' IJAZ AHMAD CHAUDHRY, J.--- This judgment will dispose of Criminal Appeal No,952 of 2001 filed by Falak Sher and Amjad Mukhtar appellants against their convictions and sentences and Criminal Revision No,487 of 2001 filed by Umar Hayat complainant for enhancement of amount of compensation along with Murder Reference No,443 of 2001 which was sent by the learned trial Court under section 544-A, Cr.P.C. For confirmation of death sentence of Fala'k Sher appellant as all the matters have arisen from the judgment, dated 15-6-2001; passed by the learned Additional Sessions Judge, Sheikhupura, through which he has found Falak Sher appellant guilty under section 302(b), P.P.C. And sentenced him to death as Ta'zir with a direction for payment of compensation of Rs,50.000 to the heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof he had to further undergo R.I. For six months. Appellant Amjad Mukhtar was also convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a direction for payment of compensation of Rs,30,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo R.I. For six months.
2. The occurrence in the present case had taken place on the roof of Umar Hayat complainant (P.W.6) at 6-30 a.m. On 25-5-1998 and on the basis of statement of said Umar Hayat F.I.R. No,107 of 1998 (Exh.P.G.) as recorded by Muhammad Hussain Inspector/S.H.O. (P.W.10) on the same day at 9- 00 a.m. At Police Station Saddar Sangla Hill.
3. The brief facts of the prosecution case as narrated by the complainant Umar Hayat (P.W.6) in the F.I.R. (Exh.P.G.) are that on 25-5-1998 at about 6-30 a.m. His.Son Zahid Mahmood and nephew Muzaffar Hussain were coming from Dera to the village and when they reached near Railway crossing Falak Sher appellant was coming from opposite side who on seeing them pulled out knife; they brick batted at him who ran to his house in their village. Them Falak Sher and Amjad Mukhtar appellants made firing from their rifles. Shahid Mahmood and Muzaffar Hussain along with Tahir Mahmood also started firing, from their house. Respectables of the -locality and neighbour intervened and both the parties had disengaged. Thereafter the complainant asked his sons Tahir Mahmood, Shahid Mahmood and Muzaffar Hussain to bring cots from the roof of their house upon which all the three proceeded upstairs. When Tahir Mahmood had reached the roof top and others were still on the stairs both the appellants Falak Sher and Amjad Mukhtar being armed with guns were present in their adjacent house on the roof. Amjad Mukhtar appellant raised Lalkara to teach a lesson to Tahir Mahmood etc. Of daily brawl whereupon Falak Sher appellant fired a shot hitting Tahir Mahmood on his chest who fell down on the roof. Amjad Mukhtar appellant fired a shot at Shahid Mahmood and Muzaffar Hussain but they made their escape good taking shelter in the stairs. The complainant went upstairs and witnessed the occurrence along with Shahid Mahmood and Mukhtar Hussain while the appellants ran away extending Lalkaras. The complainant along with the said P.Ws. Took the injured Tahir Mahmood to Civil Hospital Sangla Hill who after reaching there succumbed to the injuries.
4. The motive behind the occurrence was that two months prior to the present occurrence Falak Sher and Amjad Mukhtar appellants had given beating to the complainant with Sotas. The respectables of the village intervened and the appellants were compelled to beg pardon and matter was settled down.
5. Muhammad Hussain Inspector/S.H.O. (P.W.10) recorded the F.I.R. At Police Station Saddar Sangla Hill and then proceeded to Civil Hospital Sangla Hill, prepared the inquest report Exh.P.J. And injury statement Exh.P.J./1. Then he submitted an application for the postmortem examination of Tahir Mahmood deceased and dispatched the dead body to the mortuary through Safdar Hussain Constable (P.W.3). Thereafter he proceeded to the place of occurrence, prepared rough site plan Exh.P.L. And took into possession blood-stained earth vide memo. Exh.P.C. He also took into possession two empty cartridges P.3/1-2 vide memo. EXh.P.D. The recoveries from the spot had been witnessed by Shahbaz Ahmad (P.W.4) and Basharat Ali (given up P.W.). The Investigating Officer also recorded the statements of the witnesses under section 161, Cr.P.C. Arshad Iqbal father of the appellants moved an application for recording of cross-version under sections 324/452/ 148/149, P.P.C. Against the complainant party. On '27-5-1998 he recorded the statement of Mst.
Khurshid Bibi injured under section 161, Cr.P.C. In the cross-version at Allied Hospital, Faisalabad. On 29-5-1998 he arrested Falak Sher and Amjad Mukhtar appellants and on 2-6-1998 Falak Sher appellant led to the recovery of gun .12 bore (P.4) along with 8 live cartridges P.5/1-8 from his residential house which were taken into possession vide memo. Exh.P.E. To be witnessed by Shahbaz Ahmad (P.W.4). On 5-6-1998 Amjad Mukhtar appellant also led to the recovery of .12 bore gun P.6 from his residential house which was taken into possession vide memo. Exh.P.F. He also got prepared site plan Exh.P.H. And Exh.P.H./1.
6. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court, copied as required under section 265-C, Cr.P.C. Were supplied to the appellants and charge was framed against them which was denied by them and they claimed to be tried.
7. The prosecution in order to prove the guilt of the appellants produced as many as 11 witnesses.
The medical evidence was produced through the statement of Dr. Masood Ahmad Rafi (P.W.2), who had conducted the post-mortem examination. The ocular account had been furnished by Umar Hayat complainant (P.W.6) and Muzaffar Hussain (P.W .7). The recoveries had been witnessed by Shahbaz Ahmad (P.W.4) along with Muhammad Hussain Inspector/S.H.O. (P.W.10). The remaining witnesses are of formal nature and need not to discuss here.
8. After the close of the prosecution evidence the statements of the appellants were recorded under section 342, Cr.P.C. In which they denied the allegations and professed their innocence. To a question that "why this case against you?" Falak Sher appellant made the following reply which is reproduced as under:-- "The motive set up by the prosecution is false. In fact complainant party was aggressor. On the day of occurrence they along with deceased Tahir Mahmood armed with gun tress-passed into our house while Shahid Mahmood accused in the cross-case armed with .12 bore gun, Muzaffar Hussain armed with .12 bore gun, Zafar Iqbal armed with gun .12 bore, Zahid Mahmood armed with pistol and Umar Hayat empty-handed resorted to firing resulting grievous injuries on my nephew Allah Raham, Tanzeela Bibi and Khurshid Bibi for which cross-case was registered which is pending in this Honourable Court. The complainant party has suppressed their own role and suppressed the injuries on Allah Raham, Tanzeela Bibi and Khurshid Bibi as they may not be branded as aggressor.
That deceased received only one solitary injury when I saw my nephew and my grandmother Khurshid Bibi in the clutches of the complainant party and to rescue my family members from the naked aggression. I acted in the right of self-defence."
' The other appellant Amjad lqbal had, however, denied his participation in the occurrence. Both the appellants also produced in their defence Allah Raham (D.W.1), Mst. Tanzeela Bibi (D.W.2) and Dr. Hamyun Azad Pasha, Medical Officer (D.W.3), but they did not opt to make statement under section 340(2), Cr.P.C.
9. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants which is being assailed through the instant appeal and revision petition.
10. Learned counsel for the appellants contends that the occurrence in the present case had not taken place in the manner narrated by the eye-witnesses, who had suppressed the injuries on the persons of Mst. Khurshid Bibi, Mst. Tanzeela Bibi and Allah Raham, D.Ws., mother, sister and brother of the appellants respectively. According to the learned counsel, Mst. Khurshid Bibi and Mst.
Tanzeela Bibi had received firearm injuries while Allah Raham also received serious injuries, who were got admitted in the hospital on the same day and then were referred to the Allied Hospital, Faisalabad; that on the same day the cross-version was recorded; that the eye-witnesses had not come up with clean hands, who had magnified the role of the appellants, but failed to mention the role played by the appellants/accused party in the incident; that the witnesses are not truthful, who had suppressed the true facts and are not worthy of reliance; that it had been proved on record beyond any shadow of doubt that the above-said three persons had received injuries during the incident and the police officials had taken them to the hospital for the medical examination but inspite of that the Investigating Officer (P.W.10) did not mention about the receiving of injuries by these three persons which shows that the conduct of the Investigating Officer was not above the board, who had not tried to bring the case with true perspective before the Court; that if the eye-witnesses are disbelieved then there is no other evidence to connect the appellants with the commission of the crime and even otherwise when the three persons from the accused side had received fire-arm injuries, Falak Sher appellant had a right of self-defence, who had not exceeded the same and fired a single shot only resulting in the death of the deceased and the said right had been properly exercised, hence the appellants may be acquitted. It is also contended that even as per prosecution version the appellant Amjad Mukhtar had not caused any injury to the deceased and according to defence version as well he had not participated in the occurrence.
11. Learned counsel for the complainant on the other hand have opposed this appeal on the ground that the injuries allegedly received by the three persons from the accused side were not caused during the incident and they might have received the injuries after the incident. It is also contended that the complainant was not bound to explain the injuries on the persons who were inside the house, who having immediately taken the deceased in an injured condition to the hospital was not aware of the fact that what had happened subsequently. It is also contended that the injuries had not been suppressed by the prosecution and both the eyewitnesses were residents of the place of incident, who had no previous enmity or grudge against the appellants to falsely implicate them in the present case; that it was a daylight occurrence and there was no question of misidentity of the appellants; that the details of the incident had been given in their statements by the witnesses before the police and also before the learned trial Court; that the prosecution version is supported by the medical evidence; that the recovery of weapon had been effected from Falak Sher appellant while also matched with the empty recovered from the place from where the appellant Falak Sher had fired at the deceased and the report of the Forensic Science Laboratory provides independent corroboration to the ocular account and thus, the prosecution had succeeded in proving the case against the appellants beyond any shadow of doubt, whose appeal may be dismissed and the convictions and sentences maybe maintained.
12. Learned counsel for the State have also adopted the arguments of the learned counsel for the complainant.
13. We have heard the arguments of the learned counsel for the parties and also perused the record with their assistance.
14. The prosecution in order to prove the ocular account got examined Umar Hayat complainant (P.W.6) and Muzaffar Hussain (P.W.7). Umar Hayat (P.W.6) is the fathcf of the deceased Tahir Mahmood while Muzaffar. Hussain (P.W.7) is the nephew of Umar Hayat (P.W.6). Both these eye- witnesses are related inter se and with the deceased. No doubt both the parties were residing in the houses adjacent to each other, but it was got mentioned in the F.I.R. That about 2/3 months before the present incident the. Appellants had quarreled with the complainant and Falak Sher etc. Had given him some blows. However, with the intervention of the respectables, the matter was patched up. Then on the day of incident i,e, 25-5-1998 at 6-30 a.m. Zahid Mahmood and Muzaffar Hussain were coming back from the Dera when in the way Falak Sher appellant intercepted them near the Railway crossing while armed with knife, who was made to flee through brick-batting by them. Thereafter, both the appellants in retaliation started firing from their house. In retaliation Shahid Mahmood, Muzaffar Hussain P.W., and Tahir Mahmood deceased also started firing.
However, on the intervention of the respectables the matter was settled. After some time, the complainant asked Shand Mahmood, Tahir Mahmood and Muzaffar Hussain to bring down the cots from the roof, who went on the roof-top, when Falak Sher and Amjad Mukhtar appellants while armed with guns .12 bore had fired and fire shot of Falak Sher appellant hit Tahir Mahmood deceased in the chest. It has been admitted by the complainant himself and Muzaffar Hussain in their statements under 'section 161, Cr.P.C. That before the occurrence the firing was also made by them towards the appellants/accused, but the said matter was got patched up.
' Then during cross-examination the complainant also admitted that he had not mentioned the time and place of the incident where two months ago , he was beaten by Falak Sher appellant. He also conceded that he had not mentioned the names of the witnesses who had intervened and got patched up the matter between the parties. Similarly the complainant (P.W.6) had not mentioned in his statement the names of the respectables, who had got the matter patched up on the day of the incident. Inspite of admission by the complainant and Muzaffar Hussain that the firing was also made by them, the Investigating Officer had neither collected any empty from the place from where the complainant party had fired towards the accused party nor he had recovered the weapons which were used by them in the said incident. Similarly, if the indiscriminate firing was made from the side of the accused/appellants, then the recovery of only two empties from the spot at point "E" of the site plan Exh.P.H. By the Investigating Officer creates doubt in the prosecution version. Both the eye-witnesses had not stated that the three persons from the accused side, namely Mst. Khurshid Bibi mother, Mst. Tanzeela Bibi sister and Allah Raham brother of Falak Sher appellant had also received injuries during the incident. The P.Ws. Had suppressed the injuries on the persons of these three persons from the accused side who were residing in the adjacent house from where allegedly the firing was made by the appellants Falak Sher and Amjad Mukhtar. These three persons were taken to the hospital through police, who were medically examined by Dr. Hamyun Azad Pasha, Medical Officer, Rural Health Centre, Sangla Hill (D.W.3). According to the doctor Mst. Khurshid Bibi was brought to the hospital on 25-5-1998 at 9-00 a.m. And she had received two injuries. Injury No,1 was caused by fire-arm while injury No,2 with sharp-edged weapon and due to her serious condition, was referred to Allied Hospital where she was operated upon and the doctor (D.W.3) also received the operation notes according to which there was gun shot injury on the back and muscles and tendon were exposed. Similarly on the same day Mst.
Tanzeela aged about 15 years was also examined by the doctor (D.W.3) and he noted two lacerated wounds on the person of Mst. Tanzeela to have been caused by fire-arm. Allah Raham aged about 12 years was also examined on 25-5-1998 at 9-15 a.m. And the doctor noted seven injuries on his person caused by blunt weapons. Then after receipt of the X-ray report the doctor declared that there was fracture of right humerous and left humerous along with displacement in both. There was also fracture of right Tibia and fibula and displacement. The doctor had also placed on record medico-legal reports of Mst. Tanzeela (Exh.D.B.), Allah Raham (Exh.D.C.) and Mst.
Khurshid Bibi (Exh.D.D.). According to the doctor he medically examined all the three persons who had been brought to him by Khizar Hayat, A.S.-I. The duration of the injuries was within 2/3 hours.
The possibility of receiving of injuries by these persons in the same incident due to the duration of the injuries and taking of them by the police to the hospital for their medical examination immediately after the occurrence cannot be ruled out when it had been declared that such type of injuries could not be self-suffered.
15. It is found that both the eye-witnesses had suppressed the injuries received by the close relatives of Falak Sher appellant and they had not spoken the whole truth. The Investigating Officer (P.W.10) who recorded the F.I.R. Also admitted that on the same day of occurrence i,e, 25-5-1998 Arshad Iqbal father of Falak Sher appellant had moved an application alleging therein that the complainant party was the aggressor and prayed that the cross-version be recorded against them under sections 324/452/148/149, P.P.C. Then on 27-5-1998 the Investigating Officer went to Allied Hospital and recorded the statement of Mst. Khurshid Bibi injured. The statements of the other injured persons were also recorded during the investigation by the abovesaid Investigating Officer but during cross-examination he claimed to have come to know on the next day about the receiving of injuries by the three close relatives of Falak Sher appellant during the same incident.
This statement of Muhammad Hussain Inspector/S.H.O. (P.W.10) is falsified by the statement of D.W.3 Dr. Hamyun Azad Pasha, Medical Officer who specifically stated that all the three persons were brought by Khizar Hayat A.S.-I. For medical examination the same day at 9-00 a.m. It is strange that A.S.-I. Khizar Hayat of the same police station had taken the injured persons from the place of incident to the hospital, but he was not cited as a witness and an inference can be drawn that the said A.S.-I. Was withheld by the prosecution with mala fide intention and ulterior motive to avoid that the true facts may not come on the record. The statement of the Investigating Officer also shows that he had tried to suppress the injuries received by the close relatives of Falak Sher appellant during the incident. The story of the Investigating Officer and the complainant is further falsified by the statement of Shahbaz Ahmad (P.W.4) who had witnessed the recovery and had gone to the hospital immediately after having knowledge about the incident and he had received the information in the hospital after sometime that Mst. Khurshid Bibi, Mst. Tanzeela and Allah Raham from the accused party/appellants had also been injured. During the investigation, the cross-version of the appellants was also found correct, and Muzaffar Hussain (P.W.7) and Shahid Mahmood were challaned, who according to the learned counsel for the appellants had been convicted and sentenced to seven years for causing injuries to these persons during the same incident, and they have already served out the whole sentence. The receiving of injuries by the three persons from the accused side during the incident had been proved beyond any shadow of doubt and both the eye-witnesses appear to have not come to the Court with clean hands but the prosecution had tried it best to conceal the true facts and such type of witnesses cannot be relied upon in maintaining the conviction of the appellants in a case of capital charge.
16. The story narrated by the eye-witnesses regarding the distance from where the deceased was fired at by the appellant Falak Sher has also been falsified by the medical evidence. According to Idr. Masood Ahmad Rafi (P.W.2) the deceased had received two penetrating fire-arm wounds on the front of right shoulder joint and the base of neck. On injury No,1 blackening was observed while at injury No,2, blackening with burning was found. During the cross-examination Umar Hayat complainant (P.W.6) though claimed that the appellant Falak Sher was at a distance of 10/12 feet at the time of firing at the deceased yet according to the site plan (Exh.P.H.) prepared by Khalid Mahmood Draftsman (P.W.9) on the pointing of the P.Ws. The deceased was at point "A" on the roof of his house while point "E" was a place from where Falak Sher appellant had fired at the deceased and two empties were also recovered from the said place. The distance between points "A" and "E" was described as 64 feet. There is no cavil to the proposition that firing from such a distance cannot result into causing burning and blackening. The medical evidence is found in conflict with the ocular account and it clearly suggests that the occurrence had not taken place in the manner narrated by the prosecution.
17. In view of the above discussion we are of the considered view that the prosecution witnesses had not spoken the whole truth and the material facts were suppressed, which make the prosecution case highly doubtful. On the other hand Falak Sher appellant had taken a specific stand reproduced in para.8 ante that he had exercised his right of self-defence to save his close relatives i,e, mother, sister and real brother, who were injured by the complainant party and he had fired once resulting into the death of the deceased. The said relatives of Falak Sher appellant, namely, Allah Raham (brother) and Mst. Tanzeela Bibi (sister) who appeared as D.Ws.1 and 2 along with his mother Mst. Khurshid Bibi. D.Ws.1 and 2 fully supported the defence version. In para.14 ante we have already observed that the said persons from the accused side had received injuries in the same occurrence, which were suppressed by the prosecution. The presence of burning in the cases of injuries received by the deceased and Mst. Khurshid Bibi from the accused side at injury No,1 had contradicted the prosecution story regarding inflicting of fire by Falak Sher appellant from a long distance as discussed in the preceding paragraph No,16 but it supported the defence version that the occurrence had taken place from a close range and the complainant party was the aggressor.
The motive set up by the prosecution itself suggests that it was the complainant party which was aggrieved by the previous alleged acts of the appellant party, who could have attacked upon them. Keeping in view the number and nature of the injuries received by the three close relatives of the appellants it cannot be said that Falak Sher appellant had exceeded the right of self-defence by making single fire shot during the occurrence to save his close relatives from the aggression of the complainant party. Even otherwise it is settled law that if the prosecution version is disbelieved, the defence version taken by the accused in the statements recorded under section 342, Cr.P.C. Is to be rejected or accepted in toto and not by piecemeal to suit the prosecution version. The case reported as Sultan Khan v. Sher Khan and others PLD 1991 SC 520 is referred. Even from the perusal of defence plea taken by Falak Sher appellant he had acted to defend his close relatives from the aggression of the complainant party. Section 97 of the Pakistan Penal Code says that every person has a right, subject to restriction contained in section 90, to defend his own body, and the body of any other person against any offence effecting the human body. The act of Falak Sher appellant was fully covered by section 100, P.P.C. Amjad Mukhtar appellant was not attributed any injury to the deceased or P. Ws. Even by the prosecution and only the role of ineffective firing was attributed to him. Moreover, as per defence version he had not participated in the occurrence. The possibility of his false implication being relative of the other appellant and the injured persons from their side by widening the net cannot be ruled out.
18. In view of the above discussion, we have no hesitation in holding that the prosecution had failed to bring home charge to both the appellants beyond any shadow of doubt through ,the evidence of unimpeachable character and even from the defence version no offence is made out against them. Resultantly Criminal Appeal No,952 of 2001 is accepted, the impugned judgment of conviction and sentence is set aside E and both the appellants are acquitted by extending them the benefit of doubt, who shall be released from jail forthwith if not required in any other criminal case.
19. Since both the convicts/appellants have been acquitted by us, Criminal Revision No,487 of 2001 filed by the complainant seeking enhancement of compensation awarded to them has become infructuous which is dismissed accordingly.
20. The death sentence awarded to, Falak Sher appellant by the learned trial Court is not confirmed and Murder Reference No,443 of 2001 is replied in the negative.