' This judgment will dispose of Criminal Appeal No,1554 of 2001 and Criminal Revision No,751 of 2001 directed against the judgment dated 10-9-2001 passed by learned Additional Sessions Judge, Hafizabad, whereby he convicted the appellant under section 302(c), P.P.C. And sentenced him to undergo 25 years' R.I. With further direction to pay Rs,50,000 as compensation as required under section 544-A, Cr.P.C. Payable to the legal heirs of the deceased or in default six months' S.I. Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. The facts in brief as narrated by the complainant Tassadiq Hussain in the F.I.R. Are that on the day of occurrence i,e, 26-7-1999 at about 11 a.m. The complainant alongwith Saqlain Abbas deceased, Gulzar Hussain and Riaz Hussain on a tractor were going to their house and when they reached near Government Primary School, Dahke Shahana they met Mujahid Hussain accused and Shabbir Hussain accused who were armed with gun .12 bore each. Mujahid Hussain raised Lalkara that today. Lesson will be given to Riaz Hussain for putting the earth in a pond. Both the accused made 2/3 fires by their respective guns and they saved themselves by taking the shelter of tractor.
Saqlain Abbas went towards the accused who ran away forthwith by entering in their house. When Saqlain Abbas deceased reached near the outer wall of the house of Mujahid Hussain he made the fire by his gun .12 bore from inside the house while standing on the wall of water pump hitting the deceased on his chest who fell down and died there and then. The motive behind this occurrence was a dispute over putting the earth in the pond. Matter was reported to the police.
3. The police after getting information about the occurrence completed all the necessary formalities and then Muhammad Sarwar, S.-I. Alongwith his subordinate proceeded to the spot. He prepared the injured statement Exh.P.E., in quest report Exh.P.F. He also collected the blood-stained earth vide memo, Exh.P.B Blood-stained clothes of the deceased were also received by him vide memo. Exh.P.A. Both the accused were produced before him by Riaz All Shah who were arrested. On 15-8-1999 on the disclosure of Mujahid appellant a .12 bore gun P.1 was got recovered vide Exh.P.J.
Ultimately both the accused i,e, appellant and the acquitted co-accused were challaned and were sent to judicial lock-up to face the trial.
4. Prosecution in order to prove its case has produced as many as 9 P.Ws. Including doctor, Investigating Officer, eye-witnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.L. And report of Serologist Exh.P.M. Learned A.D.A. Closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial Court after hearing both the parties and going through the evidence convicted and sentenced the appellant as mentioned above. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that appellant had acted while using the right of self-defence. He submits that if both the versions, one put forward by the prosecution and the other put forward by the appellant are put in a juxtaposition, the version of the appellant seems to be more plausible and convincing one, that the Investigating Officer has also admitted the version of the appellant before the learned trial Court. He submits that no case is made out against the appellant and he is entitled to acquittal.
6.. On the other hand learned State Counsel for the State assisted by the learned counsel for the complainant submits that the appellant is named in the F.I.R. With specific role, that appellant had no right of self-defence of his person and property, that in fact it was the appellant who was aggressor, that the deceased did not receive any injury during the occurrence, that defence version is an afterthought and the appellant has been rightly convicted by the learned trial Court.
Learned counsel for the complainant submits that the deceased was in the street while the appellant was in his house who after taking gun fired at the deceased from the wall of the house, that Ghulam Shabbir acquitted co-accused was outside the house of the complainant and none from the complainant side caused any injury to him, that no recovery of pistol was effected near from the dead body of the deceased, that there is no sign of any bullet mark outside the wall of the appellant, that appellant had committed the murder of the deceased intentionally, that the Investigating Officer had not given the final findings about the fact that the appellant had acted while using the right of self-defence, that the appellant was found guilty in this case.
7. I have heard the learned counsel for the parties and.Also have gone through the evidence recorded by the learned trial Court. In the instant case it was Tassadiq Hussain the real brother of the deceased Saqlain Abbas was the complainant. The prosecution in order to prove its case has produced Gulzar Hussain father of the deceased and Tassadiq Hussain the complainant the real brother of the deceased as eye-witnesses. The place of occurrence is surrounded by many houses but none from those houses was produced as an eye-witness in this case. On the one hand there was a version from the complainant side that the murder of the deceased was committed by the appellant intentionally while on the other hand the version of the appellant which was put to the eye-witnesses during trial and also the appellant while making his statement under section 342, Cr.P.C. Specifically in reply to question No,6 that why this case against you? The appellant has stated as below:-- "I am innocent. I was falsely enroped by the complainant party in this case. All the P.Ws. Produced by the prosecution are inter se related with the deceased. The occurrence did not take place in the manner as narrated by the P.Ws. In fact one day prior to the occurrence Saqlain Abbas deceased was stopped to put the earth in the pond. He was associated with his other companions. He and his companions felt humiliated. Next day i,e, the day of occurrence, Saqlain Abbas deceased alongwith his companions Riaz Hussain, Muzammal, Intezar, Naveed Hussain and one Aslam aggressed upon us. Saqlain Abbas deceased was armed with pistol in order to save my life and for rescue I entered in my house after taking gun from Ghulam Shabbir whom I have forbidden to fire and bolted outer door of my house. Despite this Saqlain Abbas did not stop making fire upon me and even did not stop chasing. When Saqlain Abbas deceased reached near the outer wall of the house, he jumped over the wall while armed with his pistol to make the fire upon me. I apprehending fire upon me by the deceased in order to save my life and exercising my right of self-defence made a fire which hit Saqlain Abbas deceased. My intention behind the fire was not to commit the murder of Saqlain Abbas rather it was only to 'injure the deceased to save my life. My first version before the police was also about my self-defence. I have committed no offence. I am innocent."
8. If both the versions are put in juxta position then the version of the appellant seems to be more plausible and convicting on for following reasons:-- ' The deceased was present out side the house of the appellant while the blood-stained earth was taken from the house of the complainant and the same is no where mentioned in the site plan.
P.W.9 Muhammad Sarwar is the Investigating Officer in this case. He has admitted that when the appellant appeared he gave his version of right of self-defence and the said Investigating Officer in the cross-examination had admitted the whole version of the appellant which the appellant had already made at the very outset at the time of his arrest. The first version of an accused is always taken to be very important for the just decision of the case. In this regard reliance is placed on Muhammad Yaqub v. The State PLD 1969 Lah.
548. The relevant portion of that judgment i,e, head note (b) is given below:-
(b) Criminal trial---Evidence---Duty of prosecution---Prosecution must place all evidence before Court-Counter-version of incident in statement of accused before police---Of greatest importance to accused to show that his version was put forward at earliest opportunity---Court not to deprive accused of right to make use of such statement.
' Even the finding of the learned trial Court was that the appellant had acted while using his right of self-defence. The Investigating Officer had categorically admitted during the trial that it was the deceased and his companions whose names have been mentioned in the statement recorded before the trial Court recorded under section 342, Cr.P.C. Who were armed with fire-arm and they fired at Ghulam Shabbir acquitted co-accused who went to his house and brought a gun from his house and fired shots. The appellant also came out of his house, he snatched the gun from Ghulam Shabbir and started running towards his house but Saqlain Abbas deceased chased the appellant and fired at him. It was good luck of the appellant that he did not receive any injury. He entered into his house, bolted the same from outside but the deceased did not return and chased the appellant. The appellant fired a single shot while apprehending danger to his life which proved fatal. According to the statement of Doctor Shaukat Ali Wahla, P.W.5 the shot was fired from a distance of 2 to 3 feet while in the site plan the distance between the deceased and the appellant is given as 9 feet. Both the eye-witnesses produced by the prosecution are father and brother of the deceased respectively. No independent witness has been produced in this case by the prosecution.
10. After having heard the learned counsel for the parties and going through the.Evidence recorded by the learned trial Court and specially the version of the appellant and the statement of the Investigating Officer which gets support to the version of the appellant. In this view of the matter, I am of the considered opinion that the appellant had acted while using his right of self-defence as enumerated in sub-clause first of section 100,.P.P.C. In this view of the matter, this appeal is accepted and the sentence of the appellant is converted though granted under section 302(c), P.P.C. To the period which the appellant has already undergone. As far as the fine is concerned, the same is also set aside because in cases of right of self-defence or grave and sudden provocation no compensation and fine can be awarded. Reliance is placed on a case titled as Mehraj Begum v.
Ijaz Ahmad and others PLD 1982 SC 294. Appellant is on bail, he shall be discharged of his bail bonds.