1. NASIM HASAN SHAH, J.--This order will dispose of Criminal Petition No. 40-R of 1986 and Criminal Petition No. 217 of 1986, as both are directed against one and the same order passed on 20-4-1986 by a learned Division Bench of the Lahore High Court in Murder Reference No.35 of 1983 and Criminal Appeal No.15 of 1983.
2. Six persons, namely, Muhammad Nawaz son of Sher Shah, Muhammad Sadiq son of Sher Shah, Fateh Khan, Sher Shah, Sher Bahadur and Lal Khan were tried for the murders of Abdul Ghafoor and Muhammad Khan deceased and for causing injuries to Bahishtan, P.W.8.
3. The learned trial Judge (Sessions Judge, Mianwali) convicted Muhammad Nawaz and Muhammad Sadiq under section 302 sentencing the former to death and Muhammad Sadiq to life imprisonment. However, the other accused persons viz. Fateh Khan, Sher Shah, Sher Bahadur and Lal Khan were acquitted.
4. The convicts appealed against their convictions and sentences while Muhammad Siddique complainant filed a revision seeking enhancement of the sentence of life imprisonment imposed upon Muhammad Sadiq to death. He also prayed for setting aside the acquittal of the remaining four accused. The appeal of the convicts and the revision filed by the complainant along with the reference submitted by the learned Sessions Judge for confirmation of the sentence of death came up before a Division Bench of the High Court. The learned Division Bench accepted the appeal of the convicts to the extent that the sentence of death imposed upon Muhammad Nawaz was reduced to life imprisonment while Muhammad Sadiq was given the benefit of doubt and acquitted. The revision filed by the complainant Muhammad Siddique against the acquittal of the remaining four accused was dismissed. Hence two criminal petitions have been presented before us: Muhammad Nawaz in his petition (Cr. P.No.40-R/86) challenges his conviction under section 302, P.P.C. And seeks acquittal; while Muhammad Siddique (complainant) in his petition (Cr. P. No. 217/86) seeks enhancement to the sentence imposed on Muhammad Nawaz to death and for reversal of the order of acquittal passed in respect of the remaining accused.
5. The prosecution story is that a piece of land lying almost in front of the Haveli of Muhammad Khan deceased and situate towards the West of the house of Muhammad Sadiq accused, was the bone of contention between the parties. In the revenue papers it was entered as in the ownership of Sher Shah accused but was, however, consistently shown in possession of Muhammad Khan deceased and his brother with the remark "Bila Lagan".
6. During the consolidation proceedings its status was changed to Ghair Mumkin Abadi which change was challenged by Sher Shah accused in appeal before the Additional Deputy Commissioner (Consolidation). The appeal was accepted and the earlier entry was restored.
7. Muhammad Khan (deceased) went in appeal but could not succeed. Notwithstanding all this the disputed plot continued to be entered in the revenue papers as in possession of Muhammad Khan deceased and his brothers. On account of this background of litigation and acrimonious relations between the parties, on 26-12-1981 at 9 a. m. When Muhammad Khan deceased was present in his house, along with his sons Abdul Ghafoor (deceased) and Muhammad Siddiq (petitioner), along with Bahishtan, the accused persons viz. Sher Shah, Muhammad Nawaz, Sher Bahadur and Muhammad Sadiq, armed with guns, Lal Khan with a vahola and Fateh Khan with a Soti, came to the disputed plot with a view to raising a wall, in the foundation dug out by them a day earlier.
8. Seeing them doing so Abdul Ghafoor (deceased) standing in the courtyard of his Haveli forbade them from raising the wall but they did not desist. When he insisted a controversy arose between them and all the accused, armed as aforesaid trespassed into the Haveli of Muhammad Khan (deceased). Opening the attack Muhammad Nawaz accused fired a shot at Abdul Ghafoor (deceased) hitting him in the front chest followed by Sher Bahadur accused whose shot hit Abdul Ghafoor on the belly. As a result of the injuries Abdul Ghafoor fell down and died at the spot. Seeing this, Muhammad Khan, father of Abdul Ghafoor, stepped forward to intervene but he was fired at by Muhammad Sadiq accused receiving pellet injuries on his left leg. Sher Shah accused pelted a stone on his arm followed by Lal Khan accused who gave him Vahola blow on the back of his right hand while Fateh Khan accused gave him Soti blow on his right arm. As a result of these injuries Muhammad Khan too fell down. Mst. Bahishtan P.W., wife of Muhammad Khan, tried to intervene but she was attacked by Sher Bahadur accused who gave her blows with the butt of his gun. When the two injured persons were lying on the ground and Abdul Ghafoor was almost breathing his last, the accused started giving them kick blows. Muhammad Siddique complainant, who was present nearby, witnessed the occurrence. He could not tolerate all this and picking up a hatchet gave blow with it to Muhammad Sadiq and Lal Khan accused. The accused then left the scene of occurrence and went away.
9. The High Court did not accept the above version of the incident, put forth by the prosecution and in its judgment observed that:--- "No doubt the order Exh.DD of the A.D. C. (C) dated 20-10-1979 and the order passed in revision Exh.
10. D.E. Dated 14-4-1980 lend support to the case of Sher Shah that he was in possession of the disputed piece of land which was adjacent to the house of the accused and was situate towards the sought and separated from the Haveli of Muhammad Khan (deceased) by a 12 feet wide thoroughfare."
11. The learned Judges went on to add:- "At this stage, it may be mentioned that towards the east of this land is the property of one Ghulam Muhammad potter which admittedly was sold by Sher Shah to him but it was never objected to by the complainant there. Admittedly, the portion sold to the potter was part of the same disputed land. Trial Court has also observed that the defence could have produced the Patwari or Girdawar of the Consolidation who had demarcated and given the possession of the land but in the absence of his statement, it held that the complainant on account of the entries in the Revenue record was in possession of the piece of the land. The order of A.D.C. (C) Exh.D.D and that of Commissioner in revision Exh.D.E. Relied upon by the accused, undoubtedly supported the ownership of the accused over the disputed land of which he has also claimed possession."
12. It was further remarked:- "That in the First Information Report Exh. C.W./1 complainant claimed that he had won the case before the A . D . C . (C) and even in the High Court but no such document giving the decision in his favour has been produced by the prosecution except for the revenue Khasra Girdawari etc. It is further to be noted that when the foundations were being dug in the evening, no objection was raised. In view of these circumstances we are not satisfied with the prosecution case with regard to the possession of the land. But on the other hand, we find that Muhammad Nawaz accused fired at a time when Abdul Ghafoor had receded and had reached in the courtyard of his Haveli which would mean that if at all the accused had any right of defence of his brother and father, it had become extinct on the receding of the deceased. It is also evident from the medical evidence and the other circumstances of the case that except Muhammad Nawaz no other accused was armed with firearm. In fact, when the construction of the wall was going on, there was no fire arm with them. Had there been four guns with them as alleged by the prosecution, the complainant, party would not have dared to go near them, what to say of having caused sharp-edged weapon injuries to two of the accused. The fact that Muhammad Sadiq suffered an incised injury which cut the skull bone, Lal Khan had a contusion wound on the skull and Sher Shah suffered an incised wound on his head are clear indication that the accused who were present at the spot were unarmed."
13. Coming to the case of Muhammad Nawaz the High Court observed:- "In all probability on hearing the alarm of his co-accused, Muhammad Nawaz appeared with a licensed gun who lives near the place of occurrence and on seeing him, the complainant party receded towards their Haveli and out of excitement and anger he fired at them. He, therefore, cannot be said to have acted in self-defence. Had he fired at the deceased at the place of occurrence when his brother and father were being attacked, then the matter would have been different but since the two deceased were hit in the courtyard of their Haveli which is across the thoroughfare, it is obvious that they were attacked when the right of defence had become extinct because the deceased had receded. Muhammad Nawaz thus acted out of the vengeance and fired a shot which in all probability hit both Abul Ghafoor and Muhammad Khan in the leg" .
14. Discussing the case of Muhammad Sadiq, the learned Judges observed:- "That according to the doctor, the fire-arm, injury to the two deceased could be the result of a single shot. Moreover, the other circumstances of the case also lend support to the fact that only Muhammad Nawaz used a fire-arm. Muhammad Sadiq had been soincapacited by the attack on his head which had cut the skull bone that he could not use a fire-arm nor is one recovered from him during the investigation. We, therefore, give him the benefit of doubt and acquit him."
15. On this view of the matter, the conviction of Muhammad Nawaz was maintained but in view of all circumstances the sentence of death passed against him was not confirmed and this was altered to life imprisonment.
16. After having heard Mr. M. Bilal, in support of Criminal Petition No. 40-R of 1986 and Mr. Ijaz Hussain Batalv in support of Criminal Petition No.217 of 1986 eye do not think that any interference with this well-considered judgment of the High Court is called for. We observe that in support of the respective pleas that this judgment needed correction, the learned counsel for both the parties merely wanted us to re-appraise the evidence and to come to a conclusion different from that arrived at by the High Court. However, it was not shown to us' that any evidence had been misread or that any principle of law had been decided wrongly: the criticism merely was that the evidence had not been properly appreciated. This is no ground on which this Court can interfere.
17. Both the petitions, accordingly, fail and are dismissed hereby.