' Jaffar alias Sawalla (45), Falak Sher (70) and Nazar Muhammad (25) were tried alongwith Umar Hayat (34) by Additional Sessions Judge, Okara, for having murdered Bashir Ahmad and for having launched murderous assault on Nausher Khan P.W., on 28-10-1987 at 4-30 p.m. In the fields in the area of village Tibbi Parrhar, at a distance of 12 miles from Police Station Chuchak, District Okara.
' Fazal (80) was also tried alongwith them under section 302/109, P.P.C. For having abetted the crime.
' Vide judgment dated 22-12-1990, learned trial Judge, convicted Jaffar alias Sawalla under section 304, Part I, P.P.C. And sentenced him to undergo imprisonment for life plus to pay a fine of Rs,10,000 in default whereof to undergo R.I. For one year.
' Nazar Muhammad and Falak Sher were convicted under section 307/34, P.P.C. And sentenced to undergo R.I. For seven years each plus to pay a fine of Rs,10,000 each, in default whereof to undergo R.I. For one year each.
' Half of the fine, on recovery from all the convicts, was directed to be paid as compensation to the heirs of the deceased.
' The remaining accused were acquitted vide the same judgment.
2. Criminal Appeal No,21 of 1991 filed by Jaffar alias Sawalla and Nazar Muhammad, and Criminal Appeal No,37/J of 1991 filed by Falak Sher from jail are being disposed of together having arisen from the same judgment.
3. F.I.R. Exh.P.F./1 was registered at police station by Noor Ahmad A.S.I. (P.W.5) at 7-00 p.m. On 28- 104987, on receipt of statement Exh.P.F. Of Nausher Khan (P.W.8) recorded by Muhammad Yusuf S.I.
(P.W.10) at 5-45 p.m. On the same day at Bridge Peer Ali.
' According to F.I.R., the complainant entered into an agreement with Pazeer Muhammad to purchase 30 Kanals of land for Rs,40,000, 20/25 days before the occurrence. The sale-deed was agreed to be registered on 19-10-1987. They were already in temporary possession of the land. After registration of the sale-deed, complete possession was given to them on 20-10-1987. They constructed a Chhappar in the land and set up cattle Bahak there. Jaffar alias Sawalla (appellant) had also intended to purchase said land, but as Pazeer Muhammad was related to the complainant, he had sold the land to him. On the day of occurrence, the complainant was sitting in the said land alongwih his brother Bashir Ahmad (deceased), Yaqoob and Jafar son of Ratloon.
Jaffar alias Sawalla armed with a rifle, Nazar Muhammad armed with a gun, Falak Sher armed with a pistol (appellants) and Umar Hayat armed with a Sota, came there at 4-30 p.m. Jaffar alias Sawalla raised a Lalkara that Bashir and Nausher be taught a lesson for having taken possession of the land, whereupon Nazar Muhammad fired a shot at the complainant which struck him on the right calf. A pellet from the shot fired by Falak Sher struck him on the left wrist. When Bashir Ahmad came ahead, Jaffar alias Sawalla fired a shot at him from his rifle which struck him on the face. He fell down. On the noise raised by the complainant, Yaqoob and Jaffar son of Ratloon P.Ws., that Bashir has been murdered, the accused ran away. The complainant and the P.Ws. Did not chase the accused on account of being empty-handed. The occurrence was witnessed by the above- named persons. Bashir died at the spot.
' It is alleged in the F.I.R. That the whole occurrence had taken place at the instance of Fazal. He had supplied the arms and the accused had got together at his Dera. It is further stated in the F.I.R. That the accused had committed the occurrence in order to take the possession of the land forcibly.
4. Muhammad Yusuf S.I. After despatching statement to the police station for registration of the case, reached the spot and despatched the dead body for post-mortem after preparing necessary papers. He also collected the blood-stained earth from there vide memo. Exh.P.B. All the accused except Fazal were arrested by him on 13-12-1987, while Fazal was arrested on 21-12-1987.
' Rifle P.3 got recovered by Jaffar alias Sawalla on 23-12-1987 was taken into possession vide memo.
Exh.P.C. While the pistol (P.4) got recovered by Falak Sher on the same day was taken into possession vide memo. Exh.P.D. Challan was submitted to Court after completion of necessary investigation.
5. Statements of 12 P.Ws. Were recorded at the trial.
' Dr. Syed Jarar Haider, who had performed autopsy on 29-10-1987 at 10-30 a.m. Appeared as P.W.11.
He had noted following injuries on the body of the deceased:--
(1) A lacerated wound 3/4 x 3/4 c.m. Rounded on the right side of the upper lip, margin inverted through and through in lip (entry wound).
(2) A lacerated wound 3/4 x 3/4 c.m. Rounded at the back of skull, margin everted, 11.5 c.m. From the right ear, 14 c.m. From the left ear (exit wound) in the line joining both the ears transversely.
' On opening the scalp, occipital bone around the foramen magnium was found fractured into pieces.
' There was a lacerated wound on the tongue close to right margin. He had also noted a lacerated wound on the posterior wall of the throat.
' Death was opined to have occurred due to injuries Nos.1 and 2 which were opined to have been caused by a fire-arm. Probable time between injuries and death was opined to be within five minutes while the time between death and post-mortem was opined to be within 12 to 24 hours.
' The same doctor had medically examined Nausher Khan P.W. On 27-10-1987 at 12-00 noon. He had noted following injuries on his person:--
(1) A lacerated wound 1/3 x 1/3 c.m. Depth not measured at the dorsal surface of the left arm, face of the left forearm middle, margins were inverted surrounding 2 c.m. Area was swollen. The injured was advised X-Ray.
(2) A lacerated wound 1/3 x 1/3 c.m. Depth not measured, margins inverted, on the outer and upper part of the right leg surrounding 2 c.m. Area was swollen. Advised X-ray.
' Both the injuries, which were opined to have been caused by a firearm within 12 to 24 hours, were initially kept under observation but were later declared simple after X-ray examination.
6. Ocular account was deposed to by Nausher Khan (P.W.8) and Yaqoob (P.W.9).
' Nausher reiterated the facts given by him in the F.I.R. During cross-examination, he admitted that his sister Mst. Nooran was married to Pazeer Muhammad. He disclosed that the land, which he had purchased, was in the name of Naseer, a son of Pazeer. While denying that Pazeer had leased out the disputed land to Jaffar (appellant) for a period of five years commencing from 10-2-1985, he expressed inability to state that Pazeer Muhammad had received a sum of Rs,5,000 from Jaffar (appellant) and had executed the lease through Abdul Hach Waseeka Nawees. He admitted that Jaffar had filed a suit for specific performance against Pazeer Muhammad on 20-10-1987 and that he was also made a party in that suit. He denied the suggestion during cross-examination, that he had refused to make statement on oath. He denied the suggestion that the land was in possession of Jaffar (appellant) and that Pazeer Muhammad had received a sum of Rs,85,000, from him. The suggestion that the land was fictitiously transferred to their names by Pazeer Muhammad so that the claim of Jaffar alias Sawalla becomes redundant, was denied by him. The suggestion that the land was already in possession of Jaffar (appellant) and that they had tried to take the possession of the land forcibly and that the persons deputed by Jaffar (appellant) to guard the land while defending the possession of the land, had fired at him and at his brother, was also denied by him.
7. Yaqoob (P.W.9), by and large, corroborated the statement made by P.W.B.
8. Evidence of recovery of rifle at the instance of Jaffar and pistol at the instance of Falak Sher were deposed to by Rahman (P.W.4). He had also claimed, to have witnessed the collection of blood- stained earth from the spot.
' His statement in that regard was corroborated by Muhammad Yusuf S.I. (P.W.10), who had investigated the case, arrested the accused and had taken into possession the weapons allegedly recovered from Jaffar and Falak Sher.
9. Muhammad Yusuf S.I. (P.W.10) during cross-examination admitted that the accused had pleaded innocence during the occurrence and that they had put up the version that the complainant party had gone to the spot in order to take the possession of the land forcibly and that one Yusuf, who was present on the land alongwith others on behalf of Jaffar (appellant), had fired at the deceased. He admitted that in spite of efforts made by him, Pazeer Muhammad did not join the investigation. According to him, he had asked the complainant also to produce him but he had not done that.
' The statements of the remaining witnesses except that of Dost Muhammad Patwari (P.W.3), are of a formal nature.
10. Dost Muhammad Patwari during cross-examination admitted that according to the Khaira Girdawari pertaining to the period from 15-10-1986 to 28-3-1988, Killas Nos.2, 9, 11, 12 and 13 were in cultivating possession of Sawalla son of Jagdey. He identified said Sawalla to be Jaffar accused.
11. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence.
' Jaffar while denying the recovery of rifle stated as follows in answer to the question, 'why the P.Ws.
Have deposed against you and why this case against you'?:-- "The land situated in Square No,11 measuring five Killas was in the name of Naseer Ahmad a minor son of Pazeer Muhammad son of Masta caste Ranseen Kharal resident of village Tibbi Badhar, who is the sister's husband of Bashir Ahmad deceased and Nosher P.W. On 23-1-1985 said Pazeer Muhammad leased out this land i,e. Square No,11 Killas Nos.2, 9, 11, 12 and 13 for Rs,5,000 for a period of five years starting from 15-2-1985 to 15-2-1990. He executed a lease deed in this respect through Abdul Haq Shahid Khan Baloch Petition-Writer, Okara and delivered the possession of the said land at the spot. Falak Sher accused was a witness to the said lease deed. Later on on 10-2-1985 Pazeer Muhammad aforementioned mortgaged the said land after receiving Rs,20,000 in addition and executed another mortgage deed through the said petition-writer. Falak Sher accused was again a witness to this mortgage deed. On 22-7-1985 Pazeer Muhammad aforementioned agreed to sell the said land to me and after accepting Rs,60,000 more he executed sale agreement through the same petition-writer, at Okara. Bahi Khan brother of Fazal accused and one Noor Muhammad son of Akbar were the marginal witnesses to this agreement to sell. Pazeer Muhammad aforementioned kept on promising that he would transfer the land after getting the decision of Guardianship certificate. I had been requesting him to do so. Smelling his bad intention I filed a suit for specific performance of the contract on 18-10-1987 in the Court of Mian Ashiq Muhammad Faiz, Senior Civil Judge, Okara, against Naseer Ahmad minor and Pazeer Muhammad aforementioned. A stay order not to transfer the land was issued on the first date of hearing, whereas a stay not to interfere in my possession was issued on 26-10-1987. In the meantime to deprive me of the land and the huge amount of Rs,85,000 Pazeer Muhamamd conspired with his brother-in-law Nosher Ahmad P.W. And Bashir Ahmad deceased without any payment/consideration. When Pazeer Muhammad etc., came to know that a temporary stay not to interfere into my possession has been issued against them they started thinking of taking forcible possession of the disputed land. I had been in cultivating possession of the said land since it was leased out to me. One Yousaf son of Mahar Din caste Chara Kharal resident of Pindi Chary and few other persons were present to protect my possession as physical interference and murderous assault was apprehended. On the day of occurrence Nosher complainant alongwith Bashir deceased and a few others armed with fire-arms etc., trespassed into the said land, opened fire and to protect possession and to save their lives there was firing from Yousaf etc. In response to the firing of the complainant party. The deceased was hit by a fire from Yousaf aforementioned and complainant received stray pellets from another fire. Neither I nor my co-accused were present at the time of occurrence. The complainant party falsely involved me and other co-accused in this case."
12. Learned counsel for the appellant after having gone through the evidence, did not challenge the conviction of Jaffar (appellant) under section 304, Part I, P.P.C. He, however, strenuously argued that in view of the fact that the learned trial Judge came to the conclusion that the accused had acted in defence of property, the awarding of maximum sentence was neither just nor proportionate to the view formed that they had exceeded the right of defence of property.
However, while not challenging the impugned judgment vis-a-vis the participation of Falak Sher and Nazar in the occurrence, he contended that their conviction under section 307/34,. P.P.C. Was inappropriate as they were also found to have acted, as Jaffar was found to have, and so they should not have been burdened with the liability of launching murderous assault. They could, at the best, have been convicted and sentenced according to the nature of the injuries caused by them.
Learned counsel submitted that as the injuries were declared simple, they can, at the best, be held liable for having committed the offence under section 324/34, P.P.C.
13. Notwithstanding the fact that the learned counsel for the appellants has not challenged the conviction of Jaffar under section 304(1), P.P.C., I have gone through the record and perused the impugned judgment. The conclusion arrived at by the learned trial Judge that the prosecution had failed to prove the motive and that the occurrence had taken place due to the attempt made by the complainant party to take the possession of the land forcibly from Jaffar (appellant), is based on correct appreciation of the evidence on record, and so, does not call for interference, in any manner. Actually, neither the complainant nor the State challenged that fact.
14. The view formed by the learned trial Judge about the participation of the appellants and of their having exceeded the right of defence of private property also, in my assessment, does not call for any interference. The conviction of Jaffar (appellant) under section 304(I), P.P.C., in the circumstances, is rightly placed and does not require any interference. However, the conviction of Falak Sher and Nazar Muhammad under section 307/34, P.P.C. Is neither legal nor just, in that, since they had also been found to have acted in defence of private property, they could not have been held liable for having launched a murderous assault intentionally, particularly so when the main accused was not held liable for intentional murder. Their conviction under section 307/34, P.P.C. Is, therefore, altered to under section 308/34, P.P.C.
' Both of them had remained in jail for about seven months during trial and were released from jail nine months after they had been taken into custody on the annoucement of judgment, on suspension of their sentences by this Court. They have thus remained in jail for about 16 months each. They are sentenced to the period already spent by them in jail.
15. The sentence of imprisonment for life in addition to the fine of Rs,10,000 awarded to Jaffar appellant is obviously not in consonance with the circumstances of this case. Even the learned counsel for the State conceded that fact.
His claim of being in possession of the land and his stance that he had acted in defence of property was upheld by the trial Court unhesitantly. The judgment of the trial Court in that regard has been held to be based on correct appreciation of the record. He was convicted and sentenced for having been found to have exceeded the right of private defence of property. The maximum sentence provided for that in section 304(1), P.P.C., appears to be unjustifiable, in the circumstances of the case. The same is, therefore, set aside. He is instead sentenced to undergo R.I. For eight years plus to pay a fine of Rs,5,000, in default whereof to undergo R.I. For six months.
' He shall be given the benefit of the provisions of section 382-B, Cr.P.C.
' Falak Sher and Nazar Muhammad are on bail. Their sureties shall stand discharged.