Sardar Muhammad Raza Khan, J.--The present appeals, after leave of Court, are filed against the judgment dated 23.11.1994 of Lahore High Court, Lahore whereby, on partial acceptance of appeal of the convicts, their conviction under Section 302/34 PPC was converted to one under Section 304 part-I of the PPC and they were sentenced to rigorous imprisonment for ten years, setting aside the conviction under Section 302/34 PPC and sentence of death recorded and awarded by the trial Court. Appeal No, 333 of 1995 is filed by Muhammad Ikram Butt, the complainant against the acquittal of Nisar Ahmad, Muhammad Ismail and Chand Gul and for the enhancement of sentence of Sajjad Hussain and Aurangzeb to the normal penalty of death. Appeal No, 334 of 1995 is filed by Sajjad Hussain and Aurangzeb who have challenged their conviction and sentence even under Section 304 Part-I of the PPC.
2. The background of the case, as disclosed by Muhammad Ikram Butt, complainant of FIR No, 199 dated 17.5.1990 of Police Station Waris Khan District Rawalpindi, is to the effect that on the night between 16th and 17th of May, 1990 the marriage ceremony of Sajjad son of Muhammad Ishaq was being celebrated in Mohallah Chah Sultan. A dance show was in progress in the street in front of the groom's house. Bilal Butt and Umer Farooq Butt, the two sons of the complainant had also gone to watch the show. At about 12.30 a.m. there was a commotion outside in the street to which the complainant was attracted. When the latter reached there, he saw that Aurangzeb, Nisar Ahmad and Ismail sons of Ghulam Haider, Chand Gul son of Khadim Hussain, a relative of the groom and Sajjad Hussain were abusing his son. Ismail called out his companion that the two boys had insulted them on such a happy occasion in the family and therefore both be killed. Aurangzeb, Nisar Ahmad and Sajjad duly armed with pistol opened fire at Bilal Butt who fell down after receiving injuries on his neck and temple. Umer Farooq, in order to save his life, started running towards his house. Nisar and other assailants gave him a chase. When Umer Farooq reached in front of his house, accused Nisar fired from his pistol from behind. The shot landed at the back of Umer Farooq who also fell to the ground.
3. The complainant Muhammad Ikram Butt when ahead to cause separation when Chand Gul and Ismail gave him brick blows on his back. His son Bilal Butt died on the spot while Umer Farooq died immediately reaching the hospital. The occurrence, besides complainant Muhammad Ikram Butt, was also witnessed by. Rahat Alamgir of 539-D, Landa Bazar and Raja Zameer Ahmad of 7169/NE, Mohallah Arnarpura. The accused, while firing, left the scene of occurrence by injurying their own companion Chand Gul.
4. The motive for the occurrence was that Bilal Butt and Umer Farooq Butt were watching the dance show while sitting on a nearby wall. The accused party had asked them to get down the wall but they refused. Considering it to be an insult on that special occasion, the assailants killed both the youthful sons of the complainant. This report was lodged by the-complainant before Muhammad Afzal Inspector/SHO at General Hospital Rawalpindi at 1.304.m.
5. In brief, the prosecution relied upon the ocular testimony furnished by Muhammad Ikram Butt complainant (PW-11), Rahat Alamgir (PW-2) and Raja Zamir Ahmad (PW-3). Support for such testimony was sought from the medical/postmortem reports, the motive, the discovery of revolvers at the instance of the accused, the positive reports of fire-arm , experts and the abscondence of the accused.
6. While being examined under Section 342 Cr.P.C., except accused Chand Gul, all the remaining accused denied the commission of offence and even the presence thereof on the spot. Chand Gul, however, took the plea that the two deceased brothers while sitting on the wall had been teasing the women folk of the house of the bridegroom, had been throwing pebbles on the dancing girls in addition to firing in the air. That thereupon, Chand Gul commanded them to get down the wall and to stop doing nefarious activities. That the deceased got offended and Bilal Butt fired at Chand Gul which hit him on his neck. That the two brothers ran away towards their house whereupon other participants of the ceremony watching the dance show opened fire at two boys with which they got killed.
7. The trial Court believed in the prosecution version given by the three eye-witnesses as well as the attending circumstantial evidence and rejected the plea of accused in its elaborate discussion. On appeal, the; learned High Court though believing in the evidence of the prosecution, (relevant paras reproduced in the leave granting order) brought conceding that both the deceased were fired at when they had already started running towards their house and that the assailants had no immediate apprehension of bodily hurt yet came to a conjectural conclusion that the circumstances did indicate that the behavior of both the deceased "must have" caused grave and sudden provocation to the appellants. By holding so the conviction under Section 302/34 PPC and the sentence of death awarded to Saad Hussain, Aurangzeb and Nisar was converted to a conviction under Section 304 Part-I PPC with a sentence of imprisonment of ten years etc.
8. With the assistance of learned counsel on either side we have minutely gone through the record and do believe that the prosecution had proved its case so far as the story thereof was concerned.
This is accepted by the trial Court as well as the High Court. The only exception is that the plea rejected by the trial Court with elaborate reasoning was accepted by the High Court without sound reasons.
9. We may point out at the very outset that there was no record of any previous enmity whatsoever between the parties to the occurrence as well as their families. The fact of the matter is that they being neighbours nourished cordial relationship, inescapable proof whereof is the presence of the two deceased in the marriage celebrations of accused Sajjad- Hussain. In the absence of any ill will between the parties, muchless enmity, we have no reason to discard the ocular testimony of not one but three eye-witnesses emanating from unimpeachable source. This was an extremely fit case where the ocular testimony of the eye-witnesses could be straightaway accepted without corroboration though there was ample corroboration as well. This is why, it appears that even the High Court could not reject the ocular, testimony of three eye-witnesses one of whom (the complainant) was injured as well. The point of difference only is the defence plea, if at all, of the right of self-defence and that of grave and sudden provocation inferred by the High Court itself and not raised by the accused at all.
10.First we would like to take up the pleas, holding of course at the very outset that so far as the prosecution case is concerned it is proved beyond any shadow of reasonable doubt. The accused Aurangzeb, Sajjad Nisar etc. have not taken any plea at all in their statement under Section 342 Cr.P.C., either of right of self-defence or of the grave and sudden provocation. We are mindful of the fact that in a criminal trial it is not atall necessary for the accused' to raise a plea relating to the exceptions involved and that any such benefit can be extended to them by the Court, itself provided any such plea is identifiable from record and the evidence of the prosecution. So far as the evidence is concerned, all the three eye-witnesses were subjected to lengthy, irritating and nauseating cross-examination yet the defence never succeeded to bring a void in the consistent version of the prosecution.
11.Coming to the plea taken by Chand Gul accused, the evidence shows that at 1.00 a.m. at night he was already present before doctor Malik Sajid Mahmood (PW-15). He was in state of shock and semi-consciousness. It is admitted by the doctor that if some one i.drowsy, semi-conscious and in shock, he is unable to run. About Chand Gul accused, there is evidence of the prosecution that he ran away from the spot. How he could run away after receiving injury in the neck, after getting into shock and semi consciousness, is any body's guess.
12.In the circumstances of the case and in view of the site-plan, Chand Gul appears to have been injured, if at all, from a distance of not more than a few feet. In such condition, the bullet having gone with a considerable force was most likely to cause an exit wound. No such exit wound is in existence. It is a unique fire-arm injury which seems to have not gone beyond the muscles under the skin. It is not known as to how it pierced through the neck and if available in the x-ray report, why it was not extracted. We believe that had the bullet been there, it must have been extracted.
The medical record to that effect is absolutely silent. In these circumstances the possibility cannot be ruled out, as appreciated by the trial Court that Chand Gul received such injury from the over- enthusiastic companions who had resorted to firing in a close enclave.
13. The allegation of the defence that the two deceased had resorted to firing at Chand Gul and prior thereto in the air, seems to be a concocted version subsequently tailored. Both the deceased were hit and had fallen down on the spot, one having died instantaneously. Had they possessed any pistol or revolver, it must also have fallen on the ground and the police must have recovered the same during spot inspection, especially, when the spot was mainly surrounded by the people of the accused party. No such weapons attributable to the deceased were at all recovered. The story of the deceased having resorted to firing is therefore tailored one.
14. Chand Gul accused has also appeared as his own witness under Section 340(2) Cr.P.C. In doctor's statement it had already been mentioned that Chand Gul was brought by police. Meaning thereby, that he had first gone to the police station. He seems to have lodged no FIR to whatever effect he may have liked. In cross-examination he admitted that the police was available around even in the hospital yet he did not lodge any report. One can conveniently infer that at that time he had no story to put forth qua his injury, that he was not sure as to who had fired at him and hence he kept quiet over it. His so called x-ray report was never placed on file and for the first time it surfaced when the doctor was being examined. He has not uttered a single word that he wanted to lodge a report but the police declined, avoided or refused. In the circumstances, we are of the view that the plea taken by Chand Gul is also not proved.
15.We are aware of a golden rule of appreciation of evidence even laid down by this Court in Noorul Haq v. The State (1992 SCM R 1451), that the accused cannot be held guilty merely because his plea in defence has failed in case the prosecution has failed in proving its case beyond doubt.
But, the case in hand stands all together on different footing. Here the prosecution on the one hand has independently proved its case beyond any shadow of reasonable doubt and on the other hand the accused have failed to prove their plea.
16.The matter does not end here. Let us assume, purely for the sake of arguments, that the accused party retaliated against some act of firing by the accused yet the fact remains that such concocted act of firing is attributed to Bilal deceased alone. If once he had fired which caused an injury to Chand Gul of such a nature that he could ran away from the spot, could go to the hospital or for that matter the police station and the deceased had never repeated the attack, the apprehended danger had totally abattd and the assailants had no right whatsoever to give a chase to the two deceased who admittedly had been running away to their house to save their lives. Once the apprehended danger is over, the accused is not supposed to take the life of some one, rather two lives by chasing them in esope during which no act was repeated by the deceased.
We can refer to Abdul Rashid alias Sheda Mota v. The State (2003 SCM R 799).
17.Both the Courts below have concluded and rightly so that the two deceased boys had already started running towards their home when fired at. Most certainly the assailants have exceeded the right of self-defence and are not entitled to any benefit claimed by them. It may be repeated at this juncture that their plea is being considered only for arguments sake. It is not proved at all and also is not inferable from the evidence of, the prosecution.
18. Consequently we hold that the benefit given by the High Court and the judgment so recorded is artificial and perverse. Neither the assailants were entitled to the concession of having acted in exercise of right of private defence nor under grave and sudden provocation. There was no occasion at all to have become gravely and suddenly provoked against the persons who equally were the guests in the ceremony. While rejecting Criminal Appeal No, 334 of 1995 Meng the convicts and while accepting Criminal Appeal No, 333 of 1995 filer by Muhammad Ikram Butt, the conviction recorded by the High Court under Section 304 Part-I PPC vide judgment dated 23.11.1994 is set aside and that recorded by the trial Court under Section 302/34 PPC is upheld alongwith the sentences passed thereby. Accused Aurangzeb, Sajjad and Nisar are to be taken into custody for further proceedings.
19.So far as the acquittal of remaining accused is concerned, it is quite reasonable and is not intarfered with. Criminal Appeal No, 333 of 1995 is, therefore, rejected qua Muhammad Ismail and Chand Gul.