' SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled appeals and reference arise out of judgment passed by Additional District Court of Criminal Jurisdiction, Dadyal camp, Mirpur, dated 22-2-2007, whereby Barkat Ali was convicted and sentenced to "Qisas" under section 302, A.P.C., 5 years' R.I.
With Rs,25,000 fine under section 324, A.P.C. And 5 years' R.I. With Rs,50,000 Daman under section 337-F(v), A.P.C. While Muhammad Tassawar was acquitted of the charge.
2. Brief facts forming background of the appeals and reference are that a case under sections 302/324/337/34, A.P.C. Was registered against the convict-appellant and two others at Police Station Dadyal on the complaint of Muhammad Afzal. It was reported that on 13-7-2001 at about 12-45 p.m. Complainant's father Muhammad Aslam, mother Mst. Muneeza Begum, Noor Hussain , Muhammad Siddique, Muhammad Akbar, Qurban Hussain, Nasir Azam and Muhammad Arif were raising fence in their land which was "Shamilat Deh" and was in their possession. In the meantime Barkat Ali armed .44 bore kalashnikovs along with Muhammad Tassawar and Muhammad Fayyaz came there. They pelted stones while Barkat Ali started firing with gun. The bullet hit Muhammad Aslam at his head and he succumbed to the injury. Muhammad Akbar also suffered fire-arm injury at his leg while Mst. Muneeza Begum received stone injury at her head. The occurrence was stated to be witnessed by those who were raising the fence. Motive behind the occurrence was a dispute over a piece of land.
3. After completion of the investigation, challan was submitted before Additional District Court of Criminal Jurisdiction, Dadyal. During trial Muhammad Fayyaz absconded and he was proceeded under section 512, Cr.P.C. The prosecution examined 11 out of 16 witnesses cited in challan. The Court after conclusion of the trial, convicted the appellant and awarded sentence of "Qisas" under section 302, A.P.C., 5 years' R.I. With 25,000 fine, under section 324, A.P.C. And 5 years' R.I. Along with Rs,50,000 Daman under section 337-F(v), A:P.C. Through the impugned judgment, hence these appeals and the reference.
4. Learned counsel for the appellant argued that the prosecution case was highly doubtful. An enmity due to dispute over a piece of land was prevailing between the parties. The disputed land was in possession of the convict-appellant while the deceased and his companions had been trying to dispossess him. It is evident from the record that prior to the occurrence the issue was discussed and on the day the incident took place, they assembled in the house of Muhammad Aslam and by hatching conspiracy came into the disputed land to take its possession. The Revenue Record 'does not support the prosecution case as it shows that accused party was in possession of the disputed land and complainant party had made aggression over there. They abused Mst. Farzand Begum, mother-in-law of Barkat Ali and later on attacked the convict which resulted into the unfortunate incident. Learned counsel pointed out that only two out of seven eye- witnesses cited in the challan were examined by the prosecution and rest were given up without any reasonable justification. Even Mst. Muneeza Begum widow of the deceased who allegedly received stone injury during the occurrence was not produced in support of the case. This shows that true facts were suppressed by the prosecution and a story was concocted to rope the appellant in the case. The witnesses examined by the prosecution were inimical towards the convict-appellant and his family. Their deposition was not safe to be believed in absence of independent corroborative material. Recovery of weapon of offence was highly doubtful. It cannot be believed that a person after committing the offence shall go to Bazar with the weapon of offence hanging on his shoulder and pointed out that the alleged weapon of offence was .44 bore kalashnikovs while the crime-empties seized from the place of occurrence were of 7.62 mm which cannot be fired from the said weapon, thus, it cannot be said that the weapon shown to have been recovered from the convict-appellant was used for commission of the offence. The prosecution story was not supported by any material from an independent source. The trial Court failed to appreciate that the Revenue Record was in contradiction with the prosecution version. The complainant party came into the disputed land to dispossess. Mst. Farzand Begum and Barkat Ali, thus, they were trespasser and aggressor. The ocular account given by interested and inimical witnesses was highly doubtful. It was not supported by any independent corroborative material.
The evidence was not relied upon to the extent of Tassawar Hussain accused respondent and there was no justifiable reason to consider the same for convicting Barkat Ali. The evidence on record was not appreciated in a judicial fashion. The prosecution story being highly doubtful was not worth consideration, the impugned judgment being based upon wrong perception and incorrect appreciation of the evidence was not sustainable, therefore, by accepting the appeal the same may be set aside and the convict be acquitted of the charge.
5. On the other hand, it was argued that the trial Court rightly appreciated the evidence and convicted Barkat Ali but committed an error while acquitting Tassawar Hussain. It was proved beyond any doubt that the principal accused along with Muhammad Tassawar and Muhammad Fayyaz absconder came at the place of occurrence equipped with kalashnikovs and started firing at the complainant party resulting into death of Muhammad Aslam and causing injury at the leg of P.W. Muhammad Akbar. The act of principal accused was deliberate, wilful and in consequence of pre-concert done in furtherance of common intention of all the accused persons, thus, everyone was equally liable for commission of the offence of murder and attempt to murder. The trial Court gave no reason for recording acquittal of Muhammad Tassawar respondent. He accompanied the principal accused from home and came to the place of occurrence by covering a considerable distance, knowing that the convict would use the gun carried by him. Thus, it stands established that he shared intention to murder the deceased and provisions of section 34, A.P.C. Were equally applicable to his extent. Learned counsel submitted that the prosecution proved its case beyond reasonable doubt, the evidence was believed for recording conviction against the appellant and there was no lawful justification to discard the same from consideration to the extent of acquitted respondent, therefore, by accepting the appeal, for sharing common intention with the principal accused in commission of offence of murder and attempt to murder he may also be convicted under section 34, A.P.C. And appeal filed by the convict-appellant may please be dismissed.
6. Learned Additional Advocate-General supported the arguments advanced by the learned counsel for the complainant.
7. Since the appeals and the reference arise out of single order, therefore, these shall be disposed of through this common judgment.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. The prosecution story as it appears from the record that on 13-7-2001 Muhammad Aslam, Mst.
Muneeza Begum, Noor Hussain, Nasir Azam, Qurban Hussain, Muhammad Siddique, Muhammad Arif and Muhammad Akbar were raising the fence on a piece of land. In the meantime, Mst. Farzand Begum came there and made hue and cry. She - tried to stop them from raising fence and claimed that she was owner of the disputed land. Afterwards she left the place and at 12-45 p.m.
Barkat Ali armed with kalashnikovs along with Muhammad Fayyaz and .Muhammad Tassawar came there. Fayyaz and Tassawar started pelting stone while Barkat Ali accused fired at Muhammad Aslam but could not target him, however, the second fire hit him at his head. The victim fell down and succumbed to the injury. The accused made third fire which caused injury at left leg of Muhammad Akbar. He also fired two more shot at Noor Hussain but failed to target him.
As Mst. Muneeza Begum came close to Muhammad Aslam, Muhammad Fayyaz pelted stone and caused injury at her head. Motive behind the occurrence was disputed over a piece of land.
10. It was clear from the above mentioned that the occurrence was also witnessed by Muhammad Siddique, ' Muhammad Arif, Qurban Hussain, Nasir Azam and Muneeza Bibi but only two prosecution witnesses Muhammad Akbar and Noor Hussain were examined by the prosecution while the remaining including Mst. Muneeza Begum widow of the deceased who allegedly received injury during the occurrence was not produced before the Court. During investigation, convict- appellant was arrested. The weapon of offence .44 bore gun was hanging with his shoulder which was seized through recovery memo. Exh.P.H. Five crime-empties of 7.62 mm were also seized from the place of occurrence through seizure memo. Exh.P.DD. P.Ws. Noor Hussain, Tazarab Hussain and Faiz Alam were examined in support of the seizure memos. The claim that the deceased died. Of bullet injury while Muhammad Akbar also suffered fire injury was supported by post-mortem report Exh.P.PP. And medical report Exh.P.K. The trial Court by putting reliance on the above mentioned convicted the appellant and while extending benefit of doubt acquitted Tassawar Hussain respondent.
11. According to prosecution case, the place of occurrence was "Shamilat Deh" bearing number Khasra 2974 which according to site plan .Exh.P.R. And copy of Khasra Girdawari. Exh.P.S. Was in possession of both the parties while copy of Jamabandi Exh.P.S./2 shows that it was in possession of Barkat Ali and his brothers. P.W. Ghulam Sarwar, Patwari, who appeared in support of the site plan and Revenue Record admitted during the cross-examination that the said land was in possession of Barkat Ali and others. He further deposed that the occurrence took place in the courtyard of Mst. Farzand Begum who was mother-in-law of the convict. The deposition further indicates that the validity of additional note in Khasra Girdawari Exh.P.S. Through which the complainant party was also shown owner and possessor of the disputed land was doubtful. The statement of P.W. Sardar Sikandar Hayat Khan, S.H.O. Dadyal who partly investigated the case also lends support to the prosecution. During cross-examination he deposed that it was brought into his notice that the land in which the incident took place was in possession of the convict-appellant and his brothers, while the complainant party was aiming to take possession and they removed the fence from the land raised by the accused party. The complainant and his companions were trespasser and aggressor and it was obligatory for his predecessor to register a case for commission of the offence against them.
12. As per ocular version prior to the occurrence the complainant party assembled to decide about constructing fence in the land. On the day of occurrence they came there carrying "Prong" in their hands for the purpose and when arrived at the place, an unpleasantness took place between Mst.
Farzand Begum and them. The above mentioned fact shows that the claim of the prosecution regarding ownership and possession of disputed land was doubtful.
13. It is interesting to note that it was not established during trial that whether the complainant party was raising fence or was removing the fence constructed by Mst. Farzand Begum at the time of occurrence, thus, the question that whether they came at the place to remove the fence constructed by Mst. Farzand Begum or to raise the fence was shrouded in mystery.
14. A consideration of the statement of Muhammad Akbar shows that Muhammad Fayyaz and Muhammad Tassawar were not armed at the time of occurrence. They pelted stones while Barkat Ali armed with .44 bore kalashnikovs fired at Muhammad Aslam but could not target him, upon this the deceased came close to the convict and he made second fire which hit him at his head. The third fire caused injury at left leg of the P.W. While he also made two more fires at Noor Hussain but could not target him.
15. It may be stated here that allegation of causing stone injury at the person of Mst. Muneeza Begum was not proved as she was not produced before the Court in support of the claim. Any evidence establishing presence of Muhammad Tassawar respondent at the place of occurrence at relevant time was not brought on record, thus, he was rightly acquitted of the charge by the trial Court. The question which needs serious consideration was that eight members of the complainant party came into the disputed land. They had some unpleasantness with Mst. Farzand Begum. Later on Barkat Ali armed with kalashnikovs came there. After the first fire the deceased tried to get close to the convict, upon this he made the second fire which hit the victim at his head.In light of the fact that the fire was made from a close distance, it cannot be ruled out that the convict-appellant might D have fired under the apprehension that the deceased is intending to attack him.
16. It may be mentioned here that an accused person taking right of self-defence or defence of property is not required to produce evidence in support of it as the same can be established by referring the circumstances transpiring from the prosecution evidence. In such situation the consideration would be to assess the true effect of the prosecution evidence and not the question of the accused discharging any burden. In the present case from facts listed in paras.11, 12, 13 and 15 the inference can be drawn that a right of self-defence and defence of property was available to the convict-appellant, however, he exceeded the right by targeting the deceased and causing injury to P.W. Muhammad Akbar with kalashnikovs. In this view of the matter, the sentence of "Qisas" awarded to the appellant by the trial Court is altered into life imprisonment and the order of conviction under section 324, A.P.C. And sentence of imprisonment under section 337-F(v), A.P.C. Is set aside while the amount of Daman is also reduced from Rs,50,000 to Rs,20,000. The convict shall be entitled to the benefit of section 382-B, Cr.P.C.
17. Upshot of the above discussion is that the appeal filed by the convict is accepted in the terms indicated above and the appeal filed by Muhammad Afzal complainant is dismissed. The death sentence is not confirmed and the reference is answered accordingly.