Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 485/J of 2000 filed by Asif Khan, appellant who was convicted under Section 302(b) PPC and sentenced to death with further direction to pay Rs, 50,000/- as compensation, in default six months SI vide the judgment dated 20.10.2000 delivered by learned Additional Sessions Judge, Attock.
Murder Reference No, 761 of 2000 for confirmation or otherwise of death sentence of appellant shall also be answered through this single judgment.
2. Occurrence in this case had taken place at 10.15 a.m. on 3.4.1998 at a distance of kilometer from Police Station Sadar Attock while the matter was reported to the Police by Mohabbat Khan through written complaint Ex. PB at 11.20 a.m. the same day at Civil Hospital and formal FIR Ex. PB/1 was recorded by Ghulam Farid, HC at 11.35 a.m.
3. Briefly stated the facts of the case are that at 10.15 a.m. on 3.4.1998 when the complainant alongwith Afadat Khan were present at the Adda, Asif Khan, accused fired a shot with carbine .12- bore which landed on the left eye of Afadat Khan who fell down. The injured succumbed to his injuries in the hospital.
The motive alleged was that Afadat Khan, the deceased had given evidence in a murder case of Azeem Khan who was relative of Asif Khan, the accused and due to this grudge, Asif Khan committed the murder of Afadat Khan.
4. Abdur Rauf SI (PW.13) took up the investigation. He on receipt of information went to the hospital where the dead body of the deceased was lying, prepared injury statement Ex. PJ, inquest report Ex.
PK, took into possession the blood stained earth vide memo Ex. PH, an empty cartridge P. 7 was also secured vide memo Ex. PI and the accused was arrested on the day of occurrence and he led to the recovery of carbine which was taken into possession vide memo Ex. PC. After completion of the formal investigation, accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 13 witnesses in all. The learned DDA tendered in evidence reports of the Chemical Examiner (Ex. PN, Ex. PO) report of the Serologist Ex.
PN/1, report of the Forensic Science Laboratory Ex. PP and closed the case of prosecution. The accused in his statement under Section 342 Cr.P.C. pleaded self-defence. However, after conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant after having read the prosecution evidence submitted that appellant was also injured and he was medically examined by Dr. Mansoor Shuja PW.5 but the injury on the person of the appellant was suppressed by the prosecution rather the appellant had taken the plea of self defenee and the same is available in reply to question No, 6 given by the appellant in his statement under Section 342 Cr.P.C. In these circumstances, according to learned counsel penalty of death is not called for.
7. Learned AAG submitted that as per opinion of the doctor PW.5 the injury on the person of the appellant was in fact self-inflicted and with friendly hands. He supports the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record with their able assistance. It is a case of two versions, one put by the prosecution and other introduced by the appellant in his statement under Section 342 Cr.P.C. The defence, which the appellant took before the trial Court is reproduced: On the day of occurrence as usual I had come to the Sabzi Mandi for sale of vegetables and I also do labour work there. I went to the Adda to got to my village. When I saw Afadat deceased present there. Afadat deceased stared at me and immediately took out pistol 12 bore from his pocket and I in order to save myself I grappled with him and placed my hands on the hand of the deceased Afadat as he was going to fire at me during this process the pistol went off as the hand of the deceased was on the trigger and the fire shot hit me on my belly. Afadat deceased receded 2-3 step back and again loaded the pistol and he was just going to fire a second shot when I again grappled with him and placed my hands on his hand in which he was holding the pistol. During this process the pistol went off and by this time the barrel of the pistol with my efforts was towards sky i,e, upwards and hit the deceased on his eye as he was bending a bit in order to release the pistol from my grips. I never used the pistol against the deceased intentionally or otherwise. It is all the fault of the deceased. I was immediately taken to the hospital by the people. Afadat was also removed and taken to the hospital by the people. The so-called eye-witnesses were not present at all. In the hospital Afadat was examined first by the doctor but he died after some time. So I was examined after him and was arrayed as an accused because Afadat had died. Had I died and Afadat remained alive the Police would have arrayed him as an accused for my murder. The PWs are closely related to the deceased as well as inter se. The Police connived with the complainant party and after summoning them from the village prepared a false report."
The appellant was also got medically examined by the Police on 3.4.1998 by Dr. Mansoor Shujja, Medical Officer, DHQ; hospital Attock (PW.5) According to finding of the doctor (PW.5) a lacerated wound was present in the midline on front of abdomen 4 CM above umbilicus oval in shape with horizontal diameter of 8 CM and vertical diameter of 6 CM exposing the abdominal viscera.
Blackening and charring of the edges of the wound was also seen. The injured was wearing a yellow colour shalwar and qameez. Qamees was soaked with blood in correspondence with the site of injury but torn at the level of upper part of right thigh. Upper part of front of shalwar was also soaked with blood but it was torn at the level of upper part of left thigh.
The prosecution suppressed the injury on the person of the deceased. It was neither disclosed before the Police nor before the trial Court. There is one injury on the person of the deceased on the one hand and on the other hand one injury on the person of the appellant.
After applying the salutary principle of law by putting both the versions in juxta-position, we are of the considered opinion that version of the appellant cannot be ignored lightly specially when he was got medically examined by the Police on the day of occurrence and a lacerated wound was found in his abdomen.
In the above facts and circumstances of the case, we convert the conviction of appellant from 302(b) to 302(e) PPC. The appellant was arrested on 3.4.1998. Already seven years have passed that he is behind the bar. So the sentence, which the appellant has already undergone, is treated to be sufficient to meet the ends of justice. The appellant having acted in self defence, the amount of compensation awarded by the trial Court is set aside. Appeal filed by the convict appellant stands disposed of in-the above terms.
The death sentence of the appellant is not confirmed and Murder Reference is answered in the negative. Asif Khan, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.