' This judgment will dispose of Criminal Appeal No,901 of 2001 (Nasrullah v. The State) which is directed against the judgment dated 28-5-2001 passed by the learned Additional Sessions Judge, Bhalwal, Sargodha whereby he had convicted the appellant under section 302. P.P.C. And had sentenced him to undergo imprisonment for life. He was also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default he was directed to undergo S.I. For six months.
2. The case against the accused is based on F.I.R. No,40 of 1998, registered on 7-3-1998 in Police Station Phularwan, Tehsil Bhalwal, District Sargodha under section 302/34, P.P.C. The accused namely Nasrullah appellant, Zafarullah, Muhammad Afzal and Bashir Ahmed were tried by the learned Additional Sessions Judge, Bhalwal, vide judgment dated 28-5-2001, the learned Additional Sessions Judge, Bhalwal acquitted Bashir Ahmad, Muhammad Afzal and Zafarullah accused by extending to them the benefit of doubt. Vide the same judgment, Nasrullah accused/appellant was, however, convicted under section 302(b), P.P.C., and sentenced to imprisonment for life. It was directed that he will also pay an amount of Rs,50,000 (Rupees fifty thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default he will undergo S.I. For six months.
3. Aggrieved of the said judgment, Nasrullah accused/appellant has filed this appeal (Criminal Appeal No,901 of 2001).
4. The case against the accused is based on F.I.R. No,40 of 1998 (Exh.P.G.) which was registered at Police Station Phularwan, District Sargodha on 7-3-1998 on the statement of Muhammad Nazir son of Mirza.
5. According to the contents of the F.I.R. Exh.P.G. Muhammad Nazir complainant and Mst. Kaneez Bibi, the wife of Nasrullah accused were co-owners in a joint Khata and who had made a private partition of the same. Mst. Kaneez Bibi had taken over possession of six Kanals of land in excess Of her entitlement and which was in tact owned by the complainant. Sometime ago, Nasrullah accused, the husband of Mst. Kaneez Bibi, has taken forcibly possession of complainant's residential plot measuring 10 Marlas in Abadi Deh Sidhowal and negotiations regarding restoration of six Kanals of agricultural land and 10 Marlas of residential plot of the complainant were in progress. On the fateful night, Bashir Ahmed the father of Nasrullah accused/ appellant had called one Muhammad Ashraf and also Muhammad Bashir to their home for mutual settlement. The brother of Nasrullah accused/appellant visited the house of the complainant to call him to participate in the Punchayat and the complainant alongwith his only son Muhammad Farooq went to participate in the Punchayat where negotiations started regarding the aforesaid dispute. Around 11-15 p.m. The complainant's son Muhammad Farooq said to the Punchayat during conversation that they were entitled to get the above-mentioned agricultural land and plot and they will get the same at any cost and on which Bashir Ahmad raised Lalkara exhorting his son to kill Muhammad Farooq and thereupon Zafarullah and Muhammad Afzal accused caught hold of complainant's son Muhammad Farooq from his arms while Nasrullah accused/appellant took his .12 bore gun lying beside him and fired at Muhammad Farooq which hit him on his chest and as a result of which he fell down after receiving injury. Muhammad Nazir, complainant with the help of Muhammad Ashraf and Muhammad Bashir P.Ws. Took his son Muhammad Farooq to his house and from there he was being taken to Civil Hosptial, Phularwan but he succumbed to the injuries while still on the way.
6. The matter was reported to Muhammad Aslam, A.S.-l., Police Station Phularwan by Muhammad Nazir, complainant and on the basis of his statement, the F.I.R. Exh.P.G. Was recorded. Therefore, the A.S.-I. Aforesaid visited the spot, inspected the dead body of the deceased, prepared the injury statement Exh.P.D. And inquest report Exh.P.E. He sett the dead body to the mortuary for postmortem examination. He took other formal steps in connection with the investigation of the case. Thereafter, the investigation was conducted by the S.H.O. Of the Police Station, Phularwan who arrested Nasrullah accused/appellant on 15-4-1998. During the course of interrogation on 29- 4-1998 Nasrullah accused made a disclosure and then on his pointation double barrel gun P.1 was recovered and taken into possession by the Investigating Officer vide memo. Exh.P.A. He completed the investigation and submitted the challan. The name of Nasrullah accused was placed in Column No,3 while the names of Bashir Ahmed, Zafarullah and Muhammad Afzal accused were placed in Column No,2 of the challan.
7. After the submission of challan, all the accused were summoned to face the trial. The learned trial Court framed the formal charge against all the accused under section 302/34, P.P.C. And to which all of them pleaded not guilty and the prosecution was, thus, asked to produce its evidence.
The prosecution has examined as many as 12 witnesses in this case.
8. P.W.5 Dr. Atta Muhammad Irfan Jasspal had conducted the post-mortem examination on the dead body of Muhammad Farooq deceased on 7-3-1998 and had observed five injuries on his person. In his opinion the cause of death in this case was Injury No,1 which resulted in extensive damage to the vital organs (lungs, heart and great vessels and trachea) leading to a massive amount of internal blood loss and it was sufficient to cause death in ordinary, course of nature.
Injury No, I was described as wound of entry caused by I ire-arm while Injuries Nos.2, 3, 4 and 5 were described by him as exit wounds. According to the Doctor i.e, P.W.5, injuries were ante-mortem and had been caused by fire-arm. The probable duration between the injures and death was within half an hour and the duration between death and post-mortem examination was about 10 to 12 hours. Exh.P.C. Is the carbon copy of post-mortem report while Exh.P.C.1 is the sketch of injuries. The injury statement Exh.P.D. And the inquest report Exh.P.E. Were also signed by him.
9. The eye-witness account in this case is furnished by P.W.8 Muhammad Nazir complainant and also by P.W.9 Muhammad Bashir and both of whom deposed on the same lines as indicated in the F.I.R.
10. P.W.10 is Khalid Bashir. Inspector Range Crimes, Sargodha who had partly investigated the case.
P.W. II Musarrat Hussain Shah. S.-1./S.H.O. Also investigated the case while P.W.12 Muhammad Aslam, A.S.-I. Had recorded the formal F.I.R. Exh.P.G.
11. The learned Prosecutor tendered in evidence report of Chemical Examiner Exh.P.J., report of Serologist Exh.P.K. And closed the prosecution evidence on 14-3-2001. The statements of the accused under section 342, Cr.P.C. Were recorded on 26-4-2001 and in which they denied all the incriminating circumstances. In answer to the question as to why this case against them and why the P.Ws. Had deposed against them all the accused replied that the P.Ws. Had made false statements to conceal the aggression of the deceased. In answer to the question as to whether he wanted to say anything else, Nasrullah accused/appellant replied as under:-- "Complainant demanded the hand of Mst. Kaneez Bibi for marriage ;with his son Farooq deceased but my fater-in-law refused the proposal because Farooq was lesser in age than Mst. Kaneez. Mst.
Kaneez owned property from her father and mother and the complainant was a greedy person and wanted to marry Mst. Kaneez with Farooq deceased. Thereafter, Farooq deceased started teasing Mst. Kaneez and me when father of Kaneez married her with me. The deceased was a desperate and a vagabond person. On the day of occurrence I sent some persons to the house of the complainant so that they may entreat the deceased and forbade him from teasing us. The deceased slipped away from his house and trespassed into my house and came to the door of my bed room where I was sleeping alongwith my wife and minor son. He knocked at the door and when I opened it, the deceased while armed with a gun entered forcibly in my bed room and aimed his gun at me. There was a scuffle between myself and the deceased and during the said scuffle, the gun went off hitting the deceased. I had informed the police about the occurrence. The police came to my house. Collected the dead body and the gun of the deceased but on the next morning,, cooked up false prosecution story; I raised this very plea during investigation and the Investigating Officers admitted the above facts and declared my father and brothers innocent and did not challan them. The complainant also admitted the innocence of my father and brothers."
12. On the conclusion of trial, the learned trial Court acquitted Bashir Ahmed, Muhammad Afzal and Zafarullah accused by extended to them the benefit of doubt while Nasrullah appellant was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life and also to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. Or in case of default to undergo S.I. For six months.
13. Aggrieved of the said judgment dated 28-5-2001, Nasrullah accused/ appellant has filed Criminal Appeal No,901 of 2001.
14. Learned counsel for the appellant has argued that it was the version of the appellant from the first day that actually it was the deceased who had come to his house, opened the door of his bed room where he was sleeping alongwith his wife and minor son. The deceased who was armed with a gun forcibly entered in his bed room and aimed the gun at Nasrullah accused/appellant and it was during scuffle that the gun went off hitting the deceased. He has argued that in fact the appellant had informed the Police about the occurrence and on which the police had come to his house and taken into possession the dead body and gun of the deceased but on the next morning they had cooked a false prosecution story. In this respect he has referred to the statement of P.W.12 Muhammad A slam, A.S.-I./Investigating Officer who in the course of cross- examination admitted that the occurrence had taken place in the bed room of Nasrullah accused/appellant where his wife and minor child were present. P.W.12 also admitted that the site-plans had been prepared on the pointation of the witnesses. He has pointed out that in the course ofcross-examination P.W.12/Investigating Officer, admitted that according to the site-plans Exh.P.I. And Exh.P.B. There is no place from where Muhammad Nazir complainant might have witnessed the occurrence. He has also referred to the statement of P.W.10 Khalid Bashir, Inspector, Range Crimes who had also investigated the case and who had admitted that according to the investigation conducted by two police officers i.e, Musarrat Hussain Shah, S.-I./S.H.O. And Ameer Abdullah Khan, Inspector, Police Station Satellite Town Sargodha, Muhammad Farooq deceased had entered into the house of Nasrullah accused/ appellant while armed with a gun. P.W.10 also admitted in the course of cross- examination that after his investigation Muhammad Saleem Bhatti, S.S.P., Sargodha conducted the investigation of this case and confirmed the findings of Musarrat Hussain Shah, S.-I./S.H.O. And Ameer Abdullah, Inspector as stated above. P.W.10 further admitted in the course of cross- examination that according to the version of the mother of Nasrullah accused/appellant, Muhammad Farooq deceased armed with a gun had entered the room (of Nasrullah accused/appellant) and where wife and minor son of Nasrullah accused/appellant were also present.
15. The learned counsel for the appellant has argued that the prosecution evidence in this case was the result of premeditation and consultations. He has argued that both P.W.8 Muhammad Nazir and P.W.9 Muhammad Bashir are interested and partisan witnesses and their statements do not inspire-confidence and that the prosecution has been unable to establish the motive. He has argued that the occurrence had not taken place in the manner as explained by the prosecution and that as a matter of fact it was Farooq deceased who had entered the room of Nasrullah accused where his wife and son were sleeping and it was then that Nasrullah accused had scuffled with the deceased and in the process the gun had went off and as a result the deceased was hit and he expired. He had argued that the defence version of Nasrullah accused is more probable than the prosecution version which does not inspire-confidence at all and that the prosecution evidence in this case is not sufficient to warrant conviction under section 302(b), P.P.C. And hence the conviction recorded by the learned trial Court and the sentence awarded to Nasrullah appellant be set aside.
16. From the other side the learned counsel for the State has resisted the appeal. However, it was conceded by him that during the course of investigation it was found by more than two Investigating Officers that it was Farooq deceased who armed with gun had entered the house of Nasrullah accused and had forcibly entered his room where his wife and child were also sleeping and it was in the course of scuffle that the gun had went off. However, he has argued that the statements of P.W.8 Muhammad Nazir and P.W.9 Muhammad Bashir which are fully corroborated by medical evidence are sufficient to establish the charge against the appellant. He has argued that the appellant had been rightly convicted and sentenced by the learned trial Court.
17. I have carefully considered the arguments advanced from both sides. In this case, as already mentioned above, the prosecution has examined Muhammad Nazir complainant who is father of the deceased as P.W.8 and Muhammad Bashir the other eye-witness as P.W.9 to furnish the eye- witness account of the occurrence. The Investigating Officers in this case have been examined as P.W.11 and P.W.12. As already mentioned above P.W.11 Musarrat Hussain Shah (S.-I./S.H.O.), admitted in the course of cross-examination that its was first version of Nasrullah accused during the course of investigation that he was present alongwith his wife and minor child in his bed room when around 11-30 p.m. Farooq deceased while armed with gun entered into his bed room and aimed the gun at him and that gun was loaded at that time and Nasrullah accused snatched the gun from him. He also admitted in the course of cross-examination that according to his findings, the deceased i.e, Farooq was a Sarkash, Seenazoor and quarrelsome person and that he used to carry gun and wandered around and the respectables were afraid of him. He admitted that the occurrence had taken place in the bed room of Nasrullah accused where his wife and minor child were also present. Similarly P.W.2 i.e, Muhammad Aslam, A.S.-I. Who was also one of the Investigating Officers in this case admitted in the course of cross-examination that the occurrence had taken place in the bed room of Nasrullah accused where his wife and minor child were present and both the site-plans Exh.P.I. And Exh.P.B. Were prepared on the poiritation of the witnesses. He admitted in the course of cross-examination that according to the site-plans, Exh.P.I. And Exh.P.B.
There is no place wherefrom Muhammad Nazir complainant might have seen the occurrence. He, however, denied thatMuhammad Nazir was made complainant in this case as he was the father of the deceased. Likewise P.W.10 Khalid Bashir, Inspector, Range Crimes who had also conducted the investigation of this case admitted that Musarrat Hussain Shah (S.-I./ S.H.O.) and Ameer Abdullah Khan (Inspector) as a result of their examination had come to the conclusion that Muhammad Farooq deceased had entered into the bed room of Nasrullah accused while armed with a gun. He further admitted that Muhammad Saleem Bhatti, S.S.P., Sargodha had also conducted the investigation of this case and that he had confirmed the findings of Musarrat Hussain Shah, S.- I./S.H.O. And Ameer Abdullah, Inspector as mentioned above. He further admitted that on his visit to the place of occurrence it was only the mother of the accused who had appeared before him and according to the version of the mother of Nasrullah accused Farooq deceased had entered into the bed room of Nasrullah accused and where the wife and minor son of Nasrullah were also present.
18. From the above, one thing which is clear, is that the occurrence had not taken place in the manner in which the prosecution has claimed it to have taken place. Contrary to the statements of eyewitnesses i.e, P.W.8 and P.W.9, a number of Investigating Officers had reached the conclusion that it was Farooq deceased who armed with a gun had entered into the room of Nasrullah accused wherein the wife and child of Nasrullah accused were also sleeping. In his statement under section 342, Cr.P.C. As well Nasrullah accused had taken the same plea which according to him was his first version after the occurrence and which finds support from the statement of the Investigating Officer himself i.e, P.W.11 Musarrat Hussain Shah, 5.-I./S.H.O. When there are two versions before the Court, the Court has to accept the version which is nearer to the truth. In this case, as mentioned above, the defence version of 'Nasrullah accused/ appellant appears to be nearer to the truth and inspires confidence. Admittedly his first version 'yam:. The Investigating Officer was the same as was his defence version in his statement under section 342,, Cr.P.C. Under such-like circumstances, right of self-defence continues as long as the apprehension of use of force continues and as held in the case of Munir Ahmad v. The State 2001 YLR 1091 Lahore, right of self-defence at such moment of impulse cannot be measured in golden scales and it is well nigh impossible to modulate one's attack in exercise of right of self-defence step by , step to ensure that force used is commensurate with the danger averted and the law always gives certain degree of allowance if the right of self-defence is A marginally exceeded. In the present case, as already mentioned above, the defence version of Nasrullah accused appears to be more probable than the prosecution version and the version of the accused/appellant as put forward by him under section 342, Cr.P.C. Was the same as was his first version before the Investigating Officer. Thus, in the light of the authority Munir Ahmad v. The State NLR 2001 Criminal 444 the conviction/sentence recorded by the learned trial Court under section 302(b), P.P.C. Is liable to be converted into conviction section 302(c), P.P.C. Accordingly the conviction of the accused appellant under section 302(b), P.P.C. Is converted into conviction under section 302(c), P.P.C. And sentence of life imprisonment awarded to Nasrullah accused/appellant by the learned trial Court under section 302(c), P.P.C. Is converted into imprisonment for seven years' R.I. And compensation of Rs, 25,000 under section 544-A, Cr.P.C. And in case of default to undergo Si for six months. With the aforesaid modification in the impugned judgment, the appeal is dismissed. The appellant shall be entitled to the benefit under section 382-B, Cr.P.C.