence and that the right of an individual to defend himself against any aggression whether against his person or property being recognized by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah the Courts are bound to apply the provisions of law even if they do not make any allowance relating to a ' Qatl' committed in self---defence and referred to section 338-F, P.P.C. And in support thereof placed reliance on the cases 1994 SCMR 1733, PLD 1994 SC 679 and PLD 1994 Lahore 392.
12. Undoubtedly, the, accused even if did not produce any evidence of his own nevertheless was entitled to support his plea of private defence from the circumstances appearing from the prosecution evidence itself. But the prosecution evidence recorded in this case would indicate that it is of no assistance to the accused and he cannot, therefore, make out any case in support of his plea of private defence. The evidence of his adversaries on close review does not spell out even to a reasonable possibility that his plea of self-defence might be true. The cited Supreme Court cases as such are distinguishable. Similarly a question arose before the Court in the cited Lahore case, that as to whether a "Qatl" committed on account of 'Ghairat' would not be a "Qatl-i---Amd" pure and simple and persons found guilty of such "Qatl" would deserve concession is. Also distinguishable for the reason, that accused in this case did not take any plea that he killed the two deceased on ' Ghairat' nor anything can be located from the prosecution evidence that there was any element of ' Ghairat' involved in this case which prompted the accused in killing two persons.
This would be besides the point that the prosecution case has been proved against the accused beyond any reasonable doubt not only on the testimony of two eye--witnesses but also on this strong circumstance that he immediately after the event was arrested on the spot by the Police Constables of the Check Post and disarmed of the crime weapon, the evidence which by itself was sufficient to base conviction of the accused on the murder charge notwithstanding the lone circumstance of his confessional statement which at the most can be read in corroboration to the said ocular and circumstantial evidence. The learned trial Judge rightly did t9tis and held the accused guilty of the murder of Sikandar Khan and Munsif Khan deceased but in his opinion the accused acted in the exercise of his right to defend his property and his case came under exception.
13. This is not true as we find from the evidence. The murders have not taken place in the land owned and possessed by accused Muhammad Ayub comprised in Khasra No.47/1/1 but on the bank of Lawrencepur Ghazi Road wherefrom the 1.0. Recovered blood and collected the dead bodies. These places have been shown by Bukhtiar Ahmad, S. I. In the site plan as points Nos.1, 2 and 6. It, therefore, followed that neither any grappling before the firing took place between accused Muhammad Ayub and Sikandar Khan deceased nor the accused had any occasion to kill Munsif Khan. The reason being that in case of any grappling between Sikandar Khan and accused Muhammad Ayub there had been blackening/charring on the dead body of the deceased the gun having been allegedly gone off during that process and similarly the non-recovery of any dagger from the spot would also falsify that Munsif Khan wanted to assault Muhammad Ayub with a dagger after the first fire shot and accused in defence of life and property had to fire at the deceased. The accused in the circumstances never acted in defence of life or property by putting two persons to death I simultaneously with fire shots discharged from an automatic .12 bore gun and his being a wanton act could not be ignored or excused on any score. He could have been, therefore, outrightly convicted under section 302(b), P.P.C. Having been found guilty of the commission of an offence of "Qatl-e-Amd" and punished with death or imprisonment for life as "Tazir" having regard to the facts and circumstances of the case which we would by accepting this revision petition enhance to the sentence of life imprisonment on two counts. We do not understand as to how the punishment provided under section 302(b), P.P.C. Being either death or imprisonment for life the learned trial Judge did pass a sentence of 7 years after having convicted the accused. The accused would further make payment of a sum of Rs.4,00,000 (two lacs each) as compensation to the legal heirs of deceased Sikandar Khan and Munsif Khan under section 544-A, Cr.P.C., which shall be recoverable as arrears of land revenue and the accused in default suffer imprisonment for a period of 6 months.
The revision petition in these terms shall be disposed of.
N.H.Q./1965/P Sentence enhanced.