' MUHAMMAD ASIF JAN, J.--Muhammad Shah Din, aged 37 years, alongwith his brother Khuda Bakhsh, aged about 27 years were convicted under section 302/307/326/34 of the Pakistan Penal Code by Mr. Zulfiqar Ali Khan, Session Judge, Bahawalnagar, vide judgment dated the 17th of October, 1992.
' Both Muhammad Shah Din and Khuda Bakhsh appellants were convicted under section 302/34, P.P.C. For having murdered Muhammad Amir deceased in furtherance of their common intention.
' Muhammad Shah Din accused/appellant was sentenced to death while Khuda Bakhsh accused/appellant was sentenced to imprisonment for life. A fine of Rs,50,000 has been imposed upon Muhammad Shah Din while a fine of Rs,30,000 has been imposed upon Khuda Bakhsh. In case of default in the payment of fine, both convicts were awarded further R.I. For one year.
' Both convicts were also ordered to pay compensation under section 544-A, Cr.P.C. Of Rs,50,000 each to the legal heirs of Muhammad Amir deceased. In case of default, the amount would be recoverable as arrears of land revenue and in case of no recovery, both convicts were ordered to undergo further R.I. For six months each.
' Both the appellants were also convicted under section 307, (Part 11)/34, P.P.C. And sentenced to imprisonment for life for having attempted to commit the murder of Ghulam Hassan P.W. Both the accused/appellants were also directed to pay a fine of Rs,15,000 each and in case of default in the payment of fine, to undergo further R.I. Tor one year each. Both of them were also ordered to pay compensation under section 544-A, Cr.P.C. Of Rs,30,000 each to the injured Ghulam Hassan.
Ghulam Hassan P.W. Who was since dead, therefore, the amount of compensation will be received by his legal heirs, if any. In case of default, the amount of compensation was ordered to be recovered as arrears of land revenue and in case of no recovery, both convicts were ordered to undergo further R.I. For six month each.
' Both the accused/appellants were also convicted and sentenced to imprisonment for life for having attempted to commit the murder of Muhammad Sultan (P.W.3). Both of them were ordered to pay a fine of Rs,15,000 each and in case of default in the payment of fine, to undergo further R.I.
For one year each. Accused/appellants were also directed to pay compensation under section 544-A, Cr.P.C. Of Rs,30,000 each to the injured Muhammad Sultan (P.W.3). In case of default, the amount would be recoverable as arrears of land revenue and in case of no recovery, both convicts were ordered to undergo further R.I. For six months each.
' Both the accused/appellants were also convicted and sentenced under section 307 (Part 11)/34, P.P.C. To imprisonment for life for having attempted to commit the murder of Muhammad Ismail (P.W.5). They were directed to pay fine of Rs,15,000 each and in case of default to suffer further R.I.
For one year each. Both the convicts/appellants were also ordered to pay compensation under section 544-A, Cr.P.C. To Muhammad Ismail injured P.W. Of Rs,30,000 each. In case of default, the amount of compensation would be recoverable as arrears of land revenue and in case of no recovery, both of them to suffer further R.I. For six months each.
' Both the accused/appellants were, also convicted under section 307/34, Part II, P.P.0 and sentenced to imprisonment for life each for having attempted to commit murder of Hakim Ali (P.W.4). They were directed to pay a fine of Rs,15,000 each and in case of default in the payment of fine, to suffer further R.I. For one year each. Both of them were also ordered to pay compensation to Hakim Ali P.W. Under section 544-A, Cr.P.C. Of Rs,30,000 each and in default of the same the amount would be recoverable as arrears of land revenue and in case of no recovery, both the accused/appellants were ordered to suffer further R.I. For six month each.
' Both Muhammad Shah Din an Khuda Bakhsh accused/appellants were also convicted under section 307, (Part 11)/34, P.P.C. And sentenced to imprisonment for life plus a fine of Rs,15,000 each and in case of default in the payment of fine, to suffer further R.I. For one year each for having attempted to commit murder of Mst. Meherun Nisa. They were also directed to pay compensation under section 544-A, Cr.P.0 of Rs,30,000 each and in case of default, it would be recoverable as arrears of land revenue and in case of no recovery, both of them were ordered to undergo further R.I. For six months each.
' All the sentences were ordered to run concurrently and both the accused/appellants were also given the benefit of section 382-B, Cr.P.C.
2. Muhammad Shah Din and Khuda Bakhsh accused/appellants have appealed against their conviction and sentence by way of Criminal Appeal No, 85 of 1992/B.W.P.
' The trial Court has referred the matter to this Court for confirmation of the sentence to death awarded to Muhammad Shah Din under section 374, Cr. P. C ' Complainant Muhammad Sultan (P.W.3) moved this Court by way of Criminal Revision No,97 of 1992/BWP praying, inter alia, that the sentence of imprisonment for life awarded to Khuda Bakhah accused/appellant be enhanced to a sentence of death. The said revision petition was not admitted to a regular hearing by this Court but it was ordered to be heard alongwith Criminal Appeal No,85 of 1992/BWP.
3. We have heard all these matters together and are deciding them together by this judgment.
4. The occurrence took place on 21st of December, 1989, at 11 a.m. In the area of Mauza Arranwala at a distance of 8 Kilometres from Police Station Mecleodganj of District Bahawalanagar.
5. The matter was reported by complainant Muhammad Sultan (P.W.3), whose statement (Exh.PH) was recorded by A.S.I. Muhammad Ibrahim (P.W.11) on the 21st of December, 1989, at the Civil Hospital of Minchanabad of District Bahawalanagar. The statement (Exh.PH) of Muhammad Sultan (P.W.3) was then sent by A.S.I. Muhammad Ibrahim (P.W.11) to Police Station Mecleodganj, where the formal F.I.R. (Exh.PH/1) was drawn by Head Constable Masood Ahmad (P.W.2).
6. According to Muhammad Sultan (P.W.3), he is a resident of Chah Rehmunka Dakhli, Mauza Arranwala. Haji Ghulam Hussain is also a resident of the same area. Both Muhammad Shah Din and his brother Khuda Bakhsh are their co-villagers and have their agricultural land adjacent to the residential quarters of complainant Muhammad Sultan (P.W.3) claims to have left an open passage from his own agricultural land. Muhammad Shah Din and Khuda Bakhsh appellants/accused encroached upon this passage which was meant to be a thoroughfare and included a part of it in their own agricultural land. Complainant Muhammad Sultan (P.W.3) alongwith Haji Ghulam Hassan protested about this act of Muhammad Shah Din and Khuda Bakhsh and asked them to desist from it but they would not listen and would turn a deaf ear. On the day of occurrence, at about 8 or 9 a.m. Complainant Muhammad Sultan (P.W.3) was bringing fire-wood on his bullocks to his residence and when he passed from near the agricultural land of Muhammad Shah Din and Khuda Bakhsh accused/appellants, the said fire-wood fell into their fields on account of the thoroughfare having been narrowed by Muhammad Shah Din and Khuda Bakhsh. On account of the damage to the crops of Muhammad Shah Din and Khuda Bakhsh, complainant Muhammad Sultan (P.W.3) was abused by Khuda Bakhsh and Muhammad Shah Din resulting in an exchange of abuses. Finally, Muhammad Shah Din appellant left the place threatening to kill complainant Muhammad Sultan (P.W.3) and his supporters and this, put an end to this irritant about the thoroughfare. This incident which took place in the morning at about 8 or 9 a.m. Was mentioned by complainant Muhammad Sultan (P.W.3) to Haji Ghulam Hassan; his sons Muhammad Amir deceased, and Muhammad Ismail (P.W.5).
' On the same day, i.e, the 21st of December, 1989, at about 11 a.m. Complainant Muhammad Sultan (P.W.3) alongwith Haji Ghulam Hassan, his son Muhammad Amir deceased, Muhammad Ismail (P.W.5) and Hakim Ali (P.W.4) were having some construction carried out for one Mst. Meherun Nisa and Haji Ghulam Hassan. Muhammad Shah Din appellant armed with .12 bore gun and his brother Khuda Bakhsh appellant armed with a wooden club ({{URDU TEXT}}) arrived there raising slongans (Lalkara), they would now settle accounts for the insult earlier in the morning by killing every body.
Khuda Bakhsh appellant exhorted his elder brother Muhammad Shah Din appellant to open fire, whereupon, Muhammad Shah Din fired the first shot which hit Muhammad Amir deceased on the front side of the chest and some pellets also hit Haji Ghulam Hassan on the left arm. Thereafter, Muhammad Shah Din, appellant fired the second shot which hit Muhammad Amir on the left thigh and some pellets hit complainant Muhammad Sultan (P.W.3) on the right arm and right thigh. The 3rd shot fired by Muhammad Shah Din appellant hit Muhammad Ismail (P.W.5) on the left hand and some pellets hit Mst. Meherun Nisa on the left leg. The 4th shot fired by Muhammad Shah Din appellant hit Hakim Ali on the right arm and the right buttock. Throughout the occurrence, Khuda Bakhsh appellant kept inciting his elder brother Muhammad Shah Din to deep firing. Muhammad Amir deceased fell down on the ground on account of injuries received by him. The occurrence was also witnessed by Noor Ahmad and Ghulam Muhammad (P.W.6). Complainant Muhammad Sultan (P.W.3) carried the injured persons to the Civil Hospital of Minchanabad where his statement was recorded by A.S.I. Muhammad Ibrahim (P.W.11).
7. Dr. Muhammad Nadeem Zia (P.W.1), Medical Officer, Tehsil Headquarter Hospital, Minchanabad, medically examined complainant Muhammad Sultan (P.W.3) on the 21st of December, 1989, at 12- 58 p.m. And found the following injuries on his person:--
(1) An entrance wound 1/2 X 1/2 c.m. On right side of upper part of right thigh, edges of wound inverted and lacerated and not burnt. Track was going medially and transversely corresponding part of Chaddar was having a hole and wound was bleeding.
(2) An exit wound measuring 1 X 1 c.m. Rounded on front of upper part of right thigh, edges of wound were everted and lacerated and were not burnt. Wound was bleeding profusely. It was the exit wound of injury No,l.
(3) An entrance wound 1/2 X 1/2 c.m. Rounded at medial aspect of right inguinal area, edges of the wound were not burnt, lacerated. Track was going posteriorly. Corresponding area of Chaddar was having hole.
(4) An entrance wound 1/2 X 1/2 c.m. On middle of right cubital fossa, a hard metallic substance was palpable at outer aspect of the elbow. Track of the wound was going transversely outward.
' All the injuries were kept under observation. For injuries Nos. 1, 2, and 3, X-Ray was advised. Vide X- Ray No, 224, dated 21-12-1989, report issued by M.S., T.H.Q. Hospital, Minchanabad, chip fracture of greater trochanter with one rounded radio opaque foreign body seen in this area, so injuries Nos. 1, 2 and 3 were declared simple in nature. For injury No, 4, X-Ray No, 223/MCL dated the 21st of December, 1989, according to the report of the M.S. Chip fracture of right ulna bone at its upper part with one rounded radio opaque foreign body seen in this area. On the basis of X-Ray, injury No,4 was declared simple in nature. All the injuries were caused by fire-arm weapon within the duration of 12 hours.
' On the same day at 1-15 p.m. The same Doctor medically examined Hakim Ali (P.W.4) and found the following injuries on his person:--
(1) An entrance wound 1/2 x 1/2 c.m. Rounded on posterial surface of right wrist 5 c.m. Above the joint. Edges of wound were not burnt, inverted and track was going anteriorly. No exit wound was seen.
(2) A rounded entrance wound 1/2 x 1/2 c.m. On right buttock. Edges of wound were not burnt, inverted, going anteriorly. No exit wound was seen.
(3) An entrance wound 1/2 x 1/2 c.m. Rounded at inner aspect of right ankle. Edges of wound were inverted, not burnt, and the track was giong outward. No exit wound was observed.
' All the injuries were not self-inflicted or self-suffered. All the injuries were kept under observation.
For injury No,1, X-Ray was advised. After X-Ray, report issued by M.S. T.Hq. Hospital this injury was declared as grievous as there was fracture of right radius bone, at its lower part with a rounded radio opaque foreign body seen. While other injuries after X-Ray were declared as simple. All the injuries were caused by fire-arm weapon within the duration of 12 hours.
' On the same day at 1-30 p.m. The same Doctor medically examined Ghulam Hassan and found the following injuries on his person:--
(1) A rounded 1/2 x 1/2 c.m. Lacerated wound on medial aspect of left elbow, the track was going outward, edges of wound were not burnt, rather inverted.
(2) A rounded 1/2 x 1/2 c.m. Wound on posterior surface of left forearm at its upper part, edges were irregular. Not burnt.
' All the injuries were not self-suffered or self-inflicted. Both the injuries were kept under observation and after X-Ray report of the M.S. These injuries were declared simple in nature, caused by fire-arm weapon within the duration of I 2 hours.
' On the same day, the same Doctor at 1-40 p.m. Medically examined Mst, Meherun Nisa and found the following injuries on her person:--
(1) An entrance wound 1/2 x 1/2 c.m. Rounded at outer aspect of middle of left leg edges of wounds were not burnt, inverted. Track of wound was going inward transversely Shalwar was having tear at this area.
(2) An exit wound 1 x 1 c.m. At inner aspect of middle of left leg edges of wound were not burnt, evened and lacerated and bleeding profusely. It was an exit wound of injury No, 1 .
' Both the injuries were not self-suffered or self-inflicted. Both were declared as simple in nature and were caused by fire-arm weapon with the duration of 12 houss.
' On the same day, the same Doctor at 1-50 p.m. Medically examined Muhammad Ismail and found the following injuries on his person:--
(1) An entrance wound 1/2 x 1/2 c.m. At palmer aspect of left little finger at metacarpo phalangeal area. The wound was giong on dosal surface of the hand. Edges were not burnt and were inverted.
(2) An exit wound 1/2 x 1/2 c.m. At dorasal aspect of the left little finger at middle phalangeal area.
Edges of wound were evened, tendons were crushed and coming out through the wound. The wound was bleeding profusely. It was the exit wound of injury No, 1.
(3) An entrance wound 1/2 x 1/2 c.m. At palmer aspect of left ring finger, at its base. Track was going posteriorly. Edges were not burnt and were inverted.
(4) An exit wound of third injury 1 x 1 c.m. At dorsal surface of left ring finger at proximal inter phalangeal area. The edges were everted.
(5) An entrance wound 1/2 x 1/2 c.m. At dorsal surface of left thumb at metacarpo phulangeal area.
The wound was going transversely. Edges were not burnt and were inverted.
(6) An entrance wound 1/2 x 1/2 cm at middle of left palm, edges were inverted and not burnt. Track was going posteriorly.
(7) An exit wound 1 x 1/2 c.m. At dorsum of left hand at middle. Whole of left hand was swollen in 12 x 10 c.m. Area. Movements of fingers were painful. It was exit wound injury No,6.
' All the injuries were not self-suffered or self-inflicted. All the injuries were kept under observation.
For the injuries X-Rays were advised. After X-Ray Report of the M.S. Injuries Nos. 1, 3, 5 and 6 were declared as grievous in nature while the other injuries were declared as simple in nature. All the injuries were caused by fire-arm within the duration of 12 hours.
' On the same day at 12-40 p.m. The same Doctor medically examined Muhammad Amir son of Ghulam Hassan and found the following injuries on his person:--
(1) An entrance wound 1/2 x 1/2 c. m. Rounded, on the left anterior surface of chest, at intercostal space of 6th and 7th rib at its medial end. Edges of wound were lacerated and inverted, area was not burnt. Track of wound was going to right side and slightly posteriorly transversely, corresponding part of shirt and bunian was having hole at that area.
(2) An exit wound 1 x 1 c.m. Rounded on right side of chest at intercostal space of 7th and 8th ribs on right side. Edges of wound were lacerated and everted and were not burnt. Wound was oozing blood. Corresponding area of shirt and bunian were having breach. It was an exit wound of injury No, 1 .
(3) An entrance wound 1/2 x 1/2 c.m. At middle of front of left thigh rounded and edges were inverted and not burnt. Track was going transversely to right side. Corresponding part of Shalwar was having breach.
(4) An entrance wound 1 1/2 x 1 1/2 c.m. Rounded at front of lower part of thigh. There was compound fracture of left femur at its lower part. Crepitus was palpable and wound was very much bleeding. Edges of the wound were irregular and no burning of wound was observed.
Corresponding part of Shalwar was having breach. Track was going posteriorly. No exit wound was observed.
(5) An exit wound 1 x I c.m. Rounded at inner aspect of middle of left thigh. Edges of the wound were everted and bleeding and were not burnt. Shalwar was having a breach. It was exit wound of injury No,3.
' After emergency treatment, Muhammad Amir was referred to D.H.Q. Hospital, Bahawalnagar for specialist treatment, but, he expired in the D.H.Q Hospital, Bahawalnagar, on the 22nd of December, 1989, at 10-40. p.m.
' The post-mortem examination on the dead body of Muhammad Amir was conducted by the same Doctor on the 23rd of December, 1989 at 7-30 p.m. It was the dead body of a young man with moderate built. In the opinion of the doctor, death occurred due to injuries to fatal organs leading to shock and haemorrhage, which were sufficient to cause death in the ordinarly course of nature.
All the injuries were anti-mortem and caused by a fire-arm. The time between injuries and death was 24 to 48 hours, and, between death and postmortem examination was 2 to 24 hours.
8. A.S.I. Muhammad Ibrahim (P.W.11) was posted as an A.S.I. At Police Station Mecleodganj on the 21st of Decembers, 1989. He reached Civil Hospital of Minchanabad, where he recorded the statement (Exh.PH) of complainant Muhammad Sultan (P.W.3). Thereafter, he proceeded to the place of occurrence where he examined the prosecution witnesses Noor Ahmad and Ghulam Muhammad; inspected the spot; recorded the inspection note; prepared a site-plan of the place of occurrence (Exh.PS); took into possession blood-stained earth from the place of occurrence vide recovery memo. (Exh.PK); and took into possession four crime empties from near the place of occurrence vide recovery memo. (Exh.PJ).
9. Sub-Inspector Hashmat Ali (P.W.14) arrested Muhammad Shah Din and Khuda Bakhsh accused/appellants on the 14th of January, 1990.
' Muhammad Shah Din accused/appellant led to the recovery of a licensed .12 bore double-barrel gun which was taken into possession vide recovery memorandum Exh.P.P. Alongwith its licence on the 21st of January, 1990.
' On the same day Khuda Bakhshs accused/appellant led to the recovery of a 'Sota' which was taken into possession vide recovery memorandum Exh.P.Q. These recoveries were witnessed by Muhammad Arif (P.W.9) and Muahammad Zubair who was given up by the prosecution as being unnecessary.
10. According to the report of the Chemical Examiner (Exh.P.U.) the earth which was recovered from the place of occurrence and sent to him was found to be stained with blood and according to the report of the Serologist (Exh.PV) the blood in question was of human origin.
11. Four cirme empties of 12 bore which were recovered from the place of occurrence and were sent to the Technical Services of the Crime Branch, Punjab, Lahore, were received there on the 21st of January, 1990. While the .12 bore double-barrel shot-gun'recovered from the place of occurrence was sent to the Technical Services and was received there on the 4th of February, 1990. In the opinion of the Examiner of the Fire Arms all 4 empties had been fired from the gun in question.
12. Muhammad Shah Din appellant did not deny the occurrence but pleaded the exercise of the right of private defence of body and of property. While Khuda Bakhsh accused/appellant pleaded total denial and false implication on account of being a brother of Muhammad Shah Din.
' In his statement recorded under section 342, Cr.P.C. Muhammad Shah Din in answar to the question if he had anything else to say, said that:- ' "On the day of occurrence P.Ws. M. Sultan with the help of oxes was bringing tree branches{{URDU TEXT}} (e-14) and destroyed my crop by entering and trespassing in my field. On my objection he abused me and insisted to pass through my crop with oxes and ( a- LeF ). In retaliation I also abused him and told him that I would not permit him to destroy my crop. He on that went toward the house of Amir, his brother-in-law and with his help and other P.Ws. Started firing at me. I in defence of my person and property also fired with my gun then with me which I generally carry with me. The deceased P.Ws. Injured in the cross-firing. My co-accused was then not with me."
13. Muhammad Shah Din also gave a statement under section 342(2), Cr.P.C. On oath and was subjected to cross-examination.
14. The occurrence itself having been admitted by Muhammad Shah Din appellant, the case of the prosecution has to be seen in juxtaposition with the case of the defence. It is now settled law since the decision rendered in the case of Safdar Ali v. The Crown reported in PLD 1953 Federal Court page 93 that if on examination of the case of the prosecution and the defence, there is a reasonable possibility that the defence version may be true then that version has to be accepted as against the prosecution version which must be proved by the prosecution beyond all reasonable doubts.
15. The crucial question in the present case is as to where did the occurrence take place?
The prosecution would have us believe that the occurrence took place on a path carved out by the complainant party from their own land in order to be used as a thoroughfare. This stance is actually belied by the evidence of Muhammad Munir, Patwari (P.W.10) who prepared the site plan (Exh.P.R.) and admitted in cross-examination that the path in question is not shown in the Khasra and record of rights and that the said passage where the occurrence took place and is shown as Point No,9 in the site plan is the land of Muhammad Shah Din appellant/accused.
This evidence actually cuts across the entire prosecution version and supports the version of Muhammad Shah Din appellant.
16. Seen in juxtaposition, we are inclined to reject the case of the prosecution and accept the defence version. However, Muhammad Shah Din appellant who was, admittedly, armed with a double-barrel shot-gun fired four shots which means that he necessarily reloaded his gun. Four crime empties were recovered from the place of occurrence and all four were found to have been fired from this particular gun. We, therefore, maintain the conviction of Muhammad Shah Din appellant recorded under section 302, P.P.C. But do not C confirm the sentence of death and instead reduce it to imprisonment for life. We extend the benefit of doubt to Khuda Bakhsh appellant, set aside his conviction and sentence and acquit him.
Resultantly, this appeal is partly accepted. Khuda Bakhsh appellant is acquitted and is set at liberty forthwith if not required in any other case. The conviction of Muhammad Shah Din appellant under section 302 P.P.C. Is maintained. However, the sentence of death awarded to Muhammad Shah Din is not confirmed and is reduced to imprisonment for life. The conviction and sentence of Muhammad Shah Din appellant under section 307, P.P.C. Is also maintained. The compensation and fine imposed upon Muhammad Shah Din appellant is also maintained. However, both sentences shall run concurrently granting the benefit of section 382-B, Cr.P.C.
17. The criminal revision seeking enhancement of the sentence awarded to Khuda Bakhsh is dismissed.