' SARDAR MUHAMMAD RAZA KHAN, J.--- Fateh Jan son of Toti resident of Kawtaro Maira - Mingora, was tried by the learned Sessions Judge under section 302, P.P.C. For committing the murder of Zafar Hussain (12/13) by firing at him. Eventually, he, was held guilty under section 302(c), P.P.C. And sentenced to 25 years' rigorous imprisonment with a sum of Rs,1,00,000 to be paid as compensation under section 544-A, Cr.P.C. He went in appeal, heard by a learned Division Bench of Peshawar High Court which, on partial acceptance of appeal, modified the conviction from section 302, P.P.C. To section 319, P.P.C. Reducing the sentence from 25 years to three years with payment of Diyyat. In brief, the learned High Court determined the offence to be of Qatl-i-Khata and did not Qatl-i-Amd. Fateh Jan, through this jail petition seeks leave to appeal.
2. While making the tentative assessment of the evidence on record and two judgments of the Courts appreciating the evidence differently, this Court vide order, dated 28-7-2005 had issued notice to the petitioner, to show cause, as to why his conviction and sentence recorded under sections 318/319, P.P.C. Be not converted into one under section 302(c), P.P.C. Today, we have heard the case in details on either side.
3. On receiving information that a murder had been committed in Kawtaro Maira, Sardar Hameed Khan, S.H.O. Police Station Mingora went to the spot. Sardar Hussain, the brother of the deceased Zafar Hussain, lodged report to the effect that on 3-2-2001 on 1745 hours, he along with his brothers Sultan Hussain and Zafar Hussain was present in the house of Fazl-e-Khaliq, their relative when, in the meanwhile, Fateh Jan armed with an SB shotgun entered the house and fired a shot at Zafar Hussain hitting him on his head. The assailant decamped from the spot. The complainant was to take Zafar Hussain to the hospital but the latter succumbed to his injury. Motive for the occurrence is that the assailant had stolen a pigeon of the deceased on which they had quarrelled earlier.
4. As already mentioned and in the given circumstances, we have to make a reappraisal of evidence to ascertain as to which of the Courts below has arrived at correct conclusion, factually as well as legally. Starting from the statement of Sardar Hussain complainant his examination-in- chief mainly deals with a detailed description of motive alone. He added that three days after such incident of theft of pigeon, convict Fateh Jan killed Zafar Hussain by firing at him in the house of Mst. Dil Huda (P.W.3). One may recall that the occurrence had taken place in the house of Fazl-e- Khaliq, who is the husband of Mst. Dil Huda. He, however, made an addition that the accused decamped from the spot leaving behind the gun. He specifically mentioned that besides him, the occurrence was witnessed by Saddam Hussain, Sultan Hussain, Mst. Dil Huda and Esa Khan by making improvement in the contents of F.I.R. Where it was specifically mentioned that the occurrence was witnessed by him and his brother Sultan Hussain. .Despite this improvement Mst. Dil Huda, being the owner of the house, seems to be a natural witness and so was she examined in Court.
5. There are a few versions in the statement of Sardar Hussain, which are not only material improvements but also tend to paint the version as improbable. He admits that his real brother Sultan Hussain was standing in the same door through which the assailant ran away. The deceased was hit only at a distance of 7/8 feet, right within the view of Sultan Hussain yet he did not apprehend the accused. This omission is tried to be covered by P.W. Sardar Hussain saying that the fire had caused so much of smoke that Sultan Hussain 'could not assess as to who got hit. The explanation is implausible because the weapon used was a simple shotgun of .12 bore and not a cannon, so to say. It was most probably due to the aforementioned improvements that Saddam Hussain and Esa Khan were abandoned by the prosecution as unnecessary.
6. Sultan Hussain (P.W.4) is the brother of complainant, claiming to be an eye-witness. According to him, they were present in the house of Mst. Dil Huda or say Fazl-e-Khaliq, 15 minutes prior to the occurrence. From the F.I.R. It appears that Fateh Jan, assailant had entered the room while already armed with a shotgun but according to Sultan Hussain, he had entered unarmed and had picked up the gun of Fazl-e-Khaliq. Another interesting version is that he had brought two cartridges with him, as if knowing the Fazl-e-Khaliq's gun was empty. Why did he not apprehend the assailant, he has come up with an amazing answer that due to occurrence he had lost his composure though he categorically admits that while crossing through the door, the accused had already thrown the gun inside the room. We develop doubt about his presence.
7. Coming to the statement of Mst. Dil Huda (P.W.3), it is to be noticed that both the parties are related to her. In her examination-inchief she states that Fateh Jan accused, Zafar Hussain deceased, Saddam and Esa Khan had come to her house when Fateh Jan picked up the shotgun of her husband and fired at Zafar Hussain who died on the spot. She admitted in cross- examination that no quarrel between the two had taken place in her house nor was she aware of any previous dispute. She categorically denied the presence of P.W. Sultan Hussain which further renders the veracity of Sultan Hussain and even Sardar Hussain doubtful. She had pointed out various places to the Investigating Officer during preparation of site plan when, according to her, Sardar Hussain was not present; while, on the other hand, both the brothers claimed to have associated themselves in the preparation of site plan. Although this is not so material yet it tells of something concerning their presence. All the questions relating to the manner and details of exact occurrence have not properly been answered by Mst. Dil Huda. Such evidence leads us to make a strong inference that the occurrence did take place but the manner thereof is most likely to be different.
8. This brings us to another important event where the accused had made a judicial confession before Muhammad Hussain Khan, Illaqa Magistrate on 6-2-2001. When examined under section 342, Cr.P.C. The accused retracted from the confession saying that, if at all any such confession was available, it was the result of coercion, threats and torture. Anyhow the retracted confession though a confession of homicide, is not of culpable homicide amounting to murder or Qatl-iAmd.
9. His retracted confession runs to narrate that he had gone to the house of Khan Lala, (most probably the description of Fazl-e-Khaliq) whose wife, Esa Khan and Saddam were also present along with Zafar Hussain. This gathering is in consonance with the version given by Mst. Dil Huda.
He went on to say that Mst. Dil Huda was peeling the potatoes. That a shotgun was placed in the corner of the room near Charpai. The accused picked up the gun and addressed the others saying, "what a beautiful gun has been purchased by Khan Lala". That while uttering these words, the gun went off and hit Zafar Hussain.
10. If one goes through this narration, though it is not a confession of murder of first degree yet it constitutes an offence of Qatl-i-Khata. We have two different versions of the occurrence; one furnished by the prosecution and the other by the accused in his retracted judicial confession. The overall evidence and the voids in the prosecution evidence are of such a nature that it can be put to both the interpretations.
11. It is but a settled law that when the version put forth by the prosecution can equally well be interpreted as that of the accused and when both the probabilities appear reasonable, the version given by the accused is to be preferred. In the light of the available evidence, we are of the view that the learned High Court has rightly preferred the version of the accused as equally probable and he was rightly convicted and sentenced under section 319, P.P.C. The notice of enhancement given by this Court is hereby withdrawn, the petition is dismissed and leave to appeal declined with modification that the principle sentence of imprisonment under section 319, P.P.C. Shall run consecutive to the other sentences.