' SAJJAD ALI SHAH, C J.--Eight accused persons including five appellants herein were put on trial for offences under sections 302/307/394/39 and 379, P.P.C. In the Punjab Special Court No,IX for Speedy Trials, Gujranwala and from them three, namely, Ghulam Haider, Muhammad Shafi and Fazal Karim were acquitted as their case was found to be not free from doubt and the remaining five were convicted from whom two, namely, Tariq Mahmood son of Hukam Din and Yaseen son of Muhammad Shafi were sentenced to death and the remaining three were convicted and sentenced to life imprisonment and fine of Rs,20,000 each or in default of payment of fine further sentence to R.I. For two years. In fact all the five accused persons, who are appellants before us, were convicted on other counts also and sentenced to various other terms of imprisonment as well as are mentioned in detail in the judgment of the trial Court at pages 155 and 156 of paper book of the High Court. Appellants filed appeal before the High Court which is dismissed and in the result death sentences are confirmed and conviction and sentences on all counts are upheld. High Court declined to interfere with acquittal of three accused persons by the trial Court and dismissed State appeal for enhancement of sentence.
2. This Court has dismissed Criminal Petition No,207/L of 1992 filed by complainant Muhammad Ramzan on the ground that two Courts below have concurred in the acquittal of three accused persons jointly tried with others and no case was made out for enhancement of sentence. In Criminal Petition No,185/L of 1992 leave is granted to consider reappraisal of the entire material as High Court omitted to notice the support, the counter-version convicts received from six bullet marks on the Verandah of the Dera of the petitioners (appellants) admittedly found by Noor Hussain S.I., P.W.16.
3. Prosecution case as stated in F.I.R. Is that complainant Muhammad Ramzan and his brother Muhammad Shafi purchased one Messey Furgoson Tractor No,GAD-139 from Haji Kangan, who is related to the accused persons. Part payment was made and Rs,40,000 were still to be paid to Haji Kangan, who had handed over possession of tractor to the complainant and his brother. A few months before the incident sister of complainant filed a suit of pre-emption against nephews of Hukam Din, who suspected that Wali Muhammad and Ali Ahmad were instrumental in having the suit filed against them and for that reason animosity arose between the parties.
4. At this stage it would be pertinent to mention relationship inter se of accused persons and complainant party. From five appellants before us, Tariq Mahmood is son of Hukam Din while Amin and Yasin are sons of Muhammad Shafi, who is brother of Hukam Din, and is acquitted by the trial Court. Muhammad Munir is nephew of Hukam Din. Apart from Muhammad Shafi, trial Court has acquitted Fazal Karim who is son of Hukam Din and Ghulam Haider who is tenant of Hukam Din and Muhammad Shafi. Deceased Ali Ahmed was first-cousin and deceased Wali Muhammad was paternal-uncle of complainant Muhammad Ramzan.
5. On the day of incident at 4-00 p.m. Complainant was going towards his house in his tractor mentioned above and when he reached Dera of Hukam Din, he found Hukam Din armed with .12 bore gun, Amin with hatchet, Yasin and Tariq Mahmood with carbines. Munir with gun and Ghulam Haider, Muhammad Shafi, and Fazal Karim armed with Sotas.They stopped complainant and forcibly tried to take away from him the tractor. On commotion of the complainant, Sajjada son of Ghulam Nabi came to the spot. Muhammad Shafi and Ghulam Haider gave Sota blows to the complainant and Tariq Mahmood gave blow with butt of his carbine. Assailants took away the tractor from the complainant and also forcibly took the complainant to the Dera. In the meantime Muhammad Shafi brother of complainant and other relatives Muhammad Hussain, Wali Muhammad and Muhammad AsTam came to the spot on hearing commotion. On the way to Dera when they reached the cultivation of Inayat. Hukam Din and his brother Muhammad Shafi raised Lalkara and instigated other assailants to teach a lesson to the complainant party for filing a case against them.
6. Responding to the instigation, Munir fired from his gun at 'Wali Muhammad which hit him on left elbow. Tariq Mahmood fired from his carbine at Wali Muhammad which hit him at his left flank.
Wali Muhammad fell down on the ground. Fazal Karim gave hatchet blow to Muhammad Hussain on his head. Amin inflicted hatchet blows on Muhammad Shafi and Muhammad Aslam on their heads. Muhammad Shafi son of Umar Din gave Sota blows to Muhammad Hussain and Muhammad Aslam. Ghulam Haider gave Sota blows to Muhammad Shafi brother of complainant.
In the meantime All Ahmad alias Bhola soh of Nizamuddin came to the spot armed with his licensed gun (.12 bore), who was fired upon by Hukam Din and was wounded on head and abdomen. Hukam Din fired another shot at Ali Ahmad, which hit him on left forearm and in the result All Ahmad fell down. Yasin went near and fired at Ali Ahmad with carbine which hit him on the chest. Ali Ahmad died on the spot. Yasin alias Kaka took away the licensed gun of Ali Ahmad.
Assailants then fled away and detained the tractor at Dera of Hukam Din.
7. S.H.O. Noor Hussain of Police Station NoShera Virkan was present on the day of incident at bus stand when complainant Muhammad Ramzan approached him and made a statement Which was recorded and sent to Police Station through P.C. Sardar Ali for registration of formal F.I.R. S.H.O.
Accompanied the complainant to the place of occurrence where dead body of Ali Ahmad was lying. After preparation of injury statement and inquest report dead body was sent to Civil Hospital, Gujranwala for autopsy. Bloodstained earth was secured and put into sealed parcel. On the following day injured Wali Muhammad died in the hospital and the S.H.O. Prepared his inquest report. During the investigation, after completing other formalities. S.H.O. Arrested Tariq Mahmood and Yasin in Nakabandi and recovered from Yasin .12 bore gun and five, live cartridges, from Tariq Mahmood and carbine and three live cartridges were recovered. The tractor was also taken into possession. Site plan was prepared. On 10-12-1987 accused Munir was arrested. Complainant Muhammad Ramzan produced before the S.H.O. Registration book of his tractor and an armed licence belonging to Ali Ahmad deceased. Later other accused persons were also arrested and on pointation of Munir, gun was recovered from the house of Muhammad Shafi. Accused Amin led to recovery of hatchet from his house. Accused Ghulam Haider led to the recovery of Sota from Dera of Muhammad Shafi and Hukam Din. Statements of P.Ws. Were recorded and after completion of investigation challan was presented in this Court.
8. Prosecution examined as many as sixteen witnesses in the trial Court in support of its case. From them most important are four eye-witnesses who were also injured during the incident. Those injured eye-witnesses were medically examined by Dr. Haji Attaul Mustafa Chattha who also performed post-mortem examination of dead bodies of Wali Muhammad and Ali Ahmad. Other witnesses are formal in nature and include witnesses of arrest and recovery of weapons from accused persons. Prosecution produced reports of chemical examination according to which earth secured from two places of Wardat was found to be blood-stained and also hatchet recovered from accused Amin. Report of Fire Arms Expert is to the effect that nothing could be said as to when shot-gun (.12 bore) and pistol (.12 bore), described in the report, were last fired. It would be pertinent to mention here that crime empties were not secured from the spot hence could not be sent to the laboratory.
9. In the trial Court statements of accused persons were recorded under section 342, Cr.P.C. And they also gave statements on Oath. Ghulam Haider pleaded false implication on the ground that he was tenant of accused party. Munir and Amin pleaded that on the day of incident complainant party came to retrieve the tractor and attacked and in exercise of right of, private defence they caused injuries to the complainant party. Hukam Din took up the plea that the mother of complainant Muhammad Ramzan exchanged land with Naseer Khan which was purchased by him and his brother Muhammad Shafi. Subsequently, the sister of complainant filed a collusive suit for pre-emption against them. Complainant Muhammad Ramzan and others purchased the tractor from him but did not pay dues. Complainant party came to take the tractor, which attempt was resisted by his boys. Deceased Ali Ahmad and Wali Muhammad attacked with guns and in return Amin, Munir and others, who were present, fired in exercise of right of private defence resulting in death of Ali Ahmad and Wall Muhammad. At midnight the complainant and others launched attack at his house which was repulsed. On the following day the complainant in consultation with police and active help of Dr. Haji Attaul Mustafa Chattha fabricated false case as Muhammad Ali son of Sajjada was working as Dispenser in Civil Hospital, Gujranwala. Yasin and Tariq Mahmood pleaded false implication on account of the relationship with accused party. Muhammad Shafi and Fazal Karim pleaded alibi and claimed that they were at the relevant time present in grain market of Noshera Virkan as both worked as commission agents there. Accused persons did not examine any witness in defence.
10. We have appraised the evidence brought on the record with the assistance of learned counsel appearing for both parties. Ocular evidence is furnished by four eye-witnesses who happended to be injured eyewitnesses as they had sustained injuries, caused to them at the time of the incident by accused persons. In such circumstances their presence at the spot is beyond dispute. Task of appraisal of evidence has become easy for the reason that in the defence, plea is raised by accused persons that they had exercised right of private defence and caused injuries resulting in death of two persons as they were first attacked by the complainant party. It is so stated specifically by appellants Munir and Amin in the trial Court when their statements were being recorded. Appellants Yasin and Tariq Mahmood, to whom fatal injuries of deceased persons are attributed, have claimed false implication in the case. Both the trial Court and High Court are of the view that the case is proved by the prosecution by evidence of four injured eye-witnesses supported by motive and medical evidence.
11. A perusal of evidence of complainant Muhammad Ramzan shows that he has described the incident lucidly in great detail. On the day of incident he was coming to his house in his tractor and when he reached Seem Nala near Dera of Hukam Din, he was stopped by eight accused persons who were armed and they gave him a beating, snatched his tractor which was taken to the Dera of Hukam Din. He was also taken to the Dera and made to sit there. At the time of beating and snatching of the tractor, he had raised commotion which attracted P.W. Sajjada at the spot followed by other witnesses and deceased persons, who were fired upon and given injuries with other weapons by accused persons. Complainant Muhammad Ramzan is further corroborated by other injured eye-witnesses who have wholeheartedly supported and confirmed his version of the incident.
12. Dr. Attaul Mustafa Chattha examined injured witnesses and also performed post-mortem on two dead bodies. He has explained in his evidence that witnesses Muhammad Hussain and Muhammad Shafi were examined on 23-11-1987 but their medico-legal reports were written on the following day. Sajjada made an application to the Medical Superintendent on 23-11-1987 to get examined Wali Muhammad, Muhammad Shafi, Muhammad Hussain, Muhammad Ramzan and Aslam. Permission was granted by the Medical Superintendent. Injured mentioned in the application were examined on 24-11-1987 and Wali Muhammad died before he could be medically examined. In such circumstances due to bona fide mistake, date of examination was shown as 23- 11-1987, which was converted into 24-11-1987 by overwritings in the medico-legal reports. Defence had contended that Muhammad Ali son of Sajjada was working in the Civil Hospital as Dispenser and he was instrumental in getting medico-legal reports from the doctor by using undue influence.
This suggestion is rejectable on three grounds. Firstly, the doctor has explained satisfactorily overwritings with regard to the change of date. Secondly, suggestion with regard to undue influence of Muhammad Ali, Dispenser, was not put to the doctor in the cross-examination. Thirdly, suggestion loses significance in the light of the fact that exercise of right of private defence is pleaded and causing of injuries to the deceased and other P.Ws. Is admitted.
13. Both the Courts below have evaluated the evidence by putting defence version in the juxtaposition with prosecution evidence and have disbelieved defence version as untrue. This Court has granted leave to reappraise the evidence for the reason that S.H.O. Noor Hussain admitted in his evidence that there were six bullet marks on the verandah of Dera of the appellants which aspect was not considered by the High Court while dealing with counter-version. S.H.O. Had admitted this fact in the 'cross-examination that there were 5/6 bullet marks on the wall of said verandah but no further query was put to him in that context. Now it is crystal clear that plea of private defence is taken by fhe appellants and according to them complainant party attacked first.
Since positive assertion is made by the defence, it is for them to substantiate it in order to cause not in the credibility of the prosecution case. It is held by this Court time and again that when defence plea is raised, burden of prosecution to prove the case beyond doubt is never diminished or reduced and prosecution has to prove its case in the same manner regardless of. Defence plea.
All what defence has to do is to substantiate that plea in such a way that doubt is created with regard to the truthfulness of the prosecution story. On this point prosecution case is that part of the incident had already commenced before arrival of deceased Ali Ahmad, who was armed with gun.
At the outset of the incident complainant Muhammad Raman was given beating and the tractor was snatched from him and taken to the verandah of Dera. The complainant was also detained in the verandah. Deceased persons and other witnesses came, to the spot on hearing commotion. All the eye-witnesses have stated that deceased Ali Ahmad, who was armed with his licensed gun, did not fire any shot at accused persons and while he came running he was fired upon. It is not the case of the defence that first Ali Ahmad fired and then accused persons fired in defence. After the death of Ali Ahmad, his licensed gun was taken away 'by 'accused persons. No crime empties were recovered from the spot as a result from firing by accused on the deceased. No suggestive question was put to the eye-witnesses by the defence that first shot was fired by deceased Ali Ahmad or several shots were fired by him, which had hit the Dera of accused persons and in the result they fired back. It is surprising that in this case, in which plea of private defence is taken, on the side of the complainant two persons died and four eye-witnesses became injured while on the side of accused persons, who were eight in number, no body became injured and not even a bruise or abrasion was caused to them. No F.I.R. Was filed by accused persons in support of counter version raising plea of private defence. In these circumstances as they appear from the evidence on the record, presumption cannot be ruled out that bullet marks on the erandah could have been caused from the firing of accused persons themselves.
14. There is no dispute about the fact that incident took place near the Dera of the appellants and both deceased persons were caused injuries at place which was ten Karams away from the Dera.
This fact is supported by recovery of blood-stained earth from the place of occurrence. In this context prosecution has claimed that the complainant was beaten and his tractor was snatched and taken away to Dera and complainant was also detained there. Deceased persons and other members of the complainant party reached there in order to come to the rescue of the complainant. About the tractor, version of the prosecution is that it was purchased by the complainant from Haji Kangan who is related to the appellants and part of the price was still to be paid to him. Defence version is that the tractor was purchased by Muhammad Ramzan from Hukam Din and others and the price was not paid to them. On behalf of the defence contention was raised that why prosecution did not produce and examine Haji Kangan. Reasonable reply to this query is that prosecution has produced evidence, which it has thought fit and proper to produce. This fact is testified by eye-witnesses, which prosecution considers to be sufficiently proved. Defence has raised plea that the tractor is owned by Hukam Din and it was wrong that appellants were demanding money as part payment of the tractor on behalf of Haji Kangan.
Hukam Din stated in his statement that Haji Kangan is not related to him. In such circumstances the appellants could have produced some material in support of the assertion that they owned the tractor and not Haji Kangan. Strangely enough some suggestive questions have been made to complainant Muhammad Raman in the cross-examination that he used to park the tractor at the Dera of accused persons and on the day of incident they refused to allow him to take out the tractor and for that reason attack was made upon them and the incident took place. If prosecution did not examine Haji Kangan for the reason it was considered unnecessary, there was nothing to prevent defence from examining Haji Kangan as defence witness or making request to trial Court to examine him as the Court witness.
15. After a perusal of the evidence we are of the view that cause of real annoyance of the appellants was filing of pre-emption suit by the sister of the complainant for which they held responsible two deceased persons and they were on the look out to find some plausible excuse to pick up quarrel which they did by demanding balance payment of price of purchase of the tractor by complainant Muhammad Ramzan from their relative Haji Kangan. We are of the view that both appellants Yasin and Tariq Mehmood should not have been awarded death sentence for the reason that at the relevant time of incident both of them were below the age of sixteen years as observed by the High Court in the impugned judgment and this should have been considered as extenuating circumstances for not awarding capital punishment. Even otherwise case of both these appellants mentioned above is covered by the benefit of amnesty as they were sentenced to death by the trial Court vide judgment dated 31-10-1988.
16. We, therefore, for the reasons aforementioned dismiss the appeal with modification that sentence of death awarded to appellants Tariq Mahmood and Yasin is reduced to life imprisonment and all other sentences are upheld. We also direct that both the appellants be further given benefit as contemplated under section 382-B, Cr.P.C.