1996SCMR1039 (PLP)

SAAD SAOOD JAN, J.

Five persons, namely, Muzaffar, Arif, Azim, Riaz and Zulfiqar, were convicted by the Additional Sessions Judge, Jhang, on charges under sections 302 (two counts) and 307 read with section 149 and section 148, Pakistan Penal Code, for causing the death of Muhammad Ramzan and his son, Muhammad Shafi, deceased, making murderous assault upon Jinda (P.W.13), and rioting. Muzaffar was sentenced to death for causing the death of Muhammad Shafi, deceased. Zulfiqar too was sentenced to death for causing the death of Muhammad Ramzan, deceased. They together with the other convicts were also directed to undergo various terms of imprisonment in addition to payment of fines. Alongwith them two other persons, namely, Nawaz and Allah Dad were also tried but they were acquitted. On appeal and reference, the High Court acquitted Zulfiqar of all the charges but maintained the conviction of Muzaffar under sections 302 and 307, ibid. It acquitted all the accused of the offence under section

148. Riaz, Azim and Arif were acquitted of the charges under section 302 but their. convictions under section 307 were maintained; however, their sentences were reduced to rigorous imprisonment for a period of four years. The petitioners as well as the complainant party have filed separate petitions for special leave to appeal calling in question the judgment of the High Court.

2. Both patties reside in Chak No. II (Thai) within the area of Police Station Athara Hazari of Tehsil hang. They are closely related to each other. Among the accused party Nawaz and Allah Dad who were acquitted and Muzaffar are real brothers; Zulfiqar who was acquitted and Riaz are the sons of Sohara who was a brother of Muzaffar. Arif and Azim are the sons of a sister of Muzaffar is married to the daughter of Muhammad Shafi, deceased. A sister of Muzaffar. Muzaffar is married to another son of Muhammad Ramzan, deceased. Despite the occurrence the marriages strangely enough still subsist.

3. The occurrence took place on the morning of 4-8-1990, at 8-30 p.m., in Khasra No.296 of Lot No.8. Contiguous to that is Khasra No.296 of Lot No.2. The complainant party claimed that it was in possession of this Khasra on the basis of a lease obtained from its owner, Sakhi Muhammad.

4. According to the prosecution, a day before the occurrence it had rained in the locality. On the day of occurrence, the complainant party comprising, Muhammad Ramzan, deceased, his son, Muhammad Shafi, deceased, Muhammad Zafar (P.W.12), Jinda (P.W.13) (a brother of Muhammad Ramzan, deceased), Sikandar (P.W.14) and one Muhammad Anwar went to Khasra No.26 for ploughing it. On reaching there they found that their land was already being ploughed by Allah Dad with a tractor. Muzaffar and Zulfiqar, armed with guns; Arif and Riaz carrying Vahola; Azim holding a Sota and Nawaz were also present there. When Muhammad Ramzan protested, Nawaz, Muzaffar and Zulfiqar raised Lalkaras. Immediately thereafter Muzaffar fired twice at Muhammad Shafi, deceased. He was followed by Zulfiqar who fired at Muhammad Ramzan, deceased. Jinda was beaten up by Riaz, Azim and Arif with their respective weapons. Ramzan and Shafi, deceased, died at the spot. The occurrence was reported by Muhammad Zafar (P.W.12) at Police Station Athara Hazari on the same morning at 11-00 a.m.

5. The accused party pleaded not guilty to the charges against them. Muzaffar made a statement giving the defence version. According to him he was present in the fields with his gun while his brother, Allah Dad, was ploughing the land with the tractor. The complainant party came there carrying different weapons and attacked Allah Dad. In order to save the life of his brother he fired at the complainant party.

6. The case of the prosecution against the accused party was founded entirely upon the ocular testimony furnished by three eye-witnesses, namely, Muhammad War (P.W.12), Jinda (P.W.13) and Sikandar (P.W.14). The investigating officer had collected three empty cartridges from the scene of occurrence. They were later found to have been fired from the gun of Muzaffar. Although, the Trial Court accepted the entire version of the prosecution yet the High Court was of the view that the occurrence was a sudden affair and the various participants therein from the side of the accused party were responsible for their own acts. It acquitted Zalfiqar as no empty cartridge recovered from the spot was found to match with the gun recovered from him.

7. In support of the petition preferred by the accused party it is contended that the defence version has not received due attention in the Courts below, It was the case of the prosecution itself that the occurrence took place when Allah Dad was ploughing the land and the complainant party tried to stop him. There was no reliable evidence which might be taken to substantiate the claim of the complainant party that the land in dispute was ever in its possession or that it had obtained it on lease from the owner thereof; thus, it was the complainant party which was the aggressor; consequently, the conviction of Muzaffar on the charge under section 302 and of the others on the charge under section 307 was entirely uncalled for.

8. On the part of the complainant party it is contended that the High Court was not right in acquitting Zulfiqar altogether and Azim, Riaz and Arif of the charge under section

302. They had attacked and killed two unarmed persons without any justification whatsoever.

9. So far as Zulfiqar is concerned the High Court does not appear to have erred to directing his acquittal. According to the version of the eye-witnesses as given in the first information report and at the trial, only three shots had been fired at the time of the occurrence. The investigating officer recovered three empty shells from the spot. All these shells were found to have been fired from the gun recovered from Muzaffar. That being so, the case of the complainant party that Zulfiqar too had participated in the occurrence becomes doubtful. That being so, we are not prepared to interfere with his acquittal. However; the contention that Riaz, Azim and Arif should have also been convicted under section 302 needs examination.

10. For the reasons stated above leave to appeal is granted in both petitions. N.H.Q./M-3230/S Leave granted.