' Iftikhar Hussain Shah appellant was convicted by learned Sessions Judge, Jhang, by order dated 30-4-198u, under section 302, P.P.C. And sentenced to imprisonment for life plus a fine of Rs,6,000 or in default to suffer two years' further R.I. For the murder of Said. He has come up in appeal against his conviction and sentence.
2. The prosecution case as stated in the F.I.R. In brief is that Allah Ditta complainant was a tenant of Anwar Shah of Haveli Bahadar Shah and resided at Chah Lahorianwala. One Taqi Shah used to visit his house who developed illicit relations with Mst. Bhagan daughter of the complainant. Taqi Shah was stopped to visit the said house. At this Ghulam Jafar Shah, a brother of Taqi Shah, came to the house of Allah Ditta complainant and abused him. Said deceased, a son of Allah Ditta, gave stick blows to Ghulam Jafar Shah and insulted him. This incident took place at Chah Ali Khananan and on account of the said occurrence, Allah Ditta complainant and his family shifted to Chah Lahorianwala. It is further alleged that on 30-5-1979, at about sunrise time, there was a quarrel between Said deceased on one side and Iftikhar Hussain Shah and lqbal sons of Ghulam Jafar Shah on the other side. On the same day, at about 11.00 a.m., it is alleged that Allah Ditta complainant alongwith his son Said deceased, Riaz P.W. And Ahmad (given up P.W.) were harvesting their crops at the Khalian when all of a sudden, Iftikhar Hussain Shah appellant armed with pistol alongwith Kazam Shah armed with Sota (acquitted accused) came there. At that time, Said deceased had just started towards the nearby field to cut fodder. The accused challenged him whereafter Iftikhar Hussain Shah fired three successive shots hitting Said deceased on his chest. Kazam Shah gave stick blows to the deceased. The witnesses tried to intervene when Kazan, Shah gave two Soti blows to Riaz P.W. Said deceased died at the spot. After registration of the case, the police undertook investigation.
3. Iftikhar Hussain Shah appellant and the acquitted accused Kazam Shah were arrested on 2-6- 1979. Iftikhar Hussain Shah appellant on 5-6-1979 led the police to his house in custody and got recovered one unlicensed pistol P.5 alongwith three empties P.6/1-3 and three live cartridges P.7/1- 3, which were taken in possession vide memo. Exh. P.G. These were sent to the Fire-arms Expert who vide report Exh.P.R. Opined that the three empties P.6/1-3 had been fired from the pistol P.5. Kazam, Shah accused got recovered stick P.4 on 2-6-1979 which was taken in possession vide memo.
Exh.P.F. Both these recovery memos. Exh.P.F. And Exh.P.G. Respectively were attested by Hadayat P.W. 5 and Muhammad Ibrahim S.I. P.W.
8. Anwar Ali P.W. Was not examined. The police also recovered two live cartridges P.8/1-2 from the spot vide memo. Exh.P.K. Attested by Allah Ditta P.W. 6 and Muhammad Ibrahim S.I. P.W.
8. Blood-stained earth was also collected vide memo. Exh.P.J. From the spot on 30-6-1979, which was found to be stained with human blood vide report of Serologist Exh.P.Q. After investigation, the appellant and his co-accused were challaned. They were tried by the learned Sessions Judge, Jhang who vide impugned judgment acquitted Kazam Shah by holding that he "might have been present at the spot in company of Iftikhar Hussain Shah at the relevant time but his active participation in the occurrence or his sharing the criminal intentions of the co-accused appears to be extremely doubtful." Iftikhar Hussain Shah accused was convicted as stated above. The learned Sessions Judge relied upon the ocular evidence which was supported by the evidence regarding motive and that of the Medical Officer. The learned Sessions Judge in the concluding portion of paragraph 11 at page 11 of the judgment observed that "in all probability, Iftikhar Shah accused was the aggressor- and even if it is assumed, without conceding, that he had been made the victim of aggression, he had certainly exceeded his right of self-defence in causing fatal fire-arm injury to the deceased." He, therefore, found him guilty of culpable homicide amounting to murder.
4. During the trial, the prosecution examined eight witnesses in all. Dr. Munawwar Hussain P.W. 1 conducted post-mortem examination on the dead body of Said deceased and found one fire-arm injury on the front right chest besides two contusions and one abrasion on the person of the deceased. Injury No, 1 had been caused by fire-arm while rest of the injuries by blunt weapon. Injury No,1 was sufficient in the ordinary course of nature to cause death. Riaz P.W. Was found to have only one abrasion on the left side of the forehead. Iftikhar Hussain Shah appellant was also examined on the same day i.e, 31-5-1979. He was found to have one lacerated wound on the left side of head, one contusion on the left shoulder and an abrasion on the right hand. These injuries were simple in nature and had been caused by a blunt weapon. In cross-examination, this witness admitted that the medico-legal examination report of Iftikhar Hussain Shah was recorded in the register at Serial No, 444 of 1979. It was further admitted by him that at Serial No, 443, dated 31-5-1979, he had recorded the result of medical examination of Mureed Abbas copy of which was Exh.D.B and at Serial No, 445, he had recorded the medico-legal examination of Tabarrak Hussain copy of which was Exh.D.C. These two persons had come for medico-legal examination alongwith Iftikhar Hussain appellant. Hadayat P.W. 5 witnessed the recoveries of Sota and pistol-from the two accused and attested the recovery memos. Exh.P.F, and Exh.P.G. He was a Kardar of Anwar Shah whose land was being cultivated by Allah Ditta complainant as tenant. Allah Ditta P.W. 6 is father of Said deceased.
He supported the prosecution case as stated by him in the F.I.R. He also joined the investigation and attested the recovery memos. Of articles from the place of occurrence. He also provided evidence regarding motive in this case. Riaz P.W. 7 who was also injured at the spot corroborated the statement made by Allah Ditta P.W.
6. It was admitted by him that Said deceased was his maternal uncle and that he was also a tenant of Anwar Shah. Muhammad Ibrahim S.I. P.W. 8 investigated the case. The rest of the witnesses are of formal nature.
5. The accused denied the charge. Iftikhar Hussain Shah accused pleaded that on the day of occurrence, the cattle of Said deceased trespassed into his field. He wanted to take them to the cattle-pond but Said deceased objected to that. He further stated that at the time of occurrence he was returning to his house and was near the land of Azhar An, when suddenly Said deceased alongwith his relatives attacked him. He raised alarm which attracted Tabarrak Hussain and Mureed Abbas. At that time, Amir a companion of Said deceased had a pistol with him with which he fired twice at him. Tabarrak Hussain in order to protect him, gave Danda blow to Amir as a result of which pistol fell down from his hand which he picked up and in order to save himself, fired at Said who was giving him Sota blows at that time. No evidence was led in defence.
6. I have gone through the record of this case with the assistance of learned counsel for the appellant and the State. It is contended by the learned counsel for the appellant that the eye- witnesses were closely related to the deceased and had a motive to make a murderous assault on Iftikhar Hussain Shah appellant as a result of which he acted in the right of his self-defence; that the land where Allah Ditta P.W. 6 was said to be present, did not belong to Anwar Shah nor was the same in his possession and as such, the story that the deceased was going to cut fodder or that they were thrashing the crop in that Khalwara is not believable. The said land belonged to one Azhar All and as such, the prosecution case is false. It was further contended that the motive was with the complainant party and not with the appellant to attack Said deceased. Regarding the recoveries, it was contended that these were of no avail to the prosecution because admittedly the pistol and the crime empties were recovered at one and the same time. Finally, it was argued that the injuries on the person of Iftikhar Hussain Shah appellant and his two companions Tabarrak Hussain and Mureed Abbas have not been explained by the prosecution which indicate that the story put forth by the appellant is correct. The learned counsel for the State has controverted the above arguments.
6-A:I have considered the contentions of the learned counsel for the appellant. It will be observed that even the learned trial Judge was in doubt about the nature of offence committed by Iftikhar Hussain Shah appellant. He did not believe the part attributed to Kazam Shah, a co-accused of the present appellant. In the instant case, Iftikhar Hussain Shah accused was injured. In the F.I.R., it was stated by Allah Ditta complainant that in their defence they had also caused injuries to the accused persons. According to this document, only Iftikhar Hussain Shah and Kazam Shah were present. As mentioned in the F.I.R., both the accused were injured at the time of occurence. Kazam Shah did not have any injury on his person nor was he ever got medically examined. This means that the complainant Allah Ditta wrongly stated in the F.I.R. That both accused were given injuries in self-defence by them. This indicates that besides Iftikhar Hussain Shah appellant, some other persons from the accused side were also injured which fact has been concealed by the complainant in the F.I.R. From the statement of Dr. Munawwar Hussain P.W. 1, it is clear that along with Iftikhar Hussain Shah, Tabarrak Hussain and Mureed Abbas were also found injured and were medically examined. The injuries of these two persons had not been explained by the prosecution.
Secondly, the place of occurrence as admitted by the Investigating Officer, belonged to one Azhar Ali. The complainant Allah Ditta or Riaz P.W. Or even Said deceased were not the tenants of Azhar Ali aforesaid. It establishes that the land where the occurrence took place did not belong to Anwar Ali nor is there any evidence that the said land was in possession of Allah Ditta or his deceased son.
They had, therefore, no business or right to be there. The place of occurrence is close to a path which lies in between the place of residence of Iftikhar Hussain Shah appellant and the place where the land of the father of Iftikhar Hussain Shah accused is located. This was the normal passage on which the accused would travel and always travelled while coming from the land back to his house. It, therefore, appears that the accused Iftikhar Hussain was coming back on his normal path to his house when he was surprised by Said deceased who had a motive to assault the appellant. The motive in this case is stated to be illicit relations between Taqi Shah and Mst.
Bhagan, a sister of the deceased. Taqi Shah was abused by the deceased on account of which Ghulam Jafar Shah had gone to the house of the complainant to lodge protest. It is the prosecution's case that Ghulam Jafar Shah had abused Allah Ditta and his family members by going to their house. Iftikhar Hussain Shah appellant is son of the said Ghulam Jafar Shah. I am not prepared to believe that there were two separate incidents on the day of occurrence as stated by the prosecution. It appears that there was only one occurrence when the appellant was returning back to his house from his land and was surprised by Said deceased and his companions. The prosecution case is supported only by two witnesses who are closely related to the deceased and had a motive to support the prosecution case against the present appellant. The recovery of pistol is of no value in the instant case because it was recovered alongwith the crime empties which makes this evidence doubtful. The evidence of motive cannot also be pressed in service by the prosecution in support of its case. In my opinion it was the complainant party who had the motive to assault Iftikhar Hussain appellant. The two crime empties alleged to have been recovered from the spot were not mentioned in the inquest report. This cannot, therefore, provide any corroboration to the ocular evidence.
7. In view of the above I find that the appellant Iftikhar Hussain Shah acted in the right of his private defnece and the deceased was aggressor in the instant case. He did not exceed in the exercise of his right of private defence. As such, this appeal is accepted and the conviction and sentence of the appellant is set aside. He is acquitted and his bail bonds are discharged.