DR. MUNIR AHMAD MUGHAL, J.- This appeal has arisen against the judgment passed by Mr. Muhammad Akmal Qureshi, Additional Sessions Judge, Gujrat whereby he convicted the accused- appellant Asghar Ali for offence under section 302 PPC and sentenced him to life imprisonment with a fine of Rs. 10,000/- or in default thereof to undergo R.I. For one year. It was also ordered that out of the fine, if recovered, Rs.8,000/- shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. w&s also awarded to the appellant. The State had also filed Cr. Revision No. 570 of 1989 for enhancement of the sentence of life imprisonment to that of death. This judgment will dispose of both the appeal and revision.
2. The prosecution story as contained in the FIR No. 192/1986 lodged at Police Station Karianwala at the report of the complainant dated 19.9.1986 is that the complainant is a resident of Piro Shah and earns his livelihood through working at power looms in Jalal Pur Jattan. On the day of occurrence, which was a holiday on account of Friday, at about 9.00 a.m. He went to the house of his brother- in-law Allah Ditta s/o Hassan Muhammad, caste Arain, where Allah Ditta, his wife Mst. Fazal Begum and Muhammad Hussain were present. In the meantime, Asghar Ali came into the house of Allah Ditta and told that day the respectables had convened an assemblage at the Dera of Inayat Ali s/o Niaz Ali in connection with matter concerning with the abduction of his sister Mst. Farzana.
Whereupon he, Asghar Ali and Allah Ditta started towards the Dera of Inayat Ali. Allah Ditta was going ahead of them while Asghar Ali was proceeding behind him at some distance and that the complainant and Ghulam Hussain were walking behind Asghar Ali and had reached the agricultural land of Muhammad Ashraf that suddenly Asghar Ali took out a carbine from his "Dub" and fired a shot at Allah Ditta which hit him on his back and he fell down. Asghar Ali uttered a threat that if any one came near to him he would not be spared and simultaneously issued second fire which hit Allah Ditta while he was in fallen condition, on his chest near by his abdomen, neck and right "Dola". Being frightened, the complainant party did not got near and Asghar Ali fled away from the scene of occurrence. When the complainant party went near Allah Ditta he had already expired on the spot. Leaving behind Ghulam Hussain resident of Deh to guard the dead body of Allah Ditta, deceased, the complainant went to Police Station and lodged the FIR. The motive as alleged in the FIR was that about four or five months ago, Mst. Farzana sister of Asghar Ali had eloped with Zafar alias Zafra s/o Sardar Khan of village Massan in connection with illicit liason.
However, through the intervention of respectables she was restored to Asghar Ali accused. Asghar Ali accused had levelled the allegations that Allah Ditta deceased had a hand in the abduction/elopment of Mst. Farzana.
3. After completion of investigation and preparation of necessary papers the accused-appellant was challaned to Court for facing trial. In the trial the prosecution examined as many as ten witnesses in its support. Dr. Ghulam Abbas Zafar (PW. 1), Muhammad Afzal (PW. 2), Muhammad Azam Constable (PW. 3), Muhammad Bashir s/o Ghulam Hussain (PW. 4), Mohsin Pervaiz (PW. 5), Allah Ditta s/o Hasan Muhammad. (PW.6), Ghulam Hussain (PW 7), Javed Akhtar Iqbal Patwari (PW.8), Muhammad Yousaf, AS1 (PW.9) and Khadim Hussain retired SHO (PW.10).
4. After the prosecution evidence the statement of the accused-appellant was recorded under Sec.
342 Cr.P.C. He did not appear as his own witness under Section 340 (2) Cr.P.C, on oath. No defence witness was produced by the accused- appellant.
5. Learned trial Court after completion of the trial convinced and sentenced the accused-appellant as. Mentioned above. Hence this appeal.
6. Learned counsel for the appellant vehemently contended that the learned trial Judge has not properly appreciated that it is a case of two versions; one version has been put forth by the prosecution and the other version advanced by the appellant in his statement under section 342 Cr.P.C, and that is that he caused the death due to "Ghairat" and self-defence fearing imminent to his life.
7. Learned counsel for the State has supported the judgment of the trial Judge and submitted that there is no mitigating circumstance in favour of the appellant so he is not entitled to any leniency.
8. I have critically examined the submissions of the Learned counsel and have perused the record with their able assistance.
9. Admittedly it is a case of two versions; one has been given by the prosecution, that is, about four or five months ago, Mst. Farzana, sister of Asghar Ali, accused elopped with Zafar in connection with illicit liaisons; however, through the intervention of the respectables, Mst. Farzana was restored to Asghar and he levelled the allegation against Allah Ditta deceased, brother-in-law of the complainant that he had a hand in the abduction/elopement of Mst. Farzana. The other version has been put forth by the appellant under section 342 Cr.P.C, that he caused the death of Allah Ditta, deceased due to "ghairat" and self-defence as Zafar and Allah Ditta, deceased had abducted the sister of the appellant when he was away and on his arrival to home, he chased them. The appellant and the deceased grappled with each other and the appellant succeeded in snatching the carbine from the deceased. In the meantime, Mst. Farzana, sister of the appellant and Zafar started running and the appellant fired at them and the fire shot his the deceased.
10. The salutary principle of law for the just decision of a case of two versions is that both the versions are put in juxta position and thereafter the Court has to see. Which version is more probable and near to the truth according to the evidence available on record subject to this qualification that the onus of proof always remains on the prosecution and if there is any doubt, that should be resolved in favour of the accused. For this view, I am fortified by the judgment of the Supreme Court in the case of Muhammad Younas v. The State (1992 S.C.M.R. 1592) wherein it was held as under:- "It is by now well-established that in a situation like the one in hand, both the versions have to be kept in juxta position and the one favourable to the defence is to be preferred to, if it gets support from the admitted facts and circumstances of the case and appeals to common sense.
11. The prosecution in this case produced as many as 10 PWs. PW. 1 is the Medical Officer who conducted the post-mortem examination on the dead body of the deceased. PWs. 2, 3, 8 to 10 are the official witnesses, including the Investigating Officer. Ch. Bashir Ahmad, PW.4 accompanied Muhammad Sharif, PW to the mortuary where he identified the dead-body of Allah Ditta, deceased.
Mohsin Pervaiz, PW.5 was a witness of recovery of blood-stained earth. Allah Ditta, complainant, was examined as PW.6 while the other eye-witness, namely, Ghulam Hussain was examined as PW.7. Both Allah Ditta and Ghulam Hussain fully supported the prosecution case, no doubt, both these witnesses re related inter se but mere relationship of the witnesses would not be a ground for discarding their evidence. The prosecution version is also getting support from the promptly lodged FIR, the medical evidence and the recovery -of weapon of offence. The motive as given in the FIR is also proved as the appellant has not denied the same.
12. On the other hand, the case of the defence as set up in statement under section 342 Cr.P.C, gets corroboration from the statement of Ghulam Hussain (PW.7) when he in cross-examination admitted that Zafar was married with Mst. Naziran, the real sifter of Mst. Farzana and Asghar Ali, accused and did not know when Farzana was abducted second the by the aforesaid Zafar. The other independent witness of the prosecution, namely, Allah Ditta (PW.6) in cross- examination admitted that Mst. Naziran was married to Zafar; out of this wedlock, they have a daughter; they had married 1-1/2 year prior to the instant occurrence and that it was correct that Zafar had not yet divorced Mst. Naziran when he abducted her sister Mst. Farzana. The motive furnished by the prosecution was that the appellant had levelled thd allegation against the deceased that he had hand in the abduction of Mst. Farzana, the real sister of the appellant, Asghar Ali.
13. Now keeping both the versions in juxtaposition, the version put by the defence that the appellant had committed the murder on account of ghairat and sudden provocation, was admittedly his one sister, namely. Naziran was in the nikah of Zafar and during the subsistence of that nikah, he had for the second the abducted Mst. Farzana, his other real sister coupled with the fact that the participation and presence of the deceased even according to prosecution version is admitted, fits into the ambient of the circumstances of the case adequately. It is also an admitted position that Inayat Ali on whose dera the alleged punchayat was to be convened was not produced for the reasons best known to the prosecution.
14. The result of above discussion is that the case of the appellant is covered by exception I to section 300 PPC and in such a case, conviction can only be passed under section 304 (I) PPC.
Accordingly I partly accept the appeal, alter the conviction under section 302 PPC to that of under section 304 (I) PPC and sentence the appellant to 10 years RI and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo further R.I. For one year. The fine, if recovered, the whole of it shall be paid to this legal heirs of the deceased as compensation under section 544 Cr.P.C. Cr.
Revision No. 570 of 1989 is, however, dismissed.