' This judgment will dispose of Criminal Appeal No,824 of 1997 filed by Muhammad Ayub, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Jhang on 26-11-1997 for the murder of Ghulam Jafar under section 302(b), P.P.C. To undergo life imprisonment with the direction to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof six months Si Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. It may be noted here, that three co- on accused of the appellant namely Muhammad Maqsood, Muhammad Maqbool and Murtaza were acquitted by the learned trial Court.
3. Muhammad Saeed PM. Filed the instant complaint asserting that on his statement made before police at Railway Crossing Toba Road Jhang vide F.I.R. 775,dated 10-10-1994 under section 302/34, P.P.C. Was chalked and as per facts of the ease, the complainant was residing in Killa No,4, Square No,5 and had one son Ghulam Jafar and three daughters. About two years back, his son Ghulam Jafar was married with Mst. .Kausar Bibi daughter of Abdul Majeed resident of Chak No,457/JB.
Since that was Wata marriage therefore, his daughter Mst. Zakia Kausar was married with Maqbool son of Abdul Majeed. Mst. Kausar Bibi conceived daughter aged 1-1/2 years and son aged three months from Ghulam Jafar. On 10-10-1994 at about 5-00 p.m. He (complainant) along with Mst.
Zakia Kausar, Ghulam Jafar and others family members was in his house when accused Maqsood armed with 7 m.m. Rifle along with Maqbool empty handed on a car bearing No,2603/JGB, accused Ayub armed with .32 bore pistol, sons of Abdul Majeed and Murtaza son of Muhammad Bakhsh, caste Sial empty handed arrived there on motor-cycle. Accused Maqsood exhorted Lalkara to teach lesson to Ghulam Jafar for quarrelling with their sister and to murder him whereupon all the accused dragged Ghulam Jafar and took him outside the Haveli when complainant endeavored to intervene he was overpowered by accused Murtaza Accused Maqsood made two successive fire shots with 7 m.m. Rifle hitting Ghulam Jafar on right side of chest and under right upper arm.
Ghulam Jafar collapsed and succumbed to the injuries on the spot. Accused Muhammad Ayub went on firing in the air with the revolver. On hue and cry of complainant, Mst. Zakia Kausar and other family members, P.Ws. Khadim Hussain, Abdul Razzaq and other men of vicinity reached there and witnessed the occurrence.. Accused Muhammad Maqsood handed over his rifle to his co-accused Muhammad Ayub and tried to make goods his escape by car along with accused Maqbool but complainant along with his daughter Mst. Zakia Kausar, both the P.Ws. As well as other persons attracted there, overpowered them whereas accused Muhammad Ayub and Murtaza managed to escape on motor-cycle threatening to murder who were not chased apprehending danger to life At the time of overpowering accused Muhammad Maqsood and Muhammad Maqbool the front and back screen of the car was broken.
4. Motive behind the occurrence was that 3/4 days prior to the occurrence, Mst. Kausar Bibi wife of Ghulam Jafar deceased left her children went to the house of her parents. Feeling aggrieved therefrom all the accused in furtherance of their common intention murdered Ghulam Jafar.
5. Investigation in this case was conducted by Muhammad Younis Inspector (C.W.1). After registration of the formal F.I.R he inspected the spot and took into possession blood-stained earth vide memo. Exh.P.D. He also took into possession car P.3, vide memo. Exh.P.E. And also arrested Muhamad Maqbool and Maqsood, and took into possession .32 bore revolver from Muhammad Maqsood alongwith 10 live bullets vide memo. Exh.P.C. On 30-10-1994, the Investigating Officer arrested Murtaza and Muhammad Ayub. Muhammad Ayub while in police custody led to the recovery of rifle 7 m.m. P.5 along wtih one live cartridge P.6, which were taken into possession vide memc. Exh.P.G. He investigated the casetill 22-11-1994 and then the investigation was transferred, from him. Final under section 173, Cr.P.C. Was prepared on 28-2-1995.
6. Prosecution in order to prove its case produced nine witnesses in all, thereafter, complainant Muhammad Saeed tendered in evidence certified copies of the report of Chemical Examiner Exh.P.J. And report of the Serologist Exh.P.K. And closed the prosecution evidence, then the statements of the appellant and his acquitted co-accused were recorded under section 342, Cr.P.C. In which they pleaded false implication and produced Dr. Zafar lqbal as D.W.1 and appellant was convicted and sentenced in a complaint case.
6. Learned counsel for the appellant submits that three co-accused of the appellant including Maqsood, who is attributed the fatal shots causing the death of Ghulam Jafar deceased have been acquitted and the conviction of Muhammad Ayub appellant with the role of ineffective firing is not sustainable, that the same eye-witnesses, who have been disbelieved qua three co-accused cannot be relied upon for conviction of Muhammad Ayub appellant, who is not attributed any injury at all in the entire episode, the defence plea of Muhammad Ayub appellant either has to be believed in toto or had to be rejected. He submits that Ayub appellant cannot be convicted by picking out certain part of plea of self-defence pleaded by him.
7. On the other hand, learned Additional Advocate-General submits that after disbelieving the prosecution story then the learned trial Court should have believed the statement of Muhammad Ayub appellant, in which he had pleaded the right of self-defence. Learned Additional Advocate- General does not support the sentence awarded to the appellant by the learned trial Court.
8. On the other hand, learned counsel for the complainant submits that occurrence had taken place in the house of the complainant. That appellant and his brothers had come armed with sophisticated weapons and tried to snatch away the child of Maqbool acquitted co-accused/son- in-law of the complainant, that Muhammad Ayub appellant had admitted his participation in the occurrence so his conviction and sentence should be maintained.
9. I have heard learned counsel for the parties and have also gone through the record with their assistance. According to the F.I.R. And statements of the witnesses recorded by the learned trial Court, Muhammad Ayub appellant was attributed only ineffective firing. Two fatal shots were attributed to Maqsood co-accused the real brother of the appellant, who has been acquitted by the learned trial Court. Learned trial Court in his judgment has also disbelieved the statements of P.W.2 and P.W.3 and has come to the conclusion that complainant Muhammad Saeed P.W.2 in order to cause benefit to Maqbool his son-in-law has changed the role of the appellant and his co-accused before the trial Court and his statement was duly confronted with the F.I.R. And his other statements recorded during the course of investigation. The law in the country as held by the superior Courts is that when the prosecution evidence is disbelieved then the Court has to fall upon the defence of accused/appellant and has to believe it in toto. In the instant case, learned trial Court has disbelieved the prosecution evidence and has convicted the appellant on his own statement, who in fact according to the prosecution story was attributed ineffective firing. Even learned Additional Advocate-General has conceded the submissions made by learned counsel for the appellant and states that if the version of the prosecution was disbelieved then the learned trial Court should have believed the version of the appellant Muhammad Ayub in tow which he has taken in his statement recorded under section 342, Cr,P.0
10. Keeping in view the circumstances of the case and the submissions made by learned counsel for the parties, as ineffective firing was attributed to the appellant by the prosecution in the F.I.R.
And also before the learned trial Court but appellant has been convicted and sentenced on his own statement recorded under section 342, Cr.P.C. In which he had taken the plea of self-defence after disbelieving the prosecution story then only option remains with the Court is to believe as a whole the version of the appellant. In this view of the matter, this appeal is accepted. Conviction and sentence awarded to the appellant by the learned trial Court is set aside. He is in judicial lock- up and shall be released forthwith if not required in any other case.