' HASNAT AHMAD KHAN, J.---Khalid Pervaiz and 5 others, respondents herein, were tried by a learned Additional Sessions Judge, Gujranwala, in a private complaint filed by the appellant-complainant for offences under sections 302/307/148/149, P.P.C. After the conclusion of the trial, the said learned Additional Sessions Judge acquitting the respondents of the charge of murdering Haroon Shafique (brother of the complainant) and causing injury to Abid Munir (associate of the complainant).
Consequently; the respondents were acquitted of the charge of murder and attempting to commit murder.
2. Aggrieved by the judgment of the learned trial Court, the complainant filed the present appeal against acquittal of the respondents.
3. Briefly put, the facts of the case as narrated in the private complaint (Ex.PA/1) are that the complainant had been cultivating 11 1/2 acres of agriculture land as tenant, which is situated in Mauza Qadian, belonging to Muhammad Tufail, who had given his power of attorney to Muhammad Rafi, many years ago; due to load of work, the complainant joined his uncle namely Muhammad Bashir for the cultivation of the said-land, about five years before the occurrence; about two and a half years before the occurrence, Inayat Bibi-respondent proclaimed in the village that she had obtained the power of attorney of the said land in her name and she herself would be cultivating the same; when the complainant came to know about this gossip, he contacted her and restrained her from cultivating the said land till the time, the complainant and Muhammad Rafi-attorney arrived at a compromise in this regard; on the fateful day, i,e, 6-9-1989 at about Asar time, the complainant along with his brother Haroon Shafique alias Kala (deceased) reached the land on their tractor for sowing seed; in the meanwhile, Abid Munir (injured PW), Muhammad Ashraf and Muhammad Aslam, residents of the village, brought seed; at about 4-30 p.m., Haroon Shafique (deceased) was driving tractor in the field, whereas Abid Munir (injured P. W) was following him with seed; in the meanwhile, Mst. Inayat Bibi armed with carbine, Bashir armed with gun, Khalid Pervaiz armed with rifle, Sahib Din, Muhammad Sarwar and Liaqat Ali, all armed with guns, also reached there; Mst. Inayat Bibi bawled out that they would not let the complainant party cultivate the land at any rate; simultaneously, Khalidrespondent fired a shot with his rifle, which hit right side of Haroon Shafique's nose, who fell down from the tractor; thereafter, Mst. Inayat Bibi-respondent fired with her carbine, the pellets of which hit Abid Munir's backside of right shoulder; Liaqat Ali- respondent fired with his gun the pellets of which also hit the same part of Abid Munir's body; Muhammad Sarwar fired with his gun, the pellets of which hit backside of Abid Munir's left thigh; Sahib Din-respodnent fired with his gun, the pellets of which also hit the same part of Abid Munir's body; when the complainant and his companions after raising alarm, went forward, Bashir- respondent fired with his gun at them, but they laid on the ground and remained unscathed; Bashir-respondent also fired at the complainant and his companion for the purpose of killing them; Mst. Inayat Bibi and her accomplices making firing ran towards their out-houses; Haroon Shafique bled to death at the spot. The complainant further went on to say that all the accused in consultation with each other, to achieve their common object, while armed with deadly weapons, committed murder of Haroon Shafique and injured Abid Munir and the prosecution's case, besides his version, is supported by the statements of injured P.W. Abid Munir, eye-witnesses Muhammad Ashraf, Muhammad Aslam, etc. As well as medical evidence.
3(sic). During the investigation of the case all the respondents/acquitted accused were declared innocent by the police. Feeling dissatisfied with the opinion of the police, the complainant of the case, instituted the complaint against all the accused nominated in the F.I.R., who were summoned and tried in the complaint case.
4. During the trial the complainant produced as many as nine witnesses out of whom Haroon Aqeel-complainant appeared as P.W.1 and proved the contents of the complaint. Abid Munir (injured P.W.) appeared as P.W.2 and corroborated the version of the complainant. Dr. Muhammad Ramzan Pervaiz, who had conducted the autopsy on the dead-body of Haroon Shafique, came forward as P.W.9 and furnished the detail of injuries, observed by him as under:--
1. A wound of inlet 1.5 c.m. x 1. c.m x going deep with slightly burnt inverted margins on right side of face just close to the right side of nose at middle.
' In his opinion the death had occurred due to shock and intraphorapic haemorrhages as a result of injury No,1, which was sufficient to cause death in ordinary course of nature.
' Arif Hussain Ayaz, Draftsman, who had prepared the site-plan (Exh.CW1/1A) came forward as C.W.1 Muhammad Salim Sabir, Inspector, retired S.-I., who had partly investigated the case appeared in the witness box as C.W.2 Muhammad Latif, Sub-Inspector, who had initially conducted the investigation appeared as C.W.3 and provided the detail of all the events of his investigation.
Manzoor Ahmed, S.P. Who had also investigated the case appeared as C W.4 and Muhammad Saleem; Inspector appeared as C.W.5.
' Rest of the witnesses being immaterial witnesses need not be mentioned here. Muhammad Ashraf and Muhammad Aslam, P.Ws were given up as unnecessary by the complainant.
5. At the fag-end of the trial, the statements of all the accused, were recorded under section 342, Cr.P.C. In answer to the question that why this case against him and why the P.Ws deposed against him, Khalid Pervaiz-respondent replied as under:-- "The disputed land was in our possession. The complainant party came on the spot with armed for taking the possession and started firing. As a result of which Haroon Shafique expired and Abid Munir inflicted self suffered injury to strengthen the prosecution case. The P.Ws are nearer to the complainant. They have falsely deposed against me."
' In reply to similar question, Muhammad Sarwar-respondent stated as under:-- "The complainant party reached on the spot when they were armed and they started firing in the result of which Haroon Shafique was expired and Abid Munir was not present at the spot. Later on he made self suffered injury upon him in order to strengthen the case. The P.Ws are nearer to complainant. They have falsely deposed against us."
' While replying to similar question, Sahib Din-respondent stated as under:-- "I was not present at the time of occurrence. During investigation the Additional S.P. Had also so declared. Due to relationship with other co-accused I was falsely involved in this case. The injury upon Abid Munir is self suffered one which was made in order to strengthen the prosecution case.
The P.Ws are nearer to complainant. They have falsely deposed against me."
' Bashir Ahmad-respondent, in answer to similar question made the following statement:- "The disputed land was in the possession of my other co-accused on lease. The complainant party wanted to eject him forcibly and on the day of occurrence complainant party reached at the spot, with armed position and started firing. As a result of which Haroon Shafique expired at the spots.
Abid Munir inflicted self suffered injuries to strengthen the prosecution case. The P.Ws are nearer to the complainant. They have falsely deposed against me."
' Liaqat Ali-respondent while replying to the similar question stated as under:-- "The complainant party came on the spot with arm position and started firing for taken forcible possession. In the result of that firing Haroon Shafique was expired on the spot. Abid Munir P.W. Was not present on the spot. The injury upon Abid Munir is self-suffered one which was made in order to strengthen the false case. The P.Ws are nearer to complainant. They have falsely deposed against me."
' While answering the similar question, Mst. Inayat Bibirespondent made the following statement:-- "As the disputed land was in my possession which taken by me on lease. The same land was previously in the possession of the deceased as tenant. He wanted to take possession forcibly on the day of occurrence. He along with his companion reached on the spot in armed position and he and his companion started firing. In the result of said firing Haroon shafique was expired. Abid Munir P.W. Was not present on the spot and the injury upon him is self-suffered one which was made in order to strengthen the false case. The P.Ws are near to complainant. They have falsely deposed against me. The complainant have also falsely involved in this case my husband and my sons."
' The accused/respondents, did not opt to appear as their own witnesses under section 340(2), Cr.P.C., however, they produced documentary evidence in support of the defence plea.
6. After going through the record and hearing the arguments of the parties the learned trial Court was not impressed by the prosecution version, and while disbelieving the complainant's evidence it proceeded to acquit all the appellants as mentioned above. Hence this appeal.
7. In support of this appeal learned counsel for the appellant has contended that Khalid- respondent has been attributed fire-arm injury to the deceased and the same is corroborated by the medical evidence; that apart from the complainant, Abid Munir, injured P.W., fully supported the- version of the complainant; that the plea taken by the defence is inconsistent inasmuch as or the one hand the occurrence has been denied by the defence, and on the other the case of the defence is that the respondents acted in their self-defence; that the defence plea is negated by the attending circumstances inasmuch as none of the accused suffered even a scratch during the occurrence; that the defence miserably failed to prove that the accused acted in their self- defence and that even if the defence plea of the accused is accepted, even then the accused are not entitled to acquittal inasmuch as they exceeded their right of self-defence.
8. Conversely, learned counsel appearing on behalf of the respondents has defended the impugned judgment by submitting that there is contradiction between the medical evidence and ocular evidence inasmuch as according to the prosecution the deceased was fired from a distance of 17/18 karams whereas medical evidence reveals that injured P.W. And the deceased was shot at from a very close distance; that no crime empty was recovered from the place of occurrence, therefore, the recovery of rifle is useless; that the defence plea finds supports from the statement of C.W.4 according to whom before launching the assault, the complainant made announcement on the loudspeaker of the mosque of the village in this regard; that the revenue record clearly indicates that on the day and time of occurrence the accused party was in possession of the land in dispute, therefore, the prosecution version is against record; that the site- plan was prepared after 8 months of the occurrence and the presence of the accused was not shown therein; that though according to the prosecution version Abid Munir received fire-arm injury during the occurrence, but he was not rushed to the hospital after the occurrence, rather admittedly he remained present at the place of occurrence till the arrival of the Investigating Officer and that the attending circumstances of the case support the plea of self-defence raised by the accused,
9. Learned Deputy Prosecutor General, while adopting the arguments of the learned counsel for the respondents, has defended the impugned judgment.
10. We have gone through the entire evidence, oral as well as documentary, with the able assistance of the respective learned counsel for both the parties. Having done so we have straightaway observed that during the investigation the prosecution version was not found to be a truthful one, consequently, Liaqat Ali, Bashir Ahmad, Sahib Din, Muhammad Sarwar and Mst. Inayat Bibi, were found innocent, and resultantly they were discharged by the concerned Magistrate.
Having no other option, the appellants filed a complaint on the basis of which the respondents were tried but ultimately acquitted of the charges. We have noticed that the fatal injury received by Haroon Shafiq was attributed to Khalid, respondent, whereas the injuries suffered by Abid Munir (P.W.2) were attributed to Mst. Inayat Bibi, Liaqat Ali, Muhammad Sarwar and Sahib Din, the respondents, but the medical evidence qua the allegation of causing injuries to Abid Munir, injured P.W, by the aforesaid appellants is outrightly contradicted by the prosecution version, inasmuch as according to Dr. Muhammad Ramzan (P.W.9), Abid Munir (P.W.2) had received two injuries on his person but the said two injuries were attributed to as many as four respondents. The medical evidence has contradicted the ocular version on another account as well, i,e, according to Dr. Muhammad Ramzan, both the injuries suffered by Abid Munir had blackening and burning around the same. Similarly, the injury suffered by the deceased, according to the medical evidence, had burning. It would be pertinent to point out here that it is not the case of the prosecution that both of them were shot at from a close range, rather it is vice versa. In the said backdrop the finding of acquittal returned in favour of the said respondents cannot be converted into that of conviction.
11. Insofar as Khalid, respondent, is concerned, admittedly the sole and fatal injury suffered by Haroon Shafiq stands attributed to said Khalid. It is true that it is a broad daylight occurrence. It is also true that during the occurrence Abid Munir, injured P.W., also received injuries, but we find that it is a case of two versions, one advanced by the prosecution and the other put' forth by the defence. According to the prosecution, due to a dispute over a piece of land, the respondents had launched an attack on the complainant party. At that time, according to the prosecution, Haroon Shafiq was ploughing the disputed land. Whereas, according to the defence it was the accused party which was in possession of the disputed land and the complainant party were the ones who had launched an attack to take forcible possession of the said property. In the presence of the said divergent pleas the case has to be decided after putting both the versions in juxtaposition.
12. Since primarily it is the prosecution's duty to prove its case beyond any shadow of doubt, therefore, we have decided to go through the prosecution evidence first. According to the prosecution version the land in question was neither owned by the complainant party nor was it owned by the accused rather it was owned by one Muhammad Tufail, who was living abroad since long. According to the contents of the F.I.R. As well as those of the complaint filed by the appellant he was cultivating the said land and used to give a share of produce to the general attorney of Muhammad Tufail i,e, the owner of the land. The complainant claimed that 3/4 months prior to the occurrence Mst. Inayat Bibi started to claim that she had obtained the power of attorney from aforesaid Muhammad Rafi on which the complainant party sent a message to said Mst. Inayat Bibi, respondent, to desist from taking the possession of the land till the matter was resolved with Muhammad Rafi. The prosecution story itself suggests that the complainant party was neither cultivating the said land nor was the same in their exclusive possession, rather there was a dispute over the possession of the said land. During the cross-examination of Abid Munir P.W.2 it was suggested by the defence that in fact it was the complainant party who had initiated an attack and Khalid respondent had defended himself as well as his property. The relevant portion-of the cross-examination of the said P.W. (Page 29 of paper book) is reproduced as under:- "It is further incorrect that Khalid took the stand that he was working in the fields at the time of occurrence and the deceased along with his other companions who are not the eye-witnesses of the case same duly armed and with a tractor started damaging and plouging his sown crop. It is further incorrect that when stopped, the deceased and his party launched murderous assault and the deceased received fatal shot at the hands of his companions. It is further incorrect that the deceased and his party was aggressor who initiated the attack, and he defended himself and his property."
' It is true that while making his statement under section 342, Cr.P.C., Khalid, respondent, did not take specific plea of acting in self-defence, but indirectly he took a plea of self-defence by claiming that the disputed land was in their possession and it was the complainant party who had reached the spot after arming themselves. He further claimed that due to the fire opened by the complainant party Haroon Shafiq receive injuries and expired, but Mst. Inayat Bibi, respondent, while making her statement under section 342, Cr.P.C., stated as under:-- "As the disputed land was in my possession which taken by me on lease. The same land was previously in the possession of the deceased as tenant. He wanted to take possession forcibly on the day of occurrence. He along with his companion reached on the spot in armed position and he and his companion started firing. In the result of said firing Haroon Shafique was expired. Abid Munir P.Ws. Was not present on the spot and the injury upon him is self-suffered one which was made in order to strengthen the false case. The P.Ws are near to complainant. They have falsely deposed against me: The complainant have also falsely involved in this case my husband and my sons."
13. After placing both the versions in a juxtaposition we find that the plea of self-defence through suggestions, whereby Khalid, respondent, claimed that he had acted in self-defence of person and property, gets support from the attending circumstances and the documentary evidence produced by the respondents, inasmuch as according to Ex.DO, daily diary report of Revenue Department, in a suit titled Muhammad Tufail v. Haroon Aqeel, a decree was passed by the Assistant Commissioner/Collector in favour of Muhammad Tufail on 17-6-1989, i,e, three months before the occurrence. The said decree was executed by the Revenue Department on 16-6-1989, and after depositing the consideration of standing crop by Mst. Inayat Bibi, one of the respondent herein, the vacant possession of the said land was handed over to her. The said fact is duly reflected from Ex.DO/1 which further reveals that during the execution proceedings no untoward incident took place. The appellant claims that he got the stay order against the said decree from the appellate Court, but the fact remains that the said order, if any, was obtained after execution of the decree and handing over of the possession to Mst. Inayat Bibi, respondent, a fact which shows that on the date of occurrence it was the respondent- party who were in possession of the land and it appears that in the garb of the aforesaid stay order obtained by the appellant party after execution of decree it was the complainant party who had initiated an attack to take the possession of the land in question. In view of the said attack the respondent had every right to defend himself as well as his property. It appears that the appellant's party had reached the disputed land along with a tractor for tilling the said land but they were duly resisted by Khalid- respondent, who acted in self-defence of his person as well as 'the disputed land. It is true that the said respondent during the trial neither took the said plea specifically while making his statement .Under section 342, Cr.P.C. Nor did he produce any defence witness but the fact remains that certain documents supporting the plea of self-defence were indeed produced in the defence. We would like to observe here that under Article 121 of the Qanun-e-Shahadat Order burden of proving that the case of accused comes within the general exceptions given in P.P.C. Falls on the accused but the facts remains that the prosecution is not relieved from proving its case as set up in the F.I.R.
Or the complaint, as the case may be. In a renowned judgment of Safdar Ali v. The Crown PLD 1953 F.C. 93 while interpreting section 105 of the Evidence Act which has been replaced by Article 121 of Qanun-e-Shahadat Order, it was held at page 96 of the said judgment by the Honourable Federal Court as under:-- "In a criminal case it is the duty of the High Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt.
' In my opinion, section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defence that might be taken on behalf of the accused, and to prove that none of those defences would be of any assistance to him. The principles laid down in Woolmington's case are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act."
' While concurring with his lordship, Abdul Rashid, C.J, his lordship Shahabuddin, J., in the same case held as under:-- "It is the main principle of criminal law that an accused person must be presumed to be innocent unless and until it is established by the prosecution beyond reasonable doubt that he or she, as the case may be, is guilty. Section 105 of the Evidence Act has to be read not as contradicting this principle but consistently with it. That provision of law was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or 'special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt."
' The said principle was reiterated in case of Shamir alias Shamla v. The State PLD 1958 SC (Pak.)242 by relying upon the said judgment.
14. Insofar as the proposition that during the trial the defence failed to set up a definite case is concerned, we find that defence version consists of plea of self-defence that was raised by Khalid- respondent, who claimed that at the time of occurrence he alone was present at the disputed land and in order to defend himself as well as his property he had shot at the assailants. At the cost of repetition it is observed here that the said suggestion was duly put during the cross-examination of Abid Munir, injured P.W.2. The said plea read with the documents produced by the defence appears to be more plausible and reasonable than that of prosecution version. Here we would like to refer the judgment passed in the case of Miran Bux v. Niaz and others 1975 SCM R 337, wherein it was held as under:-- "Apart from this, it was not necessary for the accused persons to set up any definite defence case.
It was sufficient &they could manage to cast a doubt on the prosecution case and in the facts and circumstances of the present case such a doubt had certainly been cast."
15. We are conscious of the fact that it is a case wherein no one was injured on the accused side but after establishing that Khalid-respondent had reached in his self-defence the plea of self- defence cannot be rejected on the said score alone. In this regard we are placing reliance on the case of Aludo alias Ali Bux v. The State 1976 PCr.LJ 329 wherein it was held that receiving of an injury by the accused is not necessary before apprehending imminent danger to his life. A similar view was expressed by the Honourable Supreme Court of Pakistan in the case of Ahmad Nawaz v. The State 1970 SCM R 597 wherein it was held on Page 600 as under:-- "When one party makes a deliberate attack on the other in a concerted action and the other is defending itself, it would be difficult then for the latter to chose between their assailants for the degree of harm that may be caused to each one of them separately, to ward off the individual harm that each one of the other party was intending or was capable of causing."
' In the said judgment it was further held that fire of the shot at the deceased, even if it was done from behind him, would not impair the plea of the right of self-defence.
16. Considering the facts of the case in the backdrop of the case-law cited above, we have reached an inescapable conclusion that at the time and place of occurrence barring respondent Khalid Pervez, none of the respondents was present at the time of occurrence and the said Khalid resorted to firing in defence of his person as well as that of the disputed property, and we further conclude that while exercising his right of self-defence he did not exceed the same. Even otherwise, it is an established principle of law that right of self-defence if accrued cannot be weighed in golden scales. In this case only one injury was caused by Khalidrespondent to the deceased, besides giving some pellet injures to Abid Munir, injured P.W., who had not even bothered to get himself medically examined immediately after the occurrence. Admittedly the onus to prove the prosecution story always lies on the prosecution and it never shifts. Even if there is any remotest possibility of truthfulness of defence plea, the benefit of doubt has to go to the accused.
17. At this stage we would like to add that it is a cardinal and celebrated principle of criminal jurisprudence that the presumption of innocence is attached to every accused. Ordinarily an order of acquittal doubles the initial presumption of innocence of an accused which would be stronger in case of verdict of acquittal recorded by a Court of record. The appellate Court would not interfere in the judgment of acquittal until and unless it is conclusively shown/established that the judgment of the E acquittal was based upon artificial, perverse and fanciful reasoning. Reliance in this regard can be placed on the cases of Haji Paio Khan v. Sher Biaz and others 2009 SCM R 803 and Muhammad Aslam v. Sabir Hussain and others 2009 SCM R 985. Moreover we have gone through the impugned judgment and the same has neither been found to be arbitrary nor capricious or fanciful, especially when the patchy and contradictory ocular evidence has failed to get corroboration from any other independent source.
18. In view of the above we find that the learned trial Court did not commit any illegality, though the findings were returned by the learned trial Court on somewhat different grounds, while acquitting all the respondents. Learned counsel for the appellant has failed to point out that the impugned judgment is based upon artificial, perverse or fanciful reasoning. Therefore, we are not inclined to interfere in the impugned judgment after a period of almost 'a decade. Consequently, the appeal in hand having been found meritless is dismissed.