' RAJA SAEED AKRAM KHAN, J.--- Through this single judgment, we intend to dispose of above captioned murder reference and the two appeals, which have arisen out of same judgment, dated 26-6-2002 passed by Chaudhry Muhammad Younis, learned Additional Sessions Judge, Islamabad, whereby appellant Jehanzeb was convicted under section 302(b), P.P.C. And sentenced to death as Ta'zir with a fine of Rs,2,00,000 as compensation to the legal heirs of deceased. In default of payment, the appellant was to undergo six months' S.I. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant whereas Mst. Taj Bibi, co-accused/wife of appellant Jehanzeb, was acquitted of the charge.
2. To set the law into motion, one Muhammad Abbas son of Abdul Aziz, the complainant of this case, got recorded statement before Shaukat Hayat, S.-I./S.H.O., Police Station Industrial Area, Islamabad, on 3rd of September, 2000 at 8-30 p.m. To the effect that he is employed as L.D.C. In police department and used to reside with his brother Muhammad Ilyas, Sub-Inspector, in Flat No,11, Police Lines; that yesterday i.e. 2-9-2000 his nephew Mohsin, aged about 8/9 years, was maltreated by kids of appellant Jehan Zeb, A.S.-I. Who was also residing in their block; that complainant asked the wife of appellant about it but she did not pay any heed and again today the children of appellant snubbed his nephew when the latter was on his way back to home after getting bread; that the complainant and his brother Muhammad Ilyas went to house of appellant Jehan Zeb for bringing the matter into his knowledge but the wife of appellant Jehan Zeb hurled abuses to them and started hitting Danda blows; that then they came back and opted to inform the appellant Jehan Zeb on his arrival; that thereafter the brother of the complainant went to his duty and he himself proceeded to Sabzi Mandi; that at about 7-00 p.m. When the complainant was on his way back to the house, appellant Jehan Zeb, armed with revolver, chased him but he got himself secured by taking shelter into his house; that at that time one of their relatives namely Muhammad Afzal was also present in their house; that in the meanwhile appellant Jehan Zeb and his wife came at the door of their house and while extending threats pulled the door but they did not respond and conveyed the incident to their brother Ilyas in Police Station Tarnol through telephone; that at about 8-30 p.m., the brother of the complainant Ilyas and Khalid Zia, who was their cousin, came at the spot together on a motorcycle; that Khalid Zia was parking the bike whereas deceased Ilyas, the brother of the complainant, was heading towards the stairs for going inside the house when appellant Jehan Zeb and his wife emerged there; that appellant Jehan Zeb called Muhammad Ilyas upon which the complainant and Afzal also attracted there and were moving down-stairs; that appellant Jehan Zeb was firing with his revolver whereas his wife while hurling abuses said to kill all of them; that appellant Jehan Zeb then made three consecutive fires out of which two hit on the front side of chest of Muhammad Ilyas, the brother of the complainant who fell down; that on their cry and noise of firing, the residents of Mohallah came out and appellant Jehan Zeb and his wife went to their house and that thereafter they took Muhammad Ilyas to hospital in injured condition where he succumbed to the injuries.
' As per complainant, the motive was a skirmish which took place a day before the incident in between the children of deceased and that of appellant Jehan Zeb.
' After due investigation, both the accused were challaned to the Court on being found guilty.
3. Formal charge against accused was framed on 18-10-2001 to which they pleaded not guilty and preferred trial. Thereafter, the prosecution produced 12 witnesses in support of its case.
4. P.W.1 Muhammad Akram draftsman prepared site plan Exhs.P.A. And P.A./1 of the place of occurrence. P.W.2 Tahir Mehmood constable identified the dead body at the time of post-mortem examination. P.W.3 Ghulam Nabi, S.-I. And P.W.4 Muhammad Abbas complainant gave ocular account of this case. P.W.5 Muhammad Gulfraz, Moharrir, A.S.-I. Kept the case property in safe custody in Malkhana. P.W.6 Ghulam Yasin identified the dead body of the deceased and also produced his last-worn clothes to the Investigating Officer. P.W.7 Khushal Khan constable deposited two sealed parcels containing blood-stained cotton and blood-stained clothes to the office of Chemical Examiner, Lahore and two in the office of F.S.L., which contained revolver and empties. P.W.8 Muhammad Afzal is also an eye-witness of this case. P.W.9 Muhammad Ashraf, A.S.- I. Recorded F.I.R. Exh.P.B./1 of this case on the basis of complaint Exh.P.B.
' P.W.10 Dr. Muhammad Naseer, on 4-9-2000 at 12-45 a.m. Conducted post-mortem examination of deceased Muhammad Ilyas and observed following injuries on his body:---
(1) Fire-arm entry wound with no blackening but charring marks on the front of right side of chest in the third intercostals space measuring 1 x 1 c.m. Which was 10 c.m. Superior medial to the right nipple corresponding with holes in the shirt.
(2) Fire-arm exit wound on the back of right side of chest measuring 2 x 1 c.m. In the 5th intercostals space in midclavicular line posteriorly corresponding hole in the shirt.
(3) Fire-arm entry wound with no blackening but slight charring mark on the right side of front of chest measuring 1 x 1 c.m. Which was 1 c.m. Below the nipple in the 5th intercostals space.
' According to P.W.10, the deceased sustained fire-arm injuries over the right side of chest which resulted in rupture of right lung causing collection of blood in the right plural cavity leading to loss of function of right lung plus pressure effects over the heart leading cardiac tamponade causing death. All the injuries were ante-mortem and sufficient to cause death in ordinary course of nature.
Time between injury and death was one hour and between death and post-mortem examination was 4/4-30 hours.
' P.W.11 Muhammad Ilyas A.S.-I. Accompanied Shaukat Hayat, S.-I. To the hospital for post-mortem examination and also received last-worn clothes of the deceased from the doctor and handed over the same to Investigating Officer P.W.12 Shaukat Hayat S.-I. Is the Investigating Officer of this case. He deposed to prove the investigation conducted by him.
5. After recording above prosecution evidence, both the accused were examined under section 342, Cr.P.C. Wherein they denied the prosecution evidence and have taken a plea that a quarrel took place in between their children and that of deceased. At about 8-30 p.m. The deceased and his companion namely Khalid, Tahir, Abbas, Fayyaz and Afzal armed with Dandas launched an attack and injured them. Appellant Jehan Zeb on seeing his wife in pool of blood and to save their lives pulled out his pistol and fired in the air but the bullet hit the deceased Muhammad Ilyas.
Appellant Jehan Zeb also made his statement on oath under section 340(2), Cr.P.C. And produced in his defence Muhammad Bashir A.S.-I. D.W.1 and Dr. Muhammad Naseer D. W . 2 .
6. Learned trial Court, after hearing both sides and going through the evidence on record, convicted and sentenced appellant Jehan Zeb as mentioned above whereas his wife Mst. Taj Bibi was acquitted of the charge.
7. Learned counsel for the appellant has submitted that it is a case of no evidence. There are glaring discrepancies in the statements of P. Ws. Which cannot be ignored easily. The prosecution has suppressed the fact that both the accused, who are husband and wife inter se, were injured during the occurrence and accused Taj Bibi, the wife of appellant Jehan Zeb, also sustained injury upon her head. Learned counsel further argued that occurrence took place in the house of appellant and this fact has been proved by the statement of Police Officer who inspected the spot and made statement before the Court that blood stains were present in the room which belongs to the appellant. The version put forward by the appellant was not rightly appreciated by the trial Court while inflicting punishment. The eye-witnesses of the case are closely related with the deceased, therefore, their testimony is not trustworthy and confidence inspiring. Learned counsel strongly argued that nobody witnessed the occurrence. The recovery of blood from the room which was shown in the site plan as point 8 itself makes the prosecution story doubtful. Moreover, no empty was recovered from the spot and the same was subsequently fabricated in the record as revealed through recovery memo. Exh.P.B. Learned counsel further referred to statement of P.W.4, the recovery witness, according to which he did not enter the house of complainant. It was also not denied that both empties and weapon were sent together to the Forensic Science Laboratory which lost its evidentiary value. It has further been contended that case in hand is case of two versions and the one put forth by the appellant is more probable and near to truth. The statement of P.W.3, who is starwitness of the case, was recorded on 23rd of September, 2000 i.e. After 21 days which also creates reasonable doubts in the prosecution case and the benefit of even a slightest doubt should be given to the accused being favourite child of law. Learned counsel further contended that though occurrence was admitted but it did not happen as alleged by the prosecution. The deceased was aggressor and along with other companions launched an attack upon the house of appellant by entering after breaking the door and caused injuries to the wife of appellant on her head and as a result of injury, blood was also oozed out. On seeing this, in order to save his life, appellant fired in the air and in the meanwhile deceased scuffled with the former and during said struggle, a fire was shot incidentally which hit the deceased and caused his death. In support of his arguments, learned counsel relied upon case-laws titled Nadeem-ul-Haq Khan v.
The State 1985 SCMR 510, Ahmed Din v. Faiz Ahmed and others 1972 SCM R 549, Muhammad Abdullah v. Muhammad Safder Khan and others 1973 SCM R 26, Mushtaq and others v. The State PLD 2008 SC 1 and Liaqat Ali v. The State PLD 2008 SC 123.
8. On the other hand, learned counsel for the complainant has submitted that it is a case of promptly lodged F.I.R., therefore, question of false implication does not arise. The eye-witnesses of the case are very much natural and their statements which are otherwise confidence-inspiring, cannot be discarded merely due to their relationship with the deceased. The presence of the eye- witnesses at the scene of occurrence cannot be doubted as their houses were situated nearby.
Learned counsel further contended that stance taken by the appellant regarding right of self- defence is an afterthought and the documents relied upon in this regard were fabricated subsequently. The occurrence is admitted one. The appellant did not deny the fact of retrieving revolver. The motive was also not denied. There is no enmity coming on record to falsely implicate the present appellant. The medical evidence does not support the version of the appellant as according to him, only one fire was shot incidentally which hit the deceased whereas according to medical evidence, the deceased sustained two fire shots upon his chest, which is vital part of the body. Ocular account is fully in line with the medical evidence. Although empties and the weapon of offence were sent together for comparison to the FSL but mere this fact is not enough to vanish the whole prosecution evidence which is quite consistent. The recovery is only a corroborative piece of evidence and if the case is proved through the evidence of unimpeachable character, this lapse can be ignored and could not be given any due weight. Even the evidentiary value of the site plan is only a corroborative piece of evidence. ; Learned counsel for complainant further contended that the learned trial Court did not properly evaluate the evidence on record regarding role of Mst. Taj Bibi, wife/co-accused of appellant Jehan Zeb as she was the originator of incident and appellant acted under her influence. Learned counsel also prayed for her conviction.
9. Learned Deputy Attorney-General opted arguments advanced by learned counsel for the complainant and prayed for dismissal of appeal.
10. We have heard the arguments of both the learned counsel and minutely examined the record with their able assistance.
11. There is no doubt in our mind that occurrence is admitted one. The motive is also not denied and there is nothing on record through which it could be ascertained that the appellant was falsely implicated in this case. The eye-witnesses are, though, related with the deceased yet their testimony cannot be discarded merely on this score as they were quite consistent on material particulars of the incident i.e. Day, date, time, mode and manner as put forward by the prosecution.
Reliance is placed upon case-law cited as Muhammad Abbas alias Abbasio v. The State 2008 SCM R 1527. The case in hand is a case of two versions and after putting the same in juxtaposition, the version of the prosecution seems more probable, confidence-inspiring and near to truth and deserves preference over the version of the appellant as the same is supported by the evidence of ocular account, recovery of weapon and medical evidence. It is a case of promptly lodged F.I.R.##TE# However, during the course of arguments we came to the conclusion that in fact both the parties were determined to suppress the reality and truth from the Court. In such-like situation it is the duty of the Court to form its opinion on the basis of material available on record. In our opinion there was no occasion for the appellant to exercise his right of self-defence which can only be exercised in case of imminent danger to life and it was not the position in the instant case. While taking this view, we are fortified by the law laid down in case of Muhammad Dilbar v. The State 2002 SCM R 1425. The version put forth by the appellant regarding his action in self-defence does not seem confidence-inspiring and it also lacks any supporting material on file.##TE# It does not appeal to the reason that a person who launched an attack upon the house of appellant after breaking its door, was empty-handed. It is an admitted position that they were empty-handed. The version of the appellant was also not supported by the medical evidence as according to him, only a single fire hit the deceased whereas as per post-mortem report and deposition of Medical officer, there were two fire-arm entry wounds upon the chest of the deceased. The defence of the appellant and that of his wife of having been injured by the complainant is not believable. The injuries were described as minor and Medical Officer was not definite as to whether the injuries were self-inflicted or otherwise. The Investigating Officer stated that when he went to inspect the spot, he did not find any person in injured condition. Presence of blood stains in the room of the house of appellant do suggest that something happened inside the room which both the side suppressed. So while sifting chaff from the grain, it can safely be inferred that wife of the deceased called her husband through a telephone call intimating him about a skirmish took place in between the children of the appellant and deceased. The deceased in response came to the house and went straight to the house of appellant to lodge a protest, where some hot words were exchanged and in a scuffle, on intervention of Taj Bibi, might have been pushed away either by appellant or deceased resulting into injuries by a strike with some hard or pointed object in the room. Had the deceased sustained injuries inside the room and then fell down near the stairs, there have been a trail of blood from the room to the place of dead body. We were of considered view that deceased was done to death outside the room and poll of blood was found available at the scene, which was secured by the Investigating Agency. Ight of self-defence was not available to the appellant against the deceased who was armless. Both sides concealed as to what has appened immediately before this incident. Principle of safe administration in criminal justice, thus, brings the case out of normal penalty of death.
12. In order to meet the ends of justice, we are inclined to dismiss the appeal of appellant Jehan Zeb but with modification of sentence from death to life imprisonment with benefit of section 382- B, Cr.P.C. The findings of the learned trial Court regarding acquittal of Mst. Taj Bibi, co-accused/wife of appellant Jehan Zeb are well-reasoned and do not call for any interference. Hence, appeal filed by the complainant also stands dismissed. Murder reference is answered in negative.