' SH. ABDUR RAZZAQ, J.---This Criminal Appeal No,212 of 1995 by Abdul Hafeez and others arises from the judgment of the learned Judge Special Court for Speedy Trials, Multan whereby he on 22-11- 1993 while acquitting Abdul Ghani and Abdul Waheed co-accused convicted Abdul Hafeez, Abdul Hameed and Abdul Aziz appellants and sentenced them as under:
(i) under section 302(b)/34, P.P.C. Life imprisonment as Tazir;
(ii) under section 324/34, P.P.C. Five years R.I. And a fine ofRs,20,000 each or in default thereof to undergo further R.I. For six months each; the fine if recovered was ordered to be paid to the injured in equal shares;
(iii) under section 337-A(i)/34, P.P.C. To pay a deman ofRs,500 each and to suffer R.I. For a period of six months each as Tazir for each injury;
(iv) under section 337-F(ii)/34, P.P.C. To pay a deman ofRs,500 for each injury and to suffer R.I. For one year each for causing such injuries;
(v) under section 337-F(i)/34, P . P. C . To suffer six months' S .I. As Tazir and to payRs,200 for each injury as a deman caused to Mst. Rehmat Bibi;
(vi) under the same head for causing injury No,4 to suffer S.I. For one year each besides payment ofRs,500 as a deman each and for causing injury No,5 to pay a deman ofRs,300 each and to suffer R.I. For six moths as Tazir;
(vii) under section 337-F(i)/34, P.P.C. For causing injuries Nos.1 to 4 on the person of Muhammad Siddique to pay a deman ofRs,100 for each injury and also to suffer R.I. For three months as Tazir; the appellants were further directed to pay a deman in lump sum which was to be distributed among injured according to their injuries and in case of nonpayment of deman they were ordered to be kept in jail till its final payment;
(viii) all sentences were ordered to run concurrently; and
(ix) benefit of section 382-B, Cr.P.C. Was extended to the appellants.
2. Briefly stated the facts of this case, as gleaned from the F.I.R. Exh.PX, are that on 7-5-1993 at 5-30 p.m. Nazir Ahmad and Muhammad Siddique sons of Muhammad Shaft complainant, went to cut fodder in field No,4/1 of square No,43. The complainant Muhammad Shafi alongwith his wife Mst.
Rehmat Bibi were sitting in the lane on a cot from where said Killa No,4/1 and Berseem grown therein were visible. Suddenly Abdul Ghani alongwith his four sons Abdul Hafeez, Abdul Waheed, Abdul Hameed and Abdul Aziz went after Nazeer Ahmad and Muhammad Siddique. Abdul Ghani was empty handed, Abdul Hafeez had a 12 bore carbine, Abdul Waheed had a 12 bore gun, Abdul Hameed had a 30 bore pistol and Abdul Aziz was carrying a Sota. Abdul Ghani shouted Lalkara that they should be taught a lesson for getting the land back. Abdul Hafeez consequently fired at Nazir Ahmad which hit him on the left side of his abdomen. Abdul Hameed fired at Muhammad Siddique with his 30 bore pistol injuring his right upper arm. Both Nazir Ahmad and Muhammad Siddique were given Sota blows by Abdul Aziz. The occurrence was witnessed by Muhammad Shafi complainant and his wife Mst. Rehmat Bibi who rushed to the spot. In the meanwhile, Abdul Waheed fired with his gun at Mst. Rehmat Bibi and fractured her right hand. Both Muhammad Shaft and Mst. Rehmat Bibi were given Sota blows by Abdul Aziz when Mst. Rehmat Bibi went forward to save her husband. Aftab son of Muhammad Shafi and Khalil Ahmad son of Ali Akbar tried to intervene and rescue the assailants but were threatened with dire consequences. Nazir Ahmad succumbed to the injuries on the spot whose dead body was forcibly taken to the Ihata of the assailants. The motive for the commission of this offence is stated to be the land dispute between the parties and in order to take revenge, the accused fired at Muhammad Siddique and Mst.
Rehmat Bibi who were also injured.
3. Muhammad Shafi complainant (P.W.12) made for the Police Station Noor Shah District Sahiwal and on his dictation F.I.R. Exh. PX was recorded by Akhtar Ali Inspector (P.W.15) who also prepared statement of injury Exh.PY. He despatched Muhammad Shall complainant to civil hospital through Riasat Ali constable for his medical examination and thereafter made for the place of Occurrence.
Mst. Rehmat Bibi and Muhammad Siddique met him at the bus stand where he prepared their statements of injures Exhs.PP and PR and also recorded their statements. He sent them through Muhammad Younas constable to civil hospital for their medical examination. After reaching the place of occurrence, he found that dead body of Nazir Ahmad was lying in the cattle shed. He prepared statement of injury Exh.PT and inquest report Exh.PU. He despatched the dead body of Nazir Ahmad through Muhammad Akram constable for post-mortem examination. On 8-5-1993 last worn clothes of the deceased as well as the injured were produced before him and he secured the same. He inspected the site and prepared its rough site plan Exh.PZ. He collected bloodstained earth and Barseem and made them into a sealed parcel. He also secured three empties of 12 bore gun and one empty of 30 bore pistol and made them into a sealed parcel. On 11-5-1993 he arrested all the accused from their house. He secured blood-stained clothes of all the accused except Abdul Waheed and made a sealed parcel of the same vide memos. Exh.PJ. Exh.PK, Exh.PL and Exh.PM. On 13-5-1993, he got the site plans. Exh.PD, Exh.PD/1 and Exh.PD/2 prepared from the Patwari.
On 14-5-1993 the accused Abdul Hafeez led to the recovery of a carbine P8 which he secured and made into a sealed parcel vide memo. Exh.PE. On the same day accused Abdul Hameed led to the recovery of a 30 bore pistol which he secured and made into a sealed parcel vide memo. Exh.PF.
The accused Abdul Waheed also led to the recovery of 12 bore gun P10 which he secured and made into a sealed parcel vide memo. Exh.PG. Similarly the accused Abdul Aziz led to the recovery of blood-stained Sota P9 which he secured vide memo. Exh.PM.
4. After completing investigation, the accused were sent up to Court to face trial. A charge under Section 302/324/148/149, P.P.C., was framed against the accused to which they pleaded not guilty and claimed trial.
5. To prove its case prosecution examined P.W.1 Riasat Ali constable who escorted Muhammad Shafi injured to civil hospital where he was medically examined and thereafter, produced his last worn clothes P2 and P3 before the Investigating Officer who secured the same vide memo. Exh.PA.
P.W.2 Muhammad Younas got Mst. Rehmat Bibi and Muhammad Siddique medically examined and produced blood-stained clothes of Muhammad Siddique before the Investigating Officer who secured the same vide memo. Exh.PB. P.W.3 Muhamamd Akram constable took the dead body of Nazir Ahmad for postmortem examination on 7-5-1993. After his post-mortem examination, he was given last worn clothes of the deceased P.6 and P7 and a sealed phial which he produced before the Investigating Officer who secured the same vide memo. Exh.PC. P.W.4 Muhammad Nazir Patwari visited the place of occurrence on 13-5-1993 and prepared site plans Exh.PD,PD/1 and Exh.PD/2 and thereafter, handed over the same to the Investigating Officer P.W.5 Muhammad Saleem constable was given a sealed parcel containing blood-stained earth, a sealed parcel containing empties and another sealed parcel containing blood-stained clothes for onwards transmission to the office of Chemical Examiner and Forensic Science Laboratory Lahore which he delivered there intact. On 22- 5-1993, he was given a parcel containing carbine P8, blood-stained Sota P9, 12 bore gun PIO and 30 bore pistol P11 for onwards transmission to the office of Forensic Science Laboratory and Chemical Examiner which he delivered there intact.. P.W.6 Abdul Razzaq is a witness of recovery from the accused Abdul Haffez and Abdul Waheed but he did not support the prosecution version and was consequently declared hostile. P.W.7 Muhammad Akhtar head constable deposed that on 10-5- 1993 he was given parcels containing bloodstained earth, empties as well as four parcels containing blood-stained clothes which he delivered to Muhammad Saleem (P.W.-5) on 14-5-1993 for onwards transmission to the respective offices. He further deposed that on 14-5-1993 he was given three parcels containing 12 bore gun, 12 bore carbine and 30 bore pistol which he delivered to Muhammad Saleem constable on 22-5-1993 for onwards transmission to the office of Forensic Science Laboratory Lahore. P.W.8 Muhammad Hussain has deposed about the identification of the dead body at the time of post-mortem examination. He further deposed that on 11-5-1993 blood- stained clothes of Abdul Hafeez accused Exh.P12 and Exh.P.13 were secured vide memo. Exh.PJ which bears his signatures. On the same day blood-stained clothes of Abdul Aziz, Abdul Hameed and Abdul Ghani accused were also secured vide memo Exhs.PK, PL & Exh.PM respectively which bear his signatures. P.W.9 Dr. Rana Allah Ditta deposed that on 8-5-1993 at 8.00 a.m. He examined Muhammad Shafi injured and found six injuries on his person and issued M.L.R. Exh.PN. On the same day at 8.15 a.m. He examined Mst. Rehmat Bibi and found five injuries on her person and issued medico-legal certificate Exh.PO. He also signed her injury statement Exh.PP. On the same day at 8.35 a.m. He examined Muhammad Siddique and found four injuries on his person. He issued M.L.R.
Exh.PQ. On the same day at 10.00 a.m. He conduct. Post-mortem examination on the dead body of Nazir Ahmad. He found the following injuries on his person:
(1) Lacerated wound (wound of entrance), 6 c.m. x 6 c.m. x going deep in abdominal cavity on the left lateral aspect of abdomen and chest 7 cm above the left iliac bone wound was oval in shape, edges of wound were inverted, the surrounding skin of wound were blackened and portion of intestine was coming out of wound. On Dissection: Skin subcontanious tissues muscles, small vessels were cut on the left laterial side of chest, fracture of 9th and 10th ribs, stomach was injured and having an extensive laceration of stomach, plastic wed was found from stomach, spleen was injured, and teared (ruptured), into pieces, left kidney injured and ruptured and peritoneum injured and left side of liver also injured and lower lobe of right lung was also injured, diaphragm, right side was injured. Three pallets were found from chest and abdominal cavity, right side of chest cavity having blood and both sides of abdominal cavity were full of blood, one pallet was taken out from the back of right chest in muscles.
(2) An abrasion 3 c.m. x 1-1/2 c.m. On the left shoulder on back.
(3) A bruise 7 c.m. x 2 c.m. On the middle of back of chest.
' In his opinion, death had occurred due to shock and internal heamorrhage, injury No,1 was sufficient to cause death in ordinary course of nature. Injury No,1 was caused by fire arm. Rest injuries were caused by blunt weapon. All the injuries were anti-mortem in nature. Time between injuries and death within 15 minutes and between death and post-mortem within eighteen hours.
He issued post-mortem examiantion report Exh.PS. It is in his hand and bears his 'signatures. He also singed injury statement Exh.PT and inquest report Exh.PU. P.W.10 Abdul Hameed deposed that on 8-5-1993 the police had secured blood-stained earth and Barseem from the place of occurrence situated in killa No,4 square No,43 and made a sealed parcel of the same vide memo.
Exh.PV. He further deposed that empties of 12 bore gun P.20 to Exh.P.22 and one empty of 30 bore pistol P.23 were secured and made them into a sealed parcel vide memo. Exh.PW. P.W.11 Muhammad Ashraf deposed that on 14-5-1993 the accused Abdl Hafeez, Abdul Hameed, Abdul Waheed and Abdul Aziz led to the recovery of 12 bore carbine P.8, 30 bore pistol P11 and 12 bore gun P10 and blood-stained sota P.9 which were secured vide memo Exhs.PF, Exhs.PF, PG and PH respectively which bear his signatures. P.W.12 Muhammad Shafi is the complainant and has corroborated his version appearing in F.I.R. Exh.PX. He deposed that the police prepared the injury statement and sent him to civil hospital Noor Shah for his medical examination. P.W.13 Muhammad Siddique and Mst. Rehmat Bibi (P.W.14) are the alleged eyewitnesses and both of them had supported the prosecution version appearing in F.I.R. Exh.PX. They further deposed that while they were going to the hospital the police met them at bus stand Noor Shah and they were sent to hospital where they were medically examined. P. W.15 Akhtar Ali is the Investigating Officer of this case whose evidence has already been discussed above. Thereafter, Mian Iftikhar Rashid Special Public Prosecutor gave up the remaining P.Ws., being unnecessary and produced three reports of Chemical Examiner Exh.PAA, Exh.PBB, Exh.PCC, three reports of the Serologist Exh. PDD, Exh. PEE, Exh.PFF, report of the Forensic Science Laboratory Exh.PGG copy of Khasra Girdawri, two sheets, Exh.PHH and closed the case for prosecution vide statment dated 21-11-1993.
6. When examined under section 342 Cr.P.C. The accused Abdul Aziz, Abdul Hafeez, Abdul Waheed and Abdul Hameed denied the prosecution version and stated that none of them was present at the spot and have been implicated in this case falsely. However, the accused Addul Hafeez denying the prosecution version, stated that in fact the complainant party was the aggressor. He further stated that Nazir Ahmad deceased alongwith Muhammad Siddique and Muhammad Shafi while armed with fire-arms committed trespass in their Ihata. Nazir Ahmad deceased made his father Abdul Ghani fall on the ground and tried to make him naked and also pressed his throat. He intervened to save his father whereupon Nazir Ahmad deceased fired with 30 bore pistol at him and in order to defend himself and his father he fired with his gun in self-defence at Nazir Ahmad deceased. He further stated that stray pallets hit Muhammad Siddique and Mst. Rehmat Bibi P.Ws.
Various person had assembled' there and the injured P.Ws. Received the injuries at their hands. He further stated that Muhammad Sadiq Chandio S.H.O. Was inimical towards them and was having friendly relations with Muhammad Shafi complainant. He neither produced any evidence in this defence nor chose to record the statement under section 340(2), Cr.P.C. However, none of the accused except Abdul Ghani chose to produce evidence in defence. The accused Abdul Ghani tendered in evidence copy of application Exh.DC, copy of complaint Exh.DD, copy of the judgments Exh.DE and Exh.DF, copies of jamanbandies Exh.DG, Exh.DH, Exh.DJ and copies of F.I.Rs., Exh.DK, Exh.DL and his medical certificate Exh.DM. Thereafter, he closed his defence evidence.
7. After going through the evidence produced by the parties, the learned trial Court acquitted Abdul Waheed and Abdul Ghani accused whereas convicted Abdul Hafeez, Abdul Hameed and Abdul Aziz accused/appellants who have felt aggrieved and filed this appeal.
8. Arguments have been heard and record perused with the assistance of learned counsel for the parties.
9. Learned counsel for the appellants has assailed the impugned judgment on the following grounds;
(i) that prosecution evidence rests upon the statements of interested and inimical witnesses as P.Ws. Nos.12 to 14 are related to the deceased and are inimical towards the accused/appellants;
(ii) that occurrence has not been taken place in killa No,4/1 of square No,43 but in the Ihata of the accused/appellants which fact clearly shows that the complainant party was an aggressor and the accused/appellants inflicted injuries while exercising the right of self-defence;
(iii) that had the occurrence taken place in the field as alleged by the prosecution, trails of blood must have been noticed from that spot upto the Ihata of accused/appellants;
(iv) that ocular account regarding infliction of injuries on the deceased stands falsified by medical evidence as presence of blackening of injury No,1 shows that injury was caused from a very close range which fact stands belied from the prosecution evidence;
(v) that nature of injures attributed to Abdul Aziz and Abdul Hameed accused/appellants clearly shows that they did not share common intention with their co-accused Abdul Hafeez; and
(vi) that even motive part of the prosecution version stands falsified by documents produced on record by Abdul Ghani, since acquitted.
10. Conversely the judgment under appeal has been supported by the learned State counsel.
11. There is no doubt that prosecution has examined P.W.12 Muhammad Shafi who is maternal uncle of the deceased, Muhammad Siddique P.W.13 who is brother of the deceased and Mst. Rehmat Bibi P.W. 14 who is mother of the deceased yet their evidence cannot be discarded on the ground of mere relationship with the deceased. Since all the three P.Ws., have received injuries at the hands of the assailants, so their presence on the spot stands proved. All the three witnesses have been subjected to lengthy cross-examination but nothing has come on record to discredit their testimony. Their presence on the spot is also natural as both Muhammad Shafi and Mst. Rehmat Bibi were present in the lane, from which the place of occurrence was clearly visible. The mere fact that Aftab and Khalil Ahmad P.Ws., have not been examined does not detract the evidentiary value of P.Ws., 12 to 14 who have fully supported the prosecution version appearing in F.I.R. Exh.PX lodged at the instance of Muhammad Shafi P .W .12 .
12. The stand of learned counsel for the accused/appellants is that occurrence has actually taken place in the Ihata of the accused and not in killa No,4/1 of square No,43. This contention stands falsified from the fact that blood-stained earth has not been secured from the Ihata of the accused but from the place of occurrence shown in the F.I.R. Exh. PX. The appellants have not challenged the securing of blood-stained earth from the place of occurrence which fact further proves that they had admitted that occurrence had taken place in Killa No,4/1 of square No,43 and not as asserted by them. It is also pertinent to point out that all the three accused/appellants are young and grown up persons and it was very easy for them to lift the deceased from the field and to remove him to their Ihata just to show that occurrence had taken place in their house and not in the field bearing killa No,.4/1 of square No,43.
13. Again much stress has been laid on the point that there is a blackening in injury No,1 which has been found on the person of the deceased. This fact shows that the deceased was fired from a very close range. There is no doubt that presence of blackening shows that the injury was fired from a very close range but this fact has come on record through the statements of P.Ws., 12 to 14 who have deposed that the deceased was fired from a very close range. Thus, there is no contradiction of medical evidence with ocular account.
14. It is canvassed that the accused/appellants have caused injuries in exercise of their right of self-defence, as the complainant party i.e, Muhammad Shafi and his sons had gone to take possession of the disputed Ihata while armed with licensed weapons where Nazir Ahmad deceased made Abdul Ghani accused (since acquitted) to fall on the ground pressed his throat and wanted to denude him and in self-defence Abdul Hafeez accused/appellant fired at Nazir Ahmad deceased and various persons collected there and in that melee the complainant and his wife Mst. Rehmat Bibi and Muhammad Siddique received injuries. Had the complainant party come there duly armed, the accused party must have received some scratohes on their persons.
Admittedly none of the accused received even a scractch on his person. Thus, contention of the accused/appellants that they caused injuries to the complainant party in exercise of the right of self-defence is absolutely fallacious. It also does not stand to reason that persons collected on the spot also caused injuries to the complainant party only and did not touch the accused party. It has also come on record that the complainant party was unarmed. Thus, the only logical conclusion is that injuries to Muhammad Shafi, Muhammad Siddique, Mst. Rehmat Bibi and Nazir Ahmad deceased were caused by Abdul Hafeez, Abdul Hameed and Abdul Aziz. Injury No,1 on the person of Muhammad Sidique P.W., is attributed to Abdul Hameed accused which stands proved from the medical evidence. Injuries on the persons of Muhammad Shafi, Muhammad Siddique, Mst. Rehmat Bibi and Nazir Ahmad deceased with blunt weapons are attributed to Abdul Aziz accused and these stand proved from the medical evidence. It is, thus, established that all the accused shared common intention.
15. Abdul Ghani accused (since acquitted) has brought on record a number of documents which show that a pre-emption case was decided in favour of the pre-emptor and the appeal from that judgment was still pending. He has also brought on record a copy of a criminal complaint lodged by him against Muhammad Shafi and others which is still sub judice. It is, thus, clear that the parties were locked in litigation against each other and this was a sufficient motive in the instant case.
16. The upshot of the above discussion is that contentions raised by learned counsel for the accused/appellants are devoid of any force and the trial Court has passed the impugned judgment in accordance with law. We do not find any force in this appeal and dismiss the same.