MUHAMMAD ZAFARULLAH, J.-Bashir Ahmad aged. 31 son of Atta Elahi, resident of Chak No. 285/J. B.
Tehsil and District Lyallpur has been convicted and sentenced to death by the learned Additional Sessions Judge, Lyallpur under section 302, for causing the murder of Mohammad Sharif. He has also been sentenced to a fine of Rs. 2,000 which if realised is to be paid to the heirs of the deceased.
2. The occurrence took place on 12th September, 1972 at about 9-30 a. m in Killa No. 14 of Square No. 20 of Chak 285/J. B. Tehsil Toba Tek Singh, Lyallpur District. The report was lodged with the police the same day at 12-30 p. m. At Police Station Toba Tek Singh by Mohammad Shafi P. W.
3. This Murder Reference (No. 250 of 1976) has been received from the learned Additional Sessions Judge, Lyallpur. Bashir Ahmad has also filed an Appeal (No. 1121 of 1976) against his conviction and sentence. Both the murder Reference and the Criminal Appeal are being disposed of together.
4. The allegations against the appellant and four others (acquitted by the learned Additional Sessions Judge) were that in an effort to force their way into possession of certain disputed land, the four accused attacked Mohammad Sharif deceased and his brother Shafi P. W., in which Sharif was killed while Shafi escaped as he had taken shelter behind a tree and a khal.
5. According to medical evidence, the death was caused due to injury to right lung, shock and haemorrhage which resulted in death. There was a single injury caused by a fire-arm weapon. It was a scorched inlet wound with inverted edges 1/3" x 1/3" penetrating right chest cavity 1" from medium line at the level of nipple. One bullet was found in right chest cavity. The death was immediate.
6. The land in dispute has a long history. It was allotted to the accused. Subsequently it was allotted and confirmed in the name of the complainant party, but the accused party continued to hold on to possession even though, they had not succeeded in establishing their case before the settlement and civil Courts. Prosecution has tried to prove that the parties had come to a compromise through the panchayar and this land where the occurrence took place had been handed over to the complainant party, but that the accused party subsequently changed their mind and tried to get back the possession when the occurrence took place.
7. The learned counsel for the appellant has stated that the case of the appellant (accused) is that they had been in possession of this land continuously since1947 and at no stage did any compromise take place or any possession delivered. The complainant had been trying to take over possession forcibly and at two stages prior to the occurrence, cases were registered against them, one under section 147, P. P. C. And second time under section 325. The occurrence was the third attempt in the same direction during which the accused were encircled and attacked with dangerous weapons and that one Rafiq from the accused party fired from his gun in the exercise of his right of private defence which hit Sharif and caused his death.
8. The learned Additional Sessions Judge has come to the conclu--sion that there was no truth in the prosecution story of change of possession even though on 18th July, 1972, forcible possession was taken of certain area of this land which resulted in registration of a case. He is also of the view that at no stage an unlawful assembly was formed, thus coming to a finding that an offence under section 147, P. P. C. Was not made out. Regarding the attack on Shafi P. W. The learned Judge is of the view that Bashir, Abdul Ghafoor and Mohammad Din who were said to be armed with fire-arms, made only ineffective fire on Shafi, even though there was no hindrance between them and Shafi P.
W. He has, therefore, acquitted the accused from a charge under section 307, P. P. C. Also. The learned Additional Sessions Judge has, however, believed the story of the prosecution inasmuch as it relates to the causing of death of Sharif deceased by Bashir appellant.
9. The learned counsel for the appellant has argued that the prosecu--tion has not been able to prove their case. Their story was not worthy of reliance as it has been disbelieved in respect of the remaining four co-accused and also regarding the factum of possession. He has also submitted that the weapon of offence has not been recovered and that since the accused were to possession of this land, there was no occasion for them to attack the complainants. The learned counsel has also taken the plea that the eye-witnesses cannot be believed as they do not explain the scorching of the wound, which must have been inflicted from very close quarters, while the eye-witnesses mention it to be from some distance.
10. It is correct that onus of proof is always on the prosecution but it cannot be said that any of the material should be excluded from consideration. The judgment has to be based on consideration of the A entire record and circumstances of the case. The appellant in his statement has admitted the occurrence, although he has stated that the shot was fired not by him but by one of his companions, namely, Rafiq from a gun and that too in exercise of the right of private defence. No further effort need be made to prove that the appellant was present on the occurrence, except that Sharif died of a bullet and not of gunshot.
1l. The argument of the learned counsel for the appellant, that the entire prosecution evidence should be rejected as it has not been believed in certain material aspects, cannot be accepted as the principle of trying to find the truth from a whole lot of exaggerations and perhaps mis-- statements will have to be followed. In the present case while certain doubts could be expressed regarding the quality of evidence of Shafi and Mehdi Khan P. Ws. As they are closely related to the deceased, the testimony of Abdur Rehman P. W. Cannot be rejected. His dera is only a killa away, and his presence at or reasonably close to the place of occurrence would be natural. The litigation concerning consolidation is too old in time, as it was settled nearly ten years before the present occur--rence. The weapon of offence has not been recovered but in view of the ocular evidence that should be of no material consequence.
12. The medical evidence, however, casts some shadow on the prosecution evidence. While the witnesses have stated that shooting took place from some distance, the medical evidence finds scorching of the wound, indicating a close-range firing. It appears that in ail probability sometime during the argument, which must take place on such occasions, a shot was fired from close range, and; falling down of Sharif deceased ended the argument tragically.
13. The learned counsel has set up a case of exercise of the right of self-defence, which was really not available to them. It cannot believed that there was any apprehension of causing death or grievous hurt. The evidence does not show that the complainants had come to do bodily harm to accused party. It was at best a case of trespass ever land and the right of defence of property will not be available, under the circumstances of the case.
14. The question of sentence must now be considered. While the defence admits that at least one of them, Rafiq had a gun with him, it can admit of reasonable explanation that .In view of the two previous attempts at forcible eviction from the land, the accused party bad made arrangements to meet any eventuality. Even then it will not be right to award the maximum penalty to the accused as it was the complainant party who had invited the trouble.
Under these circumstances, while the conviction and sentence of fin of Mohammad Bashir appellant is maintained, the sentence of death is converted to imprisonment for life. With this modification the appeal is dismissed and the reference is answered accordingly.
The death sentence is not confirmed.