' MUHAMMAD NAWAZ ABBASI, J.---Muhammad Arshad son of Muhammad, Muhammad Arshad and Muhammad Iqbal sons of Muhammad Shafi, Muhammad Ali son of Rehmat Ullah and Muhammad Sharif son of Rehmat Ullah alongwith 4 others were tried for an offence under section 302/ 307/148/149, P.P.C. By the learned Additional Sessions Judge, Khanewal who vide his judgment dated 19-6-1991 convicted Muhammad Arshad son of Muhammad under section 302, P.P.C. For causing the death of Abdul Hamid deceased and sentenced him to death and a fine of Rs,10,000 or in default thereof to under S.I. For one year and also to pay Rs,10,000 as compensation to the legal heirs of Abdul Hamid deceased or in default thereof to suffer S.I. For one year. Muhammad Iqbal appellant was convicted under section 302, P.P.C. For the murder of Muhammad Ramzan deceased and was sentenced to death with a fine of Rs,10,000 or in default of payment of fine to undergo S.I.
For one year. He was also directed to pay Rs,10,000 as compensation to the legal heirs of Muhammad Ramzan deceased or in default thereof to suffer S.I. For one year. Muhammad Arshad son of Muhammad Shafi appellant was convicted under section 302, P.P.C. For causing the murder of Thiraj deceased and was sentenced to death and to pay a fine of Rs,10,000 or in default thereof to undergo one year's S.I. He was also directed to pay Rs,10,000 to the legal heirs of the deceased as compensation or in default thereof to suffer S.I. For one year. Muhammad Ali son of Rehmat Ullah was convicted under section 302, P.P.C. For causing the death of Muhammad Ayyub and was sentenced to life imprisonment and a fine of Rs,10,000 or in default thereof to undergo S.I. For one year. He was also directed to pay Rs,10,000 as compensation to the legal heirs of the deceased Muhammad Ayyub. Muhammad Sharif was convicted under section 307/149, P.P.C. For causing injuries to Mst. Fateh Bibi and sentenced to life imprisonment plus a fine of Rs,5,000 or in default thereof to further undergo S.I. For six months with benefit of section 382-B, Cr.P.C.
2. Challenging their conviction and sentence the appellants have filed Criminal Appeal No,175 of 1991 while the learned trial Court has made a reference under section 374, Cr.P.C. For confirmation of death sentence of Muhammad Arshad, son of Muhammad, Muhammad Arshad son of Muhammad Shafi and Muhammad Iqbal appellants. Both these matters shall be disposed of by this single judgment.
3. Brief facts of the prosecution case as narrated in the report Exh. PM lodged by Bahawal complainant P.W.6 on 15-6-1989 at 4 p.m. And recorded by Qazi Muhammad Ayyaz Inspector P.W.8 are that on 15-6-1989 at about Zoharwela the complainant alongwith his family members was present in the cattleslied situated in Square No,101 and was busy in gossiping when the appellants alongwith their co-accused armed with guns and Sota came there raising Lalkara not to spare him and his family members. Arshad appellant fired gunshot hitting Abdul Hamid deceased who fell down, then Muhammad Ali fired shot hitting Muhammad Ayyub deceased who also fell down.
Muhammad Iqbal fired at Muhammad Ramzan deceased who also fell on the ground. Muhammad Arshad appellant fired at Thiraj deceased. Muhammad Sharif caused Sota blows to Mst. Fateh Bibi and Mst. Rajan. The appellants alongwith their co-accused thereafter jointly firing at the four deceased when they were lying on the ground fled away from the spot and all the four deceased succumbed to the injuries at the spot.
4. The motive for the occurrence was the civil suit regarding the allotment of half acre of land which was allotted in the name of complainant but subsequently Muhammad Ali got the said land transferred in his name. The father of the complainant filed a suit obtaining stay order in his favour which was pending before the Civil Courts.
5. After registration of the case, Qazi Muhammad Ayyaz P.W.8 proceeded to the spot and prepared the injury statement Exh. PA/2 and inquest report Exh.PA/3 of Abdul Hamid, injury statement Exh.PB/2 and inquest report Exh. PB/3 of Muhammad Ramzan deceased, injury statement Exh. PC/2 and inquest report Exh. PC/3 of Thiraj deceased, injury statement Exh. PD/2 and inquest report Exh.PD/3 of Muhammad Ayyub deceased and despatched the dead bodies, for post-mortem examination. He took into possession blood-stained earth from the places of murder of Muhammad Ayyub, Abdul Hamid, Muhammad Ramzan and Thiraj vide memos. Exhs. PO, PP and PQ respectively. He recorded the statement of the eye-witnesses under section 161, Cr.P.C. The last- worn clothes of the four deceased with the sealed phials containing pellets produced before the investigating officer was taken into possession vide memos. Exhs. PE, PH, PJ and PK. He took into possession shirt P.16 produced by Mst. Rajan Mai vide memo. Exh. PR. He prepared injury statement Exh. PE of Mst. Fateh Bibi and Exh. PF of Mst.Rajan Mai the injured P.Ws.
6. The accused were arrested on 21-6-1989. Arshad accused led to the recovery of gun .12 bore P.17 from inside the cattleshed on 5-7-1989 which was taken into possession vide memo. Exh. PS.
Muhammad Sharif accused, on the same day led to the recovery of Sota P.18 from his house which was taken into possession vide memo. Exh. PT. The site plans Exh. PS/1, Exh.PP/1 of the places of recovery were prepared by P.W.8 and site plan Exh. PL and Exh. PL/1 of the place of occurrence was got prepared by Muhammad Ibrahim Patwari. After completing the investigation, the accused were challaned to face the trial.
7. Dr. Muhammad Saleem Arshad PW.1 conducted the post-mortem examination on the dead body of Abdul Hamid on 16-6-1989 and found the following injuries on his person:
(1) Two wounds of entries lying close to each other 1/4 c.m. x 1/4 c.m.
' Going deep and upward on the centre of the upper lip just below the nose.
(2) Wound of entry 1/2 c.m. x 1/2 c.m, going deep on the right side of the face, mandible area 5 c.m.
Below the pinna.
(3) Wound of entry 1/2 c.m. x 1/2 c.m. Going deep 6 c.m. Away from injury No,2 on the medial area.
(4) Wound of entry 1/2 c.m. x 1/2 c.m. 8 c.m. Below and medial to injury No,3.
(5) Four wounds of entries 1/2 c.m. x 1/2 c.m. Each on the right side of the forehead.
(6) Wound of entry 1/2 c.m. x 1/2 c.m. Going deep on the right side of neck, one can. Away from pinna.
(7) Wound of entry 1/2 c.m. x 1/2 c.m. Going deep on the middle of right side of the neck, 6 c.m.
Below injury No, 5.
(8) A multiple wound of entry 8 in number, 8 c.m. x 2 c.m. In an area on the upper part of the right upper arm, lying close to each other.
(9) Multiple wound of entry in an area of 10 c.m. x 4 c.m. On the back;of right shoulder.
(10) 3 wounds of entry close to each other 1/2 c.m. x 1/2 c.m. Each on the front and right upper chest lateral side.
(11) Wound of entry 1/2 c.m. x 1/2 c.m. Going deep on the lateral side of the right chest, mid axillary line.
(12) Wound of entry 1/2 c.m. x 1/2 c.m. On the right lateral chest below 4 c.m. Injury No,11.
' In the opinion of doctor the cause of death was due to shock and haemorrhage, fracture of skull bone and injury to the brain matter. Injury No,1 was sufficient to cause death in the ordinary course of nature.
' On the same day, he conducted autopsy on the dead body of Muhammad Ramzan deceased and found the following injuries on his person:
(1) A wound of entry 2 c.m. x 1 c.m. Going deep on the middle and front of the right upper arm, margin inverted, lacerated and black.
(2) Wound of entry 4 c.m. x 1 c.m. On the front of right elbow, margins inverted and back.
(3) Wound of entry 4 c.m. x 4-1/2 c.m. Going deep on back of the left side of the chest. In its middle margins of the wound inverted.
(4) Wound of entry 1-1/2 c.m. x 1 c.m. On the central front of the chest.
(5) Wound of exit 1 c.m. x 1 c.m. On the front of chest 5 c.m. Below injury No, 4.
(6) Wound of exit 1 c.m. x 1 c.m. Going deep on the right side of chest 7 c.m. Medial to right nipple.
(7) Wound of exit 1 c.m. x 1 c.m. On the front of chest near the right nipple.
(8) Wound of exit 1 c.m. x 1 c.m. Just below injury No,7.
' In the opinion of doctor the cause of death was due to shock and haemorrhage and the injury to the vital organs of the chest, lungs and heart. Injury No,3 was sufficient to cause death in the ordinary course of nature.
' On the same day he also conducted post-mortem examination of the dead body of Thiraj deceased and found the following injuries on his person :
(1) Wound of entry 6 c.m. x 5 c.m. Oval in shape on the front and upper part of chest at the level of left 4th rib which is found fractured.
(2) Wound of exit 1 c.m. x 1 c.m. On the front of chest on the right border of the sternum margins everted and black.
(3) Three wounds of exit lying close to each other on the front part of the right side of chest just near the nipple.
(4) Wound of entry 1 c.m. x 1 c.m. On the medial part of right upper arm, margin inverted and black.
(5) Wound of exit 1 c.m. x 1-1/2 c.m. On the outer side of right arm. Wound is continuous with injury No,4.
' All the injuries were ante-mortem and caused with firearm. In the opinion of the doctor death was caused due to shock and haemorrhage and injury to the vital organ of chest. Injury No,1 was sufficient to cause death in the ordinary course of nature.
' On the same day he conducted post-mortem examination on the dead body of Muhammad Ayyub deceased and found the following injuries on his person:
(1) A lacerated wound 2-1/2 c.m. x 1 c.m. Scalp deep on the top and right side of the head, 10 c.m.
Above the right ear.
(2) Wound of entry 1-1/2 c.m. x 1 c.m. Oval in shape on the front and lower part of the neck, margin black and inverted.
(3) Three wounds of entries lying close to each other on the central part of the neck in an area of 5 c.m. x 6 c.m. Having the size of 1-1/2 c.m. x 1 c.m. Each going deep, margins inverted and black.
' In the opinion of the doctor death was caused due to shock and haemorrhage and injury to the vital organs of the chest. Injuries Nos.2 and 3 were sufficient to cause death in the ordinary course of nature.
' On 15-6-1989 at about 8-10 p.m. He medically examined Mst. Fateh Bibi the injured P.W. And found the following injuries on her person:
(1) A lacerated wound 2 c.m. x 2-1/2 c.m. Scalp deep on the right side of head.
(2) Contusion mark on the back of the left shoulder both simple caused with blunt weapon.
' On the same day he medically examined Mst. Rajan Mai the injured P.W. And found the following injuries on her person:
(1) Lacerated wound 1 c.m. x 1/2 c.m., scalp deep on the left side of forehead, margins black and lacerated.
(2) Contusion mark 4 c.m. x 1 c.m. On the top of left shoulder.
7. Bahawal P.W. 6, complainant of the case and Mst. Fateh Bibi P.W. 7, the injured, furnished the ocular account of the occurrence. They in support of the prosecution story as contained in the FIR while deposing at the trial stated that the appellants and acquitted accused armed with guns and Sota shouting Lalkara attacked the complainant party when they were present in the land subject- matter of the dispute between the parties. Arshad appellant caused fire-shot to Abdul Hamid deceased and Muhammad Ali to Muhammad Ayyub deceased. Similarly Muhammad Iqbal appellant fired at Muhammad Ramzan and Arshad Jat caused fire-arm injuries to Thiraj deceased.
Mst. Fateh Bibi and Mst. Rajan Mai were caused Sota blows by Muhammad Sharif appellant. The P.Ws further deposed that Muhammad Ali appellant managed allotment of half square of the land, earlier allotted in the name of grandfather of the complainant which led to a dispute between the parties and a civil suit was filed by the father of the complainant who succeeded in getting the status quo order issued. The accused party feeling aggrieved of this civil suit and status quo order with the purpose to deprive the complainant party from the possession of the land forming unlawful assembly attacked on the deceased and the P.Ws.
8. All the accused except Iqbal and Arshad Jat are closely related to each other. Muhammad Iqbal and Arshad Jat have close friendly relations with them. Mst. Rajan Mai is the grandmother and Mst.
Fateh Bibi is mother of the complainant.
9. Qazi Muhammad Ayyaz, the Investigating Officer was examined as P.W.B. Dr. Muhammad Saleem Arshad who conducted the post-mortem examination on the dead body of Abdul Hamid, Muhammad Ramzan, Thiraj and Muhammad Ayyub deceased and medically examined Mst. Fateh Bibi and Mst. Rajan Mai appeared as P.W. 1 at the trial. The other witnesses being of formal nature need not to be discussed.
10. All the accused except Arshad appellant denied the allegations in their statement under section 342, Cr.P.C. Muhammad Arshad appellant took the following plea: "The case is false. The fact of the matter is that my father obtained 62 Kanals and one Marla of agricultural land situated in Chak No,111/15 on Five Years Scheme. This land fell within prohibited line as such despite payment of dues the proprietary rights were denied by the District Collector and on an appeal learned Commissioner remanded the case and District Collector, Khanewal, after cancelling the lot falling within the prohibited line ordered the allotment of 91 Kanals 13 Marlas of land situated in Khasra Nos. 100/2-3, 4-5/1, 5/2-6 to 9-12 to 15 lying available as a substitute lot. This lot was previously allotted to Sarja grandfather of Bahawal P.W. But the same was cancelled by the A.C. On 23-6-1979, as the requisite conditions were not fulfilled. The physical possession of the land measuring 91 Kanals 13 Marlas was delivered to my father by the Revenue Officer concerned with the help of police at the spot on 13-5-1989, and necessary entries were made in the relevant record.
' The complainant party got annoyed over the occupation of the said lot by my father and obtained a status quo order from the Civil Court of Khanewal on 17-5-1989 on the basis of misrepresentation and distortion of facts. The complainant party was all out to regain the possession and occupation of aforesaid land at all costs under the garb of said status quo order while we had decided to get a judicial decision from Civil Court, Khanewal on merits through legal procedure.
' It was oil 15-6-1989 that at about noon time when I was present in a room constructed in the aforesaid land while my paternal-uncle Muhammad Shafi and his sister Mst. Aisha were working in Killa No,5 of the said land that Abdul Hamid, Muhammad Ayyub, Muhammad Ramzan and Thiraj alongwith two ladies variously armed arrived there and raised Lalkara that they had come to obtain the possession of the land at all costs and if anybody resisted he would be killed. My uncle Muhammad Shafi and Mst. Aisha got up to resist and repel the forcible occupation of land whereupon the aforesaid assailants pounced upon them. The ladies grappled with Mst. Aisha and the male persons subjected both Mst. Aisha and Muhammad Shafi to a murderous assault and in the process Mst. Rajan and Fateh Bibi also received minor injuries at the hands of their companions. I came out and twice fired in air with a carbine so as to save the lives of Mst. Aisha and Muhammad Shafi and to repel the aggression but all in vain. The assailants shouted that first Arshad (myself) be minused to death and ran towards me. I again fired a shot in front of them so as to scare them away but they accelerated their advance more forcefully shouting that the carbine be snatched and Arshad be done to pieces. I in order to save my life then resorted to firing as a result of which the male assailants fell on and our lives were thus saved and they did not succeed in their designs to obtain forcible occupation by killing us all. I had thereafter apprised the police of the incident and also produced carbine but the police in collaboration with the complainant party set up a false case against us by distorting the real facts."
' The defence in support of the plea raised by Arshad appellant produced Mst. Aisha as D.W.1 at the trial. The learned trial Court while rejecting the defence plea of Arshad, finding the appellants guilty under section 302, P.P.C. Convicted and sentenced them accordingly,
11. Learned counsel for the appellants has contended that the defence version while putting in juxtaposition with the prosecution case appears to be more plausible and near to truth. According to him the land subject-matter of the dispute between the parties was admittedly stood allotted in the name of the appellants much before the occurrence couple with the fact that the possession of the accused party at the spot was proved by Muhammad Ibrahim Patwari P.W.5. Mst. Aisha, sister of Muhammad Shafi, the acquitted accused, who received injuries in the occurrence at the hands of complainant party sufficiently proved the defence plea. There being no positive evidence of the possession of complainant party at the spot and status quo order being not helpful to prove the physical possession of the deceased and P.Ws. Under the garb of that status quo order wanted to establish their possession at the spot which having not been allowed by the appellants, the fateful incident took place. The prosecution could not prove the possession of the complainant of the disputed land on the relevant day which fact essentially created a serious dent in the story of aggression of the appellants to be believed. It was further submitted that the injuries on the person of deceased except Abdul Hamid having marks of blackening indicated that the shots were fired from a close distance whereas according to the prosecution the accused fired from a distance of about 15 Karams. The blackening around the injuries evidently supported the defence version suggesting that Arshad appellant apprehending danger to his life while exercising in the right of self-defence fired at the deceased from a close range otherwise he was not supposed to be spared. He next contended that semi-digested and digested food found in the stomach of the deceased negated the time of occurrence given by the prosecution soon after taking the meal by the deceased. He next argued that non-recovery of weapon of offence from any accused except Arshad and Sharif was a strong circumstance in support of defence plea. He finally argued that there was no fun for the appellants to get forcible possession when they being owners of the land had legal right of the possession of the land but the complainant party to establish the right of possession and claim before the Civil Court anxiously wanted the physical control of the land and to achieve this purpose the complainant party on the fateful day armed with deadly weapons made an attempt to dispossess the appellants party as a result of the learned counsel was to prove the aggression of the complainant side to bring the case within the purview of Exception 2 to section 300, P.P.C.
12. Conversely learned AA.-G. Assisted by the learned counsel for the complainant has argued that the defence plea with the claim of possession over the land in dispute is not substantiated by any cogent and convincing evidence, appealing to mind that four deceased having the design of getting forcible possession would permit Arshad appellant to kill all of them without causing even a slight damage to him. The presence of Mst. Aisha sister of Muhammad Shafi, married at a far-off place, working in the land with her brother also did not advance the defence plea. It is strange that a married lady in the house of her brother as a guest was working in the land without the ladies of the family of appellants.
13. The doctor who examined Mst. Aisha was not produced, resultantly, the factum of her presence and receiving of injuries during the occurrence remained unproved. It is highly imaginative that both Muhammad Shafi and Arshad remained out of the reach of the complainant party and only Mst. Aisha was made target. It is also unbelievable that none from to complainant party despite carrying fire-arms used the same even after opening fire by Muhammad Arshad. It was argued that the possession of the complainant at the spot was proved by the admission of the appellants of issuance of status quo order by the Civil Court and the appellants except the oral assertion did not place on record any documentary evidence in support of their plea of possession. The evidence of Patwari regarding the possession of the appellants without producing the record was not useful to the defence. It was strongly agitated that the appellants after managing the allotment in their favour in order to get the possession of the land committed the aggression and as a result of the resistance by the complainant party three deceased lost their lives. It was submitted that the attempt of forcible possession by the complainant without the allotment in their name could nothing but a foolish step. It has been forcefully argued that the status quo order was issued in the suit filed much before the occurrence and as per defence claim the physical possession was delivered to the appellants on 13-5-1989 whereas the status quo order was issued about 20 days prior to the occurrence, i,e, somewhere near 25th of May, 1989. It is argued that if the complainant party after obtaining the status quo order wanted to enter into the land, this attempt would have been immediately after the issuance of status quo order and not with a delay of about 20 days and further that the appellants did not bring It to the notice of any authority that not the complainant but the appellant party was in possession on the day when status quo order was issued. They concluding their arguments submitted that the four deaths at one time with a large number of injuries could not possibly be happened in the normal course as claimed by the defence.
13. We have considered the arguments advanced by the learned counsel for both sides and carefully gone through the record with their assistance.
14. The case carries two counter-stories containing different versions with admission of taking place of the occurrence in the disputed land. The time and place of occurrence and the cause of clash is not denied. This is an admitted fact that earlier the land in question was allotted in the name of grandfather of Bahawal P.W. 6 who is stated to have made a lot of efforts to bring the sandy land under the cultivation and was entitled for the proprietary rights but it was cancelled for non-payment of the instalment. However, the land in question was allotted to Muhammad Ali appellant and as per evidence of P.W.6, the new allottee was delivered possession about 15 to 20 days prior to the occurrence. The whole controversy between the parties was in relation to establish the right of possession. The defence pleaded that Mst. Aisha sister of Muhammad Shafi while working in the field received injuries as a result of aggression of the complainant party whereas the prosecution case was that Mst. Fateh Bibi and Mst. Rajan Mai, the two ladies of the complainant side received injuries in the occurrence at the hands of appellants. Mst. Fateh Bibi an injured witness while appearing as P.W.7 supported the prosecution case corroborating Bahawal P.W.6 the complainant of the case on all material points. She was medically examined by Doctor Muhammad Saleem Arshad who appeared in the witness-box as P.W.1. The sole question arising in the case would be that which party committed aggression. Normally in such like circumstances, where there is apprehension of armed clash, the ladies are kept away from scene, but participation of ladies of both sides in the occurrence undoubtedly created some confusion beneficial to both sides but this fact alone is not a convincing evidence to draw an inference in favour of defence plea or declare it a free fight. The injuries on the person of Mst. Fateh Bibi and Mst. Rajan Mai were of firearm and blunt weapon which fact negated the defence plea of participation of single accused in the occurrence. The injuries on the person of ladies with different weapons removed all doubt of participation of more than one assailant in the occurrence. It appears from the circumstances that the appellant side after managing the allotment in their favour were anxious to have a physical control over the land whereas the complainant party was making struggle to retain their possession which they were still holding even after cancellation of the allotment in their name.
Undoubtedly, status quo order in favour of the complainant party issued by the Civil Court was regarding to the physical possession at the spot as ownership was not with them. However, no other evidence was available on the record to determine the exclusive possession of the land of an individual party. The delivery of, possession by the Revenue Staff to Muhammad All appellant at the spot was in pursuance of the allotment order in his favour but the question whether the appellant side took physical control of the land remained unproved. The defence has not brought any evidence to ascertain the total area of allotment in favour of Muhammad All and the delivery of the possession to him by the Revenue Staff, if any, was over the whole area or on a part of the land.
However the possession even if delivered to Muhammad Ali would not be a conclusive proof of aggression of complainant party. Mere entry in the land of another, in absence of proof of forcible possession does not provide a right of private defence of the property. Taking the defence plea, if it is assumed that the deceased entered into the land with the intention to occupy the same, the appellants were not justified to take their lives in absence of any overt act on their part either to disturb the lawful possession of appellants or to create apprehension to their lives. The circumstances do not suggest either a forcible occupation of land by the deceased or apprehension of the life of Arshad appellant at the hands of four deceased. It is astonishing that all the four deceased despite having fire-arm with them did not cause a slight damage to the appellants and calmly and quitely surrender themselves before Muhammad Arshad appellant who one after the other caused injuries to all the four deceased. It was unnatural that all the four deceased desisted from using the weapons even at the costs of loss of their lives and consequently the defence story on the face of it was absurd and not appealing to be accepted.
' The nutshell of the above discussion is that the complainant party in order to retain the physical possession resisted the demand of appellant to vacate the land and each party raised controversy for the possession of the land. The desire of the appellant party of exclusive possession with no outside interference and the struggle of the complainant party to retain the possession and establish their claim before the Court instigated the appellant to deal with the complainant side and as a result thereof the accused side to achieve this purpose committing open aggression took lives of the four persons of the complainant party. We, therefore, are of the considered opinion that if being a premeditated occurrence, the findings of the guilt of the appellants arrived at by the trial Court being unexceptionable do not call for interference.
' Coming to the question of vicarious liability and quantum of sentence, we notice that the trial Court convicted each appellant for his individual liability without application of section 149, P.P.C.
The conviction was also not recorded under section 148, P.P.C. The learned trial Court probably having some impression in its mind, that it was a free fight convicted each appellant as per his role played in the occurrence whereas by, application of section 149, P.P.C. Each appellant was responsible for the three murders. Muhammad Sharif having not been convicted and sentenced under section 302, P.P.C. Further clarifies that the trial Court travelled on the basis of individual liability. The State has not preferred any appeal in the case, therefore, at this stage, we do not consider it proper to open this matter suo motu. There is no mitigating circumstance available on record or brought and pleaded by the defence for the lesser punishment. We have also not been able to trace out any C circumstance from record in favour of the appellants for lesser penalty. We accordingly dismiss this appeal maintaining the conviction and sentence awarded to the appellants by the trial Court. The death sentence awarded to the three appellants is confirmed and the murder reference is answered in the affirmative.