' Appellant Ghulam Murtaza alias Chota Kaka along with his brother Ghulam Mustafa alias Barra Kaka was tried by Addl. Sessions Judge, Gujranwala for the murder of one Muhammad Iqbal in case F.I.R. No.855 of 1999, dated 19-8-1999 registered under section 302/34, P.P.C. At Police Station, Sabzi Mandi, Gujranwala. The learned trial Judge, vide judgment dated 11-9-2001 while acquitting co-accused, convicted the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life. The appellant was also directed to pay Rupees one lac as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to further undergo six months' R.I. Trial Court also extended the benefit of section 382-B, Cr.P.C. In favour of the appellant.
2. Challenging his conviction and sentence appellant filed Criminal Appeal No.1452 of 2001 whereas complainant filed Criminal Revision No.257 of 2002 seeking enhancement of sentence of Ghulam Murtaza. Both these matters are being disposed of together by this judgment Criminal Appeal No.471 of 2002 seeking acquittal of Ghulam Mustafa filed by the complainant has already been dismissed for non-prosecution.
3. Muhammad Iqbal was done to death on 19-8-1999 at 12-00 noon within the area of Bukhari Colony, Gujranwala falling within the jurisdiction of Police Station, Sabzi Mandi. The matte was reported to the police by Muhammad Yaseen father of the deceased and formal F.I.R. Exh.P.F. Was registered.
4. The facts of the case as penned in the F.I.R. Are that on 19-8-1999 at about 12-00 noon Ghulam Murtaza-appellant called Muhammad Iqbal from his house on the pretext that his elder brother Ghulam Mustafa was calling him for the purpose of some conversation. Statedly Muhammad Iqbal went along with Ghulam Murtaza alias Chotta Kaka. The complainant on smelling some foulplay also followed them. When Muhammad Iqbal deceased and Ghulam Murtaza appellant reached near open fields of Bukhari Colony where Ghulam Mustafa alias Bara Kaka was also present, he (Ghulam Mustafa) suddenly caught hold of Muhammad Iqbal while Ghulam Murtaza-appellant inflicted three injuries to Muhammad Iqbal with dagger. On seeing this the complainant raised hue and cry which attracted Muhammad Babar and Muhammad Imran P.Ws. Who also came at the spot and witnessed the occurrence. Statedly on seeing the witnesses, the accused fled away towards Sheikhupura Road. The injured was removed to the hospital but he succumbed to the injuries during the journey.
' Motive for the occurrence as narrated in the F.I.R. Was that few days prior to the occurrence a quarrel took place between Muhammad Iqbal and Ghulam Murtaza alias Chota Kaka and in order to wreck the vengeance of the said insult both the accused in furtherance of their common intention had committed Qatl-i-Amd of Muhammad Iqbal deceased.
5. On the same day i.e. 19-8-1999, complainant Muhammad Yaseen submitted a written application Exh.P.D. Before Muhammad Razzaq, S.I., P.W.9 who along with other police officials was on petrol duty near Lepan Hotel and on the basis of said application F.I.R. Exh.P.F. Was registered.
The said police officer also conducted the formal investigation of this case. He after examining the dead body prepared injury statement Exh.P.G., inquest report Exh.P.H. And sent the dead body to mortuary for post-mortem examination. After inspecting the spot he collected blood-stained earth vide memo. Exh.P.J. As well as prepared rough site-plan Exh.P.K. During investigation the police officer also got prepared scaled site-plan through Draftsman as well as recorded statements of the witnesses under section 161, Cr.P.C. The appellant was arrested on 6-9-1999 and on 18-9-1999 during interrogation appellant led to the recovery of dagger P.4 from his residential house which was taken into possession vide memo. Exh. P . E.
6. Before the trial Court prosecution produced ten witnesses including Muhammad Yaseen P.W.6 and Babar Ali P.W.7 the eyewitnesses of the occurrence. Trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. While answering to the question, why this case against you and why the P.Ws. Deposed against you? The appellant replied as under:-- "Muhammad Iqbal deceased was a vagabond and gambler and an addict. He was in habit of molesting of women-folk. On the day of occurrence he cut indecent joke with my sister Mst. Firdous and when she complained about the incident to my mother where I was present. Hearing the complaint, I went to inquire about the incident from Muhammad Iqbal deceased who was present at the shop and during the scuffle between us this occurrence took place which was wrongly reported to the police by the complainant and the P.Ws."
' Appellant also made statement under section 340(2), Cr.P.C. And while supporting the defence plea narrated the facts as stated by him during his statement under section 342, Cr.P.C. He also produced Mst. Firdous Kausar as D.W. In his defence.
7. Trial Court after appraisal of evidence available on record vide judgment dated 11-9-2001 convicted and sentenced the appellant as narrated earlier.
8. Counsel for the parties have been heard at length and with their assistance, I have minutely gone through the record of this case. It is a case of two versions. Place and time of occurrence as well as the weapon used during the occurrence are admitted facts and the only question to be resolved is whether the story of prosecution is to be relied upon or the defence plea is to be accepted in totality.
' From the very beginning the case of the prosecution was that few days earlier appellant Ghulam Murtaza and deceased (Muhammad Iqbal) had a quarrel and in order to wreck the vengeance of the said insult appellant had committed the murder of Muhammad Iqbal deceased. Statedly, on the day of occurrence when appellant Ghulam Murtaza took Muhammad Iqbal (deceased) with him from his house on the pretext of conversation with Ghulam Mustafa (his co-accused), complainant Muhammad Yaseen (P.W.6) smelling some foul play followed them and had seen the occurrence. On the other hand the file of this case shows that during the trial prosecution witnesses took up the stand that said quarrel took place during the game of carom board but the matter was patched up. According to Babar Ali P.W.7 after the said occurrence accused Ghulam Murtaza and Muhammad Iqbal deceased use to call each other for the purpose of playing game in routine. In this view of the matter, there was no occasion for the complainant to suspect any foulplay on the part of accused party and to follow the deceased and the appellant. The presence of this witness in the circumstances of this case is not free of doubts. Even otherwise, a careful analysis of the statements of both the eye-witnesses namely Muhammad Yaseen P.W.6 and Babar Ali P.W.7 reveals that they had made glaring improvements while deposing before the trial Court. The stand of the prosecution witnesses also stands belied by the medical evidence. Statedly at the relevant time Ghulam Mustafa co-accused had held the deceased in his clasp when the appellant caused dagger blows. The post-mortem report reveals that deceased had received all the injuries on the front part of his body. None of the eye-witnesses had explained the manner in which deceased was held by Ghulam Mustafa (co-accused) and if it is presumed that the deceased was held by Ghulam Mustafa (co-accused) from the front side then there was no occasion for Ghulam Murtaza appellant to cause injuries to the deceased as mentioned in the post-mortem report. Similarly if the deceased was held by Ghulam Mustafa from the back side, even then it was very difficult for the appellant (Ghulam Murtaza) to cause injuries on the front side of the deceased as it is apparent from the pectoral drawn by Dr. Abid Zia P.W.3 during the post-mortem examination.
On the other hand, the defence plea was that the appellant being provoked on coming to know that his sister had been disgraced and molested by the deceased he (appellant) went to the shop of the deceased to inquire about the incident and during the scuffle he caused injuries to the deceased. Muhammad Razaq, S.I. P.W.9 (Investigating Officer) while deposing before the trial Court had admitted that first plea of the appellant after his arrest was that he had committed the murder of Muhammad Iqbal deceased because he had cut indecent joke with his sister.
Admittedly, Mst. Firdous Kausar was also examined by S.P. Concerned during the investigation and she took the same plea before him as well. Said Mst. Firdous also appeared before the trial Court as D.W. I and had supported the defence plea. In support of his defence plea appellant also made statement on oath as required under section 340(2), Cr.P.C. While putting both the versions in juxta-position, I find much force in the defence plea which also finds support from the circumstances of this case. Even otherwise it is well-settled that when there can be two views about the same incident, the view in favour of the accused is to be followed.
' The data available on record reveals that the appellant on coming to know about the insult of his sister at the hands of deceased suddenly got flared up and during the scuffle had caused injuries to the deceased. Thus case of the appellant falls within the purview of section 302(c), P.P.C. And not under section 302(b), P.P.C. As held by the trial Court. Accordingly, while dismissing the appeal, conviction of the appellant under section 302(b), P.P.C. Is set aside and he stands convicted under section 302(c), P.P.C. And sentenced to ten years' R.I. With the benefit of section 382-B, Cr.P.C. As it is apparent from the facts of the case that deceased was done to death by the appellant because of his immoral act, the legal heirs of the deceased are not entitled to any compensation as required under section 544-A, Cr.P.C.
' In the light of above-said observations, I see no force in Criminal Revision No.257 of 2002 seeking enhancement of sentence of the appellant and the same stands dismissed. Criminal Appeal No.471 of 2002 seeking acquittal of Ghulam Mustafa respondent has already been dismissed for non- prosecution.