1. ' USMAN ALI SHAH, J.--Muhammad Afzal and Muhammad Yousaf, respondents Nos. 1 and 2 herein, were tried by the Additional Sessions Judge, Jhang under section 302/34, P.P.C. For committing the murder of the petitioner's brother Noor Muhammad deceased and each one of them was sentenced to imprisonment for life with a fine of Rs,1,000 each or in default to suffer further six months R.I., vide his judgment dated 3-4-1976. The said respondents filed appeal against their conviction and sentences and the complainant Shamir the appellant herein and the brother of the deceased filed criminal revision No, 1064 of 1976 for enhancement of sentences awarded to the respondents, in the Lahore High Court, Lahore. The learned High Court found both the respondents not guilty of the offence and acquitted them from all the charges levelled against them. The learned High Court, however, dismissed the revision of the appellant, vide its judgment dated 17-1- 1978.
2. ' The case of the prosecution as set out in the F.I.R. Was that on the day of occurrence viz. 30-7-1974, at about 10-00 a.m. The complainant/appellant was proceeding from his Bheni towards the cattle- shed with fodder for his cattle and was at a distance of about two to three Killas from his Behk, he saw that his brother Noor Muhammad deceased was ploughing in a field close to the Behk.
3. Pahiwan P.W.9 who was engaged by the deceased as `mangali' was also ploughing in another nearby field. Mst. Nooran, wife of the deceased who brought lassi' to the field was also sitting in the field under a Sheesham tree. The deceased stopped his plough and sat for taking lassi'. Meanwhile, respondents Nos. 1 and 2 armed with Lattis came there and raised Lalkaras that they would teach a lesson to the deceased for not leaving the possession of the land. Muhammad Yousaf respondent No, 2 told Muhammad Afzal respondent No, 1 that the deceased should be done to death. On this he delivered a Latti blow on the head of the deceased and respondent No, 2 dealt a second blow on the left shoulder of the deceased. Respondent No, 1 gave a third blow on the wrist of the left arms of the deceased. As a result of the blows the deceased fell down. Mst. Nooran wife of the deceased (given up as unnecessary) came forward and tried to save her husband but she was pushed aside by respondent No,
1. Pahlwan (P.W.9) also intervened but respondent No, 2 gave him a Latti blow on his head who also fell down. Both the respondents delivered more blows with their respective Lattis to the deceased, who was lying unconscious. In the meantime Sher P.W.10 while returning from village Kot Rustam also arrived there and was at a distance of one Killa from the place of occurrence. The complainant and P.W. Sher rebuked the accused..Both the accused ran away with shouting that in future no one would dare to till the land of their uncle. The deceased died on the spot. The complainant Shamir (P.W.8) went alongwith Lambardar Nusrat (P.W.11) to the Police Station 18-Hazari where he lodged the F.I.R. Exh. P.A. At 3 p.m. The same day which was recorded by H.C. Dost Muhammad (P.W.6). The A.S.I. Sher Ali Khan (P.W.12) went to the spot. He prepared injury sheet and inquest report and sent the dead body to the mortuary for post-mortem examination. A.S.I. Sher Ali Khan recovered blood-stained earth from the spot and secured it into a sealed parcel vide memo. Exh. P.C. The A.S.I. Also found Pahlwan (P.W.9) injured and his injury statement was also prepared by him. He was also sent to the civil dispensary for medical examination and treatment. The site plan was prepared through Abdul Ghaffar Patwari Halqa (P.W.7). The S.I. Arrested the two accused/respondents on 1-8-1974. They were sent under .An escort to the civil dispensary 18-Hazari on 2-8-1974 for medical examination of their injuries. On 3-8-1974 both the accused in police custody led to the recovery of Dangs at their instances vide (Exhs. P.O.
4. And P.Q.).
5. ' On 31-7-1974 at 2-00 p.m. Dr. Sanaullah (P.W.1) M.O. District HQ. Hospital Jhang performed the autopsy on the dead body of the deceased who found _9 injuries on the dead body. The doctor found effusion of blood under scalp, membranes and brain was contused at the left temporal region and at the middle and back of the head. The pricardium and right ventrical were also found ruptured and all the injuries on the deceased were caused by blunt weapons. The doctor opined that the death of the deceased occurred due to injury No, 6 which was sufficient to cause death in the ordinary course of nature. However, the doctor found rest of injuries simple in nature.
6. ' Dr. Mumtaz Ahmad (P.W.2) M.O. At Civil Dispensary 18-Hazari had medically examined Pahlwan (P.W.9) on 31-7-1974 at 10-00 a.m. And found one simple injury on his person. The said doctor also medically examined Muhammad Yousaf accused/respondent for his injury on 2-8-1974 at 7-45 a.m. And found a swollen area 1" x 1/2" on the left temporal region of skull.
7. ' The motive for the occurrence according to the prosecution is that the respondents Nos. 1 and 2 wanted to occupy the land of their uncle as tenants with the intention that if they take the possession of the land they would purchase it at a very cheap rate. Earlier the father of the respondents had filed a pre-emption suit against his brother Muhammad All (given up P.W.) but that suit was dismissed. Muhammad Ali did not want to sell his land. The said respondents had earlier threatened the deceased that if he ploughed the land he would be put to death. This was the reason for killing the deceased by the said respondents.
8. ' After completion of the investigation formalities the accused/respondents were challaned before the Additional Sessions Judge, Jhang to stand their trial. The learned trial Judge, took the view in the light of the medical evidence, through the eye-witness account of the occurrence and evidence of recoveries of Dangs Exhs. P.3 and P.4, at the instance of Muhammad Afzal and Muhammad Yousaf respondents Nos. 1 and 2 held that the prosecution was able to succeed in proving its case against the said respondents, convicted them under section 302/34, P.P.C. And sentenced them to life imprisonment for committing the murder of Noor Muhammad deceased in furtherance of their common intention. A fine of Rs,1,000 each was also imposed on them or in default to suffer further R.I. For six months.
9. ' Respondents Nos. 1 and 2 went in appeal against their conviction and sentences, whereas the petitioner filed Criminal Revision No, 1064 of 1976 for enhancement of the sentences of the respondents, before the Lahore High Court, Lahore. The learned Judges of a Division Bench of the High Court, after a careful appreciation of the evidence have pointed out that P.W. 12, A.S.I. Sher Ali was directed by S.H.O. On 2-8-1974 to take the accused/respondents to the dispensary and get them medically examined for the injuries sustained by them in the occurrence. Dr. Mumtaz Ahmad (P.W.2) who examined Muhammad Yousaf respondent No, 2, and appeared before the Committing Magistrate, said that he found an injury on the left temporal region of skull of Muhammad Yousaf.
10. However, medical report of Muhammad Afzal respondent No, 1 was not placed on the record. His injury statement Exh. P.11. Was prepared by Muhammad Rashid Ahmad, S.H.O. (P.W. 13). According to the said report he had two injuries, a contused wound on his neck and another wound on the left side of his head. The learned Judges of the High Court also held that the attempt on the part of the prosecution to conceal his medico-legal report would adversely reflect on its version. Pahlwan (P.W.9) who was ploughing quite near the deceased in his examination-in-chief has said that he had inflicted 2/3 blows to the accused/respondents with his stick which he had for driving the bullocks. The injuries sustained by the accused/respondents were altogether suppressed in the F.I.R. P.W. Pahlwan should have produced the Soti before the police for ascertaining the shape and size of the Soti, so as to form an opinion as to the apprehension that could be caused in the minds of the appellants when they were attacked by a person holding this Soti. No explanation whatsoever was given to this effect. This fact therefore, casts doubt on the prosecution version.
11. Under these circumstances the learned Judges of the High Court held that the prosecution has failed to establish its case beyond any reasonable doubt and on the other hand accepted the plea of exercise of right of defence of property put forth by the defence as a reasonable one and allowed the appeal of the accused/respondents, set aside their conviction and sentences and acquitted them from the charges of murder of the deceased. The learned Judges of the High Court, however dismissed the revision filed by the petitioner by the impugned judgment. Hence this appeal by leave of the Court.
12. ' The learned counsel for both the parties were heard and gone through the evidence on record as well judgments of the Courts below. Mr. Hameed Aslam Qureshi the learned counsel for the appellant attempted to argue that the convictions of the accused/respondents by the learned trial Judge were based on proper and reliable evidence of the eye-witnesses and medical evidence. He also urged that the land in question which was ploughed by the deceased and P.W. Pahlwan on the day of occurrence belonged to Muhammad Ali and killa No, 10 of Square No, 28 is divided into two parts. Killa No, 10/1 is owned by Qudratullah etc. And killa No, 10/2 is owned by Ramzan and others.
13. The said killa No, 10 was under the cultivation of the deceased as tenant. A perusal of the FIR. Will show that the quarrel had developed over the land of Muhammad All which was ploughed by the deceased and Pahlwan and the actual occurrence took place under Sheesham trees where Mst.
14. Nooran wife of the deceased served lassi' to the deceased and Pahlwan (P.W.9), near the Bchk.
15. Shamir (P.W.8) in his evidence stated that deceased was ploughing killa No, 6 of Square No, 27 while Pahlwan (P.W. 9) was ploughing killa No, 1 of Square No, 28 and both these killas belonged to Muhammad Ali. At the trial the place of occurrence is shown to be in killa No, 10 Square No, 28, which belonged to Muhammad Ramzan and Qudratullah. Therefore, the motive as alleged by the prosecution that the accused respondents wanted to forcibly dispossess the deceased from the land of Muhammad All does not bear the truth.
16. ' The plea taken by the respondents in this case is that they were in possession of Killa No, 10 of Square No, 28 and on the day of occurrence the deceased alongwith Pahlwan (P.W.9) came with the intention to take the possession by force of this killa and fixed the bullocks. The respondents forbade them at which they made an attack on them. The respondents have admitted to have caused injuries to the deceased but the fatal injury suffered by the deceased was the result of his fall on the peg or handle of the plough. It seems that the plea of the defence is more probable as the occurrence took place in Killa No, 10 of Square No, 28 which was in possession of the respondents on the basis of a lease.
17. ' In this case P.W. Pahlwan is the actual eye-witness of the occurrence. When he was confronted, he stated that "It is incorrect to suggest that I had been called by the deceased to take forcible possession of the killa where the occurrence took place. I had given two blows to Muhammad Afzal accused in the head and one to Muhammad Yousaf accused. When I had inflicted injuries to the two accused they had not given any blow to me after that. I had not produced the Danda which I was using, before the police. It had broken and fallen on the spot." The evidence shows that when the case of the defence was put to the complainant Shamir (P.W.8) being an eye-witness of the occurrence he said that "It is incorrect to suggest that the deceased and Pahlwan (P.W.9) had attacked and injured the two accused." Similarly, Sher (P.W.10) in his examination-in-chief has said that "in return Pahlwan (P.W.9) gave stick blows to the two accused. When he was confronted with his statement before the committing Magistrate, he went back from his statement and said that he did not state that the accused had been injured at the hands of Pahlwan (P.W.9).
18. ' There are two parallel versions in this case. The one put forth by the prosecution was accepted by the trial Court but it did not bother to pay any heed to the defence version which finds corroboration from the statement of Pahlwan (P.W.9). The learned trial Court simply rejected the defence version that the plea of self-defence was afterthought as not being raised before the committing Magistrate.
19. ' In the light of the above discussion, our assessment of the evidence recorded in this case is that the prosecution had not given straight and clear episode of the occurrence. In the absence of clear and straightforward evidence brought by the prosecution on record we have come to the conclusion that mere doubtful narrations on the part of the prosecution witnesses against the accused/respondents will not carry any credence against them, unless the prosecution is able to bring on record ocular as well as circumstantial evidence of a reasonable character. In the circumstances the guilt of the respondents is not free from doubt and the learned Judges of the High Court, therefore, had rightly given the benefit of doubt to the accused/respondents and acquitted them from the charge of murder of the deceased.
20. ' In this view of the matter, the view taken by the learned Judges of the High Court is unexceptionable and there is no need for any interference by this Court. We, therefore dismiss this appeal.