' RIAZ KAYANI, J.--- Haji Ahmad and Muhammad Bilal sons of Haji Wahid Bakhsh through this Criminal Appeal have called in question the judgment of Additional Sessions Judge, Bahawalpur, dated 6-8-1995 whereby Haji Ahmad was convicted under section 302-B, P.P.C. For the murder of Haji Ahmad son of Piran Ditta and was sentenced to death. Haji Ahmad was acquitted of the charge under section 324, P.P.C. Muhammad Bilal was convicted under section 324, P.P.C. For causing injuries to Gulzar Ahmad P.W. And was sentenced to 10 years' R.I. And a fine of Rs,20,000.
The fine if realized half of it was to be paid to Gulzar Ahmad injured P.W. And the remaining to be deposited in the Government treasury, in default of payment of fine he was ordered to further undergo R.I. For two years. Muhammad Bilal was acquitted under section 302, P.P.C. Vide the same judgment co-accused Muhammad Asghar and Gul Hassan were acquitted.
2. Trial Court has sent Murder Reference under section 374, Cr.P.C. To this Court for confirmation of the death sentence of Haji Ahmad.
3. Complainant Piran Ditta has filed Criminal Appeal No,59 of 1995/BWP against the acquittal of Gul Hassan, Muhammad Asghar and for imposition of compensation against Haji Ahmad for the murder of Haji Ahmad son of Iran Ditta.
4. Learned counsel for the appellants accepted notice in Criminal Appeal No,59 of 1995. We intend to dispose of all these matters through this single judgment.
5. The occurrence in the instant case took place on 26-7-1993 at 9-00 a.m. In the vicinity of Mauza Miani at a distance of 16 kilometers from Police Station Musafar Khana, District Bahawalpur. The matter was reported by Haji Piran Ditta son of Ghaus Bakhsh to Chaudhry Nazeer Ahmad, S.H.O. At the police station on 26-7-1993 at 2-00 p.m. And on the basis of his statement, F.I.R. Exh.P.A. Was recorded.
6. The prosecution version as narrated by the complainant Piran Ditta and described in the first information report is that he is a cultivator by profession. On 26-7-1993 his son Haji Ahmad and nephew Gulag Ahmad son of Rahim Baths were picking dates in his orchid. At about 9-00 a.m. Haji son of Wahid Bakhsh armed with .12 bore gun, Bilal son of Wahid Baths armed with .12 bore pistol, Gull Hassan son of Munshi Muhammad Ramzan armed with .12 bore pistol and Glulam Asghar son of Used Ali also armed with .12 bore pistol, in furtherance of their common intention came to the spot and exhorted Lalkara towards his son Haji Ahmad and nephew Gulag Ahmad to be ready to face death. Haji Ahmad son of Wahid Bakhsh fired with his gun which hit his son on his right thigh which fell him on the ground whereas Bilal son of Wahid Bakhsh fired with his pistol which hit his nephew also on his right thigh who also fell on the ground. He along with Yaseen son of Piran Ditta, Allah Rakia son of Ghaus Bakhsh were busy in their cotton fields nearby and saw the occurrence with their own eyes. They tried to apprehend Haji, Bilal, Gull Hassan and Glulam Asghar, the accused whereupon they started firing on the witnesses but to their good luck they laid prostrate on the ground and the fires missed them. The accused ran away while firing.
7. The motive for the occurrence is stated to be the illicit relations of accused Haji Ahmad son of Wahid Bakhsh with Mst. Sussi wife of Basin son of the complainant for which reason Haji Ahmad was stopped to visit the house of the complainant. For this reason the accused attacked and injured Gulzar Ahmad and Haji Ahmad with fire-arms. They took both the injured in a wagon to Khanqah Sharif and B.V. Hospital, Bahawalpur but Haji Ahmad succumbed to his injuries at 1-00 p.m. In the Emergency Ward whereas Gulzar Ahmad was admitted in Surgical Ward No,3 in injured condition. Yaseen son of Haji Piran Ditta and Haji Allah Ralcha son of Ghaus Bakhsh along with others were present near the dead body lying in the Miani Hospital, whereas he came to lodge the present report.
8. Ch. Nazeer Ahmad, Station House Officer, Police Station Musafar Khana after recording the complaint reached B.V. Hospital, Bahawalpur and prepared the Inquest Report Exh.P.C./2 of Haji Ahmad whose dead body was at that time lying in the mortuary along with the injury statement Exh.P.C./1. He prepared the injury statement of Gulzar Ahmad Exh.P.B./1 and recorded the statement of the witnesses under section 161, Cr.P.C. In the hospital. Since he was transferred from the police station the investigation was handed over to his successor Abdul Ghani, S.-I. Who visited the spot and secured blood-stained earth from the place of murder of Haji Ahmad which was taken into possession vide memo. Exh.P.H. And the earth where Gulzar Ahmad was injured was taken in possession, vide memo. Exh.P.I., respectively. Two empties at the place of murder of Haji Ahmad and from the place where Gulzar Ahmad was injured were taken into possession vide two separate sealed parcels through memo. Exh.P.F. And Exh.P.G., respectively. During the investigation he found Muhammad Bilal, Gul Hassan and Ghulam Hassan innocent. On 30-8-1993 the S.H.O. Verified his investigation which was also endorsed by the D.S.P. On 7-8-1993 Haji Ahmad was arrested and on 11-8-1993 while in police custody he led to the recovery of rifle .12 bore from residential room of his house which was hidden in an iron box and was taken into possession vide memo. Exh.P.E. After completing the investigation the challah was submitted in the Court.
9. On 26-7-1993 at 1-00 p.m. Dr. Muhammad Javed Akhtar, C.M.O., B.V. Hospital, Bahawalpur medically examined Gulzar Ahmad son of Raheem Bakhsh and found the following two injuries on his person:--
(1) There was a lacerated profusely bleeding wound on the medial aspect of right lower thigh.
Tattooing was present around the wound and margins "That the prosecution version is totally false. The complainant Piran was inverted. Wound size was 6 c.m. x 8 c.m. x bone expose. It was the wound of entry. X-ray was advised.
(2) There was a lacerated bleeding wound 10 c.m. x 12 c.m. x bone exposed on the posterior aspect of right lower thigh. Margins of the wound were averted. X-ray was advised.
' According to X-ray Report no evidence of fracture of femoris was found. Duration of injuries and examination was within six hours and both the injuries were caused with fire-arm.
' On the same day at 4-00 p.m. Post-mortem examination on the dead body of Haji Ahmad son of Piran Ditta aged 24 years was performed by this doctor and he found the following two injuries on his person:--
(I) There was a lacerated wound 10 c.m. x 5 c.m. With tattooing and blackening around the wound on the medial aspect of right thigh at the junction of upper 1/3rd and middle 1/3rd of the thigh.
Margins of the wound were inverted. This was wound of entry.
(2) There was a lacerated wound 13 c.m. x 8 c.m, x bone exposed on the poster lateral aspect of right middle thigh.
' In the opinion of the doctor injuries 1 and 2 lead to damage to the thigh muscles, profound femora's vessels leading to acute hemorrhagic and neurogenic shock leading to coma and death as a result of the injuries which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature and were caused by fire-arm weapons.
' Duration between injuries and death was within six hours and between death and post-mortem was within twelve hours.
10. Appellants were charged, to which) they denied, pleaded not guilty and claimed a trial. During the trial the prosecution examined as many as 12 witnesses. P.W.1 Piran Ditta father of the deceased, P.W.6 Gulzar Ahmad the injured witness and cousin of the deceased and Allah Rakha P.W.9 uncle of the deceased furnished the ocular testimony. The Public Prosecutor submitted in evidence report of the Chemical Examiner Exh.P.K. And that of the Serologist Exh.P.L. Wherein the blood-stained earth was noted to be of human origin. Report of the Forensic Expert Exh.P.M. Was also submitted in evidence which confirmed that both the crime-empties C.1 and C.2 were fired from .12 bore double-barrel gun wielded by Haji Ahmad.
11. Haji Ahmad when examined under section 342, Cr.P.C. In reply to question as to why the prosecution case was registered against him replied as under:-- ' Ditta, Allah Rakha and Yasin. P.Ws. Were not present at the time of occurrence. The deceased Haji Ahmad and Gulzar Ahmad P.Ws. Wanted to kill him on account of baseless suspicion of illicit connections with their relative. On the day of occurrence in the morning he was going to his land from his house for round of crop. He had his licensed gun with him and when he was proceeding at the Banna of the watercourse, the deceased and P.W. Gulzar while armed with pistols challenged him and fired. He immediately fell in the watercourse to save himself. He also fired with his gun apprehending danger to his life in exercise of right of private defense to save his life. No other accused was present and they have been falsely involved by the prosecution. He himself appeared before the police along with his licensed gun on the day of occurrence and informed the police, but the police registered the case after investigation on wrong facts."
12. Learned counsel for the appellants has taken us through the evidence and contended that the prosecution case is not free from doubts; the motive does not stand proved and lastly it was not a case of infliction of capital punishment because the appellant fired only once at the non-vital part of the body of the deceased and is entitled to the lesser penalty of life imprisonment. Conversely learned counsel for the State assisted by counsel for the complainant supported the conviction and sentence passed by the trial Court vide its judgment, dated 6-8-1995. Learned counsel also impugned the judgment so far as it related to the acquittal of Muhammad Asghar and Gul Hassan.
Further pleaded that the trial Court had committed an illegality by not awarding the compensation when he convicted Haji Ahmad appellant under section 302(b), P.P.C.
13. We have heard the learned counsel for the appellants, the complainant and the State and we have also gone through the record minutely. We find ourselves in absolute agreement with the judgment of the trial Court so far as the conviction of Haji Ahmad appellant under section 302-B, P.P.C. Is concerned for reasons detailed in the ensuing paragraphs.
14. Haji Ahmad appellant has admitted to have committed the murder of Haji Ahmad deceased and caused injuries to Gulzar Ahmad P.W. By stating to have done so in the exercise of right of self- defense because the deceased and the witness had baseless suspicion that he had illicit relations with Mst. Sussi, wife of Yaseen brother of the deceased and that the deceased and the injured P.W.
Came armed to take his life. This assertion of the appellant is totally not borne A from any circumstance spelt out from the evidence of any of the witnesses. It is a figment of his own imagination. Having admitted to have killed the deceased and caused injuries to the injured P.W., what we have to see is whether it was in exercise of right of self-defense or was in retaliation to have been stopped to visit the house of Yaseen and the offence he took to the reprimand and beating administered earlier by the deceased and the injured witness. We have evidence of Piran Ditta P.W.1 who in his cross-examination stated that when they came to know about the illicit connections of Haji Ahmad appellant with Mst. Sussi before the occurrence they stopped him from visiting his house and that Haji Ahmad was enemy of their Ghariat; about 2/3 months prior to the occurrence Haji Ahmad deceased and Gulzar Ahmad had beaten the appellant due to Ghairat. He denied that Gulzar Ahmad and the deceased were armed with pistols and fired at the appellant due to Ghairat on which Haji Ahmad acted in self-defense by firing at both the deceased and the injured with his licensed gun. Gulzar Ahmad P.W.6 in cross-examination stated that Haji Ahmad deceased and he himself attacked the appellant with sticks so that he should not visit the house of Yaseen but even after attack the appellant continued visiting Mst. Sussi wife of Yaseen. Abdul Ghani, S.-I. While appearing as P.W.11 also stated in cross-examination that it was correct that the complainant party had .Attacked and injured Haji Ahmad at the time of his illicit connections with Mst. Sussi, although he did not investigate about the factum of the appellant acting in his right of self-defense on the day of occurrence whereby he killed Haji Ahmad deceased and injured Gulzar Ahmad P.W. In the first instance the plea taken by the appellants is devoid of merit, as earlier stated, and once again reiterated that there is absolutely not an iota of evidence anywhere in the statement of the witnesses suggesting the attack by the deceased and the injured P.W. Found the appellant so as to entitle him to take the life of one and caused injuries to the other, in exercise of right of self-defense. Assuming without conceding that the appellants did fire at the deceased due to plea taken up by him the question which would arise for consideration would be whether he had any right to do so? The answer is in emphatic negative. Right of self-defense of a person and property is a sacred and fundamental right only to be exercised when the body or property of a person apprehends danger from the assailant, being placed in that position due to the overt act of the wrongdoer but without any fault on his part. Making amorous advances towards Mst. Sussi, daughter-in-law of complainant, and when stopped, used force to impinge his nefarious designs would certainly not vest him in law, with the sacred right of self-defense, because he is himself responsible for such a reprehensible situation, brought about, because of his own acts and conduct. The version and the plea adopted by the appellant that he killed the deceased and injured Gulzar Ahmad P.W. Itself is sufficient to prove his culpability, however, both the eye- witnesses were present at the time of occurrence, their statement has a ring of truth around it and is confidence inspiring. There is not even a suggestion put to them that the witnesses have deposed because of or rancor towards the appellants.
15. Next question for consideration which has arisen from the plea taken by the learned counsel for the appellants that since the appellants caused only one injury to the deceased on his thigh, which is a non-vital part of the body and did not repeat the fire he is entitled to a lesser penalty. To examine this plea we in the first instance advert to the evidence of Dr. Muhammad Javaid Akhtar, who conducted the autopsy on the dead body of Haji Ahmad son of Piran Ditta. The injury was a lacerated wound 10 c.m. x 5 c.m. With tattooing and blackening around the wound on the medial aspect of right thigh at the junction of upper 1/3rd and middle 1/3rd of the thigh and another lacerated wound 13 c.m. x 8 c.m. Bone exposed on the posterior lateral aspect of right middle thigh.
On thorough probe the doctor found damage to thigh muscles, profound femora's vessel leading to acute hemorrhagic and neurogenic shock due to which death was caused.
16. Learned counsel appearing for the complainant in reply relied on Muhammad Siddique v. The State reported in 1970 SCM R 313 wherein a Chhuri of 9" blade was thrust on victim thigh resulting in cutting away a large blood vessel which lead to the eventual death of the victim. The contention that the thigh was not a vital part of the body and should be given the lesser penalty was repelled, and held that premeditated attack with a Chhuri with such force as to cut away large vessel was indicative of intention to cause injury sufficient to cause death in the ordinary course of nature and such an injury was covered under clause (3) of section 300, P.P.C. And sentence of death was maintained. On the other hand counsel for the appellant relied on Qurban Hussain v. Atta Muhammad and others reported in PLD 1995 SC 464. In this case an injury was caused with a razor pulled out from the pocket of the appellant who gave the injuries on the thigh and calf of the deceased, sentence of death was passed by the trial Court which was converted into life imprisonment holding that the convict had selected the thigh and the leg of the deceased man to hit him and when he had fallen on the ground and was at his mercy he had injured his finger. The Judges of the apex Courts held that they did not think that the convict caused injuries with an intention to kill or to cause such bodily injury as was likely to cause death. In this case another citation namely that of Syed Tajammal Hussain v. Nassar Mehdi and another reported in PLD 1976 SC 377 was distinguished inasmuch as in the latter case the injury was also on the thigh but what distinguished the cited case from the case of Syed Tajammal Hussain v. Nassar Mehdi, etc. Was that the injury was caused with fire shot and there was no evidence that the shot was aimed at the thigh, in which eventuality the accused had the intention to cause death or of causing such bodily injury as was likely to cause death.
17. The distinguishing factor in the afforested case (PLD 1995 SC 464) clinches the issue in the present case too. The injury was caused with a fire-arm from a close range leaving marks of blackening and tattooing, injuring the femora's artery which led to perfuse bleeding resulting in the death of Haji Ahmad deceased. Injury with a fire-arm from the close distance on the thigh doing excessive damage to femoris artery spells out the intention of the appellant C to cause an injury which was sufficient in the ordinary course of nature to cause death. We are, therefore, not impressed with the arguments of the learned counsel for the appellants that it is a case of lesser penalty. We entirely agree with the finding arrived at by the trial Court convicting the appellants by passing the sentence of death. Resultantly the appeal is dismissed. Conviction andsentence passed by the trial Court vide its judgment, dated 6-8-1995 is maintained. However, the trial Court while awarding the sentence of death did not keep in mind the provisions of section 544-A, Cr.P.C.
Relating to compensation. Section 544-A, Cr.P.C. Reads as under;--
18. "(1) Whenever a person is convicted of an offence in the commission whereof the death of, or hurt, injury, or mental anguish -- to any person is caused or damage to -- is caused, the Court shall when convicting such person, unless for reasons recorded in writing otherwise directs, or the person convicting to pay to the heir of the person whose death has been caused, -- such compensation as the Court may determine having regard to the circumstances of the case.
' An order under this section may also be made by an Appellate Court or by a Court when exercising its power of revision."
Learned trial Court was totally oblivious of this provision of law when the appellant was convicted under section 302(b), P.P.C. For causing the murder of Haji Ahmad and while passing the sentence of death it was obligatory on the trial Court to award compensation to the heirs of the deceased.
Counsel for the appellant had notice in Criminal Appeal No,59 of 1995 in which a specific prayer for awarding of compensation has been made by the complainant against the appellant. We, therefore, direct the appellant to pay compensation of Rs,50,000 under section 544-A, Cr.P.C. Which if realized shall be paid to the legal heirs of the deceased, in default of payment of compensation he shall undergo imprisonment for six months. Murder reference is answered in the affirmative. , Death sentence awarded is confirmed.
18. As regards Criminal Appeal No,59 of 1995/BWP it succeeds partly in so far as awarding of compensation for the murder of Haji Ahmad is concerned against Haji Ahmad appellant. But, as far as Bilal appellant is concerned he has been footing innocent not only by the Investigating Officer Nazir Ahmad whose investigation was endorsed by the D.S.P. But also by the former Investigating Officer Abdul Ghani and Zahoor Rabbani, Sub-Inspectors. The complainant admits that he applied to the Inspector-General of Police, Punjab for transfer of the investigation who, accepted the application and entrusted the same to Malik Zia Feroze, D.S.P., Ahmadpur East whose investigation was the last one in this case. The last Investigating Officer also found Gull Hassan, Muhammad Asghar and Muhammad Bilal appellants as innocent. Not only this, the appellant Haji Ahmad in his version has admitted that none of three accused named above were present at the time of occurrence and it is he who caused injuries to Gulag Ahmad P.W. As well. The appellant Haji Ahmad, therefore, is also convicted under section 324, P.P.C. And is sentenced to 10 years' R.I. And a fine of Rs,2,000, in default of payment of fine to further undergo one year's R.I. The appeal of the complainant against Muhammad Asghar, Gull Hassan is dismissed and the appeal of Muhammad Bilal is accepted, and conviction under section 324, P.P.C. And sentence of ten years is set aside. He is on bail, he shall be discharged from his bail bonds.