1. ' GHULAM MUJADDID MIRZA, J.--Muhammad Sharif, a retired revenue Patwari, his brother Khurshid Ahmad, Abdul Majid, Abdul Rashid sons of Muhammad Hussain, Muhammad Bashir, Barkat Ali, Rehmat Ali, Barkat Ali son of Jewan and Liaqat son of Barkat Ali, were tried by the Additional Sessions Judge, Sialkot, for forming unlawful assembly; trespass into the land of Muhammad Boota; murder of Pir Muhammad and attempt to murder Muhammad Boota, Mst. Sughran and Chuhar Din.
2. ' The trial Judge, by judgment, dated 19th December, 1981 convicted Muhammad Sharif, Khurshid and Abdul Majid under sections 302 and 324 read with 34, P.P.C. They were sentenced to imprisonment for life and a fine of Rs,10,000 each; or, in default two years, R.I. Each, for the capital offence. For causing injuries to the prosecution witnesses, they were sentenced to one year's R.I.
3. Each and a fine of Rs,1,000 or in default one year more, on three counts. Both the sentences were to run concurrently. The rest of the accused were acquitted of all the charges.
4. The convicts have filed two separate appeals. Criminal Revision (Criminal Revision No,380/82) was filed by Kaka in which notice was issued to the convicts to show cause why their sentence be not enhanced. Hence it is to be heard by a Division Bench. This judgment shall dispose of all the matters, ' The occurrence took place on 16-5-1980 at about Chhahwela, in the area of Mauza Ram which falls within the jurisdiction of Police Station, Head Marala, District Sialkot.
5. ' Report (Exh.P.G.) was lodged by Chaudhry Kaka, Gujjar, resident of village Dangial. It was recorded by Mazhar Hussain, Mbharrir Head Constable at Head Marala Police Station.
6. ' The prosecution case is that on the day of occurrence at about Chhahwela, Kaka alongwith Shukar Din son of Akbar An, were going to see Lal Din and another Kaka in village Rum. They met Mst. Jummi mother of Boota. She was sitting on the Banns of the field. She told Kaka P.W., and Shukar Din that Muhammad Sharif, Khurshid, Abdul Majid and Rashid, the accused party, were expected to come there to take possession of the land. The two stopped there. In the meanwhile, Muhammad Sharif, Khurshid, Abdul Majid, Rashid, Muhammad Bashir, Rehmat and Barkat All turned up. Barkat An and his son Liaqat Ali brought their tractor. On the asking of Muhammad Sharif, Liaqat All started ploughing the field with the tractor.
7. ' Muhammad Boota, Mst. Sughran, Ilam Din and Pir Muhammad also came to the spot. Mst. Jummi stood in front of the tractor. She was pushed aside by Barkat Ali. Muhammad Boota and Pir Muhammad stopped the tractor. Muahammad Sharif and others felt offended. Muhammad Boots and Pir Muhammad started running away. They were followed by Muhammad Sharif, Khurshid, Rashid and Abdul Majid. They were armed with Chhuris. Muhammad Bashir, Rehmat and Barkat had Dangs.
8. ' Muhammad Sharif opened the attack.He inflicted a Chhurri blow on the left flank of Pir Muhammad. Khurshid, Rashid and Abdul Majid also gave four or five Chhurri blows to Pir Muhammad. Pir Muhammad died there and then.
9. ' Muhammad Boots intervened. He was also given a Chhurri blow by Muhammad Sharif. He fell down. Khurshid then gave him a Chhurri blow. When Mst. Sughran intervened, she too was injured with Chhurri by Muhammad Sharif. Khurshid also gave her a Chhurri blow.
10. ' Chuhar then came from his Dera to the spot. He too was injured by Muhammad Sharif with Chhurri. Thereafter the accused party took to their heels alongwith their weapons as well as the tractor.
11. ' This was the statement which Kaka son of Hashim Din gave on oath before the trial Court. He did not depose about the motive.
12. ' Evidence with regard to the motive was given by Ilam Din son of Rehmat Ali Gujjar who is also an eye-witness. According to him the motive was that he (Ilam Din) was in cultivating possession of the disputed land. He was tenant under Muhammad Boota P.W. He used to pay the Batai of the land to Muhammad Boots. Muhammad Boota and his brother Pir Muhammad on one side and Muhammad Sharif and others on the other side were litigating for the land in dispute.
13. ' Five, six days prior to the occurrence, Abdul Majid accused asked Muhammad Boota to handover the possession of the land to him. The former was accompanied by Rashid. Boots refused to part with the possession.
14. ' Muhammad Boota, Ilam Din, Kaka, Chuhar Din and Mst. Sughran were examined as eye-witnesses in this case. The other evidence consists of the recovery of Chhurri Exh.P.9 at the instance of Abdul Majid, and the medical evidence which consists of the medico-legal reports of the injured as well as one of the appellants and the post-mortem report of the deceased.
15. ' We start with the evidence of Muhammad Boota, a refugee from India. He was allotted land in village Dangial. He settled down in Village Rum. He was allotted 27 Acres of land. Muhammad Sharif appellant was a revenue Patwari. In 1964, he was posted in the Halqa of Muhammad Boots. Sharif asked Boota to transfer his land and get the land of his relatives in village Rum. Sharif sold away the land belonging to Muhammad Boots for Rs,15,000 to one Ghulam Muhammad of village Rawal.
16. Muhammad Boota purchased land in village Rum from Abdul Ghani brother of Muhammad Sharif.
17. Muhammad Shafi and Iqbal Begum relatives of Muhammad Sharif were also owners of the land.
18. Boota paid Rs,15,000 for that land which was still in his possession. Mutation was also attested in his favour.
19. ' When the occurrence took place, he alongwith his daughter Mst. Sughran and brother Pir Muhammad were collecting Chaff from the field for taking it to their house lam Din P.W. Was present. Mst.Jummi, mother of Boots, was also there. The party noticed Muhammad Sharif and others along with tractor present in the nearby field which might be at a distance of 5 Acres from their village. Muhammad Boots and others went to that field. Within their sight, Muhammad Sharif asked Barkat Ali to plough the land with tractor. Liaqat All started plugging the land. Mst. Jummi intervened. She stopped the tractor. Barkat All pushed her away. Muhammad Boota and others begged Sharif not to take possession of the land forcibly. He refused to accede to the request.
20. ' Muhammad Sharif, Khurshid, Majid and Rashid took out Churns from the folds of their loin cloth.
21. Muhammad Bashir and Barkat (whose parentage was not known to Boota) and Rehmat had Dangs. Muhammad Boots, Pir Muhammad and Mst. Sughran started running away. They were chased by the accused party. They were overpowered in the field of Karam Din. Muhammad Sharif gave a Churn blow on the left flank of Pir Muhammad. Khurshid, Majid and Rashid gave one Churn blow each on the face, and in front side of neck of Pir Muhammad. Bashir gave a Dang blow on the right shoulder of Pir Muhammad. Pir Muhammad fell down and expired instantaneously. When Boota intervened, Sharif gave a Churn blow to him in the left flank. Khurshid also injured him with Churri. Bashir and Barkat All hit him with Dangs on his shoulder and right flank. Boota fell down and became unconscious. Kaka and Shukar Din were also present when all this happened.
22. ' Met. Sughran, a girl of sixteen daughter of Mohammad Boota deposed that when she along with her father and uncle Pir Muhammad deceased were taking away Chaff, they saw Mohammad Sharif, Khurshid, Abdul Majid, Rashid, Barkat Ali, Rehmat, Mohammad Bashir, another Barkat Ali and his son Liaqat, in the field with a tractor. The girl along with her father and uncle went to that field.
23. Kaka, Shukar Din and Ilam Din also reached there. Then she deposed how her grandmother came in front of the tractor but was not able to persuade the accused party to desist from plugging and taking over the possession of the land. According to her, Shari! Said that he would take the possession forcibly. The girl then said that Shari', Khurshid, Abdul Majid and Rashid took out Churris whereas Barkat, Bashir and Rehmat brandished their Dangs. The complainant party started running away. They were followed by the accused.
24. ' Mst. Sughran corroborated her father and accused Muhammad Sharif in opening the attack with Churri hitting her uncle Pir Muhammad. Thereafter, Bashir gave a Dang blow to Pir Muhammad, on his left shoulder. He fell down. Khurshid hit him with Churri on the neck but the blow landed on the front side of neck. She also blamed Abdul Majid, Rashid and Khurshid for inflicting one Churri blow each to Pir Muhammad. When Muhammad Boota intervened, he was injured by Muhammad Sharif.
25. Khurshid also gave him a Churri blow. She then implicated Barkat and Bashir who according to her gave one Sota blow each on the left shoulder and right flank of Muhammad Boota.Regarding her own part, she said that she intervened and Muhammad Sharif gave her a Churri blow on her right arm. Khurshid also injured her with Churri on her right flank. When Chuhar stepped in to intervene, he was given a Chung blow by Muhammad Sharif. Khurshid also injured him with Churri. The girl was medically examined.
26. ' The remaining two eye-witnesses are Ilam Din and Chuhar Din.
27. ' I am Din was present along with Muhammad Boota, Pir Muhammad and Sughran Bibi. He found few persons an'd a tractor going towards the disputed field. Muhammad Sharif, Abdul Majid, Rashid and Khurshid had Churris whereas Barkat Ali, Muhammad Bashir and Rehmat had Dangs.
28. According to Ilam Din, when the accused party brought out their respective weapons, they shouted and wanted to attack the complainant side. The complainant party ran but they were overtaken in the field of Karam Din. It was there that Muhammad Sharif opened the attack. According to this witness Pir Muhammad died as a result of injuries inflicted by those who were armed with Churris.
29. Nevertheless, Bashir was also blamed for giving a Dang blow to Pir Muhammad deceased. He also accused the persons who had Churris for injuring Boots, Chuhar and Mst.Sughran.
30. ' Chuhar deposed that when he reached the spot, Pir Muhammad was dead. Nevertheless, in his presence, Sharif, and Khurshid gave one Chhuri blow each to Boota. When Sughran intervened, she was given Chhuri blow by Sharif. He begged for mercy but instead he was given three blows with Churri. He fell down. The witness found Khurshid, Majid and Rashid armed with Churris there. He could not identify the accused who were armed with Dangs.
31. ' Abdul Majid was arrested on 17-5-1980. He got recovered blood-stained Chung P.9 on 28-5-1980 from the Sarkandas in the area of village Rum. The Churri was found to be stained with human blood, vide Serologist's report Exh.P.Y.
32. ' On 17-5-1980 at 11-15 Dr.Captain Muhammad Nawaz Medical Officer, Allama Iqbal Memorial Hospital, Sialkot, conducted post-mortem examination on the dead body of Pir Muhammad. He noticed six injuries. One was an abrasion 1" x 1" on right pinna. The rest were incised wounds 11" x 2" on right side of chin 1" below the lip; 11" x 1" about 4" below the above injury; 14" x 1" on center of upper chest about 1" above the sternal border; 14" x4" on left side of chest about 21" below the left axilla and 1" x 4" on left side of chest about 3" below and lateral of left nipple.
33. ' Injury No,1 was simple caused with blunt weapon. Injuries 2, 3 and 4 were also simple. They were caused by sharp-edged weapon. The remaining two injuries were grievous caused by sharp- edged weapon. In the opinion of the doctor these two injuries were sufficient to cause death in the ordinary course of nature.
34. ' On 16-5-1980 at 3 p.m., Dr.Khalid Munir Sulehri, Medical Officer, Allama Iqbal Memoral Hospital, medically examined Mst. Sughran Bibi. She had two injuries--one stab wound 11" x 1/3" situated on the back of right lower chest, and an incised wound 1" x 1/3" x muscle deep situated on the back of right upper arm above the right elbow joint. Both the injuries were simple caused by a sharp- edged weapon.
35. ' On the same day the same doctor examined Muhammad Boota. He noticed five injuries. Two were stab wounds, one contused swelling and two abrasions. All the injuries were declared simple.
36. ' Same day the same doctor examined Chuhar Din. The doctor found one stab wound 3.1" x 1" situated on outer side of left lower chest; and multiple abrasions below the stab wound in an area of 3" x 31". Injury No,1 was by sharp-edged weapon and the other with blunt weapon. Both were simple in nature.
37. ' The same doctor on the same day at 4-30 p.m., examined Abdul Majid accused. He had nine injuries in all. Two were stab wounds 11" x 1/3" situated on the abdomen about 3" on the left side of umbilicus and 1" x 1" x muscle deep on the back of left hip joint. Five were contusions 4" x 3" situated on the back of right fore-arm in the middle region; 34" x 14" on the back of right fore-arm near elbow joint; 6" x 21" on the back of right middle chest; 5" x 11" on the back of right lower chest and 6" x 1" on the back of left lower chest. The rest two were bruises 4" x 11" situated on the top of left shoulder joint and 4" x 11" on the back of right upper chest.
38. ' The two stab wounds were caused by sharp-edged weapon and the rest with blunt. The stab wound on the back and left hip joint and contusion on the back of right fore-arm were simple. The rest of the injuries were kept under observation and later on declared simple in nature.
39. ' The appellants denied all the allegations.
40. ' Muhammad Sharif denied the fact that in the year 1964 he was posted as Revenue Patwari in the Halqa of Village Dangial and during that period Muhammad Boota sold away his land measuring 27 Acres on his asking that he would get land for him in lieu thereof from his relatives in village Rum.
41. He vehemently denied all the allegations regarding the main occurrence; the part, attributed to him of killing Pir Muhammad and injuring others, He said that he and his brother had been falsely involved in this case due to enmity with the prosecution witnesses. When questioned by the Court, "Do you want to say anything else?", he gave the following version:- "I am innocent. The land in question was factually owned by my aforesaid relatives, viz. Abdul Ghani, Mat. Lqbal Begum, Rashid and Muhammad Shafi and I never owned it. I was never posted as revenue Patwari of village Dangial. I remained posted as revenue Patwari of village Rum only up to the year 1960. Abdul Majid my co-accused purchased the land in question from them in the year 1979 through two separate sale-deeds and sale mutation was sanctioned in his favour. In this way we had no interest in the land in question in the days of occurrence. Mohammad Boota P.W. Paid up Rs,15,000 to someone as the sale price of the land in question. He lodged a false suit against my relatives which was dismissed by the Civil Court, Sialkot, vide the judgment, 13-3-1979 copy Exh.D.F.
42. Muhammad Boota instituted a complaint against me before the Martial Law Authorities and so a criminal case was registered against me at P.S. Head Marala. The High Court quashed the criminal proceedings against me on my petition. On account of this background of litigation the complainant party was inimically disposed of towards me. Accordingly they ventured to implicate falsely my entire family including me in this case. Barkat,Muhammad Bashir and Rehmat Ali my co- accused used to appear in our defence during the prolonged investigation by the police. They were falsely dubbed as the culprits in this case later on. I was never present on the spot at the time of occurrence."
43. ' Similarly, Khurshid brother of Sharif denied all the allegations. He said that he was not present at the spot. He relied on the detailed statement given by his brother Muhammad Sharif but said that he would like to lead defence evidence.
44. ' The third appellant Abdul Majid also denied all the allegations. He denied the recovery of Chhurri.
45. His answer to the question, "Do you want to say anything else?" is as under:- "I am innocent. I purchased the land from Abdul Ghani, Muhammad Shan, Mst. Iqbal and Rashid in the year 1979 through two separate registered sale-deeds, got the possession thereof. Even the sale mutation was attested in my favour. I was in actual physical possession of the land in question in the days of occurrence because I obtained the possession from Ilam Din and Muhammad Sadiq its tenants under me. I produce the document Exh.D.G. About the delivery of possession by Muhammad Sadiq tenant of mine.
46. ' On the day of occurrence I had gone to plough up the land of Khasra No,335. When I was about to plough up the land Pir Muhammad deceased Muhammad Boota and Mst. Sughran P.Ws. And Chuhar Din P.W. Etc. Launched attack upon me. I was injured by them. On my alarm my son Arshad Pervaiz and some other relatives of mine came from the village to the spot. They helped me and rescued me from the assaillants. In that process Pir Muhammad deceased and aforesaid P.Ws. Suffered injuries on the spot. I then acted in my defence and also in the defence of my property while causing injuries to them. The case is still under investigation with the Crimes Branch, Lahore. The prosecution case is reportedly held to be false one."
47. ' Learned counsel appearing for the appellants contended that the ocular account is discrepant. It is not reliable. Even, otherwise, the eye-witnesses are interested. As such, no reliance could be placed on their testimony.
48. ' More stress was laid by the learned counsel on the statement of Abdul Majid on the basis of which it was argued that the possession at the time of occurrence was with appellant Abdul Majid. He was attacked by the complainant side. He had a legal right to defend his person and property. It was in exercise of that right that one man died and few others were injured.
49. ' Learned counsel submitted that if the prosecution case is examined in juxta position with the defence story it becomes evident that the defence version was more reliable.
50. ' He submitted that Abdul Majid in his statement claimed to have bought the land from Abdul Ghani, Muhammad Shafi, Mst.Lqbal Begum and Rashid. He even claimed the possession thereof-- actual physical possession. Possession was obtained from Ilam Din and Muhammad Sadiq. He produced document Exh.D.G.
51. ' Abdul Majid appellant examined two witnesses in defence. Muhammad Sadiq (D.W.3) and Naved Bhalli, Advocate (D.W.4).
52. ' Muhammad Sadiq deposed that on 30-4-1980 he executed an agreement (Exh. D.G.). It was in favour of Abdul Majid. It bore the thumb-impression of the witness. He further said that he had already handed over the possession of the land in question to Abdul Majid who was its owner. He said that he had purchased the stamp paper on his own. Munir the deed-writer scribed it. The document was attested by Naved Akhtar Bhalli, Advocate, as a Notary Public. Muhammad Sadiq further said that he was never the tenant of Muhammad Boota and Pir Muhammad deceased.
53. According to him he was shown as tenant of Abdul Majid in the Khasra Girdawari before the occurrence.
54. ' Naved Bhalli, Advocate, testified that he attested document Exh.D.G. As Notary Public and his report was Exh.D.G./1.
55. ' Sultan Ahmad, D.S.P., Crimes Branch, Punjab, Lahore, was examined as a Court witness. He said that the police file pertaining to this case had been entrusted to him on 28-11-1981 for further investigation but he did not conduct any investigation in this case.
56. ' The prosecution case is that when the occurrence took place the possession was of Boots. In order to prove this, learned counsel for the complainant drew our attention to an interlocutory order, dated 13-3-1979 printed at page 170 (Exh.P.T.T.) of the paper book, which according to him was a stay order and on the basis of which Boota claimed the possession. The order on the paper book was not legible. We, therefore, ordered the original record to be sent for. This was agreed to by the learned counsel appearing in this case from the side of the appellants, the State as well as the complainant.
57. ' The file was duly received. Its perusal shows that on 25-5-1978, Boots, and Pir Muhammad filed suit for permanent injunction against Abdul Ghani, Abdur Rashid, Muhammad Shafi, Mst. Iqbal Begum and others, in the Court of Senior Civil Judge, Sialkot. Along with this, an application under Order XXXIX. Rule 1 & 2, C.P.C. Was also filed in which the prayer was as under:- {{URDU TEXT}} ' The application was supported by an affidavit of Mohammad Boota. The record of the Court of the Senior Civil Judge shows that on different dates other applications were moved by Muhammad Boota. It is not necessary to mention the particulars of those. The gist of those applications was that the other side i.e, Abdul Ghani and others were trying to take forcible possession.
58. ' On 13-3-1979, the Civil Judge who was seized of the matter passed the following order:- ' The prosecution case is that the aforesaid stay order by means of which status quo was maintained was in operation when the incident took place.
59. ' After going through the relevant documents relied upon by the defence as well as by the complainant side, we are of the view that the order, dated 13-3-1979 was in force. In this connection we would also like to mention that our attention was drawn to a writ petition No,2491/77. That was filed by Muhammad Shafi etc. Against Muhammad Boota and Pir Muhammad. The relief prayed in this petition was:- "...That writ petition may very kindly be accepted and the respondents be restrained from interfering with the possession of the petitioners and also should not compel the petitioners to execute the sale-deed in favour of the respondents Nos.1 and 2 in any manner whatsoever.
60. ' It is, further prayed that stay order may very kindly be granted to the effect that the possession of the petitioners may not be disturbed and that the petitioners may not be compelled to execute the sale-deed."
61. ' In this petition the petitioners claimed to be the owners of the land in dispute which was given in Annexure (A) to the writ petition which is a sale-deed. Khasra No,335 finds mention in this.
62. ' This writ petition was admitted to regular hearing on 28-9-1977. Further proceedings were stayed in the matter. Since then the matter is pending adjudication. It has not yet been disposed of.
63. ' We don't think the appellants can get any benefit of this petition or the order passed in this by the learned Judge of this Court. On the other side the relevant order is, dated 13-3-1979 which has been referred to above.
64. For the foregoing reasons we are clear in our mind that there is no substance in the plea of Abdul Majid that he was in actual physical possession of the property when the occurrence took place.
65. The matter, however, does not end here.
66. ' We have now to examine the ocular version in order to make sure whether that evidence is reliable or not.
67. There can be no doubt about the presence of those who were injured. All of them categorically implicated the three appellants who were armed with Churris; for causing injuries to them and committing the murder of Pir Muhammad. Their presence is established. They named who were their assailants and who killed Pir Muhammad. Apparently, there appears to be nothing wrong with their evidence.
68. ' But one fact yet remains to be looked into. That is the injuries on the person of Abdul Majid appellant.
69. On 16-5-1980 at 4-30 p.m., Abdul Majid was privately examined by Dr. Khalid Munir Sulehri, Medical ,Officer, Allama Iqbal Memorial Hospital, Sialkot. His injuries have been referred to above. In all he had nine injuries. With the exception of two injuries which had been caused by sharp-edged weapon, the rest were the bruises and contusions. One sharp-edged and six other injuries were kept under observation. Ultimately, all the nine injuries were declared to be simple. The defence as disclosed by Abdul Majid in his statement under section 342, Cr.P.C. Was put to the eye-witnesses.
70. That was denied by them.
71. ' From the accused side, four persons, namely, Muhammad Sharif, Khurshid, Abdul Majid and Rashid, were armed with Churris. In all four persons including the deceased were injured from the complainant side. In the absence of any evidence to the contrary, especially in a clash of this type, the possibility cannot be ruled out that Abdul Majid might have been injured by a friendly hand.
72. For the foregoing reasons, we are of the view that the ocular version supported by the recovery of Churri P.9 and the medical evidence leaves no room for doubt about the participation of the appellants in the commission of the crime and the part attributed to them. In our view, they have been rightly convicted.
73. In the revision filed by the complainant, notice for enhancement was issued on the ground that the trial Court while awarding life imprisonment did not give reason as to why they were given lesser sentence than death. This is the correct position. We don't find any reason in the impugned judgment as to why the capital sentence was not given. In a murder case the trial Court is not only expected but is under a legal duty to give reasons while awarding lesser sentence than death.
74. However, we are not inclined to enhance the sentence now. The reason being that the occurrence took place on 16-5-1980; judgment was announced on 19-12-1981; the appellants are behind the bars since they were arrested. Even, otherwise, after the lapse of four years, it will not be in the interest of justice to send them to gallows.
75. There is yet another reason why the death sentence is not called for. That is that it has not been established by the prosecution as to which of the blows inflicted by the three appellants resulted in the death of the deceased. Two of the injuries of Pir Muhammad, according to the opinion of the doctor (injuries 5 & 6) were sufficient to cause death. It has not been proved as to which of the appellant was responsible for inflicting these injuries. Hence, we are not prepared to enhance the sentence awarded by the trial Court.
76. ' The revision is accordingly dismissed. So are the appeals filed by the appellants.