2006 PLP 2663 (YLR)

KHAWAJA MUHAMMAD SHARIF, 1.

This judgment will dispose of Criminal Appeal No. 1814 of 2000 filed by Sana Ullah, appellant who was convicted under section 302(b), P.P.C. and sentenced to death with further direction to pay Rs.50,000 as compensation, in default six months' S.I. vide judgment dated 30-11-2000 rendered by learned Additional Sessions Judge, Okara. Murder Reference No.719 of 2000 for confirmation or otherwise of death sentence of convict appellant shall also be answered through this single judgment.

2. Occurrence in this case had taken place at 8-00 a.m. on 25-12-1995 within the revenue estate of Mauza Sukhala Dhoka which is at a distance of 12 kilometers from Police Station Mandi Ahmadabad, District Okara while the matter was reported to the Police by Ghulam Rasool on the same day and formal F.I.R. Exh.PA was recorded at 8-15 p.m. by S.H.O.

3. Briefly stated the facts of the case are that the complainant is an agriculturist, about one year ago, complainant exchanged land measuring 33 acres situated at Tubewell of Jalal Din Mehar in the area of Bakha Ladhuka with Jalal Din and Muhammad `Hussain sons of Imam Din and took the possession of the said land and started residing there. Sana Ullah filed a suit pertaining to land measuring 26 Acres ag inst the said Jalal Din and Muhammad Hssain in the Court of Civil Judge, Depalpur and procured a stay order in his favour. The learned trial Court vacated the stay to the extent to land measuring 20 acres and' confirmed the stay to the extent of land measuring six acres. The said stay is still pending adjudication in the said Court. Complainant is in possession of the land measuring 27 acres and is cultivating the same. On 25-12-1995 at about 8-00 p.m. I along with my son in law Rehmat Ali, Liaqat Ali, Ghulam Qadir, Sardar Khan, Fakhar Hayat were sitting at Tubewell and smoking "Hukka" outside the Haveli in open place. Rehmat Ali went for urination, when Rehmat Ali reached at some distance accused Atta Muhammad, Sana Ullah armed with rifle, Farooq, Abdul Rauf armed with rifles, Ejaz armed with rifle, Ameer Hamza armed with,.12-bore gun, Ghulam Nabi armed with rifle, Muhammad Sarwar armed with rifle, Muhammad Nawaz, Siddique armed with rifles, Jan Muhammad armed with rifle, Abdur Rab armed with .12-bore gun, Maham Ali armed with rifle, Muhammad Naushad armed with rifle, Altaf Hussain armed with rifle and along with 8/10 unknown persons by raising Lalkaras that teach them the lesson of purchasing the land came there, whereupon, Atta Muhammad fired, which hit to Rehmat Ali on his left shoulder, Ameer Hamza fired and the pellets of his said fire too hit on the left shoulder of Rehmat Ali, Sana Ullah fired with his rifle, which hit on the left ear of Rehmat Ali, he fell down and died at the spot. Complainant and his other companions saved their life by taking shelter of sticks lying there, in order to save his life, Liaqat Ali entered into the Haveli, whereupon shot fired by Ejaz hit at the left buttock of Liaquat. Complainant and his other companions too protected themselves in the Haveli and through their respective weapons started firing in defence. The accused persons surrounded their Haveli and continued firing. At evening time by taking the advantage of darkness the accused persons along with their respective weapons ran away, beside the complainant, the occurrence was witnessed by Liaquat Ali, Ghulam Qadir and Sardar Khan and Fakhar Hayat. Motive behind the said occurrence was that in order to get the possession of land of the complainant, Atta Muhammad etc. armed with deadly weapons formed an unlawful assembly while committing rioting committed qatl-e-Amd of Rehmat Ali son-in-law of the complainant and injured Liaqat Ali with intention to commit Qatl-e-Amd of his murder.

4. Investigation of the case was taken over by Abdul Majeed S.-I./S.H.O. P.W.

15. He on receipt of information about the occurrence, reached at the spot, prepared injury statement Exh.PP and inquest report Exh. PQ, recorded the statement of the witnesses under section 161, Cr.P.C., then, inspected the spot, collected blood-stained earth vide memo. Exh.PE, collected crime empties of .7-MM rifle, 169 empties of .222-bore, 70 empties of .223-bore, 405 empties of .303-bore, 398 empties of 8-MM rifle and 10 empties of .12 -bore vide memo. Exh.PC. On 10-1-1996 he arrested Sana Ullah accused-appellant and on 13-1-1996 accused Sana Ullah while in police custody got recovered rifle .8-MM along with 700 bullets of .303-bore, which were taken into possession vide memo. Exh.PF. After completion of the remaining formal investigation, the along with present appellate six others accused were challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 15 witnesses in all, thereafter, learned A.D.A. tendered in evidence report of Chemical Examiner Exh.PV, report of Forensic Science Laboratory Exh. P. W . , report of Serologist Exh.PX and closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence.

6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, learned counsel for the appellant submitted that case of the prosecution is that complainant party was in possession of the disputed land but there is no evidence on record to support their this assertion rather the appellant had produced ample evidence on record in the shape of evidence of Muhammad Ashraf Patwari as P.W.11 and Akhtar Hussain, Patwari as D.W.3 apart from copies of Khasra Girdawaris, Exh.DF to prove that the appellant was in possession of the land being bona fide purchaser for value. Further submitted that there is written statement of Muhammad Hussain (Exh.DH) one of the owners in which he has categorically admitted that an agreement to sell the land in question for a consideration of rupees ten Lacs was executed by him and his brother Jalal Din in favour of the appellant and had also admitted the receipt of Rs.5, 40,000 as sale price and delivery of possession to the appellant as a purchaser. To support this submission, learned counsel submitted that the appellant in his defence produced before the trial Court stay order issued by this Court as also from the subordinate Courts issued in his favour. According to learned counsel, conduct of the appellant by knocking the door of different Courts clearly depicts that the appellant was defending his proprietary rights and possession through lawful means and he had not taken the law into his own hands. Next submitted that story of the prosecution is dented by the fact of acquittal of six co-accused of the convict appellant out of whom, two were also ascribed the role of causing injuries on the person of the deceased. Learned counsel maintained that number of empties recovered from the spot clearly shows that there was indiscriminate firing and that the complainant party itself having admitted that they also resorted to firing, it was possible, during dark hours of the night, that the injury attributed to the appellant might have been caused by some one else. Added that medical evidence did not support the ocular account in as much injury on the person of Liaqat Ali were found to be fictitious by the Medical Board and injuries on the person of two other accused have not been believed by the trial Court. Learned counsel submitted that if whole of the prosecution case is taken as sacrosanct even then no case under section 302(b), P.P.C. is made out against the appellant and the case if any would squarely fall under section 302(c), P.P.C. and for causing single injury on the person of the deceased, it cannot be said that the appellant has exceeded the right of self-defence. Learned counsel for the State, on the other hand, submitted that time, date and venue of occurrence has been admitted by the appellant and that the appellant under the garb of stay order, tried to take forcible possession of the land in question. He supported the judgment of the trial Court. We have heard learned counsel for the parties and have gone through the evidence on record. In the instant case, the occurrence had taken place at 8-00 a.m. on 25-12-1995 and the matter was reported to the police at 8-15 p.m. though on the same day despite the fact that distance between the place of occurrence and the police station was 12 kilometers. There was an inordinate delay of 12 hours in lodging the F.I.R. which delay is indicative of the fact that it was lodged after due deliberation and consultation. The post-mortem examination on the dead body of the deceased was also conducted at 4-00 p.m. on 26-12-1995 when the occurrence had taken place at 8-15 a.m. on 25-12-1995 and the matter had been reported to the police at 8-15 p.m. on the same day. The complainant in this case is Ghulam Rasool. He had named 15 accused along with 8/10 unknown persons in the F.I.R. In all, seven accused were sent to face the trial. Except the present appellant Sana Ullah, all the remaining six were acquitted by the trial Court. The State or 11 the complainant did not file any appeal against their acquittal. It means that either they were satisfied with that or what was in their mind, GOD knows better. Ghulam Nabi accused has died his natural death while two are still absconders. The deceased is Rehmat Ali son-in-law of the complainant and injured P.W. Liaqat Ali son of sister-in-law of the complainant. Five eye-witnesses were mentioned in the F.I.R. but out of them three, namely Ghulam Rasool, complainant, Liaqat Ali and Ghulam Qadir appeared as P.Ws. 1 to

3. Ghulam Qadir P.W.3 is brother of the deceased and son of the complainant. The prosecution gave up the other two eye-witnesses Sardar Khan and Fakhar Hayat. After going through the evidence on record and attending to the submissions made by learned counsel for both the sides, we are of the view that it is a case of two versions, one put by the prosecution and other set up by the defence. At this stage, we may here reproduce the defence of the appellant in reply to question No.8 in his statement under section 342, A Cr.P.C.:-- "All the P.Ws. are closely related inter se with the deceased. They have made false statements in order to support their made up story. The occurrence did not take place in the manner as stated by the P.Ws. I am innocent. The real facts are that the land measuring 26 acres situated at Sokha Ladhooka was sold to me in November, 1994 by Jalal Din and Muhammad Hussain residents of Sokha Ladhooka through agree ment of sale dated 14-11-1994. Price was fixed Rs. 1,004,

000. Jalal Din and Muhammad Hussain owners of land received Rs.2, 40,000 as earnest money on 9-12-1994. Again Muhammad Hussain and Jalal Din received Rs.3, 00,000 more out of the price of land and in view of the above said agreement and after lifting crop 1995 they vacated the said land and handed over the possession of the land to me. I acquire possession through Qalba Rani as vendee. In the existence of above said agreement Jalal Din and Muhammad Hussain allegedly transferred the land through exchange Mutation Nos.274l275 dated 31-1-1995 to the complainant Ghulam Rasool and his sons. I came to know about the exchange of mutations when the complainant tried to interfere in my possession on 8-5-1995. I filed a suit for specific performance regarding the said land in the Court of Civil Judge, Depalpur impleading complainant and others ad defendant and status quo order was issued on 8-5-1995. The Civil Court vacated the stay order to the extent of 17 acres in my favour. On 26-11-1995 the honourable Lahore High Court Lahore granted status quo in my favour and copy of status quo order was provided to Patwari for entry into Revenue Record. Muhammad Hussain one of the owners of the said land on 5-6-1995 filed his written statement through his counsel and admitted the sale agreement in my favour and refuted said exchange deed in favour of complainant and also admitted the transfer of possession of the above said land in my favour. On the fateful day complainant Ghulam Rasool along with some unknown "Badmash" armed with lethal weapon to take possession of the land from me, gathered at the above said land started firing from all sides at about 4-00 p.m. to onward. I along with my tenants were present at my possessed land also made firing with my licensed gun in my self-defence and in defence of property. During firing Rehmat Ali received a fire-shot at the hands of some person who was firing on their own side to take possession of land from me. In the darkness of the night expired at the spot. Complainant Ghulam Rasool got the case registered against me and my relatives with the collusion of police after concocting a false story and changing the time of occurrence My co-accused namely, Atta Muhammad, Ameer Hamza, Farooq, Abdur Rauf, Sarwar and Inaz, who are my close relatives, were not present at the place of occurrence. Liaqat Ali P.W. was not present nor received any injury and his MLR was maneuvered by the complainant and Liagat himself from the doctor to prove this presence at the spot. Complainant mentioned the time of occurrence at 8-00 a.m. on 25-12-1995 wilfully to prove the identity of the accused possible in collusion with the local police. No other P.W. mentioned by the prosecution was present at the spot." The appellant in order to prove his possession and right of self-defence produced three D.Ws. Dr. Muzaffar Hafeez D.W. 1 deposed that he was a Member of the Board which medically examined the injured P.W. Liaqat Ali and the Board was of the unanimous considered opinion that there were no fire-arms injuries on his person. Khair ud Din, a stamp vendor while appearing as D.W.2 stated that he had written the agreement to sell between Muhammad Hussain and Sana Ullah. According to Akhtar Hussain, Revenue patwari, D.W.3, land in Square No.36, Khasra Nos.8 to 13, 18 and 19 were in possession of the appellants and there was a haveli in demolished condition. The details of certified copies of the documents are at page 99 of the paper book. On the other hand, the complainant party failed to produce any documentary evidence whatsoever on record that the land in question was in their possession and it was the appellant who committed aggression. In the above circumstances if both the versions are put in juxtaposition, we are of the view that appellant has been successful in proving his possession over the land where the occurrence had taken place and he also produced three D.Ws. as also certified copies in this regard. However, fatal shot was attributed to the appellant who according to the doctor who conducted post-mortem examination, caused fracture of left temporal, both parietal bones. Though we accept the plea of right of self-defence but are of the view the appellant has exceeded the right of defence as none from the side of the accused party received even a scratch on his body. Resultantly, we convert conviction of the appellant from section 302(b), P.P.C. to section 302(c), D P.P.C. and sentence him to undergo R.I. for ten (10) years with the benefit of section 382-B, Cr. P. C. So far as compensation is concerned, in such-like cases and cases of grave and sudden E provocation, as held by their lordships of the Honorable Supreme Court in PLD 1982 SC 294, the same is not be awarded. The sentence of compensation as ordered by the trial Court is therefore set aside. The death sentence of appellant is NOT confirmed and F Murder Reference is answered in the NEGATIVE. N.H.Q./S-419/L Sentence reduced.