1997 PLP 980 (MLD)

The appellant was convicted on 26‑3‑1995 by Additional Sessions Judge, Lahore under section 302, P.P.C. for committing the murder of Shahid Pervaiz and was sentenced to imprisonment for life and a fine of Rs.5,

000. In default of payment of fine the accused was ordered to undergo further R.I. for six months. Benefit under section 382‑B, Cr.P.C. was also granted to the appellant whereas his co‑accused Muhammad Aslam and Mehmood Ali alias Mooda were acquitted.

2. Alleged brief facts leading to the conviction of the appellant are that on 23‑4‑1990 at about 2‑15 or 2‑30 p.m. the accused Muhammad Aslam, and Mehmood Ali alias Mooda both armed with mausers, at Rasheed Watch Company, Anarkali, Lahore, with common intention committed murderous assault at the person of Shahid Parvaiz and they fired upon him with their mausers hitting him at the back side of his head and the lower portion of his neck. On the hue raised, by complainant Muhammad Qadeer, the accused persons fled away. This occurrence, as per F.I.R., was witnessed by Naseer Ahmad, Muhammad Siddique and the complainant Muhammad Qadeer. P.Ws. Muhammad Qadeer and Naseer Ahmad carried the injured Shahid Parvaiz to Mayo Hospital, Lahore, immediately but the abovesaid two accused Muhammad Aslam and Mehmood alias Mooda with the addition of Ashraf alias Addu, the third accused, had reached there prior to them and on seeing the injured, the accused Aslam and Mehmood alias Mooda raised Lalkara to the effect that Shahid Parvaiz was still alive and that he should be finished. On this accused Muhammad Ashraf who was armed with gun .12 bore, directly fired at Shahid Parvaiz, which hit at his chest with the result that after a few moments he expired. This part of the occurrence was witnessed by Muhammad Arshad apart from Muhammad Qadeer and Muhammad Naseer.

3. The motive behind the occurrence, as alleged in F.I.R., was that Muhammad Asghar real brother of accused Muhammad Ashraf and Muhammad Aslam had earlier been murdered by Hamayun Khan real brother of Shahid Pareaiz. Apart from above on the same day about half an hour prior to the present occurrence, Muhammad Akbar real brother of the accused Muhammad Aslam and Muhammad Ashraf, had also been murdered within the limits of Police Station Naulakha.

4. F.I.R. No.95/90 was registered on the basis of application of the complainant under section 307/34, P.P.C. on 9‑5‑1990 when the same was produced before S.H.O., of New Anarkali, Lahore. Yet another application was presented before S.H.O., Gowalmandi, Lahore by the same Muhammad Qadeer on the basis of which F.I.R. No.185/90 was registered at the Police Station under section 302/34, P.P.C. on 9‑5‑1990. Both cases were investigated and reports under section 173, Cr.P.C. were filed and the Additional Sessions Judge Lahore vide his order dated 9‑3‑1992 ordered that proceedings in both the cases be recorded separately. The appellant and his co‑accused Mahmood Ali were charged under section 307/34, P.P.C. regarding the occurrence of mounting murderous assault on Shahid Parvaiz within the jurisdiction of Police Station Anarkali and the second head of the charge related to causing the death of said, Shahid Parvaiz, within the jurisdiction of Police Station Gowalmandi. The charges were read over to these accused. They pleaded not guilty and claimed trial. Another charge on 2‑2‑1993 was framed with the heads under sections 307/34, P.P.C. and 302/34, P.P.C. To this charge the accused did not plead guilty and claimed trial. Another charge was framed against Muhammad Ashraf, Muhammad Aslam, his real brother and Mehmood Ali on 29‑3‑1992 under section 302/34,P.P.C. which was also read over to the accused and they pleaded not guilty and claimed trial.

5. It will be pertinent to mention here that both the F.I.Rs. were registered at both the police stations under direction of the High Court made in two separate writ petitions.

6. At trial prosecution produced Muhammad Naveed P.W.1, who was a witness of recovery of mauser P. l from Muhammad Aslam, acquitted accused. He was marginal witness of recovery memo. Exh.P.A. Syed Younas Ali Shah, Draftsman P.W.2 had prepared site plan Exh.P.B/1‑2 in scale of 20 feet to 1 inch which he delivered to the police. Muhammad Nawaz, P.W.3. while posted as M.H.C. P.S. Gowalmandi, Lahore was handed over two sealed parcels pertaining to this case by Muhammad Yousaf, S.I. which were said to contain a gun and a pistol. On 24‑4‑1990 another parcel given to him by the doctor was handed over to him. All the three parcels were retained by him to safe custody and on 14‑5‑1990 he delivered these parcels to Muhammad Safdar, Constable P.W. for delivery at the office of S.I. Technical Services. These parcels were re deposited and were re‑issued to the said P.W. Muhammad Qadeer, P.W.4 was the first informant and narrated all the facts that he had alleged in the applications on the basis of which the F.I.Rs. were registered. Muhammad Siddique P.W.5 stated that at about 2/2‑30 p.m. on the day of occurrence he was present in his Paan Shop situated in New Anarkali, Lahore when he heard the noise of Muhammad Aslam and Mehmood acquitted accused who came there by a Motor‑cycle which had no number plate. Both of them alighted from the Motor‑cycle. They were armed with mausers. Aslam raised Lalkara that he would avenge the murder of his brother. Shahid Parvaiz ran into a shop. Both fired at Shahid Parvaiz from behind. The occurrence was witnessed by Nasir. Qadeer and many other persons of the bazar. The accused ran away Nasir anal Qadeer took Shahid Parvaiz to the hospital in a rickshaw. Muhammad Arshad P.W.6 denied to have witnessed the occurrence. He was declared hostile and was cross‑examined by D.D.A. Abdur Rashid P.W.7 had identified the dead body of Shahid Parvaiz at the time of Post‑mortem Examination and was also a marginal witness to the recovery memo. Exh.P.E. of a blood‑stained box P.2 which was sealed into a parcel. Tariq Parvaiz, A.S.I. P.W.8 was posted on 9‑5‑1990 in Police Station Gowalmandi. He received Exh.P.D. through Muhammad Safdar constable P.W. from Muhammad Yousaf, S.I. P.W. and registered the formal F.I.R. Exh: P.D./A. Muhammad Yousaf, Inspector P.W. 9, who was posted as Incharge/S.I. Police Post Mayo Hospital, Lahore on 9‑5‑1990 stated that he appeared in writs pending in the High Court and was issued a direction to register a case on the basis of complaint of the complainant. P.W.3 had produced complaint Exh.P.D. whereupon he put his note and sent the same for formal registration. He went to the place of occurrence, and inspected the same. No P.W. was present there and none was produced by the complainant. The investigation was transferred from him on 16‑5‑1990. While posted as above Muhammad Ashraf accused on 23‑4‑1990 had got registered a case under section 307/34, P.P.C. with him. He had taken into possession gun P.3 and live cartridges P.4 and one crime empty Exh. P.5 from Muhammad Ashraf accused and secured the same vide memo. Exh.P.F. which was witnessed by Sala‑ud‑Din and Ehsal‑ul‑Haq. He was present in Emergency of the Mayo Hospital on 23‑4‑1990 at about 2‑40 p.m. when he heard a fire short from outside. On coming out he saw Shahid Parvaiz deceased having fallen on the ground. Muhammad Ashraf accused was present at the spot at that time alongwith the gun P.3. He prepared Inquest report Exh.P.G., Injury statement Exh.P.H. and sent the dead body of Shahid Parvaiz for postmortem examination to the mortuary under the escort of two constables alongwith applications Exh.P.l and Exh. P.J. Muhammad Ashraf, accused had failed to produce any licence. He got a separate case registered under the Arms Ordinance. Near the dead body of deceased Shahid Parvaiz there were present .32 bore pistol P.6, three live bullets P.7/1‑2 and two empties P.8/1‑2 he collected, sealed them into a parcel and secured the same through a memo. the certified copy of which was Exh.P.K The original was available on the original file of case F.I.R. No.161/90. The P.W was declared hostile by the Public Prosecutor at the instance of the private counsel of the complainant and was allowed to be cross‑examined by the learned counsel for the complainant as he was allowed to cross‑examine the P.W. under the supervision of D.D.A. on 12‑8‑1993 by the Court. When cross‑examined by the learned counsel for the defence he was shown the photo copy of F. I. R. No.161/90 which he proved as Exh. D.C. He admitted that the case was registered at 2‑55 p.m. He admitted the receipt of report of the Fire‑arm Expert with regard to the pistol and crime empties P.6 and P.8/1‑

2. The said report was brought on the file as Exh. D.E.

8. Zahoor Ahmad, Constable P.W.10 was entrusted with the warrants of arrest of the appellant. He could not be arrested. The warrants were returned by him on 13‑9‑1990. He appeared before the Magistrate and made his statement. He was handed over the written proclamation in triplicate. One part was affixed by him at the house of the accused appellant and the other outside Court house and third was brought on the file as Exh.P.L. A report on Exh.P.L. was Exh.P.L./1. Zahoor Ahmad, Constable P.W.10 was handed over a sealed parcel on 20‑6‑1990 by I.O. which he handed over to Muhammad Asghar Ali, M.H.C. New Anarkali, Lahore. On 21‑6‑1990 he took the said parcel from the Moharrir and deposited the same intact and brought the report of the Chemical Examiner and the parcel on 23‑6‑1990 and handed over the same to the M.H.C. Muhammad Safdar, H.C.P.W.11 stated that on 14‑5‑1990 he was posted at Police Post Mayo Hospital, Lahore as constable. He was handed over three sealed parcels by M.H.C. which could not be delivered that day at the Office of the Technical Services, Lahore. The parcels were re‑deposited and were obtained on the next day and were deposited by him as desired.

9. Dr. Farooq Mustafa Alvi P.W.12 conducted the post‑mortem examination of Shahid Parvaiz, deceased on 24‑4‑1990 and found the following injuries on his person:‑‑ "(1‑A) Fire‑arm wound of entry with collar of abrasion 1 x 1 c.m. on left side of head at the back 1 c.m. to the left of midline 12 c.m. behind left ear. Stippling was present around entry wound in an area of 3 x 3 c.m. (1‑B) Fire‑arm wound of exit 3 x 1 c.m. on back of head on right side 1.5 c. m. to the right of midline and 11 c. m. from right ear. (1‑C) Fire‑arm wound of entry with collar of abrasion more on upper side on back of right chest 2.2 c.m. to the right of midline and 17.5 c.m. from right shoulder top. Exh. P.M. was the correct carbon copy of his Post‑mortem Report and Exh.P.M./A‑1‑2 were the diagrams of injuries. The death in his opinion was due to haemorrhage and shock as a result of fire‑arm injuries to his lungs and major vessels which were sufficient to cause death in the ordinary course of nature. Saeed Ahmad, S.I. (retired) P.W.13 produced the files in case F.I.R. Nos.95/90 and 185/90 in the Court of Faiz Rubbani, Additional Sessions Judge. Lahore in the bail application of accused Aslam and Mehmood which was dismissed on 22‑7‑1990 and after the dismissal of the application he arrested both the accused. Khalid Pervaiz, Constable P.W.14 was posted in Police Station Gowalmandi, Lahore on 23‑4‑1990. He was entrusted with the dead body of Shahid Pervaiz by Malik Yousaf, S.I. for escorting the same to mortuary for Post‑mortem Examination. After the Post‑mortem Examination on 24‑4‑1990, M.O. made over to him the last worn clothes of the deceased, shirt P.9 vest P.10 and Shalwar P.I1 and a sealed phial, which he handed over to the 1.0. who secured the same vide memo. Exh.P.O. Haji Zubair Mehmood. S.P.P.W.15 had conducted the investigation of the case under directions of the D.I.‑G. He partly investigated the same from 28‑5‑1990 to 15‑8‑1990. 1le declared Mehmood Ahmad, accused as innocent in the case and recommended that Muhammad Aslam and Ashraf accused be challaned. Alamaar Hussain, Inspector P.W.16 stated that he was posted as S.H.O., New Anarkali, Lahore on 9‑5‑1990. He appeared in the High Court on the said date. He was given application Exh.P.C. by the complainant on which he recorded his note Exh.P.C.1 and sent the same to Police Station through Maqsood Ahmad for registration of the case He inspected the place of occurrence and prepared a site plan Exh.p,p. He recorded the statements of Siddique and Naseer P.Ws. under section

161. Cr.P.C. and the investigation thereafter was transferred. He admitted that none appeared from the side of the complainant party before him in connection with the registration of the case from 23‑4‑1990 to 9‑5‑1990, nor any application prior to the making of Exh.P.C. was made to him. He admitted that he had not recorded the statement of owner of Rashid Watch Company nor any employee thereof about the occurrence. Dr. Syed Tahir Jamshaid, M.O. P.W.17 stated that he was posted C.M.O., Mayo Hospital, Lahore and had issued Death Certificate Exh. P.N. of Shahid Parvaiz. Asghar Ali, M.H.C. p.W.18 was delivered a sealed parcel containing blood‑stained Gatta on 20‑6‑1990 which he kept intact in the Malkhana and despatched the parcel through the same constable on 21‑6‑1990 to the Office of Chemical Examiner. Malik Abbas Khan, D.S.P (Rtd.) P.W.19 stated that he conducted the investigation of case F.I.R. No.185 of 1990, under section 302, P.P.C. of Police Station Gowalmandi, F.I.R. No.95 of 1990 under section 307, P.P.C. P.S. New Anarkali and F.I.R. 161 of 1990 under section 307, P.P.C. P.S. Gowalmandi. He had obtained warrants of arrest of Muhammad Ashraf vide application EXh.P.P dated 7‑8‑1990 and then moved an application Exh.P.Q. on 13‑8‑1990 for obtaining proclamation. He inspected the place of occurrence on 19‑6‑1990 and on the pointation of Rasheed Ahmad Proprietor of Rasheed Watch Company took into possession an empty cartridge carton blood‑stained Gatta P.2 vide memo Exh.P.E., sealed the same into a parcel. On 31‑7‑1990 Muhammad Aslam accused led to the recovery of pistol P.1 which was taken into possession vide memo. Exh.P.A. He prepared site plan Exh.P.A./1 the place of recovery, sent the carton P.2 to the Office of the Chemical Examiner. He recorded the statements of witnesses and then prepared progress report regarding all the three cases. He admitted that the statements of the eye witnesses were recorded after about two months of the occurrence and that the local police had already inspected the spot but had not taken into possession any Gatta or any plate from the premises of Rasheed Watch Company, New Anarkali, Lahore He admitted that pistol P.1 was not made into a sealed parcel nor he had joined any person from the locality while effecting the recovery. He also admitted that Muhammad Akbar, a real brother of Muhammad Ashraf and Muhammad Akram accused was murdered within the area of Police Station Naulakha. The same day Ashraf accused brought his dead body to the Mayo Hospital. He also admitted that Shahid Pervaiz was murdered in the Emergency Ward of Mayo Hospital the same day and Hamayun Khan, a brother of the deceased was known to him who was P.O. in many cases. He also admitted that F.I.RNo. 161 of 1990 was registered at P.S. Gowalmandi under section 307/34, P.P.C. on the statement of Ashraf accused against Zahid Khan, Hamayun Khan P.O. his brothers and Shahid Parvaiz, deceased.

10. Malik Imdad Hussain P.W.20 while posted at C.I.A. received secret information, raided the house of Muhammad Ashraf at Railway Station. Lahore and arrested him and recovered a Klashnikov, a Magazine and 10 live cartridges and also a .12 bore D. B. B. L.

11. Ihsan‑ul-Haq, Sala‑ud‑Din, Javed Anwar, Mushtaq Ahmad and Khan Ahmad were given up by D.D.A. on 17‑7‑1993 on the ground of their having been won over by the accused. On 19‑3‑1994 Muhammad Ismael son of Allah Ditta P.W. was given up as having been won over by the accused. Muzaffar Khan, S.I. P.W. was given up 29‑6‑1993 by the D.D.A. All the P.Ws. were given up on the basis of application submitted by complainant's counsel. The case for the prosecution was closed on 11‑7‑1994 by D.D.A. after tendering in evidence report of the Chemical Examiner Exh.P.A. and that of the Serologist Exh.P.S. Yet another statement of D.D.A. was recorded on 23‑10‑1994 closing the case of the prosecution.

12. All the three accused were examined under section 342, Cr.P.C. The acquitted accused claimed that they were not present at the spot and were innocent. Muhammad Ashraf appellant claimed his innocence but made the following statement in answer to question NO. 11:‑‑ "I have been falsely involved in this case due to long‑standing enmity and blood fued with the complainant party who have murdered all my brothers and close relatives and only I and my brother Muhammad Aslam are left behind who are in jail and nobody is available to look after our womenfolk and children. The complainant party is very influential and rich. They are required in many serious crimes but they are enjoying the liberty and no police officer is effecting their arrest in the murder cases and cases of narcotics. Humayun Khan is presently staying in Tribal Area and has become a narcotic trafficker and now the Army Intelligence have arrested the suppliers and workers of Humayun Khan in Narcotic cases and 80 Kg. heroin has been recovered from their gang including 20 Kg. from Zahid Khan brother of Humayun Khan and a Klashnikov has also been recovered from them. Zahid Khan has also absconded even from this learned Court and today proclamation has been issued against him under section 87, Cr.P.C. We have been falsely involved in order to stop us from pursuing the cases against them. The P. Ws. are the party‑men/workers and servants of Humayun Khan who are selling his narcotics and pursuing cases against in the Courts and are false witnesses." The statement was recorded on 19‑7‑1994 when he had offered to produce defence. He was re‑examined under section 342, Cr.P.C. on 23‑10‑1994.

13. In defence the accused produced Iftikhar Hussain D.W.1 who stated that Mehmood Ali accused was injured by a brust of fire some 7/8 years earlier. He was initially admitted in the hospital and thereafter remained in bed for 4 or 5 years. He was incapacitated as a result of injury and could not move freely. Muhammad Arshad, H.C. D.W.2 brought the original register of F.I.Rs. of Police Station Gowalmandi, Lahore and produced the copy of F.I.R. No.161/90 registered on 23‑4‑1990. Muhammad Alam, H.C. D.W.3 brought the original register of F.I.Rs. of 1985 and placed on record attested copy of F.I.R. No.304/85 dated 1‑9‑1985 under sections 307/148/149, P.P.C. got registered on the statement of Muhammad Asghar son .of Muhammad Hussain at .P.S. Naulakha, Lahore Exh.D.l was the attested copy of said F.I.R. and schedule was produced as Exh.D.l/1. He also produced a copy of F.I.R. No.199/86 Exh.D.J. and its schedule as Exh.D.J./1, registered on the basis of statement of Zahid Hussain on 27‑5‑1986. He also produced copies of F.I.Rs. Nos.206/86, 237/86, 143/90 and 230/93 of Police Station Naulakha, Lahore and produced attested copies thereof as DK and DK/1, DL and DL/1, DM and DM/1 and DN and DN/1 respectively. Muhammad Nawaz, H.C.D.W.4 had brought the register of F.I.Rs of Police Station New Anarkali, Lahore. He produced certified copy of F.I.R. No.234/88 and its schedule Exh.D.O. and D.O./1 respectively and copy of F.I.R. No.86/96 Exh.D.R. and its schedule Exh.D.Rd/1. He also produced attested copy of F.I.R. No.180/91 Exh.D.S. and its schedule Exh.D.S./1, copy of F.I.R. No. 203/91, Exh.D.T. and its schedule Exh.D.T./1, copy of F. I. R. No. 1/92 Exh. D. U. and its schedule Exh. D.U./1, copy of F.I.R No.62/92 Exh.D.V. and its schedule Exh. D.V./1 and copy of F.I.R. No.108/92 Exh. D.W. and its schedule Exh.D.W./1 and also a copy F.I.R. No.31/91 Exh.D.X. and schedule Exh. D.X./1 Liaqat Ali Moharrir, Narcotic Control Board, D.W. 5 brought the original Register of F.I.Rs. of P.S. of the Board and produced attested copy of F.I.R. No.40/94 Exh.D.Y. and its schedule Exh.D.Y./1 and copy of F.I.R. No.41/94 Exh.D.Z. and its schedule Exh.D.Z./1. Nisar Ahmad D.W.6 stated that Shahid Parvaiz was murdered in April, 1990. He was murdered in Mayo Hospital, Lahore and on the day of his murder he was working in Anarkali Bazar. No occurrence of attempted murder took place in the Bazar on the said day.

14. Dr. Abid Karim, D.W.7 had medically examined Mehmood Ali accused, since acquitted and had found five injuries on his person on 27‑5‑1996 and produced correct photostat copy of his report Exh.D.A.A. Salauddin D.W.8 stated that on 23‑4‑1990 he was on duty as Parchi Clerk, Emergency Ward,, Mayo Hospital, Lahore while at 2‑40 p.m. Muhammad Ashraf (accused) brought dead body of Muhammad Akbar his brother in a wagon in an Emergency Ward. There was a great rush. Some persons came there. I heard report of firing. People ran away. One man had fallen on the ground lying dead and a pistol was lying near him at a distance of about 6 inches from his body. Two empties were also lying there. Ashraf accused was holding a rifle. S.H.O. on duty arrested him. Muhammad Jehangir, H.C. D.W.9 had brought the original register of F.I.R. No.31/91 Police Station Yakki Gate, Lahore and placed on record attested copy of the F.I.R. Exh. DBB and copy of schedule thereof Exh. DBB/1. Shah Nawaz D.W.10 stated that about four years ago he was working as a driver at Route No.34 from Railway Station, Lahore to Chungi Amer Sadhu. It was about 2 p.m. and his wagon stopped near the Railway Station when Muhammad Ashraf accused present in Court alongwith a woman brought an injured person who had received bullet injury and put him in his wagon in injured condition in order to take him to the Mayo Hospital. It took about 32 to 40 minutes to reach the Emergency Ward. When the injured man was being brought out of the wagon three persons came there from the front side. One of them was armed with a pistol and the other two were armed with Klashnikov. They started firing with their weapons. Muhammad Ashraf accused brought out a gun and fired, as a result of which one of the assailants received injury on his front chest. He also received an injury on the back of his head from his own companions who were firing and running at that time. The police reached within two to 4 minutes. The police had taken a pistol from the hand of the said deceased person and also took up empties from near him. Javed Anwar D.W. 11 stated that his brother‑in‑law Asghar was injured in a fight between him and Hamayun Khan. On 27‑5‑1986 Asghar was injured and a case under section 302, P.P.C. was registered at Police Station Naulakha against Hamayun Khan. At about 7 p.m. Hamayun Khan and three others committed the murder of Asgher Ali and Babu Din, Bashir Pehlwan and Mehmood Ali accused were also injured. The accused in the case absconded. Muhammad Akbar, the elder brother of Asghar deceased was pursuing the said case, whereas absconder Hamayun Khan etc. were dissuading but Akbar did not agree and on 23‑4‑1990 at about 2‑00 p.m. Shahid Parvaiz, Hamayun Khan, and Zahid Parvaiz injured Akbar by fire‑arm. On hearing the reports of firing he, Muhammad Ashraf and Muhammad Aslam reached at the spot. They put Akbar in a wagon and took him to Mayo Hospital. Muhammad Akbar expired on way to the hospital. They were taking out the dead body from the wagon at Emergency Ward, Mayo Hospital when Shahid Pervaiz deceased armed with pistol and his two brothers Hamayun Khan and Zahid Khan armed with Klashnikovs reached there and started firing. Ashraf brought a gun out of the wagon which he had brought from his house. It was a licensed gun of Muhammad Ashraf. Muhammad Ashraf fired a shot with his gun hitting Shahid Pervaiz in his chest. His two companions were firing while running and a bullet hit at the back of neck of Shahid Parvaiz, deceased and he fell down on the ground and died there. The Incharge of the Police Post reached and took into possession pistol from the hands of Shahid, unloaded the same and three bullets were removed from the magazine. Two empties were also taken into possession from the place of occurrence. Statement of Muhammad Ashraf accused was recorded ‑by S.I. against Hamayun Khan, Zahid Khan etc. and a case was registered under section 307, P.P.C. S.P.City and D.S.P., Old Anarkali also came there. The occurrence was witnessed by Salauddin, Parchi Clerk, Ehsan Ahmad, Ward Attending, Ashraf and one Mushtaq. Naseer‑ud‑Din and Shah Nawaz, driver of the wagon had also seen the occurrence. The accused in the case were very rich and influential persons. They got the case registered under the orders of the High Court against Muhammad Ashraf, Muhammad Aslam at Police Station Gowalmandi and P.S.New Anarkali by fabricating a false version and got the investigation transferred to Malik Abbas, Inspector who was staff officer to A.S.P., Nawan Kot. The said Inspector caused the disappearance of the evidence of his witnesses in the case got the same cancelled. He fabricated false record and challaned the accused. He instituted a private complaint. The said complaint remained pending in Court and thereafter it was transferred in the Sessions Court and thereafter was transferred to Judge, Special Court of Suppression of Terrorist Activities and the next date of hearing was fixed as 1‑12‑1994. He placed on file certified copy of the complaint Exh. D.C.C. and copies of interim orders Exh. DD/1‑

2. The defence evidence was closed thereafter.

15. I have heard the learned counsel for the appellant as also learned counsel appearing on behalf of the State and have given my anxious thought to the arguments addressed. The learned counsel for the appellant took me through the evidence and submitted that there was a delay of 16 days in lodging the F.I.R. and that the complainant side had fabricated the story and got the direction from the High Court and misusing the direction from the High Court, the Investigating Officers in a mala fide manner cancelled F.I.R. No.161/90 P. S. Gowalmandi which was the first version of the occurrence of the murder of Shahid Parvaiz recorded within minutes of the occurrence, and proceeded to put in the challan in both the cases recorded under the directions of the High Court. He further submitted that Muhammad Akbar, the real brother of the appellant was murdered some 30/40 minutes before the present occurrence and F.I.R. No.148/90 was registered at P.S. Naulakha on the same day and Shahid Parvaiz was named as one of the accused persons in the F.I.R. Exh. DM and that the appellant was present in the hospital with the dead body of his brother Muhammad Akbar and that the version of the appellant was duly supported by the copies of F. I. R. No. 143/90 at P. S.Naulakha and copy of F. I. R. No.161/90 P.S. Gowalmandi, Lahore. He further submitted that the investigation was conducted in a mala fide manner and Inspector P.W., Malik Abbas Khan P.W.19, the staff officer of A.S.P. conducted the same in the name of A.S.P. the gazetted police officer and caused the disappearance of the evidence supporting the first version of the occurrence recorded in F. I. R. No. 161/90. He also stated that the appellant had taken up the plea of right of self‑defence of person and was fully protected by sections 100 and 102, P.P.C. because his brother Muhammad Akbar had already been murdered and there was a serious apprehension of danger to his life and to the lives of his companions present in the Emergency Ward and that the appellant had not exceeded his right as he fired only one shot. He was the judge of his own danger and could not be modulated step by step nor it could be weighed in golden scales. He further stated that no independent person had come forward to support the prosecution case and the first informant Muhammad Qadeer P.W.4 was the personal servant of Hamayun Khan who was involved in selling narcotics with his master, and that he was not supported by any independent source and was rather falsified by the circumstances and the medical evidence. The learned counsel appearing on behalf of the State supported the judgment under appeal.

16. It was a case of two versions. One version came through Muhammad Ashraf appellant at the earliest, immediately after the occurrence at Emergency Ward, Mayo Hospital, Lahore. The said version was recorded by Muhammad Yousaf, S.I. P.W.9 and was registered as F.I.R. No.161/90 at Police Station Gowalmandi under section 307/34, P.P.C. on 23‑4‑1990 whereas F.I.R. No.95/90 was registered at P.S. New Anarkali, Lahore and F.I.R. No.185/90 at P. S. Gowalmandi, Lahore on 9‑5‑1990 under the directions of the High Court. It was admitted by P.W.16 Alamdar Hussain, Inspector that none from the complainant party had appeared before him to lodge an F.I.R. from 23‑4‑1990 to 9‑5‑1990. He also admitted that prior to the making of application Exh. P.C., no application was received by him from the complainant side and therefore, the delay in registration of the case from 23‑4‑1990 to 9‑5‑1990 was not properly explained, leading to inference of doubt about its correctness.

17. F.I.R. No.143/90 was registered at Police Station Naulakha on the basis of statement made by Mst. Shahida wife of Muhammad Akbar deceased at 2‑30 p.m. The time of occurrence was 2 p.m., half an hour before the alleged occurrence of attempted murder wherein the occurrence of the death of Muhammad Akbar, real brother of the appellant was not even on 9‑5‑1990 mentioned. Shahid Parvaiz was mentioned as one of the accused in case F.I.R. No.143/90 P. S. Naulakha and I am convinced with the story of the prosecution as stated in Exh. P.C. Exh. P.D. of Police Station New Anarkali, Lahore and P.S. Gowalmandi, Lahore respectively was an afterthought and was a fabrication.

18. The appellant had taken the plea of self‑defence. His brother Muhammad Akbar was murdered at about 2 p.m. His dead body was lying in the emergency and as narrated in the first version Exh.DH he was present near the dead body and of course was in a great state of mental shock when the deceased and his accomplices allegedly came to the Emergency of Mayo Hospital, Lahore to verify if Akbar Ali was still alive and had opened fire at Muhammad Ashraf, the real brother of Muhammad Akbar who was done to death half an hour earlier. It shall not be out of place to mention here that the appellant had already lost a brother named Asghar about whose death F.I.R. Exh.D.I had been registered at P.S. Naulakha on 27‑5‑1986 and who was himself a complainant in F.I.R. Exh.D.I registered on 1‑9‑1985 under section 307/148/149 P.P.C. against Hamayun Khan and Zahid Khan, the real brothers of Shahid Parvaiz, deceased. The appellant in the circumstances was justified in apprehending great danger to his person and death could have been the result had he not acted in self‑defence. The appellant was the judge of the extent of danger to his person and had the act of initial aggression emanating from the side of the complainant party in causing the death of Muhammad Akbar, the real brother of the appellant and their coming to the Emergency Ward of Mayo Hospital his conduct cannot be weighed in golden scales. Sufficient evidence has been led by the appellant in support of his plea of self‑defence, which of course, was the first version of the occurrence duty recorded by a police officer and registered as F.I.R. No.161/90 Exh.P.H. and further corroborated report of S.P. Technical Services, Lahore which was received by P.W.9 in connection with the investigation of F.I.R. No.161/90 Exh. P.H. and was brought on the file b) the defence as Exh. D. E.

19. Muhammad Yousaf P.W.9 who had recorded the statement of the appellant which was brought on file as Exh.D.H. had taken into possession .12 bore gun P.3 and cartridges P.4 and an empty from the possession of Muhammad Ashraf appellant and secured the same vide memo. Exh. P. F which was subscribed as marginal witnesses by Salauddin P.W.8 and Ehsan P.W. (given up). He had also prepared the Inquest Report Exh.D.G. and injury statement Exh.P.H. of Shahid Pervaiz and had sent the dead body to the mortuary for post‑mortem Examination under the escort of Khalid Parvaiz and Muhammad Masood, Constables. He had also made applications Exh.P.l and P.J. and had got a case under Arms Ordinance registered against the appellant. He had also recovered .32 bore pistol P.6, 3 live bullets P.7/1‑3 and two empties P.8/1‑3 from near the dead body of Shahid Parvaiz, sealed and secured vide memo Exh.P.K.

20. Strangely enough P.W.9 was declared hostile at the instance of D.D.A. and at the insistence of the learned counsel for the complainant by the trial Court. This order of the trial, Court was perverse and made on foolish request of D.D.A. and had caused prejudice to the accused persons. It was the duty of the Public Prosecutor to place all the facts relevant to the case before the Court and it was the duty of the Court to sift the grain from the chaff. Reckless declaring P.W.9 as hostile by the D.D.A. and having been so held by the trial Judge would not make any difference for the purpose of appreciation of evidence. If his evidence was to be excluded from consideration, due to his being hostile Witness, then the whole of his statement has to be excluded and the prosecution shall be deprived of the benefit of recovery of gun P.3, cartridges P.4 and empty P. 5 and pistol P. 6, three bullets P.7/1‑2, 2 crime empties P.8/1‑2 from near the dead body and all steps taken in investigation by the said P.W. The Court could not read the extent of a statement acceptable to the learned counsel appearing on behalf of the complainant and discard such part thereof which was not favouring the story of the complainant. The prosecution would be left with nothing except the recovery of blood‑stained carton P.2 and also mauzer P.1 from Mehmood Ali who had been acquitted All the circumstances reflect upon the prosecution case, and I am of the view that the prosecution has failed to prove its case beyond reasonable doubt. If authority be needed Muhammad Adam and others v. The State 1988 SCMR 940, Masood Anwar v. The State 1994 SCMR 6 and Guloo alias Gul Muhammad v. The State 1994 PCr.L1 1631 can be relied upon, and in view of the same the appellant is entitled to the benefit of doubt. Reliance is placed on Abdur Rashid v. Amid Ali and others PLD 1975 SC 77, Nawaz Ali and another v. The State 1981 SCMR 132, Ahmad etc. v. The State 1982 SCMR 1049, Abdul Ghafoor v. The State 1982 SCMR 162 and Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292.

21. Notwithstanding the fact that as held supra the appellant was entitled to the benefit of doubt the Court is also obliged to look into the defence plea taken by the appellant. He took the plea of self‑defence of his person and it is to be seen whether the Exception mentioned in section 100, P.P.C. was available to the appellant or not. The plea of the appellant, for proper appreciation, is to be put in juxtaposition of the prosecution story. The prosecution failed to prove its case beyond all reasonable doubts. In any case the plea of the appellant as against the story of the prosecution was more plausible. The appellant whose two brothers Asghar and Akbar had already been murdered by the complainant party had naturally apprehended danger to his life when the deceased and others appeared in the Emergency of Mayo Hospital, Lahore and started firing. A pistol and two empties were recovered from near the deceased and in such a situation the extent of apprehension of the appellant cannot be weighed in golden scale and it was so held in Ghulam Murtaza v. The State 1993 PCr. LJ 1646 and while deciding the said case their lordships of the Supreme Court were of the view that the version of the accused was to be accepted if the same appears to be reasonably possible in the circumstances of the case. In yet another case the death of two persons has been caused who were near or around his father, who had admittedly come there, their lordships in the Supreme Court accepted the plea of self‑defence of the person of the father of the appellant and had acquitted the appellant by accepting the plea. The said case is reported as Liaqat v. The State 1994 SCMR 1161. Reference may also be made to Jamal Din's case 1971 SCMR 800 and Shameer alias Shaila v. The State PLD 1958 SC (Pak.) 242 and I accept the plea of the learned counsel for the appellant that the appellant exercised this right of self‑defence as available to him under the law and had not exceeded reasonable limits.

22. In view of what has been discussed above the appeal of the appellant is accepted. The conviction recorded against him by Additional Sessions Judge, Lahore in the impugned judgment dated 26‑3‑1995 is set aside and he is acquitted. He shall be released forthwith if not required in any other case. N.H.Q./M‑83/L Appeal accepted.