1998 P Cr (PLP)

This appeal has arisen against the judgment passed by Mr. Muhammad Akmal Qureshi, Additional Sessions Judge, Gujrat whereby he convicted the accused-appellant Asghar Ali for offence under section 302, P.P.C. and sentenced him to life imprisonment with a fine of Rs.10,000 or in default thereof to undergo R.I., for one year. It was also ordered that out of the fine, if recovered, Rs.8,000 shall be paid to the legal heirs of the deceased as compensation under section 544-A. Cr.P.C. Benefit of section 382-B, Cr.P.C. was also awarded to the appellant. The State had also filed Cr. Revision No.570 of 1989 for enhancement of the sentence of life imprisonment to that of death. This judgment will dispose of both the; appeal and revision.

2. The prosecution story as contained in the F.I.R., No.192 of 1986 lodged at Police Station Karianwala at the report to the complainant, dated 19-9-1986 is that the complainant is a resident of Piro Shah and earns his livelihood through working at Power-looms in Jalal Pur Jattan. On the day of occurrence, which was a holiday on account of Friday, at about 9-00 a.m. he went to the house of his brother-in-law Allah Ditta son of Hassan Muhammad, caste Arain, where Allah Ditta, his wife Mst. Fazal Begum and Muhammad Hussain were present. In the meantime, Asghar Ali came into the house of Allah Ditta and told that day the respectables had convened an assemblage at the Dera of Inayat Ali son of Niaz Ali in connection with matter concerning with the abduction of his sister Mst. Farzana. Whereupon he, Asghar Ali and Allah Ditta started towards the Dera of Inayat Ali. Allah Ditta was going ahead of them while Asghar Ali was proceeding behind him at some distance and that the complainant and Ghulam Hussain were walking behind Asghar Ali and had reached the agricultural land of Muhammad Ashraf that suddenly Asghar Ali took out a carbine from his "Dub" and fired a shot at Allah Ditta which hit him on his back and he fell down. Asghar Ali uttered a threat that if any one came near to him he would not be spared and simultaneously issued second fire which hit Allah Ditta while he was in fallen condition, on his chest near by his abdomen, neck and right "Dola". Being frightened, the complainant party did not go near and Asghar Ali fled away from the scene of occurrence. When the complainant party went near Allah Ditta he had already expired on the spot. Leaving behind Ghulam Hussain, resident of Dcb to guard the dead body of Allah Ditta, deceased, the complainant went to police station and lodged the F.I.R. The motive as alleged in the F.I.R., was that about four or five months ago, Mst. Farzana sister of Asghar Ali had eloped with Zafar alias Zafra son of Sardar Khan of village Massan in connection with illicit liaison. However, through the intervention of respectables she was restored to Asghar Ali accused. Asghar Ali accused had levelled the allegations that Allah Ditta deceased had a hand in the abduction/elopement of Mst. Farzana.

3. After completion of investigation and preparation of necessary papers the accused-appellant was challaned to Court for facing trial. In the trial the prosecution examined as many as ten witnesses in its support. Dr. Ghulam Abbas Zafar (P.W.1), Muhammad Afzal (P.W.2), Muhammad Azam Constable (P.W.3), Muhammad Bashir son of Ghulam Hussain (P.W.4), Mohsin Pervaiz (P.W.5); Allah Ditta son of Hassan Muhammad (P.W.6), Ghulam Hussain (P.W.7), Javed Akhtar Iqbal Patwari (P.W.8), Muhammad Yousaf A.S.I. (P.W.9) and Khadim Hussain retired S.H.O. (P.W.10). 4 After the prosecution evidence the statement of the accused-appellant was recorded under section 342, Cr.P.C. He did not appear as his own witness under section 340(2), Cr.P.C. on oath. No defence witness was produced by the accused appellant.

5. Learned Trial Court after completion of the trial convicted and sentenced the accused-appellant as mentioned above. Hence this appeal.

6. Learned counsel for the appellant vehemently contended that the learned Trial Judge has not properly appreciated that it is a case of two versions; one version has been put forth by the prosecution and the other version advanced by the appellant in his statement under section 342, Cr.P.C. and that is that he caused the death due to "Ghairat" and self-defence fearing imminent danger to his life 7 Learned counsel for the State has supported the judgment of the trial Judge and submitted that there is no mitigating circumstance in favour of the appellant so he is not entitled to any leniency.

8. I have critically examined the submissions of the learned counsel and have perused the record with their able assistance.

9. Admittedly it is a case of two versions, one has been given by the prosecution, that is, about four or five months ago, Mst. Farzana, sister of Asghar Ali, accused eloped with Zafar in connection with illicit liaisons; however, through the intervention of the respectables, Ms. Farzana was restored to Asghar and he levelled the allegation against Allah Ditta, deceased, brother -in-law of the complainant that he had a hand in the abduction/elopement of Mst. Farzana. The other version has been put forth by the appellant under section 342, Cr.P.C., that he caused the death of Allah Ditta, deceased due to "Ghairat" and self-defence as Zafar and Allah Ditta, deceased had abducted the sister of the appellant when he was away and on his arrival to home, he chased them. The appellant and the deceased grappled with each other and the appellant succeeded in snatching the carbine from the deceased. In the meantime, Mst. Farzana, sister of the appellant and Zafar started running and the appellant fired at them and the fire shot hit the deceased.

10. The salutary principle of law for the just decision of a case of two versions is that both the versions are put in juxtaposition and, thereafter, they Court has to see which version is more probable arid near to the truth according, to the evidence available on record subject to this qualification that the onus of proof always remains on the prosecution and if there is any doubt, that should be resolved in favour of the accused. For this view, I am fortified by the Judgment of the Supreme Court in the case of Muhammad Younas v. Tile State 1992 SCMR. 1592 wherein it was held as under:

"It is by now well-established that in a situation like the one in hand, both the versions have to he kept in juxtaposition and tile one favourable to tile defence is to be preferred to, if it gets support from the admitted facts and circumstances of the case and appeals to common sense."

11. The prosecution in this ease produced as many as 10 P. Ws. P. W.1 is the Medical Officer who conducted tile post-mortem examination on the dead body of tile deceased. P. Ws.2, 3, 8 to 10 arc the official witnesses, including tile Investigating Officer. Ch. Bashir Ahmad, P.W.4 accompanied Muhammad Sharif, P.W. to the mortuary where he identified the dead body of Allah Ditta, deceased. Mohsin Pervaiz, P.W.5 was a witness of recovery of blood-stained earth. Allah Ditta, complainant, was examined as P.W.6 while the other eye witness, namely, Ghulam Hussain was examined as P.W.7. Both Allah Ditta and Ghulam Hussain fully supported the prosecution case, no doubt, both these witnesses arc related inter sc but mere relationship of the witnesses would not he a around for discarding their evidence. The prosecution version is also getting support from the promptly lodged F.I.R. the medical evidence and the recovery of weapon of offence. The motive as given in the F.I.R. is also proved as the appellant has not denied the same.

12. On the other hand, the case o1' the defence as set tip in statement under section 342, Cr.P.C. gets corroboration from the statement of Ghulam Hussain (P.W.7) when he in cross-examination admitted that Zafar was married with Mst. Naziran, the real sister of Mst. Farzana and Asghar Ali, accused and, did not know when Farzana was abducted second time by the aforesaid Zafar. The other independent witness of the prosecution, namely, Allah Ditta (P.W.6) in cross-examination admitted that Mst. Naziran was married to Zafar: out of this wedlock, they have a daughter: they had married 1-1/2 years prior to the instant occurrence and that it was correct that Zafar had not yet divorced Mst. Naziran when lie abducted her sister Mst. Farzana. The motive furnished by the prosecution wits that the appellant had levelled tile allegation against the deceased that he had hand in the abduction of Mst. Farzana, the real sister of the appellant, Asghar Ali.

13. Now keeping both the versions in juxtaposition, the version put by the defence that the appellant had committed the murder on account of Ghairat and sudden provocation, as admittedly his one sister, namely, Naziran was in. the Nikah of' Zafar and during the subsistence of that Nikah, lie had for the second time abducted Mst. Farzana, his other real sister coupled with the fact that the participation and presence of the deceased even according to prosecution version is admitted; fits into (lie ambient of the circumstances of the case adequately. It is also an admitted position that Inayat Ali on whose Dera the alleged Punchayat was to be convened was not produced for the reasons best known to the prosecution.

14. The result of above discussion is that the case of the appellant is covered by exception I to section 300, P.P.C. and in such a case, conviction can only be passed under section 304(1), P.P.C. Accordingly, I partly accept the appeal, alter the conviction under section 302, P.P.C., to that of under section 304(I), P.P.C., and sentence the appellant to 10 years R.I., and to pay a fine of D Rs.10,000 and in default of payment of fine to undergo further R.I. for one year. The fine, if recovered, the whole of it shall be paid to the legal heirs of the deceased as compensation under section 544, Cr.P.C. Cr. Revision No.570 of 1989 is, however, dismissed. A.A. /A-211 /L Order accordingly.