1. ' MIAN MUHAMMD NAJUM-UZZAMAN, J.---Appellant Qaiser son of Hashim along with three others namely Mumtaz Begum, Azhar and Imran was tried by Addl: Sessions Judge Gujrat for the murder of one Shabbir Ahmad in case F.I.R. No,163 dated 22-2-2001 for the offence under sections 302/34, P.P.C. Registered at Police Station Civil Lines, Gujrat who vide judgment dated 17-7-2002 while acquitting the co-accused convicted the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life. The appellant was also given the benefit of section 382-B, Cr.P.C.
2. Feeling aggrieved by the impugned judgment appellant has tiled the instant appeal.
3. The facts of the prosecution case as narrated in F.I.R. Exh.PG/1 lodged upon the statement of Haji Muhammad Inayat (uncle) of Shabbir Ahmad deceased, resident of Sargodha Road opposite electricity office (Bijli Ghar) are that complainant along with his brother Muhammad, Sharif was residing in the upper story of the said house along with his family members. At the ground floor of the house they had established a factory. Statedly Muhammad Sharif during the days of occurrence was residing at Masqat whose sons namely Shabbir Ahmad, Abdul Rehman and Muhammad Madni who were living in Pakistan had rented out two rooms of their portion on the ground floor to Messrs Imran, Azhar sons of Muhammad Iqbal, Qaiser son of Hashim caste Qureshi R/o Dhok Siharan P.S. Mandl Bahuudin for the last 6/7 months. Statedly on 22-2-2001 at about 3/4- 00 a.m. The nephew' of the complainant namely Shabbir Ahmad was sleeping in the baithak situated on the ground floor when suddenly the complainant heard voice of firing upon which complainant along with his son Waheed Ahmad and brother-in-law Muhammad Naseem son of Muhammad Karim who was staying with them, came at the ground floor and saw Qaiser (appellant), Azhar, Imran and Mumtaz Begum (Wife of Qaiser appellant) running away from the baithak. Statedly at the relevant time Qaiser was holding .30 bore pistol in his hand. The complainant along with other witnesses went inside the baithak and saw Shabbir Ahmed lying on a sofa smeared with blood.
2. ' The motive for the said occurrence as narrated in the F.I.R. Was that there was a dispute between Qaiser appellant and Shabbir Ahmad (deceased) about the payment of rental money and that two days prior to the occurrence, both of them had exchanged abuses. Allegedly because of the said grudge appellant and his co-accused had committed the murder of Shabbir Ahmad.
3. ' The Investigating Agency enquired into the matter and after complying with the legal formalities submitted challan against the appellant and his co-accused before the trial court where prosecution produced eight witnesses including Muhammad Inayat P.W.5 and Waheed Ahmad P.W.7 who statedly had seen the accused running away from the spot, to prove the charge/its case.
4. ' The learned trial court also examined appellant and his co-accused under section 342, Cr.P.C.
5. While answering to the question "why this case has been registered against you?", the appellant replied as -under:- "The complainant party have distorted the real facts. The fact of the matter is that the deceased was a dare devel ruffian. He had an evil eye on Mumtaz Begum, my wife who is unfortunately a beautiful lady. At about mid night, on the night of occurrence Mumtaz Begum after easing herself was lying in her room on Sofa set and was waiting for my return. Deceased finding my wife Mumtaz Begum alone came and entered in the room having his pistol in his hand. Deceased pointed out the pistol towards my wife and tried to commit Zina-bil-Jabr with her. He tried to untie the string of her Shalwar for the purpose of Zinabil-Jabr, but my wife made hue and cry and desisted and requested not to play with her honour. But her request proved abortive and the deceased turned a deaf ear to the same. As deceased was a stout person, he overpowered my wife and was going to throw my wife on Sofa set, when I came and heard the shrieks of my wife. I find that the door was chained inside, but the small door of the bath room was open. I entered in the room through bath room and saw deceased in above said condition. I lost my control and under sudden and grave provocation under the impulse of "Ghariat" I grappled with the deceased and committed his murder with his own pistol. On the first day of my arrest I pleaded before the I.O. The real story of the incident. I have not committed any offence. Complainant party is very rich and affluent and so have succeeded in prevailing over the police to coin a false version of the occurrence. Police installed Haji Muhammad Inayat as a false complainant in this case and Waheed and other P.Ws.
6. Were set up as false eye-witnesses who subsequently perjured in the Court."
7. ' The appellant did not make any statement under section 340(2), Cr.P.C. However, Mumtaz Begum co-accused appeared before the court as D.W.1 and had supported the defence plea.
8. ' Learned trial court after appraisal of evidence vide judgment dated 17-7-2002 convicted and sentenced the appellant as narrated earlier.
4. After hearing learned counsel for the parties and perusal of the record I have observed that .The place, time of occurrence and the crime weapon used in the occurrence are the admitted facts, the only question to be resolved is whether the story of prosecution is to be relied upon or defence plea is to be accepted in totality.
9. ' It was an unseen occurrence. The entire case of prosecution rests upon the statements of two witnesses namely Haji Muhammad Inayat P.W.5 and Waheed Ahmad P.W.7 who had seen the appellant and co-accused running away from the spot coupled with the motive for the commission of this offence, the recovery of crime weapon at the instance of appellant and medico-legal reports.
10. ' The motive for the occurrence has already been disbelieved by the trial court B and rightly so because there is no cogent evidence on the record in support of the same.
11. ' As far the recovery of crime weapon at the instance of appellant is concerned the appellant has not denied this part of prosecution case because it is admitted fact that appellant had caused injuries to the deceased with the said weapon.
12. ' Similarly as far the statements of two witnesses namely Haji Muhammad Inayat P.W.5 and Waheed Ahmad P.W.7 are concerned, the evidence of these witnesses is only to the extent that they had seen the appellant and co-accused running away from the spot. The.Statements of these witnesses are also of no help to the prosecution case because the appellant has accepted his liability. The statements' of these witnesses are silent about the situation inside the room (place of occurrence) before the fires were made by the appellant. According to prosecution, this occurrence took place at 4-00 a.m. In the morning. The place of occurrence was only two and half miles away from police station but the matter was reported to the police after about five and half hours i.e, 9-30 a.m. When the police reached at the spot on receiving information through some source, as to why these witnesses did not inform the police about the occurrence well within time, there is no plausible explanation for the same on the record. The possibility that the time was consumed by the prosecution to concoct and fabricate the story cannot be ruled out.
13. ' On the other hand the record of this case reveals that immediately after his arrest, the first version of the appellant before the police was the same which he narrated before the trial court while making statement under section 342, Cr.P.C. Mumtaz Begum D. W.1 while appearing as defence witness has also supported the defence plea. She was subjected to I lengthy and searching cross- examination by the complainant party but I have observed that there is nothing in the statement to doubt her credibility or to say that she had not come before the court -of law with clean hands.
14. The statement of this witness rings true, inspire confidence and in the circumstances of this case I am persuaded to rely upon the same.
15. The impugned order reveals that the learned trial court while disbelieving the prosecution case had relied upon the defeence plea but hwile awarding the sentence had taken a harsh view because the appellant had fired two shot at the deceased. It is well settled principle of criminal jurisprudence that under grave and suden provocation or whle causing injuries in the quantum of injuries or damage on a golden scale. The award of sentence of life imprisonment solely on the ground that the appellant had caused two fire-arm injuries to the deceased is not justifiable in the circumstances of this case.
16. After putting both the versions in juxtaposition I find much force in the defence plea, the same stands accepted. Since the appellant had commited the murder of Shabbir Ahmad in the right of his self-defence in order to protect the honour of his wife, his conviction under section 302(b) P.P.C.
17. Is not sustainable, the same stands set aside, the appellant stands convicted under section 302(e)
18. P.P.C. And is sentenced to the period of imprisonment already undergone by him. The appellant shall be released forthwith, if not required, to be detained in any other criminal case.
19. Sentence reduced.