' SYED HUSSAIN MAZHAR KALEEM, J.-The above titled appeals and the reference arise out of the judgment passed by Additional District Court of Criminal Jurisdiction, Hajira dated 23-4-2003, whereby Wazir Muhammad appellant was convicted and was awarded two times sentence of 'Qisas' on two counts while Zameer, Muhammad Azeem, Naziran Begum and Rawayat Jan the respondents in Appeal No,28 of 2003 were acquitted of the charges.
2. Brief facts leading to the background of the appeals and reference are that a case under sections 5/15, I.P.L. 307/341, 147, 148, 149, A.P.C. Was registered against the convict appellant and respondents (Appeal No,28 of 2003) at Police Station, Hajira on the complaint of Muktiar Ahmad. It was reported that Jamal Din filed suit for possession against Wazir Muhammad and Sakhi Muhammad in the Court of Tehsildar Hajira, which was decided in his favour. On 8-11-1992 Muhammad Rahim Khan, Girdawar and Muhammad Ayyub an employee of Revenue Department came to Rakkar and stayed for night with the complainant. Next day at 7-30 a.m. The complainant along with Muhammad Riaz son of Muhammad Siddique, Karamat Khan son of Jamal Din, Muhammad Sabir, Jamal Din sons of Lai Muhammad, Fazal Hussain, Akbar Hussain sons of Faqeer, Khushal Khan son of Fatha Muhammad, Abdul Majeed son of Gul Hussain, Sagheer son of Faiz Muhammad, Muhammad Ayyub attendant and Muhammad Rahim Girdawar of the Revenue Department came at the place of occurrence to dispossess them. Wazir Muhammad, Sakhi Muhammad, Zameer, Azeem, Naziran Begum and Rawayat Jan were present there. They raised Lalkara and Wazir Muhammad armed with . 12 bore gun fired two shots at Muhammad Riaz. The fires hit him at his chest and right back side. He fell down and succumbed to the injuries. The accused also fired at Karamat Khan who sustained injuries at the left side of his abdomen and back. It was alleged that the accused made continuous firing while the others abused and pelted stones. Muhammad Sabir suffered stones injuries at the hands of Sakhi Muhammad. The occurrence was stated to be witnessed by the complainant, Muhammad Rahim Khan, Girdawar Muhammad Ayyub, Karamat Khan, Muhammad Sabir, Jamal Din, Fazal, Hussain, Akbar Hussain, Khushal, Sagheer and Abdul Majeed.
3. Karamat Khan victim was taken to hospital where he was operated but could not survive and died on 4-1-1993. After completion of investigatipn the challan was submitted against the accused persons before Additional District - Court of Criminal Jurisdiction, Hajira. During proceedings under section 242, Cr.P.C. The accused persons pleaded not guilty and the prosecution was ordered to produce evidence in support , of its case. Twenty three witnesses were examined in support of the claim however, Muhammad Sagheer, Abdul Majeed, Muhammad Ayyub and Khushal Khan eye- witnesses were given up during trial. Sakhi Muhammad accused died before conclusion of the trial and in light of the evidence on record Wazir Muhammad was found guilty for the offence of murder of Muhammad Riaz and Karamat Khan. He was two times sentenced to 'Qisas' while the respondents in Appeal No,28 of 2003 were acquitted by the trial Court through the impugned judgment. Hence the above titled appeals and the reference.
4. Since the appeals and the reference arise out of same order of the trial Court, therefore, these shall be disposed off through this common judgment.
5. Learned counsel for the convict- appellant argued that an enmity was prevailing between the parties. Motive was a dispute over a piece of crown land which was in possession of the convict appellant and a case regarding the land was decided by Tehsildar Hajira in favour of Jamal Din on 8-11-1992. On the same day Muhammad Rahim Khan Girdawar and Muhammad Ayyub attendant of Revenue Department came to Rakkar and stayed with the complainant, where they hatched a conspiracy and before expiry of the time of limitation provided under law for filing appeal against the order of Tehsildar or giving any notice to the appellant to vacate the land came there at night and opened attack at the accused party. True account of the occurrence was suppressed by the prosecution, in fact the complainant party started firing and because of the dark night they could not target the convict and the fires hit the victims. He further argued that the eye-witnesses were closely related, inter se and were inimical towards the accused party. P.W. Muhammad Rahim Girdawar was bribed by them and with his connivance they tried to demolish grinding water mills and shop constructed by the convict appellant. Alleged recovery of weapon of offence was highly doubtful. No independent corroborative material in support of the ocular version was brought on record. The prosecution concocted a story to rope the appellant and his family in a false case. The witnesses being interested made false statements against the convict appellant and respondents.
The prosecution story being improbable was not worth consideration and there was no justification to convict the appellant, therefore, by accepting the appeal Wazir Muhammad convict may be acquitted of the charge and the appeal filed by the complainant to convict the acquitted respondents may also be dismissed.
6. On the other hand, it was argued that the occurrence took place during broad-daylight.
Identification of the assailants was not in doubt. The names of eye-witnesses, victims and the accused persons were given in the promptly lodged F.I.R. Motive, origin of fight and manner of occurrence were proved during trial. Time and place of occurrence were also proved. The presence of witnesses, victims and the accused persons was admitted and the role played by each of the accused in the occurrence was successfully established by the eye-witnesses. According to the learned counsel the accused party constructed house, shop and grinding water mills in the crown land. Jamal Din filed a suit before Tehsildar Hajira to dispossess them which was decided in his favour on 8-11-1992 and for execution of the order passed by the competent authority P.W.
Muhammad Rahim Girdawar, Muhammad Ayyub and others came at the place but the convict appellant refused to obey the order passed by the Court and fired at the complainant party which resulted into the death of Muhammad Riaz and Karamat Khan. He further argued that two crime empties of .12 bore gun were seized from the place of occurrence while the weapon of offence was also recovered from the shop of the appellant at his instance. According to'the learned counsel the allegation of raising Lalkara and instigating the principal accused by the acquitted respondents was also proved during trial, thus there was no justification to acquit them, therefore, they may be convicted under law and the appeal filed by the convict may also be dismissed.
7. Learned Additional Advocate- General supported the arguments advanced by the learned counsel for the complainant.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. From perusal of the prosecution evidence it appears that the presence of the eye-witnesses, deceased and the accused persons at the place of occurrence at relevant time was not disputed.
Motive and origin of fight were also established. It further appears that the place of occurrence was established as the blood-stained earth and crime empties were seized from there. .12 bore gun used for commission of the offence was recovered along with a crime empty in it at the instance of the. Convict appellants from his shop. Use of the weapon for commission of the offence was confirmed by post-mortem reports Exh.PT and Exh. PL. It was proved that on 9-11-1992 P.W.
Muhammad Rahim Girdawar, Muhammad Ayyub ah attendant of Revenue Department, prosecution witnesses and the victims came at the place to dispossess Wazir Muhammad and Sakhi Muhammad from the disputed land. The convict appellant and his family members were present there. As Muhammad Rahim, Muhammad Ayyub, Muhammad Riaz, - Karamat Khan Muhammad Sabir, Jamal Din, Fazal Hussain, Akbar Hussain, Khushal Khan, Abdul Majeed, Sagheer and the complainant reached at the place of occurrence, the convict opened fire which hit the victims. Muhammad Riaz succumbed to the injuries spontaneously while Karamat Khan died on 4- 1-1993.
10. A perusal of the impugned judgment shows that the above mentioned facts were relied upon by the trial Court while convicting the appellant. The role played by each of the accused person was carefully considered and it was observed by the Court that on night falling between 8/9-11-1992 Wazir Muhammad, Sakhi Muhammad and their family members slept in a room which was constructed in the disputed land. On 9-11-1992 at 7-30 a.m. Muhammad Rahim Girdawar and others came in to the disputed land. Wazir Muhammad fired at the victims and killed them. It was further observed that there was nothing on record to prove that the acquitted respondents participated in the ^ occurrence. No evidence regarding premeditation or hatching conspiracy was brought on record. Only an allegation of raising Lalkara was levelled against Muhammad Zameer, Muhammad Azeem, Naziran Begum and Rawayat Jan. No proof regarding any overt act towards the complainant party was brought on record against them and there was nothing to indicate that they shared intention with the principal accused or formed an unlawful assembly in furtherance of common object for commission of the offence.
11. According to the prosecution case Wazir Muhammad and Sakhi Muhammad constructed a shop and rooms for grinding water mills in a piece of crown land. Jamal Din filed a suit for possession in the Court of Tehsildar Hajira on 26-9-1992 against them which was decided in his favour on 8-11- 1992. On the same day P.W. Muhammad Rahim Girdawar and Muhammad Ayyub attendant of the Revenue Department came to the house of complainant party. They stayed there for the night. On 9-11-1992 which was a closed day both the employees of the Revenue Department along with' the complainant,- Muhammad Riaz, Karamat Khan, Muhammad Sabir, Jamal Din, Fazal Hussain, Akbar Hussain, Khushal, Abdul Majeed and Sagheer came at the place of occurrence at 7-30 a.m. Sakhi Muhammad, Wazir Muhammad and their families were present there. They raised Lalkara. Wazir Muhammad started firing which caused the death of Muhammad Riaz and Karamat Khan while Muhammad Sabir suffered injury on his head at the hands of Sakhi Muhammad.
12. A careful consideration of the above mentioned clearly indicates, that an enmity due to piece of land was prevailing between the parties. The disputed land was in possession of the convict appellant and Sakhi Muhammad. An order to dispossess them was passed by Tehsildar Hajira on 8-11-1992. It may be mentioned here that any order passed by a Tehsildar regarding crown land was appealable before the competent forum within 30 days. The proper procedure was that after expiry of the time of limitation provided under law illegal occupants should have been asked to vacate the land but surprisingly Muhammad Rahim Girdawar who was supposed to be a responsible person ignored it and he along with Muhammad Ayyub attendant came to the house of complainant party on the day the order was passed and stayed there for the night. Instead of adopting the proper legal procedure for execution of the order he joined the complainant party particularly when it was in his knowledge that they were inimical towards the convict appellant and Sakhi Muhammad,, This shows his interest in the complainant party.
13. It is interesting to, note that according to the prosecution case convict appellant and Sakhi Muhammad constructed a shop and rooms of grinding water mills in crown land. As per site plan Exh.PH and PI the disputed land comprising Survey No,371 was Shamlat Deh which was in possession of Wazir Muhammad and Sakhi Muhammad. The above mentioned fact was confirmed by P.W. Tariq Mahmood Patwari in his statement. It was also supported by copy of Khasra Girdawari appearing at page 42 of the trial Court's file which shows that Shamlat Deh bearing Khasra No,371 was possessed by the owners, out of which disputed land measuring one Kanal 13 Marlas was in possession of Sakhi Muhammad and Wazir Muhammad sons of Galabo. Thus it becomes clear that the land where a shop and grinding water mills were constructed by the convict appellant' and Sakhi Muhammad was in their possession at the time of occurrence.
14. The trial Court while passing the impugned judgment failed to appreciate that the convict appellant and Sakhi Muhammad were in possession of the disputed land which was Shamlat Deh.
No proper legal procedure was adopted to dispossess them.
' The presence of the victims and other members of the complainant party at the place of occurrence was not justified. A right of self-defence and defence of property was available to the convict, therefore, capital punishment was not warranted in the given circumstances.
15. In light of the facts listed above, the appeal filed by the convict appellant is partly accepted and the sentence of 'Qisas' awarded two times by the trial Court is altered to life imprisonment. Benefit of section 382-B Cr.P.C. Is also extended to the convict, resultantly the appeal filed by the State against the acquitted respondents is dismissed.
16. The reference is not accepted and is answered accordingly.