' ABDUS SATTAR ASGHAR, J.--Ashiq Hussain, Waris Ali, Dilawar Hussain, Zulfiqar, Naseer Ahmad and Saif Ali (appellants) along with cc-accused namely Shabbir Hussain, Faqir Sain, Noor Muhammad, Fazal Hussain, Muhammad Saddaq, Muhammad Saddique, Ali Muhammad and Muhammad Sharif faced trial in case F.I.R. No,2 of 2002, dated 10-1-2002, in the offences under sections 302/324/337- F(ii)/148/ 149/109/ 379, P.P.C., Police Station Kotli Said Ameer, District Sialkot lodged on the statement of Muhammad Ilyas. Learned Additional Sessions Judge, Sialkot, at the conclusion of the trial vide judgment dated 29-1-2004 convicted and sentenced the above said appellants/accused as under:-- ASHIQ HUSSAIN ' Under section 148, P.P.C. To two years' R.I. With a fine of Rs,5,000 and in case of default in payment thereof to undergo further S.I. For four months; ' Under section 440/149, P.P.C. To five years' R.I. With fine of Rs,5,000, or suffer 6 months' S.I.; NASEER AHMAD ' Under section 148, P.P.C. To two years' R.I. With fine of Rs,5,000 or suffer' S.I. For four months.
' Under sections 440/149, P.P.C. To 5 years' R.I. With fine of Rs,5,000, or undergo further S.I. For 6 months; ' Under section 324, P.P.C. To 10 years' R.I. With fine of Rs,5,000, or suffer further S.I. For six months; ' Under sections 337-F(v) and 337-F(vi), P.P.C. To pay Daman of Rs,50,000 to the injured Muhammad Riaz; SAIF ALI ' Under section 148, P.P.C. To two years' R.I. With fine of Rs,5,000 or suffer four months S.I.
' Under sections 440/149, P.P.C. To five years' R.I. With fine of Rs,5,000 or undergo further S.I. For 6 months; ' Under section 411, P.P.C. To two years' R.I; ' Under section 337-F(ii), P.P.C. To pay Rs,10,000 as Daman to the injured Riaz; ZULFIQAR ' Under section 148, P.P.C. To two years' R.I. With fine of Rs,5,000 or suffer S.I. For four months; ' Under sections 440/149, P.P.C. To five years' R.I. With fine of Rs,5,000 or suffer further S.I. For six months; ' Under sections 337-A(i) and 337-F(ii) to pay Rs,10,000 as Daman; DILAWAR HUSSAIN ' Under section 148, P.P.C. To two year' R.I. With fine of Rs,5,000 or suffer further S.I. For four months; ' Under sections 440/149, P.P.C. To five years' R.I. With fine of Rs,5,000 or suffer S.I. For 6 months; ' Under sections 337-A(i) and 337-F(ii), P.P.C. To pay Rs,10,000 as Daman to Ilyas; WARIS ALI ' Under section 148, P.P.C. To two years' R.I. With fine of Rs,5,000 or suffer S.I. For four months; ' Under sections 440/149, P.P.C., to five years' R.I. With fine of Rs,5,000 and in case of default in payment thereof to under S.I. For 6 months.
2. All the above named accused were acquitted in the other charges. Rest of the accused except Javed Tahir (proclaimed offender) were 'acquitted given benefit of doubt in all the charges. It is noteworthy that the complainant has not lodged any appeal against the afore-noted acquittals.
However, he has filed Criminal Revision No,140 of 2004 seeking enhancement of aforementioned sentences of respondents Nos.2 to 4. The said Criminal Revision was admitted for hearing with notice to respondents Nos.2 to 7 to consider the complainants plea that the respondents being armed with weapons had formed an unlawful assembly with the common object to cause death of the deceased as well as injuries to the P.Ws. And that while recording their conviction the learned trial Court had failed to convict them under sections 302P149, P.P.C. And that the respondents were vicariously liable for the murder of the deceased and as such deserve to be convicted under section 302(b), P.P.C. As well. By virtue of this single judgment we intend to dispose of the captioned appeal as well as criminal revision arising out of one and the same judgment dated 29-1-2004.
3. Briefly, prosecution story as unfolded in the F.I.R. (Exh.PB/1) recorded on the statement (Exh.PB) of the complainant Muhammad Ilyas P.W. Is that on 10-1-2002 at about 11-00 a.m., Ashiq Hussain armed with .222-bore rifle, Waris Ali and Dilawar Hussain both armed with hatchets, Javed Tahir (P.O.) armed with pistol, Saif Ali armed with Chhuri, Naseer Ahmad armed with .12 bore gun, Shabbir Ahmed armed with rifle, Zulfiqar armed with .12 bore gun came on three tractors and started ploughing the land on which the complainant party had cultivated the wheat and "Shattala" crops after taking possession under sale agreement of six Acres of land including the place of occurrence from Hassan Din by Muhammad Riaz P.W. For consideration of Rs,12,00,000 but the accused party got a sale-deed registered from said Hassan Din in their favour after paying the higher amount; that when the complainant Muhammad Ilyas (PW-13) along with his brother Muhammad Riaz (P.W.11) and their mother Mst. Ahmadan Bibi (deceased) and Ali Akbar (P.W.12) reached the place of occurrence the accused were ploughing the land; that they were asked not to plough the wheat crop cultivated by them whereupon the accused got flared up claiming to have purchased the land and hot words were exchanged between the parties; that Ahmadan Bibi (deceased) and P.W. Riaz came forward and tried to stop the tractors whereupon the accused Noor Muhammad, Ali Muhammad, Muhammad Sadiq, Muhammad Saddique, Fazal Hussain and Muhammad Sharif who were also present there raised a Lalkara to teach a lesson to the complainant party for stopping the tractors and to murder them; that accused Ashiq Hussain fired a shot with his rifle hitting Mst. Ahmad Bibi on her right arm; that accused Javed Tahir (since P.O.) fired a .Shot with his pistol hitting Mst. Ahmad Bibi on her right ribs; that she fell down whereupon the accused Waris Ali gave a blow with his hatchet on her left arm; that accused Naseer Ahmad fired a shot with his gun at Riaz P.W. With an intention to kill him and the fire hit said Riaz on the right side of the neck and arm and other parts of the body; that accused Saif Ali inflicted a Chhuri blow over the right knee of said Muhammad Riaz; that accused Dilawar Hussain gave a hatchet blow on the right leg of complainant Muhammad Ilyas and accused Shabbir and Zulfiqar gave blows with the Butts of their rifles on his head; that Mst. Ahrnad Bibi expired at the spot and the accused ran away from the place of occurrence while raising Lalkaras.
4. After conclusion of investigation the police submitted the report under section 173, Cr.P.C. Against the appellants including the other co-accused whereas Shabbir Hussain and Faqir Sain were declared innocent and the accused Javed Tahir was declared proclaimed offender. The challaned accused were charged-sheeted by the learned trial Court to which they pleaded not guilty and claimed trial.
5. To prove the charge prosecution produced 15 witnesses in all. Dr. Munawar Hayat Uppal (P.W.1) medically examined Muhammad Riaz injured P.W., Dr. Syed Tahir Zafar (P.W.3) medically examined complainant Muhammad Ilyas, Iftikhar Ahmad Patwari (P.W.8) prepared the site-plan (Exh.PF and Exh.PF/1) of the place of occurrence, Muhammad Nawaz Inspector/ S.H.O. (P.W.9) the Investigating Officer, Lady-Doctor Rahat Firdaus (P.W.10) conducted the postmortem examination on the dead- body of Mst. Ahmadan Bibi, the eye-witnesses Muhammad Riaz (P.W.11), Ali Akbar (P.W.12) and Muhammad Ilyas complainant (P.W.13) are important witnesses whereas rest are of formal nature.
6. After conclusion of the prosecution evidence the appellants were examined under section 342, Cr.P.C. Whereby they discarded each and every piece of prosecution evidence and pleaded innocence. Waris Ali appellant while replying to the question "Why this case against you and why the P. Ws. Have deposed against you" stated as under:- "The P. Ws. Have deposed against me and the co-accused being inimical with us and interested in our malicious prosecution. So the case has been cooked up."
' While replying the question "Do you want to say anything else, said Waris Ali appellant stated as under:-- "I am innocent. The possession and cultivation of the land that of the place of the occurrence has been explained by me in answer to previous questions referred to above, in fact Javed Tahir (since P.O.) and Naseer Ahmad co-accused were cultivating the land at the relevant time and the occurrence with Muhammad Riaz, Muhammad Ilyas; Ali Akbar, Muhammad Ali, Jamal Din and Muhammad Nawaz accused of the cross-version brought on record during investigation of case vide variously armed with deadly weapons like firearm had restrained Tahir Javed and Naseer Ahmad from cultivation of the land and initiated attack by fire shot upon said Tahir Javed (since P.O.) and Naseer Ahmad co-accused to do away with their lives. Tahir Javed and Naseer Ahmad in exercise of their right of property and person retaliated with firearm/ guns and pistols. As a result whereof Muhammad Riaz and Mst. Ahmadan Bibi deceased received several injuries on their person during the cross-firing and the melee between both the parties. The injuries of Muhammad Ilyas P.W. Are fabricated one. I shall not present at the spot and thus professes my offence"
' The other Appellants made similar statements and some of the them also adopted the statement made by Waris.
7. Appellant Naseer Ahmad made his statement under section 340(2), Cr.P.C. On oath in his defence. The other appellants did not appear in their defence on oath. The appellants however produced Muhammad Arif (DW-l), Manzoor Hussain (DW-2), Imdad Ali (DW-3) and Mumtaz Bashir (DW-4) in their defence.
8. Learned counsel for the appellants argued that 15 accused were nominated in this case; that the learned trial Court after trial has convicted the appellants and acquitted all other accused except Javed Tahir who subsequently was arrested and acquitted on the basis of compromise with the legal heirs of Mst. Ahmadan Bibi deceased; that Criminal Appeal No,256 of 2004 filed by the complainant Muhammad Ilyas against acquittal of the co-accused of the appellants was dismissed by this Court vide order dated 25-5-2005; that another time-barred appeal was filed against acquittal of the present appellants under section 302, P.P.C. Along with Criminal Miscellaneous No,2814-M of 2010 for condonation of delay but the said application was also dismissed by this Court vide order dated 25-5-2011. Further contends that recoveries were disbelieved; that appellant Naseer Ahmad also received fire-arm injuries and this fact is evident from the statement of Dr. Munawar Hayat Uppel (P: W.1); that as regards sharp-edged weapon injury attributed to Ashiq the Doctor has opined that the same may be result of falling on the ground; that the injury attributed to Waris appellant on the left foot of the deceased is opined to have been caused with some blunt weapon; that sentences of the appellants under section 337- A(i) are not sustainable as no injury whatsoever is attributed to anyone on the head; that there is joint allegation against Zulfiqar and Shabbir of causing injuries on the head of the complainant but Shabbir has been acquitted; that the sentence of Zulfiqar under section 337-F(ii), P.P.C. Is not sustainable because no such injury is attributed to the appellants during the whole trial; that no Chhuri was recovered from Saif Ali; that no specific injury is attributed to Zulfiqar on the head of the complainant; that ocular account is not corroborated by medical evidence and the prosecution case is not proved beyond any doubt; that complainant party was actual aggressor and the appellants acted in self-defence.
9. On the other hand, learned Law Officer assisted by learned counsel for the complainant has contended that the learned trial Court has already taken very lenient view and that the case against the appellants has been proved beyond any shadow of doubt; that there is sufficient evidence in the shape of injured P. Ws. And medical evidence to connect the appellants with the crime; that the appellants have failed to prove their non-participation in the occurrence which is admitted 'and that the appellants have failed to prove the plea of self defence under Article 121 of the Qanun-e-Shahadat Order, 1984.
10. We have given patient hearing to the learned counsel for the parties and carefully gone through the record.
11. First question that arises for decision in this case is as to who was in possession of the disputed land on the date of occurrence i.e, 10-1-2002. Complainants version is that they were in cultivating possession of the suit-land including the place of occurrence under the sale agreement from Hassan Din in favour of Muhammad Riaz injured (P.W.11) for consideration of Rs,12,00,000 and had sown wheat and "Shatalla" crops thereupon. On the other hand, detente version is that they had purchased the suit-land including the place of occurrence from Hassan Din through registered sale-deed and were in possession thereof and were ploughing the same when the complainant party aggressed. The defence version with regard-to actual delivery of possession of the suit-land in their favour on the basis of sale deed is not supported by any documentary evidence. It is noteworthy that Iftikhar Ahmad Patwari (P.W.8) appeared in the witness-box but the defence side failed to put any document regarding change of possession ever issued by, him in favour of the defence side. It is also pertinent to mention that the defence side has put a particular suggestion to Muhammad Riaz (P.W.11) during cross-examination that he and Muhammad Ilyas complainant had forcibly taken the possession of four Acres of land from Ashiq accused etc. Simultaneously while cross-examining the complainant Muhammad Ilyas (P.W.3) defence side put a similar suggestion that their possession was illegal. Muhammad Ilyas complainant denied the suggestion as incorrect. It manifests that the defence side has admitted that the complainant party was in possession of the suit-land. Therefore the first question is answered in favour of the complainant party.
12. In furtherance of what has been said above, presence of the accused party along with tractors and firearm weapons at the time and place of occurrence transpires that they wanted to get the possession of the disputed land forcibly in illegal manner. It establishes aggression of the accused party in furtherance of their common object to commit mischief after preparation. No doubt it was an overt act committed by the accused/appellants in prosecution of their common object being members of unlawful assembly. It therefore establishes offences under sections 440/148/149, P.P.C.
Against them.
13. Careful appraisal and comparative analysis of the ocular account and the medical evidence with regard to attribution of various injuries to the appellants transpires that the same are consistent, in line and corroborative to each other without any material discrepancy. Therefore respective convictions of the appellants with regard to the attribution of various injuries to each of them does not suffer from any notable inconsistency.
14. In this case defence side has raised the plea of private defence meaning thereby their presence at the time and place of occurrence as well as attribution of various injuries to each of the appellants stand admitted. Fact remains that burden of establishing the plea of self-defence is on the appellants. Article 121 of the Qanun-eShahadat Order, 1984 in this regard is a general statutory provision expressly placing burden of proof upon the accused which reads below:-- "121. Burden of proving that case of accused comes within exceptions.- -When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence, is upon him and the Court shall presume the absence of such circumstances."
' Simultaneously sections 96 to 106 of Pakistan Penal Code, 1860 provide for the right of private defence in its various forms. Section 96 of the Code ibid is reproduced hereunder for ready reference- "96. Things done in private defence. Nothing is an offence which is done in the exercise of the right of private defence."
15. It is an established principle of law that in a criminal case the Court is duty-bound to examine the entire evidence that has been produced by the prosecution and the defence. Now it is to be seen as to whether the appellants have been able to discharge the burden of proving the right of private defence by showing preponderance of probability in favour of their plea on the basis of material available on the record. In this regard suffice to say that since it has been established that the appellants were not in possession of the disputed .Land including the place of occurrence on the D date of occurrence, therefore the learned trial Court rightly concluded that the accused party was guilty of criminal trespass by constituting unlawful assembly to create mischief. The appellants therefore claiming possession of land available at the spot with tractors and fire- arm/deadly weapons to assert their title against the complainant party in possession will be termed as unlawful assembly and cannot be said to be acting in private defence. They must be treated as being aggressors and trying to enforce a certain right and not to defend such right.
Reliance be made upon Munshi Ram and others vs. Delhi Administration (AIR 1968 Supreme Court 702). Needless to say that enforcing a right and defending a right are two different phenomenas. In the instant case the appellants had a common object for constituting an unlawful assembly to enforce a right through illegal manner. In this regard appellants have not been able to prove the plea of private defence through any reliable confidence inspiring speck of evidence.
16. We therefore are of the considered view that the appellants have no case at all to challenge the convictions and sentences awarded to them by the learned trial Court. Needless to mention that the learned trial Court has already taken lenient view in awarding the above noted sentences to the appellants for extenuating circumstances in this case. Therefore the appellants have no ground for reduction of quantum of sentences.
17. For the reasons mentioned above, we do not find any factual or legal infirmity in the impugned judgment, therefore this appeal is dismissed. Appellants are on bail. They shall be taken into custody and sent to jail to serve out their remaining sentences in accordance with law.
18. As regards Criminal Revision No,140 of 2004 mentioned above, suffice to say that since co- accused namely Javed Tahir to whom fatal firearm injury to the deceased was attributed is a proclaimed offender and thus his culpability is yet to be determined by the court of competent jurisdiction, therefore the plea of vicarious liability qua the respondents Nos.2 to 7 under sections 302/149, P.P.C. Is devoid of any force at this stage and thus repelled. Simultaneously keeping in view the extenuating circumstances mentioned above, we do not consider it a case of enhancement of the sentences awarded to the respondents Nos.2 to 7. For the discussion and reasons given in the above paragraphs, Criminal Revision No,140 of 2004 having no merit is also dismissed.
Appeal, .