Muhammad Farrukh Mahmud, J.--Aziz Ullah petitioner, aged, 15/16 years- alongwith his brothers Hayat Ullah and Hameed Ullah were sent to face trial in case FIR No, 92 (Ex-PS) registered at Police Station Isakhel on 11.8.1997 at 7.35 a.m. for offences under Section 302, 324/34 PPC. The learned trial Court, vide judgment dated 30.6.2000, while acquitting the other accused, convicted Aziz Ullah petitioner under. Section 302(b) PPC for causing the, murder of Qamar Raza Shah and sentenced him to death. He was also directed to pay fine amounting to Rs, 1,00,000/- (rupees one lakh) in default of payment whereof he was to suffer R.I. for one year. The amount of fine, if recovered, was to be given to the legal heirs of the deceased.
2. Aziz Ullah went in appeal (Cr. A. No, 972 of 2000). The learned Division Bench of the Lahore High Court, Lahore vide judgment dated 11.6.2002 while maintaining the conviction of Aziz Ullah under Section 302(b) PPC, converted the death sentence into imprisonment for life and instead of fine of Rs, 1,00,000/- (which was illegal) he was directed to pay Rs, 50,000/- (rupees fifty thousand) for compensation to the legal heirs of the deceased under Section 554-A Cr.P.C. in default whereof the petitioner was to undergo six months S.I. The learned High Court also convicted the petitioner for offence under Section 324 PPC for causing injury to Sana Ullah PW and sentenced him to R.I. for eight years. In addition to that fine of Rs, 25,000/- (rupees twenty five thousand) was also imposed in default of payment whereof the convict was to suffer S.I. for six months. The amount of fine, if recovered, was to be paid to Sana Ullah PW. Both, the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was also extended.
3. Through Jail Petition No, 346 of 2002, the petitioner challenged his conviction and sentence. After hearing the learned counsel for the parties, leave is granted and the petition is converted into appeal.
4. The relevant facts as per FIR are that Qamar Raza Shah deceased, father of complainant Shafqat .Raza Shah (PW.12) was running agency of diesel oil at Kundal. On the fateful day at about 5.30 a.m., Qamar Raza Shah deceased and Sana Ullah (PW.13) were taking tea in the room while complainant and Muzaffar Iqbal were sitting outside. Aziz Ullah appellant and his brothers Hayat Ullah and Hameed Ullah all equipped with Kalashnikovs reached there. Hayat Ullah and Hameed Ullah stood outside the agency while Aziz Ullah went towards the room where tea was being taken. While standing in the door he caused burst fire which hit Qamar Raza Shah and Sana Ullah thereafter accused ran away. The complainant observed that his father Qamar Raza Shah and Sana Ullah were lying injured, the father received injuries on his right thy, left leg and right arm while Sana Ullah had received injuries on his right and left legs. Both the injured were taken to the hospital, however, Qamar Raza Shah could not survive. The motive as, narrated in the FIR was that Aziz Ullah used to purchase diesel for his tractor on credit. Three/four days prior to occurrence, an altercation took place between the deceased and the appellant over payment of amount. In order to prove its case, prosecution mainly relied on the ocular account furnished by Shafqat Raza Shah complainant and Sana Ullah who was injured during the occurrence. The statements of the PWs are inline with the story given in the FIR and need not be repeated.
5. Aziz Ullah did not deny the occurrence, however, he took the plea of grave and sudden provocation which is being reproduced for convenience:-- "I am innocent. In fact, on the night of occurrence, there was a marriage ceremony in village Kacha Kundal and I belong to a nearby village Wandha Shah Alam. I came from Wandha Shah Alam to attend this marriage ceremony. The marriage ceremony was over late in the evening. I went to Adda which is situated in front of a Diesel Agency of the deceased. I waited for the transport for at least one hour or two, but the transport was not available and I had no alternate but to stay at the diesel agency as the conductor, driver and other people came there and stayed at night in that agency. I know the owner of the diesel agency Qamar Raza Shah where he allowed me to stay at night at diesel agency. On the night of occurrence, I slept in the diesel agency. Early in the morning when it was still dark, I was sleeping on a cot in a room of agency, Qamar Raza Shah came there.
He tried to attempt to commit sodomy upon me. He removed my Shalwar. I attempted to rescue myself from the clutches of the deceased. The deceased who was a man of ill-repute and infamous man, did not let me to go without allowing me to commit sodomy with me. I ultimately rescued myself from the accused. The deceased was having gun in the agency. To save my skin and feeling that deceased shall not let me off, I took the gun and fired at the deceased to save my honour and to evade the deceased not to commit, sodomy upon me. In the meantime on the noise and alarm of mine, Sanaullah PW also arrived and I was at that time aiming gun upon the deceased and in that manner, the deceased as well as Sanaullah received the injuries at my hands on the non-vital part of the body. I had no intention to commit the murder or to injure Sanaullah. The deceased himself invited all the troubles. At the time of occurrence I was all alone. I was being a young man of 16/17 years of age ran away from the spot after the occurrence and hide myself under the different places of NWFP after this occurrence due to fear. My family came to know about this occurrence brought me in police station and produced me before the I.O. I never absconded nor any attempt was made by the local police or police station Isakhel to send warrant or summon for my arrest in my native village which is situated in NWFP. All the story of absconsion is false and fabricated by the collusion of the complainant party against me. None of my brother was present at the time of occurrence and was also declared innocent by the investigating agency. I alone committed this murder under grave, and sudden provocation to save my skin from the deceased. I am innocent."
6. The learned counsel for the appellant contended that the motive put forward by the prosecution was rightly rejected by the learned High Court and that the plea taken by the appellant was not only plausible but was also supported by the circumstances of the case and that, in the circumstances, the case of the appellant fell under Section 302(c) PPC and lastly he prayed for reduction in sentence. In view of the impugned judgment, the learned Deputy Prosecutor General did not seriously contest the proposition.
7. We have heard the learned counsel for the parties and have also gone through the record of the case. It is a case of two versions. It is settled law that both the versions are to be put in juxta position in order to ascertain which of the two was true owearer to the truth. According to prosecution, the occurrence took place early in the morning in the background of existing hostility between the deceased and the appellant over payment of money, it was alleged that the appellant used to purchase diesel for his tractor on credit and that amount was due against him.
However, after scanning the entire evidence on the point, the learned High Court observed that the prosecution failed miserably to prove that Aziz Ullah appellant actually owned a tractor or used to purchase diesel from the agency of the deceased or that actually some dispute relating to payment of some amount existed between the two.
8. In reaching to above conclusion, the learned High Court also took note of the fact that though according to PW.13 ledger of diesel agency was being maintained yet no ledger was produced before the Court to show that the appellant had been purchasing diesel on credit. According to the considered opinion of the learned Judges, the version put forward by Aziz Ullah was probable. The reasons advanced by the learned High Court are based on evidence available on record and it was for that reason that the learned Deputy Prosecutor General conceded. We also feel after scanning the whole evidence that the defence plea was plausible and borne out from the circumstances of the case; as there was no other reason available on the record to launch the assault.
9. In consideration of the above noted circumstances, we alter the conviction of the appellant from offence under Section 302(b) to offence under Section 302(c) PPC, his sentence is reduced to 10 years R.I. The order under Section 554-A Cr.P.C. is maintained.
10. The conviction and sentence of the appellant under Section 324 PPC are also maintained. The direction of the learned High Court that both the sentences would run concurrently and the benefit of Section 382-B Cr.P.C. given to the convict, is also maintained. With the above noted modification, this appeal is partly allowed.