' MALIK SHAHZAD AHMAD KHAN, J.---Aziz-ur-Rehman appellant was tried in case F.I.R. No,256, dated 10-9-2008, registered at Police Station Sadar, District Mianwali in respect of offence under sections 302/324 of P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 22-11-2008 has convicted and sentenced the appellant as under:-- Aziz-ur-Rehman Under section 302(b), P.P.C. To 'Death' for committing Qatl-eAmd of Sanaullah deceased. He was also directed to pay Rs,1,00,000 (rupees one hundred thousand only) as compensation under section 544-A of Cr. P. C. And in default thereof to suffer simple imprisonment for six months.
2. Feeling aggrieved, the appellant has challenged his conviction and sentence through Criminal Appeal No, 1355 of 2008, whereas the learned trial Court has transmitted Murder Reference No, 311 of 2008 for confirmation or otherwise of the death sentence of Aziz-ur-Rehman appellant. We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 22-11-2008 passed by the learned Sessions Judge, Mianwali.
3. Brief facts of the case as given by the complainant, namely, Haji Ata Muhammad (P.W.6) through F.I.R. (Exh.PE) are that he (complainant) was resident of Mohallah Miana Mianwali and he had installed a flour grinding machine in his house, whereas, Sanaullah (deceased) had a Suzuki Van No, LHO 1715, on which, he used to take female students to their schools and colleges. On 10-9-2008 after dropping the female students at their houses, the deceased took Ata Muhammad (complainant) from the house of Ghulam Muhammad (given up P.W.). He (complainant) sat in the back portion of the van and when at about 12-30 p.m. (noon) they reached in the street of Muhammad Khan ex-councillor Watta Khel, the appellant was already present there in front of his house while armed with .30 bore pistol. The appellant forcibly stopped Sanaullah (deceased) and stated that as the deceased had insulted his sister Musarrat Bibi and deserted her so he (appellant) would not leave him alive. The appellant, then made a fire shot with his pistol .30 bore which hit on the right side of cheek and made its exit from the left side of the neck of Sanaullah (deceased). The appellant made a second fire shot which hit on the front of chest and made exit from the back of Sanaullah (deceased). On hue and cry of Musarrat Bibi (CW-1) wife of Sanaullah (deceased), who was residing in the appellant's house because of her family differences, came out of the house, whereupon, the appellant made third fire shot on Mst. Musarrat Bibi which hit on her right thigh. The occurrence was witnessed by Siraj-ud-Din (P.W.7) and Ata-ur-Rehman (given up P.W.)' who at that time were going in the street to the house of their mamoon Ghulam Muhammad (given up P.W.) on a bicycle. Sana Ullah was immediately shifted to the Civil Hospital, Mianwali but he succumbed to the injuries on the way.
' The motive, according to the prosecution case, behind the occurrence was that daughter of the complainant was married with the elder brother of the appellant Aziz-ur-Rehman whereas sister, of the appellant was married with Sana Ullah (deceased). Due to domestic dispute, they both were in the houses of their parents and due to this grudge, Aziz-ur-Rehman appellant committed the murder of Sana Ullah with his pistol .30 bore and injured Mst. Musarrat Bibi (CW-1).
4. Aziz-ur-Rehman appellant was arrested in this case on 16-9-2008 by Abdul Majeed, S.-I. (P.W.8).
During the course of investigation, on 18-9-2008, the appellant Aziz-ur-Rehman led to the recovery of pistol 30 bore (P-1) along with four live cartridges (P-2/1-4), which was taken into possession through memo (Exh.PD). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed the charge against the appellant under sections 302/324, P.P.C. On 14-11-2008, to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced eleven witnesses while one witness namely Mst. Musarrat Bibi was examined as Court Witness, during the trial. Haji Ata Muhammad complainant (P.W.6) and Siraj Din (P.W.7) are the witnesses of ocular account.
' The medical evidence was furnished by Dr. Azmat Ullah Khan (P.W.1) and Lady Dr. Musarrat (P.W.2).
' Sher Khan Constable No, 192 (P.W.4) is the witness of recovery of pistol .30 bore (P-1) along with four live bullets, (P-2/1-4) from the appellant, which was taken into possession through memo (Exh.PD). Abdul Majeed, S.-I. (P.W.8) is the Investigating Officer of this case.
' Muhammad Shaffiq Khan draftsman (P.W.3), Saif Ullah (P.W.5), Mehr Khan Constable 1014 (P.W.9), Muhammad Amir Constable No, 478 (P.W.10) and Ataullah Head Constable No, 720 (P.W.11) are the formal witnesses. The prosecution produced documentary evidence in the shape of post mortem report of the deceased (Exh.PA), pictorial diagram (Exh.PA/ 1), medico legal report of Mst. Musarrat Bibi (Exh.PB), scaled site plan in duplicate (Exh.PC) (Exh.PC/ 1), memo of possession of pistol 30 bore (P1) along with four live cartridges (P-2/ 1-4) (Exh.PD), rough site plan of the place of recovery of pistol (Exh.PD/ 1), F.I.R. (Exh.PE), memo of possession of blood stained earth (Exh.PF), memo of possession of Suzuki van (P-3) and 12 coloured photographs (P-4/1-12) (Exh.PG), injury statement of the deceased (Exh.PH), death report of the deceased (Exh.PI), rough site plan of the place of occurrence (Exh.PJ), memo of possession of last worn clothes of deceased (Exh.PK), memo of possession of clothes of Mst. Musarrat Bibi injured (CW-1) (Exh.PL), report of Chemical Examiner (Exh.PM), statement of Mst. Musarrat Bibi (Exh.CW1/4), and closed its evidence.
6. The statement of the appellant under section 342, Cr.P.C. Was recorded. He refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you" the appellant replied as under:-- "1 have been involved falsely in this case by distorting the real story'. No witness was present at all at the time of alleged occurrence. In fact the deceased being armed with a pistol had gone to take back forcibly his wife Musarrat Bibi who is also my sister and caused firearm injury to her because of her resistance. At that occasion I was present at my shop situated in my house. On hearing the screams of my. Sister I rushed towards place of occurrence and I asked the deceased to leave Mst. Musarrat Bibi. I then finding no way, in exercise of right of defence of my sister made two fires on deceased. Thereafter, deceased in injured condition sat inside the Suzuki van and had died after a shot while. I am innocent. We are considered Moeens in the Pathan locality. Watta .Khel is a notorious village. I had purchased an automatic pistol for the safety of mine as well as my shop. As I was the younger brother of Musarrat so I had no concern with the family disputes, which were being taken up by elders of both sides. I intentionally did not commit his murder but only to save the life of my sister Musarrat Bibi. Had I not been done so, the deceased could have committed not only the murder of my sister but me too. "
' Neither the appellant made statement under section 340(2), Cr.P.C. Nor he produced any evidence in his defence, however his sister Mst. Musarrat Bibi was examined by the Court as (CW- 1). The learned trial Court vide its judgment dated 22-11-2008, found Aziz-ur-Rehman appellant guilty and convicted and sentenced him as mentioned and detailed above.
7. Learned counsel for the appellant, in support of this appeal contends that the appellant has falsely been involved in this case; that both the witnesses of ocular account are chance witnesses and have not been able to establish their presence at the spot; that in the F.I.R. The complainant Haji Ata Muhammad (P.W.6) stated that his son Sana Ullah (deceased) used to pick and drop the female students to school and on the day of occurrence, after dropping the female students, Sana Ullah (deceased) took him (complainant) from the house of one Ghulam Muhammad but while appearing before the learned trial Court, the complainant simply stated that after dropping the girls, Sana Ullah (deceased) accompanied him (complainant) and he has not stated the purpose of his visit to the said house; that the occurrence took place in front of the house of the appellant and the deceased was in fact the aggressor and he wanted to forcibly took along with him Mst.
Musarrat Bibi, sister of the appellant and on her resistance, she was fired at by the deceased and the appellant in exercise of the right of his private defence, made fire shots at the deceased; that there is conflict between the ocular account and medical evidence as the complainant of the case and the other eye-witness stated that first fire shot of the appellant hit the deceased at the right cheek and made its exit from left side of the neck and the second fire shot of the appellant hit at right side of the chest which made its exit from the back of the deceased, whereas Dr. Azmat Ullah Khan (P.W.1), who conducted the post mortem examination on the dead body of the deceased noted that injury on the chest of the deceased was an exit wound; that story narrated in the F.I.R. Is highly improbable because Mst. Musarrat Bibi was turned out by the deceased and she was ' ghair abad' and because of that reason the appellant fired at the deceased but at the same time it is mentioned in the F.I.R. That the appellant also fired at Mst. Musarrat Bibi which is not probable and understandable; that the other eye-witness namely Siraj Din (P.W.7) made dishonest improvements in his statement while appearing before the learned trial Court; that most important witness of the prosecution namely Mst. Musarrat Bibi, who was injured at the time of occurrence, was given up being won over who was summoned by the Court and she fully supported the version of the appellant; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, thus, this appeal be accepted and the appellant may be acquitted from the charge.
8. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that the occurrence took place on 10-9-2008 at 12-30 p.m., and the matter was reported to the police at 2-00 p.m. Therefore, there is no delay in reporting the matter to the police; that the presence of the complainant with his son Sana Ullah (deceased) cannot be considered as unnatural and the presence of the other eye-witness is also established from the fact that matter was reported to the police within 1-1/2 hour from the occurrence and his name is mentioned in the F.I.R.; that minor conflict between the medical evidence and the ocular account is not material as ocular account gets full support from injury No,1 which is on the cheek of the deceased and it is further corroborated by the recovery of pistol from the appellant. Moreover, version of the appellant is an afterthought; that Mst. Musarrat Bibi (CW-1) fully supported the prosecution case during the course of investigation and she was confronted with her previous statement and her improvement was brought on the record; that the appellant has not been able to prove his plea taken by him in his statement recorded under section 342, Cr.P.C; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
9. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
10. It would not be out of place to mention here that it is a case of two versions, i,e, one put forth by the prosecution in the form of ocular account furnished by Haji Ata Muhammad complainant (P.W.6) and Siraj Din (P.W.7), whereas, the other has been brought on the record through the statement of Aziz-ur-Rehman (appellant), recorded under section 342 of Cr.P.C. And Mst. Musarrat Bibi (CW-1) and suggestions put to the prosecution witnesses during their cross-examination.
11. It has been settled now by the Hon'ble Supreme Court of Pakistan through number of judgments that it is the prosecution which is required to prove its case against the accused persons beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not?. In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as Ashiq Hussain v. The State (PLD 1994 SC 879), wherein, at page 883, the learned apex Court of the country has been pleased to observe as under:- "The proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr. P. C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C.
Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
' The abovementioned view has been reiterated by the august Supreme Court of Pakistan in the case reported, as Amin Ali and another v. The State (2011 SCM R 323). Therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will, first, examine the case of the prosecution.
12. The ocular account of the prosecution was furnished by Haji Ata Muhammad complainant (P.W.6) and Siraj Din (P.W.7). The occurrence in this case admittedly took place in frount of the house of Aziz-urRehman (appellant) situated in the area of 'Watta Khel' within the territorial jurisdiction of Police Station Sadar Mianwali. Both the above mentioned eye-witnesses are residents of a different area i,e, Mohallah Miana, Mianwali City. The complainant Haji Ata Muhammad (P.W.6) has stated during his cross-examination that his house was at a distance of less than one kilometer from the place of occurrence, in another Mohallah called as Miana Mohallah. Both the above mentioned eyewitnesses are chances witnesses because they are not residents of the locality, where this occurrence took place. Moreover, they have not been able to assign any valid reason for their presence at the spot at the relevant time.
' The story narrated by the above mentioned eye-witnesses is highly improbable. According to their version, the motive behind the occurrence was that Mst. Musarrat Bibi, sister of the appellant, was married with Sana Ullah deceased but due to family dispute, she was ' ghair abad'. The above mentioned eye-witnesses stated that at the time of occurrence, the appellant raised lalkara to the deceased, not to leave him alive as he (deceased) had sent back Mst. Musarrat Bibi to his (appellant's) house after insulting her and thereafter, he made fire shots at the deceased. It was further alleged that after causing injuries to the deceased, the appellant also made fire shots at his sister Mst. Musarrat Bibi (CW-1). It is not understandable that if the appellant caused firearm injuries to the deceased due to the desertion and insult of his sister Mst. Musarrat Bibi (CW-1) than why he also made fire shots at his sister Mst. Musarrat Bibi (CW-1). Aforementioned Mst. Musarrat Bibi was not produced by the prosecution in support of their version. She examined as a Court witness by the learned trial Court and she negated the story of the prosecution. She stated that on the day of occurrence, she was present in the house of her parents as she was ' ghair abad' and at about 12-30 p.m. (noon), her husband Sana Ullah (deceased) while armed with pistol came inside the house and forcibly took her with him and brought her in the street. She further stated that on her resistance, Sana Ullah deceased'made fire shot which hit on her right thigh. She stated that at the time of occurrence, her husband was also injured however, she was unable to see that who made firing on her husband as she herself was also injured. The story narrated by the above mentioned prosecution eye-witnesses was not supported by Mst. Musarrat Bibi (CW-1).
We have also noted that the evidence of eye-witnesses, namely, Haji Ata Muhammad (P.W.6) and Siraj Din (P.W.7) is in conflict with the medical evidence. They have stated that first fire shot, made by the appellant, landed on the right cheek of Sana Ullah deceased and made its exit from the left side of his neck whereas the second fire shot made by the appellant hive on the right side of chest of the deceased and made its exit from his back. Dr. Azmat Ullah Khan (P.W.1) has furnished the medical evidence of the prosecution and according to his statement, injury attributed to the appellant on the chest of the deceased was an exist wound i,e, injury No,2 in the post mortem report (Exh.PA). There was an entry wound on the back of right side of chest of the deceased (injury No,1) which was not attributed to the appellant and the above mentioned prosecution witnesses have not assigned the said injury to the appellant. It is therefore, established that the ocular account furnished by Haji Ata Muhammad (P.W.6) and Siraj Din (P.W.7) is in conflict with the medical evidence furnished by Dr. Azmat Ullah Khan (P.W.1). The above mentioned conflict in the ocular account and medical evidence has created serious doubt about the presence of above mentioned witnesses at the spot at the relevant time. The Hon'ble Supreme Court of Pakistan extended benefit of doubt to the accused persons in cases reported as 'Amin Ali and another v. The State' (2011 SCM R 323), 'Muhammad Ishaq v. The State' (2007 SCM R 108), 'Ali Sher and others v. The State' (2008 SCM R 707), on the ground of conflict between ocular account and medical evidence.
13. The recovery of pistol .30 bore (P-1) on the pointation of the appellant is inconsequential because there is no report of Forensic Science Laboratory regarding the above mentioned pistol. In the absence of matching report of any empty with pistol .30 bore (P-1), the alleged recovery of said pistol from the possession of the appellant is of no avail to the prosecution.
14. The motive behind the occurrence as set forth in the F.I.R. (Exh.PE) was that daughter of the complainant, namely, Mst. Hameedan Bibi was married to Fazal-ur-Rehman, elder brother of the appellant, whereas sister of the appellant, namely, Mst. Musarrat Bibi was married with Sana Ullah deceased however, due to family disputes both the above mentioned females were 'ghair abad' and due to this grudge, appellant committed the murder of Sana Ullah deceased and also caused injury to his sister Mst. Musarrat Bibi (CW-1). The story of prosecution qua motive of the occurrence does not appeal to common sense. We have already noted that if the appellant was annoyed with the deceased due to the desertion of his sister Mst. Musarrat Bibi (CW-1) then there was no reason with him to cause firearm injury to his sister Mst. Musarrat Bibi (CW-1). We have also noted that the occurrence took place in front of the house. Of the appellant. Mst. Musarrat Bibi also appeared before the learned trial Court and denied the allegation levelled by the prosecution qua injury inflicted on her person by the appellant rather she stated that the said injury was inflicted on her person by Sana Ullah deceased. We are therefore, of the view that motive as set forth by the prosecution has not been proved in this case.
15. After considering all the aspects of the case we have come to this conclusion that the prosecution evidence is not worthy of reliance and the prosecution has failed to prove its case against the appellant beyond the shadow of any doubt.
16. Now coming to the version of the appellant which he took in his statement recorded under section 342, Cr.P.C. The version of the appellant has already been reproduced in paragraph No,6 of this judgment. We have disbelieved the prosecution evidence therefore, we have to accept or reject the version of the appellant in toto. It is by now well settled law that if the prosecution evidence is disbelieved by the Court, then the statement of an accused is to be accepted or rejected as a whole. It is legally not possible to accept the inculpatory part of the statements of accused persons and to reject the exculpatory part of the same statements.
Reference in this context may be made to the case of 'Muhammad Asghar v. The State' (PLD 2008 SC 513). The relevant paragraph of the said judgment at page 520 is reproduced for ready reference:-- "It is settled law by now that a statement of an accused recorded under section 342, Cr. P. C. Is to be read in its entirety, is to be accepted or rejected as a whole and reliance should not be placed on that portion of the statement which goes against the accused person. Reference can be made to the case of 'Shahid Ahmad v. The State' PLD 1995 SC 343 and 'The State v. Muhammad Hanif and 5 others' 1992 SCMR 2047. It has been held by this Court in the judgment reported as Waqar Ahmad v. Shaukat Ali and others' 2006 SCMR 1139, that prosecution is bound to establish its own case independently instead of depending upon the weakness of the defence, and the assertion of the accused in his statement under section 342, Cr.P.C. Was not sufficient to establish the prosecution case regarding guilt of the accused and such statement of the accused could be accepted in toto in the absence of any other prosecution evidence. In the case in hand, the High Court should have either accepted appellant's statement in its entirety or rejected it altogether, but it had misdirected itself while choosing a portion of the statement, which went against the appellant, and convincing him."
' We have been fortified in our above mentioned view by the judgments passed by the Hon'ble Supreme Court of Pakistan in the cases of 'Sultan Khan ,v. Sher Khan and others' (PLD 1991 SC 520) and Ghulam Qadir v. Esab Khan' (1991 SCMR 61).
' Appellant took this plea in his statement recorded under section 342, Cr.P.C. That on the day of occurrence Sana Ullah deceased came to his house while armed with pistol and tried to forcibly take with him, his wife Mst. Musarrat Bibi who was also sister of the appellant. He further stated that on the resistance of Mst. Musarrat Bibi, Sana Ullah deceased made fire shot with his pistol on her and she was injured. On hearing the screams of Mst. Musarrat Bibi, he (appellant) rushed toward the place of occurrence and while exercising the right of his private defence, he made fire shots on the deceased. Sister of the appellant, namely, Mst. Musarrat Bibi also appeared before the learned trial Court as Court witness (CW-1) and supported the version of the appellant by stating that she received the fire-arm injury on her person at the hands of Sana Ullah deceased where he was trying to take her forcibly with him and she offered resistance The lady doctor Musarrat (PW-2) on 1-9-2008 at 2-00 p.m., medically examined Mst. Musarrat Bibi (CW-1) and found a fire arm injury on her right thigh. If story of the prosecution and version of the appellant is put in juxtaposition, then version of the appellant appears to be more probable.
' The occurrence in this case admittedly took place in front of the house of the appellant. Sister of the appellant, namely, Mst. Musarrat Bibi (CW-1) was admittedly injured during the occurrence and she has not supported the story of the prosecution rather she has supported the version of the appellant. After discarding the prosecution evidence, if version of the appellant is to be accepted in toto then no offence is made out from the contents of his statement recorded under section 342, Cr.P.C. Because his act is fully covered under section 100 (secondly) P.P.C. Which is reproduced hereunder:- "100. When the right of private defence of the body extends to causing death.---The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the office which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: ' First.----------- ; ' Secondly. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault'
' Thirdly. ------; ' Fourthly.--------------; ' Fifthly. ------------; ' Sixthly. ----------;
17. After considering all the aspects of this case, we have come to this conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt.
Resultantly, Criminal Appeal No, 1355 of 2008 filed by the appellant Aziz-ur-Rehman is hereby accepted and he is acquitted of the charge while extending him the benefit of doubt. He is in custody, he be released from jail forthwith if not required in any other case. Murder Reference No, 311 of 2008 is answered in the negative and death sentence awarded to the appellant is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.