' This judgment will dispose of Criminal Appeal No,1212 of 2001 filed by Muhammad Arshad, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Hafizabad vide judgment dated 5-7-2001 to undergo eighteen years' R.I. Under section 302(c), P.P.C. With the further direction to pay Rs,50,000 as compensation to the legal heirs of the deceased or in default whereof to further undergo six months' S.I. With the benefit of section 382-B. Cr.P.C.
2. Occurrence in this case had taken place on 9-11-1998 at 12-15 mid-night within the jurisdiction of Police Station Kassoki, District Hafizabad at a distance of six miles away while the matter was reported to the police by Faiz Ahmed on the same day at 10-00 a.m. And the formal F.I.R. Exh.P.E.
Was recorded by Javed Aslam Malhi, S.-I./S.H.O. P.W.11.
2-A Briefly stated the facts of the prosecution case are that on 8-11-1998 the complainant alongwith his brothers Javed Iqbal (P.W.), Tahir Mahmood (deceased) and Muhammad Mansiia P.W. Were present at the Dera at bridge of Jurian when Hayat (accused came to his Dera and took away the complainant's brother Tahir Mahmood (deceased) alongwith him to Dera Gondlan. When he did not come back till 1-30 mid-night. The complainant alongwith Javed lqbal and Muhammad Mansha P.Ws. Went towards the Dera Gondlan to know about him, and when they reached at a distance of three Acres from Dera Gondlan, at about 2-15 a.m. They saw that Tahir Mahmood was rushing being chased by Arshad (accused) armed with .12 bore gun, Inayat and Hayat accused empty-handed. Inayat accused raised Lalkara to fire at Tahir Mahmood (deceased) upon which Muhammad Arshad fired from his double-barrel gun at Tahir Mahmood which did not hit Tahir Mahmood who fell down and when he was again rising, Inayat. Arshad and Hayat accused reached near the complainant's brother where Arshad accused fired at complainant's brother while he was rising, which fire hit Tahir Mahmood at front of his chest upon which he fell there in the field. The occurrence was witnessed by the complainant and his companions P.Ws. In the moon light. The accused on seeing the P.Ws. Ran towards their Dera. The complainant and his companions saw Tahir Mahmood but he had expired by then.
' The motive of the occurrence was alleged that during the previous winter season buffaloes of Inayat accused were stolen and the accused Inayat had suspicion on one Saif Ullah and the complainant's brother was helping the said Saif Ullah for which the accused nourished a grudge, on account of which they committed murder of Tahir Mahmood.
3. Investigation of this case was taken over by Javed Aslam Malhi, S.-I. P.W.11, who reached the place of occurrence, prepared injury statement Exh.P.J., inquest report Exh.P.K. Recorded the statements of witnesses under section 161. Cr.P.C. And arrested the accused Arshad on the same day i,e, 9-11-1998, who on 3-11-1998 got recovered gun .12 bore P.6 which was taken into possession vide memo. Exh.P.D. And after completion of the remaining formal investigation accused was challaned to face the trial.
4. At the trial prosecution in order to prove its case produced eleven witnesses in all. Thereafter learned A.D.A. Tendered in evidence report of Chemical Examiner, Exh.P.M. Report of Serologist Exh.P.N., and that of Forensic Science Laboratory Exh.P.O. And closed the prosecution case, then the statement of accused under section 342, Cr.P.C. Was recorded in which he pleaded innocence.
Razia Sultana daughter of Inayat was examined as D.W.1.
6. In support of this appeal, learned counsel for the appellant submits that it was a case of grave and sudden provocation, that Javed Aslam Malhi, S.4./S.H.O./Investigating Officer P.W.11 had submitted that appellant was arrested on the same day that's on the day of occurrence and his version was the same which he has submitted in reply to Question No,10 recorded under section
342. Cr.P.C. Before the learned trial Court. Adds that eye-witnesses were not present at the spot.
That they are closely related to the deceased being real brothers, that motive was not proved by the prosecution that co-accused, namely Muhammad Inayat and Hayat Muhammad father and uncle of the present appellant were found innocent during the course of investigation and were placed in Column No,2 of the challan report under section 173. Cr.P.C., that it is a case of two versions, one put forward by the prosecution and the other put forward by the present appellant and if both the versions are put in juxtaposition the version of the appellant seems to be more plausible and convincing one. He lastly submits that trial Court has convicted the appellant under section 302(c), P.P.C. And not under section 302(b), P.P.C.
6. On the other hand, learned counsel for the State submits that only one defence witness, namely Mst. Razia Sultana sister of the appellant was produced by the appellant, she had eloped with the deceased according to her own free-will and appellant has no right to commit the murder of the deceased. He supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties at a great length and have also gone through the record with their able assistance. This is a case of two versions, one put forward by the prosecution and the other put forward by the present appellant. For the just decision of the case, the version of the appellant is reproduced below which he has stated in his statement under section 342, Cr.P.C. In reply to Question No,10:-- "None of the P.Ws. Was either present at the time and place of occurrence nor they saw the occurrence. Police informed the complainant on the following day of the night of the occurrence and directed him to become a complainant. The complainant party has suppressed the real facts of the occurrence and thus have not come in the Court with clean hands.
' In fact Tahir Mahmood was our relative and was not a man of good character, who tried to develop illicit relations with my sister Mst. Razia Sultana. Having a suspicion, I forbade Tahir Mahmood deceased from coming at our Dera. On the night of occurrence Tahir Mahmood deceased abducted my sister Razia Sultana from our house and tried to commit illicit intercourse, with her and took her to paddy crop for this purpose. I woke up and found missing Mst. Razia Sultana from the house, as I have suspicion against Tahir Mahmood deceased, so I came out of my Dera in search of my sister. I found both Mst. Razia Sultana my sister and Tahir Mahmood deceased in the paddy field in objectionable position. On seeing me Tahir Muhammad deceased ran away in opposite direction from that in which my sister Razia Sultana ran. On seeing such situation, I lost my temper and under grave and sudden provocation I chased Tahir Mahmood deceased and fired at him on account of Ghairat. Then I searched for my sister whole the night but she had hidden herself in the meantime and I could not trace out my sister during the night. I had fired at Tahir Mahmood deceased out of sudden and grave provocation on account of Ghairat and family honour. Some one did inform the police and the police reached the place of occurrence. I myself appeared before the police, at the spot when the police arrived at the place of occurrence, narrated the whole occurrence to the police and produced my father's licensed gun to the police there and then but instead of recording my statement, the police called the complainant from his house and directed him to become the complainant. My father and uncle Muhammad Inayat and Hayat my co-accused were not present with me at the time and place of occurrence. The P.Ws. Are relative of the deceased and are also relative inter se and IA interested witnesses."
8. The abovesaid version of the appellant is being supported by the Investigating Officer, who has stated in categorical terms that appellant was arrested on the day of occurrence and his version was the same which he had submitted before the trial Court in his statement recorded under section 342, Cr.P.C. He also stated before the trial Court that Mst. Razia Sultana sister of the appellant also appeared before him and she has supported the version of the appellant. He also stated in cross-examination, that prosecution failed to prove the motive against at the appellant, two co-accused of the appellant, namely, Muhammad Inayat and Hayat Muhammad father and uncle respectively of the present appellant who were empty-handed at the spot were acquitted by the learned trial Court. Occurrence in this case had taken place in dark hours of night, no electric light has been shown at the time of occurrence, presence of the eye-witnesses at the spot seems to be more unnatural, the story given in the F.I.R. And the presence of the eye witnesses at the spot is totally unbelievable and doubtful. The law of the country is that when the version of the prosecution is disbelieved by the Court then, the statement of the accused should be accepted in totality. In the instant case, the trial Court has not convicted the appellant under section 302(b), P.P.C. And taking it a case of grave and sudden provocation, the trial Court has convicted the appellant under section 302(c), P.P.C. But neither the State nor the complainant has moved this Court against the acquittal of present appellant under section 302(b), P.P.C. And his acquitted co- accused mentioned above.
9. After having heard the learned counsel for the parties and going through the evidence on record, I am of the considered opinion, that appellant has been able to prove his version before the trial Court and the same is also accepted by this Court. Though the appellant is convicted under section 302(c), P.P.C. By the trial Court with the compensation of Rs,50,000 but I reduce his sentence from 18 years' R.I. To 7 years' R.I. With the benefit of section 382-B, Cr.P.C. As far as compensation is concerned, in such-like cases, no compensation can be granted and this is supported by the judgment published in PLD 1982 SC 294 titled as Mairaj Begum v. Ejaz Anwar and others. With the abovesaid modification, in the sentence, this appeal stands disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.