' MUHAMMAD FARRUKH MAHMUD, J.--- This petition is directed against the judgment dated 17-5- 2006 handed down by the learned Division Bench of Lahore High Court, Lahore in case F.I.R. No,469 of 1999 registered at Police Station Nishatabad, Faisalabad on 30-8-1999 for offences under sections 302, 324, 337-A(ii), 34, P.P.C. For causing the murder of Abdul Ghafoor and causing injuries to Inayat Ali complainant, Anwar Ali and Muhammad Idrees P.Ws. Whereby, the plea of self defence of the respondents-accused, was accepted and they were acquitted.
2. The relevant facts as given in the F.I.R, which were based on the statement of Haji Inayat Ali P.W.6 recorded by S.-I. Safarish Hussain Shah at 11 p.m. In Allied Hospital, Faisalabad on 30-8-99, are that Haji Inayat Ali first informant resided in Chak No,203/RB within the territorial jurisdiction of Police Station Nishatabad. He owned two buffaloes. The dung of the buffaloes was kept in the adjacent plot for the purposes of preparing dung-cakes. About 4/5 days prior to the occurrence construction was started in the aforementioned plot and for that reason, the dung was kept in another adjacent vacant plot whose owner was not known to the first informant. Mst. Zainab w/o the first informant-complainant went to the plot to prepare dung-cakes. She was stopped by Shahzad respondent. She was also advised by him to leave the plot. This caused annoyance to Abdul Ghafoor deceased son of complainant-first informant who reached the place of occurrence and an altercation took place between Ghafoor deceased and Shahzad respondent. However, Wali Muhammad and Irshad settled the matter. Thereafter Abdul Ghafoor and other sons of the first informant went to Faisalabad city in pursuit of their business. In their absence, Shahzad, his father and brothers continued abusing the first informant-complainant and his wife Mst. Zainab Bibi. The main contention of the respondent-accused was that why the refuse of buffaloes was disposed of in the plot which was in the possession of the respondent-accused. On the fateful day i.e, 30-9- 1999 at about evening time, the first informant-complainant and his wife Mst. Zainab Bibi told their sons Abdul Ghafoor, Muhammad Idrees, Anwar Ali, Muhammad Yaqoob and one Ashiq Ali son of Nazir Ahmed that they were abused by Abdul Aziz and his sons for the whole day and that both of them were insulted. At about 9 p.m. Complainant along with his sons and Ashiq Ali went in front of house of Abdul Aziz to lodge a complainant. Abdul Aziz and his sons Muhammad Sarfraz, Gull Muhammad and Shahzad came outside their house in the street. A complaint was lodged by the first informant-complainant which caused grave annoyance to. Abdul Aziz and his sons who went inside the house and thereafter Abdul Aziz armed with stick, Gull Muhammad armed with stick, Sarfraz armed with iron rod and Shahzad armed with .12 bore gun came out of the house. After their emergence, Abdul Aziz caused a Sota blow on the head of Inayat Ali-complainant, Shahzad fired at Abdul Ghafoor which caused injuries on the different parts of his body. Shahzad caused another fire which hit Muhammad Idrees P.W. On the front of his body. Gull Muhammad caused a Sota blow on the head of Anwar Ali. Sarfraz grappled with Anwar Ali and raised Lalkara that nobody should be spared. The occurrence was witnessed by complainant and his companions along with Iftikhar Ahmed After causing injuries, the accused left the scene of occurrence. Abdul Ghafoor died on the spot. The injured P.Ws. And the deceased were taken to Allied Hospital, Faisalabad where Safarish Hussain Shah S.-I. Met the complainant and his statement was recorded.
3. The respondents-accused were sent up to face trial. During trial, the prosecution produced Inayat Ali, Muhammad Idrees and Ashiq Ali P.W.6 to P.W.9 as eye witnesses. Dr. Muhammad Saleem appeared as P.W.1 and stated about the injuries suffered by P.Ws. Inayat Ali, Anwar Ali and Muhammad Idrees. During cross-examination, he also stated about the injuries suffered by Abdul Aziz, Gull Muhammad and Muhammad Sarfraz respondents who were father and brothers of Shahzad respondent. Dr. Muhammad Ishaq P.W.2 stated that he conducted post-mortem examination on the dead body of Abdul Ghafoor on 31-9-1999. According to him, the deceased lost his life within few minutes of receiving of fire-arm injury and the examination was conducted within 24 hours of the death. Safarish Hussain. S.-I. P.W.12 stated about the recording of statement of Haji Inayat All at Allied Hospital at 11 p.m. After the occurrence. He also stated about the initial investigation of the case, arrest of the accused and recovery of weapons. The rest of the witnesses are formal in nature.
4. After the conclusion of prosecution evidence, the statements of accused-respondents were recorded. Shahzad respondent took specific plea of self-defence which is being reproduced for ready reference:- "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 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."
5. All the accused denied the prosecution version and claimed to be innocent. Abdul Aziz endorsed the defence plea taken by Shahzad. The respondents brought on record the medico legal certificates relating to their injuries. However, they did not appear in their defence under section 340(2), Cr.P.C. Nor they produced any D.W. Before the learned trial Court.
6. The learned trial Court vide judgment dated 12-6-2001 rejected the defence plea and convicted Shahzad respondent for causing the death of Abdul Ghafoor and sentenced him to death. Shahzad was further convicted and sentenced for causing injuries to Idrees. P.Ws. Abdul Aziz and Gull Muhammad were also convicted for causing injuries to P.Ws. Inayat and Anwar Ali. Gul Muhammad was sentenced to two years' R.I. While Abdul Aziz was sentenced to the period already served out by him in jail and he was set at liberty. Muhammad Sarfraz was acquitted of the charge. Shahzad and Gull Muhammad filed Criminal Appeal No,899 of 2001. Haji Inayat Ali complainant filed Criminal Appeal No,1090 of 2001 against acquittal of Sarfraz-accused. Haji Inayat Ali also filed Criminal Revision No,625 of 2001 seeking enhancement of sentence inflicted upon Abdul Aziz and Gull Muhammad respondents. All these matters along with Murder Reference No,324 of 2001 were decided through the above noted impugned judgment. Hence, this petition.
7. Learned counsel for the petitioner has submitted that the learned trial Court had correctly disbelieved the defence plea taken by the accused-respondents. The learned counsel has further submitted that after taking specific plea of self-defence, the onus to prove the same was shifted upon the respondents-accused who miserably failed to discharge the onus as they did not appear as witnesses in their defence nor they produced any defence witness. The learned counsel further submitted the learned appellate Court wrongly relied upon the medico legal certificates Exh.D.A., Exh.D.B. And Exh.D.C. Relating to the injuries suffered by respondent-accused. According to him, Exh.D.A. Which is MLC of Gull Muhammad, did not bear the time of arrival. The learned counsel submitted that injury on the person of Sarfraz mentioned in Exh.D.B. Could be a result of fall and could also be inflicted by a friendly hand and that the MLC of Abdul Aziz contained cutting in the column of date and hour of arrival and therefore, was not reliable. The learned counsel has submitted that the prosecution case rested on truth-worthy and reliable evidence furnished by the eye witnesses out of whom P.W.6, P.W.7 and P.W.8 had received injuries and their presence was established. The learned counsel added that the plea of self-defence taken by Shahzad was not specific and he had not mentioned the number of fires made by him. The learned counsel has lastly argued that the learned appellate Court had misread the medico legal evidence vis-a-vis respondents-accused and the evidence as a whole and that presuming but not conceding even if it was a case of self-defence then the right had been exceeded.
8. The learned counsel for the respondent and the learned Deputy Prosecutor-General Punjab have defended the impugned judgment and submitted that the defence plea was rightly believed as it spelt out of the circumstances of the case and it was not necessary to produce defence witnesses in support of the defence plea and that the occurrence took place at the door step of the accused- respondents and it was the complainant party which felt aggrieved over the use of disputed plot and abuses allegedly hurled by complainant party at Inayat Ali and his wife Mst. Zainab Bibi. The learned counsel have submitted that the reasons advanced by the learned appellate Court were according to the record of the case and, therefore, the impugned judgment needed no interference.
9. We have heard the learned counsel for the parties at length and scanned the entire record of the case.
10. Undeniably it is a case of two versions. Both the versions are to be put in juxtaposition in order to ascertain which of the version was true or nearer to the truth. Bare reading of the F.I.R. Reveals that except for putting the dung in the neighboring plot of land and making of dung-cakes, no previous or enmity existed between the parties. The house of the complainant party was situated in front of the house of respondents with a street in between. The F.I.R. Also reveals that the complainant party was highly annoyed over the abuses hurled at them by Shahzad and that complainant and his wife complained about the behaviour of the respondents and that it was the complainant party who went to the house of the respondents in order to launch protest which led to the occurrence.
The F.I.R. Is completely silent about injuries suffered by the respondents-accused. During trial Anwar Ali P.W.7 conceded that the relevant plot of land had been in use of the respondents and it was only on the fateful day that the complainant party used it for its own purposes. All the eye-witnesses insisted before the learned trial Court that they were unarmed at the time of occurrence and had not caused injury to any member of the accused party. In other words, they suppressed the injuries suffered by the accused-respondents. However, the circumstances and the record of the case belies version of the complainant party. Dr. Muhammad Saleem P. W.1 was produced by the complainant party. Through him prosecution brought on record the injuries suffered by Anwar Ali, Inayat Ali and Muhammad Idrees P.Ws. Anwar Ali and Inayat Ali had suffered one injury each caused by blunt weapon while Idrees suffered six injuries which were caused by fire-arm. However, most of the injuries were around the abdomen. During cross examination, Dr. Muhammad Saleem P. W.1 categorically stated that on 30-8-1999 he also examined Gull Muhammad son of Abdul Aziz Sarfraz, son of Abdul Aziz and their father Abdul Aziz and issued medical certificates Exh.D.A., Exh.D.B.
And Exh.D.C. Respectively. According to Exh.D.A., Gull Muhammad suffered blunt weapon injury on the right side of his head, according to Exh.D.B. Sarfraz also suffered a blunt weapon injury on the left side of his head and according to Exh.D.C. Abdul Aziz, who is father of Gull Muhammad, Sarfraz and Shahzad respondents, suffered two fire-arm injuries. Injury No,1 was grazing wound on the back and top of right chest while Injury No,2 was on the back of top of right side of chest. Injury No,2-B was exit wound. The statement of doctor relating to the injuries of the respondents was not challenged by the prosecution and the comments of the learned counsel cannot be considered at this stage. It was never put to the doctor that the injuries could be the result of fall or could be caused by friendly hand. The medical evidence reveals that the members of the accused party had received injuries on the vital part of their body. P.W.12 Safarish Ali S.-I. Admitted it to be correct that the accused side had produced before MLCs of Abdul Aziz, Gull Muhammad and Sarfraz. He also admitted it to be correct that the accused party in their cross-version alleged that thecomplainant side was aggressor and that the accused had acted in their defence. Inayat Ali complainant. P.W.6 and Ashiq Ali P.W.9 stated before the learned trial Court that the crime empties were recovered from a place which was in front of the door of Shahzad respondent's house. It was also admitted by Inayat Ali that the firing was caused by Shahzad while he was standing in front of his door. Undeniably Abdul Aziz father of Shahzad received fire-arm injuries while Gull Muhammad and Sarfraz who are brothers of Shahzad respondent received injuries on their head and the same were suppressed by the complainant party. It was quite natural that Shahzad being son and brother of the rest of the accused would try to save their lives. The deceased suffered one fire-arm injury while the fire-arm injuries on the person of Muhammad Idrees are mostly around his abdomen. According to F.I.R. Itself Shahzad was armed with a .12 bore single barrel gun and firstly he caused a fire at Abdul Ghafoor and thereafter he caused second fire which hit Muhammad Idrees. It is not mentioned in the F.I.R. That Shahzad caused any 3rd fire or re-loaded his gun after causing injury to Idrees. So the argument advanced by the learned counsel for the petitioner that Shahzad respondent resorted to indiscriminate firing is devoid of any force. It was held by this Court in the case of Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 that all the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. Is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case. If the answer be in affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly. To sum up, the suppression of the injuries on the respondents by the complainant party, the factum that it was the complainant party which felt annoyed over the behaviour of the respondents and had gone to the door step of the respondent's house to launch protest and the fact that the accused took the plea of self defence, at the first instance, leads to the conclusion that their plea was supported by the circumstances of the case and was closer to the truth. The reasons advanced by the learned appellate Court in paras. Nos.9 to 13 of the impugned judgment are borne out from the record of the case and the same cannot be termed as whimsical or perverse by any stretch of imagination, hence, no interference is called for.
11. For all what has been said above, we do not find any merit in this petition which is dismissed. .