NISAR HUSSAIN KHAN, J.---Appellant Munawar Bacha, has filed this criminal appeal against the judgment of learned Sessions Judge, 'Charsadda, dated 22.1.2014 whereby, on conclusion of trial in case FIR No,521, dated 20.12.2009, registered under section 302/34, P.P.C. Of Police Station Battagram, District Charsadda, he has been convicted and sentenced to death under section 302/34, P.P.C. Along with payment of compensation of Rs, one Lac to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. Or in default thereof, to undergo six months' S.I. Murder Reference under section 374, Cr.P.C. Has also been sent for confirmation of death of the convict.
2. Brief facts leading to the filing of instant appeal are that that on 20.12.2009, Ejaz Ali Khan, ASI, on receipt of information about occurrence, reached the spot where he found dead bodies of Kishwar and Sikandar lying on the spot. Mst. Basraja, wife of deceased Kishwar, present on the spot reported that on the eventful morning she along with her husband Kishwar, son Sikandar and other family members was present in her house when accused Qasim Bacha, Munawar Bacha and Zainul Abedeen Bacha, sons of Fayazullah Bacha, all duly armed, knocked the door of their house.
Her husband Kishwar and son Sikandar went out and all the three accused, started firing in order to kill them. On hearing the firing shots she along with her two daughters Maria and Nadia immediately went out and witnessed the accused firing at Kishwar and Sikandar, as a result, both of them breathed their last, on the spot. Motive for the occurrence was stated to be blood feud enmity. The occurrence is stated to have been witnessed by the complainant along with her two daughters Maria and Nadia. Accordingly, all the three assailants, named above, were booked for the commission of crime, vide FIR No, 521, dated 20.12.2009 registered under section 302/34, P.P.C. At Police Station Battagram, District Charsadda.
3. On the same day, accused Munawar Bacha, charged in the aforesaid FIR, in injured condition lodged report in the Hospital to the effect that on the fateful day at about 10.00 hours, he along with his brother Qasim Shah and other persons, was on his way towards Nawai when Khaista Khan and Abid Khan sons of Kishwar Khan, both duly armed, fired at him, as a result, he sustained fire arm injuries. Motive for the occurrence was stated to be a quarrel, taken place a few days back.
Accordingly, FIR No,522, dated 20.12.2009 under section 324/34 at Police Station Battagram, District Charsadda was registered against Khaista Khan and Abid Khan.
4. Since Munwar Bacha, accused charged in FIR No,521, was injured, so he remained hospitalized till his recovery whereafter he was shifted to Jail. However, he was formally handed over to local police for investigation on 18.3.2010. After completion of usual investigation, the accused was sent up for trial before the learned Additional Sessions Judge, Shabqadar and learned trial court on conclusion of trial, recorded his conviction under section 302/34, P.P.C. And awarded him death penalty on two counts with fine of Rs,3 lac in terms of section 544-A, Cr.P.C. Or in default to suffer imprisonment for one year's R.I., vide judgment dated 3.11.2010. On appeal before this Court, the case was remanded on 09.8.2011 to the trial court with the directions to examine all essential witnesses of the alleged cross case and to bring on record, the original medico-legal report, the discharge slip, FIR, site plan, recovery Memo if any regarding incriminating articles and other documents deemed essential. In the given circumstances, it must be done through the authors of the said documents like Medical Officer, Investigating Officer and other witnesses. It was further observed that the appellant Munawar Bacha would be at liberty to lead his own evidence or give statement on oath where after the case should be decided.
5. After remand, when trial of the accused Munawar Bacha commenced, co-accused Zain ul Abedeen Bacha was also arrested and as such both the accused were tried by the learned trial court in light of directions of this Court, and on its conclusion, the learned trial court, while acquitting co-accused Zain ul Abedeen Bacha, again awarded sentence of death to Munawar Bacha with fine of Rs,on lac in terms of Section 544-A Cr.P.C. Or in default to suffer six months' S.I., vide judgment dated 24.3.2012. On appeal, the case was once again remanded on 2.5.2013 to the trial court because earlier remand order of 9.8.2011 was not complied with, with reference to bringing on record the evidence of cross-case. However, while remanding the case to the extent of convict Munawar Bacha, the Division Bench, kept the acquittal of co-accused Zain ul Abideen Bacha intact as no appeal against his acquittal was preferred by the other side.
6. On second remand, the learned Sessions Judge Charsadda, in the light of remand order, recorded evidence of the, cross case FIR No, 522 and to this effect examined 5 RCWs, namely, RCW.1 Silwar Khan, ASI, RCW.2 Dr. Farhad Badshah, Medical Officer, Civil Hospital, Shabqadar, RCW.3 Abdullah Jan Khan, S.I. All these witnesses exhibited, relevant documents of cross case comprising on Murasila, FIR, injury sheet of appellant, medical report, site plan and other documents. This witness has correctly owned his signatures on both aforesaid documents. RCW.2 Dr. Farhad Badshah, Medical Officer, Civil Hospital Shabqadar examined the injured at 10.55 a.m. Of 20th December, 2009 and found one firearm entry wound on right side of front of chest above the right nipple with corresponding exit on back and the witness after giving emergency treatment, referred the injured to LRH Peshawar for management and opinion. RCW.3 Abdullah Jan Khan, S.I. Is also Investigating Officer in the cross case FIR No,522. He arrested the injured being accused in case FIR No,521, vide arrest card Ex.RCW.3/1, recovered blood stained earth from the place of injured in case FIR No, 22, vide recovery Memo. Ex.RCW.3/2, took into possession blood stained qameez, shalwar and bunyan of injured vide recovery Memo Ex.RCW.3/3, prepared site Plan Ex.RCW.3/4. In cross- examination, this witness has deposed that after completing investigation in FIR No,521, he investigated the case in cross case FIR No,522 as well. This witness has further stated in his cross- examination that venue of occurrence in both the cases is the same. RCW.4 Iftikhar Ali Constable is marginal witness to the recovery Memo RCW.3/2 vide which the L.O. Recovered and took into possession blood stained earth from the place of injured Munawar Bacha. After closure of evidence of cross case, accused Munawar Bacha was examined .Under section 342, Cr.P.C. Wherein he denied the charge and claimed innocence but refused to be examined on Oath. On conclusion of trial, the learned trial court vide judgment dated 22.1.2014, recorded conviction of the appellant, as referred in Para-1 above. Hence the instant appeal.
7. Learned counsel for appellant emphasized that there is a cross FIR registered on report of appellant who himself was injured in the occurrence and in view of this cross version, prosecution story, as advanced by the complainant and eye-witnesses, is un-worthy of credence. He maintained that house of the complainant is not shown in the site plan whereas according to P.M.
Report, bullet travelled from down to upward in the skull of the deceased Kishwar which contradicts FIR version; that co-accused Zain ul Abedeen has been acquitted on the same set of evidence by the trial court, benefit of which should be extended to the appellant too; that injury on the person of appellant was suppressed by the complainant; that no weapon or bullet has been recovered from the site of occurrence, hence he is entitled to the acquittal.
8. As against that, learned AAG vehemently opposed the contention of learned counsel for appellant and contended that he was arrested on the spot whereas motive is also established from the evidence and the stance of the appellant. He pointed out that Kishwar deceased is not charged in the cross FIR in which no explanation of two murders has been offered. He emphasized that appellant was hit by the firing of his co-accused; that presence of the eye-witnesses was natural, hence appellant has rightly been convicted by the trial court which needs not be interfered with.
9. It is borne out from the record that case was twice remanded by this court whereby appellant was afforded ample opportunity to put forth his defence version so that the court may reach at just conclusion for safe administration of justice. 'Though during initial trial, there were some cursory suggestions to the PWs relating to the cross version but no effort was made to bring on record the evidence including the documents of the cross case. On the occasion of second remand, it was also noticed in the impugned judgment that the appellant was convicted and sentenced on one count for two murders and same is the position in the impugned judgment as well. In this backdrop though it requires to be remanded but we are not inclined to make this case shuttle cock just for the failure of the trial court to attend to all aspects of the case itself. Rather it did not take notice of the remand order. Hence, we as appellate court, in exercise of powers under section 423, Cr.P.C., proceed to decide the case in light of evidence, led at the third trial.
10. In case of cross version, it is settled law that at first instance prosecution evidence is to be appreciated in its entirety and then the cross-version is to be discussed which is to be followed by assessm ent of the whole evidence in totality for reaching at just conclusion. If in the appreciation of evidence, prosecution version is found not worthy of credence, the defence version is to be accepted in totality. In cumulative assessment of the whole evidence, if the court comes to the conclusion that the defence version is not worth reliance and the prosecution evidence is trust worthy and confidence inspiring, latter is to be believed, followed by recording conviction.
11. In the instant case, law was set in motion on the report of Mst. Basraja regarding murder of her husband Kishwar and son Sikandar at the venue of occurrence. She reported that on the eventful morning, she alongwith her husband and son and other inmates of the house was present at home when Qasim Bacha, Munawar Bacha and Zain ul Abedeen Bacha, Sons of Fayazullah Bacha, armed with fire arms, came in front of her house and knocked the door, on which her son Sikandar and husband Kishwar went out. On them, all the accused made firing. She also came out of the house on hearing the fire shots and witnessed the occurrence when all the accused were firing on her deceased husband and son who were hit by the fire shots of accused and succumbed to the injuries on the spot. The occurrence was witnessed by herself and her daughters Mst. Marya and Mst. Nadia.
12. Dr. Zar Ali Khan PW.3 conducted autopsy on the dead body of the deceased who opined that Sikandar deceased sustained 7 firearm entry wounds, out of which six were on vital parts of the body and 7th was on left leg ankle which damaged all the vital organs and were the cause of death. Whereas Kishwar deCeased, an aged man of 70 years, had 4 firearm injuries, out of which one was on neck below right ear causing exit on left side above left ear, regarding which learned counsel for appellant argued that it was injury from down to upward. The seat of injury is skull having hard bone and diversion of bullet after hitting hard surface is common phenomenon.
Complainant Mst. Basraja testified as PW.6 who reiterated whatever was narrated in the FIR. When she was confronted with the injury of appellant, it was explained that it was the result of firing of his own companions and they have falsely lodged the cross FIR. It was stated by her in her cross- examination that her son Abid was murdered through hired-assassin by the accused/party, in tribal area. Except putting suggestion relating to cross case registered under section 324/34, P.P.C., no material contradiction or dent could be caused in the prosecution story, though all the witnesses were subjected to lengthy and searching cross-examination. Mst. Marya also testified as PW.7 and corroborated the statement of her mother, PW-6. They both stood firm to the stance alleged in the FIR. Their testimony could not be shattered in lengthy cross-examination. Their statements are corroborated by the site plan, recovery of blood from the place of both the deceased and recovery of empties from the venue of occurrence as circumstantial evidence.
Appellant was examined under section 342, Cr.P.C. In which he was offered to put up his defence or make statement on oath but he .Did not avail both the opportunities, except complete denial of the prosecution story. However, he admitted that he was injured at the venue of occurrence and sustained injuries which, he alleged, were the result of firing of the complainant party. He did not explain the murder of both the deceased. Ocular account furnished by two natural eye-witnesses, rings true who attracted to the spot, falling in front of their house, on hearing the fire shots, because a moment earlier, both the deceased were summoned by the accused party. The statement of eye-witnesses are corroborated by medical evidence, recovery of blood stained earth and crime empties from the place of occurrence. The FSL report Ex.PW.7/5 explains that all the 10 empties of 7.62 bore were fired from different weapons which lends further support to the prosecution version.
By firmly connected chain of evidence comprising ocular account and circumstantial evidence, prosecution has succeeded to bring the guilt home of the accused.
13. Now coming to the cross version reflected in FIR No,522 for injury on the person of appellant, registered under sections 324/34, P.P.C., in which appellant charged Khaista Khan and Abid Khan sons of Kishwar out of whom, Khaista Khan is the deceased of case FIR No,521 whereas Abid Khan was later on murdered in the tribal area. Strangely, presence of Kishwar, second deceased of FIR No,521 has not been shown in alleged cross FIR. Above all, appellant has suppressed his own role and concealed factum of death of two deceased Kishwar and Khaista Khan who lost their lives in the same occurrence, which, according to the appellant, is a cross case. Appellant not only suppressed the murder of two deceased in his report but did not bother to explain the same in his statement under section 342, Cr.P.C. Which rocks the very veracity of the cross version. He did not utter a single wprd in his alleged cross report FIR No,522 RCW.5/1 and in his statement under section 342, Cr.P.C. That the complainant party was aggressor and he acted in his self defence. Nor it is the case of appellant that both the parties suddenly came across and tested their strength, due to blood feud. So much so that record of the cross-case was tendered in evidence on the direction of this court and that too on the second time which indicates that appellant was himself aware of inherent defects of his cross version. The only factum of the injury on his person was the reason which resulted in registration of case under section 324/34, P.P.C. When complainant was confronted with the injury on the person of appellant, she explained that it was the result of firing of his own companions. This part of the statement of complainant when seen in the light of site plan, it appears that appellant was near the place of deceased Kishwar, an old man of 70 years in the firing range of his own companion. Possibility of his injury at the hands of his co-accused cannot be ruled out. However, it cannot, in the circumstances, be connected with Kishwar deceased, an aged man of 70 years who was empty handed.
14. The whole episode is to be visualized in general perception as well as common practice of the society where people do make exaggeration. It is for the court to appraise the evidence and determine the mode and manner of occurrence with all corresponding possibilities, appearing on the record. It appears that when Sikdander alias Khaista Khan son of the complainant was attacked and murdered by the accused "party at Point No,5, deceased Kishwar came out from his house for his rescue who was done to death at Point No,4 on his way towards his son. Though the I.O. Has not shown house of the complainant in the site plan but as per evidence, it falls on the back of house of Jasam connected through Batagram street. It is pertinent to mention that house of the accused party is not shown in the site plan and it has been brought in the 'evidence that their house falls at a distance of one K.M. From the venue of occurrence. Admittedly, the occurrence has taken place near the house of complainant party in which father and son had been murdered which clearly indicates the aggression of accused party.
15. The principle of cross version primarily stems out of right of private defence as embodied in sections 96 and 97, P.P.C. But are subject to restrictions contained in section 99 of the P.P.C.
1860. Section 96 stipulates that nothing is an offence which is done in the right of private defence and section 97, P.P.C. Enjoins that every person has a right to defend his own body and the body of any other person, against any offence affecting human body as well as property whether movable or immovable of himself or of any other person, against any act which is an offence falling within the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass, subject to the restrictions contained in section 90, P.P.C, Exceptions provided in section 99, P.P.C. Enjoins that there is no right of private defence against acts which are not reasonably causing apprehension of death or grievous hurt, if done or attempted to be done by a public servant acting in good faith under colour of his office. Apart from others, there is no right of private defence against acts which do not reasonably cause apprehension of death or grievous hurt. Section 100 further elaborates the circumstances in which right of private defence may extend to causing of death or any other harm to the assailant which is subject to the restrictions stipulated in section 99, P.P.C., which runs as follows:- "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: An assault with the intention of committing rape; Fourthly: An assault with the intention of gratifying unnatural lust.
Fifthly: An assault with the intention of kidnapping or abduction.
Sixthly: An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
16. Phrase "voluntary causing of death of the assailant" contained in section 100, P.P.C. Points to a person who launches an assault and the victim of assault acts in his self-defence. The question whether complainant party had launched an attack or were they assailants has already been answered in view of the ocular account and the site plan and venue of occurrence that it was the accused party who launched attack and not the complainant party. Above all, it is a special' exception, 'which was to be pleaded and proved in terms of Article 121 of Qanun-eShahadat Order, 1984, by none else but by the appellant. It has been discussed earlier that appellant has never made a serious effort to plead case of self-defence nor he uttered a single word in his statement under section 342, Cr.P.C. Nor in his initial report. So much so that he did not opt to make statement on oath to explain his position. In view of all these material deficiencies and legal infirmities emanating from the cross version, it may not be treated as a case of self-defence in legal parlance. Rather it was a simple case of assault launched by the accused party in which two persons have lost their lives and the accused party including the appellant is responsible for their murder.
17. So far as acquittal of co-accused Zain ul Abedeen is concerned, suffice it to say that since no appeal was filed against his acquittal by the complainant or the State so this court while remanding the case of the appellant did not interfere with order of his acquittal. However, mere non-challenging the acquittal of co-accused, would not ipso facto be a ground for acquittal of the appellant if otherwise on appraisal of evidence, he is found guilty of the murder of two persons.
Complainant party may not be so resourceful to hire services of the counsel and file appeal against acquittal of co-accused, as even today the complainant has shown her inability to engage a counsel and the case was argued by learned AAG so she might not have filed .Appeal due to financial constraints. There might be some other reason too, which have been cause of non-filing of appeal against acquittal of co-accused, thus appellant may not earn premium on this technical ground, alone. Hence this plea of the counsel for appellant is repelled.
18. There are three assailants charged including the appellant for the murder of two deceased and it is not certain that whose fire shots proved fatal. Appellant too has raised plea of cross version though during the course of examination of PWs. Out of 3, one accused is absconding and the other one has been acquitted by the trial court against whom no appeal has been filed by the complainant party. All these material facts form an extenuating circumstance in favour of the appellant. In view of peculiar circumstances and facts of the case, sentence of life imprisonment would be the proper punishment to meet the ends of justice.
19. Thus by partially allowing this appeal, sentence of death is converted into life imprisonment with compensation under section 544-A, Cr.P.C. As awarded by the trial court on two counts, with benefit of section 382-B, Cr.P.C. The sentences shall run concurrently. As a corollary whereof, the Murder Reference is answered in negative.