' ASIF SAEED KHAN KHOSA, J.-Shaukat Hayat, Shakir Ali and Muhammad Afzal appellants were convicted by the learned Additional Sessions Judge, Multan vide judgment dated 25-4-1996.
Shaukat Hayat appellant was convicted on two counts of an offence under section 302(b), P.P.C.
And was sentenced to death on both the counts and to pay a sum of Rs,50,000 by way of compensation under section 544-A, Cr.P.C. To the heirs of Farman Ali and Rab Nawaz deceased in equal shares or in default of payment thereof to undergo R.I. For six months. Shakir Ali appellant was convicted for an offence under section 302(b), P.P.C. And was sentenced to imprisonment for life and to pay a sum of Rs,50,000 by way of compensation under section 544-A, Cr.P.C. To the heirs of Farman Ali and Rab Nawaz deceased in equal shares or in default of payment thereof to undergo R.I. For six months. Muhammad Afzal appellant was also convicted for an offence under section 302(b). P.P.C. And was sentenced to imprisonment for life and to pay a sum of Rs,25,000 by way of compensation under section 544-A, Cr.P.C. To the heirs of Farman Ali deceased or in default of payment thereof to undergo R.I. For six months. It was further ordered by the learned trial Court that in case death sentences passed against Shaukat Hayat appellant was not confirmed by the High Court and his sentence was altered to imprisonment for life or any other sentence of imprisonment then he would be extended the benefit under section 382-B, Cr.P.C. The benefit under section 382-B, Cr.P.C. Was, however, extended by the learned trial Court to Shakir Ali and Muhammad Afzal appellants. Through the same judgment the learned trial Court had acquitted the appellants' co-accused Maqbool Hussain, Abdul Rauf, Zahoor Ahmad, Ahmad Yar, Nasir, Baqir and Qaswa r. All the three appellants have jointly challenged their convictions and sentences before this Court through Criminal Appeal No,145 of 1996. Shaukat Hayat and Muhammad Afzal appellants have also individually and separately filed Criminal Appeals Nos.146 and 144 of 1996 in that regard. Haq Nawaz complainant has also challenged the acquittal of the appellants' seven co-accused before this Court through Criminal Appeal No,178 of 1996. We have heard all these appeals along with Murder Reference No,1 of 1999 seeking confirmation of the sentences of death passed against Shaukat Hayat appellant. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that on 8-10-1994 Haq Nawaz A.S.I. Complainant, Muhammad Ashraf A.S.I., Abdul Karim, F.C. (armed with a rifle), Riaz Ahmad F.C.(armed with a semiautomatic rifle), Muhammad Riaz, F.C. (armed with a G-3 Rifle), Qaisar Mustafa, F.C, all in police uniform, and Farman Ali, P.C., Rab Nawaz F.C. And Muhammad Ashraf, F.C., all three in plain clothes, went to the area of Juma Khalsa on an official jeep In the company of Muhammad Iqbal, Wahid Bakhsh, Naveed Raziq and Muhammad Ashraf P.C., driver in connection with investigation of case F.I.R. No,615 of 1994 registered at Police Station New Multan on 8-10-1994 for offences under section 440/ 447/148/149, P.P.C. At the disputed place they found Shakir All appellant (armed with a .12 bore double-barrel gun), Shaukat Hayat appellant (armed with a 7MM rifle), Muhammad Afzal appellant farmed with a .30 bore pistol), Ahmad Yar, Qaswar, Baqir, Nasir, Zahoor Ahmad, Abdul Rauf and Maqbool Hussain accused (all empty-handed) present there. Wahid Bakhsh, Iqbal and 'Naveed P.Ws. Recognized all the appellants and their co-accused. Upon seeing the approaching police party the appellants and their co-accused ran towards E-Block situated in the North. They were chased by Haq Nawaz complainant, his police party and Iqbal and Naveed P.Ws. The complainant and the police party shouted and asked the appellants and their co-accused to stop and surrender but they did not. When at about 3-45 p.m. The complainant and the chasing police party reached near the house of one Yaqoob Dogar in a street in the E-Block of Shah Rukn-e-Alam Colony Farman Ali, F.C. Managed to catch hold of the fleeing Shakir Ali appellant who was armed with a .12 bore double-barrel gun. Upon that, Shaukat, Hayat appellant asked Farman Ali, F.C. To let Shakir Ali appellant go free otherwise he would be killed, Then, upon refusal of Farman Ali F.C. To let Shakir Ali appellant go, Shaukat Hayat appellant fired a shot at Farman Ali F.C. Which hit the latter's chest after piercing through his left upper-arm. Farman Ali fell down upon receipt of those injuries.
Soon after that Rab Nawaz, F.C. Reached there, chased Shakir Ali appellant and tried to catch him.
Then Shaukat Hayat appellant fired at Rab Nawaz, F.C. Hitting at his back. Rab Nawaz, F.C. Also fell down upon receipt of that injury. In the meanwhile the complainant and the police party managed to apprehend Shaukat Hayat and Shakir Ali appellants at the spot along with the respective weapons and ammunition Maqbool Hussain, Abdul Rauf and Zahoor Ahmad accused were also apprehended by police party at the place of occurrence but the remaining accused persons managed to run away. Farman Ali, F.C. Succumbed to his injuries at the spot and Rab Nawaz, F.C.
Was sent to the Civil Hospital, Multan in an injured condition whereat he died subsequently.
3. Haq Nawaz, A.S.I. Complainant reduced the whole incident into writing (Exh.P.O.) at the place of occurrence at 4-30 p.m. On the same day and sent the same to Police Station New Multan for registration of a formal F.I.R. Formal F.I.R. No, 616 was registered at Police Station New Multan in that regard at 4-50 p.m. On the same day by Muhammad Ashraf, A.S.I. For offences under section 302/324/353/148/149, P.P.C.
4. Haq Nawaz, A.S.I. (P.W.12) recovered weapons and ammunition from Shaukat Hayat and Shakir Ali appellants at the place of occurrence. He collected bloodstained earth from the places where the two deceased had fallen and collected two crime-empties from the spot. He also inspected the place of occurrence and prepared its rough site-plan.
5. Dr. Syed Raza Mohi-ud-din (P.W.4) conducted post-mortem examination of the dead body of Rab Nawaz on 8-10-1994 and found two injuries on the same which were both ante-mortem and caused by fire-arm. The cause of death was shock and haemorrhage due to injury No,1 which was fatal and sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the death occurred within 1/2 hour of receipt of the injuries and the post-mortem examination was conducted within two to three hours of the death.
6. Dr. Mahr Noor Ahmad (P.W.6) conducted post-mortem examination of the dead body of Farman Ali at 10-30 a.m. On 9-10-1994 and found four injuries on the same which were all ante-mortem and caused by fire-arm. The cause of death was shock and haemorrhage due to injuries Nos.1 and 2 which were fatal and sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the death occurred at the spot and the post-mortem examination was conducted within eighteen hours of the death.
7. After post-mortem examination of the dead body of Rab Nawaz F.C. Haq Nawaz, A.S.I. (P.W.12) secured the bloodstained last-worn clothes of the deceased. Later on, he also recovered a pistol from the possession of Ahmad Yar accused. The investigation was then taken over by Aziz- urRehman Dogar, Inspector/S.H.O. (P.W.14) who had reached the place of occurrence after receiving information about the occurrence. He formally arrested Shaukat Hayat and Shakir Ali appellants and Maqbool Hussain, Abdul Rauf and Zahoor Ahmad accused at the spot. He then received the blood-stained last-worn clothes of Farman All deceased. He also arrested Ahmad Yar, Nasir and Baqir accused before being transferred. The investigation was then taken up by Aziz-ur- Rehman, S.I. And because of his subsequent death the steps taken by him during the investigation were proved by Aziz-ur-Rehman Dogar, Inspector/ S.H.O. (P.W.14). Aziz-ur-Rehman, S.I. Had arrested Qaswa r accused and Muhammad Afzal appellant and had recovered a pistol from the latter's custody. He also recovered a pistol from Baqir accused. He had then gut a formal site-plan of the place of occurrence prepared by a Draftsman. Thereafter, he had completed the other formalities, finalized his investigation and submitted a Challan in respect of this case.
8. At the commencement of the trial the learned trial Court framed a charge with four heads under sections 148, 353 and two counts of section 302, P.P.C. Against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
9. During the trial prosecution produced as many as fourteen witnesses in support of its case against the appellants and their co-accused. Riaz Ahmad, F.C. (P.W.10), Naveed Raziq (P.W.11) and Haq Nawaz, A.S .1. Compliant (P.W.12) furnished the ocular account of the incident. Wahid Bakhsh (P.W.13) stated about the background that had led to the occurrence. Dr. Syed Raza Mohi-ud-Din (P.W.4) and Dr. Mahr Noor Ahmad (P.W.6) provided the medical evidence. Muhammad Ashraf, F.C.
(P.W.3), Zafar Iqbal, F.C.(P.W.5), Riaz Ahmad, F.C. (P.W.10), Naveed Raziq (P.W.11), Haq Nawaz, A.S.I.
(P.W.12) deposed about recoveries of the weapons of offence, etc. Effected from the appellants and their co-accused. Haq Nawaz, A,S.I. (P.W.12) and Aziz-ur-Rehman, Inspector/ S.H.O. (P.W.14) stated about various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
10. In their statements recorded under section 342, Cr.P.C. The appellants and their co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Shaukat Hayat appellant had stated as follows: "I have been falsely involved in this case at suspicion of Wahid Bakhsh P.W. I had no enmity with deceased constable. It was learnt that they were murdered when they attempted to restore the possession of a disputed plot to Wahid Bakhsh while they were in private dresses. The police authorities cooked up a false case to save its prestige and the skin of the officers of the police station and further also to save the police from bad name. I was apprehended from my house and was tortured by the police and when I expressed that I would take action against the police in the Hon'ble High Court I was made the principal accused of this case."
' Shakir Ali and Muhammad Afzal appellants as well as their co-accused also made statements on the same lines. All the appellants and their co-accused opted not to make statements on oath under section 340(2), Cr.P.C. However, they produced Zulfiqar and Muhammad Yaqoob as D.W.1 and D.W.2 respectively besides tendering some documents in their defence,
11. At the conclusion of the trial, the learned Additional Sessions Judge, Multan convicted and sentenced the appellants as noticed and detailed above while acquitting their co-accused. Hence, the present appeals and the connected Murder Reference before this Court.
12. We have heard the learned counsel for the convicts-appellants, the State and the complainant and have also gone through the record of this case with their assistance.
13. It has been argued by the learned counsel for the convicts-appellants that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. The learned counsel for Shaukat Hayat appellant has further argued that although Shaukat Hayat appellant had not specifically pleaded exercise of right of private defence yet the same was clearly spelt out from the circumstances of the case and the appellant ought not to be denied the fruits of it. According to him it was, at worst, a case of exceeding the right of private defence of person and property by Shaukat Hayat appellant and, therefore, he could be convicted and punished only under section 302(c), P.P.C. And not under section 302(b), P.P.C. As done by the learned trial Court. In this context the learned counsel for Shaukat Hayat appellant has maintained that it could be inferred from the evidence brought on the record by the prosecution itself that the two deceased had come to the place of occurrence in plain clothes only as mercenaries to help Wahid Bakhsh (P.W.13) regain possession of the plot in dispute from Maqbool Hussain and that they had lost their lives when the appellant had tried to defend the property of the said Maqbool Hussain or to defend his companion Shakir Ali appellant's person. It has been argued by the learned counsel for Shakir Ali and Muhammad Afzal appellants that at any rate Shakir Ali and Muhammad Afzal appellants had played no active role in the murders of the two deceased and, therefore, they are entitled to be acquitted of the charge against them. As against that the learned counsel for the State and the complainant have argued that the guilt of the appellants had been proved to the hilt and that they had acted as desperadoes who had killed two police officials during performance of their duty and, thus, they did not deserve any concession in the matter of sentence. The learned counsel for the complainant has also argued that the acquittal of seven accused persons by the learned trial Court was unwarranted as they shared common object with the convicts-appellants and were vicariously liable for their acts.
14. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had succeeded in proving its case against Shaukat Hayat appellant beyond reasonable doubt but at the same time the prosecution's case against Shakir Ali and Muhammad Afzal appellants was not free from serious doubts. We have also felt that the seven accused persons acquitted by the learned trial Court had been acquitted for reasons which were quite justified.
15. As regards Shaukat Hayat appellant it can be confidently said that it is an open and shut case against him. He was caught red-handed at the spot along with his armoury of weapon and ammunition. The F.I.R. Recorded at the spot and the inquest report regarding Rab Nawaz deceased had also specifically recorded the fact of his arrest at the spot. The three eye-witnesses of the occurrence produced by the prosecution had made consistent statements qua his role during the occurrence and they have inspired our full confidence. The said witnesses were absolutely independent witnesses who had no background of or bitterness against him so as to falsely implicate him in a case of this nature. The medical evidence provided full support to the ocular account furnished against him. The crime-empties recovered from the place of occurrence had also matched with the rifle recovered from his possession. Thus, Shaukat Hayat appellant's denial of his involvement in the occurrence in question was nothing but denial of an established reality.
16. The argument of the learned counsel for Shaukat Hayat appellant that it could be inferred from the evidence brought on the record by the prosecution itself that the two deceased had come to the place of occurrence in plain Clothes only as mercenaries to help Wahid Bakhsh (P.W.13) regain possession of the plot in dispute from Maqbool Hussain and that Shaukat Hayat appellant, even as an unconnected person, could kill the two deceased while trying to defend the property of the said Maqbool Hussain or to defend Shakir Ali appellant's person has utterly failed to impress us. To start with, such a plea was not even taken by Shaukat Hayat appellant in his statement recorded under section 342, Cr.P.C. He had also failed to make a statement on oath under section 340(2), Cr.P.C.
The onus to prove a plea of exercise of right of private defence of person or property is always on the accused person taking that plea but Shaukat Hayat appellant had produced no evidence in that regard. The argument of his learned counsel in this regard revolves around only inferences to be drawn from the prosecution's evidence on the record. However, even such inferences are not readily forthcoming from the record in that regard. Shaukat Hayat appellant was neither related to the said Maqbool Hussain nor any claim was made regarding his friendship or regular employment with Maqbool Hussain. Thus, any argument qua his exercise of right of private defence in respect of the property of Maqbool Hussain has to necessarily concede that the appellant was himself a mercenary employed by the said Maqbool Hussain for defence of his property or his possession over somebody else's property. This can be better appreciated in the backdrop of civil litigation between Wahid Bakhsh and Maqbool Hussain over a plot of land and lodging of F.I.R. No,615 of 1994 by Wahid Bakhsh in that regard on the very day of the present occurrence wherein Shaukat Hayat appellant was a nominated accused person. Had the murders in the present case taken place on or even near the plot in dispute the argument of the learned counsel for the appellant would have been taken with some seriousness but admittedly the murders had been committed by the appellant more than one kilometre away from the plot in question! Thus, by no stretch of imagination the said murders could be said to have been committed by the appellant in exercise of right of private defence of the property in question.
17. We have also felt no hesitation in concluding that even right of private defence of person of Shakir Ali appellant had not accrued to Shaukat Hayat appellant. Shakir Ali appellant was armed with a .12 bore gun at the relevant time. Apprehension of Shakir Ali appellant by the two deceased could not cause any apprehension of his death or sustaining of grievous hurt as admittedly both the deceased were empty-handed. It was also not a case of wrongful confinement of Shakir Ali appellant, by the deceased as the two deceased were trying to apprehend him in connection with a registered criminal case wherein Shakir Ali appellant was a nominated accused person. Thus, the restraint put on Shakir Ali appellant by the two deceased was not wrongful so as to attract the definition of mischief which could possibly attract the right of private defence of person by Shaukat Hayat appellant. We have also noticed that it was nobody's case that Shakir Ali appellant was a relative or a friend of Shakir Ali appellant or that Shakir Ali appellant had issued a rescue call to Shaukat Hayat appellant to save him from the clutches of the deceased. Therefore, looked at from any angle, Shaukat Hayat appellant had no right or business to fire at the two deceased one after the other and kill them if they had arrested a nominated accused person of a criminal case while discharging their official duty. In this context, we are conscious of the fact that the two deceased were not wearing their official uniform at the time of the incident but we have also noticed that at that time they were accompanied by other uniformed police officials which would ordinarily be a sufficient indication that they were members of the official police party. Even otherwise, the deceased's failure to put on their uniform while discharging their official duty does not denude the provisions of section 99, Cr.P.C. Of their legal effect according to which no right of private defence is available against a public servant lawfully or seemingly lawfully discharging his official duty. In this regard we have significantly noticed that it was never claimed or even suggested by Shaukat Hayat appellant that he never knew at the relevant time that the deceased were police officials. For all these reasons the argument of the learned counsel for Shaukat Hayat appellant regarding drawing of inferences about exercise of right of private defence of property or person by Shaukat Hayat appellant is rejected.
18. For the foregoing reasons the conviction of Shaukat Hayat appellant recorded by the learned trial Court on two counts of an offence under section 302(b), P.P.C. Is upheld. We have failed to find any mitigating factor warranting reduction of the sentence of Shaukat Hayat appellant. He acted as a desperado and a mercenary, resisted arrest in a criminal case registered against him and killed two police officials during performance of their official duty. He thus, deserves no sympathy in the matter of sentence. His sentence of death on both the counts of section 302(b), P.P.C. And the order of payment of compensation are maintained but with a slight modification that in case of his failure to pay compensation he shall suffer S.I. For six months instead of R.I. For six months as ordered by the learned trial Court.
19. Adverting now to Shakir Ali and Muhammad Afzal appellants we have found that Shakir Ali appellant had not played any active role in the murders of the two deceased committed by Shaukat Hayat appellant. He had surely tried to evade his arrest by the deceased by running away from them but he had, despite his being armed with a fire-arm, never opened fire at them. Even after his apprehension by the deceased he had not called for help from his co-accused or instigated Shaukat Hayat appellant to fire at the deceased. We have failed to find any circumstance on the record whereby his common intention with Shaukat Hayat appellant qua killing the deceased could be inferred. He had not caused any injury to any of the deceased and had not taken any active role in their murders. Thus, by extending the benefit of doubt to him, his conviction and sentence recorded by the learned trial Court are hereby set aside and he is acquitted of the charge against him. He shall be released from jail forthwith if not required in any other case.
20. Unlike Shaukat Hayat and Shakir Ali appellants Muhammad Afzal appellant was not arrested at the spot after the occurrence. According to the F.I.R. Lodged by Haq Nawaz, A.S.I. (P.W.12)
Muhammad Afzal appellant, despite his being armed with a pistol, had never caused any injury to any of the deceased and had neither instigated Shaukat Hayat appellant to fire at the deceased nor had taken any active part in the murders committed by Shaukat Hayat appellant. His sharing of intention with Shaukat Hayat appellant regarding the murders of the two deceased was, therefore, also open to serious doubt. It is true that Haq Nawaz, A.S.I. (P.W.12) had made an improvement at the trial by attributing a pistol shot to Muhammad Afzal appellant at Farman Ali deceased which was in lige with the statements made by Riaz Ahmad, F.C. (P.W.10) and Naveed Razik (P.W.1l) before the police and the learned trial Court but the fact remains that no crime- empty of a .30 bore pistol was recovered from the place of occurrence and, therefore, the pistol allegedly recovered from Muhammad Afzal appellant during the investigation had remained unmatched with the crime-empties recovered from the spot. By way of safe administration of criminal justice we have decided to extend the benefit of doubt to him. Therefore, Muhammad Afzal appellant's conviction and sentence recorded by the learned trial Court are hereby set aside and he is acquitted of the charge against him. He shall be released from jail forthwith if not required in any other case.
21. The learned trial Court had acquitted the appellants' seven co-accused after observing that there was no evidence available on the record regarding their sharing of common object with the appellants qua commission of the murders as they had not taken any part in the same. We have found no reason to disagree with the learned trial Court on that score. Therefore, the complainant's appeal against the acquittal of those seven accused persons is hereby dismissed.
22. The convicts' and the complainant's appeals are disposed of in the terms mentioned above. As the sentences of death passed by the learned trial Court against Shaukat Hayat appellant have been confirmed by us, therefore, Murder Reference No, 1 of 1999 is hereby answered in the affirmative.
' Death sentences are confirmed.