' ASSADULLAH KHAN CHAMKANI, J.---Taj Muhammad convict/appellant was charged, vide F.I.R. No, 29 dated 24-2-2008 under sections.302, P.P:C., registered at Police Station Dargai. He was tried by learned Additional Sessions Judge/ Izafi Zila Qazi, Malakand at Dargai. Learned trial Court found him guilty of committing the Qatl-e-Amd of Rozi Khan, deceased, and he was convicted and sentenced under section 302(b), P.P.C. Through judgment dated 24-5-2010 to imprisonment for life.
He was directed to pay Rs, 2,00,000 as compensation to the legal heirs of the deceased or in default to suffer six months' simple imprisonment. Benefit of section 382-B, Cr.P.C. Was extended to him. The convict/appellant has filed Criminal Appeal No,493 of 2010 against his conviction and sentence while Bacha Muhammad, complainant, has filed Criminal Revision No,115 of 2010 of year 2010 for enhancement of the sentence awarded to Taj Muhammad.
2. We intend to dispose of Criminal Appeal No,493 of 2010 and Criminal Revision No,115 of 2010 through this single judgment as both arise out of the judgment dated 24-5-2010 passed by learned Additional Sessions Judge, Dargai.
3. Ali Rehman, Additional Post Commander, received an information that the inmates of house of Naik Muhammad, situated in village Dobandi, committed the murder of a thief and on such information he visited the spot, where he found the dead body of a deceased person lying outside the house of Naik Muhammad. Taj Muhammad son of Naik Muhammad, who was 'present on the spot, reported that at 22.00 hours when he came out from his house to attend the call of nature, he saw a boy while climbing the wall. He was challenged but he jumped from the wall and pounced at him, therefore, he made fire at him, as a result of which he was hit and died on the spot. He produced the said pistol to the Additional Post Commander, who took the same into his possession. Report was recorded in shape of Murasilla Exh.PA/1, which was signed by the complainant/accused in token of its correctness, thereafter, prepared the injury sheet Exh.P.W.8/1 of the deceased and handed over the dead body to Doctor for post mortem examination and sent Murasila to Police Station where case was registered at 01.10 hours on 24-2-2008.
4. Investigation was carried out by Ali Rehman but since he was illiterate, therefore, Shams ul Arifeen P.W.8 was his assistant, who on receipt of copy of F.I.R., proceeded to the crime spot, prepared the site plan, Exh.PB at the instance of complainant/accused and during spot inspection he took into possession a pistol produced by the accused, vide memo Exh.P.W.7/1, blood-stained earth and stones through recovery memo Exh.P.W.7/2, an empty of .30 bore Exh.P.W.7/3 and a bullet sent by the Medical Officer, vide memo, Exh.P.W.5/1. He arrested the accused and issued his card of arrest. He also took into possession bloodstained garments of the deceased Exh.P.W.3/1. The pistol, an empty of .30 bore and blood-stained garments of deceased were sent to Forensic Science Laboratory and its report is Exh.PZ and Exh.PZ/1. After completion of the investigation, case file was handed over to Post Commander, who submitted complete challan in the court for trial of the accused.
5. Learned trial Court after receipt of the complete challan, complied with the legal formalities, framed the formal charge against the accused, who did not plead guilty and claimed trial.
Prosecution in order to prove its case, produced eight witnesses. Thereafter, statement of the accused was recorded under section 342, Cr.P.C., wherein he totally denied the allegations levelled by the prosecution and stated that he has done the act in his self-dence. After close of the evidence and hearing the arguments of the parties, learned trial Court convicted and sentenced the accused as stated above.
6. Learned counsel for the appellant argued that the appellant himself reported the matter to the police on the spot and at the first instance stated that the deceased is not known to him and when he saw the deceased while climbing the wall of his house, he made lalkara, on this the deceased pounced at him therefore, he in the right of self-defence had killed the deceased person. He submitted that the accused in his statement under section 342, Cr.P.C. Totally denied the prosecution story and gave out his own version and stated that he has killed the deceased in exercise of right of self-defence. He submitted that the judgment of learned trial Court is based on presumptions and surmises because the occurrence is an unseen and the material available on the file totally negated the story of prosecution. He submitted that the learned trial Court, under the law, was required to have taken into consideration the statement of the accused in toto but he failed to appreciate the evidence on record on its true perspective. Lastly, he submitted that the prosecution has miserably failed to prove its case against the accused beyond any shadow of doubt and the learned trial Court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent evidence, therefore, the same is liable to be set aside and the accused be acquitted of the charge.
7. On the other hand learned counsel for the complainant argued that the plea of self-defence as taken by the appellant has totally negated the evidence on record. He submitted that the medical report as well as the FSL result is not supporting the plea of the appellant. He further argued that the prosecution proved its case against the accused beyond any shadow of doubt and that the appellant failed to substantiate his plea of self-defence. He supported the conviction and sentence awarded to the accused, however, argued that learned trial Court failed to give any cogent reason for withholding the normal penalty of death. He prayed for dismissal of the appeal and requested for enhancement of the sentence of life imprisonment to death.
8. Learned AAG appearing on behalf of the State adopted the arguments advanced by learned counsel for the complainant.
9. We have heard learned counsel of the parties and gone through the record with their valuable assistance.
10. Perusal of file would reveal that it was the accused Taj Muhammad, who set the aw into motion and lodged the report, wherein be stated that on the night of occurrence he went out of his house to ease himself when he saw a person while climbing the wall of his house, so, he challenged him, on this, he pounced at him, therefore, in self-defence, he made firing at him with which he was hit and died on the spot. The occurrence took place on 23-2-2002 at 2200 hours whereas the report has been lodged by the accused on the same night at 00.20 hours. It was on 26-2-2008, after three days of the occurrence, when complainant Bacha Muhammad recorded his statement under section 164, Cr.P.C. Wherein he charged the present appellant Taj Muhammad for the murder of his son. The complainant when appeared as P.W.6, he admitted in his cross-examination that he received information at 8-00 a.m. From the Police Station, so, he went there, where he found the dead body of his son, at that time his postmortem examination was conducted by the doctor. He further stated that neither he has seen the accused while firing at his son nor this fact has stated to 'him by someone. Therefore, the story as narrated by the prosecution, is not believable for the reasons that firstly, if the accused had taken the son of P.W.6 Bacha Muhammad to his house at evening time, he could have stated this fact to the police at the moment and record his statement before a Magistrate and secondly, the complainant failed to show any motive as to why the accused was prompted to kill his son and even he failed to produce a single witness from the inmates of his house to prove that his son had left the house in the company of accused, most particularly, when he admitted in his cross-examination that there were female and his son in the house. Therefore, statement of P.W.6 is not believable and appears to be afterthought,' so it could be thrown out of consideration. Duty of prosecution to prove its case against the accused beyond doubt does not diminish on raising of defence plea. It is not duty of the defence to disprove the case of the prosecution. Defence plea may be taken, may not be taken and may be sometime it is not proved. Burden of proof is not upon defence but is always upon prosecution to prave the case beyond doubt. It is sufficient if defence plea succeeds in causing a dent in the credibility of the prosention case.
' On the other hand, the accused took the plea of his self-defence from the very beginning as reflected from the contents of F.I.R. He stated in his report that deceased was trying to enter his house and on challenge, he pounced at him and his plea of self-defence was further corroborated by the site plan because when the Investigating Officer reached to the spot, he found the dead body of deceased, lying near the wall of his house and the deceased was shown at point No,2 in the site plan, Exh.PB. Besides further, Bacha Muhammad, P.W.6, in his court statement did not say anything with regard to motive behind the occurrence as to why the accused had killed his son.
The perusal of site plan also reveals that the house of accused is situated outside the village abadi and no house is situated adjacent to his house and further his house is surrounded by the fields.
Although, learned counsel for the complainant contended that the medical evidence is not supporting the plea of the accused because the Medical Officer found on the person of deceased "contusion" on his back but the same is of no help to him for the reason that as per version of the accused the deceased had pounced at him and he made firing. On perusal of medical report reveals that injury Nos.1 to 4 has been caused from front side. Besides the above, the clothes were burnt with gunpowder, meaning thereby that the deceased was fired at from close range.. True that the Medical Office found "contusion" on the person of deceased on the back side and further there was uncertainty with regard to injury No,4 as to whether it was, caused with fire arm or otherwise but such type of injury could be caused during grappling or on fall of ground.
11. Admittedly, the occurrence took place in odd hours of the night and the dead body of deceased was found near the wall of the house of the accused/appellant. No enmity between the appellant and deceased has been established on record. From perusal of entire evidence on record it is evident that prosecution has failed to advance any motive as to why the accused had killed the deceased. The occurrence is unseen and the prosecution has failed to produce a single witness to prove that the deceased was lastly seen in the company of accused on the way while going from the house of Bacha Muhammad to the house of accused. On the other hand the plea of appellant of self-defence is corroborated by the site plan, as the dead body of deceased was lying near the house of the accused and no motive was advanced by the prosecution as to why the accused was killing the deceased, most particular, when the accused is belonged to village "Dobandi" and the deceased was belonged to different village "Verteer". Except the statement of Bacha Muhammad P.W.6, which too, not rings true, no evidence was produced by the prosecution in support of its case.
True, when a defence plea is raised by the accused, the burden to prove the same lies upon him but where the prosecution evidence is discarded the defence taken by accused has to be believed or disbelieved in toto.
12. The right of self-defence conferred by section 96 of Pakistan Penal Code. The only consideration for self-defence is that a person threatened with danger of injury should not exceed the limits fixed by the law. This, of course, depends upon reasonable apprehension of danger to the person under the particular circumstances of the case. The reasonableness of the apprehension is a question of fact which depends upon the weapon used the manner of using it, the nature of assault or other surrounding circumstances.
13. From the above discussion, we are of the firm view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubts. We, therefore, hold that the appellant did the act in exercise of his right of self-defence but he has exceeded the same, keeping in view the nature of injures on the person of the deceased. Accordingly, we alter his conviction from that of section 302(b), P.P.C. To 302(c), P.P.C. And also alter his sentence from life imprisonment to ten years' R.I. Plus compensation of Rs,1,00,000 or in default to undergo further R.I. For six months.
' In the light of the above discussion, We partially allow this Criminal Appeal No,493 of 2010, set aside the conviction and sentence dated 24-5-2010, passed by Additional Session Judge/Izafi Zilla Qazi, Dargai and convert his sentence from life imprisonment to ten years' R.I. Similarly, compensation of Rs, 2,00,000, is also converted into Rs,1,00,000 to be paid to the legal heirs of deceased, which shall be recoverable as arrears of land revenue from his property or in default thereof to suffer six months' S.I. Benefit of section 382-B, Cr.P.C. Is also extended to the accused- appellant. As we have partially allowed Criminal Appeal No,493 of 2010, therefore, Criminal Revision No,115 of 2010 for the enhancement of sentence is dismissed.
Sentence altered.