' MUHAMMAD FARRUKH MAHMUD, J.---Mahmood son of Muhammad Ismail, his brothers Muhammad Ayub, Daud and Maqsood Ahmad and Khalil Ahmad son of Din Muhammad were sent up to face trial in case F.I.R. No, 148 registered at Police Station Bakhshan Khan on 27-5-1997 for offences under sections 302/324/148/149, P.P.C. For causing the murder of Muhammad Azeem. Vide judgment, dated 26-9-2001, the learned trial Court, while acquitting Daud, Khalil Ahmad and Maqsood Ahmad, convicted Mahmood and Muhammad Ayub for offences under sections 302(b)/34,. P.P.C. Each of them was sentenced .To undergo life imprisonment. They were also directed to pay compensation Rs,50,000 each to the legal heirs of the deceased. In default in payment thereof, they were to suffer further R.I. For sixmonths each. Benefit of section 382-B, Cr.P.C.
Was given to the convicts.
2. Through Criminal Appeal No, 269 of 2001, Mahmood and Muhammad Ayub have challenged their conviction and sentence. Muhammad Rafiq/complainant tiled Criminal Appeal No, 275 of 2001 challenging the acquittal of Khalil Ahmad, Daud and Maqsood Ahmad, co-accused. On 11-12-2002, the learned counsel for Muhammad Rafiq appellant did not press the appeal against Daud and Maqsood Ahmad, respondents, and the same was dismissed to their extent. On 16-1-2003, the appeal filed by Muhammad Rafiq/complainant was admitted and notice was issued to Khalil Ahmad. Muhammad Rafiq/first informant also filed Criminal Revision No,132 of 2002 seeking enhancement of sentence inflicted upon Mahmood and Muhammad Ayub, appellants. We propose to decide all these matters through this consolidated judgment, as these arise out of the same occurrence.
3. The brief facts of the case per complaint (Exh.PA) of Muhammad Rafiq, complainant/P.W.1, which based the registration of above noted formal F.I.R. Exh.PA/1, are that complainant's brother Abdul Karim/P.W.12 leased out his land consisting of Killa Nos. 6, 15, 16, 17 and 25/4 of Square No,44, Rectangle No,391/7 to Muhammad Khand/P.W.2 and Muhammad Azeem Khan-deceased, On 24- 5-1997, the lessees irrigated the land, when, in the presence of the complainant, Daud (acquitted accused) threatened Muhammad Azeern Khan and forbade him from sowing crop in the field, as there was a dispute between him and Abdul Karim over that land. Muhammad Azeem Khan replied that he would cultivate the land, whereupon Daud said that a lesson would be taught to him. On 27-5-1997, Muhammad Azeem Khan-deceased, Muhammad Khan/P.W.2 and Dost Muhammad P.W.3 came to Chak No,11/FW with the tractor of Ch. Habib-Ullah to plough the land. On seeing them, the complainant also reached the spot. The complainant, Muhammad Azeem Khan and Dost Muhammad sat under a Sheesham tree. Muhammad Khan having ploughed Killa No,15 had just started ploughing Killa No,16, when at. About 1-30 p.m., Mahmood-appellant armed with .12 bore double barrel gun, Maqsood Ahmad-acquitted accused armed with .12-bore single barrel gun, Daud-acquitted accused armed with .12-bore pistol, Muhammad Ayub-appellant armed with rifle and Khalil Ahmad acquitted accused armed with rifle; in furtherance of their common object came running there. Daud exhorted his companions .To teach a lesson to the lessees for ploughing the land and that they should not go alive. Upon that, Mahmood fired a straight shot, hitting on the chest of Muhammad Azeem Khan. The fire caused by Khalil Ahmad also hit Muhammad Azeern Khan on his chest. Muhammad Azeem got injured and fell down. Muhammad Khan stopped the tractor and alighted from it. Daud, Muhammad Ayub and Maqsood Ahmad startedindiscriminate firing upon the complainant and his companions who saved their lives by lying on the ground. On the alarm of the P.Ws. And the fire reports, Bashir Ahmad, Muhammad Rasheed and Muhammad Amin were attracted to the spot and had seen the occurrence. On catching sight of the P.Ws., all the accused, while brandishing their respective weapons and saying that they had taught a lesson for ploughing the land, decamped from the scene of occurrence. Muhammad Azeem in injured condition was taken to Shehar Fareed Hospital on a wagon. On reaching the hospital, Muhammad Azeem succumbed to the injuries.
4. On 27-5-1997, the complainant went to the police station and presented a written application/complaint Exh.PA before Raees Jan Muhammad, S.-I./P.W.7, who recorded formal F.I.R.
Exh.PA/1 on the basis of the complaint. Then the S.-I./Investigating Officer went to the hospital; prepared injury statement Exh.PH/3 and inquest report Exh.PH/2 and sent the dead-body to the mortuary for post-mortem examination. Then the Investigating Officer went to the spot. On spot inspection, he collected blood-stained earth and sealed the same into a parcel vide memo.
Exh.P.C. He took into possession 16 empties of .12-bore (P-4/1-16) and six empties of 7-mm rifle (P- 5/1-6) through memo Exh.PD. He also prepared rough site-plan (Exh.PJ) of the place of occurrence.
On 18-6-1997, Syed Jamat Ali Bokhari, DSP/P.W.11, arrested all the accused. On 3-6-1997, Ayub, while in custody, led to the recovery of 7-mm rifle P-6 which was taken into possession vide memo.
Exh.PE. On the same date, Daud, while in custody, led to the recovery of .12-bore pistol P-7, which was taken into possession vide memo. Exh.PF. On the same date, Mahmood, while in custody, led to the recovery of .12-bore gun P-8, which was taken into possession through memo Exh.PG. After completion of investigation, all the accused were challaned to face the trial. As they denied the charge and claimed to be tried, the trial commenced.
5. In order to substantiate its version at the trial, prosecutionproduced twelve witnesses. Ocular account was furnished by Muhammad Rafiq, complainant/P.W.1, Muhammad Khan/P.W.2 and Dost Muhammad P.W.3. In addition to that, Muhammad Khan/P.W.2 also stated about the recoveries effected from the spot and at the instance of the accused. Dr. Shakeel Riffat Mirza/P.W.6, who conducted postmortem examination on the dead-body of Azeem Khan on 27-5-1997 at 6-00 p.m., while observing following injuries on his person:--
(I) Oval to allongated wound with inverted margin about -.75 cm in diameter on right side of mid sternal at level of nipple;
(II) An oval wound about 0.6 c.m. In diameter in midway betweenmid sternal line and nipple 1.00 c.m. Above the nipple. Margin inverted; ' Opined that the injuries were caused by fire-arm weapon. According to the doctor, the death was due to cumulative effect of both the injuries_ The death was due to excessive haemorrhage which, ultimately led to cardio-respiratory failure. In his opinion, both the injuries were sufficient to cause death in the ordinary course of nature. The time between injuries and death was instantaneous, while between death and post-mortem was within six hours. Raees Jan Muhammad, S.-I./P.W.7, stated about the registration of the case on the basis of a written complaint of 'the complainant and the investigation thereafter. Syed Jamaat Ali Bokhari, DSP/P.W.11, also stated about the partial investigation of the case. Abdul Karim/P.W.12 stated about the ownership of the land and its lease to Muhammad Khan and Azeem Khan, tenants. He further stated that there was a dispute between him and Ismail, father of the accused, over some land. He also placed on record certain documents, i,e,' Exh.PL to Exh.PZ. The rest of the evidence, being formal in nature, need not be discussed.
6. In their statements recorded under section 342, Cr.P.C., the appellants took up a specific plea of self-defence of their person and property. Muhammad Ahmad/appellant made a statement which was also relied upon by Muhammad Ayub/appellant and Khalil Ahmad/ respondent. The said statement reads as under:-- "I am innocent. In fact my father Ismail and his brother Din Muhammad and myself and my brothers own land measuring 119 kanals, 3 marlas and Noor Muhammad and Barkat Ali sons of Ghulam Muhammad also own land measuring 872 kanals and both the lands mentioned above are situated in one and the same joint Khata. In the year, 1970-71 Barkat Ali son of Ghulam Muhammad mentioned above sold 4-1/2 acres of land from this joint Khata to my father Muhammad Ismail and uncle Din Muhammad sons of Rahmat Ali and Noor Muhammad brother of Rahmat Ali filed a suit for possession through pre-emption which was decreed in his favor to the extent of share of the land sold but the above said Noor Muhammad in connivance with Abdul Karim and Muhammad Rafiq P.Ws of this case tampered with the Revenue Record in connivance with Revenue staff and tried to take forcible possession of specific numbers from the above said joint Khata which were in physical possession of my father Muhammad Ismail and his brother Din Muhammad as being part of their own land measuring 119 kanals, 3 marlas, i,e, Square No,44, Killas Nos.6, 15, 16, 17 and 25 as a result of which a fight took place and one HashmatAli was murdered and on 9-4-1972 a murder case was registered by one Madad Ali against my father Ismail, my brother Yaqoob and others in which Muhammad Rafiq complainant of this case was also one of the P.Ws. And in that case my father and others were convicted vide judgment, dated 27-2-1975 but the Hon'ble High Court accepted Criminal Appeal No, 14/75/B,W.P on 8-12-1979 and in that judgment Hon'ble High Court declared that the accused party i,e, my father etc. Were the owner in possession of the land in dispute and only my father Muhammad Ismail was convicted for 10 years for exceeding his right of private defence while the other accused were acquitted in that case and the Hon'ble Supreme Court also maintained the same.
' My father Muhammad Ismail challenged the above said tampering of Revenue Record and ultimately a Mutation No, 628 was sanctioned regarding the dispute over physical possession of land situated in Square No, 44, Killa Nos.6, 15, 16, 17 and 25 (half) measuring 36 kanals, 5 marlas in favor of my father Muhammad Ismail and my uncle Din Muhammad on 17-11-1973 and since then uptil today my father, myself and my brothers are in physical possession of the land in dispute as owners of the above said joint Khata.
' The above said Noor Muhammad after getting pre-emption decree in his favor in 1972 entered into an agreement to sell with Abdul Karim P.W. Regarding the land measuring 26 kanals, 5 marlas and a litigation between Noor Muhammad Abdul Karim continued regarding that agreement to sell upto Hon'ble High Court, in which I, my father, my uncle or any of my brothers were not party and in our absence above said Noor Muhammad and Abdul Karim P.W. After getting compromise with each other got incorporated specific number of the land in dispute which after coming to know we challenged and ultimately vide order of the Hon'ble High Court, dated 29-1-1996 the correction of the shares were Ordered and in consequence thereof Fard Badar No,9 was sanctioned by the Revenue Authorities on 16-3-1996 and instead of specific numbers the shares of all the share-holders were determined/ entered and in consequence thereof Mutation No, 1233 was also entered and sanctioned on 27-3-1996 under the orders of Hon'ble High Court, dated 29-1-1996 that Abdul Karim son of Imam Din was not owner of any specific number of the property purchased by him from Noor Muhammad son of Ghulam Muhammad. Rather he is owner of a particular share from the above said joint Khata.
' In Rabi, 1997 Abdul Karim P.W. And his brother Muhammad Rafiq P.W. In connivance with the local Revenue Staff tampered with Khasra Girdawari showing Muhammad Shafi and Wall Dad as their tenants and hired the services of one Muhammad Azeem Khan deceased and some other vagabonds and members of Qabza Group of the area and tried to take forcible possession of the land in dispute i,e, Square No,44 Killas Nos.6, 15, 16, 17 and 25 (half which was resisted by myself and my brother Muhammad Ayub as a result of which Muhammad Azeem was injured and later on expired and we did so under a right of private defence of our persons and property. My father Muhammad Ismail challenged the above said tampered Khasra Girdawari before the Assistant Commissioner/Collector, Chishtian on 5-5-1997 where Muhammad Shall son of Faiz Ahmad and Wali Dad alias Wali Muhammad son of Mehngay Khan, the alleged tenants supported the contention of my father regarding the physical possession of the land in dispute and ultimately Assistant Commissioner, Chishtian decided in favor of my father vide his order dated 24-9-1997.
' I produce copy of Jamanbandi 1976 77m 1980-81, 1984-85, 1988-89, 1992-93; judgment of the Supreme Court of Pakistan, dated 2-7-1984; certified copy of Mutation No, 628, dated 17-11-1973 copy of Mutation No, 1233, dated 27-3-1996; copy of application for correction of Khasra Girdawari, dated 5-5-1997; statement on oath of Muhammad Shafi son of Faiz Ahmad, dated 3-5-1997; statement on oath of Wali Muhammad alias Wali Dad son of Mehngay Khan, dated 3-5-1997; and judgment of Assistant Commissioner/Collector, Chishtian, dated 24-9-1997, which are Exh.DB to Exh.DK. I am innocent."
' The appellants did not appear as witnesses under section 342, Cr.P.C. Nor did they produce any witness in their defence. However, after placing on record documents Exh.DB to Exh.DQ, they closed their side.
7. Learned counsel for the convicts/appellants submits that it isproved through overwhelming documentary evidence that the appellants were in possession of the disputed land, i,e,, 4-1/2 acres, for the last thirty years and that the complainant party, especially Abdul Karim had been making desperate efforts to get the land mutated in his favor through collusive means; that through consent decree warrant of possession, dated 3-12-1992 was prepared in the absence of the appellant's father Muhammad Ismail but the same was subsequently corrected in pursuance of the orders passed by the High Court and instead of specific numbers only the claim of Abdul Karim was concededto the extent of share in the property; that prior to the occurrence, in collusion with the Revenue Officers, Abdul Karim got a fabricated and fake document about the possession of the land prepared in his favor which was against the record. Muhammad Ismail appealed against the entry and the same was corrected subsequently by the Revenue Authorities; that in the document which was prepared in favor of Abdul Karim/P.W.12, Wali Muhammad alias Wali Dad and Muhammad Shafi were shown to be tenants under Abdul Karim; that aforesaid tenants swore affidavits in favor of Muhammad Ismail father of Ayub and Mahmood appellants by stating that they never were the tenants under Abdul Karim; that the deceased, his brother P.W.2 and his uncle P.W.3 were residents of Chak No,53/Fateh which was at a distance of 7/8 kilometers from the place of occurrence situated in Chak No, 11/FW; that they were not tillers by profession though P.W.2 claimed that he had a piece of land on lease in Chak No,53/F but he had to concede during cross- examination that he was not in possession of lease deed nor he knew the rectangle or square number of the land which was in his possession; that the learned trial Court has correctly arrived at the conclusion that the appellants had the right of private defence of property but the learned trial Court committed error by convicting the appellants for offence under section 302(b), P.P.C. And not for offence under section 302(c) P.P.C.; that at the most, the case of the appellant was that they had exceeded the right of private defence of property;' hence, they deserved leniency in sentence.
8. Conversely, the learned counsel appearing on behalf of the complainant had argued that it was a daylight occurrence; that two of the accused admitted the occurrence before the learned trial Court, that presence of P.Ws. 2 and 3 has not been denied; that the statements of the P.Ws. Were fully supported by the medical evidence as well as by the evidence of recovery of weapons; that undoubtedly, the deceased and his companions were not armed with any weapon; hence, no question of right of defence of property arose, especially when the accused could easily approach the authorities in case their right was violated; that it is not the case of the appellants that the deceased or his companions even attempted to cause any injury to the accused; that Abdul Karim who was owner of the land lawfully leased out his land to Muhammad Azeemdeceased and his brother and the accused while armed with deadly weapons caused death of Muhammad Azeem; hence, they deserved no sympathy; and that the learned trial Court committed error by not inflicting normal penalty of death upon them. However, the learned counsel has conceded that injury attributed to Khalil respondent was not borne out by the medical evidence.
9. The learned DDPP for the State, while adopting the line ofarguments of the learned counsel for the complainant, has supported the impugned judgment.
10. We have heard the learned counsel for the parties and have also scanned the entire record with their assistance.
11. Mahmood and Muhammad Ayub, appellants, have taken specific plea of defence of property. It is a case of two versions. It is settled law that both the versions are to be put in juxtaposition, in order to ascertain as to which of the two is true or nearer to the truth. Taking the prosecution case first; the most vital point which needs decision is whether deceased, his brother and his uncle lawfully entered the place of occurrence and had any right to plough the agricultural land in dispute. According to F.I.R. And P.W.1 Muhammad Rafiq, Abdul Karim/P.W.12, brother of Muhammad Rafiq, owned Killa Nos. 6, 15, 16, 17 and 25/4 (halt) of Square No, 44, Rectangle No,391/7 in Chak No,11/FW. He leased out his land to Muhammad Khan/P.W.2 and his deceased brother Muhammad Azeem Khan for a period of two years. On 24-5-1997, three days prior to the occurrence, Muhammad Khan and Muhammad Azeem Khan irrigated the land. Muhammad Azeem Khan was warned by Daud acquitted accused that nothing should be sown in the land, as longstanding dispute over the land existed between the accused and Abdul Karim. Muhammad Azeem refused to oblige and was threatened with dire consequences by Daud in case any crop was sown. The prosecution case rests on the statements of P.W.1, P.W.2 and P.W.3. It is in evidence that dispute over the above-mentioned land existed between the accused party and Abdul Karim brother of B Muhammad Rafiq and for more than thirty years enmity and hostility existed between Rafiq and the accused over possession of the land. Muhammad Khan/P.W.2, brother of the deceased, Dost Muhammad P.W.3, uncle of the deceased, and Azeem, who were Pathhans by caste, were residents of Chak No,53/Fateh, which was at a distance of 7/8 kilometers from the place of occurrence.
Normally, they had no business to be at the disputed land except on the pretext of the land being leaked out to them. The analysis of the evidence reveals that dispute over the possession of the land existed between the parties since 1971-72. P.W. Muhammad Rafiq stated that the disputed land was purchased by his brother Abdul Karim from Noor Muhammad son of Ghulam Muhammad in the year, 1992 and since then it was occupied by his brother. He further stated that prior to the purchase, the land was in possession of Noor Muhammad. According to him, his brother got the land after a prolonged litigation, as a suit filed by his brother was decreed in his favor by Civil Judge, Chishtian, on 15-5-1972. According to him, the matter was finally decided by the Hon'ble High Court on 27-3-1996 and Mutation No,1233 was sanctioned regarding share of land measuring 35kanals, 19 marlas in favor of his brother. The mutation is available at pages 70 and 85 of the Paper Book as Exh.PX and Exh.DD. He had to admit that Mutation No, 1233 was regarding a joint Khata, in which Mahmood, Ayub, appellants, Maqsood and Daud were also share-holders along with their father Muhammad Ismail son of Rahmat Ullah. He denied that Khasra Girdawari, dated 6- 3-1997 was got prepared by his brother in collusion with the Revenue staff, wherein constructive possession through his tenants Wali Dad and Muhammad Shafi was entered. However, according to him, he did not remember that application seeking correction of Khasra Girdawari, dated 6-3- 1997 was moved by Ismail, father of the accused, on 5-5-1997 before the Assistant Commissioner, Chishtian. According to the witness, he did not know whether Muhammad Shall and Wali Dad, who were shown as tenants, swore affidavits in favor of Ismail father of the accused by stating that they never cultivated the said land as tenants, which was under the cultivating possession of Ismail and his sons, accused. It was put to the witness that vide an order, dated 24-9-1997, Khasra Girdawari, dated 6-3-1997 was set aside. The witness admitted it to be correct that Noor Muhammad, from whom his brother Abdul Karim had purchased the disputed land, was brother of Barkat Ali. He also admitted it to be correct that in the year, 1971, Ismail father of accused Mahmood, Ayub, Maqsood and Daud and their ,uncle Din Muhammad purchased 4-1/2 Killas of land from said Barkat Ali. It was also admitted to be correct that the sale in favor of Ismail and Din Muhammad was pre- empted by Noor Muhammad and that after obtaining decree in his favor, Noor Muhammad sold the land to Abdul Karim. The witness further admitted that on 9-4-1972, Hashmat Ali son of Madad Ali was murdered and a case was registered against Ismail father of the appellants and others. He also admitted it to be correct that he was witness in that case and that it was correct that Ismail father of the appellants was sentenced to undergo R.I. For ten years for offence under section 304(i), P.P.C. For exceeding the right of self-defence. On the point of purchase of the disputed land and its possession, Abdul Karim/P.W.12 was cross-examined. According to him, he purchased the land and leased it on 15-5-1972. He further stated that on 7-12-1992, he obtained the possession of the said land and the land remained lying vacant before it was given on lease. He further stated that between the period from year, 1992 to year, 1996, the said land remained unattended and prior to that Wali Dad and Sharif were occupying the land as tenants. He conceded that the litigation which went to the Hon'ble High Court was between him and Noor Muhammad and the accused or their father were not a party in the litigation. He also admitted it to be correct that his share of land was correct and specified by the orders of the High Court in writ petition, dated 29-1-1996 and order of the Hon'ble High Court was implemented in the revenue papers through Exh.PV and Mutation No, 1233 Exh.PX. He also admitted it tobe correct that Mutation No, 1233 was in respect of the share of the land and specific numbers of Killas were not mentioned in it. He denied that with the connivance of Revenue Authorities, he managed to get Khasra Girdwari in his favor in Rabi 1997 (March). He denied that the said Khasra Girdawari was corrected by orders of the Assistant Commissioner, Chishtian, and that Shafi and Wali Dad, who were shown to be tenants under him, swore affidavits against him. However, the witness had to admit that it was correct that the disputed land was still shown as joint land in the revenue papers. He also admitted it to be correct that accused and their father Ismail owned land in the joint Khata. He denied that after purchasing the land from Noor Muhammad, he, in collusion with the Revenue officers, got changed the entries in Khasra Girdawari from Rabi/March, 1972, and on the strength of incorrect entries, he along with Noor Muhammad, Madad Ali and Barkat Ali tried to take forcible possession from the accused party. However, he admitted it to be correct that on 9-4-1972, when Hashmat Ali was murdered, a case was registered against Ismail, his son and others. The record shows that R.S.A. No, 83-77/BWP (Exh.PT) was filed by Noor Muhammad against Abdul Karim and the same was pending adjudication. C.M. No,38/92 (Exh.PS), available at page 63-64 of the Paper Book, was moved, wherein it was stated that the matter stood patched up between the parties. Vide order, dated 6- 5-1992, on the basis of compromise, Noor Muhammad was allowed to withdraw his appeal.
Thereafter, on 7-12-1992, an entry was made in Rozenamcha Waqiati, available at page 67 of the Paper Book as Exh.PU, wherein it was shown that the possession of the land narrating Killa Numbers was handed over to Abdul Karim. Perusal of the record shows that it was mentioned therein that according to record, Din Muhammad and Muhammad Ismail were previously in cultivating possession of the land. This entry was made on the basis of the above-noted order passed by the High Court. It may be noted here that afore-mentioned Rozenamcha Waqiati did not bear the signature or thumb-impression of Ismail. After coming to know about the order of the High Court, Muhammad Ismail, father of the accused, who was not a party in the appeal filed by Noor Muhammad, approached the Hon'ble High Court and vide, order, dated 29-1-1996, instead of specific numbers Abdul Karim was declared to be owner according to the share. As a consequence thereof, Fard Badar Exh.PV, available at page 69 of the Paper Book, was prepared and in accordance with the order of the High Court, instead of specific numbers the ownership was mentioned in the shape of shares. Mutation No, 1233 which is relied.Upon by both the parties also reveals that it was in the shape of share, measuring 35 kanals, 19 marlas, and specific numbers were not mentioned therein. The accused have also placed on record Mutation No, 628 as Exh.DB., available at pages 79 to 82 of the Paper Book, which reveals that the specific numbers relating to disputedproperty were in cultivating possession of Ismail and his brother Din Muhammad. This document bears the date as 17-11-1973. The accused also brought on record Khasra Girdawari Exh.DC, available at page 83 of the Paper Book, which shows that Muhammad Ismail, father of the appellants, was in cultivating possession of the disputed land till Kharif, 1996. As already noted above, Abdul Karim got an entry in his favor in Khasra Girdawari, dated 6-3-1997, wherein he was shown to be in constructive possession of the land through tenants Wali Dad and Muhammad Shafi. When it came to the knowledge of Muhammad Ismail, he moved an application on 5-5-1997, i,e, twenty two days prior to the occurrence, seeking correction of the Khasra Girdawari. The application is available on record as Exh.DE at page 86 of the Paper Book. The application further reveals that Wali Dad and Muhammad Shafi, who were shown to be tenants under Abdul Karim, swore affidavits in favor of Muhammad Ismail. The affidavits are available at pages 89 and 90 of the Paper Book. Khasra Girdawari/Revenue Record was corrected by order, dated 24-9-1997, available at page 88 of the Paper Book.
12. In addition to the above noted facts, it may be mentioned here that Muhammad Rafiq/P.W.1 and Abdul Rafiq/P.W.12, both, admitted that from 1992 to 1996, the land remained unattended and uncultivated. It is common knowledge that no landowner would keep his land uncultivated for four long years. This admission by itself goes in favor of the accused that they were in possession of the land. It also supports the stand of the accused that throughout Abdul Karim had been making efforts to get the possession of the land. It appears that Khasra Girdawari, dated 6-3-1997 in favor of Abdul Karim was managed by the complainant party in order to take possession of the land.
Needless to say that later on, the entries were corrected by the Revenue officers and that Wali Dad and Shafi, who were mentioned as tenants under in the Khasra Girdawari, swore affidavits in favor of the accused.
13. According to prosecution case, prior to occurrence, the disputed land was given on lease to Muhammad Khan/P.W.2 and his brother Muhammad Azeem Khan. Both of them were Pathhans by caste and were residents of Chak No, 53/F, a place situated at a distance of 7/8 kilometers. During cross-examination, Muhammad Khan/P.W.2 admitted that he and his deceased brother had no agricultural land in Chak No,53/F. He claimed that he and his brother got some land on lease from Rahmat Ullah, Lambardar of Chak No, 53/F, about two years prior to the occurrence but he could not tell the rectangle number or square number. He admitted that no lease deed was executed in writing. He further admitted that he was unable to produce any Khasra Girdawari,showing him to be lessee of the land belonging to Rahmat Ullah. He also admitted that he could not produce any receipt of payment of leasemoney to Rahmat Ullah. As far as lease of the disputed land wasconcerned, he stated that on 27-5-1997, he produced the lease deed, dated 7-5-1997, along with receipt of payment of lease money, to theInvestigating Officer. However, neither the lease deed nor any receiptwas brought on record of the case. Interestingly, Muhammad Khan/P.W.
Described his profession as shop-keeper when his statement was recordedby the learned trial Court. The prosecution failed to prove to judicial satisfaction that Muhammad Khan and his brother Azeem Khan had any background of cultivation. It is also worth-mentioning that it was claimed by P.Ws.-land 2 that on 24-5-1997, while P.W.2 and Azeem Khan were irrigating the disputed land, they were warned by Daud accused that it was a disputed land and that if any crop was sown by them in the said land, they would face dire consequences. Normally, P.W.2 and the deceased would have gone to Abdul Karim immediately and reported him the incident. On the other hand, P.W.2 stated that after the issue of threats by Daud, he did not ask anything about the disputed possession of the land from Abdul Karim, as he could not meet him. He went on to say that from 24-5-1997 to 26- 5-1997, he did not make any effort to locate Abdul Karim and narrate the incident to him. This is very abnormal behaviour, as after issuing of threats by Daud and after knowing about the disputed possession of the land, normally, he would have immediately gone to Abdul Karim and sought explanation from him. Obviously, the incident of 24-5-1997 was concocted; firstly, to establish the possession of land; and, secondly to show that the deceased and his brother were in possession of the land at least three days prior to the occurrence.
14. According to medical evidence, the deceased received two firearm injuries. Both were on chest.
The first was on the right side of mid sternal at level of nipple, while the second was in midway between mid sternal line and nipple. During cross-examination, the doctor/P.W.6 explained that it was correct that size and direction of both injuries Nos. 1 and 2 was almost the same. He further explained that no burning and blackening was present on both the injuries and the injuries were the result of long range fire. He further stated that possibility could not be ruled out, that both the injuries were the result of stray pellet of a fire made from a .12-bore gun. The medical evidence does not support the prosecution case that Khalil Ahmad, accused/respondent, who was armed with a rifle, fired at the deceased which hit him on the chest. The allegation levelled against Khalil is also negated by the fact that during investigation, no fire-arm was recovered at his instance.
15. As far as motive is concerned, admittedly, the hostility existedbetween Abdul Karim and the accused over possession of the land in dispute. Abdul Karim had been making desperate attempts to get the possession of land. The P.Ws. In their statements before the learned trial E Court suppressed the true facts and did not come out with the true story. The statements of the P.Ws.
Also suffer from mutual discrepancies on material points. Their statements were rightly disbelieved by the learned trial Court.
16. Now, we are left with the defence plea taken by Mahmood and Muhammad Ayub. Their plea is supported by overwhelming documentary evidence and the circumstances of the case to the extent that they were in possession of the disputed land on the fateful day and that Muhammad Khan/P.W.2 and his deceased brother had trespassed into their land at the instance of Abdul Karim/P.W.12. And his brother Muhammad Rafiq/P.W.2. The accused had the right of private defence of property. However, it is not in evidence that the deceased and his companions were armed or they launched any criminal assault against the accused. In the circumstances, the right of private defence of property, in our opinion, did not extend to causing of death. The learned trial Court has rightly held that Mahmood and Muhammad Ayub, appellants, exceeded their right of private defence of property. However, after holding this, the learned trial Court wrongly convicted them for offences under section 302(b)/34, P.P.C.
17. In the above-noted circumstances, we alter the convictions of the F appellants Mahmood and Muhammad Ayub from offences under section 302(b)/34, P.P.C. To offences under section 302(c)/34, P.P.C. According to report, dated 9-3-2007 submitted by the Superintendent, New Central Jail, Bahawalpur, the appellants have already served out more than eleven years of the sentence. Considering the period of sentence already served out by the appellants, we reduce the sentence to the period already undergone by them. They would be released forthwith, if not required in any other case. As regards the compensation under section 544-A, Cr.P.C., in view of the dictum laid down by the apex Court in the case of Mairaj Begum v. Ijaz Anwar and others (PLD 1982 SC 294), the order passed by the learned trial Court under section 544-A, Cr.P.C. Is not maintained.
19. For the same reasons, both, Criminal Appeal No, 274 of 2001 questioning the acquittal of Khalil Ahmad, accused/respondent, and Criminal Revision No, 13.2 of 2002 seeking enhancement of sentence of the appellants, are dismissed.