KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.1258 of 2002 and Criminal Revision No.703 of 2002 directed against the judgment dated 19-6-2002 passed by the learned Additional Sessions Judge, Mianwali whereby he convicted the appellant under section 302(c), P.P.C. And sentenced him to undergo 10 years' R.I. With benefit of section 382-B, Cr.P.C.
2. The facts of the instant case in brief as narrated by Saif Ullah complainant are that on 10-11-2001, he along with his brothers Ata Ullah and Ahmad Nawaz and Amir Abbas his cousin, had gone to meet his sister and after Isha prayer they proceeded to their home. Ahmad Nawaz deceased was a few paces ahead of them. It was 10-30 p.m. When they reached in front of Dera of Samiullah accused/appellant at Samandi Wala, suddenly Samiullah armed with .12-bore gun appeared there and raised Lalkara and made a fire-shot hitting the right arm of Ahmad Nawaz who fell down on the ground. He made second fire shot which landed on his left flank who succumbed to the injuries at the spot. The accused fled away from the spot. The motive behind the present occurrence was that the appellant had a suspicion that Ahmad Nawaz deceased had illicit relations with his sister Rukhsana.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Khalid Mehmood, S.-I./S.H.O. Along with his subordinates proceeded to the spot. He prepared injury statement Exh.P.D. And inquest report Exh.P.E. He also collected the blood-stained earth vide memo. Exh.P.K. Last-worn clothes were also received by him vide memo.
Exh.P.A. On 15-11-2001 he arrested the accused/ appellant and on his pointation gun .12-bore double barrel was recovered by him vide memo. Exh.P.F. Ultimately he completed the investigation and submitted the challan against the accused/appellant to face the trial.
4. Prosecution in order to prove its case has produced as many as 9 witnesses including Doctor, Investigating Officer, eye-witnesses and other formal witnesses. After tendering in evidence report of Serologist Exh.P.M., Forensic Science Laboratory Exh.P.N. And Chemical Examiner Exh.P.O., the learned S.P.P. Closed the prosecution evidence. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded his innocence. Learned trial Court after taking into consideration every aspect of the case and hearing the arguments advanced by both the parties, convicted and sentenced the appellant as mentioned above. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that the deceased was murdered while he was present in the house of the appellant. He further submits that the eye- witness account has been disbelieved by the learned trial Court so this Court should rely in totality on the statement of the appellant. Learned counsel further submits that the sentence given to the appellant by the learned trial Court is too harsh in the circumstances of the case. He has also relied upon PLD 1996 SC 274. He further submits that no case is made out against the appellant and he is entitled to acquittal.
6. Learned State counsel on the other hand assisted by the learned counsel for the complainant who has filed a criminal revision for enhancement of sentence of the appellant, submits that it was not a case of right of self-defence because the appellant was not injured in this case, even he has not produced any defence evidence. They further submit that already a lenient view by not awarding sentence of 25 years, as has been mentioned in section 302(c), P.P.C., has been taken by the learned trial Court.
7. I have heard the learned counsel for the parties and also have gone through the record available on the file. In the instant case the motive given by the complainant was that appellant had a suspicion that the deceased had illicit relation with Mst. Rukhsana the sister of another v. President of Pakistan and others PLD 1998 SC 388 ref. Samiullah Khan appellant. For the just decision of the case, I would like to reproduce the answer to Question No.8 of the appellant that why this case against you?
"The witnesses were not present at the spot and they were set up as false witnesses by the police after calling from their houses at the little hours of the morning. The real facts are that Ahmad Nawaz deceased during the night entered our house with evil designs. My family members called the deceased as to who was but he did not give any reply and instead fired with pistol while standing in the courtyard of our house. Acting in self-defence of the family and for the defence of the property, the deceased was fired back. He was found in a compound of our house. The police was informed and they came and took the dead body to the police station along with the pistol of the deceased and in 'collusion with the complainant party fabricated a false case against me. I am a B. A. Student and appeared in the recent examination of this year with the permission of this Court from the jail which is on the judicial file. I am innocent. I did not commit any offence. The police took into possession the gun of my brother on the following morning and fabricated whole evidence to make a case of murder against me although a licence in the name of my brother Azmat Ullah. The police also took into possession licence which was later on returned."
8. A bare perusal of the above said answer would show that appellant has not confessed this before the learned trial Court that he had killed the deceased while using his right of self-defence.
He had opted to produce defence but he failed to produce any defence evidence before the learned trial Court." The law of land is that when specific plea is taken by an. Accused then onus lies on him to discharge the same and in this regard section 121 of Qanun-e Shahadat Order, 1984, is necessary for the decision of this case. In my considered view both the complainant party and the appellant had told a lie before this Court.
' The appellant had not admitted to have killed the deceased himself but shifted the responsibility to somebody from his house but said body was never produced by him before the police or before the learned trial Court. So taking benefit of judgment of the apex Court PLD 1962 SC 502 titled as Ali Beupari v. Nibran Maula and others when both the parties are telling lie then Court can himself draw conclusion from the evidence and the facts and circumstances of the case. It has not been denied by the prosecution that occurrence had taken place according to the site-plan 2 feet away from the entrance of the house of the appellant. It was night time i.e. 9-30 p.m. On 10-11-2001 when the winter season had started. The deceased had no B option to be present at that place at that time. Neither the complainant nor the State counsel had filed any appeal against the acquittal of the appellant under section 302(b), P.P.C. Only revision petition for the enhancement of the sentence of the appellant has been filed which is pending before this Court.
9. After having heard the learned counsel for the parties and going through the evidence on the record coupled with the site-plan and statement of the appellant recorded under section 342, Cr.P.C., I am of the view that the learned trial Court has rightly convicted the appellant under section 302(c), P.P.C. Learned trial Court has also referred many judgments in this regard. The sentence awarded to the appellant in the circumstances of the case is too harsh. So while maintaining the conviction of the appellant under section 302(c), P.P.C. I reduce the sentence of the appellant from 10 years to 7 years' R.I. With benefit of section 382-B, Cr.P.C. Revision petition is dismissed.