' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,129/J of 1999 filed by Ghulam Ahmad through jail who was convicted and sentenced by learned Additional Sessions Judge, Okara Camp at Depalpur vide his judgment, dated 1-6-1998 as under:--
(i) 10 years R.I. With a compensation of Rs,50,000 as required under section 544-A, Cr.P.C. And in default six months' S.I. With the benefit of section 382-B, Cr.P.C. For committing the Qatl-e-Amad of Ali Akbar under section 302(c), P.P.C;
(ii) 10 years' R.I. With a compensation of Rs,50,000 as required under section 544-A, Cr.P.C. And in default six months' S.I. For committing the murder of Muhammad Hassan under section 302(c), P.P.C. With the benefit of section 382-B, Cr.P.C.
' Ali Anwer, complainant, had also filed Criminal Revision No,332 of 1998 for enhancement of sentence awarded by trial Court to Ghulam Ahmad. Both the Criminal Appeal and Criminal Revision shall be disposed of through this single judgment.
2. Before proceeding with the case, it may be noted here that we have been informed that Ghulam Ahmad has been released from jail after serving out the period of his sentence.
3. Occurrence in this case had taken place at 8/9 a.m. On 3-8-1995 within the revenue estate of Mauza Taju Muhar Dakhli Nihal Mahar while the matter was reported to police in Police Station through Exh.P.A. At 10-15 a.m. The same day and formal F.I.R. No,247 of 1995 was also lodged on the same day.
4. Briefly stated facts of the case were that land of complainant Ali Anwer, his brothers Ali Akbar, Muhammad Hassan and the land of Ghulam Ahmad accused was irrigated with the canal water from the same watercourse. On 2-8-1995, turn of water of accused Ghulam Ahmad was breached by Ali Akbar for the reason that Ghulam Ahmad laid not participated in desalting of the watercourse which became a matter of dispute between them. Ali Akbar and Ghulam Ahmad grappled. Ali Akbar slapped Ghulam Ahmad which developed grudge in the mind of Ghulam Ahmad against Ali Akbar. On 3-8-1995 at about 8/9 a.m., Ali Akbar and Muhammad Hassan were taking their cattle heads to graze them in the field. The complainant and Faiz Ahmad followed them. When Ali Akbar and Muhammad Hassan reached near the cotton crop of Muhammad Tayyab, Ghulam Ahmad emerged out of the Charri crop armed with 222 rifle, raised Lalkara to teach a lesson to Ali Akbar for his humiliation and made fires with rifle landing on the left buttock, right elbow joint and on receiving those injuries. Ali Akbar fell down and when he was lying down, the accused made successive fires at him which resulted into his death at the spot. Muhammad Hassan raised alarm upon which Ghulam Ahmad accused also fired at him landing on his chest and other parts of the body. Both the injured succumbed to the injuries at the spot.
5. After registration of the formal F.I.R., Allah Yar, S.-I. (P.W.11) visited the place of occurrence; prepared inquest reports, Exh.P.L. And Exh.P.M. Injuries statements Exhs.P.M. And P.M./1; collected bloodstained earth underneath the dead body of Muhammad Hassan and also Ali Akbar and took the same into possession vide memo. Exhs.P.C. And P.D., respectively. Also took into possession 7 empty cartridges of 7 mm rifle P.3/1-7 vide memo. Exh.P.E., Ghulam Ahmad, accused was arrested on 5-8-1995 who while in police custody led to the recovery of .222 rifle P.1 along with 5 live bullets P.2/1-5 which was taken ' into possession vide memo. Exh.P.B. After completion of the investigation, Ghulam Ahmad accused was challenged to face the trial,
6. Prosecution in order to prove its case produced 11 witnesses in all out of whom Ali Anwer (P.W.1) and Muhammad Tayyab (P.W.2) were eye-witnesses while the doctor who conducted post- mortem examination on the dead bodies of two deceased was produced as P.W.B. Thereafter, the Public Prosecutor tendered in evidence reports of the Chemical Examiner Exh.P.O. And Exh.P.P. And also of the Forensic Science Laboratory Exh.P.Q. Then, statement of Ghulam Ahmad accused was recorded under section 342, Cr.P.C. In which he took the plea of self-defence. He also tendered in evidence copy of Warabandi D.2, Naqsha Khal D.3, photo copy of challan of case F.I.R. No,251 of 1995 D.4 copy of Rozenamcha D.5 and photo copy of diary of 1995 D.6. After conclusion of the trial Ghulam Ahmad accused was convicted and sentenced mentioned above.
7 . Learned counsel for the complainant who had filed criminal revision submits that it was a case of promptly lodged F,I.R.; occurrence took place at 8/9 a.m. And the report was lodged at 10-15 a.m.
On the same day, although police station was at a distance of 21 K.Ms. Away from the place of occurrence; eye-witnesses produced by the prosecution had got no previous enmity with the respondents; it was not a case of self-defence as held by the learned trial Court; document D.2 which is a copy of Warabandi relates to Muhammad Amin son of Wali Muhammad and has no nexus with the water turn of accused/respondent and that one of the injury on the person of one of the deceased is having blackening which means that the fire was also shot from a distance of six feet. Further submits that recovery of rifle was effected from the respondent, seven crime empties recovered from the spot of rifle 222 matched with the rifle according to reports of fire-arm expert and Forensic Science Laboratory. Adds that learned Additional Sessions Judge has misread the evidence on record and prosecution has proved its against respondent through ocular account corroborated by medical evidence, recovery of rifle and the motive. Learned counsel lastly, submits that grave injustice has been done to the complainant.
8. Learned counsel for Ghulam Ahmad respondent submits that findings of the trial are based on evidence; it was a case of self-defence to protect the life and property to enhance the sentence or to order for retrial substantial and cogent reasons should exist; the judgment of the learned Additional Sessions Judge is neither arbitrary nor capricious and that the respondent has already undergone the period of sentence awarded to him by the learned trial Court and he has been released from jail.
9. Learned counsel appearing for the State in the revision petition supports the submission made by learned counsel for the revision petitioner and submits that the conclusions drawn by the trial Court are against the record.
10. We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case occurrence took place at 8/9 a.m. On 3-8-1995 while the matter was reported to the police in police station through Exh.P.A by Ali Anwar P.W.1 at 10- 15 a.m. Although police station was at a distance of 21 K.Ms. Respondent is only accused in this case he had committed the brutal murder of two young persons. The learned trial Court has misread the evidence on record, based its findings on the surmises and conjuncture. The learned Additional Sessions Judge while discussing the prosecution case in paragraph No,22 at page 16 of his judgment observed as under:-- "According to the contents of F.I.R. Exh.P.A. The occurrence had taken place on 3-8-1995 at 8/9 a.m.
Neither the complainant Ali Anwar nor the eye-witness Muhammad Tayyab P .W . 2 has specifically deposed that the occurrence had taken place on 3-8-1995 at 8/9 a.m.; what they have deposed is that the occurrence had taken place one' year and 8/9 months prior to their statements. So, both these eyewitnesses have not specified the exact date and time of the occurrence in their statements before this Court."
11. This finding of the learned trial Judge is against the record because both the eye-witnesses namely Ali Anwar and Muhammad Tayyab have specifically mentioned the time of occurrence and the date. Ali Anwar in his examination-in-chief had specifically stated that the occurrence took place about one year and nine months ago at about 8/9 a.m. Then at page No,5 of his cross- examination when suggestion was put to him by defence counsel that occur-hence had taken place between 11/12 p.m. On 2-8-1995, volunteered occurrence had taken place at 8-00 a.m.
Similarly Muhammad Tayyab P.W.2 in third line of his Examination-in-Chief stated that the occurrence had taken place at 8/9 a.m.
12. Respondent had taken the plea of self-defence of life and property. According to Article 121 of the Qanun-e-Shahadat Order Ordinance, when an accused persons wants to A bring his case in any of the exception as was there in section 100, P.P.C., the onus lies upon him to prove the said plea, but in the instant case, respondent failed to prove the same, because D.2 is a copy of Warabandi, which belongs to Muhammad Amin son of Wali Muhammad, D.1. Is copy of Jamabandi of Khewat No,12, Khatooni No,128 with regard to ownership of 39 Kanals and 17 Marlas. No other document was brought on record to show that at the relevant time Ghulam Ahmad accused had the turn of water.
13. The learned trial Court had come to the conclusion that it was turn of water of respondent when an altercation took place between respondent and Ali Akbar deceased which led to cross-firing and the respondent while exercising the right of self-defence killed both the deceased. This finding is against the record because Dr. Muhammad Rafique examined as P.W.8, who conducted post- mortem examination on the dead bodies of both the deceased opined that there were numerous injuries on the persons of both the deceased. Ghulam Ahmad respondent had not received even a single scratch on his body. For the sake of arguments, without conceding, if one admits that there was an altercation between respondent/accused and Ali Akbar deceased, then there was no fault of Muhammad Hassan who too was murdered by respondent. At this stage, statement of Dr. Muhammad Rafique P.W.8 may be referred and same is reproduced below:-- "On 4-8-1995 at 8-30 a.m. I conducted the post-mortem examination of the dead body of Muhammad Hassan son of Muhammad Yar....
' Details of injuries:
(1) A lacerated wound 3 c.m. x 1.5 c.m. Deep going, margin inverted at back of left shoulder, left scapula fractured into pieces, then bullet entered into left chest cavity punctured through upper lobe of left lung, fractured 3rd thoracic vertebra and entered in right chest cavity, passed to upper most and outer, part of right chest and one bullet alongwith its small piece recovered below right scapula area, 3rd left rib also fractured.
(2) A lacerated wound 1.5 c.m. x '1 .c.m. Deep going margin inverted with some blackening, at mid and front of right Ch. Set and 3 '0' Clock position and 2 c.m. From right nipple, the -. Bullet entered in right chest cavity by fracturing right 3rd rib, mid lobe of right lungs fractured, the bullet left chest cavity through right first inter-costal space, fractured right scapula and left the body through a lacerated wound 1 x 1 c.m. Margins averted at back and upper most part of right chest (scapular area) 2-3 liter dark blood was present right chest cavity and about one liter in left chest cavity.
' Probable time between injury and death was almost immediate and between death and post- mortem 18-36 hours..
' On the same day at 7-00 a.m. I conducted post-mortem examination on the dead body of Ali Akbar son of Muhammad Yar.
' Following injuries were noted:--
(1) A lacerated wound 2.5 c.m. x 1 c.m. Deep going margin inverted at outer aspect of right chest, 8 c.m. At 9 '0' Clock position from right nipple, bullet entered in right chest cavity from 4th inter costar space 5th right rib fractures, lower lobe of right lung penetrated through and through, upper surface of liver lacerated in area 3 c.m. x 3 c.m. 9th right rib was fractured near its attachment with vertebra and then passed out through lacerated wound x 1/2 c.m. Margins averted at back and mid of chest, facing veritable column about 2 liter blood was present in chest cavity.
(2) Two abrasion each measuring in 2 x 1 c.m. At right lumber region 1 c.m. Above right iliac crest.
(3) A lacerated wound 3 x 1.5 c.m. Deep going margin inverted at upper part of left buttock, iliac bone was fractured then bullet entered into abdomenal cavity and ruptured small and large gut a many place alongwith its mesentary pancreas, left border of liver lacerated and then passed out of body through a lacerated wound 1 x 1 c.m. Margins everted at right side of epigestrium, faeces and blood was present in abdomenal cavity.
(4) A lacerated wound 1 x 1 c.m. Deep going margins inverted at back of upper part of right fore- arm 3 c.m. Below elbow (entry). This wound was communicated with a lacerated wound 1.5 x 1 c.m.
Margins everted at front and lower part of right upper arm, 6 c.m. Above elbow.
(5) A lacerated wound 2 x 1 c.m. Margins inverted at back of right elbow on opening upper and of radious and ulna and lower and of right numerous bones were fractured, this wound communicated to wound 1 x 1 c.m. Margin everted at outer and front of right elbow.
' Probable time between injury and death was almost immediate and between death and post- mortem was 18-36 hours."
Seven crime-empties of .222 rifle recovered from the spot matched with the rifle of respondent as is evident from the reports of the Fire Arms Expert and Forensic Science Laboratory. If it was a case of cross-firing as alleged by accused, then there should have been empties of other fire-arms but no empty except of 222 rifle were recovered from the spot.
' It may also be noted here that respondent had not even put first version, if any, to the Investigating Officer. Even during the cross-examination, the Investigating Officer had repudiated the suggestion put to him by defence counsel that occurrence had taken place over the turn of water. He also replied in question put to him by defence counsel that many persons appeared before him and they told that turn of water of Ghulam Ahmad was one day prior to the occurrence.
At this stage, reply to the question No,7 given by respondent is reproduced:-- "P.W.1 Anwer is real brother of deceased persons. P.W .2 Muhammad Tayyab is brother in law of Ali Akbar deceased. P.W. Sakhi Muhammad and Niaz Ahmad are maternal uncles of deceased.
Ghulam Yasin P.W. Is father-in-law of Ali Anwer complainant. Due to their relationship they have deposed against me. On the night between 2/3-8-1995 deceased party took the turn of my water forcibly. Upon which there was an altercation between us. Then I was beaten by the deceased party and forcibly took my water. Upon my resistance, deceased party along with Waseem and Akhtar etc. Started firing on me upon which I in order to save my person and property started firing upon them. This firing was done by me from the shelter shed (, ) which I constructed in my Charri crop. During the cross firing of the parties Ali Akbar and Muhammad Hassan sustained injuries and due to this, the case was made against me."
' A bare perusal of the version put forward by the respondent in reply to question No, 7 in his statement under section 342, Cr.P.C., if put in juxtaposition with the prosecution version, the version of the respondent does not find favour and it also does not fit in with the prosecution story and cannot be believed in any manner whatsoever and this plea of the respondent is without any basis and does not get support even from the surrounding circumstances and the evidence produced before the trial Court.
In our considered view, Ghulam Ahmad did not act in self-defence but while armed with 222 rifle committed the murder of 2 young persons out of whom one was married one. The evidence brought on record by the prosecution having been misread and not construed in a proper manner, we accept the revision petition, set aside the judgment, dated 1-6-1998 passed by the learned Additional Sessions Judge, Okara, and remit the case for retrial by the learned Sessions Judge himself who would conclude the trial within a period of three months. District Magistrate, Okara is directed to order the concerned police to take into custody Ghulam Ahmad accused and to put him in the judicial lock-up so as to face trial afresh.