' The judgment, dated 15-5-1985, pronounced by Ch. Manzoor Hussain Basra, the then learned Sessions Judge, Bahawalnagar, has been questioned in this appeal, who had convicted Shahadat Ali, Muhammad Yar, the two brothers, and Akbar All son of Shahadat All under section 302/34, P.P.C.
For murdering Sona, in furtherance of their common intention and awarded them life imprisonment each. All the appellants have been fined Rs,5,000 each or to suffer one year's R.I.
Each in default thereof. The appellants were directed to pay Rs,5,000 each by way of compensation to 'the heirs of Sona deceased or to suffer six months' R.I. Each in default thereof. The appellants were convicted under section 307/34, P.P.C. For attempting to murder Maman P.W.14 and were ordered to undergo seven years' R.I. Each. They have been fined Rs,2,000 each or to suffer six months' R.I. Each in default thereof. Rs,2,000 each were directed to be paid by way of compensation to Maman P.W.14 or to suffer six months' R.I. Each in default thereof. The appellants were convicted under section 307/34, P.P.C. For making a murderous assault on Rehmat Ali, in furtherance of their common intention and were sentenced to four years' R.I. Each and a fine of Rs,1,000 each or to suffer R.I. For six months each in default thereof. They were directed to pay Rs,100 each by way of compensation to Rehmat Ali, the injured person or to suffer six months' R.I. Each in default thereof.
The appellants are stated to have caused simple injuries to Manzoor Ahmad, the complainant, who is the son of Sona deceased. They were convicted under section 323/34, P.P.C. For causing simple injuries to Manzoor Ahmad, in furtherance of their common intention and have been awarded three months' R.I. Each. They were directed to pay Rs,100 each by way of compensation to the complainant or to suffer one months' R.I. Each in default thereof. All the sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Was, however, extended to the appellants.
2. The facts which led to the detection of this crime, in substance, are that Mst. Bakhtan Bibi, the sister of Sona deceased and the father's sister of Manzoor Ahmad complainant had been married to Sher Muhammad, who died issueless five years prior to this incident. Mst. Bakhtan came to the house of Sona after the demise of her husband. Sher Muhammad was an owner of four acres of land and according to the law of inheritance Mst. Bakhtan was to inherit one acre of land out of the land left by Sher Muhammad. Shahadat Ali and Muhammad Yar, the brothers of Sher Muhammad instituted a suit in the civil Court regarding the entitlement of Mst. Bakhu, as she was stated to be the divorcee of Sher Muhammad. The matter was decided in favor of Mst. Bakhtan. Shahadat All and others lodged an unsuccessful appeal before the learned District Judge, Bahawalpur, which was dismissed on 7-3-1984.
3. After hearing this decision, Shahadat All came out of the Court-room and asked Mst. Bakhtan that the case has been decided in her favour so she could cultivate one half of Killa No, 15 which was lying vacant. Accordingly Manzoor Ahmad and his father Sona on the asking of Mst. Bakhtan placed wooden mangers in Killa No,15 and tethered their oxen there. The appellants got incensed as to why Sona and others had taken possession of their land as they had given its possession to Mst. Bakhtan. Shahadat Ali was armed with a licensed gun, Muhammad Yar had a hatchet and Akbar All was equipped with a Lathi. Muhammad Yar gave Sona two hatchet blows and injured his hands. Akbar Ali gave Dang blows to the complainant on his head and right hand. Muhammad Yar then injured Maman the uncle of the complainant with his hatchet, and his left arm and right wrist weie injured. In the meantime, Rehmat Ali came there, who was also injured by the appellants. Mst.
Sabran, the sister of the complainant also witnessed this occurrence.
4. Manzoor Ahmad went to the police station and lodged F.I.R. Which was recorded by Bashir Ahmad A.S.I. On 8-3-1984, at about 8-30 a.m. The incident had occurred on the same day at about sunrise and the Police Station Faqirwali, where the report was lodged is about 8 miles farther from the spot.
5. All the appellants were arrested on 11-3-1984. On 16-3-1984, Shahadat All appellant No, 1 got recovered his gun Exh.P.1 from his residence which was taken into possession vide memo. Exh.P.F.
Empty Cartridges Exh.P.4/1-5 were, however, picked up from the spot on 8-3-1984. On 16-3-1984, Muhammad Yar appellant got recovered his blood-stained hatchet Exh.P.2, which was made into a sealed parcel vide memo. Exh.P.G. Similarly, on the same day, Akbar All produced his blood-stained Dang Exh.P.3, which was secured into a sealed parcel 'de memo. Exh.P.H.
6. The police had sent the dead body of Sona to the mortuary and had got examined the injured P.Ws. Dr. Bashir Ahmad Shahid, P.W.1, had conducted the autopsy on the dead body of Sona an old man of 60 years and had listed the following injuries on his corpse:-
(1) Seven punctured wounds of entrance of pellets 1 x 1 c.m. Each x chest deep with 2 superficial skin deep 1 x 1 c.m. Abrasions 1/2 apart in an area of 11 c.m. x 9 c.m. Over the middle of lower anterior chest and upper left side of epigastrium 5 c.m. Below and medial to left nipple with 4 exit wounds 1- 1/2 x 1 c.m. On back of left lower chest in an area of 9 c.m. x 5 c.m., 4 c.m. Below the angle of left scapula. 3 pellets removed from subcutaneous tissue near the exit wounds. Burning was present around all the entrance wounds. On dissection left 5th and 7th ribs at two places were fractured anteriorly. 6th right rib was fractured anteriorly. Xiphisternum fractured at two places. 6th, 7th and 8th ribs at two places and 9th rib of left chest fractured posteriorly. Heart, left lung, liver and diaphragm punctured at various places. Stomach punctured and found into two pieces. One It.
Blood was present into the chest cavity. There were corresponding holes of pellets on shirt.
(2) One punctured wound of entrance of pellet 1-1/2 x 1 c.m. x abdomen deep on the mid line of abdomen 7 c.m. Below umbilicus. Burning around the wound was present. There were corresponding cuts in the shirt. On dissection bladder, peritoneum and greater omentum punctured through and through. Pellet removed from the posterior part of the left pelvic bone.
(3) One incised wound 4 x 1 c.m. x bone deep on the inner aspect of the left forearm 3-1/2 c.m.
Above wrist joint.
(4) One abrasion mark 1-1/2 x 1 c.m. x superficial skin on back of left wrist joint. Burning was present.
(5) One abrasion mark 2 x 1-1/2 c.m. x superficial skin deep 5 c.m. Above the left wrist joint. Burning around the wound was present.
(6) One incised wound 1 x 1 c.m. x skin deep on back of left hand 7 c.m. Below wrist joint.
(7) One incised wound 1 x 1/4 c.m. x bone deep on the back of left hand 1 c.m. Inner to injury No,6.
On dissection 5th metacarpal bone had cut fractured.
(8) One abrasion mark 3 x 1 c.m. x superficial skin deep on the front of the middle third of left clavicle.
(9) One punctured wound of entrance of pellet 1 x 1 c.m. x muscle deep on the outer aspect of right thigh 10 c.m. Above knee joint with an exit wound 1-1/2 x 1 c.m. On the back of right thigh 9 c.m.
Above knee joint. Burning around the wound of entrance was present.
' According to this medical expert, injuries Nos. 1, 2, 4, 5, 8 and 9 were caused by a fire-arm, whereas injuries-Nos.6 and 7 were sustained by a sharp-edged weapon. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. He has not excluded the possibility that the fire- arm injuries of the deceased could be the result of two shots fired from a close range.
7. Dr. Bashir Ahmad Shahid, P.W.1 had examined Rehmat All on 8-3-1984 and had found the following simple injury by fire-arm on his person:-
(1) One lacerated wound 1 x 3/4 c.m. x lung deep on front of left chest just below the clavical 5 c.m.
Away from the left sterno clavicular joint. Wound was bleeding. No burning or tatooing was present around the wound.
' On the same day, Manzoor Ahmad complainant was examined by the same doctor, who had sustained the following simple injuries with a blunt weapon on his person:-
(1) One lacerated wound 3 x 1/2 c.m. x scalp deep on the right side of head 9-1/2 c.m. Above right eyebrow and 13 c.m. Above and anterior to the right ear.
(2) One abrasion mark 1 x 1/2 c.m. x superficial skin deep on back of right index finger on first interphalangeal joint.
' Maman P.W. Was examined on the same day and Dr. Bashir Ahmad Shahid had observed the following injuries on his person:-
(1) One lacerated wound 4-1/2 x 1 c.m. x scalp deep on the centre of the head 12 c.m. Above left ear.
(2)One lacerated wound 3 x 1/2 c.m. x skin deep on inner aspect of left forearm 4 c.m. Above writs joint and one another lacerated wound 1/2 x 1/2 c.m. x skin deep on inner aspect of left forearm 1- 1/2 c.m. Above the left wrist joint (3)One incised wound 3-1/2 x 1 c.m. x muscle deep on inner aspect of the right forearm 5 c.m.
Above the wrist joint.
(4)One incised wound 2-1/2 x 1/2 c.m. x skin deep on outer aspect of the right wrist joint.
(5)One lacerated entrance wound 1/2 x 1/2 c.m. x bone deep on front of right knee joint 4 c.m. Below and inner to the lower margin of patella. Burning around the wound was present.
(6)One lacerated entrance wound 1/2 x 1/2 c.m. x bone deep on front of right side of right knee joint 2 c.m. Below the lower margin of the patella.
(7)One lacerated entrance wound 1/2 x 1/2 c.m. x bone deep on front of right knee joint over the patella. Burning was present around the wound.
(8)One lacerated entrance wound 1/2 x 1/2 c.m. x bone deep on front of right knee joint 1/2 c.m.
Lateral to injury No,1.
(9)One lacerated exit wound 3/4 x 3/4 c.m. x bone deep on outer and posterior surface of the right knee joint 5 c.m. Above and behind the outer tuberosity of the right fibula bone. The margins were averted. No burning was present around the wound.
(10) One lacerated exit wound 1/2 x 1/2 c.m. x bone deep on outer aspect of right leg 3 c.m. Below knee joint. The margins were averted. No burning around the wound was present.
(11) One lacerated exit wound 3/4 x 3/4 c.m. x bone deep on the back of upper right leg 6 c.m. Below knee joint. The margins were averted. No burning around the wound was present.
' Injuries Nos. 1 and 2 have been caused by a blunt weapon and injuries Nos. 3 and 4 were suffered by a sharp-edged weapon, whereas injuries Nos. 5 to 11 have been caused by a fire-arm. Injuries Nos. 3, 7 and 8 were found to be grievous in nature. After the completion of the investigation, the challan of the appellants was submitted and as a sequel to the impugned trial the aforementioned punishment was awarded to the appellants.
8. Mst. Bakhtan P.W.12 has stated that she had inherited 1/4th share out of the property of her husband Sher Muhammad and the brothers of Sher Muhammad used to cultivate the land jointly and Shahadat etc. Did not deliver the possession of the land to her and instead entangled her in civil litigation which went in her favour and the appeal filed by the appellant was also dismissed a day prior to this occurrence. She has added that Shahadat accused had told her that she was at liberty to cultivate Killa No,15 and he had delivered the possession of the same to her and according to the advice of Shahadat Ali, Sona, Maman and her nephew got the possession of Killa No,15 and according to her direction, they tethered their cattle in that Killa.
9. Manzoor Ahmad P.W.13 has narrated the incident as stated in the F.I.R. He has deposed that after the death of Sher Muhammad, the co-sharers had been cultivating the land jointly and when on the direction of Mst. Bakhtan, they had taken possession of Killa No,15, the appellants directed them to vacate Killa No,15 as it had been given to Mst. Bakhtan and on their refusal, they injured them and Sona, the father of the complainant died at the spot. He has stated that Shahadat was at a distance of 3 to 4 Karams when he fired at Sona. The blackening was found on the wounds of Sona which indicated that he was fired at from a close range. Since Shahadat has not denied having fired at Sona, so the distance stated by the complainant does not merit any serious consideration.
It was suggested to him that while Muhammad Yar appellant was going to his sugarcane field, he prevented them from entering into possession and the complainant, Sona, Maman and Rehmat had attacked him and on his alarm, Shahadat acted in his self-defence to get vacated the possession and to save his brother Muhammad Yar. This suggestion was denied by this witness.
10. Maman P.W.14, the real brother of Sona deceased has depicted the motive for the commission of this crime. According to him they took possession of Killa No,15 by tethering their oxen and placing their wooden mangers on the asking of Mst. Bakhtan and the appellants asked them to vacate the said land and on their refusal, all of them were injured by the appellants, who were variously armed. When subjected to cross-examination, he admitted that Mst. Bakhtan was not given any share of the land in dispute by the appellants who indulged in litigation against her. The story of self-defence of person and property had been denied by this witness.
11. Jahana P.W.10, who is the witness of the recoveries of gun Exh.P.1, blood-stained hatchet Exh.P.2 and blood-stained Dang Exh.P.3 did not support the prosecution case during his cross-examination and was declared hostile. His statement is of no consequence to us.
11-A. Noora P.W.11, who is the father of Jahana, has, however, supported the factum of the recoveries of gun Exh.P.1, blood-stained hatchet Exh.P.2 and blood-stained Dang Exh.P.3. He is the real brother of Sona deceased.
12. Bashir Ahmad P.W.6 had picked up the five empty cartridges Exh.P.4/1-5 from the spot. Nazir Ahmad P.W.5 is the Police Officer, who got recovered the weapons of offence from the appellants, has completely supported the fact that all these weapons were recovered at the instance of the appellants, so the recoveries of these weapons of offence stand proved.
13. Shahadat All when examined under section 342, Cr.P.C. Explained his position in response to question No,16 as under:- "I am innocent. I was in exclusive possession of Killa No,15. Sona, Manzoor, Maman and Rehmat All tried to enter into forcible possession of Killa No,15. Muhammad Yar prevented them but they attacked him. He raised a hue and cry whereupon I came out of my house having my licensed gun with me. I fired two shots in the air to scare away Manzoor etc. Who had encircled Muhammad Yar.
Manzoor Ahmad etc. Attacked me and I retreated to my house upto the wall but Manzoor Ahmad etc. Advanced towards me. Maman tried to give me a Dang blow whereupon I fired a gun shot hitting his leg. Sona tried to give a Dang blow to me. I fired at him in self-defence. Rehmat Ali received a stray pellet of that shot. Muhammad Yar had inflicted blows to Manzoor Ahmad with the right and wrong sides of the Toki at the beginning. He had also injured Maman in self-defence. I appeared before the police the same day and took the plea of self-defence. Akbar was not present at the spot."
14. The persons who have been injured were empty handed, as the appellants did not sustain even a scratch on their bodies. To say that Muhammad Yar prevented the complainant party entering into possession and he had been encircled by them, does not appeal to reason. The fact that Shahadat Ali was cornered up to the wall by empty handed persons, when he was handling a gun in his hands, does not ring true. The learned trial Court has rightly remarked that after sustaining injuries, neither Sona, nor Maman could wield a weapon in their hands so as to cause apprehension of grievous injury in the mind of the appellants. In the circumstances, the defence version is not credible.
15. So far as the right of private defence of the property is concerned, Mst. Bakhtan was co-sharer of the land in dispute. If a co-sharer places his mangers and tethers his cattle on the joint property, the other co-sharers have got no right of private defence of their property. In this manner, the right of defence of person and property was not available to the appellants.
16. It may be pointed out that the statement of Mst. Bakhtan did not find favour with the learned trial Court. It is not improbable that after the decision of the two Courts, better sense prevailed on Shahadat All and he asked Mst. Bakhtan the wife of his deceased brother to have possession of one-half acre of the vacant land of Killa No,15. Since the brothers and the nephew of Mst. Bakhtan were against the appellants in their civil litigation and had taken possession of the disputed land, so the element of provocation was there, and the learned trial Court has rightly convicted and sentenced the appellants under sections 302/34, 307/34 on two counts and under section 323/34, P.P.C. I see no merit in this appeal and dismiss the same. All the appellants were released on bail.
They should be taken into custody forthwith and sent to jail to serve their remaining term of sentence.