HASNAT AHMAD KHAN, J.- Through this single judgment I intend to dispose of Criminal Appeal No.757 of 2004 filed by Mst. Naseem Akhtar alias Akbari Begum and Tafazul Hussain appellants, Criminal Appeal No 753 of 2004 filed, by Mst. Noor Bhari appellant, Criminal Appeal No. 754 of 2004 filed by Mahboob alias Pappu, Abdul Ghafoor and Khalil Ahmad appellants and Criminal Revision No. 42 of 2005 titled by Mst. Noor Bhari, petitioner as all these matters are stemming from one and the same judgment dated 29-11-2004 passed by the learned Additional Sessions Judge-II, Muzaffergarh Vide the said judgment the State case registered vide F.I.R. No.56 of 2003 dated 13-2- 2003 registered at Police Station, Rohilanwali in respect of offences under sections 302/324/ 34, P,P.C. Lodged at. The instance of Hakim Ali (since dead) as well as complaint case under sections 452/337-L(ii)/337-A(ii)/ 337-F(v)/148/l49, P.P.C. Filed by Tafazal Hussain were disposed of together.
2. In the State case Tafazal Hussain, Muhammad Akram, Mst. Naseem Akhtar alias Akbari Begum.
And Wajid-ur-Rahman were tried by the said Court while in the complaint case Atta Ullah, Mahboob alias Papu, Abdul Ghafoor, Khalil Ahmad and Mst.. Noor Bhari were tried under the above- mentioned sections.
3 . At the conclusion of the trial in the State case Muhammad Akram and Wajid- ur-Rehman were acquitted of the charge while Tafazal Hussain appellant of Criminal Appeal No.757 of 2004 was found guilty under section 302(b), P.P.C. And was sentenced to suffer imprisonment for life whereas Mst. Naseem Akhtar alias Akbari Begum appellant was acquitted of the charge under section 302/34, P.P.C. She was however, convicted under section 337-A(iv), P.P.C. For giving injuries to Mst.
Noor Bhari and sentenced to suffer three years' R.l. She was also directed to pay Arsh equal to 15% of Diyat.
4. In the complaint case filed by Tafazal Hussain complainant, Mst. Noor Bhari had been convicted under section 337-F(i), P.P.C, for causing injuries on the person of Mst. Naseem Akhtar alias Mst.
Akbari Begum and sentenced to suffer one year R.l. She was also directed to pay Rs.20,000 to Mst.
Akbari Begum. In the same Case, Khalil, Mahboob and Abdnl Ghafoor were convicted under section 337-F(i), P.P.C. For causing injuries on the person of Muhammad Akram and each one of them was sentenced to one year R.l. Khalil and Mahboob were further directed to pay Rs.25,000 each as Daman. All the three said accused were also convicted under section 337-L(ii), P.P.C. And sentenced to two years' R.l. Each. Khalil and Mahboob accused were further directed to pay Rs.5,000 each as Daman. All the three accused were further convicted under section 337-A(i)/337- E(a) and 337-L(ii) P.P.C. For causing, injuries on the person of Tafazal Hussain and sentenced to suffer two years' R.l. Each under section 337-A(i) P.P.C. Mahboob and Khalil accused were directed also to pay Rs.5000 as Daman each. All three of them were also sentenced under section 337-E(a), P.P.C. (though wrongly) to suffer one year's RI. Each. Mahboob and Khalil were directed to pay Rs.
5,000 each as Daman. (The trial Court should have sentenced under section 337-F(i) and not under section 337-E(a), P.P.C). All three of them were further sentenced under section 337-L(ii) for two years' R.l. Each. All the sentences were directed to run concurrently and benefit of the provisions of section 382-B, Cr.P.C. Was also granted to them. Atta Ullah co-accused was however, acquitted of the charge
5. Brief facts of the prosecution story as narrated in the complaint filed by Tafazal Hussain are that on 13-2-2003 at about 9-00 a.m. He along with his mother, namely, Mst. Naseem Akhtar alias Akbari Begum, Muhammad Akram and Wajid-ur- Rehman was present in his house where Hakim Ali accused (now deceased) armed ' with .12 bore gun, Irshad alias Taidi (now deceased) armed with Hatchet, Atta Ullah armed with .12 bore gun, Mehboob alias Papu, Khalil Ahmad alias Khilli, Naeem and Joora all four armed with Sotas, Abdul Ghafoor armed with pistol .30 bore, Mst. Ghafooran, Mst.
Noor Bhari and Hanif alias Hanifa, armed with iron rods after making aerial firing extended threats to vacate the house as well as dire consequences, trespassed into the house and committed murderous assault on the complainant party. Hanif gave iron rod blow hitting Wajid-ur-Rehman on his right wrist and right 'knee. Mst. Ghafooran and Mst. Noor Bharri attacked Mst. Akbari with their iron rods and hit on various parts of her body. Mehboob, Khalil and Naeem accused attacked upon Muhammad Akram and injured him with- Sotas. The complainant tried to intercept upon which Irshad alias Taidi, Mahboob alias Papu, Khalil alias Khilli, Naeem and Joora attacked upon him.
Irshad alias Taidi gave hatchet blows on his head, palm of left hand and again on left side of his head. The complainant and Irshad accused statedly grappled with each other upon which Hakim Ali accused fired a shot upon the complainant but the same hit Irshad alias Taidi who succumbed at the spot. Thereafter the accused ran away from the spot making aerial firing. It was further alleged in the complaint that during this occurrence, Mst. Noor Bharri also got injuries. Motive for the occurrence as narrated in the complaint was that Hakim Ali accused was having a dispute with Tafazal Hussain complainant over the house and wanted to take forcible possession of the same due to which the occurrence took place.
6. In the State case, brief facts- of the prosecution story and the background leading to the present occurrence as unfolded through the F.I.R. (Exh..P.N.) lodged by Hakim Ali Complainant was that he along with his daughter, namely, Mst. Ghafooran Bibi lived in the house situated in Qasba Rohailanwali. A few days prior to the present occurrence, his said daughter went to the house of her in-laws situated in Taranda Meer Khan. In her absence, Tafazul Hussain along with Wajid Ali and Mst. Naseem Akhtar alias Akbari broke out the lock of the house forcibly and took over the possession. The complainant brought the matter into the notice of Muhammad Asghar, Ex- Chairman who settled the dispute and fixed Rs.25,000 as sale price of the disputed house which were to be paid by Tafazul Hassan and Wajid Ali on 13-2-2003, On the day of occurrence at 9-00 a.m: the complainant along with his sop Irshad alias Taidi, Rana Ghafoor and Khalil Ahmad went to the house of Tafazul Hussain. Tafazul Hussain and Wajid Ali accused were standing near the disputed house. Irshad alias Taidi knocked at the door upon which Mst: Naseem Akhtar alias Akbari armed with Sota and Tafazal Hussain armed with carbine came in front of the door and dragged Irshad alias Taidi inside the compound of the house. The complainant party raised hue and cry and saw Wajid Ali, Police Constable, armed with .12 bore gun and Muhammad Akram armed with .30 bore pistol. In their view, Wajid Ali accused started firing in the air whereas Tafazal Hussain accused made straight fire hitting Irshad on left side of his neck near the chest. Wajid Ali accused made second fire shot also hitting Irshad on the left side of his neck near the chest. Mst. Naseem Akhtar also gave sota blow on the back side of his head. In the meanwhile Mst. Noor Bharri wife of. The complainant also reached there upon which Muhammad Akram accused fired a shot with his pistol hitting Mst. Noor Bharri on her left arm. Mst. Akbari accused gave a sota blow landing on the back side of her head. Irshad Ahinad alias Taidi succumbed to his injuries at the spot. Hence the F.I.R.
7. On the other hand, Tafazul Hussain one of the accused nominated in the F.I.R. Instituted a complaint before the learned Illaqa Magistrate who after recording the preliminary evidence summoned all the accused mentioned therein to face trial under sections 452/337-L(ii)/337-A(ii)/ .
337-F(v)/148/149, P.P.C. As the State case was pending before the Court of a learned Addl. Sessions Judge, Muzaffergarh, the complaint case was also sent to the said Court for trial. In response to the summons issued by the learned trial Court, Atta Ullah, Mahboob alias Papu, Abdul Ghafoor, Khalil Ahmad and Mst. Noor Bhari put up their appearance while accused Naeem, Jhoora, Mst.
Ghafooran, Hanif alias Hanifa were declared as proclaimed offenders and proceedings under section 512, Cr.P.C. Were initiated against them and their cases were separated. During pendency of the trial, Hakim Ali accused (complainant of the State case) died. During the trial, Tafazal , Hussain complainant filed an application for the commencement of the complaint case prior to the State case which was accepted and the trial in the complaint case was initiated.
8. At the trial of the complaint case Tafazul Hussain, Wajid-ur-Rehman, Muhammad Akram and Mst. Akbari appeared as P.Ws. 1 to 4 respectively to furnish the ocular account.
Dr. Hafiz ur Rehman Radiologist who had made X-Rays of Muhammad Akram, Wajid-ur-Rehman, Tafazal Hussain P.Ws. Appeared as P.W.5. The doctor deposed that according to the X-ray report No.59 (Exh.P.B.) of skull, Muhammad Akram had no bony injury. As per his X-Ray Report bearing No.60 (Exh.P.C.) of right knee of Wajid-ur-Rehman P.W., no bony injury was seen. The doctor further deposed that Tafazul Hussain was X-Rayed vide No.61 (Exh.P.D.) and no injury was seen in his nasal bone or skull vault. However, X-Rays of left hand showed fracture of shaft of second meta carpal bone and fracture of tip of terminal phalanx of index finger.
Lady Dr. Salma Bano Ghauri who had medically examined Mst. Naseem Akhtar alias Akbari Begum appeared as P.W.6. According to the said Doctor Mst. Akbari had . Suffered the following injuries
(1) Swelling measuring 5 x 6 c.m. On right side of the skull. X-ray was advised to confirm any sign of fracture.
(2) A swelling measuring 8 x 10 c.m. On left upper arm.
(3) A bruise measuring 6x8 c.m. On left side of back.
(4) A contusion 10 x 8 c.m. On right buttock.
Tafazul Hussain, Muhammad Akram and Wajid-ur-Rehman injured P.Ws. Were medically examined by Dr. Muhammad Saddiq Shah on 14-2-2003 vide medico legal reports bearing Nos.55-S, 56-S and 57.-S of 2003 respectively. However, the said doctor died before he could be examined at the trial. Therefore; Dr. Fiaz Ahmad Hashmi C.M.O. Who had worked with said Dr. Muhammad Saddiq Shah appeared as P.W.7 to verify his hand writing and signatures over the above- mentioned medico legal reports (Exhs.P.F. P.G. And P.H. Respectively) prepared by him.
9. All the accused of the complaint case, i.e. Mst. Noor Bharri, Mahboob alias Papu, Khalil Ahmad alias Khilli, Atta Ullah and Abdul Ghafoor were examined under section 342, Cr.P.C. In answer to question No. 10, Mst. Noor Bhari accused replied as under:- "Tafazul Hussain etc. Had forcibly occupied the house belonging to mV husband Hakim Ali which was in possession of Mst. Ghafooran who had shifted to Tgranda Mir Khan. This matter was placed before Ch. Muhammad Asghar Kamboh Ex-Chairman who decided that a sum of Rs.25,000 should be paid by Tafazul Hussain etc. To Hakim Ali on 13-2-2003. Hakim Ali along with Irshad alias Taidi, Rana Ghayyur, Khalil Ahmad went to Tafazul- Hussain for getting the amount of Rs.25,000. When Irshad alias Taidi knocked the door Mst. Naseem alias Akbari Begum armed with sota and Tafazul Hussain armed with gun dragged Irshad deceased inside the house. In my view Tafazul Hussain fired directly on the person of Irshad alias Taidi which hit on his neck over the chest. Mst. Akbari had also given a sota blow on the back of head of Irsahd alias Taidi. I also reached the place of occurrence, laid over Irshad alias Taidi, my son, then Muhammad Akram and Mst. Naseem alias Akbari Begum injured me. The complaint filed by Tafazul Hussain is a defence against the case registered against them vide F.I.R. No. 56' of 2003 dated 13-2-2003 under sections 302/324 of P.P.C."
The other co-accused adopted the stand taken by Mst. Noor Bhari. None of the accused, however, elected to make statement on Oath under section 340(2), Cr.P.C.
10. In the State case, the prosecution produced nine witnesses in all out of which Mst. Noor Bhari, Khalil Ahmad and Abdul Ghafoor (P.Ws. 1 to 3) furnished the ocular account. Dr.. Muhammad Sadiq Surrani furnished medical evidence and Allah Diwaya S.I. Who had investigated the case appeared as P.W.8. Rest of the P.Ws. Are formal in nature.
Dr. Muhammad Saddiq Surrani (P.W.6) had conducted post-mortem examination on the dead body of Irshad deceased on 13-2-2003 at 11-00 a.m. And found the following injury on his body:- "A lacerated wound 9x ,6 c.m. In between the supra and infra clavicular fossa, fracturing the left clavical going deep. Margins of the wound were burnt."
26 Pallets with a plastic wad were recovered from the wound near body of second thoracic vertebrae.
In the opinion of the doctor the death was result of shock and excessive bleeding which had occurred due to rupturing of major blood vessels on the left side of neck which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and was caused by fire- arm. Probable time during the injury and death was immediate while between death and post- mortem was within two hours.
On the same day, at the same time, the said doctor had also medically examined Mst. Noor Bhari and found the following injuries on her person:-
(1) A penetrating wound circular in shape 1 x 1 c.m. On the darso ulnal aspect of left fore arm just above the middle part, crepitus felt advised X-ray. Blood was oozing from the wound.
(2) An abrasion with bruise and swelling 2x3 c.m. On dorum and top of skull.
Both the injuries along with kind of weapon were kept under observation. On receipt of X-ray, fracture of upper part of shoft of Ulna was found. Therefore, the injury was declared as Jurrah Ghair Jaifa Hashma. Since no evidence of opaque or metallic delisty foreign body shadow was seen, therefore, kind of weapon was declared as pointing blunt weapon. Duration between injuries and medico legal examination was within two hours.
11. During the trial, the complainant also submitted an application to summon Muhammad Asghar Kamboh as court witness as he had not been cited in the calendar of witnesses in the report under section 173, Cr.P.C. The said application was allowed and resultantly the said witness appeared as C.W.l.
12. After closure of 'the prosecution evidence in the State case, all, the accused were examined under section 342, Cr.P.C. While responding to Question No. 16 as to why the case against him, Tafazul Hussain accused replied as under:~ "My father Nemat Ali (since dead) was the elder brother of Hakim Ali complainant who died in my childhood. My father and my uncle Hakim Ali were joint agricultural land as well as other property.
After the death of my father Hakim Ali taken into possession all the property owned by my father.
After the death of my father, my mother Mst. Akbari Begum joined the police department and when I grown up, I also join the police department as driver. My mother contracted second marriage with Waj id-ur-Rehman.
My father before my birth constructed a house in Qasba Rohailanwali and after his death, we were residing in that house. We made an application before the Tehsildar regarding the partition of joint holding property against Hakim Ali, which was accepted and warrant for possession was issued but the same were not complied with due to the intervention of Hakim Ali. The revenue staff through D.D.O. (R), Muzaffargarh took the police aid.
On 13-2-2003, at about 9-00 a.m. I along with Akbari Begum, my mother, Muhammad Akram, my maternal uncle and Wajid-ur- Rehman, my stepfather were sitting in our house and were busy in taking meal. All of sudden, Hakim Ali Armed with double barrel .12 bore gun, Mehboob armed with Sota, Abdul Ghafoor armed with pistol .30 bore, Khalil, Naeem, Jhoora armed with sotas, Mst.Ghafooran, Mst. Noor Bharri and Hanif armed with iron rods after making aerial firing entered into our house and asked us to vacate the house and also extended threats for dire consequences.
They made murderous assault upon us. Hanif attacked upon . Wajid-ur- Rehman with iron rod which hit him on his right wrist and right knee, Mst. Ghafooran and Mst. Noor Bhari attacked upon my: mother Mst. Akbari Begum with iron rod and injured her. Mehboob, Khalil and Naeem attacked upon Muhammad Akram with sotas and injured him. When I tried to save my mother, then Irshad alias Taidi, Mehboob, Khalil, Naeem and Joora attacked upon me. Irshad alias Taidi made, hatchet blow on my head and I raised my left hand in the air to save my head and the same blow hit my left palm of hand. Irshad alias Taidi made second blow with his hatchet and the same blow landed on left side of my head: Then I and Irshad alias Taidi grappled with each other. In the meanwhile Hakim Ali made fire shot with his gun upon me but the same fire hit instead of me to Irshad alias Taidi who succumbed at the, spot. Mehboob, Khalil, Naeem and Joora also injured me. Then all of them after making aerial firing left the spot along with their respective weapons. Hakim Ali etc. Are vagabonds/ and nefarious type persons, with their common object attacked upon us and committed murderous assault uponus.
After the occurrence, I reported the matter to local police but the police collided with the complainant party and did not register our case but however, registered a murder case falsely against us and after conducting false investigation challaned us. I along with my co-accused appeared before the Investigating Officer of our own and we were medically examined.
The investigation of this case was conducted by Allah Diwaya S.-I. Saddiq Hussain, S.-I./S.H.O. And Muhammad Tufail Watto D.S.P. And all of. Them have declared that the complainant party attacked upon us and in this regard Saddiq Hussain S.-I./S.H.O. Prepared report under section 173, Cr.P.C. Irshad alias Taidi was succumbed at the spot by the firing of his own father Hakim Ali which was proved by us in the connected complaint case by producing P.W.l, P.W.2 and P.W.3. During cross- examination Mst. Noor Bharri admitted that her son Irshad alias Taidi succumbed to his injuries by the hands of Hakim Ali, her husband."
The other accused attributed their involvement in the case to the enmity with the complainant party.
13. After conclusion of the trial both the parties were found guilty and convicted and sentenced as mentioned above.
14. Ch. Faqir Muhammad, Advocate, learned counsel for Tafazul Hussain and Mst. Nasim Akhtar appellants has contended that in fact it was the complainant party of the State case who had trespassed into their house and had caused injuries to Tafazul Hussain, Mst. Akbari Begum, Muhammad Akram and Wajid-ur- Rehman and during the said process Irshad deceased received a gun shot of Hakim Ali which proved fatal; that the defence version is more probable than the prosecution version because according to the prosecution's own version, at least five persons had visited the house of Tafazul Hussain to receive an amount of Rs.25,000 which according to the arbitrator was payable to them but the said version does not appeal to reason because for that purpose there was no need of going so many persons to the house of Tafazal Hussain; that admittedly there was dispute between the parties regarding the landed property as well as the house which was in possession of Tafazal Hussain; that admittedly the occurrence had taken place within the boundary wall of the house of Tafazal Hussain which shows that Irshad Hussain deceased and his allies were in fact aggressors; that the injuries suffered by Tafazul Hussain, his mother Mst. Akbari Begum, Muhammad Akram and Wajid-ur- Rehman were totally suppressed by the prosecution; that the investigation was dishonest and the Investigating Officer, intentionally withheld the medico legal reports pertaining to the accused side which were produced during recording of the evidence of the Investigating Officer after taking out said medico legal certificates from the police file; that in the F.I.R. It was alleged that Tafazal Hussain had fired with carbine while during investigation a single barrel gun was shown to have been recovered from him; that quite amazingly six empties of cartridges matched with a double barrel gun which clearly shows the mala fides of the Investigating Officer. On the basis of the said contentions, learned counsel for the said appellants has prayed for clean acquittal of the appellants. Lastly he has contended that though the appellants had not specifically taken the plea of self- defence but it is settled law that plea of self-defence, even if not specifically taken can be gleaned from the prosecution evidence and circumstances of the case can be considered. In support of his contention, he had relied upon Masha! Khan v. The State PLD 1988 SC 25; Khalid Zaman v. The State 1992 PCr.LJ 2289; Ghulam Hussain v. The State PLD 1972 Lahore 153; Wary am and 3 others v. The State PLD 1975 Lahore 152; Shahid Mumtaz and others v. The State 1996 PCr.LJ 1722 and Noor Khan v. The State 1996 PCr.LJ 790.
15. Conversely, the learned counsel appearing on behalf of Mst. Noor Bharri who is widow of the complainant of the State case has strenuously opposed the appeal filed by Tafazul Hussain and Mst. Naseem Akhtar alias Mst. Akbari Begum. He has contended that the prosecution had proved its case against both the appellants beyond shadow of doubt through the ocular as well as documentary evidence; that the defence plea is a cook and bull story; that none of the accused/appellants had received any injury at the time of occurrence and the medico legal certificates were .Fabricated after the occurrence by inflicting self- suffered injuries; that the prosecution story got due support from the evidence of Muhammad Asghar who had appeared as C.W.l. He has placed reliance upon the cases of Gullan and others v. The' State 1982 SCMR 1239; Muhammad Dilber alias Muhammad Boota and 2 others v. The State 2002 SCMR 142.5 and Farid v.
The State PLD 2002 SC 553. On the dint of the said submissions he has prayed for dismissal of the appeal filed by Tafazul Hussain and Mst. Naseem Akhtar alias Akbari Begum. While supporting Criminal Revision No.42 of 2005 the learned counsel has. Argued that Tafazul Hussain respondent did not deserve leniency and he should be awarded death penalty. In support of Criminal Appeals Nos.753 and 754 of 2004 filed by Mst. Noor Bhari and Mehboob alias Papu, Abdul Ghafoor and Khalil Ahmad appellants respectively, learned counsel for the appellants has contended that the injuries allegedly received by Tafazul Hussain, Mst. Akbari Begum, Muhammad Akram and Wajid-ur- Rehman being self suffered, the apjpellants are entitled to be acquitted. .
16. I have heard both the parties in extenso and have gone through the record.
17. First of all, I would like to deal with the appeal filed by Mst. Naseem Akhtar alias Mst. Akbari Begum and Tafazal Hussain appellants.
18. At the very outset, it has been observed that it is a case of two versions; one advanced by the prosecution (Mst. Noor Bharri etc.) and the other by the defence (Tafazul Hussain- etc.). The case being of two versions, the Court has to see as to which of the two versions is more probable.
19. Tafazul Hussain appellant was nephew of Hakim Ali complainant i.e. Son of his real elder brother meaning thereby that Irshad alias Taidi deceased was his first cousin and Mst. Noor Bharri was his aunt (Chachi). Wajid-ur-Rehman, P.W. Was step father and Muhammad Akram P.W. Is real maternal uncle of Tafazul Hussain appellant. Therefore, admittedly the parties are closely related inter se. Hakim Ali complainant had alleged in the F.I.R. That Irshad deceased had been dragged into the house by Tafazul Hussain etc. While in the compliant Tafazul Hussain had averred that Irshad etc. Had come to their house and had attacked upon them. Thus the place of occurrence being the house of Tafazul Hussain is also admitted by both the parties. Similarly both the parties were immediately medically examined after the occurrence. Therefore, time of occurrence is also admitted. Likewise both the parties . Had admitted that bone of contention leading to the present occurrence was the house which was, admittedly in possession of Tafazul Hussain etc. At the time of occurrence. Thus the motive is also admitted.
20. According to the prosecution story as narrated in the F.I.R. Mst. Naseem Akhtar etc. Appellants had forcibly taken over the possession of the house which was previously in possession of the daughter of the complainant. The dispute between the parties was allegedly sort . Out by the intervention of Muhammad Asghar (C.W. According to his virdict, Tafazul Hussain etc. Had to payment amount of Rs.22,000 to the complainant. For the recovery of said amount , Hakim Ali complainant, Irshad alias (deceased), Rana Ghayoor and Khalil Ahmad had visited the house of Tafazul Hussain on the fateful day for demanding the said amount, upon which Irshad Ahmad deceased was allegedly dragged into the house of Tafazul Hussain and thereafter he was murdered while his mother was also shot at by the accused. , On the other hand the case of the defence is that the complainant party was criminal type of persons. They had dispute with Tafazul Hussain etc. Over the landed property as well as the house which was in possession of Tafazul Hussain. It has also come on the record that all the joint property of both the parties was in possession of Hakim Ali complainant and partition proceedings between the parties were going on at the time of occurrence. According to the defence version, the complainant party had forcibly entered into the house of Tafazul Hussain and attacked while armed with formidable weapons including hatchet, sotas and double barrel gun etc. With a motive to dispossess Tafazul Hussain and his family from the said house.
20-A. Admittedly the occurrence had taken place in the house of Tafazul Hussain. The site-plan shows that the deceased had received injuries not near the main entrance of the house of Tafazul Hussain but near the residential room situated in side the house. That prima facie shows that the story of dragging the deceased into the house by Tafazul etc. Is not appealing to reasons. Had it been so, the deceased would have been murdered near the entrance of the house and if he had been dragged upto the residential room, there might have been some kind of injuries of dragging like scratches etc. But no such injury was found on' the body of the deceased during the autopsy.
As far as the defence story of launching an attack by the complainant party is concerned, that appears to be plausible'. Admittedly there was some dispute between Tafazul Hussain etc. On one side and the complainant party on the other, regarding the joint landed property as well as the house which became the apple of discord between the parties. It is the case of Mst. Noor Bhari etc. That dispute regarding the said house was sorted out by the intervention of some respectables according to which Tafazul Hussain appellant was liable to pay Rs.25,000 to Hakim Ali complainant.
The story of visiting the complainant party for demand of said amount also does not appeal to reason inasmuch had it been the purpose for visit to the house of Tafazul Hussain, the arbitrator would have accompanied them. There is yet another flaw in the prosecution story inasmuch as for demand of said amount which according to the complainant had been amicably settled, there was no need of visiting five persons (at least) as admitted by the complainant party himself and that too after being armed with deadly weapons. During the occurrence four persons including Mst.
Naseem Akhtar and Tafazul Hussain appellants had received injuries. All of them were medically examined on 14-2-2003. Their medico legal certificates were duly procured by the Investigating Officer and placed on the police file but mala fidely the said certificates were not made part of judicial file and same were placed on judicial record as ExhS;D.B., D.C., D.D. And D.E. Respectively, during recording of evidence of the Investigating Officer. According to Exh.D.B., Mst. Akbari appellant had received four injuries whereas as per Exh.D.C. Tafazul Hussain got six injuries including injuries of sharp edged weapon while Muhammad Akram and Wajid ur Rehman had received 5 and 2 injuries respectively according to Exhs.DD and DE. In the F.I.R. These injuries were totally suppressed by the complainant which smacks his mala fide. It has been further noticed that during the trial the prosecution had failed to challenge the nature of the injuries by claiming that the same were self- suffered. According to the defence version Tafazul Hussain had received sharp edged injuries on his head and hand respectively at the hands of Irshad deceased. Said version finds due support from the medico legal certificate (Exh.D.C.) pertaining to Tafazul Hussain appellant. According to Dr. Muhammad Hafeez-ur-Rehman Radiologist (P.W.5) Tafazul Hussain had got fracture of shaft of second meta carpal bone and fracture of terminal phalanx of index finger. The said report further supports the claim of Tafazul Hussain and rule out the possibility of injuries suffered by him as being self- suffered.
21. Perusal of the evidence shows that all the persons belonging to the complainant side including the deceased and Mst. Noor Bharri injured P.W. Had criminal bent of mind. Mst. Noor Bhari while in the witness-box had admitted that her son Maqsood Ahmad was involved in 15 criminal cases.
Though she did not admit that her. Husband i.e. Hakim Ali complainant (deceased) was involved in various cases registered at various police stations but she did not categorically refute the said suggestion. She had further 'admitted during cross-examination that all the joint landed property even belonging to Tafazul Hussain was in possession of her husband. The defence had put a categorical suggestion to her by claiming that her husband was involved in certain specific cases in which he had been declared proclaimed offender but she opted to refute the said suggestion.
However, she admitted that Ghayoor Ahmad, who had admittedly accompanied the complainant party at the time of occurrence is fugitive from law after being convicted in a case under section 302, P.P.C. Similarly Khalil Ahmad (P.W.2) had admitted during cross-examination that he was involved in a case regarding illegal possession and theft. He further admitted that !'a criminal case against Mst. Noor Bhari P.W. Had been registered regarding the offence pertaining to possession of narcotics. The said background of the complainant party clearly shows that they are not persons having good antecedents and in the backdrop of their character possibility of attacking the house of Tafazul Hussain etc. Appellants for taking forcible possession cannot be ruled out.
22. The case of the prosecution is even otherwise based upon some material and dishonest improvements. Initially it was case of the prosecution that the deceased had received two fire-arm injuries at the hands of Tafazul Hussain and Muhammad Akram but after receipt of post-mortem report the prosecution improved its version and claimed that only Tafazul Hussain appellant had caused a fire-arm injury on the person of the deceased. Similarly it was' case of the prosecution that Mst. Noor Bharri (P.W.l) had received a fire-arm injury but the same had been contradicted by Dr. Muhammad Sadiq Surrani (P.W.6) who had given his opinion that the said injury was caused by a pqinted blunt weapon. All the narration of the above mentioned facts clearly shows that the defence version of acting in self-defence appears to be more plausible and probable than that of the prosecution.
23. Now the only question to be resolved is as to whether the deceased had received injury at the hands of Tafazul Hussain appellant as claimed by the prosecution or he received the said injury at the hands of Hakim Ali, his father as claimed by the defence. According to the prosecution version, initially set up in the F.I.R. Tafazul Hussain appellant had caused injury to the deceased by firing shot from carbine but during the trial the prosecution story was improved keeping in view the empties of gun cartridges and recovery of gun allegedly at the instance of Tafazul Hussain appellant by claiming that the said appellant had fired with a gun. To strengthen its case, the prosecution had relied upon the recovery of a gun at the instance of Tafazul Hussain and report of Forensic Science Laboratory according to which the empties recovered from the spot had matched wit the double barrel gun llegedly recovered from him but interestingly while preparing the recovery memos, the Investigating Officer had made a full-scap diagram/sketch of the gun allegedly recovered from the appellant vide Exh.P.D./l which shows that it was that of a single barrel gun and even in the said sketch the Investigating Officer had' specifically mentioned the same as single barrel gun. But amazingly while preparing the recovery memo, the same was shown to be a double barrel gun. Besides that the alleged recovery of gun was made from an open place situated near cluster of trees contiguous to a grave-yard which shows that the same was not recovered from a place which was in exclusive possession of the appellant. In view of the said inconsistency the -report of the Forensic Science Laboratory loses its importance and one can easily give the. Benefit of doubt to the appellants by accepting his plea that the deceased had received the fire of double barrel gun made by Hakim Ali. It would be appropriate to mention at this stage that it was the consistent case of Mst. Naseem Akhtar and Tafazul Hussain appellants right from the registration of the F.I.R. That it was the complainant party who was the aggressor. Such statements were admittedly made before the Investigating Officer also.
24. I am conscious of the fact that while making statement under section 342, Cr.P.C. The appellants had not taken specific plea of acting' in self-defence. Rather they had advanced the plea that during the scuffle which was the result of I attack by the complainant party, the deceased had received injury at the hands of Hakim Ali complainant. But he had not produced any evidence to support his said plea. But the tenor of the cross-examination shows that it was a case in which Tafazul Hussain appellant along with others had acted in self-defence. Though he had failed to raise specific plea that he had fired in self-defence but according to the settled law as laid down by the superior Courts (referred above) the plea of self-defence even if not specifically taken can be gleaned from the evidence and circumstances of the ease. Consequently even if the plea of Tafazul Hussain regarding the receipt of fire-arm injury by the deceased at the. Hands of Hakim Ali is discarded even then the benefit of self-defence is to be given to him as gleaned from the prosecution's evidence itself, inasmuch as more than five persons but of whom some are uptil now proclaimed offenders had entered into the house of appellants and, therefore, after receiving J the injuries (including sharp edged) by four persons at the hands of the complainant party a right of defence of their persons as well as property did accrue in favour of the appellants. It is settled law that once a right of self-defence accrues it cannot be measured in golden scales. Even otherwise facts and circumstances of the present case show that the accused did not exceed the right of self-defence. The case-law cited by the learned counsel for the appellants is fully applicable to the facts of the case in hand while the case-law cited by the learned counsel for the complainant, instead of supporting his case is doing otherwise.
25. In view of what has been noticed and discussed above, I find that even if it be- admitted that the deceased was shot at by Tafazul Hussain appellant, no offence whatsoever had been committed by him and Mst. Naseem Akhtar had also acted in her self-defence. Therefore, Criminal Appeal No.757 of 2004 filed by Mst. Naseem Akhtar alias Akbari Begum and. Tafazul Hussain appellants is accepted and they are acquitted of the charges. Mst. Akbari appellant is already on bail. She is absolved of the surety bonds which may be cancelled. Tafazul Hussain appellant is in jail. He is set at liberty and be released from jail forthwith if not required to be detained in any other case.-
26. In view of the above said finding, I do not find any force in Crl. Revision No.42 of 2005 filed by Mst.
Noor Bhari petitioner which is accordingly dismissed.
27. So far as Crl. Appeals Nos.753 and 754 of'2004 are concerned, in view of my above finding and the evidence produced by the complainant in complaint case, it has been proved beyond shadow of doubt that it was the complainant party of the State case which had aggressed upon Tafazul Hussain party and during the said process, they had caused injuries to Tafazul Hussain etc. Consequently I find no substance in these appeals. So far as the sentences awarded to them are concerned, Mst. Noor Bhari appellant being a lady and unfortunate mother of the deceased, though he had died during an attempt to have possession of a house, yet she deserves some leniency in the matter of sentence. Before the suspension of sentence she had undergone the sentence for about a month. Besides that she had suffered agony of trial since 13-2-2003.
Consequently the sentence of imprisonment awarded to Mst. Noor Bhari is reduced to already undergone. Tile sentence of Daman is, however, maintained. Similarly keeping in view of the facts and circumstances Of the case, the sentences already undergone by Mahboob Ali, Abdul Ghafoor and Khalil Ahmad appellants would meet the ends of justice and same are reduced to already undergone. However, the sentence of Daman on each head awarded to Mahboob Ali and Khalil appellants would remain in tact. With this modification in the matter of sentences, Criminal Appeals Nos.753 and 754 of 2004 are disposed of.