1985 PLP 890 (MLD)

Injury No.1 was simple caused with blunt weapon. Injuries 2, 3 and 4 were also simple. They were caused by sharp‑edged weapon. The remaining two injuries were grievous caused by sharp‑edged weapon. In the opinion of the doctor these two injuries were sufficient to cause death in the ordinary course of nature. On 16‑5‑1980 at 3 p.m., Dr. Khalid Munir Sulehri, Medical Officer, Allama Iqbal Memoral Hospital, medically examined Mst. Sughran Bibi. She had two injuries‑‑one stab wound? 1 ?" x 1/3" situated on the back of right lower chest, and an incised wound 1" x 1/3" x muscle deep situated on the back of right upper arm above the right elbow joint. Both the injuries were simple caused by a sharp‑edged weapon. On the same day the same doctor examined Muhpuimad Boota. He noticed five injuries. Two were stet) wounds, one contused dwelling and two abrasions. All the injures were declared simple. Same day the same doctor examined Chuhar Din. The doctor found one stab wound 1?" x ? " situated on outer side of left lower chest; and multiple abrasions below the stab wound in an area of 3" x 3?". Injury No.l was by sharp‑edged weapon and the other with blunt weapon. Both were simple in nature. The same doctor on the same day at 4‑30 p.m., examined Abdul MaRd accused. He had nine injuries in all. Two were stab wounds? 1 ? " x 1/3" situated on the abdomen about 3" on the left side of umbilicus and 1" x ? " x muscle deep on the back of left hip joint. Five were contusions 4" x 3" situated on the back of right fore‑arm in the middle region; 3 ?" x 1 ?" on the back of right fore‑arm near elbow joint; 6" x 2 ? " on the back of right middle chest; 5" x 1?" on the back of right lower chest and 6" x 1" on the back of left lower chest. The rest two were bruises 4" x 1?" situated on the top of left shoulder joint and 4" x 1?" on the back of right upper chest. The two stab wounds were caused by sharp‑edged weapon .and the rest with blunt. The stab wound on the back and left hip joint and contusion on the back of right fore‑arm were simple. The rest of the injuries were kept under observation and later on declared simple in nature. The appellants denied all the allegations. Muhammad Sharif denied the fact that in the year 1964 he was posted as Revenue Patwari in the Halqa of Village Dangial and during that period Muhammad Boota sold away his land measuring 27 Acres on his asking that he would get land for him in lieu thereof from his relatives in village Rum. He vehemently denied all the allegations regarding the main occurrence; the part attributed to him of killing Pir Muhammad and injuring others. He said that he and his brother had been falsely involved in this case due to enmity with the prosecution witnesses. When questioned by the Court, "Do you want to say anything else?", he gave the following version:‑ "I am innocent. The land in question was factually owned by my aforesaid relatives, viz. Abdul Ghani, Mst. Iqbal Begum, Rashid and Muhammad Shafi and I never owned it. I was never posted as revenue Patwari of village Dangial. I remained posted as? revenue Patwari of village Rum only upto the year 2960. Abdul Majid my co‑accused purchased the land in question from then in the year 1979 through two separate sale-deeds and sale mutation was sanctioned in his favour.‑ In this way we had no interest in the land in question in the days of occurrence. Mohammad Boota P.W. paid up Rs.15,000 to someone as the sale price of land in question. He lodged a false suit against my relatives which was dismissed by the Civil Court, Sialkot, vide the judgment, 13‑3‑1979 copy Exh.D.F. Muhammad Boota instituted a complaint against me before the Martial Law Authorities and so a criminal case was registered against me P.S. Head Marala. the High Court quashed the criminal proceedings against me on my petition. On account of this background of litigation the complainant party was inimically disposed of towards me." Accordingly they ventured to implicate falsely my entire family including me in this cage. Barkat Muhammad Bashir and Rehmat Ali my co-accused to appear in our defence during the prolonged investigation the police. They were falsely dubbed as the culprits in this case later on. I was never present on the spot at the time of occurrence." Similarly, Khurshid brother of Sharif denied all the allegations. He said that he was not present at the spot. He relied on the detailed statement given by his brother Muhammad Sharif but said that tie would like to lead defence evidence. The third appellant Abdul Majid also denied all the allegations. He denied the recovery of Chhurri. His answer to the question, ?Do you want to say anything else?" is as under:‑ "I am innocent. I purchased the land from Abdul Ghani Muhammad Shafi, Mst. Iqbal and Rashid in the year 1979 through two separate registered sale‑deeds, got the possession thereof. Even the sale mutation was attested in my favour. I was in actual physical possession of the land in question in the 'days of occurrence because I obtained the possession from Ilam Din and Muhammad Sadiq its tenants under me. I produce the document Exh.D.G. about the delivery of possession by Muhammad Sadiq tenant of mine. On the day of occurrence had gone to plough up the land of Khasra No.335. When 1 was about to plough up the land Pir Muhammad deceased, Muhammad Boota and Mst. Sughran P,Ws. and Chuhar Din P.W. etc. launched attack upon me. I was injured by them. On my alarm my son Arshad Pervaiz and some other relatives of mine came from the village to the spot. They helped me and rescued me from the assailants. In that process Pir Muhammad deceased and aforesaid P .Ws. suffered injuries on the spot. I then acted in my defence 'and also in the defence of my property while causing injuries to them. The case is still under investigation with the Crimes Branch, Lahore. The prosecution case is reportedly held to be false one." Learned counsel appearing for the appellants contended that the ocular account is discrepant. It is not reliable. Even, otherwise, the eye‑witnesses are interested. As such, no, reliance could be placed on their testimony. More stress was laid by the learned counsel on the statement of Abdul Majid on the basis of which it was argued that the possession at the time of occurrence was with appellant Abdul Majid. He was attacked by the complainant side. He had a legal right to defend his person and property. It was in exercise of that right that one man died and few others were injured. Learned counsel submitted that if the prosecution case is examined in juxta position with the defence story it becomes evident that the defence version was more reliable. He submitted that Abdul Majid in .his statement claimed to have bought the land from Abdul Ghani, Muhammad Shafi, Mst.Iqbal Begum and Rashid. He even claimed the possession thereof‑‑actual physical possession. Possession was obtained from Ram Din and Muhammad Sadiq. He produced document Exh.D.G. Abdul Majid appellant examined two witnesses in defence. Muhammad Sadiq (D.W.3) and Naved Bhalli, Advocate (D.W.9). Muhammad Sadiq deposed that on 30‑9‑1980 he executed an agreement (Exh. D.G.). It was in favour of Abdul Majid. It bore the thumb‑impression of the witness. He further said that he had already handed over the possession of the land in question to Abdul Majid who was its owner. He said that he had purchased the stamp paper on his own. Munir the deed‑writer scribed it. The document was attested by Naved Akhtar Bhalli, Advocate, as a Notary Public. Muhammad Sadiq further said that he was never the tenant of Muhammad Boota and Pir Muhammad deceased. According to him he was shown as tenant of Abdul Majid in the Khasra Girdawari before the occurrence. Naved Bhalli, Advocate, testified that he attested document Exh.D.G. as Notary Public and his report was Exh.D.G./1. Sultan Ahmad, D.S.P., Crimes Branch, Punjab, Lahore, was examined as a Court witness. He said that the police file pertaining to this case had been entrusted to him on 28‑11‑1981 for further investigation but .he did not conduct any investigation in this case. The prosecution case is that when the occurrence took place the possession was of Boota. In order to prove this, learned counsel for the complainant drew our attention to an interlocutory order, dated 13‑3‑1979 printed at page 170 (Exh.P,T.T.) of the paper book, which according to him was a stay order and on the basis of which Boota claimed the possession. The order on the paper book was not legible. We, therefore, ordered the original record to be sent for. This was agreed to by the learned counsel appearing in this case from the side of the appellants, the State as well as the complainant. The file was duly received. Its perusal shows that on 25‑5‑1978, Boota, and Pir Muhammad filed suit for permanent injunction against Abdul Ghani, Abdur Rashid, Muhammad Shafi, Mst. Iqbal Begum and others, in the Court of Senior Civil Judge, Sialkot. Alongwith this, an application under Order XXXIX. rule 1 & 2, C.P.C. was also filed in which the prayer was as under:‑ The application was supported by an affidavit of Mohammad Boota. The record of the Court of the Senior Civil Judge shows that on different dates other applications were moved by Muhammad Boota. It is not necessary to mention the particulars of those. The gist of those applications was that the other side i.e. Abdul Ghani and others were trying to take forcible possession. On 13‑3‑1979, the Civil Judge who was seized of the matter passed the following order:‑ The prosecution case is that the aforesaid stay order by means of which status quo was maintained was in operation when the incident took place. After going through the relevant documents relied upon by the defence as well as by the complainant side, we are of the view that the order, dated 13‑3‑1979 was in force. In this connection we would also like to mention that our attention was drawn to a writ petition No.2491/77. That was filed by Muhammad Shafi etc. against Muhammad Boota and Pir Muhammad. The relief prayed in this petition was:‑ " ..that writ petition may very kindly be accepted and the respondents be restrained from interfering with the possession of the petitioners and also should not compel the petitioners to execute the sale‑deed in favour of the respondents Nos.1 and 2 in any manner whatsoever. It is, further prayed that stay order may very kindly be granted to the effect that the possession of the petitioners may not be disturbed and that the petitioners may not be compelled to execute the sale‑deed." In this petition the petitioners claimed to be the owners of the land in dispute which was given in Annexure (A) to the writ petition which is a sale‑deed. Khasra No.335 finds mention in this. This writ petition was admitted to regular hearing on 28‑9‑1977. Further proceedings were stayed in the matter. Since then the matter is pending adjudication. It has not yet been disposed of. We don't think the appellants can get any benefit of this petition or the order passed in this by the learned Judge of this Court. On the other side the relevant order is, dated 13‑3‑1979 which has been referred to above. For the foregoing reasons we are clear in our mind that there is no substance in the plea of Abdul Majid that he was in actually physical possession of the property when the occurrence took place. The matter, however, does not end here. We have now to examine the ocular version in order to make sure whether that evidence is reliable or not. There can be no doubt about the presence of those who were injured. All of them categorically implicated the three appellants who were armed with Churris; for causing injuries to them and committing B the murder of Pir Muhammad. Their presence is established. They named who were their assailants and who killed Pir Muhammad. Apparently, there appears to be nothing wrong with their evidence. But one fact yet remains to be looked into. That is the injuries on the person of Abdul Majid appellant. On 16‑5‑1980 at 4‑30 p.m., Abdul Majid was privately examined by Dr. Khalid Munir Sulehri, Medical ,Officer, Allama Iqbal Memorial Hospital, Sialkot. His injuries have been referred to above. In all he had nine injuries. With the exception of two injuries which had been caused by sharp‑edged weapon, the rest were the bruises and contusions. One sharp‑edged and six other injuries were kept under observation. Ultimately, all the nine injuries were declared to be simple. The defence as disclosed by Abdul Majid in his statement under section 342, Cr.P.C. was put to the eye‑witnesses. That was denied by them. From the accused side, four persons, namely, Muhammad Sharif, Khurshid, Abdul Majid and Rashid, were armed with Churris. In all four persons including the deceased were injured from the complainant side. In the absence of any evidence to the contrary, especially in a clash of this type, the possibility cannot be ruled out that Abdul Majid might have been injured by a friendly hand. For the foregoing reasons, we are of the view. that the ocular version supported by the recovery of Churri P.9 and the medical evidence leaves no room for doubt about the participation of the appellants in D the commission of the crime and the part attributed to them. In our view, they have been rightly convicted. In the revision filed by the complainant, notice for enhancement was issued on the ground that the trial Court while awarding life imprisonment did not give reason as to why they were given lesser sentence than death. This is the correct position. We don't find any reason in the impugned judgment as to why the capital sentence was not given. In a murder case the trial Court is not only expected but is under a legal duty to give reasons while awarding lesser sentence than death. However, we are not inclined to enhance the sentence now. The reason being that the occurrence took place on 16‑5‑1980; judgment was announced on 19‑12‑1981; the appellants are behind the bars since they were arrested. Even, otherwise, after the lapse of four years, it ~ will not be in the interest of justice to send them to gallows. There is yet another reason why the death sentence is not called for. That is that it has not been established by the prosecution as to which of the blows inflicted by the three appellants resulted in the death of the deceased. Two of the injuries of Pir Muhammad. according to the opinion of the doctor (injuries 5 & 6) were sufficient to cause death. It has not been proved as to which of the appellant was responsible for inflicting these injuries. Hence, we are not prepared to enhance the sentence awarded by the trial Court. The revision is accordingly dismissed. So are the appeals filed by the appellants. H.A????? Appeals and Revision dismissed.