' MUHAMMAD FARRUKH MAHMUD, J.--- The appellant Muhammad Hassan along with Muhammad Asghar and Ghulam Qadir was tried by Malik Abdul Rashid, learned Additional Sessions Judge, Depalpur, in case F.I.R. No,471 registered at Police Station Hujra Shah Muqeem on 14-8-2000. Vide judgment dated 8-7-2000 the learned trial Court, while acquitting the aforesaid co-accused, convicted the appellant for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs,50,000 as compensation to the legal heirs of the deceased.
2. Muhammad Hassan, convict/appellant, has challenged his conviction and sentence through the instant appeal. Murder Reference No,522 of 2002 seeking confirmation or otherwise of death sentence imposed upon the appellant has also been placed before us. Both these matters are being decided through this consolidated judgment.
3. The brief facts of the prosecution case per F.I.R. Exh.P.A. Lodged at the instance of Muhammad Iqbal, complainant/P.W.1, are that on 14-8-2000 at 11-00 a.m. The complainant, Muhammad Din/P.W.2 and Muhammad Yaqoob were going to Rajowal on the tractor of Muhammad Din. They stopped for some time at Chowk Bhattian. The complainant's son Faisal Iqbal also reached there on a motorcycle after leaving the children at the school. All of a sudden Hassan, Asghar, both armed with .30 bore mousers, and Ghulam Qadir armed with .30-bore pistol also came there on a motorcycle. Ghulam Qadir raised Lalkara to do away with Faisal Iqbal, whereupon Hassan fired from his mouser which hit Faisal Iqbal on the right side of his chest. The second fire shot by Asghar hit Faisal Iqbal on his back. On receipt of the two fires, Fasial Iqbal fell down. The complainant and his companion raised hue and cry. The accused, while causing aerial firing and leaving their motorcycle at the spot, fled away. Faisal Iqbal succumbed to the injuries at the spot.
' The motive behind the occurrence was that Mukhtar Ahmad, complainant's brother, had got registered 3/4 criminal cases against the accused. Faisal Iqbal was assisting his paternal uncle Mukhtar in pursuing the said case. The accused asked Faisal Iqbal to desist from helping his paternal uncle but he did not accede to their demand; hence, the accused committed the murder of the deceased.
4. After recording the statement of the complainant Exh.P.A. On 14-8-2000 Muhammad Younus, S.- I./P.W.8, went to the spot; prepared the injury statement Exh.P.K. And inquest report Exh.P.L. Of the deceased and sent the dead body for post-mortem examination. On spot inspection, he collected two crime empties of pistol P.1/1-2, sealed the same into a parcel and took it into possession vide memo. Exh.P.B. He also collected blood-stained earth and sealed the same into a parcel vide memo. Exh.P.C. He also took into possession motor cycle P.3 of Faisal Iqbal through memo. Exh.P.D.
The motorcycle P.2 left by the accused at the spot was taken into possession through memo.
Exh.P.E. The Investigating Officer prepared rough site plan of the place of occurrence Exh.P.N. He also got prepared the scaled site plan Exh.P.H. From the Draftsman. On 7-9-2000 Muhammad Hassan appellant was arrested. On 14-9-2000 while in custody, the accused led to the recovery of mouser .30 bore P.3 two live bullets P.8/1-2 which were taken into possession vide memo. Exh.P.F.
After completion of investigation, the appellant along with his co-accused was sent up to face trial.
As the accused denied the charge and claimed to be tried, the trial commenced.
5. In support of its case at the trial, the prosecution produced nine witnesses. Ocular account was furnished by 'Muhammad Iqbal/P.W.1 and Muhammad Din/P.W.2. In addition to that, they also stated about the motive. Muhammad Din/P.W.2 also stated about the recoveries effected from the spot, while Sana Ullah/P.W.3 stated about the recovery of the weapon of offence at instance of the appellant. Dr. Muhammad Yahya/P.W.4 conducted post-mortem examination on the dead body of the deceased on 14-8-2000. He, while observing three fire-arm injuries (1 to 3) on the person of the deceased, opined that the cause of death was injury No,1 which was sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm weapon. According to the doctor, the time between injuries and death was immediate, while between the death and post- mortem examination, it was within 6 to 12 hours. Muhammad Younis, S.-I./P.W.8, stated about the registration of case at the instance of the complainant and the investigation thereafter. The rest of the witnesses, being formal in nature, need not be discussed. After placing on record the reports of Chemical Examiner Exh.P.P., Serologist Exh.P.Q. And Forensic Science Laboratory Exh.P.R., the prosecution closed its side.
6. In his statement recorded under section 342, Cr.P.C. The appellant pleaded his innocence and false implication at. The instance of Mukhtar, brother of the complainant, due to criminal and civil litigation between them. He neither appeared as a witness under section 340(2), Cr.P.C. Nor did he produce any witness in defence. However, he placed. On record the documents Exhs.D.C., D.D.; D.E.
And D.F. And closed his evidence.
7. Learned counsel for the appellant, while referring to cross-examination on the Investigating Officer (I.0.) available at pages 42 and 43, submits that it was a case of acquittal, as the appellant acted in his self-defence; and that the prosecution filed to prove its case before the learned trial Court. In order to substantiate his arguments, the learned counsel has submitted that both the witnesses were not only related to the deceased but they were also inimical towards the appellant; that there was no occasion for both the eye-witnesses to be present at the time of occurrence; that they were chance witnesses and .Could not account for their presence at the relevant time; that their statements are totally belied by the medical evidence; that on the same evidence, Muhammad Asghar who was also attributed fatal inquiry on the person of the deceased has been acquitted and the appeal challenging his acquittal has been dismissed by this Court vide judgment dated 15-1-2003; that no independent corroboratory evidence was available against the appellant, as the empties were kept at the police station after the arrest of the accused; hence, no reliance could be placed on the recovery evidence. The learned counsel has also referred to mark 'A', wherein only one empty has been mentioned by the Investigating Officer. The learned counsel has also referred to the statement of Investigating Officer, which smacks of dishonest and partial investigation.
8. Conversely, the learned Additional Prosecutor General for the State submits that it was a day light occurrence; that the evidence of recovery of empties from the spots and their tallying with the pistol recovered at the instance of the appellant proves the case against him. Supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record.
10. The occurrence took place at Chowk Bhattian which was situated at a distance of about four kilometers from the place of abode of the P. Ws. Both the eye-witnesses are related to the deceased. Undeniably, the civil and criminal litigation was pending between complainant party and the accused. Both the eye-witnesses claimed to be present at the time of occurrence per chance. According to F.I.R., on the fateful day, complainant along with Muhammad Yaqoob (not produced) and Muhammad Din/P.W.2 were going from their village on a tractor belonging to Muhammad Din towards Rajowal. They stayed at Chowk Bhattian for some time Meanwhile, Faisal Iqbal-deceased son of the complainant, also reached Chowk Bhattian after leaving children at school situated at Rajowal. The purpose of visiting Rajowal was not mentioned in the F.I.R. Before the learned trial Court, the complainant stated that on the fateful day he had borrowed tractor of - Muhammad Din for ploughing and was going towards Rajowal to purchase diesel. However, he had to admit that diesel was available at places nearby his house. The complainant also stated before the learned trial Court that they stopped at Chowk Bhattian in order to have some refreshment. He was confronted with his earlier statement, wherein no reason for stopping at Chowk Bhattian was given. It is also noteworthy that the occurrence took place on the Independence Day and there was a holiday in the schools, so the story that Faisal Iqbal reached Chowk Bhattian after leaving children at school was also not free from doubt. The complainant could not tell as to how many children Muhammad Iqbal had taken to the school. His answer was that he had not seen Faisal Iqbal when he left. The complainant, who .Was previously a police constable and dismissed from service, along with P.W.2, made dishonest improvements in their statements before the learned trial. Court. They were duly confronted with their earlier statements. Most importantly, it was mentioned in the F.I.R. That Asghar acquitted accused also fired which hit the deceased on the back. In his statement recorded under section 161, Cr.P.C. Exh.D.A., Muhammad Din had also stated that firstly the appellant caused fire which hit on the chest of the deceased and secondly Asghar caused a fire which hit on the back of the deceased. Before the learned trial Court both the witnesses stated that the fire caused by Muhammad Asghar also hit on the right side of the chest of Faisal Iqbal. This dishonest improvement was made after knowing about the post-mortem report, according to which injury, on the back of the deceased was exit wound and not an entry wound. The complainant admitted that he had pointed out to the Investigating Officer as well as the Draftsman from where the accused had fired at the deceased. However, he denied that he told the Investigating Officer and the Draftsman that the deceased was fired at from a distance of sixteen feet. Site plan Exh.P.H. Which is available at page 106 of the Paper Book shows that the distance between the deceased and the accused was sixteen feet. Similarly, according to rough site plan Exh.P.N. Prepared soon after the occurrence, the distance between the accused and the deceased was shown to be three Karams, which comes to about sixteen feet. The post-mortem report available reveals that the fires were caused from a very close range, as burning and blackening was present around the wounds, so both the P.Ws. Improved their statements before the learned trial Court by stating that the fires were caused from 2/2-1/2 feet. This adjustment was made in view of the medical evidence. P.W.2 went a step ahead by stating that firstly Hassan appellant fired in the air and then he caused another fire which hit on the chest of the deceased.
Leaving aside that it would be absurd to fire in the air before firing at the target; the question is why such a statement was made before the learned trial Court? The answer lies in the collection of two empties from the place of occurrence which C according to report of Forensic Science Laboratory, tallied with the pistol recovered at the instance of the appellant.
11. According to F.I.R., the deceased received only two fire shots: one caused by Hassan-appellant which hit on the chest and the other by .Asghar which hit on the back of Faisal Iqbal. According to medical evidence, the injury on the back was exit wound. The doctor observed three fire-arm wounds on the chest of the deceased. Injury No,1 was on the right side of chest 6 cm above the right nipple, while injury No,2 consisted of two fire-arm grazing wounds in front and right side of chest just above injury No,
1. During cross-examination, the doctor stated that each of the grazing wound measured 1/2 an x 1/2 cm and was within the area of 4 cm x 2 cm. He further stated that both the grazing wounds might be the result of bullet or pellet. He admitted it to be correct that the grazing wounds in injury No,2 if those had been caused by bullet, then those must be the result of two bullet shots and in case of pellets it belies the prosecution story and leads us to irresistible conclusion that could be the result of single fire shot. In any case the medical evidence the P.Ws.
Were not present at time of occurrence.
12. As far as motive is concerned, it is available on record that enmity existed between the complainant and his brother Mukhtar on one side and the accused on the other side over land, it is also available on record that many criminal cases had been registered at the instance of Mukhtar brother of the complainant against the accused prior to this occurrence. The bone of contention was about eleven acres of land, which the complainant allegedly sold to Fateh Muhammad. The latter got decree in his favour but the possession remained with the complainant, who, after the passage of the decree, against him got a suit filed through his father. It is also in evidence that the elder son of Mukhtar was about the age of Faisal Iqbal and the accused had no personal grudge, or motive 'against the deceased. The complainant improved his statement by stating before the learned trial Court that the deceased used to live with his uncle Mukhtar. This was never mentioned in the F.I.R. And in any case, if the complainant had been present at the spot, he would have been the target of the accused, as he had direct enmity with the accused. The motive is a double edged sword which cuts both ways, In the instant case, it appears that the accused wereroped in this case due to existing enmity merely on suspicion, as the P.Ws. Were not present at the time of occurrence.
13. The evidence of recovery of pistol at the instance of the appellant and its tallying with the empties recovered from the spot is also not worthy of any credence for the reason that instead of associating any respectable from the locality, Sana Ullak, cousin of the complainant, was shown to have accompanied the Investigating Officer On the date of recovery, both the Investigating Officer and Sana Ullah have contradicted each other on material points regarding recovery proceedings.
It is also noteworthy that the empties were kept at the police station till the arrest of the accused.
14. The upshot of whole discussion is that in our opinion, the P. Ws. Were not present at the time of occurrence. This brings us to the stance taken by the appellant while the Investigating Officer was being cross-examined. The same is reproduced hereunder:- "....It is correct that it was found during my investigation that on the day of occurrence Muhammad Hassan accused was present in the shop of barber at Rajowal for getting him shaved there. Faisal Iqbal deceased came armed with pistol and he fired at Muhammad Hassan accused which hit on the chair of barber. It also came to knowledge and was found that Yaqoob P.W. Since dead, came there and he stopped the accused present in Court by putting his `Safa' around them. It was also found that thereafter Faisal Iqbal came on motorcycle at the spot i.e. Chowk Bhattian in front of Zarar Brothers and there he collided/hit his motorcycle with the motorcycle of accused persons and that the accused fell down from their motorcycle and then Muhammad Hassan and Faisal Iqbal deceased grappled with each other and then Muhammad Hassan accused fired twice at the deceased with pistol .30 bore, causing his death at the spot."
' The learned counsel for the appellant, while referring to the afore-quoted piece of cross- examination, submitted that it was defence plea and could be taken into consideration despite the fact that in his statement recorded under section 342, Cr.P.C. The appellant took a twist and stated that he was roped in this case at the instance of Mukhtar who was inimically opposed towards him and others. ,The learned counsel has further submitted that according to defence plea, the appellant acted in self defence and; hence, deserved acquittal. The defence plea taken at appellants stage can be looked into even if the same was not specifically taken before the learned trial Court by the accused in his statement recorded under section 342, Cr.P.. Reliance is placed on the judgment passed by the Apex Court in the case of Muhammad Sharif v. The State 1985 SCM R 1684. According to defence plea, Muhammad Hassan appellant was present in the shop of the barber when Faisal Iqbal reached there with pistol and fired at him which luckily hit on the chair of the barber and not the appellant. Thereafter, the adversaries met at Chowk Bhattian in front of Zarar Brothers. The deceased collided/hit his motorcycle with the motorcycle of the accused. The accused fell down from the motorcycle. Thereafter Muhammad Hassan and Faisal Iqbal deceased grappled with each other and Muhammad Hassan fired twice at the deceased with his pistol. By causing repeated fires, the appellant exceeded his right of private defence of person and did not deserve clean acquittal.
15. Considering the above noted circumstances, we alter the conviction of the appellant from offence under section 302(b), P.P.C. To offence under section 302(c), P.P.C. His sentence is reduced to fourteen years' R.I. Benefits of section 382-B, Cr.P.C. Is given to the appellant. In peculiar circumstances of the case, the direction of the learned trial Court relating to payment of compensation is set aside.
16. With the above modification in conviction and reduction in sentence, this appeal stands partly allowed. The death sentence is not confirmed. The murder reference is answered in the negative.