' SHEIKH ABDUR RAZZAQ, J.--- Briefly stated the prosecution case as unfolded in F.I.R. Exh.P.G./1 lodged by complainant Munawar Hussain (P.W.10) is that on 29-10-1993 at 7-30 p.m. His son Khawar Abbas aged 16/17 years alongwith Muhammad Irfan was going to flour machine for paying the arrears. When they reached Chakkiwali Chowk, Sajjad alias Loha duly armed alongwith Muhammad Ashraf came from the other side. Muhammad Ashraf raised Lalkara that Khawar Abbas be not allowed to go alive. Upon this Sajjad alias Loha fired which hit at the front side of abdomen of his son Khawar Abbas. His (Sajjad alias Loha) second and third shots hit on both thighs of his son. Sajjad alias Loha also fired at Muhammad Irfan which hit at his chest. Nadeem Raza and Sajjad Nabi witnessed this occurrence as they were following his son. Sajjad alias Loha and Muhammad Ashraf then fled away from there raising Lalkaras. Nadeem Raza and Sajjad Nabi removed Khawar Abbas and Muhammad Irfan to the Civil Hospital where Khawar Abbas succumbed to the injuries. The motive behind this occurrence is that Muhammad Ashraf had moved an application against Khawar Abbas for teasing his wife and children. In order to wreak vengeance of said disgrace Muhammad Ashraf accompanied by Sajjad alias Loha committed the murder of his son.
2. Ali Asghar (P.W.11) was posted as S.-I. At Police Station Saddar, Gojra on 2g-10-1993. On the statement of Munawar Hussain complainant (P.W.10) he recorded complaint Exh.P.G. In Civil Hospital, Gojra and sent the same through Naseer Ahmad constable for registration of formal F.I.R.
He prepared the injury statement of Khawar Abbas Exh.P.B., inquest report Exh.P.C. And then handed over the dead body to Hassrat Khan, Constable (P.W.6) for post-mortem examination. He then proceeded to 'the place of occurrence, prepared the. Rough site plan Exh.P.J. Hassrat Khan, Constable (P.W.6) produced last-worn clothes of the deceased P.1 and P.2 alongwith post-mortem report which he secured vide memo. Exh.P.H. He also got prepared the site plans Exhs.P.E and P.E./1 from Syed Kazim Hussain Gillani (P.W.3) draftsman. On 18-11-1993 he recorded the statement of Muhammad Irfan P.W. Who was lying as indoor patient in Civil Hospital Gojra and also collected his medico-legal certificate. On 28-11-1993 he arrested accused Muhammad Ashraf. As accused Sajjad was declared a proclaimed offender so an incomplete challan was prepared by him.
Muhammad Aslam, A.S.-I.. (P.W.12) arrested accused Sajjad alias Loha on 27-11-1994 and recovered a .222 rifle P.3, canvass bag P.4 containing 92 live cartridges Exhs.P.5/1 to P.92 vide memo. Exh.P.I and also prepared memo. Of place of recovery Exh.P.L. He also lodged a complaint under section 13 of Ordinance XX of 1965 against him as he could not produce any valid licence. After usual investigation the case was sent up for trial.
3. A charge under sections 302/324/34, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused the prosecution examined Dr. Muhammad Ashraf Zahid (P.W.1) who on 29-10-1993 examined Muhammad Irfan son of Riaz Ahmad and found the following injuries on his person:--
(1) A fire-arm wound of entry 4.5 c.m. x 4 c.m. D.N.P. On the left side of front of abdomen just below the costel margin. The large intestine alongwith omentum was coming out of the wound. The slight blackening was present on the lower margin of the wound and the wound exit 2 x 1 c.m. D.N.P. On the back and lower part of left chest was present. At the time of examination the patient was in shock. His B.P. Was 90/70 MM of HG. His pulse was of 120 per minute. The injury was kept under observation and advised for X-Ray. He was also referred to the Surgeon. The injury was caused by fire-arm weapon and probable duration of injury was 1-2 hours. The corresponding holes were present on the Qameez; and Bunyan and both were bloodstained.
' He issued medico-legal certificate Exh.P.A. Which bears his signatures. Dr. Muhammad Asghar (P.W.2) conducted the post-mortem examination of Khawar Abbas on 30-10-1993 and found the following injuries on his person:--
(1) A fire-arm wound of entry -0.7 c.m. x 0.5 c.m. On the back and middle part of the left thigh with exit wound 3 c.m. x 2 c.m. On inner, front and middle part of left thigh 28 c.m. Above the left tibiae tuberosity. Corresponding hole was present on the Shalwar.
(2) A fire-arm wound of entrance 1.5 c.m. x 1 c.m. On front outer and middle part of right thigh. 32 c.m. From the tibial tuberosity with exit wound 3 c.m. x 2 c.m. On inner and back part of right thigh.
(3) A fire-arm wound of entrance 1.8 c.m. x 1 c.m. On front and lower part of left side' of chest 10.5 c.m. Below left nipple with exit wound 5 c.m. x 4 c.m. On outer part of -left side of abdomen. Small, large intestines and omentum were coming out from the wound. Underlying 7th rib of left side of chest was fractured.
(4) A fire-arm wound of entrance 1.5 c.m. x 0.5 c.m. On front of abdomen just above umbilicus with exit wound on outer part of left side of abdomen, which was common exit wound of Injury. No,3 also. Viscera was coming from the wound.
(5) A fire-arm wound entrance of 0.6 c.m. x 0.5 c.m. On the back of left lumber region with exit wound 4.5 c.In. x 3 c.m. On front and lower part of abdomen 8.0 c.m. Below umbilicus corresponding holes were present on the clothes.
' In his opinion all the injuries were ante-mortem. Injuries Nos.1 and 2 were simple whereas injury No,3 was dangerous and Injuries Nos.4 and 5 were grievous. The cause of death was shock and haemorrhage due to the injuries to the vital organs and Injury' No,3 individually as well as collectively with Injuries Nos.4 and 5 were sufficient to cause death in the ordinary course of nature.
The time between injuries and death was about 20 to 40 minutes. The time between death and post-mortem examination was 16 to 20 hours. He produced correct carbon copy of post-mortem report Exh.P.D. And sketch of injuries Exh.P.D./1. He also signed the statement of injuries Exh.P.B. And inquest report Exh.P.C. Of the deceased. Syed Kazim Hussain Gillani (P.W.3) is the draftsman who inspected the site on 1-11-1993 and after preparing the site plans Exhs.P.E. And P.E./1 delivered the same to the Investigating Officer on 3-11-1993. Dr. Capt. Muhammad Aslam hived (P.W.4) examined the X-Ray film and issued his report Exh.P.F. Which bears his signatures. Abdul Ghafoor, Constable (P.W.5) drafted a formal F.LR. Exh.P.G./1 on the basis of written complaint Exh.P.G. Hassrat Khan, Constable (P.W.6) was handed over the dead body of Khawar Abbas on 29-10-1993 for post- mortem examination. After the post-mortem examination he handed over the last-worn clothes of the deceased P.1 and P.2 which were secured vide memo. Exh.P.H. Muhammad Irfan (P.W.7) is an injured eye-witness who has corroborated the prosecution version appearing in complaint Exh.P.G.
Nadeem Raza (P.W.8) is another eyewitness of the occurrence who has supported the complainant's version appearing in complaint Exh.P.G. He is also witness of recovery of memo.
Exh:P.1 for securing .222 rifle P.3 bag P.4 and 92 live bullets Exhs.P.5 to P.92 which were secured at the instance of accused Sajjad alias Loha Sajjad Nabi (P.W.4) is another eye-witness of this occurrence who also supported the prosecution version. He also identified the dead body of his brother at the time of autopsy. Munawar Hussain complainant (P.W.10) has corroborated his version appearing in complaint Exh.P.G. He is also witness of recovery of last-worn clothes of the deceased secured vide memo. Exh.P.H. He is also witness of recovery of memo. Exh.P.1. Referred above. Ali Asghar S.-I.
(P.W.11) and Muhammad Aslam A.S.-I. (P.W.12) are the Investigating Officers whose evidence had already been discussed above. Thereafter, the learned A.D.A. Closed the prosecution case vide his statement, dated 3-10- 1996.
6. The statement of Sajjad alias Loba was recorded under section 342, Cr.P.C. Wherein he stated that .222 rifle was his licensed one and the same was taken by the police from his house and was planted upon him. He further stated that he had acted in self-defence and that the deceased as well as injured P.W. Were tired at by some other person. The accused Muhammad Ashraf also professed his innocence and stated that he had been implicated in this case falsely. None of the accused either examined himself under section 340(2), Cr.P.C. Or produced any evidence in his defence.
7. After going through the evidence produced by the prosecution the trial Court while acquitting Muhammad Ashraf convicted accused Sajjad alias Loha under section 302, P.P.C. And sentenced him to death and fine of Rs,25,000 or in default thereof to further undergo R.I. For 2 years. He was further directed to pay a sum of Rs,25,000 as compensation to the legal heirs of the deceased or in default thereof to further undergo R.I. For one year. He further convicted Sajjad alias Loha under'section 324/34, P.P.C. And sentenced him to undergo R.I. For five years and tine of Rs,10,000 or in default thereof to further undergo R.I. For six months. He further convicted him under section 323/34, P.P.C. For causing hurt to Muhammad Irfan and sentenced him to R.I. For five years and to pay Arsh equal to the value of 10,210 grams of silver. Feeling aggrieved of the said judgment, dated 14-11-1996 -instant appeal has been filed. Murder Reference No,25 of 1997 has also been forwarded by the trial Court as contemplated under section 374, Cr.P.C. Criminal Appeal No,68 of 1997 has been filed by the complainant against the order of acquittal in respect of Muhammad Ashraf.
8. As the instant appeal, Murder Reference No,25 of 1997 and Criminal Appeal No,68 of 1997 arise out of the same judgment so these are being disposed of by this single order.
9. We have heard the learned counsel for the appellant, learned counsel for the complainant assisted by the learned counsel for the State and have also perused the record.
10. It is submitted by the learned counsel for the appellant that according to the prosecution version contained in complaint Exh.P.G. The appellant alongwith Muhammad Ashraf had committed this offence resulting into the death of Khawar Abbas and injuries upon Muhammad Irfan (P.W.7), that Muhammad Irfan (P.W.7) has not involved Muhammad Ashraf in his statement recorded under section 161, Cr.P.C. But later on improved his version and implicated him while deposing in the Court, and that is why his statement has not been believed by the trial Court and Muhammad Ashraf has been acquitted by extending him benefit of doubt, that as the accused/appellant has taken a specific plea of self-defence, so he does not challenge his conviction. However, this plea of self-defence does not warrant the imposition of normal penalty of death, that under similar circumstances the sentence of death be commuted to imprisonment for life.
11. Conversely the impugned judgment has been supported by the learned counsel for the complainant assisted by the learned counsel for the State. To further supplement their contentions, they submitted that after the commission of this offence the appellant remained fugitive of law for about one year and one month and this absconsion also lends support of his guilt. He further argued that the manner in which he has been arrested alongwith .222 rifle P.3 and 92 live bullets P.5/1-92 also speaks volume about his conduct. He next argued that the appellant did not feel satisfied by firing only one shot upon the deceased but repeated fires which fact further shows his intention to commit the intentional murder of the deceased he asserted that plea of self-defence cannot be pressed into service, as admittedly the deceased was empty-handed at the relevant time and as such there was no occasion to fire at him in the exercise of right of self-defence.
12. We have given our anxious consideration to the contentions raised by the learned counsel for the parties. According to the prosecution version the accused/appellant was armed with a lethal weapon at the relevant time. It was he who fired successive shots upon Khawar Abbas deceased.
Resulting into his death. During the trial it is suggested by the appellant to Muhammad Irfan injured P.W. That it was Khawar Abbas who had opened fire with his pistol at him (appellant). He (P.W.7) has further been put the suggestion that the accused/appellant had fired upon Khawar Abbas with his rifle to save his skin. This suggestion to P.W.7 clearly shows that the accused/appellant has not only admitted his participation in the occurrence but has also admitted that it was he who fired at Khawar Abbas deceased. Again the accused (appellant) has admitted this fact while recording his statement under section 342, Cr.P.C. That he acted in his self-defence. This admission further proves his participation. However, he stated that some other persons were also firing and the deceased Khawar Abbas as well as Muhammad Irfan injured P.W. Received injuries at the hands of some other persons. This later stand of the accused/appellant runs counter to his earlier stand as is evident from the cross-examination of P.W.7. All these facts clearly prove that deceased died as a result of successive fires received at the hands of accused/appellant and plea of self-defence is devoid of any force.
13. The question arises if under the present circumstances the appellant is liable to normal punishment of death or there exist some mitigating circumstances warranting lesser punishment.
The accused/appellant has committed the murder of the deceased by repeating fire shots upon his person which shows his callousness in the commission of this offence. The deceased was absolutely unarmed at the relevant time. As such the question of firing at him under the garb of plea of self-defence is devoid of any force. We do not find any mitigating circumstance in favour of the accused/appellant warranting lesser punishment. Accordingly we do not find any force in the instant appeal and dismiss the same. It is, however, observed that the sentence of fine imposed by the trial Court under section 302, P.P.C. Is not warranted by law. As such the said sentence of fine is hereby set aside.
14. For the reasons given above, we do not find any force in Criminal Appeal No,68 of 1997 and dismiss the same.
15. Since the appeal has been dismissed, so the Murder Reference is answered in affirmative.