' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellants Muhammad Azam, Zulfiqar Ali and Muhammad Aslam along with Ali Akbar were tried in a private complaint titled Muhammad Hussain v. Muhammad Azam and others for an offence under section 302/34, P.P.C. By the Additional Sessions Judge, Sheikhupura, who vide judgment dated 31-7-2000 while acquitting Ali Akbar accused, convicted Muhammad Azam appellant under section 302(b), P.P.C. And sentenced him to death as well as to pay compensation amounting to Rs.25,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to undergo six months. R.I.
Zulfiqar appellant was convicted under section 302(b), read with section 34, P.P.C. And sentenced to life imprisonment with benefit of section 382-B, Cr.P.C. Whereas Muhammad Aslam appellant was convicted under section 337-F(iii), P.P.C. And sentenced to three years' R.I. And to pay Rs.2,000 as Daman to the injured Farman Sarwar.
2. Challenging their conviction and sentence the appellants filed Criminal Appeal No.1185 of 2000 while complainant filed P.S.L.A. 42 of 2000 against the acquittal of Ali Akbar etc. And Criminal Revision No.577 of 2000 seeking enhancement of sentence of Zulfiqar Ali. The trial Court has also made a reference (M.R. 674 of 2000) seeking confirmation of death sentence awarded to Muhammad Azam. All these matters are being disposed of together by this judgment.
3. Succinctly the prosecution story as narrated in the private complaint filed by Muhammad Hussain complainant is that paternal cousin namely Muhammad Ashraf of complainant died leaving behind his daughter namely Mst. Nadia as his legal heir. His uncle Ali Akbar fraudulently got mutated the agricultural land of Mst. Nadia in his name. On coming to know the said mutation, the complainant got transferred the land in her name from the name of accused Ali Akbar who felt aggrieved which continued up to the day of occurrence. Allegedly on 11-7-1998 the complainant along with his son Muhammad Sajjad, Ghulam Sarwar deceased and one Farman Sarwar, his guest were going to the fields for cutting fodder. When the deceased went to the tree of rennet at about 9-00 a.m., Muhammad Azam and Muhammad Aslam armed with sickles, Zulfiqar Ali empty- handed emerged there. Ali Akbar accused raised Lalkara asking his co-accused to teach a lesson to Ghulam Sarwar deceased etc. For the return of agricultural land of Muhammad Ashraf.
Complain-ant albng with-Muhammad Sajjad and Farman Sarwar P. Ws. Reached at the spot. In the meanwhile, Muhammad Azam appellant gave sickle blow to Ghulam Sarwar, deceased which hit on his collor bone. Zulfiqar accused caught hold the deceased in clasp. When Farman Sarwar P.W.8 tried to rescue the victim from the clutches of the assailants Muhammad Aslam appellant gave sickle blow to Farman Sarwar P.W.8 hitting on his left elbow. On the request of the complainant party the assailants released the deceased and fled away from the spot. Ghulam Sarwar deceased succumbed to the injuries at the spot. Farman Sarwar P.W.8 (injured) was removed to the hospital for treatment.
' About the said occurrence case F.I.R. No.148, dated 11-7-1998 was also registered at Police Station, Sangla Hill. During the investigation all the accused except Zulfiqar Ali were found innocent and challan against the said Zulfiqar was submitted. The complainant being not satisfied with the police findings filed this complaint. The trial Court proceeded with the complaint case at the first instance.
4. Before the trial Court the prosecution produced eleven witnesses including Muhammad Hussain P.W.7, Farman Sarwar P.W.8 (injured) and Muhammad Sajjad P.W.9, the eyewitnesses of the occurrence, to prove the charge against the appellants.
5. Trial Court also examined appellants and their co-accused under section 342, Cr.P.C. Zulfiqar appellant while answering to the question, have you anything else to say? Replied as under:-- "I am innocent. On the day of occurrence, at about 8-00 a.m. I was going to the side of place of occurrence (Jambloon tree) where Ghulam Sarwar deceased was holding a sickle, he started abusing me and also said why he had come to the place of occurrence. Upon which I said that the land as well as Jambolana tree are owned by me.
' Thereupon deceased started grappling with me. During the grappling and scuffle deceased sustained injuries with his own sickle. Injury was not caused by me to the deceased."
6. After appraisal of evidence available on record, the trial Court vide judgment dated 31-7-2000 convicted and sentenced the appellants as narrated earlier.
7. Learned counsel for the appellants submits that it was not a case of premeditation and everything had happened at the spur of moment; the appellants had no intention to commit the murder as alleged in the F.I.R. And in the circumstances, the conviction and sentence could not be sustained. Further submits that Farman Sarwar P.W.8 (injured) was not present at the spot and after manufacturing injuries on his person, he was introduced later on to strengthen the prosecution case; that the motive for the occurrence was never proved by the prosecution before the trial Court and the bare perusal of the evidence of the prosecution reveals that wide net had been thrown to implicate as many people of the same family as possible, so much so, the elderly member of the family namely Ali Akbar father of the appellants was also not spared. On the contrary, learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the contentions raised by the learned counsel for the appellant and submit that it is a case of promptly lodged F.I.R.; this occurrence took place during the bright hours of the day and there was no possibility of their mistaken identity; that the presence of the witnesses stands established from the data available on record; the ocular account finds corroboration from the medical evidence, motive and other circumstances of the case. Learned counsel for the complainant further submits that case of Muhammad Aslam cannot be distinguished from that of his co-accused and the trial Court has erroneously acquitted him from the charge under section 302/34, P.P.C. With regard to Ali Akbar accused it is submitted that since he has died to his extent the petition for special leave to appeal has become infructuous. Further submits that Muhammad Aslam and Zulfiqar accused respondents are also entitled for the award of capital sentence.
8. We have heard the learned counsel for the parties and minutely gone through the record with their assistance.
9. It is a case of two versions, time, place of occurrence and the weapons used in the occurrence are almost admitted facts. As stated by Zulfiqar he was attacked by the deceased and during the scuffle deceased received injuries with the sickle which he was holding at that time. In support of this plea Zulfiaqr appellant never opted to make any statement under section 340(2), Cr.P.C. Nor produced any evidence. Though this plea was taken by Zulfiqar appellant before the Investigating Officer at the first instance but we see that this plea rinds no support from the data available on record. Statedly, he had scuffle with Ghulam Sarwar deceased when he (deceased) received injuries. The statement of this accused is absolutely silent with regard to the injuries on the person of Farman Sarwar P.W.8. The duration of injuries on the person of Farman Sarwar P.W.8. As observed by the doctor tallies with the time of occurrence and in our view the location and nature of the injury show that the same could not be caused with friendly hands. Even otherwise, Zulfiqar appellant was arrested after nine days of the occurrence i.e. On 20-7-1998 which means that he had ample time to take the legal advice for creating self-defence. We are of the view that this defence plea is nothing but an afterthought and not reliable.
10. On the other hand, the stand of the prosecution is that it was a pre-planned murder.
Muhammad Azam and Muhammad Aslam appellants being armed with Datar along with their co- accused Zulfiqar and Ali Akbar came to the place of occurrence with the intention to get even with the complainant party because of their dispute over the land and thus they had committed and intentional murder of Ghulam Sarwar. We have observed that while lodging the F.I.R. As well as deposing before the trial Court, the stand of the eye-witnesses namely Muhammad Hussain P.W.7, Farman Sarwar P.W.8 (injured) and Muhammad Sajjad P.W.9 was that Muhammad Azam appellant had given a single sickle blow to Ghulam Sarwar deceased. Similarly, Muhammad Aslam also caused a single injury to Farman Sarwar P.W.B. Whereas the medical evidence reveals that the deceased had six injuries including two incised wounds while Farman Sarwar P.W.8 had five injuries on his person. The injuries on the person of deceased as well as the injured witness speak volume that whatever was stated by the prosecution witnesses was not a gospel truth and something else had happened at the time of occurrence. No doubt, the presence of eye-witnesses stands established from the record of this case but after a careful examination of the evidence of the witnesses, we are of the view that they had not told the truth and had deliberately concealed some true facts. In case of titled Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), the apex Court of the country has already held that whenever a Court comes to the conclusion that parties are not telling the truth then the Court can form its own opinion with regard to the mode and manner the occurrence might have taken place. In the circumstances of this case we are of the view that both the parties had grappled with each other before the fatal injury was caused to Ghulam Sarwar deceased and during this scuffle deceased as well as Farman Sarwar P.W.8 had received abrasions and contusions on different parts of their bodies. What prompted the parties to start quarrelling and grappling is shrouded in mystery. Even otherwise according to the prosecution's own case none of the appellants namely Muhammad Azam and Muhammad Aslam was armed with conventional weapon, if they had come at the spot with the intention to commit the murder then they should have brought with them weapons like hatchet, Chhurri, dagger, fire-arms, etc. Similarly, according to the prosecution's own case Muhammad Azam had caused only single injury and never repeated the same which fact also belies the story of the prosecution that it was a preplanned murder. In this view of the matter, finding no force in the instant appeal the same stands dismissed. However, sentence of Muhammad Azam appellant is reduced to imprisonment for life with benefit of section 382-B, Cr.P.C. He shall pay the compensation on the same terms and conditions as fixed by the trial Court.
As far Muhammad Aslam appellant, he did not cause any injury to the deceased and the injury attributed to him which is on the person of Farman Sarwar is neither on the vital part of the body nor was grievous in nature. Accordingly, while maintaining his conviction, the sentence is reduced to the period of imprisonment already undergone by him. However, he shall pay the amount of Daman within one month else he will be kept in custody till the payment of said amount as required under the laws.
' For the reasons discussed above Criminal Revision No.577 of 2000 and P.S.L.A. No.42 of 2000 stand dismissed.
' Death sentence of Muhammad Azam appellant is not confirmed and the murder reference is answered in the negative.