' SYED SHAHEEN MASUD RIZVI, J.---Shaukat Ali son of Said Ali, Asghar Ali son of Said Ali, Nazir Ahmad son of Allah Ditta, Muhammad Arshad son of Said Ali, Muhammad Hanif son of Sardar Muhammad and Muhammad Latif son of Bashir Ahmad along with Muhammad Shafi were tried through private complaint in Sessions. Case No, 2 of 2002 (Sessions Trial. No, 4 of 2000) titled "Allah Ditta v. Shaukat Ali and others" with regard to F.I.R. No, 129 of 1998, registered at Police Station Channi Goth under sections 302/324/148/149 P.P.C. At the culmination of trial, Mr. Shahid Rafique Sheikh, learned Addy.
Sessions Judge, Bahawalpur vide his judgment dated 14-7-2001; while acquitting Muhammad Arshad, Muhammad Hanif, Muhammad Shafi and Muhammad Latif of the charges by giving them benefit of doubt and sentenced the rest of the accused as under:-- ' Shaukat Ali son of Said Ali ' He was convicted under section 302(b), P.P.C, and was sentenced to Death with compensation of Rs,1,00,000 to be paid to the legal heirs of deceased and in default to pay thereof, he was to further undergo six months'. R.I.
'Asghar Ali son of Said Ali and Nazir Ahmad son of Allah Ditta.
'They were convicted under section 324, P.P.C. And were sentenced to 10 years' imprisonment with fine of Rs,50,000 each and in default to pay thereof, they were to further undergo six months'. R.I.
2. Shaukat Ali, Asghar Ali and Nazir Ahmad, convicts have challenged their sentences through the instant criminal appeal whereas Allah Ditta, complainant has filed PSLA against acquittal of the accused Asghar and Nazir under section 302(b) P.P.C. Learned Addl.
' Sessions Judge Bahawalpur has also submitted Murder Reference No, 43 of 2001 for confirmation of death sentence of Shaukat Ali, convict appellant. All these matters are being decided through this single judgment.
3. Facts of the case in brevity are that complainant on 4-7-1998, at about 1-00 p.m. Along with his brother Alamgir (deceased) were going to the house of Gabol for condolence on the death of their near relative, while their uncle Naik Muhammad and Ghulam Sarwar P. Ws. Were accompanying them. They were passing through the land of accused Nazir Ahmad at Killa No, 16 near a Khal, all of a sudden, accused Shaukat Ali, Asghar Ali, Muhammad Arshad, Nazir. Ahmad, Muhammad Hanif, Muhammad Shafi, Muhammad Latif and Muhammad Ramzan, who had hidden themselves behind the bushes while armed with hatchets and sticks attacked upon the complainant party. Shaukat Ali and Nazir Ahmad armed with .12 bore gun, Asghar Ali and Muhammad Hanif were armed with Carbines. Muhammad Ramzan was armed with hatchet whereas Muhammad Shafi, Muhammad Arshad and Muhammad Latif were armed with Sottas. All the accused raised Lalkara that Naik Muhammad and Alamgir would not pass alive. Shaukat Ali, made fire shot which hit the chest of Alamgir (deceased), Nazir Ahmad fired towards Naik Muhammad who narrowly escaped whereas accused made 2/3 more shots. Complainant Ghulam Sarwar and Naik Muhammad hide themselves in a Khal and raised hue and cry. After hearing their alarm, Liaqat Ali Piran Ditta and some other persons gathered there. The accused fled away from the place of occurrence along with their respective weapons of offence.
4. The complainant lodged F.I.R. After two hours but the police after investigation challaned only Shaukat Ali and Asghar Ali and rest of the accused were declared innocent and no challan against them was submitted, aggrieved from the police investigation, the complainant Allah Ditta filed private complaint in which the above mentioned sentences were passed on appellants.
5. Arguments have been heard and record perused.
6. The 'accused persons were charge sheeted on 15-11-2000, and they denied the allegations and pleaded not guilty, whereafter, the prosecution evidence was summoned. The prosecution has produced as many as nine witnesses in support of its version. Bashir Ahmad, H.C, has appeared as C.W.H. He was formal witness who kept parcel and blood-stained earth and empties in Mall Khana.
Muhammad Sarwar S.-I, appeared as C.W.2, who is the Police Officer and recorded the statement of the complainant initially, and registered the case F.I.R. Exh. C-II/A. He visted the spot and prepared injury statement Exh. C.II/B and inquest report Exh. C.II/C. He had also collected empties of .12 bore gun from the spot and prepared site-plan Exh. C.II/D, and recorded the statement of P.W.5. On 20-7-1998, he arrested the accused persons namely Asghar Ali, Shaukat Ali, Muhammad Ashraf, Muhammad Shafi, Muhammad Hanif and Muhammad Latif. During the course of cross- examination he had stated that appellant Shaukat Ali, on the very first day of his arrest, took the stance/plea that in fact Alamgir deceased, broke the Naka in order to divert water of the land i.e, Killa No, 16, which was being irrigated by him and in exercise of his right of defence of person and property, he killed Alamgir, deceased. He took five empty cartridges from the spot and sent the same for chemical examination. P.W.1 Allah Ditta, who is the complainant of the case in his examination in chief has stated that Shaukat Ali, made a fire shot which hit the chest of Alamgir deceased. Bashir Ahmad, accused fired at Naik Muhammad, which did not hit him. However, rest of the accused made ineffective firing. He further admitted that there was a conflict of passage between the parties and due to which they have murdered Alamgir. Killa Np.16, where the occurrence took place belongs to Nazir Ahmad. The complainant party was attacked when they were passing through that Killa which belongs to Nazir Ahmad, who had sown cotton crop over there. The complainant further stated that they were going to the house of Gabol for saying {{URDU TEXT}}. P.W.2, Ghulam Sarwar, is the eye-witness of the occurrence and his examination in chief is almost the same as that of the complainant. He in his cross-examination has further admitted that there was a dispute over the passage regarding Killa No, 16, and stated that it is correct that Addl.
Commissioner gave decision in favour of Nazir Ahmad, accused before the occurrence. He also admitted that previously when they passed on the Tractor through this Killa, accused Nazir Ahmad lodged F.I.R. No, 03 of 1997 against him and his brother for devastating the wheat crop. He also admitted that appellant Shaukat Ali lodged F.I.R. No, 82 of 1998 under sections 440/447/148/149 P.P.C, against him and others for destroying the crop. He also admitted that Dera of accused is situated in the adjoining square i.e, Killa No,16, whereas the occurrence took place. P.W.3, Naik Muhammad in his examination in chief has admitted that there was a dispute over the passage between the complainant and accused party. He is also witness of recovery of empties Exh.P.1. To Exh. P.5., which were taken into possession vide recovery memo. Exh. P.C. 7 Muhammad Ashraf was the S.H.O. Of Police Station Channi Goth and on 28-7-1998, investigation of this case was entrusted to him by S.S.P. Bahawalpur. He after investigation found Asghar and Shaukat Ali, guilty and rest of the accused were declared innocent by him. He has also deleted sections 324/148/149 P.P.C., and added section 34 P.P.C. During the investigation, Shaukat Ali accused while in police custody led to the recovery of .12 bore gun Exh. P.1. Vide recovery memo. Exh. P.F. He also admitted that there was a dispute over a passage between the complainant and accused party.
7. Shaukat Ali, appellant when examined under section 342, Cr.P.C., took up plea that on the day of occurrence, the land of Nazir Ahmad, was on lease with him. He along with Asghar Ali was watering the field when the complainant party including Alamgir deceased, mined with firearms committed criminal trespass. Allah Ditta complainant diverted the water in order to damage standing crop 'as the complainant wanted passage through Killa No, 16 and when he tried to stop them, they started firing at him and in exercise of his right of self defence of person and property he fired at the complainant party, resultantly, the deceased sustained injuries and that he used to keep gun for the protection of his property and person because in their area incidents of Dacoity were in vogue.
He further stated that Asghar Ali co-accused was at the distance of one acre away from the spot.
He further stated that he produced gun before the police and the police rightly reached the conclusion that the complainant party was aggressor. The rest of the accused plead not guilty.
8. Learned trial Court vide its judgment dated 14-7-2001, acquitted the accused Muhammad Hanif, Muhammad Arshad, Muhammad Shafiq and Muhammad Latif by extending benefit of doubt to them. However, Asghar Ali and Nazir Ahmad accused were held guilty under section 324, P.P.C. And were convicted and sentenced to 10 years with fine of Rs,50,000 each in default thereof were to undergo further imprisonment for a period of six months R.I.
9. Nazir Ahmad accused was convicted on the sole ground that had his fire hit Naik Muhammad, he would have been guilty of Qatl-e-Amd. As for Asghar Ali, accused is concerned, the Court sentenced him for the reasons that he was A present at the spot and, had overtly acted but no such overt act had been cited by the learned trial Court for which the above mentioned accused were convicted. As these two are only accused of ineffective firing, therefore, their case is at par with that of the acquitted accused mentioned above who were also accused of ineffective firing, thus rule of consistency goes in favour of Nazir Ahmad and Asghar Ali (as no overt act has been attributed to them by the prosecution except that of ineffective firing). Therefore, by extending benefit of doubt the instant appeal to the extent of Nazir Ahmad and Asghar Ali is accepted and they are acquitted from the charge. They be released forthwith if not required in any other case.
10. For the same reasons, there appears no force in PSLA, which is accordingly dismissed.
11. Now we take up the case of Shaukat Ali, appellant who had been convicted under section 302
(b) P.P.C. And was sentenced to death with compensation of Rs,1,00,000 to be paid to the legal heirs of deceased and in default to pay thereof, he was to further undergo R.I. For six months. The prosecution has failed to show that Gabol's house where the complainant party was going for {{URDU TEXT}} had no other way except that of passage from Killa No,16 wherein cotton crop has already been sown and P. Ws. Had not even mentioned the name of the person to whose house, they were going and who was the deceased person for whom they had gone for {{URDU TEXT}}.
Admittedly there was a dispute regarding path between the parties, civil and criminal litigation had been taking place between them, therefore, there was no occasion for the complainant party to pass through the cotton crop of Nazir Ahmad, accused. Similarly there was no occasion for the appellant Shaukat Ali tol, carry the gun in the day time. After going through the evidence on the file and statement of Shaukat Ali appellant recorded under section 342, Cr.P.C. We are of the opinion that two sides have not come, forward with true facts of the case and Court has to draw conclusion from the, evidence produced by both the sides. The, occurrence has been admitted by both the parties and they have tried to twist the story in their favour, therefore, by way of abundant caution and for the safer administration of justice, we convert the death sentence of appellant Shaukat Ali, into life imprisonment by maintaining the conviction under section 302(b), P.P.C. The rest of sentence passed against him by the learned trial Court shall remain intact. The death sentence of the appellant Shaukat Ali is not confirmed and murder reference is answered in the negative.