This judgment will dispose of Criminal Appeal No,23-J of 2002 directed against the judgment dated 14-6-2001 passed by learned Additional Sessions Judge, Sheikhupura whereby he convicted the appellant under section 302(C), P.P.C. and sentenced him to 5 years' R.I with fine of Rs,10,000 or in default three months' S.I. with benefit of section 382-B, Cr.P.C.
2. The facts in brief as narrated by the complainant through complaint Exh.P.C. are that on the day of occurrence at about 8/9 p.m. the complainant alongwith Fazal Rasool, his cousin Mehdi, Mushtaq Ahmad and other inmates of the house were sitting in the light of electric bulb when Shafqat alias Pappu approached and took Fazal Rasool in his house. They also followed them.
Shafqat closed his outer door. They saw through the hole inside the door that Shafqat appellant fired with his pump-action gun which hit Fazal Rasool in the chest who fell down on the ground.
Shafqat alongwith two other persons fled away. Fazal Rasool deceased died on the way to Hospital.
The motive as narrated in the F.I.R. was political rivalry.
3. After receipt of information about the occurrence the police completed all the necessary formalities. Thereafter, Memoor Khan, A.S.I. alongwith some other police officials prqceeded to the spot. He prepared the injury statement. Exh.P.H. and inquest repoA Exh.P.G. He secured. blood- stained earth from the spot vide memo. Exh.PD and one empty cartridge of 12 bore vide memo.
Exh.P.E. He roceived the last worn clothes of the deceased vide memo. Exh.P.A. The accused appellant was arrested by Nazir Ahmad Aasi Insapector/S.H.O. on 15-11-1997 and on 16-11-1997 while in police custody the appellant Shafqat got recovered 12 bore gun P.4 from his residential house vide memo. Exh.PK. Ultimately challan of the case was prepared on 30-11-1997 by Muhammad Hussain Inspector/S.H.O. and the same was submitted for trial.
4. Prosecution in order to prove its case has produced as many as 8 witnesses including Doctor, Investigating Officer, eyewitnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.M., report of Serologist Exh.PN and report of Forensic Science Laboratory Exh.P.O., learned D.D.A. closed the prosecution case. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. in which he pleaded not guilty and claimed to be tried.
5. Learned counsel for the appellant in support of this appeal submits that occurrence in this case had taken place under grave and sudden provocation and also by using the right of self-defence by the appellant. She further submits that occurrence had taken place in the house of the appellant, that the deceased was a person of desperate character .and was involved in number of criminal cases of heinous nature. Even the character of the complainant was also of similar nature, that after the present occurrence the complainant party looted the house of the appellant. She submits that the appellant had produced three D.Ws. in his defence namely Mst. Shazia Bibi, her real sister, D.W.1, Muhammad Sharit Inspector Range Crime, D.W.2 and he himself appeared as D.W.3 as required under section 340(2), Cr.P.C. to rebut the prosecution evidence. She submits that no case is made out against the appellant.
6. On the other hand learned State counsel submits that appellant was named in thethat the deceased was taken in a deceitful manner from the house of complainant by the appellant and committed his murder. He supports the judgment of the learned trial Court.
7. I have heard the Learned counsel for the parties and have also gone through paragraph 20 of the judgment of the learned trial Court which is reproduced below:-- "From the above detailed discussion, I feel justified in holding that the act of killing Fazal Rasool by Shafqat Ali appellant/accused is in self-defence and to save the honour of her sister. He is, therefore, liable to punishment under section 302-C, P.P.C. and is sentenced to five years' R.I. with fine of Rs,10,000 or in default 3 months' R.I. He is also given the benefit of section 382-B, Cr.P.C."
The law is that when the prosecution evidence is disbelieved then the Court has to rely upon the statement of the appellant in totality. I have gone through the F.I.R., statement of the 'complainant and I do not believe the statement of the complainant that the deceased was taken by the appellant through deceitful manner, because there was already dispute between the parties. The occurrence had taken place in the house of the appellant. Blood-stained earth was also recovered from his house. The star witness Mst. Shazia has appeared in his defence and her statement is corroborated with the statement made by the appellant under section 342, Cr.P.C. and under section 340(2), Cr.P.C. The deceased was a person of bad character and he was involved in 18 to 20 criminal cases of heinous nature. Same was the position of complainant his brother. The deceased had tried to commit Zina-bil-Jabr with the real sister of the appellant and thereafter when he was reprimanded he attacked the appellant on which. the appellant while using his right of self- defence committed this occurrence I am not going to believe the version of the prosecution. The version of the appellant which he has taken in his statement recorded under section 342, Cr.P.C. is not only supported by Mst. Shazia D.W.1 but also by the statement of Muhammad Sharif, Inspector Range Crime D.W.2 who had also conducted the investigation of the case and had disbelieved the version of the complainant taken in the F.I.R. He also came to the conclusion that the deceased was a man of bad character. He also verified the version of the appellant. After hearing the learned counsel for the parties and going through the record, I am convinced that if both the versions one put forward by the complainant and the other put forward by the appellant are put in a juxtaposition, then the version put forward-by the appellant seems to be more reliable, natural and near to truth. In this view of the matter, this appeal is accepted and the conviction and sentence awarded to the appellant is set aside. If the appellant is in jail, he shall be released forthwith.