This judgment will dispose of Criminal Appeal No. 1894 of 2002 filed by Nazar Muhammad, appellant; who was convicted and sentenced by learned Addl: Sessions Judge, Gujrat vide his judgment dated 30.10.2002 to undergo 10 years RI u/S. 302(c) PPC with the benefit of Section 382-B Cr.P.C.
2. Occurrence in this case had taken place on the night in between 19/20.2.2002, while the matter was reported to the police on 20.2.2002 at about 10.45 a.m. through a written complainant Ex. PG, wherein Ijaz Ahmad complainant alleged that he was a travel agent and his real brother Sajjad Ahmad also used to work as an agent and for this purpose he proceeded to Rawalpindi on 4.2.2002 from his house and got a Room No. 20 in a hotel at Rawalpindi, known as Al-Faisal Hotel, opposite to Sky Ways Hotel Murree Road and that yesterday i.e. 19.2.2002 at about 12-noon he had conversation with him on his Mobile Telephone No. 0333-5102576, who called the complainant at Sungam Pan Shop, Islamabad, where he met his brother Sajjad Ahmad and after paying him Rs.
4,90,000/- went to CDA-Islamabad as he had a task there and then the complainant again proceeded to the reception of the hotel and came to know that Room No. 205 was left by Sajjad Ahmad, his brother and had proceeded on his -car at about 6.45 'p.m. After that the complainant went to nearby PCO, which was situated near the hotel and tried to connect him on his Mobile telephone but in vain and after that at about 12.30 in the night, the complainant left for Faisalabad by a bus and reached his house about 5.30 a.m. and went to sleep. The complainant alleged that at about 7.00 a.m. an information was received from P.S Sargodha Road that his brother Sajjad Ahmad was murdered in Kunjah' District, Gujrat, and upon this information the complainant alongwith Zahid Majid alias Jaidi and Muhammad Zahid reached P.S. Kunjah at about 10.30 a.m. and came to know that the dead body had been transported to the hospital. The complainant alleged in the complaint Ex. PG that his brother was murdered by Nazar Muhammad (present appellant) alongwith some other inmates of the house in order to garb the money and he requested for proceedings against the accused.
3. After registration of the formal FIR, the investigation of the case was taken over by Khushi Muhammad Inspector/SHO, who went to the hospital, prepared injury statement Ex. PN and inquest report Ex. PP, then proceeded to the place of occurrence, collected blood-stained earth with the help of cotton and took into possession vide memo Ex. PJ, prepared site-plan Ex. PQ, also took into possession car of the deceased vide memo Ex. PK and luggage of the deceased lying in the dicky of the car vide memo Ex. PL and on 21.2.2002 he arrested Nazar Muhammad, Ferhat Nasim and Nasim Akhtar and on 5.3.2002 Nazar Muhammad accused-appellant while in custody got recovered an Iron pipe P.1 which was taken into possession vide memo Ex. PC and after completion of the investigation, submitted the challan in the trial Court.
4. At the trial, prosecution in order to prove its case produced in evidence 11 witnesses in all; thereafter, learned DDA tendered in evidence report of Chemical Examiner Ex. PU and closed the prosecution case, then the statements of the accused were recorded u/S. 342 Cr.P.C. in which they pleaded innocence and claimed false implication. Ghazanfar Ali SI was examined as DW.1. After conclusion of the trial, two co-accused of the appellant, namely, Mst. Nasim Akhtar and Mst. Ferhat Nasim were acquitted while the present appellant was convicted and sentenced as stated above by the learned trial Court.
5. Learned counsel for the appellant in support of this appeal submits that appellant had acted under grave and sudden provocation, that occurrence had taken place in the house of the appellant, that on the same evidence two co-accused of the appellant have been acquitted by the learned trial Court, that story given in the FIR by the complainant is totally unnatural and improbable, that no recovery of any money was effected from the appellant or his acquitted co- accused, that deceased tried to commit Zina bil Jabbar with the daughter of the appellant, namely, Ferhat Nasim, who was also medically examined by the doctor, that there is no eye- witness in this case, that occurrence had taken place in the dark hours of night in the house of the appellant and that no case is made out against the appellant.
6. On the other hand, learned counsel for the State supports the findings of learned trial Court.
7. I have heard learned counsel for the parties. In the instant case, occurrence had taken place in Village Kunjah, district Gujrat in the house of the appellant while the deceased was resident of District Faisalabad, dead body of the deceased was also recovered by the police from the house of the appellant. Mst. Ferhat Nasim was also medically examined by the lady doctor and found numerous injuries on her person, which shows that deceased tried to commit Zina bil Jabbar with Mst. Ferhat Nasim. There is no eye-witness in this case. Story given in the FIR by Ijaz Ahmad complainant/brother of the deceased that in fact appellant and his two acquitted co-accused i.e. wife and daughter wanted to snatch Rs. 4,90,000/- which was with the deceased at the time of occurrence was not found to be correct because no recovery of any amount was effected from any of the accused. The weapon used is not fire-arm, dagger and knife etc. but an iron pipe, which is easily available in the house. First version of the appellant and two acquitted co-accused was the same which the appellant had taken before, the trial Court in his statement recorded u/S. 342 Cr.P.C. in reply to question why this case against you and why the PWs deposed against you. Swabs were taken from the vagina of Mst. Ferhat Nasim daughter of the appellant but it seems that due to ulterior motive the report of Chemical Examiner in this regard has not been placed on record by the prosecution. If both the versions, one put forward by the prosecution and the other put forward by the appellant are put in juxta position, the version of the appellant seems to be more plausible and convincing one. In such like matter, when the prosecution story is not believed, then, the version of the accused is to be taken into totality. While accepting the version of the appellant being under grave and sudden provocation I am of considered opinion, that in the circumstances of the case, though the conviction of the appellant u/S. 302 (c) PPC is maintained but the sentence which he has already undergone is treated to be sufficient to meet the ends of justice. Appeal is on bail and he shall be discharged from his bail bonds. With the above said modification in the sentence, this appeal stands disposed of.