' MUHAMMAD FARRUKHID, J.---This judgment will dispose Appeal No,12 of 2000 filed by Liaqat Ali, Aurangzeb and, who were convicted and by the learned Additional Sessions Judge, Gujjar Khan, vide his judgment dated 19-1-2000 as under:--
(1) Ali Aghzar and Liaqat Ali ' Death each with compensation of Rs,50,000 each or in default six months S.I. Each under section 302(b), P.P.C.
(2) Aurangzeb and Ghulam Abbas ' One Year's R.I. Each with Daman Rs,2,000 each under section 337-A(i), P.P.C.
' Murder Reference No,39 of 2000 for confirmation or otherwise of death sentence awarded to Ali Aghzar and Liaqat Ali, appellants and Criminal Appeal No,103 of 2000 filed by Muhammad Nasim against acquittal of Aurangzeb and Ghulam Abbas from the charges under sections 302/324/34, P.P.C., shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed in F.I.R. Exh.P.E. Recorded by Muhammad Nasim/complainant are that he intended to have a passage constructed from the Bazar to his Baithak adjacent to his house. Aurangzeb accused did not get to construct and he got a stay order from the Court of Civil Judge, Gujjar Khan, and the application for stay was dismissed vide order dated 5-3-1992 from the Court concerned. 2/3 days thereafter the complainant got the said street constructed by Union Council, Kauntrilla. Aurangzeb was got annoyed on it. On 22-3-1992 at 5-.30 p.m. When the complainant reached in front of his `Baithak' after purchase of Iftari articles from the Bazar, Ali Aghzar, Ghulam Abbas, Aurangzeb and Liaqat Ali were present there. At that time Ali Aghzar alias Ajra and Liaqat Ali were armed with .12 bore guns. Ghulam Abbas was armed with hatchet and Aurangzeb was empty handed. Aurangzeb started abusing him and said that he would not allow him to pass through the said passage. Ghulam Abbas then inflicted hatchet blow upon him, which hit on the left side of his forehead. Aurangzeb threw a stone which hit on his left side of head. Ejaz Hussain, brother of the complainant, came out of the Baithak in order to save him. Aurangzeb on seeing Ejaz Hussain directed Ali Aghzar and Liaqat Ali not to spare him. Ali Aghzar fired with .12-bore gun which hit his brother on front of his mouth. The second fire was made by Liaqat Ali, which hit on the head of Ejaz Hussain, who fell down. Ibrar Hussain and Zafar Iqbal (P.W.3) reached the spot and witnessed the occurrence. They beseeched the accused persons and the accused person while abusing left towards their houses. Ejaz Hussain succumbed to the injuries at the spot.
' The motive for the occurrence was that on account of dispute regarding the passage the accused to take revenge in furtherance with their common intention committed the murder of Ejaz Hussain.
3. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Khalil, Inspector/P.W.10. He proceeded to the place of occurrence, took over the dead-body, prepared injury statement Exh.P.E. And inquest report Exh.P.J. He took into possession bloodstained earth from the spot vide Memo. Exh.P.F. He also collected lead pellets from the spot and took the same into possession vide memo. Exh.P.G. On 31-3-1992 he arrested Ali Aghzar and Liaqat Ali, appellants. On the same day, Ali Aghzar led to the recovery of .12-bore Gun P.2 along with four live cartridges P.3/1-4, which was taken into possession vide memo. Exh.P.D. On 6-4-1992, while in custody, Liaqat Ali led to the recovery of .12 bore Gun P.1 along with its licence, which was taken into possession vide memo. Exh.P.B. P.W.10 also arrested Ghulam Abbas after cancellation of his interim pre-arrest bail. After completion of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.M., Serologist Exh. P.N. And that of Forensic Science Laboratory Exh.P.O. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleading their innocence have taken plea of alibi. However, Aurangzeb in answer to questio "why this case against you" has taken specific plea of self-defence. The acc did not appear as witness under se 340(2), Cr . P . C . However, Ahmad Ibrar Ahmad Mirza and Wajid Abbas produced as D.Wsil, 2 and 3, respect After conclusion of trial the appellant convicted and sentenced as stated ab
5. After having read prosecution evidence, statem appellants recorded under Cr.P.C., statements of the D relevant material available learned counsel for the a support of this appeal submit parties had strained relations reg use of passage; that all the witn closely related to the deceased a like situation the superior C always insisted for corroboratio the ocular account, which la case; that medical evidenc support the prosecution case as according to Doctor the injuries could be the result of one fire; that the injuries caused on the head of Muhammad Naseem were caused by blunt weapon, while according to F.I.R. Sharp side of the hatchet was used; that the recovery of weapon does not advance the prosecution case as no empty was recovered from the scene of occurrence; that there was no report to the effect that the weapons were in working condition; that motive also helps the accused as the complainant consistently trying to get the land, which was initially belonged to the accused ; that the prosecution has not come with truth, as in that case Muhammad Nasim, who was available at the spot would have been murdered; that while the passage was being constructed no fight ensued, which means that the reasons for the occurrence were different from those mentioned in the F.I.R.; that as far as Liaqat Ali, Aurangzeb and Ghulam Abbas are concerned, the prosecution failed to prove its case against them and as far as Ali Aghzar is concerned, it was not a case of extreme penalty of death; and that in his first version Ali Aghzar had explained that when he came the fight was in progress his sister was being insulted so in rage and provocation he fired at Ejaz Hussain, who unfortunately lost his life. However, the learned counsel has not pressed the plea taken by Aurangzeb.
6. The learned counsel appearing on behalf of the State has submitted that the matter was reported to the police promptly; that the ocular account was supported by the medical evidence as the deceased lost his life due to fire-arm injury; that the weapons were recovered at the instance of the appellants; that the motive was also admitted; and that the defence miserably failed to establish alibi of Liaqat Ali and Aghzar Ali. However, he supports the judgment of the learned trial Court.
7. We have heard the learned counsel for the parties at length and scanned the entire record of the case minutely.
8. According to prosecution case the complainant wanted to connect his sitting room with Bazar through metalled passage (Pacca Rasta). Aurangzeb accused did not allow this and got stay order issued from the Court of Civil Judge. The stay was vacated on 5-3-1992 and within 2/3 days the complainant got the passage Pacca through the courtesy of Union Council Kauntrilla. This caused grievance to Aurangzeb. On the fateful day at about 5-30 p.m., when the complainant returned to his house from Bazar, he saw that accused were present in front of his sitting room. Aurangzeb abused them and threatened that the complainant would not be allowed to use passage. Ghulam Abbas gave hatchet blow on the head of the complainant, which hit on the left side of forehead, while Aurangzeb pelted stone, which hit on the left side of head of the complainant. Ejaz Hussain, who was present in the Baithalc came out to rescue the complainant, was fired upon by Ali Aghzar, appellant. The fire hit on the face. Immediately Liaqat Ali also fired, which hit Ijaz Hussain on his head. Ejaz Hussain fell down and died at the spot.
9. Aurangzeb, appellant took specific plea of self-defence in his statement recorded under section 342, Cr.P.C. According to his statement his daughter Mst. Zameeran Begum was beaten by Ejaz Hussain, who was armed with Sota. She was being forcibly dragged to the house of the complainant and she was denuded. Hence Aurangzeb lost his control and after bringing out licensed gun of his son Amir Afzal, which was lying in his house, fired a single shot upon Ejaz Hussain, who fell down and lost his life. According to him, at that time Ejaz Hussain, who was armed with Sota, was accompanied by Inayat and Muhammad Naseem, complainant, who was also armed with Danda. The defence plea is being reproduced verbatim for ready reference:-- "I had a dispute with Muhammad Naseem over a piece of land which is my courtyard. Muhammad Naseem forcibly wanted to take possession and to make a passage through it to the bazaar. The matter was pending in the Appellate Court. On 22-3-1992 I along with my daughters and wife was in my house. My both the sons Ghulam Abbas and Ali Aghzar were not in the house. Ghulam Abbas had gone to his college at Gujjar Khan, where he was studying while Ali Aghzar had gone to another village Sasral to purchase buffalo while Liaqat Ali, my brother-in-law, was away to Peshawar to visit his brother Ayub, who at that time was serving in Army and posted at Peshawar in 19-FE Regiment. At about 5-00 or 5-30 p.m. Naseem armed with danda, Ejaz armed with Sota and Anayat empty handed came in the courtyard of our house, knocked at the door and my daughter Mst. Zameera Begum came Out. All the said three persons forcibly caught hold of her. On her hue and cry Mst. Naziran Begum and Mst. Hamida Begum alias Fahmeeda Begum and myself came out of our room. Ejaz deceased was beating Mst. Zameera Begum with sota and his other two companions were pushing Mst. Zameera Begum towards their house. Mst. Zameera Begum in order to save herself lay on the ground. All the three persons started beating her with fists and kicks. Her shalwar was removed and her shirt was completely torn and she was rendered completely naked.
On our hue and cries, all the three persons did not deter. I when seeing my daughter completely naked in order to save her honour and her from the clutches of Ejaz, Anayat and Naseem brought out the licensed gun of my son Amir Afzal from inside the house and fired one shot which hit Ejaz who fell down. My daughters also pelted stones at the assailants in order to save Mst. Zameera Begum, which hit Muhammad Naseem. Mst. Zameera Begum was medically examined on 24-3- 1992. After the occurrence I went to Police Station Jatli to lodge the report. At the police station I was made to sit and with the collusion of the local police, Muhammad Naseem got a false case registered against me, my sons Ghulam Abbas and Ali Aghzar and my brother-in-law Liaqat Ali. My co-accused wire not present at the spot at the time of occurrence neither the alleged eye- witnesses were present at the spot. As the police did not take any action against Muhammad Naseem etc. So I filed a private complaint against them. The true and actual occurrence took place as narrated in the complaint filed by me which has been fully detailed and explained. The occurrence was witnessed by Sub. Iftikhar, Taseer Hussain and other persons from the public. P. Ws.
Have deposed falsely in order to save their own skin and to hide their own aggression and assault."
9-A. Both the versions are put in juxtaposition to ascertain which of the two is true or nearer to the truth. The prosecution has produced Muhammad Naseem, complainant and Ibrar Hussain cousin of the complainant as eye-witnesses of the case. Time of occurrence has not been challenged. The fact that Muhammad Naseem was injured during occurrence was also not challenged but according to defence plea he received injures while daughters of Aurangzeb pelted stones towards him in order to rescue Mst. Zameeran Begum, while according to Muhammad Naseem he received injuries at the hands of Ghulam Abbas and Aurangzeb. The presence of Muhammad Naseem stands established. Similarly it is also established that dispute existed over construction of passage between Aurangzeb, accused and Muhammad Naseem, complainant. Perusal of rough site-plan Exh.D.B. And scaled site-plan Exh.P.C. Reveals that the occurrence took place in front of sitting room of the deceased and that Pacca passage was 'constructed through which Baithak of the complainant was connected with Bazar. Exh.P.D. Also shows that the room in front of the house of accused in an open place was being used by them as they kept their cattle there. P.W.10, Muhammad Khalil Inspector/Investigation Officer admitted that the room was owned by Aurangzeb, accused. It is in evidence that open space available in front of the house of Aurangzeb was being used by him and he did not allow his neighbours to use the same. Open space was Evacuee property and the dispute of possession and ownership was between one Asif and Aurangzeb and finally the matter was decided in favour of Aurangzeb. Ibrar Hussain P. W.8 during cross-examination admitted that no body except them was using the passage which was constructed against the wishes of Aurangzeb. The above noted facts make it manifest that deep routed exited between the complainant and the accused over construction of passage. It is also evident from the facts that Ali Aghzar and Ghulam Abbas sons of Aurangzeb, Aurangzeb himself and Liaqat Ali son-in-law of Aurangzeb were implicated in this case. Aurangzeb was shown to be empty handed and Ghulam Abbas was shown to be armed with hatchet, while Ali Aghzar and Liaqat Ali were allegedly armed with guns and each of them fired one shot upon the deceased.
10. As enmity existed between the parties, the statements of the eye-witnesses, who are related to the deceased, need deep scrutiny. According to prosecution case the first fire was caused by All Aghzar, which hit on the face of the deceased. The second fire was caused by Liaqat Ali, which hit on the head of the deceased, who fell down. According to Dr. Muhammad Azam Tarrar, P.W.9, who conducted post-mortem examination on the dead-body of Ejaz Hussain, he observed five injuries on the body of the deceased. All the injuries were on the face and caused damage to the eyes, cheek and forehead of the deceased. During cross-examination he stated that possibility that all the injuries were caused by one .12-bore shot could not be ruled out We would also like to refer to the site-plan Exh.P.C. On that score, according to which, fires were caused from a distance of 27 feet and to the statement of the complainant himself the fires were caused from a distance of 30 feet. It is also noticeable that the wounds did not have signs of blackening or burning, which means that the fire was caused from a distance of at least 7/10 feet. In that case the pellets would certainly spread and the doctor was right in stating that possibility of injuries having been caused by one shot could not be ruled out. The complainant intended to implicate as many persons of the accused party as possible so it appears that he attributed fire to Liaqat Ali as well. Number and seats of injuries suggested that soon after impact of fire the deceased would have fallen down and for that reason it was mentioned in the F.I.R. That the second fire was caused by Liaqat Ali immediately. There was hardly any need to cause second fire at Ejaz Hussain. In case any second fire was to be caused then the target would be Muhammad Naseem, who was available and with whom the accused had direct enmity. It is also noteworthy that in F.I.R. Muhammad Naseem stated that Ghulam Abbas caused hatchet blow from its sharp side ( but as the injury was found to have been caused by the blunt weapon, he made dishonest improvement by stating that the injury was caused by wrong side- of the hatchet. It is also in evidence that no quarrel took place between the parties while the passage was being constructed. The over all impact is that the occurrence did not take place in the manner or for the reason as stated by the prosecution. There was no reason for the accused to launch murderous assault on the fateful day as Aurangzeb had filed appeal against the decision of Civil Court and wanted to settle the matter through Courts.
11. Now we come to the defence plea. According to which, Aurangzeb used gun in order to save the honour and person of her daughter Mst. Zameeran Begum, who also received injuries during occurrence. Neither Mst. Zameeran Begum was produced in defence nor the doctor was produced to show that she received injuries during occurrence. In case the story of Aurangzeb would have been true then the whole Basti would join him but on the contrary not a single independent witness was produced in support of the defence plea. Even Aurangzeb or any of the accused did not come forward and appeared as witness. It is also not on record that Aurangzeb took the plea when his statement was recorded under section 161, Cr.P.C. To cut the things short, the defence plea taken by Aurangzeb is neither supported by any substantial evidence nor is made out from the circumstances of the case. We are of the opinion that both the parties have not come out with true story and now it is for us to draw proper inferences from the evidence and the circumstances of the case.
12. The statement of Ali Aghzar, appellant was recorded by Muhammad Khalil, Inspector/P.W.10 after his arrest. In his first version he stated that Ejaz Hussain got constructed Pacca passage, which was not allowed by his father, who filed a case which was pending adjudication and on the fateful day when he returned he saw Muhammad Naseem quarrelling with his father and brother Ghulam Abbas. While Muhammad Naseem was abusing, his sister Mst. Zameeran Bibi reached there, who was also abused. Muhammad Naseem, Ibrar Hussain and Ejaz, who after dragging Mst.
Zameeran Begum to their Baithak gave beating to her. He took out gun from the box, loaded it and when Ejaz came out from the Baithak he fired at him, which proved fatal. P. W.10 admitted that at the time of arrest Ali Aghzar took the above noted stance, which is available at pages 99 and 100 of the paper book. The first version of the accused brought on the record is always of great importance and could not be lightly ignored. In the above noted circumstances, we have concluded that the quarrel did not originate as narrated by Muhammad Naseem and some of the facts were suppressed by him.
13. For the foregoing discussion, we allow this appeal to the extent of Liaqat Ali. The impugned judgment to this extent is set aside. He is acquitted of all the charges. He be released from jail forthwith if not required in any other case. The conviction of Ali Aghzar for offence under section 302(b), P.P.C. Is maintained. However, his sentence is altered to imprisonment for life. Benefit of section 382-B, Cr.P.C. Is extended to him. The order passed by the learned trial Court under section 544-A, Cr.P.C. Is maintained to his extent.
14. Murder reference is answered in the negative. Death sentence is not confirmed.
14. As far as Aurangzeb and Ghulam Abbas are concerned, they have already been acquitted of the charge of murder and the findings recorded by the learned trial Court on that score do not suffer from any infirmity or perversity. Both of them have been convicted for causing injuries to Muhammad Naseem, which were three in number, simple in nature and were caused by a blunt weapon. They are suffering rigors of trial. Thus, while maintaining their conviction for offence under section 337-A(i), P.P.C. We reduce their sentence to the period already served out by them, As far as Daman Rs,2,000 to each is concerned, the learned counsel for the appellants has undertaken that the same would be deposited with the learned trial Court within one month. They are on bail, their bail bonds are cancelled and the sureties are discharged. However, if they fail to deposit the amount of Daman within the specified time, they would be taken into custody and the law would take its own course.
16. For reasons noted above, Criminal Appeal No,103 of 2000 filed by Muhammad Naseem is dismissed.