' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No, 12 of 1997 and Criminal Appeal No, 64 of 1997 filed by Sona, appellant who was convicted and sentenced under section 302-B, P.P.C. To undergo death for the murder of Godha, by the learned Additional Sessions Judge, Rahimyarkhan, vide his judgment, dated 14-5-1997. Compensation as required under section 544-A, Cr.P.C. Was not ordered to pay to the legal heirs of the deceased.
2. The occurrence in this case took place on 2-3-1995 at 5-30 p.m. In the area of Mauza Rahimabad, 4 k.m. From the Police Station. The matter was reported to police by Haji Khadim Hussain P.W.1, through complaint Exh.P.A., recorded by Muhammad Nawaz, A.S.-I., at Adda Rahimabad on the same day at 6. p.m. And formal F.I.R. In this case was recorded by Manzoor Ahmad, Moharrer, vide Exh. P.A./1 on the same day at 6-15 p.m.
3. We may mention here that the learned counsel for the appellant practices at Rahimyarkhan and his name appeared in the supplementary cause list, therefore he was also informed telephonically through his clerk by the Deputy Registrar (Judl.) about the fixation of this case for 6-5-1999. Today neither the counsel nor any one on behalf of the appellant is present nor any application for adjournment or any other information restraining the learned counsel from appearance in the case has been supplied to us by any one. We have waited for the learned counsel for the appellant for about two hours but now we have no option but to start this criminal appeal and murder reference with the assistance of the learned counsel for the State as this Division Bench has been constituted and sent by the Humble Chief Justice, specifically to dispose of Murder References and Criminal Appeals filed against the judgments of Special Judge, Special Court constituted under Terrorism Act, 1997 and also the Murder Reference arisen out of the orders of the learned Sessions Judges or learned Additional Sessions Judges which come within the jurisdiction of this Bench.
4. Brief facts as narrated by the prosecution through complaint Exh.P.A and F.I.R Exh.P.A/1 are that Khadim Hussain complainant 'P.W.1 is resident of old Bhatta Rahim Abad and is a laborer by profession. On 2-3-1995 at about 5-30 p.m. Sona accused was talking with Mst. Naziran Mai who was his maternal aunt from relation due to his illicit relation near his house. In the meanwhile, Godha deceased, the step-father of the complainant came from the side of southern side who reprimanded Sona accused after seeing with aforesaid Mst. Naziran Mai who was niece of the deceased. Sona accused in response stated that he will continue to do like this and on account of this, abuses exchanged between them. On hearing the noise the complainant, Karam Elahi, Muslim P.Ws. Also came in the Bazar and in their view Sona accused fired with his pistol at Godha deceased on the way near his house which hit Godha deceased on his chest and face. Godha deceased fell down on the ground. In the meanwhile the accused ran away from the spot towards the southern side. The deceased later on succumbed to the injuries in the hospital. The motive behind this occurrence is stated to be that the deceased had reprimanded the accused for his illicit relations with his niece. The accused took it seriously and fired at the deceased. The complainant after sending the deceased in an injured condition to the hospital, along with the P.Ws. Proceeded to Police Station for registration of case but at the bridge Rahim Abad, Police met him and he got recorded his statement Exh.P.A. There at 6 p.m.
5. The Investigating Officer after registration of the F.I.R. Came to the spot and collected blood- stained earth vide memo. Exh.P.B. He also took into possession 4 empty cartridges of .12 bore gun P.1-14, which were taken into possession vide memo. Exh.P.C. The appellant was arrested in this case on 7-3-1995. He got recovered pistol P.2 on 15-3-1995 which was taken into possession vide memo. Exh.P.D. According to the report of Fire-Arm Expert, Exh.P.J., two empty cartridges of .30 bore pistol marked as C-1 and C-4 were fired from the pistol allegedly recovered from the appellant while crime empty of .12 bore marked as C-2 and C-3 were not fired from the pistol allegedly recovered from the appellant. Then there is report of Chemical Examiner regarding blood-stained earth taken from the spot which is Exh.PK and that of Serologist Exh.P.L., both of them are positive in nature.
6. We, with the assistance of learned State Counsel have gone through the prosecution evidence.
The prosecution in order to prove its case has produced 9 witnesses in all. Thereafter the statement of the appellant under section 342, Cr.P.C. Was recorded who claimed false implication. Sona appellant also produced two D.Ws. Namely Imam Bakhsh and Abdul Rehman. Amongst the 9 witnesses, there were two eye-witnesses namely Haji Khadim Hussain, complainant (P.W.1) and Karam Elahi P.W.2. Haji Khadim Hussian P.W.1 reiterated all the facts which he had stated in the F.I.R.
Lodged by him. While Karam Elahi, P.W. Also stated that the appellant fired four shots on the deceased which hit on his chest and fore-head while the two fires were missed. Khadim Hussain P.W.1 is step-son of Godha deceased as Godha deceased was married with the mother of Khadim Hussain. The plea taken by the appellant was that Khadim Hussain alongwith Muslim, Karam Elahi, Sarwar, husband of Mst.Naziran and Godha deceased duly armed attacked at the house of Sona appellant and did firing there. It was further suggested that the fire shot by Khadim Hussain P.W.1 hit Godha deceased. It was also suggested to Khadim Hussain that one of the fire hit Sona appellant. It was also suggested that Khadim Hussain P.W.1 intentionally killed Godha deceased and later on a false case was registered against Sona appellant. These suggestions were also put to P.W.2 Karam Elahi but both these witnesses rebutted these suggestions. This, plea was not ' taken by the appellant in his statement under section 342, Cr.P.C. But he produced two D. Ws.
Namely, Imam Bakhsh and Abdul Rehman, who had stated before the Court on oath that Godha deceased had died due to fire shot by Khadim Hussain P.W. And Sona appellant was also hit by the fire of one Sarwar belonging to the complainant party. For the just decision of the case the statement of Dr. Zahoor-ul-Hassan, M.O. Tehsil Headquarter Hospital, Sadiqabad, District Rahimyarkhan, P.W.3 is reproduced below: ' During the post-mortem examination, the Doctor reported the following injuries:-
(i) A circulate wound of entry 1" x 1" on back side of left chest at the medial side of left scapula and multiple small wound of entry 1/4 x 1/4 each round the main wound were present. Margin of the wound were ,burnt and inverted.
(ii) 5 wounds of entry 1/3" x 1/3" each on postural side of left arm. Margin were inverted.
(iii) 5 wounds of exit 1/2" x 1/2" each on enteral side of let arm. Margins were everted. Many small pellets were removed from the chest cavity.
' On examination of scalp, skull, and vertebrae and membranes, brain, spinal cord, no abnormality was discovered.
' On examination of thorax, ribs on left side were fractured, left pleurae was injured, left lung was injured. Pericardium and heart were healthy and empty. Main blood vessel of left side of chest was injured. All other viscera were intact and healthy.
' On examination of abdomen, stomach was empty. Bladder contained two ounces urine. All other viscera were intact and healthy.
' In his opinion the cause of death in this case was shock and haemorrhage due to Injuries Nos. 1 to 3 caused by fire-arm. All injuries Nos. 1 to 3 collectively and Injury No,1 individually was sufficient to cause death in the ordinary course of nature. All the injuries were anti-mortem. Probable time that elapsed between injuries and death was immediate and between death and postmortem was 12 to 16 hours.
7. We may state here that police also got Sona medically examined on 8-3-1995 at 3 p.m. And according to the said Doctor who had conducted -the post-mortem examination on the body of the deceased had also examined Sona appellant and found a circular mark of injury on the right side of his forehead in the centre and 2-1/2" above the right eyebrow. The statement of the said Doctor is also reproduced below:
(i) A circular mark of injury 1/8" diameter on right side of the forehead in the center and 2/12" above the right eyebrow. Scale formed on the head.
' X-ray of skull was advised. A.P. Lateral and right A.P. Oblique right lateral oblique views were also advised to be taken. Injury was kept under observation, which was caused within the probable duration of 5 to 7 days. Kind of weapon used was also kept under observation.
Injury of Sona appellant has been suppressed by the prosecution. According to the Doctor the said injury was caused with fire-arm because one round radio opaque metallic foreign body shadow was seen in X-ray of skull. Munir Ahmad, Inspector appearing as P.W.9 had admitted during the cross-examination that the accused was also in an injured condition when he was arrested on 7- 3-1995. The Investigating Officer also admitted that the first version of the appellant was that he received injury at the time of occurrence. This injury has been suppressed by the complainant party, as mentioned above. There are two fire-arm injuries having entry wounds while third one is exit one on the person of the deceased. In our view both the complainant party and the appellant party did not approach the Court with clean hands. Both of them have suppressed their roles played during the occurrence.
9. Keeping in view the circumstances of the, case we think that the appellant had exceeded right of self-defence, although, he had not taken this plea specifically, either during the cross-examination or in his statement under section 342, Cr.P.C. But the same is spelt out from the record. In this view of the matter, we convert the conviction of the appellant from section 302(b), P.P.C. To section 302(c), P.P.C.. Murder Reference is replied in the negative and the death awarded to the appellant is not confirmed but is converted to 14 years' R.I. Under section 302(c), P.P.C. With a further direction to pay Rs,25,000 (twenty five thousand) as compensation to the legal heirs of the deceased, failing which he will have to undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Is also granted to the appellant. With the above modification the Murder Reference and Criminal Appeal are disposed of.
' Death sentence awarded to the appellant is not confirmed.
Sentence reduced.