' SHEIKH ABDUR RAZZAQ, J.---Briefly stated the prosecution case as set out in F.I.R. Exh.PI is lodged at the instance of Muhammad Sharif complainant (P.W.11) is that on 5-6-1992 he (complainant) along with his daughter Mst. Farzana and nephew Muhammad Yousaf were sitting in the veranda of his house. Muhammad Munir son of the complainant, Mst. Sakina Bibi wife of the complainant and Mst.
Razia Bibi daughter of the complainant were sitting on the roof of their house under the shade of Beni tree. Zahid Hussain alias Mithu accused/appellant while standing on the roof of his brother Muhammad Din's house fired with his air-gun at the birds sitting on the Beni tree and, consequently one sparrow was shot down. Thereupon, Zahid Hussain alias Mithu trespassed the house of the complainant for laying his hand upon said sparrow. Muhammad Munir objected to said firing with the air-gun at the hands of Zahid Hussain and consequently abuses were exchanged between Zahid Hussain and Muhammad Munir. Zahid Hussain was pushed out of the house upon which he threatened to take revenge of his said insult. At about 11-30 a.m. Zahid Hussain alias Mithu and Muhammad Majid Aftab armed with Chhuris climbed on the roof of the complainant's house by scaling over the wall. Zahid Hussain inflicted a Chhuri blow, which hit Muhammad Munir on the back side of his right flank who fell down, Mst Sakina Bibi tried to intervene to rescue Muhammad Munir but was given two Chhuri blows by Muhammad Majjid Aftab, which hit on her abdomen on the right side and on her left flank. Mst. 'Razia Bibi stepped forward and was given a Ckhhuri blow by Zahid Hussain hitting hair abdomen on the front side resulting into het fall on the ground. The complainant along with Mst. Farzana Bibi and Muhammad Yousaf seeing the occurrence reached the roof and raised hue and cry. Seeing them coming the accused then decamped from the spot.
Muhammad Munir sccu mbed to the injuries at the spot whereas Mst. Raza Bibi and Mst. Sakina Bibi were removed to (Tivii Hospital Daska. Leaving the dead body of Muhammad Munir under the supervision of Muhammad Idrees and Allah Rakha, the complainant made for the police station to lodge report.
2. Hassan Akhtar (P.W.12) S.I./S.H.O. Was posted at Police Station Moira on 5-6-1992. On the statement of Muhammad Sharif P.W. I I I he recorded F.I.R. Exh.Pl. He then made for the place of occurrence, prepaid statement of in juiry of Muhammad Munir declassed ,Exh.PM, inquest report Fxh.PN, dispatched the dead body for postmortem examination through Muhammad Anwar and Faizul Ilassan Constables. Muhammad Yousaf P.W. Produced bloodstained clothes and MLC of Mst.
Sakina Bibi and Mst. Razia Bibi, which he .Secured vide memo. Exh.PB and PC respectively. He inspected the site and secured blood-stained earth from the place of murder of Muhammad Munir vide memo. Exh.PJ. He also secured blood-stained earth from the place of injuries of Mst. Sakina Bibi and Mst. Razia Bibi vide memo. Exh.PK and PL respectively. Muhammad Anwar constable produced last worn clothes P.1 and P.2 of the deceased Muhammad Munir which he secured vide memo. Exh.PA on 6-6-1992 he visited hospital where the injured were admitted. He moved applications Exh.P0 and PP to enquire if the injured were fit to make statement and thereafter recorded their statements. On 10-6-1992 he arrested accused Zahid Hussain alias Mithu who on 11- 6-1992 led to the recovery of bloodstained Chhuri P.5 which he secured vide memo. Exh.PD. He also registered the case against him under section 13/20/65 Arms Ordinance. On .12-6-1992 he secured site plans Exh.PH/2 and Exh.PH/3 produced by Akhtar Naqqash (P. W .7). On 21-6-1992 he arrested accused Muhammad Majjid Aftab. On 2-7-1992 accused Muhammad Majid Aftab led to the recovery of blood-stained Chhuri P.6 which he secured vide memo. Exh.PE. On 13-7-1992 he prepared incomplete challan and submitted the same in the Court for trial.
3. A charge under, sections 302, 449, 337, 337-D and 34,. P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
4. To prove its case prosecution examined Muhammad Idrees P.W.1 who identified the dead body of Muhammad Munir. He further deposed that on 5-6-1992 the Investigating Officer secured last worn- clothes of the deceased P.1 and P.2 vide memo. Exh.PA, that blood-stained shirt of Mst. Sakina Bibi P.3 was secured vide memo. Exh.PB and that of Mst. Razia Exh.P.4 was secured vide memo.
Exh.PC. On 11-6-1992 accused Zahid Hussain led to the recovery of Chhuri P.5 which was secured vide memo. Exh.PD. On 2-7-1992 accused Muhammad Majjid led to the recovery of Chhuri P.6 which was secured vide memo. Exh.PE. He further deposed that he as well as Muhammad Shard (P.\ .11) attested the said memos. Captain Dr. Muhammad Khalid P.W.2 examined Mst. Sakina Bibi on 5-6- 1992 at 1-00 p.m. And found the following injuries on her persons:-
1. An incised wound 61/2 c.m. On left side of abdomen in lower part DNP on left lumber region 12 c.m.
From the midline.
2. An incised wound 3.5 x 1.00 c.m. DNP oblique on lower part of outer front of left chest.
' He further deposed that injury No,1 was declared sharp grievous while injury No,2 was simple in nature and both injuries had been caused by sharp weapon. The duration of injuries was 2 to 3 hours. He issued MLR Exh.PF and the operation notes Exh.PF/1, which bear his signature. On the same day at 1-20 p.m. He medically examined Mst. Razia Bibi and found the following injury on her person:--
1. An incised wound 41/2 x 2 c.m. On right epigastrium region. Viseera deep (DNP) in right hypochondriac region, 2 c.m. From midline. The cut in the Qameez was corresponding to the wound. The Qameez was marked, signed and handed over to party for police.
' He further deposed that injury No,1 was caused by sharp-edged weapon within a duration of 2 to 3 hours. He produced M.L.R Exh.PG and the operation notes Exh.PG/1 Dr. Javed Iqbal P.W.3 conducted the post-mortem examination of Muhammad Munir on 5-6-1992 at 6-05 p.m. And found the following injury on his person:--
1. An incised wound 2 c.m. x 1 cm going deep almost transverse on the outer aspect of lower most part of right side of chest.
' In his opinion the solo injury was grievous, proved fatal, was. Ante-mortem and was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was instaneous whereas between death and post-mortem was 4 to 10 hours. He issued correct carbon copy of post-mortem examination report Exh. PH and diagram of injury Exh.PH/1.. Muhammad Anwar Constable P.W. 4 escorted the dead body of Muhammad Munir for post-mortem examination on 5-6-1992 and after the postmortem examination produced the last worn clothes of the deceased which were secured vide memo. Exh.PA Muhammad Khalid Constable P.W. 5 was given parcel containing Chhuri by Moharrir/Head Constable on 16-6-1992 for onward transmission in the office of Chemical Examiner Muhammad Younas Moharrir/Head Constable P.W.6 handed over parcel containing blood-stained earth to Haqnawaz Constable on 7-6-1992. On 16-6-1992 he handed over parcel Containing blood-stained Chhuri to ' Muhammad Khalid (P.W. 5) for its delivery in the office of Chemical Examiner Akhtar Naqqash P.W. 7 visited the site on 8-6-1992 and handed over the site plans Exh.PH/2-3 to the Investigating Officer. Mst. Razia Bibi P.W. 8 and Mst. Sakina Bibi P.W.9 are the injured eye witnesses and corroborated the prosecution version appearing in F.I.R.
Exh.PI. Mst Farzana Bibi P.W. 10 is an eye witness of this occurrence and reiterated the complainant's stand as unfolded in F.I.R. Exh.PI. Muhammad Sharif complainant P.W. 11 supported his version appearing in F.I.R. Exh.PI. He is also witness of recovery of blood-stained earth from 3 different places secured vide memos. Exh.PI, Exh.PK and Exh.PL. He is also witness of recovery of blood- stained clothes of Mst. Sakina Bibi and Mst. Razia Bibi. Exh.P3 and P4 respectively, which were secured vide memos. Exh.PB and PC respectively Hassan Akhtar P.W. 12 is the Investigating Officer whose evidence has already been discussed above. Haqnawaz constable P.W. 13 was given parcel containing blood-stained earth for onward transmission in the office of Chemical Examiner, which he delivered there intact on 8-6-1992. The learned DDA produced reports of Chemical Examiner Exh.PQ and PS and of Serologist Exh.PR and PT and then closed prosecution evidence vide his statement dated 14-12-1996.
5. When examined under section 342, Cr.P.C. The accused Zahid Hussain denied the prosecution version and in reply to question No,13 as to why this case had been registered against him, stated as follows:-- "As a matter of fact wild pigeons and doves were sitting on the Beni tree. One pigeon fell down on the roof after being hit by a slug of the air-gun fired by me only once. I picked up the injured pigeon and began to slaughter it with my small knife. Munir deceased fell out with me and started to give filthy abuses. Munir told that since the pigeon had fallen on the roof of his house so it belonged to him. I told him not to abuse and the pigeon was mine as it was shot down by me. Munir pounced upon me and fell to ground. He sat on my chest and started throttling my neck, which caused me great agony and I was under immediate apprehension of my death, due to throttling. Sakina and Razia they were also abusing me and started giving me shoes beating. I reacted to the situation and tried to scare of the assailants while exercising right of self-defence. Majad my brother was not present."
' He further stated that he would lead his defence and would also record his statement under section 340(2), Cr. P.C.
6. The accused/appellant Muhammad Majjid Aftab while recording his statement under section 342, Cr.P.C. Denied the prosecution version and stated that he had been involved in this case falsely. He further stated that he was not present on the spot and has simply been roped falsely being brother of his co-accused Zahid Hussain. He also stated that he would adduce evidence in his defence and would also examine himself under section 340 (2), Cr.P.C. However, none of the accused either produced any evidence in his defence or examined himself under section 340(2), Cr.P.C. And closes the defence evidence vide statements dated 18-3-1997.
7. After going through the evidence produced by the prosecution. Sh. Muhammad Tareef, Additional Sessions Judge, Daska convicted Zahid Hussain alias Mithu, accused under section 302, P.P.0 and sentenced him to death and to pay compensation of Rs,50,000 to the legal heirs of the deceased or in default thereof to undergo S.I. For 6 months. He further convicted Zahid Hussain accused under section 337-D read with section 34, P.P.0 and sentenced him to pay Arsh amounting to Rs,10,000 to be paid to Mst. Razia Bibi and Mst. Sakina Bibi' and also sentenced him to imprisonment for -10 years as Ta'zir. He further convicted him under section 449/34,. P.P.C. And sentenced him to R.I. For 10 years and to pay fine of Rs,5,000 or in default thereof R.I. For 2 years.It was further directed that all sentences of imprisonment shall run concurrently. He further convicted Muhammad Majjid Aftab accused under section 308, P.P.0 and sentenced him to RI for 10 years as Ta'zir and to pay Diyat amounting to Rs,2,50,000 to the legal heirs of the deceased. He further convicted Muhammad Majjid Aftab under section 337-D read with section 34 P.P.0 and sentenced him to pay Arsh amounting to Rs,5,000 to be paid to Mst. Sakina Bibi and Mst. Razia Bibi and further sentenced him to R.I for 5 years as Ta'zir. He further convicted Muhammad Majjid Aftab accused under section 449/34, P.P.C. And sentenced him to R.I. For 5 years and to pay fine of Rs,2,000 or in default thereof to undergo R.I. For one year. He further directed that all the sentences of imprisonment of Muhammad Majjid Aftab accused shall run concurrently and he shall also be extended benefit of section 382-B, C r. P. C .
8. The appellant Zahid Hussain has challenged his conviction through the instant appeal whereas Muhammad Majid Aftab accused has challenged his conviction by filing Criminal Appeal No,224 of 1997. The complainant Muhammad Sharif has also filed Criminal Revision No,176 of 1997 for the enhancement of sentence awarded to Muhammad Majjid Aftab accused. The trial Court has also referred. Murder Reference No,82 of 1997 as contemplated under section 374, Cr. P.C. In respect of sentence awarded to Zahid Hussain appellant. As instant appeal. Criminal Appeal No,224 of 1997, Criminal Revision No,176 of 1997 and Murder Reference No,82 of 1997 arise out of the same judgment so we are disposing of all these matters through this single judgment.
9. We have heard the learned counsel for the appellants as well as learned counsel for the State.
10. It is submitted by the learned counsel for the appellants that author of F.I.R. Exh.PI is the father of the deceased, that Mst. Farzana and Muhammad Sharif are aid to be present at the time of occurrence and they as well as Mst. Razia Bibi P.W. 8 and Mst. Sakina Bibi P.W.9 are not only interrelated but are related to the deceased, that admittedly there existed no enmity between the parties, as such the accident is a sudden affair and is without premeditation, that there was only one occurrence which has wrongly been split up into two occurrences and F.I.R. Has been lodged after due deliberation and consultation setting forth a distorted version of the occurrence, that only one accused Zahid Hussain was present on the spot and Muhammad Majjid Aftab has been involved falsely being a brother of his co-accused, that Zahid Hussain acted in the exercise of right of self defence as Muhammad Munir deceased not only abused him but also pounced upon him and sat at his chest and started throttling his neck, that Mst, Sakina Bibi and Mst. Razia Bibi P".Ws.
Started giving shoe beating to him and all these facts are sufficient to hold that accused Zahid Hussain did not exceed his right of self-defence by causing injuries to the deceased as well as injured P.Ws. That injuries on the person of Mst. Razia Bibi and Mst. Sakina Bibi can be caused by one and the same weapon as admitted by Capt. Dr. Muhammad Khalid (P.W.2) and this admission also rules out the possibility of the presence of Muhammad Majjid Aftab accused/appellant on the spot, that the accused/appellant Zahid Hussain is entitled to lesser penalty being a young person, as same concession has been extended to his co-accused Muhammad Majjid Aftab.
11. Conversely, the impugned judgment has been supported by the learned counsel for the State.
12. Learned counsel for the appellants has challenged the impugned judgment mainly on the ground that occurrence has not taken placed in the manner as described in F.I.R. Exh.Pl. His contention is that entire occurrence took place at one and the same time and it has not taken place as disclosed, in the F.I.R. His other contention is that instant occurrence is not a premeditated one and is the result of spur of moment. His other contention is that accused Zahid Hussain alone participated in the occurrence and his co-accused Muhammad Majjid Aftab has been implicated falsely being his brother. All these contentions of the learned counsel for the appellants stand falsified by the evidence which has come on record. According to the stand of complainant initial occurrence took place at 11-15 a.m. When Muhammad Munir deceased objected of shooting of Zahid Hussain accused and of scaling over the roof of his house for capturing the sparrow and which occurrence resulted into exchange of hot words between them. The second occurrence took place at 11-30 a.m. When Zahid Hussain accused/appellant along with his brother Muhammad Majjid Aftab accused/appellant arrived on the spot after scaling over the wall duly armed with chhuris. It is as a result of second occurrence that Zahid Hussain accused/appellant inflicted a fatal injury on the person of Muhammad Munir deceased. It is also as a result of second occurrence that Mst. Razia Bibi (P.W.8) and Mst. Sakina Bibi (P.W.9) intervened and stepped forward to rescue Muhammad Munir deceased from the hands of Zahid Hussain accused/appellant when they were also inflicted injuries by Muhammad Majjid Aftab accused/appellant which hit Mst.
Sakina Bibi on her abdomen and left flank. It is also as a result of second incident that Mst. Razia Bibi was inflicted a Chhuri blow on her abdomen by Zahid Hussain accused/appellant. The injuries on the person of Mst. Razia Bibi (P.W. 8) and Mst. Sakina Bibi (P.W. 9) stand corroborated from the statement of Capt. Dr. Muhammad Khalid (P.W. 2) who examined them on 5-6-1992 and issued medico-legal certificates Exh. PG and Exh.PF respectively. If the contention of the learned counsel for the appellant Zahid Hussain is accepted that only one accused participated in this occurrence and it was Zahid Hussain who caused injuries not only to the deceased but to the injured P.Ws. Mst.
Razia Bibi and Mst. Sakina Bibi then the question arises as to how injuries, with different dimensions could be caused on the person of not only the deceased but also on the person of injured P.Ws. 8 and 9. The dimension of the injuries on the person of injured as well as of the deceased are different and as such it stands conclusively proved that injured had not been caused injuries by one weapon but by two different weapons of the same type. It is thus proved that. Both the accused appellants participated in this occurrence and the stand of learned counsel for the appellant Zahid Hussain that it was he who alone participated in the occurrence is devoid of any force. Again the oral evidence not only stands corroborated by medical evidence but also by evidence of recovery of Chhuri P,5 and P.6 which were effected at the instance of accused as is evident from memos. Of recovery Exh.PD and Exh.PE respectively.
13. Learned counsel for the appellants also laid much stress on the point that accused Zahid Hussain inflicted injuries in the exercise of right of self defence. It is very strange that in the so- called exercise of right of self-defence the injured as well as the deceased were absolutely unarmed as neither Zahid Hussain accused appellant nor Muhammad Majid Aftab accused appellant received even a scratch on their person. The stand of Zahid Hussain accused that Muhammad Munir deceased sat on his chest and was throttling his neck is also devoid of any force as accused never subjected himself to medical examination, in support of his said contention. Had he been subjected to throttling or strangulation there would have been mark of violence on his person. There being no such evidence available on record the said plea is devoid of any force.
14. Learned counsel for the appellants has also asserted that Zahid Hussain was not an adult at the time of occurrence as is evident from his statement recorded under section 342, Cr.P.C. Dated 17-2- 1997. His contention is that on 17-2-1997 he has disclosed his age as 18 years, so he will be of 13 years of age at the time of occurrence which took place on 5-6-1992. This plea is also devoid of any force as no proof regarding his minority has been produced on record. On the other hand a school leaving certificate is available on record, which shows that his date of birth is 5-11-1970. Now from this certificate it stands proved that Zahid Hussain accused/appellant was of more than 21 years of age at the time of occurrence. The trial Court has relied upon birth certificate in respect of Muhammad Majjid Aftab accused/appellant as his date of birth has been shown to be 9-9-1975.
Thus, he was less than 18 years of age at the time of occurrence dated 5-6-1992. Thus, even the plea of minority is not available to Zahid Hussain accused/appellant.
15. For what has been stated above, we are convinced that the impugned judgment has been passed absolutely in accordance with law and it does not suffer from any illegality. Consequently instant appeal as well as Criminal Appeal No,224 of 1997 fail and are hereby dismissed Murder Reference No,82 of 1997 is answered in affirmative.
16. For reasons recorded above, there is no force in Criminal Revision No,176 of 1997 so the same is also dismissed.