' MUNAWAR AHMED MIRZA, J.---This appeal, by leave of the Court is directed against judgment, dated 24th April, 1997, passed by Lahore High Court in Criminal Appeal No,156 of 1992 and Murder Reference No,53 of 1992.
2. The occurrence in this case had taken place on 10-10-1990 at 7-00 p.m. In the house of complainant located in Mohallah Bawli, Tehsil Kharian about two and half furlongs on the eastern side of Police Station Kharian. F.I.R. No,480 of 1990 under section 302/307/458/34, P.P.C. Was lodged with Police Station Kharian on basis of Fard-e-Bian (Exh.P.D.) of javaid Iqbal which was recorded by S.H.O. Incharge of Police Station Kharian about 7-45 p.m. Soon after the incident. It is the case of prosecution that complainant Javaid Iqbal after closing his shop returned home in the evening. At about 7-00 p.m. Suddenly appellant Ali Ashgar Shah trespassed into the house of complainant and entered his room and was followed by three armed persons who were later identified as Amjad Hussain Shah, Muhammad Iqbal and Liaqat Khalil. The appellant aimed pistol at the complainant and warned him to remain quiet. They asked the complainant to give them keys. Meanwhile brother-in-law of complainant namely, Sheikh Muhammad Qasim, who used to reside with him, after closing his business had reached there. On seeing above four culprits he raised hue and cries and tried to apprehend the appellant. Placed in above situation appellant Ali Asghar Shah fired a pistol shot at P.W. Sh. Muhammad Qasim which struck to his right shoulder and he fell down. On hearing alarm and cries Ahmed Khan, Zafarullah and Rehamdad alongwith few other persons arrived and they started following the appellant and his companions. Complainant and Ahmed Khan were also following them suddenly appellant fired a shot at Ahmed Khan which struck on his chest, who fell down and expired instantaneously. Eventually Zafrullah and Haji Rehamdad with assistance of others succeeded in apprehending appellant Ali Ashghar Shah alongwith pistol.
People had hurled stones and given Danda blows to appellant in order to overpower him whereupon he also received few injuries. However, his three companions managed to escape from the scene. Injured Sh. Muhammad Qasim was removed to hospital for medical treatment. After completion of investigation appellant Ali Asghar Shah and his three companions namely Amjad Hussain Shah, Muhammad Iqbal and Liaquat Khalil were challaned before Additional Sessions Judge; Gujrat. Prosecution examined eleven (11) witnesses to substantiate accusations against abovenamed four accused. After recording prosecution evidence, the trial Court examined appellant and his three companions under section 342, Cr.P.C. Appellant Ali Ashgar Shah did not dispute his presence on the spot and expressed that he was injured by Sh. Muhammad Qasim and deceased Ahmed Khan. Maintaining details about incident and reasons of false involvement in the case he has furnished following explanation while replying question No,8 during his 342, Cr . P. C .
Statement : "Q.
8. Why this case against you and why the P.Ws. Have deposed against you?
Ans:. Javaid Iqbal complainant is a rich person. He joined hands with police and after distorting the real facts concocted a false story, the true facts are that I was employee with him at his shop at pay of Rs,1,200 per month. I was involved then in a police case and after I was acquitted in the said case went to the shop of complainant and demanded the arrears of my salary amounting to Rs,9,600. He kept me putting off on one pretext or the other. On the evening of occurrence, I went to the house of the complainant and at that time, he was not present in his house. However, Qasam P.W. Was present there at the time. I told Qasim that I had come to get the arrears of my pay.
Wasam P.W. Started abusing me in most vulgar terms. In the meantime, Ahmed Khan deceased also came there and he also joined hands with Qasam P.W. And told me that I should quit the house to which I told Ahmed Khan deceased that he had no business to interfere which Ahmed Khan deceased also started abusing me without any rhyme or reason. 0 (sic) also then in exchange of abuses Ahmed. Ahmed Khan deceased at that time was armed with a Danda and started giving Danda blow to me. I then grappled with Ahmed Khan deceased and in the meantime, Qasam P.W. Brought a pistol from inside the house and started giving butt blows to me.
Ahmed Khan in this process also continued giving blows with Danda to me. I then snatched away pistol and tried to ran away then again the pistol was taken up by Qasam and in the meantime, a grappling ensued between me and Qasam P.W. And in this process against I succeeded in snatching the pistol from Qasam P.W. And fired with that pistol in the air to frighten the deceased and the P.Ws. But accidentally both of them were hit by the fire shots. The other P.Ws. Were not present at the time of occurrence no other accused were present at that time. It was dark at the time of occurrence."
3. The other three accused categorically denied the accusations claiming to be innocent and alleged false implication on account of enmity. All the accused had, however, declined to give statements on oath as envisaged under section 340(2), Cr.P.C. They also did not lead any defence.
Learned Additional Sessions Judge, Gujrat on the appraisement of entire evidence brought on record by means of judgment, dated 21-1-1992 found the three accused guilty for the offence under section 451/34, P.P.C. And on conviction sentenced them to undergo R.I. For a period of three years each; besides fine of Rs,3,000 or in default further R.I. For six months each. However, accused Liaqat Khalil, Amjad Hussain Shah and Muhammad Iqbal were acquitted of the charges under section 302/307/34, P.P.C. For want of proof. Whereas appellant Ali Asghar Shah was found guilty for trespassing into the house of complainant to commit theft and thereby had also injured P.W. Sh.
Muhammad Qasim and murdered Ahmed Khan by firing pistol shots and on conviction under section 302, P.P.C. Was awarded death sentence, besides fine of Rs,50,000. He was also sentenced for a period of ten years with regard to injuries inflicted upon Sh. Muhammad Qasim, in addition to fine of Rs,10,000.
4. Aggrieved from above conviction and sentence appellant Ali Asghar Shah preferred Criminal Appeal No,156 of 1992, whereas co-convicts, who were sentenced only under section 451, P.P.C. Had separately challenged their conviction and sentence. Murder Reference No,53 of 1992 seeking confirmation of death sentence awarded to appellant Ali Asghar Shah also came up for hearing alongwith above appeal. Ultimately Division Bench of Lahore High Court by means of judgment, dated 24-4-1997 had dismissed the appeal confirming death sentence of appellant Ali Asghar Shah. Operative portion is reproduced below:-- "(5) We have heard the learned counsel and gone through the evidence with his assistance. As far as the time of occurrence place of occurrence and weapon with which the occurrence had taken place, are concerned, Ali Asghar Shah appellant in his statement under section 342, Cr.P.C. Has also admitted them. Prosecution has established this fact from the statement of Javed Iqbal, Zafarullah and Muhammad Qasam, P.Ws. 4,5 and 8 respectively. All of them had stated that the occurrence had taken place at about 7 p.m. Inside the house of Javed Iqbal, P.W. Where Ahmed Khan was done to death with pistol. As far as the main occurrence is concerned, the prosecution has led evidence consisting of Javed Iqbal, Zafarullah and Muhammad Qasam, P.Ws. Who had witnessed the occurrence. Admittedly the occurrence had taken place inside the house of Javed Iqbal, therefore, his presence cannot be doubted and he becomes a natural witness. Muhammad Qasam P.W. Was brother-in-law of said Javed Iqbal and used to help him. This aspect has not been challanged by the defence. He is injured as well, therefore, his presence at the spot is established as well.
Zafarullah, P.W.5 came to the spot on hearing the commotion. In cross-examination he stated that he lived at a distance of 100 yards from the spot, therefore, he is also a natural witness whose presence can be relied upon. All the witnesses have given a detailed account of the occurrence.
They were put to the, test of lengthy cross-examination wherein no motive or against any of the appellants was put to any of the witnesses. All the witnesses unanimously stated that they did not even know the appellants prior to the occurrence, which establishes their independence. All the eye-witnesses stated that after the Occurrence Ali Asghar Shah was apprehended at the spot with a pistol. This fact is corroborated by the statement of the investigating officer who effected arrest of Ali Ashgar Shah at the spot. The pistol of the appellant as well as the empties recovered matched. This also lends corroboration from the statements of the eye-witnesses. After having serutinized the statements of the eye-witnesses, we are convinced that they are independent and truthful witnesses who can safely be relied upon.
' The defence of Ali Asghar Shah appellant has been considered but we are of the view that no reliance on it can be placed. If he was employed by Javed Iqbal P.W. At his shop, then the appellant should have visited the shop. There was no occasion for him to go to his house after working hours demanding arrears. Similarly, there was no occasion for him to bring three other persons along as well if the motive was only to demand his salary. Therefore, the defence version is ruled out.
' For what has been discussed above, we hold the prosecution has been able to prove its case beyond reasonable doubt. Resultantly the appeals fail, which are, accordingly dismissed.
' Death sentence of Ali Asghar Shah is confirmed."
5. Appellant has assailed above conviction and sentence awarded to him through Criminal Petition for Leave to Appeal No,182-L of 1997 before this Court. Leave was, however, granted on 16-4-1998 in the following terms:-- "3. It is contended that there has been a gross misreading of evidence by the learned trial Court and the High Court and the defence version was not considered in proper perspective, that in the medical examination as many as 15 injuries, were found on the person of Ali Asghar Shah, but his explanation about the injuries was not given due weight. It is further contended that since the prosecution version was not accepted in toto, some independent corroboration should have been sought from the prosecution evidence before acting upon it qua the present petitioner.
4. Leave is granted to consider the above points."
6. Ch. Riasat Ali, Advocate Supreme Court for appellant, strenuously challenged the propriety of conviction recorded against the appellant and raised following contentions:--
(i) P.W. Sh. Muhammad Qasim was injured inside the house, whereas deceased Ahmed Khan, according to prosecution evidence, was outside the house. Therefore, no cognizable offence having been committed within the view of deceased Ahmed Khan, he had no right or authority under the law to apprehend/arrest the appellant. Therefore, extreme penalty was not warranted.
Reliance placed on the observations in case The State v. Muhammad Akbar (PLD 1966 SC 432).
(ii) Appellant had received several injuries and had furnished explanation specifying circumstances under which he was arrested, but both the forums below have ignored to examine this aspect and plea specially raised in his statement under section 342, Cr.P.C., therefore, conclusions drawn in the impugned judgments are defective and one-sided.
(iii) There exist glaring contradictions in the statements of eye-witnesses, therefore, details about apprehension of the appellant on the available evidence is doubtful.
(iv) Prosecution itself had to establish case against the appellant on its own strength rather than finding lacunas in the defence. Even otherwise it could not be assumed that appellant had fired with knowledge that same may be fatal and result in causing death of the persons following him.
The circumstances suggest element of attempting to rescue his own life. Even alternatively case would not fall under section 302(a) or 302(b), P.P.C. And sentence was required to be altered and considerably reduced. Reliance was placed on the observations of case Darya Khan v. Crown (1969 SCM R 637).
7. Mr. Dil Muhammad Tarar, Advocate Supreme Court appearing for the State, vehemently opposed the appeal. It was contended that P.W.4 complainant Javaid Iqbal, P.W.5 Zafarullah and P.W.8 injured Sh. Muhammad Qasim are eye-witnesses. They have deposed against the appellant, establishing his responsibility for committing murder of Ahmed Khan, and injuries to Sh.
Muhammad Qasim besides trespassing into the house of complainant. He maintained that testimony of these witnesses has been rightly believed by both the Courts below. Learned State Counsel stressed that conviction and sentence awarded to appellant was covered by section 302(b), P.P.C. And was legal and proper. The stand taken by the appellant explaining circumstances while replying question No,8 during his statement under section 342, Cr.P.C. Has not been put to any of the prosecution witness, specially when it was directly related to them.
Therefore, no advantage can be claimed by him in that behalf. Factum of injuries on the person of appellant and his stand have been dealt with by both the Courts below and ruled out in view of proponderant prosecution evidence. Therefore, ground agitated for challenging propriety of impugned judgments are not tenable.
8. We have carefully considered entire evidence on record and relevant case-law in the light of above submissions.
9. It may be seen that P.W.4 complainant Javaid Iqbal in his deposition before the Court has narrated entire incident mentioning about arrival of appellant Ali Asghar Shah duly armed with pistol in his room of the house alongwith three armed companions and after warning him ,demanded keys. He also affirmed that P.W.8 Sh. Muhammad Qasim, incidentally arrived at the time and seeing the said witness attempted to apprehend the appellant when he fired pistol shot causing injuries and running out to escape. Complainant has also unequivocally mentioned about firing of appellant at Ahmed Khan, tonga driver, who alongwith him was following appellant and his resultant instantaneous death on the scene. He also explained the manner in which eventually they overpowered and apprehended the appellant alongwith crime weapon. Despite gruelling cross- examination by the defence, stand taken by appellant during his 342, Cr.P.C. Statement about firing at the deceased and injured has not been put across to the witness. Only point, from the deposition of complainant was highlighted by the learned counsel for the appellant, indicated that internal portion of the house is not visible from the place where deceased Ahmed Khan was injured by the appellant over the outer wall. P.W.5 Zafarullah in his testimony has fully corroborated version of complainant. Despite searching cross-examination nothing substantial was elicited besides stand taken by the appellant during his statement under section 342, Cr.P.0 was not asked from him.
Similarly, P.W. 8 Sh. Muhammad Qasim has affirmed the details of occurrence specifying that appellant had fired at him and he was responsible for causing murder of Ahmed Khan. Statement of this witness also remained unimpeached despite extensive cross-examination. No question about the stand taken by appellant in his statement recorded under section 342, Cr.P.C. Was put during cross-examination to this witness as well. P.W. Dr. Abdul Ghaffar had performed autopsy on the dead body of Ahmed Khan. Giving details of injuries it was unmbiguously mentioned by him that fire-arm entry wound on the middle line of chest was found on the person of deceased Ahmed Khan, which was sufficient to cause death in ordinary course of nature. P.W.3 Dr. Zafar Iqbal Gondal has proved medical certificate (Exh.PC) showing injuries on the person of P.W.8 Sh. Muhammad Qasim. He also produced medical certificate (Exh.PB) indicating the injuries which were received by appellant in the process of his apprehension. The injuries on his person were found to be simple and caused by blunt weapon. Other pieces of evidence connecting the appellant with the commission of offence were also brought on record through prosecution witnesses. Presence of above three eye-witnesses at place of occurrence is plausible and natural. Their testimony of all the relevant circumstances is reliable and confidence inspiring. There is hardly any contradiction in their statements which may affect their veracity. P.W.5 Zafarullah is disinterested and has corroborated complainant Javaid Iqbal and injured Sh. Muhammad Qasim. He also affirmed recovery of .30-bore pistol with three live cartridges from the possession of appeallant through memo. (Exh.PE). Medical evidence fully supports ocular version. Therefore. Accusations against the appellant about trespassing into the house of complainant, demand of keys, thereafter firing at Sh.
Muhammad Qasim and while running away causing murder of Ahmed Khan are duly established.
Report of the Ballistic Expert (Exh.PP) is positive also confirms prosecution case. Even otherwise factum of firing at injured Sh. Muhammad Qasim and deceased Ahmed Khan by the appellant has not been disputed in his statement under section 342, Cr.P.C. Thus, when stand of the appellant is placed in juxtaposition with preponderant prosecution evidence appears, to be concocted and afterthought. Therefore, same has been rightly ruled out of the consideration by the High Court in the impugned judgments. It is quite probable and common that if a person who enters a house for theft or dacoity and also kills a person on the way possibility of people's hurling stones or giving many danda blows in the effort to apprehend him is quite natural. Therefore, appellant cannot claim any advantage on the basis of simple injuries with blunt weapon received by him in said process.
10. On thorough serutiny and critical analysis of the entire record it is quite apparent that both the Courts below on proper evaluation of evidence had rightly concluded about appellant's responsibility for causing murder of Ahmed Khan and injuries to Sh. Muhammad Qasim besides trespassing into the hbuse of complainant.
11. Now question arises with regard to desirability of extreme penalty awarded to appellant by both the forums below when looked in the perspective of law and determine what should be adequate sentence. The reported judgment in case of State v. Muhammad Akbar (PLD 1966 SC 432) which has been referred by learned counsel for appellant, suggests that private person under section 59, Cr.P.C. Has right to apprehend the person only if he notices the commission of non-cognizable offence within his view.
12. In the present case firstly it may be seen that deceased Ahmed Khan alongwith others was running towards the appellant who having committed trespass in the house of complainant and causing injuries to P.W. Sh. Muhammad Qasim was running out of the house with loaded pistol. No overt action was taken by Ahmed Khan for apprehending appellant as clearly reflected from the prosecution evidence till appellant fired shot on his chest resulting in his instantaneous death.
Therefore, appellant cannot seek protection under section 59, Cr. P.C. And create a justification for firing at deceased on the plea that no offence had been committed within his view.
13. Secondly, according to the reply given by the appellant to question No,8 during his 342, Cr.P.C.
Statement, deceased was present at the time when he inflicted fire shot injuries on injured Sh.
Muhammad Qasim. From this it naturally follows that the entire incident showing the commission of cognizable C offence of injuring Sh. Muhammad Qasim by the appellant had taken place within the view of the deceased and, therefore, he was justified to follow and apprehend the appellant.
14. Thirdly, in any case, keeping under consideration the background of the circumstances brought on record it is obvious that the appellant, who was stranger, after firing inside the house, was running out with a loaded pistol whereas people from the vicinity were attracted on hue and cry raised by the inmates including the complainant who was following the appellant. In this senario a criminal house trespass by appellant was noticeable which certainly constituted cognizable offence within the view of the deceased. Thus, even on this score no benefit can be claimed by the appellant under section 59(1), Cr.P.C.
15. A bare perusal of section 59(1), Cr.P.C. Discloses that right of private persons is extended not only for apprehension of a person who commits any cognizable and non-bailable offence but also against proclaimed offenders. Obviously, it cannot be contended that every proclaimed offender would have committed a cognizable and non-bailable offence within the sight of such private persons. It perhaps appears that the words "in his view" do not merely mean "within the sight of a private person" but also refer to a situation where, from the facts and circumstances, the private person may be satisfied or firmly believes that culprit has committed a serious offence and is attempting to escape. If this interpretation is adopted, such 'private persons will have the authority under the law to follow and take the culprit into custody. In support of such broader interpretation, it could be argued that a narrow interpretation of section 59(1) would deter private persons or the general public from making efforts to apprehend or obstruct real culprits trying to run away from the scene of the occurrence. However, we do not consider it necessary to give any final opinion on this interpretation of section 59(1), Cr.P.C. And keep this question open for an authoritative judgment by this Court in some other appropriate case.
16. Additionally there is absolutely not an iota of evidence on record which may dislodge ocular version. No circumstance is made out which may indicate even remote probability of provocation caused to appellant justifying his firing on the deceased or P.W.8 Sh. Muhammad Qasim. Therefore, reference to Darya Khan's case (supra) is inapt.
17. Both the Courts below on thorough reappraisal had correctly held the appellant guilty for the offence and on conviction awarded capital punishment. On re-evaluation and consideration of all the above relevant factors and attending circumstances we are satisfied that impugned judgments are not open to any exception.
Consequently the appeal having no merits is dismissed.