1. ' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellants were tried in case F.I.R. No.29, dated 6-5-1995 registered under sections 302/324/148/149, P.P.C., at Police Station Chakrala, District Mianwali, by the Additional Sessions Judge, Mianwali who vide judgment, dated 23-10-1999 convicted and sentenced the appellants as under:-- ' Nawab, Abdul Wahab and Sher Muhammad appellants.
2. ' Under section 148, P.P.C. Each of them was sentenced to two years. R.I. Under section 302(b), P.P.C.
3. Each of them was sentenced to death for causing the murder of Ameer Abdullah and to pay compensation amounting to Rs.50,000 each as required under section 544-A, Cr.P.C. Or in default whereof to undergo six months' S.-I. Each. They were also directed to pay fine of Rs.25,000. Or in default whereof to suffer six months' S.-I. Each.
4. ' Under section 324 read with section 149, P.P.C., each of them was sentenced to Ten years R.I. Each of them was also directed to pay compensation of Rs.25,000 to Muhammad Abdullah injured P.W.
5. And Rs.50,000 to Esab Khan injured P.W. Or in default whereof each of them was ordered to undergo six months S.-I. Each of them was also directed to pay fine of Rs.10,000 or in default whereof to undergo further six months S.-I. Muhammad Yousaf, Abdul Rauf, Muhammad Hashim and Muzaffar Khan appellants ' Under sections ' 302/149, P.P.C. Each of them was sentenced to imprisonment for life and to pay compensation amounting to Rs.50,000 each to the legal heirs of the deceased or in default whereof to further suffer six months' S.-I. Each. Each of them was also directed to pay a fine of Rs.25,000 or in default whereof to suffer six months S.-I. Each.
6. ' They were also sentenced to 10 years R.I. Each under section 324 read with section 149, P.P.C. For causing injuries to Muhammad Abdullah and Eesab Khan injured P.Ws. Each of them was directed to pay compensation of Rs.25,000 to Muhammad Abdullah and Rs.50,000 to Eesab Khan injured P.Ws. Each of them was also directed to pay Rs.10,000 as fine or in default whereof to further undergo six months S.-I.
7. ' Muhammad Yousaf appellant was fUrther convicted under section 334, P.P.C. And sentenced to 10 years R.I. As well as to pay compensation of Rs.50,000 to Eesab Khan injured P.W. Or in default whereof ' to undergo six months' S.--I. He was also directed to pay RS'.10,000 as fine or in default whereof to undergo six months S.-I.
8. ' Abdul Rauf appellant was convicted under - section 334, P.P.C. And sentenced to ten years' R.I. For causing Itlaf-i-udw of Muhammad Abdul injured P.W. As well as to pay compensation amounting to. Rs.25,000 to Muhammad Abdullah or 'in default whereof to further suffer six months S.-I.
9. ' Muhammad Hashim appellant was also onvicted under section 337- A(i), P.P.C. And sentenced to one year, R.I. For causing injuries to Ghulam Muhammad P.W. As well as to pay Rs.5,000 as compensation to the injured P.W.
10. ' Muzaffar Khan appellant was further convicted under section 337-F(i), P.P.C. And sentence to one year R.I. For causing injuries to Muhammad Abdullah and Eesab Khan P.Ws.
11. ' All the said appellants were also convicted under section 148, P.P.C. And sentenced to two years RA. Each. All the sentences were ordered to run concurrently. Benefit of section 382(b). Cr.P.C. Was also extended in favour of Muhammad Yousaf, Abdul Rauf, Muhammad Hashim and Muzaffar Khan appellants.
2. Challenging their conviction and sentences the appellants' filed Criminal Appeal No.1106 of 1999 whereas the trial Court has made a reference (M .R.464/1999) 'seeking confirmation of death sentence awarded to Nawab, Abdul Wahab and Sher Muhammad. Both these matters are being disposed of together by this judgment.
3. Succinctly the prosecution case is that Ghulam Muhammad P. W.12 had agricultural land in Dhok Miaal in joint Khata with Khan Zaman and Mehar Khan sons of Shahnawaz resident of Chakrala.
12. Khan Zaman and Mehar Khan sold away the land falling in their share to Muhammad Yousaf and Sher Muhammad (accused). The said Ghulam Muhammad P.W.12 filed a suit for possession by way of pre-emption in respect of the said land which was fiXed for 8-5-1995 in the Court of Civil Judge, Mianwali. Statedly, on 6-5-1995 at about 6-30 a.m. When complainant Muhammad Abdullah along with his brothers Ameer Abdullah. Eesab Khan and his father Ghulam Muhammad were present in the house, they saw accused Muhammad Yousaf, Sher Muhammad, Muhammad Hashim, Abdul Rauf, Nawab, Muzaffar, Gul Rang and Abdul Wahab being armed with firearms riding on a tractor which was being driven by Muzaffar Khan accused, coming towards the above said land to take forcible possession of the same. The complainant party in order to stop the accused from taking over the possession also reached at the disputed land. On seeing them, the accused party started indiscriminate firing. Statedly, complainant received tire-arm injuries at the hands of Abdul Rauf accused. Ameer Abdullah (P.W.)- received fire-arm injuries at the hands of Gul Rang, Sher Muhammad, Abdul Wahab and Nawaz. Similarly, Eesab Khan P.W. Received injuries by the fires made by MUharnmad Yousaf accused, Ghulam Muhammad' P.W. (father of the complainant) was given butt blows by Muhammad Hashim accused. After receiving -the injuires the witnesses fell on the ground and thereafter Muzaffar Khan-accused caused injuries to Muhammad Abdullah and Eesab Khan P. Ws. With the butt of his gun. On hearing the noise of firing Muhammad Ashraf and Sardar Khan also came at the spot and witnessed the occurrence. After the occurrence the accused- while raising Lalkara fled away from the spot. The injured were.Removed to the hospital for medical treatment and subsequently on 29-5-1995 Ameer Abdullah succumbed to the injuries.
4. On receiving information about the said occurrence Muhammad Afzal Inspector P.W.14 reached the hospital and recorded statement Exh.PA of the complainant and on the, basis of the same formal, F.I.R. Exh. PA/1 was entered at the police station. - The said police officer also conducted the formal investigation. On 19-5-1995 he arrested Gul Rang, Muhammad Yousaf, Muhammad Hashim, Abdul. Rauf accused. On the same day all the said accused led to the recovery of:guns P.12, P.14, P.1$, and P.13 which were' taken into possession vide memo. Exh.PQ, PS, PT, PR respectively.. On' 29-5- 1995 upon the information about the 'death of Ameer Abdullah the Investigating Officer procured Death Certificate Exh.PDD. He also prepared necessary documents i.e. Injury statement Exh.P.O. And inquest report Exh.PP and sent the dead body to mortuary for postmortem examination. On 14-6- 1995 accused Muzaffar Khan was also arrested and at his instance tractor along with the registration book .Was taken into possession vide memo. Exh,PH. Finally after complying with all the legal formalities challan was submitted before the trial Court where prosecution produced 'fourteens, witnesses to prove its case.
13. ' Samiullah F.C. P.W.1 took the parcel (case property) to the office of Chemical Examiner and delivered the same intact. Falak Sher Moharrir P.W.2 entered the formal. F.I.R. Exh.PA/1. He also kept the, parcels in the. Mallthana for safe custody. Muhammad Anwar F.C. P.W.3 took the dead body to the mortuary for post-mortem examination and after the same produced- last-worn clothes of the deceased before the Investigating Officer. Muhammad Ratnzan Patwari P.W.4 prepared the scaled site-plan Exh.P.C. And PC/1. Dost Muhammad P.W.5 produced blood-stained clothes of the injured witnesses before the Investigating Officer. Muhammad Khan P.W.6 identified the dead body at the time of, post-mortem examination. He also witnessed the recovery of tractor along with registration book at the instance 'of Muzaffar Khan accused.
14. ' Dr. Malik Pahangir P.W.7 inedicaIly examined Amir Abdullah and observed the following injuries on his --person:--
(i) An ..Entry wound 1 c.m. x 1 c.Rit. With blackened inverted margins in the right side of right elbow joint.
(ii) An exit wound with everted margins on the inner (left side) right elbow joint.
(iii) An entry wound 1/2 x 1/2 c.m. On the outer side of right axillary fossa, 10 c.m. Behind the right nipple, it was with black inverted, edges.
(iv) An entry wound 1-1/2 x 1 c.m. On the front of right lower chest 8 c.m. Below the right nipple, 4 c.m. Right to the midline.
(v) An entry wound in front of right knee joint.
(vi) An entry wound 1 x 1 c.m. With inverted blackening on the right side of left leg 6 c.m. Above the left patella bone.
(vii) An exit wound 1 c.m. x 1 c.m. On the outer side of left leg 7 c.m. Above the left patella bone.
15. ' The said doctor also medically examined Muhammad Abdullah and found the following injuries on his person:--
(i) An entry wound 1 x 1/2 c.m. On the left side of cheek 2-1/2 c.m. Left to the nose, 1-1/2 c.m. Above the left upper lip. The three upper left teeth were missing. The reentry wound was the upper part of tongue. In the middle part was seen.
(ii) A bruise mark on the back of right upper chest 4 c.m. Below the top of right scapula.
16. ' On the same day this witness also medically examined Esab Khan P.W.11 and observed the following injuries on his person:--
(i) An entry wound 1 x 1 c.m. On the back of right forearm 11 c.m. Behind the right wrist join, 12 c.m.
17. Above the right elbow joint..
(ii) An entry wound 1 x 1 c.m. 2-1/2 c.m. Back to injury No. 1.
(iii) Three entry wounds in the area of 3 x 4 c.m. On the back of right forearm 3-1/2 c.m. Above the right elbow joint.
(iv) An exit wound on the front of right forearm 13 c.m. From the right wrist joint 14 c.m. Above the right elbow joint.
(v) An exit wound 2-1/2 c.m. x 1-1/2 c.m. Behind Injury No.4.
(vi) A lacerated wound in the outer side of right index finger on the middle phalanx.
(vii) A bruise mark on the right side of right shoulder.
18. (viii)An entry wound 1 x 1 c.m. On the left knee joint.
(ix) An entry wound 1 x 1 c.m. 5 c.m. Behind and lower to Injury No.8.
(x) An exit wound on the inner side of left upper leg, 10 c.m. Behind and the right to left knee joint.
(xi) An exit wound 2-1/2 c.m. Below Injury No.10 ' Dr. Muhammad Khan P.W.8 being conversant with the handwriting and signatures of Dr. Muhammad Mumtaz Khan, who had conducted the post-mortem examination on the dead body of Ameer Abdullah deceased, proved the documents Exhs.PN and PN/1 i.e. Post-mortem report prepared by the said doctor. Muhammad Aziz Khan P.W.9 was present when Gul Rang, Abdul Rauf, Muhammad Yousaf, and Muhammad Hashim accused led to the recovery of crime weapons. He also signed the recovery memos. In this regard.
19. ' Muhammad Abdullah P.W.10, Esab Khan P.W.11, Ghulam Muhammad P.W.12 and Muhammad Ashraf P.W.13 being the eye-witnesses of this occurrence while supporting the prosecution case narrated the circumstances under which the appellants in furtherance of their common intention in order to take the forcible possession of the land in dispute committed the murder of Ameer Abdullah and caused injuries to the prosecution witnesses. Muhammad Afz4l Inspector P.W..14 conducted the formal investigation as narrated in the earlier part of the judgment.
6. Learned D.D.A. Tendered in evidence report of Chemical Examiner Exh..PEE and that of Serologist Exh.PFF and closed the prosecution case.
7. The appellants were also examined under section 342, Cr.P.C. By the trial Court. All the appellants while denying the charges pleaded innocence. None of the appellants gave statement under section 340(2), Cr.P.C. Nor produced any evidence in their defence. 'However, Sher Muhammad appellant tendered in evidence certified copy of report in case State v. Muhammad Ashraf Exh.DD, certified copy of charge-sheet against Muhammad Ashraf P.W. Exh.DE and copy of application submitted to Naib Tehsildar regarding the ownership of Muhammad Ashraf P.W. Exh.DF along with report of the Patwari Halqa.
8. With the able assistance of learned counsel for the parties we have minutely gone through the record of this case. The bone of contention for this occurrence was Barani agricultural land measuring 12 Kanals and 16 marlas falling under Khasra No.973 comprising of Khata No.820 in village Chakrala. District Minawali within the jurisdiction of Police Station Chakrala. The total area of the said Khata was 340 Kanals and one Marla. There were 60/65 co-sharers of the said Khata.
20. Mehar Khan and Khan Zaman were the owners of 65 Kanals and 12 Marlas of land in the said Khata.
21. They sold the said land. To Muhammad Yousaf and Sher Muhammad accused and on 24-10-1994 a mutation in favour of said accused was sanctioned. According to the Revenue Record at the time of sale vendor Mehar Khan and Khan Zaman were not in the physical possession of said land but the same was with Ameer Abdullah deceased as their tenant.. Copy of Khasra Girdawari i.e. Exh.PU of 'the said land pertaining to the period Kharif 1994 to Rabi 1995 also shows the possession of Ameer Abdullah over the land in dispute. The name of Muhammad Yousaf and Sher Muhammad accused for the first time was entered in the Revenue Record i.e. Khasra Girdawari, as owner, in Rabi 1995 and this entry was made on 7-3-1995 by Muhammad Ramzan Patwari P.W.4. Admittedly, after the sale of said land complainant .Party qua the same land had also filed a suit for possession through pre-emption and the same was fixed for hearing on 8-5-1995 i.e. Two days after the occurrence.
22. ' Stand of the complainant party before the trial Court was that at the relevant time they were in the physical possession of the land in dispute as tenant of Mehar Khan and another and in support of the same a copy of Khasra Girdawari for the period Kharif 1994 to Rabi 1995 Exh.PU was placed on the record. On the other hand, accused party while claiming their physical possession over the land in dispute had relied upon the undisputed sale transaction between them and the real owners of the land, i.e, Mehar Khan and Khan Zaman which took place on 24-10-1994 as well as on the statement of Muhammad' Ramzan Patwari P.W.4 who had admitted that Khasra Girdawari for the period Rabi 1995 prepared by him on 7-3-1995 (i_e. About two months prior to the occurrence) show accused. Muhammad Yousaf and Sher Muhammad as owners of the'. Land in dispute.
23. ' The complainant Muhammad Abdullah P. W.10 during the crossexatninatio4 had admitted that one month after the sale transaction between accused and the owners/vendor of the land, they had cut the crop of Jawar, which was sown, by them and that at the time of occurrence the land in dispute was. Vacant. It is also admitted fact that after the said sale transaction the complainant party filed suit for possession through pre-emption. The complainant party had not placed on the record any stay/injunction order showing, their possession over the land and restraining the other side from dispossessing the complainant party from the said land. Had the civil Court issued any such injunction order the complainant party should have placed the same on the record. Before the trial Court, to clear the ambiguity about the physical possession over the land in dispute, none of the said vendors was produced either by the defence or the complainant party nor during the investigation any data was collected in this regard by the agency. Thus from the record it is not clear as to which party was in the physical possession of land in dispute on the day of occurrence.
24. It is also clear from the statement of the prosecution witnesses that they after entering the disputed land li tried to stop the accused party from ploughing the land. In the said background of the case the possibility that the accused party in view of the, sale transaction and the entry of their ownership in the Revenue Record under the presumption of legal occupant of the land in dispute had gone to plough the land when the complainant party tried to intervene and in the heat of passions accused caused injuries to the complainant party, cannot be ruled out. The circumstances of this case clearly Show that though at the time of occurrence accused were armed with fire-arms but they had not gone to the 'place of occurrence with the intention to commit the murder or cause injuries but seemingly their purpose was only to plough the land and to desist any interference by show of force.
9. In the aforesaid circumstances of the matter we are of the considered view that it is a case of sudden fight which took place over the possession of land and every individual is responsible for his own act. Accordingly conviction and sentence awarded by the trial Court is set aside and the, appellants stand convicted and sentenced as under.
10. Appellants Nawab, Abdul Wahab and Sher Muhammad had caused injuries to Ameer Abdullah deceased and it is .Not clear from the record as to which of them had caused fatal injury.
25. Accordingly each of them stands , convicted under section 302(b), P.P.C. And sentenced . To imprisonment for life with benefit of section 382(b), Cr.P.C. They shall also pay compensation amounting to Rs.50,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C.
26. Or in default of payment of compensation each of them shall further undergo six months' S.-I.
27. ' Appellant Abdul Rauf caused firearm injury to Muhammad Abdullah P. W.10 on the left side of the cheek. Doctor also observed that under the said injury three upper teeth were missing. Reportedly, the said injury falls within the definition of Italf-i-Udw. Accordingly he is convicted under section 324, P.P.C. And sentenced to Ten years R.I. And to pay a fine of Rs.10,000 or in default whereof to undergo six months S.-I. And also pay compensation amounting to. Rs.5,000 to Muhammad Abdullah P.W.10 or in default whereof to undergo three months S.-I. He is also convicted under section 334, P.P.C. And sentenced to Ten years R.I. As Taazir with a fine of Rs.10,000 or in default whereof to further undergo six months' S.I. He .Shall also pay Arsh as defined under section 337(u), P.P.C. i.e. 1/20th of the Diyat. All the sentences of imprisonment shall run concurrently. The appellants shall also get the benefit of section 382(b), Cr.P.C.
28. ' Muhammad Yousaf appellant had caused fire-arm injuries to Esab Khan. Accordingly he is convicted under section 324, P.P.C. And sentenced to ten years' R.I. With a fine of Rs.10,000 and in default of payment he shall further undergo six months' S.I. The Medico-legal report of Esab Khan P.W.11 is silent about the category of the injuries caused by Muhammad Yousaf appellant. In this view of the matter Muhammad Yousaf appellant is convicted under section 337-L(ii), P.P.C. And sentenced to, two years R.I. He shall also pay compensation amounting to Rs '10,000 to Esab Khan P.W. Or in default of payment he shall undergo six months' S.-I. All the sentences of imprisonment shall run concurrently. Appellant shall also get the benefit of section 382(b), Cr.P.C., ' Muzaffar Khan appellant had caused injuries with butt of his gun to Esab. Khan P. W.11 and according to the Medico-legal report he caused injuries falling within the definition of Ghair Jafai Damiah.
29. ' Accordingly, he stands convicted under section 337-F(i),. P.P.C. Since he is facing the agony of this case since 1995 a lenient view about his sentence would meet the ends of justice. Accordingly he is sentenced to the period already undergone by him.
30. ' Muhammad Hashim appellant gave blows with butt of his gun to Ghulam Muhammad P.W.12. The Medico-legal report of Ghulam Muhammad reveals that injuries on his persons fall within the category of Shuja-i-Khafifa. Accordingly, he is convicted under section 337-A(i), P.P.C. And sentenced to the period already undergone by him.
31. ' Since the injuries caused by Muzaffar Khan and Muhammad Hashim appellants were minor in nature no compensation is required to be paid to the injured person.
32. ' The instant appeal is disposed of in the above terms.
33. ' Death sentence of Nawab, Abdul Wahab and Sher Muhammad is not confirmed and the murder reference is answered in the negative.