' This judgment shall dispose of Crl. Appeal No,101 of 1992 (Muhammad Aslam etc. v. The State) and Crl. Appeal No,114 of 1992 (Muhammad Yousaf v. The State) as they arise of the same impugned judgment dated 8-4-1992 passed by the learned Additional Sessions Judge, Sahiwal whereby appellants in both the above appeals were convicted (in the case registered vide F.I.R. No,337 of 1988 dated 16-10-1988 under sections 148, 302/149, 323/149, P.P.C., Police Station, Malka Hans, Sahiwal) and sentenced to imprisonment for life each with a further direction to pay a compensation of Rs,20,000 each in default whereof to further undergo R.I. For six months each.
Benefit of section 382-B, Cr.P.C. Was extended to them.
2. The prosecution story as given in the F.I.R. (Exh.P.A.), recorded on the statement of Muhammad Anwar (P.W.1), briefly stated is that about two years prior to the occurrence he raised four walls around the 'Ihata' measuring two Kanals comprised in North-West corner of Killa No,8 of square No,37 of Abadi Deh: that on 15-10-1988 i.e, one day prior to the occurrence Revenue Patwari demarcated the remaining land reserved for seven Marlas Scheme of the "Abadi Deh" but the land underneath his Ihata in his possession was not allotted to any one under that Scheme; that on the fateful day, at 8-00 a.m., he came to know that Ali Muhammad accused and others are demolishing the walls of his Ihata in order to take possession of it for which they were previously trying to get it allotted; that he and Muhammad Sharif (deceased), his brother went to the accused persons and stopped them from demolishing the walls but they continued demolishing the same; that they thereafter, went to the Dera of Muhammad Sharif Councilor (P.W.6) and convened a Punchayat of the respectables of the village so as to stop Ali Muhammad accused and others from demolishing the walls but the accused persons did not participate in the Panchayat; that at about 12-00 Noon he and his brother Muhammad Sharif deceased, Muhammad Ali (P.W.2), Muhammad lqbal son of Muhammad, Muhammad Bashir and Muhammad Iqbal son of Riaz P.W. (not produced) proceeded towards the aforesaid Ihata to stop Muhammad Ali and other accused persons from demolishing the walls and when reached near the Ihata, found Muhammad Yousaf accused with a .12 bore gun, Ali Muhammad, Muhammad Rafique, Bashir Ahmad, Aslam and Qasim accused armed with Sotas were present inside the Ihata; that they stopped them upon which hot words and abuses were exchanged between them; that Muhammad Sharif deceased his brother and Muhammad Rafique accused when started quarrelling, Muhammad Yousaf accused fired a shot of .12 bore gun hitting Muhammad Sharif deceased at his back who fell down on the ground; that Muhammad Rafique accused thereupon gaveSota blow on his head while he was lay on the ground; that Muhammad Yousaf and his co-accused also attacked upon them with "Lathis" and they in order to save their lives caused injuries to Muhammad Rafique, Aslam and Qasim accused with "Sotas", that in that struggle, the supporting wooden piece of gun (Chapti) of Muhammad Yousaf accused was broken; that the said Yousaf, thereafter, ran away but when reached in the "Bazaar" near the house of Muhammad Ramzan (P.W.3), Muhammad Iqbal son of Riaz and Muhammad Iqbal son of Muhammad Sharif P.W. (both not produced) while chasing him over- powered him and inflicted "Sota" blows to him; that they also snatched gun from him; that Muhammad Ali (P.W.2) his brother, who was also coming behind him, captured Ali Muhammad accused and gave injuries to them with "Sota"; that in the meanwhile, Allah Yar accused armed with .12 bore gun arrived there and while standing in the "Chowk" resorted to firing in the air; that Muhammad Sharif deceased, his brother, succumbed to the injuries at the spot; that, according to the prosecution case, the occurrence was witnessed by him and his companions referred to above; that the complainant, Muhammad Iqbal son of Muhammad Sharif and Bahsir P.Ws. (both not produced) were left near the dead body to keep guard while the complainant himself proceeded to the Police Station, made the aforesaid statement and produced the snatched gun before Muhammad Afzal Inspector S .H .0. (P. W.14).
3. Muhammad Afzal Inspector/ S.H.O. (P.W.14) took into possession the above gun (P.1) as. Exh.P.B., took up the investigation of the case, proceeded to the spot, prepared Injury Statement (Exh.P.R.), Inquest Report (Exh.P.S.), got conducted the post-mortem examination through Muhammad Naeem F.C. (P.W.5), secured Blood-stained Earth of deceased Muhammad Sharif (Exh.PB/1) and broken wooden support of gun (Chapti) as Exh.P.C. Blood-staind earth of accused Muhammad Yousaf (Exh.P.D.) got prepared the Site Plans (Exh. P.W.14/A and B), last worn clothes (Exh.P.M.), Site- Plan produced by Draftsman as Exh.P.L, Exh.P.L./1 and Exh.P.L./2. He arrested Allah Yar accused on 25-10-1988 who led to the recovery of .12 bore gun (P.2) which was taken into possession vide Memo. Exh.P.E. Muhammad Siddique accused produced Sotas Ps.4,.6 and 5 which were taken into possession vide Memo. Exhs. P.G., P.J and P.H. Respectively. Sher Muhammad Accused produced Sota (P.7) which was taken into possession vide recovery Memo. (Exh.P.K.), Muhammad Kashamaoon brother of Muhammad Yousaf accused produced Photostat copy of Arm Licence (P.11) which was taken into possession vide Recovery Memo. (Exh.P.N.).
4. After having completed all legal formalities, Muhammad Afzal, Inspector/ S.H.O. (P.W.14) prepared the final report of the case and submitted the same in the learned trial Court to face trial in the afore-referred case.
5. The accused, when examined under section 342, Cr.P.C., denied the prosecution story and took up a specific plea of self defence while the prosecution, in order to prove its case, produced as many as fourteen witnesses.
6. Ch. Abdur Rafique, Advocate/ learned counsel for appellants Muhammad Aslam and Qasim Ali (in Criminal Appeal No,101 of 1992), seeking acquittal of the said appellants made following submissions:--
(i) That both the appellants belong to "Jhabel" caste while the complainant party and co-accused Muhammad Yousaf (appellant in Crl. A. No,114 of 1992) belong to Caste "Pahowr" family' ;
(ii) That no specific injury is attributed to Muhammad Aslam and Qasim Ali appellants;
(iii) That on the same evidence, five co-accused of the appellants have already been acquitted by the learned trial Court but the same benefit was not extended to the appellants;
(iv) That the learned trial Court has convicted and sentenced the appellants merely on the ground that they received injuries during the occurrence;
(v) That both the eye-witnesses of the occurrence are real brothers inter se, therefore, their testimony accredited with truth;
7. As none has appeared on behalf of Muhammad Yousaf appellant in Crl. Apeal No,114 of 1992 and as it is an old matter, I am not inclined to keep it pending on the list of this Court unnecessarily, therefore, in the interest of justice this Court has appointed Syed Faisal Raza Bokhari, Advocate, to represent the said Muhammad Yousaf at State Expense. In addition to the submissions made by the learned counsel for appellants Muhammad Aslam and Qasim Ali, he contended as under:--
(i) That the occurrence in this case took place in the land which was in possession of the appellant party meaning thereby that the complainant party was the aggressor one;
(ii) That Dr. Muhammad Siddique, Medical Officer has been produced by the appellants/accused as D.W.1. He medically examined Muhammad Yousaf, Muhammad Aslam and Qasim Ali appellants/ accused and found numerou's injuries on the person of Muhammad Yousaf appellant;
(iii) That actually it was a case of right of self-defence which was not exceeded by the accused party, therefore, they have committed no offence;
(iv) That in the afore-referred circumstances not only Muhammad Yousaf appellant but the other appellants as well are entitled to acquittal.
8. On the other hand, while defending the impugned judgment of conviction, learned counsel for the State submits that the Councilor who has appeared as P.W.6 had summoned the appellants in the "Punchayat" but they did not bother to go there and it was only thereafter that the complainant party had gone to the place of occurrence; that there they were attacked by the appellants/accused party resulting in death of Muhammad Sharif deceased and injuries to others and that Muhammad Yousaf appellant was apprehended in the case from Karachi after more than one year of the occurrence.
9. I have heard learned counsel for the parties, have gone through the record especially the injuries received by appellants Muhammad Yousaf, Muhammad Aslam and Qasim Ali, the statement of Muhammad Yousaf appellant made in answer to Question No,10 under section 342, Cr.P.C: and have also given anxious consideration to the submissions made at the bar.
10. From the side of the complainant party Muhammad Sharif lost his life. There are two injuries on his person. Injury No,2 is attributed to Muhammad Yousaf appellant which is on the waist while Injury No,1 is attributed to Muhammad Rafique who was neither arrested, nor challaned nor tried as, as per record, he was found innocent during the course of investigation. The other person from the complainant side, namely, Muhammad Ali P.W. Who was stated to be injured and was got medically examined, has one injury on his index-finger coupled with complain of pain on the back of neck. Dr. Muhammad Siddique (D.W.1), during cross-examination, admitted that there was possibility of causing Injury No,1 with friendly hands. Muhammad Yousaf appellant/accused received ten injuries which the said doctor found on his person which are as under:--
(i) Lacerated wound 2 c.m. x 1/4 c.m. Scalp deep on the forehead, 5 c.m. Above the left eye brow from the nearest point;
(ii) Lacerated wound 5 c.m. x 1/2 c.m. Scalp deep on the forehead, 6 c.m. Above the lateral 1/3 of left eye brow.
(iii) Lacerated wound 4 c.m. x 1/2 c.m. Scalp deep on the forehead 3-1/2 c.m. Medial to the Injury No,2.
(iv) An incised wound 1-1/2 c.m. x 1/4 c.m. Skin deep on the forehead, 5 c.m. Above the medial margin of right eye.
(v) Lacerated wound 6 c.m. x 1/2 c.m. Scalp deep on the left side of head, 7 c.m. Above the left pinna with swelling around.
(vi) Lacerated wound 5 c.m. x 1 c.m. Scalp deep on the occipit 2 c.m. Lateral to the medial 9 c.m.
From left pinna.
(vii) Incised wound 9 c.m. About 4 c.m. Deep upto scapular bone, cut margin of bone visible and palpable by the hand fingers.
(viii)An abrasion with redness 25 c.m. x 5 c.m. On the back of chest across the both upper parts of the shoulder joints from the right medial margin of scapula to the point 8 c.m. Medial from the tip of left shoulder joint.
(ix) Swelling on the upper and lower eye lids, lids severely edematous, sub-conjunctival hemorrhage thus producing the black eye.
(x) An incised wound 5-1/2 c.m. Bone deep from the middle of first pharynx of left middle finger to the lower half of palm, also incised wound in the line 2 c.m. x 1/2 c.m. Deep at the third pharynx.
Qasim Ali appellant was also medically examined. He also received following five injuries on his person:
(i) A lacerated wound 6 c.m. x 1/2 c.m. Scalp deep on the top of head, 7 c.m. Above from the mid point between two eye brows, swelling around the wound about 9 c.m. x 3 c.m.
(ii) A lacerated wound 2 c.m. x 2 c.m. Superficial on the tip of right shoulder joint.
(iii) A lacerated wound 2 c.m. x 1-1/2 c.m. Superficial at the lateral end of right clavical slight swelling around present.
(iv) Lacerated wound 8 c.m. x 3/4 c.m. Skin deep swelling around 20 c.m. x 10 c.m. At the forearm on ulnar side. In the middle half of right forearm.
(v) Swelling on the dorsum of left hand in the region of Ist and second metacarpal bones.
' Muhammad Aslam appellant received six injuries. He was also medically examined on the same day. The doctor found the following injuries on his person:--
(i) An abrasion 1 c.m. x 1/2 c.m. On right tempro-mandibular joints.
(ii) An abrasion 9 c.m. x 2 c.m. On the right arm at upper 1/3rd on front in oblique fashion downward.
(iii) An abrasion with swelling 5 c.m. x 3-1/2 c.m. On the right arm in the lower half 8 c.m. Above the elbow joint on the front.
(iv) Abrasion with swelling 2 c.m. x 2 c.m. On right elbow joint at the back.
(v) A bruise 12 c.m. x 2 c.m. On the back of left shoulder joint in the scapular region.
(vi) An abrasion 15 c.m. x 2 c.m. On the back of left shoulder at the lower margin of right scapula on oblique line.
11. Statement of Muhammad Yousaf appellant was recorded under section 342, Cr.P.C. In answer to Question No,10, while explaining the occurrence, he submitted as under:-- "Ans. I have been falsely involved in this case. We were in possession of the disputed Ihata.
Muhammad Sharif deceased and others wanted to forcibly occupy this Ihata by ousting us from there. On the day of occurrence Muhammad Sharif deceased and others came to the disputed Ihata armed with Dangs and hatchets to forcibly oust us from our Ihata. My licensed gun was there.
Muhammad Sharif deceased and others attacked me in order to forcibly occupy the said Ihata, but I resisted whereupon Muhammad Sharif deceased armed with a hatchet and others accompanying him were armed with a hatchet and Dangs. They started causing injuries to me.
' Some blows also hit on my licensed gun. I apprehending danger to my life fired a shot hitting Muhammad Sharif deceased. When Muhammad Aslam and Qasim Ali accused came for my rescue in the Ihata on my alarm, they were also belaboured with Dangs by the persons accompanying Muhammad Sharif deceased. Muhammad Sharif deceased and others accompanying him trespassed my Ihata and committed aggression. I fell unconscious at the spot.
Muhammad Anwar, Muhammad Iqbal son of Sharif, Muhammad lqbal son of Riaz, Muhammad Ali and Bashir Ahmad P. Ws. Were not present at the spot at the time of occurrence. My co-accused, namely, Allah Yar, Muhammad Siddique, Ali Muhammad and Shera were also not present at the spot at the time of occurrence. The complainant party fabricated a false story."
12. Having looked the case from every angle and having sifted grain from the chaff, I find that it is a case of two versions. The Court has to see which version is correct and near to the truth if put the same in juxta position. From the perusal of the statement of Muhammad Yousaf appellant/accused, the injuries received by the appellants and the damage caused to the complainant party, moreover the occurrence having taken place at the Ihata of the appellants party I am of the considered opinion that the version put forth by the appellants (in both the criminal appeals) seems to be near to the truth and more plausible than the version given by the prosecution. On the same set of evidence, five co-accused of the appellants have already been ,acquitted by the learned trial Court. So the result of the above discussion is that it was a case of right of self-defence which was not exceeded by the appellant party. Resultantly, both the appeals i.e, Crl. Appeal No,101 of 1992 (Muhammad Aslam etc. v. The State) and Crl. Appeal No,114 of 1992 (Muhammad Yousaf v. The State) are allowed, the impugned judgment is set aside and the appellants are acquitted of the case. They are on bail and shall be discharged from their bail/surety bonds.