This judgment shall dispose of Crim. Appeal No, 124 of 2006 filed by Muhammad Fiyyaz through his counsel while Crim. Appeal No, 341 of 2007 filed by Muhammad Fiyyaz filed through the Superintendent Jail as both arise out of the same judgment dated 31.03.2006 passed by the learned Additional Sessions Judge, Rawalpindi whereby he convicted the appellant under Section 302(b) PPC and sentenced to imprisonment for life and also directed to pay compensation of Rs, 1,00,000/- to the legal heirs of the deceased as required under Section 544-A, Cr.P.C. and in default in payment of compensation to undergo S.I for six months. Benefit of Section 382-B, Cr.P.C, however, was also extended to him.
2. Prosecution story in brief is that on 20.8.2004, at 3.30 a.m Zakir Hussain made his statement Exh.PH to Liaqat Ali, ASI, P.S. Sadiqabad that he runs a grocery shop at Khanna Chowk near Shan CNG Pump and on the night of said day at 10.30 p.m, after closing his shop he was to leave for his house, meanwhile a young boy aged about 16/17 years holding a black colour bag in his hand came in front of hig shop and started looking at him. On his notice he made vague excuse where after he left for his. house. After wards at 1.15 a.m the said boy came to his residence and gave him repeated churri blows which hit on front of his chest, both sides, on the abdomen and both wrists.
On his hue and cry owner of the house Raja Maqsood Ahmad and his son Raja Jehan Zeb and also other residents of Mohallah gathered there, upon which the said unknown young boy leaving his bag at the spot made good his escape and he can identify him if brought before him. Raja Maqsood Ahmad, his son Jehan Zeb along with other inhabitants of Mohallah took him to RGH for treatment. The statement of injured was sent to the P.S, on the basis of which FIR Exh.PN was recorded. The I.O/PW-9 then conducted formal investigation of the occurrence and during the investigation Zakir Hussain injured died and offence under Section 302 PPC was inserted where after investigation of the case was conducted by Mazhar Hussain S.I and on conclusion of investigation of the occurrence, accused was challaned to the Court.
3. After completion of investigation report under Section 173 Cr.P.0 was submitted before the learned trial Court. Charge was framed against the appellant-accused, who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence.
Statement of the accused was all under Section 342 Cr.P.0 in which he was confronted with all the incriminating material on record against him but he denied the same but in answer to Question No, 3, he stated as under: "It is incorrect. I want to answer this question in detail. I belong to Muzaffabad Azad Kashmir where I was born and also brought up, my father got- me admitted in a Madrasa Jamia Barkatia Saddiquia Rizvi for learning the Holy Qur'an by heart (Haflz-eQuran). This Madrasa is situated at Adyala Rawalpindi. After getting admission in the said Madrasa I was shifted lastly the residence in the same Madrasa at Adyala, Rawalpindi to complete my Haflz-e-Qur'an. My maternal uncle Muhammad Iqbal is also residing at Rawalpindi. It was my routine that I used to visit the house of my maternal uncle Muhammad Iqbal on weekends. On 19/20.8.2004, at evening when I came back after spending my holidays from my village I want to see my uncle Iqbal who was living at Raja Town Rawalpindi, I found his house locked. I thought to inquire from the nearest shop from where my uncle Iqbal used to purchase groceries. When I reached at the shop at about 9/10 a.m, the shopkeeper Zakir Hussain told me that my uncle Iqbal had shifted to some other place, and he had not informed him about his new residence. The shopkeeper offered me to stay with him because it was tco late at night. The shopkeeper also told me that I could go to my Madrasa in the morning after spending night because it was getting late. The shopkeeper-arranged dinner (meal) I and the shopkeeper took meal together at his shop. After taking meal he took me to his residence, which was a room situated on the 3rd floor of a building. I was having a black bag with me in which I was carrying my pocket size diary and clothes. I put my bag near the wall and took off my shirt, laid down on cot (Charpie). The shopkeeper took off his shirt and sat down on the other Charpie. After a while the shopkeeper went out from the room and told me that he will be back after using the Bathroom. I went to sleep. He awoke me up and immediately got hold me from "ozarband". He was having a churri in his other hand, he ordered me to open (united) my "ozarband". I refused, and then he inflicted a blow of churri upon me. I stopped him while holding his hand and snatched his churri. I had under stood that either I will be killed or will be subjected to sodomy, as I was learning Holy Qur'an by heart, I could understand the act of sodomy. After getting of his churri, I had no other option to save my life, honour, therefore, I give him a churri blow, he fell down but he again tried to get hold my legs. I, again gave him a churri blow, he started shouting. My intention was only to injure him just to save my own life and honour and nothing more. On his hue and cries I ran away from the spot and in hurry I put on his shirt. I left my black bag in his room. There was no body in the street rather any streetlight was on. I managed to escape. There were six hundred rupees in the pocket of his shirt, which I spent while going back to Muzaffarabad. I only injured the shopkeeper to save my own life and honour."
The appellant-accused neither opted to appear as his own witness in disproof of allegations levelled against him as required under Section 340(2) Cr.P.0 nor did he produce defence evidence.
5. I have considered the submissions of the learned counsel for the parties and gone through the record.
6. The occurrence as stated by the complainant in the FIR took place on 20.08.2004 at 1.15 a.m, in odd hours of the night and it appears that presence of PW-7 and PW-8 on the venue as stated by them, is not appealing. The witnesses mentioned in the- FIR are not the resident of the locality; therefore, their presence at the spot is not natural. Motive of the occurrence was not alleged in the FIR. On the other hand, the appellant accused himself in his statement under Section 342 Cr.P.0 candidly admitted the commission of crime but according to his version the deceased intended to commit sodomy upon him, to fulfill his lust tied appellant to control over him, while having churri in his hand. The appellant-accused in order to resist the assault and to save his honour and life snatched the churri from the appellant-accused and injured him in his self-defence. While putting both version in juxtaposition the plea of the appellant seems to be more plausible, as same was his first version s admitted by PW-10 Mazhar Hussain, S.I. The venue of occurrence was house of the deceased where he was living alone. The eye-witnesses admitted in cross-examination that they saw the accused when he was running away from the spot. This fact further show that eye- witnesses were not aware about the actual cause of occurrence. Therefore, I can safely conclude that the occurrence was result of reasons as stated by the appellant, in order to save his honour and life and the act of accused is to be adjudged at the touch stone of evidence available on record, in accordance with principle of administration of justice in criminal case. The above discussion would show that this was a case wherein none of the eye-witnesses; saw the occurrence rather there were only two persons present at the time of occurrence one was the accused-appellant and the other was complainant/deceased and the plea taken by the appellant is more convincing than the version of the complainant-deceased on appreciation of evidence as a whole. In this view of the matter the prosecution is unable to prove its case against the appellant within the meaning of Section 302(b) PPC rather in view of the statement of the appellant-accused winch is to be believed in toto if relied upon for the purpose of conviction and sentence as exculpatory part of the statement cannot be excluded, hence the case of the appellant-accused falls within the purview of Section 302(c) PPC, as the occurrence took place when the deceased made an effort to commit sodomy with the appellant-accused who was a boy of tender age (16/17 years) as per version of the FIR itself and there was no allegation against the appellant-accused that he had entered in the premises of the complainant-deceased for the purpose to commit theft or decoity rather he was taken at the venue of occurrence by the deceased himself. So keeping in view the facts and circumstances of this case the conviction of the appellant Muhammad Fiyyaz is altered from Section 302(b) PPC to Section 302(c) PPC and sentence is accordingly reduced to seven years R.I giving him benefit of Section 382-D, Cr.P.C. Keeping in view the facts and circumstances of the case the sentence of compensation under Section 544-A, Cr.P.0 is set aside.
Resultantly, this appeal is disposed of with the above modification in conviction and sentence awarded to the appellant.