SARDAR MUHAMMAD DOGAR, J. -- Muhammad Ishtiaq (42) was tred by the Additional Sessions Judge, Lahore, alongwith Hassan Din alias Billa (65) for having murdered Gulzeb on 8-6-84 at 1-30 p.m. In plot Khasra No331 near Takia Karim Shah, Dholanwal, at a distance of 2 k.m. From Police Station, Nawankot.
Learned trial Judge vide judgment, dated 25-7-87 convicted Muhammad Ishtiaq under section 302, P.P.C. And sentenced him to imprisonment for life plus to pay a fine of Rs.10,000 in default whereof to undergo RI. For 2 years. The fine, on recovery was directed to be paid as compensation to the heirs of the deceased. Hassan Din his co-accused was acquitted vide same judgment.
2. The convict filed Criminal Appeal No.429 of 1987. The State filed revision petition against the convict wherein prayer was made to enhance the sentence of imprisonment for life to death.
Complainant also filed revision petition against acquittal of Hassan Din and for enhancement of sentence of imprisonment for life awarded to convict, to death. The petitions for enhancement of sentence of the convict filed by the State as well as by the complainant were admitted and notice was issued to him, while the petition qua acquittal of Hassan Din filed by the complainant was dismissed. All the matters are being disposed of together.
3. F.I.R. Exh.P.N. Was recorded at the Police Station by Rehmat Ullah Niazi, S.H.O. P.W.14 at 2-40 p.m.
On 8-6-84 on the statement of Parvez Akhtar P.W.12.
According to F.I.R. The complainant alongwith his brothers Jamshed Akhtar and Gulzeb, was standing in Plot Khasra No331 near Takia Karim Shah, Dholanwal, at 1-30 p.m. Hassan Din empty- handed, accompanied by Muhammad Ishtiaq armed with a gun came there with the intention to occupy the plot forcibly. Gulzeb told Hassan Din that the plot belonged to him as he had purchased the same through registered sale-deed. Hearing this, Hassan Din got flared up. He gave a Lalkara, saying that he should be finished so that the dispute of registry may come to an end.
Simultaneously, he caught Gulzeb by the collar and pushed him towards Muhammad Ishtiaq.
Muhammad Ishtiaq fired a shot froda the gun which struck Gulzeb on the lower jaw. He fell down.
Naeem Akhtar and Muhammad Ashiq P.W's. Reached the spot hearing alarm raised by the complainant and Jamshed Akhtar, and witnessed the occurrence. The Pads tried to catch the accused but they succeeded ire running away.
The complainant and Jamshed Akhtar removed Gulzeb to Mayo Hospital but he died soon after reaching there.
4. For motive for the occurrence, it is stated therein that Muhammad Ishtiaq was a claimant of plot Khasra No.331 and wanted to occupy that forcibly, and that he murdered the deceased with the help of his father-in-law Hassan Din.
5. Rehmat Ullah Niazi,. S.H.O. After recording F.I.R. Went to the hospital. He despatched the dead body for post-mortem examination after preparing injury statement Exh.P.O and inquest report Exh.P.R. Thereafter he went to the spot and collected blood-stained earth vide memo Exh.P.M.
Both the accused were arrested by him on 15-6-84. Licensed gun P.4 alongwith licence Exh.P.D./1 got recovered by Muhammad Ishtiaq on 19-6-84 was taken into possession vide memo Exh.P.D.
Registered sale-deed Exh.P.K. Produced by the complainant on 20-7-84 was taken into possession vide memo. Exh.P.L. Documents Exhs.P.E. To P.H., alongwith other documents, produced by Muhammad Hafeez, were taken into possession vide memo. Exh.P.L. Challan was submitted to Court after completion of necessary investigation.
6. Statements of fourteen P.Ws. Were recorded at the trial.
Dr. Wasim Ahmad, who had performed autopsy, on 9-6-84 at 10-30 a.m. Appeared as P.W.13. He had noted following injuries on the body of the deceased:-
(1) An oval firearm wound of entrance with blackening and tatooing around 3 c.m. x 10 c.m. On the right side of chin 1 c.m. Below lower lip. On exploration of the injury, the following tissues/organs were found damaged:- Skin and facial muscles, right side of mandible, muscles of floor of mouth and right side of neck, right carotid arteries and pre-vertebral muscles and internal jugular vein on the right side.
(2) Abrasion 2 c.m. x 2 c.m. On left cheek, 4 c.m. In front of left ear.
(3) Multiple abrasion in an area of 4 c.m. x 3 c.m. On posterior aspect of left shoulder.
Injury No. 1 was opined to have been caused by afire-arm, while the remaining injuries were opined to have been caused by blunt means.
Death was opined to have occurred due to shock and heemorrhage, resulting from injury No.1. Time between the injuries and death was opined to be immediate while the time between death and post-mortem was opined to be within 24 hours.
During cross-examination he stated that the dimension of injury was 3 c.m. x 2 c.m. x 10 c.m. And not only 3 c.m. x 10 c.m. As stated by him in the examination-in-chief. In answer to another question he stated that the pellets would enter the body en mass if a shot is fired from one yard from a gun the barrel of which is unchoked but if the barrel is choked the distance would be double.
7. The evidence of recovery of licensed gun was deposed to by Riaz Ahmad Chaudhry P.W.4. His statement in that regard has been corroborated by S.H.O. Rehmat Ullah Niazi (P.W.14).
8. Muhammad Hafeez who hail produced photostat copy of Shajra Nasab of village Dholanwal for the year 1939-40, Mutation No.2995 dated 30-11-81, photostat copy of Jamabandi fur the year 1939- 40, photostat copy of Jamabandi for the year 1979-80, copy of the judgment dated 25-5-83 by Mr. Waheed Aslam Maan, Civil Judge in re: Khushi Muhammad v. Muhammad Ishtiaq and others, photo copy of the challan under section 173, Cr.P.C. Of Case No.347/83 under section 325/440/148/149, P.P.C. Titled Khushi Muhammad v. Muhammad Ishtiaq, photostat copy of the assessm ent register of Excise and Taxation pertaining to Khasra No.331, photostat copy of the order dated 19-11-84 passed by Mr. Nusrat Hussain Qureshi, Additional District and Sessions Judge, Lahore and photostat copy of the application submitted before the sub-Registrar about Khasra No.331, for sale-deed in favour of Gulzeb Akhtar, appeared as P.W.6, and verified that. He also produced certified copies of all these documents, except assessment register of the Excise and Taxation Department.
During cross-examination he admitted that he was employed as Reader in the District Courts. He admitted that copy of the assessm ent produced by him before the police was found to be forged.
He added that he had not obtained copy of assessment register and that it was obtained by the Police Officer. He expressed ignorance about acquittal of the accused in Case two.347/83. He clarified that he was not a party to the documents Exh.P.D. To Exh.P.K., in person, and that Gulzeb Akhtar (deceased) was a party to it. He denied the suggestion that the sale in favour of his son was bogus and a fraudulent transaction. He stated that the sale-deed in favour of Ishtiaq was bogus one and in favour of his son was genuine.
9. Ocular account was deposed to by Parvez Akhtar P.W.11, Muhammad Hassan Arif Bhatti P.W.7 and Naeem Akhtar P.W.8.
Parvez Akhtar while repeating the facts given by him in the F.I.R. Stated that Muhammad Hassan Arif P.W. Had also witnessed the occurrence alongwith other P.Ws. Named in the F.I.R. He also claimed to have identified the dead body of the deceased at the time of post-mortem and of having produced photostat copy of the sale-deed in favour of his deceased brother before the Police during investigation.
During cress-examination he stated that one of their neighbours had told them that the accused hid taken over possession of the plot. He stated drat they bad reached the spot at 1-15 p.m. And found the walls constructed upto a height of 2-1/2 feet. According to hire the masons and labourers were not present at the spot at that time. He admitted that a case was registered against his mother-in-law Mst. Musarrat Ara and Naeem P.W. But added that the same was registered 4-1/2 months after the occurrence. He denied the suggestion that the plot was being used by Khushi Muhammad as a tenant of the accused before the occurrence. He added that the occurrence had taken place at a distance of 40 feet from the plot in front of the Haveli of Qamar Din. He denied the suggestion that the deceased had gone to the spot and tried to take possession of the plot forcibly and that when Ishtiaq appellant had tried to disarm him by twisting his arm, the carbine had gone off and hurt the deceased. The suggestion that he had not witnessed the occurrence was denied by him.
10. Muhammad Hassan Arif Bhatti P.W.7 corroborated the statement made by P.W.Il. During cross- examination he expressed inability to say as to since how long the dispute existed between the parties about the plot. He admitted that he had not sent anybody to report at Police Station after deceased had been shifted to the hospital. He denied the suggestion that he had made a false statement and that actually the deceased was hurt when the accused had tried to disarm hire (the deceased) when the latter had tried to fire at him (the appellant).
11. Naeem Akhtar P.W.8 also corroborated the statement made by P.W.11. During cross-examination he admitted that Mst. Musarrat Ara was his uterine sister and Parvez Akhtar PW was her son-in-law.
While answering a question he admitted that the plot and the adjacent house to the plot in question were purchased by Ishtiaq appellant in 1958 through registered sale--deed but again stated that only the house had been purchased by him and not the plot. According to him there was no construction over the disputed plot except the one raised on the day of occurrence. He stated that heirs of the deceased were in possession of the plot in dispute these days. Like the other two PWs. He also denied the suggestion that the deceased bad gone to forcibly take possession of the plot armed with a carbine and that the carbine had gone off and hurt him when Ishtiaq had twisted his arm to snatch the carbine. According to him he got registered the sale deed in favour of the deceased on 30-5-84 (the occurrence had taken place on 8-6-84).
12. Rehmat Ullah Niazi, S.H.O. Who had registered the case and submitted challan to Court after completion of necessary investigations, appeared as P.W.14 and gave the details of the investigation, the arrest of the appellant and recovery of weapon of offence from him. During cross---examination he stated that the occurrence had not taken place at the disputed plot nor in front of it. According to him the parties while fighting had reached in front of the Haveli of Mehr Qamar Din and the occurrence took place they c. He admitted the suggestion that first version of Ishtiaq appellant before him, was that the deceased had come to the disputed property to take forcible --possession while being armed. He denied the suggestion that the occurrence had taken place when Ishtiaq appellant was defending pos. Lion of the plot.
12-A.. The appellant during his statement under section 342, Cr.P.C. Denico the prosecution case as a whole and pleaded innocence. In his written statement he put forth the stance that he was owner in possession of the plot and had started constructing four walls in the morning on the day of occurrence and had raised the walls upto 2 feet, when the masons and labourers had gone and thereafter the deceased had come there armed with a carbine accompanied by two professional rascals to take forcible possession and that when the deceased intended to fire at him, he had caught his arm holding carbine; aced twisted the same and that during the struggle the carbine had gone off and hurt the deceased. He neither examined any witness in defence nor made statement on oath. However, he produced some documents.
13. We have examined the contentions raised by learned counsel for the parties after having gone through the evidence with the assistance of learned counsel for the appellant.
14. The parties are not at variance on most of the issues in this case, in that, it is the case of both the parties that the appellant had started constructing walls around the Ihata on the day of occurrence and had completed the same upto the height of 2 to 2-1/2 feet. There is no dispute about the time of occurrence as well nor the parties are at variance about the place of occurrence.
Although the complainant did not concede specifically yet there is enough evidence on the record to hold that there was a dispute about the possession of land/plot between the parties and the appellant was claiming the ownership of the land since 1958. In fact, P.W.8 and P.W.11 during cross-- examination admitted that the appellant one had got the land transferred in his name, although subsequently they denied that fact. The Investigating officer also admitted that it, e; appellant was in possession of the plot during the days of occurrence. Similarly, the fact that the deceased lad purchased the plot through sale-deed registered on 30-5-84, also is not disputed. In fact the same stands proved by the documentary evidence. Apart from all that, the appellant did not deny his presence at the spot.
15. The only point which requires adjudication, is whether the occurrence had taken place in the manner stated by the prosecution or it had happened in the manner put forth by the appellant.
16. The argument of learned counsel for the appellant that the occurrence does not appear to have been witnessed by any of the P.Ws. And the version put forth by the appellant appears to be more probable and nearer the truth, has not impressed us, except to the extent that Muhammad Hassan Arif Bhatti P.W.7 was introduced at a later stage to strengthen the prosecution case.
He is not named in the F.I.R. The complainant knew him prior to the occurrence. The witness also claimed that he was known to the complainant and the other witnesses for 3 years prior to the occurrence. If he had been at the spot, the complainant would not have failed to name him as a witness. The assertion of the complainant that he had named him as an eye-witness while lodging the F.I.R., is without any substance. His evidence in the circumstances, has got to be excluded from consideration and we hold so accordingly.
17. As noted earlier, the parties are not at variance with regard to the time of the occurrence. If Parvez Akhtar complainant and Naeem Akhtar P.W.8 and the other witnesses named in the F.I.R.
Had not been at the spot, the deceased could not have been shifted to Mayo Hospital so swiftly and quickly nor the occurrence could have been reported so promptly. It is worth noticing that the F.I.R. Was lodged at the police station at 2-40 p.m. While the A occurrence had taken place at 1-30 p.m. In the meantime the complainant had taken the deceased to Mayo Hospital, alongwith Jamshed Akhtar P.W. And returned from there to report the matter at Police Station, Nawankot after the expiry of his brother. All this could not have been done so promptly, if the complainant and the other witnesses named in the F.I.R. Had not been at the spot.
18. The stance of the appellant that the deceased had died as a result of the carbine having gone off during scuffle between him and the deceased when the latter had come to the spot accompanied by two professional rascals to forcibly take the possession, does not find support from anything on record nor inspires confidence. Reasons for coming to such a conclusion, are that if the deceased had gone to the spot to forcibly occupy the plot alongwith two professional rascals, he would not have met such a fate so easily, because if the appellant had started grappling with him, his two companions would have definitely intervened physically as they had been taken by the deceased to help him in that. Even if the contention of learned counsel for the appellant that those persons may not have been armed (though it is difficult to believe that the professional rascals who accompanied the deceased for a specific purpose, would not have been armed) is allowed, one thing is certain, that they could have used the bricks which were readily available there, to save the deceased. They would not have run away from the spot so easily, leaving the appellant to have his own way, and deserting the deceased in that aweful state after being hit.
Moreover, it is not conceivable that the deceased would have allowed the appellant to grapple with him if he had gone there armed with a loaded carbine. He would have definitely used the weapon before being caught.
19. Still another aspect is that if the deceased had been alone there, unaccompanied by the eye- witnesses, the occurrence could not have been reported so promptly nor the deceased could have been shifted to the hospital so quickly.
20. The contention of learned counsel for the appellant that the deceased had no right to have gone to interfere with the possession of the appellant, is devoid of any force, in that, even if it is allowed for the sake of argument that the appellant was in physical possession of the plot, it cannot be accepted that the deceased had no right, even to go, to the appellant and inform him that he had purchased the plot and was the owner. In fact the deceased should have been expected to have gone to the appellant to inform him in his own interest that he should not spend anything on the development of plot which had been purchased by him (deceased). Of course, if the deceased had gone armed, and launched regular attack to take forcible possession, the matter could have been argued and considered in a different manner. The defence version thus is without any substance and not worth acting upon.
For the aforesaid reasons, we find no merit in the appeal. The same is dismissed and the conviction of the appellant under section 302, P.P.C. Is maintained.
21. As observed in the earlier part of the judgment the appellant had been asserting the possession of the land and at times, ownership too, since long. He might even not have come to know or might genuinely not have believed even that the deceased had got the land/plot transferred in his name through registered sale-deed.
The sale-deed was registered in favour of the deceased only 9 days before the occurrence and it is not the case of the prosecution that prior to that they had informed the appellant that the deceased had got the land purchased through registered sale-deed. He thus, might have been under a genuine impression that the deceased had no right to interfere in his possession even though it was not strictly legal. Apart from that it is prosecution's own case that the deceased was not fired at, in the plot. In fact the shot which resulted in his death, was fired at him near the Haveli of Qamar Din, the distance of which was given by the eye-witnesses as about 40 feet. That shows that the appellant had not straightaway fired at the deceased merely on seeing him in the plot aan merely on his having told him that he had purchased it. It appears, that they entered into arguments and while arguing/quarrelling, they reached near the Haveli of Qamar Din where due to some harsh words used by the deceased, the appellant resorted to firing at him.
In the circumstances, in our view, no case for enhancement of sentence of imprisonment for life to death, is made out. The revision petitions filed by the complainant as well as by the State, are therefore, dismissed, and the sentences awarded to the appellant by the trial Court are maintained. He shall be given benefit of the provisions of section 382-B of the Code of Criminal Procedure as well.