1. ' RAJA AFRASIAB KHAN, J.---On 19th of March 1985 at 4-00 p.m., a case under section 302/307/452/148/149, P.P.C. Was registered on the statement of Muhammad Razzaq against Safdar Hayat, Khizar Hayat, the petitioners, Muhammad Aslam, Noor Khan, Muhammad Khan, Muhammad Ayub and Taereen with Police Station Neela, District Chakwal for the murder of Mst. Gahar Bano.
2. Muhammad Razzaq, Mst. Anaran and Mst. Musahib Bano were also injured. The occurrence took place in village Bhakari Khurd. The place of occurrence is stated to be at a distance of 7 miles from the Police Station. A 5- marlas plot situated close to the house of Muhammad Razzaq had continuously been in his use and occupation since the time of, his forefathers. The complainant had been tethering his cattle and keeping manure on it. Safdar Hayat raised a dispute over the plot a few days ago and asked the complainant to vacate it. This demand was not attended to and in consequence, the possession of the plot was not given to the accused. At about 8-00 a.m. On the day of occurrence, Ayub and his son Taereen came with Kassis and started digging the foundations over the plot in question. Noor Muhammad, the father of the complainant raised objection that they had no right to dig the plot. They raised Lalkaras. Muhammad Razzaq was sick and as such, was lying on a cot in his room. His three sisters namely Mst. Gahar Bano, Mst. Anaran and Mst. Masahib Bano were also present. Mst. Gahar Bano was standing in the courtyard while Mst. Anaran was cleaning Bhosa. Mst. Masahib Bano was washing utensils. Safdar Khan and Khyzar Hayat armed with rifle and gun respectively, all of a sudden, forcibly entered the house. Gahar Bano ran to hide herself in the room where Bhosa was stored. Safdar Khan fired a shot which hit her neck. She died on the spot, Khyzar Hayat fired and injured Mst. Anaran. Muhammad Razzaq saw the occurrence while he was standing in the door of his room. He came out to rescue the victims.
3. Muhammad Aslam fired and injured him as well. Dead body of Mst. Gahar Bano was dragged and brought in the street in front of the house. Masahib Bano intervened whereupon she was injured by Noor Khan and Muhammad Khan. Immediately after commission of the offences, the accused left the village and ran away with their cattle and womenfolk. The prosecution produced Nawab Khan P.W.1, Muhammad Nazir P.W.2, Iftikhar Ahmad P.W. 3, Muhammad Akbar P.W.4, Muhammad Iqbal P.W. 5, Muhammad Hayat P.W. 6, Ch. Barkat Ali P.W. 7, Dr. Asghar Hameed Qureshi P.W. 8, Gulbaz P.W.
4. 9, Muhammad Razzak P.W. 10, Mst. Anaran P.W. 11, Mst. Musahib Bano P.W. 12, Irshad Haider Tarrar P.W. 13, Muhammad Basharat P.W. 14 and Lady Dr. Shahzadi Ishtiaq P.W. 15 to support its case.
5. Muhammad Aslam and Ch. Ahmad Khan appeared as Court witnesses. The accused denied the allegations in their statements under section 342, Cr.P.C. Safdar Hayat stated:-- "The fact of the matter is that the plot measuring 5 Marla was owned by my forefathers and was in their possession after the death of Mst. Gami and Muhammad Razzaq (complainant) wanted to take forcible possession of it and on the day of occurrence Muhammad Razzaq (P.W.) wanted to occupy it by force and when my servant Qamar, who had been employed by me a few days before the occurrence, resisted it, Muhammad Razzaq (P.W.) opened fire at him which attracted some partisans of mine and some relations, who also resorted to firing and during the course of this cross-firing by Muhammad Razzaq on one side and the other persons, as mentioned above, on the other side, Muhammad Razzaq (P.W.), Mst. Gahar Bano (deceased), Mst. Anaran and Mst. Musahib Bano (P.Ws.) were injured. The deceased and the injured P.Ws. Were injured in the lane where they were taking shelter behind the corner of the wall of Muhammad Razzaq (P.W.). It is incorrect that I or any other co-accused of this case took any part or were even present at the place of occurrence. During the investigation Muhammad Ayyub and Taereen were declared innocent. As regards the other accused and myself, we produced more than 50 persons in our defence before the Investigating Officer regarding our innocence. The other P.Ws. i,e, Basharat and Noor Muhammad were not present at the time of occurrence. We have been falsely roped in on account of the reason mentioned above and are completely innocent."
6. ' By giving benefit of doubt, learned trial Judge vide his judgment dated 18-11-1987 acquitted all the accused. The judgment of acquittal was challenged by the State by filing appeal. A learned Division Bench of the Lahore High Court Rawalpindi Bench vide its judgment dated 10th of April, 1995 accepted the appeal to the extent of Safdar Hayat and Khyzar Hayat. They were, accordingly convicted and sentenced to imprisonment for life plus fine of Rs,20,000 each under section 302/34, P.P.C. Or in default to undergo two years' R.I. Each. Likewise, they were convicted and sentenced under section 452/34, P.P.C. To three years' R.I. Each. The sentences were ordered to run concurrently. Benefit of section 382-B, Cr..P.C. Was given to them. In case of recovery of fine, it was directed to be paid to the complainant. To the extent of remaining accused, the appeal was rejected by way of abundant caution. Safdar Hayat and Khyzar Hayat challenged the judgment of their conviction and sentence before this Court through Criminal Appeal No, 328 of 1995.
7. ' Learned counsel submits that the judgment of acquittal having been rendered by the trial Judge was warranted in law and as such, the High Court was not competent to interfere because it was based on solid reasons supported by evidence. He argues that the prosecution evidence was not found to be truthful while acquitting Muhammad Aslam and others and as such, same discarded evidence could not be relied upon to convict Safdar Hayat and Khyzar Hayat. It is added that no crime empties/pellets were recovered from the room where Mst. Gahar Bano was done to death.
8. According to learned counsel, possession of the petitioners over the plot was proved and in such a situation, there was no justification for the complainant party to come to dispossess them. The petitioners' party was thus objected to aggression by the complainant party without any legal cause. Learned counsel for the State has opposed the appeal by 'submitting that the judgment of High Court is based on good reasons. A substantial justice has been done between the parties.
9. After hearing the learned counsel for the parties and perusing the record with their assistance, we have come to the conclusion that the impugned judgment is not open to exception. Muhammad Razzaq P.W. 10, Mst. Anaran P.W. 11 and Mst. Musahib Bano P.W. 12 were admitted to have been injured during the incident. Their presence at the spot is, therefore, proved beyond doubt. They have supported the prosecution story out-and-out by saying that it was Khyzar Hayat and Safdar Hayat who trespassed into their house and committed the murder of Mst. Gahar Bano and also caused injuries to them.
10. ' They, therefore, cannot be disbelieved. Irshad Haider Tarrar, S.H.O. P.W. 13 proved that complainant was in possession of the plot which was the bone of contention between the parties. Ocular evidence demonstrated that the complainant party was in occupation of the plot. Site plan Exh.PA at page 174 of the High Court paper book showed that the plot was situated just in front of the house of Muhammad Razzaq. Muhammad Razzaq deposed that he had continuously been in possession of the plot since the time of his forefathers. He had been using the open place to tether his cattle and storing the manure on it. In these circumstances, the High Court came to correct conclusion that the plot was in possession of the complainant party. The petitioners attempted to dispossess the complainant by committing aggression. They had clear motive to dispossess the complainant party from the property by taking the law into their own hands. This was a day-time occurrence. The P.Ws., had no previous enmity with the petitioners. In this situation, there could not be any earthly reasons on the part of the P.Ws., to leave the real culprits in an incident like this and implicate the petitioners falsely. Testimony of Muhammad Razzaq, Mst. Anaran and Mst. Musahib Bano does inspire confidence. It is certainly worth reliance. The minor contradiction here and there in their evidence could not shake the truthfulness of prosecution version. The prosecution succeeded to prove its case to the hilt against Safdar Hayat and Khyzar Hayat on the basis of most truthful evidence. They had committed the murder of innocent Mst. Gahar Bano in cold blood in the prosecution of their common intention. Objection that no empties/pellets were recovered from the place of occurrence was insignificant in nature and as such it could not be given much importance. The place of murder was the room where Bhosa was stored. The pellets of the gunshot might have been mixed in the straw during the attack. Even otherwise, the petitioners, in so many words, admitted that the petitioners' side and the complainant party resorted to firing at each other on the question of possession of the plot. This would prove that the petitioners admitted the occurrence and by implication their presence at the spot. The plea that the plot was in possession of the petitioners and the complainant wanted to forcibly dispossess them, could not be proved by the petitioners. There was, thus, no alternative but to accept the version of prosecution. It was a classic case of misreading and misappreciating the most natural and convincing prosecution evidence. The result drawn by the learned trial Judge from the case which was supported by injured witnesses was, indeed, shocking and perverse on the very face of record. The judgment of acquittal was surely not based upon the principles enunciated by this Court for the safe administration of criminal justice. The High Court, therefore, rightly accepted ,the State appeal by holding the appellants guilty of murder charge to meet the ends of justice. We do no find any substance in this appeal which is hereby dismissed.