1. ' SYED DEEDAR HUSSAIN SHAH, J.--- Appellant Muhammad Pervaiz son of Muhammad Tasveer was tried by the Sessions Judge, Karachi (South) for offence under sections 302, 307 and 452, P.P.C.. By judgment dated 15-6-1992, the appellant is convicted and awarded death sentence under section 302, P.P.C. For offence under section 307, P.P.C. He is convicted and sentenced to R.I. For five years.
2. Appellant is further directed to pay a sum of Rs,25,000, as compensation, to the heirs of the deceased or in default to undergo imprisonment for two years. Appellant is further directed to pay fine of Rs,10,000 or in default to suffer R.I, for one year. This appeal is directed against the conviction and sentence awarded to the appellant. We have also before us a reference for confirmation and we propose to dispose of the appeal as well as the reference by single judgment.
3. ' The facts of the case, in brief, are that on 8-12-1987 S.I.P. Raja Tariq Mehmud recorded statement of complainant Muhammad Anwar Ghazi under section 154, Cr.P.C. In the emergency ward of Jinnah Hospital, Karachi. The said complainant stated that he resided in House No,K-81, situated at Ch. Khalequzzaman Colony, near P&T Gate, Karachi. He also stated that in the year 1984 he married his daughter P.W. Shabana Kousar with appellant Muhammad Pervaiz. Because the relations between the husband and the wife got strained, Mst. Shabana Kousar came to live with him for the last 2-1/2 years and a suit for dissolution of her marriage was filed, which was pending. As to the incident, it was stated that while he was present at his shop, at 6-30 p.m. The appellant Muhammad Pervaiz armed with revolver/pistol entered his house where his son P.W. Naeem Akhtar alias Ladoo, daughter Shabana Kousar and wife Munawar Jehan were present. Accused fired at Shabana Kousar but his son Nacem Akhtar who, tried to save Shabana, received bullet injury on his left car and the other shot fired by appellant hit Naeem Akhtar on his back. He further stated that accused fired four more shots which missed and while the accused tried to reload the revolver he was caught hold by Shabana Kousar. In the meanwhile Nafees Akhtar another son of complainant, on hearing fire-arm reports, rushed inside the house and the appellant even fired at him ineffectively.
4. It is further stated that the Muhallah people were attracted and with their assistance Nafees Akhtar overpowered the accused and snatched the revolver. Complainant at that time was present at his shop and having learnt of the firing at his house reached home and he alongwith others took injured Naeem Akhtar and appellant Muhammad Pervaiz, who was also injured, to Jinnah Hospital where Naeem Akhtar succumbed to the injuries. The statement so recorded was sent by S.I.P. Raja Tariq Mehmud through A.S.I. Hakim Ali for being incorporated in 154, Cr.P.C. Book.
5. ' A.S.I. Hakim Ali then inspected the dead body of deceased Naeem Akhtar and prepared inquest report. He also inspected the place of Vardat and recorded statements of P.Ws. Shabana Kousar, Mst. Munawar Jehan, Nafees Akhtar, Tanveer Iqbal and Haji Rafique. The arrest of the accused, who was injured and taken to Jinnah Hospital, was shown under memo. Exh.16. After completing the investigation, challan against appellant was submitted in the Court.
6. ' On 2-2-1988, the learned trial Court framed charge against the appellant under section 302/307, P.P.C., to which the appellant pleaded not guilty and claimed trial. Because the appellant was unable to engage an Advocate, he was provided a defence counsel at the State expenses.
7. ' Prosecution examined P.W.1 complainant Muhammad Anwar Ghazi (Exh.4) but during his examination-in-chief when it transpired that the accused was serving in Army the learned trial Court made a reference under section 549 to the Commanding Officer, to know if the accused would be tried under the Army Act. After the receipt of reply from the concerned authorities that they did not propose to try the accused under the Army Act, further evidence of complainant was recorded. Complainant produced his 154, Cr.P.C. Statement (Exh.5) and a letter purportedly written by the accused from jail (Exh.7). Prosecution also examined P.W.2 Mst. Munawar Jehan (Exh.8), P.W.3 Mst. Shabana Kousar (Exh.9), P.W.4 Nafees Akhtar (Exh.10), P.W.5 Malik Nizam (Exh.12) who produced Mashirnama of dead body and inquest report (Exhs.13 and 14), P.W.6 Haji Muhammad Rafique (Exh.15) who produced memo of arrest of accused (Exh.16) and memo. Of the recovery of revolver (Exh.17), P.W.7 Hakim Ali, A.S.I. Police (Exh.18) who produced Roznamcha Entry 32, dated 8- 12-1987 (Exh.19), letters addressed by Duty Officer Police Station Defence to Medical Officer Jinnah Hospital, Karachi (Exhs.20, 21 and 22), P.W.8 Malik Muhammad Nazir (Exh.23) who produced F.I.R. Of the case (Exh.24) and a report about the non-availability of witness Muhammad Aslam (Exh.25), P.W.9 Dr. Amanullah Sheikh (Exh.27) who produced post-mortem report of deceased Naeem Akhtar (Exh.28), certificate of injuries on appellant Muhammad Pervaiz (Exh.29) and certificate of injuries on P.W. Nafees Akhtar (Exh.30), post-mortem examination report of Naeem Akhtar (Exh.31), and supplementary medico-legal report in respect of appellant Muhammad Pcrvaiz (Exh.32) and supplementary medico-legal report of P.W. Nafees Akhtar (Exh.33). Prosecution then examined P.W.10 Raja Tariq Mehmud (Exh.34) who produced a copy of F.I.R. (Exh.35), P.W.11 Muhammad Mushtaque (Exh.36). Prosecution closes its side under statement (Exh.37).
8. ' In his statement under section 342, Cr.P.C. Appellant denied having committed the murder of Naeem Akhtar or attempted to commit the murder of P.W. Nafees Akhtar. He stated that on 8-12- 1987 he was called by the complainant for conciliation at his house where he was assaulted by P.W.
9. Nafees Akhtar and Rukhsar (nephew of the complainant). About his arrest he stated that he was arrested on 9-12-1987 from the hospital where he was taken by complainant for treatment.
10. Appellant did not examine himself under section 340(2) of Cr.P.C. Nor led any defence evidence. On conclusion of trial the learned trial Court convicted appellant, as stated above.
11. ' We have heard the learned counsel and have gone through the record. It is contended by Mr. A.Q.
12. Halepota, learned counsel for the appellant that there are two versions of the case, one given by prosecution and the other given by the appellant. It is contended that the version given by the accused was that because his wife was detained by her parents and was not permitted to join him, he was called by the complainant, who is his real uncle for a conciliation when the sons of the complainant and Rukhsar assaulted and maltreated him. The version given by the prosecution is that the appellant who harboured a grudge on account of detention of his wife by complainant, went to the house to commit the murder of his own wife Shabana Kousar and in that process Naeem Akhtar was fired at and an attempt on the life of P.W. Nafees Akhtar was also made by the accused. Learned counsel contends that in the background of the hostility between the parties, particularly when the appellant is the real nephew of the complainant, whether it would not be safe to believe that the accused was called for a settlement when suddenly dispute arose, which ultimately resulted into the death of Naeem Akhtar. According to the learned counsel, besides Mst.
13. Shabana Kousar, her mother Munawar Jehan, Naeem Akhtar, and P.W. Nafees Akhtar were present and in view of the injuries on the person of appellant, whether it would be safe to believe that the appellant had opened fires and even being armed with a revolver as alleged, he could have been overpowered or that anyone of the four persons inside the house could have been spared by him.
14. According to the learned counsel the story given by the prosecution is not worthy of credence and as against that, the theory put forth by the defence looks more plausible. In the alternative it is argued that even if accused was armed with revolver, and had entered the complainant's house, because he was attacked by the inmates, he had a right of private defence in the circumstances and even if such right is not pleaded by him, but from the facts of the case such right is spelt out, the benefit has to be given to the accused.
15. ' It is further contended that with regard to the pendency of the suit for dissolution of marriage there are divergent version, as given by the complainant, his wife Munawar Jehan and daughter Shabana Kousar. The complainant stated that the suit was filed, which was pending, whereas his wife has denied any knowledge about the suit and the daughter has deposed in a manner which is not believable. Learned counsel contends that it is a case where there is a word against word and no independent evidence has come to support the prosecution version. Although it has come in evidence that the Muhallah people were attracted and had taken P.W. Nafees Akhtar to hospital, no such witness has been examined. As to the recovery of revolver, according to the learned counsel there are different versions. The complainant, who had reached his house on being informed about the incident, deliberately suppressed the injuries on appellant although it was he who had taken the appellant to the hospital much before his 154, Cr.P.C. Statement was recorded. The injuries on the person of appellant were grievous in nature and he was maltreated to such an extent that even his nasal bone was fractured.
16. ' It is then argued that the revolver allegedly used in the commission of the offence was not sent to the ballistic expert and there was no report of chemical analyser even in respect of the blood- stained clothes. Learned counsel has also criticised the conduct of the Investigating Officer Raja Tariq Mehmud who after his examination-in-chief was recorded, remained absent. It is lastly argued that if the death of Naecm Akhtar was on account of revolver shot fired by the appellant, from the prosecution evidence itself, it is apparent that the appellant had fired at his wife Mst.
17. Shabana Kousar when deceased came in between and was hit. The death of Naeem Akhtar in the circumstances was not intended and the offence would, therefore, not fall under section 302, P.P.C.
18. But it would at the most fall under section 304, P.P.C. And the sentence of death could not have been awarded. In support of all these contentious learned Advocate has referred to the following cases:-
(1) Aijaz Ahmad alias Jajji v. The State 1992 PCr.LJ 1200,
(ii) Muhammad Younas v. The State 1992 SCM R 1592,
(iii) Muhammad Hussain and others v. The State 1992 ALD 401,
(iv) Ahmad Din v. Fair Ahmad and 2 others 1972 SCM R 549,
(v) Piyaro v. The State PLD 1963 (W.P.) Kar. 771,
(vi) Muhammad Ishque and another v. The State PLD 1964 (W.P.) Pesh. 143,
(vii) Muhammad Ali v. Manzoor Ahmad and others 1982 SCM R 1186,
(viii) Inayatullah and another v. The State PLD 1966 (W.P.) Lah. 8,
(ix) Sycd Ali Bepari v. Nibaran Mollah and others PLO 1962 SC 502 and
(x) Abdul Majid and another v. The State 1983 SCM R 310.
19. ' Learned A.A.-G. At the very outset suggested that because the parties are closely related and the ocular version is given by three witnesses, who are closely related, the previous enmity between the parties because of family dispute being evident, it is a case where maximum sentence of death should not have been awarded but the appellant should have been awarded life imprisonment. As to the merits of the case, it has been argued that the basic question in the case would be whether the evidence of three witnesses namely Mst. Shabana Kousar, Mst. Munawar Jehan and Nafees Akhtar should be believed or not. For these witnesses, it has been argued that they are not only consistent but there is no serious infirmity in their evidence coupled with the fact that live bullets were recovered from the pocket of the accused which fully supports the prosecution version that appellant came duly armed and had made preparation to meet with every situation. Learned A.A.- G. Frankly conceded that there is neither any ballistic expert report nor Mashir Haji Muhammad Rafique has supported the prosecution case. As to the motive, it is argued that the accused committed the offence because his wife was not allowed to join him and due to that he made preparation, came to the house of his in-laws at a time when he knew that his father-in-law would be busy at his shop and then fired at Shabana Kousar which fire hit deceased Naeem Akhtar, who came in between and killed.
20. ' We have gone through the evidence and have also considered the contentions of the learned counsel and perused the case-law referred. In this case, complainant Muhammad Anwar Ghazi is not the eye-witness, as he was at his shop and when the Mohallah boys informed him of firing in his house. The ocular evidence in the case has come through P.Ws. Mst. Munawar Jehan, Mst.
21. Shabana Kousar and Nafees Akhtar. The circumstantial evidence is in the nature of recovery of pistol from the appellant and empties from the Vardat and some live bullets from the pocket of accused by the Medical Officer, who provided him medical aid. The motive, as suggested by the prosecution, is that because appellant's wife was not being allowed by her parents to join him, he came duly armed to the house of the complainant and fired at his wife Mst. Shabana Kousar when deceased Naeem Akhtar came in between and sustained fire-arm injuries.
22. ' As to the ocular testimony, we may observe that the same has come through witnesses, who are not only interested but also partisan. The version given by the eye-witness is that at 6-30 p.m.
23. Appellant entered the house and fired at his wife Shabana Kousar. Admittedly the murder of deceased Naeem Akhtar was not intended but he was accidentally hit as he came to the rescue of his sister. P.W. Munawar Jehan, who is wife of complainant, seeing this, took a rod and gave blows to appellant on his head and other parts of the body. The prosecution evidence is that the appellant having fired about six shots tried to reload the pistol, when in the meanwhile P.W. Nafees Akhtar entered the house and he was also fired at but the bullet hit on the cap of the fountain pen which he had in his pocket and the bullet slipped, causing no damage. If this were so, the appellant would not have had that many injuries as are shown by the doctor. The appellant could conveniently have finished every one in the house as he was allegedly carrying a loaded pistol with six bullets.
24. ' As against the above version the case of the appellant is, that he was called through one Rukhsar for a settlement and while the talks, for such settlement, were going on, he was forced to divorce Mst. Shabana Kousar and in that situation there was exchange of hot words as the appellant had refused to divorce his wife. It is further the case of the appellant that while he was trying to leave the house, P.W. Nafees Akhtar fired at him when deceased Naeem Akhtar came in between and received the pistol shot injuries and collapsed. Although it is stated that many people from Mohallah had gathered but none of them is examined to support the prosecution case on the point that it was appellant, who had fired at Mst. Shabana Kousar and in the result deceased Naeem Akhtar who came in between received the pistol injuries and died subsequently. The nature of injuries on the person of the appellant does not support the prosecution case in any manner. It has not been proved that the pistol allegedly recovered belonged to the appellant, or that the same was used for the commission of the offence.
25. ' The ocular testimony is thus not free from doubt and cannot be made basis for sustaining the conviction, particularly on a capital charge &murder or an attempt to cause the murder of P.W.
26. Nafees Akhtar.
27. ' The circumstantial evidence in the nature of recovery of pistol of empties from the Vardat also does not corroborate the ocular testimony, for, the alleged pistol and the empties were not sent to the Ballistic Expert to seek a report that the pistol was either used or the empties were fired from the allegedly recovered pistol. The Investigating Officer Raja Tariq Mehmud in his evidence stated that he recovered six empties from the place of incident and also secured 4-5 lead pieces from the Vardat. He also stated that at the place of Wardat A.S.I. Aslam gave him a revolver of .32 bore which was given to A.S.I. By Dr. Amanullah Sheikh, who had recovered it from injured Muhammad Pervaiz (the appellant herein). The articles, if the same were the case property, should have been sent to the Ballistic Expert for examination and opinion. Such was not done and the material lacuna in the case is that the Investigating Officer Raja Tariq Mehmud, who had conducted the investigation and had recorded the statements of the witnesses did not appear in Court for cross- examination and although to secure his attendance even coercive process was issued but with no result. A valuable right of cross-examining this witness was thus denied to the appellant and there was no ostensible reason for the Investigating Officer not to have appeared before the Court for being subjected to cross-examination.
28. ' One Muhammad Mushtaque, who was A,S.I. At Defence Police Station at the relevant time had subsequently appeared and deposed that he was coversant with the handwriting and signatures of Investigating Officer Raja Tariq Mehmud. This was not legally sufficient to hold that whatever P.W.
29. Muhammad Mushtaque stated was correct because it was the Investigating Officer alone who could have disclosed the true facts, as observed by him during cross-examination. No reason at least has been shown by the prosecution why the pistol and the empties recovered were not sent to Ballistic Expert. The circumstantial evidence of the recovery of the pistol and the bullets from the accused, therefore, does not render any corroboration to the ocular testimony. The case of the accused was that the pistol belonged to P.W. Nafees Akhtar who had used it for causing injuries to appellant. Although appellant has not sustained any fire-arm injuries yet there is a substance in the defence version that as a result of firing by Nafees Akhtar his brother Naeem Akhtar was hit during that scuffle and received two fire-arm injuries which resulted into his death.
30. As to the motive, it may be observed that appellant might have had a motive to come to the house of complainant to kill his wife who was adamant and not willing to join him. This has to be considered in view of the stand taken by the appellant that he was called through Rukhsar for a conciliation. The two versions have, therefore, to be put in juxtaposition with each other and if the defence version looked more probable the same had to be accepted and could not have been rejected outright. We can, therefore, not rule-out the possibility that the appellant had in fact come to the house of complainant where he was called for a settlement. At the same time we can also not overlook the ocular testimony, which though has come through interested and partisan witnesses, has not been shattered during cross-examination. The motive in our view was not so strong so as to lend total support to the prosecution version.
31. ' In the case of Aijaz Ahmad 1992 PCr.LJ 1200 it was observed by a D.B. Of the Lahore High Court that when there are two views/opinions, the one favouring the accused has to be acted upon. In the case of Muhammad Younas 1992 SCM R 1592 it was observed by the Honourable Supreme Court that in a case of two versions of the occurrence both the versions have to be kept in juxtaposition and the one favourable to the defence is to be preferred if the same gets some support from the admitted facts and circumstances of the case. In the case of Ahmad Din 1972 SCM R 549 the accused had received injury on the vital part of his body and the prosecution failed to explain injury and fact found that motive lay with complainant party in making attack. It was held that mere fact that deceased received three injuries while accused got only one did not by itself show that accused exceeded right of private defence and the right of accused to defence continued as long as reasonable apprehension of harm persisted. In the case of Muhammad Ishaque and another PLD 1964 (W.P.) Pesh. 143 it was held that although the plea of private defence not raised by accused but the same receiving support from circumstances proved by prosecution, the accused was held to be entitled to benefit of doubts.
32. ' The complainant in this case is real uncle of the appellant to whom he married his daughter Mst.
33. Shabana Kousar. It is the complainant who, as per evidence, had taken his injured son and the appellant to the hospital. Complainant had well seen injuries on the appellant, yet he suppressed the fact of such injuries in his statement under section 154, Cr.P.C., which was recorded in the hospital. The statement which he recorded was based on the information, which he received from the inmates of the house when he reached from his shop. There may be some exaggeration about the facts of the actual incident but. The complainant who had seen injuries on appellant should not have suppressed the same and this effort on his part of not giving the details of injuries on appellant in his statement under section 154, Cr.P.C. Is indicative of the fact that there has not only been a suppression of true facts but may be that with regard to the actual incident he has made some improvement. The rod or the Danda with which Mst. Munawar Jehan is said to have caused injuries to the appellant was neither secured nor produced in Court.
34. ' There is evidence that because Mst. Shabana Kousar had developed ill-will against appellant, she came to reside with her parents and although on a number of occasions the appellant had tried through the Nekmards to get his wife back, such efforts proved fruitless. It was, therefore, that according to the complainant a suit for dissolution of marriage was filed. On this also there are divergent versions. According to the complainant the suit was filed and was pending in the Court whereas Mst. Munawar Jehan, who is the wife of the complainant, has shown her ignorance about such suit. It is unconceivable that the wife would not be knowing about the suit for dissolution of marriage, filed by her own daughter. Even Mst. Shabana Kousar is shaky about such version because according to her she had not gone to the Court and the suit was being pursued by her father, the complainant.
35. ' The sum total to the above discussion is that the prosecution had not been able to prove the charge of either murder or of attempt to commit murder of P.W. Nafees Akhtar. The version of the accused is also not on oath and the same is to be placed in juxtaposition with the prosecution version. The conviction and sentence awarded to the appellant under section 302, P.P.C. Or 307, P.P.C. Cannot be sustained. The ocular evidence in the case although not free from taint can also not be rejected straightaway.
36. In the result we accept this appeal, set aside the conviction and sentence awarded to the appellant under section 302/307, P.P.C. And alter the sentence and award R.I. For 10 years under section 304 of P.P.C. The sentences of compensation and fine are remitted. The appellant is also given benefit of section 382-B of Cr.P.C. Reference for confirmation of death sentence is declined.