' ABDUL HAMEED DOGAR, J.---This appeal with leave of the Court is directed against the judgment dated 31-5-2001 whereby the learned Division Bench of Lahore High Court, Lahore dismissed Criminal Appeal No,207 of 1996 filed by the appellant, confirmed his death sentence and answered Murder Reference No,134 of 1996 in affirmative.
2. Akbar Ali and his two sons, namely Qamar Din and appellant Muhammad Yaseen were tried by learned Additional Sessions Judge, Lahore, on the charges of committing the murder of deceased Muhammad. Usman and launching murderous assault on complainant Muhammad Rashid and were convicted and sentenced to death vide judgment dated 10-3-1996 and were also directed to pay Rs,50,000 each as compensation to the legal heirs of the deceased or in default whereof to further undergo rigorous imprisonment for six months each. They were also convicted under section 324/34, P.P.C. And were sentenced to suffer rigorous imprisonment for ten years each with a fine of Rs,10,000 each or in default whereof to suffer rigorous imprisonment for three months more.
Besides, each of them was convicted and sentenced under section 337-F(ii)/34, P.P.C. And sentenced to suffer rigorous imprisonment for three years and directed to pay Rs,5,000 each as 'Daman' to injured Muhammad Rashid, or in default, to further suffer rigorous imprisonment for one and a half months each. The appeal of the appellant was dismissed and his death sentence was confirmed whereas the sentence of his co-accused Ali Akbar and Qamar Din was altered to imprisonment for life.
3. Briefly, stated the case of the prosecution as unfolded in F.I.R. No,161, dated 31-8-1994 registered at Police Station Barki, District Lahore is that there existed a dispute over a residential house between appellant and the complainant party, about which, civil litigation was pending. The common wall between the disputed house and the courtyard of the complainant had fallen down due to rains which the complainant side started reconstructing, meanwhile, co-accused Akbar and appellant restrained them from doing so and also molested the mother and sister of complainant and the matter was apprised to Waris Khan Lumberdar of the area. It was at about 5-00 p.m. When both complainant and deceased while returning their home reached at Chowk Gurdwara, they came .Across appellant Muhammad Yaseen, his father Muhammad Akbar and brother Qamar Din who were armed with 'Rifle', 'Kassi' and 'Dang' respectively. After raising Lalkara, and threatening to teach lesson to the complainant side for constructing the wall, co-accused Qamar Din caused Kassi blow on the head of deceased Muhammad Usman whereafter appellant fired a rifle shot which hit the deceased at his left shoulder and fell down. Co-accused Qamar Din inflicted second Kassi blow also on the back of the deceased whereas his father Muhammad Akbar caused a Daang blow on his head and also continued causing injuries even after the deceased had fallen down. Complainant tried to intervene, whom co-accused Qamar Din gave a Kassi blow whereafter appellant also fired at him but was saved. Irrespective of complainant, the incident was witnessed by P. Ws. Waris Khan and Muhammad Din.
4. The appellant was arrested and a rifle was recovered from his possession which was sealed and sent to Fire-Arms Expert along with the bullets allegedly recovered from the scene of occurrence.
5. At -the trial, the prosecution examined as many as 14 witnesses. Dr. Muhammad Nawaz Tahir, Demonstrator/M.O. (P.W.4) conducted autopsy on the body of the deceased and noticed the following injuries on his person: "(1) An inside wound 2.5 x 1 c.m. On the right side of forehead, 3 c.m. From midline and 4 c.m. Above right eyebrow.
(2) A star shape lacerated wound present on the left side of head measuring 4 x 4 c.m. With 5 c.m.
On the left ear and 7.5 c.m. From midline.
(3) An incised wound on the top of the head 4 x 0.7 c.m. Which was 12 c.m. Above the right ear and 17 c.m. From the left ear.
(4) An incised wound 3 x 1 c.m. On the back of right side of head 6 c.m. Above and behind the right ear and 5 c.m. From occipital proguperante.
(5) An incised wound 6 x 1 c.m. On the left side of head which was 2 c.m. In front of left ear and 8 c.m. From the midline.
(6) An abrasion 6 x 5 c.m on the top right shoulder.
(7-A) A circular lacerated wound with inverted margin with collar of abrasion measuring 1 x 1 c.m.
On the front of left shoulder which was (sic) .c.m. Below the top of shoulder and 17 c.m. Midline.
(Chest).
(7-13)A gutter shaped wound with averted margin measuring 3.5 x 2 c.m. On the left scapula which was 22 c.m. From posterior midline and 8 c.m. Above the inferior border of scapula and 9 c.m. From the top of left shoulder.
' ON EXPLORATION UNDER INJURY NO.7 ' The missile entered through injury No,7-A damaged the soft tissues mussels then it lacerated the left axillary vessel, then exited through injury Nos.2,. 3, 4 and 5 there were cut marks on the enter table of skull."
' According to him injuries Nos.1, 3, 4 and 5 were caused by sharp-edged weapon, Nos.2 and 6 by blunt weapon whereas injury No,7 by the fire-arm. He opined that injury No,7 was sufficient to cause death in the ordinary course of nature.
6. Dr. Nasir Malik, Assistant Professor (P.W.14) examined complainant Muhammad Rashid and found the following injuries on his person: "(i) Incised wound 2.5 x 1 c.m. x muscle deep front lower, right fore-arm with swelling 5 x 4 on complaint of severe tenderness.
(ii) Abraded swelling 4 x 3 c.m. Front lower right leg with tenderness.
(iii) Contused swelling 5 x 4 c.m. On left scapular region."
' He opined that injury No,1 was the result of sharp-edged weapon whereas 2 and 3 were caused with blunt weapon.
7. Appellant was examined under section 342, Cr.P.C. Wherein he denied the allegations of the prosecution and claimed to be innocent. According to him, he was implicated in the case falsely due to enmity explained by his father co-accused in his statement. The same is reproduced as under: ' "The civil suit was filed by me on 7-6-1992 as Usman and others wanted to dispossess me illegally and forcibly. In that case on 22-7-1992 Muhammad Usman gave a statement in the Court that they will not dispossess me from the house in dispute forcibly and illegally, hence the suit was disposed of. Later on Muhammad Usman filed a suit against me for declaration and possession on 16-9-1992 in which I contested and gave written statement and after arguments on an application under section 7, rule 11, C.P.C. The suit of Usma n was dismissed as it was held that I ' am in possession of the disputed house and Ustnan has got no documentary evidence that he has any concern with the ownership of the house in dispute. Therefore, Muhammad Usman, Abdul Hamid, Abdul Rashid, Muhammad Amin and Atta Muhammad entered into the said house and after breaking the Toka and other things stole away Rs,90,000 cash and as such an F.I.R. No,64/93 was registered against them on 11-6-1993 at Police Station Barki, Lahore. Thereafter Usman, Amin and Majeed again tried to dispossess me from the disputed house and as such I filed a suit for Permanent Injunction on 17-2- 1994 against Usman and others in which a stay application was filed and on 17-2-1994 a stay order was issued that I will not be dispossessed illegally. Thereafter the stay order was confirmed on 5-7- 1994 and status quo was ordered to be maintained. This suit is still pending in the Court of Mr. Arshad Nazir, Civil Judge, Lahore. Usman and others tired to dispossess me from the house in dispute on 31-8-1994 and they dismantled the intervening wall in the morning on which a dispute arose and Muhammad Rashid P.W. Opened fire with his rifle which hit. Muhammad Usman, and this case has been concocted against us on account of enmity. I have filed the amended plaint under the orders of the Court and a contempt of Court application is also pending against Muhammad Rashid, Amin, Majeed, Mst. Muhammadi Bibi, Sarwar Bibi, Mst. Shamim Bibi and Mst. Akhtar in the Court of Mr. Arshad Nazir Ld. Civil Judge, Lahore. No occurrence took place in the evening time on 31-8-1994."
8. We have heard Ch. Muhammad Akram, learned Advocate Supreme Court for the appellant and Mr. Dil Muhammad Tarar, learned Advocate Supreme Court for the State at length and have gone through the record and the proceedings of the case in minute particulars.
9. Ch. Muhammad Akram, learned Advocate Supreme Court mainly contended that the case is actually of two versions, one put forth by the complainant and other by the appellant side.
According to him, the version of the appellant that there existed previous enmity over the pendency of the civil suit between the parties in which a stay order was granted in their favour and the appellant party was restrained from raising construction, was not at all taken into consideration. According to him, the appellant acted in the right of self-defence of property, as such conviction and sentence recorded against him was not sustainable in law. He next contended that even place of occurrence is disputed. According to the F.I.R., complainant and P.W.
Muhammad Anwar Gondal, S.-I./Investigating Officer, the incident had occurred at Chowk Gurdwara and the dead body was lying there. According to P.W. Mst. Shamim Akhtar in fact there had occurred two incidents. In the first incident, the appellant and his co-accused caused hatchet and Sota blows to herself, Rehmat Bibi and Muhammadi Bibi who was raising the wall. In the second incident at about 5-00 p.m. The appellant and his co-accused Muhammad Akbar and Qamar Din committed the murder of her brother near the disputed wall. According to him which version out of the two is correct, requires consideration and its benefit is to be extended in favour of the appellant. He further contended that eye-witnesses Waris and Muhammad Din had not supported the case of the prosecution and were declared hostile. The conviction has been solely based on the testimony of the highly interested and inimical witness, namely, Muhammad Rashid which is not the requirement for the safe administration of justice. He lastly contended that on the same set of evidence, the sentence of co-accused Muhammad Akbar and Qamar Din was altered into imprisonment for life, the benefit of which shall also be extended to the appellant and his sentence too may be reduced in order to maintain the rule of consistency.
10. We have given our anxious thought to the above contentions and are of the considered opinion that the appellant has miserably failed to show that this case is of two versions. Undisputedly, the incident took place at 5-00 p.m. At Chowk Gurdwara while the complainant and the deceased were returning their home. It has no relevance of whatsoever nature with the first incident which took place in the morning while Mst. Shamim, Mst. Muhammadi Bibi and Mst. Rehmat Bibi were raising wall of the house. Since Mst. Rehmat Bibi and Mst. Muhammadi Bibi were not the eye- witnesses of the incident of murder of deceased as such the testimony furnished by Mst. Shamim Akhtar that the dead body was lying near the wall has got no value at all.
11. #TS##On the other hand, eye-witness account furnished by the complainant injured Muhammad Rashid has been fully corroborated in all particulars by the testimony of the Investigating Officer with regard to the place of occurrence having taken place at Chowk Gurdwara and on other material facts. The same is further corroborated by the medical evidence furnished' by Dr. Muhammad Nawaz Tahir whereby the shot fired by the appellant proved fatal and resulted in the death of the deceased. The recovery of rifle and its matching with the crime empty as per report of the Fire-arm Expert further strengthen the case of the prosecution. The version put forth by the appellant in his statement under section 342, Cr.P.C. That he was implicated in the case due to civil litigation when taken into consideration in juxtaposition to the case of the prosecution, the latter is not only believable but is highly truthful and trustworthy.
12. The plea that the appellant acted in the right of self-defence of his property agitated by the learned counsel for the appellant for the first time cannot be taken into consideration at this belated stage, for the reason, that the same was neither raised before the trial Court nor before the learned Appellate Court. On the contrary, it amounts to the admission of involvement of the appellant with the commission of the crime.
13. The case of the prosecution seems to be reasonably true and fully established as against the defence version. The learned Courts below have rightly appraised the evidence and correctly convicted and sentenced the appellant in accordance with the well-established judicial norms and no miscarriage of justice has resulted. Well-founded reasons have been advanced by the learned Lahore High Court and the trial Court while believing that the complainant an injured witness was the natural witness of the incident. To believe or to disbelieve of a particular piece of evidence is primarily the function of the trial Court and the Appellate Court and this Court usually does not interfere with the discretion exercised by the Courts below. Learned counsel for the appellant has failed to point out even, a single mitigating circumstance to reduce the sentence of the appellant, therefore, the conviction and- sentence of death awarded to the appellant are maintained.
14. For the foregoing reasons, the appeal being devoid of force is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.