' KHAWAJA MUHAMMAD SHARIF, J.-This judgment will dispose of Criminal Appeal No.652 of 2006 filed by Amin alias Saleem, Abdul Waheed alias Pappu and Mustafa appellants, who were convicted and sentenced by learned , Additional Sessions Judge, Faisalabad vide his judgment dated 27-4- 2006 under section 302(b), P.P.C. To undergo imprisonment for life each and to pay Rs.50,000 as compensation to the legal heirs of the deceased with the benefit of section 382-B, Cr.P.C.
Criminal Revision No.493 of 2006 filed by Rana Nasir Ali against Amin etc. For the enhancement of sentence shall also be disposed of through this. Single judgment.
2. Brief facts of the case, as disclosed by Rana Nasir Ali complainant P.W.3, are that on. 8-2-2000. At about 7-30 p.m. His brother was returning from the shop of Hafeez Mechanic and while he was coming down from the Tonga near the house, the accused Waheed alias Pappu, Amin alias Billu, Mustafa along with two unknown persons came with their common intention, that Waheed raised "Lalkara" that they have come to take revenge for disgracing them, that Waheed alias Pappu fired a shot with .12 bore gun on Asif Ali deceased, who sat down and the fire missed and when he was sitting the accused Amin inflicted hatchet blow causing injury on the left side of his head, that the second injury on the head of the deceased was caused by Mustafa accused by back side of the hatchet, that thereafter, Waheed alias Pappu inflicted three blows by "Butt" of gun, which landed at head and various parts of his body, that on hearing hue and cry, Ghulam Mustafa (given up), Abdul Hameed (P.W.5) and other people of the village attracted to the place of occurrence and witnessed the occurrence.
' Motive behind the occurrence was that about one hour prior to the occurrence an altercation took place between the deceased and accused Waheed alias Pappu on account of misunderstanding and the deceased slapped at Waheed accused and due to this grudge, the accused committed the murder of the deceased.
3. After registration of the formal F.I.R., the investigation of the case was taken over by Muhammad Hussain S.-I. P.W.9, he reached at the hospital, prepared injury statement Exh.P.B. And inquest report Exh.P.C. Of the deceased, then, went to the spot, collected blood-stained earth vide memo. Exh.P.G.
On 20-2-2000 he arrested Amin accused, who on 5-3-2000 got recovered hatchet P.2, which was taken into possession vide memo. Exh.P.E. He also got recovered a .222 bore rifle belonging to the deceased, which was taken into possession vide memo. Exh.P.D. After completion of remaining formal investigation, the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 13 witnesses in all, thereafter,' learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.Q., report of Serologist- Exh.P.R. And closed the prosecution case, then, the statements of the appellants were recorded under section 342, Cr.P.C. In which they pleaded the right of self-defence. They also tendered in evidence certified copies of five F.I.Rs. Exh.D.C. To, Exh.D.G. In their defence.
5. Learned counsel for the appellants in support of this appeal submits that there is delay of 11 hours in lodging the F.I.R., that Waheed appellant also received firearm injury during the occurrence but the prosecution suppressed his injury, that Dr. Tahir Mahmood M.O. P.W.12, who had conducted medical examination of the deceased in his lifetime, also examined Waheed appellant on the same day at 8-20 p.m. And found fire-arm injury on his abdomen, that during the investigation, the Investigating Officer came to the conclusion that Waheed appellant had acted while using the right of self-defence, that though Amin and Mustafa appellants were armed with hatchet but there is no injury on the person of the deceased with sharp edged weapon, that Investigating Officer also came to the conclusion that Mustafa, Gulzar and Waheed were not present at the spot, that no recovery of any weapon of offence was effected from Waheed appellant, that learned trial Court had not touched and discussed the version of the appellants, that deceased was a person of bad character and in this regard appellants had also tendered in evidence five F.I.Rs. Registered against the deceased and this fact was admitted by Rana Nasir P.W.3 in his statement before the trial Court. He further submits that it is a case of two versions and if both the versions are put in juxtaposition, then, version of the appellants seems to be more plausible and convincing one, that appellants have not exceed the right of self- defence, that prosecution failed to prove its case against the appellants and they are entitled to acquittal.
6. On the other hand, learned A.P.G. Assisted by learned counsel for the complainant submits that delay in lodging the F.I.R. Has been explained, as deceased was taken to the different hospital for treatment but later on, he died and then the F.I.R. Was lodged, that, deceased has received four injuries and injury No.4 is the cause of death and said fact is admitted by Dr. Anwar Saood Sadiq P.W.l, that appellants also claimed the right of self- defence and according to Article 121 Qanun-e- Shahadat Order when an accused person wants to bring his case within the ambit of section 300 P.P.C., then, the onus lies on him but in the instant case, appellants failed to discharge the onus lies on him, that place of occurrence is 100 feet away from the house of the appellants and it is nearer to the house of the complainant party so the possibility of the appellants having attacked upn the deceased cannot be ruled out, that appellants also did not appear under section 340(2), Cr.P.C.
And M.L.R. Of Waheed appellant was not got exhibited in evidence, that recovery of rifle of the deceased from Amin appellant substantiate the version of the prosecution, that, if both the versions are put in juxtaposition, the version of the prosecution seems to be more plausible and convincing one, that after receiving the injuries, the appellant Waheed was not in a position to give the injuries to the deceased, that blood-stained earth was taken from in front of the house of complainant party, that before the learned trial Court complainant had explained the injuries of the appellant, that presence of Waheed appellant at the spot is established on record, that from Amin appellant not only the rifle of the deceased was recovered but also hatchet was recovered from him, that prosecution has proved its case against the appellants and they are not entitled to acquittal.
7. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 8-2-2000 at 7-30 p.m. Within the revenue estate of Chak No.240/GB at a distance of ,3-K.Ms. Away from Police Station, Jaranwala while the matter was reported to the police by Nasir Ali complainant/real brother of Asif deceased through computer written Urdu complaint Exh.P.F, at 6-25 a.m. On 9-2- 2000 at Civil Hospital, Jaranwala and the formal F.I.R. Exh.P,F./l was recorded on the same day at 6- 30 a.m. By Muhammad Tufail A.S.-I. In all three accused were mentioned in the F.I.R., Waheed was armed with gun .12 bore while Amin and Mustafa were armed with hatchet. There were two other accused of abetment, namely, Muhammad Sadique and Gulzar, who were acquitted by the learned trial Court and no appeal against their acquittal was either filed by the complainant or the State.
' First of all, I may state here that it is a case of two versions and in a case of such-like nature the principle of law as annunciated by the apex Court of the country is to put both the versions in juxtaposition and then see to it that which version is correct and nearer to truth. By applying this principle of law, I may here with advantage reproduce cross- examination of Dr. Tahir Mahmood P.W. 12 asunder;- "On the same day i.e.8-2-2000 at 8-20 p.m. I also conducted the medical examination of Waheed Ahmed son of Ali Ahrnad r/o Chak No.240/GB Police Station Jaranwala. In the medical examination relating to Waheed Ahmed it is correct that he received two fire-arm injuries. The Injury No.2, which is wound of exit on posterior abdominal wall is the result of Injury No.l, which is wound of entry and present on anterior abdomen. The possibility of counter-attack by such a person who is receiving these abdominal injuries is variable depending upon the damage to internal viscra and bloodvessels."
I may state here that though the M.L.R. Of Waheed appellant was not exhibited by the defence but the same is available on record at page 201 and accordin to said M.'L.R. Waheed appellant was brought to hospital by his cousin on the day of occurrence and was medically examined by the above said doctor on the|A same day and the duration between injuries and medical examination given by the doctor also coincide with the time of occurrence and above all these injuries were suppressed by the prosecution so it can safely be ruled out that prosecution has not approached the Court or the police with clean hands, so as far as, non-production of M.L.R. Of injured is concerned, that can be said to be negligence on the part of learned defence counsel. Then, Dr. Anwar Saood Sadiq P.W.l conducted post-mortem examination on the dead body of Asif Ali deceased on 9-2-2000 at 3-00 p.m., he found four injuries on his person, Injuries Nos.l and 2 are lacerated wounds while Injuries Nos.3 and 4 are abrasion and contused swelling. The said doctor has given the time between injury and death as eight hours and between death and postmortem as 13 hours. According to the F.I.R., Amin appellant gave injury with hatchet on the right side of head of the deceased and Mustafa appellant gave injury with wrong side of the hatchet on the head of the deceased but there is no sharp edged weapon injury on the head of the deceased, so this glaring contradiction between ocular account and medical evidence shows that had the eye- witnesses been present at the spot they must have not committed such a big mistake with regard to injury on the person of the deceased. There is yet another aspect of the matter and that is had the eyewitnesses been present at the spot, they must have taken the deceased to the hospital and name of one of them must have been mentioned in relevant column of Friend/relative of M.L.R.
However, complainant while appearing before the learned trial Court tried to bring his, case in lines with medical evidence and in this regard by making dishonest improvements also mentioned the injuries of Waheed appellant. At this stage, I may also "divert to the statement of Muhammad Hussain S.-I./ Investigating Officer P.W.9, who had stated during cross-examination that on the very first day he tried to record the statement of Waheed appellant but he was not fit to make a statement but later on, doctor gave a certificate on 15-2-2000 that he is fit to make a statement, then, his statement was recorded and according to statement of Waheed appellant he had acted in right of self-defence. In cross- examination, the said Investigating Officer had given the detail of said statement of Waheed appellant, he also came to the conclusion that rest of the accused were not present at the spot at the time of occurrence and no recovery was effected from Mustafa and Waheed appellants. As far as, recovery of hatchet from Amin appellant is concerned, that was not found to be stained with human blood. It is correct that rifle of the deceased was recovered from Amin appellant, even in column of the inquest report no time of information has been given therein as required under the law. Amin appellant while appearing before the learned trial Court in his statement recorded under section 342, Cr.P.C. Has also taken a stand that his real name is Saleem and that was not mentioned in the F.I.R. And moreover 4/5 copies- of F.I.Rs. Registered against the deceased were also tendered in evidence by the appellants. First version of the accused before the police is very important and in this regard reliance is placed upon a case titled as Muhammad Yaqub v. The State (PLD1969 Lahore 548).
After having heard learned counsel for the parties and going through the evidence available on record, I am of the considered opinion that F.I.R. In this case was recorded after due deliberation and consultation and if both the versions are put in juxtaposition, the possibility of version of the appellants being true cannot be ruled out for the reasons that Waheed appellant has not exceeded the right of self-defence and participation of other accused in the occurrence is doubtful in nature, so while granting the benefit of doubt, I accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. Waheed appellant is on bail and he shall be discharged from his bail bonds. Amin and Mustafa appellants are in Jail and they shall be released forthwith if not required to be detained in any other case: ' Criminal. Revision No.493 of 2006 filed by Rana Nasir Ali against Amin etc. For the enhancement of sentence is dismissed.