2003 P Cr (PLP)

This judgment will dispose of Criminal Appeal No. 170/J of 2002 filed by Yaqoob Shahzad, appellant through jail who was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with further direction to pay Diyat amount to the tune of Rs..2,60,

000. He was also convicted under section 302(c), P.P.C. and sentenced to undergo R.I. for 14 years. Both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C. The conviction and sentence was recorded by learned Sessions Judge, Hafizabad vide judgment dated 30-1-2002. Briefly stated the facts of the case are that on 31st January, 2001 at evening time, Muhammad Yaqoob Shahzad son of Bashir Ahmad had given beating to Sharif, brother of the complainant, Arif Mahmood and due to intervention of respectable, no proceeding was taken. On 1-2-2001 at morning time, the complainant alongwith his brother Tariq Mehmood and Asif Imran were making complaint to father of Muhammad Yaqoob, namely, Bashir Ahmad in front of his house as to beating given to brother of the complainant. At about 9-30 a.m., Muhammad Yaqoob Shahzad having a pistol in his hand came out from his house while abusing who was reprimanded by his father Muhammad Bashir upon which Muhammad Yaqoob fired which hit Muhammad Bashir at his right thigh. The second shot fired by the accused Yaqoob hit Tariq Mahmood in his abdomen. In the meanwhile, Khalid a brother of the complainant came at the spot raising Lalkara and upon this, the accused ran way from the spot by brandishing the pistol in air. Tariq succumbed to his injury in the hospital.

3. Investigation of the case was taken over by Ashfaq Ahmad, S.-I. (P.W.13). He after registration of the formal F.I.R. went to hospital, inspected the dead body of Tariq, prepared inquest report Exh.P.K., injury statement Exh.P.J., then went to the place of occurrence, took into possession blood-stained earth vide memo. Exh.P.A., the accused was arrested on 2-2-2001, the accused while in custody on 6-2-2001 led to the recovery of pistol P.8 which was taken into possession vide memo. Exh.P.E. After completion of the investigation, .the accused was challaned to face the trial.

4. At the trial, prosecution in order to prove its case produced 13 witnesses in all. Then the learned D.D.A. tendered in evidence reports of the Chemical Examiner Exh.P.T., Exh.P.U., reports of the Serologist Exh.P.T./1 and Exh.P.U./1 and that of the Forensic Science Laboratory Exh.P.V. and closed the case of the prosecution. After that, statement of the accused was recorded under section 342, Cr.P.C. in which he pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.

5. Learned counsel for the appellant submits that appellant had acted while using the right of self-defence father of the appellant was also murdered in the same occurrence; the appellant himself appeared before the police on the day of occurrence but the police with mala fide showed his arrest on the next day; the plea of the appellant before the ,trial Court specially in reply to question No.7 in his statement recorded under section 342, Cr.P.C. was the same which he took before the Investigating Officer at the time of his arrest; the occurrence had taker place in front of house of the appellant; both the eye-witnesses are neap relations of the deceased; no crime-empty was recovered from the spot; pistol which was . produced by the appellant was licence one family of the deceased was involved in narcotics; in fact it was the complainant party 'which was aggressor and that the prosecution ha; miserably failed to prove its case against the appellant and he is entitle to acquittal

6. Learned counsel for the State submits that the occurrence having taken place in front of house of the appellant, there. was no occasion on the part of the complainant party to be present at the relevant time at the spot and in fact he does not support the judgment of the trial Court.

7. I have heard learned counsel for the parties and have gone through the record. In the instant case, allegation against the appellant was that he fired at the deceased when his father came in the way and stopped the appellant not to fire and received the injury. Thereafter he tired another shot which hit the deceased. It is a case of two versions: one has come from the mouth of two P.Ws., namely,. Arif real brother or the deceased and Asif Imran maternal nephew of the deceased while the other version has been introduced by the appellant in his statement under section 342, Cr.P.C. while giving reply to question No.7. The settled principle of law that in a case of two versions, both the versions are to be put in juxtaposition and then to see as to which version is correct and nearer to the truth. While applying the said principle, I am of the considered opinion that the version put forward by the appellant is more plausible and convincing for the reason that occurrence had taken place just in front of house of the appellant and moreover father of the appellant was also killed in the occurrence. It is not understandable that an accused who was wanting to kill another person would also fire at his real father. The M.L.R. of Bashir Ahmad shows that name of the person who had taken the injured to hospital does not find mention in the relevant column of "name of relative or friend". According to the appellant, he himself appeared before the police on the day of occurrence but his arrest was shown on the next day, that is, 2-2-2001. His first version is the same which he submitted before the trial Court in his statement under section 342, Cr.P.C. The settled law is that first version of an accused person is of great importance. It has also been brought on record that the complainant party was dealing in narcotics. Learned counsel for the State has conceded that occurrence having taken place in front of house of the appellant, there was no occasion on the part of the complainant party to be present at the, time of occurrence. Having examined the case from all angles and attending to the submissions made by learned counsel from both the sides, I am of the considered opinion that it is case which is full of doubts and the law is that benefit of doubt has always to be granted to an accused, so while applying the said principle of law, I accept the appeal field by the appellant, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. The appellant is in jail and shall be released forthwith, if not required to be detained in any other case. H.B.T./Y-25/L Appeal accepted