' The appellant was tried along with 11 others by Additional Sessions Judge, Lahore for forming an unlawful assembly, committing rioting, criminal trespassing and committing the murder of Anwar.
Eleven co-accused of the appellant were acquitted by the trial Court while he was found guilty under sections 302, P.P.C. And 447, P.P.C. For. The commission of offence under section 302, P.P.C.
The appellant was sentenced to life imprisonment and to pay a fine of Rs,20,000 or in default of payment to undergo further R.I. For 2 years. The fine if realised was ordered to .Be paid as compensation to the legal heirs of the deceased in equal share and was sentenced to undergo 3 months' R.I. And to pay fine of Rs,500 or in default to undergo 10 days' R.I. For commission of offence under section 447, P.P.C. Both the substantive sentences were ordered to run concurrently. He was given benefit of section 382-B, Cr.P.C.
2. Case F.I.R. No,246/90 was registered at Police Station Kahna, Lahore on the basis of statement made by Karam Din son of Mahtab Din to Shahadat Ali, A.S.-I. At 9-00 a.m. On 25-7-1990 while the Police Officer was on patrol duty and was present at Mousa Asal. In his statement Karam Din had stated that he alongwith his brothers and children was resident of Mouza Islampura and was engaged in cultivation. In the year 1977 one Mst. Iqbal Begum daughter of Hussain Bukhsh caste Jat sold out 22 Kanals and 3 Marlas of land being Khasras Nos.1666, 1667, 1668 and 1677 situated in Chak Asue to the complainant which was being cultivated by Taj Din. He had filed a suit for ejectment in the Revenue Court which was decided in his favour on 20-5-1990 and in consequence of ejectment order Muhammad Siddique Gardawar and Muhammad Riaz, Patwari had delivered the possession of the said land to him on 26-5-1990. On the day of occurrence he was irrigating the piece of land where chilli crop had been sown and his brother Anwar Ali and Niaz Muhammad resident of District Sheikhupura were sitting with him when Taj Din accused armed with Taqwa, Mehraj Din armed with Taqwa, Manna armed with Dang, Billu armed with Dang, Hanif armed with Dang, Muhammad Sharif alias Jaggi armed with double-barrel gun, Aziz Ahmad (appellant) armed with .12 bore .Gun, Latif armed with .7 mm rifle, Rashid armed with double-barrel gun, Rafique armed with single-barrel gun and Faqir Muhammad armed with revolver came there raising Lalkaras at about 6-30 a.m. That they would teach them a lesson for obtaining possession of the land and started dragging Anwar Ali out of the land where chillies were sown and took him to the Kacha thoroughfare where Aziz fired hitting Anwar Ali in his chest. Anwar All expired at the spot.
Niaz Ahmad and the complainant tried to pick up Anwar Ali deceased but were fired at and they had to run away for their lives. The occurrence, according to the complainant, was also witnessed by Sohail Ahmad Khan resident of Lahore who was a passerby.
3. After recording the statement Shahadat Ali, A.S.-I. Sent Fard Bian to the police station for formal registration of the case through Rehmat Ali, Constable. He went to the spot and inspected the same and prepared site plan, injury statement and inquest report of the deceased and also collected bloodstained earth from the spot, made the same into a sealed parcel and secured the same. Two empty cartridges were also picked up by him from the spot and secured vide memo.
Both the empties were also sealed into parcel. The dead body was des-patched to the mortuary through Ijaz Hussain, H.C. For postmortem examination. He recorded the statement of the P.Ws. At the spot and delivered the sealed parcel to the Moharrir for safe custody. Next day last-worn clothes of the deceased were produced before him which he secured vide memo witnessed by Ijaz Hussain, H.C. A sealed phial was also produced before him and was similarly taken into possession.
The clothes and the sealed parcel were delivered by him to the Moharrir.
4. On 29-5-1990 the investigation was taken up by Javaid Asghar, S.-I. He arrested Rashid, Hanif son of Muhammad Din, Hanif son of Khushi and Muhammad Din, Taj Din and Mehraj Din on 5-6-1990.
On 7-6-1990 recoveries were effected from acquitted accused which are not material for the disposal of the present appeal. On 14-6-1990 he arrested Abdul Aziz appellant and some of the remaining accused.
5. Abdul Aziz accused/appellant led to the recovery of double-barrel gun on 20-6-1990 which was made into sealed parcel and secured vide recovery memo and a rough site plan was also prepared by the Investigating Officer Muhammad Shafique and Rashid were arrested on 18-6-1990.
The Investigating Officer prepared the final report under section 173, Cr.P.C. And filed the same in the Court. The accused were sent up to stand their trial before the Court of Session by the Magistrate having jurisdiction in the matter.
6. The trial Court framed charges against all the 1,2 accused under sections 148, 447/149, 302/149, P.P.C. On 25-9-1991. Charges were explained and put to the accused who pleaded not guilty and claimed trial.
6-A. At trial Aman Ullah, A.S.-I. P.W.1 stated that on receipt of Fard Bian Exh.P.A. He had correctly recorded the formal F.I.R. Exh.P.A./1. Iqbal Hussain, H.C./P.W.2 stated that on 27-5-1990 he was handed over dead body of Muhammad Anwar which he escorted to the mortuary for the post- mortem examination. On the next day and after the post-mortem examination Medical Officer delivered to him last-worn blood-stained clothes of the deceased Saluka P:1, Shirt P.2 and Dhoti P.3 which he produced before Investigating Officer who secured the same vide memo. Exh.P.B. He was also delivered a sealed phial P.4 containing 8 pallets, by the Medical Officer which he had also produced before the Investigating Officer who secured the same vide memo. Exh.P.C. Muhammad Hussain, Constable P.W.3 stated that on 3-6-1990 Abdul Ghafoor Moharrir P.W. Delivered to him sealed parcel said to contain blood-stained earth and he took the same to the office of the Chemical Examiner and delivered the same intact. Amir Ali, Patwari P.W.4 on the direction of Javaid Akhtar, S.H.O. Visited the spot on 4-6-1990 and on the pointation of the witnesses he prepared site plan Exh.P.D. And Exh.P.D./1. He had shown Khasra number in red ink and the drawing in black.
Karam Din appeared as P.W.5, Niaz Ahmad as P.W.6 and Sohail Ahmad as P.W.7. Evidence of P.W.5 and P.W.6 shall be considered while discussing the plea of the accused.
7. Sohail Ahmad P.W.7 was named as eye-witness in the F.I.R. And it was mentioned therein that he was a passerby. In his statement P.W.7 stated that he had gone to see the land of one Manzur in village Saraich who had expressed his desire to sell the same through him. The witness was a Property Dealer. After seeing the land he was returning and he was at a distance of 25/30 feet from the place of occurrence when he saw all the 12 persons present in Court, with their respective weapons. P.W.7 is resident of 11 Garden Town, Lahore and the occurrence took place in the land situated in Mouza Chanandin Wald. He was a chance witness and admittedly had not known the accused previously. He admitted that he did not know the accused before the occurrence and that he did not identify them in any identification parade.
8. Muhammad Siddique P.W.8 had joined the investigation and stated that in his presence Abdul Aziz accused while in custody led to the recovery of double-barrel gun P.6 from his residential house. Recovery memo. Exh.P.E. Was prepared and he alongwith Boota P.W. Attested the memo. He was also witness of recoveries from other accused.
9. Muhammad Javaid P.W.9 was the son of the first informant. He stated that on the day of occurrence he was present at Chanandin Wala and reached the spot on hearing of the occurrence. .Police came to the spot, collected bloodstained earth, sealed the same into parcel and secured vide memo. Exh.P.H. Two .12 bore empties P.9/1-2 were collected from the spot by the Investigating Officer, were sealed into a parcel and secured vide memo. Exh.P.J. He had signed the recovery memos. Alongwith Nazir Ahmad as witness. He was also marginal witness of memos.
Exh.P.B. And Exh.P.C. Liaqat Ali P.W.10 was a butcher and resident of Teepu Block, Model Town, Lahore.
He was a witness of recoveries from the acquitted accused. Muhammad Riaz P.W.11 had identified the dead body of Anwar Ali at the time of post-mortem examination. Javaid Asghar, S.-I. P.W.12 had arrested all the accused and recovered the alleged weapons of offence from other accused and Abdul Aziz appellant who had allegedly led to the recovery of gun P.6 which was taken into possession vide memo. Exh.P.E. He completed the investigation and prepared final report under section 173, Cr.P.C. Shakeel Ahmad, S.-I. P.W.13 had partly investigated the case and had allegedly recovered 5 live bullets of .7 mm from Muhammad Latif acquitted accused and secured vide memo. Exh.P.G.
10. Dr. Tajamul Hussain P.W.14 While posted as, Denionstrator in the Department of Forensic Medicine K.E.M.C., Lahore conducted post-mortem examination on the dead body of Anwar Ali deceased. He found blood-stained shirt, Salooka and Dhoti on the dead body. He had found the following injuries on the dead body of Anwar Ali which was identified by Muhammad Riaz P.W.11:-- "(1) Multiple fire-arm wounds of entry 9 in number oval in shape with an average diameter 0.7 c.m. x 0.7 c.m. In an area 7 c.m. x 7.5 c.m. On lower right chest and upper abdomen 8.5 c.m. Below right nipple 2 c.m. To the right of mid line 17 c.m. To the right and above of umbilicus. "
' The injury in hive opinion was ante-mortem and was caused by fire-arm. It had caused damage to right lung and liver resulting in profuse hemorrhage and shock which was sufficient to cause death in ordinary course of nature. Probable time between injury and death was within few minutes and between death and post-mortem was 12 to 24 hours. He sealed recovered pellets in phial and handed over all the documents, last-worn clothes of the deceased and the sealed phial to the police officials. Exh.P.Q. Was correct carbon copy of the postmortem report prepared and signed by him whereas Exhs.P.Q./1 and 2 were diagrams of injury.
11. Shahadat Ali, A.S.-I. P.W.15 had recorded Fard Bian, proceeded to the spot, inspected the same, prepared injury statement Exh.P.S., inquest report Exh.P.T. And rough site plan Exh.P.R. He had secured blood-stained earth vide memo. Exh.P.H. And two empties vide memo. Exh.P.J. He had taken into possession last-worn clothes of the 'deceased, as produced before him by P.W.3, vide memo.. Exh.P.B. And sealed phial Exh.P.Q., vide memo. Exh.P.C.
12. The D.D.A. Produced report of the Chemical Examiner P.U. And report of Serologist P.V. And closed the case of the prosecution.
13. The Court examined Riaz Hussain, Patwari as C.W.1 on 4-6-1992. He produced copy of report of Roznamcha No,232, dated 26-5-1990 as Exh.C.W.1/A and report of his Gardawar as C.W.1/B. The learned defence counsel had objected to the production of the documents on the ground that the accused had no notice of the documents and the accused were likely to be prejudiced in their defence. The trial Court overruled the objection on the ground that the witnesses were summoned as Court-witnesses to ascertain issue of the possession of the land in dispute and offered the opportunity of cross-examination to the D.D.A. And also to the learned defence counsel. The learned D.D.A. Brought on record, for the first time, the proclamation by beat of drum and by the loudspeaker of the mosque to procure the attendance of Taj Din etc. Which was mentioned in report No,231 through cross-examination. C.W.1 however, admitted that Taj Din etc. Had not participated in the proceedings of delivery of possession. He stated that the disputed land was lying vacant and there was no crop Standing in the land. This was a contradiction of the statement of P.W.5 that chilli crop, grown in land, was being irrigated at the fateful time. He stated that no Javi cut was lying there. During the cross-examination by the learned defence counsel he stated that he had not brought the register of Khasra Gardawari of Kharif, 1989 and Rabi, 1990. As to why this witness failed to bring the register of Khasra Gardawari relating to the crops sown or harvested during the days of occurrence is taken as nothing but out of mala fide on the part of the prosecution and due to interestedness of this C.W. It appears that this Patwari was himself responsible for irregular proceedings. No proclamation was made, which was mandatory, after the delivery of possession in such proceedings. As to why he was not asked to prepare the site plan of the place of occurrence, which was situated within his jurisdiction, and why Amir Ali, Patwari of another circle was imported to prepare the site plan has gone askance. Even it is believed that whatever he stated was a gospal truth the same was of no support to the story about the delivery of possession to the complainant.
13-A. The collection of evidence was the function of the investigation and not that "of the Court" against the accused persons in a case of murder which had been subjected to various investigations. The complainant had claimed possession of land at the time of occurrence. No evidence was produced before or collected by the Investigating Officer. The trial Court summoned the C.Ws. On the application of the prosecution when the accused had claimed the transfer of possession and the prosecution had, till that time, failed to prove the same. The summoning of this witness by the trial Court amounted to filling in the lacunae in the case of the prosecution. The trial Court had acted beyond its jurisdiction in collecting evidence against the accused which was not collected or produced by the prosecution. The trial Court. Was supposed to dispense justice to both the parties and not to the prosecution alone. The trial Court has not only failed in his duty to act as an independent Judge but also indulged in uncalled for practice of summoning witnesses as Court-witnesses and bringing on file the documents of which the accused had not been put to notice. The trial Court acted perversely in allowing the production of documents Exh.C.W.1/A and Exh.C.W.1/B. A prejudice was caused to the accused who have long been considered as the favourite child of law.
14. The evidence of Muhammad Siddique C.W.2 did not advance the case of the prosecution any further. He admitted that according to the entries in Register Khasra Gardawari for Rabi 1990. Javi crop was sown by Muhammad Din and Taj Din in Khasra No,1667 and 1668 and in Khasra No,1666 Barseem crop was grown and in Khasra No,1677 self-cultivation was recorded and Javi crop was grown.
15. All the accused were examined under section 342, Cr.P.C. The acquitted accused pleaded innocence whereas the appellant took up the plea of self-defence of his person and his property.
He stated that his grandfather was the tenant of the land owned by Mian Iftikhar-ud-Din family since 1947, and due to the Land Reforms introduced by President Muhammad Ayub Khan his father Muhammad Din and uncles Taj Din and Mehraj Din got ten and a half acres of land due to the said land reforms. Karam Din and his three brothers purchased 90 acres of land from Mian Mahmood a relative of Mian Iftikhar-ud-Din some 15 years ago. The complainant party wanted to grab this land.
Litigation started. The attempts of the first informant to grab the land with the collusion of Consolidation Staff also failed when M.B.R. Rescinded the scheme. He had harvested Javi crop and had also purchased and stocked Javi worth Rs,3 lacs. Anwar Ali deceased, on the day of occurrence, came to the spot accompanied by 2/3 vagabonds and tried to take forcible possession of the land, destroying the stocks of Javi valuing Rs,3 lacs, fired at him twice. He had taken shelter under the cover of Javi stakes. When Anwar Ali was reloading his gun he found himself placed in such a situation which could result in his death, loss of his property and possession of land and fired once in self-defence. He alleged mala fides against the police and consolidation staff and alleged fabrication of record. He also stated that the stacks of Javi were, later on, put to fire by complainant party and brought on record copy of F.I.R. No,484/90 through Muhammad Tufail, A.S.-I. Who was summoned and appeared as D . W .1 .
16. I have heard the learned counsel for the appellant who has taken me through the record of the case. I have also heard the learned counsel appearing on behalf of the State and Mr. Hussain Aziz, Advocate appearing on behalf of the complainant.
17. In a case where there was a plea of self-defence the prosecution was still required to prove its case against the accused and as such the prosecution was obliged to prove that accused were evicted from the land in accordance with law and that the accused had the knowledge that the possession was delivered to the first informant. P.W.5 made the statement that the possession was delivered to him a day before the occurrence which allegedly took place at about 6-30 a.m. On 27- 5-1990.
18. To bring home the guilt of the accused it was the duty of the prosecution to prove that the possession of the land was delivered to the first informant in accordance with law and that the accused who were admittedly in possession before the alleged dispossession, had the knowledge of the same.
19. The prosecution failed to prove that the accused party was dispossessed/ejected in accordance with law. It has already been observed that the prosecution failed to prove the same and have also been discussed and disapproved the attempt by trial Court to fill in the lacunae,
20. The document Exh.C.W.1/A appears to be fake and fictitious and is disputed by entries in Register Khasra Girdawari as admitted by C.W.2. It has been asserted that the land at site was vacant whereas the first informant alleges that he was irrigating chilli crop sown in the said land at the time of occurrence. The P.Ws. Have not claimed that they had sown chilli crop during the only night that intervened between the alleged dispossession and occurrence. The report Exh.C.W.1/A, even if believed, relates to the arrival of revenue authorities to deliver possession to Karam Din.
There is no document on record of the case which could prove that possession, in fact, was transferred after Exh.C.W.1/A. The Rules and Land Administration Manuals and instructions issued by Financial Commissioners/B.O.R. From time to time in this, behalf provide for the incorporation of factum of change of possession and proclamation thireof in the estates and payment of compensation of standing crops to the tenant and wages to the Chaukidar making proclamation.
Rule 13 of the Land Revenue Rules, 1968 issued under West Pakistan Land Revenue Act, 1967 was also relevant. The High Court Rules and Orders were made applicable in case of ejectment.
21. Notwithstanding the above it was also mandatory for the prosecution to prove the knowledge of the accused of their dispossession. They were admittedly not present at the time of alleged ejectment proceedings. There was no public notice/proclamation after the ejectment proceedings and as such it is held that the appellant had no notice of his alleged dispossession on 26-5-1990 and he was justified in claiming to be in possession of the disputed land in the morning of 27-5- 1990.
22. The recovery of P.6 from the appellant was also of no help to the prosecution. Two empties P.9/1-2 were recovered from the spot. Neither the empties collected on 27-5-1990 from the spot nor gun P.6 were sought to be wedded to each other. The prosecution is silent as to why the material evidence so collected was not sought to be wedded and thus prove the use of gun P.6 by the appellant. There may be truth in the statement of the appellant under section 342, Cr.P.C. That empties were of the shots fired by deceased and was thus a circumstance supporting the plea of self-defence taken by the appellant. Reliance may be placed on Muhammad Arshad v. State 1994 M LD 1258 and Zahid alias Zadoo v. State 1994 PCr.LJ 2000.
23. It is now a settled principle of criminal jurisprudence that in such cases the Courts, deciding the matter, are to place the version of the prosecution and that of the plea of self-defence in juxtaposition and to see which of the two was more plausible.
24. Karam Din P.W.5 and Niaz Ahmad P.W.6 were interested witnesses. Niaz P.W.6 belonged to District Sheikhupura and was a chance witness. Sohail P.W.7 too is a chance witness. He is neither truthful nor trustworthy and had no plausible reason to be present at the place of occurrence at the relevant time. His deposition does not inspire confidence and rather is manifest with mis- statements and material improvements with motive and is, therefore, excluded from consideration.
24-A. The trial Court did not believe the P.Ws. Regarding 11 out of the 12 accused persons who were acquitted. The said P.Ws. Have stated that they had run away for their lives and such behaviour on the part of P.Ws.5 and 6 suffered from intrinsic inconsistencies and the allegations that the deceased was dragged out of the field was not supported by medical evidence and no mark or scratch was found on the dead body. Sohail P.W.7 named all the twelve accused and gave details of their respective weapons although he did not know the accused earlier to the occurrence. All the circumstances reflect upon the prosecution case. Reliance is placed on Rehmat and others v. State PLD 1959 SC 109, Muhammad Aslam and others v. The State 1988 SCM R 940, Masood Anwar v. The State 1994 SCM R 6 and Gullu alias Gul Muhammad v. The State 1994 PCr.LJ 1631.
25. The prosecution evidence and specially ocular evidence was not free from taint and malice and the same was not corroborated by any independent evidence, not even by recovered empties from the spot. There was admitted enmity between the parties over possession and chain of litigation was admitted. There is possibility and truth in the statement of the appellant that the occurrence was not witnessed by the P.Ws. And the first informant threw too wild a net and roped in as many as 12 persons as accused for a single injury to the deceased and in the circumstances the story of the prosecution as narrated by P.W.5, P.W.6 and P.W.7 was doubtful and the appellant is entitled to the benefit of doubt. Reliance may be placed on Abdul Rashid v. Umid Ali and others PLD 1975 SC 77, Khalil Ahmad alias Khalil and another v. The State 1975 SCM R 442, Nawaz Ali and another v. The State 1981 SCM R 132, Abdul Ghafoor v. The State 1982 SCM R 162, Ahmad etc. v. The State 1982 SCM R 1049, Bagh Ali v. Muhammad Anwar and another 1983 SCM R 1292.
26. Coming to the plea of self-defense of person and property taken by the appellant, he was the judge of his own danger and law permitted him to repel the danger and protect himself and his property even to the taking of life. This plea cannot be weighed in golden scale and in Ghulam Murtaza v. State 1993 PCr.LJ 1646 their Lordships were of the view that the version of the accused was to be accepted if the same appears to be reasonably possible in the circumstances of the case In Muhammad Akram v. The State 1993 PCr.LJ 1333 the right of accused to go even to the extent of causing death of the other who endangers his life and, property was accepted. Reliance may be placed on Jamal Din's case 1971 SCAR 800. In Liaqat v. The State 1994 SCM R 1161 their Lordship in the Supreme Court acquitted the appellant who. Appeared to have been .So situated that he was not in a position to effectively exercise the right of private defence without risk of harm to those who are near or .Around his father including two deceased persons who had admittedly come there in the meantime, after hearing the alarm. .
' The principle enunciated in the above-referred citations make out a case of exercise of right of self-defence of person and property available to the appellant. Reference may also be made to Shamir alias Shamla v. The State PLD 1958 SC 242.
27. In view of the above discussion it is held that the prosecution failed to prove its case beyond reasonable doubt and the circumstances of the case have supported the plea of self-defence of person and property which is available to the appellant under section 100 and under section 106, P.P.C.
28. The appellant is given the benefit of doubt as the prosecution has failed to prove its case beyond shadow of reasonable doubt. He is also held entitled to the right of self-defence of person and also self-defence of property in the circumstances of the case. The appeal is allowed. The conviction of the appellant as recorded by Additional Sessions Judge, Lahore vide impugned judgment is set aside and the appellant is acquitted of the charges under section 302, P.P.C. And under section 447, P.P.C.
29. The appellant is present in Court. He is on bail. He is discharged from the bail bonds.