' IJAZ AHMED CHAUDHRY, J.---Muhammad Yar, petitioner, seeks leave to appeal against the judgment dated 15-3-2010 passed by a learned Division Bench of the Lahore High Court Lahore whereby judgment dated 2-11-2004 of the learned trial Court has been set aside to the extent of co-accused Haq Nawaz, Muhammad Nawaz and Manzoor Hussain and they have been acquitted of the charge and Murder Reference to the extent of Haq Nawaz has been answered in negative; while conviction and sentence of death awarded to petitioner Muhammad Yar has been maintained and Murder Reference to his extent has been replied in affirmative. Moman Hussain has been acquitted on the basis of a compromise arrived at between the parties before the High Court.
2. Tersely the facts, relevant for disposal of this petition are that the petitioner along with 13 others was tried by the learned Additional Sessions Judge Bhakkar in case F.I.R. No,.61 dated 16-5-2004, registered under sections 302, 324, 148, 149, P.P.C. At Police Station Mankera District Bhakkar, on the basis of a complaint lodged by Ijaz Hussain (P.W.13) wherein he alleged that his grandfather, namely, Baghi Khan was allotted land in District Bhakkar, which was given to Waryam for cultivation. After death of Baghi Khan, grandfather of the complainant, the said Waryam Khan tried to get transferred the said land in his name through the fictitious document, upon which the suit was filed by the complainant party and the litigation was pending in the High Court. It was alleged that during the litigation, possession of certain piece of land along with a room was handed over to the complainant party. On 16-5-2004 at 7-00 p.m. The complainant along with Muhammad Munir, Muhammad Iqbal, Ilyas Khan, Manzoor Hussain and Mst. Parveen Bibi, Mst. Sabran Bibi, Mst. Zohran Bibi, Mst. Mehraj Bibi, Mst. Shehnaz Bibi, Mst. Haleema Bibi, Mst. Balqees Bibi, Mst. Rasoolan Bibi and Mst. Nasreen Bibi alias Mst. Shaheen Begum were sitting in the courtyard of the room in their land when Muhammad Yar, petitioner, Haq Nawaz, Muhammad Nawaz sons of Warrayam Khan, Momin Hussian son of Ahmad Khan, Haq Nawaz, Sardar Khan sons of Bhuda, Mulazam Hussain son of Sultan, Ghulam Abbas, Abid Hussain sons of Ladha Khan, Bashir son of Ahmad Khan, Manzoor son of unknown, Ghulam Rasool son of Nazir along with two unknown persons all armed with firearms came and raised lalkara that the complainant party would be taught a lesson for taking possession of the land. Muhammad Yar, petitioner, fired with his .12 bore gun hitting Muhammad Iqbal on the lower part of his abdomen. Haq Nawaz son of Warryam fired with his .12 bore gun hitting Mst. Parveen Bibi at her neck. Muhammad Nawaz, Muhammad Hussain and Manzoor Hussain fired with their respective .12 bore guns at Mst. Parveen Bibi hitting her on left shoulder, left armpit and on the back side of left shoulder. Thereafter, Ahmad Khan, Sultan Khan, Sardar Khan, Haq Nawaz son of Bhuda, Mulazam Hussain, Ghulam Abbas, Abid Hussain, Bashir, Ghulam Rasool and the two unknown persons started reckless firing with their respective .12 bore guns which shots landed on right leg of Munir Hussain, right flank, left chest, left leg and right knee of Mst. Nasreen Bibi, right leg of Mst. Sabran Bibi and right leg of Mst. Zofran Bibi. Muhammad Nawaz son of Warryam gave a butt blow to Mst. Mehraj Bibi at her right flank. Muhammad Iqbal and Mst. Parveen Bibi succumbed to the injuries at the spot.
3. After usual investigation, the accused persons were sent to face trial before the learned Additional Sessions Judge, Bhakkar, who framed the charge to which the'accused persons pleaded not guilty and claimed trial. In order to prove its case the prosecution examined as many as 16 witnesses. After conclusion of prosecution evidence, statements of the accused were recorded under section 342, Cr.P.C. Petitioner Muhammad Yar, in his statement, in answer to a question stated as under:-- "As a matter of fact 15 acres of land situated in Chak No,. 75/ML District Bhakkar was allotted to Bagh Ali alias Baghi caste Baloch resident of Chak No,.15/I-R, District Okara, the grandfather of the complainant party. The land was un-command comprising of sand dunes. Baghi Khan handed over the said land to my father Warryam Khan for making it cultivatable under an agreement deed, which was executed by Baghi Khan in favor of my father Warryarn. After the death of Baghi Khan on 26-1-1967 the legal heirs of Baghi Khan sold the land to my father and received partial payment of the sale price and an agreement of sale deed was executed in favor of my father.
Another sale deed was executed by Muhammd Khan, Ahmad Ali and Sanatha uncles and father of the complainant, which was registered. My father made payment of all the government dues in the year 1987. My father asked Muhammad Khan and others to receive the remaining amount and transfer the land in his name but the legal heirs of Baghi Khan resiled from the agreement deeds and appointed Manzoor Hussain son of Muhammad Akbar as their attorney, who sold the land to Shaukat Ali Arrain, resident of Chak No,.57/ML. Said Shoukat Ali moved various applications for transfer of the land in his name, but the same were rejected by the Revenue Authorities for the reasons that civil suit was pending adjudication in the Civil Court. The Civil Court dismissed the civil suit of my father Warryam, but the order was reversed and decreed in favor of my father by the Addl. District Judge, Bhakkar. The complainant party filed an appeal against the order of Addition District Judge, Bhakkar before the Humble Lahore High Court, Lahore which is still pending. One month prior to the night of occurrence I had gone to my native village L-plot Lasharian, District Okara and remained there for about one month. In my absence my wife, two young daughters and a small son aged about 6/7 years were residing in the dera in Chak No,.75/ML. My elder son aged about 12/13 years learns Holy Quran by heart in a Maddressa at Bhakkar. Manzoor Hussain son of Muhamad Akbar P. W. Came to know about my absence from the dera and he made a plan with the connivance of the complainant party to take the forcible possession of the land in question. On 16-5-2006 Manzoor Hussain brought the complainant party with their women folk, except Ijaz Hussain complainant to my dera. He also accompanied Mst.
Nasreen Bibi P.W. His wife with the complainant party to assure them that there was no chance of encounter. The complainant party forcibly entered in my Baithak and threw the luggage in front of the Baithak. On intervention of the females of my house, the male and females of the complainant party, gave beating to my wife and young daughters. Still they were dragging them while catching hold of their tales I reached there and requested them to avoid the cruelty, but on their refusal under grave and sudden provocation to protect the lives of my ladies and defense of my property, I took my licensed gun and made firing as a result of which Muhammad lqbal and Mst. Parveen Bibi died at the spot and the others were injured. I myself informed the police about the incident before the sun rise. The police fabricated the story of incident after summoning Ijaz Hussain from Okara and implicated my whole family in this false case, who were declared innocent during all the investigations in this case. I had given my daughter in marriage to Qaisar Khan son of Sultan accused, due to this relationship the family of Sultan was annoyed with and was not on visiting terms with me, as such it is out of question that they would join hand with me for committing any crime."
' After conclusion of trial learned trial Court, convicted the petitioner Muhammad Yar along with Haq Nawaz under section 302(b), P.P.C. And sentenced to death with direction to pay compensation of Rs,50,000 each under section 544-A, Cr.P.C. And in default to undergo 6 months'
SI, whereas, accused Muhammad Nawaz, Moman Hussain and Manzoor Hussain were sentenced to life imprisonment under section 302(b), P.P.C., along with compensation of Rs,50,000 each under section 544-A, Cr.P.C. And in default to undergo further six months' SI. All the accused persons were also convicted under section 148, P.P.C. And sentenced to suffer two years' R.I. They were also convicted under section 302(b), P.P.C. Read with section 149, P.P.C. And sentenced to imprisonment for life along with compensation of Rs,20,000 and in default to undergo further,6 months' SI, vide judgment dated 2-11-2004 passed by Additional Sessions Judge-I, Bhakar. All the convicts preferred Criminal Appeal No,.1764 of 2004 against their convictions and sentences, while the learned trial Court sent a Murder Reference No,.629 of 2004 for confirmation of death sentence awarded to Muhammad Yar and Haq Nawaz. Both .The matters have been disposed of by a learned Division Bench of the Lahore High Court, Lahore vide judgment dated 15-3-2010 as stated in opening para of this judgment.
4. Learned counsel for the petitioner contends that same evidence has been disbelieved qua the involvement of Haq Nawaz, Muhammad Nawaz and Manzoor Hussain, and maintained the conviction and sentence of the petitioner; that the prosecution has failed to prove the motive against the accused; that the eye-witnesses while appearing before the Trial Court have made improvements, as such, they cannot be termed as truthful witnesses; that the petitioner has taken a specific stance that the complainant party had tried to take forcible possession of the disputed land and started beating to his wife and daughters, therefore, the petitioner while exercising his right of self-defense fired at the deceased, hence, alternatively, it is a fit case for lesser punishment.
On the other hand, learned Additional Prosecutor-General, while opposing this petition, has contended that the prosecution has fully proved its case against the petitioner beyond shadow of doubt by producing reliable, trustworthy and confidence inspiring evidence of five injured P.Ws.
Recovery of weapon of offence and the medical evidence, etc.
5. We have heard the arguments of the learned counsel for the parties, perused the judgments of both the courts below and have gone through the entire evidence available on record with the assistance of learned counsel for the petitioner.
6. Occurrence in the present case took place on 16-5-2004 at 7-00 p.m. And the statement Exh.PA was recorded at 9-30 p.m. At Chah Yarowala on the basis of which formal F.I.R. Had been registered at 10-30 p.m. The role ascribed to the petitioner in the statement recorded under sections 164 and 161, Cr.P.C. Was that the petitioner had opened fire at Muhammad Iqbal hitting on his abdomen and bladder who died after receiving the said injuries and the other accused had also resorted to firing along with the petitioner and had injured P. Ws. Muneer Hussain, Mst. Nasreen Bibi @ Shaheen Bibi, Mst. Sabran Bibi Mst. Zohran Bibi and Mst. Meraj Bibi. To the extent of role ascribed to the petitioner all the witnesses have made consistent 'statements and their statements are fully supported by the medical evidence, also through the recovery of weapon of offence which was produced by the petitioner, empties recovered from the spot were sent to the Forensic Science Laboratory on 20-5-2004 while the weapon of offence was recovered on 6-6-2004 and was sent to the office of Forensic Science Laboratory on 9-6-2004. The report of the Forensic Science Laboratory was in positive. The recovery of weapon of offence fully corroborates the prosecution evidence to the extent, of involvement of the petitioner in the present case as a specific role has been attributed to him. So the case of the prosecution is on sound footings qua his involvement in the incident and his case is not at par with that of acquitted accused Haq Nawaz, etc. As no weapon of offence was recovered from them during the investigation.
7. Coming to the plea of self-defense, the petitioner has taken a specific plea in his statement recorded by the learned trial Court under section 342, Cr.P.C. Reproduced hereinabove. From perusal of the said statement, even if it is taken as a source of evidence for maintaining the conviction, the case of the petitioner does not fall within any explanation of section 100, P.P.C. Which provides right of self defense. Section 100, P.P.C. Is reproduced herein-below:-- "100. When the right of private defense of the body extends to causing death.---The right of private defense of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: ' First. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; ' Secondly. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; ' Thirdly. An assault with the intention of committing rape; ' Fourthly. An assault with the intention of gratifying unnatural lust; ' Fifthly. An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he be unable to have recourse to the public authorities for his release."
8. There is no cavil with the proposition that the law authorizes a man who is under a reasonable apprehension that his life or the life of another is in danger or there is risk of grievous hurt, to inflict death upon the assailants but the apprehension must be reasonable and the violence inflicted must not be greater than is reasonable necessary for the purpose of self-defense. In B that way, the person exercising the right of private defense must be careful in modulating his acts. It must be proportionate and commensurate with the quality and character of the act it is intended to meet and what is done in excess is not protected under law. So, the most important question is whether there was any reasonable apprehension of danger to the petitioner and he committed the act of violence in exercise of this right. Reference may be made to the cases of (i) Ghulam Farid v. The State (2009 SCM R 929), (ii) Karuppa Pillai v. State (1996 Cri. LJ 3880) and (iii) Aramana Joseph alias Pappachan v. State of Kerala (1996 Cri. LJ 2140). It is true that the deceased and others came to the house of the petitioner and there was a confrontation, but, there is no evidence that they were fully armed and they came to the house of the petitioner purposely to cause trouble. The only allegation that the complainant party had come on the spot to take possession of the disputed land and they started beating his wife and young daughters does not fall within the ambit of section 100, P.P.C., especially, when no evidence has come on record that the complainant party came fully armed to cause trouble.
9. The petitioner had fired at the complainant side in which two innocent persons had been murdered and during the incident five P.Ws. Had received firearm injuries. In the circumstances we have examined the plea raised by the petitioner and we find that the case of the petitioner does not fall within the provisions of section 100, P.P.C. Even if his plea is taken in to as it is not the case of the petitioner that the complainant party had come at the place of occurrence being armed with firearm weapons to take forcible possession of the disputed land. So this fact does not support the petitioner that he had exercised his right of self-defense. Even, none from the women folk or the females who have been given beating by the complainant party had been produced during investigation. In the circumstances, we find that no case for reduction in sentence is made out.
10. The appellant had admitted firing at the deceased and failed to substantiate the plea that he had acted in right of his self-defence. On the other hand the prosecution evidence is supported by the statements of five injured P.Ws. Who had received firearm injuries on their persons during the incident and their depositions before the trial Court qua the role of the petitioner in the commission of offence remained consistent despite lengthy cross-examination. In such circumstances we find that both the courts below have not committed any illegality or irregularity while recording conviction of the petitioner under section 302(b), P.P.C. And sentencing him to death. This petition is, therefore, dismissed and leave is refused.