' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,60 of 1999 filed by Abdul Hameed, appellant, who was convicted under section 302, P.P.C. For causing the murder of Mehr Khan and sentenced to death as Tazir and to pay compensation of Rs,50,000 as required under section 544-A, Cr.P.C., in default six months' S.I. By the learned Sessions Judge, Lodhran vide his judgment, dated 28-1-1999. Murder Reference No,133 of 1999 for confirmation of the death sentence awarded to Abdul Hameed, appellant or otherwise shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 1-00 p.m. On 13-12-1996 within the revenue estate of Chak No,376/WB at a distance of 24 K.Ms from Police Station Jalla Arain, District Lodhran, while the matter was reported to the police by Amir Khan at 3-10 p.m. On the same day, and the formal F.I.R.
Exh.P.E. Was recorded by the S.H.O. Jan Muhammad Aslam.
3. Briefly stated the facts of the case are that Amir Khan complainant, his brother Munshi Khan and Mehr Khan were cultivating the land of Shah Muhammad, on 13-12-1996 at about 1-00 p.m. The complainant alongwith Mehr Khan and Munshi Khan were preparing the Watts while Fayyaz Ahmad maternal cousin of the complainant was sitting on the "Buna", in order to drink water, the deceased went to house when in the meanwhile, Abdul Hameed armed with 30 bore pistol and Abdul Majeed armed with toka came there while raising lalkara and stated that Mehr Khan would be given the taste of insult and tilling the land, the complainant Fayyaz Ahmad and Munshi Khan ran towards Mehr Khan but within their sight Abdul Hameed fired straight at Mehr Khan which hit on his backside and he fell down inside the room while running, the complainant, Fayyaz Ahmad and Munshi Khan tried to catch Abdul Hameed and Abdul Majeed but Abdul Hameed while 'raising his pistol extended Lalkara that if any body came forward he will be done to death, due to fear the complainant party did not step forward and Abdul Hameed and Abdul Majeed decamped from the place of occurrence. Mehr Khan succumbed to his injury at the spot.
' The motive alleged was that both Abdul Hameed and Abdul Majeed were step brothers of Shah Muhammad and had been forbidding the complainant party from cultivating the land of Shah Muhammad, a night prior to the occurrence when, Mehr Khan went to water the land, there some altercation took place between Abdul Hameed and Mehr Khan, Mehr Khan gave slaps to Abdul Hameed, the complainant separated them and Abdul Hameed went away by extending threats of dire consequences.
4. After registration of the formal F.I.R. Exh.P.E., Jan Muhammad Aslam S.-I. P.W.10 proceeded to the place of occurrence, prepared injury statement Exh.P.B. Inquest report Exh.P.C. Of Mehr Khan, prepared the site plan of the place of occurrence, without scale Exh.P.R., took into 'possession blood-stained earth vide memo. Exh.P.F., also recovered an empty from the place of occurrence vide memo. Exh. P.H., a lead was also taken into possession vide memo Exh.P.G., on 13-12-1996 the Investigating Officer arrested Abdul Hameed, took into possession the worn-clothes of the deceased on 14-12-1996 vide memo. Exh. P .3 . , on 23-12-1996, Abdul Hameed got recovered pistol P.7 which was taken into possession vide memo. Exh. P.S. Toka P.8 produced by Abdul Majeed was taken into possession vide memo. Exh.P.P., statements of the P. Ws. Were recorded under section 161, Cr.P.C. And after due investigation, the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all, then the learned PP tendered in evidence report of the Chemical Examiner Ex.P.U, report of the Serologist Exh.P.V, report of the Forensic Science Laboratory Exh.P.W. And closed the prosecution case, thereafter, statements of the accused were recorded under section 342, Cr.P.C., in which they pleaded innocence. After conclusion of the trial Abdul Majeed co-accused of the appellant was acquitted while the present appellant was convicted and sentenced as stated above.
6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that it was an unwitnessed occurrence, both the eye- witnesses namely Ameer Khan and Fayyaz Ahmad are related to the deceased, in as much as Ameer Khan is his real brother while Fayyaz Ahmad is first maternal cousin of the deceased. Fayyaz is resident of a place three miles away from the place of occurrence, the reasons for the presence of the complainant in the house of step-brother of the deceased is unnatural, the appellant had committed the murder of the deceased under grave and sudden provocation, on the same set of evidence Abdul Majeed co-accused of the appellant was acquitted by the learned trial Court, the alleged two eye-witnesses are interested one, no independent witness has been produced by the prosecution from the nearby houses, the dead body was found in the house of Shah Muhammad step-brother of the appellant, motive given in the F.I.R. Is false and no reliance can be placed on the said motive, the appellant was less than 18 years of age at the time of occurrence, in this regard, learned counsel has referred to Mark-A, School Leaving Certificate, according to which the date of birth of the appellant is 1-1-1981 and the appellant has been falsely implicated in this case.
Learned counsel lastly submits that the prosecution having failed to prove the motive and the absence of independent eye witnesses, it is a case of clean acquittal.
' On the other hand, learned counsel for the State submits that the appellant is named in the F.I.R., it is a case of single shot, occurrence had taken place in broadday light so there was no question of mistaken identity and that the prosecution has been successful in proving its case against the appellant. He in toto supports the judgment of learned trial Court.
' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, the dead body of Mehr Khan deceased was recovered from the house of Shah Muhammad, a step-brother of the appellant. It was a case of single shot. The motive given in the F.I.R. Was that the -present appellant alongwith his acquitted co-accused used to forbade the deceased from cultivating the land of Shah Muhammad, a day prior to the occurrence an altercation took place between Mehr Khan deceased and Abdul Hameed the present appellant. We are not going to accept the prosecution version that on the fateful day, the deceased had gone into the house of Shah Muhammad, step brother of the appellant in order to drink water. It was the month of December, 1996 hen the occurrence took place, the pretext is not plausible as to presence of the deceased in the house of Shah Muhammad. The stand of the appellant before the learned trial Court while replying to Question No,9 in his statement under section 342, Cr.P.C. Was as under:--- "I have falsely been implicated in this case. The witnesses being inter se related and with the deceased have falsely deposed against me. Actually one day prior to this occurrence Shah Muhammad, my step-brother (since died) had left his pistol with me which I had taken to hishouse on the day of occurrence to return the same to him. I found Mehr Khan (deceased) lying with my- step-sister, Mst. Sajida Mai in a compromising position, whereupon I became provoked and on account of a grave and sudden provocation I fired at Mehr Khan (deceased). Shah Muhammad, my step-brother had not given any land to Mehr Khan (deceased) for cultivation. I have falsely been implicated in this case at the instance of local "Zameendar". The Revenue Department had fabricated entries in the Revenue Record under the pressure of local Zimeendars on to create a motive against me. I had handed over the pistol to the police on the very day of the occurrence.
The Police with the collusion of the complainant party has planted fake recovery of another pistol P.7, against me. I was alone at the time of occurrence and no P.W. Was present at the spot at the relevant time."
' It is a case of two versions, one put forward by the prosecution and the other set forth by the appellant and if both the versions are put in a juxta position then the result we gather is that the version of the appellant is probable one. On the one hand, Abdul Hameed appellant has stated that he found Mehr Khan deceased lying with his step-sister Mst. Sajida Mai in a compromising position and on account of grave and sudden provocation he fired at Mehr Khan. It is settled law, that when an accused takes a specific plea in order to bring his case within the perview of section 302(c), P.P.C. Then according to Article 121 of the Qanun-e-Shahadat Order, Ordinance, the onus lies on him and he has to discharge the said onus. On the other hand, presence of both the eye- witnesses at the spot does not seem to be plausible at the time of occurrence.
' After considering both the versions, one put forward by the prosecution and the other set up by the appellant, we are of the view that the version of the appellant is probable and convincing one because Mehr Khan deceased had no business to be present in the house of Shah Muhammad step-brother of the appellant so the possibility of the version of the appellant to be true cannot be ruled out.
' When we have already disbelieved the eye-witnesses and their presence at the spot then there remains only the version of the appellant. It is a settled law, that if the Court comes to the conclusion that the prosecution story is disbelieved then the version of the accused is to be accepted in toto. Reliance can be safely placed on 1998 PCr.LJ 111.
' In view of the foregoing reasons, we dismiss the appeal of the appellant but convert the sentence from death into one under section 302 (C), P.P.C. And award 10 years' R.I with the benefit of section 382-B, Cr.P.C. Which in our view would be sufficient to meet the ends of justice. In case of right of private defence of body and property and in the case of grave and sudden provocation, the sentence of compensation is not to be awarded in such like cases and thus the same is set aside.
Resultantly. The death sentence of Abdul Hameed appellant is not confirmed. Murder Reference is answered in the negative.
Appeal dismissed/