' Haji Sadullah (35) son of Sher, Jalla (40) son of Walla, Khichi by caste, residents of Chak No, 249/R.B., Police Station, Dijkot, Lal Hussain (32) and Goga (30) sons of Muhammad Saee, Wattu by caste, residents of Chak No, 609/G.B. Police Station Bahlak were tried by the learned Sessions Judge Faisalabad, under sections 302 and 307 read with section 34, P.P.C. On the allegations that on 14th September, 1977 at about sunrise time they committed the murder of Shahbaz deceased and made murderous assault on Mohsin P.W., in the area of Chak No, 609/G.B. In furtherance of their common intention. By judgment, dated 26th July, 1981, they were convicted on the said charges.
Under section 302/34, P.P.C. Jalla was sentenced to imprisonment for life and a fine of Rs,1,000 while Haji Sadullah, Lal Hussain and Goga were sentenced to death subject to confirmation by this Court and a fine of Rs,1,000 each or in default in the payment thereof to suffer rigorous imprisonment for three months each. They were further ordered to pay Rs,5,000 each as compensation to the heirs of the deceased and in default in the payment thereof to undergo R.I. For six months each. Under section 307/34, P.P.C. They were sentenced to rigorous imprisonment for seven years and a fine of Rs,500 each or in default to suffer R.I. For two months each. They were also ordered to pay Rs,1,000 to Mohsin P.W. As compensation and in default in the payment thereof to undergo R.I. For three months each. The convicts have appealed and the case is also before us on reference for confirmation of the death sentence of Haji Sadullah, Lal Hussain and Goga aforementioned. Qutba complainant has filed Criminal Revision No, 633 of 1981 against the convicts praying that the sentence of Lal be enhanced to death (this convict has already been sentenced to death by the trial Court). It is further prayed that the compensation be also enhanced. The appeal, the murder reference and the revision petition are being disposed of by this judgment.
2. The brief facts of the prosecution case are that ten/twelve years prior to the occurrence Shahbaz deceased and Manzoor son of Gohar All were allotted 111 Acres of State land each in Square No, 19 situated in Chak No, 609/G.B. Under five years lease scheme. This land remained in their cultivating possession for about eight and a half yeaRs, About one and a half years prior to the occurrence, the said land was allotted to Mehdi Khan and Nazir Ullah who gave it for cultivation to Sadullah and Jalla appellants. Shahbaz deceased challenged the allotment order before the Revenue Court, as a result of which Sadullah and Jalla became inimical towards the complainant party. Goga and Lal Hussain appellants had previous enmity with the complainant party, so they started siding with Sadullah and Jalla appellants. A day prior to the occurrence, the case filed by the deceased in the Revenue Court was decided in his favour.
' Qutba complainant was in cultivating possession of five Acres of land in Square No,
33. On 14th September, 1977 at 6 a.m. He along with the deceased and Mohsin P.W. Was going to Square No, 33 when all the appellants emerged from a sugarcane field of adjoining Square No,
19. Jalla appellant was armed with a hatchet, Goga and Sadullah had single barrel guns and Lal Hussain was armed with a double barrel gun. They raised a Lalkara that Shahbaz deceased would not be spared and simultaneously Sadullah fired a shot but it did not hit anybody. The members of the complainant party started running. When they reached near the Dhari of Sadullah appellant, he fired another shot hitting the deceased on the left flank and Goga appellant fired a shot hitting him on the right arm. Then Lal appellant fired his gun hitting the left ear of Mohsin P.W. Thereafter, Shahbaz deceased and Mohsin P.W. Entered into a Kotha of the Dhari. Jalla appellant set the Kotha on fire, upon which they came out of the Kotha. Then Goga appellant fired at the deceased hitting his right flank. Lal appellant fired at Mohsin P.W. Hitting front lower part of his neck. Jalla appellant gave two hatchet blows to the deceased from the wrong side on the back side of his head while he was lying on the ground. Lal appellant fired his gun hitting the deceased on the right cheek near the ear.
Sadullah appellant also fired a shot hitting him on the left ear. Thereafter, Jalla appellant inflicted hatchet blows from the wrong side on the back of Mohsin P.W. The occurrence was also witnessed by Sikandar P.W., Ahmad and Mohabbit (not produced). They entreated the accused, upon which they left the spot while firing in the air. Shahbaz deceased succumbed to his injuries at the spot.
' Leaving the dead body at the spot, the complainant went to Police Station Bahlak and reported the occurrence to Abdul Majid, S.H.O., at 7 a.m. Vide F.I.R. Ex.P.U.
3. After recording the F.I.R., Abdul Majid S.H.O. Reached the spot. He prepared the inquest report (Exh.P.V.) and injury statement (Exh.P.W.) of the dead body and dispatched it to the mortuary for post-mortem examination. He collected blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh.P.F. He took into possession three pieces of burnt wood (Exhs. P.6 to P.8) from the Kotha vide memo. Exh.P.G. Fifteen wads (Exhs. P.13 to P.27) and four pellets (Exhs.P.9 to P.12) from front of the Kotha vide memo. Exh.P.H., two empties (Exhs. P.28 and P.29) from the southern gate of the Haveli which were made into a sealed parcel vide memo. Exh.P.J., two empties (Exhs.P.30 and P.31) from the spot which were made into a sealed parcel vide memo. Exh.P.K. And two shutters of the Kotha (Exhs. P.32 and P.33) vide memo. Exh.P.L. He collected about half a seer of ash from the Kotha vide memo. Exh.P.M. On 19th September, 1977 he got prepared site plans (Exhs.
P.E. And P.E./1) from the Patwari. The Patwari produced copies of reports Roznamcha Waqiati Nos.
1112 to 1113, copy of record of rights for the year 1975-76 pertaining to Khatas Nos. 280 and 273 and copies of Khasra Girdawaris for Kharif 1976 and Rabi 1977 which were taken into possession vide memo. Exh.D.J.
' The S.H.O. Arrested the appellants on 4th October, 1977. On the same day Sadullah appellant, while in custody led to the recovery of gun (Exh.P.34) and two live cartridges (Exhs. P.35 and P.36) from a heap of chaff near his Dhari which were made into a sealed parcel vide memo. Exh.P.N. On the same day Goga appellant, while in custody, led to the recovery of gun (Exh.P.37) and three live cartridges (Exhs. P.38/1-3) from a reed-growth which were made into a sealed parcel vide memo.
Exh.P.O. On the same day Jalla appellant, while in custody, got recovered hatchet (Exh.P.39) from a sugarcane field which was taken into possession vide memo. Exh.P.Q. On 5th October, 1977 Qutba complainant produced a copy of order of the Board of Revenue (Exit. P.R.) before the S.H.O. Who took the same into his possession vide memo. Exh.P.S. Four crime empties allegedly recovered from the spot and .12 bore guns allegedly recovered at the instance of Sadullah and Goga appellants were sent to the fire-arms expert for examination and the report (Exh.P.B.B.) is to the effect that none of the crime empties had been fired from the gun alleged to have been recovered from Sadullah and that the gun alleged to have been recovered from Goga appellant was not in working order. No opinion could be given whether or not any of the said empties was fired from it.
' Later on, the investigation was entrusted to the Crimes Branch on the application of the accused party. Muhammad Shafi, Inspector, Crimes Branch, Lahore, recorded the statements of the P.Ws.
And respectables of the area. He checked the revenue record and secured the documents Exhs.
D.D., D.E., D.F., D.G. And D.H./1 to 6. He submitted his report under section 173, Cr.P.C. Exh.D.L. To the effect that the complainant party did not wait to take possession through legal process after the case was decided in their favour by the Board of Revenue on 13th September, 1977. On 14th September, 1977, after arming themselves, they went to the Dhari of Sadullah accused to take possession thereof by force. On entering the Dhari they overpowered Haji Sadullah etc. And dragged them and in the meantime Goga and Lal came armed to help Haji Sadullah etc. There was an exchange of firing between the parties, as a result of which Shahbaz deceased was killed and Mohsin P.W. Was seriously wounded inside the Dhari. (The report Exh.D.L. Is lying on the Urdu record. Inspection Note and F.I.R. At pages 217 to 219 of the exhibited documents have also been marked as Exh.D.L.). The Inspector-General of Police passed orders that the case be submitted to Court for trial and a separate case be registered against the complainant party.
4. On 14th September, 1977 at 10 a.m. Dr. Ahmad Saeed, Medical Officer, Tandlianwala, examined Moshin P.W. And found the following injuries on his person:-
(1) A fire-arm wound of entry 3/8" x 3/8" x through and through on front of left pinna.
(2) A fire-arm wound of entry 1" x 1" x not probed on front of left side of neck.
(3) A fire-arm wound of entry 1" x 1" x not probed on right supra clavicle region.
(4) A fire-arm wound of entry 1" x 1" x not probed front of right side of chest, 1" below right clavicle bone.
(5) Multiple abrasions of various sizes over an area of 2" x 2" on left cheek and bridge of nose.
' All the injuries were declared simple in nature. Injuries Nos. 1 and 5 were caused by blunt weapon and the rest with fire-arm.
' On the same day at 12 noon the same doctor conducted the autopsy on the dead body of Shahbaz deceased and found the following injuries on it:-
(1) A lacerated wound 24" x 4" x scalp deep on back of left side of head
(2) A lacerated wound 14" x 4" x scalp deep back of left side of head 1" below injury No, 1.
(3-A) A fire-arm wound of entry 2" x 14" x connected with exit just in front of left pinna. The skin surrounding was tattooed.
(3-B)Five wounds of exit of pellets each 3/8" x 3/8" connected with entry on right side of face just in front and below right ear.
(4-A) Five fire-arms wounds of entry each measuring 3/8" x 3/8" x connected with exit, in an area of 24" x 2" on front of right upper arm middle.
(4-B)Five wounds of exit of pellets each measuring 3/8" x 3/8" connected with entry, in an area of 4" x 14" on back of right upper arm outer part.
(5-A) Five fire-arms wounds of entry each 3/8" x 3/8" chest deep over an area of 24" x 2" on left lateral side of chest.
(5-B)Three wounds of exit of pellets each measuring 3/8" x 3/8" x chest cavity deep on an area of 3" x 2" on right outer side of chest, lower part.
' In the opinion of the doctor, death was due to shock and hemorrhage and injury to brain resulting from injuries Nos. 3 and 5 which were individually sufficient to cause death in the ordinary course of nature. Death occurred immediately, while the time between death and post-mortem was within about 8 houRs,
5. In support of its case the prosecution examined three eye- witnesses, namely, Qutba complainant, Mohsin and Sikandar.
6. The appellants pleaded not guilty to the charges. Sadullah appellant admitted that Shahbaz deceased and Manzur of Chak No, 609/G.B. Had 111 Acres of land each in Square No,
19. He further admitted that one year prior to the occurrence the said land was allotted to Ghulam Mehdi and Nazir Ullah P.Ws. And they gave it to him and his relatives 'on share'. When asked whether the case relating to the disputed land was decided in favour of Shahbaz deceased by the Board of Revenue on 13-9-1977, he stated that the case was between Shahbaz and the allottees and he came to know of the decision on 14-9-1977 when the complainant party attacked him and told him that the case had been decided in their favour. He further admitted that he had entered into a bargain with the allottees to purchase the land in dispute. He filed a written statement inter alia alleging that after the decision by the Board of Revenue the complainant party did not wait to get possession through legal process; on 14-9-1977 Shahbaz, Qutba, Mohsin and others (all 14 in number), armed with guns, attacked his Dhari in the morning. They caught hold of him and dragged him. He succeeded in entering into the Kotha of the Dhari. The assailants resorted to firing, tried to break open the door and ultimately got on the roof of the Kotha and set it on fire: They forcibly ousted his mother and sister from the Dhari. He came out of the Dhari and in the meantime Goga appellant had reached there with the licensed gun of his father. Goga fired a shot in the air to scare them. He got the gun from him and after firing it in self-defence ran away from there. The invaders occupied his Dhari and the land and also took away the cattle and house-hold effects. A case was registered against the complainant party and thirteen persons were challenged. He further stated that if he had not defended himself he would have been certainly killed.
7. The learned trial Judge rejected the defence version and relying on the prosecution evidence convicted and sentenced the appellants as mentioned above.
8. The learned counsel for the appellants contended that uncorroborated interested evidence of relation-cum-inimical witnesses was not at all sufficient to warrant the conviction. He further submitted that in the circumstances of the case, the defence version rings true. The learned counsel for the complainant and the State, on the other hand, submitted that the absence of any injury on the accused party was indicative of the fact that the complainant party were empty- handed. They contended that there was no possibility of the defence version being true because the complainant party would not have gone for taking possession empty-handed.
9. The prosecution version of the occurrence is supported by three eye-witnesses, namely, Qutba complainant, Mohsin and Sikandar P.Ws. Mohabat and Ahmad were also named in the F.I.R. As eye- witnesses of the occurrence but they were given up as unnecessary. Qutba complainant is the real brother of the deceased. Sikandar P.W. Is their paternal-first-cousin. Moshin P.W. Is son of Ahmad (not produced) son of Agra who was a first-paternal-cousin of the father of the deceased and the complainant. Mohabit P.W. (not produced) is the first-cousin of aforesaid Ahmad P.W.
10. There are two versions of the occurrence, one narrated by the prosecution and the other by the defence, and the only question for decision in this case is as to which version is plausible.
11. The admitted facts are that 221 Acres of land in Square No, 19 was allotted to Shahbaz deceased and one Manzoor son of Gohar Ali in Square No, 19 of Chak No, 609/G.B. In equal shares. About a year or so prior to the occurrence that land was allotted to Ghulam Mehdi and Nazir Ullah P.Ws.
Who gave it to Sadullah and Jalla appellant for cultivation. Shahbaz deceased challenged the allotment of Ghulam Mehdi and Nazir Ullah in the Revenue Court. The case was ultimately decided in his favour by the Board of Revenue on 13-9-1977. The defence has brought on record a large number of documents to show that on the fateful day the said land was in their possession. This fact is also admitted by Qutba complainant. He stated "we had left the possession of the land when the same was allotted to the above mentioned persons" (Nazir Ullah and Ghulam Mehdi).... "the possession of the disputed land was with Sadullah and Jalla accused till the day of occurrence".
12. The prosecution version is that on the fateful day the deceased and his companions were going to Square No, 33 and when they reached near a sugarcane field in Square No, 19 near the Dhari of Sadullah accused, the accused persons armed with fire-arms and hatchet emerged from that sugarcane field and challenged Shahbaz deceased that he would not be spared. Sadullah fired a shot at him but it missed, upon which the deceased, the complainant and Moshin P.W. Ran towards the Dhari of Sadullah. The accused chased them and when they entered the said Dhari, Sadullah and Goga fired shots hitting the deceased while Lal fired at Mohsin P.W. Upon which both of them got into a room of the Dhari. Jalla appellant set fire to the Dhari, upon which they came out.
Thereafter, accused armed with fire-arms fired one shot each hitting the deceased, Jalla accused gave two hatchet blows to him from the wrong side, Lai accused fired at Mohsin P.W. And Jalla gave him two hatchet blows from wrong side.
' The defence version is that on 13-9-1977 the land dispute was decided by the Board of Revenue in favour of Shahbaz deceased. He did not wait to take possession through legal process, on 14-9- 1977 he along with Qutba, Mohsin and eleven others armed with guns entered into the Dhari of Sadullah to take its possession by force. Sadullah got into a Kotha of the Dhari in order to save himself. The deceased and his companions resorted to firing and ultimately set the Kotha on fire.
Sadullah came out of the Kotha and in the meantime Goga accused also reached there with the licensed gun of his father. He fired a shot in the air. Sadullah took the gun from him and fired at the complainant party in self-defence and ran away. The members of the complainant party took possession of the Dhari and removed the cattle and house-hold effects of Sadullah.
13. We have given very careful consideration to the evidence on the record to find out whether the complainant party was waylaid while going to Square No, 33 as alleged by the prosecution or it were they who resorted the violence and raided the Dhari of Sadullah to take forcible possession thereof, as maintained by the defence.
14. The disputed land is situated in Square No, 19 in Chak No, 609/G.B. According to Muhammad Yaqub, Revenue Patwari (P.W.8) who prepared the site plan, the village Abadi is towards the west of Square No, 19 at a distance of four Squares. He stated that if one has to proceed towards Square No, 33 from the village Abadi, Square No, 19 does not fall in the way. This circumstance militates against the prosecution version that the members of the complainant party had to pass near the Dhari of Sadullah in order to reach Square No,
33. To overcome this odd the complainant and Mohsin P.W. Changed their statements at the trial and gave their address as Thatha Naurka instead of Chak No, 609/G.B. The complainant stated that on the day of occurrence, he, the deceased and Mohsin P.W. Were going to Square No, 33 from their houses in Thatha Naurka which is a separate Abadi from Chak No, 609/G.B. He further stated that Abadi of Thatha Naurka is in Square No, 5 and that Square No, 19 is towards the south of aforesaid Square No,5. He asserted having stated in the F.I.R. That he was a resident of Thatha Naurka. He was confronted with the F.I.R.
Wherein it was not so recorded. Mohsin P.W. Also stated that they were going to Square No, 33 from Abadi Naurka. He was confronted with his statement under section 161, Cr.P.C. Wherein it was not so recorded. Obviously they made this material improvement to make out a case that in order to go to Square No, 33 which was to the south of Squre No, 19 they had to pass from Square No, 19 which was to the south of Thatha Naurka situate in Square No, 5.
The eye-witnesses have also not been able to show the purpose of their visit to Square No,
33. In the F.I.R. The complainant stated that a piece of land in a Square contiguous to Square No, 19 was under his cultivation and he along with Shahbaz deceased and Mohsin was going there for work. At the trial he gave out that he and his companions were proceeding to Square No, 33 "for looking after our Charri crop". Mohsin P.W. Admitted that he and his father had no land in Square No,
33. He stated that he had gone to that Square with the deceased for purchasing fodder from him and his brother Qutba. He, however, admitted that he had not stated so before the police and ultimately admitted that he had no business there. He denied having stated before the police that he was going to Square No, 33 for doing some work. He was confronted with his statement before the police wherein it was so recorded. It is evident that the complainant and Mohsin P.W. Have made material improvements and contradiction with regard to the place of their residence and purpose of _their visit to Square No,
33. They have changed the places of their residence evidently for the reasons that Square No, 19 does not fall on the way if one has to proceed to Square No, 33 from the village Abadi. In the circumstances, we are not persuaded to believe that the deceased and his companions were waylaid by the accused party while going to Square No, 33.
15. At the time of occurrence Sadullah and Jalla appellants were admittedly in possession of the disputed land. The defence version that the complainant party had raided the Dhari of Sadullah appellant in order to take forcible possession thereof gets support from the facts and circumstances of the case. The land dispute was decided by the Board of Revenue in favour of the deceased only a day before the occurrence, i.e, on 13-9-1977. From evidence it appears that the deceased was a desperado. Abdul Majid S.H.O. Admitted that he was a history sheeted. Mohsin P.W.
Admitted that the deceased was often arrested by the police. It is admitted by the complainant that there was previous enmity between the complainant party and Goga and Lal accused. He also admitted that there was serious enmity between the parties and six months prior to the occurrence proceedings under section 107/151, Cr.P.C. Were initiated against both the parties in which he along with Shahbaz deceased and six other relatives on one side and Sadullah appellant and two others from the other side were bound down to keep the peace. The question arises whether in that situation the complainant party, if they were attacked by the accused party while on way to Square No, 33, would try to take shelter in the Dhari of Sadullah appellant. It can be said without fear of contradiction that the deceased and his companions would never think of going to that Dhari. They must be fully conscious that there was absolutely no chance of their survival at the Dhari of their staunch enemy.
It is in the statement of the complainant that from the sugarcane field from which the accused emerged the Dhari of Sadullah was at a distance of two Acres. It is again unbelievable that the deceased and his companions who were being chased by four persons including three gunmen, would reach the Dhari situate at a distance of two Killas without suffering a scratch. Again, if the deceased and his companions were empty-handed they could conveniently be brought out from the Kotha of Sadullah by breaking open its door and there was no reason for the accused to set fire to their own property.
According to the prosecution the deceased entered the Kotha after receiving two gun shots, one on the left flank and the other on the right arm. Mohsin P.W. Also entered the Kotha after he had been hit on the left ear. Had it been so, a lot of blood must have flown inside the Kotha. The Investigating Officer stated that he did not see any blood inside the Kotha or at the door of the Kotha. The absence of blood inside the Kotha also militates against the prosecution version that the deceased and Mohsin P.W. Had entered the Kotha for shelter.
It is true that the accused party did not suffer any injury during the occurrence. Having given our careful consideration to this aspect, we feel inclined to the view that in the circumstances of the present case mere absence of injuries on the accused party is not a sufficient ground to hold that the accused party were the aggressor.
15. All the three eye-witnesses are closely related to the deceased and inimical towards the appellants. They have made material improvements at the trial and denied certain patent facts. It has already been mentioned that Qutba complainant and Mohsin P.W. Changed their residence from Chak No, 609/G.B. To Thatha Naurka in order to show that for going to Square No, 33 they had to pass from Square No,
19. The complainant denied that the deceased was a history-sheeter whereas this fact was admitted by the Investigating Officer. Mohsin P.W. Stated that "we had no enmity with the accused" while the complainant had J admitted that there was serious enmity between the parties. Similarly, Sikandar P.W. Stated that Goga and Lal were not on inimical terms with him but in the same breath he stated that Lal was a P.W. Against him in a case under the arms Ordinance. He further admitted that he was challaned in the cross-case under sections 452, 380 and 307, P.P.C. In the circumstances, the uncorroborated testimony of interested eyewitnesses was not sufficient to warrant the conviction.
After giving our careful consideration to the evidence and arguments of the learned counsel for the parties and having juxtaposed both the versions we feel inclined to the view that there is a reasonable possibility that the accused party had acted in self-defence. Keeping in view the facts and circumstances of the case, it cannot be said that the right of self-defence was exceeded. We, therefore, allow this appeal, set aside the conviction and sentence of the appellants and acquit them of the charges. They shall be set at liberty forthwith if not required to be detained in any other case.
' The death sentences of Sadullah, Lal Hussain and Goga are not confirmed.
' Criminal Revision No, 633 of 1981 automatically fails and is dismissed.