SARDAR MUHAMMAD DOGARJ- Manzur Ahmad aged 32 years was tried by the Sessions Judge, Okara, under Sections 302 & 307 PPC, for having murdered Allah Ditta (his uncle), and for having launched murderous assault on Ghaffar Shah PW, at 1 -00 p.m. On 11.10.85, in the fields in the area of village Jassoke Sohaag, at a distance of 10 miles from Police Station Haveli, Distt. Okara.
Learned trial Judge, vide judgment, dated 2.5.87 convicted him under Sections 302 & 307 PPC and awarded sentences as follows:- > U/s.302 PPC: Death plus to pay a fine of Rs. 10,000/- in default whereof to suffer 6 months R.I.
U/s.307 PPC: Imprisonment for life plus to pay a fine of Rs. 5,000/- in default whereof to undergo R.I., for 6 months.
The fine of Rs. 10,000/-, on recovery, has been directed to be paid as compensation to the heirs of Allah Ditta deceased.
2. The reference made by learned Sessions Judge for confirmation of death sentence and the appeal filed by the appellant arc being disposed of together.
3. FIR Ex. PA was recorded by Sardar Ali, Insp/S.H.O. (PW11) at 3-00 p.m. On 11.10.85, on the statement of Mst. Zubaida (PW1) widow of the deceased.
According to F.I.R, the deceased owned 15 marlas of land in the vicinity of the village. Manzur Ahmed, his nephew, had constructed a Dhari for the cattle near that land. The passage to Dhari was through the land owned by the deceased. The land was lying uncultivated since a long time.
The deceased started levelling the land 5-6 months prior to the occurrence, to make that cultivable. Manzur Ahmad and his father Ghulam Nabi started quarrelling with the deceased.
According to them if the land was brought under-cultivation, their way to the Dhari will be blocked.
The deceased did not agree.
On the day of occurrence the deceased was getting the land ploughed by a hired tractor under his supervision at 1-00 p.m. In the meantime, Manzur Ahmad came there. He started quarrelling with the deceased as to why he was ploughing? Hearing noise the complainant, her brother Inayat Ullah and Ghaffar Shah sister's son of the deceased came from (heir houses which were situated nearby, and asked the appellant not to quarrel un-necessarily. Manzur Ahmad went towards his house, threatening the deceased that he will teach him a lesson for making the land cultivable. He came there shortly thereafter. The complainant, her brother Inayat Ullah and Ghaffar Shah were still there.
The appellant after getting near the deceased brought out a pistol from beneath his shirt and fired at his face raising a lalkara. The deceased fell down. The appellant ran away. Ghaffar Shah PW chased him, on the noise raised by the Complainant. The accused fired at him but he saved himself by getting behind a wall. As a result of the firing, the deceased lost both of his eyes and suffered injuries on the nose as well as left cheek. Allah Ditta died on the spot.
4. Sardar Ali, Inspector after recording the FIR reached the spot. After preparing injury statement Ex.PJ and inquest report Ex. PH, he entrusted the dead body to Tariq Constable for post-mortem examination. Bloodstained earth was collected by him from the spot, vide memo Ex.PE. After recording statements of the PWs, he searched for the accused.
The appellant was arrested by Allah Yar, AS1 on 13.12.85. On 17.12.85 he led to the recovery of carbine P.I from his residential house while being in custody of Sardar Ali, Inspector. The same was taken into possession vide memo Ex.PC. The challan was submitted to Court after completion of necessary investigation.
5. Statements of eleven P.Ws, were recorded at the trial. Copy of Khasra Girdawari Ex.PM and copy of Jamabandi Ex. PN were also tendered in evidence.
Dr. Muhammad Iqbal Shamim who had performed autopsy on 12.10.85 at 8- 00 a.m. Appeared as PW5. He had noted following injuries on the body of the deceased:-
1. Contused wound 1 cm x 1 cm x going deep into cranial cavity on the left side of forehead. The underlying bone (frontal) was fractured. The margins of the wounds were inverted.
2. Contused wound 1 cm x 1 cm x going deep into cranial cavity on the right eye. All the structures of the eye were destroyed. The floor of the orbit was broken. The margins of the wound were inverted.
3. Contused wound 3 cm x 2/1/2 cm x going deep into cranial cavity on the upper part of nose. The nasal bones and hard palate were broken into pieces. The margins of the wound were inverted.
4. Contused wound 3 cm x 2 cm x going deep into cranial cavity on the left side of eye. All the structures of the eye were destroyed. The floor of the orbit was broken into pieces. The margins of the wound were inverted.
On dissection, frontal bone, left parietal and occipital bones were found broken through and through. The front part of the brain was lacerated. One pellet was removed from the back of head embedded in the scalp, while three pellets were removed from the brain. A wad was also removed from the brain.
Death was opined to have occurred due to shock and haemorrhage, resulting from the injuries, which were opined to be sufficient to cause death in the ordinary course of nature, collectively as well as individually.
Time between death and injuries was opined to be instantaneous, while the time between death and post-mortem was opined to be within 24 hours.
6. The ocular account was deposed to by Mst. Zubaida Bibi PW1, Ghaffar Shah PW2 and Inayat Ullah P.W.,3.
Mst. Zubaida Bibi while renarrating the facts given by her in the F.I.R, made changes, in that she took up the stand that her husband had given the right of passage to Manzur Ahmad through his other piece of land. She specifically stated that when Manzur Ahmad had asked Allah Ditta not to till the land because that would block the passage to his Dhari Allah Ditta had told him that he had already given him the passage through his other land. She also made certain other improvements, over the statement, she made while getting the case registered. The changes made by her were duly got confronted during cross-examination. Her assertion that she had not stated in Ex. PA that there was no other way to the Dhari of the accused except through the 15-marla land, was found to be incorrect and the same was noted to be recorded in Ex. PA. On the other hand her assertion that her husband had given the right of passage to the accused through his other land, was not found recorded in Ex. PA. She admitted that Inayat Ullah P.W. Was her brother while Ghaffar Shah PW was son of sister of the deceased. She explained that the accused was son of step-brother of the deceased. In answer to another question she staled that the shot fired by the appellant at Ghaffar Shah PW had not hit the wall even and had passed much above that which was more than a mans height. She denied the suggestion that the deceased was tilling the land with a pistol in his possession. She also denied the suggestion that she had not witnessed the occurrence and was in the house at that time.
7. Ghaffar Shah PW2 while corroborating the statement made by Mst. Zubaida Bibi with regard to the infliction of injuries by the accused to the deceased with a pistol, stated that when Manzur Ahmad had asked Allah Ditta that he should not till the land as that would block the passage to his Dhari. Allah Ditta had told him that he had already given him the passage from east of the land.
During cross-examination he admitted that his father was alive and was living in village Phulantoli along with his (P. W.s) two brothers and three sisters. He stated that his father owned 8 acres of land in that village and that was under his self-cultivation. He gave the name of the driver of the tractor as Muhammad Zaman. The discrepancies between his statement at the trial and Ex. DA before the Police, were highlighted during cross-examination after due confrontations with the previous statement. He stated that there had never been any altercation or dispute between the accused and the deceased prior to the tilling of the land and that the occurrence had taken place due to the tilling of land. According to him, the deceased had given an independent passage to the appellant. He denied the suggestion that he had not witnessed the occurrence.
8. Inayat Ullah PW3 while giving the account of occurrence, stated, "Allah Ditta told Manzur Ahmed that he should use the passage given by the deceased in the cast of his land but he would not allow him to have a passage through those 15 marlas". He stated that he and Ghaffar Shah had also requested Manzur Ahmad to use that other passage and not to insist for the passage through 15 marlas. He also claimed to have witnessed the recovery of pistol P.I at the instance of Manzur Ahmad appellant.
During cross-examination he stated that, " It is incorrect that giving of independent passage and insistence of the accused to have another passage through 15 marlas of land has been fabricated now". He stated that they had shown the passage on the east of the land to the Thanedar and the Patwari, who had prepared the site plan. He denied the suggestion that on the day of occurrence Manzur Ahmad was using the passage to his Dhari through 15 maria of land which was in possession of the deceased and that the deceased had estopped him from doing so and that on the insistence of Manzur Ahmad the deceased who had a pistol with him had tried to fire at the accused and the pistol had fallen down as a result of grappling between the two and had gone off, hitting the deceased on his face.
9. Sardar Ali, Inspector who had registered the F.I.R, on the statement of Mst. Zubaida Bibi and had submitted the challan to Court after investigation and during whose custody the appellant had led to the recovery of pistol P.I, appeared as PW11 and deposed those facts. During cross-examination he admitted that he had observed in his inspection note that there was no passage from the village to the Dhari of the accused except through the land which was being tilled at the time of occurrence and that alternative paths could be available to the accused but they also had to run through the land of the deceased. He admitted that in his inspection note there was no mention of the factum of firing at Ghaffar Shah PW. He also admitted that he had mentioned in his inspection note that the occurrence had taken place in the land owned by Manzur Ahmad appellant situated in the south of village abadi. The statements of the remaining witnesses are more or less of a formal nature.
10. The appellant during his statement under Section 342 Cr.P.C, denied the prosecution case and pleaded innocence. He denied that he had led to the recovery of pistol. He stated as follows in answer to the question, 'why this case against you and why the P.Ws, have deposed against you?:- I have been falsely involved in this case. I am innocent. I have my Dhari towards the south of the village abadi, there is a joint holding of 15 marlas in between my dhari and the village abadi and it was uncultivable. This piece of land was lying vacant for the last so many years. I had no passage for going to my dhari except by crossing through this vacant land which was being used as a passage by me for the last 15/16 years. The deceased in order to block my passage to my dhari started ploughing that land with a tractor on the day of occurrence and he was determined not to allow me to pass through that land. He had a carbine with him. On the day of occurrence I was going to my dhari through that land along with my bullocks. The deceased restrained me and stopped me from going ahead to my dhari but I insisted whereupon he tried to fire with the carbine on me. I grappled with him and in order to snatch the pistol from the deceased I caught hold of his hand. The grip of the deceased got loose and the pistol fell down from his hand. I and the deceased tried to pick up the pistol from the ground and during this struggle it went off which hit the deceased accidently."
He did not produce evidence in defence, nor did he make statement under Section 340 (2) of the Code of Criminal Procedure.
11. We have gone through the evidence with the assistance of learned counsel for the appellant and have examined the record in the light of the contentions raised by learned counsel for the parties.
12. The argument of learned counsel for the appellant that Mst. Zubaida Bibi PW1 and Inayat Ullah PW3 do not appear to have witnessed the occurrence, has not impressed us, in that, the houses of both of them were so close to the place of occurrence that their reaching the spot on hearing the quarrel and noise cannot be termed improbable for any reasons. The reporting of the occurrence so promptly also shows that Mst. Zubaida was available and at hand. However, we are inclined to accept the contention of learned counsel for the appellant that Ghaffar Shah PW docs not appear to have witnessed the occurrence, in that, he admitted that his father along with his children, was living in village Phulantoli, which was situated quite a few miles away from village Jassoke Sohaag.
Ghaffar Shah PW admitted that 8 acres of land belonging to his father in village Phulantoli was in his (witnesses) self-cultivation. He did not own any lsnd or house in village Jassoke. He did not explain as to what he was doing in this village and how, was earning, his livelihood. His assertion that he had been fired at by the accused when he had chased him, does not appear to possess substance, in that, firstly even Mst. Zubaida Bibi during cross-examination admitted that the shot fired by Manzur Ahmad appellant at Ghaffar Shah, had passed over and above the wall which was of a man's height. That could only have been, if the shot had been fired in the air. Moreover, it was a country made pistol and the accused had already fired one shot which had hit the deceased. If he had fired another shot, that could, only have been done, if he had evacuated the barrel and re- loaded the pistol. An empty in that case, would have fallen on the ground but no such empty was recovered.
13. Another fact which belies the presence of Ghaffar Shah PW at the spot, is that while the name of Inayat Ullah PW3 stands noted in column No. 4 of the inquest report, the name of Ghaffar Shah docs not find mention therein. He had not even attested the inquest report.
The statement of Ghaffar Shah PW has to be excluded from consideration as his presence at the spot for the reasons noted above, appears to be not only doubtful but unbelievable too.
14. Although we have not disbelieved the claim of Mst. Zubaida Bibi and Inayat Ullah PW3 to be at the spot but that does not mean that everything they stated can be accepted as the whole truth.
Their statements to the extent of Manzur Ahmad appellant having fired the fatal shot at the deceased, for reasons, do not appear to be incorrect.
The manner of sufferance of injuries by the deceased, as stated by the appellant, does not inspire confidence at all. It is unbelievable that the appellant would have been in a position to grapple with the deceased if he was holding a loaded pistol. His explanation that the pistol had fallen on the ground during that process and had accidently gone off, hitting the deceased, also is, absolutely incongruent with the scats of the injuries on the deceased. All the injuries found on the body of the deceased were on the face. A pistol lying on the ground even if had gone off by any accident, could not have struck the deceased on the face while standing and grappling with appellant. Had the injuries been on the feet or legs, it could have been argued that the injuries might have resulted from accidental shot from a pistol lying on the ground. The seats of the injuries on the deceased clearly show that the same only could have been suffered if the shot had been fired aiming him.
The version and the manner of suffrage of injuries as explained by the appellant, is neither acceptable nor worth acting upon. However, even believing the statement of the eye-witnesses, that the fatal shot had been fired at the deceased by the appellant docs not clinch the matter to reach a conclusion as to with what liability the appellant can be burdened? For coming to a correct conclusion in that regard, it has to be seen whether the deceased had a right to till the land and use it as he thought proper in total denial of the right of passage of the accused through that land to his Dhari, which was in vogue for the last 15-16 years and whether the accused had the right to defend his right of passage?
15. There was no dispute between the parties about the possession of the deceased over 15-marla plot which was lying uncultivated since long. The same also finds support from the documentary evidence, i.e. Copy of Khasra Girdawari Ex. PM and copy of Jamabandi Ex.PN. There was, as well, no dispute between the parties that Manzur Ahmad appellant and his father used to pass through the said 15-marla land while going to their Dhari. Where they were keeping their cattle for the last many years, before the deceased had started tilling the land.
16. It is not the case of the prosecution that the deceased had started tilling the land after making a provision for passage from any side of the said land for approach by the appellant and his father to their dhari. All that, was asserted, at the trial, was that the deceased had made arrangements for the accused to reach his Dhari through some other land. Now by the use of passage through the said land over many years, the appellant had earned the right to keep using the same. He could not have been asked to use any other passage for that, unless he himself had opted to do so. The stance of the prosecution at the trial that the deceased had made arrangements for the appellant to reach his Dhari by passing through his other piece of land, clearly amounted to denial of his right of passage through the 15-marla land, which deceased had started tilling. That being so the right to defend that passage had accrued to the appellant, the moment the deceased had started tilling that land and had refused to stop that. As such, if by doing so he had fired a shot at the deceased, he cannot be burdened with the liability of having committed an intentional and deliberate murder. His conviction and sentence under Section 302 PPC, therefore, cannot be maintained. The same are set aside.
We are, however, of the view that the appellant could have estopped the deceased from destroying his right of passage by using lesser force, or could have fired at the deceased at a less vulnerable part of the body. His having fired the shot at the deceased on the face in our view, clearly amounted to exceeding the right of protection of his property. He is, therefore, held liable for having committed the offence under Section 304 Part-1 PPC and sentenced to undergo R.I. For 10
(ten) years plus to pay a fine of Rs. 5,000/- (Rs. Five thousand only) in default whereof to suffer further R.1, for one year. The fine, on recovery, shall be paid as compensation to the legal heirs of the deceased.
17. Since we have not believed the presence of Ghaffar Shah PW at the spot, there is no question of believing murderous assault on him. The conviction and sentence of the appellant under Section 307 PPC, for having launched murderous assault on him (Ghaffar Shah) arc, therefore, set aside.
The appellant shall be given benefit of the provisions of Section 382-B Cr.P.C.