' SARDAR MUHAMMAD RAZA KHAN, J.---Muhammad Yousaf, Muhammad Younis, Ghulam Hadier, Nabi Ahmad, Riaz Ahmad and Hadayatullah were tried by the learned Additional Sesslons Judge Gojra under sections 302/148/149, P.P.C. For committing the murder of two brothers Muhammad Idrees and Umar Hayat. The trial commenced with reference to F.I.R. No,267 of 1997 dated 20-8-1997 of Police Station Saddar Gojra District Toba Tek Singh. Vide judgment dated 16-2-2000, the learned trial Judge convicted Muhammad Yousaf and Muhammad Younis and sentenced them to death on two counts, while, the remaining four accused were acquitted. The aforesaid convictions, sentences and acquittals were upheld by a learned Division Bench of Lahore High Court vide judgment dated 7-7-2005.
2. Muhammad Yousaf and Muhammad Youths, the convicts seek leave to appeal from the judgment aforesaid through Criminal Petition No,433-L/2005. The complainant Muhammad Shafqat has filed Criminal Petition No,455-L/2005, also seeking leave to appeal against the acquittal of the four accused aforementioned.
3. The prosecution story as narrated by Muhammad Shafqat 'complainant is to the effect, that he being a school teacher Government High School Janiwala resided at Chak No,316/JB. Muhammad Idrees and Umar Hayat are the sons of his real uncle. The complainant's hate is also adjacent to the residential ihata of Muhammad Idrees etcetera. There is a vacant plot measuring 8 marlas which is under the possession of their real brother Subedar Muhammad Riaz. A day prior to the occurrence, Muhammad Younis and Muhammad Yousaf, the convicts had dumped earth in the aforesaid ihata and ha:.1 fixed pillars for tethering cattle.
4. On the fateful day the accused party were forcibly trying to raise a boundary wall. They were forbidden from so doing and thus parties hurled abuses at each other. Complainant, Muhammad Hanif and Muhammad Latif having been attracted to the spot on commotion, intervened and settled the matter. Meanwhile Muhammad Idrees and Umar Hayat were removing bricks from the wall of their house towards the ihata aforesaid when, suddenly all the accused mentioned earlier, variously armed, appeared on the scene. Hadayatullh raised Lalkara that Muhammad Idrees and Umar Hayat be killed. Muhammad Younis gave a spear (barchhi) blow to Umar Hayat that landed on the front side of his head whereby he fell to the ground. Muhammad Idrees rushed to support him whereupon Muhammad Yousaf fired a shot from his .12 bore shotgun that hit Idrees on the left flank. He also fell to the ground. The remaining accused threw brick-bats on the fallen Umar Hayat hitting various parts of his body. Muhammad Idrees died on the spot while Umar Hayat succumbed to his injuries subsequently. Eight marlas of ihata adjoining the house of the complainant party is said to be the bone of contention.
5. Muhammad Yousaf and Muhammad Younis, the convicts in their statements under section 342, Cr.P.C. Have relied upon the detailed version of the occurrence given by co-accused Nabi Ahmad.
The relevant portion reads as under:-- "Ans........................................
' The actual facts are that myself, my co-accused Hidayatullah and Riaz were in possession of the ihata measuring 8 marlas which were in front of our house and on the western side of the house of Muhammad Idrees and Umar Hayat prior to the said occurrence since 1982 and they were also in possession on the day of occurrence. Imtiaz and Aftab my brothers and brothers of Riaz accused were levelling up the `thara' already situated in front of our house and that of Hidayatullah accused. Imtiaz and Aftab wanted to extend the said `thara' up to northern boundary of the said ihata. Imtiaz Ahmed and Aftab were doing the needful with subble and kassi respectively and were digging and putting some earth on the 'there' in order to raise the level of the same. In the meantime Umar Hayat and Muhammad Idrees deceased while both were armed with sotas, Nazir alias Pehlwan, and Arshad P.Ws. While armed with gun came there and tried to stop Imtiaz and Aftab from doing their needful on the plea that Imtiaz and Aftab were encroaching the said `thara' while levelling the same into the above said ihata. An altercation took place between Imtiaz and Aftab on one side and Umar Hayat, Muhammad Idrees, Nazir and Arshad mentioned above on the other side: Nazir Ahmad and Arshad P.Ws. Started firng at Imtiaz and Aftab while Umar Hayat tried to give sota blow to Imtiaz who saved himself by lowering himself and Imtiaz gave a subble blow to Umar Hayat in the right of his self-defence. Nazir and Arshad P.Ws. Continued firing at Imtiaz and Aftab upon which Riaz accused, who were near that place in his house came out of his house with his licensed gun and fired in the air .To scare away Umar Hayat, Idrees, Nazir and Arshad and that Idrees received a firearm injury from a stray fire from the firing made by Nazir Ahmed and Arshad P.Ws. Thereafter Umar Hayat, Idrees, Nazir and Arshad went into the house of Umar Hayat and Idrees and thereafter went to the Hospital. The entire prosecution evidence produced by the prosecution in this case is false and fabricated. Umar Hayat, Muhammad Idrees, Nazir and Arshad mentioned above were the aggressors. The complainant party being influential prevailed upon the police and falsely implicated me and my co-accused. Imtiaz and Aftab were levelling the `thara' on the said date 'at about 5-00 a.m. When Umar Hayat and others mentioned above aggressed upon Imtiaz and Aftab."
6. Learned counsel for the petitioners placed complete reliance upon the statement of the accused while developing the argument that in fact the complainant party was the aggressor. We have minutely gone through the statements of the eye-witnesses, that of the accused as well as the site plan. For numerous reasons stance of the accused cannot be taken into account. Firstly, according to them, the scuffle had taken place at 5-00 a.m. If it is true then it equally stands mentioned by the complainant in the very F.I.R. That such scuffle, if at all, was settled between the parties through intervention of the complainant. Whereas, the instant occurrence seems to be subsequent to the previous scuffle because it had taken place not at 5-00 a.m. But, at 6-30 a.m.
7. Secondly, the accused party in such a serious encounter have not received even a single inquiry despite the fact, as alleged, that the complainant party was the aggressor and had come armed on the spot. Not a bruise is sustained by the accused party which belies the story put forth by them.
Mere giving of a version by the accused does never make a case of two versions unless that given by the accused is also supported by the evidence on record. For a case, to be of two versions, it is necessary that the prosecution evidence should be susceptible of being put to two parallel interpretations. It is only then, that, the Courts should prefer the version furnished by the accused provided it rings plausible and fits in one of the interpretations. In the present case, the prosecution evidence is not susceptible of being given two interpretations. Thus, Court cannot rely upon a story coined during statements under section 342 Cr. P.C, not corroborated by prosecution evidence.
8. The next stance taken by the learned counsel was that ihata in dispute was in physical possession of accused party who were constructing a platform on the side of their house, when aggressed. When we reverted to the site plan, there was no house of the accused party abutting the ihata in dispute. Learned counsel for the complainant vehemently challenged such stance, saying, that the houses of the accused are towards the north separated from the house of the complainant by thoroughfare measuring 22 feet. Learned counsel for the petitioners could not rebut this position. From the site plan, the ihata appears to be in possession of Subedar Riaz Ahmad, the brother of the deceased.
9. The ocular testimony that the petitioners lauched an attack is supported by site plan where the petitioners at points Nos.6 & 7 are present just close to the wall of the house of the complainant.
Point No,6 is exactly located in the opening of the wall, caused by the complainant party by removing the bricks therefrom. Umar Hayat is killed by spear blow inflicted by Muhammad Younis.
Obviously, such blow could not be caused unless assailant is close to the victim. Point No,1 where Umar Hayat was killed is located almost in the middle of the interior of the house, which means that Umar Hayat was killed by Muhammad Younis inside his own house.
10. Second is deceased Muhammad Idrees who is at point No,3 again inside the house, wherefrom he rushed towards Umar Hayat to give him support but was fired at by Muhammad Yousaf hitting him at B point No,2 which again is almost in the center of the residential house of the deceased.
One cannot have two opinions about who could be the aggressor, in the circumstances.
11. The last point alleged was regarding the recovery of shotgun that matched with the empties. It is argued that such gun was purchased by the accused on 30-8-1997, ten days after the present occurrence and thus the wedding thereof with the empty was totally fake. We, in this connection, have perused the statement of Arms dealer namely Ghulam Murtaza examined by the accused as DW-1. We have also gone through the copies of the stock registers and register of sales and purchases. It is an intriguing transaction where the accused sells his licensed gun and at the same time purchases another. The entries of register are also doubtful and it does not appeal to common sense that accused involved in a case of double murder would enter into such transactions within ten days of the occurrence. The transaction is fake and was rightly so declared by the learned High Court.
12. For all that has been discussed above, we are of the view that the prosecution has proved its case through the ocular testimony duly supported by the motive, post-mortem reports as well as the recoveries. The convicts, instead of resorting to the civil Court or initiating proceedings under section 145, Cr.P.C., took the law into their own hands and committed two murders for the only reason that deceased party had made an opening in their own wall towards the disputed ihata.
The evidence is rightly appreciated by the two Courts in succession which we have no plausible reasons to differ with. There is no mitigating circumstance either, to take lenient view of the murder of two brothers. The petition is hereby dismissed and leave to appeal refused.