AHMED KHAN LASHARI, J.---- By this Criminal Jail Appeal judgment dated 28-2-2003 passed by learned In charge Additional Sessions Judge Jaffarabad at Dera Allah Yar, in Murder Case No,24 of 2001, has been challenged whereby the appellant was convicted under section 302(c), P.P.0 and sentenced to suffer R.I. For 14 years and to pay Rs,1,00,000 as compensation provided under section 544-A, Cr.P.C. To the legal heirs of deceased Muhammad Ali, in case of default thereof to further suffer S.I. For six months with benefit of section 382-B Cr.P.C. The complainant has filed Criminal Revision Petition No,(S)12 of 2003 seeking enhancement of the sentence. Since both these matters are outcome of the one and same judgment, therefore, we propose to dispose of them with this common judgment.
2. The stated facts of the prosecution case are that the complainant Muhammad Luqman in his report dated 20-4-2004 recorded vide F.I.R No,120 of 2001 at Police Station Dera Allah Yar, offence under section 324/34, P.P.P., which was subsequently altered to section 302/34, P.P.C., alleged that he is Assistant Accountant in Treasury Office, and was residing along with his family at Eid Ghah Colony Dera Allah Yar. He had come to his house on two days leave, today at about 6.30 a.m., in the morning Ghulam Haider S.-I. Came and informed him that Haslan son of Jango Caste Shalwani Bugti residing at the lands of Zaman Khan Bugti, informed at police station that last night when he was sleeping, at about 1.30 a.m., on barking of dogs he became vigilant and considering his brother Muhammad Ali to be a thief fired upon him with a shot-gun, who was lying injured on the spot. He shifted the injured to Civil Hospital Dera Allah yar. The complainant on receiving the information rushed to hospital where his brothers Muhammad Jan and Haji Hadey sons of Washdad Rind resident of Goth Dolah Khan also reached and told him that yesterday evening at about 6/7 p.m., accused Manzoor son of Behram and Behram son of Muhammad Zaman Shalwani Bugti came to their house on a Motor Cycle and took their brother Muhammad Ali along with them on the pretext to arrange for them the tenancy-ship from landowner Muhammad Zaman Khan as Noor Khan Bugti had taken back the tenancy-ship from them. The complainant alleged that they are sure accused Manzoor, Behram Khan, Haslan and Gul Khan with common intention had attempted to commit murder of his brother. The injured was taken to Civil Hospital Larkana but he succumbed to the injuries on his way. P.W.14 Ghulam Haider S.-I. Conducted investigation of the case, he arrested accused Haslan, Behram Khan and Manzoor Ahmed and after usual investigation committed them to judicial lock-up. The challan was filed in the Court of learned Incharge Additional Sessions Judge Jaffarabad at Dera Allah Yar and accused were sent up to face trial.
3. The charge, framed for the offence, was read over to the appellant and co-accused to which they did not plead guilty and claimed trial. The accused Behram Khan and Manzoor Ahmed entered into compromise with the complainant party and were acquitted from the charge on 3-11- 2001. The prosecution to substantiate the accusation against appellant produced. P. W.1 complainant Muhammad Luqman (brother of deceased) P.W.2 Muhammad Jan (brother of deceased), P.W.3 Haji Dulha Khan (father of deceased), and P.W.4 Haji Hadey, in whose presence accused Manzoor and Behram took the deceased with them, P.W.5 Shah Ali claimed to be the eye- witness of the incident but his account was discarded by the trial Court, P.W.6 Shahzada Khan, P.W.7 Muhammad Bakhsh, P.W.8 Punhal Khan and P.W.9 Muhammad Shaban are the recovery witnesses, P.W.10 Dr. Muhammad Ibrahim, conducted the post mortem, P. W.11 Abdul Sattar is also recovery witness, P.W.12 Raja Shabir Ahmed partly investigated the case, P.W.13 Ehsan-ul-Haq Naib Tehsidlar, he recorded confessional statement of appellant. P.W.14 Ghulam Haider S.-I. Is the main Investigating Officer. After close of prosecution evidence, the appellant was examined under section 342, Cr.P.C., and he denied the allegation, however, he did not opt to record his statement on oath under section 340(2), Cr.P.0 nor any witness was produced in defence. The learned trial Court after hearing the parties convicted and sentenced the appellant as mentioned hereinabove.
4. Mr. Anwar-ul-Haq Chaudhry Advocate learned counsel for pauper appellant contended that there is no evidence available on record connecting the appellant with the commission of offence.
The learned trial Court illegally relied on the confessional statement of appellant recorded by the Naib Tehsildar having powers of 3rd Class Magistrate to coincide with other circumstantial evidence and convicted the appellant. He next argued that the complainant put forth three versions of the case, the earlier two were not believed by the learned trial Court while the third one was made basis for the conviction by withholding the benefit of doubt emerging from the prosecution record.
5. Mr. Abdul Rahim Mengal, learned Assistant A.-G. Argued that the appellant was rightly convicted by the trial Court considering the retracted confessional statement of appellant, the circumstantial evidence including the positive report of the Fire-arm Expert in respect of shotgun recovered on the disclosure of appellant and the used cartridge collected from the place of incident. He placed reliance on the judgment reported in 2001 PCr.L.J 445.
6. Mr. Muhammad Dawood Baloch Advocate, learned counsel for complainant contended that the appellant/respondent was required to be convicted under section 302(b), P.P.C., instead of section 302(c), P.P.C., on the ground that (i) there were no mitigating circumstances for awarding lesser punishment under section 302(c), P.P.C; (ii) the respondent in his statement recorded under section 342, Cr.P.C., has not taken any specific plea that he had killed Muhammad Ali as a thief; (iii) nor he has examined himself under section 340(2), Cr.P.C., to depose and prove the fact on oath.
The counsel in support of his contention relied on the following case-laws:-- 2003 SCM R 419, 540, 554+1995 SCM R 614
7. We have heard the learned counsel for the parties and have minutely perused the record as well as impugned judgment and cited case laws. It is the case of prosecution that the acquitted co- accused Manzoor and Behram on 19-4-2001 in the evening time took deceased Muhammad Ali from his house on a motorcycle and thereafter in the night, the acquitted and facing trial accused including the absconding accused, with common intention committed his Qatl-i-Amd. The complainant P.W. Muhammad Luqman deposed that on 20-4-2001 at about 6.30 a.m. Ghulam Haider S.-I. Came to his house and informed him that accused Haslan on the barking of dogs at midnight considering his brother Muhammad Ali to be a thief after firing injured him, who was lying at Civil Hospital Jaffarabad, he rushed to Civil Hospital and found his brother unconscious, his father Haji Dulha Khan, brother Muhammad Jan and Haji Hadey after knowing about the incident also reached at hospital and told him that on 19-4-2001 at about 6-30 p.m., accused Behram Khan and Manzoor Khan came to their house and took the deceased along with them on a motorcycle on the pretext to arrange tenancy for him from landowner Muhammad Zaman Bugti as Noor Khan Bugti had snatched Buzgari from them. The witness further stated that P.W. Shah Ali told him at hospital that on the night of incident he was guest in the house of accused Haslan in connection with Buzgari, at midnight time a vehicle came there and parked at some distance, the unknown accused persons loudly called accused Haslan to bring a rifle, he went after the accused Haslan and heard, accused Behram Khan asking someone to fire, accused Haslan made one fire, while accused Behram Khan made two fires at deceased, accused Behram Khan directed accused Haslan to report the matter at Police Station. The witness further stated that Hakim Ali informed him that on 20-4-2001 early in the morning Gul Khan and Adam Khan came to his house and requested for their shifting to Shoori on his Scooter, as they along with accused Haslan, Behram Khan and Manzoor had committed murder of Muhammad Ali. He lodged F.I.R Exh.P/1-A at Police Station Dera Allah Yar against the accused persons including absconding accused Gul Khan. The Medical Officer referred the injured to Civil Hospital Larkana for further treatment, but he succumbed to the injuries on his way to Larkana. The motive behind the incident was a dispute over a piece of land, which was though settled about ten years back through notables of the area but the accused Haslan, Behram Khan and Manzoor along with absconding co-accused Gul Khan still feeling aggrieved had committed murder of his brother. P.W.2 Muhammad Jan deposed that in the evening of 19-4-2001 he along with his father Haji Dulha Khan, brother Muhammad Ali and Haji Hadey were present at their home, accused Behram Khan and Manzoor Khan came there on a motorcycle and took their brother Muhammad Ali along with them to arrange Buzgari for him from a land owner Muhammad Zaman Khan Bugti, till late night he did not return back and on the next morning he came to know that his brother was lying injured at Civil Hospital Dera Allah Yar, he along with his father and brother reached at Hospital and informed P.W. Luqman about the fact. The injured was referred to Civil Hospital Larkana for better treatment, but he succumbed to the injuries on his way to Larkana, Shah Ali and Hakim Ali at hospital told to his brother that accused Haslan, Behram Khan and Manzoor Khan along with absconding co- accused Gul Khan had committed murder of his brother. P.W.3 Haji Dulha Khan father of deceased deposed that about four months back in the evening time his sons Muhammad Ali, Muhammad Jan and Haji Hadey were present at home, Muhammad Zaman and Manzoor Khan came there on a Motorcycle and asked Muhammad Ali to accompany with them in order to arrange tenancy-ship for him from a landowner Muhammad Zaman Bugti as Noor Khan Bugti has snatched Buzgari from them, the deceased proceeded with them on a Motorcycle but he did not return back, on the next morning he after knowing about the incident along with Muhammad Jan, Muhammad Dawood and others reached at Civil Hospital. The injured Muhammad Ali was referred to Civil Hospital Larkana but he succumbed to the injuries on his way.
Muhammad Luqman told him that accused present in the Court along with absconding co- accused Gul Khan had committed the murder. He stated that there was no enmity or dispute between them prior to the incident. P.W.4 Haji Hadey deposed that he, Muhammad Ali and Daim were present in their house situated at Goth Dulha Khan, accused Behram Khan and Manzoor Khan .Came there on a Motorcycle and took Muhammad Ali along with them to arrange Buzgari for him but till late night he did not return back, on the next morning he came to know that accused Haslan, his sons had injured and killed Muhammad Ali. The deceased succumbed to the injuries on his way to Civil Hospital Larkana. P.W.5 Shah Ali deposed that he resides at Goth Fazal Karim Khosa, about seven months back Gul Khan came to his house to arrange tenancy/Buzgari for him from landowner Muhammad Zaman and went back, when in the evening he went to the house of Gul Khan he was not present there accused Haslan told him Gul Khan had gone to Muhammad Zaman and will come back soon, at about 12.00 a.m., Behram Khan came in a vehicle and called Haslan to bring a rifle, he went after him and saw that accused Behram asked accused HasIan to fire at Muhammad Ali, in the meanwhile Behram snatched the rifle and made one fire at Muhammad Ali, then after accused Haslan with the said rifle made two fires on Muhammad Ali when he came close to the place of incident saw Behram Khan, Manzoor Khan and Gul Khan were standing there, and Muhammad Ali was struggling for life, his statement was recorded after two months of the incident by Crime Branch Police. P.W.6 Shahzada Khan Police Constable deposed that during investigation on the disclosure of accused on 21-4-2001 the Investigating Officer Ghulam Haider recovered .12 bore Shotgun bearing No,28540 with live cartridges and a licence from his but which was seized vide memo. Exh:P/6-A and he stood Mashir to it. P.W.7 Muhammad Bakhsh Constable deposed that in the Police custody the blood-stained clothes of accused were changed and seized in his presence vide memo. Exh:P/7-A. P.W.8 Punhal Khan Head Constable deposed that on 20-4-2001 Muhammad Luqman produced blood-stained clothes of deceased and pair of Chappal which were taken into possession vide memo. Exh: P/8-A. P.W.9. Muhammad Shaban Head Constable deposed that Ghulam Haider S.-I. On the pointation of complainant prepared site sketch and inspection note Exh.P/9-A, secured blood-stained earth and grass beneath the dead body vide memo. Exh.P/9-B and collected a .12 bore double barrel Shot- gun, eight live cartridges and an used empty from the place of incident vide memo. Exh: P/9-C and Exh. P/9-D and he stood Mashir to these recoveries. P.W.10 Dr. Muhammad Ibrahim deposed that on 20-4-2001 at about 10-30 a.m., Ghulam Haider S.-I.
Brought a dead body for postmortem, on examination of the dead body following injuries were noted:-- "(1) Contoured wound on the left shoulder diameter 1/2 c.m., 4-1/4 c.m. 4-1/4 c.m.
(2) Abrasions on the face.
(3) Dislocation of the left shoulder joint which may be due to fall.
(4) Fire-arm wound on the occipital region of the head diameter 1/4" x 1/4" on the radiological examination that pullet remains inside the brain.
(5) Fire-arm wound of entrance on the backside of the left shoulder diameter 1/4" x 1/4" x 1/2".
(6) Fire-arm wound of entrance on the right side lumber region diameter 1/4" x 1/4" x 0. The one foreign body pullet removed from the dead body.
(7) Fire-arm wound of entrance and exit on the right forearm." P.W.11. Abdul Sattar A.S.-I. Deposed that on 28-4-2001 Dr. Muhammad .Ibrahim handed over him a bottle of pellets stated to be recovered from the dead body of deceased was seized vide memo.
Exh:P/11-A by the Investigating Officer.
P.W.12. Raja Shabir Ahmed, I.P., P.S Crime Branch Quetta deposed that I.-G. Police appointed him as Investigating Officer in the case, he inspected the place of occurrence and recorded statements of eye-witnesses Shah Ali and Hakim Ali. He after collecting FSL report Exh:P/12-B about blood-stained earth and blood-stained clothes handed over the case file to I.P./S.H.O. Barkat Hussain who filed challan Exh:P/12-A in the Court. P.W.
13. Ehsan-ul-Haq Naib Tehsildar deposed that on 23-4-2001 on the instruction of SDM Jhatpat he recorded the confessional statement of appellant Exh:P/13-A and issued the annexed certificate Exh:P/13-B. P.W.14. Ghulam Haider S.-I., the Investigating Officer deposed that accused came at Police Station and informed that a person in the night entered into his house and he considering him to be a thief, had fired upon him and was lying injured near his house, he after registration of the report along with accused and other police personnel reached at the place of incident and shifted the injured to Civil Hospital Dera Allah Yar. The Medical Officer referred him to Larkana for better treatment. He after informing Muhammad Luqman about the incident, visited the place of occurrence, prepared site plan Exh:P/14-A inquest report Exh:P/14-B, secured blood-stained earth beneath the dead body, collected one double barrel shotgun with 8 live cartridges, one used cartridge, and pair of Chappal, apart from the blood-stained clothes of deceased vide recovery memos. He recorded statements of the witnesses. During investigation on the disclosure of accused a shotgun and its licence in the name of his son Gul Khan were seized and F.I.R No,123 of 2001 under section 13-E of Arms Ordinance, 1965 was registered against him. The accused was produced before Sub-Divisional Magistrate Jaffarabad on 23-4-2001 who sent him to Naib Tehsildar Ehsanullah Golla for recording his confessional statement. The absconding accused Behram Khan and Manzoor Khan were admitted to bail before arrest. The Fire-arm Expert report Exh:P/14-D about shotgun, used cartridge and pellets was filed in the Court along with challan Exh.P/14-C. The appellant in his statement under section 342, Cr.P.0 denied the prosecution allegation and claimed to be innocent.
8. The learned trial Court after appraisal of evidence discarded the ocular account furnished by P.W. Shah' Ali being improbable, untrustworthy and unnatural as well as on the ground of unexplained delay. The last seen evidence of P. Ws including the father and brother of deceased was also not believed as they deposed against acquitted co accused Behram Khan and Manzoor Ahmed, who allegedly took the deceased with them, nothing has come on record showing the appellant remained in the company of acquitted co-accused or he in any manner associated with them to commit the murder. After discarding the complainant's version we have left with the confessional statement of appellant and the circumstantial evidence.
9. It may be noted that the unnatural death of deceased has not been disputed during trial of the case. The unchallenged statement of P.W. Dr. Muhammad Ibrahim and the certificate issued by him prove that the deceased met with unnatural death. The shifting of injured Muhammad Ali from the place of incident to Hospital by P.W. Ghulam Haider and the inquest report prepared by him is substantiated. The medical certificate, positive report of Fire-arm Expert in respect of .12 bore used, cartridge collected from the place of incident and the shotgun recovered on the disclosure of appellant from his house prove, that the death was result of the injuries caused by firearm.
10. The appellant during trial retracted from the confessional statement recorded by P.W. Ehsan-ul- Haq Naib Tehsildar with the powers of Magistrate 3rd Class, law provides that any Magistrate First Class or any Magistrate of the 2nd Class specially empowered in this behalf by the Provincial Government may, if he not a Police Officer, record any statement or confessional statement made to him in the course of investigation. The confessional statement recorded by Naib Tehsildar reduces its value to an extra-judicial confession which being a weak type of evidence can only be taken into account provided material available on record furnish sufficient corroboration to it. P.W. Ghulam Haider stated that the appellant came at Police Station and informed him about a person who entered into his house and he considering him to be a thief had fired upon him. He after registration of the case reached at the spot and after shifting the injured to Civil Hospital. Dera Allah Yar informed the complainant about the incident. He during inspection of the site collected blood-stained earth/grass, one double barrel shotgun bearing No,5931 Made in USSR with 8 live cartridges belonging to the deceased from Point No,1 shown in the site sketch. The used cartridge was collected from Point No,2 indicating the house of appellant, who at the time of incident was sleeping in his house along with his family members and on barking of dogs awoke and saw a person came out from his hut, when he was asked to halt but he did not stop, which resulted to a shotgun fire at him. The appellant during investigation made disclosure and produced the shotgun from his house in presence of P.W. Shahzada Khan along with its licence having in the name of Gul Khan (the son of appellant). The positive report of Fire-arm Expert which was neither disputed nor questioned on any ground deemed to have been admitted by the defence. The facts narrated by P.W. Ghulam Haider were not disputed in cross-examination except that the appellant did not disclose about the crime weapon, prove the deceased, while coming out form the but of appellant on questioning did not halt and was fired with a single shot. The appellant just after the incident reached at Police Station and informed the Police Officer about the incident, the injured was removed from the place of incident to Civil Hospital Dera Allah Yar and then after to Civil Hospital at Larkana but he succumbed to the injuries on his way. The retracted extra-judicial confession of appellant finds sufficient corroboration from the record and persuade to believe that the deceased at mid-night while coming out from the house of appellant, on query did not stop and was fired upon which resulted into his death.
11. This version of the prosecution appears to be reasonably possible. The record indicates deceased resided at a distance of 4 kilometers away from the place of incident and his presence in the house of appellant in odd hours of night not only remained unjustified but gives the right of private defence of property and life to the inmates. The prosecution has failed to prove the charge of Qatl-i-Amd beyond reasonable doubt, the appellant in exercise of private defence of property and life made one fire in dark night at deceased considering him to be a thief Which resulted into a fatal shot, had not committed any offence by exceeding the limits. We to support our view place reliance in the case of Imtiaz v. The State reported in 1996 SCM R 1937 wherein it has been held that:- "As a result of above discussion, we hold that the defence version of the incident is more probable, nearer to truth and in line with the evidence on record. As a necessary corollary, therefore, it follows that the prosecution failed to establish the charge of murder under section 302, P.P.0 against the appellant. This, however, does not conclude the matter as the defence admits having fired at the deceased which resulted into his death. According to defence version, the deceased entered the house of appellant in the late hours of night and on an alarm he was shot at by the appellant taking him to be trespasser. There being no explanation available on record for the presence of the deceased in the house of appellant at such an odd hour of night, the defence plea that the appellant shot at the deceased in exercise of the right of private defence of property appears to be well-founded. We, accordingly, allow the appeal, set aside the conviction and sentence of the appellant. The appellant is directed to be set at liberty forthwith, unless he is required by the authorities in some other case."
12. The counsel for complainant has failed to satisfy us in the given circumstances how the conviction of appellant be maintained or altered to section 302(b), P.P.C, as P.W. Haji Dulha Khan father of deceased stated that there was, no dispute or enmity with the accused or any such material has been brought on record indicating the appellant intentionally committed the murder with a premeditation or concert. We are not agreeing with the arguments of learned counsel that the plea emerging from the prosecution record may not be extended in favour of appellant as he has not disclosed the facts in his statement under section 342, Cr.P.C., or he refused to record his statement on oath to prove the plea. The prosecution is duty bound to prove its case beyond reasonable doubt, the defence only to make a possibility of its version being true and not required to prove the plea beyond doubt, the accused may or may not C take a plea, the benefit arising out of the prosecution record is to be extended in his favour. The plea of right of private defence of property record. Though it was not specifically introduced or proved. Any and life can be accepted by the Court if spelt out from the prosecution authority if needed on the point, we may quote the case reported in 1993 SCM R 550 wherein it has been held:-- "Duty of prosecution to prove its case against accused beyond doubt does not diminish on raising of defence plea. It is not duty of the defence to disprove the case of the prosecution. Defence plea may be taken, may not be taken and may be sometime it is not proved. Burden of proof is not upon defence but is always upon prosecution to prove the case beyond about. It is sufficient if defence plea succeeds in causing a dent in the credibility of the prosecution case." The case laws referred by the counsel in support of the arguments are not attracted in the case for want of similar facts and circumstances. Each criminal case has its own peculiar facts and circumstances and it is the question of satisfaction of the Court which depends upon evidence produced by the parties.
What has been discussed hereinabove, we allow this appeal and set aside the impugned judgment and acquit the appellant from the charge, he be set free, if not required in any other case. The Revision Petition being devoid of any merit is dismissed.