IJAZ AHMAD CHAUDHRY, J. - Tahir Mahmood alias Tahri son of Ghulam Haider convict/appellant alongwith Naveed Ahmed, Khaild Ayyaz, Arshad Mehmood, Daood Sadiq, Babar Irshad and Nasir Irshad (acquitted accused), was tried by Mr. Gulshad Hassan Alvi, the then learned Judge, Special Court, Suppression of Terrorist Activities, Faisalabad Division, Faisalabad, in case FIR No. 323, dated 18.9.1996, registered under section 302/148/149/109, P.P.C., at Police Station, Sardar Gojra, District Toba Tek Singh, and on conclusion of-the trial, Tahir Mehmood alias Tahri convict/appellant was convicted under section 302(b), P.P.C, and sentenced to death by committing 'Qaff-e-Amd of Khalid Mehmood deceased with direction for payment of Rs. 50,000/- as compensation payable to the legal heirs of the deceased as provided under section 544-A, Cr.P.C, or in default thereof to further undergo six months' S.I. However, through the same judgment co-accused of the appellant/convict namely Naveed Ahmed, Khalid Ayyaz, Arshad Mehmood, Daood Sadiq, Babar Irshad and Nasir Irshad, were acquitted of the charge by extending them the benefit of doubt through the same judgment.
2. The occurrence in the present case had taken place on 18.9.1996 at 8.3.0 a.m. At a chowk in front of the house of Khalid Mehmood deceased, situated at Chak No. 415/GB within the jurisdiction of Police Station, Saddar Gojra District Toba Tek Singh which was at a distance of six miles from Police Station, Saddar Gojra towards North while the matter was reported by Muhammad Hanif, Complainant (PW-7) father of Khalid Mehmood deceased to Rizwan-ul- Haq, S.I, (PW-11), who.
Handed down the formal F.I.R: (Ex.PE) at 10.30 a.m. At the Police Station on the same day under the above-said sections.
3. Concisely the facts of the prosecution case set up in the F.I.R. (Ex.PE), got lodged by Muhammad Hanif, Complainant (PW-7) father of Khalid Mehmood deceased, are that on the fateful day at about-8.30 a.m. He and his son Khalid Mehmood deceased emerged from their house for going to the land when Tahir Mehmood alias Tahri, convict/appellant armed with 222 bore rifle, Arshad Mehmood alias Achhu, Babar, Tariq and Daood (acquitted accused) armed with 12 bore guns were present in the Chowk in front of their house. Tahir Mehmood alias Tahri, convict/appellant raised lalkara and forbade them from going to the land while stating that they had to take the possession and to decide that question, therefore, the complainant and his son ran but all the accused made firing at them so they (complainant and his son) took the shelter and. Started firing in self-defence.
Fire shot of Tahir Mehmood alias Tahri, convict/appellant hit Khalid Mahmood deceased on his face and he collapsed. The commotion attracted Abdul Ghani, Asif and Muhammad Ashraf who h^d witnessed the occurrence. Besides them the other residents of the village also arrived at the spot who entreated the accused and accused and accused returned to their houses by raising lalkaras and also making firing. They transported Khalid 2007 Mehmood deceased to Civil Hospital at Gojra by tractor- trolley who succumbed to the injuries in the way.
4. The motive behind the occurrence was alleged to be that Muhammad Hanif, Complainant (PW- 7) father of Khalid Mehmood deceased, had secured 10 acres land for five years' lease against Rs 2,35,000/- from Muhammad Siddique and Muhammad Latif in which Mst Aziz Begum and Noor Fatima's heirs had got possession of five acres land through the Revenue Department but the complainant had been in cultivating possession. Ayyaz Mahmood and Naveed Ahmed the legal heirs of Aziz Begum and Noor Fatima had leased out that land to Tahir Mehmood alias Tahri, convict/appellant after acquiring possession of the same through Revenue Department. Tahir Mehmood alias Tahri, convict/appellant etc. Had come to complainant and his sons in that disputed land and had asked to deliver the possession otherwise they were knowing how to get possession. All the afore-mentioned accused had made firing aiming at the complainant and his son and murdered Khalid Mahmood for getting possession of the land at the instance of Ayyaz Mehmood and Naveed Ahmed, acquitted accused
5. After registration of the F.I.R. (Ex. PE), Rizwan-ul-Haq, S.I. (PW-11) went to the hospital where the examined the dead-body of the deceased and prepared the injury statement (Ex. P.M.) as well as the inquest report (Ex.' PN) of the dead-body of Khalid Mahmood deceased and also sent the dead-body through Shahzad Ahmed C-263 (PW-5) to mortuary for autopsy. Thereafter, he alongwith the complainant and PWs went to the place of occurrence and during the spot inspection he collected blood-stained earth from the place of occurrence which was taken into possession vide recovery memo. (Ex. PG). He also collected four empties of 12 bore guri (P-4/1-4), two empties of 222 bore (P-5/1-2), from the place where the occurrence had taken place which were taken into possession v/'de recovery memo. (Ex. PF), On the same day, he recorded the supplementary statement of the complainant. On 29.10.1996, he arrested Tahir Mehmood alias Tahri, convict/appellant. Thereafter the investigation was transferred to Muhammad Arshad, S.I./S.H.O. (PW-13). On 2.11.1996, Daood Sadiq while on physical remand led to the recovery of licensed 12 bore double barrel gun (P.6), Babar Irshad 12 bore gun (P.7) and Arshad Mehmood 12 bore gun (P.8), vide recovery memos. (Ex. PH, Ex. PJ and Ex. PK).
6. After conclusion of the investigation, report u/s. 173, Cr.P.C, was submitted in the Court and copies of the documents required under section 265-C, Cr.P.C, were supplied to the appellant and his acquitted accused who were charge-sheeted on 23.11.1999 which was denied by them and they claimed to be tried.
7. The prosecution in order to prove the guilt of the accused/appellant his acquitted accused produced as many as thirteen witnesses. Medical evidence was produced, by Dr. Khalid-ur- Rehman, Medical Officer (PW-10) who on 18.9.1996 had conducted the post-mortem'examination on the dead-body of Khalid Mahmood deceased while the ocular account was furnished through the statements of Muhammad Hanif, Complainant (PW-7) father of Khalid Mehmood deceased, and Abdul Ghani (PW-8) uncle of the complainant. The investigation of the present case was conducted by Rizwan-ul-Haq, S.I. (PW-11) and Muhammad Arshad, S.I./S.H.O. (PW-13). However, the remaining witnesses are less or more of formal nature and need not to discuss here.
8. After close of the prosecution evidence, the appellant and his acquitted accused were examined under section 342, Cr.P.C., who denied the allegations levelled by the prosecution against them and professed their innocence. However, on a question that "Why this-case against yon and why the PWs have deposed against you?" Tahir Mehmood alias Tahri, convict/appellant replied in the following terms:- "On 3.7.1994 Mst. Aziz Begum etc. Moved application Ex. DB to Tehsildar Gojra for the partition of their land comprised of squares No. 36/37 Khotoni No. 91 measuring 186 Kanals, 11 Marlas situated in Chak No. 415/JB, TehsilGojra, which was the disputed land and that land was partitioned vide Order of Revenue Department Ex. DE. Mst. Aziz Begum etc. Moved application for securing possession of the share of land after partition and warrant for possession was issued by the Revenue Department and that original. One is in revenue record. I produce photo-stat copy of that mark-A. The Revenue Officer went to deliver possession to Mst. Aziz Begum etc. But Latif etc. Resisted, whereupon entry No. 9 was entered in daily diary of Revenue Patwari on 19.8.1998 whose attested copy of Ex. DE.
Whereupon help of police was sought and in that respect entry No; 10 Ex. DF was entered in daily dairy of PS on 19.08.19.96. The authorities inducted Mst. Aziz Bibi etc. Into possession of their share of land in disputed land with the help of police. Thereafter they leased out that land ' to me. On fateful day, I had turn of water and was proceeding to land. The deceased and his companions launched murderous assault on me while making firing. I was alone at that time. I also fired in self-defence, In result of that cross firing deceased sustained a fire shot injury. I left the spot and .Came to know after half an hour thereof the deceased Khalid had sustained fire shot injury. I had no motive to attack the complainant party but complainant party had the motive to attack on me. The eye- witnesses are false, interested and related inter-se. The other witnesses are biased against me. PW Abdul Ghani had got registered a case against my father vide F.I.R. No. 124, dated 17,10.1964 with the allegation of. Firing and injuring Salah-ud-Din his son and I produced attested copy of that F.I.R. Ex.
D.G. Khan. Ghulam Muhammad father of PW Naeem-ul-Haq had got registered a case against accused Arshad Mehmood vide F.I.R. No. 187, dated 01.07.1990 that accused Arshad Mehmood had injured his son Naeem-ul-Haq. I produce that's attested copy Ex. PH. Various cases had been registered against deceased Khalid Mehmood and complainant who are hardened and desperate criminals and I produce one of those F.I.Rs bearing No. 195/205, dated 29.9.1987, u/s. 302/34, P.P.C.
Ex. D1 and they were convicted in this case. I could not get the copies of other F.I.Rs. Against them. A false case has been registered against me."
However, Tahir Mehmood alias Tahri, convict/appellant did not produce any defence evidence nor he had opted to make statement on oath under section 340(2), Cr P.C.
9. After hearing the learned counsel for the parties, the learned Trial Court passed the impugned judgment of conviction and sentence against the appellant which is being assailed through this appeal.
10. Learned counsel for the appellant contends that in the F.I.R, the complainant himself admitted to have made firing in the occurrence; that actually the complainant party was aggressor who had started firing and due to their reckless firing the deceased had received the injury; that due to the firing made by the complainant party there was apprehension of danger to the lives of the accused party whereupon they in self-defence had fired only one fire and the injuries allegedly attributed to the appellant could not be caused from such a distance as mentioned in the site plan (Ex.PA); that the appellant was shown at point No. 2 which was at a distance of 475 feet from the place where the deceased was present and it was not possible for him to make fire at the deceased from such a distance when the co-accused were allegedly standing at point No. 3, situated . Between point No. 1 and point No. 2, as it was not the case of the prosecution that the appellant after start of the firing had run away from point No. 3 to point No. 2 and had fired there from that site plan itself belies the prosecution story which even otherwise is not plausible; that PW-4, Syed Kazim Hussain Gillani was alleged to have prepared the site plan (Ex.PA) on the pointation of the witnesses that Abdul Ghani (PW-8) the second eye-witness has been disbelieved by the learned Trial Court and the sole statement of Muhammad Hanif, complainant (PW-7) who being father of Khalid Mehmood deceased, was interested witness is not sufficient to connect the appellant with the commission of the crime without being corroborated by some independent piece of evidence which is lacking in the present case as the weapon allegedly recovered from the appellant ^was not sent to the office of Forensic Science Laboratory for comparison with the crime empties allegedly recovered from the spot; that the appellant had no motive to commit the murder of the deceased as possession of the land had already been taken through the Revenue Department by Mst. Aziz Begum and Mst Noor Fatima from whom thae appellant had taken the said land on lease;'that the complainant had changed his version regarding the motive and. Also improved his statement in order to bring the ocular account in line with the medical evidence; that the complainant party has failed to bring on record the true account of the occurrence and in fact they were the aggressors; that the investigation had also not been conducted in an independent manner as the complainant admitted to have made firing during the occurrence with his gun and the empties of 12 bore gun were also recovered but the same were not sent to the office of Forensic Science Laboratory for comparison apprehending that it could dislodge the prosecution story which otherwise was false.
11. On the contrary, the learned counsel appearing on behalf of the complainant opposes this appeal, who contends that site plan (Ex. PA) is not substantive piece of evidence and can be ignored: that the complainant being resident of. The place of occurrence was a natural witness and he had not concealed any fact, but categorically started that he had also made fire after the firing started by the complainant party; that statement of Muhammad Hanif, complainant (PW-7) father of Khalid Mehmood deceased along is sufficient to connect the appellant with the commission of the crime as the appellant in his statement recorded under section 342, Cr.P.C, has admitted his presence at the spot at the time of incident, but failed to produce any witness to substantiate the defence version which even otherwise is not borne out from the record as the occurrence had taken place near the house of the complainant party and none from the accused had received any injury.
12. Similarly, learned counsel for the State also opposes this appeal while contending that it was a case of free fight and who had started the occurrence is not the question, but every one was liable for individual act and the appellant had no right of self-defence in the present case; that the appellant and his co-accused were carrying fire-arm weapons, who had fired at the complainant party and are guilty of the offence, hence, the conviction and sentence passed against the appellant by the learned Trial Court may be maintained as one innocent person has lost his life.
13. We have heard the learned counsel for the parties and also perused the record with due care and caution.
14. Although, it was a daylight occurrence and the F.I.R, was shown to be lodged with promptitude.
The appellant in his statement recorded under section 342, Cr.P.C, also admitted bis presence at the spot and claimed to have made one fire in self-defence. We have noticed that the complainant party had involved 5 persons from the accused party including the appellant and all of them were alleged to have made firing and the complainant party also admitted making of fires in reply. Out of the said firing only one fire had hit Khalid Mehmood deceased, which proved fatal.
None else received any injury. Six co-accused have' already been acquitted by the learned Trial Court and the judgment to this extent has attained the finality. From the evidence on record it is borne out that both the parties were on their way when the occurrence started at the spur of moment. They only question in the present case is that which party was the aggressor and whether the appellant had fired in exercise of self-defence or not?
15. We have noticed that in the F.I.R. Muhammad Hanif, complainant (PW-7) father of Khalid Mehmood deceased, had himself admitted that the complainant party also made firing in self- defence but while appearing in the witness-box stated that he and his son Khalid Mehmood came to the chowk from their house for going to their dear to feed the animals Tahir Mehmood alias Tahri, convict/appellant armed with 222 bore rifle, alongwith Daood, Nasir, Irshad, Babar Irshad and Arshad Mehmood while armed with 12 bore guns were present in the chowk. Tahir Mehmood alias Tahri, convict/appellant raised lalkara that they would not let go alive and he would also get the possession of the land in that chowk. On raising of Lalkara by Tahir Mehmood alias Tahri, convict/appellant, they ran back and the accused started firing at, them. The complainant also made two fires with licensed gun PW-7 further stated that when Khalid Mehmood deceased looked back, the fire made by the appellant with 222 bore rifle hit on his face resulting into his death.
16. From the perusal of the statement of Muhammad Hanif, complainant (PW-7) father of Khalid Mehmood deceased, it is borne out that it was not a preplanned occurrence as the accused party was already present in the chowk and none of the parties had made any planning for committing the murder of the deceased or the PWs or the accused, In is clear that nobody had received injuries when the firing was started by the accused but after the complainant had fired two shots with his licensed gun only then fire made by the appellant had hit Khalid Mehmood deceased. So Khalid Mehmood deceased had received injury from the hands of the appellant only when the firing was started from the complainant party as well on the accused and in such circumstances. Tahir Mehmood alias Tahir, convict/appellant alongwith other accused must have apprehension of danger to their lives and the firing made by the appellant after start of the firing by the complainant could be in the exercise of right of private defence.
17. Now we see this case from the other angle that whether the PWs were trustworthy and can be relied upon to maintain conviction in a case entailing capital punishment Muhammad Hanif, complainant (PW^7) was farther of Khalid Mehmood deceased. Although mere close relationship not sufficient to declare any person as an interested witness, but we have noticed that he had made certain improvements in his statement while appearing as PW-7 regarding going to the place of occurrence by adding reason for feeding the animal; that after the firing started by the accused party he had made only two fires whereas in the F.I.R, In was stated that the complainant party had also made firing in self- defence without mentioning number of firs, and that while running when Khalid Mehmood deceased looked back, Tahir Mehmood alias Tahri, convict/appellant had made fire which hit the deceased on his face and he collapsed. The last improvement regarding looking back by the deceased appears to be in order to bring the ocular account in line with the medical evidence as Dr. Khalid-ur-Rehman (PW-10) had observed "a lacerated wound 3 cm x VA cm on inner side of upper lip, four upper teeth (in-cisor) were found missing and wound was continuous with hard pallet, soft pallet and pharynx, In is strange that the fire was made from a long range, but the said injury had been received by the. Deceased inside of his mouth and no injury was received by him on the outer part of the lip. Moreover, according to the doctor, the direction of injury was from downward to upward, which shows that the injury was not Caused to the deceased in the manner stated by the prosecution as the appellant was alleged to have made fire in straight position.
18. The story of the complainant is further falsified by site plan (Ex. PA) which was allegedly prepared by Syed Kazim Hussain Gillani (PW-4) on the pointation of the witnesses and also on the direction of the police. According to the said site plan (Ex. PA), the deceased was at point No. 1, on the corner of the street while the other accused were at point No. 3, which was about 42 feet from point No. 1. The witnesses were standing at point No. 4, at about 73 feet from point No. 3, towards point No. 1 while Tahir Mehmood alias Tahri, convict/appellant was shown to be standing at point No. 2 which was 475 feet from point No. 1 where the deceased had received injuries, In is not the case of the prosecution that the appellant had run from point No. 3 to point No. 2 which is considerable distance and then had fired at the deceased, In is also not safe to rely upon that the appellant might have run from point No. 2 to point No. 1, as his on companions were standing in the way at point No. 3 and the said firing could have hit them. Hence, site plan (Ex. PA) also shows that the occurrence had not taken place in the manner narrated by the prosecution.
19. In the above circumstances, it is not safe to rely upon sole statement of Muhammad Hanif, complainant (PW-7) without any independent corroboration. The other eye-witness, namely Abdu!
Ghani (PW-8) has already been oli scarded by the learned Trial Court on valid reasons. The recovery of weapon from the appellant is of no avail to the prosecution as the same was not sent to the office of Forensic Science Laboratory fro comparison with the empties allegedly recovered from the place of occurrence, In appea rs that the investigation was not conducted in a proper manned. The complainant party also admitted to have made firing in the occurrence, but their weapons were not taken into possession for comparison with the empties recovered so that it could be brought on record that how many fires were made by them during the occurrence.
20. The motive also has not been proved as according to the complainant he was in possession of 10 acres of land lifter taking the same on lease for 5 years. He himself stated in his statement recorded under section 154, Cr.P.C, that Mst. Aziz Begum and heirs of Mst. Noor Fatima had taken the possession of the disputed property measuring 5 acres through the Revenue Department in papers but claimed that at the spot they were still irrigating the said land. Then the said land was further leased out to the appellant etc. In is noticed that according to order dated 18.2.1996 passed by the Tehsildar Gojra (Ex .DD) an application was moved by Mst. Aziz Begum and heirs of Mst. Noor Fatima for distribution of their share against Muhammad Siddique and Muhammad Latif, from whom the complainant had taken the property on lease. The order was passed by the Tehsildar in favour of Mst. Aziz Begum and heirs of Mst. Noor Fatima and Mst. Hameeda Bano, daughters of Barkat Air, who were sisters of Muhammad Siddique and Muhammad Latif. Copy of Rozenamach Waqiati (Ex. DE) prepared by the Patwari shows that on 19.8.1996 a bailiff was deputed to hand over the possession to Mst. Aziz Begum and heirs of Mst. Noor Fatima etc. In also shows that there being apprehension of danger from the Other side, the help of the police was also sought. According to Ex. DE possession of the disputed property was handed over to the said ladies on 19.8.1996 from whom according to the prosecution's on story the appellant had taken the said land on lease, In is clearly established that the dispute of the possession of land had already been resolved. Be that as it may, from the prosecution on story it is clear that the occurrence had not taken place near the disputed property and it cannot be said that the accused had assaulted upon the complainant party to take possession of the disputed land, which was far flung from the place of occurrence, In appears that the occurrence had taken place at the spur of the moment, but what had happened immediately before the occurrence resulting into commission of the same wherein both the parties had made cross firing has been concealed by both the parties. According to the prosecution version five accused including the appellant while armed with fire-arms were present in the chowk, who started firing upon them and they (complainant party) ran back. But the injury was on the face of the deceased, which showed that he had received the same from front side. To bring the said injury in line with the ocular account improvement was made that while running he had seen back and the fire hit .Him on the mouth, In has already been noted down by us in the previous paragraphs that the injury could not be caused in the manner narrated by the prosecution. Then we are not satisfied that while running when the firing was being made from behind by the five accused, how the complainant (PW-7) had recognized that the fire made by the appellant from a long 'range had hit the deceased. Again to have witnessed the occurrence, the complainant (PW-7) made improvement that while running he had made two fires towards the accused when the deceased had also seen back and the fire hit on his face. Both these improvements are dishonest and on material points, which are sufficient to hold that even the complainant (PW-7) is not^a truthful witness and his sole statement cannot be relied upon to maintain conviction in a case entailing capital punishment:
21. For the foregoing discussion, we have no hesitation in holding that the prosecution has not been able to bring home guilt to the appellant as well beyond and shadow of doubt, In is well- established principle of law that the prosecution has to stand on its on legs and on failing to discharge the said onus, if the conviction is to be recorded on the special plea taken by the accused; that has to be believed or rejected in toto and not in piecemeal to suit the prosecution version. From the statement of the appellant made in the' statement under section 342, Cr.P.C., reproduced above, it appears that he had acted in self- defence and committed no offence.
Seeing from both the angles that the prosecution had failed to prove the case beyond any shadow of doubt and the appellant had taken the plea of making fire in the exercise of right of self- defence, the impugned conviction and sentence awarded to the appellant by the learned Trial Court is not sustainable in the eyes of law. We do agree with the learned State counsel that in cases of free fight each one is liable for his individual act, but in the present case the prosecution has even failed to prove that the fire made by the appellant had hit the deceased resulting into his death.
22. Resultantly, this appeal is accepted, the impugned judgment of conviction and sentence is set aside and Tahir Mehmood alias Tahri, appellant is acquitted of-the charge of Qatl-I-Amd of Khalid Mehmood deceased by extending him the benefit of doubt. He shall be set at liberty forthwith, if is not required in any other criminal case.