MUHAMMAD ASIF JAN, J.---Allah Ditta aged about 27 years, Muhammad Akram aged about 20 years, Abdul Ghafoor aged about 19 years and his younger brother Naseer Ahmad aged about 17 years, were convicted under section 302 read with section 34, P.P.C., by the learned Sessions Judge of Okara vide judgment/order, dated the 30th of June, 1991.
2. Allah Ditta and Muhammad Akram were sentenced to death. A fine of Rs.20,000 each was also imposed and it was ordered that the amount be paid to the legal heirs of Abdul Ghafoor deceased.
In case of default in payment of fine, it was ordered that Allah Ditta and Muhammad Akram shall undergo two years rigorous imprisonment.
3. Abdul Ghafoor and his brother Naseer Ahmad were sentenced to imprisonment for life. A fine of Rs.10,000 each was imposed and it was ordered that in case of default in the payment of fine, both Abdul Ghafoor and Naseer Ahmad shall undergo one year rigorous imprisonment.
However, the benefit of section 382-B, Cr.P.C. Was given to Abdul Ghafoor and Naseer Ahmad.
4. The occurrence took place on the 10th December, 1988, at about 3-00 p.m., in the house of Abdul Ghafoor deceased, aged about 40 years, in village Qila Javand Singh which is about 7 miles from Police Station, Depalpur of District Okara.
5. The matter was reported on the same day at 4-00 p.m., by Ahmad A.I (P.W.8) brother of Abdul Ghafoor deceased, at Police Station Depalpur. The statement of Ahmad A.I (P.W.8) (Exh.P.H.) was reduced into writing by Inspector Muhammad Yamin Khan (P.W.10) who at that point of time was a Station House Officer of Police Station Depalpur.
6. The motive for the commission of this occurrence was that there was a dispute regarding one Marla of land between one Karam Elahi and Ghulam Muhammad alias Goma who are related inter se. Karam Elahi is a brother-in-law of Ahmad A.I complainant (P.W.8). There was a quarrel essentially on account of this disputed land between Mst. Gulzaran Bibi, wife of Ghulam Muhammad alias Goma and Mst. Zohra Bibi, sister of complainant Ahmad A.I (P.W.8) and Abdul Ghafoor deceased. Abdul Ghafoor deceased told both women not to quarrel and slapped both women. Mst. Gulzaran Bibi took this act as a personal insult. She called her son Muhammad Akram (appellant), her brother Allah Ditta (appellant), her son-in-law Abdul Ghafoor (appellant) and Abdul Ghafoor, brother of Naseer Ahmad (appellant).
7. Allah Ditta was armed with a .7 mm rifle (P.4). Muhammad Akram was armed with a double barrel .12 bore gun (P.5). Abdul Ghafoor was armed with a single barrel .12 bore gun (P.6) and Naseer Ahmed was armed with a single barrel .12 bore gun (P.7).
8. This occurrence was witnessed by the complainant Ahmad A.I (P.W.8) brother of Abdul Ghafoor deceased, Muhammad Irshad (P.W.9) and one Muhammad A.I, who was not produced at the trial and was given up by the prosecution as being "unnecessary".
9. Dr. Sagheer Ahmad, Medical Officer, R.H.C. Haveli (P.W.4) performed the post-mortem examination on the dead body of Abdul Ghafoor deceased on the 11th of December, 1988 at 10-00 a.m. And found the following injuries on his person:---
(1) Fire-arm wound in an area of 6 x 5 c.m. In mid line of abdomen, 6 c.m. Below the umbilicus. Five wounds are deep going, four wounds were superficial and did not penetrate abdomen. Four measuring 3/4 x 3 /4 c. m. , one measuring 1 /2 x 1 /2 c. m.
(2) Gun shot wound with wound of entry 1-1/2 x 1 c.m. And with wound of exit 16 x 5 c.m. Involving the upper lobe of right ear, brain matter was coming out from wound, accipital bone was divided into many pieces and some parts were also missing, upper line skin lacerated badly, wound was 2 c.m.
Above the nap of neck, 12 c.m. Posterior from left ear.
10. All the appellants were arrested by Inspector Muhammad Yameen Khan (P.W.10) on the 25th of December, 1988.
The said Police Officer recovered blood-stained earth from the place of occurrence vide memorandum Exh.P.I on the 10th of December, 1988. The said recovery was witnessed by Muhammad Irshad (P.W.9) and one Muhammad A.I who was given up by the prosecution as "unnecessary".
Six crime empties (P.8/1-6) were recovered by the same Police Officer and witnessed by the same persons vide memorandum Exh.P.J. On the 10th of December, 1988.
11. Allah Ditta (appellant) led to the recovery of rifle (P.4) from his house which was taken into possession by the same Police Officer vide memorandum Exh.P.D. This recovery was witnessed by Noor Ahmad (P.W.5).
Muhammad Akram (appellant) led to the recovery of gun (P.5) from his residence which was taken into possession by the same Police Officer vide memorandum Exh.P.E. On the 27th of December, 1988. This recovery was also witnessed by Noor Ahmad (P.W.5).
Abdul Ghafoor (appellant) led to the recovery of gun (P.6) which was taken into possession by the same Police Officer vide memorandum Exh.P.F. On the same day and was witnessed by the same person.
Naseer Ahmad (appellant) led to the recovery of gun (P.7) from his residence which was taken into possession by the same Police Officer vide memorandum Exh.P.G. On the same day and was witnessed by the same person.
12. Six crime empties which were recovered from the place of occurrence on the 10th of December, 1988, were not sent to the Fire Arms Expert till the 27th of December, 1988, and there is no explanation whatsoever for this inordinate delay. Therefore, the only and unavoidable inference that can be drawn is necessarily adverse to the case of the prosecution. Be that as it may, according to the report of the examiner of fire-arms (Exh.P.P.) the finding qua the guns (P.5, 6 and 7) is positive while the finding qua the rifle (P.4) is negative.
13. Killing is admitted by Muhammad Akram (appellant) who pleaded exercise of right of private defence of the body and of property.
"Karam Elahi claimed one Marla of land which was in our possession and was sold to us by Noor Muhammad father of Muhammad Hanif who was murdered by Irshad Ahmad P.W. Ahmad A.I and his brothers and Karam Elahi and Mst. Zahoran conspired together to take the forcible possession of one Marla and to forcibly taken Naseem Begum my sister. Ahmad A.I P.W., Abdul Ghafoor deceased, their brother Zahoor Ahmad, their brother-in-law Karam Elahi and Muhammad A.I, Faiz Muhammad and Hakim A.I their relative came armed with pistols and guns to the Khata of Noor Muhammad which is close to our house and is used as our courtyard. They tried to take the possession forcibly and mother Gulzaran Bibi, my sister Naseem, my sister Moofan, my maternal grandmother Mst. Niamat Bibi, resisted and Abdul Ghafoor and Ahmad A.I and others wanted to take Mst. Naseem forcibly as they claimed her to be their "Mang". Mst. Gulzaran was also beaten by Abdul Ghafoor and others and all the women-folk were insulted. On seeing this I tried to stop Ahmad A.I P.W. And his companions from taking Mst. Naseem but they fired at me but I saved myself by turning aside and the fire hit my maternal grandmother Mst. Niamat Bibi. Abdul Ghafoor tried to fire at me also. I in exercise of the private defence of person and property and to save the honour of my sister and mothers fired at Abdul Ghafoor who died at the spot and Ahmad A.I P.W.
And others ran away. This occurrence did not take place in the house of the deceased but had taken place in disputed Marla in our Khata. The other accused were not present and neither Irshad and Muhammad A.I P.W.s were present .... "
14. No evidence was led in defence
15. Allah Ditta, Abdul Ghafoor and Naseer Ahmad (appellants) pleaded total denial and false implication due to enmity.
16. In view of the fact that the-killing has been admitted by Muhammad Akram (appellant), the case of the prosecution has to be seen in juxtaposition with the defence plea taken by Muhammad Akram, in order to see which out of the two versions seems to be nearer the truth.
17. There seems to be no history of an old enmity or blood feud between the parties except one Marla of land which was an irritant which led to the quarrel between the women-folk.
While the prosecution has produced witnesses who have given an ocular account of the occurrence with consistency, the defence chose not to lead any evidence although, if the counter- version of Muhammad Akram (appellant) was true, then defence evidence was available because according to Muhammad Akram, his maternal grandmother Mst. Niamat Bibi received a fire-arm injury. Yet, the said Mst. Niamat Bibi was not produced at the trial to give evidence.
18. The ocular account provided by Ahmad A.I (P.W.8) and Muhammad Irshad (P.W.9) finds corroboration from the evidence of recovery of weapons from the appellants.
19. Thus, seen in juxtaposition, the case of the prosecution rather than the case of the defence, emerges as being nearer the truth.
20. While Muhammad Akram (appellant) is the son of Mst. Gulzaran Bibi who was slapped by Abdul Ghafoor deceased and Allah Ditta (appellant) is her real brother, the other two appellants, namely, Abdul Ghafoor and his brother Naseer Ahmad who allegedly fired indiscriminately but ineffectively, may well have been roped in falsely and, therefore, by way of abundant care and caution, their appeal is accepted. The conviction of Abdul Ghafoor and Naseer Ahmad (appellants) under section 302/34, P.P.C. And the sentence of imprisonment for life awarded to them is hereby set aside.
21. Considering that Mst. Gulzaran Bibi was slapped by Abdul Ghafoor, her son Muhammad Akram (appellant) and her brother Allah Ditta (appellant) must have been infuriated and felt that this was adding insult to injury. Therefore, the death sentence awarded to Allah Ditta and Muhammad Akram (appellants) is not confirmed. However, their sentence of death is being converted into a sentence of imprisonment for life with benefit of section 382 B, Cr.P.C. The fine imposed upon Allah Ditta and Muhammad Akram (appellants) by the trial Court is also maintained. Death not confirmed.