The appellants were tried by the learned Additional Sessions Judge-I, Pakpattan Sharif (in the case registered vide FIR No, 344/2000 under Sections 302/324/148/149 PPC, Police Station City, Arifwala), who, vide judgment dated 15.1.2003, convicted the appellants under Section 302/34 PPC and sentenced them to imprisonment for life each with a compensation of Rs, 50,000/- each to be paid to the legal heirs of the deceased in default whereof to further undergo SI for six months each. They were further convicted under Section 324/34 PPC and sentenced to ten years RI each with a fine of Rs, 20,000/- each in default whereof to further undergo SI for six months while Section 148 PPC was dropped. The sentences were directed to run concurrently. Perpetual non-bailable warrants of arrest were issued against co-accused Muhammad Asghar Proclaimed Offender. However, two co-accused of the present appellants, namely, Muhammad Yousaf and Makhdoom Hussain were acquitted from the case after having extended benefit of doubt.
2. Brief facts of the case, as explained by PW7 Muhammad Tufail complainant in the FIR are that on the fateful night and time he was present at the hotel of his brother alongwith his brother Hanif, Noor Ahmad nephew and one shareholder of business when Zahoor Shah appellant reached there and asked about outstanding of Rs, 1000/- against his brother Latif; that the complainant suggested him to approach the said Latif; that there was exchange of abuses between them whereafter Zahoor Shah left the place; that at about 9.30 p.m. when the complainant, Muhammad Hanif and Muhammad Latif (brothers) were present at the hotel suddenly Zahoor Shah appellant armed with .12 bore Repeater, Hammad Shah armed with .12 bore repeater, Muhammad Yousaf armed with a rifle, Makhdoom Hussain and Muhammad Asghar (PO) armed with pistols reached there, raised Lalkaras, Zahoor Shah fired a shot with his Repeater which hit on the face of Hanif who fell down, Hammad Shah fired two shots on the complainant which hit his left buttock and ear, accused Yousaf and Asghar fired at Latif and Noor Ahmad PWs, on the hue and cry accused decamped from the spot while making aerial firing, Hanif succumbed to the injuries at the spot. It was alleged that indiscriminate firing cause injuries on Zahoor Shah as well, Noor Ahmad caused injury on Hammad Shah with a "Khurpa" on his head, hence the afore-referred case.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced eleven witnesses during the trial.
4. Learned counsel for the appellants in support of this appeal submits that the learned trial Court admitted in the impugned judgment that it was Muhammad Asghar PO who fired shots on the persons of deceased Hanif and complainant Tufail but convicted the appellants on the basis of common intention; that it has come on record that the appellants were empty handed when they entered into the hotel; that it is a case of two versions and the version put forth by the appellants were more probable and convincing entitling the appellants to acquittal.
5. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that so far as time, date and place of occurrence the same is admitted; that he supports the impugned judgment and that the prosecution has proved its case against the appellants beyond a shadow of doubt and that this appeal is liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. There were five accused persons named in the FIR. Amongst whom two co-accused of the present appellants, namely, Muhammad Yousaf and Makhdoom Hussain were acquitted from the case after having extended benefit of doubt while Muhammad Asghar was declared to be Proclaimed Offender. Both the appellants are real brothers inter se and have been convicted on two counts i,e, under Sections 302/34 PPC and 324/34 PPC for the murder of Muhammad Hanif and for causing injuries on the person of complainant Muhammad Tufail. In the same occurrence, both the appellants also received injuries to which a reference has been given in the FIR. Both the appellants were medically examined by Dr. Muhammad Ilyas (DW1) who found eight injuries on the person of appellant Hammad Shah including three blunt weapon and five sharp edged weapon injuries while he found two injuries on the person of Zahoor Shah appellant including one fire-arm injury while the other one with sharp edged weapon. In an answer to Question No, 9, appellant Zahoor Shah explained his defence version as under: "I am innocent. In fact on the night of occurrence I went to the hotel of Muhammad Hanif deceased and demanded the outstanding amount of Rs, 1000/- from Muhammad Latif PW who was also present there. Muhammad Hanif deceased abused and dragged me inside the restaurant and caused me injuries and when my brother Hammad Shah Co-accused tried to rescue me, Muhammad Hanif deceased also caused me injuries with Chhurri, whereupon Muhammad Asghar accused (since PO), driver of Hammad Shah accused picked up the licensed repeater gun of Hammad Shah accused from the car and fired at the deceased in right of self-defence, in order to save our lives. Noor Ahmad and Muhammad Tufail PW were neither present at the spot nor any one of them sustained injuries. Muhammad Tufail PW obtained fictitious Medicolegal report in order the import himself a false witness of the occurrence. The complainant has got registered a false case against us by twisting the actual facts of the case".
The finding of the learned trial Court are to the effect that it was Asghar who had caused injuries on the person of the deceased Muhammad Hanif and complainant Muhammad Tufail and that it was Zahoor Shah appellant who was attacked by the complainant party. Further finding of the learned trial Court was that both the appellants were empty handed when they entered into the hotel, the incident took place at the spur of the moment. I am of the affirmed view that if both the versions kept in juxta position and the findings of the learned trial Court then the version of the appellants seems to be more plausible and convincing one and more over there are ten injuries on the persons of both the appellants while the complainant side received nine injuries i,e, one injury attributed to Zahoor appellant on the face and head of the deceased and two injuries attributed to Hammad Shah appellant on the ear and buttock of complainant Muhammad Tufail. In all the complainant party received nine injuries. The learned trial Court has not believed the recovery of the weapons of offence and so is the position of positive report of the Fire Arm Expert. In fact, the learned trial Court has believed the defence version in totality, so, the benefit of the same is the right of the appellants.
8. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and doubts and on the basis of such a shaky evidence, the conviction and sentence awarded to the appellants cannot be maintained because the same has not come through unimpeachable sources, is untrustworthy, unreliable and cannot stand the test of judicial scrutiny.
Even otherwise, the appellants have succeeded to prove their version which is more reliable and convincing. It is settled law of the land that two ingredients are very essential to prove for right of private defence, firstly, that it was the other party who initiated flight and, secondly, party taking plea of self-defence also suffered injuries at hand of other party first and then resort was taken to defend against aggressor and when a right of private defence is set up, essence of case should be to ascertain as to who was aggressor and whether accused used more violence than was necessary. This is in line with the law laid down by the August Supreme Court of Pakistan in Kala vs. The State (1987 SCM R 385). In the present case, the number of injuries received by the appellants are more than the injuries suffered by the complainant party.
In the afore-referred circumstances, respectfully following the dictum laid down by the Hon'ble Supreme Court in the above referred case and keeping in view the fact that the learned trial Court has believed the version of the appellants, this appeal is allowed, the impugned judgment is set aside the appellants are acquitted from the case and shall be released forthwith if not required to be detained in any other case.