' These four Criminal Appeals Nos.1000, 1001, 1002 and 1003 of 1992 have been filed respectively by the accused/appellants and are directed against the judgment of the Sessions Judge, Okara, dated 3-11-1992 by which the appellants have been convicted under section 302/34, P.P.C. And sentenced to life imprisonment. The appellants were also fined Rs,10,000 each and in default of payment of fine to further undergo two years' R.I. Each; further have been convicted under section 307/34, P.P.C. And sentenced to three years' R.I. Each and a fine of Rs,3,000 each; in default of payment of fine, each one to further undergo six months' R.I. The fine if recovered is payable to the heirs of the deceased.
2. Briefly, the facts of the case are that Zulfiqar made a statement before the police that he was returning to his house alongwith his son-in-law Asghar Khan and Ashfaq Baloch when all of a sudden (Nawaz armed with .12 bore gun), Asghar son of Wali Muhammad, Muhammad Yousaf son of Balya, Jahangir son of Maula armed with Sotas and Zafar Hayat son of Sardar Muhammad Amin (armed with .12 bore gun) came there and raised a Lalkara that they would teach a lesson for holding a meeting in favour of Mian Muhammad Yaseen Khan Wattoo and casting votes against Ata Muhammad Maneka.
3. Asghar son of Wall Muhammad gave a Sota blow on the right cheek and right temple of Asghar (deceased), Muhammad Yar gave two Sota blows on back side of his right shoulder; Jahangir gave two Sota blows on left knee; Asghar gave a Sota blow on the left temple of Ashfaq alias Feeka when he tried to rescue Asghar All (deceased); another Sota blow was given by Muhammad Yar accused on the nose of Ashfaq P.W. Who fell down. Ithuda Yar son of Abdul Aziz, Muhammad Aslam son of Ameer Khan saw this occurrence who also tried to save the injured but they were also threatened. Asghar Khan (deceased) was forcibly abducted by Asghar, Muhammad Yar and Jahangir accused and was taken inside the Ihata of Sajwar Wattoo. Muhammad Nawaz accused fired at Asghar Khan which hit on left side of his abdomen, the second fire was shot by Zafar Hayat accused and the fire hit Asghar Khan on right side of abdomen. Thereafter, all the accused fled away from the spot. Asghar Khan died as a result of those injuries. Ashfaq alias Feeka was removed to the hospital in a tractor trolley and the police met the complainant enroute to the civil hospital.
Meanwhile Haji Wali Muhammad son of Noor Ahmad and Mian Fakhar Hayat son of Sardar Muhammad Khan also came there.
4. The motive for the commission of this offence is that Asghar Khan (deceased) had held a meeting in his house in favour of Mian Muhammad Yaseen Khan Wattoo and before holding this meeting Asghar Khan (deceased) had been asked by Sardar Muhammad Ameen not to hold that meeting because his son-in-law Mian Ata Muhammad Maneka was contesting election.
5. The prosecution examined as many as 12 prosecution witnesses in support of its version. P.W.1 Zulfiqar is the complainant of F.I.R. And an eyewitness of the occurrence, P.W.2 Khalid Zia, P.W.4 Mujahid Hussain, Head Constable, P.W.6 Jan Muhammad A.S.I., P.W.7 Saleem Ullah are the formal witnesses who fully supported the prosecution version. P.W.3 Muhammad Yar and P.W.12 Raja Mulazim Hussain, Inspector/S.H.O. Are the recovery witnesses; in whose presence the accused/appellants except Zulfiqar accused; led to the recovery of Sota, in the custody of police; from their respective houses Sotas P.6, P.7 and P.8 were taken into possession vide memo. Exhs.P.D., P.E. And P.F. Being lying underneath of cots; while Zulfiqar accused/appellants produced .12 bore gun Exh.P.5 before D.S.P. Who took into possession vide memo. Exh.P.C. P.W.5 Muhammad Ashfaq is an injured eyewitness, P.W.9 Maqbool Ahmad Gill is the Investigating Officer; who recorded the statements of P.Ws.; prepared inquest report etc. And conducted the investigation; P.W.10 Hamid Mukhtar Gondal, S.P.; also investigated the case and found Sardar Muhammad Amin and Zafar Hayat accused (hence acquitted) as innocent; P.W.8 Dr. Muhammad Shabir Suleman M.S. D.H.O.
Hospital performed post-mortem of the deceased while P.W.11 Dr. Nawab Din examined P.W.5 Muhammad Ashfaq injured P.W. And also examined accused/appellant Jahangir and Muhammad Nawaz vide M.L.R. Nos.38/85 and 39/85 respectively and found two injuries on the person of Jahangir; both were examined on 27-2-1985 while Ashfaq P.W.5 was examined on 25-2-1985. The injuries on the person of Jahangir accused were declared simple; injury No,1 was caused by fire- arm while injury No,2 was declared by blunt-weapon; and found four injuries on the person of M.
Nawaz; injury No,3 was declared as grievous and caused by blunt weapon.
6. P.Ws. Muhammad Aslam, Alwara, Noora and Sardar were given up as won over by the accused/appellants while Khuda Yar as being murdered; Siraj Din and M. Aslam were given up as unnecessary on the application of complainant.
7. The statements of the appellants were recorded after the close of prosecution witnesses Wider section 342, Cr.P.C. Who denied the prosecution version and produced Muhammad Pervaiz Rathore, S.S.P. Islamabad as D.W.1 who was posted as A.S.P., Depalpur in 1985-86.
8. I have heard the arguments advanced by the learned counsel for the appellants/accused as well as learned counsel for the State and have gone through the record with their able assistance.
9. The learned Sessions Judge, after its critical analysis came to the conclusion that there was only one witness P.W.1 Zulfiqar against Zafar Hayat accused (hence acquitted) and there was no evidence whatsoever to connect him with the offence charged; further was found innocent by the police too; hence acquitted him by giving him benefit of doubt.
10. The heirs of Asghar Khan deceased moved an application before this Court that the complainant party has compromised with the appellant Jahangir son of Maula accused/appellant and have waived of their right of Qisas, after receiving legal amount of Qisas/Diyat. The statements of legal heirs in individual capacity were recorded by my learned brother Mr. Justice Khalil- urRehman Ramday on 10-7-1993; wherein all the legal heirs and P.W.5 Ashfaq injured P.W., stated that all of them have entered into a compromise with Jahangir appellant only and have received Rs,1,70,000 as Badlay Sulah; which has been divided among the legal heirs according to each share.
11. The learned counsel for the appellants/accused at the very outset conceded that the death of deceased Asghar Khan and occurrence is not denied. The learned counsel vehemently contended that the incident did take place but it did not take place in the manner as alleged by the prosecution and raised following points for consideration:-- #TBS (1) #TBE The injuries on the person of the appellants have been suppressed through out by the prosecution.
(2) The dishonest improvements have been made by the eye-witnesses to fill the lacuna in prosecution case.
' The eye-witnesses as well as recovery witnesses are inter-related and not a single independent witness has been examined by the prosecution and recoveries of incriminating articles have not been proved.
(4) The fact has been proved on record by the defence version as well by the prosecution that the complainant party was the aggressor; which has been ignored by the learned trial Judge and lastly;
(5) The motive has not been proved.
12. Let us examine how far these contentions are worthy of acceptance and to what extent. It would be proper to consider the question of motive to murder the deceased first; in this respect needless to say that there was any motive for the appellants to commit the murder of deceased as the learned trial Judge while discarding the evidence regarding motive observed:-- "Obviously, holding a public meeting and casting vote are two different versions. Maqbool Ahmed Gil, Inspector (P.W.9) has admitted in cross-examination that the occurrence had not taken place due to election. Motive, therefore, remains doubtful."
' Meaning thereby the contention of learned counsel for appellants carries weight as the motive has not been proved beyond any shadow of doubt.
13. The issue raised by the learned counsel that the injuries on the person of appellants Nawaz and Jahangir have been suppressed by the prosecution in the F.I.R. Even during the investigation; gets support from the unimpeachable and confidence inspiring evidence of P.W.11 Dr. Nawab Din; who had examined both the appellants/accused on 27-2-1985 vide M.L.Rs, 38/85 and 39/85 respectively; found two injuries on the person as mentioned above. The eye-witnesses as well as the Investigating Officer purposely suppressed their injuries in an attempt to minimize their role and magnify the roles of appellants in order to get them convicted; this fact also gets support from the statement of P.W.1 Zulfiqar who conceded that he gave blow to Nawaz accused which hit him in his back. It was held in case Lal v. The State 1987 PCr.LJ 659 that evidence of such eye-witnesses who purposely suppressed injuries caused to accused and perjured themselves about motive are not at all witnesses of truth and cannot be relied upon.
14. The contention raised by the learned counsel also carries weight that dishonest improvements have been made by the eye-witnesses; gets support from the statement of Zulfiqar P.W.1 complainant and eye-witness who made lot of improvements; which shows the improvements have been made by him dishonestly; due to this fact, the learned trial Judge while acquitting Zafar Hayat observed that it is difficult to believe the solitary uncorroborated and interested evidence furnished by Zulfiqar complainant.
15. It is an admitted fact as contended by the learned counsel, the witnesses are interested and inimical and there is no independent corroboration through independent evidence. P.W.1 Zulfiqar is father-in-law of the deceased; P.W.3 Muhammad Yar son of Jamal Din admittedly is related to P.W.1 Zulfiqar complainant and P.W.5 M. Ashfaq is the son of P.W.1 Zulfiqar's daughter. The cited witnesses in report under section 173, Cr.P.C.; Zia P.W. Is son of Asghar Ali deceased; M: Yar is admittedly distantly related, and other P.Ws. Cited were from the brotherhood of P.W. Complainant.
Though independent witnesses were available but were purposely withheld by the prosecution on the application of the complainant; meaning thereby, the prosecution did not place the true facts before the Court and on the initiation of complainant withheld evidence which has prejudiced the case of, prosecution. It is admitted that occurrence took place inside the village Abadi of Mauza Jasso Key Dhon where many tribes reside in the village. The voters of complainant village and that of Kot Haji Irshad Khan were admittedly casting their votes in the polling station and none witnessed the occurrence and had shown willingness to join investigation is not understandable while motive has been ascribed as "Election".
16. Similarly, the recoveries of incriminating articles Sotas are not beyond doubt; the place of recovery is situated in thickly populated area; none of respectables of the area had been asked to join to witness recovery proceedings. P.W.3 Muhammad Yar is closely related to the complainant.
Similarly production of .12 bore gun by Zulfiqar complainant belonging to Nawaz accused on 30-3- 1985; after about one month of occurrence before the D.S.P. Is highly doubtful; P.W.3 Muhammad Yar made it further suspicious when he stated that he had been meeting P.W. Zulfiqar till 29-3-1985; P.W. Zulfiqar did not disclose to him that he possessed a gun belonging to Nawaz accused; he only came to know on 30-3-1985 when the P.W.1 Zulfiqar produced before the D.S.P. If one goes through the evidence of P.W.1 Zulfiqar; the story of production of gun belonging to accused Nawaz clearly seems to be false, concocted and highly unbelievable.
17. Let us now analyse the last plea raised by the learned counsel; as per his statement, the death of deceased having been established, the only question is whether it were the appellants who are responsible for his murder and injuries to P.W.5 M. Ashfaq or the complainant party was the aggressor.
18. The plea of self-defence; to prove the existence of circumstances, to bring the case within any of the general exceptions in the P.P.C.; is upon the accused and the Court is to presume the absence of such circumstances. However, the burden of proof as laid down in case M. Akram v. The state 1982 PCr.LJ 1107 in such cases is not of such a high degree as the onus of proof is on the prosecution in a criminal case. The accused is not required to prove plea of self-defence beyond reasonable doubt and the Court is duty bound to decide whether on the basis of evidence on record reasonable possibility exists to such plea being true.
19. The learned trial Judge did not put the case in juxtaposition and ignored the versions of appellants and that of D.W.1; he based the conviction on the ground that the appellants received injuries during the occurrence; were present in the house of Sajwara Wattoo where they had to do nothing with that house and were armed.
20. Muhammad Pervaiz Rathore D.W.1, S.S.P., Islamabad, who was posted as A.S.P. Depalpur during the occurrence deposed that investigation of the case in hand was entrusted to him; he found that Nazar Hussain son of Zulfiqar complainant was murdered in the year 1984; F.I.R: 'No,330 was registered at Police Station, Depalpur against Atta Muhammad and others; on the day of occurrence the said Atta Muhammad etc. Came to the village Jassokey Dhon for casting their votes; after casting of votes were sitting in the house of Sajwara Wattoo and left the house after some time. The deceased party went to the house of Sajwara Wattoo to wreak the vengeance of murder of Nazar Hussain; where hot words were exchanged between the deceased party and M.
Nawaz accused/appellant.
21. D.W.1 in his statement deposed that Muhammad Nawaz and Jahangir accused were injured as result of scuffle which had taken place there and they had received injuries at the hands of deceased and his companions. He further deposed that it came to his notice that Muhammad Nawaz and Jahangir accused took shelter in a room of a house whereupon a member of the party of the deceased climbed over the roof of that Kotha and started digging the roof top in order to put it to arson to murder Muhammad Nawaz etc. It was also found in his investigation-that the deceased party were the aggressor who had gone to make assault on Muhammad Nawaz etc. To take the revenge of Nazar Hussain deceased.
22. The version of D.W.1 gets support from the statement of P.W.9 Maqbool Gill, Inspector who deposed that during his investigation it was brought to his notice that Ashfaq P.W. Had climbed over the roof top of the house of Sajwara Wattoo and had tried to dismantle the roof of his Kotha and had tried to put it on fire. He also conceded that during the spot inspection of the place of occurrence inspected the roof top of the Kotha of Sajwara Wattoo and found that 10/12 Tappas with Kassi of digging the roof of the Kotha were there and he has recorded that fact in his inspection note Exh.D.E. He also deposed that it transpired to him during investigation that Zulfiqar All complainant having learnt about the presence of Shah Muhammad Baloch and Ata Muhammad Baloch in the house of Sajwara Wattoo, went to the house of the latter. It was also transpired during his investigation that Zulfiqar etc. Attacked Ata Muhammad Baloch and Shah Muhammad Baloch in the house of Sajwara Wattoo where they took shelter in the Kotha of the house of occurrence and bolted the door from inside; thereafter Ashfaq Ahmad injured climbed over the roof top of the Kotha of Sajwara Wattoo and tried to dismantle the roof of the Kotha. Similarly he conceded that this occurrence had not taken place due to the elections but in fact this occurrence of murder took place due to the previous murder of Nazar Hussain son of Zulfiqar complainant. The version of D.W.1 further gets support from P.W.10 Hamid Mukhtar Gondal, S.P., C.IA., Lahore who during that period was posted as D.S.P. Headquarter, Okara in 1985 wherein he conceded that Asghar deceased suspected that Shah Muhammad etc. Were sitting in the Ihata of Sajwar with whom they had enmity. He deposed that during his investigation the story of ' injuring Asghar deceased at a different place and then taking him to Ihata of Sajwara was found false, hence he recommended that section 365/148/149, P.P.C. Should be deleted due to his abovesaid finding. He further conceded that there was open fight in the Ihata of Sajwara between the parties and there was no provocation from the accused side.
23. It is manifestly clear that occurrence took place in the Ihata of Sajwara and the story of prosecution of injuring Ashfaq Khan deceased at a different place and then taken him to Ihata of Sajwar as narrated by the complainant is totally false and concocted one.
24. There are apparent reasons on the record supporting the appellants' case; undoubtedly the appellants were injured and their injuries were suppressed. The origin of fight is clear that the complainant party had gone to the house of Sajwara Wattoo to wreak the vengeance of murder of Nazar Hussain from Ata Muhammad and others who were reported to be present in the house of Sajwara Wattoo.
25. I am of the view that the complainant party was the aggressor and the appellants used their right of self-defence. It is for the prosecution to prove its case beyond any shadow of doubt and conviction of the appellants based on their statements under section 342, Cr.P.C. Is not tenable in law. It seems to me that this became really a case of no evidence and the conviction of the appellants, therefore, cannot be sustained, in the face of the finding that the learned Sessions Judge acquitted Zafar Hayat co-accused of the appellant on the same evidence and appellants were convicted; the prosecution witnesses in the case put forward by the prosecution are closely related to each other and had not told the truth on material points and suppressed the real facts and were, therefore, not worthy of credence. There is nothing in the evidence on record to rebut the suggestion made by the appellants that they were the victim during the incident and the complainant party was the aggressor.
26. Thus, where a person is otherwise justified in using force to defend his property against an unlawful aggression, he does not lose this right if he prepares and then exercise it.
27. Once the evidence of the prosecution has been rejected as unreliable acquitting co-accused and convicting the appellants is against the law laid down by their Lordships of Supreme Court in case Mehrban Shah v. The State 1969 SCM R 839 wherein it was observed that it was not open to learned Judges that after rejecting the prosecution evidence as unreliable, to dissect accused's statement and accept it in part; it is an elementary principle of criminal jurisprudence that the prosecution must prove its case. The accused is presumed to be innocent until his guilt is established beyond all reasonable doubts.
28. For all what has been discussed above, I am of the view that the appellants have committed no offence and whatever they acted they did in self- defence. In the circumstances, I am constrained to allow these appeals and set aside the conviction and sentences of the appellants. Since the appellant of Criminal Appeal No,1000 of 1992 is already on bail, his bail bond shall stand discharged and the other three appellants be released forthwith if they are not required in any other case.