MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above-captioned criminal appeal filed by appellant Muhammad Khalid Mehmood who was convicted by learned Addl. Sessions Judge, Depalpur, Distt. Okara in private Sessions complaint Case No, 39-ASJ of 2003 titled Abdul Ghaffar v.
Muhammad Khalid, etc. Under sections 302/324/ 148/149, PPC and challan case FIR No, 132/03, dated 2.5.2003 under sections 302/324/109/148/149, PPC registered at P.S. Hujra Shah Moqeem, vide impugned judgment dated 16.10.2006 and sentenced infra:---
(i) Life imprisonment u/s. 302 (b), PPC as Tazir with payment of Rs, 1,00,000/- to the legal heirs of the deceased Muhammad Farooq u/s. 544-A, Cr.P.C. And in default whereof to further undergo SI for three months.
(ii) One year's R.I. u/s. 337F(i), PPC for causing injuries on the person of Shahid Ahmed with payment of Daman Rs, 5,000/- and in default whereof to further undergo SI for one month.
' Both the sentences were ordered to run pari passu and was also extended the benefit of section 382-B, Cr .P. C .
' Similarly criminal revision No, 1057 of 2006 filed by Abdul Ghaffur complainant against respondent/convict Muhammad Khalid for enhancement of his quantum of sentences shall also be disposed of by this single judgment.
2. The woeful story of the case as epitomized by complainant Haji Abdul Ghaffur in FIR Exh.PK is that on 2.5.2003 at 6.30 p.m., he alongwith his brother Abdul. Ghaffar, Muhammad Yahya and Ismeel was sitting in his Dera. In the meanwhile, his son Muhammad Farooq alongwith Shahid s/o Abdul Rashid went to the cattle shed for untethering the cattle heads, abruptly, Muhammad Khalid, Khadam Hussain both armed with gun 12 bore, Muhammad Hanif, Muhammad Yousaf, both armed with pump action and Shah Muhammad armed with carbine 12 bore came out of the house of Muhammad Hanif and within their view, Muhammad Hanif raised Lalkara that Muhammad Farooq should not go alive. On this Muhammad Khalid appellant fired with his 12 bore gun which hit on left side of chest of Muhammad Farooq. Muhammad Hanif and Muhammad Yousaf accused also fired with their respective weapons which hit on Muhammad Farooq on his abdomen and flank.
Muhammad Farooq fell down after receiving the fire-arm injuries. Khadam Hussain fired with his gun 12 bore which hit Shahid at his abdomen and left side of his flank. Shah Muhammad accused fired with his pistol (carbine 12 bore) which hit Shahid on both thighs and below the umbilicus.
Shahid also fell down after receiving fire-arm injuries. On their hue and cry, many people gathered there and the accused persons fled away from the spot with their respective weapons.
Muhammad Farooq succumbed to the injuries at the spot.
' The motive behind the occurrence was that Muhammad Khalid accused suspected illicit liaison between Muhammad Farooq and his sister and due to this grudge all the accused persons committed Qatl-e-Amd of Muhammad Farooq and injured Shahid.
3. After culmination of investigation, report u/s. 173, Cr.P.C. Against Muhammad Khalid, Tariq Mehmood, Muhammad Hanif, Abdul Ghaffur, Shah Muhammad and Muhammad Akram by placing their names in column No, 3 of the said report was channelized whereas names of accused Khadam Hussain and Muhammad Yousaf were placed in column No, 2 of the said report as innocent.
4. Being dissatisfied with the investigation/challan submitted by the police Abdul Ghaffar brother of the complainant filed a private compliant Exh.PC under aforesaid offences against Muhammad Khalid, Tariq Mehmood, Muhammad Hanif, Muhammad Yousaf and Shah Muhammad almost on the same facts except that Muhammad Banff accused was alleged that he had fired which hit on left side of chest of Muhammad Farooq and fire of Muhammad Yousaf accused had hit Muhammad Farooq at his abdomen and right side of flank. Complainant further alleged in complaint that police had conducted dishonest investigation and without any reason had challaned Muhammad Hanif and Shah Muhammad u/s. 109, PPC only and declared Muhammad Yousaf and Tariq Mehmood alias Khadam Hussain accused innocent. Further alleged that the police in order to give undue benefit to the mentioned accused persons in FIR had also challaned Abdul Ghaffur and Muhammad Akram as accused who are not accused persons nominated in the FIR.
5. After recording the cursory evidence and inquiry report u/s. 202, Cr.P.C. Muhammad Khalid, Tariq Mehmood alias Khadam Hussain, Muhammad Hanif, Muhammad Yousaf and Shah Muhammad were summoned as accused persons to face trial in the case on 27.1.2004.
6. Learned Trial Court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused to which they did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charge.
7. The prosecuiion in order to prove its case produced 17 witnesses in all, out of them 5 witnesses were examined as PWs whereas 12 witnesses were examined as CWs.
Dr. Rai Niaz Ahmad, M.O. (PW.4) deposed that on 3.5.2003 he performed post-mortem examination on the dead-body of Muhammad Farooq deceased and observed as under:- INJURIES
(i) A fire-arm lacerated wound 4 cm x 4 cm x going deep, margins inverted, slight blackening was present, just close to the left nipple at 11.00 0' clock position, from injury No, 2.
(ii) There are four lacerated wounds, each measuring 1 cm x 1 cm margins inverted x going deep, just close to injury No, 1.
(iii) Multiple lacerated wounds each measuring 1 cm x 1 cm x going deep, margins inverted, slight blackening was present around the wound, at the lower part of right chest including right side of abdomen.
OPINION.
' After external and internal examination of the dead-body, the deceased person got multiple fire- arm injuries on his chest and abdomen, which injured the multi-organs. In his opinion, the cause of death in this case was severe haemorrhagic shock due to the haemorrhage, which was ordinary course of nature in a normal person. All the injuries were ante-mortem and caused by fire-arm weapons. Probable time that elapsed between injuries and death was almost immediate and between death and post-mortem was about 16 to 18 hours.
' Exh. PD was the correct carbon copy of postmortem report and Exh.PD/1 was the pictorial digrams showing the location of injuries also bore his signatures.
' Dr. Shujjah-ur-Rehman, M.O. (PW.5) deposed that he on 2.5.2003 at 8.50 p.m., conducted medical examination of injured Shahid and observed one injury on his body caused by fire-arm. The injury was declared as Jurh Ghair Jaifah Damiyah. Exh.PE was the correct carbon copy of MLC.
8. Learned DDA by tendering in evidence report of Chemical Examiner Exh.PG, report of Forensic Science Laboratory Exh.PH and report of Serologist Exh.PJ closed the prosecution case vide his statement dated 9.5.2006.
9. Thenceforth statement of the appellant was recorded u/s. 342, Cr.P.C. Wherein he negated the charge and professed his innocence. He also recorded his statement on oath as permissible u/s. 340(2), Cr.P.C. And he by producing DW.1 in his defence vide his statement dated 20.6.2006 closed his defence evidence.
' He in reply to a question "why this case against you and why the PWs deposed against you" replied infra:--- "The case against me is false and the PWs have deposed falsely against me".
10. On the conclusion of trial the appellant was convicted and sentenced as mentioned supra whereas his co-accused namely Tariq Mehmood alias Khadam Hussain, Muhammad Hanif, Muhammad Yousaf and Shah Muhammad were acquitted by the learned Trial Court. Hence, instant appeal as well as criminal revision.
11. Being assertive over the defence plea having been discussed and accepted by the learned Trial Court in chronological paragraph No, 40 of the impugned judgment, learned counsel submits that co-accused namely Tariq Mehmood alias Khadam Hussain, Muhammad Hanif, Muhammad Yousaf and Shah Muhammad have been acquitted and the accused persons involved during investigation namely Abdul Ghaffur and Muhammad Akram amongst the acquitted accused persons, former who had been mentioned in FIR had also been attributed specific injuries on the deceased as well as injured PW.2 Shahid Ahmad nevertheless learned Trial Court did not believe the prosecution case in totality, even prior to their acquittal, partway investigation Tariq Mehmood alias Khadam Hussain and Muhammad Yousaf were found innocent by the 1.0. While Muhammad Haneef was made responsible for hatching a criminal machination for the commission of murder and was recommended to be prosecuted u/s. 109, PPC. In these circumstances, the view of the learned Trial Court as to conviction of the appellant u/s. 302(b), PPC is concerned, the same is not only illogical, irrational but also unpalatable, notorious as well as iniquitous require to be overturned to the conviction of appellant u/s. 302(c), PPC, by setting aside his conviction u/s. 302(b), PPC.
12. Learned Addl. P.G. Assisted by learned counsel for the complainant while supporting the impugned judgment has submitted that occurrence has not been denied by the appellant and injured PW has also supported the version of the complainant; the appellant excelled to excess ignoring element for the use of force proportionally, therefore, appeal deserves to be dismissed as learned Trial Court has already shown adequacy so far as quantum of sentence is concerned.
13. Arguments heard. Record perused.
14. Since the occurrence has not been denied by the appellant. Prosecution version was not found correct in totality during the investigation, owing to it a direct private complaint was filed in which the trial held to ensuing the acquittal of the co-accused and accepting the plea of the appellant to be put- forth during the trial but, diversity was shown so far as conviction and sentence of the appellant was concerned. Right of private defence of his own body or too of his kith and kin cannot be measured by a golden scale and perception of a man may vary to another in such-like situation but once it accrues to its exercise to its proof then the Court may not go in obsession to oblivion in accepting the same in a bodacious way in all down rightness, herein it has been taken expedient to jot down the chronological paragraph No, 40 of the impugned judgment:--- "Muhammad Khalid accused in his statement u/s. 342, Cr.P.C. As well as u/s. 340(2), Cr.P.C. Has admitted that he had committed murder of Muhammad Farooq deceased and had also injured Shahid PW but while exercising his right of self-defence and in order to save abduction of his sister Mst. Rani Bibi. When the complainant party has impliedly admitted that Muhammad Farooq deceased was suspected having illicit relations with Mst. Rani Bibi and during investigation, it was also found correct; moreover, the PWs have also impliedly admitted it, therefore, Muhammad Farooq shall not be considered as "MASOOM-UD-DAM". From evidence of Shahid PW as well as from evidence of recovery of gun 12 bore it is evident that Muhammad Khalid accused had caused injuries on the person of Muhammad Farooq which resulted in his death and he had also caused injuries on the person of Shahid PW which have been declared as Ghair-Jaifah Damiyah.
His statement u/s. 342, Cr. P. C. As well as 340(2), Cr. P. C. Also corroborate this. Therefore, Muhammad Khalid is held responsible for committing Qatl-e-Amd of Muhammad Farooq deceased and also for causing injuries on Shahid PW. The accused has succeeded in making out some mitigation in this case by making a case that he had committed Qatl-e-Amd of Muhammad Farooq and had injured Shahid only in order to save abduction of his sister Mst. Rani Bibi and to save family honour. Muhammad Farooq deceased has also not been considered "MASOOMUD-DAM" therefore, some mitigation has arisen in this case".
' The peculiar circumstances having been discussed above, have persuaded the Court to dismiss the appeal by transmuting the conviction of the appellant u/s. 302(b), PPC to section 302(c), PPC and sentenced him to undergo R.I. For 10 (ten) years whereas his conviction and sentence for allegedly causing injuries to Shahid Ahmad injured PW is maintained and upheld. Both the sentences shall ran pail passu with benefit of section 382-B, Cr.P.C.
15. Record shows that appellant was arrested in the case on 22.7.2003, tried as under-trial prisoner, consequently, the impugned judgment was handed down on 16.10.2006 and was released by this Court vide order dated 12.8.2011 by suspending his quantum of sentence imposed upon him, therefore, it is directed that he be taken into custody to prison to serve out his remaining quantum of sentence, if any, in accordance with law.
16. With the above modification, the instant appeal stands dismissed accordingly.
17. As far as criminal revision No, 1057 of 2006 filed by Abdul Ghaffur complainant against respondent/convict Muhammad Khalid for enhancement of his quantum of sentences is concerned, for the reasons mentioned op-cit, instant criminal revision petition has been found meritless and the same stands dismissed accordingly.