' This judgment will dispose of Criminal Appeal No,156 of 1998 filed by Hassan alias Hassni and Ghazi, both real brothers inter se who were convicted and sentenced by learned Additional Sessions Judge, Rahimyarkhan vide judgment, dated 26-10-1998 for committing the murder of Nazar Hussain and causing injuries on the person of Suleman as under:---
1. Nazar Hussain alias Hasni: Life imprisonment under section 302(b), P.P.C. With benefit of section 382-B, Cr.P.C.
2. Ghazi: R.I. For 10 years under section 337-D, P.P.C. And to pay a Daman of Rs,71,666. He was to be kept in jail till the payment of Daman. Benefit of section 382-B, Cr.P.C. Was, however, granted.
' It may be noted here that co-accused of the appellants, namely, Rasool Bukhsh, Pathan and Haji Ahmad were acquitted through the same judgment.
2. Occurrence in this case had taken place in the area of Bhait Faghal at a distance of 18 Kilometres from Police Station Zahar Peer, District Rahimyarkhan at 3-30 p.m. On 20-7-1996 while the matter was reported by Muhammad Khan, complainant (P.W.1) through a written complaint Exh. P.A. On 21- 7-1996 at 5 p.m. On the basis of which formal F.I.R. Exh. PA/1 was recorded by SI/SHO Ahmad Din (P.W.8) at 6-45 a.m. On the same day.
3. Briefly stated facts of the prosecution case were that complainant occupied 60 acres of land surrendered by the family of Mirza Ihsan Ullah under the Land Reforms and the complainant had filed a civil suit at Khanpur and got stay order in his favour. Next date of hearing in the suit was 28- 7-1996. In the occupied land, complainant along with his sons Ashiq Hussain, Manzoor Hussain and Nazar Hussain (deceased) were residing in their respective Jhuggis and had sown Jantar crops in the land. One Suleman had also occupied another piece of land surrendered under the Land Reforms and had installed a tubewell. Aforesaid Mirza Ihsan Ullah had got registered a criminal case against 5 persons vide F.I.R. No, 113 of 1996 with Police Station Zahar Peer. A day prior lodging the said F.I.R., that is, on 21-7-1996 at about 3-30 p.m. Complainant along with his two sons, namely Manzoor Hussain and Ashiq Hussain was sitting in the Jhuggis of Nazar Hussain, deceased. Nazir Hussain and the aforesaid Suleman were grazing their sheep at a distance of one acre. On hearing the noise, the complainant along with his two sons, namely, Manzoor Hussain and Ashiq Hussain came out of Jhuggis and witnessed that five persons carrying guns in their hands who were tenants/managers in some other land of Mirza Ihsan Ullah, were proceeding, while raising Lalkara that they would teach a lesson to Nazar Hussain deceased for occupying the land illegally. The complainant along with his sons admonished the accused, so they stopped at a distance of 21 acres from Nazar Hussain deceased when in the vision of the witnesses, Hassan accused gave a gun fire shot to the victim landing on his right shoulder and belly and he fell down. Similarly, Ghazi, appellant also gave a fire shot which hit Suleman on his belly. Thereafter, all the three accused opened firing upon the complainant and his sons but that missed. The accused made their escape good while brandishing guns in their hands Nazar Hussain died at the spot while Suleman was shifted to hospital.
' Motive gives it the F.I.R. Was that Mirza Ihsanulah and one Inayat still claimed their ownership over the land occupied by the complainant, so both the said claimants had induced the named accused who are their managers and tenants and on their instance, the deceased had been done to death.
4. After registration of the formal F.I.R., Jan Muhammad, A.S.-I. (P.W.7) proceeded to the place of occurrence and took into possession the dead body of Nazar Hussain, prepared the injury statement Exh. PH/4, inquest report Exh. PH/5 and dispatched the dead body to mortuary for post- mortem examination. He took into possession 14 empties of .12 bore (P.9/1-4) vide. Memo. Exh.PK. On 6-8-1996 he arrested Rasool Bukhsh, Haji, Ghazi, Hassan Bukhsh and Pathan accused. Rasool Buichsh while in police custody led to the recovery of .12 bore gun P.4 which was taken into possession vide memo. Exh. P.C. On the same day, Pathan accused led to the recovery of .12 bore gun P.5 which was taken into possession vide memo. Exh.P.D. On the same day Haji led to the recovery of gun P.6, Ghazi led to recovery of double barrel .12 bore gun P.7 and Hassan also got recovered 12 bore gun P.8 which were taken into possession vide memos. Exhs. P.E, P.F and P.G respectively. After completion of the investigation, Jan Muhammad, A.S.-I. Put up the challan before the S.H.O. Who forwarded the same before the Illaqa Magistrate.
5. Prosecution in order to prove its case produced 11 witnesses in all, out of whom, Muhammad Khan (P.W.1) and Suleman (P.W.2) were eye-witnesses while the doctor who conducted post- mortem examination on the dead body of Nazar Hussain was examined as P.W.6. Dr. Shahid Saleem who medically examined Suleman injured P.W. Was produced as P.W.9. Thereafter, statements of the appellants were recorded under section 342, Cr.P.C. Report of the Forensic Science Laboratory is Exh. P.N. After conclusion of the trial both the appellants were convicted and sentenced as stated above.
6. Learned counsel for the appellants has read before me the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And submits that in fact it was the complainant party which was the aggressor; the land was in possession of the appellants and they in order to defend their possession, had exchanged firing and during that one person lost his life on the side of the complainant and one Suleman P.W. Became injured. Further submits that gun recovered from Ghazi appellant is of no use to the prosecution as the empties recovered did not match with his gun. Learned counsel submits that on the same set of evidence, Rasool Bukhsh, Haji and Pathan accused were acquitted and that Jan Muhammad, A.S.-I. Who had investigated the case came to the conclusion and admitted in cross-examination before the trial Court that it was the appellant party which was in possession of the disputed land; the complainant party launched assault to dispossess the accused and that the Investigating Officer further came to the conclusion that both the parties exchanged firing with each other and in that melee one person died and Suleman was injured. Further submits that both the eye-witnesses produced by the prosecution are related inter se and are inimical towards the appellant and that there is no independent corroboration to their statements.
7. On the other hand, learned A.A.-G. Submits that the appellants were named by Suleman injured P.W. Who is star witness of the prosecution and that it was a broad daylight occurrence in which one person lost his life while another was injured. He supports the judgment of the learned trial Court.
8. I have heard learned counsel for the parties and have carefully gone through the prosecution evidence. In the instant case, the statement of Investigating Officer A.S.-I. Jan Muhammad which he made before the trial Court while being examined as P.W.7 is very essential for just decision of the case, when he at the time of cross-examination deposed as under:--- "Ultimately, I arrived at the conclusion that the complainant party was not under the possession of the disputed land and that the complainant party launched assault to dispossess the accused persons. It is correct that I had arrived at the conclusion that both the parties made fire shots upon the partymen of each other, thereby one of the fire hit Nazar Hussain deceased. It is correct that I could not arrive at the conclusion as to by whose firing Nazar Hussain was injured and resultantly died, likewise I could not ascertain as to by whose firing P.W. Suleman was injured. My fading's of the investigation were verified by Maqsood Ahmad, D.S.P. And he also arrived at the same conclusion having been arrived by me. Said D.S.P. Also observed that out of the cross-firing by the complainant party and accused persons one P.W. Was injured and other died at the spot."
9. However, as nobody was injured from the side of the appellants, I am of the view that the appellants have exceeded their right of self-defence. So, keeping in view, the submissions made by learned counsel for the appellants and statement of Jan Muhammad A.S.-I./Investigating Officer (P.W.7) conviction and sentence of appellant Hassan alias Hasni though is maintained but the same is converted from section 302(b), P.P.C. To section 302(c), P.P.C. And he is sentenced to undergo 14 years' R.I. With the benefit of section 382-B, Cr.P.C.
10. As far as conviction of Ghazi appellant is concerned, that is also maintained under section 337- F(ii), P.P.C. But sentence is reduced from 10 years to 7 years' R.I. With the benefit of section 382-B, Cr.P.C.
11. With the above modifications in the sentences of the appellants, appeal filed by both the appellants stands dismissed.##TE#