' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No. 879 of 2000 filed by Munawar Iqbal and Criminal Appeal No.133/J of 2000 filed by Muhammad Ashraf through jail. Both the convict appellants were convicted and sentence by learned Additional sessions Judge, Sargodha vide judgment, dated 25-5-2000 as under:-- ' Munawar Iqbal - Death with further direction to pay Rs.50,000 as compensation, in default six months S.I. Under section 302(b) read with section 34, P.P.C. And Ashraf---Imprisonment for life with further direction to pay Rs.50,000 as compensation in default six months S.I. The benefit of section 382-B, Cr.P.C. Was also extended in his favour.
' Murder Reference No.293 of 2000 for confirmation or otherwise of death sentence of Munawar Iqbal convict along with Criminal Appeal No.920 of 2000 and Criminal Revision No. 518 of 2000 filed by the complainant against the acquittal of some of the accused and for enhancement of sentence of Ashraf, convict shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 6 p.m. On 25-6-1998 within the Revenue estate of Chak Sayeda, at a distance of 7-1/2 kilometers from Police Station Miani District Sargodha while the matter was reported to the Police by Khan Muhammad and formal F.I.R. Exh.PL was recorded by Liaqat Ali, S.-I./S.H.O. At 7-15 p.m., the same evening.
3. Briefly stated the facts of the case are that on 25-6-1998 Khan Muhammad (complainant) along with his nephew Ghulam Shabbir had gone to Chak Syeda to see Mst. Amina Bibi, the real sister of complainant. Shah Nawaz, sister's son of the complainant had gone to the lands. The complainant along with his sister and nephew also went to see Shah Nawaz at the lands and there they *found Shah Nawaz standing near jawar crop along with rifle. Sooner the complainant along with others reached Shah Nawaz at about 6 p.m., Munawar armed with .12-bore gun, Muhammad Ashraf armed with a Sota Muhammad Akram armed with rifle, Muhammad Asif armed with .30-bore pistol and Nasir armed with Sotas came from their dera. Munawar accused raised Lalkara that Shah Nawaz was not to be spared and simultaneously, the accused Shah Nawaz, Muhammad Akram and Muhammad Asif started firing with their respective weapons. Shah Nawaz also resorted to aerial firing in his defence. One bullet jammed in the rifle of Shah Nawaz and accused taking advantage came near to him. Shah Nawaz ran in order to save his life and took shelter of a watercourse. The accused also came more near to Shah Nawaz and both Muhammad Ashraf and Nasir gave Sota blows from the backside on the person of Shah Nawaz, which landed on his head.
He fell down. Thereafter Munawar fired with his gun, which hit on the backside of waist of Shah Nawaz. The occurrence was witnessed by complainant, Muhammad Ahsan and Mst. Arnim. Shah Nawaz succumbed to his injuries at the spot. The motive alleged was that Shah Nawaz, the deceased and Munawar etc. Had a dispute over land due to which the accused committed the murder of Shah Nawaz.
4. The investigation of the case was taken over by Liaqat Ali, S.-I. (P.W.12). He after recording statement of the complainant, went to the spot, prepared injury statement (Exh.PB), inquest report (Exh.PC) regarding dead body of Shah Nawaz, the deceased, he also prepared the injury statement of Mst. Amina Bibi, the injured P.W; from the spot, took into possession the blood-stained earth vide memo. Exh.PM, 7-MM rifle of Shah Nawaz was secured vide memo. Exh.PN, carried out the other formal investigation such-like preparation' of site plans etc. On 26-7-1998, Munawar Iqbal accused while in custody got recovered gun P.4 which was taken into possession vide memo. Exh.LPH. On the same day, Muhammad Akram accused led to the recovery of rifle P.5 from his house that was taken into possession vide memo. Exh.LJ. Similarly, Muhammad Ashraf accused on 7-8-1998 produced Sota P.6 which was secured vide memo. Exh.PK. Inspector Amir Abdullah Khan (P.W.13) also investigated the case. After completion of the investigation, all the five accused namely Munawar Iqbal, Muhammad Akram, Asif Javed, Muhammad Ashraf and Nasir Iqbal were put 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 report of the Chemical Examiner (Exh.PP) report of the Serologist (Exh. PQ) report of the Forensic Science Laboratory (Exh. PR) and closed the case of the prosecution.
Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, Munawar Iqbal and Muhammad Ashraf were convicted and sentenced as stated above while the remaining three accused were acquitted by the trial Court.
6. Syed Muhammad Suqlain Rizvi, Advocate for Munawar Iqbal, appellant submits that occurrence had taken place in the lands of Munawar appellant; the complainant is not resident of place of occurrence, his residence is in District Mandi Bahauddin while the occurrence had taken place in District Sargodha; the other eye-witness namely Mst. Amina Bibi had her house at 2 kilometers from the place of occurrence and that both the eye-witnesses are chance witnesses and were not present at the spot. Further submits, that Muhammad Ashraf appellant had suffered an injury at the hands of the complainant party but that was suppressed in the F.I.R. According to learned counsel, the complainant party was aggressor. Adds that Sota recovered on the pointation of Muhammad Ashraf appellant was not blood-stained.
' Learned counsel submits that no time of death of the deceased has been given in the relevant column of the postmortem report. Further states that it has been admitted by Khan Muhammad, P.W. That the accused party had been trying its level best to have a case registered against them and produced many persons before the Investigating Officer and that if both the versions one put forward by the prosecution and other of the defence are put in juxtaposition, the version of the defence seems to be more plausible and nearer to the truth. Learned counsel lastly submits that the appellant had acted in his right of self-defence and had not exceeded the same.
7. Kh. Faheem Ijaz, Advocate appointed at State expense to represent Muhammad Ashraf, appellant, submits that prosecution has miserably failed to prove the motive set up in the F.I.R.
Because P.W.8 Khan Muhammad complainant had admitted that civil litigation had ended 3/4 years prior to the present occurrence. Further submits that first version of the convicts was the same which they pleaded before the trial Court in their statements under section 342, Cr.P.C. Adds that first version of the convicts was verified by Muhammad Qasim and Liaqat Ali, both S.H.O. Of the concerned Police Station.
8. Mr. M A. Zafar, Advocate who has filed Criminal Appeal No. 920 of 2000 against the acquittal of Muhammad Akram, Asif Javed and Nasir Iqbal as also Criminal Revision No.518 of 2000 for enhancement of conviction and sentence of both the convicts, submits that it was a case of promptly lodged F.I.R.; both the eyewitnesses had no enmity against the accused so there was no question of their false implication; both the parties are related inter se; mere relationship of the P.
Ws. Either with the deceased or the complainant is no criteria to discard their testimony; the lands of Shah Nawaz deceased were adjacent to the lands of Munawar lqbal where Munawar went after seeing the accused party; in fact Muhammad Ashraf appellant had received injury at the hands of his co-accused and this was so verified by the Police and the learned trial Court.
9. Learned counsel for the State has very candidly submitted that story of the prosecution is not plausible because presence of the complainant and the other eye witness. At the place of occurrence is unnatural and that an important eye- witness namely Muhammad Ahsan, nephew of the complainant was not produced by the prosecution. He in nutshell does not support the impugned judgment.
10. We have heard learned counsel for the parties at length and have gone through the evidence with their able assistance. It is a case of two versions. Muhammad Ashraf, appellant received one fire-arm injury with an exit wound on the right side of his buttock. In view of his serious condition, he was referred to DHQ hospital for management and expert opinion of the Radiologist. The injury was serious but it was his good-luck that he survived. So, the defence of Munawar appellant that he acted in the exercise of the defence of the body of Ashraf his co-convict when the deceased Shah Nawaz wanted to fire again on him, is confidence-inspiring and if both the versions, one of the prosecution and other set up by the defence are put in juxtaposition, the version of the defence seems to be more probable and rings true. The complainant party never disclosed the injury on the person of Ashraf appellant in the F.I.R. The complainant did not approach the Court with clean hands. Had the eye-witnesses been present at the spot, the factum of receipt of injury on the person of Muhammad Ashraf, convict could not have been missed by them while lodging the F.I.R.
The occurrence had taken place in village Chak Syeda falling in District. Sargodha. The pretext on which, Khan Muhammad, P.W (complainant) claims to be present at the place of occurrence along with his nephew Muhammad Ahsan (not produced) as that they went to see his sister Mst. Amina who was present in the house but her son Shah Nawaz (the deceased) was not present and they all three, that is, complainant Khan Muhammad, Mst. Amina Bibi, P. Ws. And Muhammad Ahsan went towards the land to see Shah Nawaz, the deceased and there they witnessed the occurrence.
Khan Muhammad P.W.8 admitted in cross-examination that Mst. Amina P.W. Accompanied him to the lands of Shah Nawaz since he did not know the location of the lands. This pretext of being present at the spot at the time of occurrence of both the eye-witnesses does not appeal to reasons. The presence of both the eyewitnesses at the spot at the relevant time is, thus, held to be of doubtful nature.
11. Dr. Waheed Ahmad (P.W.1) who conducted post-mortem examination on the dead body of the deceased, did not give the time of death of the deceased also the time of conducting post- mortem examination. What it appears is that later on the doctor in connivance with the complainant and the Police gave the time as 10-40 p.m. On 25-6-1998 in the column "When brought, village, Thana, District" the time and date has been given. Even the digit 25 has been overwritten. Further, according to the complainant Khan Muhammad the F.I.R. Was recorded at 7-15 p.m. In the Police Station and it was only at that time that the S.H.O. Came to know about the death of the deceased but in Column No.3 of the inquest report, time of death was known to be at 6 p.m.
It can thus safely be concluded that the F.I.R. Was recorded after due deliberation and consultation after arrival of Khan Muhammad P.W. Mst. Amina, (P.W.9) mother of the deceased stated in his examination-in-chief that after the shots having hit Shah Nawaz and he fell down, she also fell on her but her blood-stained clothes were never taken into possession by the Police.
' It /has admitted by Khan Muhammad P.W that the accused party tried its level best to have a case registered against the complainant party and also produced many persons in this regard but no action was taken. It has also come on record that first version of the Munawar Iqbal appellant was that he acted in the exercise of the defence of the body of Muhammad Ashraf, co-convict. This version of appellant was verified by Muhammad, Qasim and Liaqat Ali, S.-I. (P.W.11 and P.W.12) respectively.
' The motive alleged in the F.I.R. By Khan Muhammad complainant was that the deceased and Munawar appellant had dispute over land and were involved in civil litigation but in his cross- examination this witness deposed that litigation had already ended 3 or 4 years prior to the present occurrence.
12. The Sota recovered on the pointation of Muhammad Ashraf appellant was not blood-stained.
The injury attributed to him on the person of the deceased was simple in nature.
' The motive as alleged remained unproved, the presence of the eye-witnesses has been found to be doubtful, one of the appellants namely Muhammad Ashraf having received one fire-arm injury on his person which was not explained by the prosecution, recording of the F.I.R. After due deliberation and consultation, the appellant Munawar having acted in exercise of defence of body of Ashraf his co-convict when the deceased wanted to fire at him again and the land where the occurrence had taken place belonged to Munawar Iqbal appellant from all sides, we are of the considered opinion that the prosecution has miserably failed to prove its case against the appellants rather there are doubt and doubts floating on the surface of the record. Learned counsel for the State in all fairness also does not support the judgment of the trial Court.
Resultantly, both the criminal appeals filed by Munawar Iqbal and Muhammad Ashraf convict appellants are accepted, conviction and sentence recorded against them by the trial Court is set aside and they are acquitted of the charge. Both the appellants are in jail and they shall be released forthwith if not required to be detained in any other case. The death sentence of Munawar Iqbal appellant is NOT confirmed and Murder Reference is replied in the NEGATIVE.
' For what has been stated above, the criminal appeal and criminal revision filed by the complainant are dismissed.