1. ' RAJA AFRASIAB KHAN, J.---On 19th of March, 1989 at 2-00 a.m, a case under section 302/436/148/149, P.P.C. Was registered on the statement of Sharaf Din with Police Station Saddar, District Bahawalnagar against Ahmad Yar, Muhammad Yar, Muhammad Siddiq, Muhammad Ayub, Muhammad Nawaz, Qadir Bakhsh and Jahanan for the murder of Gulab Ali and causing injuries to Ghulam Muhammad and Sher Muhammad. Sharaf Din, the complainant stated that his father, Sardar Muhammad and Qadir Bakhsh were real brothers. They owned 106 acres of agricultural land situated in Mauza Bahadurka Sharqi. About 15 years ago, the said brothers had partitioned their land according to their shares. After the death of Sardar Muhammad, the father of the complainant, his land was distributed amongst his sons. In 1988, the agricultural land of the village in question was consolidated. One square of land in one Khata and the remaining in the other Khata was given to the complainant in accordance with the consolidation scheme. After consolidation, possession of the land was handed over to the parties. Qadir Bakhsh the uncle of Sharaf Din and his five sons had serious objection to the allotment of land in the above manner.
2. They, therefore, wanted to take forcible possession of 11 Killas of the land. The complainant resisted and refused to give possession of the aforesaid land to them. The complainant had already sown wheat etc. On the land. They had built a Jhuggi in Killa No,10. They had been living alongwith cattle in the said Jhuggi. During the night of occurrence, Gulab Ali, Ghulam Muhammad, Sher Muhammad and Zaman were sleeping in the Jhuggi. At about 11-00 p.m, Qadir Bakhsh, Ahmad Yar, Ayub., Siddiq, Muhammad Yar and Nawaz armed with guns reached the spot. They indulged in indiscriminate firing upon the complainant party without any provocation. They also set the Jhuggi of the complainant on fire. The inmates came out of the Jhuggi whereupon, Ahmad yar fired at Gulab Ali which injured his right thigh. Muhammad Siddiq, Ayub and Nawaz caused injuries to the deceased with the butts of their guns. Ghulam Muhammad and Sher Muhammad came forward in order to save the life of Gulab Ali. They were also injured by the assailants. The complainant, the women and the children ran away towards the wheat crop to save themselves. In the_meantime, Zaman P.W. Fired, in the exercise of his right of self-defence. The assailants were recognized by the P.Ws. Through the flames of fire and the moon light. Gulab Ali died on the spot. During the trial, prosecution produced Ghulam Mustafa P.W.1, Mansoor Ahmad P.W.2, Muhammad Ajmal P.W.3, Liaqat Ali P.W.4, Sharaf Din P.W.5, Ghulam Muhammad P.W.6, Muhammad Munir P.W.7, aeed Ahmad P.W.8, Bashir Ahmad P.W.9, Dilshad Ali Khan P.W.10 and Shehbaz P.W.11 and closed its case. Eye- witness account was provided by Sharaf Din P.W.5 and Ghulam Muhammad P.W.6. The accused denied the allegations levelled against them in their statements under section 342, Cr.P.C. A statement was made by Qadir Bakhsh which was adopted by the appellant. The said statement reads as follows: "In fact that complainant party wanted to get forcible possession of I 1 Killas in dispute including Killa No,10, the place of occurrence for which I had filed an appeal before the Additional Deputy Commissioner, Consolidation, Bahawalpur, which was pending and status quo order had been issued in my favour. Few weeks prior to this occurrence also complainant party tried to take forcible possession of the land in dispute after getting arrested my sons in criminal case under section 302, P.P.C., possession while they were armed with deadly weapons and they were 16 number as result of which my three sons received fire-arm injuries. They set my Jhuggi on fire and destroyed all my other belongings lying in the Jhuggi. Incidentally Gulab Ali deceased, who had come to help the complainant party also got injured and died, so in connivance with the local police the complainant falsely got involved myself and all my sons and Jehana co-accused in this case. P.Ws. Have deposed against me and my co-accused only due to their relationship inter se and due to the abovesaid land dispute and party faction. No independent person of the locality or from the village Bahadarka Sharki has come forward to support the prosecution version.
3. ' An Additional Sessions Judge, Bahawalnagar vide his judgment dated 4-2-1990 convicted Ahmad Yar, Muhammad Siddiq, Muhammad Ayub, Muhammad Nawaz and Muhammad Yar under sections 148/302/436 read with 149, P.P.C., Ahmad Yar was sentenced to death plus fine of Rs,10,000 (Rs, ten thousand) or in default to undergo R.I., for two years. On recovery, half of the fine was ordered to be paid to the legal heirs of the deceased. Muhammad Yar, Muhammad Siddiq, Muhammad Ayub and Muhammad Nawaz were sentenced to imprisonment for life with fine of Rs,10,000 Rs, ten thousand) each or in default to undergo R.I, for two years. On recovery, the fine was ordered to be paid to the legal heirs of the deceased as compensation. Under section 148, P.P.C. All the accused were sentenced to R.I, for one year each with fine of Rs,10,000 (Rs,.Ten thousand) each.
4. In case of default, each of them was ordered to further undergo R.I. For one month. All the five accused were sentenced to four years' R.I. And fine of Rs,5,000 each or in default to suffer R.I. For one year each under section 436 read with section 149, P.P.C., Qadir Bakhsh and Jehana accused were acquitted by giving them the benefit of doubt. Benefit of section 382-B, Cr.P.C. Was given to them. On appeal and reference, a Division Bench of Lahore High Court, Bahawalpur Bench vide its judgment dated 28-10-1992 upheld the conviction and sentence of Ahmad Yar. Muhamamd Yar was acquitted because he did not cause any injury to any body during the incident. The conviction of Muhammad Siddiq, Muhammad Ayub and Muhammad Nawaz under section 302/149, P.P.C., was altered to one under section 324, P.P.C., by sentencing them to the period already undergone by them. Similarly, their sentence under section 436 was reduced to that already undergone by them.
5. Leave to appeal was granted to Ahmad Yar to consider the impact of his defence plea on the prosecution case as a whole. The petition to the extent of the remaining convicts, was dismissed as not pressed.
2. Learned counsel submits that prosecution has miserably failed to establish its case beyond any reasonable doubt. He argues that the prosecution. Story does not look plausible inasmuch as the defence plea is more convincing on the face of it in the given circumstances. The learned counsel of the complainant argues that the appellant and others murdered Gulab Ali and injured Ghulam Muhammad and Sharaf Din P.Ws. In execution of their common object of an unlawful assembly.
3. We have heard the learned counsel for the parties at considerable length. The record was also read by us with their assistance. It is a case of two versions. In order to illustrate the case further, the versions of both the parties have been quoted above intensively. The prosecution version mainly rests on the testimony of Sharaf Din P.W.5 and Ghulam Muhammad P.W.6. Their evidence is that the appellant and others armed with guns reached the spot at mid-night in order to dispossess the complainant party from the disputed land. It was stated that they murdered Gulab Ali at the spot. They also inflicted injuries to the P.Ws. With their weapons. Admittedly, the complainant party is the permanent resident of village Bahadurka Sharqi. They have built a but (Jhuggi) at Killa No,10 wherein they have continuously been living. On close scrutiny, this version does not appear to be plausible inasmuch as, there is no occasion for the ladies and the children of the complainant party to come and live in the Jhuggi despite the fact that they have their own Pucca houses in the aforesaid village. It showed that the complainant party had purposely shown the presence of their women and children in the Jhuggi so that their claim of possession over the land in question was proved. It is admitted that the accused party had no animus with Gulab Ali.
6. On the other hand, he is related to both the parties. The claim of the prosecution that he was present with the complainant party was highly doubtful because, admittedly, he had his own house and agricultural land situated only at a distance of three Killas from the place of occurrence.
7. It does not appeal to reason that he will leave his house and agricultural land to come to stay with the complainant party in the Jhuggi for the night which has already been stated to be over crowded as the ladies and children of the family have been staying there. The prosecution case is that at the time of occurrence, as many as eight members of the family of Sharaf Din including women and children, were living in that small Jhuggi. Keeping in view the above fact, we have not been persuaded to believe the prosecution story. It is surely based on falsehood and fabrication.
8. Possibility, therefore, cannot be ruled out that on hearing the gun fire, Gulab Ali might have come from his house to see the incident. It was nothing but natural for Gulab Ali to come, see and know the cause of intense firing which was taking place quite close to his house. On his arrival at the spot, he might have been hit by some stray bullet. It is in the evidence that both the parties had been firing at each other. It might be the shot of the complainant party which had hit Gulab Ali. In other words, prosecution has not come out with the whole truth. Its hands are not clean to say the least. It is certainly a case of suppression of material facts on the part of the prosecution. It has been shown that Muhammad Zaman was present at the spot and he was particularly asked by the complainant party to fire at the assailants. He was, thus, a very important witness but the prosecution in its wisdom failed to produce him in support of its story. His non-production has created doubt in the prosecution version. The presumption is that in case he had appeared, he would not have supported the prosecution. On the contrary, he would have favoured the defence plea. The prosecution case may be seen from this angle as well that as many as six accused mentioned above, were acquitted of the murder charge while discarding the prosecution evidence as a whole. The same set of evidence cannot, therefore, be accepted for the conviction of the appellant in this case of capital charge. This is a case of doubt all around. It may be noted that there was no sufficient light available at the time of occurrence to identify the accused particularly to show that the fatal shot was fired by the appellant. By giving the benefit of doubt, we set aside the conviction and sentence of the appellant. In view of acceptance of appeal of Ahmad Yar, the connected Criminal Appeal No,270/1993 is hereby dismissed. By our short order dated 27-5-1997, we accepted the appeal of Ahmad Yar. These are the reasons in support of said order.