' The appellant was tried by Additional Sessions Judge..Burewala for the commission of murder of Riaz son of Sultan of Chak No,425/E.B. And charge under section 302, P.P.C. Was framed by the trial Court on 12-12-1991. He was convicted under section 304, Part I, P.P.C. And sentenced to imprisonment for life and a fine of Rs,10,000 and in default of payment of fine he was ordered to undergo further R.I. For 2 years. In case of recovery of fine half of the fine was to be paid to the legal heirs of deceased Riaz Ahmad. The appellant was given the benefit under section 382-B, Cr.P.C.
2. Briefly the facts are that Mst. Ghulam Janat widow of Riaz Ahmad deceased went to Police Station Gaggo, District Vehari at 2-00 a.m. On 17-3-1990 and made a report relating to the occurrence of 16-3-1990 at 9-00 p.n- having taken place in the house of Muhammad Ali of the same estate. She alle *ed that her deceased husband was employed in the Army and had come on leave and on the day of occurrence he had gone to see Muhammad Ali. Yasin accused was present there with a revolver. When Riaz entered the house of Muhammad Ali, Yasin fired at him which did not hit. Both of them grappled. On hearing the note of fire Muhammad Ali son of Ramzan and Akbar Ali P.Ws. Entered the house of Muhammad Ali son of Shahadat where the occurrence took place. Yasin allegedly fired another shot and ran away from the spot alongwith revolver.
Muhammad Ali and Akbar P.Ws. Brought her husband in injured condition. She also went to the house of Muhammad Ali, the place of occurrence on hearing the noise and saw that her husband was still in senses. He told her that Yasin accused had fired at him with revolver which hit him in the belly. They were taking the injured to the hospital on a tractor-trolly but he expired on his way. The motive as set up by the first informant was that Yasin suspected that her husband had illicit relations with his niece, Parveen wife of Muhammad Ali in whose house the occurrence took place.
3. Haq Nawaz, S.-I./S.H.O. After recording Exh.P.E. Went to the hospital where he recorded the statements of the P.Ws. Muhammad Ali and Akbar Ali. He prepared injury statement Exh.P.F. And inquest report Exh.P.G. Of Riaz deceased and delivered the dead body as also the police papers to Muhammad Akram, Constable for post-mortem examination. He proceeded to the spot collected a pair of shoes (Sleeper type) P.1 and P.2 of Riaz deceased and secured them vide memo. Exh.P.C.
Muhammad Aslam, Constable P.W. Produced before him the post-mortem report and last-worn clothes of the deceased which were shirt P.8, Shalwar P.7, Banyan P.9 and a phial P.10 containing metallic pieces were secured vide memo. Exh.P.F. On 24-3-1990 Yasin accused was arrested who led to the recovery of pistol .32 bore P.3 alongwith four live bullets P.4/1-4, two empties P.5 and P.6 which were made into sealed parcel and secured vide memo. Exh.P.D. On 7-4-1990 Mazhar Hussain, Draftsman produced before him site plan Exh.P.B., Exh.P.B./1 and Exh.P.B./2. He recorded his statement and gave his note thereon in red ink and signed the same. He challaned the accused and the accused was sent up to stand his trial before the Court of Session.
4. At trial prosecution produced Dr. Abdul Ghafoor, D.H.Q. Hospital, Burewala who conducted the post-mortem examination of Riaz Ahmad deceased on 17-1-1990 at 8-00 a.m. He found the following injuries on his person:--
(1) A lacerated wound 1 c.m. x 1 c.m. x skin deep on the bridge of nose.
(2) A contusion 3 c.m. x 3 c.m. On the tip of nose.
(3) A contusion 2 c.m. x 3 c.m. On the right side of forehead.
(4) A contusion 1 c.m. x 1 c.m. On the middle of forehead.
(5) A fire-arm wound 10 c.m. x 1 c.m. x deep going. Edges inverted blackening of edges were present, on the left lower part of abdomen 1.5 c.m. Below and to the left of umbilicus.
' In his opinion the cause of death was haemorrhage and shock due to injury No,5 which was sufficient to cause death in the ordinary course of nature. The said injury was caused by the fire- arm. Rest of the injuries were simple and caused by blunt weapon. Exh.P.A. Was the correct carbon copy of post-mortem report and Exh.P.A./1 was the diagram showing the location of injuries.
5. Haji Mazhar Hussain, Draftsman P.W.2 had prepared site plan Exh.P.B., Exh.P.B./1 and Exh.P.B./2 in the scale of 10 feet to an inch. Shamas-ud-Din P.W.3 had joined the police investigation and in his presence a pair of shoes belonging to Riaz deceased Exh.P.1 and Exh.P.2 were secured vide memo.
Exh.P.C. Which he thumb-marked. On 24-3-1990 in his presence revolver P.3 alongwith 4 live cartridges P.4/1-4 and two empties P.5 and P.6 were recovered. The pistol and empties were sealed into a parcel and secured vide Exh.P.D.
' P.W.3 admitted that Muhammad Ali P.W. Was first cousin of Riaz deceased and of Mst. Ghulam Janat P.W. Akbar Ali P.W. Was the son-in-law of Muhammad Ali P.W. And the wife of Muhammad Ali P.W. Was the sister of Akbar P.W. While Riaz deceased was his nephew i,e, sister's son. Lal Din P.W.
Was the first cousin of Riaz deceased.
' Mst. Janat appeared as P.W.4 and she narrated the same story as in Exh.P.E. Her statement was recorded on 15-9-1992. Muhammad Ali P.W.5 stated that Riaz deceased was his relation and had come on leave from the Army. He and Akbar P.W. Had gone to the house of Riaz to see him at 9-00 p.m. Riaz was not present in the house and Mst. Janat Bibi P.W. Told them that he had gone to see Muhammad Ali son of Shahadat Ali. On their way back they heard a fire shot from inside the Ahata of Muhammad Ali son of Shahadat. They went inside and saw Yasin accused and Riaz deceased grappled with each other. Yasin accused fired a shot at Riaz which hit him and thereafter Yasin accused ran away. Riaz was taken to his house in the injured condition. Mst. Ghulam Janat had also reached there. Riaz was then in senses who told his wife that he had been shot by Yasin accused. They took the injured on a tractor-trolley but he died on his way. The dead body was taken to the hospital. He identified the dead body at the time of post-mortem examination and the constable P.W. Produced last-worn clothes of the deceased before the Investigating Officer who secured the same vide memo. Exh.P.F.
6. Akbar Ali P.W.6 stated almost the same story which was narrated by P.W.5 Haq Nawaz S.H.O. P.W.7 stated the steps he took during the investigation. Muhammad Aslam, Constable P.W.8 had escorted the dead body of Riaz Ahmad to the mortuary and had produced last-worn clothes of the deceased before the Investigating Officer which he has secured vide memo. E,.h.P.F. (Injury statement has also been exhibited as memo. Exh.P.F.).
7. The District Attorney gave up Lal Din P.W. As unnecessary on 19-11-1992 and on 16-2-1993. He tendered in evidence the report of the technical services Exh.P.H. And closed the prosecution case.
8. The accused was examined under section 342. Cr.P.C. And in answer to question No,5 he stated that the P.Ws. Were related to the deceased and are false witnesses and had never seen the occurrence. In answer to question No,6 he took up a defence version. He stated that Mst. Parveen was the daughter of his elder brother Muhammad Ali and used to live with him. Her husband was employed in Pakistan Army and he used to visit the house of his brother to look after the welfare of Mst. Parveen and others. On the day of occurrence he was going to visit the house at 9-00 a.m. And was yet at some distance that he heard the shriek of Mst. Parveen. He rushed into the house and saw that Riaz deceased was holding her by her arms and was pulling her into the room whereas she was having a wooden spoon (Doe) in her hand and was retaliating by giving blows with the same to Riaz deceased. He was having a licensed revolver with him. He challenged *Riaz who pounced on him and tried to snatch the revolver. In the struggle the shot was fired hitting the deceased. He immediately went straight to the police station. Had he not reached to save the family honour and subsequently to avoid apprehension to his life he would have been killed.
9. Before proceeding to discuss the prosecution and the plea of defence I am to record that the trial Court while the accused were not represented proceeded to record of examination-in-chief of Mst. Ghulam Janat P.W.4, Muhammad Ali P.W.5 and Investigating Officer P.W.7. This fact is supported by application on the file. The trial Court flagrantly violated the directions of the High Court wherein it is required that the prosecution in Sessions trial shall only proceed if the accused was properly represented through a counsel either appointed by himself or by the Court. In the present case a grave prejudice has been caused by the act of the trial Court to the accused.
' The trial Court committed yet another illegality which is clear from Para. No,19 of his judgment wherein he recorded that:-- "I had called for the police file in order to see as to what was the version of the accused immediately after his arrest before the police."
He proceeded further to record that such plea was not recorded in Zimni No,4 of the police file. This observation weighed with the trial Court whereas law requires that nothing shall be used against the accused unless the same was put to the accused while examining him under section 342, Cr.P.C. This was not a piece of evidence on record and was not put to the accused but the trial Court took note of the same unnecessarily and proceeded illegally. The accused has already undergone more than 7 years in jail and it shall not be appropriate to put him to further agony by remanding the case and or for rewriting of judgment.
10. From the perusal of the statement of Akbar Ali P.W.6 and the cross-examination of P.W.4 it is clear that they had improved upon their previous statements. P.W.5 had admitted that on the day of occurrence Muhammad Ali son of Shahadat was not present in the village at the time of occurrence. P.W.4 admitted that she was not present at the time of occurrence and evidence of dying declaration thus was being created. The statement made to P.W.4 was only to the extent that Yasin accused had fired at him. This fact has not been denied by Yasin accused by himself and therefore, this piece of evidence is rendered insignificant. P.W.5 and P.W.6 were not natural witnesses of the occurrence. They were returning to their homes from the house of the deceased as stated by them and they were present out of the house of occurrence per chance. They were closely related to the deceased and being chance witnesses they do not deserve any credence in the present case.
11. In view of the above I am satisfied that the prosecution has failed to prove its case by producing in Court independent evidence.
12. The accused had taken a plea and that was the plea of grave and sudden provocation coupled with the apprehension to his life from the hands of the deceased, in case he was successful in snatching the revolver from his hands. P.W.f ',nd P.W.6 were not present at the commencement of occurrence as admitted by them. They were attracted to the spot on hearing a fire shot. Therefore, I am of the view that there is only one material available to the Court and that was the statement of the accused as to how the occurrence started. I have no reason to disbelieve him as I am inclined to accept the version of the accused also on the ground that Muhammad Ali the husband of Mst.
Parveen was not on leave and was supposed to be present in his house, whom Riaz deceased had gone to see in the house where the occurrence took place is not clear. P.W.4 had stated that the deceased had gone to the house of Muhammad Ali to see him in his house. If Muhammad Ali was an employee of Pakistan Army and was not on leave, it would require a fool to believe that the prosecution story to that extent had an iota of truth.
' Story of two fires, one of which attracted P.W.5, P.W.6 stands falsified by Exh.P.H. Only one of the two crime empties taken into possession by P.W.7 have been opined to have been fired from pistol P.3.
13. It is the duty of the prosecution to prove its case beyond reasonable doubt and stand on its own legs. The accused, in no case, is required to prove his innocence or his defence plea. It is for the Court to infer from the evidence on file and see that the version of the accused, if put in juxtaposition to the story of the prosecution, was plausible or not. The golden principle that every person was innocent unless proved otherwise has not yet been changed so far by the superior Courts. The accused is the most favorite child of law and in the present case the version of the accused is plausible and rather reasonable because nobody had seen the commencement of the occurrence and we are only left with the statement of the accused to appreciate, as to how the occurrence commenced. It was the prosecution duty to prove and the prosecution having failed in its duty I am of the view that the plea of the accused was reasonable and plausible in the circumstances of the case.
14. I am however, of the view that if the version ofhe petitioner be simple injuries on the person of the deceased and this Court cannot lose sight of the fact that it was not even the case of the accused that the deceased was armed, the extent of the right of self-defence, the seat of the shots on vital part of the body and according to the plea of the accused, the death was not intended.
15. The trial Court had also not convicted the petitioner under section 302, P.P.C. He was convicted under section 304, Part I, P.P.C. I am of the view that the shot from the revolver of the petitioner could not exclude his knowledge that the death may be likely to be caused but I am of the confirmed view that the accused had no intention to cause death or cause such bodily injury as was likely to cause death in the circumstances of the case. The conviction of the petitioner under section 304, Part I, P.P.C. Is converted into one under section 304, Part II, P.P.C. The appellant was arrested on 24-3-1990 and is in jail till today. He was given benefit of section 382-B, Cr.P.C. He has almost served over 6 years in jail. His sentence is, therefore, reduced to already undergone. The appellant shall be released forthwith, if not required for detention in any other criminal case.
16. The appeal is disposed of accordingly.