' MUHAMMAD FARRUKH MAHMUD, J.---Mehboob Ahmad son of Haji Qutab Din-respondent was sent up to face trial alongwith Haji Abdul Ghaffar, Ghulam Mustafa and Zahoor Ahmad co-accused, in case F.I.R. No.9 of 1990 registered at Police Station Kot Samaba, for offences under section 302/34, P.P.C., for causing murder of Hazoor Bakhsh son of Jam Hakeem.
2. The learned trial Court vide judgment dated 27-10-1992 acquitted all the accused. Feeling aggrieved Jam Sobhacomplainant, brother of the deceased, filed the instant revision challenging the acquittal of the respondents.
3. Vide order dated 6-11-1993, this revision was admitted to the extent of Mehboob Ahmad- respondent only and the same was dismissed qua the other respondents as having not been pressed.
4. The law was set in motion by Jam Sobha P.W.8 when he got his statement Exh.P.A. Recorded by Muhammad Hussain Shah, Inspector/S.H.O., Police Station Kot Samaba on 14-1-1990 at about 2-00 p.m. When the latter was present at Adda (Bus Stand) Tranda Sawaay Khan, on the basis of which formal F.I.R. No.9 of 1990 Exh.P.A.1 was registered at the police station for offences 'under section 302/34, P. P. C .
5. According to the complainant, his agricultural land was situated in Mouza Kot Qandhara Singh adjacent to Chak No.81/P. His younger brother Hazoor Bakhsh (deceased) also owned agricultural land, which he had given on lease to the tenants, as he himself remained engaged in prayers (Ibadat). He used to live in a but built in the Government land adjacent to the house of the complainant. He intended to build a mosque nearby. Hazoor Bakhsh, most of the time, recited Holy Qur'an and also used to recite Azaan on speaker. After Azaan he used to recite Darood and Salam and words "Ya Rasool Allah". ' Mehboob Ahmadrespondent, his brother Zahoor Ahmed, Haji Abdul Ghaffar, Mustafa and Muhammad Hanif, whose land was situated nearby and resided at a distance of 2/2-1/2 squares, could hear the Azaan. They felt ill about the recitation of Darood and Salam and had asked Hazoor Bakhsh not to recite the same. One day prior to the occurrence, Hazoor Bakhsh was reciting Darood and Salam at noon time when Mehboob Ahmad and Zahoor Ahmad alongwith their cousin Abdul Ghaffar stopped Hazoor Bakhsh from reciting Darood and Salam. Hazoor Bakhsh reacted by reciting in a loud tune. Mehboob Ahmad and Zahoor Ahmad started abusing. However, Muhammad Alam and Manzoor Ahmed intervened and patched up the matter. Mehboob Ahmed threatened that he would not spare Hazoor Bakhsh. On the fateful day at noon time, the complainant alongwith his son Manzoor Ahmad and Muhammad Alam, his nephew, was busy in construction of his house, when they heard noise. They reached the scene of occurrence and witnessed that Mehboob Ahmad while armed with .12 bore gun, Zahoor Ahmad and Haji Abdul. Ghaffar armed with sticks alongwith Ghulam Mustafa were present there. Ghulam Musiafa was pelting stones towards Hazoor Bakhsh. At that time Hazoor Bakhsh was reciting Darood and Salam loudly and was going towards P.Ws. He was also uttering the words that he was not being spared even in his house by the accused. Zahoor Ahmed, Abdul Ghaffar and Ghulam Mustafa were pelting stones towards Hazoor Bakhsh. In the meanwhile, Haji Bashir Ahmed also reached the scene of occurrence. The complainant and the other P.Ws. Tried to stop the accused but in spite of that Mehboob. Ahmed while exhorting Lalkara fired at Hazoor Bakhsh, which hit him on his left flank, who fell near the wall of the house. All the accused left the scene of occurrence.
Hazoor Bakhsh lost his life at the spot. Jam Sobha P.W.8 while he was on his way to the police station alongwith Muhammad Alam and other P.Ws. Met Muhammad Hussain Shah, Inspector/ S.H.O. At Adda Tranda Sawaay Khan and reported the matter.
6. Muhammad Hussain Shah, Inspector/S.H.O. P.W.12 visited the place of occurrence and recovered pellet P.6, which was lying at a distance of 2/3 feet from the deceased and took the same into possession vide memo. Exh.P.J. He also collected blood-stained earth vide memo. Exh.P.H., eight brick bats P.7/1-8 vide memo. Exh.P.K., an empty cartridge P.8, which was lying at a distance of 15/16 feet from the deceased vide memo. Exh.P.L. All the memos. Were attested by Muhammad Alam P.W.9 and one Manzoor Ahmed, who was not produced during the trial.
7. Mehboob Ahmed-respondent was arrested on 19-1-1990 and led to the recovery of double barrel .12 bore gun P.9 alongwith six live cartridges P.10/1-6 from his house on 23-1-1990. All the articles were taken into possession vide memo. Exh.P.M. Attested by P.W.10 Zulfiqar Ali and one Bashir Ahmed, who was not produced during the trial. On 7-2-1990 Zahoor Ahmed co-accused, brother of respondent Mehboob Ahmed. Produced licence of the gun allegedly recovered from Mehboob Ahmed. The same was taken into possession vide memo. Exh.P.F. According to the report Exh.P.N.
Submitted by the Forensic Science Laboratory, the recovered empty wedded with the gun recovered from Mehboob Ahmad-respondent.
8. During the trial, the prosecution produced 12 witnesses in support of its case. Jam Sobha- complainant /P.W.-8 and Muhammad Alam P.W.9, brother and nephew of the deceased respectively, furnished the ocular account and also stated about the motive. Muhammad Alam further stated about the spot recoveries. Dr. Masood Iqbal Ahmed appeared as P.W.3 and stated that he had conducted the postmortem examination on the dead body of Hazoor Bakhsh at 9-00 a.m. On 15-1-1990. According to his post-mortem report Exh.P.C., the deceased had received nine injuries on his person. Injuries Nos.1-A, 3, 4, 5, 6, 7, 8 and 9 were entry wounds while Injuries Nos.1-B and 2-B were the exit wounds. According to his report the deceased received injuries on his buttock, on mid clavicle line between 8th and 9th ribs, on the left inguingal line and outer side of left thigh. He also opined that the injuries were caused by the fire-arm and resulted. Into death of the deceased. Zulfisiar Ali, nephew of the deceased and son of the complainant, stated about the recovery of gun, allegedly effected" from the respondent-Mehboob Ahmed. Muhammad Hussain Shah, Inspector/S.H.O., appeared as P.W.12 and stated about the recording of the statement Exh.P.A.
Made by the complainant and also stated, about the investigation of the case. During cross- examination he admitted that he arrested Ghulam Mustafa on 17-1-1990, who stated before him that he alongwith Mehboob Ahmad-respondent and Zahoor Ahmad was present in their land. The licensed gun belonging to Zahoor Ahmad was being carried by Mehboob Ahmad at that time.
Zahoor Ahmad was going ahead, when Hazoor Bakhsh started abusing Zahoor Ahmad. An altercation took place between the two. Hazoor Bakhsh caught hold of the beard of Zahoor Ahmad.
When he' and Mehboob Ahmad tried to intervene, Hazoor Bakhsh ran towards his Jhuggi and brought a hatchet from there and launched murderous assault upon Zahoor Ahmad by raising.
Lalkara, therefore, Mehboob Ahmad in order to save the life of his brother fired at him, which hit him. According to this P.W. Ghulam Mustafa also stated that they were roped in, this case because of longstanding enmity: This P.W. Further admitted that he arrested Mehboob Ahmad on 19-1-1990; who stated in line with the statement made by his brother Zahoor Ahmad. He added that on 21-1- 1990 Ghulam Mustafa and Mehboob Ahmad repeated the same story during interrogation conducted by Ahmad Khan, D.S.P. He further admitted during the cross-examination that on 6-2- 1990 about 200 respectables appeared before Ahmad Khan, D.S.P., and stated that the motive as set down in the F.I.R. Was false, as there was no dispute between the parties over reciting of Darood and Salam. He also admitted that in this final report submitted under section 173, Cr.P.C. He had opined that the occurrence had not taken place on the basis of any religious dispute and that in fact enmity existed between the parties; and that the deceased had abused Zahoor Ahmad and caught hold of his beard; and that the deceased had brought hatchet from his Jhuggi and launched murderous assault upon Zahoor Ahmad when Mehboob Ahmad in order to save the life of his brother fired at the deceased.
9. After conclusion of the prosecution evidence, the statement of respondent Mehboob Ahmad was recorded under section 342, Cr.P.C. And in reply to Question No.7, he stated as follows:-- "On the day of occurrence, I alongwith Zahoor Ahmad and Ghulam Mustafa went to our land on a tractor trolly to load the same with sand from our sand-dunes near Jhuggi of the deceased..
Hazoor Bakhsh-deceased was hardened and desperate criminal who was already challaned in so -many criminal cases of murderous forms etc. And was quite inimical with us. He after seeing us started abusing without any justification. My brother Zahoor Ahmad who is an old man having white beard stopped the deceased from using filthy remarks by saying the names to my sister and mother. Hazoor Bakhsh suddenly caught hold of my brother Zahoor Ahmad from beard anddisgraced by pulling the same. I put beside the deceased who was in high temper at that time and ran back in his Jhuggi in which he used to keep his arms. He suddenly brought a hatchet from Jhuggi and he came running and launched attack on my brother Zahoor Ahmad in order to murder him. I apprehended that Hazoor Baldish will murder my brother Zahoor Ahmad. In order to save his life, I fired only once which hit Hazoor Bakhsh. There was no dispute over recitation of Darood and Salam which has been wrongly attributed to give religious touch to the occurrence. I am a complete Muslim and have performed Hajj and have whole-hearted regards far the Holy Prophet (peace be upon him). The complainant and the eyewitnesses were not present at the spot.
Abdul Ghaffar accused was also not present there. Zahoor Ahmad and Ghulam Mustafa did not throw any brick bat at the deceased. The story has been twisted by the police and I have been wrongly challaned. I am innocent."
' However, he refused to appear as witness in his defence as envisaged by section 340(2), Cr.P.C.
After tendering certified copy of F.I.R. No.45 of 1985, dated 19-2-1985 registered at Police Station Kot Samaba under section 307, P.P.C., certified copy of F.I.R. No.29 . Of 1988 dated 2-3-1988 registered at the same police station under section 325/34, P.P.C. And certified copy of F.I.R. No.26 of 1985, dated.
1-3-1985 under section 13 of the Arms Ordinance registered at the same police station. Exh. D . A .
Exh D .B. And Exh.D.C. Respectively, closed his evidence.
10. The learned counsel for the petitioner has argued that it was a daylight occurrence; that the eye-witnesses, though related to the deceased, were trustworthy; and that their presence at the scene of occurrence was quite plausible, as at the time of occurrence they were constructing their house which was at a distance of 1-1/2 acre from the scene of occurrence, therefore, they could reach the spot after hearing the abuses and alarm raised by the deceased. The learned counsel has taken a strong exception to the reasons advanced by the learned trial Court in recording the acquittal of the respondent Mehboob Ahmad and has stated that the learned trial Court has relied heavily on the statement of Muhammad Hussain Shah, Inspector/ S.H.O. P.W.12, who was not an eyewitness. He finally argued that the conclusions arrived at by the learned trial. Court are not borne out from the record of the case.
11. The learned counsel for the respondent conversely have argued that the witnesses were admittedly inimical and related to the deceased; that no independent witness was produced during the trial; that the plea of self-defence taken by the respondent was found to be correct during the investigation as well as by the trial Court; and that the judgment passed by the learned trial Court could be interfered if the same was perverse or foolish and could not be upset if the stories advanced by the prosecution and the defence were equally plausible.
12. The learned State Counsel has supported the judgment of the learned trial Court.
13. We have heard the learned counsel for the parties and scanned the entire evidence minutely.
Admittedly it is a case of two versions and the learned trial Court should have placed both the versions in juxtaposition and then in the light of the evidence recorded by it should have arrived at the conclusion as to which of the version was true. In the instant case the learned trial Court has discussed the statements of P.W.8 and P.W.9 (eye-witnesses) in relation to their evidence regarding the motive and has concluded that the motive set up by the prosecution was false and in fact the motive was the existing enmity between the parties. But the learned trial Court has said nothing about the presence of the P.Ws. At the time of occurrence. We have also noticed that at page 15 of the judgment the learned trial Court had held that the participation of Haji Abdul Ghaffar, Ghulam Mustafa and Zahoor Ahmad was doubtful. Despite the fact that Ghulam Mustafa and Zahoor Ahmad admitted their presence alongwith Mehboob Ahmad-respondent at the time of occurrence. According to the story set up by the respondent he alongwith Ghulam Mustafa and Zahoor.Ahmad went on a tractor trolly to load some sand from sand-dunes situated near the Jhuggi of the deceased, who was a hardened and desperate criminal and was inimical towards the respondent, his family members, started abusing them without any justification. According to respondent, Hazoor Bakhsh used filthy language and caught hold of the beard of Zahoor Ahmad and disgraced him by pulling the same and when Mehboob Ahmad tries to rescue his brother Hazoor Bakhsh ran to his Jhuggi and came out equipped with a hatchet and launched attack upon Zahoor Ahmad. Apprehending danger to the life of Zahoor Ahmad, Mehboob Ahmad who was carrying the gun belonging to Zahoor Ahmad, fired at the deceased, which proved fatal. The learned trial Court has completely overlooked the facts that according to the story of the respondent, the deceased was empty-handed and alone when he started abusing the respondents, who were three in number and were carrying gun; and that whether the respondents, in the circumstances, would allow the deceased to abuse them and disgrace Zahoor Ahmad and would they not interfere when allegedly Hazoor Baldish was pulling the beard of Zahoor Ahmad?
14. The learned trial Court has discussed sections 100 and 97, P.P.C. Only and has not mentioned section 99, P.P.C. In the judgment. Section 100, P.P.C. Cannot be read in isolation, as it is subject to the provisions of section 99, P.P.C. In these circumstances, we are of the 'opinion that the learned trial Court has not properly appreciated ,and read with evidence available on the record, which required more detailed and, full discussion, and has drawn inferences from the evidence, which are perverse. Thus we allow this revision, set aside the judgment dated 27-10-1992 handed down by Mr. Muhammad Ali Shad, Additional Sessions Judge, Rahim Yar Khan, qua Mehboob Ahmad- respondent and remand the case to the learned Sessions Judge, Rahim Yar Khan with a direction to restart the trial from the stage of arguments against Mehboob Ahmad respondent alone. The record of the case would immediately be remitted to the learned. Sessions Judge, Rahim Yar Khan, Mehboob Ahhiad- 1-7-2003. We in the interest of justice, admit the respondent Mehboob Ahmad to interim bail till the above mentioned date, subject to his tendering bail bonds in the sum of Rupees Fifty Thousand, with one surety, in the like amount,. To the satisfaction of the learned Sessions Judge, Rahim Yar Khan/Duty Judge, within two weeks. Meanwhile, he may move an application seeking bail before the learned Sessions Judge, Rahim Yar Khan This protective order would automatically lapse after the Court hours on the aforementioned date i.e. 1-7-2003.