' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No, 1435 of 2001 filed by Mohy ud Din, who, along with his father Muhammad Arif and brother Ahmad Din, faced trial in case F.I.R. No,506, registered at Police Station Hujra Shah Moqeem, Okara, on 19-8-1999, for offences under sections 302/34, P.P.C., before learned Additional Sessions Judge, Depalpur, who after conclusion of trial vide his judgment, dated 18-9-2001, while acquitting Muhammad Arif and Ahmad Din, convicted the appellant under section 302(b), P.P.C. And sentenced him to DEATH with compensation of Rs,2,00,000 or in default four years' R.I. (It is pertinent to note here that in the judgment passed by the learned trial Court the parentage of Mohy ud Din appellant and Ahmad Din has been written as Atta Muhammad, inadvertently).
2. Murder Reference; No,612 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.PA registered on the statement of Atta Muhammad (complainant/P.W.1) are that on the fateful day Allah Ditta alias Kalay Khan son of the complainant started his tube-well to irrigate his Mids. After some time Arif along with his sons Mohy ud Din and Ahmad Din armed with fire-arms reached there and threatened the complainant party that they would not allow them to run tube-well and diverted the water. Meanwhile, the engine of the tube-well became out of order and the accused left the spot while extending threats. At about 5.00 p.m., Allah Ditta after getting the engine repaired started tube-well again. At that time the complainant along with his sons Allah Ditta alias Kalay Khan, Noor Ahmad and his wife Mst. Taj Bibi was sitting in the nearby residential Ehata. Muhammad Arif and Mohy ud Din armed with rifles and Ahmad Din armed with .12 bore gun emerged there raising Lalkara that they would not spare the complainant party today and started firing. In order to save their lives the complainant and other P.Ws. Ran towards the residential Ehata. In the meanwhile Mohy ud Din fired with his rifle, which hit Allah Ditta on his forehead, who fell down and succumbed to the injuries at the spot. Thereafter the accused made good their escape while resorting to aerial firing.
4. The motive behind the occurrence as set down in the F.I.R. Was that for the last 5/6 years there was a land dispute between the parties. It is also mentioned in the F.I.R. That one day earlier the accused had given beating to Allah Ditta and with their common intention had committed his murder.
5. After registration of formal F.I.R., the investigation of the casewas taken over by Mian Khan, Inspector/P.W.7. He proceeded to the place of occurrence, took over the dead-body, prepared injury statement Exh.PG and inquest report Exh.PH. As it was night time, further proceedings were stayed. On the next day i,e, on 20-8-1999 he again visited the spot and collected blood-stained earth from the spot vide memo Exh.PB. On 22-9-1999 he arrested all the three accused persons.
While in custody, on 30-9-1999 Mohy ud Din led to the recovery of 7 mm rifle P-1 along with five bullets P-2/1-5, which were taken into possession vide memo Exh.P.C. On 3-10-1999 the Investigating Officer recovered .12 bore gun P-3 along with six cartridges P-4/1-6 at the instance of Ahmad Din and took the same into possession vide memo. Exh.PD. After completions of investigation, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced8 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PM and that of Serologist Exh.PN closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. However, Mohy ud Din has taken a specific plea of his self-defence, which is reproduced hereunder:-- "I am innocent. A day prior to the occurrence deceased Allah Ditta let loose his cattle in our paddy crops on my interruption he grappled with me in paddy crops and I gave him beatings with kicks and fists and thereafter women-folk got us separated so I went back to my house. On the next day I started my Engine to water the paddy crops. Allah Ditta managed to hired "Badmashes" and he along with them diverted the water of our tube-well to their fields and started firing along with his hired "Badmashes" towards my house and I with the licensced rifle of my father also started firing, while standing in my own courtyard, which was more than man height. The womenfolk again intervened and got the firing stopped but at about night time when it had become dark Allah Ditta along with his "Badmashes" let loose his buffaloes in our paddy crops and even at that occasion I beseech the accused but they started firing towards me. Allah Ditta was firing few paces ahead then his hired "Badmashes" who were firing with their rifles. I in order to save my life and property fired towards the assailants who were coming towards my house for murdering us. Lest they should not trespass in my house for murdering us fired towards the assailants while standing in my courtyard standing parallel to the height of our four walls as a result of which Allah Ditta received the injuries. I on the same night voluntarily appeared before the police along with licenced rifle of my father and along with licence. My father Muhammad Arif and my brother Ahmad Din were not present at the spot at the time of occurrence. Nor did they take any part at the time of occurrence in the occurrence. None from the alleged eye-witnesses were present at the spot. The complainant party lodged false F.I.R. Upon a false version against us. During investigation the version of the complainant party was found false and the defence version as submitted by me today was found correct. Allah Ditta was a rash type of person and was involved in various criminal cases."
' They did not appear as witness under section 340(2), Cr.P.C. However, they produced Taufeeq Ahmad as D.W.1. After conclusion of trial, the learned trial Court while acquitting Muhammad Arif and Ahmad Din convicted and sentenced the appellant as stated above.
7. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal has contended that there was unexplained delay in lodging the F.I.R.; that the witnesses were related inter se and were inimical towards the appellant; that no independent witness was produced during trial; that the prosecution has failed to prove its case, hence, the defence plea taken by the appellant should be believed in toto; that even if the motive is taken to be correct then the cause of action lies with the complainant party; and that in any case it was not a case of capital punishment.
8. The learned counsel for the complainant has argued that the delay in lodging the F.I.R. Was duly explained in the F.I.R. Itself; that the occurrence is admitted by the appellant but he could not discharge his onus that he acted in self-defence; that concessions given by the Investigating Officer were not based on any evidence, hence, were not binding upon the Court; that the fire hit on the forehead, therefore, there was no need to cause another fire; and that the appellant acted in a callous manner and did not deserve any leniency.
9. The learned counsels appearing on behalf of the State have adopted the line of arguments advanced by the learned counsel for the complainant and support the judgment passed by the learned trial Court.
10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. The occurrence has been admitted by the appellant. However, according to him, he caused fire in order to defend his person and property.
11. In order to prove its case the prosecution produced Atta Muhammad P.W.1 (father of the deceased) and Noor Muhammad P.W.2 (brother of the deceased). Muhammad Arif father of the appellant and Atta Muhammad father of the deceased were step-brothers and their agricultural land was adjacent. It is also in evidence that both the parties used to irrigate their lands through a common Khal, which was used for irrigation by three partners, who had three tube-wells. It was stated in the F.I.R. That the grievance and enmity existed between the parties for the last 5/6 years over lands and one day prior to the occurrence quarrel had taken place between the accused and Allah Ditta-deceased. The A parties knew each other very well and there is no question of mistaken identity. The statements of both the witnesses, as far as causing of firing by Mohy ud Din-appellant is concerned, are consistent and are supported by the medical evidence. The causing of fire is admitted by the appellant. Now the only question, which is to be seen, is whether the fire was caused in self-defence or it was an intentional murder as narrated by the P.Ws. Both the P.Ws.
Stated that one day prior to the occurrence the accused gave beating to Allah Ditta-deceased.
According to Noor Muhammad P.W.2, all the three accused gave beating to Allah Ditta at 9/10:00 a.m. But his brother (Allah Ditta) did not raise any hue and cry and took beating quietly. P.W.1 complainant also stated that one day prior to the occurrence all the three accused gave beating to Allah Ditta at about morning time on dispute of land. He further stated that accused gave fists and kicks blows to Allah Ditta in his presence but he did not retaliate or even abuse the accused at that time. He admitted that the deceased was having sound health but did not say that the deceased retaliated in any manner. This gentlemanly conduct on the part of Allah Ditta is not believable. It appears that this motive was created in order to prove that it was an intentional murder. It was noteworthy that though Police Station was situated at a distance of 9 KM (less than 6 Miles) the matter was reported to the police at 10.30 p.m. After 5-1/2 hours of the occurrence.
According to complainant, the accused had confined him and the P.Ws. In the house. However, P.W.2 admitted that he and his brother both had licensed rifles with them and it was not in evidence that while the P.Ws. Were running to their Ehata they were either chased by the accused or fired upon. The delay remained unexplained and leads to irresistible conclusion that time was spent to carve out story to implicate the father and brother of the appellant as well.
12. Now coming to the defence plea. Though according to appellant, Allah Ditta hired some bad character (Badinashes), he diverted the water of the tube-well of the appellant to his fields and then he and his companion Ghundas fired towards his house and Allah Ditta also resorted to firing.
However, the firing stopped on the intervention of the lady-folk and when it became dark Allah Ditta and his companion Ghundas let loose buffalo in the paddy crop and thereafter Allah Ditta started firing. His hired Ghundas also started firing with their rifles and in order to save his life and property he fired towards the assailants, who were on their way to his house, hence, the fires caused by him hit Allah Ditta. The story of firing and cross-firing is not supported by any walls of the house of appellant. No one received any injury from the evidence of recovery of empties, nor were any signs of firing seen on the Daccused side at the hands of the deceased or his companion Ghundas. It is also noteworthy that though according to appellant himself the first round of cross- firing ended after intervention of the womenfolk yet the matter was not reported to the police till second round of firing. The plea of self-defence taken by the appellant is not supported by the circumstances of the case. However, as noted above, the complainant party has also not come out with the whole truth. The Investigating Officer admitted that according to his investigation buffalo of the complainant had entered into paddy crop of the accused. He further admitted that according to his investigation Allah Ditta received fire when he had gone to get his buffalo back. It is obvious that the occurrence had not taken place in the manner as described by the prosecution.
It is not a case of repeated fires.
13. Considering all the circumstances of the case, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C. We reduce his sentence to life imprisonment. Benefit of section 382-B, Cr.P.C. Is given to the appellant. The appellant is directed to pay compensation amounting to Rs,1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. In case of non-payment or non-realization of compensation the appellant would suffer six months' S.-I. The judgment passed by the learned trial Court stands modify in the above terms.
14. This appeal is partly allowed. Murder Reference is answered in the negative. Death sentence is not confirmed.