' MUHAMMAD FARRUKH MAHMUD, J.-- This judgment will dispose of Criminal Appeal No,1060 of 1999 filed by Muhammad Yaqoob and Mehboob Ahmad appellants, who were convicted and sentenced by the learned Additional Sessions Judge, Mandi Baha-ud-Din, in case F.I.R. No,100, registered at Police Station Saddar Mandi Bahaud-Din, on 13-2-1998 for offences under sections 302/148/149, P.P.C. Vide his judgment dated 13-10-1999 as under:-- ' Muhammad Yaqoob Death under section 302/34, P.P.C. Mehboob Ahmad Life imprisonment under section 302/34, P.P.C.
' Both the appellants were directed to pay Diyat amounting to Rs,2,50,000 collectively to the legal heirs of the deceased.
' Murder Reference No,446 of 1999 for confirmation or otherwise of death sentence of Muhammad Yaqoob appellant and Criminal Revision No,635 of 1999 filed by Muhammad Iqbal seeking enhancement of sentence awarded to Mehboob Ahmad respondent No,1 therein, shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated in F.I.R. Exh.P.A. Are that on 13-2-1998 Muhammad Iqbal complainant, who was an Advocate at Mandi Baha-ud-Din, went to his house early from Court premises due to Jumma (Friday). At about 1-30 p.m. The complainant along with his brothers Mukhtar Ahmad and Mazhar Iqbal went to Anar Khan, brother-in-law of the complainant, for consultation to send Mukhtar Ahmad abroad for higher studies. When they reached at the shop of Anar Khan at Shaheedanwali Road, Mukhtar Ahmad went towards the fields on the northern side of Rajbah to urinate himself. When Mukhtar Ahmad was returning back, Muhammad Yaqoob armed with .12 bore double-barrel gun, Mehboob Ahmad armed with .12 bore single barrel gun, Mst.
Ruqqiya Bibi wife of Nazar Muhammad empty-handed, Sabir Hussain armed with .30 bore pistol and Muhammad Asghar armed with .12 bore gun single barrel came out of the house of Muhammad Yaqoob. Mst. Ruqqiya Bibi raised Lalkara that Mukhtar Ahmad be taught a lesson for beating Mehboob Ahmad. Thereafter, Muhammad Yaqoob caused fire which hit Mukhtar Ahmad on his chest. Mehboob Ahmad fired, which hit Mukhtar Ahmad on his neck from front side.
Muhammad Asghar tired hitting Mukhtar Ahmad at his left wrist. Muhammad Yaqoob again fired on Mukhtar Ahmad, which hit on his chest. Sabir Hussain fired with his pistol, which caused injury on the right index finger of Mukhtar Ahmad. After receiving injuries Mukhtar Ahmad fell down and died at the spot. The accused fled away from the spot while firing in the air. The occurrence was witnessed by the complainant, Mazhar Iqbal and Anar Khan.
' The motive behind the occurrence was that 5/6 days before Mehboob Ahmad accused quarrelled with Mukhtar Ahmad deceased over playing cricket and Mukhtar Ahmad gave him kicks and fists blows. Due to said revenge the accused committed the murder of Mukhtar Ahmad with common intention.
3. After registration of formal F.I.R. The investigation of the case was taken over by Ghulam Haider, Inspector/P.W.10. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.K. And inquest report Exh.P.L. He took into possession blood-stained earth and grass from the spot vide memo. Exh.P.B. On 15-2-1998 he arrested Mst. Rugqiya Bibi. On 22-2- 1998 the Investigating Office arrested Muhammad Yaqoob, Mehboob Ahmad, Sabir Hussain and Muhammad Asghar accused. Muhammad Yagoob, while in custody, on 27-2-1998 led to the recovery of .12 bore single barrel gun from a room of his house, which was taken into possession vide memo. Exh.P.E. On the same day, Mehboob Ahmad also got recovered .12 bore double-barrel gun from the same place, which was secured vide memo. Exh.P.F. On 28-2-1998 Sabir Hussain led to the recovery of .30 bore pistol along with three live cartridges, which were taken into possession vide memo. Exh.P.C. On the same day, the Investigating Officer recovered .12 bore gun at the instance of Muhammad Asghar, which was taken into possession vide memo. Exh.P.D. After completion of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 10 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.Q. And that of Serologist Exh.P.R. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. However, Muhammad Yaqoob took a specific plea of self-defence, which is being reproduced hereunder:-- "I have been falsely involved in this case. The complainant of this case is practising Advocate, at M.B. Din and he in connivance with the police got me and all my adult family members falsely roped in this case. The deceased Mukhtar was a dare devil and desperado. He used to harass the Moeens and the poor persons of the locality as well as used to molest the womenfolk and I used to ask him not to do so and would pressurize to refrain his nefarious activities and so he harboured a grudge against me and developed animosity against me and would threaten that he will soon make a short work of me. On the eventful day, when I was alone in my house, he armed himself with a .7 mm rifle and launched an attack at my house and shops which lay in front of my house.
He fired with .7 mm rifle and the shots so fired by him, hit the walls and windows of my house as well as shutters of my shops. He continued exhorting at the same time that he will never spare today and also hurled obscene abuses at me. I had a strong apprehension that he will not spare me and certainly cause my death, so in exercise of my self-defence and in the self-defence of my property, I took my double-barrel licensed gun and fired with the same in order to save my life. The police having connived with the complainant and some other Advocates of M.B.Din who also participated in the investigation of this case, distorted the real facts and coined a false version of this case. Ghulam Haider Investigating Officer in post-haste within 25 days completed this challan and even did not record my plea correctly. I moved an application with the I.-G. Police, who directed re-investigation of the case. I produced a number of respectables of the locality who vouched for my innocence and corroborated my version of the case. Shafqat Bari, D.S.P., Crimes Branch, Lahore visited the place of occurrence and also inspected the doors and windows of my house and the shutters of my shops which were still carrying the tire marks. He recorded the evidence of large number of respectables of the vicinity and shopkeepers of the adjoining area and he subscribed to my plea and accepted the same and gave a finding that the deceased was the aggressor. The P.Ws. Namely Muhammad Iqbal and Anar Khan were not present at the time of occurrence. Anar Khan P.W. Had no shop near the place of occurrence. My other family members namely the co-accused were also not present at the eventful time and they were involved in this case for sole reason that no member of my family be left to persue this case. The alleged eyewitnesses of recovery Walayat Khan are closed blood relations of the deceased and bear enmity with me."
' The accused did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting the other accused convicted and sentenced the appellants as stated above.
5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record , the learned counsel for the appellants in support of this appeal submit that both the witnesses were related to the deceased and were chance witnesses; that the genesis of the occurrence was not plausible; that the defence plea taken by Muhammad Yaqoob was borne out from the circumstances of the case and oral evidence; that prosecution has failed to prove the motive through any independent source; and that both the eye-witnesses were disbelieved to the extent of Sabir Hussain and Muhammad Hussain (acquitted co-accused), who also allegedly and effectively fired at the deceased.
6. The learned counsel for the complainant submits that the occurrence stands admitted by Muhammad Yagoob appellant however, it is not proved from record that he acted in self-defence that Muhammad Yagoob caused repeated fires resulting into more than one injuries on the person of the deceased; that number of injuries on the person of deceased denotes that he was fired upon more than once; that defence plea was an afterthought and was not taken before the Investigating Officer of the case; that statement of Shafqat Bari, D.S.P./C.W.1 was not based on any evidence, as he did not record the statement of any of the witnesses and that Shafqat Bari, D.S.P.
Did not enter any finding in the case diary regarding Mehboob appellant.
7. The learned counsel appearing on behalf of the State adopt the line of arguments advanced by the learned counsel for the complainant and support the judgment passed by the learned trial Court.
8. We have heard the learned counsel for the parties and gone through the record minutely. It is a case of two versions, as Muhammad Yaqoob appellant has taken a specific plea of self-defence.
Both the versions are to be put in juxtaposition in order to ascertain which of them was true or closer to the truth.
9. According to prosecution case, on the fateful day the complainant, who was an practising Advocate, left Court premises early because of Friday and at about 1-30 p.m. He took his brother Mukhtar Ahmad deceased along with him to his sister's husband Anar Khan in Jumma Mohallah, Shaheedanwali Road for consultation regarding higher education of Mukhtar Ahmad in foreign country. When the complainant and Mukhtar Ahmad reached near the shop of Anar Khan, Mukhtar Khan, in order to urinate, went other side of Rajbah towards fields. After easing himself while he reached near the Rajbah, Muhammad Yagoob armed with .12 bore double-barrel gun, Mehboob Ahmad armed with .12 bore single barrel gun (sons of Haji Nazar Muhammad), their mother Mst.
Rugqiya Bibi who was empty-handed, Sabir Hussain armed with .30 bore pistol and Muhammad Asghar armed with .12 bore gun came out of their house, where they had assembled with premeditation. Mst. Rugqiya Bibi raised Lalkara that Mukhtar Ahmad should be taught a lesson for giving beating to Mehboob Ahmad. Thereafter Muhammad Yaqoob fired at Mukhtar Ahmad, which hit on his chest. Mehboob Ahmad also fired, which hit on the neck of Mukhtar Ahmad. Muhammad Asghar (acquitted co-accused) also fired, which hit on the left wrist. Muhammad Yaqoob again fired which also hit on the chest of Mukhtar Ahmad. Sabir Hussain (acquitted accused) fired with his pistol, which hit on the right index finger of Mukhtar Ahmad, who fell on the ground and died at the spot. Thereafter the accused left the scene of occurrence. The motive behind the occurrence was that 5/6 days prior to the occurrence an altercation took place between Mehboob Ahmad and Mukhtar Ahmad deceased, while playing cricket and Mehboob Ahmad was manhandled.
10. According to F.I.R., the occurrence took place at 1-30 p.m. On 13-2-1998, which was Friday and it was almost prayer time. According to the witnesses Juma Prayer was offered in the nearby mosque at 1-15 p.m. It is in evidence that 70% shops remained closed on Friday. Anar Khan P.W.2 admitted that on Friday he used to close his shop at 2-30 p.m. It is also in evidence that house of Muhammad Iqbal/complainant/ P.W.1 was at distance of 1-1/2 Kanals from the spot, while house of Anar Khan was opposite of the house of Muhammad Iqbal. According to complainant, he and deceased were going to the shop of Anar Khan for consultation regarding the higher education of the deceased in foreign country. It is not on record as to what was the urgency for which Mukhtar Ahmad and the complainant were going to the shop of Anar Khan almost about prayer time. The matter could easily be discussed with Anar Khan in the house which was just opposite to the house of the complainant. According to complainant, Anar Khan had education of 7/8th class and while Mukhtar Ahmad deceased has passed his M.B.A. Examination. Prima facie the person who was not even matriculate could hardly be in a position to advise the higher qualified person about his higher studies. In the above noted circumstances, it appears that the story of taking Mukhtar Ahmad to the shop of Anar Khan for consultation was carved out to establish the presence of the P.Ws. At the time of occurrence. The P.Ws. Have thrown a very large net by involving five persons of a family including mother of the appellants on the pretext that with premeditation they had assembled in the house in order to launch attack on Mukhtar Ahmad. The fact remains that there is nothing on record that the accused knew that at 1-30 p.m. Mukhtar Ahmad deceased would be taken to the shop of Anar Khan for consultation about his higher education. Even according to prosecution case no serious dispute existed between Mehboob Ahmad and the deceased. It is mentioned in the F.I.R. That Mehboob Ahmad was given beating but there is no medical evidence of beating Mehboob Ahmad nor it is in the F.I.R. That Mehboob Ahmad received serious injuries at the hands of the deceased. According to the prosecution case, the quarrel took place between the two while they were playing cricket but in that case it was most unlikely that the accused headed by - their mother would launch murderous assault on Mukhtar Ahmad. It is common knowledge that the quarrels arising between the players are normally settled by their common friends immediately.
11. As per F.I.R., five fire shots were attributed to the accused. Out of five, two are attributed to Muhammad Yaqoob appellant while one was attributed to Mehboob Ahmad The fires attributed to Muhammad Yaqoob hit on the chest of Mukhtar Ahmad deceased while the F.I.R. Attributed to Mehboob Ahmad hit on the neck of the deceased. Admittedly P.Ws. Saw the accused from distance of 55/60 feet. According to site plan Exh.P.H. The distance from where the accused fired and the place where the victim was standing was 11 Karams about 55 feet. Dr. Muhammad Asif Ali Khan/P.W.9, who conducted postmortem on the dead body of Mukhtar Ahmad, did not observe blackening or tattooing around the injuries. During cross-examination he explained that blackening and tattooing would be absent if the fire was caused from distance of more than six feet. He further explained that greater distance of projectile, the wider will be the range of dispersion of the pellets in case of shot gun. He also stated that except for injuries Nos.7 and 8, which were on the right index finger and left wrist and were attributed to the acquitted co-accused, rest of the injuries were located almost on the frontal part of the body. He further stated that if both the hands of the victim are closed to the chest with dorsum facing anteriorly then injuries Nos.7 and 8 could be part of the same fire. However, it would be a rare possibility. Perusal of the statement of doctor leaves impression that the D injuries attributed to Muhammad Yaqoob and Mehboob Ahmad appellants could be the result of one fire shot of .12 bore gun.
12. No independent witness or player was produced before the learned trial Court in support of motive. As noted above, no serious injury had been caused to Mehboob Ahmad by Mukhtar Ahmad to justify the launching of attack by five persons of a family on the fateful day. Shafqat Bari, D.S.P., who was entrusted with the investigation of the case and appeared as C.W.1 before the learned trial Court stated that he included 47 persons during investigation and according to his F observations the occurrence had not taken place on account of quarrel over cricket but the same took place on account of immoral character of the deceased.
13. The appellants were arrested on 22-2-1998 by Ghulam Haider, Inspector/P.W.10. While in custody, Muhammad Yaqoob appellant led to the recovery of .12 bore single barrel gun on 27-2-1998. On the same date, Mehboob Ahmad led to the recovery of .12 bore double-barrel gun. The recovery of guns cannot be used for the benefit of prosecution case as the guns were not sent to Forensic Science Laboratory nor any empty was recovered from the spot. In the above noted circumstances, we are of the opinion that the occurrence did not take place in the manner as narrated by Muhammad Iqbal/complainant/P.W.1, whose presence at the time of occurrence is not free from doubt.
14. Having come to this conclusion, we left with the defence plea taken by Muhammad Yaqoob appellant, which has already been reproduced in para.4 (ante). The defence plea is not only more plausible but is also supported by the circumstances of the case. Undeniably Shafqat Bari. D.S.P.
Was entrusted with the investigation of the case by the I.-G. Police, Punjab, who was then working as D.S.P. Crimes Branch, Lahore. He associated 41 persons from the complainant side and 47 persons from the accused side with the investigation of the case. The complainant admitted that the case was investigated by two agencies firstly by the local police and secondly by Shafqat Bari, D.S.P. Crimes Branch, Lahore. In his statement before the learned trial Court Shafqat Bari stated that the accused party produced 47 persons, who were residents of the vicinity of the place of occurrence before him and he inquired from them individually. Thereafter he recorded the gist of their statements in the case diary. According to him on the basis of evidence he came to the conclusion that it was Mukhtar Ahmad deceased, who launched attack at the house of Muhammad Yaqoob and before attacking at the hcuse he used obscene language and hurled filthy abuses at Muhammad Yaqoob and fired with his 7 mm rifle, which hit the door, wall and window of the house of Muhammad Yaqoob as well as hit the shutter of the shop of Muhammad Yaqoob. He further stated that according to his finding Muhammad Yaqoob was subjected to attack by the deceased and thereafter Muhammad Yaqoob in exercise of his right of self-defence brought his licensed gun and fired at the deceased. He also stated that he went to the spot and examined the place of occurrence. In the interest of justice while exercising our powers under subsection (2) of section 172, Cr.P.C. We have gone through the case diaries prepared by Shafqat Bari, D.S.P./C.W.1. His findings were recorded on 8-1-1999, according to which; it was Mukhtar Ahmad, who was armed with .7 mm rifle initiated attack and resorted to firing. The bullets hit on the walls, doors of the house of Muhammad Yaqoob and shutters of the shops of Muhammad Yaqoob, who thereafter fired in his self-defence. The findings recorded by C.W.1 are not based on opinion alone but the same are based on recording of evidence and visiting of spot. Undeniably none of the fires hit Muhammad Yaqoob, who according to defence plea was alone in the house. The fires caused by Mukhtar Ahmad deceased with his .7 mm rifle hit the wall, window of the house of the appellant as well as shutter of his shop: Meanwhile, the deceased continued abusing and threatening to the appellant. According to appellant, he had strong apprehension that he would not be spared today by Mukhtar Ahmad deceased.
15. Considering all the circumstances of the case, we alter conviction of Muhammad Yaqoob appellant to offence under section 302(c), P.P.C. And reduce his sentence to ten years' R.I. Benefit of section 382-B, Cr.P.C. Is extended to him.
16. The learned trial Court without any jurisdiction imposed Diyat of Rs .2,50,000 collectively on both the appellants. The order of the learned trial Court relating to payment of Diyat is set aside. As the deceased was aggressor, we would not award any compensation. Reliance is placed on the case of Meraj Begum v. Ejaz Ahmad and others PLD 1982 SC 294.
17. This appeal to the extent of Mehboob Ahmad is allowed and the judgment passed by the learned trial Court to his extent is set aside. He is acquitted of all the charges and would be released from jail forthwith, if not required in any other case.
18. With the above noted modification in the sentence of Muhammad Yaqoob and acquittal of Mehboob Ahmad this appeal is partly allowed.
19. Murder Reference is answered in the negative. Death sentence awarded to Muhammad Yaqoob appellant is not confirmed.
20. For the same reasons, we find no merit in Criminal Revision No,635 of 1999 filed by Muhammad Iqbal, hence, the same is dismissed.