1. ' KHAWAJA. MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,367 of 2001 filed by Saif ur Rehman appellant. He was convicted and sentenced by learned Additional Sessions Judge, Attock vide judgment dated 4-10-2001 as under:- ' Death and to pay a compensation of rupees one lac in default six months R.I. Under section 302, P.P.C. For committing the Qatl-eamd of Muhammad Saeed.
2. ' Murder Reference No,685 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 6-30 a.m. On 26-6-2001 in Mohallah Irshad Nagar which is at a distance of 1/2 Kilometer from Police Station City Hassan Abdal, District Attock while the matter was reported to the police by Ghulam Fareed complainant, P.W. At 8-15 a.m. On the same day at Civil Hospital through written complaint Exh.PC and formal F. I. R. Exh. PC/ 1 was recorded by Javed Ahmad A.S-I. At 8-25 a.m.
3. Briefly stated the facts of the case as disclosed by Ghulam Farid complainant in the F.I.R. Exh.PC/1 are that he is a labourer and is residing at Mohallah Irshad Nagar along with his wife, brothers and sisters. Saif-ur-Rehman and Ghulam Habib are also residing in their residential street and they used to sell charas. Due to their charas selling, the strangers used to come in their street and for this reason, the women of the street are facing difficulty in coming out of their houses. One day before the occurrence i.e, on 6-6-2000 Saif-urRehman met him at evening time and he restrained him from selling charas. Upon this Saif-ur-Rehman got annoyed and started abusing him, however, the matter was patched up by the inhabitants of Mohallah but Saif-ur-Rehman threatened him that he would take revenge of his insult. Complainant further stated that today, that is, 7-6-2000 when he along with his brothers Abdul Hameed and Muhammad Saeed at about 6-30 a.m. Was going to, Hasanabdal for labour after taking breakfast and when they reached opposite Cadet College near G.T. Road, Ghulam Habib and Saif-ur-Rehman armed with churries were standing there. On seeing them Ghulam Habib raised lalkara that they would not escape today. Then, Saif-urRehman inflicted churri blow to Muhammad Saeed, who caught hold the churri in his right hand but Saif-ur-Rehman pulled it back due to which three fingers of Muhammad Saeed were injured. Then Saifur-Rehman inflicted second churri blow, which hit Muhammad Saeed on middle of his chest and he fell down. The complainant and his brother Abdul Hameed stepped forward to rescue their brother Muhammad Saeed, upon which Saif-ur-Rehman inflicted churri blow at the person of Abdul Hameed which hit on his left flank and he also fell down. Then Ghulam Habib inflicted churri blow to the complainant, which hit on his right flank. Then he snatched churri from Ghulam Habib and inflicted several blows of it to Saif-urRehman and he became injured. On hearing hue and cry Muhammad Arshad and Iltaf attracted there and witnessed the occurrence and rescued them. They also took them to Hospital where Muhammad Saeed succumbed to the injuries.
3. ' Masood Pervez S.-I. P.W.15 took over the investigation. He after receipt of inforthation about the occurrence went to Civil Hospital, Attock, prepared injury statements of Ghulam Farid and Abdul Hameed, Exh.PM and Exh.PN, the injury statements of Saif ur Rehman accused is Exh.P0, the inquest report of Saeed deceased is Exh.PP; from the place of occurrence, the investigator took into possession the blood stained earth vide memo. Exh.PF, Saif ur Rehman accused was arrested on 14-6-2000 he got recovered churri which was secured vide memo. Exh.PJ; Habib accused also got recovered churri which was taken into possession vide memo. Exh.PR. After completion of all formal investigation, both the accused were sent to face the trial.
4. ' At the trial prosecution in order to prove its case produced 15 witnesses in all. Ghulam Farid complainant P.W.13 furnished the eye-witness account. Doctor Muhammad Zubair P.W.6 conducted postmortem examination on dead body of the deceased Muhammad Saeed while the injured were examined by Dr. Ishtiaq Hussain P.W.1. After closing prosecution evidence, the learned ADA tendered in evidence report of the Chemical Examiner (Exh.PT and Exh.PT/1) reports of the Serologist (Exh.PU and Exh.PU/1) and closed the case of prosecution. The accused in his statement under section 342, Cr.P.C. Pleaded false implication. On conclusion of the trial, the accused was convicted and sentenced as stated above.
5. ' Sardar Asmat Ullah Khan, learned counsel for the appellant submits that the appellant received six injuries on his person; in fact the complainant party was aggressor; the appellant had taken a specific plea of right of self-defence and if both the versions one of the prosecution and other set up by the ,defence are put in juxtaposition, the version of the defense seems to be more plausible and convincing one; the complainant party was involved in cases of narcotics and dacoity as is evident from exhibits D.1 and D.2, so according to learned counsel the appellant having acted in right, of self-defence, his case does not fall under section 302(b), P.P.C. But under section 302(c), P.
6. P. C.
7. ' The two other learned counsel for the appellant adopt the arguments advanced by Sardar Asmat Ullah Khan, Advocate.
8. ' The learned A.A-G. Submits that the time, date and place as also the manner of occurrence is not denied but admits that it is a case of two versions.
9. ' We have heard learned counsel for the parties at length and have gone through the evidence on record with their able assistance. The deceased in this case is Muhammad Saeed while Ghulam Farid, complainant and Abdul Hameed, P. Ws. Were injured in as much as there was one injury each with sharp edged weapon on the persons of Ghulam Farid and Abdul Hameed where as the doctor (P.W.1) who medically examined the eye-witnesses namely Ghulam Farid and Abdul Hamid, also on the same day medically examined Saif ur Rehman, appellant and found six injuries on the person of Saif ur Rehman with sharp edged weapon including the injuries on chest and abdomen.
10. It is important to note .That. Saif ur Rehman was produced before the doctor (P. W.1) by the police.
11. Though the prosecution tried to explain by stating that the complainant after snatching the churri from Ghulam Habib gave several stab blows on the person of Saif ur Rehman but six injuries with sharp edged weapon including the injuries on chest and abdomen are suggestive of the fact that both the parties were armed at the time of occurrence; it was a case of free fight and they tried to suppress their roles before the police as also before the trial Court.
12. ' In a matter of such like nature, their lordships of the Honourable Supreme Court in the case of Syed Ali Bepari's case PLD 1962 SC 502 had ruled that in case where the parties do not come out with the true story and in such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances. Similarly in the case of Muhammad Nawaz and another v. The State PLD 2005 SC 40 their lordships of the apex Court observed that it is known principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not.
13. ' From the over all facts and circumstances of the case and drawing inferences therefrom on the authority of above quoted enunciation of law we are of the considered view that it was a case of free fight, both the parties were armed at the time of occurrence, they suppressed their roles from the Investigator as also before the trial Court and that the appellant Saif ur Rehman acted in exercise of right of self-defence, so his case is not one under section 302(b), P.P.C but a case covered by section 302(c), P.P.C. Resultantly, conviction of the appellant is altered from section 302(b), P.P.C to section 302(c), P.P.C and he is sentenced to undergo R.I. For fourteen (14) years with the benefit of section 382-B, Cr.P.C.
14. ' The sentence of compensation is set aside in view of the law laid down in Mairaj Begum v. Ejaz Anwer and others PLD 1982 SC 294 as the appellant committed the murder of the deceased in while exercising the right of self- defence.
15. ' The appeal filed by the convict- appellant is disposed of in the above terms, the death sentence is not confirmed and Murder Reference is answered in the negative.