' Ghulam Asgher appellant aged about 35 years was tried alongwith Ghulam Akbar and Nazar Hussain co-accused by the learned Additional Sessions Judge H, Dera Ghazi Khan for the offence under sections 302, 307/34 and 324/34, P.P.C. For having committed the culpable homicide amounting to murder of one Haji Khurshid Ahmad, and for launching murder assault on Khadim Hussain and Taj Muhammad P.Ws., vide judgment of 22-1-1992, the learned trial Judge found the appellant guilty of the charge under section 302(b), P.P.C. And accordingly convicted and sentenced him thereunder to imprisonment for life with benefit of section 3,82-B, Cr.P.C. Since no sentence of fine was provided by the said provision of law, therefore, no such sentence was awarded to the appellant.
2. Ghulam Akbar and Nazar Hussain co-accused of the appellant were, however, given benefit of doubt and were acquitted from all the charges alleged against them.
3. Aggrieved by the aforesaid judgment the appellant had filed the instant appeal which is being disposed of through this judgment.
4. The facts of the prosecution case, as narrated in the F.I.R. (Exh. P.B.) lodged by Muhammad Azeem complainant, P.W.4 with S.I. Azeem Khan P.W.7, in brief are that on 7-12-1990 at about 8.30 a.m Khurshid Ahmad deceased alongwith Muhammad Azeem, Khadim Hussain, Karim Bakhsh and Taj Muhammad P.Ws. Went to Minor Pir Adil Jadeed Chah Pakki Ibrahimwala in lodge a protest with Ghulam Asghar, Ghulam Akbar and Nazar Hussain accused, who had demolished the Khal and had stopped the flow of water to the lands of the deceased. Muhammad Azeem and Karim Bakhsh entreated them to let the water flow to the lands of Haji Khurshid Ahmad but Ghulam Asghar appellant got enraged and did not accede to their request. Khurshid Ahmed insisted on his demand by saying that he would flow the water from the Khal as he has been previously doing the same. At this Ghulam Asgher who was armed with gun fired a shot hitting Khurshid Ahmad on his fore-head. Thereafter, Ghulam Akber and Nazar Hussain, who were armed with revolver and gun respectively, fired one shot each on Khurshid Ahmad deceased, Khadim Hussain and Taj Muhammad PWs, but the, same had gone ineffective. All the accused then went away alongwith their weapons of offence. Khurshid Ahmad succumbed to his injuries at the, spot. Leaving Haji Karim Bakhsh, Khadim Hussain and Taj Muhammad P.Ws. To guard the dead body, Muhammad Azeem went to the Police Station Kot Mubarik and lodged the F.I.R. (Exh. P.B) which was recorded by S.I. Azeem Khan P.W.7, who after reading it over to the complainant got the same thumb-marked by him in token of its correctness. The motive for the alleged offence was stated to be the quarrel over the flow of water from the Khal to the lands of the deceased which was stopped by the accused by demolishing the said Khal.
5. S.I. Azeem khan P.W.7 resumed the investigation at the spot by preparing the inquest report Exh.
P.J. Of the dead body of Khurshid Ahmed deceased and despatched the same to mortuary under the escort of F.C. Muhammad Rafiq P.W.1. He took into possession the blood-stained earth from underneath the dead body of the deceased and two empties P6 and P7 from the spot vide memo.
Exh.PC and Exh. PD respectively and made them into two sealed percels separately. He also 'took into possession two spades Exhs. P8 and P9 from the spot vide memo. Exh. PE. He then prepared the rough sketch of the place of occurrence Exh. PK and got the site plans Exhs. P.I, P.I/1 and P.I/2 prepared from the Patwari and signed the same after incorporating the notes in red thereon.
6. On 14-12-1990 he arrested all the three accused. On 20-12-1990 Ghulam Asgher appellant, while in police custody got recovered gun Exh. P.10 from his house which was sealed and taken in possession vide memo. Exh. PF attested by Muhammad Azeem P.W.4 and Haji Karim Bakhash, not produced. On the same day Ghulam Akbar got recovered revolver Exh. P.11 and Nazar Hussain led to the recovery of gun Exh. P.12 from their respective houses, which were sealed and were taken in possession vide memo. Exhs. PG and PH respectively attested by the same witnesses. After completion of the investigation he challaned all the three accused to face their trial.
7. Dr. Muhammad Irshad, Medical Officer P.W.8 conducted the postmortem examination on the dead body of Haji Khurshid Ahmad deceased, aged about 28 years, on 7-12-1990 at 3.30 p.m. And found the following injury thereon:-- ' A lacerated wound (by fire arm) with a size of 1/2" x 1/2" in middle of fore-head, 2" above the route of nose, margins were lacerated, inverted, and brain matter was coming out from the wound. This was a wound of entry. There was no wound of exit.
' On internal examination, he observed as follows:-- ' Scalp and Skull. A hole was present with a size of half inch into half inch in middle of frontal bone of skull 2" from the route of nose, with the fracture of frontal bone. There was clotted blood present in between scalp and bone. Bullet was present on the inner side of the occipital bone (impacted).
Bullet was removed, sealed and handed over to police.
' Membrains. There were tears upto corresponding wounds.
Brain. Brain matter was coming out of the wound and there was also tear. Blood was also found in the cranial cavity.
' All the other organs were healthy and nothing abnormal was detected. The right side of the heart was containing some blood, while its left side was empty. The stomach was containing small amount of food and fluid. The small intestines contained small amount of secretion sand gases.
Large intestines contained faecal matter, while the bladder was empty.
' In his opinion the above injury was anti-mortem in nature, and it caused the death due to intra- cranial bleeding and injury to the vital organ of brain. The injury was caused by a fire-arm. The duration between injury and death was immediate, while between death and post-mortem was 6 to 7 hours. The injury was sufficient to cause death in the ordinary course of nature. He issued the postmortem report, the copy of which was Exh. P.L. With a diagram of injury as Exh. P.L./1. The same were in his hand and bear his signatures.
8. To substantiate its version at the trial the prosecution examined as many as nine witnesses.
Muhammad Azim P.W.4 and Khadim Hussain P.W. 6 furnished the ocular account as well as of the recovery of the alleged weapons of offence. Dr. Muhammad Irshad P.W.8 conducted the post- mortem examination on the dead body of the deceased. Muhammad Yousaf Patwari P.W.5 prepared the site plains Exhs. P.I., P.I./1 and Exh. P.I/2. S.I. Azeem Khan P.W. 7 investigated the case and challaned the accused to face their trial. Rest of the evidence was formal in nature. The prosecution also tendered in evidence the positive reports of Forensic Science Laboratory Exh. P.O.; Chemical Examiner Exh. P.M, and Serologist Exh. P.N. In their statements under section 342, Cr.P.C. All the three accused including the appellant had denied the accusations, made against them and pleaded their innocence. Neither any of the accused appeared under section 340(2), Cr. P.C. As a witness of their own to rebut the charges alleged against them nor had produced any witness in their defence.
9. On the basis of the above said evidence, the learned trial Court convicted and sentenced Ghulam Asgher appellants as indicated above and acquitted Ghulam Akbar and Nazar Hussain by giving them the benefit of doubt.
10. Learned counsel for the appellant vehemently contended that after disbelieving the, motive and the alleged recoveries of the weapons of offence, the learned trial Court has erred in convicting the appellant on the basis of the ocular evidence which was also disbelieved in respect of the two acquitted co-accused; that there was no independent additional evidence so as to implicate the appellant except the aforesaid tainted evidence of the two P.Ws.; lastly it was alternatively argued that the case of the accused appellant would fall in the purview of section 302 (c), P.P.C. As the alleged offence was committed in exercise of the right of self-defence of property, which although was not specifically pleaded by the appellant but the same was clearly spelt out from the evidence on record. Laying great emphasis on the point learned counsel contended that the lands of the appellant adjacent to the Khal, had become muddy due to the leakage of the water occurred due to the negligence of the deceased who did not look after vigilantly the flow of the water to his lands for whole of the night. It was because of this damage that the appellant had to stop the flow of water by demolishing the Khal. He further submitted that it was at the insistence of the deceased to take the water to his lands at any cost that he was fired at by the appellant only to save his lands from the damage to be caused by the leakage of the water. To substantiate his contentions, learned counsel has referred to the contents of the F.I.R. Exh. P.B., in which it was narrated by the complainant that the deceased had asked the accused that previously the water used to pass through that Khal and on that day, he would also take the water therefrom. Although the complainant had denied this fact, while making statement before the learned trial Court, but the same was duly confronted and was found to have been so recorded in Exh.PB. Stressing the same point, Learned counsel referred to the statement of Khadim Hussain P.W.6, who had stated before the learned trial Court that he alongwith his father Karim Bakhsh and Azeem Khan complainant requested the accused for allowing Haji Khurshid Ahmad to irrigate his land through the Khal but the accused did not agree. Haji Khurshid Ahmad then asked the accused that all the people including the deceased had been irrigating their land for the last one week through that Khal and that they should allow him as well to irrigate his land. It was then that accused Ghulam Asghar had fired shot with his gun, hitting the deceased his forehead. Learned counsel had also referred to the statement of this witness made in cross-examination where he had denied having stated in his statement before the police that the deceased Khurshid Ahmad had told the accused that previously the water used to pass through that Khal and that he would also irrigate his land, therefrom. This fact was duly confronted and found so recorded in Exh.D.A. To further strenthen his arguments, learned counsel has referred to the admission made by S.I. Azeem Khan P.W.7 wherein he admitted the suggestion as correct that Ghulam Asghar accused had stated before him after his arrest since the supply of water through that Kassi (Khal) used to damage their adjacent contton crop to make it impossible for him to cultivate that land, therefore, he had closed the Khal in dispute. On these premises it was urged that the appellant had fired at the deceased only in the exercise of his right of self-defence of property, which was clearly spelled out from the prosecution evidence. As such, his case would fall in the purview of section 302 (c), P.P.C. Reliance in this respect was placed on Muhammad Zaman v. Dost Muhammad and others (1988 SCM R 388) and Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274). Regarding quantum of sentence learned counsel submitted that the appellant has already undergone the rigors of jail for about 8 years, and has earned five years remission due to the Golden Jubilee Celebration of Pakistan, as such, the undergone period would be about more than 13 years, It was, therefore, prayed that it would be in the interest of justice that conviction of the appellant may be altered to section 302 (C), P.P.C. And his sentence of 25 years be reduced to that already undergone by him, i,e, about 13/14 years.
11. Learned counsel for the State has taken exception to the aforesaid submissions and has supported the impugned judgment which, according to him, did not suffer from any illegality or perversity. He further submitted that the deceased and his companions were not armed with any weapon and had approached the appellant with a request to allow them the flow of the water, who, on the other hand, was already armed with gun, and had used the same by firing shot on the forehead of the deceased, which resulted in his death.
12. I have heard the learned counsel for the parties and have perused the record carefully with their assistance and have also gone through the case law cited at the bar.
13. The prosecution has mainly kept its reliance on the ocular testimony furnished by Muhammad Azeem P.W.4 and Khadim Hussain P.W.6, who have also deposed about the alleged recoveries of the weapons of offence from the appellant as well as his two acquitted co-accused. The motive part of the occurrence has also been brought on record through the testimony of the aforesaid two witnesses. It would, therefore, be necessary to analyse and appraise the evidence of these witnesses carefully so as to judge the veracity and credibility of the same in the light of the circumstances of the case. It may also be taken note of at this stage that the learned trial Court has already partly disbelieved their testimony regarding the culpability of the two co-accused of the appellant who were acquitted and their testimony in respect of the recovery of the weapons of offence and the motive was also disbelieved. I, therefore, proceed to further scan their testimony, as to whether the same was sufficient to warrant the conviction of the appellant.
14. Muhammad Azeem P.W.4 has reiterated the contents of the F.I.R. And has further deposed about the recovery of the weapons of offence from the three accused. Khadim Hussain P.W.6 materially corroborated the version given by P.W.4 by stating that on the day of occurrence at about 8.00 a.m.
He was present in the house alongwith Taj Muhammad and Karim Bakhsh when Azeem Khan complainant and Haji Khurshid deceased approached them and told that the flow of water to the lands of Khurshid deceased has been stopped by accused Ghulam Asghar, Ghulam Akbar and Nazar Hussain and had asked them to accompany them to make the request to the accused to allow the flow of water. He further stated that at about 8.30 a.m. They reached the disputed Khal and found Ghulam Asghar appellant armed with gun, Ghulam Akber with 32 bore revolver and Nazar Hussain armed with gun standing on the bank of that minor. Karim Bakhsh and Azeem Khan requested the accused for allowing Haji Khurshid to irrigate his land through the Khal but they did not agree. Haji Khurshid deceased then asked the accused that all the people had been irrigating their land through the said Khal for the last one week, he should allow him also to irrigate his land.
At this, Ghulam Asghar accused fired shot from his gun, hitting Haji Khurshid at his forehead, as a result of which he fell down. Both this P. Ws. Were cross-examined by the learned defence counsel at length but nothing favourable to the appellant could be brought on record. They have made straight forward statements which inspire confidence, as such, are worthy of credence.
15. As regards the recovery of gun, the crime weapon, from the appellant, the same requires serious consideration. Although the learned trial Court has disbelieved the recovery of the weapon of offence, yet I feel constrained to appraise the same afresh. It would be relevant to mention, at this stage, that two crime empties recovered from the spot were sent earlier to the office of the Director Forensic Science Laboratory, whereas the gun recovered from the accused/appellant was sent subsequently to the said office. According to the opinion of the Fire Arms Expert, which is Exh.P.O., one of the crime empties P.6 had matched with the gun P.10 recovered from the appellant.
Therefore, the possibility, that the said empty was fired from the gun by the Investigating Officer himself, so that it should match with the gun recovered from the accused/appellant, stands excluded. In these circumstances, I have no hesitation in my mind to conclude that the said gun stand connected with the crime and corroboration can conveniently be sought from this piece of evidence as well.
16. From the above statements of the witnesses coupled with the alternate plea of self-defence of property, as the time of occurrence, the venue of the alleged murder and the presence of the parties stand admitted, the crucial point to be determined by this Court would be, as to which of the two versions, i,e, one put forth by the prosecution and the other urged by the learned counsel for the appellant, regarding the self-defence of property, was probable and more nearer to truth.
To arrive at a just conclusion, I have placed both the versions in juxtaposition. From the material on record, I find that the accused/appellant had initially denied the accusations of the prosecution during the trial and had not taken any specific plea. He had neither adduced any evidence in his defence nor had appeared under section 340(2), Cr.P.C. To rebut the charges against him. The learned counsel has simply relied on the afore-mentioned admissions that on the insistence of the deceased to flow the water to his lands, he was fired at by the appellant, but this fact alone would not entitle the accused/appellant to fire at the vital part of the body of the deceased, who accompanied by the P.Ws., had visited the spot, without having armed himself with any weapon of offence and was entreating the accused persons to allow the flow of water to his lands. There is nothing on record to suggest that any of the witnesses or the deceased was aggressive to the extent that the appellant would have resorted to open fire to save himself or his property. Moreover, there is also no evidence to disclose that the deceased had either tried to cut the Khal or had actually cut the Khal to get the flow of water, so as to justify the appellant to fire at the deceased.
There is also no explanation as to why the accused party was available at the spot, variously armed with guns and revolvers, which being not the agricultural instruments, were not required to be kept at the place of occurrence by the appellant or his co-accused. From this it can safely be gathered that the appellant had evil designs and were fully prepared to do away with the deceased who had allegedly caused damage to his lands. In order to fulfil their evil design, it was during the course of entreatment by the deceased and his companions, that the appellant had opened fire, aiming and hitting the deceased on his forehead (a vital part of the body), which resulted into his death. In these circumstances, I have no doubt in my mind to hold that the pleas of self-defence of the property was not spelled out from the evidence on record.
18. Since the plea of self-defence of person or property is neither proved nor spelled out from the circumstances of the case, therefore, the precedents cited at the bar are not helpful to the appellant.
19. The upshot of the above discussion is that the prosecution has proved its case against the appellant beyond any reasonable doubt through unimpeachable evidence of Muhammad Azeem P.W.4 and Khadim Hussain P.W.6, duly corroborated by the medical evidence and the recovery of the gun from the appellant. He has, therefore, been rightly convicted and sentenced by the learned trial Court under section 302(b), P.P.C. Hence, no interference is called for by this Court. Resultantly, the appeal merits dismissal and the same stands dismissed.