1. Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 58 of 2006 filed by Abdul Ghaffar and Mst. Yasmeen Pathani, both husband and wife, who were convicted and sentenced by learned Sessions Judge Chakwal vide judgment dated 26.1.2006 as under: Death and to pay compensation to the tune of Rs, two lacs each, in default six months RI under Section 302(b) read with Section 34 PPC for committing the qatl-e-amd of Arshad Mahmood.
2. Seven years RI with a fine, of Rs, 50,000/- each in default six months RI under Section 342/34 PPC for attempt to commit the murder of Rashid Mahmood, Muhammad Yasin and Waheed Ahmad injured.
3. Three years RI each and to pay daman of Rs, 50,000/- each, in default six months RI under Sections 337-F(ii) and 337-L(ii) read with Section 34 PPC.
4. Murder Reference No, 87 of 2006 for confirmation or otherwise of death sentence of both the appellants shall also be replied through this single judgment.
2. Brief facts of the case as disclosed by Rashid Mahmood complainant are that he was running a fruit rehri in Chappar bazaar, Chakwal, a few days prior to the occurrence, Waheed his Bahnoi (husband of his sister) came from Karachi, Abdul Ghaffar alias Biloo, bother of Waheed had given his house on rent; he (Waheed asked his brother Abdul Ghaffar to get the house vacated but Ghaffar did not get the house vacated rather belaboured Waheed; on this Waheed kept his residence along with his family in a rented house near Nishat Cinema; allegedly on 19.5.2005, Waheed again went to the house of his brother Abdul Ghaffar and asked him for vacation of his house; upon this Abdul Ghaffar quarreled with him and injured his hand with blow of Sickle; Waheed then went to the complainant and asked him to visit and talk with Abdul Ghaffar about his house, at about 2 p.m., the complainant along with his brother Rashid Mahmood, paternal cousin Muhammad Yaseen and Waheed Ahmad went to Ghaffar in a rickshaw in Moti bazaar; as soon as they alighted in the lane from the rickshaw, Abdul Ghafoor and his wife Mst. Yaseem Pathani while armed with pistols stated firing upon them; the shot fired by Abdul Ghaffar landed on the left armpit, left deltoid over his chest and abdomen and he fell down; then Mst. Yasmeen Pathani opened firing which hit the complainant on both sides of his upper chest and shoulders and he also fell down. It was further alleged that Abdul Ghaffar again fired upon the face/mouth of Muhammad Yaseen while Mst. Yasmeen Pathani gave a butt blow of pistol at the skull and thumb of his left hand. According to complainant, both the accused while firing in the air went their house.
5. The injured were taken to the hospital in rickshaw by the people.
6. The motive alleged was demand of Waheed for vacation of his house by Abdul Ghaffar and even prior to the occurrence, there had been altercation between both the brothers.
3. The investigation of the case was taken over by Iftikhar Hussain SI, PW.
14. He on receipt of information about the occurrence went to Emergency ward of the hospital where Rashid Mahmood in injured condition made statement which was reduced into writing Ex. PO and was sent to Police Station for registration of the formal FIR Ex. P0/1. The Investigator also recorded statements of injured Waheed and Yaseen. The injury statement of Waheed PW is Ex. PF; Rashid Mahmood Ex. PD and that of Yaseen Ex. PF. The injury statement of Arshad Mahmood is Ex. PH. From the spot the Police Officer took into possession two crime empties of 30-bore pistol into possession vide memo.
7. Ex. PT. Accused Mst. Yasmeen Pathani was arrested on 2.5.2005. She while in Police custody got recovered a 30-bore pistol P. 3 which was taken into possession vide memo. Ex. PN.
8. On 29.5.2005, Arshad Mahmood injured expired. The Investigating Officer went of DHQ hospital and prepared the inquest report Ex. _PK. Accused Abdul Ghaffar absconded and was ultimately arrested by ASI Muhammad Saeed on 23.10.2005. During physical remand, the accused on 29.10.2005 got recovered a .30-bore pistol P. 5 which was secured vide memo. Ex. PS.
9. After completion of investigation, both the accused were sent to face the trial.
4. At the trial prosecution in order to prove its case produced 14 witnesses in all. The learned Public Prosecutor tendered in evidence report of the Chemical Examiner Ex. PW, report of the Forensic Science Laboratory Ex. PX report of the Serologist Ex. PY and closed the case of prosecution. The accused in their statements under Section 342 Cr.P.C. pleaded false implication. After conclusion of the trial, the accused were convicted and sentenced as stated above.
10. Learned counsel for the appellants submits that it is a case of two versions and if both the versions are put in juxta-position, the version of the defence seems to be more plausible and convincing one. According to learned counsel, in fact the complainant party was aggressor and the deceased as also the injured PWs in order to take forcible possession of the house attacked upon the appellants who in their right of self-defence resorted to firing. Further submits that Waheed PW, real brother of appellant Abdul Ghaffar was not produced by the prosecution and the presumption is that had he been produced, he would not have supported the case of prosecution. It is next submitted that two crime empties recovered from the spot matched with the pistol recovered on the pointation of Yasmin Pathani, appellant. The nutshell of arguments of learned counsel for the appellants is. that both the appellants are entitled to acquittal.
11. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant submits that it is a case of promptly lodged FIR; ocular account is fully corroborated by medical evidence; PWs 12 and 13 have fully supported the case of prosecution they had no and reason to falsely implicate the appellants; the eye-witnesses have corroborated each other on all material points; despite the test of cross-examination, their testimony remained unshattered; the defence version is false and after thought and that at the time of occurrence, Mst. Ghazala was not present at the spot. Concluding his submissions, learned counsel submits that the prosecution has proved its case against the appellants to its hilt.
12. We have heard learned counsel for the parties at length and have gone through the record with their able assistance.
13. In the instant case, the occurrence had taken place at 2 p.m. on 19.5.1995 in Moti bazaar which is at a distance of three furlongs from Police Station City Chakwal while the matter was reported to the Police in the hospital by Arshad Mahmood through written complaint Ex. P0/2 at 3.30 p.m. the same day and formal FIR Ex. PO was recorded by Iftikhar Hussain SI.
14. The deceased in this case is Arshad Mahmood while the injured are Rashid Mahmood, complainant (PW. 12), Waheed, not produced and Muhammad Yaseen PW. 13.
15. The ocular account was furnished by Rashid Mahmood and Muhammad Yaseen.
16. Dr. Muhammad Azam Samore, PW-1 at 2.30 p.m. on 19.5.2005 medically examined Waheed and observed two injuries, one with sharp-edged weapon and other blunt. Both the injuries were opined to be fresh. On the same day, Rashid Mahmood was medically examined. There were four injuries on his person two with fire-arm and two with blunt weapon. The said doctor also examined Muhammad Yaseen on 19.5.2005 and found a fire-arm injury on his person.. Arshad Mahmood was also medically examined Muhammad Yaseen on 19.5.2005 and found a firearm injury on his persona Arshad Mahmood was also medically examined by the said doctor and the doctor observed five fire-arm injuries on his person.
17. Dr. Khalid Azadar, PW. 2 on 29.9.2005 conducted post-mortem examination on the dead body of deceased Arshad Mahmood. The duration between injuries and death was opined 14 days while between death and post-mortem as six hours.
18. Dr. Shakil Ahmad DW. 1 on 21.5.2005 medically examined Mst. Yasmin Pathani and observed one healed abrasion on upper part of right scapular region.
19. From the place of occurrence two crime empties of .30-bore pistol were secured on 19.5.2005.
20. Appellant Yasmin was arrested on 21.5.2005. She on 22.5.2005 got recovered pistol P. 3 which was taken into possession vide memo. Ex. PN. The crime empties wedded with the pistol recovered on the pointation of Yasmin Pathani, appellant.
21. Here we may describe relationship inter se between the deceased, PWs and the appellants inasmuch as Waheed Mr, not produced is real brother of Abdul Ghaffar, appellant, Rashid Mahmood complainant and Arshad Mahmood deceased are both real brothers and brothers in law ( ) of Waheed PW while Muhammad Yaseen PW is first cousin of Rashid and Arshad.
22. The motive set up was that the house of Waheed PW not produced was in occupation of Abdul Ghaffar appellant, he wanted to get the same vacated but Ghaffar refused upon which a quarrel had taken place prior to the occurrence and a sickle blow was also given to Waheed by Abdul Ghaffar, convict appellant. Waheed PW was the most important witness to prove the motive but he was not produced. The presumption is that had he been produced he would not have supported the case of prosecution. If Waheed PW wanted to get the house vacated, he should have filed the ejectment petition before a Court. Allegedly, Waheed PW had received a sickle blow at the hands of Abdul Ghaffar but the matter was not reported to the Police.
23. It is a case of two versions; one put by the prosecution and other introduced by the appellants.
24. Though the two eye-witnesses namely Rashid Mahmood and Muhammad Yaseen have supported the case of prosecution but there is also a counter version of the case put forward by Mst. Yasmeen Pathani. The same is reproduced: "It is a fact that Rashid Mahmood, Arshad mahmood, Waheed Ahmad, Nasir and Yasin alias Kaloo attacked at our house in order to snatch the property and dispossesses from there. There was also a dispute of marriage of Mst. Ghazala Yasmeen. They were armed with pistols and sticks/dandas and were raising lalkara. They came on first flour of our house and challenged that they would dispossess me as well as my husband and would take the possession of the house as well as the shops. Arshad and Rashid caught hold of me and slapped on my face. They also dragged me towards the down-stairs and the lane. Arshad torn away my clothes: Meanwhile Muhammad Yasin PW came inside and raised lalkara that they would catch hold of my daughter Mst. Ghazala Yasmin. I leapt forward to rescue my daughter as well as to save her modesty and beseeched that they should have us. Meanwhile, Waheed Ahmad PW appeared on the scene with a pistol which I and my husband snatched from him. My daughter took over the pistol in her hands. Instantly, Nasir Mahmood caught me from my hair and challenged who would fire. Hearing their my daughter fired upon the assailants and the pistol went of and that was taken by Nasir Mahmood. At the same time, I informed the Police. The Injured assailants left us at the spot and fled away."
25. Mst. Ghazala Yasmeen daughter of the appellants appeared as DW.
3. She had stated that she made fire upon the complainant party and made an application Ex. DE which is at Page 146 of the paper book to SP Chakwal narrating the same facts which were stated before the trial Court by Mst.
26. Yasmeen Pathani, appellant while making statement under Section 342 Cr.P.C. Convict Mst.
27. Yasmeen Pathani also made statement on oath as required under Section 340(2) Cr.P.C. to rebut the prosecution evidence.
28. We have also gone through the first version of appellant Yasmeen which she took at the time of her arrest on 21.5.2005. In the case of Muhammad Yaqub vs. The State (PLD 1969 Lah. 548) it has been held by a Division Bench that it is the duty of the prosecution to place all the evidence before a Court to enable it to arrive at a correct decision. In case where there is a counter version of the incident, it is often of greatest importance for an accused to be able to show that his own version was put forward at the earliest possible opportunity and Courts of law schedule not deprive an accused his right to make use of such a statement, if he chooses to do so.
29. From the analysis of the evidence on record we neither believe the prosecution story nor the defence of the appellants as put in their statements under Section 342 Cr.P.C. but are of the view that the first version taken by Mst. Yasmeen Pathani, appellant in her statement made before the Police on 21.5.2005 when the occurrence had taken place on 19.5.2005, is more plausible and convincing one. In her first version, she has stated that it was the complainant party which had attacked upon their house, the members of the complainant party wanted to drag her daughter Mst. Ghazala Yasmeen, PW Waheed appeared on the scene with a pistol which was snatched by her and her husband and that she fired in right of self-defence of person and property which resulted into death of Arshad Mahmood 14 days after the occurrence and injuries on three persons.
30. It is to be kept in mind that admittedly the occurrence had taken place in the same street where the appellants used to reside.
31. Two crime empties recovered from the spot matched with the pistol recovered on the pointation of Yasmeen Pathani appellant and not the pistol which allegedly Abdul Ghaffar had got recovered.
32. Appellant Mst. Yasmeen was also medically examined by Dr. Shakil, DW. 1 on 21.5.2005 and injury on her person was found to have been caused with blunt weapon and the defence itself brought on record that duration of Injury No, 1 can be extended up to five days.
33. In the case of Syed Ali Bepari vs. Nibaran Mollah and others (PLD 1962 Lah.502), it has been observed that it is a normal incident of adversary proceedings to maintain one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances.
34. After going through the evidence brought on record from both the sides and following the dictum laid in the case of Muhammad Yaqub and Syed Ali Bepari, supra, we are of the considered opinion that Abdul Ghaffar appellant though was present at the spot but he being an addict did not fire at the deceased or the complainant party but the shots were fired by Mst. Yasmeen Pathani in exercise of right of self-defence of her person and property.
35. Resultantly, appeal filed by the appellants to the extent of Abdul Ghaffar appellant is accepted in toto, conviction and sentence recorded against him by the trial Court vide impugned judgment is set aside and he is acquitted of the charge. The death sentence of Abdul Ghaffar appellant is NOT confirmed and Murder Reference to his extent is answered in the Negative. He is in jail and shall be released forthwith if not required to be detained in any other case.
36. So far as appellant Mst. Yasmeen Pathani is concerned, her conviction under Section 302(b) PPC is set aside, she is convicted under Section 302(c) PPC and sentenced to undergo. RI for ten (10) years with the benefit of Section 382-B, Cr.P.C. The conviction and sentence recorded against her under Sections 324/337-F(ii), 337-L(ii) PPC are however maintained. All the sentences awarded to her shall run concurrently. The sentence to pay compensation of rupees two lacs is set aside as it was the deceased and the injured PWs who had taken the law into their hands and were responsible for the incident. For this view I am supported by a dictum of the apex Court reported as Mairaj Begum us. Ejaz Anwar etc. (PLJ 1982 Supreme Court 435).
37. Her death sentence is also Not confirmed and Murder Reference is answered in the Negative.