MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned criminal appeal filed jointly by appellants Ibrahim, Ramzan and Muhammad Aslam, who were convicted by learned Additional Sessions Judge, Okara in a Cross-Version case of FIR No,57/05 dated 7-5-2005 under section 302/34, P.P.C. At Police Station, Cantt. Okara vide impugned judgment dated 28-4-2007 and sentenced as follows:--
(1) IBRAHIM
(2) RAMZAN
(3) MUHAMMAD ASLAM
(i) Life each under section 302(b), P.P.C. As Tazir and to pay Rs,1,00,000 as compensation to the legal heirs of the deceased Rafique under section 544-A, Cr.P.C. And in default whereof to further undergo SI for six months each.
They were also extended the benefit of section 382-B, Cr.P.C.
Like-wise Criminal Revision Petition No,477 of 2007 filed by Muhammad Hanif complainant of cross version against respondents/ appellants/convicts namely Ibrahim, Ramzan and Muhammad Aslam for enhancement of their sentences from life to death shall also be disposed of by this single judgment.
2. Pithily, the prosecution saga as disclosed by Muhammad Hanif complainant of cross version of above referred case in his statement Exh.PL recorded on 7-5-2005 wherein he stated that two days prior, his father Muhammad Siddique son of Haji Jamal Din prevented Muhammad Ibrahim, Muhammad Ramzan sons of Nazar Muhammad to install the thresher machine for threshing the wheat crop, as stay order had been issued from the court and his crop on three acres may not be picked till the decision of the court. On the day of occurrence, Muhammad Ibrahim appellant armed with pistol .30 bore, Muhammad Ramzan appellant armed with hatchet and Muhammad Aslam appellant armed with sot a along with other labourers started threshing out the wheat crop with thresher machine. His father Muhammad Rafique, Muhammad Abbas son of Ameer, Mushtaq son of Falak Sher and Safdar son of Yousaf had gone to Muhammad Ibrahim etc. On seeing them, Muhammad Ibrahim and Muhammad Ramzan came into motion and raised Lalkara that Rafique and his companions may not go alive. He be taught a lesson for obtaining stay from the court.
Muhammad Ibrahim appellant started indiscriminate firing. On hearing hue and cry, he, Nasir son of Ramzan and brother Latif came at the spot. They saw that Muhammad Ibrahim appellant made a pistol blow which hit on the neck of his father on left side. Muhammad Ramzan appellant inflicted hatchet blows one after the other, which hit his father on forehead and left ear. Muhammad Aslam appellant inflicted blows with his sota which hit his father on chest, left shin/calf and head who fell down after sustaining injuries. Then Muhammad Ibrahim appellant made two fire shots which hit his father on left shin/calf, due to which his shin/calf was fractured. The accused have also caused injuries to the companions of his father, with hatchet and sotas. His father succumbed to the injuries at the spot. P.Ws. Had seen the occurrence.
Motive behind the occurrence was that his father had a share of three acres of agricultural land with accused and the accused persons were in possession of that land. His father had obtained stay order from the court and due to this grudge the accused persons had committed the murder of his father. On his statement cross version was lodged.
4. After culmination of usual investigation, report under section 173, Cr.P.C. Was channelized by placing the names of appellants in column No.3 of the said report.
5. Learned trial court after observing all the pre-trial codal formalities, indicted the appellants to which they did not plead guilty and claimed trial. There after, the prosecution was directed to lead its evidence in order to substantiate the charge.
6. At the trial, the prosecution, in order to prove its case, produced 9 witnesses in all.
Dr. Muhammad Akram, M.O. DHQ Hospital, Okara (P.W.1) deposed that on 8-5-2005 at 2-00 p.m., he conducted post mortem examination on the dead body of Muhammad Rafique son of Haji Jamal and observed as follows:- INJURIES
(i) A lacerated wound measuring 1 cm x 1 cm on left side of neck. The wound was muscle cut deep.
(ii) A lacerated wound measuring 5 cm x 2 cm, bone exposed on right side of the scalps and forehead, 5 cm above the right eye brow. Under lying bone was fractured.
(iii) A incised wound measuring 4 cm x 1/2 cm starting from the tragus of the left ear towards the left cheek.
(iv) Left ear pinna was cut down in its middle up to the root, incised wound.
(v) A lacerated wound measuring 3 cm x 2 cm bone exposed on left mastoid process behind the left ear.
(vi) An abrasion measuring "2 cm x 2 cm on chin.
(vii) An abrasion measuring 2 cm x 2 cm on front of right leg in its middle, tibia fibula were fractured.
(viii)A lacerated wound measuring 3 cm x 2 cm on anteromedial aspect of left leg, 12 cm above the left ankle joint. Tibia fibula were fractured.
REMARKS In his opinion, the cause was death in this case was injury to the vital organ (brain) leading to shock as a result of injury No,2. All injuries were ante-mortem. Injury Nos.1, 2, 5, 6, 7 and 8 were caused by blunt edge weapon and injury Nos.3, 4 were caused by sharp edged weapon.
Probable time that elapsed between injury and death was within 1/2 hour and between death and post mortem was within 12 to 24 hours.
Exh.PA was the correct carbon copy of the post-mortem report, and Exh.PA/1 and Exh.PB/2 were the sketches of injuries, the same bore his signatures.
7. Learned DDA renounced P. Ws. Namely Nasir Ali as being won over on 21-7-2006 and thereafter by tendering in evidence reports i,e, Chemical Examiner regarding blood stained earth Exh.PQ and that of Serologist Exh.PR, Chemical Examiner regarding Trangal Exh.PS and that of Serologist Exh. PT, chemical Examiner regarding hatchet Exh. PU and that of Serologist Exh.PV, Chemical Examiner regarding as. Sota Exh.PW and that of Serologist Exh.PX vide his statement dated 20-11-2006, closed the prosecution case.
8. Thenceforth statements of the appellants were recorded under section 342, Cr.P.C. Wherein they denied the charges and claimed innocence. They did not opt to make statements on oath as required under section 340(2), Cr.P.C. However, appellants Ibrahim and Ramzan opted to produce defence evidence and thereafter by producing D.W.1 Dr. Muhammad Akram, M.O. DHQ Hospital, Okara who conducted post-mortem examination of deceased of FIR's case namely Sardar and observed two injuries on his body and then appellant Muhammad Ramzan on 10-3-2007 by producing certain documents Exh.DD to Exh.DH, closed defence evidence.
Appellant Ibrahim (lifer) while answering to the question "why this case against you and why the P.Ws. Have deposed against you?" stated as follows:-- "I have been falsely involved in this case due to enmity and grudge on account of civil litigation.
The P.Ws. Are closely related inter se and to the deceased. They have given false evidence against me due to enmity and grudge. Muhammad Hanif, Latif and Nasir P.Ws. Were not present at the spot at the time of occurrence, nor they had witnessed the occurrence. After the occurrence, they were summoned from their houses and set up false eye-witnesses. Their evidence initially given before police and version set up in Exh.PL was belied by medical evidence as no firearm injury alleged attributed to me by them, was found on the person of Muhammad Rafique deceased. After the post mortem examination, they changed the attribution assigned to me in Exh.PL with dishonest intention with a view to bring their evidence in line with medical evidence. They had dishonestly fabricated the version of Trangle against me. The P.Ws. Have suppressed the real facts in order to save their persons challaned in the murder case, in case State v. Abbas and others. The P.Ws. Have given false evidence against me."
Appellant Ramzan in reply to the same question deposed in line with the above said appellant.
Appellant Muhammad Aslam in reply to the same question stated infra:-- "Muhammad Hanif and Latif P.Ws. And Nasir were neither present at the spot at the time of occurrence nor he has witnessed occurrence. They are related inter se and to the deceased as well. They have given false evidence against me due to enmity and grudge on account of civil litigation. I have been falsely involved in this case being son of Ibrahim co-accused. I have been falsely involved in this case."
9. At the conclusion of trial, the appellants were convicted and sentenced as mentioned op-cit. Hence, instant appeal.
10. Learned counsel for the appellants while arguing on the appeal has relied upon last part of the chronological paragraph No,22 of the impugned judgment and has particularly pointed out these parts which are reproduced as follows:-- "Present accused in cross version were working in the field. Complainant, party in cross-version, while armed with deadly weapons have launched assault and there was free-fight between the parties and during the occurrence Muhammad Rafique and Sardar Muhammad died. Liability of Ibrahim and Ramzan are that with their common intention, they gave injuries on the persons of deceased, which is supported by the opinion of the doctor which are attributed to Ibrahim and Ramzan and both the said accused are held guilty under section 302(b), P.P.C. As there are special mitigating circumstances to award lessor punishment because they are not aggressor, but the other party was aggressor. In these circumstances, both Ibrahim and Ramzan are convicted under section 302(b), P.P.C. Each and sentenced to imprisonment for life each. They are also directed to pay compensation of Rs,1,00,000 (one lac) each and in default thereof they will have to further undergo SI for six months each. Benefit of section 382-B, Cr.P.C. Shall be given to them. They are in custody. They be sent back to jail to serve their sentences awarded to them today by this court."
And then developed his arguments that it has been admitted by the learned trial court that complainant party of the FIR initiated aggression, appellants acted in the right of their self-defence and if during the fight, right of self-defence is exceeded despite this fact the accused under the law deserves to be acquitted because said right had genuinely been exercised and the same cannot be weighed through a single scale. Further submitted that admittedly the land where the incident took place was in possession of the appellants' party and the death of Sardar Muhammad deceased of the FIR's case has been suppressed by the complainant party in the cross version.
Learned counsel has referred to sections 96 and 97 of the P.P.C. To establish that by virtue of exceptions contained in Chapter-IV of the general exceptions provided by Pakistan Penal Code and while relying upon 2012 SCM R 440 and then by citing Hadith of the Holy Prophet Muhammad (may peace be upon him) bearing No,259 published in Sahih Muslim rendered into English language by Abdul Hamid Siddiqi (Vol. I) has prayed for acceptance of appeal. Lastly, as a ace, it has been argued that legal heirs of deceased Sardar Muhammad have effected compromise with Muhammad Abbas death convict of the FIR's case and he has been acquitted by this court, therefore, the guilt of death convict Muhammad Abbas is deemed to have been proved and this fact further fosters case of the appellants for their acquittal.
11. Learned DPG assisted by learned counsel for the complainant has astutely, deftly and in a manner of brinkmanship has striven to diverse the cross-version from the FIR's case in the light of motive by agitating that deceased was driver of thresher having no concern, whatsoever, with the disputed property allegedly having been occurred between the brothers; Sardar Muhammad deceased of the FIR's case was murdered by Muhammad Abbas death convict (since acquitted on compromise) and in order to create a defence an innocent sole, the deceased of the present cross version was assassinated in relentless way and so far as the finding of the learned trial Court as to aggression and aggressed upon is concerned, learned trial Court in the same paragraph also held the case to be a case of free-fight In this way, how the right of private self-defence can be pleaded. It has been argued that each of the appellants has been attributed specific injuries on the body of deceased; post-mortem report reveals eight injuries with blunt means and statements of P.W.6 Muhammad Hanif and P.W.7 Muhammad Latif, the eye-witnesses are not only unison but also compatible to the post-mortem report, in this way, the prosecution has proved its case against the appellants' inclusive of the evidence of recoveries of crime weapons and has thus solicited for dismissal of the appeal.
12. Learned counsel for the complainant has phlegmatically in an exquisite way has argued on the connected revision petition (Criminal R. No,477 of 2007) through which it has been sought for the enhancement of quantum of sentence of the appellants/respondents from life to death by arguing that since the occurrence has not been denied and the learned trial Court has held the appellants responsible for the murder of deceased Muhammad Rafique and convicted them each under.
Section 302(b), P.P.C. To the servitude of life imprisonment, therefore when the case has been proved, then normally penalty for murder is death sentence and prayed for its imposition accordingly.
13. Arguments heard assiduously as well as intently. Record has been explored minutely.
14. The appellants were recommended for prosecution in cross-version. Driver introduced by Muhammad Hanif P.W.6 originated from FIR's case registered through FIR No,57 dated 7-5-2005 under sections 302/34/148/149, P.P.C. On the complaint of Muhammad Sultan at Police Station Cantt., District Okara in which Sardar Muhammad was injured through firearms by Muhammad Abbas to death and the tractor through which parties were busy was also caused damage through fire shots. In the said incident Muhammad Rafique deceased of the cross version was murdered. Muhammad Abbas, the death convict of the State case has been acquitted on account of compromise. Muhammad Haneef while introducing the cross version did not explain the death of Sardar Muhammad deceased of the FIR's case. In this way, suppression of magnum fact has been made; this fact alone can be taken sufficient to make a big doubt in the prosecution case.
Anyhow, besides the instant factor, others are there which may be discussed herein after.
Attribution roles of each of the appellants are that Muhammad Ibrahim appellant was holding a .30 bore pistol with which he caused injuries on the left side of neck of Muhammad Rafique and Muhammad Ramzan appellant caused successive hatchet blows hitting on the fore-head and on left ear of the deceased. Thereafter, Muhammad Aslam appellant caused Sota blows on the chest, right calf and on head of deceased while Muhammad Ibrahim appellant made two fire shots which hit on the left calf of the deceased. Post mortem report of the deceased has shown no injury having been caused with firearm. According to the opinion of the doctor, death of the deceased had occurred on account of injury No.2 which has exposed the bone on right side of the scalp and underlining bone was found fractured. Injuries Nos.1, 2, 5 to 8 were described to have been caused by blunt means whereas injuries Nos.3 and 4 were declared to have been caused with sharp edged weapon and in this way, role attributed to Muhammad Ibrahim appellant has not been found likened by the post mortem report of the deceased. Learned trial Court in the impugned judgment at the later part of continuum paragraph No,22 has categorically observed that present accused in the cross version had been working in the field. Complainant party in the cross version while armed with deadly weapons launched assault and there was free-fight between the parties, during the course of which Muhammad Rafique and Sardar Muhammad died. Liabilities of Muhammad Ibrahim and Muhammad Ramzan (appellants) are that with their common intention, they caused injuries on the person of deceased which is supported by the opinion of the doctor which are attributed to Ibrahim and Ramzan appellants and both the said appellants are held guilty under section 302(b), P.P.C. As there are special mitigation circumstances towards lesser punishment because they were not aggressor but the other party was aggressor.
Now, by going through these lines of the impugned judgment, it has become crystal clear that the complainant party of the FIR's case was the aggressor and so far as free-fight of the parties is concerned, appellant Muhammad Aslam, in this way, even in absence of any specific plea of pleading of right of self defence, the court can infer interlineally right of self-defence has accrued in favour of the appellants in the circumstances of the case. In this way, they have been protected by sections 96 and 97 of. Pakistan Penal Code. An Hadith of the Holy Prophet Muhammad (may peace be upon him) No. 259 published in Sahib Muslim (Volume-I) (Chapter-LXIII) rendered into English by Abdul Hamid Siddiqi has illuminated more the jural point in this case and for the better understanding, the same is reproduced as follows:-- "Abu Huraira reported: A person came to the Messenger of Allah (may peace be upon him) and said Messenger of Allah, what do you think if a man comes to me in order to appropriate my possession? He (the Holy Prophet) said: Don't surrender your possession to him. He (the inquirer) said: If he fights me? He (the Holy Prophet) remarked: Then fight (with him). He (the inquirer) again said: What do you think if 1 am killed? He (the Holy Prophet) observed: You would be a martyr. He (the inquirer) said: What do you think of him (Messenger of Allah) if I kill him. He (the Holy Prophet) said: he would be in the Fire."
Hon'ble Supreme Court of Pakistan in case titled Muhammad Akram v. The State (2012 SCMR 440) has held in posts (a)(b)(c) infra:--
(a) Penal Code (XLV of 1860)--- "Ss.302(b)(c) & 100---Reappraisal of evidence---Two versions--- Principle---In case of two versions, one is to be believed in toto and not in piecemeal."
(b) Penal Code (XLV of 1860)--- "Ss. 100 & 302(b)(c)---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd-Re-appraisal of evidence---Right of selfdefence---Benefit of doubt---Cross-version---Effect---Trial Court convicted accused under S. 302(b), P.P.C. And sentenced him to death but High Court converted conviction under S.302(c), P.P.C. And sentenced him to fifteen years of imprisonment-- Validity- Except for oral statements of eye-witnesses there was nothing on record which could establish the presence of both the eye-witnesses at the spot and as their presence at the spot was doubtful, no reliance could be placed on their testimonies to convict accused on a capital charge---Same set of evidence was disbelieved regarding involvement of co-accused, as such, the same evidence could not be relied upon in order to convict the accused on a capital charge as statements of both eye-witnesses did not find any corroboration from any piece of independent evidence--- Report of Forensic Science Laboratory regarding status of pistol, recovered from accused along with crime empties, though the same were sent to Forensic Science Laboratory, was not produced by prosecution---Mere recovery of pistol from accused alone was not sufficient to corroborate ocular account which was not believed---When both versions were kept in juxtaposition, the version put forward by accused appeared to be natural and was believed---Accused received five firearm injuries at the hands of deceased and his companions fell semi-unconscious and in such, state of affairs only and only in order to save his life fired a single shot which hit the deceased due to which he lost his life---Explanation and stance of accused was natural as the deceased and his companions were not abstaining themselves from further firing on the accused and their further firing could have taken life of accused, who had acted in his self-defence and not exceeded the same---Supreme Court set aside conviction awarded to accused by both the courts and he was set at liberty---." (B, D & E)
(c) Penal Code (XLV of 1860)--- "S. 97---Right of self-defence---Scope---Right of self defence is recognized by law but it is to be exercised if circumstances so warrant---Every citizen is entitled to resist attack and defend himself and his property when he or his property is faced with danger and when immediately State machinery is not readily available---Citizen is entitled to protect himself and his property in circumstances."
15. In these circumstances, what has been highlighted above, the tout-ensemble is that prosecution has not been able to prove its case against the appellants beyond shadow of reasonable doubts and right of private self-defence has legitimately been exercised by the appellants and they have committed no offence. Resultantly, instant appeal is allowed and convictions sentences of all the appellants are set aside and they are acquitted of the charges impugned against them by extending benefit of doubt. All the appellants are on bail by suspending their quantum of sentence. Their sureties are discharged from their liabilities.
16. So far as Criminal Revision Petition No,477 of 2007 filed by Muhammad Hanif petitioner/complainant of cross-version against respondents/appellants/convicts namely Ibrahim, Ramzan and Muhammad Aslam for enhancement of their sentences from life to death is concerned, since the appeal of the respondents/convicts has been allowed, therefore, the instant revision petition has lost its relevance and is disposed of as being infructuous.