' ASIF SAEED KHAN KHOSA, J.--- Umar Hayat appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 20-2-1998 handed down by the learned Additional Sessions Judge, Mandi Bahauddin and was sentenced to death and to pay a sum of Rs,20,000 to the heirs of Muhammad Riaz deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. Soeni and Gahra appellants were also convicted' by the learned trial Court for an offence under section 324, P1P.C. And were sentenced to rigorous imprisonment for ten years each and a fine of Rs,10,000 each or in default of payment thereof to undergo rigorous imprisonment for two years each. They were also convicted for an offence under section 337-F(iii), P.P.C. And were sentenced to rigorous imprisonment for three years each and to pay a sum of Rs,10,000 each to the injured victims namely Muhammad Nawaz and Ataullah respectively or in default of payment thereof to suffer simple imprisonment till payment of that amount. The learned trial Court had also convicted Khizar Hayat appellant for an offence under section 337-A(ii), P.P.C. And had sentenced him to rigorous imprisonment for four years and to pay a sum of Rs,10,000 by way of Arsh to the injured victim namely Umar Hayat or in default thereof to suffer simple imprisonment till payment of that amount. Through the same judgment the learned trial Court had also convicted Muhammad Khan appellant for an offence under section 337-F(iii), P.P.C. And had sentenced him to rigorous imprisonment for two years and to pay a sum of Rs,2,000 by way of Daman to the injured victim namely Khizar Hayat or in default of payment thereof to suffer simple imprisonment till payment of that amount. The appellants were extended the benefit under section 382-B, Cr.P.C. All the appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,153 of 1998. Umar Hayat complainant has also filed Criminal Appeal No,861 of 1998 before this Court assailing acquittal of four of the above mentioned appellants from the charge under sections 302/149 and 148/149, P.P.C.
We have heard both these appeals alongwith Murder Reference No,137 of 1998 seeking confirmation of the sentence of death passed against Umar Hayat appellant and we propose to decide all these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Umar Hayat complainant was a resident of a village known as Rukan situated within the area of Police Station, Malikwal, District Gujrat and his Dera was situated about one mile away towards the west of the said village. At about 11/12-00 a.m.
On 18-9-1991 the complainant and his son namely Muhammad Nawaz alongwith the complainant's nephew namely Muhammad Riaz were cutting fodder for their cattle at a place situated towards the north of the complainant's Dera when suddenly Umar Hayat, Soeni and Gahra appellants armed with a gun each, Muhammad Khan appellant armed with a Sota and Khizar Hayat appellant armed with a hatchet emerged there from a sugarcane crop while raising Lalkaras and launched an assault upon the complainant party. Umar Hayat appellant fired a shot from his gun which hit the complainant's nephew namely Muhammad Riaz at the left side of his chest and upon receipt of that injury the said Muhammad Riaz fell on the ground and died at the spot. The second shot was fired by Soeni appellant hitting the complainant's son namely Muhammad Nawaz at his right shoulder. The hue and cry raised by the complainant attracted two witnesses namely Ataullah and Khizar Hayat to the spot whereupon Gahra appellant fired at Ataullah hitting him at the right side of his chest and he too fell down upon receipt of that injury. Khizar Hayat appellant gave blows from his hatchet to the complainant at the latter's left side of the head and right side of his back. Upon receipt of 'those injuries the complainant also fell down. Muhammad Khan, appellant then gave a Sota blow on the left shoulder of Khizar Hayat whereafter all the appellants decamped from the spot while raising Lalkaras. The motive set up in the F.I.R. Was that about one year ago the complainant's son namely Muhammad Nawaz was injured by the present appellants and a criminal case in that regard was pending at the relevant time. Leaving the dead body of Muhammad Riaz at the Spot in the care of Khizar Hayat and Muhammad Nawaz P.Ws. The complainant left for reporting the matter to the police. F.I.R. No,254 was registered at Police Station Malikwal, District Gujrat at 2-10 p.m. On the same day, i.e, 18-9-1991 at the instance of Umar Hayat complainant for offences under sections 148/302/324/149, P.P.C.
3. The investigation of this case was conducted by Muhammad Saleem, Inspector (P.W.11) who got the dead body of Muhammad Riaz subject to post-mortem examination, got the injured witnesses medically examined, arrested the appellants, effected recoveries from them and thereafter completed the investigation and submitted a challan.
4. At the commencement of the trial the learned trial Court framed a charge with five heads under sections 148, 302/149, 324/149, 324/149 and 324/149, P.P.C. Against the appellants to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced twelve witnesses in support of its case against the appellants. Umar Hayat complainant (P.W.2), Muhammad Nawaz (P.W.6) and Khizar Hayat (P. W.7) furnished the ocular account of the incident in question and also deposed about the motive. Umar Hayat (P.W.8) stated about the recoveries allegedly effected from the possession of the appellants during the investigation of this case. Dr. Manzoor Rasool (P.W.3), Dr. Masud Ansir (P.W.4) and Dr. Shafique Ahmad (P.W.5) provided the medical evidence. Muhammad Saleem, Inspector (P.W.11) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
While answering Question No,8 Umar Hayat appellant had maintained as follows:-- "The actual story is that on the day of occurrence Ghara son of Khan, Umar Hayat son of Soeni, Soeni son of Murad, Muhammad Khan son of Soeni, Khizar Hayat son of Soeni were coming back towards their Dera after offering Fatiah of one of their relatives namely Bakar son of Jalla from village Daffar and when they reached near the Dera of Riaz son of Muhammad Hayat deceased Muhammad Nawaz son of Umar Hayat, Imtiaz son of Omar Hayat, Umar Hayat son of Shera, Khizer Hayat son of Muhammad Hayat. Sakandar son of Muhammad Hayat. Ghulam Haider son of Muhammad Yar, Ghulam Abbas son of Muhammad Yar and Atta Ullah son of Ashraf while armed with guns, hatchets and Sotas emerged from the sugarcane field and attacked on us and caused injuries to Soeni, Muhammad Khan and Ghara accused. During this scuffle the injured from the complainant party also got injuries and while seeing the lives of Ghara, Soeni and Muhammad Khan in danger Mansha fired on the complainant party and resultantly Riaz deceased was injured and died."
' All the other appellants had also made statements before the learned trial Court on the same lines The appellants, however, opted not to make any statement on oath under section 340(2). Cr.
P.C. And they also did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, they were convicted and sentenced as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the convicts-appellants, the learned counsel for the complainant and the learned Assistant Advocate-General appearing on behalf of the State and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the convicts-appellants that the prosecution had suppressed the real facts of this case and that the defence version regarding exercise of right of private defence by the appellants was nearer the truth and, thus, the same merited acceptance. As against that the learned counsel for the complainant as well as the learned Assistant Advocate-General appearing on behalf of the State have maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt. The learned counsel for the complainant has further maintained that the learned trial Court had not recorded any cogent reason for not convicting the appellants other than Umar Hayat appellant for the offences of murder and rioting. -
9. After hearing the learned counsel for the parties and going through the record we have noticed that the date, time and place of occurrence in this case are not in dispute between the parties and even presence and participation of the appellants in the occurrence in hand has not been disputed by the defence. As is evident from the stand taken by the appellants in their statements recorded under section 342, Cr.P.C. The appellants had taken up a plea of exercise of their right of private defence. In this view of the admitted position there is no need to discuss any other aspect of this case in any detail. What is of critical importance in this context is that it is available on the record that in the same occurrence Soeni, Gahra and Muhammad Khan appellants had also sustained as many as twelve injuries on their persons, including some on vital parts of their bodies, and these appellants were got medically examined by the local police itself from Dr. Manzoor Rasool (P.W.3) within a matter of hours after the present occurrence. We have found it to be quite A unfortunate that no mention of the said sustaining of injuries by the above-mentioned three appellants had been made by the complainant in the F.I.R. Lodged by him in respect of that incident. The said crucial fact had surely been completely suppressed by the complainant in the F.I.R. And also by the other eye-witnesses in their statements recorded under section 161, Cr.P.C.
However, during the trial Umar Hayat complainant (P.W.2) had made a belated and probably dishonest attempt to explain the said injuries sustained by the above mentioned appellants by maintaining that the complainant party, after it had been assaulted upon by the appellants, had hurled brick-bats and stones available at the spot at the appellants resulting into sustaining of some injuries by the said appellants. This stand taken by the complainant was, however, belied and contradicted by Muhammad Nawaz (P.W.6) when he maintained before the learned trial Court that no brick-bat or stone was available at the spot and that the complainant party had only thrown some pieces of Katcha earth at the appellants. Khizar Hayat (P.W.7) had apparently tried to reconcile the conflicting statements made in this regard by Umar Hayat complainant (P.W.2) and Muhammad Nawaz (P.W.6) by maintaining before the learned trial Court that as a matter of fact both Katcha and Pacca earth had been thrown by the complainant party at the appellants resulting into sustaining of injuries by the above mentioned appellants. Such a belated, feeble and contradictory attempt made by the prosecution witnesses to explain the injuries sustained by as many as three appellants in this case has been found by us to be highly suspicious, untrustworthy and utterly insufficient. As if this was not enough. Muhammad Saleem, Inspector (P.W.11), the Investigating Officer, had tried to be more loyal to the complainant party than the latter itself and had depicted no regard for truth because in his statement made before the learned trial Court he made no mention whatsoever of any injury having been sustained by any of the appellants and also completely suppressed the fact that it was the local police itself which had got three of the appellants medically examined for the injuries sustained by them in the same occurrence.
Suppression of this critical fact by the Investigating Officer has not only convinced us that the said officer had no regard for truth but also that the investigation conducted by him could not have been fair, impartial and even handed.
10. Apart from what has been observed above the claimed possession of the place of occurrence by the complainant party had been put in some doubt by Zia-ul-Haq, Patwari (P.W.1) and it is also available on the record that the place where this occurrence had taken place was not far away from the Dera of the appellants. In these circumstances the claim of the appellants that they were, at the relevant time, returning peacefully to their own Dera when they ambushed and assaulted upon by the complainant party is a claim which cannot be rejected outrightly. In this context we have also appreciated that the appellants were allegedly armed with firearms besides a hatchet and a Sota whereas the injuries sustained by the above mentioned three appellants had been caused by blunt weapons. It is well nigh inconceivable that it was after the use of fire-arms by the appellants that the complainant party gathered the courage to retaliate by inflicting blunt weapons injuries upon the accused party. On the other hand it is more believable that an assault by the complainant party upon the appellants within blunt weapons met a response from the appellants' side by use of fire-arms, etc. This consideration also points towards the appellants' stand regarding exercise of right of private defence by them to be more plausible.
11. For what has been discussed above we have felt convinced that correctness of the defence version in this case was reasonably possible and also that by suppressing the relevant information in that regard by the complainant party the latter had tried to conceal the real facts of this case. In these circumstances the appellants are entitled to be extended the benefit of doubt. Consequently Criminal Appeal No,153 of 1998 is hereby allowed, the convictions and sentences of all the five convicts-appellants recorded by the learned trial Court are set aside and the said appellants are acquitted of the charge. They shall be released from the jail forthwith if not required in any other case. Resultantly Criminal Appeal No,861 of 1998 filed before this Court by the complainant is dismissed.
12. Murder Reference No,137 of 1998 is answered in the negative and the sentence of death passed against Umar Hayat appellant by the learned trial Court is not confirmed.
' Death sentence set aside/Acquittal ordered.