' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No.265-J of 2009, filed by the appellant, Muhammad Iqbal, against his conviction and sentence, Criminal Appeal No.1235 of 2010, filed by the complainant Muhammad Nawaz, against acquittal of co- accused Ijaz Ahmad alias Riaz Ahmad, Muhammad Boota, Muhammad Akram, Muhammad Siddique, Muhammad Iqbal and Zafar Iqbal and Murder Reference No. 340 of 2009 (The State v.
Muhammad Iqbal), sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Iqbal convict, as all these matters have arisen out of the same judgment dated 5-8-2009, passed by the learned Additional Sessions Judge, Sialkot. Muhammad Iqbal appellant along with Ijaz Ahmad alias Riaz (since acquitted), Muhammad Boota (since acquitted), Muhammad Akram (since acquitted), Muhammad Siddique (since acquitted), Muhammad Iqbal (since acquitted), Zafar Iqbal (since acquitted), Muhammad Nazir ' Under section 302(b) of P.P.C. To death for committing the Murder of Asad Iqbal (deceased). He was directed to pay compensation of Rs.2,00,000 under section 544-A of Cr. P. C. To the legal heirs of the deceased Asad Iqbal and in default thereof to further undergo 06 months Imprisonment Benefit of section 382-B of Cr.P.C. Was also extended to the appellant.
' Learned Trial Court however, vide the same judgment dated 5-8-2009 acquitted co-accused Ijaz Ahmad alias Riaz, Muhammad Boota, Muhammad Akram, Muhammad Siddique, Muhammad Iqbal, Zafar Iqbal, Muhammad Nazir, Muhammad Sadiq and Muhammad Khalid Mehmood while extending the benefit of doubt in their favour.
2. Brief facts of the case as given by the complainant Muhammad Nawaz (P.W.3) in Fard Bayan (Exh.PB), on the basis of which the formal F.I.R. (Exh.PD) was chalked out, are that he (complainant) was resident of Mundair Khurd, Tehsil Sambariyal, District Sialkot and was holder of Coca Kola Agency. On 19-12-2007 at about 9-00 a.m., the complainant's nephew (Bhatija) Asad Iqbal (deceased) along with his cousin Muhammad Waqar Azam (P.W.1) while boarding on a motorcycle was going to the "Dera" from his home. On the way, accused Ijaz Ahmad alias Riaz Ahmad (since acquitted), Muhammad Boota (since acquitted), Muhammad Iqbal (appellant), Muhammad Akram (since acquitted), Muhammad Siddique (since acquitted), Muhammad Iqbal son of Khushi Muhammad (since acquitted), Zafar Iqbal (since acquitted) and an unknown person were already sitting ambushed in the Bhatick of accused Ijaz Ahmad alias Riaz Ahmad Csince acquitted). Asad Iqbal (deceased), when passed from near the Bhatick of Muhammad Siddique (since acquitted).
Muhammad Iqbal (appellant) and Zafar Iqbal (since acquitted) raised Lalkara while abusing that Asad Iqbal (deceased) and Muhammad Waqar Azam (P.W.1) be killed and they should be taught a lesson for not compromising the previous litigation. After raising Lalkara, accused Muhammad Ijaz alias Riaz Ahmad (since acquitted) fired at Asad Iqbal (deceased) with his pistol, which hit Asad Iqbal (deceased) on the upper part of his belly. Muhammad Iqbal (appellant), Muhammad Boota (since acquitted) and Muhammad Akram (since acquitted) also fired with their pistols and one fire shot of each (accused) hit Asad lqbal (deceased) at the different parts of his body and he (deceased) fell down in injured condition. It is further alleged in the F.I.R. (Exh.PD) that Muhammad Waqar Azam (P.W.1) saved his life while running in the adjacent street. At the time of occurrence Rashid Nawaz (P.W.2), who was going from his home Adha Sahowala to his "Tayazad" Asad Iqbal (deceased) also reached at the place of occurrence and witnessed the whole occurrence. All the accused persons fled away from the spot after raising lalkaras, while boarding the Mehran Car bearing No. LEA-4097 silver in colour, owned by Ijaz Ahmad (since acquitted). It is also alleged in the F.I.R. (Exh.PD) that the above mentioned accused persons committed the occurrence on the abetment and instigation of Muhammad Nazeer (since acquitted), Muhammad Sadique (since acquitted) and Khalid Mehmood (since acquitted).
3. The appellant Muhammad Iqbal was arrested by Faryad Ali Inspector (P.W.13) on 24-12-2007. On 10-1-2008, he (appellant) led to the recovery of pistol .30 bore (P-6) which was taken into possession vide recovery memo (Exh.PF). 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 Muhammad Iqbal and his co-accused Ijaz Ahmad alias Riaz Muhammad Boota (since acquitted), Muhammad Akram (since acquitted), Muhammad Siddique (since acquitted), Muhammad Iqbal (since acquitted), Zafar Iqbal (since acquitted), Muhammad Nazir (since acquitted), Muhammad Sadiq (since acquitted) and Muhammad Khalid Mehmood (since acquitted) under sections 302/109/ 148/149 of P.P.C., on 8-5-2010, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced thirteen witnesses during the trial.
Muhammad Nawaz (P.W.3) the complainant of this case Muhammad Waqar (P.W.1) and Rashid Nawaz (P.W.2) are the witnesses of the ocular account. Sharaiz Tahir (P.W.11) is the witness of abetment.
' Muhammad Amjad (P.W.8) is the witness of recovery of pistol 30 bore (P-6) which was recovered on the pointation of the appellant Muhammad Iqbal vide recovery memo Exh.PF.
' The medical evidence was furnished by Dr. Muhammad Arif Sheikh (P.W.10) and Dr. Gull Nawaz (P.W.12).
' Faryad Ali Inspector (P.W.13) was the Investigating Officer of this case. Sarfraz Ahmad 1168-C (P.W.4), Tahir Tasneem Draftsman (P.W.5), Waqar Khan A.S.-I. (P.W.6), Abdul Razzaq 1258/H.0 (P.W.7) and Zulfiqar Ali Constable (P.W.9) were the formal witnesses.
' The prosecution also produced documentary evidence in the shape of recovery memo of blood, stained cotton from the place of occurrence (Exh.PA), Fard Bayan of the complainant Muhammad Nawaz (Exh.PB), scaled site plan of the place of occurrence in duplicate (Exh.PC and Exh.PC/1), F.I.R (Exh.PD), recovery memo of last worn clothe's of the deceased (Exh.PE), recovery memo of pistol .30 bore at the instance of the appellant Muhammad Iqbal (Exh.PF), site plan of the place of recovery of pistol (Exh.PF/1), postmortem report (Exh.PG), pictorial diagram (Exh.PG/1), medico-legal report of the deceased (Exh.PH), inquest report (Exh.PJ), application for conducting postmortem examination of the deceased (Exh.PK), injury statement of the deceased (Exh.PL), rough site plan of the place of occurrence (Exh.PM), report of F.S.L (Exh.PN), report of Chemical Examiner (Exh.PO) and report of Serologist (Exh.PP) and closed its evidence.
5. The statements of the appellant and his co-accused under section 342 of Cr.P.C. Were recorded.
They refuted the allegations levelled against them and professed their 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:- "In fact, Muhammad Azam P. W who was injured P.W in case F.I.R. No. 622/2007 dated 28-7-2007 under sections 324/109/34, P.P.C., registered at Police Station Uggoki on the statement of Muhammad Inayat, paternal grandfather of Waqar Azam P. W. Muhammad Azam injured of said case is real brother of Amjad, Arif P.Ws of the present case. Muhammad Inayat wrongly implicated me in that case. In fact, Muhammad Azam was injured by one Abbas resident of village Ganjianwali, but I was falsely involved in that case with the allegation of abetment under Section 109, P.P. C. Asad Sohail deceased of this case and his father Muhammad Iqbal are record holder in the police station and desparate daring person. Sometimes prior to present occurrence, Waqar Azeem because of abovesaid case F.I.R. No. 622/07 along with Asad Sohail (deceased) resorted firing at me but 1 was luckily saved and the matter was not reported to the police because 1 did not want to indulge myself in enmity or criminal litigation being poor man and law abiding citizen.
1 could not afford that. It is submitted that on 19-12-2007 on the alleged day of occurrence, when I came to Adda Sahowala to go for Samberial when Asad Sohail (deceased) and Waqar Azam P. W came across me at Adda Sahowala at about 9.00 a.m and started abusing me and people present there forbad them to pick quarrel without reason and harle abuses, meanwhile I had a chance to make an escape to avoid further altercation as both Asad Sohail (deceased) and Waqar P.W. Were bent upon to do so. 1 apprehending imminent danger at their hands, returned to village. When I was way to home in the village, Asad Sohail (deceased) and Waqar P. W came behind me on a motorcycle and came infornt of me to block my way, at that time Waqar Azam who was driving a motorcycle and Asad Sohail (deceased) was got down from the rear of motorcycle on road and tried to fire at me by raising abuses and Lalkara, apprehending imminent danger to my life and in a right of exercise of myself defence and under the immediate fear of attack, resorted into firing at ,him, who fell down. Waqar Azam P. W picked up pistol and drove the motorcycle. I also ran away. 1 was all alone wizen I was attacked by Asad Sohail (deceased) and Waqar Azam P. W who followed me from Adda Sahowala on motorcycle on the day of occurrence.
On the same day, 1 surrendered myself to the police at my own and narrated the whole occurrence in the manner stated above, but the police kept pending my arrest and formally showed my arrested after many days of the occurrence on 6-1-2008. 1 am old age man of 50 years having children and law abiding citizen and poor man. Complainant party which is headed by Muhammad Inayat grandfather of Atnjad, Waqar and Arif P. Ws, who are rich, influential and strong people in the village and in the area. Police also support and help them. My plea was interrogated by the I.O. And on the application of the complainant party, my plea was investigated by DSP and SP investigation in presence of the complainant. A large number of people in support of my plea appeared before the police, but the police did not cite them as witnesses in list of witnesses and that from Adda Sahowala many persons as well as passerby were Asad Sohail and Wagar Azam who blocked my way at Adda Sahowala and endanger my life".
' The appellant did not opt to make statement on oath as envisaged under section 340(2) of Cr.P.C, however, in defence evidence he produced copy of statement of Waqar Azam (P.W.1) recorded under section 161 Cr.P.C. As (Exh.DA), copy of statement of Rashid Nawaz (P.W.2) recorded under section 161, Cr.P.C. As (Exh.DB), copy of statement of Muhammad Amjad (P.W.8) recorded under section 161 Cr.P.C. As (Exh.DC), copy of F.I.R. No. 622/2007 as (Exh.DD), copy of F.I.R No. 355/2007 as (Exh.DE), copy of F.I.R No. 313/2003 as (Exh.DF), copy of F. I . R No. 251/2002 as (Exh.DG), copy of F.I.R No. 175/2002 as (Exh.DH), copy of F.I.R No. 711/2005 as (Exh.DJ) and copy of F.I.R No. 19/2004 as (Exh.DK). The learned Trial Court vide its judgment dated 5-8-2009, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
6. Learned counsel for the appellant in support of this appeal, contends that the appellant has falsely been implicated in this case; that the complainant Muhammad Nawaz (P.W.3) was admittedly not present at the time of occurrence, and the same fact has been admitted by him (complainant/ P.W.3) in opening sentence of his cross examination; so far as Rashid Nawaz (P.W.2) is concerned, learned counsel for the appellant contends that he was not present at the spot and he was a chance witness and that his evidence was rightly discarded by the learned trial court after assigning valid reasons; that presence of Muhammad Waqar (P.W.1) at the place of occurrence is also doubtful in nature because he is a chance witness as he was going to the "Dera" from his house on a motorcycle along with Asad Iqbal (deceased) but no motorcycle was taken into possession by the police; that although Muhammad Waqar (P.W.1) stated in his statement (exathination-in-chief) that Muhammad Siddique (since acquitted), Muhammad Iqbal son of Khushi Muhammad (since acquitted) and Zafar Iqbal (since acquitted) raised Lalkara that Asad Iqbal (deceased) and Muhammad Waqar (P.W.1) be also killed for not effecting compromise but surprisingly he (Muhammad Waqar P.W.1) did not receive any injury during the occurrence; that the conduct of Muhammad Waqar (P.W.1) at the place of occurrence is highly unnatural because he did not make any attempt to shift Asad Iqbal (deceased) to the hospital and Asad Iqbal (deceased) was shifted to the hospital by Sohail Ahmad (given up P.W); that no specific motive was alleged in the F.I.R (Exh.PD), that although Muhammad Waqar (P.W.1) stated in his statement (examination-in-chief) that Muhammad Siddique (since acquitted), Muhammad Iqbal son -of Khushi Muhammad (since acquitted) and Zafar Iqbal (since acquitted) raised Lalkara that Asad Iqbal (deceased) and Muhammad Waqar (P.W.1) be killed as they were not compromising the previous litigation but no detail of litigation was disclosed by him; that recovery of pistol 30 bore '
(P.6) is immaterial because the report of Forensic Science Laboratory (Exh. PL) is only to the effect that the said pistol was in working order; 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 charges.
7. Learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that there is no conscious delay in reporting the matter to the police as the occurrence took place at 9.00 a.m., matter was reported to the police at 10.15 a.m., postmortem examination on the dead body was also conducted on the same day at 6.00 p.m.; that names of both the witnesses of ocular account i.e., Muhammad Waqar (P.W.1) and Rashid Nawaz (P.W.2) were mentioned in the F.I.R (Exh.PD); that Muhammad Waqar (P.W.1) who was going along with Asad Iqbal (deceased) on motorcycle is his cousin whereas the other eye- witness is also resident of the same village; that there was no reason for false implication of Muhammad Iqbal (appellant) and co-accused Ijaz Ahmad alias Riaz (since acquitted), Muhammad Boota (since acquitted), Muhammad Akram (since acquitted), Muhammad Siddique (since acquitted), Muhammad Iqbal (since acquitted), Zafar Iqbal (since acquitted), Muhammad Nazir (since acquitted), Muhammad Sadiq (since acquitted) and Muhammad Khalid Mehmood (since acquitted); that the ocular account of the . Prosecution is fully supported by the medical evidence as the deceased in this case received five injuries on his person, as per post mortem report of the deceased; that the prosecution case is also corroborated by the recovery of pistol .30 bore (P.6) at the instance of the appellant; that specific plea was taken by the appellant but he has not been able to prove the same; that appellant has himself admitted in his statement recorded under section 342, Cr.P.C. That he committed the murder of Asad Iqbal (deceased); 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; so far as the appeal of the complainant against the acquittal of Ijaz Ahmad alias Riaz (since acquitted), Muhammad Boota (since acquitted), Muhammad Akram (since acquitted), Muhammad Siddique (since acquitted), Muhammad Iqbal (since acquitted), Zafar Iqbal (since acquitted), Muhammad Nazir (since acquitted), Muhammad Sadiq (since acquitted) and Muhammad Khalid Mehmood (since acquitted) is concerned, learned counsel for the complainant contends that they fully participated in the occurrence and that they were wrongly acquitted by the learned trial court.
8. 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.
9. It is a case of two versions, i.e. One put forth by the prosecution in the form of ocular account furnished by Muhammad Nawaz, complainant (P.W.3), Muhammad Waqar (P.W.1) and Rashid Nawaz (P.W.2), whereas, the other has been brought on the record through the statement of the appellant, recorded under section 342 of Cr.P.C.
10. It is settled now by the Hon'ble Supreme Court of Pakistan in 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 eyewitnesses 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."
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of '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.
11. The occurrence in this case took place on 19-12-2007 at 09:00 a.m. Whereas the matter was reported to the police at 10:15 a.m and the formal F.I.R. (Exh.PB) was registered on the same day at 10:45 a.m. The complainant Muhammad Nawaz (P.W.3) though has not categorically stated during his statement that he was not present at the place of occurrence but during his cross examination, he (complainant) admitted that story regarding the occurrence was narrated to him by Muhammad Waqar (P.W.1) and Rashid Nawaz (P.W.2). Moreover in the opening sentence of cross examination, Muhammad Nawaz (P.W.3) admitted that he did not witness the occurrence which clearly proves the fact that complainant Muhammad Nawaz (P.W.3) is not the eye-witness of the occurrence.
12. Insofar as Rashid Nawaz (P.W.2) is ccncerned, we have noted that the evidence of Rashid Nawaz (P.W.2) is in conflict with the medical evidence because he (P.W..2) has assigned the role of inflicting a fire arm injury on the belly of Asad Iqbal (deceased) to accused Ijaz Ahmad alias Riaz (since acquitted) but according to the evidence of Dr. Muhammad Arif Sheikh (P.W.10), who conducted postmortem examination on the deadbody of Asad Iqbal (deceased), there was no injury on the belly of the deceased. He is son of the complainant. He could not justify his presence at the spot at the relevant time as he stated that at the time of occurrence, he was going from his house to the house of Asad Iqbal (deceased) which as per his own statement was situated towards the northern side of his house, whereas the place of occurrence 'was situated towards the southern side of his house . Even according to the statement of Investigating Officer of the case Faryad Ali Inspector (P.W.13) as per his investigation, Rashid Nawaz (P.W.2) was not present at the time of occurrence. We are, therefore, of the view that the learned trial court has rightly discarded the evidence of Rashid Nawaz (P.W.2) in paragraph No. 36 (c, d, e, f, g, k, 1, 1-1) of its judgment.
13. Insofar as the evidence of Muhammad Waqar (P.W.1) is concerned, as per prosecution case, on the day of occurrence he was going with Asad Iqbal (deceased) on a motorcycle to the "Dera" from their house, when they were intercepted by the appellant and Ijaz Ahmad alias Riaz (since acquitted), Muhammad Boota (since acquitted), Muhammad Akram (since acquitted), Muhammad Siddique (since acquitted), Muhammad Iqbal (since acquitted), Zafar Iqbal (since acquitted), Muhammad Nazir (since acquitted), Muhammad Sadiq (since acquitted), Muhammad Khalid Mehmood (since acquitted). Muhammad Siddique (since acquitted), Muhammad Iqbal (appellant) and Zafar Iqbal (since acquitted) raised Lalkara that Asad Iqbal (deceased) and he (P.
W.1) Muhammad Waqar be killed for not affecting compromise in previous litigation but we have noted that Muhammad Waqar (P.W.1) did not receive any injury during the occurrence. It is highly improbable that when intention of seven persons who were armed with firearm weapons, was to kill both Asad Iqbal (deceased) and Muhammad Waqar (P.W.1) then how he Muhammad Waqar (P.W.1) was spared. Moreover, the motorcycle upon which Asad Iqbal (deceased) and Muhammad Waqar (P.W.1) were allegedly riding at the time of occurrence was not taken into possession by the police to support the version of this witness which also creates doubt in the prosecution story.
Muhammad Waqar (P.W.1) has admitted during his cross examination that application (Ex:PB)
"Fard Bayan" was drafted by his relative Mr. Sohail Aamir, Advocate. Mr. Sohail Aamir, Advocate was not cited as an eyewitness of the occurrence in this case. The above mentioned admission on the part of Muhammad Waqar (P.W.1) is suggestive of the fact that F.I.R. (Exh.PD) was lodged after due deliberation and consultations. It is noteworthy that Muhammad Waqar (P.W.1) did not attributed any specific injury to Muhammad Iqbal (appellant) and a joint role of making fire shots upon Asad Iqbal (deceased) by Muhammad Iqbal (appellant) as well as co-accused Muhammad Boota .
(since acquitted) and Muhammad Akram (since acquitted) was assigned by him. He, however, assigned a specific injury on the chest of Asad Iqbal (deceased) to Ijaz Ahmad alias Riaz co- accused (since acquitted) but his evidence is in conflict with the story narrated by the prosecution in the F.I.R. (Exh.PD) and with the statement of other eye-witness namely Rashid Nawaz (P.W.2) wherein co-accused Ijaz Ahmad alias Riaz was assigned the role of inflicting an injury on the belly of Asad Iqbal (deceased). It is also note worthy that Dr. Muhammad Arif (P.W.10) did not note any injury on the belly of the deceased as alleged in the F.I.R. (Exh.PD). We have noted that Muhammad Waqar (P.W.1) implicated as many as 10 accused E persons in this case for the murder of Asad Iqbal (deceased). The learned trial court awarded death penalty only to Muhammad Iqbal (appellant) who was assigned a joint role of inflicting fire arm injuries on various parts of body of Asad Iqbal (deceased) along with co-accused Muhammad Boota and Muhammad Akram but said co-accused namely Muhammad Boota and Muhammad Akram have been acquitted by the learned trial court.
14. Now coming to the motive part of the prosecution, it is relevant to mention here that no specific motive was alleged in the F.I.R. (Exh.PD) by the complainant Muhammad Nawaz, Muhammad Waqar (P.W.1) and Rashid Nawaz (P.W.2) stated during their statements (examination in chief) that motive behind the occurrence was that Asad Iqbal (deceased) and Muhammad Waqar (P.W. 1) were not effecting compromise in the previous litigation. Rashid Nawaz (P.W.2). Admitted during his cross examination that neither the deceased Asad Iqbal nor Muhammad Waqar (P.W.1) were the witnesses of the case of motive incident, thus, there was no reason for the appellant Muhammad Iqbal and his co-accused to launch an attack on the complainant party. We are, therefore, of the view that the prosecution in this case, failed to prove any motive against the appellant.
15. Insofar as the recovery of pistol .30 bore (P.6) on the pointation of Muhammad Iqbal (appellant) is concerned, the same is inconsequential because the report of Forensic Science Laboratory (Exh.
PN) is only to the effect that the said pistol was in working order. In absence of matching report of any empty with the aforementioned pistol the alleged recovery of said pisto' is immaterial.
16. In the light of above discussion, we have come to this conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt.
17. Now coming to the defence plea taken by the appellant and evidence produced by him in his defence, we have noted that Muhammad Iqbal (appellant) took the following plea in his statement recorded under section 342, Cr.P.C.:-- "In fact, Muhammad Azam P. W who was injured P.W in case F.I.R. No. 622/2007 dated 28-7-2007 under sections 324/109/34, P.P.C., registered at Police Station Uggoki on the statement of Muhammad Inayat, paternal grandfather of Waqar Azam P. W. Muhammad Azam injured of said case is real brother of Amjad, Arif P. Ws of the present case. Muhammad Inayat wrongly implicated me in that case. In fact, Muhammad Azam was injured by one Abbas resident of village Ganjranwali, but 1 was falsely involved in that case with the allegation of abetment under section 109, P.P.C. Asad Sohail deceased of this case and his father Muhammad Iqbal are record holder in the police station and desparate daring person. Sometimes prior to present occurrence, Waqar Azeem because of abovesaid case F.I.R. No. 622/07 along with Asad Sohail (deceased) resorted firing at me but I was luckily saved and the matter was not reported to the police because I did not want to indulge myself in enmity or criminal litigation being a poor man and law abiding citizen. I could not afford that. It is submitted that on 19-12-2007 on the alleged day of occurrence, when I came to Adda Sahowala to go for Samberial when Asad Sohail (deceased) and Waqar Azam P. W came across me at Adda Sahowala at about 9.00 a.m. And started abusing me and people present there forbad them to pick quarrel without reason and hurle abuses, meanwhile I had a chance to make an escape to avoid further altercation as both Asad Sohail (deceased) and Waqar P. W were bent upon to do so. I apprehending imminent danger at their hands, returned to village. When I was way to home in the village, Asad Sohail (deceased) and Waqar P. W came behind me on a motorcycle and came in fornt of me to block my way, at that time Waqar Azam who was driving a motorcycle and Asad Sohail (deceased) was got down from the rear of motorcycle on road and tried to fire at me by raising abuses and Lalkara, I apprehending imminent danger to my life and in a right of exercise of myself defence and under the immediate fear of attack, resorted into firing at him, who fell down. Waqar Azam P. W picked up pistol and drove the motorcycle. I also ran away. 1 was all alone when I was attacked by Asad Sohail (deceased) and Waqar Azam P. W who followed me from Adda Sahowala on motorcycle on the day of occurrence. On the same day, I surrendered myself to the police at my own and narrated the whole occurrence in the manner stated above, but the police kept pending my arrest and formally showed my arrested after many days of the occurrence on 6-1-2008. I am old age man of 50 years having children and law abiding citizen and poor man. Complainant party which is headed by Muhammad. Inayat grandfather of Amjad, Waqar and Aril P. Ws, who are rich, influential and strong people in the village and in the area. Police also support and help them. My plea was interrogated by the 1.0. And on the application of the complainant party, my plea was investigated by DSP and SP investigation in presence of the complainant. A large number of people in support of my plea appeared before the police, but the police did not cite them as witnesses in list of witnesses and that from Adda Sahowala many persons as well as passers by were Asad Sohail and Waqar Azam who blocked my way at Adda Sahowala and endanger my life"
18. Although it has been argued on behalf of the prosecution that the appellant has himself admitted in his statement recorded under section 342, Cr.P.C,. That he committed the murder of Muhammad Iqbal (deceased) but this argument has no force because 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 inclupatory part of the statement 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 hereunder 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 'Shabbir 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 'Wagar 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 tow 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.'
19. In view of the above, as we have already discarded the prosecution evidence, the appellant cannot be awarded punishment on the basis of his statement recorded under section 342, Cr.P.C.
By accepting the inculpotary part of said statement and by rejecting exculpatory part of the same statement. We are fortified in our above mentioned views by the judgments passed by the Hon'ble Supreme Court of Pakistan in the case of 'Sultan Khan v. Sher Khan and others, (PLD 1991 SC 520) and Ghulam Qadir v. East Khan (1991 SCM R 61).
20. If the statement of the appellant is accepted as a whole then he (appellant) had the right of private defence of his body which also extends to cause death of the assailant as provided under section 100 of 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 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. ..........................
21. In the light of above discussion, we accept the Criminal Appeal No.265-J of 2009 filed by Muhammad Iqbal (appellant), set aside the impugned judgment dated 5-8-2009 passed by learned Additional Sessions Judge, Sialkot. Resultantly the conviction and sentence of the appellant is set aside and he is acquitted from the charge. He is in custody. He be released forthwith, if not required to be detained in any other case.
22. Murder Reference No.340 of 2009. Is, therefore, answered in the NEGATIVE and the sentence of death of Muhammad Iqbal (convict) is NOT CONFIRMED.
23. Insofar as the Criminal Appeal No.1235 of 2010, filed by the complainant Muhammad Nawaz against acquittal of co-accused Ijaz Ahmad alias Riaz Ahmad, Muhammad Boota, Muhammad Akram, Muhammad Siddique, Muhammad Iqbal and Zafar Iqbal is concerned, we have already disbelieved the prosecution evidence while discussing the case of Muhammad Iqbal (appellant) in Criminal Appeal No.265-J of 2009, therefore, the instant appeal i.e., Criminal Appeal No.1235 of 2010 filed against the acquittal of aforementioned accused is also dismissed.