' HASNAT AHMAD KHAN, J. Muhammad Rafiq, along with seven co-accused, was tried by a learned Additional Sessions. Judge, Kasur, in case F.I.R No,631/1999, dated 25-11-1999, registered with Police Station Raiwind Saddar, Kasur, in respect of offences under sections 302/ 324/337-A(i)/148/149, P.P.C. Vide his judgment, dated 31-10-2002 the said Addl.: Sessions Judge found the appellant guilty for the murder of Abrar Ahmad and convicted and sentenced him to death under section 302(b), P.P.C. Besides it, he was directed to pay a sum of Rs,50,000 as compensation to the legal heirs of the deceased or in default of payment thereof, he was ordered to undergo six months' R.I.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellant has challenged his conviction and sentence through Cr. Appeal No,1974/2002, while the trial Court has sent a Reference (M.R.No,18 of 2003) for confirmation, or otherwise, of the death sentence awarded to the appellant. This consolidated judgment will dispose of both the said matters.
3. Briefly, the prosecution's story, as per F.I.R (Exh.P.7) lodged on the statement/complaint (Exh. P.10) of Muhammad Ibrahim (P.W.6), is to the effect that, on the fateful day, i.e. 25-11-1999 at about 3-53 p.m., when he along with Imtiaz Ahmad, Dilfraz Ahmad and Absar and Abrar Ahmad (deceased) was irrigating his lands, Muhammad Sharif, Muhammad Rafique-appellant and Abdul Majeed, all armed with .12 bore guns, Abdul Rashid armed with a rifle, Muhammad Ismail armed with a pistol, Muhammad Qasim, armed with a .222 bore rifle and Nazir Ahmad, armed with a Sota, reached there, while raising Lalkaras and making aerial firing. According to the complainant, they caught hold of Abrar Ahmad (deceased) and dragged him to the farmyard/Haveli of Subey Khan. Subey Khan, who was already there, raised a Lalkara that the persistent discord should be finished, upon which Muhammad Rafiqueappellant fired a shot from his .12 bore gun hitting the left side of chest of Abrar Ahmad (deceased) who fell down. Thereafter Abdul Majeed produced a shot from .12 bore gun which hit nape of Faizan Shakil, who by that time, was running. While Nazir Ahmad, Abdul Rashid, Muhammad Islam, Muhammad Sharif and Muhammad Qasim kept on making aerial firing.
Abrar Ahmad succumbed to his injuries at the spot.
' The apple of discord between the parties was stated to be a dispute, regarding the measurement of the land, which had arisen 1-1/2 months prior to the occurrence.
4. After recording the F.I.R. (Exh.P.7) on 25-11-1999 Muhammad Ishtiaq, S.-I./Investigating Officer (P.W.13) recorded the statement (Exh.P.10) of the complainant then he proceeded to the spot, prepared injury statement (Exh.P.,24) and inquest report (Exh.P.25). He took into possession two crime empties (Exh.P.17) and (Exh.P.18) vide memo. (Exh.P.16). He also took into possession bloodstained earth vide memo. Exh.P.15, drew rough map of place of occurrence (Exh.P.26) and wrote down the application (Exh P 28) for medical examination. He dispatched the dead-body to the mortuary. After the post-mortem, a Constable produced before him the last worn clothes of the slain, which were taken into possession vide memo. Exh.P.1. He also got prepared site plan Exhs.P.8 and P-9 from Nasrullah, Draftsman. On 3-12-1999 he arrested the acquitted co accused Qasim, Nazir, Suba, Islam, Majeed and Rashid. On 7-12-1999 he arrested Muhammad Rafique-appellant and Muhammad Sharif, acquitted accused. Thereafter, he (Muhammad Ishtiaq, S. -I. P.W.13) was transferred and investigation was entrusted to Nazir Ahmed, Sub-Inspector who appeared in the witness as P.W.12 and proved recovery of .12 bore guns on the pointing out of M. Rafique appellant and Abdul Majeed/co-accused.
5. After submission of report under section 173, Cr.P.C., the appellant, along with his co-accused, was indicated on the charge of murder of Abrar Ahmad (slain) and for causing injuries to Faizan Shakeel (P:W.10). During the trial, the prosecution, in support of its case, produced as many as 13 witnesses.
' Muhammad Ibrahim complainant, Imtiaz Ahmad and Faizan Shakeel, injured P.W., entered into the witness-box as P.Ws. 6, 7 and 10, respectively and furnished the ocular account.
' Dr. Muhammad Arshad, who had conducted post-mortem examination on the body of the slain could not appear as he had left the country. Therefore, Rashid AhmadRecord Keeper appeared as P.W.11 and identified the handwriting and signatures of said Dr. Muhammad Arshad on the postmortem report (Exh.P.19) and pictorial diagram (Exh. P . 20).
' Dr. Masood Aziz, M.O./D.H.Q. Hospital, Kasur, who had medically examined Faizan Shakeel (P.W.10) came forward as P.W.2 and furnished the detail of injuries suffered by the said Faizan Shakil, injured P.W.
' Nazir Ahmad, Sub-Inspector Police, who after the entrustment of investigation to him, had partly investigated the case, stepped forward as P.W.12.
' Muhammad Ishtiaq, S.-I./ Investigating Officer appeared as P.W.13 and gave the detail of the investigation conducted by him.
' Rest of the P.Ws. Being formal in nature, need not be discussed here.
6. After recording the prosecution's evidence, all the accused were called upon to make their statements under section 342, Cr.P.C. Like his co-accused, the appellant also denied the charges levelled against him. However, he did not opt to make the statement under section 340(2), Cr.P.C.
After the conclusion of the trial the learned trial Court convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant has argued that the prosecution miserably failed to prove its case, as set up in the F.I.R., whereby legal machinery was put into the motion; that all the prosecution witnesses are inimical and interested witnesses, therefore, their evidence cannot be relied upon for maintaining the conviction and sentence awarded to the appellant without independent corroboration, which is not forthcoming in this case; that after disbelieving the ocular evidence, seven co-accused of the appellant had been acquitted and on this ground also, the ocular evidence cannot be relied upon without independent corroboration; that it is a case of two versions, while the defence- version is more plausible and believable than that of the prosecution; that the appellant had neither any enmity or ill-will against Ibrar Ahmed-deceased nor against Abdul Hameed, injured P.W., who were hired assassins brought by the complainant from Thatha and Karachi, respectively, to avenge the certain skirmishes, which had taken place between the parties prior to the occurrence and that Ibrar Ahmed-deceased was done to death by the appellant in exercise of his right of self-defence, therefore, he did not commit any offence. On the basis of said submissions the learned counsel for the appellant has sought clean acquittal of the appellant.
8. Conversely, the learned D.P.-G. Assisted by the learned counsel for the complainant has refuted the arguments put forth, by the learned counsel for the appellant. It has been argued by the learned counsel for the complainant thaf the prosecution has proved its case beyond any shadow of doubt; that the defence-version is nothing but a cooked book; that the appellant, who advanced the plea of self- defence, failed to discharge the burden of proof to establish the said plea, in terms of Article 121 of the Qanun-e-Shahadat Order, 1984. Therefore, his plea is liable to rejection outrightly and consequently his appeal merits dismissal.
9. We have given ardent hearing to the respective learned counsel for the parties and gone through the record minutely with their able assistance. After picking to pieces the entire oral as well as documentary evidence available on the 'record, we have concluded that it is a case of two versions, however, certain facts are not denied by both the parties. For instance, the place and the time of occurrence is admitted. It is also admitted that Ibrar Ahmed-deceased was shot dead by Muhammad Rafique-appellant, who also admitted the causing of injury to Abdul Hameed.
Primarily, the dispute between the parties is regarding the manner and the mode of occurrence and the fact that out of the parties, who had taken the initiative. In this backdrop, we have to examine, as to whjch of the versions is more probable, believable and nearer to the truth.
Considering the fact that on the basis of same ocular evidence, seven co-accused of the appellant were acquitted by the learned trial Court, we have to examine the question, as to whether the prosecution has succeeded in furnishing independent corroboration to the ocular evidence, which has already been partly disbelieved by the learned trial Court. After having been disbelieved by the learned trial Court, it can be concluded without fear of contradiction that the eye-witnesses have not been found fully reliable witnesses. Therefore, strong corroboration is required to rely upon their version.
10. As initially, it is duty of the prosecution to establish its case beyond any shadow of doubt, without, taking any advantage of weakness of the defence, therefore, in view of the law laid down by the Honourable Supreme Court in the case of Khalid Javed and another v. The State 2003 SCM R 1419 we are bound to first examine and discuss the prosecution's evidence in order to come to an independent finding \yith regard, to the reliability of the prosecution witnesses, particularly, the eye-witnesses and the probability of the story told by them. For doing so, we have observed Slat, according to Muhammad Ibrahim-complainant (P.W.6), on the day of occurrence, at 3-53 p.m., he, along with Imtiaz, Dilfraz, Afsaar, Dr. Ibrar Ahmed (slain), Khurram and Faizan Shakeel, injured P.W.10, was present in his agricultural fields. He further claimed that all of them including himself were watering his fields. He further alleged that the accused-party, armed to teeth, suddenly emerged from sugarcane field, while firing in the air. They, allegedly, caught hold of Dr. Ibrar Ahmed (deceased) and dragged him towards their farmyard/ Haveli situated at a distance of about 200 feet from the point where the complainant and his associates were present. On the raising of a Lalkara by Suba Khan acquitted co-accused, Rafique-appellant, statedly, shot at Dr. Ibrar Ahmed hitting his chest. He fell down and succumbed to his injuries. It was further alleged that during the said occurrence, Faizan Shakeel, injured (P.W.10) had received a fire-arm injury at the hands of Abdul Majeed-acquitted coaccused. The apple of discord between the parties was stated to be a dispute regarding the demarcation of land, which had taken place 1-1/2 months before the occurrence. Conversely, Muhammad Rafique-appellant, while making his statement under section 342, Cr.P.C. Raised plea of defence by making the following statement:- ' "The P.Ws. Are inter se related. They are inimical towards me and Abrar Ahmad slain, Faizan Shakil injured P.W. Are close relatives inter se. Abrar Ahmad slain and Faizan Shakil were the residents of Thatha, Sindh and were hired persons. On the alleged day of occurrence, Abrar Ahmad and Faizan Shakil along with their companions made murderous assault at my Dhari and trespassed into my house. Abrar Ahmad was armed with pistol/carbine . 12 bore who made fire, but it did not hit me luckily. I entered into my house in order to save my life, but 6-7 persons of the complainant party tried to murder me. I picked my gun and made one fire in my self- defence, in order to save my life the said fire hit Abrar Ahmad and one pellet also hit at the back side of Faizan Shakeel who were running at that time. My old father Suba was present in the house. He did not participate in the occurrence, nor he raised any Lalkara. The assailants of complainant party ran away. Then the complainant party after premeditation and consultation, concocted a false and fabricated story and involved me and my whole family and my close relative in this case. I on the first day during investigation, produced respectables of the locality and they appeared before all I.Os. In my favour and this plea was brought on record by the I.Os. Then the investigation was also conducted by Fazal Karim D.S.P., who after confronting both the parties with each other had verified my defence version in this case and declared the remaining accused innocent. Then the investigation was conducted by Azmat Bari D.S.P. C.I.A., Kasur, who also verified the investigation conducted by Fazal Karim D.S.P. The investigation was also conducted by Imdad Ali Khan D.S.P. H.Q. Kasur who also confirmed the investigation of other I. Os. And formed the opinion that the first I.O. On the basis of Oath, challaned all the accused in this case which is prohibited under the law. The said I.O. Verified my first version. Prior to this occurrence there was a dispute with the complainant regarding demarcation of land. The complainant used to block my passage and also used to block me from watering Khal, from which I used to irrigate my lands. The motive of the complainant party was not proved, during investigation. The fake recovery of . 12 bore gun has been planted upon me. Inspite of the recovery of .12 bore gun, it was a licensed gun of my father Suba. I am innocent.
11. The prosecution, in order to prove its case, relied upon the ocular testimony furnished by Muhammad Ibrahim- complainant (P.W.6), Imtiaz Ahmed (P.W. 7) and Faizan Shakeel injured P.W.
10. While appearing in the witness- box, Muhammad Ibrahim reiterated the statement, which was made by him at the time of lodging the F.I.R. We have observed that the occurrence was reported to the police by the said witness with the delay of about 3 hours. We have further observed that F.I.R. Was not recorded at the Police Station, rather the complainant's statement, which was converted into F.I.R., was recorded at Hundal Chowk, Kot Radha Kishan. Therefore, possibility of recording the said statement after preliminary investigation, cannot be ruled out. The other two, afore-mentioned, eye-witnesses tried to corroborate the statement of P.W.6. After examining the ocular evidence as well as the basic document, i.e. F.I.R., we have concluded tlftit, admittedly, neither the deceased nor the injured witnesses belonged to the village in which the occurrence took place. Ibrar Ahmed-deceased belonged to Thatha, Sindh, while Faizan Shakeel (P.W. 10) is resident of Karachi. According to the complainant, they had visited Punjab to attend a marriage ceremony, which took place in another village, namely, Ratipindi. The complainant claimed that after attending the said marriage ceremony, both of them, along with Absaar Ahmed, brother of Ibrar Ahmed-deceased, had come to see the complainant, who is their cousin. Admittedly, there was no enmity at all between the appellant and his family members with the said guests of the complainant, it is also admitted fact that the occurrence did not take place in the fields of the complainant. Admittedly, Ibrar Ahmed-deceased was shot dead in the farmyard of the accused- party. According to the complainant, Ibrar Ahmed-deceased was done to death after dragging him towards a point situated at the distance of 200 feet. The ocular evidence has already been disbelieved, qua other seven coaccused, who, consequently, have been acquitted. Therefore, dragging of deceased in the presence of so many people, single handedly by the appellant, appears to be doubtful. Further, this aspect of the matter was contradicted by the post-mortem report, according to which, only a fire-arm wound was found on the corpse of Ibrar Ahmed- deceased, which shows that there was no mark of dragging on his body. Muhammad Ishtiaq, Inspector/Investigation Officer, who appeared in the witness-box as P.W.13, candidly conceded that he had not shown any dragging marks, on the site plan (Exh.P.26). So the prosecution miserably failed to prove this part of the story. As far as venue of the occurrence is concerned, Muhammad Nasrullah (P.W.5), who had prepared the site plan admitted that place of occurrence was in front of the Haveli of the accused. In reply to certain questions during his cross-examination he stated as under:- ' "It is correct that the verandah shown in the site plan belongs to the accused. It is also correct that Sheesham tree and vacant plot shown in the site plan also part of the courtyard of the Haveli of the accused. I have not seen signs of dragging of the slain from point E to A."
' Imtiaz Ahmed (P.W.7) also admitted that the occurrence had taken place in front of the house of the accused. The said resume of the evidence clearly proved that Ibrar Ahmed-deceased was gunned down in the farmyard of the appellant. Now the question remains to be answered is as to why the deceased and witnesses were present at the time of occurrence. It is not believable that the guests of the complainant, who had reached from a far- off areas of Karachi and Thatha, would help the appellant in irrigating his fields. It is also not believable that in the presence of the complainant, who was arch enemy of the appellant, he would drag his (complainant's) guest, whom he did not even know before the occurrence, to his Haveli for doing him to death. The allegation of dragging of Ibrar Ahmed- deceased was also disbelieved by the learned trial Court. In these circumstances, we have come to a definite conclusion that the manner in which the occurrence, according to the prosecution, took place, is neither probable nor believable, therefore the said version of the prosecution is discarded. Besides, evidence of all the said witnesses having been disbelieved by the learned trial Court qua acquitted coaccused, including Abdul Majeed coaccused, who was assigned the role of causing a fire-arm injury to Faizan Shakeel, independent corroboration was required to rely upon the statements of the eye-witnesses but the same is not forthcoming.
12. The allegation of the causing of fire-arm injury to Faizan Shakeel (P.W.10) by Abdul Majeed, acquitted co-accused has already been disbelieved by the learned trial Court. The motive part of the story has also been disbelieved by the trial Court. So, after discarding the prosecution's evidence, we have to fall back on the statement of the appellant but in view of the case of Khalid Javed (supra), we cannot straightaway rely upon the said statement, and we have to examine the case on two-fold aspects. Firstly, whether a right of self-defence accrued to him and after finding the answer in positive, we have to see whether he exercised his said right within the limits prescribed by law or did he exceed his right. To plumb the depths of the said plea, we have gathered that, according to the defence, in view of previous incidents of quarrels between the accused party and the complainant, due to the demarcation of land, the complainant had hired assassins to take revenge from the accused party. According to the appellant, the said assassins hired by the complainant, were not known to the accused-party, as they were not the residents of the area, rather they belonged to a different Province. According to the appellant, Ibrar Ahmed- deceased, along with other persons, while armed with fire-arm weapons, had trespassed into his house. According to him, apprehending danger to his life, he picked up a gun from his house and shot at Ibrar Ahmed and one of the pellets had hit Faizan Shakeel. The said defence-version gets support from the statement of the complainant himself, who claimed that his leg is partially paralyzed and he cannot run. He further deposed that the accused party had roughed up him 7/8 times. He further stated that a case was got registered by him against the accused-party but it wa& compromised due to the influence of the accused. He further conceded that he was all alone and the accused were large in number, who used to beat him off and on. He further mentioned that he was helpless but had a grudge against the accused, due to the above said beatings. In the said backdrop, the hiring of assassins or seeking help from his relatives by the complainant to take the revenge from the accused, cannot be ruled out. It is further noteworthy that the complainant failed to prove that on the day of occurrence, it was his turn of water, as no documentary evidence, including the Warabandi was produced in this regard. The conduct of Faizan Shakeel, injured P.W., after the occurrence, also strengthen the defence-version. Admittedly, he was not medically examined on the date of occurrence. During his cross- examination, as recorded on page-59 of this Paper Book, he stated that first of ail the police reached at the spot, thereafter, his relatives reached there and took him to Kot Radha Kishan. He further stated that he had spent the night with his relatives at Kot Radha Kishan and on the next morning, he had been medically examined. His immediate disappearance from the scene of the occurrence and non-appearance for the medical examination on the date of occurrence, shows his guilty conscious.
13. All the resume of the evidence on record leads us to conclude that the appellant had neither any grudge against so- called guests of the complainant nor did he drag the deceased from the fields of the complainant towards his Haveli. Similarly, he had no reason to shot at Ibrar Ahmed, as -claimed by the prosecution. There is another reason for disbelieving the prosecution story of intentional murder, i.e., in presence of his arch-enemy, i.e., the complainant, there was no reason for the appellant to shot at Ibrar-deceased, who was not even known to him. It is also notable that from day one, as admitted by Muhammad Ishtiaq (P.W.13), it was claim of the appellant that it was the complainant party, who were the aggressors. Nazir Ahmed, Sub-Inspector, P.W.12 also admitted during his cross-examination that from day one, Suba, father of the appellant had taken the plea that the complainant along with 6/7 persons had trespassed into his house with an intention of murderous assault. In these circumstances, we have come to an irresistible conclusion that on the fateful day, the complainant-party had trespassed into the house of the accused and the unwelcome pesence of 6/7 persons in his house/courtyard, caused an apprehension into the mind of the appellant that his life was in danger. Though, he did not appear in witness-box in his defence but the burden of proof to prove the self- defence is not so heavy as it is on the prosecution to prove its case. Reliance in this regard is placed upon the case of Safdar Ali v. The Crown PLD 1953 FC 93. Consequently, he was within his right to defend himself.
14. Now, the question remains as to whether he remained within his limits, while exercising his right of self-defence. In this regard, we have observed that, though, the allegation of causing a fire-arm injury to Faizan Shakeel (P.W.10) was levelled against Abdul Majeed but he has been acquitted.
Furthermore, the appellant admitted that Faizan Shakeel had received a fire-arm injury at his (appellant's) hands, though, according to him, it was result of stray pellet of a single shot, which had hit Ibrar-deceased but the locale of fire-arm injuries suffered by both of them, shows that these were two independent fires. Further, Exh.P.16 reveals that from the place of occurrence, two empty shells of cartridges were recovered which wedded with the gun recovered from the possession of the appellant. Said facts show that the appellant had repeated the fire. Further, Faizan injured P.W. Was shot injured when he was running. Therefore, we have concluded that the appellant exceeded his right of self-defence.
15. Consequently, the appeal filed by the appellant is partly allowed and the conviction and sentence awarded to him under section 302(b), P.P.C. Is set aside and instead the appellant is convicted under section 302(c), P.P.C. Resultantly, he is awarded sentence of rigorous imprisonment of 15 years with benefit of section 382-B, Cr.P.C. Death sentence is not confirmed and murder reference is answered in negative.