' MUHAMMAD KHALID ALVI, J.---Through this single judgment, I propose to dispose of Criminal Appeal No,361 of 2002 and Criminal Revision No,155 of 2002 as the same have nexus with each other.
2. Appellants Shah Muhammad, Hafiz Gulab Ali and Imam Bux along with Muhammad Sharif alias Chapha and Muhammad Munir alias Mansha (acquitted co-accused) faced trial for the murder of Sheikh Muhammad father of the complainant Muhammad Abbas P.W.3 in case F.I.R. No,167 registered at 1-50 a.m. On 16-6-2002 on the statement of Muhammad Abbas P.W.3 at Police Station Shehr Farid under sections 302/148/149, P.P.C. After the trial, the learned trial Court acquitted Muhammad Sharif and Muhammad Munir co-accused of the charges vide judgment dated 23-11- 2002. Their acquittal was challenged by the complainant through Criminal Appeal No,349 of 2002 before this Court, which stands dismissed vide judgment dated 17-4-2003. The appellants were however convicted under section 302(c) of the P.P.C. And sentenced to 10 years' R.I. Each with a fine of Rs,50,000 each to be paid to the legal heirs of the deceased. In case of failure to pay fine, they were further directed to undergo six months' S.-I. All of them were also given benefit of section 382- B, Cr.P.C. However they were acquitted from the charges under sections 148 and 149, P.P.C.
3. In brief the prosecution story narrated by Muhammad Abbas complainant P.W.3 in the F.I.R. Is that his father owns 15 acres agricultural land in Basti Chenanwali village Kaura Bhootana. About three years ago, father purchased 10 Kanals of land from one Hakam Ali, which was in possession of Chishti Barathery and its possession was however taken over. They used to irrigate their lands with Peter engine from the water of river saticy. On 15-6-2002 at about Zohar Wela, complainant along with Muhammad Usman brother, Ali Ahmad and Sheikh Muhammad (deceased) went to run Peter Engine and started irrigating their lands. At about 7-30 p.m. Shah Muhammad appellant and Muhammad Sharif acquitted co-accused armed with .12 bore guns, Gulab Ali appellant, Munir Ahmad alias Mansha (acquitted co-accused) and Imam Bukhsh appellant armed with rifles came there and started firing on the pretext that they will teach a lesson of getting 10 Kanals land. Sheikh Muhammad deceased started towards the accused persons and tried to make them understand the situation. However Shah Muhammad appellant fired, which hit Sheikh Muhammad deceased on his neck and chest. Gulab Ali appellant fired which hit him on his right shoulder while Imam Bukhsh appellant fired which also hit on his right shoulder. The deceased fell down and thereafter he ran towards the complainant. However the accused party continued firing. The occurrence was also witnessed by Muhammad Usman (given up) and Ali Muhammad P.W.4. Thereafter the accused while firing decamped. After about half an hour the deceased succumbed to the injuries.
Motive for the occurrence is reported to be dispute with regard to 10 Kanals of land.
4. In support of prosecution case, total nine witnesses were produced apart from other documentary evidence. P.W.3 and P.W.4 are eye-witnesses, P.W.6 is the Medical Officer who conducted the post-mortem examination, P.W. 9 is Investigating Officer and other are formal witnesses.
5. In statement under section 342: Cr.P.C. Shah Muhammad appellant in reply to question No,9 i.e, "have you anything else to say" gave the following answer":--- ' "I am innocent. In fact Sheikh Muhammad deceased was a criminal and a desperate person. He was involved in about 40/50 criminal cases under sections 302/379/380/457/324, P.P.C. Registered at different police stations of Burewala, Luddan, Shehr Farid, Donga Bunga, Takhat Mahal, Sadiq Pur and Sadar Vehari. He was also bound down under sections 55/109, Cr.P.C. He fraudulently got mutated 10 Kanals of land of Hakim Ali son of Waryam Caste Jatt resident of Hussain Colony Chishtian in his name inclusion with the Revenue Staff when Hakim Ali came to know about the mutation he filed an appeal before E.D.O.R. Chishtian which was decided in his favour on 15-3-2002 Sheikh Muhammad deceased filed an appeal against the said order in the Court of E.D.O.R.
Bahawalanagar but the same was dismissed on 24-2-2002. Hakim Ali mentioned above transferred the said land to Ghulam Ali my Mamoo and my father Ahmad Yar on 27-4-2002 through registered sale-deed. The possession of said land was also delivered to us and we were in physical possession of the land in dispute. Sheikh Muhammad deceased wanted to take forcible possession of the said land and that on the night of occurrence at about 12 mid-night Sheikh Muhammad deceased along with his other companions 15-16 in number armed with fire arms criminally trespassed into our land and started firing indiscriminately. I was present in my land along with Imam Bukhsh brother of Saeed sons of Rahim Bukhsh. Saeed was murdered' by Sheikh Muhammad some time ago before this occurrence. It was a dark night the assailants damaged our crop and during the occurrence it was melee and during the cross-firing the deceased received injuries and it was not known whose fire hit the deceased. I as well as my co-accused have committed no offence. I as well as my co-accused are innocent."
' However the other accused took up the plea of complete denial. Appellant Shah Muhammad tendered in evidence some documents. However all the accused persons preferred not to appear as their own witnesses under, section 340(2), Cr.P.C.
6. The learned Trial Court after conclusion of the trial passed the impugned judgment as earlier mentioned.
7. It is contended by the learned counsel for the appellant that P.W.3 complainant, P.W.5 Patwari and P.W.9 Investigating Officer have admitted that the place of occurrence belongs to accused Shah Muhammad. This fact is also supported by the site plan Exh.PD and PD/1 prepared by P.W.5 Muhammad Rafique Patwari and Exh.PP site plan prepared by P.W.9 Salah Muhammad, Investigating Officer. It is thus argued that the deceased had no reason to enter upon his property at night time along with others while armed with deadly weapons. It is further argued that the motive is also not established inasmuch as Mutation No,1072 attested on 13-9-1999 in favour of the deceased with regard to disputed 10 Kanals of land stood cancelled by the DDO vide order dated 15-3-2002 and its appeal filed by the deceased also stood dismissed vide order dated 24-4-2002.
The same land was sold by the original owner. Hakam Ali in favour of Ahmad Yar father of Shah Muhammad accused and Ghulam Ali, his maternal uncle through Exh.DF and DE on 27-4-2002. It is thus concluded that evidence of motive is also without any substance. It is further argued that the recovery of empties and the crime weapons allegedly recovered from the place of occurrence and the appellants have been rightly disbelieved. It is next argued that occurrence took place in the lands of Shah Muhammad accused coupled with the fact that the recoveries of empties and crime weapons was not established and the fact that motive is also not proved, the ocular account furnished by P.W.3 and P.W.4 being interested witnesses was not reliable and the plea taken by Shah Muhammad appellant of his right of private defence of his person and property should have been believed.
8. On the other hand, learned counsel for the State assisted by the learned counsel for the complainant contends that although the appeal filed by deceased before E.D.O. (R) was dismissed for non-prosecution on 24-4-2002, however it was restored on the same day. The learned counsel on my query however has frankly conceded that after revival, the same stands dismissed on its own merits. It is next argued that ocular evidence furnished by P.W.3 and P.W.4 is confidence- inspiring, therefore, even if it is not supported with any corroborative evidence, conviction could have been maintained on the same. It is also argued that, defence taken by Shah Muhammad appellant that he was alone at the time of occurrence -and was attacked by deceased along with 15/16 others is also unnatural and unbelievable in view of the fact that he did not receive even a single injury as a result of such attack. In support of his version it is argued that since the plea of self defence taken by Shah Muhammad appellant is unnatural, therefore, they deserved conviction under section 302(c) P.P.C. And not under section 302(2) P.P.C.
9. I have considered the arguments of the learned counsel for the parties and gone through the entire record.
10. Recovery of crime empties effected on 16-6-2002 and crime weapons effected on 12-7-2002 have been rightly discarded from consideration by the teamed Trial Court in view of the fact that although P.W.7 Muhammad Aslam Moharrar H.C. And Muhammad Ismail constable P.W.8 did state that the crime empties and crime A weapons were handed over to them for safe custody but in their statement under section 161, Cr.P.C. Exh.DA and DB it is to be noted that no such thing was ever handed over to them for their safe custody. In these circumstances, the report of the Chemical Examiner Exh.PQ which reflects that the crime empties matched the crime weapon is of no consequence and cannot be used against the accused persons because possibility of tampering both the said pieces of evidence cannot be ruled out: Yet another aspect throws doubt upon these recoveries. Exh.PG is the inquest report prepared by the Investigating Officer. Para 22 of the said report requires that anything , recovered nearby the dead body is to be mentioned in the said para which is kept blank although the empties were recovered from nearby the dead body. The alleged recovery of crime empties is also shown to have been made on the same day i.e, 16-6-2002 vide recovery memo. Exh.PH and PJ when the inquest report Exh.PG was prepared. Had these empties been recovered on the same day, there was no reason for the Investigating Officer to have left para. 22 of the Exh.PG blank.
11. Motive in the instant case is a dispute with regard to 10 Kanals of land purchased by deceased through Mutation No,1072 attested on 13-9-1999 which stood cancelled by the higher authorities and further appeal filed by the deceased also failed. As against this the same property stood purchased by Ahmad Yar father and Ghulam Ali maternal uncle of Shah Muhammad appellant, therefore, there was no motive with the accused Shah Muhammad to have attacked the deceased, rather on the other hand deceased having failed to retain the said land had a motive against accused Shah Muhammad or his father and maternal uncle. Apart from this, admittedly the place of occurrence is neither the said disputed land nor land owned by the deceased in the same vicinity. It is established and admitted fact on record that the place of occurrence and surrounding area is owned by Shah Muhammad accused, therefore, at night C time in view of the dispute between the parties the deceased had no reason to be in the lands of Shah Muhammad accused.
12. Presence of P.W.3 at the time of occurrence also becomes doubtful from the perusal of site plan Exh.PD and Exh.PD/1 prepared by Patwari P.W.5 and Exh.PP prepared by.P.W.9 Investigating Officer. In these site, plans at points Nos.5 and 6 the presence of two eye-witnesses namely Usman (given up) and Ali Ahmad P.W.4 is shown but the presence of P.W.3 complainant is not shown any where P.W.3 claimed in his examination-in-chief that after having received injuries deceased ran towards him but his presence in the site plans is not shown which creates a serious doubt of his presence at the spot.
13. In view of the above discussion, since the prosecution had failed to establish different pieces of evidence against the appellants, therefore, the Court is left with no option but to give weight to the plea taken by Shah Muhammad appellant that he was attacked by deceased Sheikh Muhammad along with others and as a matter of right of private defence of his person and property he fired at him which resulted in his death. In the circumstances of the case, if his this version is accepted, it cannot be said that he exceeded his right of private defence.
14. For what has been stated above, this appeal is allowed, all the three appellants are acquitted from the charges framed against them. They be released forthwith if not required in any other case. For the same reasons Criminal Revision No,155 of 2002 is dismissed, which seeks conviction of appellants under section 302(b), P.P.C.