1. S. USMAN ALI SHAH, J: --Both the above-noted criminal appeals by leave of this Court dated 30-11- 1986, have arisen from the single judgment dated 2-4-1986 of the Lahore High Court, Lahore; whereby Criminal Appeals Nos.92/84, 93/84 filed by the appellants against their convictions under section 302/307/148/149, P.P.C. And sentences thereof were dismissed and M.R. No.57 of 1984 filed by the State for confirmation of the death sentences awarded to Mushtaq Ahmed son of Bashir Ahmad, Mushtaq son of Mehr Din, Faiz Rasool alias Faiz and Muhammad Haneef appellants by the trial Judge were confirmed.
2. Briefly, the facts of the case according to the prosecution are that on 15-6-1982 at 10-30 a.m.
3. Complainant Muhammad Yousaf P.W.1 and the three deceased, namely, Muhammad Anwar, Muhammad Shafi and Muhammad Ashraf, alongwith Muhammad Saddique P.W.2, Ghulam Rasool P.W.4, Muhammad Sharif P.W.7 and Ismail (not produced) were present in the cotton field for weeding the crop in village Bassiwala at a distance of 4 miles from police station Pasrur, when the appellants in both these appeals alongwith Muhammad Ilyas and Muhammad Abbas acquitted accused and Gul Nawaz (absconder) armed with different weapons came there Mushtaq Ahmed son of Bashir Ahmed appellant, Muhammad Ilyas and Muhammad Abbas both acquitted accused, Mushtaq son of Mehr Din and Muhammad Yousaf armed with .12 bore guns, Faiz Rasool appellant and Gul Nawaz (absconder) both armed with Carbines and Muhammad Tufail appellant having a Sota in his hand. On seeing them all the three deceased and other P.Ws. Sitting with them ran towards the canal in order to save their lives but they were surrounded by the accused party.
4. Mushtaq Ahmed son of Bashir Ahmed fired a shot at Muhammad Anwar deceased which hit in his abdomen, Gul Nawaz (absconder) fired at Muhammad Shafi deceased and hit him in his waist, Mushtaq son of Mehr Din fired a shot at Muhammad Ashraf with which he was hit and fell down on the ground, Muhammad Abbas acquitted accused then fired a shot on the left ear of Muhammad Saddique P.W.2, Muhammad Haneef appellant also fired at Muhammad Saddique P.W.2 which hit him on the left side of his buttock. Mushtaq Ahmed son of Bashir Ahmed fired at Rahmat P.W.3 which hit on the right side of his buttock. Muhammad Ilyas acquitted accused fired a shot at Muhammad Sharif P.W.7 and hit him, Mushtaq son of Mehr Din fired a shot and hit Ismail P.W. (not produced) over his left eye, Muhammad Ilyas acquitted accused fired at Muhammad Yousaf P.W.1 and hit him, Faiz Rasool appellant fired from his Carbine and hit Muhammad Yousaf, P.W., Muhammad Tufail inflicted Sota blows to Ghulam Rasool P.W.4, Muhammad Sharif P.W.7 and Ismail (not produced). Ghulam Rasool P.W.4 in his self-defence hurled brickbats on Muhammad I Haneef and Faiz Rasool appellants and caused them simple injuries. The occurrence in addition to the injured P.Ws. Was also seen by Nazar Hussain P.W.8 and Muhammad Ashraf (not produced). As a result of this occurrence, Anwar, Ashraf and Muhammad Shat died on the spot while Rahmat, Muhammad Siddique, Ghulam Rasool, Muhammad Yousaf, Muhammad Ismail and Muhammad Sharif P.Ws. Received injuries. All the accused after commission of the crime decamped from the scene of occurrence. Complainant Muhammad Yousaf injured P.W. Reported the occurrence to Mushtaq Ahmad S.I./S.H.O. Through his statement Ex.P.A. Who met him at Basiwala Canal Bridge while on patrol duty. This statement Exh.P.A. Was sent to the police station through Muhammad Riaz F.C. On the basis of which formal F.I.R. Exh.P.A./1 was recorded.
5. The S.I. Mushtaq Ahmad proceeded to the spot, where he prepared the inquest report Exh.P.E.E., Ex.
6. F.F. And Ex.H.H., of Muhammad Shat, Muhammad Anwar and Muhammad Ashraf deceased. The S.I.
7. Also prepared the injury statements of the above deceased Exh.P.D.D. And Exh.P.G.G. And blood-- stained earth from the places of the deceased was also collected by him vide recovery memos Exh.P.G., P.C. And P.H. The injured were removed to the hospital, and the I.O. On the same day made request to the Medical Officer to enquire whether the injured persons were fit to make their statements? Ghulam Rasool, Ismail and Muhammad Sharif P.Ws. Were declared by the Doctor as fit to make their statements on 1G-G-1982 while Muhammad Saddique and Rehmat Ali injured P.Ws.
8. Were declared fit to make their statements on 20-G-1982. The I.O. Then took into custody the last- worn clothes and Phials containing the pellets recovered from the dead bodies of deceased Muhammad Anwar, Muhammad Shat and Muhammad Ashraf respectively, by the Doctor and handed over to Bashir Ahmed Constable at the time of post-mortem examination. After recording the statements of the injured P.Ws., the I.O. Took into custody vide memo Exh.P.E. Phial containing pellets extracted from the body of Rahmat P.W. Which were taken into custody by the I.O. On 22-6- 1982. The site plan Exhs.P.B. And P.B./1 was prepared by Azhar Hussain Patwari on 7-7-1982 at the instance of the witnesses.
9. The motive for the occurrence according to the prosecution is that Mst. Said Bibi a widow owned about nine acres of agricultural land. Mushtaq son of Bashir appellant was applying water from his own tube-well to the said Mst. Said Bibi for 6-7 years prior to the occurrence for irrigation of her land in return of which Mst. Said Bibi used to give 1/3rd produce of those 9 acres to the appellant. A year before the occurrence one Muhammad Khan the real brother of Muhammad Yousaf complainant got this land from Mst. Said Bibi on lease for 16 years and paid her the advance lease money for one year. He started boring for the installation of the tube-well in this land. On this Mushtaq Ahmed son of Bashir Ahmed appellant filed civil suit and got stay order which was subsequently vacated on the statement of Mst. Said Bibi to the effect that she had permitted Muhammad Khan to install the tube-well in the land. In this the appellants became annoyed, hence the occurrence.
10. On 15-6-1982 Dr. Muhammad Sarwar P.W.15 medically examined Rahmat P.W. 3 and found five simple fire-arm wounds on his person. The said doctor also examined Muhammad Siddique P.W.2 and found two lacerated wounds and multiple gun-shot wound on his person. The gun-shot wound on his left buttock was declared as grievous, the rest of the injuries were simple and were caused by blunt weapon. Ghulam Rasool P.W.4 was also medically examined by the said doctor and found rive injuries on his person, out of which one injury was caused with fire-arm and the rest of the injuries by blunt weapon. The injury on outer aspect of middle of left lower chest was declared by the doctor as grievous and the rest of the injuries were simple in nature. Muhammad Yousaf P.W.1 was also examined by the same doctor on the same day and found 11 injuries on his person out of which seven injuries were caused by firearm and the rest with blunt weapon. All the injuries were simple in nature. On the same day P.W. Ismail (not produced) was also examined by the same doctor who found two simple injuries on his person, out of which one injury on the forehead was caused by fire-arm and the other by blunt weapon. Muhammad Sharif P.W.7 was also examined by the said doctor and found live simple injuries on his person. One injury on the left leg was caused by fire-arm and the rest with blunt weapon.
11. On 16-6-1982 the same doctor conducted on autopsy on the dead body of Muhammad Shaft and found a gun-shot wound oval in shape, of 0.8 c.m. x 0.7 c.m. Deep to abdominal cavity on front of abdomen in left illia fossa, 13.8 c.m. From mid-line. Tattooing mark was present around the wound.
12. Edges of the wounds were inverted. There was no exit wound. Direction of the wound was transversely oblique, inverts and posteriorly. The doctor opined that the death of the deceased was caused due to shock and haemorrhage on account of the aforesaid injury caused by a fire-arm and was sufficient to cause death in the ordinary course of nature. The death was immediate. The time between death and post-mortem was 12 to 24 hours.
13. The said doctor conducted the post-mortem examination on the dead body of Muhammad Anwar on the same day and found a fire-arm wound 8 c.m. x 10 c.m. Deep to muscle on front of lower part of abdomen in hypogastriun. Edges of the wound were inverted. Tattooing mark present around the wound. The direction of the wound was downwards and backwards through injuinal ligment into left thigh. There were five exit wounds present in left inguinal region and from the upper part of the left thigh of 2 c.m. x 1 c.m. Size. Edges of these wounds were overted. All the major nerves and blood vessels in femoral capal and triangle were torn. The' cartridges and small shlugs were penetrated deep to middle of thigh adjacent to shaft of left femur bone. The cartridge and shlugs were removed from the thigh. Stomach contained 4/6 ounces semi-digested food and urinal bladder was empty. All other organs were found healthy and intact. In the opinion of the doctor the death of the deceased occurred due to shock and haemorrhage on account of damage to femoral artery and vein (left) which was sufficient to cause death in the ordinary course of nature.
14. The injury was antemortem and was caused by fire-arms weapon.
15. Post-mortern examination on the dcadbody of Muhammad Ashraf was also performed by the said doctor on the same day who found 10 gun-shot wounds on the dead body. According to the doctor the death of the deceased occurred due to shock and haemorrhage caused with the gun-shot wounds, which were sufficient to cause death in the ordinary course of nature. All the wounds were ante-mortem and were caused by fire-arm weapons.
16. The blood-stained earth earlier taken into custody was sent to the Chemical Examiner, Lahore, who vide his report Exh.P.J.J. Found that all the 3 articles were stained with blood. The Serologist's report on the same was that the earth was stained with human blood.
17. After the arrest of all the accused, Faiz Rasool accused on 30-6-1982 while in police custody voluntarily led to the recovery of a carbine from the Kurh of his Dera which was taken into custody vide memo Exh.P.B. On 12-7-1982 Muhammad Tufail accused in custody, voluntarily led to the recovery of Sota from the ceiling of his Waranda of his Dera which was taken into custody vide memo Exh.P.M. And on the same day Mushtaq son of Bashir also voluntarily led to the recovery of the gun from his Dera which was taken into custody vide memo Exh.P.N. On 13-7-1982 Muhammad Hanif accused led to the recovery of a gun front his Dera where tube-well was installed and it was taken into custody vide memo Exh.P.O.
18. After completion of the investigation procedure, all the accused, except Gul Nawaz absconding accused, were challaned before the Addl. Sessions Judge, Sialkot, to stand their trial under section 302/307/148/149, P.P.C. All the accused did not plead guilty. The prosecution in order to prove its case, examined 17 witnesses in all. Muhammad Yousaf P.W.1, Muhammad Siddique P.W.2, Rehmat P.W.3, Ghulam Rasool P.W.4. Muhammad Sharif P.W.7 and Nazar Hussain P.W.8 deposed as eye- witnesses of the occurrence. They claimed in their statements that they have seen the appellants, acquitted accused and Gul Nawaz absconder launching attack on the three deceased and the injured P.Ws" resulting in the death of Muhammad Anwar, Muhammad Ashraf and Muhammad Shari and injuries to the prosecution witnesses.
19. After a careful consideration the learned trial Judge reached the conclusion that the prosecution could not establish its case beyond a reasonable doubt against Ilyas and Abbas accused, hence they were acquitted from the charges by giving them the benefit of doubt. However, he found the cage against Mushtaq son of Bashir, Mushtaq son of Mehr Din, Muhammad Halleef, Faiz Rasool and Muhammad Tufail to have been proved by the prosecution beyond any reasonable doubt, they were convicted under section 302/149, P-P.C. And sentenced all of them except Muhammad Tufail to death. Muhammad Tufail was given the lesser penalty of life imprisonment. All the five accused were held guilty of the offence under section 307/149, P.P.C., convicted them and sentenced them to seven years, R.I. Each with a fine of Rs.2,000 each or in default of payment of fine, they should suffer further R.I. For one year each, vide order dated '5-2-1984.
20. The appellants filed appeals against their convictions and sentences before the Lahore High Court and the State filed murder reference for confirmation of the death sentences awarded to four appellants. However, the prosecution filed criminal revision against the acquittal of Muhammad Ilyas and Muhammad Abbas acquitted accused. The learned Division Bench of the High Court after a thorough examination of the entire case dismissed all the matters and confirmed the death sentence of the above-named four appellants vide impugned judgment dated 2-4-1986. Hence, these two criminal appeals before us.
21. We have heard the learned counsel for the parties and have gone through the evidence available on record. The prosecution's case is mainly based on the ocular testimony of Muhammad Yousaf, Muhammad Siddiquv, Rahmat, Ghulam Rasool, Muhammad Sharif-and Nazar Hussain and all of them except Nazar Hussain were injured during the course of the occurrence. The trial Court keeping in view the parallel versions of the complainant and the accused parties held that the appellants were the aggressors and also rejected the assertion that Gul Nawaz mentioned in the F.I.R. Was some other person. Similarly, the High Court also rejected the plea of self-defence of the appellants. Both the Courts have not taken notice of the fact that the occurrence took place in Field No.797 which adjacent to the Field No.796, owned by the accused party is far away from the land of the complainant party. It was the case of the prosecution that the complainant party was present at the spot, weeding their cotton crop. The site plan does not show any field of cotton crops which according to the claim of the prosecution was weeded by the complainant party. Furthermore, a perusal of the evidence on the record shows that two of the accused; namely, Muhammad Hanif and Faiz Rasool were injured and Ghulam Rasool P.W.4 in his statement has admitted to have pelted brickbats on them due to which both these accused received injuries. The Investigating Officer found no brickbats on the spot and thus the injuries on the persons of Muhammad Hanif and Faiz Rasool were not caused on account of brickbats. The medical statement also shows that Muhammad Anwar deceased was killed by his own carbine which is an ample proof that the complainant party too was armed at the time of occurrence.
22. In this case the eye-witnesses have attributed specific role to the individual accused and keeping in view the number of the accused one can't believe that the occurrence should have been witnessed so minutely by the prosecution witnesses. The defence version as given by the accused was disbelieved by the Courts below but the reason given by the High Court for the acquittal of the co-accused is equally applicable in the cases of the appellants in both these appeals as well.
23. Hence keeping in view the cases of the prosecution at par with the defence version, as a rule the one favouring the accused is to be adopted. Under the circumstances, we are satisfied that the case against the appellants is not free from doubt, therefore we would grant them the benefit of doubt, consequently, allow their appeals and set aside their conviction and sentences and direct that they should be released forthwith unless required in any other case.