This judgment shall also deal with a dispose of Criminal Revision No.176 of 1991, both arising out of the judgment, dated 6-3-1991; by which an Additional Sessions Judge at Bhalwal, District Sargodha, convicting Ahmad appellant son of Raja under section 304, Part I, P.P.C., sentenced him to ten years' R.I., and convicting Manzoor, Muhammad Ali and Khizira appellants under section 324, P.P.C., sentenced each .Of them to two years' R.I. He, however, acquitted Muhammad; Raja, Ghulam Ali, Ahmad son of Mehmand and Mathela on benefit of doubt.
2. The prosecution case embodied in the F.I.R. Lodged by Allah Yar complainant was that on 27-3- 1986 at 2 a.m. When he alongwith Fazal Ahmad (deceased), Inayat, Ghulam Muhammad, Zulfiqar, Shera and Muhammad Ali P.Ws. Was present in Inayat's Baithak-in the Abadi of village Badin, they heard a noise and the sound of dismantling of a wall of nearby shop, which was owned and possessed by Inayat P.W. They all proceeded towards that place and saw that Muhammad Ali appellant and Raja and Ghulam Ali acquitted accused were dismantling the rear wall of the shop and placing dried cotton sticks therein. Inayat P.W. And Fazal Ahmad (deceased) protested against their unlawful act but they did not desist. Fazal Ahmad (deceased) set on fire the dried up cotton sticks. Meanwhile Ahmad, Manzoor and Khizira appellants accompanied Muhammad, Mathela and Ahmad son of Mehmand, the acquitted accused also reached the spot. Ahmad son of Raja, Manzoor, Muhammad Ali and Khizira appellants were armed with shot guns while Muhammad, Raja and Ghulam Ali acquitted accused were armed with Sotas and Mathela and Ahmad son of Mehmand were carrying hatchets. The appellants went to the roof of the house of Ghulam Hussain Shah situated adjacent to their own house, while their co-accused remained present near the dismantled wall. Raja acquitted accused exhorted his son Ahmad appellant not to spare any one from the opponents. Whereupon he fired a shot at Fazal Ahmad (deceased), hitting on their right flank, as a result of which he fell down in the street. Muhammad Ali appellant then fired a shot at Zulfiqar P.W., hitting him on the right flank, followed by Khizira appellant, whose shot hit Ghulam Muhammad P.W. On the back of right hand: Manzoor appellant fired a shot at Inayat P.W, which hit his left thigh. The rest of the accused, namely, Muhammad, Raja, Ghulam Ali, Mathela and Ahmad son of Mehmand went on shouting and exhorting their co-accused for doing maximum harm to their adversaries. The appellants, who were armed with fire-arm, fired more shots at their opponents but the pellets struck against the wall of the adjoining house of Ghulam Ali Kumar. Fazal Ahmad, who was fatally injured, died on the spot. Leaving his dead body as also the three injured P.Ws. On the spot under the care of his companions Allah Yar P.W.1 went to Police Station Mid Ranjha, where he lodged the report (Exh.P.K.) with A.S.I. Ghulam Abbas P.W. Relating the above facts therein.
3. After the registration of the case against the appellants and their acquitted accused under sections 302, 307, 148/149, P.P.C. A.S.I. Ghulam Abbas went to the spot. He prepared the injury statement and inquest report of Fazal Ahmad (deceased) and despatched the dead body to the mortuary under the escort of Bhai Khan Constable. He also prepared the injury statements of Inayat, Ghulam Muhammad and Zulfiqar P.Ws. And sent them to the hospital for medical examination. He completed on the spot proceedings and on the following day collected the last- worn clothes of the deceased; besides a sealed phial containing pellets from Bhai Khan Constable who produce the same to him after collecting them from the doctor, who had carried out the post- mortem examination on the dead body of Fazal Ahmad (deceased). On 14-4-1986 he got prepared the site plan from Ghulam Ahmad Shah Draftsman. On 5-4-1986 S.I. Sher Muhammad Bhochera arrested all the nine accused. The case was also partly investigated by Inspector Kalimullah Sherazi. On 19-4-1986 Ahmad appellant, while in police custody, got recovered two guns while Muhammad Ali got recovered gun P.10. Other accused got recovered their respective weapons i.e. Hatchets and Dandas. On the completion of investigation he submitted the challan.
4. On the commencement of trial the appellants and their acquitted accused were charged under sections 302, 307, 148/149, P.P.C. And on their pleading not guilty the prosecution produced as many as 12 witnesses.
5. To be a little more precise, Dr. Malik Muhammad Khan (P.W.1) proved the post-mortem report of Fazal Ahmad (deceased) after giving the details of his injury, which was a lacerated wound on the right iliac fossa 1-1/2 c.m. x 1-1/2 c.m. x cavity deep with inverted margins, and blackish burns around. On dissection he found a hole on the iliac left bone in the middle part and multiple lacerated wounds in the small intestines. The abdominal cavity was full of blood. He also found common iliac vessels on the right side badly lacerated and pellet stuck in left iliac bone. He also noticed the left iliac crest fractured. This injury, in his opinion, was ante-morten and was sufficient in the ordinary course of nature to cause death. The distance between the assailants and the deceased, according to him, was six to ten feet.
6. He had medically examined Ghulam Muhammad injured P.W. And found two lacerated wounds on his right hand. Oh the same day he had also medically examined Inayat P.W. And found a lacerated wound on the left thigh with a tatooing. He had also medically examined Zulfiqar P.W.
And found two injuries --- two lacerated wounds 2 c.m. From each other on the right side of chest in its middle axillary line each 1 c.m. x 1 c.m. Into cavity deep with burnt margins and the other lacerated wound on the back side of chest 1-1/2 c.m. x 1-1/2 c.m. x cavity deep with inverted margins on 10th rib around, being the wound exit. All the three injured P.Ws. Were found to have simple injuries.
7. S.I. Sher Muhammad Bhochera (P.W.2) deposed about the arrest of the accused. In reply to a question of cross-examination he stated that, as per investigation, the complainant party had set fire to the accused party's cotton sticks lying in the disputed shop in order to take possession of the disputed shop after demolishing its outer wall.
8. Ghulam Ahmad Shah (P.W.3) had prepared the site plan and F.C. Bhai Khan (P.W.4) had escorted the dead body and both of them were formal witnesses.
9. Allah Yar complainant (P.W.5), Zulfiqar (P.W.6), Inayat (P.W.7) and Ghulam Muhammad (P.W.8) gave the eye-witness account. They supported the version of the occurrence as given in the F.I.R.
And as already outlined while relating the prosecution case.
10. A.S.I. Abdul Ghafoor (P.W.9), Ahmad Khan (P.W.10) were again the formal witnesses. The last witnesses were S.I. Ghulam Abbas (P.W.11) and Kalim Ahmad Inspector (P.W.12). The part played by them as Investigating Officer has already been outlined.
11. Learned prosecutor gave up Muhammad Ali and Shara P.Ws. As unnecessary and tendering in evidence the report of Chemical Examiner and that of Serologist, closed the prosecution case.
12. The appellants and the acquitted co-accused, in their respective statements recorded under section 342, Cr.P.C., denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence. They produced no evidence in defence.
13. On the conclusion of the trial the appellants, by the judgment now under challenge, were convicted in the manner aforesaid while their five co--accused were acquitted. Aggrieved by these findings, where the appellants have come up in appeal, Allah Yar complainant has filed the revision, requesting for the conviction and sentence of the appellants and the acquitted co- accused under section 302, P.P.C.
14. It is contended on behalf of the appellants that the disputed shop formed part of the Haveli of the accused party and the complainant party had nothing to do with it but Inayat P.W. Asserted its ownership on account of having purchased its rubble from one Manzoor and during the night of occurrence, he, after collecting his relations and arming themselves, tried to take its forcible possession and even set, the dried cotton sticks placed therein by the accused party, on fire.
According to the learned counsel for the appellants, some of the members of the complainant party, who were armed with fire-arms, resorted to firing at their opponents and in that process due to the darkness they happened to hit their own men, one of whom was killed on the spot and three of them were injured. It is contended that, as per medical evidence, there was blackening and tatooing around the fire-arm injuries of the deceased and the injured P.Ws., which could -not be caused if the assailants were at a distance of more than 5-6 feet but, according to the prosecution case, the appellants were firing from the roof of a neighbour and the distance between them and their victims was about 30 feet and had they fired from this distance- there could be no burning, blackening and tatooing around the injuries of the victim. According to the learned counsel, it was a night occurrence and because of distance, despite the glow of the fire, it was difficult for the eye- witnesses to have identified as who was firing at whom. He contends that, as per statement of S.I.
Sher Muhammad Bhochera, it was the complainant party which was the aggressor and had come to take forcible possession of the disputed shop forming part of the house of the accused party.
15. On the contrary, it has been canvassed on behalf of the State as also by the learned counsel representing the complainant that the rubble or `Mulba' of the disputed shop had been purchased by Inayat P.W. From one Manzoor, who had constructed if and was its owner and when he and his relations saw the accused party demolishing its rear wall and placing firewood into it in order to occupy it forcibly, they empty-handed came there and protested against their unlawful act but since they (accused party) stood already armed, they opened the fire as a result of which Fazal Ahmad was killed on the spot and three others were injured grievously. According to the learned Counsel, due to setting dried cotton sticks on fire there was a huge glow, which facilitated the identification of each and every accused and the part played by him and as such darkness of the night presented no difficulty in this regard: He submits that the appellants, while firing at the deceased and the three injured witnesses, were quite near and for that reason there was burning, blackening and tatooing around their fire-arm injuries but later they receded and went atop the roof of the adjoining house and went on firing from there.
16. It is in the statement of Allah Yar complainant that the disputed shop, which was in the form of a `Khola' and its roof had been removed by Manzoor, who had constructed it quite some time prior to the occurrence, was situated on Shamlat land. According to him, its rubble had been purchased by Inayat P.W. And he had taken possession thereof but the accused party during the night of occurrence wanted to take its forcible possession by demolishing its rear wall and placing dried cotton sticks in it. From his statement as also from the site plan it is obvious that the disputed shop formed part of the Haveli of the accused party and a lane or street intervened between it and the house of Inayat. Due to its location the accused party seems to have asserted its own right of its ownership after Manzoor had removed its roof and abandoned it. At the time of occurrence it was admittedly in the form of a khola and was a bone of contention between the parties. The accused party, after the demolition of its rear wall, placed dried cotton sticks therein in order to establish their possession. It caused annoyance to the complainant party and they protested. While so doing, Fazal Ahmad (deceased) set the dried cotton sticks on fire and invited the trouble for himself. It naturally caused a serious reaction and the accused party resorted to violence with some justification. He was killed by some one from the accused party, who fired at him from a close range, causing blackening around the injury. Similarly, his three companions were injured as a result of the shots fired by the accused party from a closer range. But contrary to the medical evidence the prosecution case was that the victims were fired at by the appellants from the roof top of the adjoining house of a Syed, from a distance of about 30 feet. Had it been so, the shots fired by them would not have resulted in burning, blackening and tatooing around the injuries sustained by the deceased and the injured P.Ws. If the distance between the victims and the assailants was really 30 feet or so then there was a remotor possibility of the latter having been identified by the prosecution witnesses, despite glow caused by the burning dried cotton sticks. All these facts made the prosecution case doubtful and the appellants could not be convicted and sentenced. The appeal is therefore, accepted, the conviction and sentence of the appellants are set aside and they are acquitted. Only Ahmad appellant is said to be in the jail. He should be set at liberty if no more required in any other case. As a result, the revision petition is dismissed.