2000 PLP 2997 (YLR)

6. We, with the assistance of learned State Counsel have gone through the prosecution evidence. The prosecution in order to prove its case has produced 9 witnesses in all. Thereafter the statement of the appellant under section 342, Cr.P.C. was recorded who claimed false implication. Sona appellant also produced two D.Ws. namely Imam Bakhsh and Abdul Rehman. Amongst the 9 witnesses, there were two eye‑witnesses namely Haji Khadim Hussain, complainant (P.W.1) and Karam Elahi P.W.2. Haji Khadim Hussian P.W:1 reiterated all the facts which he had stated in the F.I.R. lodged by him. While Karam Elahi; P.W. also stated that the appellant tired four shots on the deceased which hit on his chest and fore‑head while the two fires were missed. Khadim Hussain P. W.1 is step‑son of Godha deceased as Godha deceased was married with the mother of Khadim Hussain. The plea taken by the appellant was that Khadim Hussain alongwith Muslim; Karam Elahi, Sarwar, husband of Mst.Naziran and Godha deceased duly armed attacked at the house of Sona appellant. and did tiring there. It was further suggested that the tire shot by Khadim Hussain P.W.1 hit Godha deceased. It was also suggested to Khadim Hussain that one of the fire hit Sona appellant. It was also suggested . that Khadim Hussain P.W.1 intentionally killed Godha deceased and later on a false case was registered against Sona appellant. These suggestions were also put to P.W.2 Karam Elahi but both these witnesses rebutted these suggestions. This‑plea was not taken by the appellant in his statement under section 342, Cr.P.C. but he produced two D.Ws. namely, Imam Bakhsh and Abdul Rehman, who had stated before the Court on oath that Godha deceased had died due to fire shot by Khadim Hussain P.W. and Sona appellant was also 'hit by the fire of one Sarwar belonging to the complainant party For the just decision of the case the statement of Dr. Zahoor‑ul‑Hassan, M.O. Tehsil Head quarter Hospital, Sadiqabad, District Rahimyarkhan, P.W.3 is reproduced below: During the post‑mortem examination, the Doctor reported the following injuries:‑‑ (i) A circulate wound of entry 1 " x 1 " on back side of left chest at the medial side of left scapula and multiple small wound of entry 1/4 x 1 /4 each round the main wound were present. Margin of the wound were burnt and inverted. (ii) 5 wounds of entry 1/3" x 1/3" each on posterial side of left arm. Margin were inverted. (iii) 5 wounds of exit 1/2" x 1/2" each on enterial side of let arm. Margins were everted. Many small pellets were removed from the chest cavity. On examination of scalp, skull, and vertebrae and membranes, brain, spinal cord, no abnormality was discovered. On examination of thorax, ribs on left side were fractured, left pleurae was injured, left lung was injured. Pericardium and heart were healthy and empty. Main blood vessel of left side of chest was injured. All other viscera were intact and healthy. On examination of abdomen, stomach was empty. Bladder contained two ounces urine. All other viscera were intact and healthy. In his opinion the cause of death in this case was shock and haemorrhage due to Injuries Nos. 1 to 3 caused by fire‑arm. All injuries Nos. 1 to 3 collectively and Injury No.l individually was sufficient to cause death in the ordinary course of nature. All the injuries were anti‑mortem. Probable time that elapsed between injuries and death was immediate and between death and post- mortem was 12 to 16 hours.

7. We may state here that police also got Sona medically examined on 8‑3‑1995 at 3 p.m. and according to the said Doctor who had conducted the post‑mortem examination on the, body of the deceased had also examined Sona appellant and found a circular mark of injury on the right side of his fore head in the centre and 2‑ " above the right eyebrow. The statement of the said Doctor is also reproduced below: (i) A circular mark of injury 1/8" diameter on right side of the forehead in the centre and 2/12" above the right eyebrow. Scale formed on the head. X‑ray of skull was advised. A.P. lateral and right A.P. oblique right lateral oblique views were also advised to be taken. Injury was kept under observation, which was caused within the probable duration of 5 to 7 days. Kind of weapon used was also kept under observation. Injury of Sona appellant has been suppressed by the prosecution. According to the Doctor the said injury was caused with fire‑arm because one round radio opaque metallic foreign body shadow was seen in X‑ray of skull. Munir Ahmad, Inspector appearing as P.W.9 had admitted during the cross‑examination that the accused was also in an injured condition when he was arrested on 7‑3‑1995. The Investigating Officer also admitted that the first version of the appellant was that he received injury at the time of occurrence. This injury has been suppressed by the complainant party, as mentioned above. There are two fire‑arm Q injuries having entry wounds while third one is exit one on the person of the deceased. In our view both the complainant party and the appellant party did not approach the Court with clean hands. Both of them have suppressed their roles played during the occurrence.

9. Keeping in view the circumstances of the case we think that the appellant had exceeded right of self‑defence, although, he had not taken this plea specifically, either during the cross‑examination or in his statement under section 342, Cr.P.C. but the same is spelt out from the record. In this view of the matter, we convert the conviction of the appellant from section 302(b), P.P.C. to section 302(c), P.P.C. Murder Reference is 1 replied in the negative and the death awarded to the appellant is not confirmed but is converted to 14 years' R.I. under section 302(c), P.P.C. with a further direction to pay Rs.25,000 (twenty five thousand) as compensation to the legal heirs of the deceased, failing which he will have to undergo six months S.I. Benefit of section 382‑B, Cr.P.C. is also granted to the appellant. With the above modification the Murder Reference and Criminal Appeal are disposed of. Death sentence awarded to the appellant is not confirmed. N.H.Q./S‑81/L Sentence reduced.