Rana Zahid Mahmood, J.--Ghulam Jilani, appellant, has been convicted under Section 302(b) PPC and sentenced to death for murder of Sher Ahmad, brother of the complainant with .12 bore gun on 8.5.2003 at about 8.30 a.m. on the question of possession of land in dispute and instant case vide FIR No, 131/2003 initially under Sections 324, 148 and 149 PPC was registered against the appellant and eight others which was then converted into Section 302 PPC on the death of the injured/deceased while formal FIR was recorded at 9.30 a.m. vide Rapt No, 6 on the written complaint recorded by Abdul Majid, ASI, available on record as Exh.PA while formal FIR is Exh.PA/1.
The appellant and others were proceeded against through submission of challan to the trial Court by police and after due trial the learned trial Judge acquitted eight co-accused by giving them benefit of doubt, however, convicted and sentenced the appellant, as stated above vide impugned judgment dated 3.6.2004 and the appellant was also ordered to pay compensation of Rs, one lac to the legal heirs of the deceased. Murder Reference in terms of Section 374 Cr.P.C. is also sent by the learned trial Court for confirmation of death sentence by this Court. The appeal and murder reference are, therefore, being disposed of together through instant Judgment.
2. Learned counsel for the appellant has submitted that from bare reading of the FIR it transpires that prosecution itself admitted that it also resorted to firing on the appellant and others during the occurrence, however, learned counsel submitted that fact remains that the complainant party was aggressor as the land in dispute is undoubtedly in possession of the appellant and this fact is also admitted by Helga Patwari, who prepared the scaled site-plan of the place of occurrence. Further submitted that the Investigating Officer who appeared as PW.12 also stated likewise that the complainant side was aggressor and the appellant was in possession of the land in dispute for the last about.35-years and submitted that all these facts are admitted by said PW in his testimony.
The learned counsel therefore submitted that in fact the complainant party was aggressor in whose favour although a decree had been passed for possession of the disputed land, however, instead of resorting to execution proceedings for taking possession in accordance with law, the complainant party wanted to take the possession of land in dispute in possession of the appellant forcibly and then came at the scene of occurrence armed with deadly weapons and started sloughing the land and when the appellant requested them not to plough the land by taking forcible possession, they fired at the appellant causing him injuries on his hand and foot. The learned counsel referred to the statement of the appellant in this regard recorded under Section 342 Cr.P.C. and submitted that it is then that the appellant only fired once which due to bad luck hit Sher Ahmed deceased on his left eyebrow resulting into his death subsequently. Submitted that the complainant side was proceeded against under Section 324 PPC but the trial Court acquitted the complainant side against which Criminal Appeal No, 1004/2004 has also been filed which is to be disposed of along with this criminal appeal and the murder reference. The learned counsel submitted that since there was cross-firing between the parties and it is also established that appellant was not an aggressor rather was assaulted with fire-arms by the complainant party, as is evident from the prosecution evidence itself, therefore, it was a case of self-defence and the conviction and sentence of the appellant under Section 302(b) PPC is illegal, erroneous and unjustified.
3. The learned counsel submitted that the medico-legal report of the deceased then injured available on record as Exh.PE and Exh.PE/1 in the testimony of Dr. Sarwar Mahmood (PW.8), goes to show that it was a single pellet injury on the right side of left eyebrow and a lacerated wound 34 cm x i4 cm and submitted that the absence of any other injury on the deceased thus goes to show that one single pellet unfortunately hit the deceased thus it was not a target or intentional killing, therefore, appellant could not be convicted and sentenced to death under Section 302(b) PPC. He also referred to the testimony of Dr. Khizar Hayat (PW.10), who conducted postmortem examination on the deadbody of the deceased in this respect. The learned counsel also submitted that similarly on the same day at about 10.30 a.m. the appellant was also examined by Dr. Sermad Mehmood (PW.8) with regard to his fire-arm injuries on left hand and right foot and medico-legal report of the appellant is Exh.DD and Exh.DD/1. Submitted that the appellant was produced for medical examination by the police. He, therefore submitted that appeal may be accepted and appellant acquitted or at least the conviction and sentence may be converted into that of Section 302(c) PPC to imprisonment already undergone by the appellant who is in jail since 8.5.2003 and is an aged person of about 80-years as he was 75-years of age on 28.4.2004 when his statement under Section 342 Cr.P.C. was recorded by the learned trial Court.
4. Learned Deputy Prosecutor General has supported the prosecution case, opposed the contentions and submitted that the firearm injury since on the person of the deceased is on the left eyebrow which damaged the brain, as has been observed by Dr. Khizar Hayat (PW.10) vide postmortem report available on record as Exh.PG and Exh.PG/1, therefore, submitted that in any case the appellant was rightly convicted under Section 302(b) PPC who has caused the death of an innocent person on the dispute of possession of land. Submitted that it is in evidence that the appellant started from his house with gun, which manifested his intention to commit the offence, therefore, submitted that no exception can be taken to the impugned judgment of conviction.
5. We have heard the learned counsel for the appellant and the learned Deputy Prosecutor General for the State.
6. Maqbool Ahmad complainant (PW.1), while making statement to Abdul Majid, ASI (PW.11) recorded on 8.5.2003 at about 9.15 a.m. at Civil Hospital Kallur Kot after about 45 minutes of the occurrence (as occurrence had taken place at 8.30 a.m.), had categorically stated that the complainant party had also resorted to firing on the appellant and others during the occurrence while it is also an admitted fact on record that the dispute between the parties which resulted into the death of the deceased was with regard to the possession over strip of land while the complainant side alleged that the appellant and others had come there prepared with fire-arms for ploughing the land through tractor and the same was resisted whereas conversely the appellant in his statement under Section 342 Cr.P.C. also took' up the stance that in fact the complainant side was aggressor who had come on the scene of occurrence armed with fire-arms and started ploughing the land in dispute in physical possession of the appellant and then also injured the appellant with fire-arm on his left arm and right foot hereafter the appellant fired only once and Sher Ahmad deceased was injured and later on died. The stance taken by the appellant gets corroboration from the testimony of PW.9 Draftsman/Patwari that the disputed site was in possession of the appellant while the Investigating Officer who appeared as PW.12 also stated in the cross-examination that during the investigation he came to the conclusion that the complainant side was aggressor and the appellant was in possession of the disputed land for the last about 35-years whereas the litigation between the parties with regard to land in dispute had resulted into success in favour of the complainant and thus the complainant party instead of taking the possession of the land in due course of law wanted to take the forcible possession thereof which was resisted by the appellant who was then injured, as is evident from Exh.DD and Exh.DD/1, who was produced before Dr. Sarmad Mehmood (PW.8) through police and after about 45 minutes of the production of injured/deceased.
7. There is only one fire-arm injury on the left eyebrow of the deceased and from the size of the injury/wound which is 1/2 cm x 1/2 cm. it is evident that it was a single pellet injury as appellant was armed with .12 bore gun and had fired in his self-defence after sustaining firearms injuries at the hands of the complainant side and in defence of his possession over the land in dispute, therefore, we are of the view that the conviction of the appellant by the learned trial Court under Section 302(b) PPC is not a correct approach. Therefore, while dismissing this appeal, we convert the conviction from 302(b) PPC to 302(c) PPC and as the appellant is an aged person of about 80- years, though this was objected to by the complainant side at the time of recording of the statement of the appellant under Section 342 Cr.P.C. we feel that in any case the appellant is an aged person, and is under arrest since the day of occurrence i,e, 8.5.2003 when he was got medically examined by the police by Dr. Sarmad Mehmood (PW.8) as well, therefore, the sentence already undergone by him in the circumstances of the case would serve the ends of justice. Order accordingly. Murder Reference sent by the learned trial Court is answered in the NEGATIVE. Similarly appeal filed by the complainant/appellant against the acquittal of accused/ respondents is dismissed being without merit and for want of prosecution as well.