' Briefly stated the prosecution case as unfolded in complaint Exh.PA lodged at the instance of Muhammad Munir since dead is that he is resident of Chak No,139 RB. Muhammad Afzal son of Hayat Muhammad is his cousin who had given his house to Mushtaq Ahmad Machi for the last 3/4 years for temporary residence; as his house was damaged due to rains. He (Mushtaq Ahmad) was approached through Punchayat with the request to vacate the said house who not only refused to vacate the same, but with the connivance of Revenue Department got his name entered in the Revenue Record as possessor. On 2-9-1992 at 10.35 a.Rn. Complainant Muhammad Munir (since dead) along with Afzal son of Hayat Muhammad, Muhammad Khan son of Muhammad Afzal (his nephew), his brother Dilnaeer and his son Ijaz Hussain went to the house of Mushtaq Ahmad aforementioned for getting the house vacated. Mushtaq Ahmad was not present in the house whereas his brother .Shabbir Hussain son of Rehmat Ali armed with .12 bore gun, Teddi nephew of Shabbir Hussain armed with. Mauser, Klialid son of Ibrahim armed with .12 bore gun, Tahir lqbal son of Muhammad lqbal armed with 7 MM rifle reached there and started firing upon them.
Muhammad Khalid aimed his gun at Muhammad Afzal which hit him on the right side of his neck as a result of which he fell down. Shabbir Hussain Machi fired with his gun which hit Muhammad Khan on the upper part of his left arm on his back making its exit on the other side. Mustafa, Tahir and Teddi also fired at them but fortunately they escaped. Dilmeer and Ijaz Hussain kept on witnessing the occurrence. The accused on coming to know that Muhammad Afzal has received a fire-arm injury left the said place brandishing their arms. Muhammad Afzal and Muhammad. Khan injured were removed to Civil Hospital, Faisalabad by the complainant and others, where they were medically examined and got admitted in the hospital. After collecting their medico-legal certificates, the complainant Muhammad Munir made for the Police Station and met Bashir Ahmad, A.S.I. (P.W.12) at Thana Chowk who recorded complaint on his statement.
2. After recording complaint Exh.PA he sent the, same for formal registration to the Police Station through Hadayat Ali Constable. On receipt of F.I.R. Exh.PA/1, made for the place of occurrence, inspected the same and recorded the statements of the witnesses. He, secured blood-stained earth vide memo. Exh.Pli,. On 4-9-1992, he went to Qcneral Hospital, where he came to know about the death of Muhammad Afzal. He prepared statement of injury Exit PO and inquest report Exh.PQ.
He handed over the dead body of Muhammad Afzal to Parvaiz Constable (P.W.2) for post-mortem examination. After the post-mortem examination he handed over the last worn clothes of deceased, shirt P.1, Dhoti P.2 and a sealed phial containing pellets which he secured vide memo.
Exh.PB on 5-9-1992. He went to Chak No,139-RB where Muhammad Khan (P.W.10) produced before him, his _blood-stained shirt P.10 which he secured vide memo. Exh.PM. He got the site plan Exhs.PC and PC/1 prepared through Aurangzaib draftsman (P.W.4). He handed over parcel containing blood-stained earth to Moharrir H/C Chak Jhumra. On 14-9-1992 accused Shabbir Hussain led to the recovery of gun P.8 and two live cartridges P.9/1-2 which he secured vide memo. Exh.PL. On 4- 10-1992 the accused Muhammad Khalid, Ghulam Mustafa and Tahir Iqbal led to the recovery of gun P.7, .12 bore gun P.3 with two live cartridges P.4/1-2 and 7-MM Rifle P.5 respectively which he secured vide memos. Exh.PK, Exh.PH and Exh.PI respectively. On the same day accused Allah Ditta led to the recovery of Mauser P.6 which he secured vide memo. Exh.PJ. The case was partly investigated by Mehr Khan Inspector (P.W.5) who arrested accused Muhammad Khalid, Tahir Iqbal, Ghulam Mustafa and Allah Ditta on 20-9-1992 and thereafter, submitted the challan.
3. A charge under sections 302, 324, 148 and 149, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused prosecution examined P.W.1 Nazir Hussain, A.S.I. Who on 2-9-1992 recorded formal F.I.R. Exh.PA/1 on the basis of complaint Exh.PA. Parvaiz Iqbal Constable P.W.2 escorted the dead body of Muhammad Afzal on 5-9-1992 and after the post-mortem examination produced the last-worn clothes P.1/2 of the deceased along with other documents which were secured vide memo. Exh.PB. On 9-9-1992 he transported parcel containing blood- stained earth in the Office of Chemical Examiner, Lahore which was given to him by Muhammad Parvaiz, H/C (P.W.3) and who was given the same by Bashir Ahmad, A.S.I. (P.W.12) for keeping the same in Malkhana. Aurangzaib P.W.4 deposed about preparing site plan Exh.PC and Exh.PC/1. Mehr Khan, Inspector P.W.5 deposed that he partly conducted the investigation and arrested accused Khalid, Tahir, Mustafa and Allah Ditta on 20-9-1992 and finally submitted the challan. Ata Muhammad P.W.6 simply identified the dead body at the time of post-mortem examination. Dr. Abdul Shakoor Gill P.W.7 conducted post-mortem examination of Muhammad Afzal on 5-9-1992 and found that there was no mark of ligature on neck, there was no injury on the scalp. However, he found a firearm wound of entry 1/2 c.m. x 1/2 c.m. x probe passed deep into survical area margins were inverted. In his opinion the cause of death was haemorrhage and injury to spinal cord. He issued post-mortem report Exh.PD and its sketch Exh.PD/1. Dr. Muhammad Yousaf P.W.8 examined Muhammad Afzal on 2-9-1992 at 11-45 p.m. When he was alive and found the following injury on his person:--
(1) A fire-arm wound 1/2 c.m. x c.m. DNP with inverted margin on the right side of front of neck.
' He kept injury No,1 under observation and advised X-ray. He produced X-ray report Exh.PG and X- ray film Exh.PG/1 and further produced his report Exh.PE which bears his signatures. P.W.9 Arab Hussain is witness of recovery of weapons of offence from accused Mustafa, Tahir, Allah Ditta and Muhammad alid which were secured vide memos. Exhs.PH, PI, PJ and PK respectively. He stated that the other witness of recovery was Ghulam Rasool (not examined). Muhammad an an eye- witness has been examined as P.W.10 who supported the prosecution version appearing in complaint Exh.PA and further stated that Ghulam Shabbir accused ed to the recovery of .12 bore gun P.8 and wo live cartridges P.9/1-2 which were secured vide memo. Exh.PL. He further stated that on 5-9-1992 he produced bloodstained shirt P.1 before the Investigating Officer who secured the same vide memo. Exh.PM. Dilmeer P.W.11 is another eyewitness of this occurrence who supported the prosecution version and further stated that blood-stained earth was secured from the place of occurrence and made into sealed parcel Exh.PN which bears his signature. The learned D.D.A.
Produced Report of Chemical Examiner Exh.PS and that of Serologist Exh.PT and closed the prosecution case vide his statement, dated 11-7-1993.
5. When examined under section 342, Cr.P.C. The accused Muhammad Khalid denied the prosecution version and in reply to question No,8, as to why this case and why the P.Ws. Have deposed against you?, he replied as follows:-- "The complainant party tried to take forcible possession of Machi's Ahata. They pulled down its wall by a tractor when Ejaz and his companions went on roof of Afzal with shot guns. On the floor Muhammad Khan and Afzal tried to pull out the room thereon Shabbir Hussain interfered physically. Ejaz fired a shot which accidentally hit Afzal and Muhammad Khan."
' The accused Ghulam Mustafa, Tahir Iqbal, Shabbir Hussain and Allah Ditta also denied the prosecution version and stated that they have been implicated in this case due to enmity. None of the accused either examined himself under section 340(2), Cr.P.C. Or adduced any evidence in his defence.
6. After going through the evidence produced by the parties, the trial Court convicted the accused/appellants Muhammad Khalid and Shabbir Hussain under section 302/34, P.P.C. And sentenced each of them to imprisonment for life. They were further ordered to pay Rs,20,000 each to the legal heirs of Muhammad Afzal deceased by way of compensation as required under section 544-A, Cr.P.C. Or in default thereof to undergo R.I. For 6 months each. They were further convicted under section 324/34, P.P.C. For committing murderous assault upon Muhammad Khan injured and sentenced to 7 years' R.I. Each and to pay a fine of Rs,10,000 each and in default thereof to further undergo R.I. For two years' R.I. Each. It was further ordered that if fine is realised that shall be paid to Muhammad Khan injured. They were further extended benefit of section 382-B, Cr.P.C.
7. Both the appellants have felt aggrieved and filed this appeal.
8. Along with this appeal Criminal Revision No,127 of 1995 has been filed by Muhammad Khan for the enhancement of sentence awarded to the appellants as well as for the enhancement of compensation. As both the appeal and criminal revision arise out of the same judgment so the same are being disposed of by this single judgment.
9. Arguments have been heard and record perused.
10. Learned counsel for the appellants has assailed the prosecution evidence on the ground that no independent witness has been examined by the prosecution in the instant case as P.W.10 Muhammad Khan is son of the deceased whereas P.W.11 Dilmir is brother of the deceased, that ocular account of P.Ws. 10 and 11 is neither corroborated by medical evidence nor evidence of recovery of weapons of offence, that as such the impugned judgment has been passed on, the basis of uncorroborated evidence and consequently it cannot be maintained, that although no specific plea of self-defence of person and property has been taken by the accused/appellants yet it is spelt from the trend of cross-examination that accused/appellants had fired in the exercise of their right of self-defence and of property as the complainant party had launched attack to dispossess Mushtaq Ahmad from his house and as such they had not committed' any offence.
While elaborating his said contentions he submitted, that as per prosecution version the deceased Muhammad Afzal received a direct fire shot at the hands of accused/appellant Muhammad.
Khalid which stands belied from the statement of Bashir Ahmad, A.S.I. (P.W.12) who admits that as per investigation of D.S.P. The angle of shot was 120 degree, that if the shot had been fired from said angle then by no stretch of imagination it can be attributed to the accused/appellant Muhammad Khalid. He next argued that as the complainant party wanted to oust Mushtaq Ahmad Machi, so they were the aggressors and accused had to protect their lives and property by exercising their right of self-defence and if in that process some damage is caused to the .Other party, even then their action stands protected, as degree and imminence of apprehension of threat to one's person or property is not to be measured by injuries actually found in the end to have been inflicted on accused person. Such right commences as soon as reasonable apprehension of danger to body arises from an attempt or threat to commit offence though the offence may not have been committed, and it continues as long as such apprehension or danger to body continues and relied upon Malik Waris Khan and another v. Ishtiaq alias Naga and others (PLD 1986 SC 335), that' prosecution has tried to corroborate ocular account with medical evidence, that medical evidence can be used as corroboration but only to the extent of nature and number of injuries but not co- accused and placed. Reliance upon. The State v. Muhammad Sharif and 3 others (1995 SCM R 635) and Ata Muhammad and another The State (1995 SCM R 599). He, thus, submitted that, as oral evidence is not supported by any other evidence, so the impugned judgment is liable to be set aside.
11. Conversely the impugned judgment has been supported by the learned counsel for the. State assisted by learned counsel for the complainant. While supporting the judgment under appeal it is submitted by the learned counsel for the complainant that prosecution version appearing in F.I.R.
Stands fully corroborated by Muhammad Khan and Dilmir P.Ws. 10 and 11 respectively, that ocular account stands further corroborated from the medical evidence which has come on record through the statements of P.W.7 Dr. Abdul Shakoor Gill and P.W.8 Dr.' Muhammad Yousaf, that both the accused/appellants have been assigned a specific role of causing injuries to the deceased as well as to the injured, that both P.Ws. 10 and 11 have been cross-examined at length and have not been put any suggestion making their presence on the spot doubtful. That plea of right of self defence is not available to the accused/appellants as it is not evident from record if the complainant party had arrived a the spot duly, armed with lethal weapons, that had the complainant party been fully armed and resorted to aggression only then it could be said that accused/appellants had the right of their self-defence and property, that had the complainant party been an aggressor any one of accused party must have received some scratch on his person, that absence of any injury on the person of accused party clearly proves that complainant party was not the aggressor but the victim, that although evidence of recovery has not been believed yet that does not make any difference as the prosecution version stands fully corroborated from the ocular account as well as medical evidence, that occurrence has taken place during the broad daylight- so the question of false implication as well as substitution does not arise, that F.I.R. Has been lodged promptly which further rules out possibility of false involvement, that although it is admitted by Muhammad Khan (P.W.10) that Dilmir, Munir (since dead) and Rafique were implicated for the murder of Muhammad Ibrahim, father of Khalid and Mustafa accused, yet this admission is of no consequence as the said incident took place 26 years ago and as neither of the parties took ill of that and had been living an amicable life. He, thus, submitted that prosecution has succeeded in bringing home guilt to the accused and their appeal being devoid of any force be dismissed.
12. Now let us analyse the evidence adduced by the prosecution and see if it has succeeded in bringing home guilt to the accused/appellants or not. According to the prosecution version a specific part has been assigned to Muhammad Khalid accused/appellant whereby he has been attributed a fatal injury on the person of Muhammad Afzal deceased. Similarly Shabbir Hussain accused/appellant has been attributed a .12 bore gun injury on the left 'upper part of the arm of Muhammad Khan (P.W.10). The other accused Allah Ditta, Tahir, Iqbal and Ghulam Mustafa have been assigned ineffective firing and all of them have been acquitted. There is no doubt that P.W.11 Dilmir is brother of Munir Ahmad complainant, since murdered, and P.W.10 Muhammad Khan is son of deceased Muhammad Afzal. This does not mean that their evidence is to be discarded on that score. The statement of a witness can only be discarded and disbelieved if he has some motive to implicate the accused falsely. In the instant case the prosecution 'version is that they had gone to the house of Mushtaq Ahmad for getting it vacated from him and were subjected to aggression by the accused party. Conversely the stand of accused/appellants is that they were subjected to aggression by the complainant party. Admittedly none from the accused side received- any injury on his person whereas Muhammad Afzal died as a result of fire shot of Muhammad Khalid and Muhammad Khan P.W.10 received fire-arm injury at the hands of Shabbir Hussain accused/appellant. Absence of any injury on the person of accused party clearly proves that complainant party was unarmed and had not made for the spot with any intention to cause hurt or damage to the accused party. Thus, the question of causing injury to the complainant party at the hands of accused in exercise of their right of sett-defence and property does not arise. It is pertinent to mention here that none of the accused took the plea of right of private defence while recording their statements under section 342, Cr.P.C. However, it is fact that right of private defence can be considered even though not specifically claimed. Considering the facts of this case in the light of the above rules governing the right of private defence, it is proved that accused/appellants exceeded the same. The accused/appellant Muhammad Khalid is responsible for causing fatal injury resulting into death of Muhammad Afzal deceased. His said injury stands proved even from medical evidence of P.Ws. 7 and 8. Thus, prosecution has succeeded in bringing home guilt to the accused/appellant Muhammad Khalid and he has rightly been convicted under section 302(b), P.P.C. And sentenced by the trial Court and the same is hereby maintained. However, his conviction and sentence under section 324, P.P.C. Is not warranted as he did not cause any injury to Muhammad Khan (P. W . 10). Accordingly conviction and sentence of Muhammad Khalid accused under section 324, P.P.C. Is set aside. So far as the question of conviction of Shabbir Hussain accused/appellant under section 302(b)/34, P.P.C. Is concerned, that is not proved from the evidence brought on record and discussed above. Admittedly he has not been assigned any role of causing any injury to the deceased as such his conviction under section 302(b)/34, P.P.C. Is not sustainable and the same is hereby set aside. Shabbir Hussain accused/appellant has been assigned a specific role of causing only one injury on the person of Muhammad Khan (P.W.10).
Thus, he is to be punished keeping in view his prominent role. Had Shabbir Hussain accused/appellant any intention to cause death of Muhammad Afzal he must have fired at the deceased. Shabbir Hussain accused/appellant has been convicted under section 324, P.P.C. And sentenced to R.I. For 7 years and fine of Rs,10,000 and in default thereof to further undergo R.I. For 2 years. Keeping in view the part attributed to Shabbir Hussain accused/appellant the sentence of 7 years imposed upon him is considered as harsh, as such the same is reduced to 4 years. However, the sentence of fine is maintained. With this modification in the conviction and sentence awarded to the appellants the appeal is disposed of.
13. For the reasons stated above Criminal Revision No,I27 of 1995 fails an is hereby dismissed.