' ZAFAR 1QBAL CHAUDHRY, J. Tufail and Hameed appellants have preferred Crl. Appeals Nos.663 of 2003 and 664 of 2003, respectively against the judgment dated 15-9-2003 rendered by the Additional Sessions Judge, Multan whereby on conclusion of trial in case F.I.R, No,347/2001, dated 8- 9-2001 registered under sections 302/34, P.P.C. At Police Station Mumtazabad, Multan, they were convicted under sections 302(b)/34, P.P.C. For committing Qatl-i-Amd of Latif Ahmad deceased and Tufail appellant was sentenced to death while Hameed appellant was sentenced to imprisonment for life.. Both of them were also directed to pay Rs,50,000 each to the heirs of the above said deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo six months R.I. Both of them were further convicted under section 324/34 P.P.C. For causing murderous assault on Hanif Ahmad injured PW and sentenced to seven years' R.I. Each with direction to pay Rs,10,000 each as compensation to injured Hanif Ahmad or in default of payment thereof to undergo R.I. For six months each. All the sentences were directed to run concurrently and benefit under section 382-B, Cr.P.C. Was also extended to both the appellants.
However, through the same judgment, Falak Sher co-accused was acquitted of the charge by the learned trial court while extending benefit of doubt to him. Khawaja Farooq Ahmad complainant has filed Criminal Appeal No,693 of 2003 against the acquittal of Falak Sher and Criminal Revision No,354 of 2003 seeking enhancement of compensation as well as sentence under section 324/34, P.P.C. Awarded to both the appellants. The learned trial court has also sent Murder Reference No,852 of 2003 under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Tufail appellant. We propose to decide all these matters jointly through the present consolidated judgment.
2. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.PA/1) got lodged by Khawaja Farooq Ahmad complainant (PW-1) are that he was resident of Mohallah Muhammadpura, Police Station Mumtazabad. His cousins Latif Ahmad (deceased) and Hanif (P.W.2) lived in his neighbourhood and were zamindars by profession. Tufail and Hameed appellants along with Falak Sher (acquitted accused) who was also brother-in-law of Tufail (deceased) and Hameed (P.W.2) were also residing in the same Mohallah. They used to deal with narcotics business and also extort Ghunda Tax by threatening gentle people. About two years prior to the present occurrence, Muhammad Saleem real brother of the complainant had been injured by Tufail, Hameed appellants and Falak Sher (acquitted accused) for not paying the Ghunda Tax, and in this regard a criminal case was got lodged at Police Station Mumtazabad, but subsequently the matter was patched up as they had excused in a punchayat. However, the accused nourished grudge in their minds. On 7-9-2001, after MAGHRIB Prayer time, Khawaja Farooq Ahmd complainant (P.W.1), Hanif Ahmad (PW-2) and Latif Ahmad (deceased) were talking in front of his house. In the meanwhile, Tufail, Hameed appellants and Falak Sher (acquitted accused) came there and demanded Rs,10,000 as Ghunda Tax from them. On their refusal, harsh words were exchanged whereupon Falak Sher (acquitted accused) asked Tufail and Hameed appellants to teach lesson to them for not giving Ghunda Tax and also for lodging a previous criminal case against them. On the lalkara of Falak Sher (acquitted accused), Tufail appellant brought out a dagger from his Dub and inflicted dagger blow on the person of Latif Ahmad (deceased) hitting on his right hand which acrossed.
Then he inflicted second dagger blow, which hit on left side of his umbilicus who fell down. Hanif Ahmad (P.W.2) came forward to save Latif Ahmad (deceased), on which, Hameed appellant caused a dagger blow on the person of Hanif Ahmad (P.W.2) who received injury on his right hand.
On hue and cry of the complainant, the accused threatened him that if he came near, he would also be dealt with in the same manner. Khawaja Siddique Ahmad and Khawaja Gul Ahmad also reached there and saw the occurrence with their own eyes. Rado Watch of Latif Ahmad (deceased) had also fallen on the ground, which was picked up by Falak Sher (acquitted accused).
All the accused fled away from the spot with their respective weapons. Due to serious condition of Latif Ahmad (deceased), the complainant and Hand Ahmad (P.W.2) took him to Nishter Hospital, Multan. After examination of Latif Ahmad (deceased) and Hanif Ahmad injured (P.W.2), the doctor admitted Latif Ahmad (deceased) in hospital. The complainant remained busy in taking care of his Chachazad Latif Ahmad; (deceased) during the whole night but he succumbed to the injuries. All the accused with their common intention with Ghunda Gardi committed the murder of Latif Ahmad (deceased) and also injured Hanif Ahmad (P.W.2).
3. The investigation of this case was conducted by Muhammad Ayyub, S.I./S.H.O. (P.W.13) and Fiaz Ahmad, Inspector (P.W.12), and during the investigation, the dead body of the deceased was inspected, injury statement and inquest reports were prepared, statements of the witnesses under sections 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, both the appellants were arrested on 18-9-2001 and on 20-9-2001, Tufail appellant while in police custody led to the recovery of blood stained dagger (P.5) from the western room of his house, which was lying with the western wall and after completion of the investigation report under section 173, Cr.P.C. Was submitted in the court.
4.. At the commencement of the trial, the learned trial court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellants and the acquitted co-accused framed the charge under section 302/34, P.P.C. Against them on 22-12-2001, to which they pleaded not guilty and claimed to be tried.
5. During the trial the prosecution produced as many as fourteen witnesses in support of its case.
The ocular account of the incident in question was furnished by Khawaja Farooq Ahmad, complainant (P.W.1) and Hanif Ahmad injured (P.W.2), who also deposed about the motive while P.W.3 Sh. Muhammad Sarfraz, Draftsman on the pointing out of the witnesses and on the instructions of the police prepared scaled site plan. P.W.4 Tahir Masood, A.S.-I. Was handed over two sealed parcels containing blood stained earth and blood stained dagger for keeping the same in Malkhana while Abdul Shakoor, Constable (P.W.5) was given last worn clothes of the deceased by the doctor who produced the said articles before the I.O. Saeed Ahmad (P.W.6) was the witness of blood stained earth while Ijaz .Hussain Constable (P.W.7) had delivered the sealed parcel containing a dagger for onward transmission to the office of Chemical Examiner, Lahore. The medical evidence was provided by Dr. Waseem Sarwar, (P.W.8), who medically examined Latif Ahmad (deceased) and Hanif Ahmad injured (P.W.2) while Dr. Tariq Nawaz Babar, Demonstrator (PW-11) on 8-9-2001 at .1-20 p.m. Had conducted the postmortem examination on the dead body of Latif Ahmad (deceased). Arshad Ali Constable (PW-9) had given a sealed parcel of dagger to Ijaz Ahmad Constable for onward transmission to the office of Chemical Examiner, Lahore. P. W. 10 Muhammad Arif, A.S.-I. On receipt of written application of Khawaja Farooq Ahmad complainant (Exh. PA), recorded the formal F.I.R. (Exh.PA/1) without any addition or omission. Muhammad Ayyub, S.I./SHO (P.W.13) and Fiaz Ahmad, Inspector (P.W.12), had stated about the various steps taken by them during the investigation of this case. P. W . 14 Muhammad Ashraf Constable had delivered one sealed parcel containing blood stained earth to the office of Chemical Examiner, Lahore.
6. In their statements recorded under section 342, Cr.P.C. The appellants and the acquitted accused had denied and controverted the allegations levelled against them by the prosecution and professed their innocence. However, to a question that "Why this case against you "The PWs are closely related inter se and also to the deceased and none from the population of about one thousand houses of the Mohalla, came forward to support the prosecution version. In fact, my father retired Subedar Khurshid Alam was running a Karyana shop in the Mohalla for the last about 20 years prior to this occurrence and the deceased had purchased various items from his shop on loan and was reluctant in the payment of that loan amount. My father used to demand the same from the deceased. On the day of occurrence, my father demanded the same from the deceased when he passed in front of his shop which was taken ill by the deceased and he attacked my father and abused him. I heard the alarm while I was in my house which is at a little distance from the shop of my father. I came out and reached the shop and saw the deceased having over powered my father and was also abusing him and in that process his wearing `Chadar' was removed. My father was an old man aged about 80 years and was also weak due to illness. I tried to save my father from the clutches of the deceased whereupon, the deceased left my father and grappled with me and he called his relatives in a loud voice asking them to bring arms and ammunition. At that time, I picked up a Chhuri lying in the shop in order to save myself and my father. In the struggle the deceased was injured and he ran towards the house of Khawaja Farooq complainant and fell down on the ground. It was some darkness at that time and none of the P'Ws was present there. The deceased was a short tempered man and he had earlier quarrelled and disgraced his neighbours. The prosecution has cooked up false evidence."
' In reply to the aforesaid question, Hameed appellant and the acquitted accused also professed their innocence. Neither the appellants or the acquitted accused had opted to make statements on oath under section 340(2), Cr.P.C. Nor they produced any evidence in their defence.
7. Upon conclusion of the trial the learned trial court, after hearing the learned counsel for the parties found the prosecution's case against the appellants, to have been proved beyond reasonable doubt and convicted and sentenced them as detailed above. However, Falak Sher co- accused was acquitted through the same judgment. Hence, all these matters before this Court.
8. The learned counsel for the appellants contends that the incident had taken place in a different manner than the same narrated by the eyewitnesses; that the defence plea is more plausible, which is borne out from the record and the eyewitnesses had failed to prove any motive against the appellants for committing the murder of the deceased; that both the eyewitnesses were closely related inter se and with the deceased, who had made false statements; that both the eyewitnesses were confronted with their previous statements on material points and as such the prosecution evidence was not trustworthy, which has been wrongly relied upon by the learned trial court for recording the conviction against the appellants. He further maintained that the eyewitnesses, had not witnessed the incident and they were not present at the spot at the time of occurrence; that the occurrence had taken place at the spur of moment in the heat of passion only in order to save, the prestige of his old father by Tufail appellant whereas the co-accused were included while widening the net; that the conduct of the complainant itself shows that he was not present at the spot as he made no efforts to save the life of the deceased and Muhammad Hanif (P.W.2) had been wrongly shown as an injured eyewitness, which is evident from the fact that there was a difference of 7 numbers in the C.O.Ds, of Latif and Hanif, but the doctor (P. W.8) had wrongly written that Latif had been examined at 8-15 p.m. And Hanif at 8.20 g.m.; that at the most the offence to the extent of Tufail appellant would fall under section 302(c), P.P.C. And the imprisonment of about 8 years without remissions already undergone by him will meet the ends of justice while Hameed appellant may be acquitted, who had been falsely implicated as an accused in the instant case.
9. On the contrary, the learned counsel for the complainant and the learned Deputy Prosecutor General on behalf of the State have maintained in unison that the occurrence had taken place on 7-9-2001 after Maghrab Prayer and the first preference of the complainant was to save the life of the deceased, who had taken the deceased to the hospital as his condition was serious and for the said reason the F.I.R. Was got lodged on 8-9-2001 and in such circumstances the delay having been fully explained cannot be held fatal to the prosecution version; that heinous offence had been committed by the appellant; that both the eyewitnesses had sufficiently explained their presence at the spot at the time of occurrence as they were the natural witnesses and the incident had taken place in front of the house of the complainant and P.W.2 Hanif Ahmad was also present at the time of occurrence as he was also resident of the same vicinity; that the motive was proved beyond any shadow of doubt and there was no reason to falsely implicate the appellants and the co-accused in the present case if they had not participated in the occurrence in hand; that the eyewitnesses remained consistent on material points regarding the time, place of occurrence, and the manner in which the occurrence had taken place; that the medical evidence fully supported the prosecution's case and the prosecution had succeeded in proving the case against the appellants beyond any shadow of doubt, hence the Criminal Appeals filed by the appellants- convicts may be dismissed while the Criminal Appeal and Criminal Revision Petition filed by Khawaja Farooq Ahmad complainant/ petitioner may be accepted as there was no reason for acquittal of Falak Sher accused when the prosecution evidence had been believed to the extent of the appellants-convicts and that compensation awarded to the legal heirs as well the injured P.W.
May also be enhanced besides the confirmation of the death sentence as it was a case of heinous nature wherein an innocent person had been killed by the appellants and the acquitted accused Falak Sher in a brutal manner on account of previous enmity. Concluding his submissions, learned counsel submits that prosecution had fully proved its case through motive, ocular account, medical evidence and the recoveries and even there are no mitigating circumstances in favour of any of the appellants.
10. We have heard the learned counsel for the parties and perused the record with due care and caution.
11. The occurrence in the present case had taken place on 7-9-2001 after Maghrab Prayer within the area of Mohallah Muhammadpura 1-1/2 k.m. Towards North West from Police Station Mumtazabad District Multan while the matter was reported by Khawaja Farooq Ahmad complainant (P.W.1) through application (Exh. PA) submitted to Muhammad Ayyub, S.I./SHO (P .W. 13) at Nishtar Hospital, Multan on 8-9-2001 at 6-30 a.m. On the basis of which formal F.I.R. No,347 (Exh. PA/1) was drafted by Muhammad Arif, A.S.-I. (P.W .10) at the Police Station on 8-9-2001 at 7.10 a.m. Under section 302/ 34, P.P.C., and as such there was sufficient delay in registration of the F.I.R. The claim of the prosecution is that the deceased A had firstly been taken to hospital and due to this reason the delay had occurred. Khawaja Farooq Ahmad complainant (P. W.1) claimed that after the occurrence he had immediately taken both the injured, Latif Ahmad (deceased) and Hanif Ahmad to Nishtar Hospital where Dr. Waseem Sarwar (P.W.8) had medically examined Latif Ahmad (deceased) at 8-15 p.m.
And Hanif Ahmad injured (P.W.2) at 8-20 p.m. The Police Station was at a distance of 1-1/2 k.m.
From the place of occurrence only, but none bothered to intimate the police and the case was got registered only after the death of the deceased. During the cross-examination Dr. Waseem Sarwar (PW-8) admitted that he had examined both Latif and Hanif as private cases and there was no request from the police to that effect. He also admitted that C.O.D. Number in respect of Latif Ahmad was 48967 while that of Hanif Ahmad was 48974 and there was a difference of seven numbers in spite of the fact that both of them had arrived together. He further admitted that he did not apprise the police with regard to the arrival of Latif Ahmad and his companion and Latif Ahmad was fully conscious and he had himself told him that he was feeling bodily pain. He also admitted that he had not written the time of examination in the column, date of examination in the heading of the M.L.C. On the other hand, Khawaja Farooq Ahmad complainant (P.W.1) during the cross- examination stated that he himself, Khawaja Siddique Ahmad and Khawaja Gul Muhammad had picked up Latif from the ground and placed him in the Jeep, Khawaja Siddique Ahmad P.W. Was also a brother of Latif deceased while Khawaja Gul Muhammad P.W. Was his father and father-in- law of Latif deceased and Muhammad Hanif, injured (P.W.2), but none of them bothered to report the matter to the police in spite of the fact that Police Station Mumtazabad was just at a distance of 1-1/2 k.m. From the place of occurrence. In such circumstances it can safely be inferred that the F.I.R. Was got recorded with delay and the intervening time might have been consumed in concocting the prosecution story with due B deliberation and preliminary investigation after calling for close relatives of Latif deceased to become witnesses. Hence, the F.I.R. Cannot be used as a corroborative piece of evidence to the ocular account and the prosecution evidence has to be seen with utmost care and caution.
12. To prove the ocular account the prosecution produced Khawaja Farooq Ahmad complainant (P.W.1) and Hanif Ahmad injured (P.W.2). Khawaja Farooq Ahmad complainant (PW-1) was brother- in-law (Behnoi) as well as paternal cousin of Latif Ahmad deceased while Hanif Ahmad injured (P, W.2) was real brother of Latif Ahmad deceased. Both the eyewitnesses were related inter se and with the deceased closely. Moreover, Khawaja Siddique Ahmad was also a brother of Latif deceased and Kh. Gul Muhammad P.W. Was his father and father-in-law of Latif deceased and Muhammad Hanif P.W. No doubt relationship alone is not sufficient to term them as interested witnesses, but the P. Ws. Are bound to explain their presence at the spot with sufficient reasons. The complainant (P.W.1) during the cross-examination admitted that house of the deceased and his brothers was not adjacent to his house and the house of the deceased was not in their lane, but the same was in the lane of the appellants and also adjacent to the house of the accused towards East. P. W.1 during the cross-examination admitted that Falak Sher (acquitted accused) was posted as Sub-Engineer in the Telephone Department and now a days he was posted as D.D.O. In that Department. He also admitted that Subedar Khurshid Alam was running a Karyana shop in the Mohallah but his shop was just known as Karyana shop otherwise it was being used for the trade of narcotics. In the same breath he admitted that Subedar Khurshid Alam did not deal in narcotics but Tufail and Hameed appellants had been dealing in narcotics in this shop. However, P.W.1 was not a witness in any case of narcotics against the appellants. He also claimed that he did not ask Muhammad Hanif, Khawaja Siddique and Khawaja Gui Muhammad who were the eyewitnesses in this case to lodge a report of this occurrence at the police station and police on its own had reached Nishtar Hospital in the morning without any type of effort on his part. On the other hand, P.W.2 Hanif Ahmad during the cross-examination admitted that 15/20 persons remained with them in the hospital during the night before the death of Latif Ahmad deceased and they had been discussing with each other about the present occurrence, but they did not bother to report the matter to the police. Even otherwise, P.W.1 had failed to tell the place/Ward where, Khawaja Latif Ahmad D died and he also did not give the time of his death.
13. P.W.1 during the cross-examination claimed that application Exh.PA was got written from some one amongst themselves just 10/15 minutes before the arrival of Thanedar in the hospital. During the cross examination P.W.1 Khawaja Farooq Ahmad and P.W.2 Hanif Ahmad stated that the police reached Nishtar Hospital at about 6 or 6-30 a.m. During the cross-examination he admitted that he did not mention the time of death of Latif in application (Exh. PA) and he could not tell any reason for omitting the same. On the other hand, P.W.2 Hanif Ahmad during the cross-examination stated that he was matriculate while Khawaja Farooq (P.W.1) had passed F.Sc from Multan. In this view of the matter, there was no reason for the complainant Khawaja Farooq Ahmad (P.W.1) for not reducing the complaint (Exh.PA) into writing in his own hand, if he was present in the hospital. P.W.2 also showed ignorance about the name of the person who had written it, but E claimed that he was a friend of Khawaja Farooq Ahmad.
14. P.W.1 during the cross-examination shows lack of knowledge if the S.H.O. Had called upon the persons who had collected to say the Jumma Prayer immediately after Jumma Prayer was over, to appear before him and apprise him of the true facts of the case if the same were in the knowledge of any of them. He also showed ignorance if he had participated in that Jumma Prayer or that any of P.W. Was present there. On the other hand, P.W.2 Hanif Ahmad claimed that he was regular prayer sayer, but he did not know if upon the call of the said I.O., Salahu-Din, Rana Umar Daraz, Muhammad Sabir, Qazi Shabbir Ahmad, Ch. Alim Din. Ch. Muhammad Shafi and Ch. Muhammad Saleem had voluntarily appeared before the Inspector/S.H.O. In the premises of the above said mosque and unanimously stated that this occurrence pertained to only one assailant and that both Hameed and Falak Sher were totally innocent being not present at the time of occurrence at the spot. On the other hand, Fayyaz Ahmad, Inspector (P.W.12) explained that after the Jumma Prayer, he stood up in the mosque and announced that if any body wanted to furnish the correct information about this case, he would be welcomed as the matter involved the death of a human being and it was declared that he wanted to finalize the investigation correctly while sitting in the mosque. According to the I/O seven persons namely Ch. Muhammad Saleem, Ch. Muhammad Shafi, Ch. Alam Din, Khawaja Shabbir Ahmad, Muhammad Sabir, Rana Umar Daraz and Haji Salah- uDin had pleaded about non-participation of Falak Sher and Hameed accused in the occurrence.
P. W.12 stated during the cross-examination that the complainant party had tried to 'prevail upon him through recommendations to obtain favour from him and he had recorded this fact during his investigation. Likewise, P.W.13 Muhammad Ayyub, S.-I. During the cross-examination admitted that he was informed by the duty officer that he had received a telephonic message regarding the injury and death of Khawaja Latif Ahmad. As such the complainant (P.W.1) failed to prove his presence at the spot. Similarly, P.W.2 Muhammad Hanif though was an injured witness, but keeping in view the nature of F the injury the possibility cannot be ruled out that it was self suffered. It is strange that the deceased had been got examined at 8-15 p.m. And Muhammad Hanif P.W.2 was shown to be examined at 8-20 p.m., but there was a difference of seven numbers in their CODs, which shows that P.W.2 had been later on made an injured witness being brother of the accused, otherwise he failed to show any plausible reason for his presence at the spot when the alleged occurrence had taken place. Both the eyewitnesses are also found to have made improvements on material points. Which shows that they were capable of making false evidence. It is also found that except for the oral statements of the eye-witnesses, there is no connecting material to support their explanation for being present at the spot. Even otherwise previous enmity existed between the parties. Thus we have no hesitation in holding that both the eyewitnesses had not been able to prove that they had witnessed the incident and their statements in such circumstances cannot be relied upon for maintaining the conviction in a case entailing capital punishment.
15. The motive setup by the prosecution was that the appellants were residents of their Mohallah who were Narcotics Dealers and they used to extort Gunda Tax from the nobles. About two years prior to the instant occurrence, the accused persons -had injured Muhammad Saleem brother of the Complainant for not paying the Gunda Tax, on which, a case F.I.R. No,410/97 dated 3-10-1997 under sections 337-A(i)/337-A(ii)/337-L(ii)/337H(ii)/34, P.P.C. Was registered at Police Station Mumtazabad Multan. Subsequently, matter was patched up between the parties, but the accused kept it in their minds and due to this and also for not paying Gunda Tax, the occurrence had taken place. Admittedly, the accused were residing in the same vicinity where the complainant party was residing. Khawaja Farooq Ahmad, complainant (P.W.1) during the cross-examination admitted that house of the deceased was adjacent to the house of the accused towards East, but no quarrel or fight had ever taken place between the parties before the present incident for about four years after the registration of F.I.R. No,410/1997. If the accused had a motive to cause damage to the complainant party, they could have done the same during this period instead of waiting for such, a long period. During the cross-examination, P. W.1 Khawaja Farooq Ahmad complainant further admitted that he was not a witness in any case of Narcotics against any ' of the accused. He also admitted during the cross-examination that he had not stated in F.I.R. No,410/97 that the accused had injured his brother Saleem for not paying `Gunda Tax' to the accused. He also admitted during the cross-examination that he had been approaching the police regarding the demand of `Gunda Tax' by the accused but he could not tell the name of any officer to whom he reported such a matter. Even otherwise, the motive is always considered to be a double-edged weapon, which cuts both ways. If the appellants had a motive to commit the occurrence, it could also be a reason for their false implication by the complainant party. So we are satisfied that the motive could not be proved through any sufficient evidence.
16. The recovery of dagger from the possession of the appellant was legally inconsequential as it was allegedly effected on 20-9-2001 after about 13 days of the occurrence and it is not expected from the appellant that he would have kept the said dagger intact in order to produce the same before the police for creating evidence against him. Even otherwise, the said recovery had been effected in violation of section 103, Cr.P.C. As public witnesses were not joined in the recovery proceedings. Moreover, the said weapon was not recovered from the place exclusively owned and possessed by Tufail appellant as he was living in a joint family system. So the recovery of dagger was of no use for the prosecution.
17. In view of above discussion, we are satisfied that the prosecution had not I been able to make out a case of Qatl-i-Amd against Tufail appellant. However, we have observed that while making statement under section 342, Cr.P.C, before the learned trial court, Tufail appellant had taken a specific plea, which has been reproduced in para. No,6 ante. It is settled law that if the ocular account is disbelieved and the conviction is to be recorded on the basis of the defence plea taken by the accused, the same has to be believed or rejected in toto and not in a piecemeal to suit the prosecution version. Reference is made to the judgment reported as Sultan Khan v. Sher Khan and others, (PLD 1991 SC 520). From the defence plea taken by the appellant, it is established only Tufail appellant had caused the death of the deceased without any premeditation to save the honour of his father as well as in the exercise of his right of self defence. However, it is found that he had exceeded the same as the deceased was not armed with any weapon and the appellant had also not received any injury. Thus it was a case of exceeded self defence. It had been held by the Hon'ble Supreme Court of Pakistan in PLD 1996 SC 274, that the cases covered by exceptions to the old section 300, P.P. C . Read with old section 304 thereof are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C. As such the offence under section 302(b), P.P.C. Is not made out against Tufail appellant and alternatively, he is convicted under section 302(c), P.P.C. And sentenced to 25 years R.I. However, the direction for payment of compensation or imprisonment in default of payment thereof as directed by the learned trial court is maintained. So far as offence under section 324, P.P.C. For causing injuries to Muhammad Hanif (P.W.2) is concerned, Tufail appellant is acquitted of the said charge. Benefit of section 382-B, Cr.P.C. Shall also be extended to him. With the said alteration, the impugned judgment is modified and L Criminal Appeal No,663 of 2003 filed by Tufail appellant stands disposed of accordingly.
18. So far as case of Hameed appellant is concerned, we have already disbelieved the prosecution version and Tufail co-appellant has been convicted on the special plea taken by him. There is no other evidence on the record to connect him with the alleged crime. The possibility of false implication of the said appellant being closely related to co-convict Tufail cannot be ruled out.
Resultantly, Criminal Appeal No,664 of 2003 filed by Hameed appellant is accepted, the impugned conviction and sentence recorded by the learned trial court against Hameed appellant is set aside and he is acquitted of the charge by extending benefit of doubt to him. He is on bail and shall be discharged of the liability of the bail bonds.
19. Consequently, the death sentence awarded to Tufail appellant is not confirmed and Murder Reference No,852 of 2003 is replied in the negative.
20. No question arises for enhancement of sentence awarded to Hameed, who has been acquitted by us. Resultantly, Criminal Revision No, 354 of 2003 filed by Khawaja Farooq Ahmad complainant having no force is dismissed.
20. Similarly we do not find any reason to interfere with the finding of the learned trial court regarding acquittal of Falak Sher co-accused, who was attributed the role of lalkara only. Hence Cr1. Appeal No,693 of 2003 being devoid of any merit is dismissed.