' ALI NAWAZ CHOWHAN, J.- Through this appeal, the appellants have challenged their conviction recorded by the learned Additional Sessions Judge, Sargodha vide judgment dated 30-10-1999 in case F.I.R. No,77 dated 11-4-1997 registered under sections 302/324/148/149, P.P.C. At Police Station Bhera Tehsil Bhalwal District Sargodha. Mumtaz son of Bhai Khan, Sultan son of Rajadah and Nazir son of Ameer appellants were convicted under section 302-B, P.P.C. And sentenced to death as Tazir and asked to pay compensation of Rs,20,000 each in default whereof to undergo six months R.I. Each.
' The other co-accused Nawaz son of Rajadah appellant was convicted and sentenced to two years as Tazir and ' Arsh' which shall be l/3rd of Diyat. Maqsood appellant was convicted and sentenced to one year as Tazir and 'Daman' amounting to Rs,5000. Usman appellant was convicted and sentenced to one year as Tazir and 'Daman' amounting to Rs,5000 and Dastgir appellant was convicted and sentenced to imprisonment for six months as Tazir and 'Daman' amounting to Rs,3000 for causing hurt to the injured P.Ws. Nazir and Bashir. However, they were given the benefit of section 382-B, Cr.P.C. By the same judgment Mukhtar son of Yara, Nawaz and Mumtaz sons of Mirza, Zaman son of Hayat, Dost Muhammad son of Salehon were acquitted of the charge. No other appeals were filed against conviction or acquittal of other co-accused either by the co-accused or the complainant. The learned trial Court has also sent Murder Reference No,478 of 1999 for confirmation of death sentence or otherwise which is also being disposed of through this judgment.
2. Brief facts of the case are that on Nazir son of Raja lodged an F.I.R. To the effect that on 11-4-1997 at about 10-30 a.m. He along with Ahmad Khan son of Muhammad Khan, Bashir and Lala sons of Jehana,- Ahmad son of Bati residents of Bathuni were present in their fields, meanwhile Muhammad Mumtaz son of Bhai Khan armed with rifle, Nawaz son of Rajadah armed with rifle, Sultan son of Rajadah armed with 12 bore gun, Maqsood son of Zaman armed with 12 bore gun, Nazir son of Ameer armed with rifle, Usman son of Karam Ali armed with 12 bore gun, Dastgir son of Muhammad Nazir armed with 12 bore gun, Mumtaz son of Yara, Nawaz and Mumtaz sons of Mirza Dosa son of Selehon armed with sotas. Dosa raised Lalkara that they would teach a lesson to Ahmad Khan for possessing their land. Mumtaz son of Bhai Khan fired a shot with his rifle which hit Ahmad Khan in front of his neck, Sultan son of Rajadah fired a shot with 12 bore gun which hit Ahmad Khan on his nose, Nazir son of Ameer also fired a shot with his rifle which hit Ahmad Khan on his left cheek whereupon he fell down. Nawaz son of Rajadah fired a shot with his rifle which hit Muhammad Bashir on front of his chest, Maqsood son of Zaman fired a shot with his gun which also hit Muhammad Bashir on his head who fell down. Meanwhile Usman son of Karam Ali fired a shot with his 12 bore gun and the pellets hit the complainant on his left eye and hand. Destgir fired a shot with his gun and the pellets hit the complainant in front of his chest. Sultan son of Rajadah fired a shot with his 12 bore' gun which hit the complainant on his left leg whereupon he fell down.
The motive for the occurrence was a land dispute between Mumtaz son of Bhai Khan and Ahmad Khan deceased stated to be in possession of Ahmad Khan deceased.
3. After formal investigation, the accused were sent to face the trial. The learned trial Court after taking cognizance of the matter charge sheeted the accused to which they pleaded not guilty and claimed trial. The prosecution to prove its case examined as many as thirteen witnesses. Musa son of Shera P.W.l is the witness of recovery of blood stained earth from the place of murder of Ahmad Khan deceased vide memo Ex.PA. Muhammad Ali P.W.2 identified the dead body of the deceased in the mortuary. Zafar Yab Hussain Patwari P.W.3 prepared site plan Ex.PB and Ex.PB/1 Abdul Sattar constable P.W.4 escorted the dead body of the deceased to the mortuary and after post mortem examination he handed over to the Investigating Officer last worn clothes of the deceased shirt P-1 shalwar P-2 and bunian P-3 which the I.O. Took into his possession vide memo Exh.PC. He also transmitted the parcel of blood stained earth to the office of Chemical Examiner Lahore. P.W.5 Ahmad Yar MHC deposed about the safe custody of aforesaid parcel in the malkhana. Sikandar Hayat P.W.6 is the witness of recovery of gun P-4 vide memo Exh.PD from Sultan accused.
Muhammad P.W. 7, Nazir P.W.8 and Muhammad Bashir P.W.9 furnished the ocular account.
' Doctor Ehsan Elahi P.W.10 conducted post mortem examination on the dead body of Ahmad Khan deceased and found the following injuries on his person:-
(1) A firearm wound of entrance 1 cm x cm with contused and inverted edges on front and lower most part of left side of neck.
(2) A firearm wound of entrance 1 cm x cm with contused and inverted edges on left cheek 3 cm in front of left ear.
(3) A lacerated fire arm wound with irregular margins 2 Vi cm x 1 cm on tip and right nostril of nose with underlying cartilage torn away.
' In his opinion death had occurred due to shock and haemorrhage under the collective effect of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and were caused by fire arm. Injury No,l was jurh jaifah, injury No,2 was shujjah damihah and injury No,3 was shujjah munaqqilah. Exh.PH is the correct carbon copy of the post-mortem report whereas Exh.PH/1 and Exh.PH/2 are the sketches of the injuries whereas Exh.PI is the injury statement and Exh.PJ is the inquest report.
' The same doctor on the same day medically examined Muhammad Nazir son of Raja and found the following injuries on his person:-
(1) Two firearm wounds of entrance 2 mm x 2 mm each on front of right side of head with contused and inverted edges.
(2) A firearm wound of entrance 2 mm x 2 mm with contused and inverted edges on left side of head.
(3) A firearm wound of entrance 2 mm x 2 mm with contused and inverted edges on left eye brow.
(4) A firearm wound of entrance 2 mm x 2 mm with contused and inverted edges on right side of lower lip.
(5) A firearm wound of entrance 2 mm . x 2 mm with contused and inverted edges on front of lower part of left neck.
(6) Three fire arm wounds of entrance 2 mm x 2 mm each with contused and ' inverted edges on right shoulder.
(7) Four firearm wounds of entrance 2 mm x 2 mm each with contused and inverted edges on left shoulder front aspect.
(8) Three firearm wounds of entrances 2 mm x 2 mm each with contused and inverted edges on front and left side of chest.
(9) A firearm wound of entrance 2 mm x 2 mm with contused and inverted edges on front of right side of chest.
(10) Two firearm wounds of entrance 2 mm x 2 mm each with contused and inverted edges on back of left forearm.
(11) A firearm wound of entrance 2 mm x 2 mm with contused and inverted edges on outer side of left hand.
(12) Three firearm wounds of entrance 2 mm x 2 mm each with contused and inverted edges on back of left leg.
' Exh.PK is the correct carbon copy of MLR and Ex.PK/1 is the sketch of injuries, injury statement is Exh.PL, application of police Ex. PM and opinion about injuries Nos.l, 2, 3 and 4 is Exh.PM/1.
' Dr. Sarfraz Ahmad Gondal P.W. 11 medically examined Bashir Ahmad son of Jahana and found the following injuries on his person:-
(1) Firearm entry wound Vi x xh cm going in with lacerated and inverted margins. Corresponding hole was present on the qameez. The wound was on the right side of chest 9 cm below the clavicle and 2- 1/2 cm from the sternum. Cloths were blood stained. Wound was going in and was bleeding.
(2) A firearm grazing abrasion 3 cm x 3/4 cm just touching the skin was present on the right side of head 6 cm above from the right ear.
' Injury No,l was kept under observation. Exh.PN is the correct. Photostat copy of the MLR while Exh.PN/1 is the sketch of the injuries and Exh.PN/2 is an application. After report of the surgical specialist injury No, 1 was declared as jurh jaifah.
' Maula Bakhsh Awan S.-I./S.H.O. P.W. 12 conducted the investigation in the case. He recorded F.I.R.
Exh.PE on the statement of Muhammad Nazir complainant. He prepared the injury statements of Muhammad Nazir Exh.PL, of the dead body, of Ahmad Khan deceased Exh.PI and inquest report Exh.PJ and collected blood stained earth vide memo Exh.PA and also prepared site plan of the place of occurrence Exh.PO. He took into possession last worn clothes of the deceased vide memo Exh.PC, moved an application Exh.PP to the Medical Officer who gave his opinion Exh.PP/1. Noor Muhammad S.-I. P.W. 13 and Sher Bahadar Inspector P.W. 14 also conducted the investigation.
Muhammad Afzal P.W. 15 and Khadim Hussain Inspector P.W. 16 deposed about the warrant of arrest of Sultan accused. The learned DDA after tending in evidence reports of Chemical Examiner Exh.PU and that of Serologist Exh.PV closed the case for prosecution.
4. The accused were examined under section 342 Cr.P.C. Muhammad Mumtaz accused took the following plea:- ' "We had no enmity with the deceased. Nazir P.W. Is inimical towards us. He married his daughter with the deceased and to create rift instigated the deceased to take forcible possession of our lands. On the day of occurrence Muhammad Nazir P.W. Brought the deceased and large number of other armed persons, dug trenches and started firing towards us in order to take forcible possession of our lands. In the meanwhile the deceased, Bashir and Nazir P.Ws. Received injuries when they were the aggressors and were in the process of taking forcible possession of our lands. I am innocent."
' The other accused stated that they have been involved in the case due to enmity. Muhammad Mumtaz accused after tendering copy of memorandum of appeal Exh.D-1 and copy of statement and judgment Exh.D-2 closed the defence evidence.
5. Sultan accused was declared an absconder and was arrested by Sher Bahadur Inspector (P.W.
14) on 14-6-1998. At the time of his arrest he got recovered ,12 bore gun from his residential Dera.
According to Sher Bahadur at the time of his arrest Sultan accused in his initial defence stated that the complainant party were the aggressors. The following excerpts from the statement of said witness are relevant:- "After coming out of the jail, Muhammad Nazir compromised with Ahmad Khan deceased by giving his daughter in marriage to him and started a campaign of dispute about the possession of die land. The brotherhood tried to patch up the matter but the complainant party and the accused party arming themselves with firearms sat near the disputed land in respect of the above dispute.
Before me, it was the case of the defence that the complainant party was the aggressor and they fired with firearms and it was as a result of that firing that Ahmad Khan deceased, Nazir and Bashir P.Ws. Received Injuries. On this I questioned the complainant if they had resorted to firing and they admitted that they had fired during the present occurrence.
' As a result of my own investigation, I found that Nazir complainant after coming out from jail, after serving the sentence for the murder of brother of Ahmad Khan, compromised with Ahmad Khan and started creating trouble about the possession of the land and he along with Ahmad Khan deceased took 'forcible possession of the disputed land. The disputed land was one of which Nazir complainant along with Ahmad Khan had taken forcible possession. That as a result thereof there was firing between the parties in which Ahmad Khan deceased Nazir complainant and Bashir P.W.
Were injured."
' The following excerpts from the statement of Nazir son of Raja the complainant in this case are relevant:- ' "In the month of December, 1982 I was challaned for the murder of Aslam, brother of Ahmad Khan deceased. In that case I was sentenced to death. My death sentence was confirmed by the Hon'ble Lahore High Court but due to amnesty my death sentence was computed to life imprisonment. I served out that sentence and was released from jail during the month of February, 1997. Bhai Khan father of Mumtaz accused was the complainant in the case. It is correct that Dosa accused was a prosecution witness in thal case against me. After my release from jail I tried my level best to make a compromise with the accused party of the present case but my efforts remained futile. However I compromised with Ahmad Khan deceased of the present case and married my daughter Mst.
Bashiran with Ahmad Khan deceased.
' It is correct that Muhammad Khan father of Ahmad Khan deceased had three more brothers, namely Muhammad Zaman accused, Bhai Khan Father of Mumtaz accused and* Rajadah father of Sultan and Nawaz accused persons. Muhammad Khan father of the deceased along with his brother mentioned above started purchasing land jointly but I do not know I Muhammad Khan out of them was their head. I was a child when Muhammad Khan aforementioned died. I do not know if Muhammad Khan kept seven acres of land out of the ownership of his brother from out of the joint khata.
' Ahmad Khan deceased took forcible possession of the land where the occurrence took place more especially Sq. No,30 Killa Nos.l and 2 five/seven days before the present occurrence. It is incorrect to suggest that as I wanted to avenge from the accused my failure in my attempt to effect a compromise for the murder of Aslam aforementioned I instigated Ahmad Khan deceased who had been by then married to my daughter without trenches in the above disputed land more especially killa No,2 of Sq No,30 to attack the family of Muhammad Zaman. Bhai Khan and Rajadah for taking possession of more land.
' It is correct that Mumtaz Zaman and Dost Muhammad accused took up the plea that they had come' o effect compromise with Ahmad Khan deceased and had not taken part during this occurrence. It is correct that they produced large number, of persons before the police. It is correct that the police found Mumtaz, Zaman and Dost Muhammad as innocent and challaned them on my insistence.
' It is correct that Muhammad, Muhammad Bashir and Lai Khan P.W. Sons of Jahana are brothers of my wife Mst. Fatima. Muhammad Ali P.W; is son of Karam Ali. It is correct that my daughter has been betrothed to maternal grand son of said Karam Ali. It is correct that Muhammad Yar P.W. Is maternal uncle of Ahmad Khan deceased. Mst. Manzooran is my sister. She is wife of Framan a brother of Musa P.W., Ijaz P.W. Is son of Musa P.W. It is correct that Ahmad P.W. Son of Bati is nephew of my wife Mst. Fatima in the second degree".
' The following excerpts from the statement,of Muhammad Bashir (P.W.9) another injured eye- witness are also relevant:-- ' "Apart from the dispute over land between the accused and Ahmad Khan deceased there was another motive also for the accused to attack Ahmad Khan in that five years previously Ahmad Khan deceased and his brother Afzal had assaulted Mumtaz accused son of Bhai Khan and caused him injuries for which a case was registered against Ahmad Khan deceased and his brother Afzal at P.S. Bhera, regarding that occurrence.
' My sister is wife of Nazir complainant while his daughter is widow of the deceased. Mumtaz son of Bhai Khan and the other accused, namely Zaman were in possession of the land in which the occurrence took place for the last 30 years. It was about 10 days before the present occurrence that Ahmad Khan took forcible possession of the above place.
' Ahmad Khan had taken forcible possession of killa Nos.l and 2 of Sq No, 30.
' A day before the present occurrence Ahmad Khan had got a stay order against the accused persons. It is correct that the accused person namely Mumtaz was the defendant in that case and a date for his appearance had been fixed in the civil Court. It is incorrect to suggest that we took forcible possession of killas No,l and 2 of Sq No,30 on the day of occurrence to show the possession of Ahmad Khan on the next date of the civil suit for which Mumtaz son of Bhai Khan had been summoned by that Court.
' Before my statement I learnt that Nazir complainant had lodged the F.I.R. Against the 12 accused. I also learnt the weapons ascribed to them in the F.I.R. And the part played by them each of them during the occurrence. Accordingly, I made my statement before the police in terms of the contents of F.I.R. Which I had heard.
' The help tendered to the accused by the police during investigation was that the police showed the presence 'Of the trenches alleging that L Nazir Ahmad Khan deceased and many others were the aggressors and were present at the spot for taking forcible possession to succeed in the civil suit. It is incorrect to suggest that today I have falsely stated about this part of the police to undo the effect of the investigation that we were the aggressors.
' All the Police Officers in the above investigation found that we were the aggressors and we had gone to take forcible possession and were present duly armed with fire in the trenches above mentioned. "
' The following excerpts from the statement of Maula Bakhsh Awan. S.-I. (P.W.12) who partly investigated the case are also relevant;-- ' "I found the dead body of the deceased lying in killa No,3 of Sq. No,30. At a distance of two kanals from the dead body I found trenches having been dug by the complainant party. In this killa the wheat crop of Zaman son of Hayat accused was standing. The accused persons were stated to be present in killa No .4. I cannot say if killa No,4 also belonged to the accused party. This is however correct that persons were examined by me in support of the version of Ghulam Murtaza about the aggression of the complainant party. I had not yet come to any conclusion about the aggression of the innocence of the accused when I was transferred. It is correct that Nian had been fixed during my investigation about the truth of the version that the complainant party was the aggressor, i.e, about the innocence of the accused persons, namely, Dastagir, Usman, Nawaz and Mukhtar accused."
' Muhammad Mumtaz son of Bhai took the following plea whereas the other two appellants just pleaded their innocence ' "We had no enmity with the deceased. Nazir P.W. Is inimical towards us. He married his daughter with the deceased and to create rift instigated the deceased to take forcibly possession of our lands. On the day of occurrence Muhammad Nazir P.W. Brought the deceased and large number of other armed persons, dug trenches and started firing towards us in order to take forcibly possession of our lands, in the melee the deceased, Bashir and Nazir P.Ws. Received injuries when they were the aggressors and were in the process of taking forcible possession of out lands. I am innocent."
6. By referring to the following portion of the statement of Dr. Ehsan Elahi (P.W.10)
' "I started P.M. Examination on the dead body of Ahmad Khan deceased soon after it was brought to the hospital. Injuries Nos. 1 and 2 were gunshot wounds as pellets had been recovered from both the injuries. Possibility cannot be a ruled out that injuries Nos.l, 2 and 3 were the result of gum fire". ' the learned counsel for the appellants argued that as these were gunshot wounds and not rifle wounds and as only gun was recovered from Sultan, Mumtaz and Nazir were innocent and had been implicated because the complainant's side wanted to widen the net and wanted to array maximum number of persons from the other side to render the defence helpless.
' The next argument coming from the learned counsel for the appellants was that the land in fact belonged to the accused party and the complainant party wanted to take forcible possession of die same.
7. While we refer to the statements of the P.Ws. Excerpts from which have been reproduced above, it is clear that there was a dispute about the land which initially belonged to the accused side. The controversy is only to the effect that whether the accused side was dispossessed about ten days prior to the occurrence or whether the complainant's side had come on the day of occurrence to forcibly eject the appellants. The police in this respect has called the complainant party as the aggressors. About the police it has been stated that they had been suborned.
8. The complainant's side was holding a stay order in their favour and on die basis of the said it was said that they had a legal protection. The appraisement of the evidence shows that trenches had also been dug in the land by the complainant's side, may be they were protecting their possession against the accused. But Ahmad Khan the deceased does not appear to be a Masoom-u-Dam. He had taken forcible possession of the land belonging to the accused even if it was ten days before the occurrence.
9. According to the complainant's side if the complainant were the aggressors the accused side would have also suffered injuries which they had not. But when the P.Ws. Have admitted the fact that the dispute was with respect to possession and have also accepted the fact that previously possession of the land was with the accused side and this was agitating the accused side this case could not be called a cold blooded murder. Neither we can just dismiss the story advanced by the police entirely being the neutral party. We also find that the large number of persons were accused in this case besides the three appellants. Some were even declared innocent at the investigational stage. We also find that the recoveries of sotas were made while there were no sota injuries suffered by the deceased.
10. The argument coming from the learned counsel for the appellant that because the rifles were attributed to the appellants Mumtaz and Nazir the recoveries and the medical evidence established differently and they should get the benefit of doubt. But the fact of the matter is that in our villages people many a times mix up the names of the weapons a rifle is also called a gun and, therefore, mere nomenclature of a weapon as used by the complainant's side should not be of consequence unless, of course, people using these names were highly educated or experts.
11. After hearing the arguments and perusing the record we are of the view that the place of occurrence which was a field became the arena of a struggle inter se the parties on the factum of possession where passions, emotions prevailed over their sobriety and balance and resulted in the occurrence. Of course, the appellant's side using the fire-arm caused loss of life through the death of Ahmad Khan and injured the two P.Ws., namely, Muhammad Nazir son of Raja and Bashir Ahmad. But the complainant's side was not that innocent.
12. Whereas the floating facts of the case convince us about the involvement of all the appellants in this occurrence but under the circumstances in-which we feel the episode had taken place constrain us towards not confirming the capital sentence. We therefore, while upholding the order of conviction would like to reduce die sentence to imprisonment for life for all the three appellants while we uphold the order with respect to compensation under section 544-A of the Criminal Procedure Code and in lieu thereof the appellants would suffer simple imprisonment for six months. The appeal is accordingly disposed of and the Murder reference is answered in the negative.