' KHAWAJA MUHAMMAD SHARIF, C.J.---This judgment will dispose of Criminal Appeal No,1046 of 2002 filed by Ijaz'Ahmad, convict/appellant, who was convicted by the learned Additional Sessions Judge, Sheikhupura vide judgment dated: 20-5-2002 and sentenced as under:-- 25 years RI along with fine of Rs, 1,00,000 Which shall be paid to legal heirs of the deceased; under section 302(b), P.P.C. In default payment of fine to further undergo SI for six months.
Criminal Revision No,620 of 2002 filed by the complainant for enhancement of sentence of the appellant which was admitted to regular hearing shall also be disposed of through this judgment.
2. Brief facts of the case as disclosed by ,Mst. Naseem Akhtar, P.W.10, in complaint Exh. PA, are that on 21-6-2001 at about 11-30 a.m. When the complainant along with her two sons, namely, Tanveer Abbas and Suqlain Abbas and grand son Ali Raza, was present in her house, Muhammad Iqbal came to call her son Tanveer Abbas who did not come back. Allegedly, after a short time, on apprehension, the complainant along with her son Suqlain Abbas and Ali Raza went out to see Tanveer Abbas at the shop of Muhammad Iqbal where they saw that accused Ijaz Ahmad had grappled Tanveer Abbas while Shahbaz Ahmad accused was holding a bottle in his hand and Muhammad Iqbal accused armed with Ice-piker were causing blows with bottle and Soowa to Tanveer Abbas. It was further alleged that Soowa blow caused by accused Muhammad Iqbal hit on the right side of the head of Tanveer Abbas, the second hit on forehead and third on the abdomen. According to the complainant accused Shahbaz Ahmad hit with his bottle on the head of Tanveer Abbas. The injured was taken to Tehsil Headquarter Hospital Muridkay where he succumbed to the injuries.
' The motive set up by the prosecution was that accused party previously got registered a case of theft against the deceased Tanveer Abbas who was acquitted by the Court and the deceased used to demand the expenses incurred by him on the litigation from accused party.
3. Sub-Inspector Muhammad Saleem Ullah, P.W.11, took over the investigation. He, on receipt of information of the occurrence, reached hospital where Mst. Naseem Akhtar, mother of the deceased, narrated the occurrence which was recorded by him and the complaint was sent to police station for registration of the F.I.R. He then prepared inquest report, Exh.PC, injury statement, Exh.PD and went to the place of occurrence, prepared rough site plan, Exh.PL, took into possession blood-stained earth vide memo. Exh.PI, broken bottle was secured vide memo, Exh.PK and on 17-7- 2001 arrested all the three accused. Accused Ijaz while in Police custody on 20-7-2001 got recovered Soowa, P4, which was taken into possession vide memo, Exh.PH. After completion of the investigation all the three accused were sent to face the trial.
4. At the trial, prosecution in order to prove its case produced 11 witnesses in all. The learned Public Prosecutor tendered in evidence reports of Chemical Examiner, Exh.PM, Exh.PN, Exh.PO; reports of Serologist Exh.PP, Exh.PQ, and Exh.PR, and closed the evidence of prosecution. The appellant in his statement under section 342, Cr.P.C. Admitted the commission of offence but in exercise of right of self-defense. However, after conclusion of the trial the appellant was convicted and sentenced as stated above.
5. Learned counsel for the appellant submits that the learned trial Court has disbelieved the prosecution story and acquitted Muhammad Iqbal and Shahbaz Ahmad, real brothers of the present appellant to whom injuries were attributed. It is further submitted that according to F.I.R.
Only Japha was attributed to the present appellant. It is maintained that the appellant had taken the plea of right of self-defence before the investigator and also adopted the same defence before the trial Court in his statement under section 342, Cr.P.C. According to learned counsel it is settled law that when the prosecution story is disbelieved then the statement of the accused is to be taken in totality. It is added that the case of the appellant is fully covered by section 302(c), P.P.C. And the sentence which he has already undergone would be sufficient to meet the ends of justice.
6. Learned Deputy Prosecutor General submits that there are three punctured wounds on the dead body of the deceased and injuries Nos.1, 2 and 6 were sufficient to cause death in ordinary course of nature but admits that the learned trial Court has.Disbelieved the prosecution story.
7. We have heard learned counsel for the parties at great length and gone through the record with their able assistance.
8. In the instant case, the occurrence had taken place at 8-00 a.m. On 21-6-2001 within the revenue estate of village Muridkay which is at a distance of 1.5 kilometer from Police Station City while the matter was reported to the Police by Mst. Nasim Akhtar/P.W.10, mother of the deceased, through written complaint, Exh.PA, in the hospital at 11-30 a.m. The same day and formal F.I.R., Exh.PA, was recorded by Head Cosntable Javed Iqbal.
' The ocular account was furnished by Mst. Nasim Akhtar/P.W.10 and Ali Raza/P.W.9 who is nephew of Mst. Nasim Akhtar. Saqlain, P.W., was given up as being unnecessary. The investigator from the spot took into possession broken bottle and glass-pieces vide memos, Exh.PJ and Exh.PK. Appellant was arrested on 17-7-2001 and he got recovered blood-rained Soova on 20-7-2001 which was taken into possession vide memo, Exh.PH. Dr. Noor-ulHassan, P.W.4, conducted postmortem examination on the dead body of the deceased at 4-00 p.m. On 21-6-2001 and found injuries Nos.1, 2 and 6 with sharp-edge weapon while injury Nos.3, 4 and 5 were opined to be caused with blunt weapon. The duration between injuries and death was stated as three hours while betwteen death and postmortem was given as eight hours.
' Before proceeding further we may mention that Shahbaz Ahmad and Muhammad Iqbal, real brothers of the appellant, were acquitted by the trial Court. Criminal Appeal No,1069 of 2002 against acquittal of the said two real brothers of the appellant was dismissed by a Division Bench of this Court vide order dated 6-9-2005.
' The appellant has admitted the occurrence but took the plea of right of self-defense before the investigator and also before the learned trial Court while giving reply to question No,12 of the statement recorded under section 342, Cr.P.C. Which is reproduced below:-- "I have been falsely implicated in this case on account of party faction. The P. Ws. Are relatives to the deceased and they have made false statements. The incident did not take place in the manner suggested by the complainant and her witnesses. In fact Tanveer Abbas deceased was a bad character and a Goonda. He used to extract money from the people as Jagga at one or the other pretext. Prior to the present occurrence my brother Muhammad Iqbal lodged a theft case against Tanveer Abbas who became proclaimed offender and such after the registration of the case he could be arrested and subsequently he was released on bail. After his release on bail Tanveer Abbas started demanding heavy Jagga Tax at the pretext of his involvement in the criminal case but was refused to do so. On the day of occurrence Tativeer Abbas himself came to my, shop showed rowdyism in a desperate manner he broke open the show case of my shop and after entering my shop he also started throwing away and damaging the commodities of the shop and the bottles. I besighed before him but he extended threats that if a heavy amount is not paid to him he would neither allow me to run a shop nor he would spare me alive. Tanveer Abbas took out an Ustra which he was having with him and attacked upon me and attempted to cause injuries to me.
I apprehended serious danger to my life and property and in exercise of right of private defence I picked (Sua) from my shop and caused injuries to Tanveer Abbas. My brothers Muhammad Iqbal and Shahbaz were not present at the time of this incident. I had no intention to cause the death of Tanveer Abbas and I simply used force against him when I was left with no other option. Tanveer Abbas and his family members are having criminal history. I took up the same plea before the Police. So many persons appeared before the Police who supported my version and consequently my plea was found to be correct by the local Police and the DSP."
It is an admitted fact that the learned trial Court has disbelieved the prosecution story. The settled law of the land is that when prosecution story is disbelieved the Court has to rely upon the statement of the appellant in totality.
' The deceased was not a Masoom ud Dam and has criminal record to his credit. The occurrence had taken place on 21-6-2001. He was arrested on 17-7-2001. His sentence was suspended by this Court on 17-2-2007. He faced the agony of trial and also pendency of appeal before this Court.
Following the law of the land and also the facts and circumstances of this case specially when the occurrence had taken place in, the shop of the appellant, we are of the considered opinion that the case of the appellant is covered by section 302(c), P.P.C. And not 302(b), P.P.C. So the conviction and sentence, which the appellant has already undergone would be sufficient to meet the ends of justice. In this view of the matter, we alter the conviction from section 302(b), P.P.C. To section 302(c), P.P.C. And sentenced the appellant to the period which he has already undergone. He shall be released forthwith if not required to be detained in any other case. The sentence of fine is set aside in view of the law laid down in the case of "Mairaj Begum v. Ejaz Anwar and others" reported as PLD 1982 SC 294.
' With the above modification in conviction and sentence, instant appeal is disposed of and the Criminal Revision No,620 of 2002 filed by the complainant for enhancement of sentence of the appellant is dismissed.