' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,541 of 1995 filed by Subtain Khan, Gohar Ali, Asad Ali and Ishfaq, appellants and Criminal Appeal No,554 of 1995 filed by Muhammad Ahsan Khan, complainant for acquittal of respondents Irshad Khan and Muhammad Iqbal. Criminal Revision No,330 of 1995 filed by complainant Muhammad Ahsan for enhancement of sentences of Ishfaq, Gohar Ali and Asad Ali shall also be disposed of through this single judgment. The four appellants, namely, Subtain Khan and three others were convicted and sentenced by learned Additional Sessions Judge, Depalpur vide his judgment, dated 13-8-1995 as under:-- Subtain Khan, appellant Death with compensation of Rs,30,000 and in default 6 months' S.I. Under section 302(b), P.P.C.
' Gohar Ali, appellant 1-1/2 years and Daman of Rs,5,000 under section 337-F (ii), P.P.C.
' Asad Ali, appellant 2-1/2 years' R.I. With a Daman of Rs,10,000 under section 337-F(v), P. P.0 .
' Ishfaq, appellant Three years' R.I. With a Daman of Rs,15,000 under section 337-F(v), P . P. C .
' The convicts were ordered to remain in jail till the payment of amount of Daman as provided under section 337-Y(2), P.P.C. The three appellants were also granted the benefit of section 382-B, Cr.P.C.
2. Occurrence in this case had taken place at 8 a.m. On 10-6-1993 within the Revenue Estate of Mauza Tala Kumboh at a distance of 12 kilometres from Police Station Sadar Depalpur, District Okara while the matter was reported by Muhammad Ahsan at 1 p.m. The same day in police station and the formal F.I.R. Exh.P.A. Was recorded by Khushi Muhammad, S.-I.
3. Briefly stated the facts of the case were that Abdul Razzaq was nephew of Muhammad Ahsan, the complainant while Mst. Mashan was paternal-aunt of Abdul Razzaq. She owned 43 Acres of land in village Tulla Kamboh. This land was on lease with Muhammad Azam. In the year 1993, the period of lease expired and Mst. Mashan got the possession of the land from the said lessee. After getting the possession Mst. Mashan gave this land on share to Abdul Razzaq and his brother Abdul Malik. At 8 a.m. On 10-6-1993 Abdul Razzaq was ploughing the said land, while Qudrat Ullah, Muhammad Hanif, Muhammad Rafique and Manzoor were also present when Subtain and Ishfaq armed with rifles, Gohar Ali, Asad Ali and Irshad Iqbal all armed with .12 bore guns came there.
Irshad raised the Lalkara that they be taught lesson for taking the land of Mst. Mashan and getting its possession. Subtain fired with his rifle at Muhammad Hanif which hit him on his right eye and he died at the spot. Gohar Ali fired with his .12 bore gun at Abdul Razzaq which hit the later on his right thigh. Irshad fired from his .12 bore gun which hit Manzoor on his arm-pit. Ashraf fired with his gun twice which hit Rafique on his penis and finger. Ishfaq fired with his rifle at Qudrat Ullah which hit on his right leg. Iqbal gave a butt blow to Qudrat Ullah. The occurrence was witnessed by Abdul Khaliq and Munawar Ali apart from the complainant.
' The motive for the occurrence alleged was that Mst. Mashan had given the land to Abdul Malik,- nephew of the complainant for cultivation on share after getting possession of the same and had obtained stay order from the Civil Court at Depalpur. The accused bore a grudge due to this fact.
4. After registration of the formal F.I.R., Qari Khushi Muhammad, S.-I. P. W.13 proceeded to the place of occurrence, took into possession blood-stained earth vide memo. Exh.P.B., prepared inquest report and injury statement Exh.P.P. And Exh.P.Q. Respectively, arrested Subtain, Gohar Ali and Asad Ali on 25-6-1993, Subtain in custody on 29-6-1993 led to the recovery of .222 rifle P.6 which was taken into possession vide memo. Exh.P.G., on the same day, Zafar Ali got recovered .12 bore gun P.9 which was taken into possession vide memo. Exh.P.O., on the same day, Asad Ali also led to the recovery of .12 bore gun P.8, which was taken into possession vide memo. Exh.P.H., recorded the statements of the v itnesses and finally challaned Subtain, Gohar Ali and Asad Ali to face the trial.
5. At the trial, prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.X. And closed the prosecution case, then the statements of the accused/appellants were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication. The accused also produced Syed Irshad Hussain Bukhari, Advocate as D.W.1 in their defence. After conclusion of the trial the accused/appellants were convicted and sentenced, as stated above, while Irshad and Iqbal, respondents in appeal and revision filed by the complainant were acquitted.
6. Learned counsel for the appellants after having read the entire prosecution evidence submits that Irshad Khan, father of Subtain, appellant was in actual physical possession of the land in question at the time of occurrence. Further submits that actually the complainant party was aggressor and trespasser and that Abdul Razzaq had no connection with the land in question whatsoever. Adds that the story given by the prosecution cannot be believed because Abdul Razzaq was not in possession of the land as such there was no question of ploughing the land.
Further adds that recoveries from the appellants are of no consequence because no empty was recovered from the spot. Learned counsel submits that according to judicial record, Irshad Khan, father of Subtain, appellant was in possession of the land and to prove the possession learned counsel has referred to Exhs.D.B, D.I., D.Q., D.R., D.V. And D.X. Etc. Learned counsel lastly submits that when the prosecution case is found to be based on falsehood, then statements of the appellants should be believed in toto. In this regard, learned counsel has placed reliance upon 1992 SCM R 2047.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the appellants-accused were named in the F.I.R. With specific roles, it was a case of promptly lodged F.I.R.; the complainant party was unarmed at the time of occurrence and that it was not a case of self-defence. Further submits that in fact the prosecution has proved its case against the appellants beyond any reasonable doubt.
8. We have heard learned counsel for the pal ties at length and have gone through the record. In the instant case, version of the complainant and the witnesses was that Abdul Razzaq was nephew of Muhammad Ahsan, complainant while Mst. Mashan was paternal-aunt of Abdur Razzaq. She owed 43 acres of the land in village Tulla Kamboh. This land was on lease with Muhammad Nazir. In the year 1993, the period of lease expired and the possession had been taken over by Mst. Mashan who had given the said land to Abdul Razzaq on share. On 10-6-1993 at about 8 a.m. Abdul Razzaq started ploughing the land with a tractor while Manzoor, Muhammad Hanif, Rafique and Qudrat Ullah were sitting' near him when Irshad, armed with .12 bore gun, Subtain armed with rifle .8 m.m., Gohar Ali, armed with .12 bore gun, Ashraf armed with .12 bore gun, Iqbal armed with .12 bore gun and Ishfaq armed with rifle .7 m.m. Came. Irshad raised Lalkara that the complainant party would be taught a lesson for getting possession of the land. Upon this, Subtain fired with his rifle which hit Muhammad Hanif on his left eye and he succumbed to the injuries. Thereafter, Irshad fired with his gun which hit Manzoor (not produced) on his chest and left arm pit. The fires two in number shot by Ashraf hit Rafique on his penis and little finger of the right hand. Similarly, the fire shot by Ashfaq hit Qudrat Ullah on his right leg. Iqbal gave a butt blow on the head of Qudrat Ullah. Gohar Ali fired a shot which hit Abdul Razzaq on his right thigh. The motive alleged was that Mst. Mashan after having taken possession of 43 acres of land from Abdul Malik, nephew of the complainant had got a stay order due to which the appellants had a grudge and committed the occurrence out of that.
9. Subtain, Gohar Ali and Asad Ali are sons of Irshad, acquitted accused. Ashfaq appellant son of Ghulam Rasool is brother-in-law of Irshad while Iqbal is son of Ashfaq. It means that all the appellants and acquitted co-accused are closely related to each other. If one goes through the document Exh.D.Q. (page 218 of the paper book) it would be clear that Fakhar Imam son of Muhammad Suleman being minor filed a suit through her mother Mst. Irshad Begum against Mst.
Mashan for declaration and permanent injunction restraining Mst. Mashan, defendant to that suit for interfering into possession of the plaintiff. The suit was filed on 12-6-1990. Then Exh.D.R. Is a statement of Mst. Mashan which she made in the suit stating that she had no objection if the suit filed by Fakhar Imam is decreed. Exh.D.S. Is the decree passed by learned Civil Judge on . 30-6- 1990. Then Exh.D.T. Is the receipt showing payment of Rs,1,50,000 received by Mst. Irshad Begum from Irshad father of Subtain appellant representing lease of the land for a period of one year. The receipt was executed on 8-4-1993. Exh.D.U. Is the suit filed by Mst. Mashan against Fakhar Imam seeking declaration that Mutation No,227 dated 18-5-1987 was illegal Exh.D.V. Is the order passed by Civil Judge in the titled suit, the operative part of which reads as under- "In these circumstances the petitioner has failed to make out a good prima facie case in her favour. In case her applications for temporary injunction with regard to the extent of possession is concerned, she could not prove herself in possession and in case her applications are rejected she shall not suffer any irreparable loss. Balance of convenience also does not lie in favour of the petitioner as there is alleged decree in favour of the respondent besides the impugned mutation.
So far as, the prayer of the alienation of property in dispute is concerned the principle of lis pendis according to the provisions of Transfer of Property Act does not apply that any transaction in respect of any property during the pendency of suit without any legal effect. I therefore, hereby reject the applications under Order 39, rules 1 and 2, C.P.C. With these observations."
' This order of the learned Civil Judge was challenged in appeal by Mst. Mashan through Exh.D.W.
While the Exh.D.X. Is copy of the judgment dated 17-5-1994. The relevant portion of which reads as under:-- "Having thoroughly examined the record I find that not only a mutation exists in favour of the respondent showing that the appellant had gifted the suit land in his favour but also she (appellant) categorically admitted the impugned gift in her statement made in the Civil Court on 30-6-1990. This too is disputed by her now but presumption of correctness is attached to the judicial proceedings. Thus, the appellant's version that she did not give the suit land to the respondent stand negated. As to possession it is the respondent who has been recorded in the Revenue Record to have been in possession of the suit land and even presently it is one Irshad who is occupying this land as lessee under the respondent which has been verified by the report of Patwari dated 6-6-1993. Confronted with this learned counsel for the appellant alleged that Irshad aforesaid is a trespasser. Be that as it may, it stands established, that the plaintiff/ appellant is not even in possession of the suit property. Therefore, none of the ingredients necessary for the issuance of stay order exists in favour of the appellant, the principle of lis pendens also protects her rights if any in the suit land. For all these reasons learned lower Court has rightly refused the stay order.
' Resultantly the appeal is dismissed, leaving the parties to bear their own costs.
' Then there is statement of Abdul Rauf Patwari P.W.5, the operative part of which reads as under:-- "The place of occurrence is situated in Sq. No,14, Killa No,8 and this acre was in cultivating possession of Irshad accused on the day of occurrence."
' These all documents show that Irshad father of Subtain appellant was in possession of the disputed land.
9-A. The allegation levelled in the F.I.R. And statements of the witnesses before the learned trial'
Court were to the effect that they were attacked by the appellants when they were present at their lands and Abdul Razzaq was ploughing the land and Muhammad Hanif and others were sitting.
The plea of the accused/appellant Subtain during the trial in his statement under section 342, Cr.P.C. In particular reply to Question No,6 reads as under:-- "The P.Ws. Have given false evidence against me. I have been falsely involved in this case due to enmity. Muhammad Ahsan Muhammad Ramzan and Abdul Razzaq P.Ws. Were not present at the spot at the time of occurrence. They are false eye-witnesses, Muhammad Rafique, Qudrat Ullah P.Ws. And Muhammad Hanif deceased etc. Were hired by the complainant party to take forcible possession of the land from us which we had taken on lease from Fakhar Imam against the wishes of Abdul Razzaq P.W. On the day of occurrence early in the morning, Muhammad Hanif deceased and his hired companions who had nothing to do with the land, went to the spot to take forcible possession of the land and resorted to firing. Our servants who were on the land had fired in self- defence in order to protect the possession of land and in the cross-firing, the deceased and the P.Ws. Received injuries. Since our servants were not known to the injured P.Ws. So they conspired with Muhammad Ahsan P.W. Who got the false case registered against us by changing the time of occurrence and by twisting the true facts."
10. From the above analysis we are clear in our mind that both the parties, complainant party as well as the appellants, did not come with truth and the occurrence did not take place as mentioned, so we do not believe both the sides. The further inference we have gathered from the documents produced on record by the appellants and their statements is that had the complainant party been armed with fire-arms, they ought to have received some injuries. One thing which has proved as a fact is that Irshad father of Subtain appellant was in possession of the land, either the complainant party tried to disturb the possession or some other event had happened resulting into present occurrence in which one Muhammad Hanif lost his life and other received injuries.
' The fact that possession over the disputed land was admittedly that of the appellants coupled with the conclusion that both the parties did not come out with the truth is a mitigating circumstance in favour of Subtain appellant, so we are of the considered opinion that though it was a case under section 302(b), P.P.C. But not a case of capital punishment. We, therefore, convert the death sentence of Subtain appellant into one imprisonment for life. The amount of compensation as ordered by the learned trial Court is, however, maintained. The benefit of section 382-B, Cr.P.C. Is granted to the appellant. His death sentence is not confirmed, and the Murder Reference No,191 of 1995 is answered in the negative.
' So far as the appellants Gohar Ali, Asad Ali and Ishfaj are concerned, we are told by learned counsel for the appellants that they have undergone their term of sentence. To their extent, this appeal is dismissed.
' Criminal Appeal and Criminal Revision filed by the complainant for enhancement of sentences and also against acquittal are dismissed.