The above titled appeals have been directed, against the judgment of District Court of Criminal Jurisdiction, Mirpur, dated 18-6-2003, whereby Muhammad Yaqoob appellant was awarded 25 years' rigorous imprisonment in addition to Rs, 10,000 as Hakoomat-e-Adal and Mushtaq Hussain appellant was awarded sentence of Rs, 5,000 as Hakoomat-e-Adal whereas Muhammad Farooq, Muhammad Yousif, Muhammad Bashir, Muhammad Yasin and Muhammad Ajayab were acquitted.
2. Brief facts leading to the background of the appeals are that a case under Sections 5/15, I.P.L., read with Sections 147/148, 149, A.P.C. was registered at Police Station Dadyal on the complaint of Muhammad Siddique. It was stated that a graveyard situated in Village Doodh Parat belongs to the complainant and his family members. Muhammad Alam and Muhammad Yousif were trying to take possession of the same since long. On 29-12-1989 at about 1-00 p.m. Muhammad Alam son of Kala, Muhammad Yasin, Muhammad Yaqoob, Muhammad Ayyub Muhammad Farooq sons of Muhammad Alain, Muhammad Yousif, Muhammad Bashir, Muhammad Yasin, Muhammad Ajayab sons of Fetha Alam resident of Doodh Part and Mushtaq Hussain son of Alam Hussain came there for the purpose. Muhammad Yaqoob was armed with .12 bore double-barrel gun and the others with sticks. Muhammad Bashir was ploughing the disputed land and others were constructing fence at a particular part of the graveyard. In the meantime complainant, Ali Akbar, Ali Afsar; Muhammad Rafique and Muhammad Lal came there and stopped them. Upon this all the accused persons raised Lalkara and asked Muhammad Yaqoob to kill the complainant and others. They opened attack. Muhammad Yaqoob fired two shot with the gun at Ali Afsar. The fires hit him at the chest and at the back near right shoulder. Ali Afsar fell down and succumbed to the injuries. The accused also fired at Muhammad Rafique and Ali Akbar. Mushtaq Hussain and Muhammad Farooq were alleged for beating Ali Akbar, Ali Afsar and Muhammad Rafique with sticks, fists and kicks. The occurrence is stated to be witnessed by Muhammad Lal and the complainant.
3. During investigation Muhammad Alam was found innocent and was given benefit of Section 169, Cr.P.C. however, a challan under Sections 5/15, I.P.L. and 307, 147, 148, 149, 297, A.P.C. was submitted before the trial Court against the convict-appellants and others. The statements under Section 242, Cr.P.C. were recorded on 16-5-1991. They pleaded not guilty therefore, the prosecution was ordered to produce evidence in support of its case.
4. After completion of the prosecution evidence the convict-appellants were examined under Section 342, C.P.C, on 8-1-2002. The trial Court after considering the material on record arrived at a conclusion that prosecution has succeeded in proving its case against Muhammad Yaqoob and Mushtaq Hussain. Consequently Muhammad Yaqoob was convicted and sentenced to 25 years rigorous imprisonment in addition to Rs, 10,000 as Hakoomat-e-Adal and Mushtaq Hussain was awarded sentence of Rs, 5,000 as Hakoomat-e-Adal while the others were acquitted of the charge vide impugned judgment. Hence these appeals.
5. As both the appeals arise out of same judgment of the Court below, therefore, these are disposed of through this common judgment.
6. The learned counsel representing the convict-appellants and acquitted respondents argued that the accused persons have been involved in a false case on account of enmity. The appellants and others were the owner of the land around the graveyard. The complainant and others trespassed into the "land upon which the occurrence took place. The allegation of removing fence from around the graveyard was not proved. The eyewitnesses were interested, and closely inter se related. They were admittedly inimical towards the accused-persons. According to the learned counsel the trial Court misdirected itself in accepting the prosecution version relating to the convict-appellants in absence of independent corroboration. The attribution of fire on the deceased and P.W. Muhammad Rafique with the alleged .12 bore double-barrel gun belonging to Muhammad Yaqoob was not correct as it was not found to have been used in the occurrence.
Similarly the medical evidence was in conflict with the testimony of eye-witnesses. The learned counsel further argued that prosecution failed to prove its case as alleged in the F.I.R. relating to the place, time and motive of the offence. The statements of eye-witnesses suffered from material contradictions and infirmities. The impugned judgment being illegal, unlawful and self contradictory is liable to be set aside, by accepting the appeal and the convict-appellants may be acquitted of the charge, submitted the learned counsel.
7. On the other hand, it was argued by the learned counsel for the complainant that the occurrence took place during broad-daylight. The name of the accused persons and the eye-witnesses were present in promptly lodged F.I.R. All of them were ascribed specific role. During trial prosecution has successfully proved that the convict-appellants and others trespassed into the land of graveyard.
Upon which the incident took place. It was also established that the deceased suffered fire-arm injury at the hands of Muhammad Yaqoob. Corroborative material in shape of recoveries of weapon of offence, medical reports etc. in support of the ocular version was brought on record and a strong case was established against the convict-appellants and acquitted respondents.
According to the learned counsel minor discrepancies and contradictions in the statements of the eyewitnesses were not worth-considering and there was no justification for awarding the lesser sentence of 25 years' R.I. to Muhammad Yaqoob. Normal sentence for the offence is death, therefore, by accepting the appeal the same may be enhanced and other accused persons may also be convicted under law.
8. The learned Additional Advocate-General supported the arguments advanced on behalf of the complainant.
9. I have heard the learned counsel for the parties and gone through the record of the case.
10.The prosecution story as appears from the statements of eye-witnesses is that on 29-12-1989 at about 1-00 .p.m. Muhammad Alam, Muhammad Yaqoob, Muhammad Ayyub, Muhammad Farooq, Muhammad Yousif, Muhammad Bashir, Muhammad Hussain, Muhammad Ajayab and Mushtaq Hussain were present at the place of occurrence. Muhammad Bashir was ploughing and the others were constructing a fence in the graveyard. Muhammad Yaqoob appellant was armed with .12 bore double-barrel gun. The others were carrying sticks Ali Akbar, Ali Afsar, Muhammad Rafique, Muhammad Lal and the complainant came there. They "stopped them from constructing fence and ploughing the land. The accused persons raised Lalkara and attacked them.
Muhammad Yaqoob fired two shots at Ali Afsar and one at Muhammad Rafique. The fire hit Ali Afsar at his chest and back. He fell down and succumbed to the injuries. Muhammad Rafique also sustained fire-arm injury. Mushtaq 'Hussain caused stick injury at the person of Ali Akbar.
Muhammad Farooq inflicted stick injury at the right shoulder of Muhammad Rafique. The others gave fist and stick blows to Ali Afsar, Ali Akbar and Muhammad Rafique.
11.The trial Court relied upon the ocular version to the extent of Muhammad Yaqoob and Mushtaq Hussain and convicted them. However, the same was disbelieved for acquitted respondents.
12.It is settled principle that statements of interested witnesses require very careful scrutiny and strong corroboration of such a statement is also insisted from some independent source. In the present case the eye- witnesses were closely inter serelated and interested, as the enmity between the parties was also admitted.
13.Alleged motive as stated by the prosecution was a dispute over a piece of land, which was a part of the graveyard. It appears that the accused party was the owner of the land around the graveyard and it was alleged that they were trying to snatch the disputed piece of land and on the day of occurrence they came there for the purpose. Surprisingly no complaint regarding the intention of the accused persons was made to the police onto other concerned authority prior to the occurrence. According to the .Ws. the occurrence took place in the disputed piece of land whereas a perusal of the site-plan shows that incident took place at a distance of 6 arams (33 feet) from eastern and 14 Karams (77 feet) from northern end of he graveyard; therefore, the site- plan Exh.P.S. and the, statement of P.W. ultan Mehmood, Patwari does not support to the ocular version.
14.The attribution of three fires on the deceased and P.W/ Muhammad Rafique with the alleged .12 bore gun belonging to Muhammad Yaqoob appellant is highly doubtful. Post-mortem report Exh.P.Q. shows that the deceased sustained one fire-arm injury at his chest caused by . 12 bore gun.
The injury found at the back was the exit wound. Similarly the claimed fire-arm injury at the person of P.W. Muhammad Rafique was also doubtful. It is mentioned in the medical report Exh.P.G., that Injury No, 1 could be caused by fire-arm. It indicates that P.W. Dr. Aftab Ahmad who examined the injured persons and prepared the report was doubtful about the weapon used for causing the injury. He was not sure whether the injury was caused by fire-arm or blunt weapon. As per his statement the injury could be caused by both type of weapons. Another circumstance also needs serious consideration. The doctor examined the injured eye-witnesses on the day of occurrence. As per his statement the injuries were caused at about 10:00 a.m. whereas the alleged occurrence took place at about 1-00 p.m., therefore, the claim of the witnesses that they sustained-injuries during the occurrence appears to be doubtful.
15.During investigation the police seized two crime-empties from the place of occurrence. The alleged weapon of offence . 12 bore gun was recovered at the instance of Muhammad Yaqoob appellant. A crime-empty was also present in it. All the three crime-empties alongwith 12 bore double-barrel gun were sent to the Forensic Science Laboratory. The report of, the Forensic Science Laboratory Expert Exh.P.GG. is at page 50 of the trial Court's file which shows that none of the three crime-empties were fired from the gun: 16.In light of the facts listed above, I am of the view that the whole C prosecution story is not correct. The presence of all the accused-persons at the place of occurrence is doubtful. The acquitted respondents have not been ascribed any specific role and the observations of the trial Court to their extent is correct. In light of the statement of P.W. Dr. Aftab Hussain the claim of the prosecution that Muhammad Rafique and Ali Akbar suffered injuries at the hands of Muhammad Yaqoob and Mushtaq Hussain during the occurrence is also doubtful, therefore, their deposition cannot be yelled upon.
17.In consequence of what has been stated in above paras. I am of the opinion that at the time of occurrence Muhammad Yaqoob appellant was present in the land belonging to the accused party. Ali Afsar, Muhammad Lal and the complainant ,came there. Some unpleasantness took place between the parties upon which he fired at the deceased. The origin of fight and manner of occurrence are shrouded in mystery. It may be stated here that the right of self-defence/defence of property at the time of occurrence was available to the appellant.
18. The above mentioned facts bring me to the question of quantum of sentence. The sentence of imprisonment for 25 years was not warranted in the circumstances, therefore, same is converted into life imprisonment alongwith benefit of Section 382-B, Cr.P.C. and Mushtaq Hussain appellant is acquitted of the charge.
19.The upshot of the above discussion is that the appeal filed by the complainant is dismissed whereas the appeal filed by the appellants is disposed off in the terms indicated above.