' RAUF AHMAD SHEIKH, J.---The appellants of Criminal Appeal No,164 of 2007 and Criminal Appeal No,180 of 2007 have assailed the vires of the judgment dated 30-3-2007 passed by the learned Additional Sessions Judge, Mailsi, in case F.I.R. No,125 of 2005 dated 16-5-2005 Police Station Saddar Mailsi , under sections 302/337-A(ii)/337-A(i)/337-F(i)/148/149, P.P.C. They along with 5 others faced the trial and were finally convicted and sentenced as under:--
(1) Suleman appellant: To death under section 302(b), P.P.C. He was further directed to pay a sum of Rs,100,000 to the legal heirs of the deceased Allah Dewaya as compensation under section 544-A, Cr.P.C. And in case of default thereof to undergo S.I. For six months.
(2) Sultan appellant: ' To two years' R.I. Under section 337-F(ii), P.P.C. Was further ordered to pay a sum of Rs,20,000 as Daman to the legal heirs of the deceased.
(3) Muhammad Akram appellant: ' To one year's R.I. As Ta'zir under section 337-F(i), P.P.C. And was further ordered to pay a sum of Rs,20,000 as Daman to the legal heirs of the deceased.
(4) Zulfiqar Ali appellant: ' To one year's R.I. As Ta'zir under section 337-A(i), P.P.C. And was further ordered to pay a sum of Rs,20,000 as Daman to the legal heirs of the deceased.
(5) Maqsood Ahmad appellant: ' To one year's R.I. Under section 337-L(2), P.P.C. And was further ordered to pay a sum of Rs,10,000 to Mujahid injured as Daman.
(6) Abdul Hafeez appellant: ' To R.I. For six months' under section 337-F(i), P.P.C. And was further ordered to pay a sum of Rs,10,000 to Abdul Hakeem injured as Daman.
(7) Malik Muhammad appellant: ' To R.I. For six months' under section 337-F(i), P.P.C. And was further ordered to pay a sum of Rs,10,000 to Ashfaq injured as Daman.
(8) Chand Khan appellant: ' To R.I. For six months' under section 337-F(i), P.P.C. And was further ordered to pay a sum of Rs,10,000 to Ashfaq injured as Daman.
' The learned trial Court has also submitted Murder Reference No,317 of 2007 seeking confirmation or otherwise of the death penalty awarded to the appellant Suleman under section 374, Cr.P.C.
Abdul Hakeem complainant has filed Criminal Appeal No,178 of 2007, whereby acquittal of Zafar Iqbal, etc. Has been called in question. He has also filed Criminal Revision No,137 of 2007 seeking enhancement of the sentences of the appellants. As all these matters are interconnected and interlinked so are being decided through this single judgment.
2. The prosecution version, in brief, as set-forth in the F.I.R. (Exh.PA) recorded on the statement (Exh,PV) of Abdul Hakeem son of Shah Muhammad, aged 35/36 years, caste Mallana, resident of Shah Sattar, Police Station Saddar Mailsi, District Vehari, is that at about 9-00 p.m. On 15-5-2005, the complainant along with Allah Dewaya son of Taj Muhammad, Muhammad Ashfaq son of Muhammad Ramzan and Sadiq son of Allah Ditta was sitting in his Baithak'. Suddenly Malik Muhammad son of Bashir Ahmad armed with hatchet, Chand Khan son of Muhammad Rafique armed with hatchet, Sultan son of Naik Muhammad armed with hatchet, Rafique son of Fajar Ali armed with hatchet, Zulfiqar son of Khurshid armed with 'Sota', Hafeez son of Rafique armed with 'Sota', Suleman son of Beeko armed with hatchet, Akram son of Rafique armed with Sota', Zafar son of Naik Muhammad armed with `Sota', Akhtar son of Beeko armed with hatchet and Maqsood son of Naik Muhammad armed with `Sota', all Rajputs by caste and residents of Pirwala arrived there on Tractors, driven by Muhammad Luqman son of Naik Muhammad and Afzal son of Rafique.
Immediately after their arrival, they started demolishing the road, which passes in front of complainant's house. The complainant forbade them, on which, Hafeez gave a blow with `Sota' on his back. Allah Dewaya, Muhammad Ashfaq and Sadiq ran towards him to rescue him. Suleman appellant gave a blow with hatchet, which landed on head of Allah Dewaya, who fell on the ground.
Sultan gave a second blow with hatchet, which hit on his right thigh. Malik Muhammad gave a blow with hatchet on the back of Muhammad Ashfaq. Zulfiqar gave a blow with `Sota' on the left eye of Allah Dewaya. Akram gave a blow with `Sota' on his right upper arm. Rafique gave a hatchet blow on head of Ashfaq. On their alarm Iqbal son of Ramzan was attracted there but immediately on his arrival Akhtar gave a blow with hatchet on his head. On arrival of Mujahid son of Allah Dewaya, Maqsood Ahmad gave him a blow with `Sota' on finger of right hand. Chand Khan gave a blow with wrong side of the hatchet on the right upper arm of Ashfaq. Sadiq gave a blow with `Sota', which landed on the head of Muhammad Akram. Luqman and Afzal raised Lalkara that nobody should come near otherwise he would be killed. On their hue and cry, Abdul Razzaq, Muhammad Siddique and others arrived there, who got them rescued. During the fight Chand Khan and Maqsood Ahmad were also injured. The motive was stated to be a dispute over passage
3. The appellants and five acquitted accused persons were sent up to face the trial after investigation. They were charged under sections 302/324/337-A(i)/337-L(2)/148/149, P.P.C. They pleaded not guilty and claimed the trial.
4. The prosecution examined 16 witnesses in addition to the documentary evidence in support of its allegations against the appellants and 5 acquitted accused persons, respondents of Criminal Appeal No,178 of 2007. The medical evidence was adduced through Dr. Ata Muhammad Zafar (P.W.3), who stated that he examined on 15-5-2005 Hafiz Allah Dewaya deceased at 10-30 p.m. And found five injuries on his person. He proved the copy of the MLC (Exh.PD) and stated that injury statement (Exh.PD/1) was also signed by him. He also proved MLCs (Exh.PC, Exh.PE, Exh.PF, Exh.PG and Exh.PH) regarding examination of Muhammad Ashfaq, Muhammad Sadiq, Muhammad Iqbal, Abdul Hakeem and Mujahid respectively. It is also stated that on 20-5-2005 at 4-00 p.m. He conducted the postmortem examination of the dead body of Allah Dewaya and found following- injuries on his person:--
(1) A stitched wound on the back of left side of head measuring 15 c.m. In length. It was on 12 c.m.
Distance from left ear.
(2) A stitched wound on the front of left forehead above the eye brow 2 c.m. In length was seen. On dissection, it was skin deep.
(3) Swelling on the right shoulder joint with arm mildly.
(4) Contusion with mild swelling on left lower arm contusion measuring 5 x 1 c.m. Swelling around lower half of arm.
(5) Stitched wound on the outer aspect of right lower chest at junction with abdomen measuring 9.5 c.m. In length. On dissection, it was muscle deep.
' He opined that the death took place due to injury No,1, which was sufficient to cause death in the ordinary course of nature. It was ante-mortem. The probable time between the injuries and death was within 4 to 6 days approximately and between the death and postmortem was approximately 4 to 8 hours. He has proved the carbon copy of the postmortem report (Exh. PI) and Pictorial Diagrams (Exh.PI/1). He stated that inquest report (Exh.PJ) and injury statement (Exh.PK) are endorsed by him. In the cross-examination, he stated that he also examined injured Chand Khan appellant and Zafar Iqbal since acquitted at the same time. He further added that at about 2-30 a.m. On 16-5-2005, he examined Abdul Hafeez and Muhammad Maqsood appellants and Muhammad Nawaz. It is further added that the injuries on their persons were neither self-inflicted nor caused with friendly hands.
5. The ocular evidence is adduced through Abdul Hakeem complainant (P.W.6), Mujahid (P.W.7), Muhammad Iqbal (P.W.8) and Muhammad Ashfaq (P.W.9). Abdul Hakeem complainant has almost reiterated the contents of his statement (Exh. PV) and stated that the same was read over and explained to him and in token of its correctness he put his signatures on the same. Mujahid (P.W.7), Muhammad Iqbal (P.W.8) and Muhammad Ashfaq (P.W.9) have stated that the appellants and accused persons caused injuries to Abdul Hakeem complainant, Hafiz Allah Dewaya deceased and other injured P.Ws. They have also stated that the accused persons were demolishing the passage in front of their house and when Abdul Hakeem complainant forbade them, they made an attack on him and subsequently caused injuries to Allah Dewaya and other injured persons.
6. Javaid Mukhtar, DSP (P.W.10) stated that he assumed the investigation of the case on 5-7-2005. It is stated that Suleman appellant was in Police custody, who led to the recovery of hatchet P.9, which was secured through memo. Of recovery (Exh.PU). He has also proved memo of recovery (Exh.PS) regarding hatchet P.7 at the instance of Chand Khan and memo of recovery (Exh.PT) regarding hatchet P.8 at the instance of Sultan. It is also stated that these memos. Were attested by Muhammad Ali and Muhammad Riaz P.Ws. Muhammad Riaz (P.W.5) has corroborated his statement.
7. Zulfiqar Ali, S.I. (P.W.1l) had conducted the investigation at the initial stage. He stated that Abdul Hakeem complainant made statement (Exh.PV) before him and signed the same in token of its correctness. He has proved the injury statements, Exh.PC/1, Exh.PD/1, Exh.PE/1, Exh.PP/1, Exh.PG/1 and Exh.PH/1. He has also proved the site plan without scale (Exh.PW). On 20-5-2005 he received an information regarding demise of Allah Dewaya and added section 302, P.P.C. He has proved the memo. Of recovery (Exh.PL) regarding `Sota' P.1 at the instance of Abdul Hafeez, memo of recovery (Exh.RM) regarding `Sota' P.3 at the instance of Muhammad Maqsood appellant and memo of recovery (Exh.PN) regarding `Sota' P.2 at the instance of Zafar Iqbal, memo. Of recovery (Exh.PQ) regarding 'Sou' P.5 at the instance of Muhammad Akram, memo. Of recovery (Exh.PR) regarding hatchet P.6 at the instance of Malik Muhammad appellant, memo of recovery (Exh.PP) regarding hatchet P.4 at the instance of Akhtar accused, memo of recovery (Exh.PX) regarding Tractor FIAT/480 No,8834/VRF P.10 and memo. Of recovery (Exh.PY) regarding recovery of FIAT Tractor No,805/VRC P.11. Muhammad Iqbal (P.W.8) has corroborated his statement. Abdul Jabbar (P.W.16) has also supported the prosecution version regarding recovery of Tractors P.10 and P.11. The prosecution has also produced the reports of Chemical Examiners (Exh.PHH and Exh.PKK) and reports of the Serologist (Exh.PJJ and Exh . PLL).
8. Muhammad Rafiq since acquitted contended that the complainant party was forcibly constructing passage through his land falling in Khasra No,24/19/2 and when he forbade them from illegal construction of the passage on his land, they attacked Luqman, Zafar Iqbal, Maqsood, Muhammad Nawaz and Abdul Hafeez and caused injuries to their persons and during the scuffle, the complainant party had also sustained the injuries but they subsequently caused self- inflicted injuries also. It was also contended that the complainant party was aggressor. Chand Khan appellant stated that he, Zafar Iqbal, Maqsood, Muhammad Nawaz and Abdul Hafeez were attacked and injured by the complainant party. Muhammad Rafique produced the certified copy of the plaint in suit for permanent injunction titled `Ghous Muhammad etc. v. Muhammad Rafique, etc.' (Exh.DF), certified copy of written statement in the said suit (Exh.DG), certified copy of the statement of Ghous Muhammad recorded in the said suit (Exh.DH), certified copy of the statement of Muhammad Rafique recorded in the said suit (Exh.DI), certified copy of the judgment dated 5-4- 2005 of civil court passed in the said suit (Exh.DJ), certified copy of the decree (Exh.DK), certified copy of the register of record of rights (Exh.DL), certified copy of the Parcha Khatooni (Exh.DM), certified copy of the memorandum of appeal (Exh.DN), certified copy of the judgment dated 24-4- 2005 of the learned ADJ (Exh.DO), certified copy of the decree (Exh.DP), copy of F.I.R. No,98 of 2005 (Exh.DQ), certified copy of an application dated 25-4-2005 along with interim orders (Exh.DR), certified copy of the interim orders of the learned Civil Judge (Exh.pS), certified copy of the order dated 28-6-2006 (Exh.DT), certified copy of the application for the grant of temporary injunction filed by Abdul Hakeem (Exh.DU) and certified copy of an application for the restoration of the suit filed by Abdul Hakeem dated 22-3-2006 along with the order of the court dated 22-3-2006 (Exh.DV) in his defence evidence and the remaining accused persons relied upon the same.
9. After conclusion of the trial, the learned trial Court proceeded on to convict and sentence the appellants as aforementioned, whereas the respondents of Criminal Appeal No,178 of 2007 were acquitted.
10. Learned counsel for the appellants has contended that no passage existed at the spot as was held by the civil coup so the prosecution version that the fight took place as the appellants and others wanted to demolish the passage is false on the face of record, whereas the defence version that the complainant party wanted to construct the passage illegally from the land of Muhammad Rafiq is true and plausible; that D.W.3 has proved that Zafar Iqbal, Abdul Hafeez, Chand Khan, Muhammad Nawaz and Muhammad Maqsood had also sustained injuries but their injuries were not explained and the simple assertion in the F.I.R. That Chand Khan and Maqsood were also injured does not explain the nature of their injuries and circumstances under which they sustained the same; that P.Ws.7, 8 and 9 have not attributed any specific injury to Suleman and other appellants and only general role of infliction of injuries was attributed so they have wilfully withheld the truth; that it is established on the record that the complainant party resorted to lawlessness, made trespass in the land of Muhammad Rafiq, one of the accused persons and father of appellants, Abdul Hafeez and Chand Khan and caused Muhammad Akram and Afzal and also caused injuries to five persons so they had the right of self-defence; that the cross-version was put-forth immediately and after investigation the complainant and others were also challaned and that the learned trial court failed to appreciate the evidence properly and in its true perspective. In support of the contentions raised, reliance is placed on Muhammad Akram v. The State (2012 SCM R 440) and Syed AU Bepari v. Nibaran Mullah and others (PLD 1962 SC 502).
11. Learned DPG and learned counsel for the complainant have vehemently controverted the above arguments. It is stated that the time, date, place of occurrence and presence of appellants are admitted; that the injured P. Ws. Have fully supported the prosecution version; that the medical evidence lends support to the ocular account; that the injuries sustained by Chand Khan and Maqsood were duly explained, whereas the remaining three persons have caused self-inflicted injuries and that the thoroughfare was being demolished by the appellants and acquitted persons and when forbidden, they resorted to aggression. In support of the contentions raised, reliance is placed on Muhammad Nadeem alias Deemi v. The State (2011 SCM R 872).
12. When two cross-versions are put-forth and persons from both sides are found to have sustained injuries then it becomes imperative for the court to strive to unearth the truth through minute appraisal of the evidence by placing the respective contentions of the prosecution and defence in juxtaposition. It is a matter of common knowledge that none of the parties comes up with full truth and they try to mould the circumstances according to their own wishes. It is, however, a proven fact that the human beings may tell lies but the circumstances and documents seldom.
In this case the bone of contention is passage, which according to the complainant, exists at the spot and the accused persons came there while armed along with Tractors to demolish the same, whereas the contention of the accused is that no such passage ever existed on the land of accused Muhammad Rafique, who is father of four other accused persons and close relatives of the remaining. It is admitted that Ghous Muhammad and Zulfiqar, etc., are closely related to the complainant party. They had filed a suit for mandatory injunction against Muhammad Suleman and Muhammad Rafique, etc., with the prayer that they be directed to restore the demolished passage in Khasra No,24/19/2. This suit was filed on 26-5-2004 and was dismissed on 5-4-2005.
The appeal against the judgment of the trial Court was also dismissed on 24-5-2005. It is thus obvious that no passage existed at the spot on the day of occurrence i,e, 15-5-2005 so the contention that the appellants and co-accused persons had come to demolish the passage is against the record. On the other hand, the contention that the complainant and P.Ws. Along with others had come there to construct the passage appears . To be nearer to truth. Naturally the appellants and other accused persons were not required to demolish the Passage, which never existed.
13. It is true that the complainant had mentioned in the F.I.R. That Chand Khan and Maqsood appellants were also injured at the time of occurrence but neither their injuries were specifically mentioned nor it was stated as to how they had sustained the injuries. D.W.3 has admitted in the cross-examination that Zafar Iqbal and Chand Khan were also produced for medical examination at the same time when P.Ws. Were produced for the said purpose. It is further stated by the witness that Muhammad Nawaz, Abdul Hafeez and Muhammad Maqsood were also brought by the Police for examination at 2-30 a.m. On 16-5-2005. The probable time of sustaining of injuries by all these persons and the deceased and other P.Ws. Was also the same. It is categorically stated by the Doctor that the injuries of the accused persons were not self-inflicted or caused by friendly hands.
The prosecution has not explained as to how Abdul Hafeez, Zafar Iqbal and Muhammad Nawaz had sustained injuries. Even in the witness box, the complainant could not refuse that Hafeez, Nawaz, Zafar, Chand Khan and Maqsood also remained admitted in the Hospital. He also stated that he does not know as to how Chand Khan and Maqsood sustained injuries but added that he saw that blood was oozing from their bodies. These facts clearly show that he has tried to conceal the truth. He also showed his ignorance regarding filing of the suit for mandatory injunction by Ghous Muhammad, etc. And dismissal of the suit filed by them but these facts stand proved through documentary evidence available on record. It is also obvious that after dismissal of the suit and appeal, he filed another suit for perpetual injunction by concealing the earlier dismissal of the suit for mandatory injunction on 5-4-2005 and obtained the order to maintain the status quo.
The court of competent jurisdiction had already held that no passage existed on the land of Muhammad Rafique so status quo would have simply meant that no passage should be constructed. In these circumstances, the defence version that an attempt was made to construct the passage appears to be true. The site plan with scale (Exh.PB) and site plan without scale (Exh.PU) show that the house of Abdul Hakeem complainant is towards East of the land of Muhammad Rafique, whereas a passage in South-North direction is towards its West and that no passage abuts and goes from it towards the house of the complainant. The complainant and P.Ws.
Were shown to be present at point No,2, which is in the land of Muhammad Rafique since acquitted, who is father of appellants Abdul Hafeez and Chand Khan. The infliction of injuries to the appellants Chand Khan and 4 others shows that the complainant and others were also armed. In these circumstances, Muhammad Rafique and other accused persons had the right of self- defence, which extended to their persons and property. The injuries to these five persons were never explained. Just a passing remark that Chand Khan and Muhammad Maqsood also sustained injuries without disclosing the persons, who had caused the same and the arms used by them and by wilfully concealing the injuries of remaining three other persons of the accused party, the prosecution has made an attempt to withhold the truth. The defence version, is more plausible and nearer to truth than the case put-forth by the prosecution. In these circumstances, the appellants being fully justified in protecting their property and persons could have inflicted the injuries. The learned trial Court failed to keep in view the above facts and did not appreciate the evidence in its true perspective. The accused persons could have not been convicted and sentenced for commission of any offence in the above circumstances and deserved acquittal. In this respect, reliance is placed on Muhammad Akram v. The State (2012 SCM R 440). The convictions recorded and sentences awarded to the appellants are, therefore, not sustainable in the eyes of law. The impugned judgment is set aside by accepting Criminal Appeal No,164 of 2007 and Criminal Appeal No,180 of 2007. Criminal Appeal No,178 of 2007 and Criminal Revision No,137 of 2007 are accordingly dismissed being devoid of force. The convictions recorded and sentences awarded to all the appellants are hereby set aside. Murder Reference No,317 of 2007 is answered in the negative.
Appellant Suleman is in Jail and he be released forthwith if not required to be detained in any other case. The remaining appellants are on bail and are discharged of the liabilities of their bail bonds.