SHAHID HAMEED DAR, J.---This judgment shall dispose of criminal Appeal No,568 of 1994 instituted by Atta Muhammad (complainant/appellant) against acquittal of respondents Nos.1 to 9, namely Ilam Din, Akbar, Liaqat, Asghar alias Akbar, Akram, Aslam alias Ashraf, Muhammad Din alias Manna, Shaukat and Muhammad Ramzan, vide judgment dated 2.12.1992, pronounced by learned magistrate section 30,. Sheikhupura, on conclusion of their trial in private-complaint under sections 325, 326, 452, 148, 149, P.P.C., which pertained to an occurrence, that oozed from the statement of Atta Muhammad (P.W.3), rendered by him on 7.2.1989 before the investigating officer during investigation of case-FIR No,45/1989, dated 1.2.1989, under sections 307, 452/34, P.P.C. Read with sections 325, 324, P.P.C. (added during investigation on 7.2.1989), registered at Police Station Farooqabad, District Sheikhupura.
2. The FIR case (supra) got registered by Ilam Din (respondent No,1 herein) with the contention that he purchased Ehata measuring 6/7 marlas, situated in village Jhandianwali, for Rs,12,000/- from Bashir Ahmad about nine months before; Muhammad Anwar (P.W.2 herein) occasionally attempted to grab the possession thereof, but he failed to do so; he instituted a civil suit against Muhammad Anwar before the learned Civil Judge Sheikhupura and obtained an injunctive order qua the said Ehata; Muhammad Anwar also filed a suit about the said place before the Senior Civil Judge, Sheikhupura; it was at about 7.30 p.m. On 1.2.1989, he was present at the Ehata when Muhammad Anwar (P.W.2 herein) armed with .12-bore gun, Munir Ahmad, armed with .12-bore gun and Muhammad Sarwar, armed with carbine scaled on the wall of his haveli and forcibly entered therein; they thrashed and befell him onto the ground; on hearing the noise, his paternal nephew Shaukat Ali (respondent No,8 herein) reached there to rescue him; Muhammad Anwar fired by means of his gun and hit right jaw of Shaukat Ali, who instantly fell onto the ground; in the meanwhile, Muhammad Akbar (respondent No,2 herein), armed with hatchet also reached there to help him; Munir Ahmad fired through his gun, which landed at left wrist of Muhammad Akbar; his son Muhammad Aslam (respondent No,6 herein) rushed to the spot and he was fired at by Muhammad Sarwar, which injured his right hand; many a people of the village raised alarm in the street, but the intruders kept firing; Atta Muhammad (P.W.3 herein), while standing at his house, exhorted loudly and induced his companions to finish Ilam Din and others; the womenfolk entreated the accused and they ran away; he along with his companions shifted the injured to Sheikhupura hospital, where Shaukat Ali's condition was serious; the attack was carried out by the accused with a grudge, as to purchase of the said Ehata by him.
' During investigation of the above-said case, Atta Muhammad (P.W.3) made statement before the investigating officer on 7.2.1989 and attempted in vain to setting up the cross-case, which, as per report under section 173, Cr.P.C., was found false by the police. Being aggrieved of the conduct of the police, he filed private-complaint against respondents Nos.1 to 9 on 9.12.1989, about ten months after the alleged occurrence, with the contention that he along with his son Muhammad Anwar (P.W.2) was present at his house on 1.2.1989 when Ilam Din armed with sota, Akram armed with gun, Liaqat armed with gun, Asghar alias Akbar armed with sota, Akram armed with hatchet, Aslam alias Munna armed with hatchet, Aslam alias Ashraf armed with sota, Ramzan armed with sota and Shaukat armed with sota (respondents Nos.1 to 9) jumped over the outer wall of his house and forcibly entered therein; Ilam Din (respondent No,1) raised lalkara that Anwar be taught a lesson for having filed an application before the police whereon Asghar alias Akbar (respondent No,4) inflicted a sota blow on the head of his son Muhammad Anwar, Aslam (respondent No,6) also dealt a sota blow on his head, due to which he fell on the ground; Ilam Din (respondent No,1) gave a sota blow at the left calf of Muhammad Anwar, whereafter all the intruders jointly injured his fallen son; on hearing the noise, his other son Muhammad Sarwar reached the spot, who attempted to snatch gun from Liaqat (respondent No,3) and in this scuffle it suddenly went off and the fire hit Shaukat and Akbar Ali (respondents Nos.8 and 2); the trespassers kept firing with their guns and shouted loudly, if anyone drew near they would kill him; in the meanwhile, Abdul Hameed (P.W.4) and Muhammad Saleem PW (not produced) reached the spot, who beseeches the invaders and rescued his injured son from them; Muhammad Anwar was shifted to DHQ Hospital, Sheikhupura for treatment of his injuries, hereafter he was referred to Services Hospital Lahore, as his condition turned serious; he had suffered seventeen (17) injuries during the occurrence.
3. Learned trial court took up the trial of both the episodes, i.e, the FIR-case and the complaint- case, side by side inter-se and continued it till 2.12.1992, when it pronounced the impugned verdict of acquittal in favour of the respondents (Nos.1 to 9) in the complaint-case and separately delivered a verdict of guilt against all four inductees of the challan-case by holding that they had committed the aggression against the complainant side of the FIR-case.
4. Insofar as the complaint-case is concerned, learned trial court indicted the respondents for offences under sections 325, 326, 452, 148, 149, P.P.C. And asked the complainant-side/prosecution to adduce evidence against them, in obedience thereof, they produced five witnesses in all, including Dr. Abdul Bari (P.W. 1), Muhammad Anwar injured (P.W.2), Atta Muhammad (complainant/P.W.3), Abdul Hameed (P.W.4) and Mehmood Ahmad Khan Inspector/I.0. (P.W.5), to establish the charge against them. Astonishingly, it was the complainant and not the public- prosecutor, who pronounced the complaint-case closed on 13.2.1991 by submitting attested copies of the injury-statement (Exh.PA) of Muhammad Anwar injured and that of a couple of civil suits, under objection of the other side.
5. It was the respondents turn then to depose under section 342, Cr.P.C., which they did, one after the other, by professing their absolute innocence in the matter. They denied all the charges against them being false and pressed their innocence in the matter by contending that they had been falsely involved in this case due to previous enmity and party-friction. They did not opt to depose under section 340(2), Cr.P.C., but they intended to lead evidence in defence, which they probably didn't, as no such material is available on the record to verify it. The impugned judgment, however, tells that someone from them was examined under section 340(2), Cr.P.C. On 18.8.1992, but it cannot be known from the record as to who he was. Whosoever he might be, the impugned judgment revealed that he also tendered report under section 173, Cr.P.C. (Exh.DH) and closed the defence evidence. Learned trial court must have borne in mind that report under section 173, Cr.P.C.
Was merely a gist of the investigation, which could not be proved being inadmissible in evidence.
6. On conclusion of the trial in the complaint-ease, learned trial court held all the respondents innocent and acquitted them of the charge, by holding that they had acted in self-defence at the crucial hour. The challan-case, however, ended in conviction of the quartet, as noted earlier.
7. Learned counsel for the appellant, has strongly submitted that respondents Nos.1 to 9 being armed with lethal weaponry had committed aggression against the complainant-party, when they attacked him at his house and almost killed his youthful son Muhammad Anwar by inflicting seventeen (17) extensive wounds on his body; the disputed Ehata was in the possession of the appellant since long and acquitted-respondents had no concern with it; the accused of the FIR- case, who had been convicted and sentenced by the learned trial court on 02.12.1992 had been acquitted in appeal by the learned appellate court (Additional Sessions Judge, Sheikhupura) vide judgment dated 6.7.1998, whereby it was held that the complainant-party of the FIR-case had sparked off the aggression; learned Additional Sessions Judge, Sheikhupura also observed that respondent Shaukat Ali had been accidentally injured, when Sarwar PW (not produced) attempted to snatch gun from respondent Liaqat and in this struggle it suddenly went-off and discharged pellets hit him, besides his aide Akbar; the respondents did not say a word in their statements under section 342, Cr.P.C. As to how Shaukat Ali and Akbar had received firearm injuries nor they pleaded right of self-defence, which virtually meant that they had accepted the prosecution case true; the impugned judgment did not contain a single argument or reason as to on what/which material learned trial court had acquitted the respondents and dubbed the complainant-party as aggressors; the impugned judgment is frail by all means and it does not fit in with the settled principles of the law on the subject nor could it be considered a judgment either, within the scope of section 367, Cr.P.C.; the impugned judgment being illegal may be knocked-down and the case may be remanded to the learned trial court for a decision afresh. In support of his contentions, learned counsel has relied on Abdul Rashid Munshi and 3 others v. The State (PLD 1967 SC 498), Sahab Khan and 4 others v. The State and others (1997 SCMR 871), Ashiq Hussain and others v. The State and 2 others (2003 SCMR 698), Muhammad Osman v. The State (1992 PCr.LJ 88), Ghulam Hussain and others v. The State (1996 PCr.LJ 514) and Abdul Qayum v. The State (1996 PCr.LJ 1427).
8. In rebuttal of the above, learned counsel for the acquitted respondents has vehemently argued that the place of occurrence exclusively belonged to the respondents and they were in its possession being owner thereof for many months; the investigating officer, Mehmood Ahmad Khan, Inspector (P.W.5) categorically stated in his testimony that the occurrence had not taken place at the house of Atta Muhammad appellant and it was the haveli of Ilam Din (respondent No,1) where Shaukat, Akbar and Aslam had sustained injuries at the hands of their adversaries; the appellant and his companions being armed with deadly weapons attacked the respondents at their haveli so as to roguishly usurp possession thereof and they badly wounded Shaukat, Akbar and Aslam in the wake of their unlawful act; the trespassers were resisted bravely by the respondents, hence, they committed no wrong if Muhammad Anwar had received multiple injuries on his body during the occurrence, as against several firearm and blunt-weapon injuries to three persons of the latter-side; the right of exercise of self-defence directly flowed from the prosecution-case, so it was immaterial that the respondents had not taken a specific plea in this regard when they deposed under section 342, Cr.P.C.; the acquitted respondents have been facing the agony of protracted criminal litigation since year 1989, hence, setting aside the impugned judgment on technical ground S and remitting it to the learned trial court for a verdict anew would be too cumbersome for the respondents to endure; the judgment given by the learned Additional Sessions Judge, Sheikhupura, as the appellate court, in the FIR-case is hardly relevant being incompatible with the circumstances involved herein; the impugned judgment, even if vulnerable a bit, may not be reversed nor should it be asked to be rewritten after so many years had elapsed since pronouncement thereof by the learned trial court, as it may be put in writing with all the requisites in sight by this court; the acquittal of the respondents through a judicial verdict had imparted double presumption of innocence to them, therefore, it ought to be kept intact without being scratched by any alien factor. Learned counsel preferred reliance on Latif v. The State (1980 PCr.LJ 1101), Sultan Khan and 3 others v. The State and 2 others (1987 SCMR 237), Askar Ali and others v. The State (PLD 1959 Supreme Court (Pak.) 251). And Phulail Khan v. The State (1972 SCMR 95).
9. Learned Deputy Prosecutor General Punjab has chipped-in with the argument that the result drawn by the learned trial court through the impugned judgment was unexceptionable, hence, it merited to be retained.
10. The present case is not less than an antique as it was converted into an appeal in year 1994.
Initially, P.S.L.A. No,6/1993 was admitted to regular hearing on 10.7.1993 without making any order, if special leave to appeal had been granted to the petitioner (appellant) or not. This issue was taken up again by this court on 16.11.1994 and after hearing the learned counsel for the parties, special leave to appeal was granted to the petitioner mainly on the ground, "that the trial court did not record any independent judgment in the complaint case and acquitted the respondents on the sole ground that the petitioner as well as three others (the complainant party) were convicted in the challan case. " The office was directed to allot a number to the appeal and fix it for final hearing on 18.12.1994, but it could not be heard for another twenty one (21) years for a variety of reasons. It was noticed on 3.12.2012 that record of the complaint-case, wherein the impugned judgment was passed, had not been produced before this court till then, so it was ordered that the requisite record be immediately produced. The Deputy Registrar (Judi.) of this court was directed on 6.2.2013 to ensure availability of the relevant record, who submitted a report on 5.3.2013 stating therein that "as per information provided by the learned District and Sessions Judge, Sheikhupura the relevant record could not be traced and he has requested for extension in time to trace out the record; further that If the record could not be traced out a judicial officer will be directed to reconstruct the record from the all available sources. " It transpires from the record that learned District and Sessions Judge, Sheikhupura directed Mr. Hassan Abbas Syed, Civil Judge First Class cum Judicial Magistrate, section 30 Sheikhupura on 18.3.2013, to reconstruct the missing judicial record from all available sources, within the provisions of rule 5 of Chapter 19-A of High Court Rules and Order Volume-IV and bound him to complete the process of reconstruction by 18.4.2013 without fail. Learned Judicial Magistrate made hectic efforts and succeeded in reconstructing the missing file/record, but not in complete terms, as it did not include the charge- sheet and the statement of one of the respondents (not decipherable) under section 340(2), Cr.P.C.
In parallel to it, learned District and Sessions Judge, Sheikhupura got a preliminary inquiry held by Mr. Muhammad Aamir Habib, Additional District and Sessions Judge, Sheikhupura in the matter, who fixed the responsibility on Liaqat Ali, Ahlmad, in this context. Whereafter, a regular inquiry was initiated against him by Mr. Hassan Abbas Syed, Civil Judge First Class cum Judicial Magistrate section 30 Sheikhupura, the inquiry officer, which is still pending. Isn't surprising, yes it is. An aide- memoir be issued to the learned Sessions Judge, Sheikhupura with the direction to take up the (probably) forgotten matter instantaneously without further delay under intimation to the Deputy Registrar (Judicial) of this court. The process of inquiry be concluded latest by 30th September, 2015.
' The requisite reconstructed record has however, been found sufficient for adjudication of this case.
11. Main line of attack against the impugned judgment, as preferred by the learned counsel for the appellant is that it was not passed on any argument or reason whatsoever, hence, it could not be considered a valid judgment within the definition of section 367, Cr.P.C. He maintained that the specific procedure as conditioned by the law should have strictly been followed without any short cuts and this is what, that has not been remembered by the learned trial court while passing the impugned judgment, which being bereft of any rationale may be annulled and directed to be rewritten by it within the potentialities enjoined. There may be no cavil to the said proposition of the law, as envisaged by the learned counsel, but this is such a rare case which necessitates compulsive departure from it mainly for the reason that its has already touched the limits of almost being scandalous. Bearing in mind niceties of the subtle issue involved herein, it is straightaway observed that the impugned judgment did not contain discussion of evidence and reasons for the decision made. To say the least it looks, for better part of it, unsatisfactory, shabbily crafted and not a valid judgment in the eye of law. Of the nine pages that it is consisted of, about 8-1/2 pages thereof have been devoted to mere narration of facts and statements of the witnesses. The finding of innocence qua the respondents (Nos.1 to 9) was recorded in remaining half of page No,9 with a frank observation, ".... During the trial of both the cases, it was proved beyond doubt that although the complainant and PWs of this complaint received injuries but they were the aggressors who attacked upon the complainant of the state case and his companions while they were present in a Ehata under their possession... that the complainant of the state case Ilam Din and his companions acted in their self-defence in this fight. This is established principle of law that even if the aggressors are harmed during the fight, they have no case and the persons who acted in their self-defence, cannot be punished for that."
' Learned trial court attached a copy of the judgment, passed by it in the challan-case, with the impugned judgment through a written direction made therein. Evidently this judgment did not satisfy necessary requirements of the law. The main requirement of section 367, Cr.P.C. is that the judgment must be lucid, should contain discussion of evidence, reasons for the decision and not merely the conclusion. A judgment written without discussion of evidence of witnesses or the effectiveness of corroborative evidence, if any and without giving any cogent reason is not a proper judgment, as held by this court in Latif v. The State (1980 PCr.LJ 1101). It was however found improper by this court on the said occasion to remand the case to the learned trial court for rewriting the judgment and thus prolong agony of the accused, who had awaited the final judgment at the trial for a long period of about five years.
' The question raised by the learned counsel for the appellant as to vulnerability of the impugned judgment can be decided by this court by taking into account the material available on the record. In an identical situation, like the one in hand, the Hon'ble Supreme Court of Pakistan in Sultan Khan and others's case, reported as 1987 SCMR 237, observed as under:-- "In Ajodha v. The State 1982 PSC 307 a Privy Council decision, it was held that where long time had elapsed between the commission of offence and the hearing of the appeal, retrial was not proper and it was not allowed. In Phulail Khan v The State and Shah Wali v. The State 1972 SCMR 95 the accused was acquitted of murder charge by the. trial Court and the High Court setting aside the acquittal had ordered retrial. Supreme Court however, set aside the order of retrial on finding that considerable time had elapsed between the date of occurrence as well as since the date of his acquittal and there was therefore, no likelihood of witnesses being available and retrial in the circumstances was likely to be an exercise in futility. In that case the time that had elapsed was about 5 years between his acquittal by the trial Court and Order of retrial. In the light of these authorities we are of the considered view that after almost 21 years in the instant case to set aside the acquittal and to order retrial would be a futile exercise. In that view of the matter the impugned judgment of the learned Single Judge of the Lahore High Court is hereby set aside and the appeal is allowed."
' It was yet another case of alike nature, when this court, in its appellate jurisdiction dismissed criminal appeals filed by Askar Ali and others through a judgment, which did not contain examination of facts or legal issues and it simply agreed with the judgment of the learned trial court, completely ignoring arguments contained in sessions judge's judgment, in favour of acquittal of the accused. The Hon'ble Supreme Court of Pakistan considered it a matter for regret, "that learned Judges in the High Court did not see fit to take into consideration the grounds upon which the Sessions Judges had found it possible to deliver a considered judgment, which was practically a judgment of acquittal." The view expressed and observations made by the apex court in Askar All and others v. The State (PLD 1959 Supreme Court (Pak) 251), as to afore- noted proposition of law, are advantageously reproduced hereunder:-- "It has often been said in judgments of Superior Courts that it is important that justice should not only be done but that it should be manifestly seen to be done. Among the most important of the persons by whom justice should be seen to be done are persons who have been convicted of criminal offences at judicial trials. It is evident that to the convicted persons in the present case, the summary judgment of the High Court, containing no examination or statement of the facts or the legal issues arising out of the case and merely declaring that the judgment of the trial Court was in all respects satisfactory and worthy of agreement, but ignoring entirely the arguments upon which the Sessions Judge had based the acquittal of the accused persons on practically all the charges levelled against them, cannot have given the impression of being a judicial act in the proper sense. It was in our opinion requisite in the present case, when the learned Judges in the High Court had formed a view unfavorable to the appellants, that they should have themselves explicitly examined the facts and circumstances and expressed their reasons for disagreeing with the views formulated thereon by the Sessions Judge, in his acquitting order. In the absence of such treatment by the High Court, it becomes necessary for us to go into the evidence and in the light of our own conclusions to consider the arguments which led the Sessions Judge to the conclusions he recorded."
The all important question if the respondents could be held innocent and acquitted of the charge on the evidence examined at the trial can be taken up and decided by this court herein. There is no need to remand the case to the learned trial court for rewriting the judgment, as endless agony of the parties may have already crossed the limits of forbearance by now, being it a case, more than quarter of a century old. The judgments, Abdul Rashid Munshi and 3 others v. The State (PLD 1967 SC 498), Sahab Khan and 4 others v. The State and others (1997 SCMR 871), Ashiq Hussain and others v. The State and 2 others (2003 SCMR 698), Muhammad Usman v. The State (1992 PCr.LJ 88), Ghulam Hussain and others v. The State (1996 PCr.LJ 514) and Abdul Qayum v.
The State (1996 PCr.LJ 1427), relied on by the appellant's learned counsel, being distinctive on facts lend little strength to the hard-pressed argument.
12. It has unarguably been established on the record that Muhammad Anwar (P.W.2) and respondents Nos.2, 6 and 8, namely, Akbar, Aslam and Shaukat had been injured during the same incident, which, as per contents of the complaint (Exh.PB) took place at the residential house of Atta Muhammad (P.W.3), who is real father of Muhammad Anwar injured. The acquitted respondents persisted with their stance, as mentioned by them in the FIR-case, that the occurrence had taken place at their haveli/Ehata, which had been purchased by respondent Ilam Din for Rs,12,000/- about 8/9 months before and it was in their possession on the fateful day. The appellant contended in his testimony that the Ehata belonged to his paternal uncle Mehr Din, who had handed over it to one Lal Din about ten years ago for temporarilyresidingthereinand respondents with intent to unlawfully grab it had trespassed on his house and injured Muhammad Anwar. His attention was drawn to his cursory statement, which he recorded on 10.12.1989 in this context, but it was not so mentioned therein. He was also confronted with the said statement for his deposition that respondents Muhammad Akram and Muhammad Din gave hatchet blows at left and right legs of Muhammad Anwar and that respondents Ramzan and Shaukat dealt rota blows at his right leg and it was not found so mentioned therein. He frankly admitted that he instituted private-complaint (Exh.PB) about one year after the occurrence as police did not listen to him. He rendered an explanation qua the injuries sustained by respondents Shaukat and Akbar by contending that his son Sarwar grappled with respondent Liaqat so as to disarm him and in this struggle, the gun went oil and pellets hit both of them. He denied the suggestion as incorrect that Muhammad Anwar (P.W.2), Munir PW (not produced) and Sarwar PW (not produced) being armed with guns and carbine had injured respondents Shaukat, Akbar and Aslam when they stormed into the haveli of Ilam Din to forcibly occupy it. Muhammad Anwar injured (P.W.2) rendered partly resembling statement as like his father Atta Muhammad (P.W.3), when he contended that the respondents being armed with different weapons barged into his house at about 7.30 p.m. where they badly tortured him as they intended to forcibly occupy the Ehata, which was in their possession since they ousted Lal Din from it. He also stated that Bashir and Ramzan (respondent) claimed to have purchased the said Ehata from Lal Din. He did not attribute any injury on his person to respondent Liaqat, unlike his father (P.W.3), who burdened him with the liability of causing an injury at his left leg by the butt of his gun. He introduced altogether a new fact when he said that Ilam Din gripped his arms and respondent Liaqat shouted that he would fire at him. It was at this stage when his brother Sarwar came there and he took Liaqat in japha to snatch gun from him and in this scuffle it went off and fire hit respondent Shaukat. He also said that both the sides had filed suits about the said haveli against each other and obtained conjunctive orders in their favour. He deposed that he was still admitted in the Services Hospital, Lahore as an indoor patient but he showed no evidence in this respect. He admitted that his statement had not been recorded by the police. He denied the suggestion as incorrect that he along with Sarwar and Munir being armed with guns and carbine had forcibly, made their way into the Ehata of respondent Ilam Din so as to seize its possession and in this process they befell respondent Shaukat and Akbar to the ground by firing at them, besides they also injured respondent Aslam and that his father Atta Muhammad kept raising Lalkaras till the end. It was also suggested to him that respondents Ilam Din, Munshi, Aslam and Akbar had injured him in exercise of right of private defence at the violated Ehata. Abdul Hameed (P.W.4), who contradictory stated not to have appeared before the police during investigation, stated that he lived at a distance of about 100 yards from the place of occurrence and reached there on hearing the noise. He attributed specific injuries at the head and left leg of Muhammad Anwar only to three respondents, Akbar, Ashraf and Ilam Din. He, unlike the other P.Ws., alleged that the respondents, who held guns resorted to firing at the spot. He averred in his testimony that Sarwar pounced upon Liaqat to snatch gun from him and in this tussle it went- off and pellets hit Shaukat and Akbar. He showed his obliviousness as to having mutated agricultural land of respondent Ilam Din and others to his own name in consolidation and that appeal filed by the affected respondents had been decided in their favour. His name was not mentioned as an eye-witness by Atta Muhammad (P.W.3) in his statement. He was also tested with the same suggestions by the defence as were put to P.W.2 and P.W.3, that the complainant party being armed with different weapons had aggressed upon the respondents so as to usurp their Ehata, where they befell two persons/respondents with firearm injuries and one with blunt- weapon-injuries and that Muhammad Anwar had received injuries inside the Ehata when under- attack respondents defended themselves and their property. This P.W. admitted it as correct and showed his ignorance in the same breath as to purchase of the said Ehata by Ilam Din for Rs,12,000/-.
13. The statements of the above said witnesses are loaded with many a contradictions, discrepancies,and inconsistencies inter-se. A cloud of preposterous and unbelievably hovers about them. Atta Muhammad (P.W.3) and Muhammad Anwar (P.W.2) could not produce any evidence as to their claim that Ehata-in-issue' had transiently been given by their elders to Lal Din, who lived therein for ten years, before they expelled him to restore their possession over it. The material is scant to believe that the Ehata was in possession of the complainant-party on the crucial day. As per their own saying, Lal Din lived therein for about ten years before he made his way out, which meant that some constructions were already made over it. This place was being used as haveli by respondents Ilam Din etc. The veracity of the statements of P.W.2 to P.W.4 could only be adjudged once place of occurrence was located in the real sense. The bone of contention between the parties was admittedly the said Ehata and not the house of Atta Muhammad complainant/appellant. If respondents were not already in possession of the said spot, they should have gone there to occupy it instead of going to the house of the complainant. This particular contention of the prosecution witnesses that the occurrence took place inside the house of the complainant is not easily digestible. Naturally speaking and keeping in view previous litigation/hostility between the parties, the place of occurrence had to be the said Ehata (enclosure) and not the complainant's house. In absence of any other supporting material, the testimony of Mehmood Ahmad Khan Inspector (P.W.5) would be a determining factor as to locating the spot, where exactly the occurrence took place. He categorically mentioned in his testimony that the place of occurrence was not the residential house of Muhammad Anwar injured or Atta Muhammad complainant/appellant, but it was the haveli of Ilam Din etc. He admitted it as correct that the visual site plan (Exh.PF), which he prepared in the FIR-case, depicted the same haveli of Ilam Din as the place of occurrence. Inspector Mehmood Ahmad Khan, the investigating officer (PW-5) was examined as a prosecution witness and his testimony was not intercepted or objected to at any stage by the prosecution when he made the aforesaid depositions as to ownership of the said enclosure and its being the place of occurrence. He is the most important prosecution witness, when it comes to locating the exact place of occurrence and it is nothing else than the said haveli/Ehata (enclosure). The theory introduced by the prosecution witnesses as to mode of infliction of injuries on respondents Shaukat and Akbar is highly doubtful and improbable as they all three (P.W.2 to P.W.4) have rendered divergent statements in this regard. Muhammad Anwar (P.W.2) painted an altogether different picture from the one, as drawn by his father (P.W.3) qua the above-said fact, which has been taken care of in the preceding paragraphs of this judgment. Abdul Hameed (P.W.4) hardly added any strength to the complainant's case and he appeared to have tendered evidence out of sheer malice and previous heart burning against the respondents. His testimony did not show him a truthful person.
14. The medical evidence has been tendered by Dr.Abdul Bari (P.W.1), who medically examined Muhammad Anwar, at 1.25 a.m. on 2.2.1989 vide MLR (Exh.PA) and found the following injuries on his person:--
1. A lacerated wound 11 cm x 8 cm on front and inner part of left leg underlying bone is coming out of wound.
2. A lacerated wound 1.5 cm x.5 cm x bone deep on front of left leg upper part.
3. An incised wound 2 cm x .5 cm x bone deep on the inner side of left knee.
4. A lacerated wound 1.5 cm x .5 cm x bone deep on inner side of left ankle joint.
5. A lacerated wound 3.5 cm x.5 cm x bone deep on right side of forehead at hair line.
6. A lacerated wound 4 cm x.5 cm x bone deep on right side of head, 7 cm above the right ear.
7. An incised wound 1 cm x 1.5 cm x DNA on right scapular region, corresponding cuts on sweater Bunyan and Kameez which were blood stained.
8. An abrasion 3 cm x 1 cm on the back of right chest mid part.
9. A contusion 3 cm x 1 cm on back of left chest mid part.
10. An abrasion 4 cm x 1 cm back of right chest lower part.:
11. An abrasion 1 cm x 1 cm back of right chest lower part.
12. A contusion 14 cm x 4 cm on outer and back side of right thigh.
13. A lacerated wound 2 cm x.5 cm bone deep on front of right leg upper part.
14. A lacerated wound 1.5 cm x .5 cm x bone deep on right leg mid part.
15. A lacerated wound 1 cm x.2 cm x bone deep on outer part of right leg mid part.
16. A contused swelling all over the right leg.
17. A swelling 12 cm x 6 cm on right ankle joint.
' Injury No,1 was declared grievous but kept under observation for X-ray. Injuries Nos.2, 4 to 7, 13 to 17 were kept under for X-rays and clinical assessment, which was not done, as no x-rays or radiologist was produced in this regard.
' NOTE: Patient was semi conscious, BP was 90/60 mm/HG. Pulse was 120 per minute. Skin was cold and clammy. There was profuse bleeding from the wounds. Treatment of shock given in emergency. Two pints of fresh blood transfused in emergency. The patient's condition was serious.
The injuries looked dangerous to life.
' He also medically examined respondent Shaukat Ali, at 9.30 p.m. on 1.2.1989 vide MLR (Exh.DA) and found the following injuries on his person:--
1. A firearm wound of entrance 9 cm x 8 cm covering the right side of mouth and damaging the right upper and lower lips totally. Lower jaw is fractured. Teeth dislocated but present in the mouth.
There are multiple firearm wounds of entrance lacerations on right lower jaw.
2. A firearm wound of exit 5 x 2 cm on the right jaw extending from the angle of right jaw going towards the chin.
' NOTE: Patient was semi conscious and in shock. BP was 90/60 mm/HG. Pulse was 120 per minute.
Injury No,1 was declared grievous. Injury No,2 was kept under observation and for surgical opinion.
Duration of injuries was fresh and the weapon was declared firearm.
' On 30.1.1990, vide X-ray report No,111-12 dated 7.1.1990 "multiple metallic foreign bodies were seen in face and there was old fracture of left mandible" so injury No,2 was declared grievous.
' On the same day; he medically examined another respondent, Akbar Ali as well at 9.30 p.m. vide MLR (Exh.DB) and found the following injuries on his person:-- ' A firearm wound of entrance 11 cm x 8 cm x DNP on the thumb side of left forearm upper part extending upto front of left elbow joint.
' Injury was kept under observation for X-rays and surgical opinion. Injury was fresh and weapon was declared firearm.
' On 30.1.1990, vide X-rays report No,113-14 dated 7.1.1990 "multiple metallic foreign bodies were seen in soft issues of left elbow. No bony lien was seen". So injury was declared simple.
' This medical officer (PW-1) also tendered secondary evidence by recognizing the handwriting and signature of Dr.Manzoor Hussain Kazmi (since dead), who being the SMO, had medically examined respondent Muhammad Aslam at 3.10 p.m. on 02.02.1989 vide MLR (Exh.DC) and observed following injuries on his person:--
1. Four lacerated wounds 1 cm x .1 cm x .1 cm on back of index, middle, ring and little fingers proximal part of each finger.
2. An abrasion 2 cm x .7 cm x.3 cm on back of left forearm upper part.
' Injury No,1 was kept under observation for X-rays. Injury No,2 was declared simple. Duration of injuries was 20 to 24 hours. Weapon was declared blunt.
' On 11.3.1990, vide X-rays report No,1025/89, dated 5.2.1989, "fracture proximal phalanx of right ring finger" seen. So injury No,1 was declared grievous.
' The medical officer found two of the above examinees, namely Muhammad Anwar and Shaukat Ali semi-conscious and in a state of shock at the time of their medical examination and he took special measures to save their lives. He referred Muhammad Anwar injured to the Services Hospital Lahore as his condition gradually deteriorated. The MLR (Exh.DA) of Shaukat Ali injured revealed that he had been referred to Mayo Hospital, Lahore for management/treatment and surgical operation of his injuries. What happened thereafter, the record is silent about it.
15. It can easily be gathered from the medical evidence that both Muhammad Anwar (P.W.2) and respondent Shaukat Ali, besides respondent Muhammad Aslam had received grievous injuries, which were certainly homicidal in nature, as nothing contrary to it existed on the record. Akbar Ali (respondent No,2) also received a big-sized (11 cm x 8 cm DNP) firearm wound at his left forearm, which was declared simple, as X-ray films, despite presence of many a metallic/foreign bodies did not reveal any bony-lesion. Almost entire body of Muhammad Anwar injured was found battered and bruised and respondent Shaukat Ali's face had been noticed badly damaged at the time of his medical examination by the medical officer. Whenever he appeared before the court, he had his face half-covered by means of cloth, tightly wrapped around the chin area. He was asked by the court at the time of final hearing of this case to uncover the face, who did so and the area exposed was seen disfigured and defaced in permanent terms. On the other hand, Muhammad Anwar injured appeared before the court on a wheel-chair to tell that he had been rendered incapacitated for good, due to the injuries he sustained during the occurrence. The medical evidence did not, however prove the said fact as medical officer said nothing in this regard. His operation notes and remarks/reports of the surgeon(s), if any, have not been brought on the record. The statement of PW-1 showed only one fractural injury (No,1) at the locale of his left leg.
Rest of the injuries, having been, kept under observation continuously remained as such.
16. The prosecution did not lodge any request before the learned trial court as to re-examining the medical officer so as to repel the impression that the injuries sustained by the injured-respondents were homicidal and not to have been inflicted other than the targeted firing by Muhammad Anwar (P.W.2). The testimonies of witnesses of ocular account (P.W.2 to P.W.4), when read-with the medical evidence, would lead to an irresistible conclusion that their assertion, as to snatching .12 bore gun by Muhammad Sarwar (PW not produced) from respondent Liaqat and in their test of muscles, its having suddenly gone-off with the fired pellets hitting respondents. Shaukat Ali and Akbar, is nothing but a sheer lie. The divergent statements of the eye-witnesses as to jumping of Muhammad Sarwar in the fight and snatching the gun in aforesaid fashion belie the theory advanced, being nonsensical. None of them has said that Muhammad Sarwar had caught hold of the said gun to snatch it but they all stated about having taken Liaqat in japha by him. How could a .12-bore gun which is a long sized weapon could go-off in the situation, as deposed about by the PWs. The prosecution did not act wisely by having given up Muhammad Sarwar PW in such a situation, wherein his testimony might have been crucial in the real sense. There cannot be inferred any other result that both the injured-respondents had been aimed at before they were fired at and sent reeling to the ground in injured condition. The third injured-respondent Muhammad Aslam received four lacerated wounds at his right hand and an abrasion on the back of his left forearm which could also not be believed to have been caused with friendly hands. As pointed out earlier, it could only be the place of occurrence which would determine as to who had initiated the aggression in this case. It has no more remained a mystery now that the occurrence had taken place at the haveli/Ehata, which was owned and possessed by respondent Ilam Din and others.
The testimony of Inspector Mehmood Ahmad Khan (P.W.5), who is the lone investigating officer examined, gives a clue to the said effect when he categorically contended that the occurrence had not taken place inside the house of Atta Muhammad (complainant/appellant) and that it took place in the rehabilitate of Ilam Din. Succinctly speaking, the complainant and his bond-men/co- witnesses looked the aggressors and the respondents, having been aggressed upon. The prosecution had thus, badly failed in bringing home the guilt of the acquitted respondents (Nos.1 to 9) beyond any reasonable shadow of doubt during trial. The outcome of the case would have certainly been the same, as drawn by the learned trial court through the impugned judgment which unluckily, did not ,contain any discussion on merits or examination of facts or legal issues which could provide basis to the said conclusions. Had it not been so, that more than 1/4th of a century had already elapsed since reporting of crime to the police and twenty three (23) years gone-by since pronouncement of the impugned judgment, it might have essentially been a good case to be remanded to the learned trial court for rewriting a decision afresh, but for the said reason.
17. The acquitted respondents did not take to a specific defence plea of exercising their right of private defence, while deposing under section 342, Cr.P.C., though, they suggested to all three eyewitnesses during their examination that they and their cronies being armed with different weapons had launched aggression against them so as to wrest possession of their Ehata/haveli and that they merely retaliated upon the aggression, in defence. Learned counsel for the appellant has argued with vehemence that in absence of any specific plea of exercising right of private defence having been taken by the respondents under section 342 Cr.P.C., no such claim could be advanced insistently by them while defending against this appeal. The objection taken cannot be considered an absolute bar, as plea of private defence can be raised in appeal if it so spelt out from the prosecution evidence, though not specifically taken at trial. The Hon'ble Supreme Court of Pakistan while dealing with a case, Muhammad Abdullah v. Muhammad Safdar Khan and another (1973 SCMR 26), wherein both the sides had received injuries and a person on the complainant side lost life, observed as under:-- "In our opinion, in a case of this nature, where neither the prosecution nor the defence come out with the true version and the Court is called upon to sift the evidence in order to discover as to what portion of it can be accepted and what has to be rejected it is always a delicate and a difficult task. If the discrepancies are of such a serious nature that no reliance can be placed on the prosecution story at all then the benefit of that will necessarily have to go to the accused.
Unless there is some independent and reliable evidence bringing home the guilt to one or the other of the accused persons, the prosecution cannot succeed. In the present case, since the respondent Safdar and his brother Rafiq had admitted their participation in the incident, it cannot be said that they were not there; but one has still to examine as to the part they played. Did they act in the manner alleged by the prosecution; if not, then is the evidence such that there may be a reasonable possibility of their having acted in a. different manner which would altogether exculpate them or justify their action then the benefit of that possibility must be given to the accused persons.
' In the present case, as we have stated earlier, having found that both sides were suppressing the truth, we have, having regard to the number and the nature of injuries suffered by the accused persons, come to the conclusion that the possibility of their having acted in self- defence was more probable in the circumstances of this case. If this right accrued to them, then the firing of a single revolver shot, which unfortunately resulted in the death of one of the opposite party, cannot be said to have been done in excess of that right."
' The apex court reiterated its view-point in Muhammad Yousaf's case, reported as 1994 SCMR 1733 by underlining that an accused, even in the absence of any evidence of his own defence, is entitled to support his plea of right of private defence from the circumstances appearing from prosecution evidence itself.
18. Respondents Nos.1 to 9, as claimed by them, were in possession of the Ehata/haveli through Ilam Din (respondent No,1), on the crucial day and they had every right to defend their possession over it. The evidence led would credibly suggest that they exercised their right quite lawfully and they exceeded it not at any stage. Their inability to have so claimed in their statements under section 342, Cr.P.C. does not deter this court in any manner, to reach the conclusion that compelling circumstances of the case had imparted to them a right to defend themselves and their property.
Their taciturnity on this issue when they deposed under section 342, Cr.P.C. could not extinguish their right to recapitulate and press the once forgotten plus-point i.e, right of private defence. This court has held in Ghulam Rasul and 3 others v. The State (PLD 1970 Lahore 832), which implies similitude as to the facts and circumstances hereof, as follows:-- "A feeble attempt was made on behalf of the State to show that neither the appellants took this plea nor they adopted this theory when they subjected the prosecution witnesses to cross- examination and, therefore, they are not entitled to the plea of defence of the property. Suffice it to say, the view of the superior Courts in granting such right to the accused persons enshrines in many judgments. If from the evidence of the prosecution such a plea can be spelt out, surely the appellants would be entitled to raise that plea even if it is not specifically so taken at the trial.
Safder Ali v. The Crown (6) is an eminent judgment on this point. The latest pronouncement of the Supreme Court of Pakistan reported as Ali Muhammad v. The State (I) also approved this principle. We are clear in our mind that the appellants had the right of defence of property i.e, the use of water of which they were in possession on account of their turn and, therefore, any attempt to disrupt the water supply by the other party would entitle them to maintain the supply and in so doing if the obstructing party has received injuries the appellants were surely within their right to deal with the intruders. Even otherwise natural justice has been done in this case. If the complainant-party has lost one man the appellants have equally lost one person."
' Learned counsel for the appellant has drawn attention of this court to judgment dated 6.7.1998, passed by the learned Additional Sessions Judge Sheikhupura, whereby judgment of the learned trial court, pronounced on 2.12.1992 in the FIR-case has been set aside and appellants therein, Muhammad Anwar, Atta Muhammad, Munir Ahmad and Muhammad Sarwar (PWs herein) have been acquitted of the charge with the observation that they had been attacked by the complainant-party of the FIR-case and Shaukat Ali ( a respondent herein) had received firearm injuries on his face, when .12-bore gun held by his companion Liaqat accidentally went-off, on an attempt to snatching it by said Muhammad Sarwar. This judgment has not been challenged by the complainant-side but it did not mean that it had an overriding effect to the case in hand. The afore-noted observation and the discussions made in the said judgment tended to show that there was hardly anything to choose, in terms of legal acumen, between both the learned courts below. Lesser the comments/remarks in this context, better would it be for the courts concerned.
19. On the strength of the observations, quoted herein above, it is found to be a case wherein the respondents had justifiably exercised their right of private defence and exceeded it not at any stage. Thus, they cannot be considered to have committed any offence, wherefore they should be punished. The conclusion drawn by the learned trial court, as to their innocence and resultant acquittal through the impugned judgment, though not based on any expressive reason, is upheld for the discussion made herein above. The appeal in hand being devoid of merits is dismissed.