ABDUL JABBAR KHAN, J.----Khalid Mahmood son of Muhammad Shafi (22), Khaliq-ur-Rehman son of Muhammad Ismail (25), Aziz-ur-Rehman son of Muhammad Ismail (24) and Ghulam Muhammad son of A.I Muhammad (65), were tried alongwith Muhammad Ismail son of Hakim Din, Muhammad Shafi son of Barkat A.I, Tariq Masood son of Muhammad Shaft and Nazir Ahmad son of Karim Bakhsh, under sections 148, 302/307/ 149, P. P. C., by the learned Additional Sessions Judge, Lyallpur, who vide his judgment dated 5th March 1974, while acquitting Muhammad Ismail, Muhammad Shafi, Tariq Masoad and Nazir Ahmad co-accused, convicted and sentenced Khalid 1 Mahmood, Khaliq-ur-Rehman, Aaiz-ur-Rehman add Ghulam Muhammad under section 302/34 P.
P. C. For the murders of Mushtaq Ahmad, Khadim Hussain, Mubarik A.I and Muhammad Malik, to death each on four counts with a fine of Rs. 2000 on each count or in default to undergo two months' R. I. Each with the direction that out of the fine if realised, Rs. 500 each was to be paid to the legal heirs of the deceased as compensation. He further convicted and sentenced them under section 307/34, P. P. C. For making murderous assault on Muhammad Rafiq P. W. 20, to five years' R.
I. Each and a fine of Rs. 1000 each or in default to undergo two months' R. I. Each. Out of the fine if recovered, Rs. 200, was ordered to be paid to Muhammad Rafiq P. W. 20, as compensation. It was further directed that in case the death sentence awarded to the accused each, is not confirmed by the High Court, then the sentences under section 307/34, P. P. C. Will come into operation.
Khalid Mahmood, Khalid-ur-Rehman, Aziz-ur-Rehman and Ghulam Muhammad have come up in appeal against their conviction and sentences. The matter has also been referred to us under section 374, Cr. P. C. For the confirmation of the sentences of death. We propose to dispose of the appeal as well as the reference (Murder Reference No. 69 of 1974) together by this judgment.
2. The occurrence took place on 26th December 1970, at 8-00 a.m. In the area of Ghulam Muhammad Abad in house No. 310-C, situated at a distance of three miles from Police Station Gulberg, Lyallpur City. State--ment Exh. P J was made by Munir Ahmad P. W. 15, on the same day at Police Post Ghulam Muhammad Abad, which was recorded by Muhammad Khan S. I. (P. W. 22), at 9-00 a.m., on the basis of which formal F. I. R. Exh. P. J/1 was registered at Police Station Gulberg Lyallpur by Sardar Bakhsh A. S. I. (P. W. 4) at 9-30 a.m. On the same day.
3. The history of the dispute between the complainant party and the appellants has been summed up as follows :-- There existed a dispute regarding the possession and ownership of House No. 310-C, between the appellants and the complainant-party. Khaliq-ur-Rehmad appellant claimed that the said house was allotted to him in 1955 and since then it was in his possession. Khaliq-ur-Rehman appellant had lodged a report Exh. D. J. With the police under section 148/448/149, P. P. C. Against the complainant-party on 16th November 1970, in which he had alleged that Plot No. 310-C was under his possession that he had raised construction over it and that he was living in the same house for the last seven years. He asserted that one Asghar A.I H. C. Posted at Toba Tek Singh was often insisting on Khaliq-ur-Rehman appellant to vacate the plot as he claimed that he had secured the allotment of the said plot in his name. It was further contended that said Asghar A.I alongwith miscreants of the locality had tried to secure the possession of the said house in his absence and harassed his sister as well as his mother. He also alleged that even at the time of the said report certain persons who had forcibly entered his house were still present in it and the rest of them had actually besieged his abode.
Khaliq-ur-Rehman appellant lodged another report Exh. D. H. On 19th December 1970, at Police Post Ghulam Muhammad Abad, in which he complained that Munir Ahmad P. W. 15, Mushtaq Ahmad deceased, Muhammad Rafiq P. W. 20 and Muhammad Ismail son of Ata Muhammad, were planning to forcibly occupy the house. He also reiterated that these persons were figuring as accused in the criminal case of trespassing when they had earlier attempted to take forcibly possession of his house. This Khaliq--ur-Rehman, has also filed a civil suit regarding the property in dispute and had obtained a stay order Exh. D. L. From the Court of Administrative Civil Judge on 28th November 1970, by which a status quo was maintained till 16th January 1971. In consequence of an application to the S. P. a challan Exh. D. K. Was put up by the police under section 148/448/149, P. P. C. Which shows Muhammad Ashraf son of Abdul Aziz, Asghar A.I son of Abdul Aziz, Khadim Hussain son of Abdul Aziz, Abdul Ghani son of Khadim A.I and Mushtaq Ahmad alias Kaka son of Ghulam Muhammad (deceased), in the column of accused whereas Khaliq-ur---Rehman, Aziz- ur-Rehman appellants, Mst. Muhammad Bibi who Ismail, Ch. Muhammad Shafi, Muhammad Ismail (acquitted accused), Nazir Ahmad, Ch. Sher Ahmad and Muhammad Shafi S. I., as the witnesses.
4. On 26th December 1970, at 9-30 a.m. Munir Ahmad P. W. Made a statement before Muhammad Khan S. 1. Police Station Gulberg, Lyallpur, in which it was stated that Muhammad Ismail son of Hakim Din case Jat resident of Plot No. 311-C, Ghulam Muhammad Abad, (acquitted-accused) got a case registered under section 148/448/149, P. P. C. Against Khadim Hussain and Muhammad Ashraf sons of Abdul Aaiz alongwith five others which was pending in the Court. Muhammad Sharif son of Budha case Jat informed the complainant-party that he has been asked by Ghulam Muhammad Lambardar to let them know that a panchayat was to be held at the house of Muhammad Ismail (acquitted-accused) for settlement regarding the dispute over the plot existing between them. This punchayat was to be held in the evening time on the same day when the information was conveyed to the complainant-party. The complainant Munir Ahmad alongwith Muhammad Ashraf, Mubarik A.I, Khadim Hussain sons of Abdul Aziz, Manzoor Ahmad. Mushtaq Ahmad sons of Ghulam Muhammad, Muhammad Malik son of Muhammad Shafi and Muhammad Rafiq son of Khadim Hussain, all Jat by case, went to the house of Muhammad Ismail on 25th December 1970 at 5/6 p.m. (a day prior to the occurrence). They met Muhammad Ismail who told them that as certain members of the panchayat could not assemble they should visit his premises next day at early morning. As suggested by Muhammad Ismail the complainant-party eight in number, went to Plot No. 311-C, the house of Muhammad Ismail and met Mst. Muhammad Bibi, his wife, who was present at the residence at that time. They were told by Mst. Muhammad Bibi that the panchayat had convened itself in Plot No. 310-C and they were asked to join there. On this information from the lady, they entered the courtyard of Plot No. 310-C but instead found Muhammad Ismail armed with a hatchet, Khaliq-ur-Rehman, Aziz-ur-Rehman sons of Muhammad Ismail, Khalid Manmood son of Muhammad Shafi, Nazir Ahmad son of Karim Bakhsh, armed with .12 bore guns, Tariq Masood son of Muhammad Shafi, equipped with a revolver, Muhammad Shafi son of Barkat A.I, armed with a hockey and Ghulam Muhammad son of A.I Muhammad, armed with a lathi. Out of the accused persons mentioned above Muhammad Ismail, Muhammad Shafi and Ghulam Muhammad were standing in the courtyard and the remaining five were on the roof of the house. Muhammad Ismail accused raised a lalkara and told his companions that the complainant-party has arrived and they should not be allowed to go back and all of them should be killed. Thereupon the appellants alongwith their acquitted co-accused opened attack on the complainant-party. During which Mushtaq Ahmad deceased received a gunshot injury on his face by Khaliq-ur-Rehman and on his left shoulder by Aziz-ur-Rehman and on his head by a revolver fired by Tariq Masood acquitted accused. Khadim Hussain deceased was fired upon by Khalid Mahmood appellant and was hit on his right shoulder as well as on his left temple. Mubarik A.I deceased received gunshot wound at the hands of Khaliq-ur-Rehman on his shoulder and Nazir Ahmad (acquitted-accused) fired at him with his gun which hit his head. He was also given hatchet and hockey blows on his head by Muhammad Ismail and Muhammad Shafi accused respectively. Ghulam Muhammad appellant killed Muhammad Malik deceased by inflicting two sota blows on his head. Muhammad Rafiq P. W. 20, received gun-shot wound at the hands of Aziz-- ur-Rahman appellant. The complainant Munir Ahmad alongwith Muhammad Ashraf and Manzoor Ahmad P. W. Laid themselves on the ground and thus saved themselves. All the accused after inflicting injuries on the persons of Khadim Hussain, Mushtaq Ahmad, Mubarik A.I, Muhammad Malik and Muhammad Rafiq P. W. Ran away from the place of occurrence. Khadim Hussain, Mushtaq Ahmad and Mubarik A.I died on their way to the hospital, whereas Muhammad Malik expired on the next day.
5. After recording the statement Exh. P. J. Of Munir Ahmad P. W. S. I. Muhammad Khan sent the same to P. S. Gulberg for the registration of a formal F. I. R. And himself went to D. H. Q. Hospital, Lyallpur.
He prepared injury statement Exh. P. A. A. And inquest report Exh. P. B. B. Regarding Khadim Hussain deceased. He also prepared injury statement. Exhs. P. C. C and P. D D. And inquest reports Exhs.
P.CC/1 and P.DD/1 relating to the dead bodies of Mushtaq Ahmad and Mubarik A.I deceased, respectively. Thereafter the Investigating Officer went to the spot from where he collected five empties Exh. P. 5/1-5 from the courtyard and three crime empties P. 6/1-3, from the roof top of the room of the house No. 310-C. He found all these empties fired from .12 bore guns. He prepared sealed parcels of these crime empties and took them into possession vide memo Exh. P. B. He collected some blood-stained earth from five different places from the spot vide memo Exhs. P. C., P. D., P. E., P. F. And P. G. These memos pertain to the places where Khadim Hussain, Mushtaq Ahmad, Mubarik A.I, Muhammad Malik and Muhammad Rafiq, were injured respectively.
On 28th December 1970, the Investigating Officer Muhammad Khan S.I. Arrested Muhammad Shafi and Khaliq-ur-Rehman accused and as a result of his interrogation, on 30th December 1970, Khaliq-ur-Rehman accused-- appellant disclosed about the weapon of offence used by him in the commis--sion of the crime and offered to get a .12 bore gun recovered from his house 310-C. The S. I. Accordingly recovered gun P. 23 at the instance of Khaliq-ur-Rehman appellant from his house and took it into possession vide memo Exh. P. JJ and made it into a sealed parcel. This recovery memo was attested by Kaleemullah P. W. 12 and Ahmad Din P. W.
21. He also prepared a plan Exh. P.
KK showing the place of recovery of gun. On 30th December 1970, he arrested Muhammad Ismail and Aziz-ur---Rehman accused and Ghulam Muhammad appellant was arrested by him on 1st January 1971. No recovery of any kind was effected from these accused. This witness partly investigated the case and later on the matter was handed over to the Crimes Branch who found Nazir Ahmad accused as innocent in view of his plea of alibi and the report under section 173, Cr. P.
C. Made by the Crimes Branch. Before the case was entrusted to the Crimes Branch, the same came under investigation by Ch. Muhammad Abdullah, D. S. P. Lyallpur City. As a result of the investigation of the Crimes Branch, a case under section 307, P. P. C. Was registered against the complainant-party, regarding the same occurrence vide letter Exh. D.G. Dated 7th July 1971, written by D. I. G. Crimes Branch, Lahore and duly approved by the I. G., Police.
6. Dr. Habib Ullah P. W. 17, performed the post-mortem examination on the dead bodies of Khadim Hussain, Mubarik A.I, Mushtaq Ahmad and Muhammad Malik deceased and also medically examined Muhammad Rafiq P. W. 20, and Mst. Muhammad Bibi wife of Muhammad Ismail accused alongwith Tariq Masood and Muhammad Ismail (acquitted-accused).
On 26th December 1970, the doctor conducted the autopsy on the body of Khadim Hussain deceased and found the following injuries on his person :-
(1) A fire-arm wound of inlet 1' circular situated in the middle upper part of left shoulder going forward and downwards fracturing the second/third and fourth ribs on the left side. On opening the body the left lung, the left side of heart, the diaphragm, the stomach, the left kidney and the intestine were badly lacerated.
A circular piece of cardboard and one metallic pellet were recovered from the wound which were sealed and handed over to the police shirt and bunyan were correspondingly punctured.
(2) A fire-arm wound of inlet 1/3' x --' x 3' situated over the lower part of left temporal region going forward and downwards behind the left malar bone.
(3) An abrasion 1' x 1' on the right knee.
(4) An abrasion --' x --' on the back of left hand above the base of index finger.
On the same day at 4-45 p.m. Autopsy on the body of Mubarik A.I deceased was performed by the same doctor who found the following injuries on his person:--
(1) A lacerated fire-arm injury 5'x 3' blowing away the right side of bead at parietal eminence. The brain matter was coming out of the wound. The bones of the skull were badly fractured. 8 metallic pellets were recovered which were sealed and handed over to the police.
(2) Six fire-arms superficial wounds each 1/6' circular situated over an area 3' x 3" on the back of right shoulder.
No burning or scortching was found around the wounds. In his opinion the death was due to shock and haemorrhage resulted from fire-arm injury to the brain which was sufficient to cause death in the ordinary course of nature.
On the same day at about 5-00 p.m. The same doctor conducted post---mortem examination on the body of Mushtaq Ahmad deceased and found the following injuries on his person:-
(1) 25 fire-arms wounds of inlet each 1/6' circular scattered over the right side of face from forehead to chin, varying in depth from skin deep to 1/3' deep.
(2) Three fire-arms wound each 1/6' circular skin deep on the tip of the nose.
(3) Three fire-arms wounds 1/6" circular skin deep on the left malar bone.
(4) 35 fire-arm wounds each 1/6' circular over the front, lower middle of the neck going in the thyroid gland.
Four metallic pellets were recovered from the left chest and lung. Four metallic pellets were recovered from the wound over the right side of the face. The cause of death in his opinion was shock and internal haemorrhage resulted due to fire-arm injuries to the left lung and big blood vessel in the chest.
On 27th December 1970, at 11-00 a.m. The same doctor performed autopsy on the dead body of Muhammad Malik and found the following injuries on his person :-
(1) A contused wound 2--' x 1--' x bone deep on the left side of head 2' behind the left ear.
(2) A contused wound 1' x --' x bone deep situated 1" above over the middle of wound No. 1.
(3) A contusion 1' x 1-- ' on the right side of forehead.
(4) A contusion with effusion on blood 3' x 1' on the right parital bone.
(5) A contused wound --' x --' x --' on the inner side of the middle of right leg.
On 26th December 1970, the doctor medically examined Muhammad Rafiq P. W. 20 and found the following injury on his person:--
(1) A fire-arm wound of inlet 1--` circular situated on the back of right chest. There was surgical empysema present.
This injury was declared grievous, and was caused by a fire-arm.
7. On the same day at 12-15 p.m. The doctor examined Mst. Muhammad Bibi wife of Muhammad Ismail (acquitted-accused) and found the following injuries on her person.
(1) A lacerated wound 2' x -- x bone deep on the left side of head above the ear.
(2) Contusion 2' x 1' on the upper part of left shoulder blade.
All these injuries were caused by a blunt weapon Injury No. 1 was kept under observation while the other was simple.
On the same day the doctor examined Tariq Masood (acquitted-accused) and found 8 injuries on his person, out of which six were abrasions while the other two were contused wounds. All these injuries were simple and were caused by a blunt weapon.
On the same day at 11-45 a.m. Muhammad Ismail son of Hakim Din (acquitted-accused) was medically examined and 7 injuries were found on his person, out of which 4 were contusions while two were abrasions and the rest was a swelling. Two of the injuries were kept under observation while the rest were declared simple. All these injuries were caused by a blunt weapon.
8. The defence set up by Muhammad Shafi and Khalid Mahmood accused immediately after their arrest before the police was that they were innocent and the complainant party was the aggressor.
They pleaded their absence on the day of occurrence. Aziz-ur-Rehman appellant told the police after his arrest, that on the day of occurrence he was at Burewala. Muhammad Ismail accused told the policy that the complainant-party had committed criminal trespass into his house and he in the right of self---defence had killed the deceased persons. Ghulam Muhammad appellant also pleaded alibi and told the police that he was involved in the case due to enmity. In his statement under section 342, Cr. P. C. Before the trial Court Muhammad Ismail accused filed a written statement in vernacular, denied the prosecution version and gave out his own version, the English translation of which is as follows:--- "In the year 1959 Plot No. 310-C situated in Ghulam Muhammad Abad colony was allotted in the name of my son Khaliqur Rehman. He constructed one room, a chappar and a boundary wall of this plot. The contiguous Plot No. 311-C was allotted in my name and in that house I live. There was a partition wall in between two plots. We had made a door in this wall. On about 8th November 1970, the complainant-party attempted to interfere with Khaliqur Rehman's occupation of the plot. On this Khaliqur Rehman instituted a suit in the civil Court at Lyallpur on 11 April 1970. In that suit, temporary injunction was issued by the Court. A copy of that order is Exh. D. I. On 16th November 1970, Muhammad Asghar, Khadim Hussain, Muhammad Ashraf son of Abdul Aziz case Jat resident of Chak No. 30-JB alongwith four other persons again attempted to forcibly occupy house No. 310- C belonging to my son Khaliqur Rehman. These persons were armed at that time. They howeverth failed in their attempt. On this, my son, Khaliqur Rehman got registered a case under sections 448, 148/149, P. P. C., at Police Station Gulberg Lyallpur. That case is still pending trial in the lower Court.
On 19th December 1970, the complainant-party again attempted to recover possession of the plot.
They challenged us and on this my son Khaliquar Rehman reported the matter to the police of Police Post Ghulam Muhammad Abad.
On 26th December 1970, at about Fajar prayer time I was offering my prayer in my house No. 311-C.
At that time, my wife Mst. Muhammad Bibi was kindling fire in the courtyard of the house. All of sudden my wife raised alarm that dacoits have come. I rushed to the court--yard and I saw Muhammad Rafiq Butt resident of Ghulam Muhammad Abad armed with hatchet, Khadim Hussain armed with a pistol, Mubarik A.I with a hatchet, Mushtaq Ahmad with a gun, Muhammad Malik armed with a lathi and Muhammad Ashraf armed with kulhari and all of them were beating my wife. I picked up a saroo of a cot from the courtyard and I struck ft on head of Muhammad Malik. In the meantime firing started. I ran inside the room of my house. From there I picked up my licensed gun and went on the roof top of my house. From there, in self-defence, I fired my gun. After some time, this firing stopped. I came out in the courtyard of the house. In the courtyard of house No. 310- C belonging to my son Khaliqur Rehman I saw Khadim Hussain, Mubarik A.I, Mushtaq Ahmad and Muhammad Malik lying in injured condition. I went forward and found Khadim Hussain, Mubarik A.I and Mushtaq Ahmad dead. Muhammad Malik was then alive. In addition to these persons Muhammad Rafiq, Shaukat A.I, Abbas, Ilyas, Manzoor Ahmad, Muhammad Saleem and Abdul Ghani had also attacked. My eldest son Khaliqur Rehman was not present in the house. He was doing exercise outside near the mosque. He ran towards the police post for report. From there, he went to Police Station Kotwali. My younger son Aziz-ur-Rehman who has passed his Overseer Class had gone to Burewala in search of employment. Some time after the occurrence, Muhammad Khan Incharge Police Post Ghulam Muhammad Abad alongwith a few police constables arrived at the place of occurrence. He put Muhammad Malik then injured and the dead bodies of Mubarik A.I, Mushtaq Ahmad and Khadim Hussain in a truck and took them away. Subsequently, through collusion, a case was got registered against us. On our application at later stage, the Crimes Branch police registered a case under section 307/452/148/149, P. P. C. And challaned the accused.
That case is pending trial in this Court. The complainant-party aggressed against us and they attempted to forcibly occupy the house of my son Khaliqur Rehman while armed. They beat me and my wife. I had fired in reply to the firing by way of self-defence."
Muhammad Shafi accused when asked as to why this case against him, stated that he was falsely implicated in this case because he is a P. W. In the case under sections 448, 148, 149, P. P. C.
Registered against the com--plainant-party with the police. He denied the prosecution version from one end to the other. Khalid Mahmood and Tariq Masood accused are the sons of Muhammad Shafi accused. They stated that they were falsely implicated in this case. In reply to a question put to Khalid Mahmood, he stated that he was implicated in this case because his father Muhammad Shafi was a P. W. Against the complainant-party in the aforesaid case under section 448, P. P. C. According to him he was not present at the spot at the time of occurrence. He was in Mamunkajan then. The reply of Tariq Masood to the question as to why this case against him, was, that he was implicated in this case because his father Muhammad Shafi is a P. W. Against the com--plainant in case under section 448, P. P. C. Tariq Masood accused was injured during the occurrence. A question was put to him asking him to explain the injuries on his person. In reply he stated that:-- "On the day of occurrence I came from the mosque after offering prayer. Salim. Ata Muhammad, Ghani and their companions came in a tonga armed with guns and other weapons, and when I passed by them they shouted, "The son of Shafi", these persons gave me a beating. Ghani fired his pistol at me but it missed the aim. Salim and Ata Muhammad P. Ws. Gave me a beating with lathis, and I ran away to the house."
Khaliqur Rehman appellant when questioned as to why this case against him stated:--- "4/5 days before 16th November 1970, the complainant-party attacked me and on this I instituted a Civil Suit against the complainant-party. I was granted temporary injunction from the civil Court regarding the disputed plot . . . I had also reported the matter to police on 16th November 1970, and got reported a case against the complainant party . . . I had also got recorded report No. 9 dated 19th December 1970,at P. P. Ghulam Muhammad Abad whose copy is Exh. D. H.
He stated further that:-- "I was not present at the spot at the time and date of occurrence. I was present on the road near Goad Masjid. The complainant-party came in two tongas and they started firing and then went to the P. P. Ghulam Muhammad Abad to report about this to the police. The police did not record my statement and then I went to the P. S., Kotwali. I also met the emergency police but none recorded my statement then I came back to the spot, by that time, the complainant-- party had left. I did not participate in this case. I am innocent."
Aziz-ur-Rehman appellant denied his presence at the spot. According to him he was in Burewala on the day of occurrence. Ghulam Muhammad accused denied the prosecution version. He also pleaded alibi. All the accused did not produce any witness in defence.
9. The case of the prosecution rests on the statements of 22 witnesses in all. Ch. Muhammad Abdullah D. S. P. Who had for some time supervise the investigation of this case was examined as C. W. 1.
10. We have heard both the learned counsel for the appellants as well as for the State and have perused the record very carefully with their assistance. The ocular evidence in this case is provided by Munir Ahmad P. W. 15, Manzoor Ahmad P. W. 16, Muhammad Ashraf P. W. 19 and Muhammad Rafiq P. W. 20 (an injured witness), who are all inter-related with the exception of Muhammad Rafiq P. W. Who is a friend of Khadim Hussain deceased. Munir Ahmad P. W. 15 is a first cousin of Manzoor Ahmad P. W. Who is the real brother of Mushtaq Ahmad deceased. The sister of Munir Ahmad P. W.
Is married to Asghar A.I who is a real brother of Mubarik A.I and Khadim Hussain deceased. The wife of Muhammad Malik deceased is sister of Asghar A.I. Muhammad Ashraf P. W. 19 happens to be the younger brother of the above-mentioned Asghar A.I. Khaliqur Rehman and Azizur Rehman appellants are two real brothers while Khalid Mahmood is a Jat of the same case but is not related to the first two appellants above-mentioned. Ghulam Muhammad appellant is brother-in-law of Muhammad Ismail (acquitted-accused) and thus all four appellants are inter-related. The acquitted-accused Muhammad Shafi and Nazir Ahmad are not related to the appellants but belonged to their case.
11. We find that Muhammad Ashraf P. W. 18 and Munir Ahmad P. W. 15 supported by Ahmad Din P. W.
21, have asserted that 1 J months prior to the occurrence Plot No. 310-C was in fact sold by one Ibrahim to Muhammad Ashraf P. W. 19, the younger brother of Asghar A.I Head Constable, vide Exh.
P. QQ, for Rs. 6000. The said Ibrahim had executed a power of attorney in favour of Khadim Hussain deceased alongwith a receipt Exh. P. SS in favour of Muhammad Ashraf P. W.
19. It was con--tended by Muhammad Ashraf P. W. That on the day when he purchased Plot No. 310-C there was one room and one chappar standing in it with a boundary wall around, while there was no apperture or door in the partition walls of Plots Nos. 310-C and 311-C. It has been further contended by Muhammad Ashraf P. W. 19 that he had physical possession of the house for 4/5 days and when he left for Lieah, Khaliqur Rehman appellant forcibly occupied it in his absence ; removed his luggage and opened an apperture in the partition wall between his house and that of Muhammad Ismail's house No. 311- C. On the other hand case of the defence as given in the statements of Muhammad Ismail (acquitted-accused) and Khaliqur Rehman appellant is that this house No. 310-C remained in their possession since 1955 and the complainant-party despite their persistent attempts to occupy it by force, failed to achieve their object and made their attempt pace again which resulted into this tragic event and loss of four lives on their side. Before we enter into discussion and analysis of ocular evidence it is necessary to Judge the claim and counter-claim of the parties arid to arrive at a positive finding, as to who was in possession of this house on the fateful morning of 26th December 1970. Once this crucial point is resolved one way or the other, then it shall have to be seen how the occurrence actually took place. On the side of the prosecution we have got Exh. P. QQ an agreement between one Ibrahim and Muhammad Ashraf P. W. 19, a power of attorney in favour of Khadim Hu9sain deceased by the same Ibrahim and Exh. P. SS, a receipt again by the same Ibrahim in the name of Muhammad Ashraf P. W. It has been admitted by Ahmad Din P. W., the marginal witness of the agreement Exh. P. QQ and receipt Exh. P. SS and power of attorney Exh. P. RR, that he neither told the police nor the committing Magistrate either about the existence of these documents or himself being the marginal witness of the same. Similar is the case with Munir Ahmad P. W. 15, who has to admit during the course of his cross-examination that he failed to mention these documents both in the F. I. R. And before the police. He also conceded that even before the committing Magistrate he did not disclose the existence of this most important piece of evidence in his favour. The author of these documents Ibrahim has been kept back throughout the investigation and we do not find him anywhere till the conclusion of the trial. There is complete silence about this version as given by Muhammad Ashraf P. W. In the entire prosecution case till the stage of committing Magistrate. Suddenly we find it emerging like mushroom growth at the trial stage, whereas the defence has substantiated their claim of ownership as well as their physical possession by producing Exhs. DJ, DH and DK, in their favour at the very outset and has established that the claim of Muhammad Ashraf P. W. Was nothing but extremely feeble and belated attempt on his part to confuse the otherwise clear picture of possession in favour of defence. In the face of this irresistible proof the State counsel has candidly admitted that it was the appellant Khaliqur Rehman and his father Muhammad Ismail co-accused who were in de jure and de facto possession of disputed property No. 310-C. The learned trial Court has devoted a lot of time in discussing the evidence produced by the prosecution in the form of documents Exhs. P. QQ, P. SS and P. RR. And has accepted it as cogent evidence in favour of the prosecution. We are afraid that this conclusion arrived at by it is not justified in view of the inherent flaws and infirmities with which this evidence of the prosecution suffers. We are of the considered opinion that Plot No. 310-C was in actual possession of Khaliqur Rehman appellant on the day when this occurrence took place.
12. Conscious of their weak stand regarding the factum of possession the prosecution has come forward with a story that the complainant party was actually allured to the place of occurrence by a false and crooked message sent to them by the father of Khaliqur Rehman appellant. It has been stated that they were invited by Muhammad Ismail co-accused to resolve the dispute at his premises and were ultimately betrayed in a most treacherous manner. They tell us that they went like lambs to the house of Muhammad Ismail co-accused a day prior to the occurrence to attend the panchayat and believed him when he told them to come next day at early hour. We are further asked to believe that on the morning of 26th December 1970, at 5/6 a.m. The complainant-party eight in number went like a flock of sheep to the altar deceit and were butchered mercilessly by their faithless hosts. This can be a bed time story to beguile a child but a rational mind will revolt at its very suggestion. First we cannot visualise the panchayat being held at 5/6 a.m. At coldest time of the year and secondly nobody will so easily be lured to the house of his enemy who has launched prosecution, in the criminal Courts against him and has told the authorities that they have attempted to dispossess him and has besieged his house while armed with guns and revolvers. We have mentioned the time of occurrence 5/6 a.m. On the authority of Munir Ahmad P.
W. 15 who claimed himself to be one of the persons who witnessed the occurrence. He gave this time to the committing Magistrate when he appeared before him to give his evidence. The Urdu version of his statement disclosed that the time of visit by the complainant-party was given as 4/5 a.m. In English version it was given as 5/6 a.m. Although Urdu version has always been given pre-- ference yet even taking the English version into consideration, we find that on 26th December 1970, at 5/6 a.m. It would be quite dark and it can safely be called an unearthly hour. It is also on the record that the deceased were found wearing light garments at the time they visited the house of the appellants and one can safely conclude that the purpose of such visit at such early time while it was still dark particularly, clad in the light clothes was for something else than resolving the dispute by peaceful media of panchayat. The prosecution has dared not to bring on the record the state--ment of any elders of the locality to show that convention of the panchayat was ever suggested by any of the parties at any time during their pro--tracted dispute over this bone of contention i.e. Plot No. 310-C. We are fully convinced that the panchayat story is nothing but a hopeless and futile effort to justify the visit of eight antagonists at the uncanny morning of late December to the house of their adversaries.
The next question before us which is to be resolved is whether the com--plainant party entered the house of Khaliqur Rehman appellant unarmed as contended by them or they went armed by lethal weapons such like guns and lathis as claimed by Muhammad Ismail acquitted accused. As far as the venue of the occurrence there is no dispute about it and it is common case both for the prosecution as well as of the defence that all the four deceased were found lying injured in the compound of Plot No. 310-C. It is in the evidence of all the P. Ws. Who claim to have witnessed the occurrence that all the firing was done from the roof top and with the exception of Muhammad Malik deceased who was killed by blunt weapon injuries. All the rest died as a result of gun-fire directed by those who were standing on the kotha. The Investigating Officer found three crime empties from the roof top, which matched with gun P.1, a licensed gun of Muhammad Ismail appellant recovered at the instance of Khaliqur Rehman appellant. Rest of the empties five in number were found lying near the chappar. We find that the site-plan indicates that there were pellet marks (10-12) on point No. 9 (20-22) on point No. 10 and (7-8) on point No. 11, on wall of the chappar, beam of the chappar and wall of the room, respectively. It has also been found that there were pellet marks on points Nos. 12, 13 and 14, i.e. All the walls around the kotha. Muhammad Khan S. I. Has stated in his cross-examination that he found pellet marks on the wall of kotha from the roof of which the accused had allegedly fired their weapons, that these pellet marks were below the roof of the room towards the outer side, and these marks could not be caused by the firing made from the roof top. This clearly shows that there was cross-firing and these pellet marks were created by the person who fired from below. The prosecution has tried to explain this phenomenon by simply saying that the appellants who were armed with guns came down from the roof and fired their guns while running away. But it is also the case of the prosecution as given by the P. Ws.
That firing had ceased after the killing. If that was so then for what purpose this aimless firing was done and to what effect. To come to a safe conclusion regarding the determination of point in issue we will advert to the statement of Ch. Muhammad Abdullah D. S. P. (C. W. 1) who supervised the investigation of this case and was called as C. W. 1, to clarify the position. He investigated the case before it was transferred to Crimes Branch and according to the result of his investigation he found that the complainant-party was armed with fire-arms at the time of occurrence. He concluded that the investigation of the case by him, proved that the story of panchayat was a boggy and the complainant party was the aggressor who injured Mst. Muhammad Bibi wife of Muhammad Ismail (acquitted accused), Tariq Masood and Muhammad Ismail co-accused.
Muhammad Khan S. I. Has admitted in his cross-examination that Nazir Ahmad co-accused was found innocent by the Crimes Branch and a case under section 307, P. P. C. Was registered against the complainant-party on the orders of the D. I. G., Crimes Branch. This can safely be called the last straw which broke the camel's back. In view of the above analysis of the evidence on record we are of the considered opinion that the complainant-party entered the house No. 310-C which was being occupied by Khaliqur Rehman appellant on the early dark hours of 26th December 1970, armed with deadly weapons to forcibly dispossess him. The history of the case shows that their earlier failure goaded them to take this desparate step to accomplish their evil designs. In fact we feel that villain of the entire drama which ended in tragedy, was Asghar Head Constable of Police, the brother of Khadim Hussain deceased who planned this mis-adventure for them while he kept at the back to give them official support.
13. We have scanned the eye-witness account of this incident and find it full of infirmities and pitfalls. The narration given by Munir Ahmad, Manzoor Ahmad and Muhammad Rafiq P. Ws. Does not inspire confidence, The learned trial Court has disbelieved the evidence of these witnesses qua Tariq Masood, Muhammad Ismail, Nazir Ahmad and Muhammad Shafi and acquitted them. It is significant to note that Muhammad Ismail accused was assigned hatchet blow on the head of Mubarik A.I (deceased); Tariq Masood was attributed revolver fire on the head of Mushtaq Ahmad (deceased); Nazir Ahmad was also said to have shot at the head of Mubarik A.I (deceased) and Muhammad Shafi was stated to have struck a hockey blow on the head of Mubarik A.I (deceased).
It has also been observed by the learned trial Court that innocent people have been roped in by the complainant-party in their zeal to widen the not. In view of the above finding of the learned trial Court it has been argued that credibility of the witnesses cannot be considered divisible and on the same evidence which has not been relied as against the acquitted co-accused (despite they were given specific parts by the P. Ws.), no reliance can be placed vis-a-vis the appellants. It was submitted that if the evidence has been disbelieved against four of the acquitted accused the same should not be relied on against the appellants unless and until there was strong corroborative evidence indepen--dently holding the appellants responsible for the crime. Reliance has been placed on :---
(i) Jalal v. The State PLD 1973 Kar. 643.
(ii) Bagh A.I etc. v. State PLD 1973 SC 321.
(iii) Ahmad Khan and another v. The State PLD 1962 Lah. 390.
(iv) Muhammad Khan and another v. The Crown PLD 1954 FC 84.
We find that it is in the evidence of Muhammad Khan S. I. That the place of occurrence is surrounded by residential Ihatas of Fateh Muhammad son of Nabi Bakhsh, Ghulam Rasul son of Fatteh Muhammad, Nazlr Ahmad son of Mehr Din, Jan Muhammad Arain and Rajab A.I, but none of them although examined by him, has been produced to support he evidence of eye-witnesses who have got ample motive to falsely implicate the appellants and to give exaggerated and twisted version of the case. We also find troy the evidence of Aurangzeb Draftsman P. W. 5 that police was from the very outset making efforts to keep out the evidence which supported the defence version. He has stated that he asked the S. I. As to who was the owner of plot No. 310-C but the S. I. Showed his ignorance. Similarly all the witnesses have not disclosed to him the name of the person who owned Plot No. 310-C.
The defence in this case has claimed the right of self-defence and has asserted that as the complainant-party committed criminal trespass at a very early hour with evil designs to dispossess them and were armed with lethal weapons (as proved above) they were fully within their right to cause their death in defence of their person as well as of their property. The learned counsel for the State while conceding the criminal trespass by the com--plainant party has contended that the appellants could not cause more harm than what was necessary and had only limited right of self-defence. He argued that act of the accused party amounted to wanton murder and they have shot four persons without any justification.
14. The recognition of the right of private defence is simply at recognition of the importance of the instinct of self preservation for the well-being of human society. Self-defence is the nature's oldest law. It is based on the law of necessity of self-preservation. The right of self-defence conferred by section 96, P. P. C. Is to the effect that every person has a g right to hold his ground manfully and not to run away like a coward. The only consideration is that a person threatened with danger of injury should not exceed the limits fixed by the law. This, of course, depends upon reasonable apprehension of danger to the person under the particular circumstances of the case. To know how much right is conferred upon the person, in the eye of law, it will be advantageous to quote section 100, P. P. C.
"The right of private-defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions herein--after enumerated, namely:--- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault ; Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault ; . . . . ."
According to section 102, P. P. C. The right of private-defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as apprehension of danger to the body continues. Similarly, a reading of section 103, P. P. C. Will show that the right of private-defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions i.e. Robbery, souse-breaking by night; mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a plat; for the custody of property and lastly theft, mischief or house-trespass, under such circumstance as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private-defence is not exercised.
PLD 1959 Lah. 753) that it was impossible for any individual for the purposes of his defence to measure in golden scales the exact amount of force which he should use in such a situation, nor can he be expected to modulate his defence step by step. Therefore, it is not possible for a man acting under the apprehension of death or grievous injury to modulate his defence step by step according to the attack and can act according to iris own judgment keeping in view the circumstances in which he is placed. In Abdul Latif v. The State (PLD 1960 Lah. 62) it was held that the right of private-defence of property was always available to the person who happened to be in de facto possession even against the lawful owner. The learned fudges of this Court after relying on various authorities like A.I Mid v. King --Emperor (AIR 1926 Cal. 1012) and Hafiz A.I and others v. King Emperor (10 O C 196) and other cases of the Rangoon and Allahabad High Courts, arrived at the con--clusion that the right of private defence arises not only when the offences enumerated in the section are committed but 'also when attempt to commit or threat to commit any of such offences is made.
15. Thus we hold that the right of self-defence is secrosanct and in--violable and nobody can be allowed to desecrate it. If we permit people armed with lethal weapons to enter the abode of peaceful citizens to commit criminal trespass and at the same time do not give complete right of defence to the occupants to repel it with force, then it will tantamount to conceding to the law of jungle. The defiant and headstrong members of society will set at rampage and nobody will be safe in his house and the very, golden concept that one's house is his castle will be destroyed.
16. Keeping in view the entire evidence on the record we find that in the instant case the complainant-party raided the house of Khaliqur Rehman appellant at the early hours of 26th December 1970, when it vas still dark with the intention to commit criminal trespass and to take the possession of the said premises by force. They entered the house No. 310-C belonging to and in the possession of Khaliqur Rehman appellant and a the process inflicted injuries on his mother Mst.
Muhammad Bibi, his father Muhammad Ismail and Tariq Masood (acquitted accused) while they were armed with lethal weapons. In the face of our above finding we .Arc of the considered opinion that the appellants in this case were fully justified to kill the deceased in exercise of the right of private defence of their persons as well as of their property and have committed no offence which calls for any punishment.
The upshot of the above discussion is that we accept the appeal of the appellants set aside their conviction and sentence and acquit them. They should be set at liberty forthwith unless they are wanted in some other case. The sentence of death awarded to them is not confirmed.