' MUHAMMAD NAWAZ ABBASI, J.---The appellants namely Abdul Haq son of Sher Muhammad aged 48 years and Hussain Ali son of Sher Muhammad aged 30 years, residents of Dhoke Sipper Dakhli Thoa Mehram Khan, Tehsil Tallagang, District Chakwal alongwith Anwar-ul-Haq and Ehsan-ul-Haq (acquitted accused) were tried for the charge under sections 302/324/34, P.P.C. For committing the murder of Mehboob Elahi son of Hafiz Noor Elahi, their co-villager by a learned Additional Sessions Judge, Chakwal. The learned trial Judge vide judgment, dated 29-2-2000 having found the appellants guilty of the charge convicted and sentenced them as under:--
(a) Abdul Haq was awarded death sentence under section 302(b), P.P.C. And was also directed to pay Rs,30,000 as compensation to the legal heirs of Mehboob Elahi deceased. The appellant upon conviction under section 324, P.P.C. Was sentenced to five years' R.I. With a fine of Rs,5,000 and in default of the payment of fine was directed to undergo R.I. For six months.
(b) Hussain Ali appellant upon conviction under section 302(b), P.P.C. Was awarded sentence of imprisonment for life. In addition he was directed to pay Rs,30,000 as compensation to the legal heirs of the deceased and in default of payment of compensation to undergo S.I. For six months.
The appellant was also awarded sentence of five years' R.I. With a fine of Rs,5,000 under section 324, P.P.C. And in case of non-payment of fine was required to undergo R.I. For six months. The fine if recovered was directed to pay to Mst. Naik Bakht, widow of the deceased. However, the appellant was given the benefit of section 382-B, Cr.P.C.
2. The learned trial Judge has sent a murder reference under section 374, Cr.P.C. For confirmation of death sentence awarded to Abdul Haq appellant whereas the appellants have filed Criminal Appeal bearing No,73 of 2000 against their conviction and sentence and the complainant has filed Criminal Appeal No, 84 of 2000 against the acquittal of Anwar-ul-Haq and Ehsan-ul-Haq. The murder reference and the criminal appeals are disposed of through this single judgment.
3. The prosecution case precisely as disclosed in the F.I.R. Exh.P.B./1 recorded on the basis of the statement Exh.P.B. Of Mehboob Elahi deceased made by him before Sardar Muhammad Ali Khan S.-I./S.H.O. Of Police Station, Tallagang was that he alongwith his family was residing in Dhoke Sipper near his in-laws and used to cultivate the land inherited by his mother-in-law namely Mst.
Bakht Bhari. Mst. Shaher Bano wife of Sher Muhammad being belonged to common ancestor inherited the land. The appellants being sons of Mst. Shaher Bano wanted the possession of the land, which was under his cultivation through Mst. Bakht Bhari, his mother-in-law. The parties remained under litigation in the Civil Court and ultimately the verdict was given by the Civil Court in favour of the deceased. The appellants having accepted the decision in the civil suit but subsequently while backing out from the said decision again started demanding the possession of the land with extension of threats of life to the- deceased. The fateful occurrence took place on 27- 3-1997 at 8-30 a.m. According to the facts given in the F.I.R., the deceased alongwith his wife was present in his Dhoke when Abdul Haq armed with .12 bore gun, Hussain Ali armed with pistol and the acquitted accused namely Anwar-ul-Haq and Ehsan-ulHaq armed with Sotis while raising Lalkara came to the land known as Chorrian in which Jawar crop was cultivated, on a tractor driven by Hussain Ali and Abdul Haq while raising Lalkara demanded the possession of the land.
The deceased and his wife objected to their illegal demand whereupon Abdul Haq fired a shot with .12 bore gun on Mehboob Elahi which hit on his right flank and at the same time Hussain Ali fired two successive shots with his pistol on Mst. Naik Bakht but she was saved. Mehboob Elahi as a result of sustaining fire-arm injury at the hands of Abdul. Haq fell on the ground. The deceased was immediately removed to the hospital at Tallagang and was provided medical aid in the hospital but he succumbed to the injuries. The occurrence was also witnessed by Allah Ditta son of Mian Muhammad, Ahmad Din son of Imam Din and Mst. Nasreen Akhtar wife of Noor Muhammad.
4. Sardar Muhammad Ali Khan, S.-I./S.H.O. Police Station Saddar, Tallagang having received information regarding the occurrence reached in the Civil Hospital at Tallagang and recorded the statement of Mahboob Elahi who thumb-marked the same in token of its correctness. The S.-I. Sent the complaint to the Police Station on the basis of which formal F.I.R. Exh.P.B./1 was chalked out and having prepared injury statement Exh.P.M. Of Mahboob Elahi got him medically examined in the hospital. Later, on the death of Mahboob Elahi, he prepared inquest report Exh.P.N. And handed over the dead body to Muhammad Arif, Constable for post-mortem examination. The Sub-Inspector took into possession the last-worn clothes of the deceased alongwith the sealed phial produced before him by the said constable which was taken into possession vide memo. Exh.P.A. The S.-I.
During the spot inspection prepared rough site plans and took into possession blood-stained earth from the place of occurrence vide memo. Exh.P.H. The Sub-Inspector secured crime-empties of .12 bore gun from the spot through memo. Exh.P.B. And broken pieces of glasses of head light of tractor vide memo. ,Exh.P.K. Hussain Ali accused was arrested on 4-8-1997 and on his pointation revolver P.5 was recovered from his house, which was taken into possession, vide memo. Exh.P.G. On arrest of Abdul Haq on 6-8-1997, the Sub-Inspector recovered .12 bore gun P.8 at his instance, which was taken into possession, vide memo. Exh.P. S. The Investigating Officer got prepared site plans Exh.P.F.
And Exh.P.F./1 by the Draftsman and after completing the formal investigation submitted the challan against the abovenamed appellants and his companions.
5. Doctor Abdul Razzaq, C.M.O. Having medically examined the deceased in the Tehsil Headquarter Hospital, Talagang, traced out the following injuries on his person:--
(1) There was fire-arm weapon wound measuring 3 x 3 c.m. In right iliac fosse. Blood was coming through it and abdominal contents were visible through it.
(2) Multiple pellet injuries measuring over an area of 10 c.m. x 6 c.m. Over left iliac fosse.
7. The same doctor having conducted post-mortem examination of the deceased found the following injuries on his person:--
(1) A fire-arm weapon wound measuring 3 x 3 c.m. Present on right iliac fosse 7 c.m. Above and medially to anterior superior iliac spine. Blackening was present around the wound. Abdominal contents seen through wound.
(2) Multiple fire-arm pellets wound all superficial present in an area left iliac fosse and left iliac bone near the iliac crest. Wounds were 23 in number over an area 10 c.m. x 6 c.m.
7. In the opinion of the doctor, injury No,1 which was the result of fire of shotgun caused extensive damage to the sensitive parts of the body and was sufficient to cause death in the ordinary course of nature.
8. The ocular account was furnished by Mst. Naik Bakht P.W.10 wife of the deceased who was present at the time of occurrence in the field. Allah Ditta P.W.11 has corroborated Mst. Naik Bakht.
Gohar Khan P.W.8 is the witness of recovery of revolver P.5 from Hussain Ali and Abdul Razzaq witnessed the recovery of .12 bore gun at the instance of Abdul Haq. The remaining witnesses being of formal nature need to be discussed in detail.
9. Abdul Haq appellant in his statement under section 342, Cr.P.C. In answer to question No,7 made the following reply:-- "I was going all alone on my tractor for having a round of my fields, when I was all of a sudden intercepted by the deceased by throwing stones on me. I always carry gun when I go to the fields to kill rodents and memmal which destroy the crop."
' The appellant further stated in his statement under section 342, Cr.P.C. That he was falsely involved in the case and the P.Ws. Deposed against them due to their relationship with the deceased. He made a detailed written statement Exh.D.D. Which is reproduced as under:-- {{URDU TEXT}}.
10. Learned counsel for the appellants has contended that the dying declaration Exh.P.B. Allegedly made by the deceased before the Sub-Inspector in the hospital was not actually his statement and the Investigating Officer by preparing the said statement got thumb-impression of the deceased on it in the hospital after his death. Learned counsel submitted that the story of the dying declaration being true copy of the statement of Mst. Naik Bakht recorded by the Investigating Officer under section 161, Cr.P.C. Would show that the dying declaration was subsequently prepared on the basis of statement of Mst. Naik Bakht and thus, the same would not be admissible to be read in evidence. Learned counsel submitted that neither any certificate was obtained from the doctor that the deceased was fit to make such a statement while he was brought to the hospital in an injured condition nor the statement was recorded in presence of doctor or any employee of the hospital and that with the exclusion of the statement Exh.P.B. i,e, dying declaration of the deceased from consideration, the statement of Mst. Naik Bakht would be of no use to the prosecution and thus, it would be a case of no evidence. The learned counsel in the alternative contended that even if Mst. Naik Bakht is given the status of an eye-witness and some weight is attached with her evidence, the defence version put by Abdul Haq appellant would be made plausible as he while admitting the occurrence has stated that he acted in exercise of right of private defence of his person and property. Learned counsel next submitted that it is in the evidence that the occurrence took place in Khasra No,8379 which was in possession of the appellant through his mother Mst.
Shaher Bano and thus, the prosecution story regarding the possession of the land and the dispute being raised by the appellant for the said land was falsified by the statement of the Patwari which would seriously reflect upon the motive part of the story and in consequence thereto defence version would be supported even by the prosecution story. Learned counsel concluded that in any case in view of the given facts and the circumstances, under which the occurrence took place, it was not a case of extreme penalty of death to Abdul Haq. Learned counsel last argued that admittedly Hussain Ali did not cause any injury to the deceased and was attributed the role of ineffective firing but no empty of revolver was recovered from the spot which would make the allegation against him doubtful, but unfortunately the learned trial Judge without appreciating the facts properly also convicted Hussain Ali for the charge under sections 302/324/34, P.P.C.
11. Learned counsel representing the complainant and the State have argued that it was a broad daylight occurrence and the presence of Mst. Naik Bakht with his husband in the field was natural.
They argued that the occurrence being admitted, the prosecution story if is put in juxtaposition with the defence version, the same appears to be more plausible, acceptable and nearer to truth and thus, the appellants have been rightly convicted and sentenced for the charge under sections 302/324/34, P.P.C.
12. We have heard the learned counsel for the parties at length and perused the record minutely with their assistance. Abdul Haq appellant admitted the occurrence in his statement under section 342, Cr.P.C. And while pleading self-defence has claimed justification of causing fire-arm injury to Mehboob Elahi deceased. Mehboob Elahi admittedly was empty-handed at the time of occurrence and it was not the case of the defence that as a result of stone pelting made by the deceased, the appellant sustained any injury. The appellant was arrested after about fifteen days of the occurrence and during this period, he did not got himself medically examined even by a private doctor. The contention of the learned counsel for the appellant that the appellant was taken into custody immediately after the occurrence and his arrest was shown much later, therefore, he being in the hands of the police could not get himself medically examined and that it was the duty of the police to produce him before the doctors, but the needful was not done was not supported by any direct or circumstantial evidence. It is an admitted fact that the parties jointly owned the property without partition and both the sides were claiming their possession on the Khasra No,8379 which was the place of occurrence. According to the Revenue Record, the Khasra number in question was in possession of the appellant through their mother whereas according to the prosecution, physical possession of the land was with the deceased through his mother-in-law.
Notwithstanding the entries in the Revenue Record and the factual position at the spot in the joint land, every owner would be deemed to be in joint possession of the land and thus, the appellant on the excuse of entries in the Revenue Record would not be justified to claim private right of the property at the cost of the life of another co-owner. The deceased was empty-handed and even if he was a trespasser in the land in possession of the appellant, he did not act in a manner which would create a situation for the appellant to put him to death on the pretext of self-defence. There was neither an occasion of taking such an extreme action of taking life of the deceased nor any aggression of the deceased during the occurrence was established. The defence version put forth by the appellant is not supported by any independent evidence except the bare statement of the appellant under section 342, Cr.P.C. Rather the said version was not introduced during the course of investigation. The defence version being not supported by any evidence has no plausibility to be accepted in preference to the prosecution case which was narrated by the natural witness namely Mst. Naik Bakht, wife of the deceased whose presence at the spot was not challengeable. She having no reason to make a false statement against the appellant was found to be a truthful witness. We, therefore, while excluding the remote possibility of truth in the defence version held that the occurrence had taken place in the manner as narrated by the prosecution .
13. While considering the question relating to the admissibility of dying declaration of the deceased, we find that the Sub-Inspector recorded it in the hospital at 11-30 a.m. Whereas the deceased expired on 11-57 a.m. And during the intervening period, as stated, the deceased was medically examined but the doctor who examined the deceased did not say a single word that the deceased was either full or semi-conscious or he was fit to make the said statement. The Sub-Inspector has not obtained any certificate from the doctor or recorded the dying declaration of the deceased in presence of any doctor or employee of the hospital or in presence of any other witness, therefore, this dying declaration having no evidentiary value would not be given any weight and should be excluded from consideration. The evidence of Mst. Naik Bakht who claimed himself to be the eye- witness of the occurrence, if is read in the light of the admission made by Abdul Haq appellant in respect of firing at the deceased in self-defence would be fully corroborated by her statement under section 161, Cr.P.C. Recorded by the Sub-Inspector and the said statement of Mst. Naik Bakht would acquire the status of first information, therefore, the exclusion of dying declaration from consideration would neither directly or indirectly be fatal to the prosecution case nor would be helpful to the defence. This is noticeable that the version put by Abdul Haq in his statement Exh.D.D.
Which is a part of his statement under section 342, Cr.P.C. Would fully corroborate the statement of Mst. Naik Bakht made by her under section 161, Cr.P.C. And also her statement before the Court and consequently the prosecution case would stand proved beyond reasonable doubt against Abdul Haq appellant.
14. While taking into consideration the question of sentence, we find that except the dispute regarding the possession of the land, there was no serious enmity between the complainant and the accused party and it is not known that what was the immediate cause which prompted the appellant on the fateful day to fire at the deceased. The appellant being armed with .12 bore gun fired a single shot and despite having opportunity did not repeat the shot. The detailed scrutiny of the evidence would create doubt regarding the premeditation and would suggest that probably it was a sudden occurrence which took place in consequence to some altercation between the parties. Notwithstanding of carrying gun by the appellant with him the circumstances under which the occurrence took place would lead to an inference of suddenness which is a valid ground for withholding the extreme penalty of death .
15. Consequently, we while upholding the conviction awarded to Abdul Haq appellant by the trial Court under section 302(b), P.P.C., reduce his sentence from death to imprisonment for life and dismiss this appeal to his extent. The appellant shall pay the compensation to the legal heirs of the deceased as directed by the learned trial Judge and shall be entitled to the benefit of section 382- B, Cr.P.C. Abdul Haq appellant during the occurrence neither caused any damage to Mst. Naik Bakht complainant nor there was any allegation of his firing at her and in view of our findings that it was a sudden occurrence, the conviction of the appellant under section 324, P.P.C. Was not sustainable. We, therefore, acquit him from the charge under section 324, P.P.C. The death sentence awarded to Abdul Haq appellant is not confirmed and the murder reference is answered accordingly .
16. While taking the case of Hussain Ali, we find that he was attributed the role of ineffective firing but no empty was recovered from the spot. Abdul Haq appellant in his written statement Exh.D.D.
Also excluded the presence of Hussain Ali from the spot and thus, the possibility of his false implication being not ruled out. We while extending him the benefit of doubt acquit him from the charge and direct his forthwith release if he is not required to be detained in any other case.
17. For the above reasons, we do not find any substance in Criminal Appeal No,84 of 2000, and dismiss the same accordingly.