Asif Saeed Khan Khosa, J.--Shehzad appellant was convicted for an offence under Section 302(b), P.P.C. vide judgment dated 12-6-2001 rendered by the learned Additional Sessions Judge, Faisalabad and was sentenced to death and to pay a sum of Rs. 20,000 to the heirs of Abdul Ghafoor deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. The said appellant was also convicted for an offence under Section 324, P.P.C. for launching a murderous assault upon Muhammad Idrees (P.W.8) and was sentenced to rigorous imprisonment for five years. He was further convicted for an offence under Section 337-D, P.P.C. for causing an injury to Muhammad Idrees (P.W.8) and was sentenced to rigorous imprisonment for five years and to pay Arsh of Rs. 90,000 to the said victim.
He was also convicted for an offence under Section 337-A(ii), P.P.C. for causing an injury to Muhammad Idrees (P.W.8) and was sentenced to rigorous imprisonment for two years and to pay Daman of Rs. 1,000 to Muhammad Idrees (P.W.8). He was further convicted for an offence under Section 337-F(iii), P.P.C. and was sentenced to rigorous imprisonment for two years and to pay Daman of Rs. 4,000 to Muhammad Idrees (P.W.8). He was also convicted for an offence under Section 337-F(v), P.P.C. and was sentenced to rigorous imprisonment for three years and to pay Daman of Rs. 5,000 to Muhammad Idrees (P.W.8). All the sentences of imprisonment passed against the said appellant were ordered to run concurrently and the benefit under Section 382-B, Cr.P.C. was extended to him. Through the same judgment the learned trial Court had also convicted Gul Muhammad appellant for an offence under Section 337-A(ii), P.P.C. and he was sentenced to rigorous imprisonment for two years and to pay Arsh of Rs. 14,000 to Anwar Ali (P.W.7).
The learned trial Court had also convicted the appellants' co-accused namely Abdul Aziz for an offence: under Section 337-A(ii), P.P.C. for causing an injury to Haji Inayat Ali complainant (P.W.6) and he was sentenced to the period of imprisonment already undergone by him. The learned trial Court had, however, acquitted Muhammad Sarfraz alias. Kala accused. Shehzad and Gul Muhammad appellants have challenged their convictions and sentences before this Court through Criminal Appeal No. 899 of 2001 whereas Haji Inayat Ali complainant has filed Criminal Appeal No. 1090 of 2001 before this Court seeking setting aside of the acquittal of Muhammad Sarfraz alias Kala accused recorded by the learned trial Court. The said complainant has also preferred Criminal Revision No. 625 of 2001 before this Court seeking enhancement of the sentences passed by the learned trial Court against Gul Muhammad appellant and Abdul Aziz convict. We have heard all these matters alongwith Murder Reference No. 324 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against Shehzad appellant and we propose to decide all these matters together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. Haji Inayat Ali complainant was a resident of Sardar Colony in Chak No. 203/RB Malikpur situated within the area of Police Station Nishat Abad, Faisalabad and he had two buffaloes. The dung of the said buffaloes used to be put by the complainant party in a vacant plot of land owned by it and situated next to the complainant's house and the complainant's wife namely Mst. Zainab Bibi used to prepare dung- cakes from the same. About 4/5 days prior to the present occurrence the complainant had started raising a construction in the said vacant plot of his and, thus, in the morning of the day of occurrence, i.e. on 30-8-1999 the complainanCs wife had put the dung in another open and vacant plot situated nearby without knowing the name or address of the owner of that plot and she had started making dung-cakes but Shehzad appellant stopped the complainant's wife from making dung-cakes at that plot and asked her to leave that plot. On that occasion Shehzad appellant had used indecent words and due to that the complainant's son. namely Abdul Ghafoor, who had reached the said plot on that occasion, had developed an altercation with Shehzad appellant. The matter was, however, patched up by Wali Muhammad and Irshad who were residents of the same village. After that incident the complainant's son namely Abdul Ghafoor and the complainant's other sons went to Faisalabad city in connection with their business but after their departure Shehzad appellant and his father and brothers continuously abused the complainant and his wife while standing in the Bazar of the village throughout that day. Shehzad appellant and others were maintaining that their buffaloes were already tethered in the relevant plot and the said plot was in their occupation and, thus, the complainant party could not put their dung in that plot or make dung-cakes thereat. At Shamwela on 30-8-1999 the complainant's sons namely Abdul Ghafoor, Muhammad Idrees, Anwar Ali and Muhammad Yaqoob and one Ashiq Ali returned to the complainant's house and they were apprised by the complainant and his wife that throughout the day Abdul Aziz accused and his sons had kept on standing in front of the complainant's house and had continuously been hurling abuses at them and had become a source of great insult and disgrace for them. In that view of the matter at about 9-00 p.m. on 30-8-1999 Haji Inayat Ali complainant and his sons alongwith Ashiq Ali went to the house of Abdul Aziz accused situated opposite to the. house of the complainant in the same street for lodging a protest. Abdul Aziz accused and his sons namely Muhammad Sarfraz alias Kala, Gul Muhammad and Shehzad came out of their house in the street and the complainant party lodged a protest with them but on account of that protest lodged by the complainant party Abdul Aziz accused and his sons were gravely provoked, they went inside their own house and immediately came out of the same having armed themselves with various weapons. Abdul Aziz convict was carrying a Danda, Gul Muhammad appellant was armed with a Sota, Muhammad Sarfraz alias Kala accused possessed an iron rod and Shehzad appellant was armed with a gun .12 bore. The appellants and their co- accused were raising Lalkaras and they straightaway launched an assault upon the complainant party. Abdul Aziz convict gave a Danda blow on the head of Haji Inayat Ali complainant, Shehzad appellant fired from his gun and the shot hit Abdul Ghafoor on different parts of his body on its front side and then Shehzad appellant fired again and the shot hit Muhammad Idrees on the front side of his body. Gul Muhammad appellant gave a Sota blow on the head of Anwar Ali.
Muhammad Sarfraz alias Kala accused held Anwar Ali in his clasp and raised a Lalkara that none of the members of the complainant party should be spared. The said incident was witnessed by the complainant party and by one Iftikhar A hmad. Soon after that occurrence the appellants and their co-accused decamped from the spot. Abdul Ghafoor succumbed to his injury and died at the spot. The complainant and the other injured victims were taken by their relatives to Allied Hospital, Faisalabad for medical treatment whereat they were examined and treated by a doctor and medico-legal certificates were issued in that regard. The local police reached the said hospital on its own and recorded the statement of Haji Inayat Ali complainant in respect of the incident in issue at 11-00 p.m. on 30.8.1999. On the basis of the said statement of the complainant formal F.I.R. No. 469 was subsequently registered at Police Station Nishat Abad, Faisalabad at 11-15 p.m. on 30-8- 1999 for offences under Sections 302/324/337-A(ii)/34, P.P.C.
3. The investigation of this case was conducted by Sefarish S.-I. (P.W.12), who after recording the statement of the complainant at the hospital and receiving the medico-legal certificates in respect of the injured victims inspected the place of occurrence, prepared an injury statement and an inquest report, dispatched the dead body to the mortuary for autopsy, secured blood-stained earth and two crime-empties from the spot, prepared a rough site-plan of the place of occurrence and recorded the statements of witnesses. After the post-mortem examination of the dead body the last-worn cloths of the deceased were secured and later on a formal site-plan of the place of occurrence was got prepared, the appellants and their co-accused were arrested, different weapons were recovered from their possession and upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned trial Court framed a charge with four heads under Sections 302, 324, 337-A(ii) and 120, P.P.C, against the appellants and their co-accused to which they pleaded not guilty and claimed a trial. During the trial the charge was amended and Section 34, P.P.C. was added to the same.
5.During the trial the prosecution produced twelve witnesses in support of its case against the appellants and their co-accused. Haji Inayat Ali complainant (P.W.6), Anwar Ali (P.W.7), Muhammad Idrees (P.W.8) and Ashiq Ali (P.W.9) furnished the ocular account of the incident in question and they also deposed about the motive. Ashiq Ali (P.W.9) also stated about recovery of different weapons from the possession of the, appellants and their co-accused during the investigation of this case. The medical evidence was provided by Dr. Muhammad Saleem (P.W.1) and Dr. Muhammad Ishaq (P.W.2). Sefarish, S. -I. (P.W.12) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under Section 342, Cr.P.C. the appellants and their co-accused denied and controverted all the allegations of , fact levelled against them by the prosecution and professed their innocence. While answering a question as to why he had been 'implicated in this case and as to why the prosecution witnesses had deposed against him Shehzad appellant had stated as follows:- "The P.Ws. are related inter se, hence interested ones. In fact the disputed plot was let by the original owner to us for use. The complainant party tried to become in forcible possession of that plot in the morning time on the day of occurrence and attempted to dispossess us from the plot. At Isha Waila the complainant party launched an offensive by assembling their relations and armed themselves in order to avenge the insult made by us in the morning time. The complainant party found Gul Muhammad and Sarfraz my co-accused in the street and thrashed them. My father Abdul Aziz came to rescue Gul Muhammad and Sarfraz, the complainant party fired at him. My father Abdul Aziz and my brothers Gul Muhammad and Sarfraz hurried back to my house and the complainant party started firing towards our house. I fired by exercising my right of self-defence towards complainant party and cross-firing took place there. It was quite dark and during this cross-firing a bullet/pellet hit Abdul Ghafoor and Idrees. The complainant party in connivance with police cooked up a false prosecution story and P.Ws. deposed falsely in the Court. During investigation prosecution story was not found correct."
'Gul Muhammad appellant, Abdul Aziz convict and Muhammad Sarfraz alias Kala accused had adopted the above mentioned statement made by Shehzad appellant. The appellants and their co-accused had, however, opted not to make statements on oath under Section 340(2), Cr.P.C. and they did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court acquitted Muhammad Sarfraz alias Kala accused but after finding the prosecution's case against the appellants and Abdul Aziz convict to have been proved beyond reasonable doubt it convicted and sentenced them as mentioned and detailed above. Hence, the present appeals, revision petition and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the motive set up by the prosecution had remained far from being established; the recoveries affected from the appellants and their co-accused were legally inconsequential; and the medical evidence had contradicted the' ocular account. He has further argued that both the parties to this case had advanced their own versions of the same incident and the circumstances becoming available on the record of this case had clearly shown and established that the version of the incident advanced by the appellants and their co-accused was correct. He has, thus, canvassed that the appellants and their co-accused had acted in exercise of their right of private defence which they had not exceeded and, thus, the appellants are entitled to be acquitted by this Court. As against that the learned counsel for the State and the learned counsel for the complainant have maintained in unison that the prosecution had succeeded in establishing the appellants' guilt to the hilt and therefore, their convictions recorded by the learned trial Court do not warrant any interference by this Court. The learned counsel for the complainant has gone on to submit that the learned trial Court was not justified in acquitting Muhammad Sarfraz alias Kala accused and also that the sentences passed by the learned trial Court against Abdul Aziz convict and Gui Muhammad appellant ought to be suitably enhanced by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that Shehzad and Gul Muhammad appellants are real brothers and their acquitted co-accused namely Muhammad Sarfraz alias Kala is also their brother whereas Abdul Aziz convict is their father. On the other side Haji Inayat Ali complainant (P.W.6) was the father of Abdul Ghafoor deceased and Anwar Ali (P.W.7) and Muhammad Idrees (P.W.8) were brothers of Abdul Ghafoor deceased and sons of Haji Inayat Ali complainant.
'Ashiq Ali (P.W.9) was also closely related to Haji Inayat Ali complainant. We have also noticed that the houses belonging to Haji Inayat Ali complainant and Abdul Aziz convict are situated in the same street bang opposite to each other and, thus, the parties to their case are immediate neighbours of each other. It is admitted at all hands that prior to putting dung in the neighbouring plot of land and making of dung-cakes by the complainant's wife thereat in the morning of the day of occurrence there was no or bitterness between the parties and they used to live in the same street quite peacefully and amicably. The statement made by Anwar Ali (P.W.7) before the learned trial Court shows that the relevant plot of land was previously in use of the accused party and it was on the day of occurrence that for the first time the said plot of land was used by the complainant party for its own purposes and, thus, a dispute had arisen between the parties in that regard on the day of. occurrence. In that backdrop there was no pre-existing or ongoing motive for the appellants and their co-accused to cause, any harm to the complainant party. As regards the dispute arisen between the parties on the day of occurrence it is admitted at all hands that at the time of the present occurrence it was the complainant party which had gone to the house of accused party and it was not the accused party which had approached the complainant party.
Had the appellants and their co-accused been motivated to harm the complainant party on the day of occurrence then It would have been the accused party, which would have approached the complainant party at the time of the present occurrence but that was surely not the case in the case in hand.
10.Although Shehzad appellant had admitted through his statement recorded under Section 342; Cr.P.C. that he had resorted to firing during the incident in issue yet he had not admitted that it was his fires which had hit Abdul Ghafoor deceased and Muhammad Idrees (P.W.8). During the investigation of this case a gun .12 bore had allegedly been recovered from the possession of Shehzad appellant which had statedly subsequently matched with two crime-empties recovered from the place of occurrence. We have noticed in this context that the Investigating Officer of this case namely Sefarish, S.-I. (P.W.12) had admitted before the learned trial Court that availability of the crime-empties at the place of occurrence had neither been mentioned in the rough site-plan of the place of occurrence prepared by him nor in the formal site-plan of the place of occurrence prepared by Aurangzeb, Draftsman (P.W.3). The statements made before the learned trial Court by Zulfiqar Ali, F.C. (P.W.4) and Ghulam, H.C. (P.W.10) and the memorandum of recovery (Exh.P.N.) show that the crime-empties had been retained by the local police in its custody for one full month and the same had been dispatched to the Forensic Science Laboratory after recovery of a gun from Shehzad appellant's possession. The alleged recoveries of gun and crime-empties and their subsequent matching were, thus, not sacrosanct and it could not be said with any degree of certainty that it were Shehzad appellant's fires which had actually hit Abdul Ghafoor deceased and Muhammad Idrees, (P.W.8). It may also be mentioned here that the Sota allegedly recovered from Gul Muhammad appellant's possession, the Danda allegedly recovered from Abdul Aziz convict's possession and the iron rod allegedly recovered from the possession of Muhammad Sarfraz alias Kala accused during the investigation of this case were not stained with blood and, thus, they did not stand connected with the alleged offences. It is also pertinent to mention here that according to Ashiq Ali (P.W.9) all the weapons allegedly recovered from the possession of all the appellants and their co-accused had been recovered jointly from the same house and, thus, such recoveries had no evidentiary value.
11. The statement made by Dr. Muhammad Saleem (P.W.1) before the learned trial Court clearly shows that during the fateful night he had not only medically examined Haji Inayat Ali complainant.
(P.W.6), Anwar Ali (P.W.7) and Muhammad Idrees (P.W.8) for their injuries but he had also . medically examined Gul Muhammad appellant, Abdul Aziz convict and Muhammad Sarfraz alias Kala accused for their injuries as well. The appellants and their co-accused had advanced a plea of exercise of right of private defence before the learned trial Court and, obviously, the medical evidence could not establish as to which version advanced by the rival parties was correct. Be that as it may, the medical evidence had established it for sure that the accused party had also sustained injuries during the same incident and, thus, its plea of exercise of right of private defence could well be true. It may also be pertinent to observe here that the eye-witnesses produced by the prosecution had categorically and emphatically maintained before the learned trial Court that the complainant party was unarmed during the incident in issue and that it had not caused any injury to the accused party but the medical evidence furnished by Dr. Muhammad Saleem (P.W.1) had gone a long way in giving a lie to the complainant party on this score by establishing that many members of accused party had sustained fire-arm injuries and blunt weapon injuries on their vital parts of the bodies during the same occurrence. In these circumstances the .medical evidence produced by the prosecution had not only contradicted the eye-witnesses D produced by the prosecution but it had gone a long way in supporting the defence version and plea.
12. The discussion made above leaves us with the version of the incident advanced by the eye- witnesses produced by the prosecution on the one hand and the version of the incident put forward by the appellants and their co-accused on the other hand and we have considered those versions in juxtaposition. While examining the versions of the incident advanced by the rival parties to this case we have straightaway observed that according to the F.I.R. itself and according to the statements made by all the four eye- E witnesses produced by the prosecution the initial cause of annoyance to the accused party on the day of occurrence was provided by the complainant party; then throughout the day of occurrence sustained provocation was provided by the accused party to the complainant party; thereafter the complainant party had gone to the accused party to lodge a protest at the time of the present occurrence; upon lodging of the protest by the complainant party the accused party had been gravely provoked at the spot; and then an assault had been mounted by the accused party upon the complainant party. We have critically observed in this context that the eyewitnesses produced by the prosecution had maintained before the learned F trial Court in unison that the complainant party was unarmed at that time and that it had not caused any injury whatsoever to the accused party. Dr. Muhammad Saleem (P.W.1) was the prosecution's own witness and he had conceded before the learned trial Court that during the same night immediately after the present occurrence he had not only medically examined Haji Inayat Ali complainant (P.W.6), Anwar Ali (P.W.7) and Muhammad Idrees (P.W.8) for their injuries but he had also medically examined Gul Muhammad appellant, Abdul Aziz convict and Muhammad Sarfraz alias Kala accused for their injuries as well. The medico-legal certificates prepared by the said doctor in respect of the injuries sustained by the members of the accused party were produced on the record of this case by the defence as Exh.D.A., Exh.D.B. and Exh.D.C.
According to the said medico-legal certificates Gui Muhammad appellant had received a blunt weapon injury on his head, Muhammad Sarfraz alias Kala accused had also sustained a blunt weapon injury on his head and Abdul Aziz convict had sustained two fire-arms injuries on his chest.
It is evident that all the injuries sustained by the members of the accused party were on vital parts of the bodies of the relevant accused persons and the said injuries included two fire-arms injuries.
Haji Inayat Ali complainant (P.W.6) had conceded before the learned trial Court that at the time of firing by Shehzad appellant thesaid appellant was standing in front of the door of his own house and Ashiq Ali (P.W.9) had also adniitted before the learned trial Court that the crime-empties had been recovered from a place which was in front of the door of Shehzad appellant's house. The statement of Shehzad appellant recorded under Section 342, Cr.P.C. shows that the said appellant was about seventeen` years of age at the time of the present occurrence. In the circumstances of this case mentioned above if Shehzad appellant's father had already received two fire-arm injuries on his chest and his two brothers had already received injuries on their heads at the hands of the complainant party then. Shehzad appellant has appeared to us to be quite justified in firing at the complainant party in order to save the lives of his father and brothers. The Investigating Officer namely Sefarish, S.-I. (P.W.12) had confirmed the fact that during the investigation of this case the appellants and their co-accused had advanced a cross-version of the incident depicting the complainant party of this case as the aggressor and the medico-legal certificates pertaining to the members of the accused party had also been produced before him by the accused party in support of that cross-version. The said Investigating Officer had also stated before the learned trial Court that the Superintendent of Police, City, Faisalabad had also investigated the present case and on the basis of his investigation he had deleted Section 34, P.P.C. from this case.
13. The discussion made above leads us to an irresistible conclusion that the version of the incident advanced by the appellants and their co-accused could reasonably be true and in all likelihood it was the complainant party of this case which had launched aggression against the accused party and during such aggression the complainant party had caused injuries with blunt weapons and fire-arm to the members of the accused party and in exercise of its right of private defence the accused party had caused injuries to Abdul Ghafoor deceased and to Haji Inayat Ali complainant (P.W.6), Anwar Ali (P.W.7) and Muhammad Idrees (P.W.8). In the circumstances of this cape we have found that the accused party had not exceeded its right of private defence and, thus, the appellants are entitled to be acquitted of the charge.
14.As a sequel to the discussion made above Criminal Appeal No. 899 of 2001 is allowed, the convictions and sentences of Shehzad and Gul Muhammad appellants recorded by the learned trial Court are set aside and they are acquitted of the charge, Shehzad appellant shall be released from the jail forthwith if not required in any other case. Gul Muhammad appellant has already been admitted to bail by this Court after suspending his sentence during the pendency of is appeal. His bail bond and sureties shall stand discharged.
15.We have discarded the prosecution's version of the incident and have accepted the version of the incident advanced by the accused party and, . thus, Criminal Appeal No. 1090 of 2001 and Criminal Revision No. 625 of 2001 preferred before this Court by Haji Inayat Ali complainant have lost their relevance and, therefore, the same are dismissed.
16. Murder Reference No. 324 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Shehzad appellant is not confirmed.