' SAGHIR AHMAD, J.---On conclusion of trial of case F.I.R. No,76 dated 31-5-2004 under section 302/34 P.P.C. Registered with Police Station Shaher Fareed, the learned Additional. Sessions Judge Bahawalnagar vide judgment dated 29-9-2004 while recording acquittal in favour of Muhammad Nawaz, Bashir Ahmad and Khair Muhammad passed conviction against Fateh Muhammad accused/appellant under section 302(b) P.P.C. And sentenced him to death, with further orders to pay Rs,50,000 as compensation to the legal heirs of the deceased failing which to suffer six months simple imprisonment. Criminal Appeal No,308/2004 has been filed by Fateh Muhammad accused/appellant challenging his above conviction and sentence whereas, Criminal Appeal No,321/2004 had been filed by the complainant against acquittal of Bashir Ahmad, Khair Muhammad and Muhammad, however, vide order dated 12-6-2007 already stands dismissed to the extent of Bashir Ahmad and Khair Muhammad, thus it only remains pending to the extent of Muhammad Nawaz acquitted accused.
2. The prosecution case in brief is that two days before the occurrence, Allah Yar brother of the complainant demolished the own outlet from his own land, which was objected to by the sons of Muhammad Nawaz Baloch namely Fateh Muhammad and Muhammad Nawaz, etc. On the pretext that it was their land. Allah Yar, asked them to get the land demarcated, whereupon, on the fateful day Muhammad Nawaz Baloch sent them a message to come at the site for demarcation, whereupon, the complainant Jamal alias Muhammad Iqbal and his brother Allah Yar went to the spot, where Bashir Ahmad armed with rifle came at the spot, hurled abuses and extended threat that he will see who would demarcate the land. The complainant tried to convince him, whereupon, he fired a shot, when he was tried to be apprehended he inflicted butt blow on the right shoulder of the complainant. On hearing the noise, Manzoor Ahmad and Allah Ditta were also attracted to the spot and in the aid of said Bashir Ahmad, Fateh Muhammad accused/appellant armed with .12- bore gun, Khair Muhammad carrying Sota and Muhammad Nawaz empty handed also came at the spot; Khair Muhammad inflicted a Sota on the back of the complainant; Muhammad Nawaz shouted Lalkara, whereupon, Fateh Muhammad fired a shot which hit the thigh of Allah Yar and when he was being taken to Hospital, he succumbed to the injuries. It was further averred in the F.I.R. That accused also had grudge against Allah Yar was a witness in a criminal case against them.
3. After usual investigation, in all four accused persons namely Fateh Muhammad, Muhammad Nawaz, Bashir Ahmad and Khair Muhammad were sent up to face trial. Formal charge was framed to which they pleaded not guilty and claimed to be tried. During trial the prosecution examined eight witnesses which include complainant Jamal alias Muhammad Saj awa-r P.W.4, Manzoor Ahmad P.W.5, who both deposed about the ocular account of the occurrence; Muhammad Ramzan P.W.6 deposed about attestation of recovery on the pointation of accused, Dr. Abdul Ghafoor P.W.3 had conducted the autopsy of the deceased; Muhammad Saqlain Patwari P.W.1 prepared the site-plan, and Zahid Majeed Inspector P.W.8 detailed the investigation notes, whereas, all the remaining witnesses are formal in nature. The accused when examined under section 342 Cr.P.C. Fateh Muhammad in answer to a question as to why this case against him came up with the plea of self defence to the effect that on the day of occurrence Muhammad Nawaz co-accused had reached the spot and saw the water course in their land had been dismantled by the complainant side, when Muhammad Nawaz tried to reconstruct the same, Allah Yar armed with gun along with complainant came at the spot and restrained Muhammad Nawaz who was also given beatings and the fire shot by complainant side had dismissed, meanwhile, he (Fateh Muhammad) armed with gun reached the spot and having heard the noise of fire to save life of his brother, he shot a single fire from the gun which hit Allah Yar deceased. Thus, Fateh Muhammad pleaded that he acted in exercise of right of self-defence and to protect his brother Muhammad Nawaz. The occurrence was sudden and erupted in spur of moment. However, neither of the accused chose to appear in the witness box as their own witness nor even produced any defence. On conclusion of the trial, Bashir Ahmad, Muhammad Nawaz and Khair Muhammad were acquitted of the charge, whereas, Fateh Muhammad was convicted and sentenced as detailed in the opening paragraph of this judgment. Criminal Appeal No,308/2004 assails the conviction and sentence, whereas, Criminal Appeal No,321/2004 challenges the acquittal of the three respondents.
4. We have heard the arguments of learned counsel for the parties and have also perused the record with their assistance.
5. In order to prove the ocular account of the occurrence the prosecution examined Jamal alias Sajawar complainant as P.W.4 and Manzoor Ahmad appeared as P.W.5, who both deposed gave details of the occurrence. Jamal in his statement deposed that two days before the main occurrence, Allah Yar his brother, had dismantled the outlet situated in their land, which was objected to by Fateh Muhammad and Muhammad Nawaz, thus demarcation was offered. On the fateful day they proceeded to the spot of demarcation, when Bashir Ahmad armed with rifle came, abused them and also threatened them. Bashir fired from his rifle and when tried to be apprehended, Bashir inflicted butt of the rifle on the right shoulder of the complainant. Khair Muhammad had a Sota and he inflicted it on the back of the complainant, Fateh Muhammad inflicted fire shot on the thigh of Allah Yar. This witness also stated about the motive that Allah Yar was a witness in a criminal case against the accused persons. Similar is the statement of Manzoor Ahmad P.W.5 and both these witnesses were subjected to cross-examination by the defence. As shall be seen from the contents of the F.I.R. As well as testimony of these prosecution witnesses, one thing becomes quite obvious that both the parties were on a dispute over demarcation of land; the watercourse admittedly had been dismantled by the complainant side i.e, Allah Yar deceased and according to the prosecution story itself, only after that both the parties had agreed to get the land demarcated. Almost similar has been the defence by Fateh Muhammad convict, however, he detailed the occurrence in another manner, showing the complainant party to be aggressor and that Muhammad Nawaz from the accused side who was reconstructing the dismantled watercourse was also given beatings by the complainant side. This part of the defence version finds support from the evidence of Dr. Abdul Ghafoor P.W.3 according to whom, on 14-5-2004 Muhammad Nawaz was brought to him by the police and two bruises, one on the forehead and one on the right little finger of said Muhammad Nawaz were noted by him, the patient also had complaint of pain and swelling of left thumb and that these injuries had been caused with blunt weapon. These injuries on the person of Muhammad Nawaz were suppressed by the prosecution in the F.I.R, thus, the above circumstances lead us to opine that in fact the prosecution had not come forward with whole truth.
6. So far as motive part of the prosecution case is concerned, although the prosecution had tried to set a motive that Allah Yar deceased was a witness against the accused persons, and for this reason he was done to death, but to substantiate this motive no witness or even any document was placed on the record, thus, except assertion of the witnesses, there is not an iota of evidence on the point of motive. Although, the prosecution was not required to set a motive, but where it is specifically alleged, it becomes obligatory for the prosecution to prove the same, on the contrary in the case in hand, the same remains unproved.
7. In view of admission by Fateh Muhammad accused/appellant of having caused injury on Allah Yar, although in self-defence, the medical evidence coming from the mouth of Dr. Abdul Ghafoor P.W.3 would hardly lend any credible B support to the prosecution to prove the aggression of the accused Fateh Muhammad.
8. As regards recovery of crime weapon i.e, Gun P-4 on the pointation of Fateh Muhammad accused/appellant the recovery proceedings were attested by Muhammad Ramzan P.W.6 and while appearing in the Court satisfactorily gave details of those proceedings. Anyhow this recovery is not going to anyway advance the prosecution case as neither the crime empty nor the recovered weapons were sent to the Forensic Science Laboratory for comparison, thus, recovery of gun on the pointation of Fateh Muhammad accused/appellant remains inconsequential.
9. Taking stock of all what has been discussed above, we are convinced that, as the injuries on the person of Muhammad Nawaz (from accused side) were suppressed by the prosecution, the dispute over demarcation of land remains admitted, and the defence plea raised by Fateh Muhammad accused/appellant, these circumstances lead us to conclude that in fact it was sudden fight having erupted in spur of moment, where both the parties acted freely wherein, Muhammad Nawaz from accused side sustained injuries, Allah Yar from the complainant side lost his life. In this view of the matter, the defence taken by Fateh Muhammad accused/appellant appears to be more probable and nearer to reality, but at the same time we are conscious of the fact that Fateh Muhammad, although acted in self defence, yet he exercised his right much more than what actually was required to ward off the immediate threat or attack. Therefore, while maintaining the conviction of Fateh Muhammad accused/appellant under section 302(b) P.P.C, out of abundant precaution we reduce his death sentence to that of imprisonment for life.
Remaining sentence of compensation and imprisonment in default there of, shall remain intact.
Benefit of section 382-B, Cr.P.C, is extended. Criminal Appeal No,308/2004 is disposed of accordingly.
10. As regards, Criminal Appeal No, 321/2004, as discussed above, the same already stands dismissed to the extent of Bashir Ahmad and Khair Muhammad. To the extent of Muhammad Nawaz we have thrashed the impugned judgment of the learned trial Court and see that valid and solid reasons have been recorded by the learned trial Court while extending benefit of doubt to Muhammad Nawaz. Learned counsel for the complainant has not been able to point out any misreading or non- reading of evidence, warranting interference by this Court. This appeal, therefore, fails and is accordingly dismissed.
' Murder Reference is answered in negative death sentence is not confirmed.