' KHAWAJA MUHAMMAD SHARIF, J.-This judgment will dispose of Criminal Appeal No,83 of 1992 filed by Fida Hussain, Sher Zaman and Ashiq Hussain, who, along with Muhammad Iqbal, Muhammad Riaz, faced trial in case F.I.R. No, 132, registered at Police Station, Jatli, Rawalpindi, oh 7-10-1989, for offences under sections 302/307/148/149, P.P.C., before learned Additional Sessions Judge, Rawalpindi, who, after conclusion of trial, vide his judgment dated 18-5-1992 while acquitting Muhammad Iqbal and Muhammad Riaz convicted and sentenced the appellants as under:- ' Fida Hussain ' Life Imprisonment with fine of Rs,20,000 or in default one year R.I. And with compensation amounting to Rs,20,000 or in default six months' R.I. Under section 302, P.P.C., for causing murder of Taj Muhammad.
' Sher Zaman ' Seven years' R.I., with fine of Rs,5,000 or in default four months' R.I. And with compensation amounting to Rs,5,000 or in default four months' R.I. Under section 307, P.P.C., for causing injuries to Manzoor Hussain, P.W.
'Ashiq Hussain ' Seven years' R.I. With fine of Rs,5,000 or in default four months' R.I. And with compensation of Rs,5,000 or in default four months' R.I. Under section 307, P.P.C., for causing injuries to Saeed Akbar, P.W.
2. Akbar Hussain, complainant also filed criminal revision seeking enhancement of sentence awarded to the appellants shall also be disposed of through this single judgment. It is pertinent to mention herfe that the learned counsel for the complainant was not present on 13-9-2005, 10-7- 2006 and 9-10-2006. Same is the position today.
3. Brief facts of the case as mentioned in complaint Exh.P.M. Made by Akbar Hussain, complainant (P.W.10) are that on 7-10-1989' at about 4-45 a.m. When he along with his son Saeed Akbar and Muhammad Taj was proceeding to Doltala, Weer Khan met them in the street, who told them that Sher Zaman, Muhammad Riaz, Ashiq Hussain, Muhammad Iqbal and Fida Hussain, residents of the village, armed with fire-arms had gone to his land to plough tractor. Weer Khan asked them to prevent them from doing so. Thereafter they accompanying Weer Khan proceeded towards his land. In the way they also took along with them Manzoor Hussain. At about 6-00 a.m. When they reached near the land of Weer Khan from a distance of two furlongs they saw Muhammad Iqbal ploughing (sic) Of Muhammad Iqbal, Sher Zaman armed with .12-bore gun, Muhammad Riaz armed with Revolver and Ashiq-Hussain armed with carbine were present towards western side while Fida Hussain armed with 7.Mm rifle was present towards eastern side. As soon as Manzoor Hussain asked Muhammad Iqbal to stop tractor, Muhammad Iqbal raised Lalkara that they should be done to death. Thereafter Sher Zaman fired with his .12-bore gun, which hit Manzoor Hussain on his right buttock. Manzoor Hussain fell down. On the other hand Muhammad Riaz, Ashiq Hussain and Sher Zaman started indiscriminate firing. The pellets of the fire caused by Ashiq Hussain hit Saeed Akbar below his right eye and on his hands. Muhammad Taj received injury on his thigh near right side of his buttock by the fire caused by Fida Hussain with his 7.Mm rifle. After receiving injury Muhammad Taj became unconscious and fell down. It is also mentioned in the complaint that the occurrence was witnessed by Lai Hussain and other inhabitants of the village. Thereafter the accused decamped from the spot on the tractor while firing in the air. When the complainant and P.Ws. Were shifting the injured to Hospital, Muhammad Taj succumbed to the injuries on the way.
4. The motive behind occurrence was that Weer Khan had purchased land from Manzoor Hussain and MSt. Ajaib Sultana and got mutation sanctioned in his favour. The accused party also claimed that they had purchased the same land through a stamp-paper from step-mother of Manzoor Hussain. Weer Khan was in possession of the same land. It is also mentioned in Exh.P.M. That the complainant used to help Weer Khan in that regard.
5. After receipt of information Muhammad Afzal, S.-I./P.W.16 reached Hospital, Doltala, he took over the dead body, prepared injury statement Exh.P.E. And inquest report Exh.P.D. Thereafter he proceeded to the place of occurrence. He took the bloodstained earth from the spot and secured the same vide memo. Exh.P.J. He also collected empties from three different places from the scene of occurrence P.4/1-5, P.5/1-6 and P.7/1-5 vide memo Exh.P.K. The Investigating Officer also took into possession Tractor No,3889/RIF vide memo Exh.P.L. Thereafter Javed Nisar, Inspector/P.W.15 arrested all the accused persons on 7-10-1989. While in custody, on 6-1L1989 Muhammad Riaz led to the recovery of revolver 38-bore P/l from the kitchen of his residential house, which was taken into possession vide memo Exh.P.G. On the same day, Sher Zaman also led to the recovery of 12- bore gun P.2 and its licence P.3 from his residential house, which were taken into possession vide memo. Exh.P.H.
' He also arrested Akbar Hussain, Saeed Akbar, Lai Hussain and Weer Khan P.Ws. As accused in the cross-version. After completion of investigation, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 16 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.O. And that of Serologist Exh.P.P. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. They did not appear as witness under section 340(2), Cr.P.C.
However, Fida Hussain appeared in his own defence under section 340(2), Cr.P.C. And also produced Ch. Abdul Rashid as D.W.l. While Sikandir Hayat, D.S.P., Major Fateh Sher, S.S.P., Zulfiqar Ahmad Cheema, S.P. Appeared as C.W.l, C.W.2 and C.W.3 respectively. After conclusion of trial, the learned trial Court while acquitting Muhammad Iqbal and Muhammad Riaz convicted and sentenced the appellants as stated above.
7. After having read the entire prosecution evidence, statements of the appellants recorded under sections 342 and 340(2), Cr.P.C. And other relevant material available on record, the learned counsel for the appellants Fida Hussain, Sher Zaman and Ashiq Hussain in support of this appeal have contended that in fact Weer Khan did not lodge F.I.R., who claimed himself owner of the land, while F.I.R. Got recorded by Akbar Hussain who was severely inimical towards Fida Hussain, appellant; that Doltala Hospital, where the police reached, Weer Khan was present but Akbar Hussain, who lodged F.I.R. Did not. Allow Weer Khan to lodge F.I.R.; that the complainant party had nothing to do at the land, where the occurrence had taken place; that no documentary evidence was produced by the complainant even during trial or before the police to prove their possession and ownership on the land in question; that it is the case of prosecution, based in the F.I.R., that the appellant party was already present at the place of occurrence; that it is a case of complainant that from a distance of two furlongs the accused party was visible armed with fire-arms and in spite of that the complainant party kept on going towards them; that in this context it may be submitted that there was no occasion for the complainant to proceed further towards the accused party; that the complainant party had danger to their lives but they still proceeding towards the accused party; that despite the fact of firing the complainant party did not run from the spot; that Weer Khan had admitted before the police that the complainant party had come at the spot armed with fire-arms; that the empties were recovered from the place where the deceased received injuries; that no recovery was effected from Fida Hussain although he remained on physical remand; that Akbar Hussain had no motive towards Fida Hussain to falsely implicate him; that all the police officers have also declared that Fida Hussain, appellant is innocent; that according to findings of the learned trial Court Weer Khan was not in possession of the said land; that it is also admitted thaf both the parties had election enmity between each other; that as far as the recoveries are concerned, the same are inconsequential; that the complainant party has right to approach the authority for redress of their grievance and they should not have come armed at the spot because they had ample time to approach the concerned authorities; and that Fida Hussain, - appellant maliciously involved in this case for the above said reasons.
8. On the other hand, the learned Assistant Advocate-General submits that time, place and time have not been denied by the appellant party; that the appellant party had filed criminal cases which ended 'in acquittal and against acquittal no appeal was filed; that the basic question which involves in this case is that which of the party was in possession of the land at the relevant time; that both the parties failed to prove through documentary evidence their possession at the spot, which means that both the parties did not approach the Court and the police with clean hands and relies upon the famous case reported as Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 503; and that in fact it was not case of private defence and property, while it was a case of free fight.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. There were five accused in this case namely Muhammad Iqbal, Sher Zaman, Muhammad Riaz, Ashiq Hussain and Fida Hussain. The deceased in this case is Taj Muhammad.
There were five eye-witnesses. Manzoor Hussain appeared as P.W. 11 and Saeed Akbar appeared as P.W. 12 (both were injured witnesses). Weer Khan, who was not injured, also appeared as P.W.13.
Akbar Hussain, complainant of the case appeared as P.W. 10, while Lai Hussain was not produced before the learned trial Court. The occurrence had taken place on 7-10-1989 at 6-00 a.m. While the matter was reported through complaint at Rural Health Centre, Doltala, on the same day, at 8-45 a.m. And thereafter formal F.I.R. Was registered at 9-15 a.m. On the statement of Abkar Hussain. The learned trial Court convicted and sentenced the appellants as under:-- ' Fida Hussain ' Life Imprisonment with fine of -Rs,20,000 or in default one year R.I. And with compensation amounting to Rs,20,000 or in default six months' R.I. Under section 302, P.P.C., for causing murder of Taj Muhammad.
' Sher Zaman ' Seven years' R.I., with fine of Rs,5,000 or in default four months R.I. And with compensation amounting to Rs,5,000 or in default four months' R.I. Under section 307, P.P C., for causing injuries to Manzoor Hussain, P.W.
' Ashiq Hussain ' Seven years' R.I. With fine of Rs,5,000 or in default four months R.I. And with compensation of Rs,5,000 or in default four months'. R.I. Under section 307, P.P.C., for causing injuries to Saeed Akbar, P.W.
' Thereafter appeal filed by Fida Hussain, Sher Zaman and Ashiq Hussain was disposed of by this Court vide judgment dated 19-3-2002 by acquitting Fida Hussain and convicting Sher Zaman and Ashiq Hussain under section 302, P.P.C. They were sentenced to life imprisonment. The appellants filed special leave to appeal before the Honourable Supreme Court of Pakistan, which was converted into criminal appeal. The complainant also filed criminal petition which was also converted into criminal appeal. The Honourable Supreme Court of Pakistan decided both the cases vide judgment dated 20-1-2003 and remanded the case to the High Court with a direction to decide the criminal appeal filed by the appellants and the criminal revision filed by the complainant afresh after hearing the parties.
10. The basic question in this case is that which party was in possession of the land at the time of occurrence. Unfortunately the prosecution failed to prove its possession through any documentary evidence either before the police or the learned trial Court. It has not been denied by the prosecution witnesses that when they came towards the place of occurrence from two furlongs they saw the accused party armed with fire-arms and despite enmity between them they went on going towards the appellant party. It has also not been denied by one of the prosecution witnesses namely Weer Khan, P.W.13, who admitted before the police in his statement that the complainant party was also armed with fire-arms at the time of occurrence and they resorted to firing.
11. It is pertinent to mention here that the crime empties were taken into possession from the spot but none of them matched with the fire-arms recovered at the instance of the present appellants.
Even Fida Hussain remained in physical remand but no recovery was made at his instance. Talha Muhammad, who was witness of the recovery, has admitted that there was long standing enmity between Akbar Hussain and Fida Hussain. Both have their own groups and were heading them. It has come on record that Raja Abdul Aziz Bhatti, a former Judge of the High Court, was siding the complainant party. Fida Hussain appeared in his defence under section 340(2), Cr.P.C. And rebutted the allegations levelled by the prosecution witnesses before the learned trial Court. During trial when the DDA cross-examined him, he produced some documents relating to purchase of the land in question by his co-accused Riaz. Even first version of Fida Hussain was that he was not present at the spot. It is correct that opinion of the police is not binding upon the Courts but in the peculiar facts and circumstances of the case it can be taken note of, so, keeping in view both the versions and putting the same in juxtaposition, we are of the opinion that Fida Hussain was not present at the time of occurrence, so, his testimony is of no avail to the prosecution. Furthermore, no recovery has been effected at his instance. All the police officers have declared him innocent.
Akbar Hussain, stated that while he was going to Doltala, Weer Khan asked him to accompany him to his land where the appellant party was ploughing land. Weer Khan never became complainant of this case while he was present in the Hospital. Instead of him Akbar Hussain came as first informant. We may observe here that the occurrence took place on 7-10-1989, the learned trial Court decided the case on 18-5-1992 and this Court disposed of the matter on 19-3-2002, thereafter the appellants filed special leave to appeal before the Honourable Supreme Court of Pakistan, which converted into criminal appeal, and the Honourable apex Court remanded the case for its decision afresh.
12. After having heard learned counsel for the parties, having taken into consideration submissions made by them respectively and having gone through the record with the able assistance of the learned counsel for the parties, we hold that presence of Fida Hussain at the place of occurrence is not free from doubt and the conviction in question cannot be maintained to the extent of Fida Hussain. Thus, while extending benefit of doubt in favour of Fida Hussain this appeal to his extent is accepted, the impugned judgment to his extent is set aside and he is acquitted of all the charges.
He is on bail, his bail bonds are cancelled and the sureties are discharged. As far as Sher Zaman and Ashiq Hussain appellants are concerned, this appeal to their extent has become infructuous as they have already served out their sentences.
13. For the above noted reasons criminal revision filed by Akbar Hussain having no merit stands dismissed.