' MIAN MUHAMMAD JAHANGIER, J.--- By this judgment Criminal Appeal No,322 of 1999 and Murder Reference No,135 of 1999 are being disposed of together, which have emerged from the judgment passed by Mr. Ghulam Hussain Awan, Additional Sessions Judge, Mandi Bahaud Din, dated 27-2- 1999, whereby after conclusion of the trial in the case bearing F.I.R. No,111 dated 15-5-1996, registered under section 302/34, P.P.C. With Police Station Parianwali, Raftar Mehmood son of Muhammad Roshan Caste Jat, resident of Dhok Nawan Loke, Police Station Parianwali, District Mandi Bahaud Din, the appellant was convicted and sentenced as follows:-- ' Under section 302, P.P.C. To death alongwith a fine of Rs,50,000 and in default thereof, to further undergo six months' S.-I.
' While co-accused namely Rukhsar, Arshad and Roshan were acquitted of the charge by giving them the benefit of doubt.
2. Briefly stated the facts of prosecution case are that Salehoon son of Rehman, caste Jat Sahi, resident of Dhoke Nawan Loke, District Mandi Bahaud Din, the complainant in this case (P.W.4), on 15-5-1996 at about 1-00 p.m. Alongwith his son Muhammad Abbas was going back on a cycle towards his Dera situated in the north of village Dhoke Nawan Loke, after purchasing the household articles from Chilianwala Station. When they reached near the Dera of Roshan, son of Rehman, caste Cheema, resident of Dhoke Nawan Loke, Rukhsar armed with a hatchet, Raftar armed With a rifle 7 mm, Muhammad Arshad empty-handed, sons of Roshan and Roshan himself also empty- handed emerged from their Dera and on raising Lalkara by Roshan not to spare Abbas, Muhammad Abbas after leaving his cycle at the spot ran towards East but he was taken in Japha by Muhammad Arshad and, thereafter, all of them while dragging Muhammad Abbas carried him in the courtyard of their house. Roshan raised Lalkara towards his sons to kill Muhammad Abbas, on which Rukhsar inflicted a hatchet blow on the head of Muhammad Abbas, thereafter, Raftar fired three shots repeatedly which hit on chest, left ear and left hand of Muhammad Abbas.
Consequently, Muhammad Abbas fell down and succumbed to the injuries at the spot. The occurrence was witnessed by Muhammad Ilyas son of Ahmad Din, caste Jat Hajjan, resident of Dhok Saharan, Police Station Pahrianwali (P.W.5) and Muhammad Inayat son of Bali Khan, caste Tarar, resident of the Deh, (not examined at trial) while the accused persons fled away from the spot.
' The motive behind the occurrence was that the deceased had given physical beating to Muhammad Tariq son-in-law of Muhammad Roshan accused due to which Rukhsar, etc. Had a rancour in their heart and because of this reason they in furtherance of their common intention and also in connivance with Muhammad Tariq son of Ashiq committed the Qatl-i-Amd of Muhammad Abbas.
' Salehoon left Muhammad Ilyas and Muhammad Inayat at the spot to guard the dead body and himself proceeded towards the police station.
' Ghulam Haider (P.W.10) Inspector/S.H.O., Police Station Pahrianwali District Mandi Bahad ud Din alongwith other police employees was present at Adda Charanwala in connection with patrol duty, wherefrom the statement of Salehoon (Exh.P.B.) after recording, was sent to the Police Station at 5- 00 p.m. And on receipt of the statement Exh.P.B., F.I.R. Exh.P.B./1 was recorded at the Police Station on the same day at 5-25 p.m.
' Ghulam Haider (P.W.10) conducted the investigation in this case. After preparing the injury statement (Exh.P.F.) and Inquest Report (Exh.P.G.) and on an application (Exh.P.H.) for post-mortem examination he made arrangements for escorting the dead body for postmortem examination through Zafar Iqbal Constable (P.W.1). He collected the blood-stained earth from the spot, made it into a sealed parcel and took the same into his possession vide recovery memo. Exh.P.C. On 16-5- 1996 he took the last worn clothes of the decased in his possession vide recovery memo. Exh.P.A. He got the site plan Exh.P.E. Prepared from the draftsman.
' On 15-6-1996 the said Inspector arrested Raftar accused and recovered rifle 7-MM alongwith six live cartridges P-5/1-6 from his personal search and took the same into his possession vide recovery memo. Exh.P.D. After making them into a sealed parcel. On 19-6-1996 Rukhsar, Arshad and Roshan accused were arrested in this case. He recorded the statements of the prosecution witnesses at different stages and in accordance with his investigation Rattar accused was found guilty while the remaining accused as innocent. Anyhow, after completion of necessary investigation he submitted the challan in the Court for trial.
3. In order to prove its case based upon motive, ocular account, medical evidence, recoveries and other circumstances, the prosecution produced ten witnesses in toto out of whom Salehoon (P.W.4) complainant and Muhammad Ilyas (P.W.5) also an eye-witness, furnished the ocular account.
4. The post-mortem on the dead body of Muhammad Abbas was conducted by Dr. Muhammad Akram (P.W.6). His observations and the injuries found by him were as follows:-- ' External appearance ' This was the body of a young man with pallor over the body. Mouth and eyes closed. Post-mortem stainings was present over the back, buttocks and legs. Rigor mortis developed. Clothing, Qameez, dark red with corresponding hole, Shalwar dark red, Bunian white with corresponding hole.
' Injuries
(1) 1.5 x 1.5 c.m. Incised over left of face near tempromendipular joint going deep.
(2) 3 x 2 c.m. On right side of chest over front of chest 3 c.m. Above the right nipple.
(3) 1 x 1 c.m. Incised over dorsal of side of right side of chest near upper border of scapulae.
(4) Lacerated wound 3 x 1 c.m. Over left side of skull skin deep.
(5) 4 x 2 c.m. Over left hand over base of left thumb.
' In his opinion death had occurred due to haemorrhage (internal and external) shock and damage to vital organs as a result of injuries Nos.1, 2 and 3 which were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem in nature and caused by firearm weapon.
' During cross-examination he deposed that there was no blackening and tattooing present on any of the injuries and that the injuries were caused beyond the distance of six feet.
5. Ghulam Rasool son of Ahmad Din, resident of Dhoke Saharan Police Station Parianwali, a relative of the deceased appeared as P.W.7 who identified the dead body of the deceased at the time of post-mortem examination and in whose presence the last worn clothes of the deceased and, after arrest of Raftar accused, rifle P.4 and six live cartridges P.5/1-6 were taken into possession vide recovery memo. Exh.P.A. And Exh.P.E. Respectively. Akhtar Naqqash, draftsman, who prepared site plan Exh.P.E. Appeared as P.W.9. Zafar Iqbal Constable P.W.1, Khalid Inayat Moharrar of the police station P.W.2, Zafar Iqbal F.C. Who again appeared as P.W.3 and Muhammad Anwar H.C. P.W.8, were the witnesses formal in nature.
6. While closing the prosecution ;ase, the learned D.D.A. Tendered in evidence the report of Chemical Examiner Exh.P.K. And that of Forensic Science Laboratory Exh.P.L. In support of the prosecution case.
7. At the close of prosecution case the statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations as levelled by the prosecution and professed about their innocence. However, Raftar Mehmood (appellant) introduced his plea of alibi which was as under:- - "In fact, Bushra Bibi, the wife of my brother was present in the house alone, Abbas deceased came there alone and he grappled with Bushra Bibi. He tried to take her inside the room to outrage her modesty. I came there to eat meal. On seeing me, Abbas stepped forward towards me for beating.
I lost my temper and went inside the room from where, I took the licensed rifle of my brother and fired at Abbas out of `Ghairae."
8. Mst. Bushra Bibi wife of Rukhsar accused aged about 30 years appeared as D.W.1. Her statement in verbatim in examination-in-chief was as under:-- "Rukhsar accused is my husband, Roshan accused is my father-in-law while the other two accused are brothers of my husband. About two years and nine months before I was present in my house alone. Abbas deceased came there who grappled with me and tried to take me inside the room by dragging for committing Zina. I raised noise, my mother-in-law came there, Raftar accused also came there. Abbas stepped towards Raftar after leaving me. At this Raftar went inside the room and took out rifle from there and fired."
8. Raftar appellant also got his statement recorded under section 340(2), Cr.P.C. (as D.W.2), which in verbatim, in examinationin-chief, was as follows:-- "About two years and nine months before we used to cultivate the land of Anwar Mehr. I came to take meal at about 10/11 a.m. I saw that Ghulam Abbas deceased had grappled with my sister-in- law and was trying to take her inside the room. On seeing me, the deceased left my sister-in-law and caused me an injury on my head with a stick. I went inside the room, took out the rifle and fired at the deceased. The said rifle was a licensed rifle of my brother Arshad accused. I murdered Abbas out of Ghairat."
9. While concluding the trial the learned trial Court observed that the prosecution has successfully proved its case against Raftar accused beyond any shadow of doubt therefore he was convicted and sentenced as mentioned above.
10. We have heard the learned counsel for the parties and have gone through the available record placed before us.
11. It is obvious that the prosecution version in short even at trial was that the accused persons as mentioned above caught hold of Muhammad Abbas and while dragging him carried in the courtyard of their house where the first hatchet blow was given on the head of Abbas by Rukhsar co-accused and, thereafter, Raftar accused fired three shots with his rifle which hit on different parts of the body of Muhammad Abbas deceased. But this version could not stand on its legs because this version to the extent of dragging and causing injury by hatchet was negated by the medical evidence e.g. There were no marks of dragging and injury caused by the hatchet on the head of Muhammad Abbas deceased and in this connection Dr. Muhammad Akram (P.W.6) clearly stated that all the injuries on the body of the deceased were caused by fire-arm; meaning thereby, the prosecution witnesses falsely implicated Roshan, Arshad Mehmood and Rukhsar accused persons as it reflects from the comparison of the ocular account and the medical evidence.
12. The site plan Exh.P.F. Prepared by the draftsman (P.W.9) would show that points 'B' and 'A' have been shown indicating that the deceased was dragged from point 'B' and taken to point 'A' while Raftar accused being present at point 'E' and fired at point ' A' where the deceased was available.
The presence of Roshan, Rukhsar and Arshad Mehmood have not been shown in the site plan, therefore, the presumption is that Roshan, Rukhsar and Arshad were not present at the spot.
Perhaps for this reason, Ghulam Haider, Inspector/S.H.O. (P.W.10) stated in examination-in-chief of his statement that he found Raftar accused guilty while the remaining accused as innocent. This observation given by him had adversely affected the prosecution case, therefore, at this stage it was the duty of the prosecutor to have this situation clarified by re-examining this witness but no such effort was made.
13. It was argued on the basis of the site plan and other evidence brought on record that the place of occurrence did not fall on the way which was being used by the complainant side and an explanation ought to be offered about the presence of the accused in the house of the deceased.
That upon the failure of the prosecution to explain this essential fact, we shall have to take into consideration the plea of the defence and the version advanced by it for coming to a right conclusion.
14. Raftar Mehmood narrating the incident stated that the deceased was attempting and taking away Mst. Bushra Bibi inside the room of the house for outranging her modesty and when he saw this, he was provoked and he fired at the deceased Muhammad Abbas with the licensed rifle of his brother because of Ghairat (family honour). Mst. Bushra Bibi (D.W.1) corroborated his version.
15. Our perception is that the motive part of the story and the facts narrated showing how the occurrence took place, are not persuasive at all. Whereas, the possibility is that the defence version even if it is exaggerated or twisted and had some facts which were suppressed, does speak of a probability and the failure of the prosecution to establish its own case with respect to the reasoning given for the occurrence, would take us to the defence version and which we appreciate.
16. One argument against the defence version was that the deceased was not armed and he could have been overpowered physically without being caused injuries with the fire-arm. We cannot now imagine what may have actually transpired during the occurrence particularly when the prosecution did not help us to view the true facts. But we can imagine that since the deceased was unarmed, firing at him was an overdoing even if the question of Ghairat was involved.
17. Our appraisement of the evidence shows that the persons who have been acquitted, were in fact falsely implicated. Besides and under the circumstances we feel that the provisions of section 302(c), P.P.C. Were attracted in this case and we, therefore, convict the appellant Raftar Mehmood accordingly while reducing his sentence from death to 10 years' R.I., while also giving him the benefit under section 382-B of the Cr.P.C. The death sentence is not confirmed and the Murder Reference is answered in the negative.