2007 PLP 1462 (YLR)

HASNAT AHMAD KHAN, J.--By this single judgment, I intend to dispose of Criminal Appeal No.669 of 2002 filed by Allah Rakha convict and Criminal Appeal No.753 of 2002 filed by Ghulam Sarwar convict.

2. Both the said convicts along with five other co-accused faced the trial in case, F.I.R., No.297 of 1999 dated 24-8-1999, registered with Police Station Kassowal, District Sahiwal, for the offences under sections 302/324/148/149, P.P.C., before the learned Additional Sessions Judge, Chichawatni, wlio after concluding the trial vide judgment dated 15-7-2002, convicted the appellants under section 302-C, P.P.C. and sentenced Allah Rakha appellant to life imprisonment with compensation of Rs.50,000 under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased. In default whereof, he was ordered to undergo six months S.-I. Ghulam Sarwar appellant was sentenced under said provision of law to 14 years R.I. with compensation of Rs.50,

000. In default whereof, he was ordered to undergo six months S.-I., Muhammad Anwar, Karam Din, Ghulam Mustafa, Abdul Ghafoor alias Manzoor and Abdul Majeed Shahid co-accused were acquitted of the charge.

3. Briefly the prosecution story as set out in the F.I.R., (Exh.P.E.) recorded on the statement of Iqbal Hussain, complainant, is that the complainant Iqbal Hussain is a tiller and resident of Chak No.115/12-L Tehsil Chichawatni, and on the day of occurrence, at about 5-00 p.m. he along with Mazhar Hussain, Ghulam Haider and Muhammad Nawaz was sitting in his allotted vacant Ahata No.343 and in the meanwhile, Muhammad Anwar accused reached at the place of occurrence on his tractor trolley loaded with bricks. At that time, said Muhammad Nawaz co-accused was accompanied by Allah Rakha (appellant) armed with gun .12 bore pump action, Abdul Ghafoor alias Manzoor (acquitted co-accused) armed with .12 bore gun, Ghulam Mustafa, Karam Din, Abdul Majeed co-accused armed with sotas. On the raising of Lalkara by Muhammad Anwar, acquitted co-accused, Allah Rakha appellant fired shot at Mazhar Hussain which hit on his left side of his chest below his armpit. He repeated the fire hitting left shin of Mazhar Hussain (deceased). Ghulam Sarwar appellant fired at Mazhar Hussain (deceased) hitting on his right leg. Abdul Majeed Shahid (acquitted co-accused) caused injury on the head of the deceased with his stick. Abdul Ghafoor (acquitted co-accused) caused fire-arm injury on the legs of Ashgar Ali deceased. Ghulam Rasool appellant remained continuously firing with his .12 bore gun hitting the head of Ashgar Ali. Ghulam Mustafa and Karam Din (acquitted co-accused) caused blunt weapon injury to Asghar Ali P.W. Ghulam Rasool appellant made further fire-shots which hit Mazhar Hussain (deceased) who died at the spot.

4. Mulazim Hussain, S.-I. (P.W.9), after recording the F.I.R., (Exh.P.E.) proceeded to the place of occurrence. He prepared the injury statement (Exh.P.B.) and the inquest report '(Exh.P.a.). After dispatching the corpse of Mazhar Hussain, he recorded the statement of the witnesses and took into possession blood-stained earth from the place of occurrence through recovery memos. Exh.P.F. and Exh.P.G. Tractor trolley was taken into possession as Exh.P.H. Rough site-plan of the place of occurrence was prepared by him as Exh.P.R. Thereafter, he went to T.H.Q. Hospital, Chichawatni, and prepared injury statement of Asghar Ali injured P.W. a" Exh.P.S. Last-worn clothes of the deceased Shalwar P.7 and Bunyan P.8 both blood-stained and sealed foil containing pallets were taken into possession vide memo. Exh.P.G. On 28-8-1999 he got prepared site plans of the place of occurrence Exh.P.D., Exh.P.D.1 and Exh.P.D.2. On 27-9-1999 Ghulam Mustafa and Karam Din co-accused led to the recoveries of sotas P.2 and P.1, which were taken into possession vide recoveries memo. Exh.P.K. and Exh.P.J. respectively, Allah Rakha appellant got recovered gun P.4 vide Exh:P.M. Similarly, Ghulam Sarwar appellant got recovered gun P.3 along with two crime empties vide Exh.P.L. The other co-accused also got recovered their respective weapons through different recovery memos. After completion of the investigation, all the accused were challaned by him.

5. During the trial, prosecution came forward 10 witnesses Dr. Muhammad Younas, who had conducted autopsy on the corpse of Mazhar Hussain appeared as P.W.1. The details of injuries received by the deceased as given by P.W.1 is as under:-- (1) A lacerated wound 4 c.m. x 3/4 c.m. x bone deep on left side of head, 9 c.m. above left ear and 6 c.m. left from midline. (2) A bruise 11 c.m. x 1-1/2 c.m. on outer side of left arm 9 c.m. below the shoulder joint. It was oblique in direction. (3) A fire-arm punctured wound 4 mm x 4 mm circular in shape with inverted edges x going deep on outer side of left arm, 8 c.m. below the left shoulder joint. It was wound of entrance. (4) Fire-arm punctured wounds 9 in number, each having 4 mm x 4mm in size circular in shape with inverted edges x going deep on back and outer side of left elbow joint. These were wounds of entrance. (5) Fire-arm punctured wound 10 in number, each having size 4 mm x 4 mm with inverted edges x going deep in an area of 15 c.m. x 10 c.m.on back and outer side of left fore-arm. These were wounds of entrance. (6) Fire-arm punctured wounds 18 in number, each having 4 mm x 4 mm in size circular in shape with inverted edges on outer aspect of left side of chest 10 c.m. below the armpit. These were going deep and were wounds of entrance. Corresponding laceration seen on Bunian. (7) Fire-arm punctured wounds 29 in number, each having 4 mm x 4 mm size with inverted edges x going deep, circular in shape on back, outer and front of left side of abdomen. Corresponding laceration present on the Bunian. These were wounds of entrance. (8) Fire-arm punctured wounds 18 in number each having 4 mm x 4 mm in size, circular in shape with inverted edges, on outer side of left buttock and thigh, corresponding laceration, present on Shalwar. These were wounds of entrance. (9) A fire-arm punctured wound 1-1/2 c.m. x 1 c.m. oval in shape with inverted edges x going deep, on front and outer of left leg 11 c.m. below the knee joint. It was wound of entrance. Corresponding laceration seen on Shalwar. (10) A fire-arm punctured wound 1-1/2 c.m. x 1 c.m. x going deep with averted edges on inner side of left leg. 12 c.m. below the knee joint. It was wound of exit of Injury No.9. Corresponding laceration seen on Shalwar. ON DISECTION Tibia of left leg fractured. Corresponding punctures seen on the Shalwar. (11) A punctured wound 1 c.m. x 1 c.m. x going deep with inverted edges 1 c.m. below and cuter to injury No.9. It was wound of entrance. Corresponding laceration seen on Shalwar. (12) A fire-arm punctured wound 4 c.m. x 4 c.m. in size circular in shape with inverted edges x going deep on outer side of left leg 20 c.m. above the ankle joint. Corresponding laceration on Shalwar. It was wound of entrance. (13) A fire-arm punctured wound 1 c.m. x 3/4 c.m. x skin deep with inverted edges on inner side of front of right leg 7 c.m. above the ankle joint . It was wound of entrance. (14) A fire-arm punctured wound 1 c.m. x 3/4 c.m. oval in shape with averted edges on front of outer side of right leg 6-1/2 c.m. above the ankle joint. It was a wound of exit. (15) A bruise 7-1/2 c.m. x 1-1/2 c.m. on the outer side of right arm 6-1/2 c.m. above the elbow joint. (16) An abrasion 3 c.m. x 1 c.m. on the outer side of right arm 1-1/2 c.m. above injury No.15. (17) An abrasion 3 c.m. x 3/4 c.m. on the back of right fore-arm 4-1/2 c.m. below the elbow joint. According to his opinion, death was due to shock and haemorrhage as a result of injuries Nos.6 and 7 which were sufficient to cause death. He got exhibited post-mortem report as Exh.P.A. Said doctor further proved the injuries received by Abdul Majeed Shahid (acquitted co-accused). The detail of injuries received by the co-accused has been deposed by the said P.W. is as under:-- (1) A lacerated wound 8 c.m. x 1 c.m. x bone deep on the right side of head 7 c.m. above the right ear and 7 c.m. right from the midline. The wound started at the anterior hair line and, extended backward. (2) A lacerated wound 6 c.m. x 3/4 c.m. x bone deep on the top of head crossing the midline. (3) A lacerated wound 3-1/2 c.m. x 1/2 c.m. x bone deep on the back of right side of head 10 c.m. above the posterior hair line and 8 c.m. right from mid line. (4) A bruised swelling 18 c.m. x 3 c.m. above the right elbow joint. (5) A bruised swelling 5 c.m. x 2 c.m. on the right scapula. (6) A bruised swelling 5 c.m. x 2 c.m. on the back of left fore-arm just below the left elbow joint. (7) A lacerated wound 2 c.m. x 1/2 c.m. x bone deep on the palmer aspect of the base of right index finger. All the injuries' were caused by blunt weapon within a duration of about one hour. He has further deposed that he had medically examined Muhammad Anwar co-accused on the same day. The detail of injuries received by the said acquitted co-accused is as under:-- (1) A lacerated wound 2-1/2 c.m. x 1/2 c.m. x scalp deep on centre of forehead. (2) A bruised swelling 8 c.m. x 2 c.m. on the top of right shoulder. (3) A bruised swelling 5 c.m. x 2 c.m. on the back of left hand. (4) An abrasion 2 c.m. x 1/2 c.m. on the front of left knee joint. (5) A swelling 3 c.m. x 2 c.m. on the front of left thigh joint just above the knee joint. Likewise, he proved the injuries suffered by Ghulam Mustafa acquitted co-accused. The detail of said injuries is as under: (1) A lacerated wound 2 c.m. x 1 c.m. x scalp deep on the back of left side of head 11 c.m. above the posterior hair line and 7 c.m. above and back of left ear. Muhammad Akhtar, Draftsman, appeared as P.W.2 and proved site plans of the occurrence as Exh.P.D. Exh.P.D./1 and Exh.P.D./2. Asghar Ali injured P.W. appeared as P.W.3, while Iqbal Hussain entered into witness box as P.W.4 and deposed regarding the ocular version. Zulfiqar Ali appeared as P.W.5 and deposed about the recoveries effected from the place of occurrence as well as at the instance of the accused. Mulazim Hussain, Investigating Officer appeared as P.W.9 as mentioned above. Dr. Zamir Hussain, who had medically examined Asghar Ali, injured P.W. appeared as P.W.10 and proved the injuries suffered by him, which are as under:-- (1) Oval shaped lacerated wound 1 x 0.75 c.m. inverted margins deep going on the lower part of inner side of right thigh, 8 c.m. above the right knee. (2) A circular lacerated wound 1 c.m. in diameter with inverted margins deep going with collar of abrasion present on the inner side of upper part of right leg, 12 c.m. below the right knee and 30 c.m. above the right ankle. (3) A circular lacerated wound 0.5 c.m. in diameter with collar of abrasion with inverted margins, deep going present on the outer side of lower part of left thigh, 9 c.m. above the left knee. (4) Oval shape lacerated wound 1 x. 0.75 c.m. with inverted margins deep going with collar of abrasion on the outer side of left thigh, 9 c.m. from the left knee and 4 c.m. behind Injury No.3. (5) Circular lacerated would 1 c.m. in diameter with collar of abrasion with inverted margins deep going on the outer upper part of left leg 6 c.m. below the left knee, 33 c.m. above the left ankle. (6) A circular lacerated wound 1 c.m. in diameter with averted margins, deep going on the inner side of lower of left thigh 6 c.m. above the left knee. (7) A circular lacerated wound 1 c.m. in diameter with averted margins, deep going on the back of left knee. (8) Abrasion 1 c.m. x 1 c.m. on the right cheek. (9) Abrasion 1 c.m. x 1/2 c.m. on the right side of forehead, 6 c.m. above the left eye brow and 2 c.m. from midline. (10) Multiple abrasions in an area of 3 c.m. x 3 c.m. on the back of elbow. (11) Contused swelling 3 c.m. x 2 c.m. on the back mid of head three c.m. above the sup-nachal line. (12) Lacerated wound 2 c.m. x .05 cm, scalp deep on the back of head 6 c.m. above in the line of Injury No.11. Rest of the injuries were of formal nature.

6. After producing the documentary evidence in the shape of report of Chemical Examiner, Forensic Science Laboratory and other documents, the learned D.D.A. closed the prosecution case. Thereafter, all the accused were examined under section 342, Cr.P.C. Being examined under section 342, Cr.P.C. both the appellants denied the prosecution version and claimed their innocence.

7. Allah Rakha appellant in answer to question No.8 replied as under:-- "It is a false case. The P.Ws. are related inter se and they have made false statements in order to support their fabricated version. None of the P.Ws. excepting Asghar Ali P.W. was present at the spot at the time of occurrence."

8. In response to the same question, Ghulam Sarwar replied as under:-- "I was not present at the spot at the time of occurrence. I have been falsely involved due to my relationship with Muhammad Anwar accused. The P.Ws. have made false statements against us in order to support their fabricated version of the occurrence."

9. Muhammad Anwar accused in answer to Question No.7 replied as under:-- "I am innocent. Ihata No.343 where the occurrence took place was allotted to me long before the present occurrence and it was in my possession and use since then. The deceased and Asghar Ali P.W. along with other in order to forcibly occupy my said Ihata, made a plan and under this plan they instituted false civil suits against us one day before the present occurrence without our knowledge and got appointed a local commission of their choice who was also siding with the complainant party and as such he while sitting at Chichawatni made a false report as local commission which came to our knowledge much after the occurrence. The status quo order was not in our knowledge because we were not served by the Court. The accused Asghar Ali P.W. and others who are not witnesses in this case made a murderous assault on Abdul Majeed Shahid accused in the said Ihata and it was rumoured that Abdul Majeed Shahid had been murdered by the deceased and his companions. The deceased party also made murderous assault on me and Ghulam Mustafa my son, accused at the time of taking forcible possession of Ihata No.343 which was in my -possession. We acted in self-defence in order to save our lives apprehending death at the hands of the deceased and his companions. None of the eye-witnesses besides Asghar Ali P.W. was present when the deceased party launched murderous assault onus." While Ghulam Mustafa acquitted co-accused in answer to question No.8 replied as under:-- "I am innocent. I received the injuries at the hands of the deceased and Asghar Ali P.W. etc., in Ihata No.343 which was in our possession at the time of occurrence. The deceased etc., launched assault on us variously armed in an attempt to forcibly occupy Ihata No.343 which was owned by us and was in our physical possession at the time of occurrence. My co-accused Karam Din, Abdul Ghafoor, Allah Rakha and Muhammad Sarwar were not present at the spot at the time of occurrence. Abdul Majeed Shahid accused was assaulted and given injuries by the deceased etc., first of all. We acted in self-defence in order to save our lives apprehending death at the hands of the deceased and his companions. There was a large gathering which had assembled on our hue and cry. There was cross firing of the villagers and the deceased party in which they received the fire-arm injuries." According to said accused, Ahata No.343 was. in possession of the accused party. Mazhar Hussain (deceased) along with his associates assaulted on the complainant party, in order to forcibly occupy the said Ahata. In response thereof, the accused acted in their self-defence. Allah Rakha and Ghulam Sarwar appellant completely denied the prosecution story. Abdul Majeed injured co-accused also made a similar stance as that of Ghulam Mustafa acquitted co-accused.

10. After completion of the trial, learned trial Court acquitted five co-accused while proceeded to convict both the appellants as mentioned above.

11. Mr. Altaf Ibrahim Qureshi, Advocate, learned counsel for both the appellants has contended that the prosecution case is totally false and it is a case of two versions, one advanced by the prosecution and the other by the defence, and the defence version is more plausible and believable, inasmuch as, it was proved on the record that it was the complainant party, who had attacked the accused party, who admittedly was in possession of the Ahata in question and therefore, both the appellants are entitled to acquittal. He adds that during the same occurrence Abdul Majeed Shahid, co-accused and Muhammad Anwar and Ghulam Mustafa acquitted co-accused received as many as 13 injuries in all and in order to defend their bodies as well as property, they had acted in self-defence. As such, no offence was committed by the accused. He has further contended that in the statements recorded under section 342, Cr.P.C. Ghulam Mustafa acquitted co-accused, Muhammad Anwar and Abdul Majeed Shahid had advanced the plea of self-defence. In the alternative, he has prayed for reduction of the sentence awarded to the appellants under section 302-C, P.P.C.

12. Learned State counsel has opposed both the appeals.

13. After hearing both the learned counsel and going through the record, it has been straightway observed that it is a case in which three persons on the side of accused suffered injuries and two persons (including the deceased) on the side of the complainant received injuries at the hands of the accused party. While lodging the F.I.R. the injuries suffered by three acquitted co-accused were duly mentioned in the F.I.R. During the trial, the defence has raised plea of self-defence. The case of being two versions, the Court has to see as to which of the version is more plausible and near to the truth.

14. While evaluating both the versions, it has been noticed that while lodging the case, the complainant had claimed that disputed Ahata which was bone of contention was owned and possessed by the complainant party, but during the trial it was established that Ahata No.343 was owned and possessed by Muhammad Anwar co-accused. Iqbal Hussain, P.W.4, during the course of cross-examination candidly admitted that Ahata No.343 was allotted to Muhammad Anwar co-accused while Ahata No.344 was allotted to Ghulam Rasool accused/appellant. During the cross-examination, he further stated as under: "It is correct that up-till-now Ahata No.343 is not in ownership and possession of Mazhar Hussain deceased. Ahata No.344 is also not in ownership and possession of me and Ahata No.343 is not in ownership and possession of Asghar Ali, P.W."

15. During cross-examination, Mulazim Hussain Shah, Inspector, P.W.9, admitted that it had come to his knowledge that Abdul Majeed Shahid acquitted co-accused was the first who had sustained the injuries in this occurrence. On the basis of appreciation of the entire evidence, the learned trial Court also came to the conclusion that it was the complainant party who had initiated the attack upon the accused. It had been further observed in the impugned judgment by the trial Court that Abdul Majeed Shahid acquitted co-accused was the first, who had sustained injuries in this occurrence. The motive part of the prosecution story was also disbelieved by the learned trial Court. In para. No.15 of the impugned judgment, the learned trial Court went on to hold that the disputed Ahata had been allotted to the members of the accused party and this fact was fortified from the revenue record. This is hard fact that during the occurrence three persons received injuries on the side of the accused party and two persons including the deceased received the injuries on the side of the complainant. After the perusal of the prosecution evidence coupled with the findings of the learned trial Court it has become crystal clear that it was complainant party who was aggressor and the accused party had acted in the self-defence. They had got every right to defend their possession over the disputed Ahata and likewise after being caused blunt weapon injuries, they were within their right to defend themselves also.

16. However, the contention of the learned counsel for the appellant that in view of the statements of Ghulam Mustafa, Muhammad Anwar and Abdul Majeed Shahid (all the acquitted co-accused), whereby, they had claimed that the appellants were not present at the spot and only the injured accused had caused the injuries to the deceased, the appellants are entitled to acquittal is spurned. The said accused had tried to absolve the main accused to save them from conviction. The prosecution case is supported by the evidence of injured witness. The occurrence was reported to the police within 50 minutes of the occurrence. The role of causing fire-arm injuries, attributed to the appellants is duly supported by the medical evidence. It was daylight occurrence. There was no chance of substitution of the main culprits with the innocent persons. As such, they cannot be acquitted of the charge. The contention of the learned defence counsel that on the basis of. same evidence, five other co-accused were acquitted, also does not hold water in the light of the judgments of the Hon'ble Supreme Court, whereby, the principle of "falsus in uno, falsus in omini bus" has been discarded. The Courts are required to sift grain from chaft, therefore, the appellants are not entitled to clean acquittal.

17. As far as the sentence awarded to the appellant is concerned, it is concluded that though the accused had acted in defence of their property well and themselves, yet while exercising said right, they had exceeded their right of self defence, inasmuch as, none of the persons - on the side of the appellants had received any fire-arm injury. They had only received blunt weapon injuries, but while exercising their right of self-defence, they resorted to reckless firing, whereby, the deceased had received as many as 17 injuries. Likewise, Asghar Ali complainant received as many as 12 injuries including the fire-arm injuries. I am conscious of the fact that once the right of self-defence is accrued to the accused then that cannot be weighed in golden scales, yet in the present case, the use of fire-arm weapons and number of injuries caused by the accused to the complainant party shows that the accused side had clearly over re-acted and gone beyond their right of self-defence. Consequently, they cannot be acquitted straightway. However, considering the fact that it was a case of free fight in which apart from the appellants, five other co-accused had also participated, out of them, three had received injuries in the same occurrence. Participation of injured co-accused in the occurrence, therefore, cannot be doubted especially considering the fact that the said co-accused had admitted to have taken part in the occurrence. They had been acquitted not by way of giving the benefit of doubt, but in view of their plea of self-defence. According to the prosecution, acquitted co-accused had also caused blunt as well as fire-arm injuries to the deceased as well as injured P.W. So all the injuries suffered by the deceased and Asghar Ali, P.W.10, C cannot be attributed to the appellants. Therefore, the appellants are entitled to the reduction of sentence. Allah Rakha appellant had caused fatal fire-arm injuries to the deceased. Consequently, while maintaining his conviction under section 302(c), P.P.C., sentence awarded to him is reduced from life imprisonment to 12 years R.I. He shall pay the compensation to the legal heirs of the deceased as ordered by the learned trial Court and the sentence in default of the same, would also remain the same. As far as Ghulam Sarwar appellant is concerned, he is not responsible for the fatal injuries received by the deceased, consequently, while maintaining his conviction under section 302(c), P.P.C., I his sentence is reduced from 14 years R.I. to one already gone by him, which comes to about 7-1/2 years, as that would serve the ends of justice. The sentence of compensation and in default thereof, qua Ghulam Sarwar appellant would also' remain the same as ordered by the learned trial Court. Both the appellants would get the benefit of section 382-B, Cr.P.C. With the above said modification in terms of the sentence, both these appeals are disposed of. N.H.Q./A-34/L??????????????????????????????????????????????????????????????????????????????????? Sentence reduced.