' SH. GHULAM SARWAR, J.---Resume of prosecution version and entire episode as reflected by an unfolded in Exh.PA lodged by Mirza Humayan Baig, brother of the deceased, namely, Mirza Khalid Baig, and re-affirmed by him as P.W.1 is to the effect that Mst. Shehzadi, their sister, is married to Idris Baig, brother of the appellant. As Idris Baig is employed in Dubai, Mst. Shehzadi alongwith her family is residing in a bungalow at Rajgarh Road, jointly owned by her husband, Idris Baig and his younger brother Mirza Tassadaq Hussain Baig, the appellant. Statedly, the appellant used to compel Mst. Shehzadi to vacate the bungalow to have exclusive possession thereof. Complainant, deceased and their mother Fehmida Begum persuaded the appellant, many a times, to desist from such demand, but, to no avail.
2. On the occasion of "Qul Ceremony" of Naheed Kausar on 12-5-1990, where appellant and complainant party happened to be present, the complainant and the deceased tried to prevail upon the appellant. But it led to exchange of hot words. On intervention of participants, matter was hushed up, for the time being. Appellant, however, imparted threats to deceased to avenge the disgrace meted out to him.
3. On fateful and eventful day, falling on 24-5-1990, there was "Daswan Ceremony" of aforesaid Naheed Kausar. Mirza Tariq Baig P.W.2. Mirza Abid Baig, Mirza Younus Baig (both given up PWs), Khalid Baig and complainant set out towards Allauddin Road, Lahore Cantonment to attend the ceremony in Motor Car No,9552 LHY. On reaching Regal Chowk at 11. a.m. They parked the car near Masjid-i-Shohda to purchase fruit, leaving Khalid Baig to look after the vehicle. While crossing Shahrah-e-Quaid-e-Azam, they came across the appellant on a Scooter No,1272/LEV. While taking out carbine from right side of Neifa of his Shalwar by the appellant on reaching there and at such juncture, it went off all of a sudden and fell on the ground. Thus, injured appellant, immediately took out Mouzer from left side of 'Neifa' of his Shalwar and fired at Khalid Baig, which, hit his belly aforesaid Khalid Baig ran towards Beadan Road, where the complainant and P.Ws. Had reached to purchase fruit. Appellant took off his Chappals and continued firing while chasing injured Khalid Baig, who, fell down near a fruit shop. Brandishing his Mouzer, the appellant decamped from the venue. On way to Mayo Hospital in aforesaid car, injured succumbed to the injuries suffered by him.
4. On receiving information of incident, Inspector Saeed Ahmad P.W.12 went to Emergency Ward of Mayo Hospital, where, statement Exh.PA of complainant was recorded and upon which formal F.I.R.
Exh.PA/1 was drawn by Irshad Ahmad P.W.3 Dead body was despatched to morgue for autopsy under the escort of FC Muhammad Iqbal and Muhammad Siddique P.W.4.
5. Investigating Officer accompanied by complainant and Abid Baig (given up P.W) then proceeded to place of occurrence, inspected the spot and secured blood with cotton and took the same into possession vide memo. Exh.PE after making it into sealed parcel. A crime empty of .30 bore Mouzer P4 and Scooter No,1272/LEV P5 were also taken into possession through memos. Exh.PD and Exh.PF respectively. All recovery memos. Were duly attested by the witnesses. Tariq Baig (P.W.2) and Younas Baig. He searched for the accused, but, could not find him. Sealed parcels were deposited with Moharrir of Police Station. Last worn blood-stained clothes i,e, shirt P8, Shalwar P9 and vest P10 were produced by Muhammad Siddique, HC P.W.4 before Investigating Officer, who, took it into possession by means, of memo. Exh.PG. Statements under section 161, Cr.P.C. Of witnesses were also taken down. Site plans Exh. PH and Exh.PH/1-2 were prepared by P.W.8, Syed Imran Ali Shah.
6. Appellant was arrested on 28-5-1990. On his personal search a Mouzer .30 bore P11 and two live bullets P.11/1-2 were recovered, made into a sealed parcel and secured vide memo. Exh.PJ/A in presence of Tariq Hussain and H.C. Niaz Ahmad, who, duly attested the same. Rough sketch Exh.PJ/AA of place of recovery was also prepared. At the instance of appellant, bloodstained shirt and Shalwar P.12 and P.13 were recovered from his house and taken into possession through memo.
Exh.PJ/A in presence of aforesaid witnesses. Rough sketch Exh.PJ/AB of place of recovery was prepared. Through Exh.PM, Investigating, Officer got the appellant medically examined on 28-5- 1990. Modico Legal Report to that effect finds a mention of file as Exh.PLA. After recording the statements under section 161, Cr.P.C. Of witnesses, completing the investigation, final report as envisaged by section 173, Cr.P.C. Was submitted.
7. Post mortem examination on the dead body of Mirza Khalid Baig was conducted by Dr. Misbaul Islam at 3 p.m. On 25-5-1990. His report Exh.PI duly proved by P.W.9 Syed Muhammad contains narration of injuries and observations, which, need not be recapitulated.
8. Charge under section 302, P.P.C. Was framed against the appellant, who, pleaded not guilty to it and claimed trial.
9. To substantiate its version as many as 13 witnesses were examined by the prosecution. P.W.1, and P.W.2 furnished ocular account. P.W.6 advised the appellant to make amends in his demeanour towards Mst. Shehzadi. As P.W.7 Mst. Shehzadi deposed that she was forced by the appellant to vacate bungalow jointly owned by him and her husband, who, was abroad. Syed Imran Bokhari is author of site plan Exh.PH. Syed Muhammad Shah P.W.9 proved post mortem report Exh.PI as indicated above, P.W.10 is recovery witness and Investigating Officer appeared as P.W.12 Remaining P.Ws. Are formal. After tendering reports of Chemical Examiner and of Serologist Exh.P0 Exh.PP Exh.PQ and Exh.PR prosecution case was closed.
10. In his statement under section 342, Cr.P.C., the appellant denied all the incriminating circumstances figuring against him in prosecution evidence, professed innocent and alleged false implication. Following plea was advanced by him:-- "My brother Idress Baig was abroad in the days of occurrence. In his absence, his wife Mst. Shehzadi used to roam about, which, I did not like. I advised her not to do so. She got thereon afronted. She instigated her brother deceased Khalid Baig against me. Khalid Baig thereon nourished grudge against me. He visited my house before the occurrence and picked up row with me. While leaving the house, he threatened me of dire consequences.
' On 24-5-1990, at about 11 a.m. I was going by Sharah-e-Quaid-eAzam, by my scooter. I was surprised, near Masjid-e-Shohda, by deceased Khalid Baig, Jamshed Baig and Aurangzeb. All of them were armed with fire-arms. They opened fire on me. The fire shot of the deceased hit me on any right thigh. During this occurrence the deceased also received fire-arm injuries from the hands of his companions Aurangzeb and Jamshed aforesaid. I was taken to Service Hospital, Lahore by one Muhammad Nawaz, where, I was admitted and medically examined. On the same date, S.I.
Saeed Ahmad forcibly took me away at about 4. p.m. And kept me in illegal confinement uptil 28- 5-1990. I told to him the aforesaid facts of the case, but, he did not listen to me. He summoned complainant Humayyum Baig from Tibbi Gorian, District Gujrat and made him a false complainant in the case. After some days my eldor brother Idrees Baig came back from ' Dubai. He filed Writ Petition in the Hon'ble High Court for the registration of the case against actual culprits. I produce copies of the Writ Petition No, 4667 of 1990) Exh. DG and order dated 2-7-1990 of Hon'ble High Court Exh, DH. The Police did not register the case at my instance notwithstanding.
Then I filed a private complaint against the aforesaid persons which is also pending in this Court."
11. The appellant did not opt to appear as his own witness in disproof of allegations as envisaged by section 340(2), Cr.P.C. However, Ghulam Rasool, Inspector, Javed Mirza and Dr. Mian Abdur Raoof were examined as D.W..1 to D.W.3 respectively in defence.
12. Upon culimination of trial, learned trial Court believed prosecution version, discarded the evidence adduced in defence and convicted and sentenced the appellant to death, to be hanged by neck till he be dead, with fine of Rs,10,000 and in default to suffer R.I. For another term of one year. Payment of Rs,50,000 to legal heirs of deceased and in default to undergo R.I. For further period of five years was also directed.
13. Such conviction and sentence stands assailed and challenged in instant Criminal Appeal No,144 of 1993 and matter is before us by way of Reference No,78 of 1993 under section 374, Cr.P.C. And we propose to dispose, both of it, together by this single judgment.
14. Learned counsel for the appellant has lambasted the verdict by indicating and pointing out various snage and infirmities, which, according to him impair the prosecution case beyond repair and which, unfortunately escaped the notice of learned trial Court who rather remained oblivious of defence version. Also it has been impressed that very act of deceased was provocative and no option had rather been left, but, to resort to self-defence, which, cannot be modulated step by step nor it can be measured in golden scales. Since family honour was being tranished reaction has been described to be natural by the appellant, who, did not digest and aptly persuaded Mst.
Shehzadi to mend her ways. Reliance has been placed upon Safdar Ali v. The Crown (PLD 1953 FC 93), Sikandar v. The State (PLD 1966 SC 555), Kaichi Sarkar alias Kanchoo and another v. The State (PLD 1966 Dacca 508), Painda Khan v. The State (PLD 1967 Pesh. 325), Sher Daraz Khan v. The State (1983 SCM R 266), Ahmad Din v. Faiz Ahmad and 2 others (1972 SCM R 549) Anwar v. The State (1975 P.Cr.LJ 750), Allah Bakhsh v. The State (1969 PCr.LJ 1204) and Shaukat Ali and others v. The State (PLD 1974 Kar. 179) to contend, inter alia, that grave doubts are cast on the case for prosecution; wherever, investigation reveals dishonesty and that accused is entitled to benefit of doubt though he may have failed affirmatively to establish the plea.
15. But there can be no cavil to the proposition that such plea was never "first version" of appellant even upto trial. Same appears to be an afterthought affair and figment of his imaginations.
Admittedly, he was going on scooter. Occurrence/Incident is not denied. Day time, its venue and injuries on the person of deceased with firearms are hardly disputed. In wake thereof, if injury A on the person of appellant is ascribed to deceased, even then, it stands established that death of Mirza Khalid Baig was caused by the appellant. Complainant party well-knew the consequences of false implication, because, the appellant happens to be real brother of husband of sister of complainant and deceased.
16. It is duty of Court to review entire evidence adduced by prosecution and defence and gather if there is reasonable possibility of the defence put forward by accused to be true. Such inference reacts on whole prosecution case as expounded in Safdar Ali v. The Crown (PLD 1953 FC 93).
Undoubtedly, it is "two version" case. When both are juxtaposed, prosecution story turns out to be not only 'plausible but also ringes true by overwhelming evidence, data and material on record.
One, advanced by the appellant is manifestly exposed to frivolity. Possibility that the deceased lost his life at the hands of his own companions cannot even be visualized. Conclusions and findings of learned trial Court in this regard are based not only on data and material on record but also on exhaustive analysis and sound reasoning. Hence the same are unexceptionable.
17. Bare and bald perusal of prosecution evidence, however, suggests an irresistible conclusion that family honour was certainly involved. Yearning for exclusive possession would not make the appellant as sole owner of property at Rajgarh Road. Also it is pertinent to note that after occurrence, appellant's real brother did not stand by his wife, sister of complainant and rather sided with the appellant. It means that husband of Mst. Shehzadi was in concord with reaction of his brother, the appellant, who, took serious notice of aimless loitering of his 'Bhabi'. Plea of appellant that he persuaded Mst. Shehzadi "not to roam about" is seemingly nearer to probability.
In other words, motive also looks shrouded in mystery and wrapped in mist.
18. Hence, keeping in view of misty nature of motive, relationship of parties, special features including family honour and happening of occurrence, undoubtedly without pre-meditation, imposition of capital punishment and extreme penalty does not seem to be justified. Same accordingly is converted and altered into imprisonment for life. Sentences of fine and compensation are, however, maintained and upheld. Benefit of provisions of section 382-B, Cr.P.C.
Shall be extended to the appellant while computing the period of his sentence.
19. Appeal and Murder Reference stand disposed of accordingly.
Sentence reduced.