1988 PLP 1940 (SCMR)

USMAN ALI SHAH, J.‑‑This petition for leave to appeal is directed against the judgment and order dated 2‑11‑1987, passed by the Lahore High Court, Lahore, whereby Criminal Appeal No.514 of 1984 of the accused/ respondent against the judgment dated 8‑10‑1984 of the Additional Sessions Judge, Sialkot, convicting him under Section 302 .P.P.C. for the murder of Dilawar Hussain deceased and sentencing him to death, with fine of Rs.10,000 or in default whereof to undergo further R.I. for 3 years with the direction that half of the fine on realization be paid to the heirs of the deceased and also a sum of Rs.5,000 more as compensation to the heirs of the deceased or in default further R.I. for 6 months, was accepted to the extent that conviction of the respondent under Section 302 P.P.C. was set aside and instead convicted him under section 304, Part‑I of P.P.C. and sentenced him to 10 years' R.I. or in default to undergo further R.I. for 3 years, on realization of the fine half of which shall be paid to the heirs of the deceased, by the impugned judgment. Brief facts of the case according to the F.I.R. are that on 7‑8‑1983 the complainant party were busy in constructing a fallen wall in Shamilat Deh land, in front of their house in the area of village Purana Wahla, 5 miles from Police Station Narowal, District Sialkot. The complainant Nazir Ahmad (PW‑8) and his brother Dilawar Hussain (deceased) were helping Mistry Muhammad Anwar (PW‑10) in the construction of the wall. At about 8.00 a.m. Said Ahmad accused/ respondent armed with a gun alongwith acquitted co‑accused Din Muhammad armed with a gun, Muhammad Siddique armed with Kulhari, Muhammad Sharif armed with Sua, Liaqat Ali armed with Barchhi and Mst. Razia holding a box of cartridges came there and raised "Lalkaras". Said Ahmad fired a shot which hit Dilawar Hussain (deceased) who fell down. Thereafter, Din Muhammad and Said Ahmad started indiscriminate firing. The occurrence was witnessed in addition to PWs Nazir Ahmad and Muhammad Anwar by one Ghulam Rasul (PW‑11). After commission of the crime all the accused decamped and Dilawar Hussain died on the spot. F.I.R. Ex.PA was recorded by MHC Muhammad Bashir (PW‑2) on the report of Nazir Ahmad (PW‑9) at Police Station, Narowal, District Sialkot. The motive for the offence was that a portion of Shamilat Deh land belonging to accused/ respondent Said Ahmad and Din Muhammad was in possession of the complainant party which the accused wanted to snatch from them. A.S.I. Altaf Hussain (PW‑12) went to the spot as investigating officer of the case. He prepared the inquest report (Ex.PG), injury statement (Ex.PH) and site plan (EX.Pl). The 1.0. sent the dead body to Civil Hospital Narowal for post‑mortem examination. ftnfleinf On7‑8‑1983 at 3.00 p.m. Dr.Nazir Ahmad (PW‑6) conducted the autopsy on the dead body of the deceased who foun&2he fire‑arm injury, circular in nature, on the left shoulder blade lower part; going forward and towards right side. The Doctor opined that the death of the deceased was caused by the said fire‑arm 'injury which was 'sufficient to cause death in the ; ordinary course of nature: Accused Said Ahmad, Liaqat Ali, Muhammad Siddique and Muhammad Sharif were arrested by the A.S.I. Altaf Hussain (PW‑12) on 21‑8‑1983. Din Muhammad accused was arrested by him on 3‑9‑1983. The name of Mst.Razia Bibi accused was, however, placed in column No.2 of the challan. On 24‑8‑1983 Said Ahmad accused/ respondent led to the recovery of gun Ex.PI from his residential house which was taken into possession vide memo. Ex.PE. After completion of the investigation the accused were challaned under Section 302 P.P.C. to stand their trial. All the accused except Said Ahmad pleaded their innocence. The prosecution in support of its version has examined 12 witnesses. In consequence of the trial the learned Additional Sessions Judge, Sialkot vide his judgment dated 8‑10‑1984 found Said Ahmed accused guilty of the offence, convicted him under section 302 P.P.C. and sentenced him to death. Fine was, however, also imposed on him. Case against five other accused was not proved and they were, however, acquitted. Aggrieved by the order of the trial Judge, Said Ahmad accused filed Appeal No.514 of 1984 in the Lahore High Court against his conviction and sentence. A learned Division Bench of the High Court which heard the appeal set aside the conviction and sentence of Said Ahmed accused/ respondent under Section 302 P.P.C. and instead convicted him under section 304, Part‑I and sentenced him to 10 years R.I. with fine of Rs.10,000 or in default to undergo further R.I. for 3 years with a direction that half of the fine on realisation be paid to the heirs of the deceased. Hence this petition for leave to appeal by the complainant party. We have heard the learned counsel for the petitioner and gone through the judgments of the Courts below. We do not see any merit in this petition which deserves dismissal outright. The learned trial Judge had based the conviction of the accused/ respondent on the basis of ocular testimony of Nazir Ahmad (PW‑9), Muhammad Anwar (PW‑10) and Ghulam Rasul (PW‑11) duly supported by the depositions of Dr.Nazeer Ahmed (PW‑6) and A.S.I. Altaf Hussain (PW‑12). The evidence of motive was also considered to be a piece of corroborative evidence. Complainant Nazir Ahmed (PW‑9) is the brother of the deceased, Ghulam Rasul (PW‑11) is the uncle of the wife of the deceased and are claimed to be the eye‑witnesses of the occurrence. It is a matter of record that Nazir Ahmad (PW‑9) while giving the account of the occurrence, re‑narrated the facts given by him in the F.I.R. and made some improvements by stating that "I had constructed a room in this land with the boundary wall". He also stated that Din' Muhammad (acquitted accused) and Said Ahmed had fired 8/9 shots. While giving motive for the occurrence, he stated that a portion of Shamilat adjoining the land owned by Said Ahmad and Din Muhammad was in his possession and that the accused wanted to snatch the possession of this land from him. He had also said that Said Ahmed and Din Muhammad had earlier registered a case against them under section 440/447 P.P.C. and they had also filed a civil suit for permanent injunction against them with regard to the possession of the said land. He expressed his ignorance about the process server having effected the service on his son Khalid about the status order. While answering another question he had stated that none the accused had fired at him. They denied the suggestion that they were trying to take forcible possession of the land belonging to the accused /respondent and Din Muhammad after issuance of stay order and that on the objection of Said Ahmad accused on the construction, the complainant party had fired at him and he had acted in exercise of right of self‑defence and defence of property. A.S.I. Altaf Hussain (pW‑12) who had conducted the investigation during his cross examination stated that he had not seen the signs of any fallen boundary wall at the place of occurrence and that he had observed that a new wall was raised. The accused/ respondent during his statement denied the prosecution version and said that the complainant party wanted to take forcible possession by making construction in the land of the accused/ respondent and that of Din Muhammad acquitted co‑accused situated in Khasra No.163. They had obtained a status quo order on 3‑8‑1983 against the complainant party and notice to this effect was served on complainant Nazir Ahmad through his son on 5‑8‑1983 and after the said order the complainant party had no right to trespass over the land of the accused/ respondent and raise construction. On the day of occurrence when the accused/ respondent went towards the land where the complainant party were busy in raising construction, on seeing the accused /respondent they had at once started firing at him. The accused/ respondent escaped unhurt and in self‑defence and defence of property he fired a shot which hit Dilawar Hussain deceased and had resulted his death. In our opinion, the ocular account of the eye‑witnesses, medical evidence and motive for the offence suffered from material improvements which the learned Judges of the Division Bench of the High Court have thoroughly sifted. After a thorough examination of the judgment of the High Court, we find ourselves in agreement with the view taken by the learned Judges of the High Court. There are satisfactory reasons to discard the ocular evidence and we are, therefore of the view that the learned Judges of the High Court have rightly accepted the plea of defence of property of the accused/ respondent and have done substantial justice by converting his conviction under section 302 P.P.C. and sentence thereunder to that of under section 304 Part‑I of the P.P.C. and sentenced him accordingly. We do not seel any reason to interfere with their impugned finding. The result is that this petition has no force. It is accordinglyl5 dismissed and leave refused. M.Y.H./N‑91/S Petition dismissed.