' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,77-J of 2002 filed by Salehoon Shah, who faced trial in case F.I.R. No,12, registered at Police Station Mochiwala, Jhang, on 12-1-2000, for offence under section 302, P.P.C., before learned Additional Sessions Judge, Jhang, who after concluding the trial, vide his judgment, dated 8-2-2002 convicted the appellant under section 302(b), P.P.C. And sentenced him to death with fine of Rs,20,000 or in default one yeai's S.I. And also with compensation of Rs,1,00,000 or in default one year's S.I.
2. Murder Reference No,233 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.P.A./1 are that on the fateful day the complainant along with his brother Hafiz Anwar-ul-Mustafa, Abdul Rashid and Muhammad Kashif was sitting in his agricultural land in Chak No,233/JB after setting the tube-well in operation. Anwar-ul-Mustafa went to 20/25 Karams away from them to collect wood for burning fire. At that time Salehoon Shah armed with .12 bore doubt-barrel gun reached there and raised Lalkara that he would teach lesson to Anwar-ul-Mustafa for pursuing the civil suit regarding the land in dispute. He fired a shot which hit the fingers of the left hand and abdomen of Anwar-ul-Mustafa. The P.Ws. Tried to rescue him but Salehoon Shah threatened that if anybody came near he would also be done to death.
Thereafter, the accused fled away from the spot. The injured was shifted to Civil Hospital, Jhang, where he succumbed to the injuries on the same day at about 3-45 p.m.
4. The motive behind the occurrence as set in the F.I.R. Was that Salehoon Shah had a grudge against Anwar-ul-Mustafa for pursuing the civil case against him.
5. After registration of formal F.I.R., the investigation of the case was taken over by Abdul Majid, S.- I./P.W.11. He proceeded to the Civil Hospital, Jhang, took over the dead body, prepared injury statement Exh.P.F. And inquest report Exh.P.G. Thereafter he visited the place of occurrence and secured blood-stained earth from the spot vide memo. Exh.P.M. He also took into possession one crime-empty P.1 vide memo. Exh.P.N. On 31-1-2000 he arrested the accused, who led to the recovery of .12 bore double-barrel gun P.6, which was taken into possession vide memo. Exh.P.Q. After completion of investigation, the accused was sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence certain documents closed its case. The accused in statement recorded under section 342, Cr.P.C. Pleaded his innocence. However, in reply to question No,13 he answered as under:-- "I am innocent. I purchased Government land in Sq. Nos.62 and No,63 in the year 1963 through auction. Muhammad Khan Luck of Chak No,202/JB was my partner in the said purchase. I am sorry to point out that unfortunately I helped Moulana Abdul Rashid in getting some State land on ten years Tender scheme near my land, where they installed a tube-well. Later on they tried manoeuvring and prepared fake sale-deeds on the basis of which through their clever conspiracy with Revenue Staff they got some entries in their favour on the basis of which they later on filed a civil suit. The land in dispute is still State land, as all the conditions have not been completed so far.
Neither I sold the same to the complainant party nor I made any agreement to sell. After filing the civil suit the complainant party asserted to take possession of the land by some means or the other. Some Shesham trees were standing on the Banna of my land. The deceased along with some hired persons armed with hatchets tried to cut those Shesham trees my wife intervened who was insulted and maltreated. Meanwhile, I came there in order to save the honor and to save my property when deceased advanced towards me brandishing his hatchet, I fired in self-defence. I have committed no offence. The complainant party had strong dominance in the area and there are villagers follower of Moulana Abdul Rashid, police under their influence wrongly challaned me and in order to facilitate the taking of possession of the disputed land registered a false case against my family including my son and unmarried daughter and when I and my wife gone to jail, the complainant party took over the possession of the land. They destroyed my garden and even my house which is constructed in Killa No,8 of Sq. No,63. The documents produced by the prosecution are result of influence of Moulana Abdul Rashid and are against the real facts."
' He did not appear as witness under section 340(2), Cr.P.C. However, he produced Exh.D.D. To Exh.D.F. After conclusion of trial, learned trial Court convicted and sentenced the appellant as stated above.
7. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal contends that both the witnesses were chance witnesses; that Muhammad Zia-ul-Mustafa was real brother of the deceased while Muhammad Kashif was pupil of father of the deceased; that undeniably enmity existed between the complainant party and the appellant; that the defence plea is supported by the circumstances of the case and the appellant had a right to defend his property, therefore, his case was covered by section 100, P.P.C. And the appellant deserved acquittal. In the alternate the learned counsel for the appellant has submitted that it was not a case of capital punishment as mitigating circumstances existed in favour of the appellant and has referred to the evidence of motive. He has argued that there is no evidence that the civil case was being pursued by the deceased.
8. The learned Additional Prosecutor-General submits that both the witnesses are the natural witnesses; that Muhammad Kashif has no ill-will against the appellant so as to rope him in a false case; and that the occurrence is admitted by the appellant, therefore, the onus shifted on him to prove his defence, which he failed. He supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. The occurrence is not denied by the appellant. However, he had taken a plea of defence of his property and self-defence. It is a case of two versions both are to be put in juxtaposition in order to appreciate which of the two was true or nearer to the truth.
10. According to prosecution case, on the fateful day Hafiz Anwar-ul-Mustafa deceased, his brother Zia-ul-Mustafa complainant, Abdul Rashid son of Muhammad Bakhsh and Muhammad Kashif P.W.9 were present near their tube-well which was running. When Anwar-ul-Mustafa in order to collect wood for burning the fire went at a distance of 20/25 Karams, he was surprised by the appellant, who was armed with double-barrel gun, after raising Lalkara that he would teach lesson to the deceased for pursuing the case relating to the land he fired which hit on the fingers of the left hand of the deceased and on his abdomen. Thereafter, the injured was immediately shifted to Civil Hospital, Jhang. However, the deceased lost his life at 3-45 p.m. In the hospital. The motive behind the occurrence was that a civil case relating to 23 acres of agricultural land had been filed against the appellant by father of the deceased. The case was being pursued by Anwar-ul- Mustafa deceased, which caused annoyance to the appellant.
11. In order to prove its case the prosecution produced Zia-ulMustafa brother of the deceased P.W.10 and Muhammad Kashif P.W.9 who was pupil in the Madrassa run by father of the deceased. The occurrence is not denied, however, the presence of the P.Ws. Has been challenged. The existence of tube-well stands established. Muhammad Kashif has stated that he was asked by his teacher Moulana Abdul Rashid to help the deceased in irrigation of land and for that reason he was with the deceased and other P.W. Muhammad Kashif was memorizing Holy Qur'an and was student of Madrassa headed by Moulana Abdul Rashid P.W.B. He has given reasonable explanation for his being at the spot by stating that during the days of occurrence he had not completed Hifz of Qur'an-e-Pak and during month of Ramzan he used to recite the Holy Qur'an before Moulana Abdul Rashid. He admitted that some of the students of Madrassa had gone to their houses during vacations but he added that the students who had completed Hifz-e-Qur'an, they had left so as to recite Holy Qur'an during Traveh in different villages. He is Hafiz-e-Qur'an ltd having no previous or enmity with the appellant so as to rope him in a false case. The complainant, who is elder brother of the deceased also had no previous personal enmity with the appellant. Both of them have corroborated each other on all the material particulars of the case. Their statements are fully supported by the medical evidence. The prosecution has also successfully proved that Moulana Abdul Rashid had filed civil suit against the appellant and three others, which was pending since 13-5-1998.
12. As far as the defence plea is concerned, It is based on the statement of the appellant recorded under section 342, Cr.P.C. And certified copies of record of right pertaining to years 1992, 1993, 1996 and 1997, and Khasra Girdawari for years 1994 to 1999 (Exh.D.D., Exh.D.E. And Exh.D.F.). The appellant did .Not appear as witness in his defence and he also did not produce any other witness in his defence. He conceded in his statement recorded under section 342, Cr.P.C. That the documents produced by the prosecution were the result of influence of Moulana Abdul Rashid and were against the real facts. It was stated in the defence plea that the deceased along with hired persons tried to cut Shesham trees belonging to the appellant. The appellant and his wife intervened and they were insulted and maltreated. However, even wife was not produced to support this portion of the statement of the appellant. It is also not believable that the deceased who was allegedly armed with hatchet would advance towards the appellant, who was armed with a double-barrel gun. In these circumstances, we find no merit in the defence plea and reject the same. In our considered opinion the prosecution has successfully proved its case against the appellant.
13. Having come to this conclusion we have given our anxious thought to the quantum of sentence in the circumstances of the case. It has been noticed by us that litigation existed between Moulana Abdul Rashid P.W.8 and the appellant, who was more than 60 years at the time of occurrence. No personal enmity existed between the deceased and the appellant. According to prosecution case the appellant nursed grudge in his heart against the deceased for the reason that he used to pursue the case filed against him. No documentary evidence is available on record to show that in fact the case was being pursued by the deceased. The deceased was not the only son of Moulana Abdul Rashid and undeniably the complainant was elder brother of the deceased. It is not in evidence that Moulana Abdul Rashid was sick and unhealthy and for that reason he could not pursue the case. On the contrary Moulana Abdul .Rashid appeared in this case as P.W.8. Admittedly the case was filed on 13-5-1998 more than one and half years prior to the occurrence and nothing happened during interregnum. Obviously the prosecution has concocted motive of personal enmity between the appellant and the deceased by stating that it was deceased, who used to pursue civil case. The genesis of the fight is not known. According to police record at the time of his arrest the appellant was about 65/66 years of age. Being matured age he would not lose his composure without any provocation. According to prosecution case itself the deceased left his colleagues and covered 20/25 Karams to procure wood. It appears that some altercation took place between the appellant and the deceased over cutting of wood, which led this unfortunate incident and there is no allegation that the appellant even attempted to cause any other injury to the deceased or to any of the P. Ws.
14. Considering the above noted circumstances while maintaining the conviction of the appellant for offence under section 302(b), G P.P.C. We reduce his sentence to imprisonment for life. The sentence of fine being illegal is set aside. However, the order passed by the learned trial Court under section 544-A, Cr.P.C. Is maintained with slight modification that in case of default the appellant would suffer six months' S.I. Benefit of section 382-B, Cr.P.C. Is given to the appellant.
15. With the above modification, this appeal is partly allowed. Murder Reference is answered in the negative. Death sentence is not confirmed.