This judgment will dispose of Criminal Appeal No. 1282 directed against the judgment dated 24-6- 2002 passed by the learned Additional Sessions Judge, M.B. Din, whereby he convicted the appellant under section 302(c). P.P.C. And sentenced the appellant to undergo 20 years' R.I. With further to pay Rs.1,00,000 (one lac) as compensation payable to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default six months' S.I.
2. The brief facts of the instant case as narrated by the complainant in the F.I.R. Are that complainant Umar Hayat alongwith Khizar Hayat, Muhammad Afzal after Fajjar prayer went to the Village Hassoana on Tractor-trolly to take bricks, when at about 5 p.m. They reached near the Watt of sugarcane crop Khizar Hayat went to ease himself. Thereafter they heard hue and cry from the crop, on which the complainant Umar Hayat, Muhammad Afzal and Liaqat reached the spot and saw that Nasar Iqbal, Aslam and Muhammad strangulated Khizar Hayat with clothes, on seeing them the accused persons ran away and Khizar Hayat died at the spot. The motive behind the present occurrence was that Khizar Hayat deceased was engaged with Mst. Shamim and the accused party refused to give the hand of Mst. Shamim Akhtar to Khizar Hayat but the Khizar Hayat stressed them to give the hand of Mst. Shamim Akhtar which resulted into instant case.
3. The local police after getting information about the occurrence completed all the necessary formalities. Thereafter Muhammad Nawaz, S.-I. Alongwith other police officials proceeded to the place of occurrence. He prepared injury statement of the deceased vide memo. Exh.P.F., inquest export, Exh.P.G. He inspected the spot and prepared rough site plan Exh. P.J. Thereafter he 'went to the house of Mst. Shamim Akhtar and prepared injury statement regarding Mst. Shamim Akhtar Exh.P.E. He also received last-worn clothes of the deceased vide memo. Exh.P.D. On 3-8-2000 he arrested Nasar Iqbal and Muhammad Aslam and sent them to judicial lock-up on 4-8-2000. On 25-8-2000 Ijaz Ahmad, S.-I. /S. H. O. Arrested Muhammad and he was sent to judicial lock--up on 26-8-2000. Ultimately all the above named three accused were challaned.
4. Prosecution in order to prove its case has produced as many as 9 witnesses including Doctor, I.Os., eye witnesses and other relevant persons. No documentary evidence was produced by the prosecution and the case of prosecution was closed on 15-4-2002 by the learned A.D.A. Two C. Ws.
Were also recorded on Court call. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. After trial the present appellant was convicted and sentenced as stated above while the other co-accused were acquitted.
5. Learned counsel for the appellant in support of this appeal submits that the learned trial Court after disbelieving the whole prosecution evidence has relied upon the statements of C.W.-1 Mst.
Shameem Akhtar and Mst. Fatima C.W.-2 who were sister and mother of the -appellant. He submits that the law of the land is that when prosecution is totally disbelieved then the statement of the accused should be taken in its entirety and totality. He has read before me the statement of the appellant under section 342, Cr.P.C. Specially answer to question No.2. He has also relied upon 1993 PCr.LJ 557 and 1992 SCM R 2047.
6. On the other hand learned Additional Advocate-General on Court call after going through the record and hearing the submissions of the learned counsel for the appellant submits that the plea raised by the appellant is not plausible and convincing one. He supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties and also have gone through the record available on the file. In the instant case three accused were named in the F.I.R. i.e. Present appellant, his brother Muhammad Aslam and his father Muhammad. As far as Muhammad Aslam and Muhammad are concerned, they have been acquitted by the learned trial Court and no appeal against their acquittal was filed either by the State or by the complainant. As far as conviction of the appellant under section 302(c), P.P.C. Is concerned that has also not been challenged either by the complainant or by the State. In order to appreciate the version of the appellant, I would like to reproduce the answer to question No.2 recorded under section 342, Cr.P.C.: "It is incorrect. The story of occurrence narrated by the prosecution is totally incorrect. In fact, I alone was present near the sugarcane field and was irrigating my peddy crop. My sister Shamim was engaged with deceased Khizar Hayat vice versa sister of Khizar Hayat Shahnaz was engaged with my younger brother Muhammad Aslam. This engagement was cancelled due to nefarious act of Khizar Hayat deceased because after engagement one night he came in our house in late hours of night and tried to forcibly commit Zina with Shamim Akhtar. She resisted, I alongwith other family members awaked up; caught hold Khizar Hayat red-handed. Later on left him after reprimanding him. In result of this occurrence engagement was cancelled. Perhaps Khizar Hayat deceased took it as his insult and on the day of occurrence came near-our Dera in the sugarcane field where my sister used to go for easement. On said date and time my sister went in the sugarcane field for easing herself early in the morning, Khizar Hayat deceased had already sit there, when she entered in the sugarcane field, he grappled with her. She raised noise, I rushed to sugarcane field, saw the situation and lost my temper due to Ghairat and caught hold Khizar Hayat. He was disable from his right hand, I killed him in the heat of passion. In same situation I came in my house, picked up hatchet lying in the courtyard and inflicted two hatchet blows to my sister Shamim. My brother Aslam and father Muhammad who were sleeping outside the house and alongwith my mother Fatima separated me from Shamim Akhtar. I killed Khizar Hayat in heat of passion and in the light of previous events."
8. I have also gone through the evidence recorded by the learned trial Court. Learned trial Court has disbelieved the presence of the eye-witnesses and has retied upon the statement of Shamim Akhtar C.W.-1. And Mst. Fatima C.W.-2 sister and mother of the appellant as mentioned above. If both the versions are put in a juxtaposition then the version of appellants seems to be more plausible and convincing one. Even the law laid down by this Court and also by, the Honourable Supreme Court is very much clear that when prosecution evidence is disbelieved then the version of the accused persons is to be accepted in totality. Relying on the judgments referred by the learned counsel for the appellant, I am of the opinion that though the conviction is maintained under section 302(c), P.P.C. But is reduced from 20 years' R. I. To 7 years' R. I. With benefit of section 382-B, Cr.P.C. As far as compensation is concerned, in cases' of right of self-defence or under sudden provocation neither fine nor compensation is awarded to the accused, so the same is also set aside as PLD 1982 SC 294 is very much clear on this point. With these observations this appeal stands disposed of.