1996 P Cr (PLP)

The injury in his opinion was ante-mortem and was caused by fire-arm. It had caused damage to right lung and liver resulting in profuse haemorrhage and shock which was sufficient to cause death in ordinary course of nature. Probable time between injury and death was within few minutes and between death and post-mortem was 12 to 24 hours. He sealed recovered pellets, in phial and handed over all the documents, last-worn clothes of the deceased and the sealed phial to the police officials. Exh.P.Q. was correct carbon copy of the post?mortem report prepared and signed by him whereas Exhs.P.Q./1 and 2 were diagrams of injury.

11. Shahadat Ali, A.S.-I. P.W.15 had recorded Fard Bian, proceeded to the spot, inspected the same, prepared injury statement Exh.P.S., inquest report Exh.P.T. and rough site plan Exh.P.R. He had secured blood-stained earth vide memo. Exh.P.H. and two empties vide memo. Exh.P.J. He had taken into possession last-worn clothes of the deceased, as produced before him by P.W.3, vide memo. Exh.P.B. and sealed phial Exh.P.Q., vide memo. Exh.P.C.

12. The D.D.A. produced report of the Chemical Examiner P.U. and report of Serologist P.V. and closed the case of the prosecution.

13. The Court examined Riaz Hussain, Patwari as C.W.1 on 4-6-1992. He produced copy of report of Roznamcha No.232, dated 26-5-1990 as Exh.C.W.I/A and report of his Gardawar as C.W.1/B. The learned defence counsel had objected to the production of the documents on the ground that the accused had no notice of the documents and the accused were likely to be prejudiced in their defence. The trial Court overruled the objection on the ground that the witnesses were summoned as Court-witnesses to ascertain issue of the possession of the land in dispute and offered-the opportunity of cross?examination to the D.D.A. and also to the learned defence counsel. The learned D.D.A. brought on record, for the first time, the proclamation by beat of drum and by the loudspeaker of the mosque to procure the attendance of Taj Din etc which was mentioned in report No.231 through cross-examination. C.W.1 however, admitted that Taj Din etc. had not participated in the proceedings of delivery of possession. He stated that the disputed land was lying vacant and there was no crop standing in the land. This was a contradiction of the statement of P.W.5 that chilli crop, grown in land, was being irrigated at the fateful time. He stated that no Javi cut was lying there. During the cross-examination by the learned defence counsel he stated that he had not brought the register of Khasra Gardawari .of Kharif, 1989 and Rabi, 1990. As to why this witness failed to bring the register of Khasra Gardawari relating to the crops sown or harvested during the days of occurrence is taken as nothing but out of mala fide on the part of the prosecution and due to interestedness of this C.W. It appears that this Patwari was himself responsible for irregular proceedings. No proclamation was made, which was mandatory, after the delivery of possession in such proceedings. As to why he was not asked to prepare the site plan of the place of occurrence, which was situated within his jurisdiction, and why Amir Ali, Patwari of another circle was imported to prepare the site plan has gone askance. Even it is believed that whatever he stated was a gospal truth the same was of no support to the story about the delivery of possession to the complainant. 13-A. The collection of evidence was the function of the investigation and not that "of the Court" against the accused persons in a case of murder which had been subjected to various investigations. The complainant had claimed possession of land at the time of occurrence. No evidence was produced before or collected by the Investigating Officer. The trial Court summoned the C.Ws. on the application of the prosecution when the accused had claimed the transfer of possession and the prosecution had, till that time, failed to prove the same. The summoning of this witness by the trial Court amounted to filling in the lacunae in the case of the prosecution. The trial Court had acted beyond its jurisdiction in collecting evidence against the accused which was not collected or produced by the prosecution. The trial Court-was supposed to dispense justice to both the parties and not to the prosecution alone. The trial Court has not only failed in his duty to act as an independent Judge-but also indulged in uncalled for practice of summoning witnesses as Court-witnesses and bringing on file the documents of which the accused had not been put to notice. The trial Court acted perversely in allowing the production of documents Exh.C.W.I/A and Exh.C.W.I/B. A prejudice was caused to the accused who have long been considered as the favourite child of law.

14. The evidence of Muhammad Siddique C.W.2 did not advance the case of the prosecution any further. He admitted that according to the entries in Register Khasra Gardawari for Rabi 1990. Javi crop was sown by Muhammad Din and Taj Din in Khasra No. 1667 and 1668 and in Khasra No. 1666 Barseem crop was grown and in Khasra No. 1677 self-cultivation was recorded and Javi crop was grown.

15. All the accused were examined under section 342, Cr.P.C. The acquitted accused pleaded innocence whereas the appellant took up the plea of self-defence of his person and his property. He stated that his grandfather was the tenant of the land owned by Mian Iftikhar-ud-Din family since 1947, and due to the Land Reforms introduced by President Muhammad Ayub Khan his father Muhammad Din and uncles Taj Din and Mehraj Din got ten and a half acres of land due to the said land reforms. Karam Din and his three brothers purchased 90 acres of land from Mian Mahmood a relative of Mian Iftikhar-ud?Din some 15 years ago. The complainant party wanted to grab this land. Litigation started. The attempts of the first informant to grab the land with the collusion of Consolidation Staff also failed when M.B.R. rescinded the scheme. He had harvested Javi crop and had also purchased and stocked Javi worth Rs.3 lacs. Anwar Ali deceased, on the day of occurrence, came to the spot accompanied by 2/3 vagabonds and tried to take forcible possession of the land, destroying the stocks of Javi valuing Rs.3 lacs, fired at him twice. He had taken shelter under the cover of Javi stakes. When Anwar Ali was reloading his gun he found himself placed in such a situation which could result in his death, loss of his property and possession of land and fired once in self-defence. He alleged mala fides against the police and consolidation staff and alleged fabrication of record. He also stated that the stacks of Javi were, later on, put to fire by complainant party and brought on record copy of F.I.R. No.484/90 through Muhammad Tufail, A.S. -I. who was summoned and appeared as D.W.1.

16. I have heard the learned counsel for the appellant who has taken me through the record of the case. I have also heard the learned counsel appearing on behalf of the State and Mr. Hussain Aziz, Advocate appearing or behalf of the complainant.

17. In a case where there was a plea of self-defence the prosecution was still required to prove its case against the accused and as such the prosecution was obliged to prove that accused were evicted from the land in accordance with law and that the accused had the knowledge that the possession was delivered to the first informant. P.W.5 made the statement that the possession was delivered to him a day before the occurrence which allegedly took place at about 6-30 a.m. on 27-5-1990.

18. To bring home the guilt of the accused it was the duty of the prosecution to prove that the possession of the land was delivered to the first informant in accordance with law and that the accused who were admittedly in possession before the alleged dispossession, had the knowledge of the same.

19. The prosecution failed to prove that the accused party was dispossessed/ejected in accordance with law. It has already been observed that the prosecution failed to prove the same and have also been discussed and disapproved the attempt by trial Court to fill in. the lacunae.

20. The document Exh.C.W.1/A appears to be fake and fictitious and is disputed by entries in Register Khasra Girdawari as admitted by C.W.2. It has been asserted that the land at site was vacant whereas the first informant alleges that he was irrigating chilli crop sown in the said land at the time of occurrence. The P.Ws. have not claimed that they had sown chilli crop during the only night that intervened between the alleged dispossession and occurrence. The report Exh.C.W.1/A, even if believed, relates to the arrival of revenue authorities to deliver possession to Karam Din. There is no document on record of the case which could prove that possession, in fact, was transferred after Exh.C.W.1/A. The Rules and Land Administration Manuals and Instructions issued by Financial Commissioners/B.O.R. from time to time in this behalf provide for the incorporation of factum of change of possession and proclamation thereof in the estates and payment of compensation of standing crops to the tenant and wages to the Chaukidar making proclamation. Rule 13 of the Land Revenue Rules, 1968 issued under West Pakistan Land Revenue Act, 1967 was also relevant. The High Court Rules arid Orders were made applicable in case of ejectment.

21. Notwithstanding the above it was also mandatory for the prosecution to prove the knowledge of the accused of their dispossession. They were admittedly not present at the time of alleged ejectment proceedings. There was no public notice/proclamation after the ejectment proceedings and as such it is held that the appellant had no notice of his alleged dispossession on 26-5-1990 and he was justified in claiming to be in possession of the disputed land in the morning of 27-5-1990.

22. The recovery of P.6 from the appellant was also of no help to the prosecution. Two empties P.9/1-2 were recovered from the spot. Neither the empties collected on 27-5-1990 from the spot nor gun P.6 were sought to be wedded to each other. The prosecution is silent as to why the material evidence so collected was not sought to be wedded and thus prove the use of gun P.6 by the appellant. There may be truth in the statement of the appellant under section 342, Cr.P.C. that empties were of the shots fired by deceased and was thus a circumstance supporting the plea of self-defence taken by the appellant. Reliance may be placed on Muhammad Arshad v. State 1994 MLD 1258 and Zahid alias Zadoo v. State 1994 PCr.LJ 2000.

23. It is now a settled principle of criminal jurisprudence that in such cases the Courts, deciding the matter, are to place the version of the prosecution and that of the plea of self-defence in juxtaposition and to see which of the two was more plausible.

24. Karam Din P.W.5 and Niaz Ahmad P.W:6 were interested witnesses. Niaz P.W.6 belonged to District Sheikhupura and was a chance witness. Sohail P.W.7 too is a chance witness. He is neither truthful nor trustworthy and had no plausible reason to be present at the place of occurrence at the relevant time. His deposition does not inspire, confidence and rather is manifest with mis-statements and material improvements with motive and is, therefore, excluded from consideration. 24-A. The trial Court did not believe the P.Ws. regarding 11 out of the 12 accused persons who were acquitted. The said P.Ws. have stated that they had run away for their lives and such behaviour on the part of P.Ws.5.and 6 suffered from instrinsic inconsistencies and the allegations that the deceased was dragged out of the field was not supported by medical evidence and no mark or scratch was found on the dead body. Sohail P.W.7 named all the twelve accused and gave details of their respective weapons although he did not know the accused earlier to the occurrence. All the circumstances reflect upon the prosecution case. Reliance is placed on Rehmat and others v. State PLD 1959 SC 109, Muhammad Aslam and others v. The State 1988 SCMR 940, Masood Anwar v. The State 1994 SCMR 6 and Gullu alias Gul Muhammad v. The State 1994 PCr.LJ 1631.

25. The prosecution evidence and specially ocular evidence was not free from taint and malice and the same was not corroborated by any independent evidence, not even by recovered empties from the spot. There was admitted enmity between the parties over possession and chain of litigation was admitted. There is possibility and truth in the statement of the appellant that the occurrence was not witnessed by the P.Ws. and the first informant threw too wild a net and roped in as many as 12 persons as accused for a single injury to the deceased and in the circumstances the story of the prosecution as narrated by P.W.5; P.W.6 and P.W.7 was doubtful and the appellant is entitled to the benefit of doubt. Reliance may be placed on Abdul Rashid v. Umid Ali and others PLD 1975 SC 77, Khalil Ahmad alias Khalil and another v. The State 1975 SCMR 442, Nawaz Ali and another v. The State 1981 SCMR 132, Abdul Ghafoor v. The State 1982 SCMR 162, Ahmad etc. v. The State 1982 SCMR 1049, Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292.

26. Coming to the plea of self-defence of person and property taken by the appellant, he was the judge of his own danger and law permitted him to repel the danger and protect himself and his property even to the taking of life. This plea cannot be weighed in golden scale and in Ghulam Murtaza v. State 1993 PCr.LJ 1646 their Lordships were of the view that the version of the accused was to be accepted if the same appears to reasonably possible in the circumstances of the case. In Muhammad Akram v. The State 1993 PCr.LJ 1333 the right of accused to go even to the extent of causing death of the other who endangers his life and property was accepted. Reliance may be placed on Jamal Dins case 1971 SCMR

800. In Liaqat v. The State 1994 SCMR 1161 their Lordship in the Supreme Court acquitted the appellant who appeared to have been .so situated that he was not in a position to effectively exercise the right of private defence without risk of harm to those who are near or-around his father including two deceased persons who had admittedly come there in the meantime, after hearing the alarm. The principle enunciated in the above-referred citations make out a case of exercise of right of self-defence of person and property available to the appellant. Reference may also be made to Shamir alias Shamla v. The State PLD 1958 SC 242.

27. In view of the above discussion it is held that the prosecution failed to prove its case beyond reasonable doubt and the circumstances of the case have supported the plea of self-defence of person and property which is available to the appellant under section 100 and under section 106, P.P.C.

28. The appellant is given the benefit of doubt as the prosecution has failed to prove its case beyond shadow of reasonable doubt. He is also held entitled to the right of self-defence of person and also self-defence of property in the circumstances of the case. The appeal is allowed. The conviction of the appellant as recorded by Additional Sessions Judge, Lahore vide impugned judgment is set aside and the appellant is acquitted of the charges under section 302, P.P.C. and under section 447, P.P.C.

29. The appellant is present in Court. He is on bail. He is discharged from the bail bonds. N; H.Q./A-8/L???????????????????????????????????????????????????????????????????????????????????? Appeal allowed.