1. JAVID IQBAL J.-- Sultan Khan, Ghulam A.I, Nazar Hussain and Mustafa along with Allah Bakhsh absconder were tried for offences under sections 148, 302/149, 325/149 and 447/149 of the Pakistan Penal Code by the Additional Sessions Judge Montgomery (now Sahiwal) for the double murder of Sher Muhammad deceased and his son Muhammad Asghar deceased as well as for having caused injuries to Afsar A.I P.W.3 another son of Sher Muhammad deceased but they were vide judgment dated 20th July, 1965 of the aforesaid Additional Sessions Judge given the benefit of doubt and acquitted. The Additional Sessions Judge while observing that the defence version to the effect that Sultan Khan and Allah Bakhsh absconder alone were ploughing their land when they caused injuries to the other side in the exercise of their right of private defence may be nearer to the truth, summed up his finding as follows.
2. "To sum up we have the eye-witnesses account of the incident by four witnesses, who are neither independent nor disinterested. These witnesses are of doubtful veracity as each of them has made self-contradictory statements and there is no independent circumstantial evidence to corroborate their testimony. Under these circumstances the prosecution version, that the accused with one Allah Bakhsh had formed an unlawful assembly having armed themselves with deadly weapons with the common object to taking by force the possession of the land in dispute or with the common object of murdering Sher Muhammad and Asghar an injuring Afsar is not substantiated by unimpeachable evidence and the defence version that Sher Muhammad along with his two sons, carrying Sotis and a hatchet came to the site, where Sultan and Allah Bakhsh were ploughing the land, which legally belonged to them at that time and assaulted them with the intention of dispossessing them, and the fight ensued resulting in injuries to both sides, Sher Muhammad and Asghar succumbing to the injuries may not be incorrect. And as the onus to prove the prosecution case beyond reasonable doubt must always lie on the prosecution, I find that the prosecution has failed to do so and consequently giving the accused benefit of doubt I acquit them. Ghulam A.I, Nazar and Mustafa are already on bail. Their bonds shall stand discharged. Sultan to be released forthwith provided he is not required in any other cases."
3. The State did not file any appeal but Afsar A.I injured PW complainant and first informant in the instant case filed a private criminal revision in the Lahore High Court after obtaining a formal certificate that the State had no intention to file any appeal in this case. This revision was accepted by a learned Single Judge who vide his judgment, dated 15th July, 1976 set aside the judgment of the Additional Sessions Judge and directed retrial of the case de novo.
4. Leave to appeal in this case was granted in order to consider the question whether in the overall facts and circumstances it was a proper case for directing a retrial according to the law relevant' on the subject after a lapse of considerable period, and retrial was stayed in the meanwhile.
5. According to the prosecution version the occurrence took place on 22nd May, 1964 at Pehr Din Charrhey time in Chak No.79/12-L at a distance of 8 miles from Police Station Shahkot District Montgomery. The F.I.R. Was lodged by Afsar A.I P.W. Son of Sher Muhammad deceased at 1 p.m. On -the same day and it was recorded by Ghulam Rasul M.H.C. P.W.16. It was stated in the F.I.R. That Sultan Khan, Ghulam A.I, Nazar Hussain and Mustafa appellants along with Allah Bakhsh absconder armed with hatchet, Sota, Dang, Sota and Pistol as well as Sota, respectively, were seen ploughing Killa No.7 of Square No.41 the possession of which was claimed by Sher Mohammad deceased, his father. On seeing this Afsar A.I P.W. Came to his father Sher Muhammad deceased and told him about it whereupon Sher Muhammad deceased along with Afsar A.I P.W. As well as his other son Muhammad Asghar deceased came to the spot and protested to the accused party for their trespass. This led to exchange of abuses. Then Allah Bakhsh absconder pulled out a pistol and fire at Sher Muhammad deceased but missed. Sher Muhammad deceased fell down and thereafter Sultan Khan appellant as well as Allah Bakhsh absconder started giving him blows with hatchet and Sota. When Afsar A.I P.W. And Muhammad Asghar deceased advanced further in order to rescue their father, Muhammad Asghar deceased was given blows by Ghulam A.I and Sultan Khan appellants with their respective weapons. He also fell down. Then Afsar A.I P.W. Was injured at the hands of Nazar Hussain and Mustafa appellants on his left forearm, head and leg. The occurrence was witnessed also by Sarwar P.W.4, Ata Muhammad P.W.5 and Abdul Ghani P.W.6 besides Afsar A.I P.W. The accused then decamped. Both Sher Muhammad and Muhammad Asghar deceased died on the spot as a result of the injuries sustained by them.
6. The prosecution has produced four eye-witnesses of the occurrence out of which one is son of Sher Muhammad deceased and the other three are stated to partisans. All these eye-witnesses have been disbelieved by the trial Judge for the reasons stated in his judgment. So far as the recoveries in this case are concerned, Allah Bakhsh was stated to be an absconder who was armed with a pistol and a Sota. However, human blood-stained hatchet was recovered at the instance of Sultan Khan appellant and human blood-stained Sota was recovered from Ghulam A.I appellant whereas Dang and Sota recovered from Nazar Hussain and Mustafa appellants were not found to be stained with blood.
7. The motive is that Jehan Khan step-maternal-grandfather of Afsar A.I P.W. Had died issueless and Sher Muhammad deceased father of Afsar A.I P.W. Was his Khana Damad. After the death of Jehan Khan the whole of his landed property was mutated in favour of Mst. Wallan his widow and mother- in-law of Sher Muhammad deceased. Sultan Khan appellant and his brothers being nephews of Jehan Khan contended that due to change in the Shariat Act they were also entitled to their shares in the landed property left by Jehan Khan. They got mutation of 3/4th of land attested in their favour which was got set aside on appeal filed by Sher Muhammad deceased as he had likewise claimed a share in that land being son of Mst. Sattan real sister of Jehan Khan. At the time of occurrence it is stated that an appeal of Sher Muhammad deceased was pending and he had obtained a stay order in regard to the possession of the disputed land.
8. It was argued before us by the learned counsel for the appellants that when the trial Judge had meticulously examined the ocular account, the recovery evidence, the motive version, the medical evidence as well as the defence version and he had also noted injuries on the person of Sultan Khan and Ghulam A.I appellants and had eventually arrived at the conclusion that the case against the appellants was not free from doubt as the eye-witnesses had made self-contradictory statements and there was no independent circumstantial evidence to corroborate their testimony, then in such circumstances there was no justification on the para of the learned Single Judge to make such observations chat the judgment of the Sessions Court was haphazard and suffered from repetition, that discrepancies and omissions in the statements of the eye-witnesses were not really material to affect the prosecution case in any manner, that the conclusion arrived at by the trial Court was not based on judicial reasoning, that Sultan Khan and Ghulam A.I appellants could not be absolved as hey had both sustained injuries in the course of the occurrence, that the reasons given by the trial Court for repelling the motive were artificial, that the medical evidence did not belie the prosecution version and finally that it was questionable in the circumstances of the case to give the right of self-defence to the appellants. According to the learned counsel the case was entirely of appreciation of. Evidence and the mere fact that another view was also possible or could have been advanced was no ground to direct a retrial of the appellants after the lapse of such a long period. It was submitted that there was neither any procedural error nor violation of any other fundamental principle applicable to the administration of justice in criminal cases justifying the direction of retrial after giving specific findings on certain factual aspects of the case not even otherwise warranted as the effect of such observations was that they left nothing open for the trial Judge to himself adjudicate upon the matter. According to the learned counsel the mere fact that the learned Single Judge had his own views on some of the aspects of the case was no ground to direct a retrial of a case in which the accused party had earned an acquittal after suffering agony of a protracted trial particularly when the judgment of the learned Single Judge was based on material which was inadmissible in evidence such as police statements and statements made before the commitment Court for these could have not been considered as corroborating evidence of the prosecution version.
9. We have carefully considered the arguments of the learned counsel for the appellants. Whatever be the inconsistencies in the ocular testimony produced in the instant case, it is stated in the F .I . R.
10. By Afsar A.I P.W. While describing the motive that Sultan Khan appellant and his brothers demanded their share in the disputed land and, therefore, 3/4th share of the said land was given to them. Consequently they took possession of their share of land in squares Nos. 36 and 41 and started cultivating the same. From this statement it is obvious that the appellants were in possession and were cultivating the disputed land when the occurrence took place. It is probable that the possession of 3/4th share had been given to the appellants under some mutual arrangement of partition of the said land but subsequently Sher Muhammad deceased filed an appeal and managed to get a stay order. Anyway according to the statement of Afsar A.I P.W. In the F.I.R., the appellants were in possession of the disputed land where the occurrence took place and were cultivating the same. It is further probable that Sher Muhammad deceased who had filed an appeal and a stay order came there along with his sons Muhammad Asghar deceased as well Afsar A.I P.W. To stop them from cultivating the said land and as a result the occurrence followed.
11. At this stage it is relevant to note as to what was defence version given in the statements made by Sultan Khan and Ghulam A.I appellants before the trial Court. Sultan Khan appellant had stated (page 125-A of the paper book) that he was in possession o: his square of the said land. Sher Muhammad deceased wanted to stop him from ploughing his own land and had assaulted him with the result that this incident took place in which he and his cousin Allah Bakhsh absconder acted in self-defence. He had no intention to cause the death of any one. Ghulam A.I appellant had stated before the trial Court that he was present only when Sultan Khan appellant and Sher Muhammad deceased started abusing each other and as he wanted to separate them, Sher Muhammad deceased gave him a Sota blow and asked him to go away and so he went away and was not present to see what happened after he had left. Both these appellants have sustained injuries in the course of the occurrence. It may, however, be noted that Sultan Khan appellant and Allah Bakhsh absconder are cousins inter se whereas Ghulam A.I and Nazar Hussain appellants are cousins inter se and Mustafa appellant is maternal-nephew of Nazar Hussain appellant. These three are not directly related to Sultan Khan appellant or Allah Bakhsh absconder. The examination of the statements of Sultan Khan and Ghulam A.I appellants reveals that according to their own admission they had participated in the occurrence along with Allah Bakhsh absconder although they have raised the plea of self-defence. If according to the record Sultan Khan appellant was in cultivating possession of the disputed land which according to him was his own and because of the interference of Sher Muhammad deceased, Muhammad Asghar deceased and Afsar A.I P.W., if the right of private defence was available to the accused party then the question would arise as to whether or not they had exceeded the right of private defence in the instant case as on the accused side only simple injuries have been caused to two of the appellants whereas on the complainant side two persons had been murdered and one had sustained injuries. At this stage it may be relevant to examine the medical evidence.
12. According to the medical evidence Muhammad Asghar deceased had sustained nine injuries out of which three were incised wounds on the forehead, left parietal region of the head and over left ear, one contused wound on the left occipital region of head and five bruises on the head, neck, shoulder, right arm and right chest. His death had been caused due to head injuries which were sufficient to cause death in the ordinary course of nature. The incised injuries were caused with sharp-edged weapon and the rest with blunt object.
13. Sher Muhammad deceased had seven injuries on his person comprising of three incised wounds over the right ear, right temporal region of head and over the right cheek, two contusion wounds on the right parietal region of head and one laceration on the right forearm and one bruise over the left leg. Death was caused on account of all these multiple injuries causing fracture of skull bones.
14. The incised injuries were caused with sharp-edged weapon and the rest with blunt object.
15. Afsar A.I P.W. Had 12 injuries on his person out of which two were grievous and the rest were simple.
16. All these injuries were caused with blunt weapon. Thus, on the complainant side the total number of injuries received were twenty-eight.
17. So far as Sultan Khan appellant is concerned he had one contused wound caused with the blunt weapon on his person, which was simple in nature. Similarly Ghulam A.I appellant had one contused wound caused with blunt weapon on his person which was also simple in nature. In other words as opposed to two simple injuries on the persons of the aforesaid two appellants there were twenty-eight injuries received on the complainant side out of which Afsar A.I P.W. Had received two grievous injuries whereas Sher Muhammad and Muhammad Asghar had both died as a result of their injuries. This indicates that the appellants had made a concerted attack on them even if the right of private defence was available to them.
18. Under section 99, P.P.C. The right of private defence does not extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Therefore, in the instant case the question on which retrial could have been ordered was only in order to determine as to whether or not the appellants had exceeded their right of private defence in the circumstances of the case if it was available to them. But the question before us is as to whether after the lapse of so many years would it serve any useful purpose if the case is referred back for retrial. The case was registered against the appellants and the absconder on 22nd May, 1964. They were arrested on 25th May, 1964. The trial Court's decision whereby they were given the benefit of doubt and acquitted was made on 20th July, 1965. The judgment of the learned Single Judge of the Lahore High Court, Lahore in private criminal revision whereby the trial Court judgment was set aside and retrial was ordered was passed on 15th July, 1976 i.e. After the lapse of more than 11 years from their acquittal. Now roughly ten year3 more have passed, therefore, would it be in the interest of justice to order retrial after the lapse of more than 21 years.
19. 1972 SCMR 95 the accused was acquitted of murder charge by the trial Court and the High Court setting aside the acquittal had ordered retrial. Supreme Court however, set aside the order of retrial on finding that considerable time had elapsed between the date of occurrence as well as since the date of his acquittal and there was therefore, no likelihood of witnesses being available and retrial in the circumstances was likely to be an exercise in futility. In that case the time that had elapsed was about 5 years between his acquittal by the trial Court and Order of retrial. In the light of these authorities we are of the considered view that after almost 21 years in the instant case to set aside the acquittal and to order retrial would be a futile exercise. In that view of the matter the impugned judgment of the learned Single Judge of the Lahore High Court is hereby set aside and the appeal is allowed. The appellants are already on bail. Their bail bonds shall stand discharged.