2005 PLP 1119 (MLD)

8. During trial, the prosecution produced 10 witnesses in support of its case. P.W.2 Nazir Ahmad complainant and P.W.5 Hafiz Muhammad Rafiq (brothers of the deceased) furnished the ocular account and supported the story as given in the F.I.R. They also stated about the motive. P.W.2 denied the suggestion that he with the connivance of Revenue Department succeeded in getting prepared Khasra Girdawari for he year 1995‑96 in his favour, which was challenged and was cancelled by the Collector. Dr. Muhammad Ali Shah, who had conducted post mortem examination, appeared as P.W.6 and stated that the deceased had received a fire‑arm injury on his chest. A bullet was removed during post‑mortem examination and handed over to the police. According to the opinion of this witness, the injury was sufficient to cause death in the ordinary course of nature and was ante‑mortem. P.W.8 Riaz Ahmad stated about the recoveries effected from the appellants. Taj Muhammad Inspector, appeared as P.W.10 and stated about the registration of case as well as investigation. The rest of the witnesses are formal in nature and need not to be discussed. After placing on record the report of Chemical Examiner Exh.P.M., report of Forensic Science Laboratory Exh.P.N. and report of Serologist Exh.P.O., prosecution closed its case. According to the report of the Forensic Science Laboratory one empty of 7 mm bullet tallied with the rifle recovered from the possession of Ahmad Yar‑appellant. The rest of the empties recovered from the spot did not tally with the weapons recovered from the appellants.

9. After the closure of the prosecution evidence; statements of the appellants were recorded under section 342, Cr.P.C. Bagh Ali‑appellant stated that in fact he and his brother Ahmad Yar had purchased the land in dispute on 24‑1‑1975 through a registered sale‑deed from Mst. Ghulam Fatima (mother of complainant Nazir Ahmad and Imdad Hussain‑deceased), who was sister of father of Bagh Ali. He stated that on the basis of registered sale‑deed Mutation No. 162 was sanctioned and entered in his favour and Ahmad Yar on 27‑6‑1975. According to Bagh Ali, the complainant party was the aggressor who wanted to take possession of the land and he had acted in self‑defence and thus committed no offence. However, his answer to question No. 11 is being reproduced for ready reference:‑‑ "I am innocent. In fact I and my brother Ahmad Yar co‑accused purchased the land in dispute on 24‑1‑1975 through a registered sale‑deed from Mst. Ghulam Fatima the mother of complainant Nazir Ahmad and Imdad Hussain deceased and later on the basis of the same registered sale‑deed Mutation No.162 was also sanctioned in Revenue Record on 27‑6‑1975 in our name. After about 14/15 years due to party fiction and rivalry in our village the complainant party got instituted a declaratory suit against us through their mother Mst. Ghulam Fatima regarding the land in dispute in 1989. The above said suit of the complainant party was dismissed by Civil Judge, Minchinabad on 6‑4‑1994. The complainant party filed an appeal against the above said judgment and order of Civil Judge, Minchinabad which was dismissed on 2‑5‑1994 by the District Judge, Bahawalnagar. Thereafter the complainant party filed second appeal in the Hon'ble High Court, which is still pending there. That the complainant party having lost the case from the Court of District Judge, Bahawalnagar, in order to get support to their case pending in the Hon'ble High Court in connivance with the local Revenue Staff got tampered with the Girdawari regarding the year 1995‑96 so that under that cover they may take forcibly possession of the land in dispute. After getting tampered with Khasra Girdawri the complainant party under a pre‑planned scheme duly armed with fire‑arms and other lethal weapons launched an attack and tried to take the forcible possession of the land in dispute which was resisted by me and my employees co‑accused and my brother present there and in the exchange of firing from both the sides by taking position as we were in our land and the complainant party had come over there from Mauza Sudharka situated at a distance of 60/70 miles had no 'support from the surrounding fields and people of village as a result of that cross‑firing Imdad Hussain got injured and expired as we luckily saved and no injury from our side. So the complainant party in order to save their own skin and their act of aggression got the present case registered against me and my co‑accused by widening the net after preliminary investigation at the spot on the following day of the occurrence. The other reason for the registration of the case is that complainant party wanted to force us to surrender the land in dispute and also to concede their appeal pending in the Hon'ble High Court. I am innocent." Ahmad Yar and Mukhtar Ahmad‑appellants pleaded themselves to be innocent and relied upon the statement of Bagh Ali. The appellants did not appear as witness in their defence under section 340(2), Cr.P.C. nor they led any defence evidence. However, they relied upon the documentary evidence and placed on record copy of judgment dated 6‑4‑1994 passed by the Civil Judge 1st Class, Bahawalnagar Exh.D.A. Copy of judgment dated 14‑2‑1998 passed by the learned Additional District Judge, Bahawal Nagar Exh.D.B. Copy of the order passed by the Collector, Bahawalnagar, Exh.D.C. Copy Jamabandi for the years 1979‑80 Exh.D.D. Copy of Jamabadi for the year 1983‑84 Exh.D.E. Copy of Jamabandi for the year 1991‑92 Exh.D.F.

10. The learned counsel for the appellants has argued that it was proved during the trial that the appellants were owners in possession of the disputed land; that in fact the complainant party was the aggressor, as the complainant party on the basis of a forged Khasra Girdawari for the year 1995-96 wanted to take possession of the land forcibly; that the prosecution story was belied by the circumstantial evidence; that no independent witness was produced by the prosecution; and that the incriminating evidence was available only against Ahmad Yar‑appellant, therefore, in these circumstances, it can be said that it is a case of exceeding the right of self‑defence. However, the sentence inflicted upon Ahmad Yar‑appellant was too harsh.

11. Conversely, the learned counsel appearing on behalf of the State has supported the judgment passed by the learned trial Court and has argued that though the witnesses were real brothers of the deceased yet' their statements could not be brushed aside on, this score alone; that Bagh Ali appellant had admitted the occurrence; that the motive was proved by the prosecution during trial; and that an innocent person had lost life at the hands of the appellants, therefore, the appellants were rightly convicted.

12. I have heard the learned counsel for the parties at length and scanned the entire record of the case minutely. The most vital question in the circumstances of the case is that which party was in physical possession of the disputed land. The prosecution evidence is based on the oral statement of P.W.2 and P.W.5 (brothers of the deceased), who staled during trial that they were residing in the disputed land and had constructed houses there. During cross‑examination P.W.2 admitted that by house he meant a small Chhapper by Sarkanda Bushes. He further stated that their Kothas had fallen due to flood in the year 1995. On the other hand, the appellants were able to prove the following facts relating to purchase and possession of the land:‑‑ (i) That according to existing registered sale‑deed and mutation Mst. Ghulam Fatima (mother of the deceased and P.Ws.2 and 5) had sold the disputed land to Bagh Ali and Ahmad Yar appellants. (ii) Nazir Ahmad P.W.2 admitted that his mother had filed a declaratory suit in 1989 regarding the land in dispute against Bagh Ali and Ahmad Yar‑appellants and that after the death of his mother the P.W. along with his brothers and sisters being legal heirs of Mst. Ghulam Fatima become plaintiffs of the afore‑mentioned suit. This P.W. admitted in cross‑examination that his mother had alleged in her suit that Ahmad Yar and Bagh Ali appellants were in possession of the land in dispute as lessees and not as owners. He also admitted that his mother had challenged the registered sale‑deed as well as mutation in favour of Ahmad Yar and Bagh Ali through above noted suit by alleging that the above noted documents were fabricated and she had never executed any sale‑deed, in favour of appellants. (iii) P.W.2 had to admit that the above noted suit was dismissed. The appellants have also placed the copy of the judgment dated 6‑9‑1994 passed by Civil Judge 1st Class, Bahawalnagar on record of the case as Exh.D.A. It was also admitted by P.W.2 that an appeal was filed against the judgment in the Court of District Judge, Bahawalnagar which was also dismissed. The appellants have placed certified copy of the above noted, judgment dated 14‑9‑1998 as Exh.D.B. However, according to P.W. Nazir Ahmad 2nd appeal against the judgment was pending before this Court. (iv) P.W.2 denied that he succeeded in getting Khasra Girdawari for the year 1995‑96 relating to the disputed land in his favour by tampering with the Revenue Record with the connivance of field staff of Revenue Department. However, he had to admit that Bagh Ali appellant moved an application before the Collector, Bahawalnagar seeking correction of the record and cancellation of Khasra Girdawari in favour of the complainant party. The witness also admitted that the application of the appellants was accepted by the Collector vide order dated 8‑10‑1996, however, he explained that the order of the Deputy Commissioner/ Collector was challenged in the Court of Commissioner. The appellants have placed certified copy of the order dated 8‑5‑1996 on the record of the case as Exh.D.C. which reveals that indeed the entries in the Khasra Girdawari relating to Rabi 1996 were corrected and the order was passed in favour of the appellants. The appellants have also placed on record Exh.D.D., Exh.D.E. and Exh.D.F. which are certified copies of the entries in the record of rights which reveal that the appellants were owners in possession.

13. In the light of the afore‑mentioned facts it becomes abundantly clear that on 17‑1‑1996 the appellants were in possession of the land. Thus, it is more plausible in the circumstances of the case that it was the prosecution party which wanted to take possession of the Land and felt aggrieved. The likelihood of the complainant party being the aggressor is further borne out from the following circumstances of the case‑‑ according to the F.I.R. the accused while armed with rifles and .12 bore guns started firing at the complainant party and the bullet fired by Ahmad Yar‑appellant hit Imdad Hussain causing his death. Eight empties of .12 bore cartridges, four empties of .222 bullets and ten empties of 7 mm were recovered from the spot. Out of the empties one empty of 7 mm bullet tallied with the rifle recovered from Ahmad Yar‑appellant. The rest of the empties recovered from the spot did not tally with the weapons recovered from the appellants as is evident from the report of Forensic Science Laboratory Exh.P.N. Who fired the remaining shots has not been explained during the trial? Thus, possibility of story put forward by the appellants to the extent that the complainant party in order to take forcible possession of land has launched the attack cannot be ruled out.

14. The case of the appellants is to be judged individually in the light of the above noted circumstances. Mukhtar Ahmad and Bagh Ali appellants have not caused any injury either to the deceased or to the P.Ws. The empties recovered from the spot had not tallied with the weapons recovered from the appellants. Though it is Bagh Ali who has admitted that he was alone who had acted in the right of self‑defence and has led to the recovery of licensed rifle yet, I cannot lose sight of the fact that it is not the prosecution case that the deceased or any of the P.Ws. received any injury at his hand. It has been proved through independent source that the empty of a rifle bullet recovered from the spot tallied with the weapon recovered from Ahmad Yar‑appellant. Thus, in the circumstances giving the benefit of doubt to Bagh Ali and Mukhtar Ahmad appellants, I allow this appeal to their extent and acquit them of the charge. The impugned judgment to their extent is set aside. They are on bail. Their bail bonds are cancelled and sureties are discharged.

15. As far as Ahmad Yar‑appellant is concerned, it has been proved that he was in possession of the land in dispute. Imdad Hussain deceased lost his life due to the fire caused by him but as already noted above it was Imdad Hussain and his companions who felt aggrieved and wanted to take the possession of the land given to the appellants by their mother. Therefore, the appellant had a right to defend property but whether the same extend to point of taking a life is what needs consideration. Nobody has received any injury at the hands of accused. The appellants in their statements recorded under section 342, Cr.P.C., have not specified the number of the assailants and the weapons carried by them. Thus, it cannot be said that the right of private defence extended and continued till causing of death.

16. The upshot of the whole discussion is that of the opinion that appellant Ahmad Yar has exceeded his right of private defence by causing death of Imdad Hussain. Therefore, I alter the conviction of Ahmad Yar appellant recorded under section 302(b), P.P.C. to section 302(c), P.P.C. and reduce his sentence from life imprisonment to ten years' R.I. The sentence of fine could not be imposed upon the appellant under section 302, P.P.C. hence, the same is set aside. However, Ahmad Yar appellant is directed to pay Rs.50,000 as compensation under section 544‑A, Cr.P.C. The amount of compensation if realized would be paid to the legal‑heirs of the deceased. In default thereof the appellant‑Ahmad Yar would suffer simple imprisonment for six months. Benefit of section 382‑B, Cr.P.C. already extended to the appellant is maintained.

17. With the above modifications this appeal is partly allowed. H.B.T./A‑365/L Order accordingly.