' FALAK SHER, J.--- Appellants Muhammad Siddique (25), Inayat Ullah (60) and Arshad Hussain (32) alongwith Aman Ullah and Karamat Hussain were tried for the murder of Muhammad Ajmal deceased (36) and murderous assault on Muhammad Asghar and Muhammad Nawaz P.Ws.; wherein learned Additional Sessions Judge, Gujrat vide judgment dated 4-5-1986, acquitting the latter two on both the counts, convicted and sentenced the appellants under section 302/34, P.P.C.
Respectively to death and imprisonment for life with fine of Rs,8,000 each, in default to serve two years' R.I. Each and half of the fine if realised to be disbursed to legal heirs of the deceased; however, they were acquitted of the charges under section 307, P.P.C.; feeling aggrieved the appellants have preferred Criminal Appeal No,325 of 1986 against their conviction and sentence; the State has questioned acquittal of the co-accused in Criminal Appeal No,335 of 1986; the complainant by virtue of Criminal Revision No,555 of 1986 agitating the same grievance has also sought enhancement of the sentence of imprisonment for life awarded to the two appellants, while the matter of confirmation of death sentence of Muhammad Siddique appellant has been referred vide Murder Reference No,130 of 1986.
2. Before proceeding with the merits of the case, it may be mentioned that during pendency of the appeal, sentence of Arshad Hussain appellant was suspended which on appeal, was recalled by the Supreme Court, despite that, he opted to remain fugitive frorri law and an absconder; consequently though he has no right of audience under the law but his appeal will be decided on merits.
3. On 6-10-1983, Muhammad Asghar P.W.1, real brother of the deceased at 1-05 p.m. Recorded statement Exh.P.A. With Muhammad Anwar A.S.I. P.W.9 at Katchery Chowk, Gujrat under section 307/148/149, P.P.C. On the basis whereof formal F.LR. Exh.P.A/1 was registered at police station Sadar, Gujrat by Muhammad Safdar, Moharrir Head Constable P.W.6 at 1-20 p.m. To the effect that the complainant along with his friend Muhammad Nawaz P.W. 2 riding a car called on the deceased at the factory of his paternal-uncle Shaukat, situated in the Gujrat Small Industrial Estate, for seeking permission to attend a friend's wedding at Addowal; and, while they were conversing at the factory's gate, the appellants, respectively armed with knives and Chhuri, in the company of the acquitted accused likewise equipped, all hailing from Gujranwala launched an assault.
Muhammad Siddique appellant exhorting that they will be taught a lesson for supporting their parternal-unlce Shaukat in not vacating the plot, pioneered the attack by inflicting knife injury to the deceased in abdomen above the umbilicus, followed by a similar injury by Aman Ullah below the right chest; then Karamat caused two injuries in succession i,e, one on the base of the neck near right shoulder and the other in the abdomen above the umbilicus supplemented by one blow each by Arshad Hussain and Inayat Ullah on right and left arm, respectively; whereafter the deceased collapsed on the ground and was caused number of injuries in quick succession by Muhammad Siddique; during the rescue attempt, the complainant received knife injury on the right hand from Aman Ullah while Muhammad Nawaz P.W. 2 received head injury with a brick hurled by Inayat Ullah; during the incident the appellants also received some injuries and vanished away.
Qua motive it was alleged that 4 years preceding the occurrence, complainant's uncle Shaukat, having purchased a plot from Mst. Rafia Bibi in consideration of Rs,70,000 had acquired its possession, though execution of the conveyance deed was deferred, to which, subsequently the acquitted co-accused Aman Ullah acquired title through a registered sale-deed, pursuant whereto they forcibly wanted to acquire the possession, for which they had arranged bricks on the spot as well, and suspected that the deceased had come over to help out his uncle. The complainant alongwith Muhammad Nawaz P.W.2 removed the deceased to Aziz Bhatti Shahced Hospital, Gujrat in the car, and after getting the injured medically examined and administration of emergency treatment to the deceased, left for the police station for lodging of the complaint.
4. Muhammad Anwar ASI P.W. 9 despatching the complaint Exh.P.A. To the police station for registration of the case proceeded to the hospital and, vide application Exh.P.M. Solicited doctor's opinion as to mental faculties of the deceased for making a statement which vide Exh.P.M./I was answered in the negative; whereafter he went to the spot, secured blood-stained earth vide memo.
Exh.P.C., blood-stained clothes of the deceased shirt P.1, Shalwar P.2 and the car's scat cover P.3 tendered by the complainant vide memo Exh.P.B., on the same day effected arrest of Arshad Hussain appellant, prepared his injury statement Exh.P.S., and referred him to the doctor for medical examination; on 9-10-1983 consequent upon demise of the deceased prepared his injury statement Exh.P.T., inquest report Exh.P.U. And secured into possession his blood-stained Chaddar P.4 tendered by Mukhtar Ahmad F.C. P.W.3 vide memo. Exh.P.D.
5. The remaining investigation was conducted by Ijaz Ahmad, Inspector S.H.O. P.W.10, who, on 19-10- 1983 arrested Muhammad Siddique, Inayat Ullah appellants and Aman Ullah acquitted accused while arrest of Karamat Hussain, last of the series was accomplished on 22-10-1983; effected the following recoveries from a pond in the industrial area, on the respective pointation of Arshad Hussain on 21-10-1983 blood-stained Chhuri P.5 vide memo. Exh.P.N. Attested by Muhammad Riaz P.W.7 and Jehangir (not produced); Aman Ullah and Muhammad Siddique on 23-10-1983 knives P.6, and P.7 vide memo. Exhs.P.O. And P.P. Respectively, attested by Manzur Hussain P.W. 8 and Jehangir (not produced); Inayat Ullah and Karamat Hussain on 24-10-1983, knife P.8 and Chhuri P.9 respectively vide memo. Exh.P.O. And PR attested by the same witnesses.
6. On the same day, at 12-40 p.m., Dr. Talaat Iqbal P.W.6 medically examined the deceased and vide medico-legal report Exh.P.F. Noticed the following injuries:-
(1) Incised wound 2.5 c.m. x 1 c. Of neck wound bleeding.
(2) Incised wound 2.5 c.m. x 1 right upper chest.
(3) Incised penetrating wound 2 right chest.
(4) Incised penetrating wound hypochondrium.
(5) Incised penetrating wound 2 side of abdomen. ' in. Trans oblique on lower part of right side c.m. Trans oblique penetrating on front of c.m. x 1 c.m.
Trans oblique on lower part of 2 c.m. x 1 c.m. Trans oblique on left c.m. x 1 c.m. Trans oblique on middle of left
(6) Incised wound 1.5 c.m. x 0.5 c.m. On outer side of right upper arm.
(7) Incised wound 3 c.m. x 1 c.m. On inner side of lower part of left arm: All wounds bleeding profusely; ' opined to be fresh avid caused with sharp-edged weapon with cuts corresponding to injuries 2 to 7 on the shirt; and after rendering the emergency treatment, the deceased was shifted to the surgical ward.
' Soon thereafter he examined the complainant and Muhammad Nawaz P.W. 2 who had accompanied the deceased and found the following; MUHAMMAD ASGHAR; Exh.P.G.:
(1) Superficial incised wound 1 c.m. x .5 c.m. On the eminence of right hand.
(2) Superficial incised wound 1 c.m. x .5 c.m. On middle of palm of right hand.
(3) Superficial incised wound 1 c.m. x .5 c.m. On left elbow joint.
(4) Contusion 5 c.m. x 2 c.m. On lower lumbarspine; ' Injuries Nos.1 to 3 were opined to have been caused with sharp-edged weapon while injury No,4 with blunt and all were fresh in duration. MUHAMMAD NAWAZ; Exh.P.H.:
(1) Lacerated superficial irregular wound 2 c.m. x .5 c.m. On middle of occiput.
(2) Abrasion 1 c.m. x .5 c.m. On left eye-brow.
' Injury No,1 was kept under observation and was opined to have been caused with blunt weapon and fresh in duration.
7. On the same day at 5 p.m. He examined the appellants and vide medico-legal reports Exhs.P.K., P.J. And P.L. Noticed the following:-- MUHAMMAD SIDDIQUE:
(1) Incised wound 9 c.m. x 2 c.m. Longitudinal oblique on outer side of upper part of left arm with corresponding cut on the shirt.
(2) Contused swelling of middle of lower lip. Lower incised and cannine teeth were missing on right side. Gums were bruised and bleeding. Corresponding abrasion on inner side of lower lip present.
Both the missed teeth were alleged to have fallen at site of fight. All other teeth were healthy and normal. Orodental hygiene was satisfactory.
(3) Linear contusion 3 c.m. x .5 c.m. On back of upper part of left chest.
(4) Liner contusion 3 c.m. x .5 c.m. On left lumber region.
' Injury No,2 was declared grievous while 3 and 4 as simple. Injury No,1 was opined to have been caused with sharp-edged weapon while the remaining with blunt weapon within a few hours; however, on 16-10-1983 on re-examination it was also declared simple. INAYAT ULLAH:
(1) Y-shaped lacerated wound 3 c.m. x .8 c.m. Scalp deep on right frontal region of scalp.
(2) Lacerated wound 1.5 c.m. x .5 c.m. Muscle deep on middle of upper lip. The shirt was moderately stained with blood.
' Both the injuries were opined to have been caused with blunt weapon within a few hours and simple in nature. ARSHAD HUSSAIN: "Lacerated wound superficial 2 c.m. x .5 c.m. On right occipital region;" caused with blunt weapon and simple in nature.
8. Responding to questions, Dr. Talaat Iqbal P.W. 6 stated that the injured was brought in the hospital by the complainant at 12.40 p.m. And was administered lifesaving injections like carmine and dead-on to which he responded a bit; the treatment consumed 10 to 15 minutes and roughly the same amount of time was spent in preparing the medico-legal report; soon thereafter the matter was reported to the police on telephone; Muhammad Nawaz P.W. 2 had come for medical examination by himself and was not brought by anybody; Arshad Hussain appellant was examined on police request; injury of Muhammad Siddique appellant was declared simple on re- examination without the assistance of X-Ray; which was probably conducted on 16-10-1983 on police request, volunteered that he was not admitted in the hospital because the grievous injury was on his teeth, thus did not require admission; but could not name the person who brought him for re-examination nor could be spell out as to whether the request was made orally or in writing; however, firmly repelled the suggestion that he remained hospitalized till 16-104983 and that he was being pestered by the police not to record him as indoor patient and declare the injury simple.
9. Dr. Munawar Ahmad P.W. 11 on 10-10-1983 conducted the autopsy and noticing the aforereferred injuries vide post-mortem report Edi.P.V. Found the following:-- ' Laparotomy was done in the mid line above umbilicus incision in 22 c.m. And 14 stitches, 3 other stitches were also present on the abdomen, two on left side and one on the right vein. Dissection was done on both legs so two stitches were present on both the legs; liver damaged with stab wound, a stitch present on the left lobe of the liver, was torn and stitched after laparotomy; peritoneum and momentum were also cut, stomach and urinary bladder were empty while other vicarages were semi-torn injuries were opined to be ante-mortem caused by sharp edged weapon; death was caused due to shock and hemorrhage on account of rupture of liver; injuries Nos.2 and 3 were sufficient to cause death in the ordinary course of nature, probable time between injuries and death was 3 days and that between death and post-mortem 19 to 24 hours. Replying to a question he stated that injury to liver is fatal if timely treatment is not offered and hemorrhage does not occur.
10. The complainant, reiterating the prosecution story at trial explained that he had joint place of abode and business with the deceased, where, in the first instance they looked up for the latter, and upon learning that he had gone to uncle Shaukat's factory in Small Industrial Estate within the bounded compound whereof the 7 marlas plot is situated, for enquiring into grinding of their raw material, proceeded there in the car; that during the occurrence he as well as Muhammad Nawaz P.W.2 pelted brickbats and stones at the appellants with a view to saving their skin; whereafter both of them motorised the deceased in injured condition to Aziz Bhatti Shaheed Hospital; that though conveyance deed of the plot was not executed but the receipt was, of which he had knowledge but was not mentioned during the investigation; that initially the factory was installed on 7 marlas, subsequently, in addition to the adjacent 15 marlas the plot in question was purchased in the year 1979 and he was encompassed in one boundary wall with solitary access through the main gate and he was enjoying its continuous exclusive possession for the last 8/10 years; pleaded ignorance as to purchase thereof by Aman Ullah through a registered conveyance deed dated 24-11-1982; affirming that Shaukat did not appear before the police during investigation, repelled the suggestion of the sale theorisation as an afterthought designed to furnish motive for the occurrence; that his place of abode is at a distance of 2 miles from the place of occurrence; having affirmed that name of the person whose marriage they were to attend was not divulged in the F.I.R., volunteered that the Nikah had already been performed and they were to participate in the Rukhsati ceremony only; that equipped with three medico-legal reports en route to the police station he met Muhammad Anwar P.W.9 near Katchery Chowk where they sat down in a nearby hotel and recorded the statement Aman Ullah had brought bricks on the spot on the day of occurrence; that save for the occurrence there' is no ill-will or had feelings between the parties; admitting that Muhammad Nawaz P.W.2 was facing a trial in 2 criminal cases under section 307, P.P.C. And Arms Ordinance, pleaded ignorance of the latter having been involved in a police encounter; denied the suggestion that on the day of occurrence dispute arose due to demarcation of boundary of the plot on account whereof they were invited by Shaukat, respectively armed with Chhuri, knife and gun; Nawaz fired the gun, cartridge whereof got stuck up consequently he gave two blows to Inayat Ullah and Arshad Hussain appellants while the deceased injured Siddique with Chhuri; he affirmed that the injuries were given in quick succession and since he was empty handed, therefore, he was scared of causing any physical interference till the assailants had injured the deceased during the course whereof Siddique appellant snatched the knife and both of them had a fight with Siddique; and, during the melee, the deceased, Nawaz and the appellants also received injuries.
11. Muhammad Nawaz P.W.2 testifying to the same effect stated that he is running a 'petty' business of motor spare parts in front of his house at a distance of two furlongs from the complainant's house who deals in ceramics; denying the suggestion of being a desperado admitted that he was challaned in one or two criminal cases mistakenly and, that, he was also held up for a police encounter under a mistaken identity of another person, that during the occurrence he pelted 2/3 brickbats at the appellants, alongwith the complainant and none else did that, whereupon he was confronted of having stated before the police that the deceased also threw brickbats at the assailants causing minor injuries; that Muhammad Siddique appellant inflicted 2/3 blows to the deceased after he had collapsed on the ground and vehemently denied the suggestion of having been hired by Shaukat through the complainant and the deceased, as well as the suggestion of their having come armed on the spot and picked up a quarrel during the course whereof the deceased received injuries.
12. Muhammad Anwar P.W.. 9 testifying the investigation, deposed that he was on patrol duty in Katchery Chowk where the complainant met him near District Courts and took about 15 minutes in recording the complaint; affirmed that Arshad Hussain appellant initially pleaded that he had gone to receive payment from a 'party', from where the accused took him to the spot where bricks were lying in front of the factory gate where they had a quarrel,...Muhammad Siddique and Inayat appellants, attacked and injured the complainant party and only the former caused knife injuries to the deceased; that the complainant side's pelting caused injuries to the appellants; however, denied the suggestion that Arshad Hussain visited the police station for reporting the matter which he refused to record since the F.I.R. Had already been registered, and admitted that there were two versions of the incident, one contained in the F.I.R. And other given by Arshad Hussain appellant.
13. Similarly, ljaz Ahmad Inspector P.W.10 deposing to his part of the investigation in cross- examination stated that he did not take into account the appellants' injuries for determining their guilt or innocence was they challaned on the basis of the prosecution version only; affirmed that Muhammad Siddique and Inayat Ullah appellants pleading self-defence accused the deceased of the aggression, and, that, the place of recovery of weapons of offence is situated by the side of G.T.
Road assessable to everybody, where those were lying in grass and were not buried; however, pleaded ignorance as to whether the former remained hospitalised till 16-10-1983 as well as refusal to cite witnesses in support of the appellants' version.
14. The Public Prosecutor giving up Munir Ahmad, Muhammad Shafi, Nisar Ahmad, Jehangir and Abdul Shakoor P.Ws. As unnecessary tendered in evidence positive reports of the Chemical Examiner qua earth and crime weapons Exhs.P.W. And P.X., origin whereof was affirmed to be human by the.Serologist vide report Exhs.P.Y. And P.Z. Respectively, while rest of the evidence was of formal nature.
15. The appellants in their statements under section 342, Cr.P.C. Gave the following versions: INAYAT ULLAH: ' Aman Ullah and Siddique acquitted co-accused are his brother and nephew respectively; on the day of occurrence he was supervising construction of boundary wall of the plot, of which the former having purchased had acquired the possession; Shaukat objecting to the construction brought in the deceased, the complainant and Muhammad Nawaz P.W.10, respectively armed with Chhuri, knife and gun; the latter fired gunshot which missed and the cartridge got stuck up; the deceased attacked Siddique appellant with Chhuri while Muhammad Nawaz P.W.2 gave him two butt blows and also injured Arshad Hussain appellant, whereupon Muhammad Saddique snatched knife from the complainant and used the same in self-defence. Aman Ullah and Karamat acquitted accused were not present at the time of occurrence; he got himself medically examined and was apprehended by the police the same day; however, in view of seriousness of the injuries he was guarded by the police in the hospital till 16-10-1983.
' To the same effect was the stance of Muhammad Saddique appellant. ARSHAD HUSSAIN: ' Upon reporting of the alarm he went to the spot and noticed Inayat Ullah and Muhammad Saddique appellants being attacked by the deceased and the two eye-witnesses, whereupon intervention he also received injuries, and in self-defence Muhammad Siddique caused injuries to them whereafter he went to the police station for lodging of the report, and discarding his statement he was apprehended. AMAN ULLAH: ' Narrating purchase of the plot, acquiring of its possession, arranging of the bricks and masons etc. On the spot supervised by the appellants, its objection by Shaukat, the defence version of the occurrence having occasioned in his absence, tendered in evidence registered conveyance deed Exh.D.D. And copy of the plaint of specific performance suit having been filed on 27-3-1983 Exh.D.E.
16. The learned trial Court disbelieving the recovery, on the basis of ocular testimony and the medical evidence, giving Aman Ullah and Karamat benefit of doubt, in view of absence of any injuries on their person, recorded their acquittal, and convicted the appellants under section 302/34, P.P.C. For the murder of the deceased while all the accused were acquitted of the charges under section 307, P.P.C.
17. Mr. Ijaz Hussain Batalvi, learned counsel for the appellants contended that presence of both the eye-witnesses on the spot is not by innocence as claimed by the prosecution, rather is out of design to hinder raising of the boundary wall by the appellants' side on the plot, title and possession whereof was lawfully vested in one of the acquitted accused, in furtherance whereof they picked up a quarrel amidst which death of deceaed ensued while exercising lawful right of defence of person and property, which stance was asserted from the very inception and persistently maintained throughout and is not an afterthought; that the F.I.R. Was lodged after deliberations by tailoring it to harmonise with the medical evidence; that the scientific camera precision description of the injuries on the person of the deceased and their allocation to the accused motivated out of impulsion to widen the net read in juxtaposition qua vague and toned down description of the appellants' injuries and discarding of the testimony on the second count i,e, 307, P.P.C. , casts grave doubt as to the veracity of the eyewitnesses and their truthfulness; that the investigation of the case is tainted with glaring dishonesty viz., the defence version was not even examined; suppression of hospitalisation of Siddique and Inayat Ullah appellants and their subsequent arrest thus causing sufficient dent in the prosecution story entitles the appellants to the benefit of doubt; that the star witness qua the motive viz. Shaukat has remained a mysteryman throughout viz. He neither joined the investigation nor appeared at the trial; in the alternative treating it to be a case of free fight, conviction under section 302, P.P.C. Is not called for and at its best it may be a case of section 304, Part I, P.P.C. Meriting lesser penalty.
18. Mian Aftab Farrukh, learned counsel appearing on behalf of the complainant in the State appeal supporting the judgment submitted that the appellants, with a view to acquiring forcible possession of the plot in question taking law into their own hands launched the aggression with pre-determination which the complainant side had a lawful right to resist; explaining the absence of Shaukat learned counsel pointed out that during the investigation he was not examined by the police thus was not cited as the witness probably due to the reason that he had not witnessed the occurrence, consequently at the trial twice applications were moved requiring his summoning which did not find favour with the trial Court.
19. Visualising the two versions in juxtaposition, we are of the considered view that the prosecution story is more probable and appellants were the aggressors for the following reasons: ' The refuted ocular testimony furnished by the eye-witnesses qua location of the plot within the bounded compound of Shaukat's factory stands corroborated by the site plan Exh.P.E, coupled with a recital in the registered conveyance deed Exh.D.D., in unequivocal and unambiguous terms demonstrates that the plot in question squarely falls within the bounded compound of Shaukat's factory and is situated at its remote end with only access through the solitary main entrance save for the aerial route, in front whereof the appellants got bricks dumped with allied masonary arrangements for carving out separate boundary wall around it, having travelled to the spot all the way down from Gujranwala, with a view to achieving predetermined objective through adventurous resolute course, sufficiently equipped with sharp-edged weaponry by trespassing into Shaukat's factory, in which scenario the complainant's side was lawfully justified to offer resistance by deploying such force as was considered necessary in the circumstances of the case to keep the invaders off through the means then available on site i,e, brickbatting, of which the nature of injuries found on appellants' person sufficiently speaks.
20. Assuming for the sake of arguments that legal title to the plot in question vested in the appellants' side and Shaukat was in unauthorised occupation thereof, even then the former were not entitled under the law to have a recourse to self-help with a view to avoiding the necessary consequences that may ensue therefrom, of which the case in hand is an illustrative specie because the law on the subject is well-settled viz. a person in possession, may he be a trespasser, has a right to defend his possession even against a rightful owner. Reliance in this regard is placed on the enunciation made in Sardaria and another v. The State PLD 1970 SC 212.
21. Having minutely examined the entire evidence with the assistance of the learned counsel, we are of the view that independent of the pedantic explanation tendered by the complainant, the factum of presence of both the eye-witnesses at the venue and the time of occurrence stand fully established from the injuries noticed on their persons by the doctor, who were subjected to medical examination alongwith the deceased having been promptly transported to the hospital in the car; securing of its blood-stained seat cover and arrest of Arshad Hussain appellant on the same day, conjunctively with the appellant's version of the incident.
22. In view of the aforegoing, the theory of self-defence of person and property postulated by the learned counsel for the appellants does not appeal to reason; on the contrary, it is a case of aggression and launchig of predetermined assault designed to acquire forcible possession of the plot in question, culminating into murder of the deceased, for which the prosecution has proved its case against Muhammad Siddique and Muhammad Ashraf appellants beyond any manner of doubt, and they have been rightly convicted and sentenced; however, case of Inayat Ullah appellant has a peculiar distinguishing feature, viz. Unceremonial swaping of knife with a brick remains shrouded in mystry for which no explanation whatsoever despite the specific query has been tendered, further keeping in view the age factor, sixty plus, his striking role is amenable to doubt; consequently as a matter of abundant caution for the sake of safe administration of criminal justice, giving him the benefit of doubt, he is acquitted of the charge.
23. In view of the aforegoing, dismissing the appeal qua Muhammad Siddique and Arshad Hussain, death sentence of the former is confirmed.
' Since no case for interference with the acquittal of Amanullah and Karamat nor enhancement of sentence of Arshad Hussain appellant is made out, therefore, the State Appeal as well as the revision stand dismissed being devoid of any substance.