2003 PLP 440 (YLR)

(2) Multiple fire‑arm wound with everted margins on back of left upper chest and shoulder 1 x 1 c.m. largest and smallest .6 x .6 c.m. (3) Multiple tire‑arm wound with everted margins largest 2.1 c.m. smallest .6 x .6 c.m. on left forearm (wrist) ventral aspect. (4) A fire‑arm wound with everted margins .8 x .8 c.m. on dorsal aspect of left forearm. His opinion about these injuries was as follows:‑‑ "Death in my opinion was due to haemorrhage shock caused by injury No.1. Injury No.2 was exit of injury No.1. Injury No.3 again entry and 4 exit of injury No.3. All caused by fire arm weapon and were ante‑mortem in nature. Injury No. 1 was individually responsible for death and fatal in ordinary course of nature. Time between injuries and death was 6 to 8 hours and between death and post -mortem was 18 to 24 hours." Exh. P.I. is the post‑mortem report

10. Muhammad Akbar, Sub‑Inspector (P.W.12) was then posted at Police Post Basharat of Police Station Choa Saidan Shah. He after taking the relevant papers and the blood‑stained Kameez of the deceased had learnt about his death and: he reached the Civil Hospital, Chakwal, where he prepared the inquest report (Exh. P.M.) and he applied for the post‑mortem examination of the deceased. He handed over the dead body to Muhammad Imtiaz, Constable for this purpose. On 11‑11‑1996, the Sub‑Inspector Muhammad Akbar inspected the place of occurrence, prepared the site plan (Exh.P.O.), collected the blood‑stained earth and took into possession a wrist‑watch of the deceased. After the post‑mortem, the Shalwar of the deceased alongwith a phial consisting of cartridges was taken into possession by him vide memo. Exh. P.A. He recorded the statements of the witnesses. On 16‑11‑1996 he arrested Abid Hussain appellant, who on 20‑11‑1996 got recovered licensed .12 bore gun (p.5), which he took into possession vide memo. Exh.P.G. The other co‑accused were also arrested by him. Some relevant excerpts from his testimony are reproduced below:‑‑ "It has come to my information during the investigation that Bashir, Bostan P.Ws. alongwith Eid Muhammad son of Khan Bahadur, Muhammad Afsar resident of Dhullah, District Jhelum alongwith Muhammad Akhtar deceased came at the place of occurrence armed with weapons to get the possession of the house of Muhammad Sharif from Abid accused, however, this fact was not produced by any one. I declared Abid accused as culprit of this case but I did not reach to any conclusion about the other accused when the investigation was transferred to me. This fact was discarded by me that P. Ws. alongwith Eid Muhammad son of Khan Bahadur, Muhammad Afsar and Muhammad Akhtar deceased came to get the possession of the disputed house the place of occurrence from Abid accused." "All the accused except Abid joined the investigation and took the plea that they were not present at the time of occurrence."

11. Amongst the formal witnesses were Muhammad Imtiaz (P.W.3). Who escorted the dead body of Muhammad Akhtar for post- mortem examination and he collected the last worn clothes from the Doctor which he handed over to the Investigating Officer who took the same into possession vide memo. Exh. P.A. alongwith phial containing pellets. Muhammad Ijaz, Constable (P.W.4) handed over to the Investigating Officer shirt (P.W.3) of injured Muhammad Akhtar, which he took into possession vide memo. Exh.P.B. The shirt had the marks of entry of pellets. Muhammad Sharif, Draftsman (P.W.5) had prepared the site plans of the place of occurrence in triplicate (Exh.P.C., Exh.P.C/1 and Exh.P.C./2). According to him, the point No.2 where Bashir was present, was not visible from point No.4. Likewise, from point No.3, point No.4 was also not visible. Qaim Din (P.W.6) had identified the dead body of the deceased. Muhammad Khan (P.W.7) was present when the blood‑stained earth was picked from the place of occurrence and sealed into a parcel through memo. Exh.P.E. He also witnessed taking of the wrist‑watch (P.4) of the deceased by the Sub‑Inspector Muhammad Akbar through memo. Exh.P.F. Ameer Afzal (P.W.8) witnessed the recovery of the gun from the appellant which was licensed and which was recovered from his house. Altaf Hussain, A.S.‑I. (P.W.13) had registered the F.I.R. (Exh.P.Q) verbatim on the basis of the statement forwarded to him by the Sub- Inspector.

12. It appears that this case was subjected to several investigations. Javed Akhtar, A.S.P. (P.W.14) had also investigated this case. Two relevant excerpts from his statement throwing light on the factum of the possession of the house where the occurrence had taken place, are reproduced below:‑‑ "I inspected the place of occurrence and visited the same. As per my investigation, only Abid Hussain accused is culprit of this case and all the other accused namely Fida Hussain, Abdul Qayyum, Mumtaz and Asif Hussain were found innocent and the plea of some of the accused about alibi is also proved. They were put in Column No.2 of the challan/report under section 173, Cr.P.C. During the investigation, there was a dispute between the parties about the possession of the house the place of occurrence and after inspection of the same I found the household luggage of Mehfooz Begum wife of Muhammad Bashir P.W. lying therein. So, I observed that the disputed house is in possession of Mehfooz Begum." "I investigated this case almost for full week. "

13. Abdul Khaliq, D.S.P., who too had investigated this case, was produced by the defence as D.W.1. According to him:‑‑ "During my investigation, it came on the record that the complainant party got the forcible possession of the disputed house from the brother of Qamar Javed, namely, Abid accused. It was also mentioned in my investigation that some of the persons from the complainant party were armed. It had also come in the investigation that the complainant party tried to break the door of the house and then fired. According to my investigation and observation the fire of Abid accused could not hit the deceased Muhammad Akhtar. However, this is not my final conclusion. I called the opinion of the doctor about my investigation as narrated above."

14. Another excerpt from his testimony during cross‑examination is also relevant and is reproduced below:‑‑ "It is correct that Mumtaz Hussain accused is a retired Sub‑Inspector. It is also correct that most of his service was at Rawalpindi. It is also correct that most of my service was at Rawalpindi. It is also correct that even before investigation Mumtaz Hussain accused was known to me."

15. Abid Hussain appellant and the other five accused with him, who have now been acquitted, during their statements under section 342, Cr.P.C. professed their innocence. The version of Abid Hussain appellant was as follows:‑‑ "Mst. Mehfooz Begum is my first cousin (Chachazad) and also sister‑in- law (wife of my brother Qamar Javed). My brother Qamar Javed contracted second marriage and resided at Karachi. Feeling aggrieved she deserted herself from my brother's house and started living with her maternal uncle (Mamu) Abdul Aziz. Afterwards for disgracement of the family and my brother Qamar Javed she started living in the house of the father Muhammad Bashir P.W. as house‑maid servant. The disputed house basically belonged to my grandfather and it was just in Hissadari possession of Muhammad Sharif my uncle. As my uncle Muhammad Sharif was male issueless. He died leaving behind Mst. Mehfooz her daughter and we i.e. (myself and my brother Qamar Javed) as his legal heirs. I and my brother Qamar Javed have the ownership and possession over the disputed house. Muhammad Bashir P.W.9 wanted to take forcible possession from me and my brother Qamar Javed who is absent from the village. He hired the services of Muhammad Akhtar deceased who was resident of village Qautar Kund and a vagabond. Muhammad Bashir P.W. alongwith his brother Bostan, Eid Muhammad son of Khan Bahadur and one Muhammad Afsar resident of village Dhulla, District Jhelum armed with fire‑arm weapons came there, resorted to firing and raised Lalkara to me that they had come to take the forcible possession of the house. I came put of my house armed with licensed .12 bore gun to defend myself and property of my absent brother Qamar Javed, when I reached at the outer gate of my house Muhammad Bashir P.W. fired on me with his .12 bore gun. Muhammad Akhtar deceased at that time was in between me and Muhammad Bashir P. W. and the fire hit Muhammad Akhtar deceased. They afterwards managed to get register the case against me and my co‑accused who are my close relatives. I took up this plea before the police as soon as I appeared before the police. The police investigated the matter and also came to the conclusion accordingly. All the P.Ws. are close relatives of Muhammad Bashir P.W. and his party-men and they had also enmity with me. Aftab Iqbal my co‑villager who is our strong enemy. Muhammad Bashir P.W. is his partyman. Due to his interference they got managed the case registered with due consultation. All the story of the prosecution is incorrect and baseless. I am innocent. " He did not offer himself as a witness under section 340(2) of the Cr.P.C.

16. It has been argued before this Court that the possession of the house was in fact with the appellant's side and the complainant's side had come there to forcibly dispossess the appellant's side and that the occurrence took place under the circumstances explained by the defence version. We also find that a D.S.P. had investigated this case and he had given his finding with respect to the possession of the house in favour of the appellant's side. But we have also read his statement in cross- examination with respect to his acquaintanceship with Mumtaz Hussain, a retired Sub‑Inspector and accused in this case who has now been acquitted.

17. It was also argued that Mehfooz Begum whose father Muhammad Sharif was the original owner of the property, was the wife of Qamar Javed, the brother of the appellant and not of Muhammad Bashir, the complainant in this case.

18. The aforementioned two points are most critical for arriving at a conclusion that as to who was the aggressor and who wanted to take the possession.

19. Admittedly, the property belongs to the father of Mehfooz Begum. Bashir complainant claims that he had married her after she was divorced by Qamar Javed. On the record, we have two documents from where help can be taken for answering this question. Exh. P.Q. is an F.I.R. bearing No.41 of 1997 in a case under sections 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Where Qamar Javed alleged that his wife Mehfooz Begum had developed relations with Muhammad Bashir and others of that village. As to what happened ultimately to this case, was not highlighted by any of the sides. Besides, we have Exh. P.R. which is F.I.R. No. 36, dated 25‑3‑1997 registered subsequently after the occurrence on the statement of Mehfooz Begum alleging trespass into her house by the appellant's side and where she claimed that she was the wife of Muhammad Bashir complainant and was occupying that property.

20. Besides the aforementioned facts, we have the statement of A.S.P. Javed Akhtar, P. W. who had categorically stated that the possession was not with the appellant's side rather he found the luggage of Mehfooz Begum wife of Muhammad Bashir lying there. He had investigated the case for a whole week and unlike in the case of Abdul Khaliq Khan, D.S.P. (D.W.1), there is no accusation of any partisanship or bias against this A.S.P. (P.W.).

21. Mehfooz Begum is reported to be living in that house alongwith her mother. Both are descendants of Muhammad Sharif. The presumption is that after the death of Muhammad Sharif they were in occupation of the suit property as already living there in the aforementioned capacity. This presumption could not be rebutted by the defence through any cogent proof for having taken over the possession while excluding toe widow of Muhammad Sharif and the daughter. The story of the appellant. therefore, with respect to the possession of the premises is to be out-rightly disbelieved.

22. On the question of marriage of Mehfooz Begum with complainant Bashir, the preponderance of the evidence favours the marriage in view of the F.I.R. filed by Mehfooz Begum and what was discovered by the A.S.P. This assertion of the complainant side could not be demolished by the appellant's side.

23. There is another dimension to the case and this is the statement of the deceased himself, on the basis of which the F.I.R. was lodged. The learned trial Court had not given any credence to this document, although the Inspector who took it down had said that the deceased was in his full senses at the time when it was recorded. According to the learned counsel for the appellant, merely because it bears the thumb‑impression of the deceased, was not enough. Even if we do not accept the statement of Muhammad Akhtar which ultimately turned to be a dying declaration upon his death, we cannot discard the testimony of Bashir P.W. under the circumstances who happens to be a natural witness being a resident of the area.

24. The odd thing in this case is that instead of killing Muhammad Bashir, Muhammad Akhtar was made the target. Muhammad Bashir complainant has explained the reason for it.

25. Learned counsel for the appellant's side has stated that Muhammad Akhtar was a vagabond having been called from another district for taking over of possession forcibly. There is nothing on record to suggest that Muhammad Akhtar was a vagabond. In the cross‑examination of Muhammad Bashir, it has come on record that Muhammad Akhtar had friendly terms with the whole village Gujjar, which means that he used to visit there. There is no evidence about his bad character and the possibility that he was there as was stated by Muhammad Bashir P.W. is possible. Especially when we are not accepting the version of the appellant with respect to his possession and also with respect to the re‑marriage of Mehfooz Begum. We find that the appellant has not denied his participation but has given a version about Muhammad Bashir P.W. firing at him which hit Muhammad Akhtar, the deceased. Which story does not appear plausible in the perspective of the occurrence. If Muhammad Bashir had a gun, he would not have spared the appellant Abid Hussain. No gun, anyhow was recovered.

26. We do find that five other co- accused were let off and we have the explanation coming from the A.S.P. and other Investigating Officers in respect of them. The probabilities on which they were released are possible and we need not enter into that controversy now. But merely because a part of the prosecution story was disbelieved, does not mean that the entire story has to be disbelieved.

27. In criminal trials many a time the defence is successful in casting doubts on some roles while proving the others. The culture that we have, the weakness which are rampant in our investigating system, the implication of people on account of animosity and failure in not taking action for malicious prosecution, have led to widening of the net at the end of the prosecution with immunity. Otherwise people would be careful and would only involve those against whom case was possible. We are, therefore, required to sift the grain from the chaff and we here do not follow the rule of falsus in uno falsus in omnibus.

28. The appraisement of evidence reflects that the version of the appellant is unbelievable and we discard it. We are therefore, left with the prosecution version which is more plausible and sensible and persuades us in upholding not only the order of conviction but also of the sentence. After the failure of the appellant's side in establishing that the appellant's side were justified in protecting their possession and was guilty of manslaughter not amounting to murder to be covered by section 302(b) of the Pakistan Penal Code. We, therefore, find no merits in the Appeal bearing No. 149 of 1998 filed by Abid Hussain convict, and dismiss the same. The Murder Reference No. 265 of 1998 is consequently answered in the positive.

29. We also find that the quantum of compensation already awarded did not call for any further augmentation under the circumstances of this case. We, therefore, dismiss the Revision Petition bearing No. 60 of 1998 as well. N.H.Q./A‑664/L Appeal dismissed.