1. ' SAEEDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is filed by the complainant in a criminal case to call in question the order of the Lahore High Court dated 25-11- 1990, whereby the learned High Court refused to confirm the death sentence awarded to respondent by the trial Court under section 302, P.P.C. And accepted the appeal of respondent No,1 partly Altering his conviction from sections 302, P.P.C. To 304, Part I, P.P.C. And awarded him sentence of 7 years' R.I. And fine of Rs,5,000 and in default of payment of fine to undergo further R.I.
2. For one year with benefit of section 382-B, Cr.P.C.
3. ' Leave was granted in the case to consider the following contentions:- "After hearing the learned counsel who argued that the bare statement of the accused which could be an afterthought (developed between crime and custody), without any further material to support him nor he having been injured there was no justification for accepting his bare statement.
4. It was not even supported by circumstantial evidence in even dragging marks despite the assertion that he was dragged for nearly 50 yards away from his house.
5. After hearing the learned counsel we consider it a fit case to grant leave to appeal to examine; whether, the respondent could at all be given the benefit of (exceeding) the right of private defence. Non-bailable warrants shall issue against him for appearance before the Court."
6. ' The fact that the deceased Muhammad Anwar in the case died as a result of firing by the respondent from his fire-arm is not denied by the respondent/accused who has taken the plea that he fired at the deceased in self-defence. Therefore, burden of proving that respondent acted in self-defence in firing at the deceased was on the respondent/accused in the case. In order to establish the plea of self-defence, the respondent did not lead any evidence. The only material on record in support of the plea of self-defence raised by the respondent is his statement recorded by the trial Court under section 342 and section 340, Cr.P.C. The respondent in reply to a question by the trial Court during his examination, under section 342, Cr.P.C. Stated as follows:- "Q. Why this case against you and why the witnesses have deposed against you?
7. A. All the witnesses produced by the prosecution are related to the deceased and no independent witness has been produced from the locality which is quite a big one. About 15-20, days prior to the occurrence, the deceased and myself happened to have a quarrel at the Hamam of Joora and the matter ended there. On the day of occurrence, Sarfraz, Zulfiqar and Sarwar came to my house and inquired from me whether I had an argument with the deceased Muhammad Anwar at the Hamam of Joora to which I answered in the affirmative and with the intervention of certain persons present there the matter had been ended once for all and thereafter there was no annoyance between us as he met me twice or thrice thereafter in a normal way. Sarwar who is related to the deceased distantly reiterated the same incident and I replied in the same manner. Meanwhile, Zulfiqar and Sarfraz abused me by standing near the door of my house. I asked them not to do so and they threatened me with dire consequences for taking revenge of the insult caused to the deceased. They caught hold of me and dragging me in that position took me 50 yards away from my house. Releasing myself I ran back to my house and then picked up my pistol and went out. In fact, they had fired at me and then I had come back to my house and picking up my pistol had gone out. After going out of the house, I fired a shot in the air and scared by it Zulfiqar and Sarwar took shelter by forcibly entering into the house of our neighbour Muhammad Ashraf. Meanwhile, somebody informed Muhammad Anwar at his house about this incident, and he armed with a dagger, accompanied by As lam armed with a hockey stick and their nephew, whose name I do not know, armed with a hatchet came to my house despite the advice of many persons of the locality and tried to attack me. I standing in the door of my house fired a pistol shot which hit the floor 'made of concrete and the bullet after deflecting hit Muhammad Anwar on the chest. This occurrence took place in front of the house of Muhammad Ashraf. Thereafter, I went back to my house and informing about the incident to my family members, I went out. Mohallandars told me that later the opposite party had broken the window panes of our house."
8. ' According to the above statement of respondent, on the day of incident Sarfraz, Zulfiqar and Sarwar came to the house of respondent and enquired from him about the altercation between him and the deceased Muhammad Anwar during the incident in the Hamam of Joora which he confirmed but added that this matter was resolved amicably at the intervention of some persons present there and that thereafter there was no ill-feeling between him as the deceased Muhammad Anwar, Muhammad Sarwar, who was distantly related to Muhammad Anwar, deceased however, reiterated that incident whereupon Zulfiqar and Sarfraz abused the respondent and then they all dragged him about 50 yards from his house. The respondent, however, managed to get himself released and rush back to his house and picked up his pistol and went out and fired in the air. Thereupon Sarwar and Zulfiqar got scared and took shelter by forcibly entering into the house of Muhammad Ashraf. Muhammad Anwar, deceased, in the meantime was informed by someone about the above incident who armed with a dagger accompanied by Muhammad Aslam armed with a hockey, and their nephew armed with hatchet arrived at the scene. The respondent who was standing at his door for all this time fired a shot from his pistol which first hit the concrete floor and after deflection hit Muhammad Anwar deceased in his chest resulting in his death.
9. ' The prosecution story on the other hand is that on account of civil and criminal litigation between the complainant Muhammad Bashir and the first cousin of the respondent's father Muhammad Hussain, which was pending at the time of incident, the parties were inimical to each other. In this background of enmity, on 14-11-1987 at about 8-30 a.m, when the deceased Muhammad Anwar was getting ready for a bath, the respondent called him out and asked him why he abused his uncle Ghulam Hussain. On denial by the deceased, the respondent asked the deceased to accompany him to the house of his uncle and said so to in his presence. The deceased, accordingly, accompanied the respondent and when they reached behind the house of respondent, his brother Qaiser Mehmood came out of the house and exhorted the respondent why he brought the deceased alive. The respondent then took out his pistol and fired at the deceased resulting in his death.
10. ' It was, therefore, clearly a case of two versions of the same incident, one given by the prosecution and other by the accused. The Court, therefore, had to examine both these versions in, juxtaposition to determine which one was nearer to truth being in accord with the evidence on record. The trial Court considered both these versions as follows:-- "The prosecution as well as the defence both have alleged their respective motive and each has given its own version of the occurrence. No doubt it is the duty of the prosecution to prove its case against the accused beyond any shadow of doubt, particularly when it was brought a charge of capital punishment against him but where the accused has taken upon himself the responsibility of causing the death of a person, then the onus, to a greater extent, shifts on him to show plausible justification for it. In this case the prosecution has alleged civil and criminal litigation between Muhammad Bashir complainant on the one hand and Muhammad Hussain on the other as the motive for the crime and in this inimical background Muhammad Hussain accused having investigated his co-accused, who are sons of his first cousin, to commit murder of Muhammad Anwar (deceased) who had allegedly also insulted one of the uncles of Khalid Mahmood accused.
11. The defence, on the other hand, alleged the quarrel between Khalid Mahmood and Mohammad Anwar (deceased) at the shop of Joora barber taking place about 3 weeks prior to the occurrence as the reason which goaded the complainant party to attack him (accused) by coming to his house and he having fired a pistol shot in his self-defence and that too not directly at the .Victim but on the floor of the street which deflected the bullet to his chest. To my mind, out of these two versions, the one related by prosecution seems to be more plausible. The civil and criminal litigation between elderly persons of two families, who both own land at one and the same place, created sufficient bad blood between them and this acrimony did not remain confine only to the persons who actually stood locked in the civil litigation, rather it went down to the respective members of their family, particularly the younger elements of either side. This was but natural in our social set up and way of life. Therefore, Khalid Mahmood and Qaiser Mahmood accused being sons of the first cousin of Muhammad Hussain accused, who is said to be an influential person of their faction, naturally felt annoyed by the litigation unleashed by Muhammad Bashir complainant supported by his sons and other near relations. The incident of Muhammad Anwar (deceased) having allegedly abused one of the uncles of Khalid Mahmood accused, though denied by the complainant party, must have aggravated the already tense situation. This being so, I am inclined to believe that Khalid Mahmood did come to the house of Muhammad Bashir complainant fully armed and determined to avenge the insult that Muhammad Anwar (deceased) had heaped on them by allegedly abusing an elderly person of accused's family and taking him out of the house on a pretext, shot and killed him. To my mind, the most important item of evidence in support of this conclusion is the fact that Muhammad Anwar (deceased) at the time of occurrence was wearing only a Lacha around his waist and he had no other cloth on his body. Soon after the occurrence he was taken in a seriously injured condition to the Civil Hospital, Sialkot where he died soon after reaching there and the Doctor removed from his dead body only the Lacha or Dhoti Kanaridar as he described it in the postmortem examination report. This fact lends support to the statement of Muhammad Bashir (P.W.) that when Khalid Mahmood accused called out Mohammad Anwar (deceased) he was ready to take bath and was only wearing a Lacha. It shows that he was suddenly called out by the accused and he went out to hear him without bothering to properly dress himself and then in the same dress he accompanied him with a view to furnish his defence that he had not abused the old man. If the motive for the crime and the manner of occurrence were such as given by Khalid Mahmood accused, the deceased would have certainly not gone to the place of occurrence in that dress."
12. ' The learned High Court, however, did not agree with the above assessment of evidence by the trial Court and preferred the version of the accused for the following reasons:- "18. The occurrence had taken place in winter and it must have been pretty cold at 8-30 a.m. On 14th January i,e. The day of occurrence. The story of the eye-witnesses that the deceased had gone out of the house wearing only Tehband (loin cloth) when called out by the appellant, in view does not fit in with the circumstances put forth by the complainant.
13. ' It is not his case that he had been called out urgently or that something aweful was happening in the street which required the deceased to go there in whatever dress, he was. He had been called out by the appellant whom he knew earlier too. He, could well have found a few minutes to put on his shirt at least Even if it is granted for the sake of argument that he thought it more necessary, or courteous even to attend the call of the appellant immediately, he would have certainly asked him to let him put on clothes before accompanying him (the appellant) to his uncle (acquitted accused Muhammad Hussain). The complainant and his other sons were also there. They would have also asked that if he wanted the deceased to go Muhammad Hussain, he should let him wear the clothes. It is apparent from the statement of the complainant and the other witnesses that the deceased had not been taken on gunpoint. He had been only asked, to go to Muhammad Hussain to contradict that he had ever abused him. We are of the view that the circumstances narrated by the eye-witnesses did not at all make out a case of such an urgency wherein the deceased would have been required to have come out and accompany the appellant to the place of occurrence, wearing only a Cheddar in the winter season and that too in the middle of January, early in the morning. We think that the deceased would have only gone out in such a state if something awful or at least very undesirable was happening outside, requiring his immediate presence or attention.
14. The situation is corroboratory to the stand taken by the appellant, that firstly the persons other than the deceased had attempted to attack him and that some shots had also been fired at him and that the deceased had been run there to launch attack on him to lend help to the assailants.
19. The appellant had not only come up with his version while making statement under section 342, Cr.P.C. But he had put such suggestions to the eye-witnesses as well. Not only that, he had on the very first day of his arrest putforth his version of the occurrence. The ASI who had arrested him, in his statement, admitted of that. The occurrence had taken place close to the house of the appellant. If he had any intention to murder the deceased and had gone to the house of the deceased with a pistol in his pocket with a premeditated mind to murder him, he would not have waited for firing at him till the deceased had accompanied him to the spot and till he was exhorted by his acquitted accused to finish him. He could well have fir at the deceased as soon as he came out. Moreover, if the deceased had been taken by the appellant from his house, in a quarrelsome manner, the father and other brothers of the deceased would firstly not have allowed him to take the deceased with him and secondly would have at least not gone unarmed. It appears from their statements that they remained mere spectators from the time the deceased was called in the street, to the time the shot was fired at him. They did not claim to have uttered any word when the deceased was questioned by the appellant about his having abused Muhammad Hussain uncle of the appellant. They did not question him as to why he was taking the deceased to Muhammad Hussain. All this, appears to us, not only unnatural but highly improbable too.
15. ' In the circumstances, we are of the view that it would be highly unsafe to rely and act upon the statements made by the two related and interested witnesses. We are of the view that the vision put forth by the appellant is more probable and nearer to the truth."
16. ' The learned Judges of the High Court while accepting the version of the respondent as against the prosecution story, failed to consider that after respondent had succeeded in getting himself released from Sarwar, Zulfiqar and Sarfraz, he came to his house, took out his pistol and fired in the air which scared Sarwar, Zulfiqar and Sarfraz who were forced to take shelter in the house of Muhammad Ashraf. There was thus no need for the respondent to have waited at the door of his house for arrival of the deceased with two other persons. Again, if the respondent had seen the deceased and two others arriving at the scene armed, he could have averted the incident by going inside his house and remaining there. According to respondent's version he fired at the deceased while the latter was still at a considerable distance away from him and the bullet hit him after deflection from the concrete floor. The learned Judges of the High Court failed to notice that this version of the respondent is contrary to the medical evidence on record which clearly suggests that the deceased was fired at from a distance of 3 to 4 feet. There is nothing in the evidence to show that the deceased had launched any attack on the respondent when he was fired at. The respondent also did not suffer any injury during the entire episode which could support his plea that he was entitled to act in self-defence. We are, therefore, of the view that the prosecution version of the incident is more probable and in accord with the evidence on record. We, accordingly, allow the appeal and alter the conviction of respondent from section 304, Part I, P.P.C.
17. To section 302, P.P.C. However, in our view, the penalty of death is not justified in the circumstances of the case as the motive alleged by the prosecution could not be fully established and it appears that both the parties have withheld from the Court the real cause which led to the incident resulting in the death of the deceased. We will, therefore, award life imprisonment to the respondent. The sentence of fine of Rs,5,000 or in default one year R.I. Awarded by the High Court is maintained with direction that on realization of fine, it will be paid as compensation to the heirs of the deceased. The benefit of section 382-B, Cr.P.C. Will be given to the respondent.