1987 PLP 994 (SCMR)

4. According to the prosecution story there was a dispute over a piece of land between the parties and it is alleged that Muhammad Afzal, P.W.13, a co‑sharer in the aforesaid land, had agreed to lease one Kanal out of Khasra No. 2/24 in favour of Jan Ahmad, appellant, received consideration and executed a document showing delivery of possession. When Haji Waryam, P.W. 14, another co‑sharer, came to know of this transaction, he restrained Muhammad Afzal P.W. 13, from proceeding further with the transaction. Muhammad Afzal, in order to oblige Waryam, returned the money which he had received from Jan Ahmad and he (Muhammad Afzal) in pursuance of his subsequent decision, wanted to take back the piece of land in question. About 4/5 days before the occurrence Jan Ahmad accompanied by the acquitted accused went to the Dera of Haji Waryam, P.W. 14 and insisted that Muhammad Afzal should receive the money back and deliver the possession of the land as agreed earlier. Haji Waryam declined to do so in view of the fact that the land was jointly owned by him and the co‑sharers did not agree.

5. On the night between 1st and 2nd September, 1974, Ghulam Mustafa and Waryam P.Ws. were sleeping at their Dera when Falak Sher. P.W. 12 came and apprised them that Jan Ahmad appellant alongwith his companions had brought a truck full of people for demolishing the boundary wall of the land in dispute and in fact had started unloading building material upon the disputed area. Thereupon Ghulam Mustafa, P.W.11, Falak Sher, P.W.12, Waryam, P.W.14 and one Muhammad Hassan (not produced) accompanied by Liaqat and Barkat (deceased) started for the spot to find out as to what the matter was. When they reached the spot they found the appellants alongwith the acquitted accused armed with various types of weapons. Out of them Jan Ahmad and Wali Muhammad were armed with guns, Hamid Khan with a pistol and the acquitted accused Allah Bakhsh and Abdur Razaq with hatchets and Nasira, Muhammad Sharif and Haq Nawaz with Dangs. With them there were five or six other persons who were busy unloading building material from the truck. On seeing this, the complainant party asked the appellants to refrain from interfering with their possession over the site in dispute. In the meantime, Mubarik Ali, Rab Nawaz and Muhammad Hassan also arrived. Jan Ahmad did not listen and exhorted the other accused to finish the complainant and his companions and he himself then fired a shot from his gun that hit Waryam, P.W. On the left shoulder, Muhammad Afzal, Falak Sher and Liaqat stopped forward whereupon Wali Muhammad and Jan Ahmad appellants fired at them hitting Muhammad Afzal, Falak Sher and Liaqat. Hamid Khan appellant fired at Ghulam Mustafa but missed. Barkat and Ghulam Murtaza attempted to run for their lives but were again fired upon by Wali Muhammad and Jan Ahmad, appellants from behind which hit them and they fell on the ground. Co‑accused of the appellants raised Lalkaras which attracted many persons of the locality. The accused thereafter decamped. The injured were immediately removed to the hospital.

6. On receipt of information from the hospital, S.I. Ibrahim Khalid, P.W. 16 went to the hospital and recorded the statement Exh.P.C. of Ghulam Mustafa, P.W.11 in the form of a Murasla at 2‑15 a.m. and sent it to the police station for registration of the case which was registered vide F.I.R. Exh. p.C./1.

7. On 2‑9‑1974 at 1‑40 p.m. Dr. Abdul Ghaffar, P.W.1 performed ante‑mortem examination on the body of Barkat deceased and found pellet wounds 1/4" x 1/4" on back of the chest and abdomen in an area of 12" x 9" and sent the injured Barkat to Nishtar Hospital, Multan for treatment where he died the same day. He also conducted the ante‑mortem examination of Ghulam Murtaza Shah (deceased) and found two fire‑arm injuries one comprising eight pellets wound on the back of the left arm and other multiple pellet wounds with inverted margins on back of the lower half of the chest up to upper part of pelvis. Ghulam Murtaza Shah also died the same night at about 3.00 a. m.

8. Dr. Abdul Ghaffar also examined the injured witnesses and found eight pellet wounds, some of them multiple at various parts on Muhammad Afzal, P.W.13, four pellet wounds on the chest, one on the left shoulder and one on the index finger of Liaqat, a fire‑arm wound 1 " x 3" on the front of the left forearm with a corresponding exit wound and the left humerous was found fractured, on the body of Waryam, P.W.14. Three small pellet wounds were also found by the Doctor on Falak Sher, P.W.12.

9. The same doctor performed the post‑mortem examination of Ghulam Murtaza Shah and confirmed the injuries as noted at the ante‑mortem examination. In his opinion, death was due to various internal organs injuries resulting in shock and haemorrhage. He also confirmed the ante‑mortem examination injuries of Barkat and according to him death was due to shock and haemorrhage as a result of the injury which was sufficient in the ordinary course of nature to cause death.

10. The case of the prosecution rests on the ocular testimony of Ghulam Mustafa, P.W.11, Falak Sher P.W.12, Muhammad Afzal, P.W. 13 and Muhammad Waryam, P.W.14. All of them had individually sustained gun‑shot injuries. Thus, their presence at the spot is established which is also admitted by the appellants.

11. The appellants also admitted the occurrence but gave a counter‑version of the same claiming that the complainant side were the aggressors as they were in possession of the disputed land and were defending the possession of the land in dispute which they had taken under a duly executed lease agreement Exh. D.B. In support of the above‑mentioned counter‑version of the appellants, their learned counsel invited our attention to the lease agreement Exh. D.B. which was admitted to have been executed by P.W. Muhammad Afzal. According to the said agreement, one Kanal of land from Khasra No.2/25 was leased out by Muhammad Afzal to Jan Ahmad appellant for a period of 15 years commencing from 21st August, 1974. The annual rent of the land was fixed at Rs. 1,100 and the lessee was to pay Rs.2,000 as advance. In this document, Muhammad Afzal is shown to have delivered possession of the leased land as also the receipt of Rs.2,

000. However, at the trial, it was stated by him that he had returned the amount of Rs.2,000 to Jan Ahmad and expressing his regrets informed him that he was not in a position to deliver the possession of the land to him. This had happened 4 or 5 days before the occurrence. He also stated that he could only sign his name but could not read Urdu. He further stated that there were 19 co‑sharers in the Khata of the disputed survey number including his father and Warvam P.W. and all of them had objected to that leasing out the land to Jan Ahmad. He also stated that his share of land was cultivated by all the sharers jointly. He, however, did admit that all the sharers had partitioned their shares privately. When confronted with the document the witness stated that although it was correct that in Exh. D.B., he was shown to have received Rs.2,000 as advance and Rs.1,100 as rent and delivered possession to Jan Ahmad Appellant on the spot, but according to him this might have been written at the instance of Jan Ahmad appellant as factually the possession of the land was never handed over to the accused. Ghulam Mustafa son of Waryam, P.W. 11 stated that his father had given an application to the Tehsildar, Kabirwala for the partition of the above land which was pending before the Tehsildar. Muhammad Afzal P.W. had executed agreement in favour of Jan Ahmad and when his father came to know about it, he had asked P.W. Muhammad Afzal to refrain from leasing out the land. Therepuon, Muhammad Afzal returned the money given to him by Jan Ahmad appellant. He denied that the land was partitioned by the co‑sharers. The learned High Court came to hold that in their opinion "the plea of Jan Ahmad appellant that he was in possession of the land in dispute appeared to be true".

12. Mr.Aftab Farrukh, the learned counsel for the State, on the other hand stated that there was no positive evidence to show that possession of the disputed land had in fact been delivered by Muhammad Afzal to Jan Ahmad as shown in Exh. D.B. which appeared to be a mere paper transaction. In support of this contention, it was stated that Survey No.2/25 was in joint ownership and each of the joint owners had possession over every inch of the land. He then referred to Exh. D. A. which is a copy of the Aks Shajra in respect of Survey No.2/25 and mentions that "the land was owned by Muhammad Afzal etc." This exhibit is dated 12‑8‑1974 whereas Exh. D.B. was executed few days later i.e. 19‑8‑1974. The entire Survey No.2/25, according to the learned counsel, comprised of 9 Kanals 2 Marlas whereas only 1 Kanal was agreed to be leased out by Muhammad Afzal vide Exh. D.B. In the circumstances, it was urged that the finding of the learned High Court "that the plea of Jan Ahmad appeared to be true was not definite on the question of possession of Jan Ahmad.

13. The main thrust of the arguments of the learned counsel for the appellants was that the High Court having said that Jan Ahmad was in possession of the disputed land, the appellants had a right to protect their possession and in the circumstances the plea of the appellants that they had acted in exercise of their right of private defence was not rightly appreciated by the learned High Court which entitled the appellants to the award of lesser sentence.

14. In regard to the exercise of right of private defence, it was found by the learned High Court that‑‑ "no evidence was brought on the record to substantiate the allegation that the complainant party was carrying any arms. If they had in fact gone to the spot with a purpose to evict the appellants forcibly, they would not have been empty handed but would have carried arms as they naturally must have expected resistance from the opposite party. If in fact they had carried the weapons, they too would have used the same and in that event the result would have been quite different. But it is to be noticed that two of them were shot dead and three seriously, injured without a scratch to the appellant that the complainant party came armed to forcibly' evict them cannot be accepted. The plea of the appellants that I the complainant‑party received injuries at the hands of their own men is also without substance and is rejected out of hand. '" The finding of the learned High Court so recorded in the facts and circumstances of the case, in our view, are unexceptionable and we are not inclined to hold otherwise.

15. Be that as it may, there is no denying the fact that transaction in respect of the lease was completed and the possession of the land in dispute had been delivered to the appellants. They were, therefore, to a certain extent within their right to defend their possession and in l the course of that they caused the death of two persons and injured three witnesses: Though we uphold the conviction of the appellants under section 302/34, P.P.C., but we are of the view that in the peculiar circumstances of the case, capital punishment imposed upon Jan Ahmad and Wali Muhammad appellants would not be justified and I the ends of justice would be met by altering the sentences of death, awarded to Jan Ahmad and Wali Muhammad alias Wali Dad to imprisonment for life on two counts. The fine imposed upon them is enhanced to Rs.10,000 each on two counts or in default of payment to three years' R.I. each on two counts.

16. The sentences of imprisonment for life shall run concurrently and the benefit of section 382‑B of the Code of Criminal Procedure shall be extended to the appellants, while computing their sentences. With these modifications the appeal is dismissed in all other respects.

17. Criminal Appeal No.27 of 1982 is dismissed. M.I. /J‑5/S Order accordingly.