' This appeal is directed against the judgment of Sessions Judge, Narowal dated 29-11-1994, whereby appellant Muhammad Idrees (18) alongwith three other acquitted co-accused was tried under section 302/324/ 34, P.P.C. For the commission of murder of Ahmad Khan and was convicted under section 308, P.P.C. And sentenced to undergo R.I. For 14 years and to pay Diyat amounting to Rs,1,00,000 with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that F.I.R. No,87, dated 23-5-1994, was got registered by complainant Muhammad Peraiz P.W.5 stating therein that on 23-5-1994 at about 3 p.m. He alongwith his father Ahmad Khan (deceased) and Muhammad Yamin P.W. 6 went to Masjid Chowk of their village where Hasan Din, Muhammad Asghar and Fazal Din acquitted co-accused and Muhammad Idrees appellant were allegedly present. Ahmad Khan father of the complainant asked Hasan Din accused to give the account of funds collected for the mosque on which altercation took place. It is further alleged that Hasan Din acquitted accused exhorted his sons Muhammad Asghar and Muhammad Idrees and Fazal accused to teach lesson to the complainant party for making demands of funds. Fazal Din accused brought out chhuri from his loin fold and gave a chhuri blow on the fingers of. Muhammad Yamin P.W. Meanwhile Muhammad Asghar and Muhammad Idrees accused went inside their house and over the wall fired with .12 bore gun at Ahmad Khan which hit him on left side of abdomen and pierced out from right side. Ahmad Khan fell down. Muhammad Asghar accused fired with his carbine in the air. Muhammad Ibrahim and Muhammad Hanif P.Ws.
Also witnessed the occurrence. All the accused went into their house while raising lalkara. Ahmad Khan was brought to Civil Hospital, Narowal in injured condition where he succumbed to the injuries. Written statement Exh.PA was provided before the police on which formal F.I.R. Exh. PA was produced before the police on which formal F.I.R. Exh. PA/1 was registered.
3. On receipt of information the Investigating Officer P. W.9 Hanif Hussain Shah went to the Civil Hospital, Narowal where he received complaint Exh. PA made endorsement on the same Exh. PA/2 and got formal F.I.R. Exh. PA/1 registered, secured the dead body of deceased Ahmad Khan, prepared the injury statement Exh. PF and inquest report Exh. PL, and handed over the dead body of deceased Ahmad Khan to the hospital authorities for post-mortem examination. Then the Investigating Officer reached at the spot on the same day where he secured the bloodstained earth from the place of occurrence vide memo. Exh. PJ, attested by Muhammad Ibrahim and Muhammad Hanif P.Ws. Muhammad Yamin injured P.W. Also appeared before him and he also prepared his injured statement vide memo, Exh. PE and got Muhammad Yamin P.W. Medically examined. On 25-5-1994 Muhammad Idrees appellant appeared before the Investigating Officer who arrested him. Muhammad Idrees was injured and he was also medically examined from the Civil Hospital, Narowal. On 27-5-1994 Fazal Din and Hasan Din appeared before the Investigating Officer who were arrested. On 1-6-1994 Muhammad Idrees appellant while in police custody led to the recovery of gun p.5 which was taken into possession vide memo. Exh. PK and the same was attested by Muhammad Ibrahim and Muhammad Hanif P.Ws. On 2-6-1994 Muhammad Asghar accused was arrested and during the investigation Fazal Din was found innocent and was placed in column No,2 of the challan.
4. During the post-mortem examination of deceased Ahmad Khan Dr. Imtiaz Ahmad P.W.3 found the following injuries on his dead body:--
(1) A lacerated wound 9 x 5 c.m. On left side of abdomen oblique direction.
(2) An oval wound 1 x 1/2 c.m. On right side of abdomen lamber region 5 c.m. From interior superior, illiac spine.
(3) A lacerated wound 2.5 c.m. x 3/4 c.m. On right side of abdomen lower part 5 c.m. Below injury No,2.
(4) A lacerated wound 2 x 1/2 c.m. On right side of abdomen 1 c.m. Below injury No,3.
(5) A blackish contusion 8 x 4 c.m. On upper and outer aspect of right thigh.
(6) A blackish contusion 7 x 4 c.m. In size just below right inquinial ligament.
(7) A blackish contusion 2 x 2 c.m. On upper and outer aspect of right thigh 2 c.m. Below injury No,5.
' On the same day the same doctor medically examined Muhammad Yamin and found the following injuries on his person:--
(1) An incised wound 2 x .5 c.m. Skin deep on palmar surface of left right finger at its base.
(2) An incised wound 2 x .5 c.m. Bone deep on palmar surface of left little finger at its middle.
' On 27-5-1994 Dr. Imtiaz Ahmad D.W.1 medically examined Aisha Bibi and found the following injuries on her person:--
(1) A wound lacerated 4 x 0.5 c.m. In healing process on right side of head. 2 c.m. From the hair margin.
(2) Complaint of pain on back of left shoulder.
(3) Complaint of pain in right shoulder and upper arm.
' On the same day the same doctor examined Muhammad Aslam and found the following injures on his person:--
(1) Held scar 1 x 0.2 c.m. On left side of ear, 3 c.m. From left ear.
(2) Complaint of pain in left clavicular region.
(3) Complaint of pain on back of chest.
' On 25-5-1994 Dr. Ibrar Hussain, C.M.O., D.H.O. Hospital, Narowal D.W.2 medically examined Muhammad Idrees and found the following injuries on his person:--
(1) A lacerated wound 7 x 1 c.m. Into bone deep in 'Y' shape on top of head, 6 c.m. Above hair margin.
5. After completion of investigation, challan was submitted against the accused after tendering the report of Chemical Examiner Exh. P.M. And that of serologist Exh. P.O. And of Forensic Science Laboratory Exh. PP. The accused denied the allegation and the manner in which the occurrence took place as alleged by the prosecution, and claimed trial.
6. During the trial the prosecution examined as many as 9 witnesses. Muhammad Pervaiz appeared as P.W.5 and supported the prosecution version as narrated in F.I.R. And the ocular account. P.W.6 Muhammad Yamin is the injured eye-witness He also supported the prosecution version while Muhamamd Hanif P.W.7 and Muhammad Ibrahim P.W.8 are the recovery witnesses and have supported the recovery memos.
7. The accused were examined under section 342, Cr.P.C. The appellant Muhammad Idrees replied to a question as under: ' The occurrence did not take place in the alleged manner. The prosecution has put forth a false and concocted story and has suppressed the real facts in order to conceal their own, aggression and the factum of trespassing into his house and infliction of injuries on the person of Mst. Aisha Bibi his sister, Muhammad Aslam his brother, Hasan Din his father, his mother and on his own person. In fact the P.Ws. Pervaiz alongwith his deceased father Ahmad Khan and Yamin P.W. Came to their house and called his father and asked him about the account of mosque funds. His father has never been a permanent custodian of mosque fund, therefore, he tried to clarify the real facts about the funds of mosque which were not accepted by the complainant and his companions.
They justifiably stressed his father, whereupon his father termed them 'munafeqeen' for not believing his statement of accounts. The P.W. And the deceased, on listening this became enraged and abused his father who returned the same. The P.Ws. Alongwith deceased tried to man-handle his father who on account of fear, entered inside the house. The P.Ws. Alongwith the deceased while threatening his father of dire consequences went back and after a short-while all armed with sotas and with common intention, forcibly trespassed into their house. He alongwith his other family members including his mother, his sister Aisha, his brother Muhammad Alam were present at home. The deceased alongwith his companions assaulted his father whereupon he intervened and on this, Ahmed Khan gave a sota blow on his head. The other aforesaid inmates came forward to save them. On this the deceased and his companions i,e, Pervaiz and Yamin P.Ws. Started inflicting injuries with their respective weapons on the persons of his mother, brother namely Aslam and sister. On seeing this state of affairs, he under grave and sudden provocation and in the exercise of right of self-defence of person and property and the lives of family members and to save the honour of his family being in the fits of anger and 'Ghairat' and provocation took out a gun and fired rashly a single shot which incidentally hit Ahmad Khan deceased. On receiving the injuries. Ahmad Khan alongwith other assailants rushed out of their house while Ahmad Khan fell down outside the door near the wall due to the injuries, received by him. The P.Ws. Pervaiz and Yamin alongwith Ahmad Khan deceased all with common intention and armed with deadly weapons committed aggression on them after trespassing into their house and inflicted injuries on the person of his family members and on him. The case against him and his co-accused has been engineered falsely just to conceal the aggression committed by the complainant party. Pervaiz P.W. Is the real son of the deceased and Yamin P.W. Is the party man of the complainant side and they being themselves the aggressors just in order to conceal their own aggression and to save their own skin, being highly interested and partisan witnesses/persons have deposed against him and his co-accused just to strengthen a concocted story of prosecution. The P.W. Muhammad Hanif was not present at the spot and has deposed against them being party man of the complainant side and inimical towards them on account of previous wall dispute with them.
8. The accused persons also produced in defence D.W.1, Dr. Imtiaz Ahmad who medically examined Aisha Bibi while Dr. Ibrar Hussain D.W.2 who medically examined Muhammad Idrees on 25-5-1994.
Aisha Bibi was examined as D.W.3. The appellant also appeared as his own witness on oath in disproof of allegation.
9. Learned counsel for the appellant has argued that alleged occurrence took place inside the house of the appellant and this fact has been proved that Aisha Bibi was also injured in the occurrence. It was the complainant party who trespassed into the house of the appellant armed with deadly weapons and attacked the appellant party. Aisha sister of the appellant was also injured. Father of the appellant was being insulted and was disgraced and to protect the honour of the family and in self-defence the appellant under grave and sudden provocation caused a single blow with a licenced gun. It is also admitted that the occurrence did not take place as narrated by the complainant party. Learned counsel also argued that even the learned Trial Court found the prosecution case doubtful. It is also argued that due to dishonest investigation the medical report of the appellant was not attached with the challan and in spite of recording statement of Aisha Bibi and Muhammad Aslam the defence version was not brought on record, that during the investigation it was also found that Asghar accused was not armed with carbine and did not fire in the air as alleged by the prosecution witnesses and the role attributed to other co-accused was also not found correct which made the case of the prosecution doubtful and the appellant has only been convicted on his own statement which he made under section 342, Cr.P.C. Further argued that the appellant was admittedly minor at the time of occurrence, therefore, he was convicted under section 308, P.P.C. And the maximum punishment has been awarded to him and imprisonment of 10 years is too harsh even if the prosecution story is accepted to be correct.
10. The learned State counsel has opposed the acceptance of the appeal and supported the impugned judgment.
11. I have considered the arguments of the learned counsel for the parties and perused the record.
12. The factum of occurrence took place inside or near the house of the accused party is not denied. The injury on the deceased Ahmad Khan is also admitted by the appellant on specific plea that his sister Aisha Bibi was injured by the complainant party. They trespassed into the house of the appellant and insulted the old father of the appellant and to protect the honour of the family and in self-defence under grave and sudden provocation, he fired single shot at the deceased which proved fatal. It is also proved that the motive which has been alleged was proved by the prosecution, duly supported by the eye-witnesses and the recovery witnesses. The fatal injury caused by the appellant has not been denied by the appellant. The injury on the person of Aisha Bibi D.W.3 is also proved by Dr. Imtiaz D.W.I who medically examined her. The injuries on the person of Aisha Bibi and of appellant have been suppressed by the eye-witnesses. I am convinced that the occurrence did not take place in the manner as it has been narrated by the complainant and the prosecution witnesses and possibility cannot be overruled that the appellant had fired single shot with licenced gun to protect his family honour as his father was being insulted or under grave and sudden provocation while his sitter was injured by the complainant party. The prosecution story itself shows that the appellant fired at the deceased over the wall while the appellant was inside the house. The occurrence took place either inside the house of the appellant or in front of their house, as disclosed by the prosecution. Therefore, even if the defence version is admitted as correct and considered the appellant having exercised his right of self-defence, he may be convicted under section 302(c), P.P.C. Or under section 308, P.P.C. Being a minor at the time of commission of offence. The conviction of the appellant is, therefore, maintained but considering his young age and the maximum sentence awarded under section 308, P.P.C, I consider the same is on the higher side. Therefore, the sentence is reduced to 10 years' R.I. In the interest of justice. He will be entitled to the benefit of section 382-B, Cr.P.C.
12-A. As regards the imposition of Diyat is concerned, the appellant was under the age of 18 years as per his statement at the time of commission of offence. He exercised his right of self-defence while participating in the occurrence in protecting the honour of his family in grave and sudden provocation. Therefor, the amount of Diyat is determined as Rs,1,00,000. The same will be paid to the legal heirs of the deceased after realization of the same. The amount of Diyat will be deposited in the Trial Court in three, six months equal instalments. The first instalment will be paid on or before 31-12-1999.