' KHALIL-UR-RAHMAN RAMDAY, J .---This petition is directed against a judgment dated 11-2-2002 passed by the Lahore High Court in Criminal Appeal No,4 of 1996 and in the connected Murder Reference No,2 of 1996 whereby the conviction and punishments awarded to Taj Muhammad, Allah Ditta, Imtiaz Ali, Abdul Ghani, Zulfiqar and Iqbal by the learned Sessions Judge, Bahawalnagar through his judgment dated 28-12-1995 were confirmed and maintained.
2. One Taj Muhammad, his brother Allah Ditta; three sons of Taj Muhammad, namely, Imtiaz, Abdul Ghani and Zulfiqar and two sons of the said Allah Ditta, namely, Iqbal and Gulzar were accused of the murder of Shan Muhammad and his three sons, namely Ashraf, Akram and Aslam and of committing murderous assault on Muhammad Asghar (P.W.9) who was also a son of Shan Muhammad deceased and on Munawar Hussain (P.W.6) who was a son of a brother of the said Shah Muhammad. As a result of the trial held by the learned Sessions Judge of Bahawalnagar, Taj Muhammad, Allah Ditta, Imtiaz, Abdul Ghani and Zulfiqar were inter alia punished with death on different counts while Muhammad Iqbal accused was convicted only under sections 324/149, P.P.C.
And sentenced accordingly for attempting to murder Munawar Hussain P.W. Gulzar accused was however acquitted of all the charges.
3. The occurrence of this case had taken place on 24-12-1993 at about 8-30 a.m. Near and in front of the house of Shan Muhammad deceased and as per F.I.R. No,230, dated 24-12-1993 of Police Station City Haroonabad of District Bahawalnagar which F.I.R. Had been recorded at 10-00 a.m. All the above-mentioned accused persons were alleged to have formed an unlawful assembly while armed with fire-arm weapons and were accused of having caused murder of the above-named four deceased persons and of having caused injuries to Munawar Hussain (P.W.6) and Muhammad Asghar (P.W.9) who had, however, died after recording of his examination-in-chief and before he could be cross-examined. All the abovementioned six convicts were burdened with firearm injuries on the bodies of the deceased persons while Iqbal convict had been saddled only with injuries on the persons of Munawar and Asghar P.Ws.
4. The cause which had led to the occurrence in question was an Ehata which was owned by one.
Sardar Muhammad who was a real brother of Shan Muhammad deceased and who had died issueless about 7/8 years prior to the occurrence. The claim of Taj Muhammad convict-petitioner was that the said Sardar Muhammad had sold the said Ehata to them in the year 1978 and had even handed over possession of the same to them and that the deceased party was out to take forcible possession of said Ehata from them. It was brought on record that after the death of the said Sardar Muhammad the mutation of the Ehata in question was recorded in favour of Shan Muhammad deceased and others on 9-8-1993; that Taj Muhammad etc. Filed a civil suit on 22-8- 1993 with respect to the said Ehata; that on 12-12-1993 the learned Civil Court had passed an order directing maintenance of status quo with respect to the possession of the said Ehata and that 2-1- 1994 had been fixed as the next date in the said civil suit.
5. The prosecution claim was that on the day of occurrence the convict party had attempted to take forcible possession of the Ehata in dispute so as to establish their claim of possession before the then next date of hearing in the said civil suit and that it was on resistance offered by them to such an illegal and forcible occupation of the said property in that they had been attacked by the convict party resulting in the above mentioned loss of lives.
6. On the other hand the defence plea as it emerges from the cross-examination of the P.Ws. As also from the statement made by Taj Muhammad convict under section 342, Cr.P,C, was that the marriage of his two sons namely, Zulfiqar and Abdul Ghani convicts was to take place on 14th, 15th and 16th of January, 1994, that a few days before the occurrence they had put earth in the disputed Ehata; that on the day of occurrence Gulzar (acquitted accused) was spreading and levelling the said earth with the help of a tractor so as to use the Ehata in question for the said marriage functions; that the deceased party stopped the said tractor and objected to the levelling of the earth and also attempted to take forcible possession of the Ehata in dispute; that Gulzar (acquitted accused) resisted the said action of the deceased party whereupon a quarrel took place that on hearing the noise Taj convict came out of his house and went to the place of occurrence where he was attacked by the deceased party with their weapons causing injuries on his person and that in the melee that ensued some members of the complainant party also received injuries.
7. The main thrust of the submissions of the learned counsel for the petitioners before us was that the deceased and the surviving injured persons had received injuries as a result of the exercise of the right of the convict party to defend their property i.e, the Ehata in dispute and to defend the person of Taj Muhammad convict who had been attacked and injured by the members of the deceased party with their respective weapons.
8. The defence claim, as has been noticed above, was that they had purchased the Ehata in question in the year 1978, i.e, about 15 years prior to the occurrence and that its possession had also been handed over to them. It was never claimed by the defence that the deceased party had ever tried to disturb the alleged possession of the convict party over the said Ehata for more than 15 years i.e, till the date of occurrence. If this be so, then it is not understandable as to why the deceased party who had allegedly accepted the factum of the purchase of the Ehata in question by the convict party and who would reconcile with this situation in the 15 years that had elapsed, would suddenly wake up after 15 years to take forcible possession of the said Ehata. It had also been brought on record by the defence itself that a mutation with respect to the said Ehata had been entered in favour of the deceased party on 9-8-1993 whereafter the convict party had instituted a civil suit with respect to the said Ehata on 22-8-1993 in which suit a status quo order had been passed on 12-10-1993 i.e, 12 days before the occurrence. If such a serious dispute had cropped up between the two parties with respect to the Ehata in question and the possession thereof then it is also not understandable and consequently not believable that the convict party would decide to hold the marriage functions in question on the land which was in such serious dispute especially when it had never been claimed by the defence that no other place whatsoever was available to them either in or around their own houses or anywhere else in the village to hold the said marriage functions. We, therefore, find it difficult to believe that the convict party was levelling the earth in the disputed Ehata on the day of occurrence only to prepare the same for the alleged forthcoming marriages of Zulfiqar and Abdul Ghani and we hold accordingly.
9. It may also be mentioned here that the defence had not produced any document on record in support of their claim of having either purchased the Ehata in dispute or of having been in possession thereof since 1978.
10. The other limb of the submissions of the learned counsel for the petitioners in defence of the convicts was the attack on the deceased party having been mounted to defend the persons of Gulzar (acquitted accused) and Taj Muhammad convict. It was the plea of Taj Muhammad convict under section 342, Cr.P.C. That he had been assaulted by the deceased party with the respective weapons with which they were armed and it was thereafter that the deceased and injured persons had received injuries which had resulted in the loss of their lives.
11. Gulzar (acquitted accused) had never got himself medically examined claiming any injury on his body and to establish any assault on his person. Taj convict was, however, medically examined after his arrest but was found only with a skin deep laceration on the left side of his forehead; an abrasion on his left elbow-joint and an abrasion on his left thumb. These injuries had been declared to be the result of a blunt weapon. All these injuries were thus minor and trivial in nature.
Absence of any injuries on the person of Gulzar and existence of only three minor scratches on the person of Taj convict is hardly sufficient to hold that the convict-party had been attacked by six armed persons i.e, four deceased and the two injured P.Ws. The defence plea even in this regard is lacking in substance. It may also be added that as has been mentioned above the four Members of the complainant party had lost their lives in the occurrence while two others had received serious injuries. It was thus not a situation where the complainant party could have run away with the weapons with which they had come armed and with which they had allegedly attacked Taj convict. Therefore, if at all any weapon was carried by any member of the deceased party then the same would have been left at the place of occurrence. But it was nobody's case that any weapon of offence of whatever kind was ever found at the place where the occurrence in question had taken place.
12. In this view of the matter we are of the opinion that the defence claim of having caused injuries on the bodies of the four deceased persons and the two injured P.Ws. In the exercise of their right to defend their property or even their persons was not reasonably believable or even plausible. We, therefore, hold accordingly and reject the defence plea.
13. As against this the prosecution had brought sufficient evidence on record to establish their case against the convict-petitioners and the learned trial Judge as also the Honourable High Court were fully justified in finding the convicts guilty of the charges levelled against them. The reasons offered by the two learned Courts for reaching the said conclusions could not be shown to be open to any exception.
14. Having thus examined the record in the light of the submissions made by the learned counsel for the petitioners, we find no merit in this petition which is accordingly dismissed. .