1. ' SAIDUZZAMAN SIDDIQUI, J.---The appellant was tried under section 302/201, P.P.C. Along with his father Masson and brother Muhammad Sher, for committing murder of one Muhammad Hussain and causing disappearance of the evidence, by Additional Sessions Judge, Faisalabad. By judgment dated 12-7-1989 the trial Court convicted the appellant under section 302 P.P.C. And sentenced him to death with fine of Rs,20000 or in default of payment of fine to undergo R.I. For 2 years. He was also directed to pay Rs,20,000 as compensation to the heirs of the deceased. Co- accused Masson and Muhammad Sher were acquitted in the case by the trial Court. The learned Judges of the High Court while disposing of the appeal of the appellant against conviction and murder reference, upheld the conviction of appellant under section 302 P.P.C. But converted the death sentence into imprisonment for life and reduced the sentences of fine and compensation from Rs,20,000 to Rs,10,000 each. Leave was granted against the judgment of the High Court to consider the following contentions:--- "The accused has not denied that he was responsible for causing the death of the deceased. Thus the main question for consideration in this petition is whether he had killed the deceased in the manner described by him or ,if, as alleged by the prosecution, he had fired at the deceased when the latter was passing through the village Chowk. Admittedly, the dead body of the deceased was found by the investigating officer inside the house of the petitioner. The post-mortem examination does not reveal that there was any dragging mark on the body of the deceased. This is a significant circumstance at the distance between the house of the deceased and the village Chowk was more than a hundred yards. The absence of drag marks lends support to the defence version. If the deceased was in fact killed inside the petitioner's house his conviction under section 302 will become unsupportable."
2. ' Mr. Aftab Farrukh, the learned counsel for the appellant contended before us that the defense theory when considered in juxtaposition with the prosecution case, appears to be more probable and as such the conviction of appellant by the Courts below under section 302, P.P.C. Cannot be sustained on the basis of evidence on record. The learned counsel for the State supported the judgment of High Court.
3. ' The prosecution case as disclosed in the F.I.R. Lodged by Zulfiqar Ahmed (P.W.6) on 6-9-1987 at about 10 a.m. At Police Station Khurrianwala, was that the complainant along with Muhammad Hussain (P.W.7). Nausher (P.W.8) and Muhammad Hassan (given up P.W.) was present in the 'Bathak' of one Muhammad Yunus, close to Chock Chambal Bijli Wala. Muhammad Hussain (deceased) servant of the complainant, while returning after seeing off his guest was confronted by the appellant who was armed with a 7 M.M. Rifle at Bihar Wala Chock. The appellant shot with his rifle at the deceased which hit him at his waist. The deceased fell on the ground. The incident was seen by the complainant and P. Ws. Present at the 'Baithak' of Yunus. The complainant and witnesses, however, did not intervene for fear of life. In the meantime Shera son of Masson and Masson son of Sajjada also reached at the scene of offence and dragged the deceased inside their house. The complainant and witnesses followed the deceased to the house of the accused but he had already expired. The motive for the murder of deceased was stated to be the abduction of the sister of the appellant by the deceased 4/5 years before the incident who was subsequently restored to the family through the decision of the 'Punchayat' where under the deceased had undertaken to give some land as compensation for the act of abduction to the appellant's side, which the deceased subsequently did not honor.
4. ' The trial Court found that the prosecution failed to prove any offence against Masson and Shera (the two co-accused in the case) and accordingly acquitted them in the case. The appellant was, however, found guilty of offence under section 302, P.P.C.'and was sentenced to death and fine and compensation as aforesaid. The High Court did not confirm the death sentence in the circumstances of the case and altered it to life imprisonment and also reduced the amount of fine and compensation as aforesaid.
5. ' The appellant, in his statement recorded by the trial Court under section 342 Cr.P.C. Did not disputethat the deceased died as a result of shot fired by him from the rifle. He, however, disputed the place, the manner and the time of incident as alleged by the prosecution. His version of the incident was as follows:--- "I am innocent. Mst. Samina was regularly married in lieu of Most. Ashraf, niece of deceased, to be given to Muhammad Akram my brother. They resoled and Mst. Samina came back to our house 1- 1/2 years ago. On the fateful night, someone trespassed into my house and on alarm I shot at the trespasser using my brother's rifle. Having lit the lamp, it was found that the trespasser was Muhammad Hussain. The Labrador was informed, who brought the police. The Rifle and the empty shell were handed over to the Police Officer. Blood-stained earth was also collected from underneath the dead body, lying in our house. The complainant party are our enemies and they prevailed upon the police to make out this false story."
6. ' Since the defense has propounded a definite theory as against the prosecution case, both the versions have to be considered in juxtaposition to determine which version is more probable and nearer to the truth, in the light of the evidence on record in the case.
7. ' According to prosecution, the incident occurred at 8 a.m. The postmortem of the dead body was conducted by the doctor at about 4-30 p.m. The doctor in his evidence stated that the death occurred between 1/2 to 1 hour of the injury and the time between death and post-mortem was 10 to 14 hours. As against the above version of prosecution, the defense suggested the time of incident at 2-30 a.m. If we accept the time of incident as 8 a.m. Given in the prosecution evidence, the deceased died between 8-30 a.m. And 9 a.m. This timing did not conform to the evidence of doctor who stated that the time between the death and the post-mortem was between 10 to 14 hours. As against this the defence claimed that the incident occurred at 2-30 a.m. Which meant that the deceased died between 3 a.m. And 3-30 a.m. This timing of death of the deceased is more in line with the period which according to doctor's evidence lapsed between death and post- mortem of the dead body. It is also pertinent to mention here that the stomach of the deceased was found healthy and empty while bladder was healthy and full of urine. These circumstances also supported the probable time of incident suggested by the defense.
8. ' The next question is whether the deceased was done to death at Bohar Wala Chowk and thereafter his dead body was dragged to the house of the appellant, as claimed by the prosecution. According to F.I.R. The deceased was shot at Bohar Wala Chowk and after he fell down on the ground, Masson and Shera reached the spot and dragged the body of the deceased to the house of appellant. Nausher P.W.8 in his evidence admitted that the deceased was profusely bleeding after being shot by the appellant. It is likely to be so, as the deceased was a young man of about 35 years of age. The witness, however, admitted in cross-examination that he did not notice any blood on the way the body was dragged or carried from the place of occurrence to the house of Masson. Jewan Khan, A.S.I., the Investigating Officer in his evidence stated that he reached the place of incident at 10. a.m. And found the body of the deceased inside the house of Masson. He stated that no blood was present at the spot where the dead body of the deceased was lying. He also found no trail of blood on the route, the body of the deceased was dragged or carried through, after being shot at by the appellant. No doubt the eye-witnesses stated before the trial Court that the body of the deceased was lifted by the appellant with the help of acquitted accused and carried to their house but this was clearly an improvement made by them over their earlier stand as both in the F.I.R. As well as in the site plan it is stated that the body of the deceased was dragged to the house of the Masson. This improvement in the evidence was made by the witnesses, obviously, to bring their statements in line with the medical evidence which did not mention any dragging mark on the body of the deceased. It may be mentioned here that according to site plan (Exh. PB), point No,1 is the place where the deceased was shot at while point No,3 in the place where the dead body of the deceased was found inside the house of Masson. The route through which the dead body of the deceased was dragged is shown in the site plan in broken line with the help of arrows and the distance between points Nos. 1 to 3 works out to over 150 feet. The absence of dragging marks on the body of the deceased and non-existence of trail of blood on the route through which the body of the deceased was dragged or carried (as alleged by the prosecution), coupled with the fact that no blood was found at the spot where the dead body was found lying for over two hours created serious doubts as to correctness of prosecution story. It was vehemently suggested in the cross-examination of I.O. That the investigation was conducted dishonestly and that blood-stained earth was taken from the house of Masson where the dead body was lying and not from the Chowk where the incident was allegedly shown by the police. The circumstances noted above support the defense version that the deceased was shot at inside the I house of the appellant.
9. ' As a result of above discussion, we hold that the defense version of the incident is more probable, nearer to truth and in line with the evidence, on record. As a necessary corollary, therefore, it follows that the prosecution failed to establish the charge of murder under section 302, P.P.C. Against the appellant. This, however, .Does not conclude the matter as the defense admits having fired at the deceased which resulted into his death. According to defense version, the deceased entered the house of appellant in the late hours of night and on an alarm he was shot at by the appellant taking him to be a trespasser.
10. There being no explanation available on record for the presence of the deceased in the house of appellant at such an odd hour of night, the defence plea that the appellant shot at the deceased in exercise of the right of private defense of property appears to be well founded. We, accordingly, allow the appeal, set aside the conviction and sentence of the appellant. The appellant is directed to be set at liberty forthwith, unless he is required by the authorities in some other case.