' IFTIKHAR HUSSAIN CHAUDHRY, J.---This statutory appeal under section 410, Cr.P.C., is directed against judgment, dated 1-4-1998 passed by Additional Sessions Judge, Jhang whereby Noor Ahmad son of Sher appellant was convicted for offence under section 302, P.P.C., and sentenced to death Sher, Zulfiqar Zafar, Haq Nawaz, Ghulam Abbas and Khan were awarded various terms of imprisonment.
2. The occurrence took place on 1-7-1994 at about 8-00 a.m. In the area of Mauza Dahuwana Kuhna, Tehsil and District Jhang at a distance of six miles from Police Station "Massan', District Jhang. First information report Exh.P.C. Was recorded by Ahmad Adnan S.I. (P.W.13) on the statement of Shamsher Khan complainant P.W.3.
3. According to Shamsher Khan complainant P.W.3 he was resident of Chah Loiaywala, Dakhi Daduwama Tehsil and District Jhang and was cultivator by profession. Noor Ahmad accused purchased land from one Nasir Ali. Muhammad Baksh P.W.7 . Filed a pre-emption suit in Court and relations between parties became tense. According to complainant on the day of occurrence due to dust stern a large branch of Kikr (Acacia)' tree fell in the land comprised in Sq. No,39 Killa No,3 owned by Muhammad Baksh. Muhammad Baksh and Wajid Ali were carrying the log with the help of a pair of bullocks and at about 8-00 when they reached in Sq. No,38 Killa No,25. Noor Ahmad, Sher armed with 7-mm rifle, Zulfiqar, Zafar and Sarfraz armed with hatchet, Khan accused armed with Phhahora, Ghulam Abbas accused armed with club came there and restrained them from doing so. A dispute between the parties erupted. Mst. Bakhan and Mst. Manzooran P.Ws. Were attracted to the spot. Zulfiqar accused gave a hatchet blow to Mst. Manzooran which hit on the wrist of her left hand.
' Ghulam Abbas accused gave blow with club on the head of Mst. Bakhan P.W., Zafar accused inflicted hatchet blow from its wrong side on the right shoulder of complainant. Khan accused gave a 'Phhahora' blow on the right shoulder of the complainant. Muhammad Waris-deceased, in order to save them, reached there. Noor Ahmad accused fired a shot hitting Muhammad Waris on his right flank who fell down. According to complainant during scuffle Sarfraz accused etc., also sustained injuries at the hands of the complainant party. Muhammad Waris (deceased), was removed to the hospital in injured condition but he succumbed to the injuries in the way.
' The motive behind the occurrence was that a dispute in respect of land was going on between Noor Ahmad accused and Muhammad Baksh complainant. The accused in furtherance of their common object committed 'Qatl-i-Amd' of Muhammad Waris deceased and caused injuries to the aforesaid injured P.Ws. The complainant went to the Police Station and reported the matter to police where F.I.R. Exh.P.C. Was recorded.
4. Ahmad Adnan S.I. P.W.13 recorded the statement of complainant and went to the place of occurrence. He prepared injury statement Exh.PD/2 and inquest report Exh.PS/3 and sent the dead body to the mortuary under the escort of Allah Ditta Constable for post-mortem examination. He collected blood-stained earth from the place of occurrence vide memo. Exh.P.H. He had secured crime empty from the spot vide memo Exh.P.J. He recorded the statements of witnesses under section 161, Cr.P.C. He arrested the accused and recovered gun P.3 at the instance of Noor Ahmad vide memo Exh.P.L. He had also recovered hatchets P.4, P.5 and P.6 at the pointation of Sarfraz, Zafar and Zulfiqar accused vide memos Exh.PM, Exh.PN and Exh.P.O. He had also recovered 'Phhahora' P.7 and Sota P.8 at the disclosure of Khan and Ghulam Abbas accused vide memos.
Exh.PP and Exh.PQ. Haq Nawaz accused also led to the recovery of Sota "P.9 which was secured vide memo. Exh.PR. He got prepared site plans Exh.P.B. And Exh.P.B./1 from the Halqa Patwari. After completion of investigation the Investigating Officer submitted final report against the accused.
5. Prosecution examined 13 witnesses at the trials to prove its case against the accused.
6. Dr. Zafar Iqbal P.W.5 had conducted post-mortem examination on the dead body of Muhammad Waris deceased and noted the following injury on the dead body: "A fire-arm entrance wound 5 c.m. x 5 c.m. x not probed, margins of the wound were inverted on the outer and lover part of right chest. Corresponding hole present on the Qamees.
' According to Medical Officer the injury was ante-mortem and caused by fire-arm. Injury No, 1 was sufficient to cause death in ordinary course of nature.
7. On the same day the Medical Officer had medically examined Shamsher Khan (P.W.3) and noted the following injuries:
(1) A contusion mark 10 c.m. x 2 c.m. On the back of right chest upper part.
(2) A contusion mark 6 c.m. x 2 c.m. On the right scapular region.
(3) A contusion mark 8 c.m. x 2 c.m. On the back of right shoulder.
(4) A contusion mark 3 c.m. x 2 c.m. On the back of left shoulder.
(5) An abrasion 1 c.m. x 1 c.m. On the upper part of left upper arm outer side.
(6) A swelling 6 c.m. x 5 c.m. On the back of right hand.
(7) A confused swelling 5 c.m. x 2 c.m. On the back of right wrist.
(8) A lacerated wound 4 c.m. x 0.5 c.m. x skin deep on the back of right forearm.
8. The Medical Officer had also medically examined Mst. Bakhan P.W.6 on the same day and noted the following injuries:
(1) A lecrated wound 2 c.m. x 0.5 c.m. x scalp deep on the top of the head.
(2) An abrasion 0.5 c.m. x 0.5 c.m. On the back of right middle finger.
9. Mst. Manzooran, injured P.W.4 was also medically examined on the same day by the same Medical Officer and following injuries were observed on her person:
(1) A lacerated wound 2 c.m. x 0.5 c.m. x skin deep on the front of left wrist.
(2) A lacerated wound 1 c.m. x 0.3 c.m. x skin deep on the back of right middle finger.
10. Manzoor Hussain P.W.1, Muhammad Nawz Patwari P.W.2, Shamsher complainant P.W.3, Mst.
Manzooran injured P.W.4, Mst. Bakhan injured P.W.6, Muhammad Baksh P.W.7, Muhammad Ramzan P.W.8, Akbar Ali Constable P.W.9, Muhammad Nawaz P.W.10, Allah Ditta Constable P.W.11, Habib-ur- Rehman S.I. P.W.12, and Ahmad Adnan S.I. Appeared as P. W.
13.
11. Shamsher P.W.3 is complainant. He had reaffirmed the narrative contained in the F.I.R. Mst.
Manzooran P.W.4 and Mst. Bakhan P.W.6, were injured during the incident and had supported the prosecution case. Baksh P.W.7 is eye-witness of the incident. He had corroborated the statements of Shamsher P.W.3 and injured P.Ws.
12. Muhammad Nawaz P.W.10 identified the dead body of deceased at the time of post-mortem examination. He had witnessed the recovery of blood-stained earth from the place of occurrence vide memo. Exh.P.H. He had also witnessed the recovery of Hatchet P.4 from Sarfraz accused, Hatchet P.5 from Zafar accused, Hatchet P.6, from Zulfiqar accused, 'Phhahora P.7 from Khan accused and Sota P.8 from Ghulam Abbas accused vide memos. Exhs.PM, PN, Exh.P.O., Exh.P.P., and Exh.P.Q. Respectively.
13. Habib-ur-Rehman S.I. P.W.12 had partly investigated the case. Ahmad Adnan S.I. P.W.13 is the Investigating Officer. He had testified about the steps taken by him during investigation as stated above.
14. The accused in their statements recorded under section 342, Cr.P.C., denied the prosecution case against them and professed their innocence. They claimed that the complainant and others had launched attack on them thereby injuring Noor Muhammad and others and that Waris met his fate. At the hands of his companions.
15. The accused in their defence examined Dr. Sarfraz Khan as D.W.1 and Dr. Tahir Abbas Shah as D.W.2. Dr. Sarfraz Khan had medically examined Sarfraz accused and noted three injuries on his person. He examined Noor Ahmad accused and noted fifteen injuries on his person, the witness had also 'examined Sher Muhammad accused and noted 11 injuries on his person. He had medically examined Zulfiqar accused, and found seven injuries on his person. Dr. Tahir Abbas Khan had medically examined Haq Nawaz accused and noted two lacerated wounds 5 c.m. x 1.5 c.m.
Bone deep on left side of head and 4 c.m. x 1 c.m. Bone deep on right side of head.
16. Learned Trial Court believed the prosecution against all the accused and convicted them vide judgment, dated 1-4-1998 and awarded various sentences to them as noted above. The convicts filed Criminal Appeal No,363 of 1998.
17. Sher Muhammad son of Allah Yar convict also filed P.S.L.A. No,10 of 1998 against Muhammad Baksh and others, the members of complainant party against judgment, dated 1-4-1998 passed by Additional Sessions Judge, Jhang whereby they were acquitted from the complaint case under sections 324, 148 and 149, P.P.C. The petition was directed to be heard alongwith Criminal Appeal No,363 of 1998. The matters have been heard today.
18. Learned counsel for the appellants contended that triggering event was removal of a large branch of Kikar tree but the complainant party was unable to show that they owned any tree or the log which was being removed by them or that they had any right to do so. It was submitted that mere pendency of civil suit for possession of land by pre-emption would not have conferred any right of the complainant party to the tree and that tree belonged to Noor Muhammad present appellant. It was submitted that complainant party after making preparation tried to remove the branch and when someone from the appellants' side prevented the complainant and others from doing so they were attacked and mercilessly beaten which was evidenced by testimony of D.W. I Dr. Sarfraz Khan and D.W.2 Dx. Tahir Abbas Shah. It was submitted that Waris had gunshot wound while the other injuries on the persons of P.Ws. Were insignificant. It was submitted that deceased died at the hands of his own companions and a false version of the incident was brought on record and appellants were involved in the case by assigning artificial roles to them and they deserved acquittal from the case. It was submitted that prosecution's testimony was interested, inimical and unworthy of giving any credence. According to him the defence version was more plausible and it fitted in attending circumstances of the case as well.
18. Learned counsel for State supported the impugned judgment and submitted that the appellants were rightly convicted by the Trial Court.
19. Learned counsel for the complainant on other hand contended that prosecution case against the accused was established on the basis of testimony of injured P.Ws. And Muhammad Bakhsh P.W.7 and as a matter of fact the complainant party was attacked by the accused and there was no room for awarding lesser sentence to appellants other than Noor Ahmad as was done by the Trial Court. It was argued that defence version was an afterthought and that Haq Nawaz and others who was injured were not examined through police but were privately examined and injuries on their persons were not that serious and that defence version was totally false. Prayer was made for maintaining conviction of Noor Ahmad and also for enhancement of sentence awarded to the convicts.
' Learned counsel for the petitioner in P.S.L.A. Argued that learned Trial Court had erroneously rejected the testimony of injured witnesses and case of complainant stood fully established against respondents and the impugned judgment was liable to be set aside.
20. The parties belonged to one brotherhood and were even co-sharer. There is no history of family feud between the parties. Certain dispute between the parties arose in the year 1992 or earlier when holdings were consolidated in the village. A part of joint land which contained a grove of trees was found as incapable of being partitioned and was left as joint holding by the Consolidation Authorities. The dispute relating to partition of land had gone to the District Collector but he had also declined to partition of land. The relations between the parties took an ill turn.
Second source of itch was purchase of land by Noor Ahmad from Nisar Ali, a co-villager Muhammad Baksh brother-in-law of Shamsher Khan, complainant, filed a suit for possession of land by pre-emption which aggravated the situation. The incident out of which present matters arise, then erupted. A day earlier to the occurrence, a large branch of a Kikar tree was snapped due to dust storm. According to complainant the tree stood in field No,39/3 which was owned by Muhammad Baksh and they were dragging-carrying the log with the help of a pair of bullocks and when they reached in Sq. No,28/25 Noor Ahmad and others variously armed restrained them from doing so. A dispute between the parties erupted which attracted the ladies also. A fight ensued during which persons from both the sides were injured. Noor Ahmad present appellant was alleged to have fired a shot with .12 bore shot-gun which statingly hit Muhammad Waris. The evidence on record does not show that Kikar tree belonged to complainant party exclusively. The claim of complainant in this regard is not supported by any evidence rather the tree appeared to be a joint property. The complainant and others tried to remove the log and they were restrained by' certain persons on the appellant's side due to which fight between the parties started. The incident by all contents and measures was a sudden fight.
21. The incident has been admitted by the parties but as is expected both the parties advanced a version which most suited their needs and every effort was made by them to throw the blame on the other side. It is common ground between the parties that the fight took place due to removal of 'Kikar' branch from the land. According to complainant the tree belonged to them while defence claimed that the tree stood in land which belonged to Noor Ahmad and was in his cultivating possession also. The claim of either of the parties qua exclusive ownership of the tree is not fortified by evidence. The tree due to which the trouble started was not exclusively owned by the complainant party. The complainant and his witnesses tried their level best to suppress the fact that the holding in which the tree was standing was joint whereas the documentary and other evidence lead to a contrary view. The tree being joint, the complainant party had no right to remove the same from the land without consent of other joint owners. It appears that the complainant and others tried to remove the branch of tree with the help of bullocks and someone from the accused tried to prevent them from doing so. The complainant, his brother-in-law of Muhammad Baksh and Wajid Ali had gone to remove the branch and would have been better prepared than the opposite party. On being restrained from taking the branch of tree to their residences which were located at some distance from the place of occurrence, a quarrel ensued between the parties whereafter the complainant and others belaboured him. The defence had stremously tried to bring on record a question which was put to the Investigating Officer during his cross-examination which was in terms that the accused had gone to the place of occurrence one by one and they were belaboured by the complainant party. The defence version apparently was that all the accused had not gone to the place of occurrence while being armed but they had joined the affray one after the other. The stand has been taken in order to show that they were not the aggressors. In certain measures, this stance appears to be nearer to truth and this would also explain the larger numbers of injuries received by the accused during the incident. 'Bhaini' or residence of the complainant was located at some distance (1-1/2 to 2 furlongs according to P.Ws.) from the place of occurrence while 'Bhaini" of Noor Ahmad was quite near the place of occurrence.
In case all the accused had made preparation for the attack or had launched a concerted attack on the opponents, the complainant and others would have suffered considerable number of injuries. That would lead us to the inference that after the fight had started Noor Ahmad had gone to the spot in order to rescue his companion/or companions and then, in the melee which ensued, had fired at Waris. Thereafter, members of the complainant party pounced on him, belaboured him and in the process his gun was also broken. In case Noor Ahmad was attacked first he would not have been in a position to have fired at the deceased because he was badly mauled during the fight. Likewise Mst. Manzooran and Mst. Mulkhan P.W.4 and P.W.6 appear to have also come from their residences which according to them were located 1-1/2-2 furlong away from the place of occurrence. They were later entrants in the fight also received a few blows at the hands of some of the accused. The fight was sudden in character and was not premeditated case. Claim of the prosecution in this regard has been found to be untenable.
22. Haq Nawaz one of the convicts appellants was not named in the F.I.R. He was injured during the incident and was made accused in the case at a subsequent stage. Sher son of Allah Yar, appellant, was not ascribed any injury to any of the victims. His involvement in the case appears to be result of deliberation and premeditation by the complainant party. After having examined the evidence in proper perspective and having re weighed the material on record, we consider that Noot Ahmad had fired at the deceased but in the circumstances in which he had done so did not warrant awarding of maximum sentence to him. Sher son of Allah Yar and Haq Nawaz were not assigned any effective role in the first information report. As far as other convicts are concerned they had caused insignificant injuries to the injured P.W. Since it was a sudden fight we do not find any justification for convicting the accused for offence under section 149, P.P.C. As a consequence we convict Noor Ahmad son of Sher for offence under section 302-B, P.P.C., and sentence him to imprisonment for life. Haq Nawaz and Sher son of Allah Yar are acquitted of the charge. The other appellants are convicted under section 337-A(1)/337-L (ii),. P.P.C., and are sentenced to time already served.
23. Criminal appeal filed by convicts is allowed to the extent of Sher son of Allah Yar and Haq Nawaz son of Sher Muhammad while it is dismissed to the extent of other appellants. The sentence awarded to the appellants has been modified in above terms.
24. The prosecution case as well as defence version was full of half-truths and even the learned counsel for the appellants hid admitted that both the parties did not come out with truth in the matter. As such, we do not consider it a fit case to grant leave complainant in P.S.L.A. The P.S.L.A.
Has been found to be without substance. The complainant tried to over-reach in the matter, involved a larger number of accused in the case and tried to show himself and others on his side as totally blameless which of course was not the case. As a result P.S.L.A. Is dismissed.
' Murder reference is answered in the negative.