' ASIF SAEED KHAN KHOSA, J.---Riasat Ali appellant was convicted for an offence under section 302(c), P.P.C. Vide judgment, dated 14-2-2002 passed by the learned Additional Sessions Judge, Sheikhupura and was sentenced to imprisonment for life. The benefit under section 382-B, Cr.P.C.
Was extended to him. The appellant has challenged his conviction and sentence before this Court through the present appeal.
2. According to the prosecution's case the appellant and his two acquitted co-accused had committed the murder of Muhammad Hussain n 6-00 p.m. On 29-4-1998 near the appellant's house in village Meeranpur situated within the area of Police Station War Burton, District sheikhupura. F.I.R. No. 126 was registered in respect of that incident at I -00 a.m. On 30-4-1998 at Police Station War Burton, District ;heikhupura for an offence under section 302/34, P.P.C. At the instance c Saif Ullah complainant, a son of Muhammad Hussain deceased. After c ompletion of investigation a challan was submitted before the learned t rial Court. At the commencement of the trial the learned trial Court ramed a charge under sections 302/34, P.P.C. Against the appellant and co-accused to which they pleaded not guilty and claimed a trial. During the trial the prosecution produced thirteen witnesses in support of this case against the appellant and his co-accused. In their statements recorded under section 342, Cr.P.C. The appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While responding to a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him the appellant had maintained that at the relevant time Muhammad Hussain deceased was found by the appellant to be in flagrante delicto with the appellant's mother namely Mst. Rasoolan Bibi and, thus, the appellant had killed the deceased under grave and sudden provocation and also on account of Ghariat. The appellant and his co-accused, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence. At the conclusion of the trial the learned trial Court acquitted th appellant's co-accused namely Liaqat Ali and Muhammad Hussain but, after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal before this Court.
3. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the defence plea advanced by the appellant ringed quite true and the same, therefore, merited acceptance. He has further maintained that even the learned trial Court had convicted the appellant for an offence under section 302(c), P.P.C. And not for an offence under section 302(b), P.P.C. Which indicated that even the learned trial Court had accepted the plea of the defence. In this view of the matter he has maintained that the sentence passed by the learned trial Court against the appellant was not commensurate with the offence committed by the appellant. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant beyond reasonable doubt and, therefore, the conviction and sentence of the appellant recorded by the learned trial Court do not warrant any interference by this Court.
4. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been found that admittedly the occurrence in this case had taken place just outside the house of the appellant. The appellant had accepted his presence and participation in the alleged occurrence but he had maintained that he had killed the deceased after giving him a short chase when the appellant had found him in flagrante delicto with his mother. The appellant had maintained that this occurrence had taken place at 9-00 p.m. And not at 6-00 p.m. As maintained by the prosecution. The medical evidence available on the record shows that the duration of injuries sustained by the deceased, as opined by the doctor, corresponded with the time of occurrence stated by the appellant. The Investigating Officer of this case had confirmed the fact that the first plea advanced by the appellant after his arrest was the same as advanced by him before the learned trial Court. The appellant had not only suggested to all the eye-witnesses that he had killed the deceased under grave and sudden provocation and on account of Ghariat but he had also taken the said plea in his statement recorded under section 342, Cr.P.C. The Investigating Officer had found the said plea of the appellant to be factually correct. It is pertinent to mention here that the learned trial Court had disbelived and discarded the motive set up by the prosecution and it had also expressly concluded that the claimed presence of the eye-witnesses at the place of occurrence at the relevant time was doubtful. If that were so then the prosecution's case against the appellant had to be rejected and the defence plea of the appellant had to be accepted as correct. It appears that in the present case the learned trial Court had discarded the prosecution's case against the appellant and had also disbelieved the defence plea but still the learned trial Court had not convicted the appellant for an offence under section 302(b), P.P.C. But had proceeded to convict and sentence the appellant for an offence under section 302(c), P.P.C.
No reason had been advanced by the learned trial Court for awarding the maximum sentence to the appellant for an offence under section 302(c), P.P.C. It is a settled proposition of law that when the prosecution's evidence is disbelieved then the defence plea is to be accepted as correct.
5. For what has been discussed above this appeal is dismissed to the extent of the appellant's conviction under section 302(c), P.P.C. Recorded by the learned trial Court but the same is partly allowed to the extent of the appellant's sentence which is reduced to that already undergone by him. The appellant shall be released from the jail forthwith if not required in any other case. This appeal is disposed of in these terms.