' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.128/J of 2000 filed by Muhammad Anwar, appellant who was convicted under section 302(b) P.P.C. And sentenced to death with further direction to pay compensation to the tune of Rs.50,000 in default six months' SI, vide judgment dated 9-3-2000 delivered by learned Additional Sessions Judge, Gujrat.
Murder Reference No.281 of 2000 for confirmation or otherwise of death sentence shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 7.30 A.M on 16-8-1998 at a distance of 7 kilometers from Police Station Tanda, District Gujrat, while the matter was reported by Bashir Ahmad, complainant to the Police at 8.30 A.M the same day and formal F.I.R. Exh. PK was recorded by a Sub- Inspector.
3. The facts as disclosed in the F.I.R. Are that on 16-8-1998 at about 7.30 A.M, Bashir Ahmad, complainant was coming back to his house from the Haveli and when reached in the street near the house of Allah Rakha, he saw Muhammad Akram standing on his motorcycle while Mst.
Sharifan his mother and Irshad Bibi, his wife were also standing along with him. The sooner Muhamad Akram made his wife to sit on the motorcycle, Muhammad Anwar, Muhammad Asghar and Muhammad Asif, all armed with .30 bore pistols came in the street. Muhammad Asghar raised Lakara to the effect that Muhammad Akram be taught a lesson for helping in Talaq to their sister.
Upon this, Muhammad Anwar fired three shots, which landed on the head of Muhammad Akram.
Three shots were also fired by Muhammad Asghar which landed on the chest and right knee.
Muhammad Akram fell down from the motorcycle. To save him, Mst. Irshad Bibi stepped forward but she was also fired at by Muhammad Asif which landed on her right hand. Ansar also fired at Muhammad Akram when he was lying on the ground which hit on his waist. Muhammad Inayat and Mst. Sharifan Bibi raised hue and cry as a result whereof, the accused decamped from the spot. Muhammad Akram succumbed to the injuries at the spot.
' The motive alleged was that 6/7 months prior to the occurrence, Muhammad Ashraf, brother of Muhammad Akram (who was already a married person) married with Mst. Sughran, sister of Muhammad Anwar. Muhammad Akram and other family members forced Muhammad Ashraf and he (Ashraf) divorced Mst. Sughran. Due to this grudge, Muhammad Anwar and other accused committed the murder of Muhammad Akram.
4. Muhammad Younas SI (PW-12) investigated the case. He, after recording the F.I.R., went to the place of occurrence, examined the dead body of Muhammad Akram, prepared injury statement Exh. PM, inquest report Exh. PD, site plan Exh. PN and from the spot, took into possession the blood- stained earth vide memo. Exh. PE. Six crime empties of .30-bore pistol were taken into possession vide memo. Exh. PF. On 14-8-1998, the Investigating Officer arrested Muhammad Anwar who while on physical remand, got recovered .30-bore pistol (p.6) which was taken into possession vide memo. Exh. PL. Muhammad Asghar and Ansar accused arrested on 25-9-1998. After completion of the formal investigation, all the four accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all. The learned ADA 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 prosecution. The accused except Muhammad Anwar in their statements under section 342 Cr.P.C. Pleaded false implication. However, Muhammad Anwar admitted to have killed Muhammad Akram, under Ghairat and sudden provocation. After conclusion of the trial, except Muhammad Anwar, the remaining accused were acquitted by the trial Court.
6. Learned counsel for appellant having read the prosecution evidence raised the only point that there is conflict between ocular account and the medical evidence in as much as injuries attributed to the appellant do not find mention either in the post-mortem report or the pictorial diagram.
7. Learned counsel for the complainant submitted that appellant was named with specific role in the promptly lodged F.I.R. In as much as he caused three fire-arm injuries on the head of Muhammad Akram, deceased. Further submitted that injured PW has also supported the case of prosecution. He in nutshell supported the judgment of the trial Court.
8. Learned counsel for the State also adopted the arguments advanced by learned counsel for the complainant and added that Muhammad Anwar, appellant had admitted to have killed Muhammad Akram under grave and sudden provocation and that crime empties recovered from the spot wedded with the fire-arm recovered on the pointation of the appellant.
9. We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, four accused persons namely Muhammad Anwar, Muhammad Asghar, Ansar Iqbal and Muhammad Asif were named in the F.I.R. Learned counsel for the State has stated at bar that Muhammad Asghar was murdered later on by the accused party.
' It is a case of two versions, one put forward by the prosecution and other introduced by Muhammad Anwar appellant. It is settled law that in a case of two versions, both the versions are to be put in juxtaposition and then it is to be decided as to which version rings true.
' For this view, reliance can be placed upon the case of Ashiq Hussain v. The State (1993 SCM R 417).
'Applying the said principle of law, we are of the considered opinion that version of the defence is more probable and convincing one. The appellant has also produced Mst. Sughran Bibi as DW-1 on whom lengthy cross-examination was conducted. She has also supported the version of appellant.
At this stage, we may reproduce here reply to question No.6 given by Muhammad Anwar, appellant:-- "Police, have distorted the real facts. As a matter of fact Muhammad Akram deceased was having bad character and was dare devil. Almost all the people of the village were annoyed for his nefarious activities. In the days of occurrence my real sister Mst. Sughran Bibi, who was a widow, was residing with me in my house which is situated in village Kasib. At the eventful day, and time I was out of the house for morning walk. At Chhah Vela I went back to my house and heard hue and cry of my sister Sughran Bibi. After pushing the outer door I opened the door and saw that Muhammad Akram deceased was having a pistol in his hand and was trying to commit Zina-bil- Jabr with my sister Mst. Sughran Bibi. String of shalawar of my sister Mst. Sughran Bibi had been broken and she was resisting. Muhammad Akram deceased seeing me tried to run from the spot and his pistol fell on the ground. I picked up the pistol and chased him. In this process, we both came in the street. So I under the pulse of Ghairat and sudden provocation, fired with the said pistol upon Muhammad Akram deceased."
'According to F.I.R.; the role attributed to Muhammad Anwar, appellant was that he fired three pistol shots on the head of Muhammad Akram, the deceased. Dr. Muhammad Aslam (P.W.5) conducted postmortem examination on the dead body of the deceased but there was not a single injury on the head of the deceased, so there is clear-cut conflict between ocular account and the medical evidence. This being the position, we disbelieve the eye-witness account and now we are left with the statement of complainant and the DW. The law of the land is that when the eye-witness account is disbelieved, the version of the accused is to be accepted in totality. By accepting the statement of Muhammad Anwar, appellant which is. Duly supported by D.W. 1, while relying on the case of Maqsood Ahmad v. The State (1995 SCM R 359) we alter sentence of the convict appellant from section 302(b) to 302(c) P.P.C. And he having been arrested on 14-8-1998, the period which he remained in jail is treated to be sufficient to meet the ends of justice.The sentence of the compensation is set aside because the deceased was mainly responsible for this tragedy because it was he who has cut the string of shlawar of sister of the appellant and tried to commit Zina-bil- Jabr with her. Reliance can be placed upon the case of Mairaj Begum versus Ejaz Anwar and others PLD 1982 SC 294).
' Resultantly, with above modification in the conviction and sentence of the appellant, appeal filed by him is disposed of, the death sentence of Muhammad Anwar, appellant is Not confirmed and Murder Reference is replied in the Negative.