1. ' Since both the appeals and reference arise out of the same incident and judgment, they have been consolidated and will be disposed of by this single judgment.
2. ' Briefly stated the case of the prosecution is that the complainant party had obtained a decree for the possession of land measuring 6 to 7 Kanals situated in the area of village Choota Gala, Tehsil Rawalakot, against accused-party and some other persons from the Court of Sub-Judge, Rawalakot. Muhammad Tufail, deceased, who was attorney of the decree-holders occupied the said land after the decree. The accused persons, on 29-10-1986 at 9 a.m. Entered into the suit land and started sloughing the same. On which Muhammad Tufail, Said Akbar, deceased, and Muhammad Akram Khan, proceeded towards that land but in the way Muhammad Hanif, accused-appellant, and Muhammad Khan, deceased-respondent fired at Muhammad Tufail with their .12 bore guns causing injuries on his abdomen while Muhammad Yousaf, convict-appellant, fired a gunshot at the abdomen of Said Akbar. Both the injured persons succumbed to fire-arms injuries spontaneously. Meanwhile, Dillawar Khan, accused, has been firing shots amongst which one hit on the left hand of Farooq Hussain who had also reached on the spot during that time.
3. During the firing a pellet hit at the inner side of the little finger of the right hand of Capt. Hussain Khan, complainant. The police reached at the spot and recorded the statement of the complainant.
4. ' The motive behind the occurrence has been stated to be a dispute of the land whereby Muhammad Tufail and Said Akbar, deceased, were pleading the case of Black-Smith's party. The accused persons were inimical to them for this reason and wanted to do away with their lives.
5. ' In the light of the statement of the complainant a case under section 307/34, A.P.C. Read with section 5/15 of Islamic Penal Laws Enforcement Act, 1974, was registered by Muhammad Rafiq Nawabi, deceased, 5.-I. P lice (P.W.15).
6. ' The a cussed persons Dillawar Khan, Muhammad Khan, deceased and Muhammad Yousuf were arrested on 29-10-1986 whereas Muhammad Hanif was apprehended on 6-11-1986. The inquest reports of both the deceased were prepared by Muhammad Rafiq Nawabi, S.-I. Police (P.W.15) on 29-10-1986. After the autopsy, the bloodstained clothing's of both the deceased were taken into possession by said Muhammad Rafiq Nawabi, S.-I. Police vide recovery memos. Exh. P.B. And Exh.
7. P.C. Attested by Captain Hussain Khan (P.W.1) and Muhammad Farooq Khan (P.W.3) on 29-101986 on the day of occurrence. On the same day the blood-stained clay was recovered from the spot and secured vide memo. Exh. P.E. In the presence of Muhammad Akram (P.W.2) and Said Muhammad (P.W.4). An empty was also taken into possession on 2910-1986 vide recovery memo.
8. Exh. P.F. In the presence of aforesaid witnesses. On the same day an instrument of ploughing with its lock etc., (URDU TEXT) and seed of wheat weighing 2/3 kg. With its pouch were recovered from the spot and secured vide recovery memo. Exh. P.D. In the presence of the afore named witnesses.
9. The injury forms of accused Dilawar Khan, Captain Hussain Khan (P.W.1) and Muhammad Farooq Khan (P.W.2) were prepared who were also medically examined on the day of occurrence.
10. ' On 31-10-1986 Zulfiqar Ahmed, Patwari (P.W.3) prepared the site plan Exh. P.I. In the presence of eye-witnesses and Police.
11. ' On 6-11-1986 Muhammad Hanif convict appellant led to the recovery of .12 bore gun with its licence from his house, which was taken into possession vide recovery memo. Exh. P.F. Attested by Said Muhammad (P.W.4) and Muhammad Ashraf (P.W.5).
12. ' On 8-11-1986 Muhammad Yousaf, convict appellant led to the recovery of .12 bore gun with an empty recovered from chamber of the gun from his house, which was taken into possession vide recovery memo. Exh. P.H. Witnessed by Abid Hussain (P.W.6) and Hawaldar Muhammad Yaqoob (P.W.7). On the same day a copy of appeal titled Dilawar Khan and another v. Muhammad Akbar and others, filed against the decision of Additional Sub-Judge, Rawalakot on 30-7-1986 through which a decree for possession was passed in favour of complainant party, was taken into possession from Naki Muhammad In charge Record Room, Rawalakot by Muhammad Rafiq Nawabi, S.-I. Police in the presence of Said Muhammad (P.W.4) and Sakhi Muhammad, Constable 1443 through recovery memo. Exh.P.H. (which is marked as Exh.P.HH during the course of this judgment) and hereinafter shall be referred to as Exh.P.HH.
13. ' On 10-11-1986 Captain Hussain Khan (P.W.1) produced the copies of the power of attorney of Muhammad Tufail, which were taken into possession in the presence of Abid Hussain (P.W.6) and Hawaldar Muhammad Yaqoob Khan (P.W.7).
14. ' Shadab Ahmed, A.S.-I. Police produced two sealed parcels of pellets amongst which 9 were allegedly extracted from the body of Said Akbar deceased, whereas three pellets were allegedly extracted from the body of Muhammad Tufail, deceased, were taken into possession vide recovery memo. Exh.P.M., witnessed by Shadab Ahmed, A.S.-I. Police (P.W.14) and Bashir Ahmed Sulehria S.-I.
15. Police (P.W.15).
16. ' It was reported by the Chemical Examiner vide its report, dated 22-11-1986 that the earth, Qameez, Shalwar, Chaddar, Muffler, pair of socks of Muhammad Tufail, deceased, and Kurta, Shalwar, Salooka, Jarsi, Wasket, Roomal of Said Akbar, deceased were stained with blood, however, the pair of socks of Said Akbar, deceased, was not found stained with blood.
17. ' It was reported by Director, Forensic Science Laboratory, Punjab vide its report, dated 21-12-1986 that the crime empties were found to be fired by the .12 bore gun allegedly recovered from Muhammad Hanif and Muhammad Yousaf, convict appellants.
18. ' It was also reported by the Serologist vide his report, dated 16-2-1988 that the blood-stained earth taken into possession vide recovery memo. Exh. P.E. And the bloodstained clothing of both the deceased are stained with human blood and belong to the blood Group B.
19. ' The post-mortem of the dead body of Muhammad Tufail, deceased was performed on 29-10-1986 at 4 p.m. By Dr. Javaid Iqbal Rathore (P.W.10), Medical Officer, Civil Hospital, Rawalakot vide post- mortem report Exh. P.H./1. He noticed 5 injuries on the dead body of the deceased, caused by firearm. The injuries are detailed as follows:--- ' Front Abdomen:
(1) 2 punctured wounds above umbilicus.
(2) 2 punctured wounds below umbilicus.
(3) 2 punctured right side umbilicus.
(4) 1 punctured (one) right clue fossa.
(5) 1 punctured round wound left lateral umbilicus.
20. ' The autopsy of the dead body of Said Akbar, deceased was also performed on 28-10-1986 at 4 p.m. By Dr. Javaid Iqbal Rathore (P.W.10) vide post-mortem report Exh.P.H./3. According to his opinion the injuries on the dead body of the deceased were caused by fire-arm which are detailed as follows:--- "Ant. Left Lower chest near costal margin 9 punctured wounds each 1/2 inch diameter non-charred margin. Right middle chest in mid axillary line palpitated bullet recovered."
21. ' After the investigation a challan was presented against the accused persons under sections 307/34, 447 of Azad Penal Code read with section 5/15 of Islamic Penal Laws Enforcement Act, 1974.
22. The accused persons pleaded not guilty and opted for the trial. Capt. Hussain Khan (P.W.1), Muhammad Akram (P.W.2) and Muhammad Farooq (P.W.3) testified at the trial as witnesses to furnish the ocular account of the prosecution case whereas Said Muhammad (P.W.4), Muhammad Ashraf (P.W.5), Abid Hussain (P.W.6), Hawaldar Muhammad Yaqoob (P.W.7), Sakhi Muhammad, Constable 1443 (P.W .8), Zulfiqar Ahmed Patwari (P.W.9), Dr. Javaid Iqbal Rathore (P.W.10), Muhammad Shafi Constable 1190 (P.W.11), Muhammad Rashid, Head Constable Police 1462 (P.W.12), Muhammad Bashir S.-I. Police (P.W.13), Shadab Ahmed, A.S.-I. Police (P.W.14) and Bashir Ahmed Sulehria, S.-I. Police (P.W.15) were produced, in support of the prosecution case.
23. ' During the trial Dillawar Khan, accused, passed away, therefore, after the conclusion of the prosecution evidence only three accused persons were examined under section 342, Cr. P.0 . On 16- 4-1996 whereby Muhammad Hanif, convict appellant pleaded that the complainant party launched an attack upon him and his companions to take over the possession of the disputed land forcibly on which both the parties fired shots and as a result of the cross firing Muhammad Tufail and Said Akbar, deceased, were killed who had also injured Dillawar Khan, accused. Whereas Muhammad Khan, accused pleaded that he along with Dillawar Khan and Muhammad Yousaf were sloughing the land when accused party launched an attack and tried to dispossess them from the disputed land. Diliawar Khan, accused, was sloughing the land who was stopped and injured. The complainant party shot fires and because of the cross firing Said Akbar and Muhammad Tufail were killed. Muhammad Yousaf, accused pleaded alibi that he was innocent and falsely involved in this murder case and was not present on the spot rather at the time of the occurrence he was present in a hotel situated in village Khhai Ghala. No oral evidence was led by the defence, however, some documentary evidence was produced.
24. ' District Criminal Court PoonchRawalakot after the conclusion of the trial recorded the death sentence to the appellant, Muhammad Hanif, whereby the appellant Muhammad Yousaf was awarded the sentence of ten (10) years whereas other accused Muhammad Khan was not found guilty and extended the benefit of doubt vide its judgment, dated 7-1-1998. Muhammad Hanif and Muhammad Yousaf, convict appellants, through this appeal, have challenged their conviction whereas the complainant Capt. Hussain Khan has sought the enhancement of sentence of Muhammad Khan, deceased and Yousaf Khan convict respondents through counter-appeal. The abovementioned judgment of District Criminal Court PoonchRawalakot has been assailed through the aforesaid appeals whereas a reference has also been made by District Criminal Court Poonch- Rawalakot for the confirmation of its order and judgment, dated 7-1-1998.
25. ' Sardar Khan, the learned counsel for the convict appellants, vigorously contended that the prosecution failed to establish its case beyond reasonable doubt against the convict appellants.
26. He also urged that the eye-witnesses were interested and interrelated to the deceased and were inimical to the accused party. The learned counsel pointed out that it transpires from the impugned judgment that all the accused persons have been acquitted of the charge under sections 307, 34 and 447 of the Azad Penal Code but the aforesaid order of acquittal was not challenged through the counter-appeal similarly the order of acquittal of Muhammad Hanif to the extent of offence under section 447, P.C. Remains unchallenged. The learned counsel maintained that the injuries of Dillawar Khan, deceased, accused were also withheld by the prosecution even though a perusal of the medical certificate of said Dillawar Khan reveals that he received various incised wounds amongst which one incised wound of inner side of his left thigh was declared grievous, by sharp-edged weapon. He further agitated that Capt. Hussain Khan (P.W.1) and Muhammad Farooq (P.W.3) were also medically examined by Dr. Javaid Akhtar Rathore but their injuries were not proved by the prosecution. The learned counsel argued that recoveries effected from the convict appellants were also doubtful and when the evidence led by the both prosecution and defence is evaluated with care, it reflects that a false case was registered against them. The learned counsel argued with vehemence that alleged place of occurrence is situated in Chotta Gala but Zulfiqar Ahmed Patwari in charge of village Kuian was produced as prosecution witness instead of Patwari in-charge of village Chotta Gala. According to him, the site plan was prepared on 31-10-1986 which speaks about the recovery of a pouch of seeds although the pouch of seeds was not taken into possession till 31-10-1986. The learned counsel further maintained that ocular version of the prosecution was not corroborated by the medical evidence because according to the statement of Dr. Javaid Akhtar Rathore, nine (9) pellets which were extracted from the dead body of Said Akbar were neither sent to Fire-arms Expert for his examination nor were shown to the witness during his statement. He further submitted that Dr. Javaid Akhtar Rathore failed to explain the injury on the back of Muhammad Tufail, deceased. Furthermore, the weapon of offence and the clothing's of the deceased were also not shown to say Dr. Javaid Akhtar Rathore (P.W.10). The learned counsel pressed into service the submission that the recovery of an empty and the report of Fire-arms Expert were not put to convict Muhammad Hanif during his examination, recorded under section 342, Cr.P.C. Therefore, the aforesaid evidence cannot be made basis for the conviction of convict-appellant, Muhammad Hanif. According to him, recovery of .12 bore rifle was put to Muhammad Khan convict-appellant in his examination recorded under section 342, Cr.P.C.
27. But according to the prosecution case, no gun was recovered from him during the investigation. He also pointed out that except the recovery of gun no other incriminating evidence was put to said Muhammad Khan thus, either the case be remanded for his re-examination under section 342, Cr.P.C. Or the said evidence may not be taken into consideration against him. It was also argued by the learned counsel that the trial Court has recorded in its judgment that the disputed land was in the possession of accused party. On this account, the accused party wanted to ward off the complainant party from their land. According to him, the right of defence of property and during the occurrence, when Dillawar Khan, real brother of Muhammad Hanif Khan convict-appellant, was being severely injured, the right of self-defence was available to him. For this reason the death penalty could not be imposed rather it is a case of section 304, Part II, A.P.C. The learned counsel emphasized that impugned judgment has been recorded in an illegal manner and does not transpire the facts that which offence was committed by the accused persons and amongst those which have been proved and under which offence hey have been convicted. He also submitted that convict Muhammad Yousaf has also not been extended the benefit under section 382-B, Cr.P.C. The eye-witnesses were interested and inter-related to the deceased, therefore, their evidence could not be relied upon in absence of a strong corroborative evidence which is missing in the instant case, argued by the learned counsel. In support of his contentions he has referred to us the following authorities:--- ' PLD 1965 Quetta 33; 1969 SCMR 569; 1972 PCr.LJ 204; PLJ 1976 SC 190; 1983 PCr.LJ 225; PLD 1985 Sh. C.
28. (AJ&K) 24; 1985 SCMR 1573; PLD 1987 Lah. 505; 1988 SCMR 1592; 1991 MLD 1949; PLD 1991 Azad J&K 31; 1991 PCr.L.J SC (AJ&K) 1992; 1992 PCr.LJ Sh.C. (AJ&K) 1861; 1997 PCr.LJ 1539 and 2000 MLD 618.
29. ' On the contrary, Tahir Anwar, the learned counsel for the complainant, strenuously argued that the prosecution has led the evidence of fifteen (15) witnesses and all of them have supported its version. He also contended that the prosecution case is supported by the eye-witnesses whose presence is even admitted by the -accused party. The learned counsel has further submitted that the accused persons were duly nominated during the statement of the complainant, recorded at the spot soon after the occurrence and the eye-witnesses were also named therein. According to him, all eye-witnesses have in an unequivocal manner deposed before the Court that the deceased were killed by .12 bore gunshots fired by Muhammad Hanif and Muhammad Yousaf accused persons, which hit them and in consequence of the injuries they fell down and died spontaneously. It was also argued by the learned counsel that the time, place of occurrence, the presence of Muhammad Hanif, accused, the death of the deceased persons, the recovery of gun and the presence of the complainant party is even admitted by the defence, however, the accused party has taken the defence of their property and person for the first time in their examination under section 342, Cr.P.C., which was never raised in their statements recorded under section 242, Cr.P.C. It transpires from their defence version that the complainant party was the aggressor who wanted to ward off the possession of the disputed land and launched an attack upon the accused party and because of cross-firing Said Akbar and Muhammad Tufail were done to death. The learned counsel maintained that if both the prosecution and defence versions are taken into juxtaposition the version taken by the defence seems to be an afterthought and concocted which does not appeal to a common mind. The prosecution version as alleged by the prosecution not only stands proved by the evidence of the eye-witnesses who have no enmity to falsely implicate the accused persons but is also corroborated by the medical evidence as well as the evidence of recoveries on the pointation of accused persons. The prosecution story also got ample support by the blood-stained clay recovered from the place of occurrence, clothes of both the deceased persons wearing at the time of occurrence. The learned counsel for the appellant-complainant argued that the motive as alleged by the prosecution also stands proved by the evidence of the prosecution which is, according to the learned counsel is also a corroborative piece of evidence lending support to the prosecution story. He defended the impugned judgment and submitted that the trial Court has not recorded an order of acquittal in favour of the accused persons rather it has been held by the Court that the disputed land belongs to Black-Smiths. The learned counsel has pointed out that the disputed land is situated in two village borders, village Chotta Gala and Kuian.
30. The some points of site plan are situated in village Chotta Gala and some in Kuian, therefore, the appearance of Zulitkar Ahmed Patwari as (P.W.9) does not damage the case of prosecution on this score. He also pointed out that Dillawar Khan the deceased accused had absconded soon after the occurrence who was arrested in the evening, if he was severely injured then how he could abscond from the spot. Furthermore, it could not be proved that how Dillawar Khan was injured. The learned counsel pressed into service the submission that if the recovery of the pellet could not be put to Muhammad Hanif accused it does not create adverse impressions on the prosecution case in the peculiar circumstances of the case when the presence of Muhammad Hanif accused is itself admitted by the defence. According to him such minor irregularities can be ignored by the Court. In support, reliance was placed on following case-law:--- ' PLD 1978 SC 1; PLD 1979 SC 23; PLD 1979 SC 56; PLD 1979 Kar. 513; PLD 1983 SC (AJ&K) 211; PLD 1984 SC 22; 1987 PCr.LJ 1729; 1989 PCr.LJ 2336; 1992 SCR 1; 1995 PCr.LJ 199; 1997 PCr.LJ 1029; 1997 PCr.LJ 425; 1997 PCr.LJ 432; 1997 PCr.LJ 1522 and 1997 PCr.LJ 1673.
31. ' Syed Ajaz Ali Gillani, the learned Assistant Advocate-General, appearing on behalf of the State, fully supported the contentions advanced by Tahir Anwar the learned counsel for the complainant.
32. ' We have considered the arguments addressed at the Bar, after the perusal of the record and the case-law cited. At he very outset, it will be relevant to consider the respective versions of the prosecution as well as that of the defence. The prosecution story briefly stated is that on the day of occurrence the accused party armed with deadly weapons trespassed the land which was in the possession of Muhammad Tufail, deceased. Dillawar Khan started sloughing the land while other accused persons were standing to protect him When Muhammad Tufail and Said Akbar, deceased persons, saw the accused persons, sloughing the land they went to the place of occurrence to forbid them. As soon as they reached near the above mentioned land Muhammad Hanif shot a fire upon Muhammad Tufail, deceased, with his 12 bore gun which hit at his abdomen and he fell down whereas Muhammad Yousaf, accused also shot a fire upon Said Akbar, deceased, with .12 bore gun which hit at his abdomen who also fell down. The deceased-accused, Dillawar Khan has been making fires one of which hit on the left hand of Muhammad Farooq (P.W.3) and a pellet also hit upon little finger of right hand of Capt. Hussain Khan (P.W.1). The defence version has been set up in the examination of the accused persons under section 342, Cr.P.C. Which also flows from the evidence especially the suggestions put by the defence, is that the deceased persons were not done to death by the accused, Muhammad Hanif and Muhammad Yousaf, but on the contrary both the deceased with Capt. Hussain Khan (P.W.1), Muhammad Akram (P.W.2), Muhammad Farooq (P.W.3), Said Muhammad (P.W.4) and one Muhammad Ayub launched an attack upon the accused party with an intention to snatch the possession of the disputed land from the accused party. During the altercation both the parties made cross firing. The complainant party launched an attack upon Dillawar Khan, Muhammad Khan and Muhammad Hanif. At this, Muhammad Hanif also shot fires in his defence, and thus, both the deceased were done to death in consequence of the cross firing. Muhammad Yousaf accused has taken the plea of alibi. Therefore, when both the versions are taken into a juxtaposition and evaluated in its true perspective, the version taken by the defence seems to be improper, concocted and an afterthought for the reasons that in their statements under section 242, Cr.P.C. The accused party never raised a counter version and for the first time they took a plea of self-defence and defence of their property in their statements under section 342, Cr.P.C. We are conscious of the fact that the plea of right of private defence could be allowed even if it is not specifically pleaded by accused, provided such an inference is warranted from evidence on the record which of course, should be very clear and properly been raised upon the evidence and surrounding circumstances of the case. The question of right of self-defence is necessarily the question of fact and it has to be decided in the light of the circumstances of each case. Where the right of private defence is claimed by an accused such right has to be inferred from the statement of accused coupled with defence evidence if any and circumstances which arise out of the testimony of the prosecution witnesses. Similarly, if a defence version is taken and the same is not proved, the prosecution is not absolved of its responsibility to prove the case against the accused person beyond any reasonable shadow of doubt. The prosecution is duty bound to prove its case, Zahir Hussain Shah v. Shah Nawaz Khan and 3 others and The State v.
33. Shah Nawaz Khan and 2 others 2000 SCR 124.
34. ' In the present case, the style of cross-examination made by the defence especially through the suggestions put on the prosecution witnesses, the time and place of occurrence, the presence of accused persons and the presence of the complainant party, ploughing of land by Dillawar Khan, deceased accused, the use of deadly weapons, the act of firing by Muhammad Hanif and Muhammad Yousaf, accused persons, the injuries of Muhammad Tufail and Said Akbar, deceased persons, to be inflicted by deadly weapons and soon after the occurrence the presence of Police at the spot stands admitted by the defence. The recovery of blood-stained clay and an empty from the place of occurrence also proves that in fact the occurrence took place at the same place which is alleged by the prosecution. Now, the moot point which remains to be resolved as to whether the version taken by the defence is plausible, reasonable or that of prosecution. The minute and careful perusal of the evidence of the eye-witnesses who stood the test of lengthy cross-examination has established the fact that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence.
35. We may observe here that the right of private defence is one used a shield to avert an attack and cannot be used as a device for provoking an attack. It can only be a preventive and not used for retaliatory purposes. It will also be useful to mention here that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
36. The law of private defence does not confer the right on an aggressor rather it is a right conferred on the aggresse. It is the case of defence that when the accused party was ploughing their land, the complainant party launched an attack upon them with hatchets and a sword and also shot fires upon them but this version does not find support from any type of evidence on the record. In this respect, it has been argued by the learned defence counsel that Dillawar Khan, deceased accused, was severely injured by the complainant party who remained in the hospital for a pretty long time but to substantiate this version no evidence was advanced by the defence and it was withheld after the issuance of process by the trial Court. Furthermore, all the prosecution witnesses are unanimous on the point that soon after the occurrence Dillawar Khan fled away with other accused persons in a healthy position (URDU TEXT) who was later on arrested at night. If, according to the defence, he was severely injured then how it was possible for him to flee away from the place of occurrence and to reach safe Lad sound to his home, situated at a distance of 1-1/2 miles from the place of occurrence. However, if for the sake of argument it is admitted that Dillawar Khan, deceased-accused, was injured during the occurrence but the injuries on his person were not explained even though this fact would not bring the case of the accused-party within the ambit of self-defence. Furthermore, the injuries on the person of Dillawar Khan, only one injury is an incised wound of inner side on left thigh which has been shown grievous by a sharp-edged weapon. In my view and as rightly appreciated by the trial Court these injuries might have been caused when someone tried to cut the rope of ox. We may also add that the injuries of Dillawar Khan were not suppressed because the prosecution got him medically examined and his injury statement was also duly made part of the file. In this view of the matter when the eye-witnesses are natural, constant and creditworthy it cannot damage the prosecution case on this score. In this regard reference can be made to a case reported as Shabbir Ahmed v. The State and another 1997 PCr.LJ 1539, in which. It was opined that the mere fact that the injuries on the person of accused were not explained would not bring the case within the ambit of self-defence. Another reference can also be made to a case reported as Muhammad Khalil v. The State 1992 SCR 249.
37. ' It will not be out of place' to mention here that it has been established in the evidence that the accuse persons were armed with .12 bore rifle and both the guns were recovered from them at their potation which show that if the intention of the accused persons was only to plough their land, they should not have brought .12 bore guns with them from a distance of two miles. It means that the accused party arrived at the scene of occurrence after pre-planning and pre-concert to do away with the lives of the complainant party.
38. ' We do not find any substance in this argument of the learned counsel for the defence that the right of self-defence and defence of property was available to the accused persons because the complainant party wanted to ward off the accused persons from the disputed land. It has also been proved in the evidence that the disputed land was in possession of Muhammad Tufail, deceased, who had cultivated it some one and a half months before the occurrence, thus, the right of defence of property was not available to the accused persons who after the judgment of Civil Court against them wanted to snatch the possession of the land from Muhammad Tufail, deceased. We could not find any material on the record to satisfy our self that the convict- appellants had acted in their defence. Therefore, even if for the sake of argument we see that the complainant party was aggressor even though the accused persons were not justified to inflict gunshot injuries to the deceased persons because law does not permit a person under pretext of private defence or property to kill a man outright. The accused persons arrived at the spot from a pretty long distance, armed with guns, which were determined to kill the deceased persons and shot them dead at the place of occurrence, just for sake of raising objection not to trespass their property. On this account the accused persons cannot be permitted to claim that they had acted in exercise of private defence rather they had indeed exceeded it without any necessity. There is preponderant evidence that it was the accused party who first committed criminal trespass and then started firing. So the accused persons were the aggressor thus, an aggressor could not claim the right of self-defence. After taking into account the relevant circumstances, the injuries received by the prosecution party and finding out that it was accused party who had opened attack, were aggressor and shot fires with their .12 bore guns on the empty handed Muhammad Tufail and Said Akbar, deceased, are sufficient to rule out the plea of private defence of their person and property.
39. ' Section 96 of Azad Penal Code postulates that nothing is an offence which is done in the exercise of the right of private defence. The right of private defence of body and of property is laid down under section 97 of the Code. For elucidating the matter it would be expedient to reproduce here:- "Every person has a right subject to the restrictions contained in section 99, to defend-- ' Firstly.---His own body, and the body of any other person, against any offence affecting the human body; ' Secondly.---The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."
40. ' Section 103 lays down as to when the right of private defence of property extends to causing of death or any other harm to the wrong-doer. The section reads as follows:--- "103. When the right of private defence of property extends to causing death.---The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing of which or the attempting to commit which, occasions the exercise of the right, be an offence of any of the description hereinafter enumerated, namely:--- ' Firstly.---Robbery; ' Secondly.---House-breaking by night; ' Thirdly.---Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; ' Fourthly.---Theft, mischief or house-trespass, under such circumstances may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right or private defence is not exercised."
41. ' Section 104 is also relevant and is, therefore, reproduced:--- "Section 104. When such right extends to cause any harm other than death.---If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death."
42. ' Applying to the facts of the instant case the provisions referred to above show that there was no situation in the present case to which right of private defence or of property was available to the accused party. Even if we assume that the accused party was entitled to plough the land and they were intervened by the complainant party, they could use minimum force to stop the deceased persons and their companions particularly when the complainant party was empty-handed they could have exercised an alternative way by making a complaint to the relevant authority and respectable of the locality except straightaway firing shots with .12 bore guns upon the deceased persons and their companions. It, therefore, follows that the convict-appellants are not entitled to any benefit on the basis of defence of body or property. In this respect, case-law cited by the learned counsel for the defence (i) PLD 1965 Dacca 33, (ii) 1969 SCMR 569, (iii) 1972 PCr.LJ 204, (iv)
43. PU 1976 SC 190, (v) PLJ 1991 423 and (vi) 1992 PCr.LJ 1861 Sh.C. (AJ&K) do not render any help to the convict-appellants because of the distinguishable facts. For instance, in case reported as Nazim alias Nazar Biswa s v. Crown 1969 SCMR 669 the complainant party launched an attack and chased the accused party who was in possession of land for the purpose of snatching possession of the land forcibly and one of the persons who was being chased pleading that his pursuers who were armed with dangerous weapons might attack him and cause him grievous hurt turns right to face and fight with the aggressor and eventually kills one of them, he cannot be considered to have existed the right of self-defence. Another case-law reported as Kaki v. The State 1972 PCr.LJ 204, the accused's old father was floored by a young man, deceased, accused apprehended that his father was likely to suffer grievous injury or to be throttled to death, and had right to kill aggressor, the accused-appellant had right to kill the deceased.
44. ' The prosecution has examined Captain Hussain Khan (P.W.1) besides two other eye-witnesses Muhammad Akram (P.W.2) and Muhammad Farooq (P.W.3), named in. The F.I.R. All three witnesses are unanimous on the point that the complainant party was unarmed when both the deceased persons were fired upon by the accused persons by .12 bore guns from a close range. We have also noticed that the version of the eye-witnesses is constant and they corroborate each other on material particulars of the prosecution case Their presence at the spot was quite natural because they reside nearby the place of occurrence. It is pertinent to mention that we in fact believe the prosecution case and hold that eye-witnesses are trust-worthy, thus, it is obvious that both convict-appellants armed with .12 bore gun reached on the scene of occurrence and had fired fatal shots on the deceased persons, one on the umbilicus and abdomen of Muhammad Tufail and other on the chest of Said Akbar, deceased. Nature of the injuries proves that it was a close range shot and that it was fired with an intention to murder. Both of the shots fired by the convict- appellants landed on the vital part of the bodies of the deceased persons which were sufficient to cause death in the ordinary course of nature. The eyewitnesses Captain Hussain Khan and Muhammad Farooq also bore injuries and their presence on the scene of occurrence could not be doubted. Similarly, the presence of Muhammad Akram (P.W.2) has also been proved. The perusal of their examination-in-chief and cross-examination shows that the prosecution version rings true and despite lengthy cross-examination the defence could not shatter their testimony to show that they had acted in self-defence or to defend their property. The prosecution case also stands proved by motive set up by the prosecution, the background of enmity of the litigation about disputed land where Muhammad Tufail, deceased, was acting as an attorney of the proprietors of the land in a case before Civil Court which was decided in favour of the complainant party on July, 1986 and an appeal was also pending before District Judge.
45. The next question which requires consideration is that whether the testimony of the eye-witnesses could be ignored on the basis of mere relationship. We find that none of the eye-witnesses could be termed as interested witness merely because (P. W.1), Captain Hussain Khan is uncle of Muhammad Tufail, deceased, whereas Muhammad Akram D (P.W.2) is also a close relative of Muhammad Tufail, deceased, and Muhammad Farooq (P.W.3) happens to be son of Captain Hussain Khan (P.W. 1). They had no reason to substitute the convict-appellants for the real killers.
46. ' It is settled principle of Criminal Jurisprudence that evidence of an interested witness cannot out rightly be discarded because if a witness is not interested he is not always a truthful person and if he is interested he is always not a liar. The criteria to ascertain the veracity of a witness is his testimony which he deposes in the witness-box if such statement rings true and comes from the natural witness, it is sufficient to record conviction without any further corroboration. In this respect, reference can be made to (i) Muhammad Sharif's case PLD 1978 SC (AJ&K) 146, (ii) Niaz Muhammad's case PLD 1983 SC (AJ&K) 211, (iii) Ahmed Khan's case 1991 PCr. LJ 301, (iv) Muhammad Rafique's case 1999 SCMR 1208 and (v) Saeed Akhtar's case 2000 SCMR 383. The similar situation came across in a case reported as Raqib Khan v. The State and another 2000 SCMR 163, wherein the following principle was enunciated:--- "The contention that a witness who is related to the deceased is an interested witness, has since long been discarded by this Court. It is settled proposition of law by now that interested witness is the one who has an anew for false charge. Mere relationship of, a witness to the deceased is not enough of a reason to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term. This Court has gone to the extent that even evidence of interested witness is always not discarded. Reference may be made to the law laid down by this Court in Niaz v. State PLD 1960 SC 387 which was reiterated again in Nazir . Hussain v.
47. State PLD 1965 SC 188. In Aslam and another v. The State 1997 SCMR 1284, a Full Bench of this Court had reiterated the law on this score that "in the final analysis, it is neither the relationship of the witnesses with the deceased or that of the P.Ws. Inter se nor in the appropriate cases even their being the interested witnesses that provided an ultimate guidance for according credence to their testimony. It is ultimately inherent worth of evidence of a witness that determines his reliability."
48. ' Our aforesaid view also finds support from a recent judgment of apex Court of AJ&K reported as Zahir Hussain Shah v. Shah Nawaz Khan and 3 others and The State v. Shah Nawaz Khan and 2 others 2000 SCR 124, where the testimony of real son of the deceased was relied upon.
49. ' It is evident from the survey of case-law cited above that where ocular version rings true and is trustworthy, conviction in law can be recorded on such evidence alone without any further corroboration, but in the present case the ocular evidence gets ample support from the corroboratory and confirmatory evidence.
50. ' It will not be out of place to mention here that the corroboration is only required by the way of abundant caution that an innocent person may not be condemned. Corroboration does not necessarily mean the evidence of an independent witness but anything in the circumstances which tends to satisfy the Court that such interested witness has spoken the truth, is sufficient. In this regard a reference may be- made to the law laid down in Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146 and Muhammad Ramzan v. The State and Zaman v. Muhammad Ramzan 1996 SCR 336. Similar, view was taken in a recent judgment, reported as Zahir Hussain Shah v. Shah Nawaz Khan and 3 others and The State v. Shah Nawaz Khan and 2 others 2000 SCR 124.
51. ' Now, we advert to the confirmatory evidence produced in support of the ocular version: ' Dr. Javaid Akhtar Rathore (P.W.10) who conducted the autopsy of both the deceased found the fire-arm injury on the same part of the body of deceased where at the eye-witnesses alleged. The deceased were done to death by convict-appellants by firing shots upon them. This fact corroborates the ocular version that both the deceased were shot dead in the same manner as was testified by the eye-witnesses.
52. The time and place of occurrence, the presence of eye-witnesses, the presence of the accused party and the ploughing of land by the accused persons remain undisputed even by the defence.
53. The injuries on the persons of both the deceased tend to enhance the credence on the deposition of the prosecution witnesses as the duration of injuries fully corroborates with the deposition of eye-witnesses.
54. ' The presence of blood-stained clay and its recovery from the site of occurrence also supports the prosecution story that both the deceased were done to death on the place testified by the eye- witnesses.
55. ' The recovery of blood-stained clothes of the deceased persons at the time of the commission of offence is also in nature of supporting evidence.
56. ' The perusal of site plans reveals that the place of occurrence is the same as testified by the eye- witnesses. We find little force in this argument of the learned counsel for the defence that the place of occurrence is situated in village Chotta Galla but Zulfiqar Ahmed Patwari (P.W.9) produced by the prosecution, is in charge of village Kuian. It reveals from the statement of above-mentioned witness that he was the in-charge of Chotta Galla area and not in-charge of village Kuian. It has come in the evidence that boundaries of both, the villages Chotta Galla and Kuian are adjoining with each other. According to keynotes of site plan Exh. P.1 point No,10 pertains to Survey No, 171 which is situated in village Chotta Galla which was trespassed and ploughed by the accused persons. Similarly, the points Nos. 3, 4, 8, 9, 10, 11, 12 and 15 are also situated in village Chotta Galla.
57. Both the convicts-appellants shot fires upon the deceased persons from points Nos.3 and 4 whereas the points Nos. 1 and 2 are situated in village Kuian where both the deceased had gone to lodge their protest but were fired upon by the convict-appellants. It will also be worth mentioning that this objection of the learned counsel for the defence does not injure the prosecution case when the defence tried to seek help from one sentence of the statement of Patwari witness, whereat it was deposed by him that the prosecution witnesses had shown him a pouch of seeds.
58. According to our estimation, it is a casual statement or a concession extended by the witness.
59. According to the witness, the site plan was prepared on 31-10-1986 whereby the pouch of seeds with other articles was taken into possession on 29-10-1986, the day of occurrence. We may observe here that site plan is not a substantive piece of evidence so as to contradict or discredit the ocular evidence. It is prepared to appreciate or to explain the evidence on record.
60. ' The learned counsel laid great stress upon the fact that recovery of empty could not be proved by the prosecution. No doubt, some minor discrepancies occur about the recovery of the said empty but this fact alone is not sufficient to discredit the ocular version which stands confirmed by medical evidence and other sufficient corroboratory proof. Further corroboratory evidence is also available in shape of recovery of two .12 bore guns by convict-appellants. There is another confirmatory evidence in shape of pellets which after the post-mortem of the dead bodies were handed over to the police. Although the pelleis extracted from the dead bodies were not shown to the doctor during his statement but this recovery has been testified by the prosecution witnesses which stands proved because it was not challenged in cross-examination of Bashir Ahmed Sulehria (P.W.15), recovery witness. On account of abovementioned corroboratory confirmatory evidence, we are convinced that the eye-witnesses so far as convict-appellants, Muhammad Hanif and Muhammad Yousaf are concerned, are trustworthy.
61. ' Let us deal with another objection raised by the learned counsel for the defence that the recovery of empty was not put to Muhammad Hanif, accused, during his statement under section 342, Cr.P.C. Therefore, the said recovery may be ignored and should not be made basis for the conviction of the accused. He further agitated that the reports of Chemical Examiner and Fire-Arms Expert were also not put to the accused persons. He cited PLD 1990 Azad J&K 31 in support of his contentions. On the other hand, it was contended by the learned counsel for the complainant that when presence of the accused persons and other acts of firing shots are admitted on the part of the defence then the minor irregularity of not putting recovery of an empty to Muhammad Hanif accused is immaterial in the circumstances of the case. In support of his contentions he has referred to us 1989 PCr.LJ 2336. We have carefully examined this aspect of the case. No doubt, that the recovery of an empty was not put to accused Muhammad Hanif during his examination under section 342, Cr.P.C. But at the same time the fact of cross-firing and the murder of. Muhammad Tufail and Said Akbar, deceased, is admitted on his part. Furthermore, Muhammad Hanif accused did not deny the recovery of rifle at his potation. Suffice to note that the object of examination of accused under section 342, Cr.P.C. Is (firstly) to apprise him about material facts and circumstances on record appearing against him which may be used as such and (secondly) to know about his explanation regarding these material facts or circumstances. It is admitted position of law that each piece of evidence and each circumstance having an incriminating effect against him in relation to the offence charged should be put to the accused when examined under section 342, Cr.P.C. But when no prejudice is caused to the accused for not putting any such circumstance the omission is immaterial. In this respect a reference can be made to a case reported as Mushtaq and 3 others v. The State (1989 PCr.LJ 2336). After a thorough probe of case-law, it was opined therein:- "The prime consideration, therefore, is whether there has been a failure of justice. The explanation added to section 537, Cr.P.C. Is a further pointer in this respect. It provides that for determining whether any error, omission or irregularity in any proceedings under the Code has occasioned a failure of justice the Court shall have regard of the fact whether the objection could and should have been raised at an earlier stage in the proceedings. In the present case the appellant was duly represented by a counsel, the evidence of motive, which was the same against the appellant and his co-accused as well as that of his ascendance for more than two years after the occurrence, was led and when he was examined no explanation was offered not any irregularity pointed out by his counsel. In the circumstances of the case, we do not think that the irregularity of not putting the evidence as to motive and ascendance has occasioned any prejudice or miscarriage of justice to the appellant. We, therefore, concur with the conclusion of the learned trial Judge and 'would conclude that the eye-witnesses account furnished by the two eye-witnesses, in spite of being interested and partisan and suffering from other infirmities, as pointed out above, is sufficiently corroborated by the motive and ascendance to clinch the charge against Ahmad Hussain appellant. His appeal is dismissed and the death sentence passed upon him on two counts is confirmed."
62. ' It has been observed in Muhammad Younus's case PLD 1991 Azad J&K 31 referred to by the learned counsel for the defence that if trial Court fails to put incriminating piece of evidence to an accused during his examination under section 342, Cr.P.C., three courses are open to the Court and one of which option is that the evidence not put to accused may not be used against him and the case may be decided on appreciating of the rest of evidence. We have already held above that the recovery of aforesaid empty is doubtful to some extent and for the reason the trial Court has not relied upon it. The impugned judgment has been recorded on consideration of ocular version and rest of the evidence produced by the prosecution. Therefore, we find little force in this argument of the learned counsel for the defence and accordingly repel it.
63. ' It will also be important to observe that Muhammad Yousaf, accused, has taken a plea of alibi but has not denied the recovery of rifle. Nothing was argued before us in support of the said plea.
64. However, plea of alibi does not get any support from the evidence on record, as the evidence of eyewitnesses is clear, cogent and trustworthy which proves the presence of Muhammad Yousaf, accused, on the spot at the time of occurrence coupled with the trend of cross examination and suggestions put to the eyewitness by the defence.
65. ' The learned counsel for the defence has vigorously argued that impugned judgment does not disclose as to which of the offence has been proved and under which section of Penal Code the order of conviction was recorded. According to him, the trial Court has admitted the possession of the accused party in its judgment and passed an order of acquittal to the extent of section 447, A.P.C. Although the trial Court has not mentioned that under which section the order of conviction was recorded but it does not transpire from the impugned judgment that an order of acquittal was passed to the extent of section 447, A.P.C. Rather the trial Court has clearly held that after the decision of Civil Court Muhammad Tufail, deceased had taken over the possession of disputed land and the accused party wanted to disposes the complainant party. We may observe here that the mere non-mentioning of the section 5 of I.P.L. Is not by itself sufficient to hold the judgment illegal and contrary to law as the impugned judgment has been recorded after considering the relevant facts, reasons, merits and evidence of the case and it is sufficiently clear and speaking judgment. It is cardinal principle of Criminal Jurisprudence that the mistake of the Court should not prejudice any one, as was observed in Muhammad Rafique v. Ibrar Hussain and 6 others 1997 PCr.LJ 10. In this view of the matter, the contention does not appear to be well-founded.
66. ' The learned counsel for the defence has half-heartedly agitated that a private complaint about the occurrence was also lodged by Muhammad Hanif which is still pending. The fact of the matter is that the accused party particularly Muhammad Hanif, convict-appellant, had been slept over the complaint and did not pursue it for 14 years thus, at this stage of hearing no relief can be given to the accused persons on the basis of pendency of their private complaint.
67. ' We are cognizant of the fact that the inquest report, the injuries forms of deceased, Muhammad Tufail, Said Akbar and of Captain Hussain Khan (P.W.1), Muhammad Farooq (P.W.3), report of Chemical Examiner, report of Fire-Arms Expert, report of Serologist and report of copy of Roznamcha appended with the file could not be exhibited and proved because of some slackness on the part of the prosecution particularly because of the death of Muhammad Rafique Nawabi (P.W.15) who had prepared the inquest reports and the injury forms but in presence of the credible and trustworthy ocular version supported by the sufficient confirmatory documents, non- production of the above mentioned evidence does not matter such.
68. ' Our conclusion, therefore, is that the main prosecution story of the present case is not disputed by the defence. It is an admitted fact that the occurrence took place on 29-10-1986. Muhammad Hanif, convict, in his statement under section 342, Cr.P.C., has even admitted the main particulars of the prosecution story relating to the death of the deceased by shot of a rifle whereas Muhammad Yousaf convict, has taken the plea of alibi but did not deny the recovery of weapon of offence in his statement under section 342, Cr.P.C. Both the convict-appellants tried to take refuge under plea of their self-defence and of property but failed to substantiate it. If the intention of the accused party was to plough the land they would not have taken their loaded rifles with them which supports the prosecution story that the convict-appellants had used them and they had fired upon both the deceased persons. It has been clearly proved on the record that the complainant, party had gone to lodge their protest but both the convict-appellants shot fires upon the deceased persons with a prior intention to do away with their lives. Therefore, we agree with the findings of the trial Court that the offence of "Qatl-e-Amd" was proved and also hold that Muhammad Hanif, convict, was rightly convicted and sentenced under section 5 of the Islamic Penal Laws Enforcement Act, 1974, but we differ with the impugned judgment to the extent that the conviction and sentence awarded to Muhammad Yousaf, convict, was not sufficient to meet the ends of justice. The question of appropriate sentence has also exercised our mind. On the one hand the trial Court has recorded that ocular version is clear, cogent and trustworthy and the offence of murder of Said Akbar was also proved but on the contrary it awarded very lesser sentence up to 10 years to Muhammad Yousaf, accused, which is not the correct view about the quantum of sentence and is based upon the flimsy reasons and utter disregard of law because the normal sentence in a case of murder is death and for awarding lesser sentence there should be some recognized reasons. This rule applies more rigidly to the case under section 5 of Islamic Penal Laws Enforcement Act, 1974, which prescribes the "Qisas" as the only sentence if (Q the offence of "Qatl-e-Amd" is proved.
69. ' Muhammad Yousaf, accused, had killed the deceased by firing at him with a shot on the vital part of his body in daylight in heartless manner which did not call for any leniency to depart from usual sentence of "Qisas" under section 5, I.P.L. At the same time we are convinced that eye-witnesses produced by the prosecution in support of its tale fulfil the standard and the requirements of evidence needed in case of "Qisas". We also do not find any mitigating circumstances for lesser punishment hence, "Qisas" the normal sentence of wrder shall meet the end of justice.
70. ' On the above premises of reasoning, reference made by District Criminal Court, Rawalakot, is accepted and the sentence of "Qisas" awarded to Muhammad Hanif son of Azeem Ullah appellant, vide judgment, dated 7-1-1998 is confirmed. We, therefore, also accept the appeal of complainant- appellant, modify the impugned judgment of the trial Court and convict the accused respondent, Muhammad Yousaf son of Dillawar Khan, for committing the offence of murder liable to "Qisas" under section 5, I.P.L. By awarding him the sentence of "Qisas". He, for committing the offence of criminal trespass under section 447, Azad Penal Code, will also undergo a sentence of two months' simple imprisonment. Consequently, the appeal of Muhammad Hanif and Muhammad Yousaf convict appellants fails.
71. ' So far as the case of accused-respondent, Muhammad Khan, is concerned, who has, died during the pendency of appeal, the benefit of doubt given to him by the trial Court is maintained which appears to be based upon rules and reasons and has been recorded after a careful and proper appraisal of the evidence on the record. In such state of affairs, the prosecution has failed to prove his guilt beyond any reasonable shadow of doubt.
72. ' Resultantly, this appeal fails to the extent of Muhammad Khan, deceased.