M.S.H. QURAISHI, J.-- Appellants Ahmad Yar and Muhammad Hussain alias Hussaini alongwith ten others were tried by the Court of Session, Bahawalnagar, for the murder of Jamma and Sadiq deceased and for murderous assault on Muhammad Hanif P.W., in the result of which the appellants and six of their co-accused were sentenced under section 302/149, P.P.C. On to counts to imprisonment for life plus a fine of Rs.3,000 or in default in payment thereof to R.I. For to years each; under section 307/149, P.P.C. To R.I. For three years each and under section 148, P.P.C. To R.I. For one year each. The fine if realized was to be paid in equal shares to the heirs of the to deceased under section 544-A, Cr.P.C. The appellants and their ten co-accused were further sentenced under section 447/149, P.P.C. To R.I. For to months each and under section 440/149, P.P.C. To R.I. For three years and a fine of Rs.500 each, or in default to undergo R.I. For six months each. The fine, if realized, was to be paid to Muhammad Hanif and Khair Muhammad P.Ws. The sentences of imprisonment were ordered to run concurrently. Convict Attau filed a separate appeal being Criminal Appeal No.31 of 1975 while the appellants and the remaining convicts filed Criminal Appeal No.24 of 1975 before the High Court. The appeals as regards the appellants and Attau in respect of the main offences were dismissed except that the offences were altered to sections 302 and 307, read with section 34, P.P.C. The sentences passed thereunder by the trial Court were maintained.
They and the rest of the co-accused were acquitted of the other offences.
2. Only the appellants filed petition for leave to appeal and leave was granted to them on the ground, inter alia, that their case was no: distinguishable from that of Attau who, according to Mr.2affar Pasha Chaudhry, Advocate, then appearing for the appellants, had been acquitted. When the appeal came up for hearing, none appeared for A the appellants and accordingly the appeal was treated as a Jail appeal. The appellants are now represented by Mr.Muhammad Aslam Jan at State expense.
3. Enquiry was also made for ascertaining if Attau who had also been convicted alongwith the appellants by the High Court had appealed to this Court. The information received from the Deputy Superintendent Jail, Bahawalpur, is that Attau has not filed nor wants to file any petition against the judgment of the High Court.
4. The cause of the occurrence was dispute over some land purchased by Amir, Sharif and Muhammad Hanif P.W., nephews of Khair Muhammad complainant, from Afzal son of Ahmad Yar appellant through mutation No.535, dated 21-7-1969 and from Muhammad Nawaz, a brother of Ahmad Yar appellant, through mutation No.534, dated 2-7-1969. According to the complainant party, the vendees got possession of the land after the purchase and started ploughing it but later they were prevented from doing so by Ahmad Yar appellant, and his sons which forced them to take the matter to a Panchayat, in the result of which Ahmad Yar agreed to let the complainant party cultivate the land. According to the complainant party, they had, at the relevant the, cultivated Jawar and Gawara in the land but Ahmad yar again threatened to take possession forcibly, a report about which was lodged with the police a day before the occurrence through Sharif P.W., a nephew of complainant Khair Muhammad, vide report No.13, dated 2-7-1972 (Exh.
P.W.8/1).
5. Early next morning, on 3-7-1972, the complainant on seeing the accused persons ploughing the said land, went there accompanied by Amir, Nazru and Muhammad Hanif P.W. Jamma, nephew/stepson, and Sadiq, brother, of the complainant, also reached there and asked the accused not to damage their crop. This led to altercation and the accused, many of whom were armed with fire-arms, attacked. Ahmad Yar appellant fired from his rifle hitting Jamma deceased at the back of his head, at which he fell down and died at the spot. Sadiq deceased was hit by the firing of Amin and Attau while Muhammad Hanif was hit by the shot fired by Hussaini appellant.
Khair Muhammad lodged report with the police. From the spot, the police recovered seven .12 bore empties, four ploughs, one yoke and one Suhaga left by the accused. Some of the accused absconded but were later arrested. A .12 bore gun was recovered at the instance of Hussaini appellant but it did not match with any of the empties recovered and as such was of little corroborative value. A .12 bore gun recovered at the instance of Attau, however, matched with three of the. Empties recovered from the spot.
6. For ocular evidence, the prosecution examined Muhammad Hanif (P.W.16), who had been injured during the occurrence, and Khair Muhammad (P.W.17), the complainant in the case. They were supported by the story of motive and the medical evidence. Ahmad Yar appellant did not dispute the purchase of the land by the complainant party but asserted that the vendors had not delivered possession of the same to the vendees and that the land remained in the joint Khata of which he was a co-sharer. He produced copy of mutation No.535/1 (Exh.D.B), copy of Jamabandi for the year 1965-66 (Exh.D.C) and copy of Khasra Girdawari (Exh . D . D .) . The defence of all the accused was a total denial oftheir participation as also of the recoveries. They did not, however, lead any evidence in defence.
7. The trial Court found from the evidence on record that the complainant party had been in possession of the disputed land at the the of the occurrence, which was supported even by the documents Exhs. D.B. And D.D. Produced by Ahmad Yar. The trial Court believed the ocular evidence which was corroborated by the circumstantial evidence and found the accused guilty and accordingly convicted and sentenced them as aforesaid.
8. The High Court, however, came to a different finding on the question of possession and held that as the complainant party had purchased the land in the joint Khata of the accused, it was doubtful if the latter could be held guilty of criminal trespass into the same. On this view of the matter, all the accused were acquitted under sections 447 and 44 0read with section 149 and section 148, P.P.C.
9. The submission made on behalf of the appellants by Mr. Muhammad Aslam Jan, Advocate, is that the other eye-witnesses, namely, Nawaz and Amir cited in the F.I.R. Had not been examined and as such the appellants are entitled to the presumption under the law that if examined they would not have supported the prosecution case and that the to eye-witnesses examined ought not to be believed without corroboration which was not available as against the appellants.
10. The question as to which of the parties was in actual physical possession of the land at the relevant the has important bearing on the case. On this, there is sufficient material to support the assertion of the complainant party that they were in possession. We examined the record of mutation No.535 (Exh.D.B.) and find that the same does contain a recital that possession had been delivered to the vendees. TheKhasra Girdawari (Exh.D.D) which pertains to the relevant period, also shows the land in cultivating possession of Mithu, which according to P.W. Muhammad Hanif, is the other name of Amir, one of the vendees .The stand taken by Ahmad Yar himself that possession had not been delivered to the complainant party would impliedly support the prosecution case that their possession was being disputed by Ahmad Yar. Further support is available from the fact that only a day before, a report had been lodged with the police of a threat of forcible dispossession of the complainant party by the accused. We are satisfied that the concurrent finding reached by the Courts below in regard to the guilt of the appellants does not suffer from any legal infirmity for which an interference can be justified. It is regrettable that leave had been secured by misrepresentation that Attau had been acquitted by the High Court.
11. The appeal has, therefore, no merit. We, however, find that the question of giving the appellant the benefit under section 382-B, Cr.P.C. Was not at all considered by any of the Courts below. We, therefore, while dismissing their appeal direct that they shall be given the benefit under section 382-B, Cr.P.C.
M.Z.M.