' This judgment will dispose of Criminal Appeal No,372 of 2003 filed by. Muhammad Khalid and Shahid Qayyum, appellants who were convicted under section 302(c) read with section 34, P.P.C.
And sentenced to undergo R.I. For 10 years and to pay compensation to the tune of Rs,50,000 each in default six months' R.I. With the benefit of section 382-B, Cr.P.C., by learned Additional Sessions Judge; Faisalabad vide judgment dated 28-2-2003.
' Criminal Revision No,311 of 2003 filed by the complainant shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on 9-7-2002 at about 9-00 a.m. When the complainant along with Muhammad Nazir and Muhammad Hanif were working in their fields in Square No,5, Killa No,14, all of a sudden Shahid Qayyum, Muhammad Khalid both real brothers inter se armed with iron pipes and Saeed armed'with Sota came there. Muhammad Khalid raised Lalkara to teach a lesson to the complainant party to purchase the land and simultaneously Shahid Qayyum inflicted blow with iron pipe hitting on the head of Muhammad' Nazir, brother of the complainant, who fell down. When Muhammad Nazir was on the ground, Muhammad Khalid gave a blow with iron pipe, which landed on the left -side of forehead of Muhammad Nazir. A Sota blow was also caused by Saeed Ahmed which landed on the right eye of Muhammad Nazir. When Muhammad Hanif along with complainant stepped forwarded to rescue Muhammad Nazir, Muhammad Khalid accused inflicted iron pipe blow on the right wrist of Hanif P.W. Whereas accused Shahid Qayyum inflicted iron pipe blow hitting near the left elbow of Hanif P.W. Upon raising alarm of the complainant etc. P.W. Shahid Hameed son of Abdul Hameed and Muhammad Akram son of Saif-ur-Rehman also attracted to the spot and witnessed the occurrence and accused persons mentioned above made good their escape.
' The motive behind the occurrence as stated by the complainant was that father of Muhammad Nazir, etc. Had purchased agricultural land from Mst. Salma Bibi widow of Abdul Sattar, the said Salma Bibi had also delivered the possession of the land to the complainant party, which the accused deeply felt and due to this grudge accused persons Khalid, Shahid and Saeed on the abetment of their co-accused Muhammad Sharif committed the occurrence.
3. Investigation of the case was taken over by Wali Muhammad, S.-I., P.W.11, He, after sending the complaint Exh.P.D. To police station for registration of the formal F.I.R., prepared injury statement Exh.P.K. And inquest reports Exh.P.L. From the spot, he on 10-7-2002 took into possession blood- stained earth vide memo. Exh.P.E. Muhammad Khalid Shahid Qayyum and Saeed Ahmad accused were arrested on 14-7-2002. Khalid accused while in police custody on 18-7-2002 got recovered iron pipe Exh.P.3 which was taken into possession vide memo. Exh.P.F. On the, same day Saeed accused got recovered Sota which was secured vide memo. Exh.P.G. Similarly on the same day Shahid Qayyum led to the recovery of iron pipe Exh.P.5 which was taken into possession vide memo. Exh.P.H. Muhammad Sharif accused was arrested on 2-8-2002. After completion of the remaining formal investigation, Khalid Shahid Qayyum and Muhammad Sharif accused came to face the trial.
' At the trial prosecution in order to prove his case produced eleven witnesses in all. Then the learned A.D.A. Tendered in evidence the reports of the Chemical Examiner and that of the Serologist, Exh.P.R. To Exh.P.Y. Respectively. Statements of the accused were recorded under section 342, Cr.P.C'. In which they pleaded right of self-defence. After conclusion of the trial acquitted Saeed Ahmed and Muhammad Sharif accused while the remaining two accused Muhammad Khalid and Shahid Qayyum were convicted and sentenced as stated above.
4. Learned counsel for the appellant after having read the prosecution evidence and other material available on record submits that it was a case of self-defence which was pleaded by the appellant from the very first day. Further submits that trial Court has admitted in the impugned judgment that it was a case of right of self-defence but the accused had exceeded the said right, which according to learned counsel, is not correct in the facts and circumstances of the case. Elaborating his arguments, learned counsel submits that the number of injuries on the persons of the accused- party is greater than the deceased and injured Muhammad Hanif. Adds that injuries of Muhammad Hanif injured/P.W, were result of scuffle, as held by the learned trial Court. It is submitted that injuries on the persons of the accused party were not explained in the F.I.R.
Concluding his arguments learned counsel submits that in fact it was a clear cut case of right of self-defence and the appellants are entitled to clean acquittal.
5. On the other hand learned counsel for the complainant who has also filed criminal revision submits that the place of occurrence is land of the deceased and the complainant-party which fact has been proved by site plan prepared by the Draftsman and the Patwari. Further submits that the occurrence took place in Killa No,14 which land was originally owned by the complainant-party.
Adds that the possession of the disputed land of 1 Kanal, 1 Marla was ordered by the Tehsildar on 26-6-2000, mutation was sanctioned on 29-6-2002 while the occurrence was taken place on 9-7- 2000 so the assertion of the appellant is false. Further adds that injuries on the persons of the appellant are abrasion and contusion and as far as lacerated wounds are concerned those are 1 c.m. x 1/2 c.m. Which could not have been caused by iron pipe. Learned counsel submits that nothing has been recovered either from Muhammad Nazir or Muhammad Hanif injured/P.W.
According to learned presence of the injured/P.W. Is not disputed and so is the occurrence. It is argued that the weapons of offence recovered on the pointation of the appellants were found to be stained with human blood as per reports of the Serologist. As to plea of right of self-defence by the appellants, learned counsel submitsthat no specific role and specific injuries were explained either in cross-examination or in statements under section 342, Cr.P.C. And the accused persons also did not appear to make statement under section 340(2), Cr.P.C. It is further submitted that in case of plea of right of self-defence, the onus shifts to the accused to prove the same and to simply say that he was also injured in the same occurrence would not be sufficient to discharge the onus.
6. Learned counsel for the State adopts the arguments advanced by the learned counsel for the complainant.
7. I have heard learned counsel for the parties at length and have gone through the record.
Criminal Appeal No,550 of 2003 filed by the complainant against the acquittal of convict appellants under section 302/34, P.P.C. Was dismissed by a Division Bench of this Court vide order, dated 24-6-2003 holding that the learned trial Court has disbelieved the ocular account, recovery, motive and had also stated that there were sixteen injuries received by three accused persons which was suppressed by the prosecution.
' There were only five injuries on the persons of the complainant party while there were sixteen injuries in number on the persons of the appellants. The injuries on the persons of the appellant party were suppressed in the F.I.R. As also before the learned trial Court. A party having approached the Court with unclean hands and infamy on his lips is A not entitled to any relief. The appellants were examined on the day of occurrence after medical examination of Muhammad Nazir who died later on and by Dr. Muhammad Ayub, P.W.2, Exh.D.A. To Exh.D.C. Are the MLRs, of three injured accused. I have gone through these MLRs, Some of the injures on the persons of the accused are on head and X-ray was advised. To say that these injuries were minor in nature is incorrect. So it can safely be held that it was, the appellants who were aggressed by the complainant-party. The trial Court has also come to the conclusion that it was a case of right of self-defence but the accused exceeded the said right. The number and seat of injuries on the persons of the accused clearly demonstrate that the appellants acted in right of self-defence and did not exceed the same.
' It is duty of the prosecution to prove its case and not the accused persons. The appellants in their statements under section 342(2), Cr.P.C. Have stated that they were aggressed by the other party which, was sufficient to prove their defence.
8. The injuries being more in number on the persons of the accused as compared to the complainant-party, some of the injuries being on the head of the accused and advised X-ray, and the fact that the accused were examined by the doctor who examined the injured/P. W. And Nazir, who later on died, on the day of occurrence and the injuries on the persons of the accused having been suppressed by the prosecution in the F.I.R. As also before the trial Court, I am of the considered opinion that the appellants acted in self-defence and did not exceed the same and it was rightly pleaded by the appellants before the learned trial Court. Resultantly criminal appeal filed by the convict appellant is accepted, conviction and sentence recorded against them by the learned trial Court is set aside and they are acquitted of the charge. All the appellants are in jail.
They shall be released forthwith, if not required to be detained in any other case.
' Criminal Revision filed by the complainant is dismissed.