1. MUHAMMAD GUL, J.-As a sequal to a dispute relating to the possession of Plot No. 310-C, Ghulam Muhammad Abad, a suberb of Lyallpur city, there took place an incident on the morning of 26th December 1970 at about 8.00 a. m. In the course of which on the side of the complainant (the petitioner herein) fatal injuries were caused to Mushtaq Ahmad, Khadim Hussain, Mubarik A.I and Muhammad Malik of whom the first three named died on the way to Hospital and Muhammad Malik on the following day in the Hospital. Munir Ahmad P. W. 15 the petitioner herein lodged the report about the incident at Police Post Ghulam Muhammad Abad at 9.00 a. m. On the basis of which the F.
1. R. Was registered at P, S. Gulberg at 9-30 a.m. In the first information report eight persons including the first four respondents here namely, Khaliqur Rahman, Azizur Rabman, Ghulam Muhammad and halid Mahmood, four others namely, Muhammad Ismail, Nazir Ahmad, Muhammad Tariq and Muhammad Sbafi were named as assailants. The latter four were given benefit of doubt by the trial Court and acquitted. ,"The four respondents herein were convicted and sentenced to death and payment of fine each. They were also convicted under section 307, P. P. C.
2. And sentenced to five years R. I. Each and fine. On appeal to the .High Court, they were also acquitted. This petition seeks to-call in question their acquittal by the High Court.
3. The dispute about the' Plot No. 310-C was between Khaliqur Rahnian respondent No. 1 on the one hand who claimed to be in its possession as its allottee since 1959 and Muhammad Ashraf P. W. 19, on the other. Among the other respondents Azizur Rahman respondent No. 2 is brother of Khaliqur Rahman and the remaining two are also closely related to him.
4. Muhammad Ashraf P. W. 19 based his counter claim to Plot No. 310-C on the basis of an alleged sale in his favour by one Muhammad Ibrahim for Rs. 6,000. However, the latter was not examined in the case.
5. It appears that earlier Khaliqur Rahman respondent lodged a report under section 148/448 read with section 149, P. P. C. On 16-11-1970 complain--ing that the petitioner herein and his partisans at the instigation of one Asghar A.I, Head Constable, a brother of Muhammad Ashraf P. W. 19, then posted at T. T. Singh in the Lyallpur District are threatening to dispossess him from the plot in dispute over which he has raised construction and that the petitioner herein had actually trespassed over the plot to forcibly secure its possession, This was followed by another report dated 19-12-1970 at Police Post Ghulam Muhammad Abad in which Khaliqur Rahman again complained that the petitioner and some of his partisans were threatening to occupy the plot in dispute. It appears that at about the same time Kaliqur Rahman also filed a suit asserting his title and possession over the plot and succeeded in obtaining an order for the maintenance of status quo ante during the pendency of the suit.
6. The prosecution version as set out in the F. I. R. Is that while this litigation was pending between the parties on 25ih December, 1970, a message was sent to Khadim Hussain, one of the deceased through one Muhammad Sharif purported to be from Ghulam Muhammad Lambardar (one of the accused acquitted by the trial Court) that a panachayat was being convened in the evening in the house of Muhammad Ismail father of Khaliqur Rahman to settle the dispute about Plot No. 310-C.
7. The message required the petitioner herein, Muhammad Asbraf, Mubarik A.I, Khadim Hussain, Manzoor Ahmad, Mushtaq Ahmad, Muhammad Malik and Muhammad Rafique to attend the panchayat. Pursuant to the message received, the petitioner and others named above went to the house of Muhammad Ismail but they were informed that since some of the persons who were to attend the meeting were not coming, the panchayat will meet on the. Next ;morning at about 7.00 a. m. The petitioner along with seven companions then went to the house of Muhammad Ismail the next morning at about 7.00 a. m. Whence they were told by Mst. Muhammad Bibi, wife of Muhammad Ismail that the panchayat is sitting in Plot No. 310-C. On this information, the petitioner and his seven companions went to Plot No. 310-C where they found Muhammad Ismail, Muhammad Shafi and Ghulam Muhammad, variously armed standing in the courtyard while the other five accused also armed standing on the roof. As soon as the petitioner and his companions entered Plot No. 310-C, Muhammad Ismail gave a lalkara that the petitioner and his companions should all be done to death. At this Khaliqur Rahman opened fire with his gun hitting Mushtaq Ahmad on the face. This was followed by a fire by Azizur Rahman respondent which also bit Mushtaq Ahmad on his left shoulder as a result of which he fell down, as he was falling, Muhammad Tariq fired a. Revolver shot hitting Mushtaq Ahmad in the head. Thereafter, Khalid Mahmood also fired hitting Khadim' Hussain on the left shoulder. A fire by Nazir Ahmad hit Mubarik A.I on the bead. Kbaliqur Rahman also fired at Mubarik A.I which bit him on the right shoulder as a result -of which Mubarik A.I also fell down. Azizur Rahman also fired at Muhammad Rafique P. W.
8. Hitting him in the right, flank. Muhammad Ismail and Muhammad Shafi also caused injuries to'
9. Mubarik A.I with hatchet and hockey stick respectively. At the closing stage of the incident Ghulam Muhammad gave two sota below on the head of Muhammad Malik who became unconscious and fell on the ground.
10. According to the prosecution, Munir Ahmad P. W. 15 who lodged the F. I. R. Was among those who had gone to participate in the pachayat and is; therefore, stated to have witnessed the transaction from the beginning to the end. He remained unscathed because he lay fat on the ground during the transaction.
11. According to the medical evidence of the four deceased, Mushtaq Ahmad; Khadim Hussain and Mubarik A.I died of firearm injuries while Muhammad Malik deceased died of blunt weapon injuries on his head. Muhammad Rafique P. W. -20 also .Suffered fire-arm injuries. The medical evidence further showed that on the side of the accused Mst. Muhammad Bibi wife of Muhammad Ismail bad two injuries on her person one of which was a lacerated wound 3"x 1/2" bone deep on the left side of the head. Tariq Masood who was acquitted by the trial Court also had 8 injuries on his person of which two were contused wounds. So also Muhammad Ismail, also acquitted by the trial Court had 7 injuries on , his person of which 4 were contusions which was kept under observation but ultimately declared to be simple. It is however, important to point out that the F. I. R. Did not refer to any injuries suffered by any person on the side of the accused.
12. It appears that Khalid Mahmood respondent also tried to lodge a counter report against the complainant party, but that was not recorded. At a late stage in the investigation of the case, however on the report of the D. S. P. Ch. Muhammad Abdullah, C. W. 1 who supervised the investigation, the Deputy Inspector-General directed the registration of counter case under section 307/34, P. P. C. Against the petitioner and some of his companions.
13. The defence version of the case is set out in the statement filed by Muhammad Ismail under section 342, Cr. P. C. That statement refers to the allotment of Plot No. 310-C to his son Khaliqur Rahman as far back as 1959. It was also stated that prior to the present incident, the complainant party had made two attempts first on the 8th November 1970 and then on the 19t)a December, 1970 to take forcible possession of the plot. But their design was frustrated and a criminal case under sections 448, 148/149, P: P. C. Was registered at P. S. Gulberg, Lyallpur. The statement also referred to the civil suit concerning the same plot in which Khaliqur Rahman had obtained from the Civil Court an order in his favour for the maintenance of status quo. It was also stated that despite the prohibitory order by the Civil. Court and the earlier criminal case against the complainant side, the complainant and his partisans after arming themselves attempted a show-down on the 26th December, 1970 at about morning prayer time. The complainant party attacked him and his family and he in exercise of his private defence of his person and property retaliated by firing his licensed gun from the home top.
14. The trial Court did not particularly address itself to defence, version set out by Muhammad Ismail and was content with giving benefit of doubt to the accused other than the first four respondents herein. The learned Judges in- the High Court on the other hand squarely addressed themselves to the defence version and found that Khaliqur Rahman was in actual physical possession of Plot No. 310-C and the complainant side came in a body to take its forcible possession, but they were worsted in the bargain. The learned Judges particularly negatived the title which was set out by Muhammad Ashraf P. W. 19 to the plot. It appears that an agreement in writing marked Exh. P. Q. Q.
15. Was produced for the first time at the trial stage in an endeavour to show that the plot had- been sold by one Ibrahim through his attorney to Muhammad Ashraf for Rs.6,000. Muhammad Ashraf P.
16. W. 19 is himself a student and a brother of Asghar A.I Head Constable who has been described by the learned Judges in the High Court as "villain of the peace". A highly significant feature of the prosecution case is that no mention whatever was made in the F. I. R. About the existence of Exh. P.
17. Q: Q. Nor this document along with power of attorney was produced during the police investigation.
18. The accused were taken by surprise by the production of these documents at the trial stage. The documents were admitted in evidence notwithstanding the objection by the accused. Then surprisingly enough Ibrahim who allegedly sold the Plot No. 310-C to Khaliqur Rahman was not.
19. Produced nor evidence was produced to prove his title in the plot. Muhammad Ashraf while in the witness-box admitted that his possession, of the plot lasted only for four or five days after the sale in his favour when he was dispossessed by Khaliqur Rabman. In the face 'of this incredible prosecution case the learned Judges had no difficulty in finding that Muhammad Asharf entered into possession of hot No. 310-C and that the alleged ' sale in his favour was a colourable tran-- section.
20. That apart, another fact which impressed the learned Judges in the High Court and which was overlooked by the trial Court was that Mst. Muhammad Bibi, Muhammad Ismail and Tariq Masood received injuries in the course of the transaction of the side on the accused yet no explanation was forthcoming from the prosecution side as to how these injuries are caused to these persons. This in the opinion of the learned Judges tended to lend a strong support to the defence version in the case that the complainant side came armed with the purpose of taking forcible possession of the plot from Khaliqur Rahman respondent. It was also in the evidence of the I. O. And the D. S. P. Both of whom found pellet marks in the inner side of the room on the plot which was possible only if the shooting was resorted to by standing on the ground and not from the roof top where according to the prosecution case the accused had taken position. In the opinion of learned Judges the odd hours at which according to the prosecution case the panchayat was to meet on a December morning was another factor which lent support to the defence case that the complainant's party had actually raided the house of Khaliqur Rahman with a view to dispossess him. As a result the learned Judges had no difficulty to record a "positive finding" that the respondents I to 4 and their companions acted in exercise of their defence of their persons and property to ward off the attack by the complainant and his party.
21. We have heard Sheikh Shaukat A.I, learned counsel for the petitioner in support of this petition.
22. However, in view of the circumstances referred to above, on which the learned Judges, if we may say so with respect, rightly relied the conclusion appears to be unassailable on the weight of evidence in the case.
23. The petition is accordingly dismissed.