' Muhammad Ali (65) son of Hakim Ali, Habib Ullah (40) son of Rehmat Ullah, Muhammad Aslam (35), Nazar (31) and Naseer (30) sons of Said, Jats by caste, residents of village Chandarke Jattan, Police Station Qila Sobha Singh, were tried by the learned Additional Sessions Judge, Sialkot, under sections 148, 302 and 307 read with section 149, P.P.C. On the allegations that on the night between 16th/17th June, 1979, at about 1 a.m. They formed themselves into an unlawful assembly with the common object of committing the murder of Mahmud Ahmad deceased and for making murderous assault on Muhammad Arif P.W. And in the prosecution of that common object of the said unlawful assembly and have actually committed the murder of aforesaid Mahmud Ahmad and made murderous assault on Muhammad Arif P.W. By judgment dated 19-6-1980 they were convicted under sections 148, 304/149 of the Pakistan Penal Code and sentenced to R.I. For one year each under section 148, P.P.C. And R.I. For ten years and a fine of Rs,1,000 each under section 304, Part I read with section 149, P.P.C. They were also sentenced to R.I. For three years each under section 308/149, P.P.C. All the sentences were ordered to run concurrently. The fine, if recovered, was ordered to he paid to the legal heirs of Mahmud Ahmad deceased as compensation. The convicts have appealed. Ghulam complainant has filed Criminal Revision No, 953 of 1980 praying that the sentence of the convicts may be enhanced, 'and in any case the respondents who committed the murder of a young man in a desperate manner may be awarded extreme penalty under section 302, P.P.C.' The appeal and the criminal revision shall be disposed of by this judgment.
2. The brief facts of the prosecution case are that six months prior to the occurrence, Ghulam Haider complainant started tethering his cattle in Shamlat land measuring 15/16 Marlas situate near his house in village Chandarke Jatan. Two months prior to the occurrence Muhammad Ali appellant told him that he was the owner of the said land to which the complainant replied that he had already taken his share and should desist from usurping the rights of others. On 16th June, 1979, at about Degarwela, the complainant got the said land dug in order to raise the boundary wall on it. At about Isha prayer time he called Mubarik, Fateh Ali Arif P.Ws. And Mahmud Ahmad deceased to that place. All of them remained there till mid-night. At about 1 a.m. All the appellants came there. Habib Ullah, Muhammad Aslam and Muhammad Ali were armed with Sotas while Naseer and Naazar had Datars. Muhammad Ali appellant raised a Lalkara that they would teach a lesson to the complainant party for constructing the Haveli on the Shamlat land. The complainant asked Muhammad Ali appellant to get the matter settled through a Punchayat but he did not agree. Then Naseer appellant gave a Datar blow on the head of Muhammad Arif P.W. And Muhammad Ali gave him a Sota blow hitting his right eyebrow. Naazar appellant gave a Datar blow to Mahmud Ahmad deceased on his left ear. Habibullah and Muhammad Aslam appellants gave one Sota blow each to him hitting his head. Muhammad Aslam and Mubarik P.Ws. Caused injuries to the accused persons in self-defence and rescued the injured from them. After the occurrence, Muhammad Arif P.W. And Mahmud Ahmad deceased, who was then alive, were removed to Health Centre, Badomalhi.
' On receiving information about the admission of Mahmud Ahmad in the Health Centre, Baqar Hussain, Incharge Police Post Badomalhi reached there at 8-20 a.m. (on 17-6-1979). He enquired from the doctor whether Mahmud Ahmed and Muhammad Arif injured were fit to make statements, to which the doctor replied in the, negative and thereupon he recorded statement Exh.P.F. Of Ghulam Haider complainant, on the basis of which formal F.I.R. Exh.P.F./1 was recorded at the police station at 10-45 a.m. On the same day, Mahmud Ahmed injured expired in the Health Centre Badomalhi. Baqar Hussain A.S.I. Prepared his inquest report Exh.P.X. And escorted the dead body to the mortuary at Narowal for post-mortem examination.
3. On the same day i,e, 17-6-1979, Mirza Avub Beg, S.H.O. Police Station Killa Sobha Singh, secured sonic blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh.P.H. On 19-6-1979 he arrested Nazar Hussain, Naseer Ahmad, Muhammad Aslam and Muhammad Ali appellants. On the same day Naazar Hussain and Naseer Ahmad appellants, while in custody led to the recovery of blood-stained Datars Exhs.P.2 and P.3 respectively, from their Dhera which were made into separate sealed parcels vide memos. Exhs.P.K. And P.L. Respectively. On the same day, Muhammad Aslam and Muhammad Ali appellants, while in custody led to the recovery of Dangs P.4 and P.5 which were taken into possession vide memos. Exhs.P.M. And P.N. Respectively. On the same day, the Sub-Inspector prepared the injury statements of the aforesaid accused persons and got them medically examined. On 22-6-1979, he arrested Habibullah accused who led to the recovery of Dang P.6 from his Dhera which was taken into possession vide memo. Ex.P.O. After the investigation the appellants were challaned.
4. [MEDICAL EVIDENCE].
5. In support of its case the prosecution examined three eye-witnesses and it also relied on the motive and the recoveries of weapons at the instance of the appellants.
6. The appellants pleaded not guilty to the charge. Muhammad Ali appellant stated that eversince December, 1967 he and his nephew Naazar, Naseer and Aslam were owners in possession of the disputed Shamlat land. When asked why this case against him, he made the following statement:- - "The complainant party is owner only in Pati Noor and they have no share in Shamlat situated in Pati Khalil in which we live. The place of occurrence was purchased by us from Ghulam Rasul in 1967. We also purchased from him his agricultural land he was owner in this Pati eversince December, 1967. We have been in possession of this place. Ghulam Haider P.W. Purchased a residential house and he wanted to take forcible possession of this place. During night of occurrence at about 12-00 night when the complainant party trespassed into this place and tried to take land. We resisted and they caused us injuries and as such we acted in exercise of self- defence of persons and property. Habib accused was not there at all. He has been falsely implicated in this case due to relationship."
' Muhammad Aslam, Naazar and Naseer appellants also adopted the above statement. Habibullah appellant denied all the allegations and contended that he was not present at the spot and was falsely implicated due to relationship with his co-accused. Muhammad Ali appellant examined two witnesses in defence. Muhammad Manzur D.W.1 stated that he was a marginal witness of the sale- deed C.B./1-6 executed by Ghulam Rasul in favour of Muhammad Ali appellant. He further stated that since the execution of the sale-deed, Muhammad Ali his brother Said and latter's son Naazar Hussain, Naseer and Aslam were in possession of the disputed land. Hew Ullah D.W.2 is a petitioner- writer. He appeared with the register maintained by him and stated that he scribed sale-deed DB/1-6 in favour of Muhammad Ali and Said (father of Naazar, Naseer and Aslam appellants) on the asking of Ghulam Rasul vendor.
7. While dealing with the question of motive, the trial Judge observed that there was no evidence that the accused were in physical possession of the disputed land and the prosecution had also failed to produce any evidence about the ownership of the said land. After repeating the prosecution and defence versions in the impugned judgment he held that the appellants had exceeded the right of self-defence.
8. The learned counsel for the appellants contended that the prosecution version is improbable as the complainant party was niether the owner of the disputed land nor was in possession of the same. He submitted that circumstances are consistent with the assumption that the members of the complainant party after arming themselves went to the place of occurrence at mid-night to forcibly occupy the disputed land and the appellants who were in possession of the same acted in exercise of the right of defence of person and property. He further contended that during the occurrence Muhammad Ali appellant suffered a grievous injury at the hands of the complainant party, therefore, the finding of the trial Judge that the appellants had exceeded the right of self- defence is wholly erroneous. He further submitted that if it be conceded that the right of self- defence was exceeded, no conviction could be recorded in respect of Muhammad Ali and Naseer appellants as they did not cause any injury to the deceased. The learned counsel for the complainant submitted that the accused party was better armed and this fact is sufficient to show that they came to the spot with full preparation therefore, all of them should be held liable for murder.
9. There are two versions of the same occurrence, one narrated by the prosecution and the other by the defence. The case of the prosecution is that six months prior to the occurrence, Ghulam Haider complainant started tethering his cattle in the Shamlat land measuring 15/16 Marlas situated near his house. This land is the place of occurrence in this case. Two months prior to the occurrence Muhammad Ali appellant told the complainant that the said land was his property but t he complainant replied that since he (Muhammad All appellant) had already taken his share of Shamlat land, he should desist from usurping the rights of others. On account of this the relations between the complainant and Muhammad Ali appellant got strained. On 16th June, 1979, at about Degarwela, Ghulam Haider complainant got the said land dug in order to raise a boundary wall on it. At about Ishawela he called Mubarik, Fatch Ali, Arif P.Ws. And Mahmud deceased to the place of occurrence and remained sitting with them till mid-night. At about 1 a.m. All the appellants came there armed with Datars and Dangs and attacked them causing injuries to Arif P.W. And Mahmud deceased, as a result of which the latter subsequently died.
The above version is supported by Ghulam Haider, Muhammad Arif and Mubarik P.Ws. In the F.I.R.
The complainant clearly stated that since two months prior to the occurrence he was having strained relations with Muhammad Ali appellant. Ghulam Haider complainant is the cousin of the father of the deceased. Muhammad Arif is the brother-in-law (wife's brother) of the complainant and had been residing all alongwith him. Mubarik P.W. Is the real paternal-uncle of the deceased and first cousin of the complainant. In that view of the matter the evidence of the eye-witnesses would require corroboration from an independent source.
10. Habib Ullah appellant stated that he was not present at the spot and was falsely implicated due to relationship with his co-accused. It is in the statement of Ghulam Nabi P.W.7 that this appellant is cousin of other accused. The Investigating Officer admitted that Habibullah appellant had pleaded alibi during the investigation. No corroboration of the statements of the eye-witnesses is available against him. According to the prosecution, a Dang was recovered from him on 22-6-1979. As the Dang was not blood-stained, its recovery is of no consequence. In the circumstances, I feel inclined to the view that the participation of Habibullah appellant in the occurrence is not free from doubt and he is entitled to acquittal. Accordingly I set aside his conviction and sentence and acquit him of all the charges. He shall be set at liberty forthwith if not required to be detained in any other case.
11. The case of the remaining appellants, however, stands on a different footing. They admitted their participation in the occurrence, but gave a counter-version to the effect that they purchased the land in dispute from one Ghulam Rasul in December, 1967 and were in possession eversince then.
Ghulam Haider complainant wanted to take its forcible possession and on the night of occurrence, at about 12 mid-night, he alongwith others trespassed into the said land to which they resisted. The complainant party, thereupon, caused them injuries and they also hit them back in self-defence.
' Having gone through the record, I find that both the parties have suppressed the true facts and tried to minimise their own part in the occurrence. In examination-in-chief, Ghulam Haider complainant stated that at about Ishawela he called Mubarik Ali, Fateh Ali, Arif P.Ws. And Mahmud deceased to the place of occurrence and remained sitting with them till mid-night. He could not give any plausible reason for calling the aforesaid persons to the place of occurrence except that 'there was marriage of sister-in-law of Mahmud deceased and we had to go there' and 'we gathered at the place of occurrence to discuss about the marriage matter referred above'. The marriage of the sister-in-law of the deceased was to take place on 18-6-1979. It was not so important matter as to require a meeting at mid-night. The contention of the learned counsel for the appellants that this version was introduced to show the presence of the deceased and others at the place of occurrence for an innocent purpose, has sufficient force.
' The prosecution has not produced any independent evidence to show that the complainant was in possession of the disputed land prior to the occurrence. Muhammad All P.W.8, first cousin of the deceased, rather admitted that since 15 years prior to the occurrence the land in dispute was not in the possesison of anybody. Similarly the accused have also failed to bring any material on the record to show that they were enjoying peaceful possession of the land in dispute. They did produce documents Exh.D.B./1-6 to show that they had purchased some land from one Ghulam Rasul. However, so far as the possession of the disputed land is concerned, except their bald statements and the statement of Muhammad Manzur D.W.1 who is also an interested witness, there is nothing on the record to suggest that the said land was in their possession. Muhammad Manzur D.W. Admitted that Ghulam Haider complainant of this case had a fight with his grandfather Allah Rakha. Ghulam Rasul from whom the appellants claim to have purchased this land was the best witness but he was not produced in defence. After considering the entire evidence on the record I feel that both the parties have twisted the true facts to minimize their own part in the occurrence.
In All Bapari's case PLD 1962 SC 502, it is laid down that in a situation like this where the parties do not come out with true story, the Court can draw proper inferences from evidence and circumstances. In the instant case the facts and circumstances indicate that both the parties were determined to settle their claim to the land in dispute and after arming themselves came out to fight a pitched battle. There was a free fight between them in which one person on the complainant side lost his life and another suffered injuries while the aforementioned four accused also sustained injuries at the hands of the complainant party. In such cases the question of self- defence does not arise except where one party is in peaceful possession and the other party seeks to disturb their possession by force. In such a situation the party who wants to plead private- defence is required to show that he was in peaceful possession of the property. In the instant case no satisfactory evidence is forthcoming that either party was in peaceful possession of the disputed land, therefore, it can safely be concluded that both the parties went armed to enforce their right or supposed right in the disputed land. In the circumstances no question of the right of private-defence would arise and each participant would be liable for his individual act. In this connection reliance can be placed on All Bepari v. Nibaran Mallah and others PLD 1962 SC 502 and Abdul Rehman v. Gadal Khan and others 1972 SCM R 676.
12. According to the eye-witnesses, Naazar, Aslam and Habibullah appellants gave one blow each to Mahmud deceased hitting his head. I have already held that the presence of Habibullah appellant in the occurrence has not been proved beyond a reasonable doubt. Naazar and Aslam appellants admitted their participation in the occurrence. The presence of the eye-witncsss at the spot is not disputed. There is, therefore, no reason to believe that they falsely attributed the injuries of the deceased to Naazar and Aslam appellants. The death of Mahmud deceased occurred in the course of free fight between two parties who were deliberately fighting after having armed themselves. Aslam appellant gave a Sota blow on the back of the head of the deceased and Naazar appellant gave him a Datar blow causing an incised wound. The injury attributed to Aslam a ppellant resulted in fractures of ear bone and left temporal/parietal bone upto base of skull.
Pieces of left parietal bone were driven into the brain matter. The injury attributed to Naazar appellant was also grievous in nature. The facts and circumstances of the case, however, indicate that there was no intention to cause the death of the deceased. According to the F.I.R. Muhammad Ali appellant raised a Lalkara that they would teach a lesson to the complainant party for constructing Haveli on the disputed land. Naazar and Aslam appellants who attacked the deceased are not alleged to have repeated the blow. They can, however, be safely burdened with the knowledge that a blow on the head of the deceased with formidable weapon like Dang or Datar was likely to cause his death. I, therefore, after their conviction from section 304, Part 1/149, P.P.C. To section 304, Part II, P.P.C. But maintain their sentence of R.I, for ten years and fine of Rs,1,000 each. In default of payment of fine they shall suffer S.I. For three months each as ordered by the trial Court. Their conviction and sentence under section 148 and sentence of three years' R.I. Under section 308/149, P.P.C. Are, however, set aside. Muhammad Ali and Naseer appellants caused injuries to Arif P.W. He had a lacerated wound on his right eyebrow and an incised wound on the top of his head. Both the injuries were declared simple in nature. For causing these injuries they were sentenced to R.I. For three years each under section 308/149, P.P.C. The former injury is attributed to Muhammad Ali appellant and incised wound to Naseer appellant. The offences committed by them fall under sections 323 and 324, P.P.C. Respectively and they are convicted thereunder. Muhammad Ali appellant has already suffered R.I. For thirteen months which is more than the maximum provided for the offence under section 323, P.P.C. Naseer appellant was arrested on 19-6-1979 and was convicted on 19-6-1980. He remained in jail as under-trial for one year and after his conviction he has served out R.I. For thirteen months. His sentence is reduced to the term of imprisonment already undergon by him. The conviction and sentence of Muhammad Ali and Naseer appellants under sections 148 and 304, Part-I/149, P.P.C. And their sentences under section 308/149, P.P.C. Are set aside. They shall be set at liberty forthwith if not required to he detained in any other case.
' Criminal Revision No, 953 of 1980 automatically fails and is dismissed.
13. While parting with this case, I cannot help remarking that the Additional Sessions Judge, who dealt with this case, has written a very perfunctory and slipshod judgment. It does not conform to the mandatory provision of section 367 of the Code of Criminal Procedure. It does not show whether the prosecution evidence was accepted or rejected. The trial Judge reproduced the prosecution and defence versions and without discussing their merit straightaway gave a finding that the accused had exceeded the right of self-defence. The question of exceeding the right of self-defence arises for consideration only when the Court first comes to the conclusion that the accused had the right of self-defence. In the impugned judgment it is nowhere stated that the appellants had such a right. It also appears that the trial Judge has no knowledge of the provisions/principles governing the right of self-defence. While considering the question of motive he Appellant Tarique Anwar, a constable in C.IA. Police Karachi was tried by Special Judge Anti- Corruption (Provincial) Karachi, for the offence under observed that the appellants had failed to produce any evidence to show that they were in physical possession of the disputed land and at the same time he held that they had exceeded the right of self-defence of person and property. He also failed to consider the effect of the grievous injury of Muhammad Ali appellant on the case in the light of section 100 of the Pakistan Penal Code. He sentenced the appellants under section 308/149, P.P.C. Although they were never convicted of that offence. The type of the case and its magnitude merited greater consideration at his hands but he has not even discussed the evidence of the witnesses nor given any reason for his so-called finding on the question of right of self- defence.