' SH. IJAZ NISAR, J.---This appeal by leave of the Court is directed against the judgment, dated 7-2- 1995, passed by the Lahore High Court, Lahore, in Criminal Appeal No,671 of 1991 and Murder Reference No,270 of 1991.
2. The facts, in brief, are that on 16-11-1989 at 2.05 p.m. a case under section 302/307/34/109, P.P.C.
Was registered at Police Station Bhera, Tehsil, Bhalwal, District Sargodha, against Hasnain Shah Appellant, Nazar Hussain, Khadim Hussain Shah, Makkey Shah, Ashiq Hussain Shah and Qurban Shah, at the instance of Riaz Hussain Shah P.W.1, for the murder of Rajey Shah deceased and committing murderous assault on his maternal uncle Ghulam Abbas Shah.
It is stated that on 16-11-1989, at 12.00 noon, when Riaz Hussain Shah (complainant), his maternal uncle Ghulam Abbas Shah injured P.W. And Muhammad Naseer (given up P.W.) were returning from the Court of Resident Magistrate, Bhera, they were confronted by Hasnain Shah appellant and Nazar Hussain Shah, who were riding a motorbike, as also by Qurban Hussain Shah acquitted co- accused who was stated to be already present there. Hasnain Shah appellant and Qurban Hussain Shah were armed with 12 bore guns, while Nazar Hussain Shah was armed with a stick. Hasnain Shah appellant challenged the deceased that he would be taught a lesson for firing at his maternal-uncle Khadim Hussain Shah and while uttering these words, fired on different parts of his body from his gun. He intended to fire again, but he was given a Sota blow by Ghulam Abbas P.W.
As a result of which his gun was broken, whereafter Nazar Hussain Shah caused stick injuries to Ghulam Abbas P.W. While Qurban Hussain Shah, who was standing nearby with a gun, declared that if anybody dared intervene he would also be done to death. The attack was reportedly launched at the instance of Khadim Hussain Shah, Makkey Shah and Ashiq Hussain Shah, conspiracy whereof was overheard by Nazar Hussain Shah son of Karam Hussain Shah P.W. 4 and Yara (given up P.W.) a day earlier at Ashiq Hussain's Dera.
3. The motive for the offence was to avenge the firing caused by Zile Hussain and Tanvir Hussain Shah, relatives of the complainant party, on Khadim Hussain Shah, maternal uncle of Hasnain Shah appellant, on 12-9-1989.
4. Muhammad Yousaf Sub-Inspector, Police Station Bhera, investigated the case. He arrested all the accused on 20-11-1989. On 23-11-1989 the Investigating Officer recovered the broken licensed gun P.4 alongwith 5 live cartridges at the instance of Hasnain Shah appellant, and sota P.7 at the pointation of Nazar Hussain Shah co-accused.
5. The learned trial Court, vide its judgment dated 10-6-1991, convicted the appellant under section 302, P.P.C. And sentenced him to death plus a fine of Rs,50,000 or in default to undergo five years R.I.
The fine if recovered was ordered to be paid to the legal heirs of Rajey Shah deceased as compensation under section 544-A, Cr.P.C. Nazar Hussain Shah co-accused was convicted under section 323, P.P.C. And sentenced to 3 months S.I. For causing simple hurt to Ghulam Abbas P.W.2.
However, Khadim Hussain Shah, Makkey Shah, Ashiq Hussain Shah and Qurban Shah were acquitted.
6. On appeal, filed by Hasnain Shah appellant and Nazar Hussain co-accused, a Division Bench of the High Court maintained their conviction and sentence.
7. Leave to appeal was granted to Hasnain Shah appellant to consider whether on the facts of the case and the law declared by this Court, the High Court was right in refusing the plea of private defence of the appellant and whether on the facts found he had exceeded that right.
8. The prosecution case rests on the evidence of Riaz Hussain Shah P.W. 1, brother of the deceased and Ghulam Abbas Shah P.W., his maternal-uncle, who had furnished the ocular testimony, as also about the recovery of gun P.4 at the instance of the appellant.
9. The appellant did not deny the occurrence, but gave a counter-version to the following effect:-- "On the day of occurrence I had gone to Police Station Bhera for getting a report on my application for superdary (Exh. DE). The police refused to report on the said application saying that it was their inspection day. I returned to bus stand for going back to my village. Meanwhile Rajey Shah deceased and Ghulam Abbas P.W. While armed with sotas came there and raised lalkara that they will teach me a lesson for becoming a witness in case of firing at Khadim Hussain Shah accused.
Ghulam Abbas Shah started beating me with sota. Rajey Shah deceased also joined with him. I also gave some sota blows to Abbas Shah P.W. In my self-defence. Meanwhile many persons and shopkeepers including the relatives of Ghulam Haider Shah and Jalal butcher collected there and in that malce somebody fired at Rajay Shah deceased. After the occurrence I went to the Police Station with my broken arm but the S.I. Did not record the F.I.R. At my instance and instead made me sit in the Police Station and later on with the connivance of the complainant party challaned me in this case falsely."
10. Admittedly both the parties were inimically disposed towards each other and the appellant was a prosecution witness against the complainant party in the case of firing at Khadim Hussain co- accused, and the occurrence took place when they came across each other at the bus stand.
' According to Hasnain Shah appellant, he was first attacked by Ghulam Abbas Shah P.W. With a stick on which he retaliated and caused stick injuries to him. In the F.I.R. There is no explanation at all of the injuries suffered by him, but the medical report shows that he did suffer blunt weapon injury on the back of the upper part of his right forearm, resulting in the fracture of his right ulna bone. The nature and locale of the injury suggests that it could not be self-suffered. Its duration tallies with the injuries of the deceased and Ghulam Abbas P.W. In view of the presence of the hostility between the parties and the eyewitnesses, who were closely related to the deceased, it was quite natural to suppress their own part in the occurrence. The defence version put forth by the appellant also does not appear to be fully correct, in that, no explanation at all has been advanced by the appellant as to how his licensed gun was found broken. There is a clear mention in the F.I.R.
Of the gun having broken on account of the impact of stick blow landing on it at the instance of Ghulam Abbas P.W. In a bid to ward off the second shot being fired by him.
11 . The motive set forth by the prosecution is that on 12-9-1989 Zile Hussain and Tanvir Hussain Shah of the complainant party had fired at Khadim Hussain Shah accused (since acquitted). The present occurrence is alleged to have taken place on 16-11-1989. Hasnain Shah appellant is alleged to have murdered the deceased on account of the said murderous assault on his maternal uncle Khadim Hussain Shah. It would be pertinent to point out here that Rajey Shah deceased had nothing to do with the said case, and if at all there could by any grievance on that score it could have been against Zile Hussain and Tanvir Hussain, who were not at all harmed by the accused.
12. From the circumstances discussed above, it appears that both sides have not come forward with the true story and have tried to suppress their own part in the occurrence and the genesis of the fight is not clear, and it cannot be said with certainty what transpired between the parties prior to the occurrence. The possibility of chance encounter can also not be ruled out.
13. In this view of the matter, we think that though the charge of murder stands proved against Hasnain Shah appellant, nevertheless, he is entitled to the lesser sentence provided for the offence of murder, and we . While maintaining his conviction under section 302, P.P.C. We alter his sentence from death to imprisonment for life plus the fine as awarded by the learned trial Court. He shall also be entitled to the benefit of section 382-B, Cr. P. C Sentence reduced.