1987 PLP 530 (SCMR)

3. The petitioners as well as the respondent preferred appeals before the High Court against their convictions and sentences. The High Court dismissed the appeals of the petitioners and confirmed the sentences of death as imposed by the Additional Sessions Judge. It accepted the appeal of the respondent and set aside his convictions and sentences. 4.Criminal P.S.L.A. No. 42‑R of 1986 has been filed by the complainant party to call in question the acquittal of the respondent.

5. The occurrence took place on 15‑2‑1982 at 10‑30 a.m. in the fields of village Basiwala. It was reported by Muhammad Yousaf (P.W. 1), an eye‑witness, to S.I. Mushtaq Ahmad (P.W. 16) of Police Station Pasroor who had come to the village in connection with patrol duty.

6. The parties are residents of village Basiwala. One Said Bibi, a widow, owned about 9 Acres of agricultural land in the village. She used to draw water from the tubewell of the petitioners for irrigating her land and in return would give 1/3rd of the produce of the land to the petitioners. A year prior to the occurrence Muhammad Khan, a brother of Muhammad Yousaf (P.W. 1), took the land on lease from her and started to install his own tubewell for the pupose of irrigating the land. This was resented by the petitioners. One Abdullah a partner in the tubewell of Mushtaq son of Bashir, petitioner, filed a civil suit to seek an injunction against the installation of the tubewell and obtained a stay order from the civil Court. The stay order was subsequently vacated.

7. It was alleged by the prosecution that on 15‑6‑1982 Muhammad Anwar, Muhammad Shafi and Muhammad Ashraf, all deceased, together with Muhammad Yousaf (P.W. 1), Muhammad Siddique (P.W. 2), Rehmat (P.W. 3) and Ghulam Rasool (P.W. 4) were present in their field and were engaged in weeding the cotton crop. At about 10‑30 a.m., the petitioners alongwith Muhammad Ilyas, Muhammad Abbas and the respondent came there. Mushtaq son of Bashir, Mushtaq son of Mehr Din, Muhammad Hanif, Muhammad Ilyas and Muhammad Abbas were armed with .12 bore guns, Faiz Rasool and the respondent were carrying carbines and Muhammad Tufail had a sota with him. Immediately on arrival at the spot the petitioners and the respondent started abusing the complainant party and raising Lalkaras. The members of the complainant party ran towards the canal but the assailants surrounded them. Mushtaq son of Bashir fired at Muhammad Anwar deceased hitting him in the abdomen. The respondent fired at Muhammad Shafi at his waist. Mushtaq son of Mehr Din shot at Muhammad Ashraf. Muhammad Abbas and Muhammad Hanif fired at Muhammad Siddique on his head and legs. Mushtaq son of Bashir and Muhammad Hanif fired at Rehmat (P.W. 3). Muhammad Ilyas fired at Muhammad Sharif (P.W. 7) Mushtaq son of Mehr Din fired at Muhammad Ismail who was also present in the locality. Muhammad Tufail struck Muhammad Sharif (P.W. 71 , Ismail and Ghulam Rasool (P.W. 4) with his sota. Muhammad Ilyas and Faiz Rasool fired at Muhammad Yousaf (P.W. 1). To ward off their assault, Ghulam Rasool (P.W. 4) threw some brickbats at Muhammad Hanif and Faiz Rasool. After the occurrence the petitioners and the respondent ran away with their weapons. Muhammad Shafi and Muhammad Ashraf died at the spot while Muhammad Anwar died subsequently as a result of the injuries received by him.

8. At the trial the petitioners pleaded not guilty to the charges against them. All the petitioners except Faiz Rasool and Muhammad Hanif denied that they were present at the spot at the relevant time. Their story was that Mushtaq son of Bashir, petitioner, was in possession of 2 Kanals of Shamlat land. The complainant party wanted him to vacate the said land. On the day of occurrence Faiz Rasool and Muhammad Hanif, nephews of Mushtaq son of Bashir, were ploughing this land. Suddenly the complainant party arrived there carrying fire‑arms and other weapons. They started assaulting Faiz Rasool and Muhammad Hanif in order to forcibly dispossess them. In the meanwhile, Gul Nawaz alias Gullu arrived there with a gun. He started firing in order to protect Faiz Rasool and Muhammad Hanif. The complainant party also fired but luckily Faiz Rasool and Muhammad Hanif were not hit. The petitioners produced four witnesses in their defence.

9. At his trial the respondent too pleaded not guilty to the charges against him. His defence was that Gul Nawaz mentioned in the F.I.R. was an entirely different person, that his own name was Ijaz Ahmad and that he was never known by the name of Gul Nawaz. He produced one witness in his defence.

10. In support of its allegations against the petitioners the prosecution relied entirely upon the ocular evidence furnished by Muhammad Yousaf (P.W. 1), Muhammad Siddique (P.W. 2), Rehmat (P.W. 3), Ghulam Rasool (P.W. 4), Muhammad Sharif (P.W. 7) and Nazar Hussain (P.W. 8). Except Nazar Hussain (P.W. 8) all the witnesses were injured during the course of occurrence. The learned trial Court considered the version of the petitioners as well as the story given by the eye‑witnesses and held that the petitioners were the aggressors. Accordingly, it convicted and sentenced them in the manner already indicated. The learned Additional Sessions Judge who tried the respondent rejected his assertion that he was a person different from the one mentioned as Gul Nawaz in the F.I.R. He also found that the respondent had taken part in the occurrence. Consequently, he found him guilty of all the offences with which he was charged and sentenced him accordingly.

11. From the judgment of the Additional Sessions Judge at the trial of the petitioners two appeals were preferred in the High Court. One was filed jointly by Mushtaq son of Bashir and Muhammad Tufail. The other was jointly lodged by Faiz Rasool, Muhammad Hanif and Mushtaq son of Mehr Din. A criminal revision was also filed by the complainant party. The High Court rejected the two appeals and the criminal revision, upheld the findings of the trial Court and maintained and confirmed the convictions and sentences of the petitioners. The respondent too preferred an appeal from his convictions and sentences. The High Court accepted his appeal and set aside his convictions and sentences, holding that the prosecution had not been able to prove that he was also known by the name of Gul Nawaz.

12. In support of Criminal P.S.L.A. Nos. 249 and 251 the learned counsel for the petitioners contends that the petitioners had no motive to attack the complainant party. Thus, the civil suit against Said Bibi, which according to the prosecution gave rise to the occurrence, was not brought by any of the petitioners but by one Abdullah who did not figure in the occurrence at all. In rejecting the petitioners plea of self‑defence the learned Judges in the High Court ignored the fact that the occurrence had taken place in Field No. 797 which was adjacent to Field No. 796 owned by the petitioners. It was far away from the land of the complainant party. The explanation of the complainant party that it was present at the spot in order to weed the cotton crop was palpably untrue as there was no cotton sown at the spot at the relevant time. During the course of occurrence two of the petitioners, namely, Muhammad Hanif and Faiz Rasool, were also injured. Although the complainant party stated that they were injured when Ghulam Rasool threw brickbats on them it was not an acceptable explanation as no one would have dared to throw brickbats on persons who were allegedly carrying fire‑arms and using them. In any case the Investigating Officer did not find any brickbats at the spot. The trial Court had found that the F.I. R. had been recorded after preliminary investigations but the High Court rejected this finding without any substantial reasons. From the medical evidence, it appeared that Muhammad Anwar deceased was killed by his own carbine which indicated that the complainant party too was not unarmed at the time of the occurrence.

13. On behalf of the complainant party which has filed Criminal P. S. L. A. No. 42‑R of 1986 it is contended that in coming to the conclusion that the respondent was not known as Gul Nawaz the High Court has for insufficient reasons rejected the evidence of the eye‑witnesses who saw him actually participating in the occurrence. The eye‑witnesses and the respondent belonged to the same village and as the occurrence took place in day‑time they could, not be mistaken about his identity.

14. The contentions raised by the petitioners and the complainant party require further consideration. The petitioners as well as the complainant party are granted leave to appeal. Let bailable warrants in the sum of Rs.20,000 with two sureties in the like amount to the satisfaction of Assistant Commissioner, Pasroor be issued against Ijaz Ahmad alias Gul Nawaz alias Gullu. S.Q. /4440/S Leave granted.