' MALIK SHAHZAD AHMAD KHAN, J.-This judgment shall dispose of Criminal Appeal No, 661 of 2008 titled as "Muhammad Mumtaz versus The State" filed by Muhammad Mumtaz, appellant against his conviction and sentence and Murder Reference No, 127 of 2008 titled as "The Slate versus Muhammad Mumtaz" submitted by the learned Trial Court for confirmation or otherwise of the sentence of death awarded to Muhammad Mumtaz, appellant as both these matters have arisen out of the same judgment dated 10.06.2008 passed by the learned Addl. Sessions Judge, Toba Tek Singh in case FIR No, 506, dated l2, l2.2006,t offences under Sections 302, 337-L(ii), 337-A(i), 148 and 149, PPC, registered at Police Station Saddar Gojra District Toba Tek Singh whereby, Muhammad Mumtaz, appellant was convicted under Section 302(b), PPC and sentenced to death with the direction to pay Rs, 1,00,000/- (rupees one lac) as compensation to the legal heirs of deceased Muhammad Irshad as provided under Section 544-A of the Code of Criminal Procedure and in default thereof to further undergo simple imprisonment for six months and. The said amount will be recovered as arrears of land revenue. The learned Trial Court, through the same judgment, also convicted Manzoor, co- accused, of the appellant under Section 337-A(i), PPC and sentenced him to rigorous imprisonment for one year with the direction to pay Rs, 10,000/- (rupees ten thousand) as Daman to Khalid Hussain injured. He Was ordered to be kept in jail till the full payment of Daman and his detention in jail for nonpayment of Daman will be treated as simple imprisonment. The learned Trial Court acquitted them from the charges under Sections 148"and 149, PPC.
' The learned trial Court, however, acquitted Noor Muhammad and Muhammad Irshad alias Muhammad Iqbal, co-accused of the appellant.
2. Brief facts of the case, as disclosed by Muhammad Mushtaq, complainant (PW-6) in his application (Exh-PH); on the basis of which formal FIR (Exh-PH/1) was registered, are that he (complainant) was resident of .Chak No, 353/J.B. Tehsil Gojra. On 9.12.2006, his paternal niece Mst.
Asma Bibi, who was student of B.A. In the Government Girls College, Gojra, was abducted by Muhammad Iqbal accused (since P.O.) and his sister Mst. Anwar Bibi. The abductee was not traceable since 9.12:2006. On 11.12.2006, a relative of Muhammad Iqbal also searched Muhammad Iqbal and Mst. Asma Bibi. On 12.12.2006, there was also a plan to search Muhammad Iqbal and Mst.
Asma Bibi. On 12.12.2006 at about 9:30 a.m., as per plan, he (complainant) alongwith Muhammad Irshad (deceased), Khalid Hussain (PW-8) and Muhammad Nawaz (PW-9) went to the house of Muhammad Mumtaz (appellant). They knocked at the door. On opening the door, suddenly, Muhammad Mumtaz (appellant) armed with Chhuri, Noor Muhammad (since acquitted) armed with pump action gun, Manzoor (co-convict) armed with Sota, Muhammad Iqbal son of Muhammad Yar (since P.O) and Muhammad Iqbal son of Machhia (since acquitted) armed with Chhuri came out, who were,sitting there in furtherance of their common intention. Muhammad Iqbal raised lalkara that they (complainant party) be killed. Upon which, Mumtaz (appellant) made a Chhuri blow which landed on the left side of neck of Muhammad Irshad (deceased), second blow of Chhuri was made by him which landed on the right side of Chest and third blow landed on the left side of chest of Muhammad Irshad (deceased). He again made a Chhuri blow which landed on the left side of chest of Muhammad Irshad (deceased) He (Muhammad Mumtaz appellant) again made a Chhuri blow which landed on the right side of abdbmen of Muhammad Irshad (deceased).
Muhammad Iqbal son of Machhia made a Chhuri blow at Khalid Hussain (PW-8) which landed on the right side of his forehead. Manzoor gave a sota blow which landed on the head of Khalid Hussain (PW-8). Manzoor made a sota below which landed on the cheek of Khalid Hussain (PW-8).
He again made a sota blow which landed on his (Khalid Hussain's) left shouldep Meanwhile, Noor Muhammad (since acquitted) made a straight fire at the complainant party with the intention to kill them which was missed. Muhammad Nawaz (PW-9) snatched his gun before he could have made a second fire- shot. Many people gathered there., who rescued them from the accused persons. The injured persons were shifted to Civil Hospital, Gojra for medical treatment.
Muhammad Irshad (deceased) was referred to Allied Hospital. Faisalabad by the doctor in view of his precarious condition but he died on the Way.
3. Muhammad Mumtaz (appellant) was arrested in this case on 29.12.2006 by Atta Ullah, S.I. (PW- 14). On the same day i.e, 29.12.2006, Muhammad Mumtaz (appellant) himself produced Chhuri (P- 4) before Atta Ullah, S.L (PW-14), which was taken into possession vide recovery memo. Exh-PL. 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 charge against the appellant and his co-accused' on 12.9.2007, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced ' fourteen witnesses, during the trial.
Muhammad Mushtaq, complainant (PW-6), Khalid Hussain (PW-8) and Muhammad Nawaz (PW- 9) furnished the ocular account of the case. Muhammad Nawaz (PW-9) is also the witness of recovery of Chhuri (P-4), allegedly produced by Muhammad Mumtaz (appellant).
' The medical evidence was furnished by Dr. Muhammad Asghar (PW-1), who medically examined Muhammad Irshad (deceased) and Khalid Hussain (PW-8) and Dr. Muhammad Zahid (PW-2), who conducted the post-mortem examination on the dead-body 'of Muhammad Irshad (deceased) .
' Atta Ullali, S.I. (PW-14) and Ghulam Qadir, S.I. (PW-10) are the Investigating Officers of the case.
Syed Kazim Hussain Gillani, Draftsman (PW-3), Muhammad Fayyaz, (PW-4), Muhammad Yaqoob 385/C (PW-5), Ikram- ul-Haq 356-C (PW-7), Khizer Hayat, A.S.I. (PW-11), Abdul Ghafoor 304/HC (PW-12) and Muhammad Shafique (PW-13) are the formal witnesses. The prosecution produced documentary evidence in the shape of medico-legal report Of Muhammad Irshad deceased (Exh- PA), medico-legal report of Khalid Hussain PW-8 (Exh-PB), post-mortem report of Muhammad Irshad deceased alongwith pictorial diagram (Exh PC & Exh-PC/1), injury, statement (Exh-PD), inquest report (Exh-PE), scaled site plan, in duplicate, of the place of occurrence (Exh-PF & Exh- PF/1), proclamation of Muhammad Iqbal son of Yar Muhammad accused alongwith report (Exh-PG & Exh-PG/1). Application of complainant for registration of case (Exh-PTI), FIR (Exh-PH/1), recovery memo, of blood-stained earth (Exh-PJ), recovery memo, of last worn clothes of the deceased (Exh- PK), recovery memo, of Chhuri- P-4 (Exh-PL), rect very memo, of Sota P-5 allegedly produced by Manzoor accused (Exh-PM), recovery memo, of .12 bore shot gun (P-6) allegedly produced by Muhammad Irshad accused (Exh-PN), recovery memo, of .12 bore pump action P-7 produced by Muhammad Nawaz (?W\P) allegedly snatched from Noor Muhammad accused (since acquitted) during the occurrence (Exh-PO), application for issuance of warrants of Muhammad Iqbal accused (Exh-PQ), application for issuance of proclamation of Muhammad Iqbal accused (Exh-PR), warrants of arrest of Muhammad Iqbal accused alongwith report (Exh-PS and Exh-PS/1), rough site plan of the place of occurrence (Exh-PT), rough, site plan of place of recovery of gun. P-6 (Exh-PU).
Rough site plan of place of recovery of .12 bore pump action P-7 (Exh-PV), reports of Chemical Examiner (Exh-PW and Exh-PY), reports of Serologist (Exh-PX and Exh-PZ) and closed its evidence.
' The statements of the appellant and his co-accused (since acquitted) under Section 342 of the Code of Criminal Procedure, were recorded on 28.5.2008. They refitted the allegations levelled against them and professed their innocence. In his statement recorded under Section 342 of the Code of Criminal Procedure, the appellant has stated that in fact the complainant party was aggressor and they came to his house to abduct his daughters in lieu of Mst.. Asma Bibi and he acted in his self-defence. The appellant did not opt to give evidence on oath as provided under Section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against him, however, he produced his medico-legal report (Exh-DA), copy of statement of Khalid Hussain PW-8 (Exh-DB), copy of. Nikah Nama of Mst.'Asma Bibi with Muhammad Iqbal accused (Exh-DC), copy of harassm ent petition filed by Mst. Asma Riaz (Exh-DD), copy of order of learned Addl.
Sessions Judge, Jhang passed in said petition (Exh-I>E) and copy of report submitted by the police (Exh- DF) in his defence. .
5. Notice was given to the complainant oh 11.1.2013 but none appeared on his behalf. Notice was again issued on 12.2.2013 but once again, no one appeared on his behalf. Zia, AS1, present in Court, states that he has duly informed the complainant about the date fixed for hearing of this appeal.
As this case pertains to the year 2008, therefore, we proceed to decide the same after hearing learned counsel for the appellant and learned Deputy Prosecutor General for the State.
6. Learned counsel for the appellant, in support of this appeal, contends that a false story was concocted by the complainant and even 1he matter was reported to the police with a delay of about two hours; that admittedly, the complainant and the deceased were not residents of the village where this incident took place; that they came from village 353/J.B, Tehsil Gojra District Toba Tek Singh on cars to the village of the appellant which fact has been admitted by Khalid Hussain (PW-8) in his cross-examination; that the complainant improved his version before the learned Trial Court by stating that the relative of Muhammad Iqbal accused (since P.O.), on 11.12.2006, asked diem (the complainant party) to come cn' 12.12.2006 and they will again search Mst. Asnia Bibi; that the complainant was confronted with his previous statement application (Exh-PH) where this was not so recorded which clearly Suggests that there was no reason or occasion for the complainant or the deceased to come to the house of the appellant; that it is mentioned in the FIR (Exh-PH/1) that Mst. Asma Bibi was abducted by Muhammad Iqbal son of Muhammad Yar (since P.O.) but in no way it was even alleged that the appellant has any foie in the alleged abduction and even no case regarding the abduction of Mst. |^sma Bibi was ever got registered by the complainant or any other relative; that in fact Mst. Asma Bibi contracted marriage with Muhammad Iqbal son of Muhammad Yar accused (since P.O.) with her free consent which fact is evident from her Nikah Nama (Exh-DC); that it is the ease of the prosecution that during the incident, Noor Muhammad (since acquitted) resorted to firing whereas, Atta Ullah, S.L (PW-14), the Investigating Officer has admitted, in his cross-examination, that he did not notice any mark of firing at the place of occurrence; that , even the gun (P-7) allegedly snatched from the appellant was produced before the police on 29.12.2006 whereas, this incident took place on 12.12.2006; that apart from the appellant, four other persons namely, Noor Muhammad, Manzoor, Muhammad Iqbal son of Muhammad Yar and Muhammad Iqbal son of Machhia were also implicated in this case; that two persons, out of said four persons, namely, Moor Muhammad and Muhammad Iqbal son of Machhia have been acquitted by the learned Trial Court and no appeal against their acquittal has been filed either by the State or the complainant; that the appellant himself was injured in this incident and he received eight injuries on his person which are incised, abrasion and swelling in nature; that the appellant was medically examined on the same day when the deceased and injured witness Khalid Hussain (PW-8) were medically examined arid Khalid Hussain (PW-8), in his cross- examination, has admitted this fact; that the medico-legal report of the appellant was brought on record as Exh-DA; that the doctor, under the influence of the complainant side, in the medico-legal report, has given note to the effect that "the possibilities of injuries l, 3, 4, 8 with friendly/technical hands shall be decided by the police investigating officer according to circumstantial evidence"; that even the police never concluded in the investigation that the injuries sustained by die appellant were self-suffered or manoeuvred; that.It has been brought on the record during the cross-examination of Atta Ullah, S.L (PW-14) that the first version of the appellant was the same which he stated before the learned Trial Court; that the version of. The appellant is more probable, convincing, reliable which gets full support from the prosecution's own case; that the prosecution has 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. ,
7. On the other hand, learned Deputy Prosecutor General vehemently opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that the incident took place on 12.12.2006 al 9:30 a.m., whereas, the matter was reported to the police on the same day i.e, 12.12.2006 at 11.15 a.m; that in this incident, initially Muhammad Irshad deceased and Khalid Hussain (PW-8) were injured and they were taken to the hospital which is clear from their medico-legal reports (Exh- PA and Exh-PB respectively) wherein, time of arrival of Muhammad Irshad (deceased) in the hospital is mentioned as 10:45 a.m. On 12.12.2006; that moreover, .All the necessary details of incident such as place of occurrence, name of witnesses, name of the deceased, names of the accused persons, the role played by the accused persons and the manner in which the occurrence took place are mentioned in the FIR (Exh-PH/1); that the injuries sustained by the appellant were self-suffered; that the prosecution case gets full support' from the medical evidence furnished by. Dr. Muhammad Asghar (PW-1) and Dr, Muhammad Zahid (PW-2); that the prosecution case is further corroborated by the evidence of recovery of Chhuri (P-4) from the possession of the appellant; that the appellant cannot get any benefit from the acquittal of his co-accused as no active role was assigned to them; that the prosecution case is also supported by the statement of Khalid Hussain injured witness; that the appellant has himself admitted in his statement recorded under Section 342 of the Code of Criminal Procedure that he inflicted Chhuri blows on the person of Muhammad Irshad (deceased) and as such, the case of the prosecution has been proved against the appellant beyond the shadow of doubt; that the appellant has taken a specific plea and in the circumstances, burden was on him to prove the same which he has n6t been able to prove as no witness in support thereof was produced either before the police or before the learned Trial Court; that the sentence of death was rightly awarded to the appellant by the learned Trial C6urt and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
8. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General and have also gone through the record with their able assistance.
9. If is a case of two versions, one mentioned in the FIR (Exh-PH/1) and brought on the record through the statements of Muhammad Mushtaq, complainant (PW-6), Khalid Hussain (PW-8) and Muhammad Nawaz (PW-9) and second version is the plea taken by the appellant in his statement recorded under Section 342 of the Code of Criminal Procedure and suggestions put to the prosecution witnesses on behalf of the defence. In such-like situation, firstly, the Court is required to analyze the prosecution version in order to ascertain its truthfulness or otherwise, whereas, the defence version is to be taken thereafter. In this respect, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan passed in the case reported as "Ashiq Hussain alias Muhammad Ashraf.Versus State " (PLD 1994 SC 879) wherein, at page 883, the Hon'ble Supreme Court has been pleased to observers under:- "9. ...The proper and the legal way of dealing with a critical 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 wliole 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 questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing I the case? If the answer be in the affirmative, hen 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."
' Reference in this respect may also be made to the case of "Amin Ali and another versus The State"
(2011 SGMR 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 to see as to whether the prosecution has been able to prove its case or not because it is the duty of the prosecution to prove the guilt of the accused.
10. The detail of the prosecution story has already been mentioned in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same, however, the gist of the prosecution case is that Mst. Asma Bibi, niece of the complainant was abducted by Muhammad Iqbal son of Muhammad Yar, co-accused (since P.O) and they (complainant party) were searching for them. In this respect, they (complainant party) came to the house of the accused on the day of occurrence i.e. 12.12.2006 at about 09.30 a.m. And when they knocked at the door of the appellant, the appellant alongwith his co-accused came out of the house while armed with different weapons arid attacked the complainant party. Muhammad Mumtaz (appellant) gave Chhuri blows to the deceased Muhammad Irshad whereas, his co-accused Manzoor gave sota blows to Khalid Hussain (PW-8). As a result whereof, Muhammad Irshad died while he was being shifted to Allied Hospital, Faisalabad from Civil Hospital, Gojra and Khalid Hussain (PW-8) received injuries. |n order to prove its case, the prosecution. Produced Muhammad Mushlaq, complainant (PW-6), Khalid Hussain (PW-8) and Muhammad Nawaz (PW-9). We have noted that the occurrence, in this case, took place on 12.12.2006 at about 09.30 a.m. In front of the house of Muhammad Mumtaz (appellant) in Chak No, 352/J.B Tehsil Gojra District Toba Tek Singh whereas, all the above-mentioned eye- witnesses are resident of another village i.e, Chak No, 353/J.B, Tehsil Gojra District Toba Tek Singh.
The above-mentioned witnesses have given no plausible explanation for their going to the house of the appellant on the day of occurrence because niece of the complainant namely, Mst. Asma Bibi was allegedly abducted by Muhammad Iqbal, co-accused of the appellant (since P.O)? It was not alleged in the FIR (Exh-PH/1) that the appellant was also involved in any manner in the abduction of Mst. Asma Bibi. Muhammad Mushtaq, complainant (PW-6) has admitted during his cross-examination that no case of abduction of Mst. Asma Bibi was registered by the police. He has further admitted during his cross-examination that the street where the house of the appellant is situated is six feet wide. The prosecution story does not appeal to common sense that when the complainant party knocked at the door of Muhammad Mumtaz, appellant, he alongwith his co- accused immediately launched an attack on the complainant party. There was no reason with the appellant to take the life of Muhammad Irshad (deceased) and 'to attack the complainant party, rather it appears that the ' complainant party was infuriated due to the abduction of the niece of the complainant. We have also noted that the above- mentioned eye-witnesses have suppressed the injuries on the B person of Muhammad Mumtaz appellant in their statements before the police, as well as, in their statements before the learned Trial Court. Although Muhammad Mushtaq, complainant (PW-6) has admitted, during his cross- examination, that Muhammad Mumtaz appellant was also medically examined by the same doctor who medically examined Muhammad Irshad deceased but he denied that the appellant also sustained injuries during the occurrence.
The prosecution's own witness namely, Dr. Muhammad Asghaf (PW-1), who medically examined Muhammad Irshad deceased, on the day . Of occurrence (12.12.2006) has stated, during his cross- examination, that on the same day i.e, 12.12.2006 at 12.45 p.m., he medically examined Muhammad Mumtaz (appellant) and found the following injuries on his person:-- '
(1) An incised wound 2 era x 3 cm x bone deep (visible) 11 cm above the tragess of left ear.
(2) A swelling 3 cm x 5 cm on the left of head, 5 cm above left mastoid process.
(3) An incised wound 1 cm x 0.1 cm and scalp deep 6n left eye brow.
(4) Multiple small incised wounds in an area of 1 cm x 0.5 cm on left eye brow, 0.5 cm above injury No, 3 which were partial skin deep.
(5) A superficial cut 0.7 cm x 0.8'cm on back of metacarpo phalyngeal joint of little bone.
(6) Multiple, abrasion with radish contusion in an area of 8 cm x 3.5 cm on back of left wrist and lower part of left forearm.
(7) An abrasion 0.5 cm x 0.2 cm on front and proximal part of left index finger.
(8) An incised wound 1.5 cm x 0.3 cm x buckle cavity (through and through) on outer part of left power lip.
' According to the opinion of Dr. Muhummad Asghar (PW-1), injuries Nos. 2, 6 and 7 were caused with blunt weapon whereas, rest of 1h; injuries- were caused with sharp-edged weapon. The probable duration of the injuries was within four hours. He also tendered in evidence MLC No, 1907, dated .
12.12 2006 (Exh-DA) regarding the medical examination of Muhammad Mumtaz appellant. It is evident from the perusal of medical evidence furnished by Dr. Muhammad Asghar (PW-1) that Muhammad Mumtaz (appellant) was also seriously injured during the occurrence. There were total eight injuries on his person,, out of which, injuries Nos. 1 & 3 were in the area of head of Muhammad Mumtaz (appellant) and the said injuries were scalp/bone deep which were caused by a sharp- edged weapon. The above-mentioned prosecution witness? Namely, Dr. Muhammad Asghar (PW- 1) was not declared hostile by the prosecution. The medico-legal report (Exh-DA) of Muhammad Mumtaz (appellant) was also not challenged by the, prosecution before any medical-board. So it was established on the record that Muhammad Mumtaz (appellant) was also seriously injured in the occurrence but his injuries were suppressed by the prosecution eye-witnesses. As the injuries on the person of Muhammad Mumtaz (appellant) have been suppressed by Muhammad Mushtaq, complainant (PW-6), Khalid Hussain (PW-8) and Muhammad Nawaz (PW-9) coupled with the fact that the said eye-witnesses could not give any plausible, explanation for their going to the house g of the appellant, which was situated in a different village, therefore, we are of the view that the evidence of above- mentioned eye-witnesses is not worthy of reliance.
11. The prosecution has also produced the evidence of recovery of Chhuri (P-4) which was allegedly produced by the appellant at the time of his arrest, positive reports of Chemical Examiner (Exh-PY) and that of Serologist (Exh-PZ). We have noted that the occurrence in this case took place on 12.12.2006 whereas, the appellant was arrested on 29.12.2006 and Chhuri (P-4)' was produced by him on the same day i.e, on 29.12.2006. The Chhuri .(P-4) was received in the office of Chemical Examiner on 8.3.2007, i.e, after about two months and twenty-seven days from the occurrence. As mentioned earlier, the appellant was arrested after about seventeen days from the occurrence, therefore, it does not appeal to the mind of a prudent person that the appellant would keep the blood-stained Chhuri for such a long- period because he had ample opportunity during the said period to wash away the blood from the Chhuri. The Hon'ble Supreme Court of Pakistan in the case of "Basharat and another versus The State" (1995 SGMR 1735) disbelieved the evidence of blood- stained Chhuri which was allegedly recovered from the accused after ten days from the occurrence. Relevant part of the said judgment at page No, 1739 is reproduced hereunder for ready reference:- "11. The occurrence (ook place on 20.4.1988. Basharat appellant was arrested on 28.4.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.4.1988. It is not believable that he would have kept blood-stained Chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it..."
' As mentioned earlier, the blood-stained Chhuri (P. 4) was deposited in the office of the Chemical Examiner after about two months and twentv-seven days of the occurrence, therefore, it was unlikely that blood on the Chhuri would not disintegrate during the above-mentioned period. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Jamil versus Muhamnyad Akram and others" (2009 SCM R 120) has . Held as under:- ' ."6. ...It is borne out from the record that the alleged recovery of blood-stained Chhuri has effected after about one month of the occurrence from an open, plot which was not in exclusive possession of the respondent and was accessible to all. It was also not likely that the blood would not disintegrate meanwhile. So the reasons advanced by the learned Judge in Chambers are not arbitrary or fanciful for not believing the recovery..."
In view of the above, it is not safe to rely on the prosecution evidence qua alleged recovery of Chhuri (P-4), positive reports of Chemical Examiner (Ex.PV) and that of Serologist (Ex.PZ).
12. Insofar as the motive for the Occurrence is concerned, we have noted that no specific motive against the appellant was mentioned in the FIR (Exh-PH/l), as well as, in the statements of the prosecution witnesses before the learned Trial Court and it was simply stated that niece of the complainant namely, Mst. Asma Bibi was abducted by Muhammad Iqbal, co-accused (since P.O) and on the day of occurrence, the complainant party went to the house of Muhammad Mumtaz (appellant) and when they (complainant party) knocked at the door of the house of the appellant, they were attacked upon by Muhammad Mumtaz (appellant) and his co-accused. As mentioned earlier, Muhammad Mushtaq, complainant (PW-6) has admitted during his cross- examination, that no case regarding the abduction of Mst. Asma Bibi was registered by the police. We have also noted that no specific motive was alleged against Muhammad Mumtaz, appellant rather the same was alleged against Muhammad Iqbal, co-accused (since P.O). The motive as alleged by the prosecution does not appeal to common sense because the niece of the complainant was abducted by Muhammad Iqbal, co-accused (since P.O.) and there was no reason with Muhammad Mumtaz (appellant) to launch an attack on the complainant party rather it was the complainant party who was aggrieved due to the above-mentioned abduction of Mst. Asma Bibi, niece of the complainant/ As the occurrence admittedly took place in front of the house of the appellant, so this is suggestive of the fact that it was the complainant party who was aggrieved due to the abduction of Mst. Asma Bibi and in fact the motive was. With the complainant party to launch an attack on the appellant being relative of Muhammad Iqbal co-accused (since P.O) who abducted the niece of the complainant. Thus, the prosecution in this case failed to prove any motive against the appellant.
13. In view of the above discussion, we have come to this conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt.
14. Now coming to the defence plea taken by the appellant in his statement recorded under Section 342 of the Code of Criminal Procedure. We have noted that Muhammad Mumtaz (appellant) took the plea of self-defence in his statement recorded under Section 342 of the Code of Criminal Procedure. While answering to question "Why this case against you and why the PWs have deposed against you?", tlie appellant replied as under :-- "Mst. Asma Bibi a girl of the complainant party of her own volition left the house of her parents much earlier to the present occurrence with my co- accused Muhammad Iqbal s/o Muhammad Yar (Since P.O) a man of my brothery with whom we already were not on speaking terms. The complainant party suspected that we knew the whereabouts of Mst. Asma Bibi and above-said co- accused Muhammad Iqbal s/o Muhammad Yar (Since P.O). After the elopement of Mst. Asma Bibi the parents of my co-accused Muhammad Iqbal s/o Muhammad Yar (Since P.O) who also reside in our village had disappeared. T)ie complainant party then started pressurizing us to inform them about the place where said Mst. Asma and my co-accused Muhammad Iqbal (Since P.O) were living. The factum of their abode was not known to us. One Kukoo Shah a landlord of the village of the complainant party came to our house prior to the occurrence who threatened us to manage for the return of Mst. Asma Bibi failing which we were threatened to face very odd music.
At the instigation of said Kukoo Shah the complainant party brought to pur village two cars in order to abduct our daughters in lieu of Mst. Asma Bibi. Muhammad Irshad, the deceased by scaling the outer wall of my Havelli tried to jump down inside the Havelli in order to open the gate of Havelli from inside for the rest of his contingent to enter into the Havelli, so, that they might abduct our daughters but I pushed him back who fell down in the narrow street of my house but the deceased Muhammad Irshad second time succeeded in jumping down inside my Havelli and he opened the gate from inside whereupon rest of his companions entered inside the Havelli. The deceased after exchange of hot words took out a ChuFree and attacked me whereupon I sustained injuries at the hand of the deceased Muhammad Irshad and at that time I had no alternative .And I picked up a Churree lying near our kitchen place and. Acted then in my self-defence and the self-defence of my property and the self-defence of my relative girls. Manzoor Hussain was not present but instead Muhammad Ahid one party men of the complainant side was present who also sustained injuries.
Had Kukoo Shah not instigated the complainant party to launch the attack at our house and to abduct our girls, the occurrence would not have taken place and if Muhammad Irshad deceased would not have died in that case, a case might had been registered against the complainant party, in the circumstances narrated by me above. I raised the same contention at the time of my arrest before the investigating officer. I will produce in my defence the copy of the marriage certificate of Mst. Asma Bibi and my co-accused Muhammad Iqbal s/o Muhammad Yar (Since P.O) and a copy of the statement of Mst. Asma Bibi recorded by a competent Court for contracting such marriage. I rely upon case-law titled The State versus Khair-ur-Rehman reported as PLD-1960- Peshawar-50. On the day of occurrence I was also shifted to Eye-cwn-General Hospital, Gojra and PW-1 Dr. Muhammad Asghar had also medically examined me alongwith the deceased. 1 sustained more than eight injuries including incised wound at the hands of complainant party and such injuries were suppressed by the complainant party and sorcalled his eye-witnesses during investigation as well as during trial. I had produced my MLC dated 12.12.2006 in this regard to the investigating officer but he neither received such, MLC nor he probed into the injuries and the persons responsible for such injuries and nor he registered the case against the complainant party.
Although the investigating officer met me in the hospital on the first day of the occurrence. The PWs are party men of the complainant party and related to the deceased Muhammad Irshad and Mst: Asma Bibi."
15. While putting the prosecution case and defence version of the appellant in juxta postion, the defence version of the appellant appears to be more probable. Muhammad Mumta2 (appellant) has stated that in fact, on the day of occurrence, the complainant party alongwith Muhammad Irshad deceased came to his. House. Muhammad Irshad' (deceased) by scaling over the outer wall of his Haveli jumped inside the Haveli and opened the gate of said Haveli from inside for rest of his companions whereupon, rest of his companions entered inside the Haveli of the appellant in order to abduct the daughters of the appellant in order to take revenge of the abduction of Mst. Asma Bibi. Muhammad Irshad (deceased) after exchange of hot words took out a Chhuri and inflicted different injuries on the person of the appellant. The appellant further stated that at that time, he had no other option but to exercise the right of his self-defence of body and property in order to save his relative girls, therefore, he picked up a Chhuri lying near his kitchen and inflicted injuries on the person of Muhammad Irshad (deceased). The plea taken by the appellant gets support from the evidence of prosecution's own witness namely, Dr Muhammad Asghar (PW-1) who has noted eight injuries on the person of Muhammad Mumtaz (appellant) including two incised wounds in the area of his head which were scalp/bone deep. The defence version further gets support from the medico-legal report (Exh.DA) of the appellant. We have also noted that the prosecutions eye- witnesses suppressed the above-mentioned injuries on the person of the appellant whereas, the appellant has come forward with the true narration of facts and he did not conceal the injuries On the person of Muhammad Irshad (deceased).
I6. We have disbelieved the motive as alleged by the prosecution due to the reasons mentioned in paragraph No, l2 of this judgment rather we have already held in the-said paragraph that it was the complainant party and Muhammad Irshad (deceased) who were aggrieved due to the abduction of Mst. Asma Bibi (niece of the complainant) by Muhammad Iqbal co-accused (since P.O.). As the complainant party was aggrieved due to the 'above-mentioned abduction and as the occurrence admittedly took place in the village and in front of the house of the appellant, therefore, the defence version put forth by Muhammad Mumtaz (appellant), in his statement recorded under Section 342 of the Code of Criminal Procedure appears to be more probable, according to which it was the complainant party who launched an attack on the appellant, on the day of occurrence.
Even otherwise we have. Already discarded the prosecution evidence, therefore, while scrutinizing the statement of the appellant, this Court has to accept or reject the said statement in toto.
According to the appellant, Muhammad Irshad (deceased) alongwith other members of the complainant party launched an attack on the accused party. Muhammad Irshad (deceased) inflicted injuries on the person of Muhammad Mumtaz (appellant) with Chhuri, thus in such situation, the said appellant had the right of private defence of his body which also extends to cause death of the assailant is provided under Section I0O of the Pakistan Penal Code, which is reproduced hereunder:-- " I00. 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 offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-- Firstly: Such an assault as may reasonably cause the apprehension that death will otherwise be the 'consequence of such assault; 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:.
' It is evident from the perusal of Section I0O (secondly), PPC that the right of private defence of the body will extend to the voluntary causing the death of the assailant, if the assailant launches an assault which may reasonably cause the apprehension that grievous hurt will be the consequence of such assault, whereas, in the instant case Muhammad Irshad (deceased) had actually inflicted injuries with Chhuri on the . Vital parts of Muhammad Mumtaz (appellant) including the exposure of the head bone. The case of the appellant, therefore, squarely falls within the four corners of general exception as providecl under section I0O (secondly), PPC.
17. 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 statement of the appellant and to reject the exculpatory part of the same statement. Reference in this context may be made to the case of "Muhammad Asghar versus The State" (PLD 2008 SC 513). The relevant paragraph of the'said judgment at page 520 is reproduced hereunder for ready reference "8. ...It is settled law by now that a statement of ah 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 Shabhir Ahmad v. The State PLD 1995 SC 343 and The State v.' Muhammad Hanif and 5 others 1992 SCM R 2047. It has been held by this Court in the judgment reported as Waqar Ahmad v. Shaukat Ali and others 2006 SCM R 1139, that prosecution is bound to establish its own case independently instead of depending upon the weaknesses 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 convicting him."
18. It is true that Muhammad Mumtaz (Appellant) has admitted in his statement recorded under Section 342 of the Code of Criminal Procedure that he inflicted Chhuri blows on the-person of Muhammad Irshad (deceased) but at the same time, he has also stated that he (appellant) after receiving sferious injuries on the vital part of his body, exercised his right of private defence of body and property. In view of the above, as we have already discarded the prosecution evidence, the appellant cannot be awarded punishment on the basis of his own statement recorded under.
Section 342 of the Code of Criminal Procedure, by accepting the inculpatory part of said statement wherein, he has stated that i.e, (appellant) inflicted Chhuri blows on the person of Muhammad Irshad .(deceased), and by rejecting exculpatory part of the same statement wherein/he has stated that he (appellant) inflicted injuries on the person of Muhammad Irshad (deceased) in the right of private defence of his body and prpperty. We are fortified in bur above-deep-toned views by the judgments passed by the Hon'ble Supreme Court of Pakistan in the cases of "Sultan Khan versus Sher Khan and others (PLD 1991 SC 520) and "Ghulam Qadir versus Esab Khan and*others"
(1991 SCM R 61).
19. In the light of above discussion, we accept the Criminal Appeal No, 661 of 2008 filed by Muhammad 'Mumtaz (appellant), set aside the impugned judgment dated 10.6.2008 passed by learned Addl. Sessions Judge, Toba Tek Singh. Resultantly the conviction and sentence of the appellant' awarded by the learned Addl. Sessions Judge, Toba Tek Singh vide judgment dated 10.06.2008, is set aside and he is acquitted from the charge. Muhammad Mumtaz (appellant) is ^ in custody, he be released forthwith if not required to be detained in any other case. However, it is made clear that the observations made in this judgment are not relevant to the case of Muhammad Iqbal soti of Muhammad Yar, co-accused of the appellant (Since P.O.).
20. Murder Reference No, 127 of 2008 is' answered in the NEGATIVE and the sentence of death of Muhammad Mumtaz (convict) is NOT CONFIRMED.
Conviction/Death /Acquittal Ordered.