' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,190-T of 1999 and Criminal Appeal No,574 of 1999 filed Muhammad Naeem and Sharafat Ali, appellants, who were convicted and sentenced by learned Special Judge, Anti-Terrorsim (Punjab), Faisalabad on 29-5-1999 to death punishment under section 302(b) read with section 34, P.P.C. And to pay a fine of Rs,1, lac, each as compensation to the legal heirs of the deceased. Both the appellants were also convicted and sentenced to ten years R.I. With a fine of Rs,50,000 and in default R.I. For two years each under sections 324/34, P.P.C. For launching murderous assault upon Mst. Shabeela. Similarly both the appellants were also convicted and sentenced to ten years R.I. With a fine of Rs,50,000 and in default two years' R.I. Each under section 324/34, P.P.C. For launching murderous assault upon Mst. Shamaila. Sentence under section 324/34, P.P.C. Were ordered to run concurrently with the benefit of section 382-B, Cr . P. C .
2. Occurrence in this case took place in Chak No,56/JBV, 20 K,Ms. Away from Police Station Nishatabad at 9-00 a.m on 4-10-1996 while the matters was reported to the police on the same day at 11-15 a.m and the formal F.I.R. Exh.P.A.1 was recorded by Muhammad Ali H.C. Moharrir.
3. According to the F.I.R. Exh.P.A.1, facts of the prosecution case as narrated by the complainant are that on 4-10-1996 at about 9-00 a.m. When he came back to home from his fields, he saw that Sharafat Ali accused/appellant was quarrelling with his wife. He warned him not to do so but in vain. He went away abusing him as well. Having heard a noise, his brother Nazir Ahmad and Abdul Haq came there. Some other male and female persons were also gathered in the bazar. His son Asghar Ali was standing in the bazar outside of the house. He himself, Nazir and Abdul Haq also came near Asghar Ali in the bazar and started talking to each other. In the meanwhile, Sharafat Ali armed with .12 bore gun and his nephew Muhammad Naeem accused/appellant also came there.
Naeem accused/appellant raised Lalkara that they had come there to teach a lesson for launching the suspicion of theft. Sharafat Ali accused/appellant then fired a gun shot, the pallets of which hit Mst. Shamaila Siddique at her hand and leg. Sharafat Ali fired a second shot, the pallets of which hit Mst. Shabila Rafique at her head, hands, chest and shoulder. Thereafter, Muhammad Naeem accused/appellant snatched .12 bore gun from Sharafat accused and fired a straight shot upon his son Asghar Ali hitiing on his fore-head, chest and right leg as a result of which Asghar Ali fell down. Sharafat and Naeem accused/appellant while raising lalkaras that they had taken the revenge of insult, returned to their houses. Due to being empty handed they could not come forward.
' Motive behind the occurrence is that 3/4 days before the occurrence, theft was committed in his house and he suspected the aforesaid two accused, and the lamberdar of the village asked that the matter be solved through Punchait, due to which the accused felt aggrieved. Both the accused while firing, have injured Asghar Ali and two girls. He himself, Nazir Ahmad and Abdul Haq were carrying Asghar Ali to Allied Hospital but he succumbed to the injuries on the way.
4. After the registration of formal F.I.R., Jaffar Ali, S.-I. (P.W.12) reached at the spot and collected blood-stained earth, which was taken into possession vide memo. Exh.P.D. He prepared injury statement Exh.P.G. And inquest report Exh.P.H. When he was present at the spot, Muhammad Ishaque complainant produced Muhammad Naeem appellant in injured condition before him, he arrested him and recovered from him a gun .12 bore P.2, which was taken into possession vide memo. Exh.P.E. He also prepared rough site plan Exh.P.L. Of the place of occurrence. On 16-101996, Sharafat Ali accused/appellant was arrested. Report of Chemical Examiner is Exh.P.M and that of Serologist is Exh.P.N. There is also a report of Forensic Science Laboratory Exh.P.O.
5. Prosecution in order to prove its case produced 12 witnesses in all, thereafter, the statements of the appellants were recorded under section 342, Cr.P.C., then Dr. Muhammad Anwar and Dr. Muhammad Javaid were examined as D.W.1 and D.W.2 and Ghulam Rasul, Line-man WAPDA and Alamgir, cultivator were examined as D.W.3 and D.W.4.
6. After reading the prosecution evidence, statement of the appellants recorded under section 342, Cr.P.C. And statements of the D.Ws. Learned counsel for the appellants submits that prosecution has not approached the Court with clean hands, that on the side of both the appellants and the real brothers of Sharafat Ali appellant namely Ghulam Rasool and Alamgir were also injured but their injuries have been suppressed by the prosecution, that the appellants had produced Dr. Muhammad Anwar and Dr. Muhammad Javaid as D.W.1 and D.W.2, who had conducted the medico-legal examination of all the person on the side of the appellants. He further submits that Muhammad Naeem appellant had acted while using the right of self-defence and he has also stated his version in his statement under section 342, Cr.P.C. Before the trial Court and also before the Investigating Officer. He also submits that the eye-witnesses produced by the prosecution are closely related with the deceased, that no independent witness has been produced by the prosecution, although the occurrence had taken place in an open bazar in presence of many independent persons. Learned counsel also submits that motive put forward by the prosecution is a concocted one, because no case of theft was ever registered against the appellants. Further, submits that story put forward by both the appellants in their statements recorded under section 342, Cr.P.C. Is more plausible and convincing one than the story put forward by the prosecution.
7. On the other hand, learned counsel for the State submits that appellants have committed the murder of Muhammad Asghar a young man and also caused injuries to two young girls, who have also appeared before the learned trial Court. He supports the judgment of learned trial Court.
8. We have heard the learned counsel for the parties at a great length and have also gone through the evidence recorded by the learned trial Court. In the instant case, prosecution has not approached the Court with clean hands having suppressed the injuries of both the appellants and two others namely Ghulam Rasool and Alamgir D.W., who are real brothers of Sharafat Ali appellant. In this regard, appellant has also produced Dr. Muhammad Anwar M.O. As D.W.1, who had conducted medico-legal examination on the person of Sharafat Ali appellant and also on the persons 'of Ghulam Rasool and Alamgir while Dr. Muhammad Javaid, M.O. Was produced as D.W.2, who had conducted medico-legal examination on the person of Muhammad Naeem appellant. All these medico-legal examinations took place on the day of occurrence i,e, 4-10-1996.
9. It may also be noted here, that Ghulam Rasool and Alamgir real brothers of Sharafat Ali appellant also appeared as D.W.3 and D.W.4. It may also be stated here, that as the appellants failed to lodge a case in spite of their hectic efforts against the complainant party; they filed a complaint under sections 365, 324, 148 and 149, P.P.C., which was also heard by same learned trial Court, who had convicted both the appellants but dismissed the same. From the very first day, the stance of the appellants was that it was the complainant was that it was the complainant party, who was the aggressor and they had abducted Muhammad Naeem appellant and kept him in illegal confinement in their house who was rescued later on by the police. It was also the stance of the appellants that the Investigating Officer was dishonest and he did not register the counter- version on behalf of the appellants. Statements of Dr. Muhammad Anwar M.O. And Dr. Muhammad Javaid M.O. D.W.1 and D.W.2 are reproduced below for the just decision of the case.
' D.W.1 Dr. Muhammad Anwar Sulehry, Medical Officer on 4-10-1996 was posted as Medical Officer, at Allied Hospital, Faisalabad and on the same day, he medically examined Sharafat Ali appellant and found the following injuries on his person.
(1) A lacerated wound 3-1/4 x 1/2 c.m. Bone deep, bone exposed, and right side front of head.
(2) A lacerated wound 4 c.m x 3/4 c.m. Bone deep, bone exposed on left side top of head.
(3) A contused swelling 6 c.m. x 5 c.m. On left cheek.
(4) A contused swelling 6 c.m. x 5 c.m on right shoulder.
(5) A contusion mark 12 c.m. x 1 c.m. On back chest both sides lower part.
(6) An abrasion 4 c.m. x 1 c.m. Back of abdomen, lower part.
(7) A contused swelling 6 c.m. x 5 c.m. On back of right chest scapular region.
' Injuries Nos.1 and 2 were Shujjah-e-Madihah and also kept under observation for X-Ray. Rest all injuries were miscellaneous under section 337-L2. The duration of injuries was about 3 hours and all injuries were caused by blunt weapon. On the same day, he examined medically Ghulam Rasul son of Rahim Bukhsh, of the same Chak and found the following injuries on his body:--
(1) A lacerated wound 4 c.m. x 1/2 c.m. Bone deep, bone exposed on front of head in the middle.
(2) A lacerated wound 1 c.m. x 1/2 c.m. Scalp deep, 1 c.m. Right to injury No,1 on the front of head.
(3) A contusion mark 8 c.m. x 4 c.m. On back of right chest lower part.
(4) A contusion mark 10 c.m. x 4 c.m. On back of right abdomen middle part.
' Injury No,1 is Shujjah-e-Madiha. Injury No,2 is Shujjah-eKhafifah. Injuries Nos.3 and 4 were miscellaneous under section 337-L2. The duration of injuries was about 3 hours and all were caused by blunt weapon.
' On the same day and the same time, he medically examined Alamgir son of Rahim Bakhsh of the same Chak and found the following injuries on his body;
(1) A lacerated wound 4 c.m. x 1 c.m., bone deep, bone exposed on back of left hand.
(2) A contused swelling 6 c.m. x 5 c.m. On back of left fore-arm lower part.
(3) A contusion mark 6 c.m. x 4 c.m. On front of left thigh middle part. Injury No,1 was Ghair Jaifah Maddihah. Injury No,2 was kept under observation for X-Ray. Injury No,3 was miscellaneous under section 337-L.2. The duration of injuries was about 3 hours and all injuries were caused by blunt weapon.
' By Ch. Muhammad Qasim, Advocate on behalf of all the accused.
' Injuries Nos.3 to 7 of Sharafat Ali P.W. Were not inflicted with brick bats. I have delivered the copies of aforesaid medico-legal reports to Ashiq Ali immediately after completing those M.L.Rs, On 4-10- 1996 I was on duty from 8-00 a.m. To 2-00 p.m. The injuries Nos.3 to 7 on the person of Sharafat Ali were not caused by a friendly hand. It is incorrect to suggest these could be caused by friendly hand. It is incorrect to suggest that I had very good relations with Ghulam Rassol brother of Sharafat etc. Volunteered. I do not know him. I do not know any Sughran Bibi and I also do not know if she is married in my Chak. It is further incorrect to suggest that injuries were inflicted with my consultation, and thereafter, I issued medico-legal reports.
' D.W.2 Dr. Muhammad Javaid, Medical Officer an 4-10-1996 at 7-25 p.m. Was posted as Medical Officer at Allied Hospital, Faisalabad and on the same day, he medially examined Muhammad Naeem appellant and found the following injuries on his body:-
(1) Multiple abrasions in area of 12 c.m. x 8 c.m. With swelling 10 c.m,. x 6 c.m. On the right fore-arm.
(2) A lacerated wound 2 c.m. x 1/2 skin deep on front of right leg upper part.
(3) Multiple abrasions in area of 20 c.m. x 6 c.m. On the medical side of the lower part of the right leg.
(4) A contused swelling 8 c.m. x 6 c.m. On the outer side of the right ankle.
(5) Multiple abrasions in area of 7 c.m. x 3 c.m. On the left leg other side lower part.
(6). A lacerated wound 1 c.m. x 1/2c.m. Skin deep on the outer side of middle part of the left leg.
(7) A contused swelling 6 c.m. x 6 c.m. On the outer side of left ankle.
(8) A contused swelling 8 c.m. x 5 c.m. On the left cheek.
(9) A contused swelling 3 c.m. x 2 c.m. On the inner side of the lower lip.
(10) Complaint of pain on right buttock.
' Injuries Nos.1, 3, 4 and 7 were kept under observation for M.L.C. Injuries Nos.2 and 6 were Jurrah Ghair Jaifah Damiah. Injuries Nos.5 and 10 were 337-L2. Injuries Nos.8 and 9 were Shujjah-e- Khafifah. The probable duration of injuries was about 10 hours. All the injuries were caused by blunt weapon.
' By Ch. Muhammad Qasim, Advocate, on behalf of all the accused.
' The possibility of the injuries on the person of Naeem cannot be ruled out with 'Roras and Wattas'.
10. The statement of both the doctors would show that four persons including both the appellants also received injuries which have been suppressed by the prosecution during the course of investigation and also before the trial Court. As far as, recovery of gun is concerned, that was the licensed gun of Ashiq Ali, real uncle of Muhammad Naeem appellant. As far as, motive is, concerned, in our considered view that was concocted one because no case of theft was ever registered against any of the appellants. If both the versions are put in juxtaposition, the version put forward by the appellants seems to be more plausible, convicting and natural one. Law gives the right to a person to defend himself, if he only apprehends a grievous injury on his person. In the instant case, as stated above, four persons on the side of the appellants were injured. Appellants have not exceeded their right of self-defence. The investigation in this case was dishonest because the Investigating Officer besides the injuries on the side of the, appellant did not register any case and appellants had to file a complaint. The Investigating Officer dishonestly even did not attach the X-Ray of Muhammad Naeem appellant alongwith report under section 173, Cr.P.C. All the witnesses produced by the prosecution are closely related inter se. Although the occurrence had taken in a busy place in an open bazar but not a single independent witness has been produced by the prosecution to prove its case.
11. Keeping in view the facts and circumstances of the case, we are of the considered opinion, that the version put forward by the appellant is more plausible, convincing and natural one. The upshot of the above discussion is that this appeal is accepted, conviction and sentence awarded to the appellants by the learned trial Court is set aside. Death sentence awarded to both the appellants is not confirmed. Murder reference is replied in negative. Appellants be released forthwith if not required in any other case.
' Death sentence awarded to both the appellants is not confirmed.