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S. 417 read with Penal Code (XLV of 1860), S. 302-Murder Appeal against acquittal-Evidence, appreciation of-None on side of accused carrying any formidable weapon while committing criminal trespass and forcibly ploughing land in dispute-Incident developing on deceased's arriving at spot, his taking objection to illegal ploughing of land and on call of accused, co-accused bringing gun and indulging in firing at deceased-Responsibility of firing and consequential death of deceased, held, that of co-accused alone and he alone responsible for consequences-Mere fact that accused, filed no appeal against their conviction under S. 447/34, P. P. C., held further, would not mean that accused accepted their guilt-Appeal dismissed in circumstances of case.

Mian M. Yasin Wattoo and Arif Iqbal Hussain Bhatti for Appellants.

Khalil Ramdey, A. A.-G. assisted by Rafiq Butt for the State.

Dates of hearing: 8th and 9th November, 1980.

AFTAB FARRUKH, J.-Niamat (appellant in Cr. A. No. 257 of 1975), along with Allah Din, Riaz and Qasu (respondents in Cr. A. No. 608 of 1975), were tried by Ch. Muhammad Sharif, Sessions Judge, Sahiwal, for the murder of Mauj Din and attempted murder of Rehm Ali (P. W. 9) as well as for criminal trespass over the land which was in possession of Mauj Din deceased. The learned Sessions Judge convicted Niamat appellant under section 302, P. P. C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 2,000, in default thereof to suffer simple imprisonment for six months. Allah Din, Riaz and Qasu accused were convicted under section 447%34, P. P. C. and each one of them was sentenced to pay Rs. 200, or in default to suffer one month's simple imprisonment. The fine, if recovered from Niamat appellant, was directed to be paid to the heirs of Mauj Din deceased. The learned Sessions Judge, however, acquitted all the accused of the charge under section 307/34, P. P. C. Niamat has filed Cr. A. No. 257 of 1975, against his conviction, whereas the State has filed Cr. A. No. 608 of 1975, praying that the acquittal of Allah Din, Riaz and Qasu of the offences under section 302j307/34, P. P. C. may be reversed, set aside and they may be convicted for the charges proved against them from the evidence on the record. The State has also filed Cr. R. No. 558 of 1975, for the enhancement of the sentence, awarded to Niamat appellant, to death, Shadi Khan complainant has filed Cr. P. No. 204 of 1980, for conviction under section 302, P. P. C. of Allah Din Riaz, and Qasu and enhancement of the sentence of Niamat to death. All these matters are being disposed of by this judgment.

2. The occurrence in this case took place on 29-5-1973 at about 8 a. m. and the F. I. R. (Exh. P. A/1) was registered on the basis of the statement (Fxh. P. A.) made by Shadi Khan complainant (P. W. 8) at 10-30 p. m. on the same day, at Police Station Mandi Hira Singh, District Sahiwal, which is situated at a distance of 13 miles from the place of occurrence.

3. The facts of the case, succinctly stated, are that Abdul Aziz P. W. who was returning from village Aligarh informed Mauj Din deceased in the presence of Sbadi Khan complainant and Rehm . W. 9 that Allah Din, Riaz and Qasu accused were ploughing his Wuj Din deceased's) land. Accordingly, the deceased in the company of Shadi Khan (P. W. 8), Rehm Ali (P. W. 9) and Abdul Aziz (P. W. 10) proceeded to the land in order to enquire as to why the accused were ploughing Mauj Din's land. On their arrival at the land Allah Din, Riaz and Qasu accused started abusing Mauj Din deceased who also paid in the same coin, on which they called Niamat accused who appeared at the scene of incident armed with the licensed gun (Exh. P. 1) belonging to his father Allah Din and fired twice at Mauj Din who died at the spot. A few pellets are alleged to have abraded Rehm Ali (P. W. 9). The accused then drove their oxen away leaving their ploughs there. Shadi Khan (P. W. 8) proceeded to the police station for lodging a report, but on the way he came to know that lnam Hussain Sub Inspector (P. W. 12) was present in village Somian Jodh Singh in connection with the investigation of some case. He reached there and made a report (Exh. P. A.) before him on the basis of which F. I. R. (Exh. P. A/1) was registered by Abdul Aziz Muharrir Head Constable (P. W. 4).

Inam Hussain Sub-Inspector (P. W. 12) proceeded to the spot and collected the blood-stained earth which was taken into possession vide Memo. Exh. P. K. He also took into possession empties (Exh. P. 6/1-2) vide Memo. Exh. P. J. All the accused were arrested on the next day by the Investigating Officer. At the instance of Niamat gun (Exh. P. 1) along with its licence (Exb. P. 2) was recovered and taken into possession vide Memo. Exb. P. B.

The Chemical Examiner vide his report (Exh. P. T.) has opined that the earth was found to be stained with blood, whereas the Serologist vide his report (Exh. P. U.) has found the blood of human origin. According to the report of Ballistic Expert dated 15-6-1973, the crime empties (Exh. P. 6/1-2) matched with the gun (Exh. P. 1) recovered at the instance of Niamat appellant.

4. The motive in this case is that land measuring five acres belonged to one Fateh Muhammad. On the death of Fateh Muhammad the land in dispute was mutated in the names of his widow Mst. Amna Bibi and son Ghulam Farid. The said Mst. Amna Bibi and Ghulam Farid executed a deed of agreement to sell this land on 18-8-1970 in favour of Mauj Din deceased, who was in possession of the same before the said deed of agreement. Mst. Amna Bibi mutated her share in favour of her son Ghulam Farid and it is alleged that Ghulam Farid executed another deed of agreement on 23-5-1973 in favour of Niamat accused with a promise to sell the land in his favour. On 24-5-1973, Mauj Din deceased instituted a civil suit for specific performance of the contract dated 18-8-1970.

5. The accused denied the prosecution allegations and pleaded not guilty to the charge. Niamat appellant in his statement under section 342, Cr. P. C. when asked why this case against him, replied as under:

"The land in dispute was owned by Farid whose mother had died about 2 years earlier. Farid agreed to sell this land to me for Rs. 15,000, and received Rs. 9,685. He gave over the possession of the vacant land to me and entered the same in Exh. D. B. Jeeva and his brother both agreed in a Punchayat to give up the possession of the entire land to me and executed a deed of agreement Exh. D. A. On the day of occurrence I along with Sajwara, Yasin and Maman went to plough the vacant land. Shortly afterwards a crowd of people consisting of about 20 persons came there. Mauj Din, his servants and tenants armed with sotas, dangs and a gun came there. They abused us and wanted to beat us. I ran away to my house at a distance of one killa from the spot. My father who is an aged man was not ploughing the land at that time. He was at Chah Piranwala at a distance of 3 or 4 acres from the spot. On hearing the alarn, he came to the spot in my absence. I was told at the well by my minor sister that Mauj Din and his companions had killed my father. I caught hold of his gun and rushed to the spot. When I approached the place, where Mauj Din and his companions were, one of the servants of Mauj Din Gamun by name, fired at me. I laid myself down on the ground. They continued abusing and threatening me and as they wanted to beat me and kill me, I fired in self-defence hitting Mauj Din who was leading the crowd. I had not trespassed into the land. Jeeva and his brother had willingly exchanged that land with an equal area of land at our well. Mauj Din and his relations wielded great influence as they are owners of land. The brother-in-law of Mauj Din is an S.1. of Police at Sahiwal. He used influence in fabricating this false case against us."

Niamat and Allah Din accused in support of the documents (Exhs. D. A. and D. B.) produced Ghulam Rasul as D. W. 1 and Sheikh Ahmad as D. W. 2.

6. On 29-5-1973, Dr. Muhammad Aslam (P. W. 1) performed the post-mortem examination on the dead body of Mauj Din and found the following injuries on it--

(1) About 200 pellet marks of firearm of entrance on the anterior lateral left side of chest and face anterior parts of both shoulders and anterior part of the right chest. Tattooing and burning was present. These all were skin deep.

(2) A firearm wound of entrance on the medial side of right nipple 11' x 1' horizontal. A wad was removed from the wound and wound going through the lungs and chest.

(3) A firearm wound on the centre back of right side of the chest and it was of entrance wound and was 2' x 1J". B & T positive. This wound was surrounded by 100 marks of pellets.

Injuries Nos. 2 and 3 were dangerous to life and both injuries were sufficient in the ordinary course of nature to cause death suddenly.

Probable time between injuries and death was sudden and between death and postmortem examination within 12 hours.

On 30-5-1973 at 3-45 p. m. Dr. Muhammad Rashid (P. W. 2) medically examined Rehm Ali (P. W. 9) and found four abrasions and one bruise on his person which were all declared simple in nature caused by a blunt weapon or by a fall on the stubbles of cotton crop.

7. On behalf of Niamat appellant the noticeable submission mainly is that Rehm Ali P. W. has been disbelieved and the ocular testimony ,of Shadi Khan (P. W. 8) and Abdul Aziz (P. W. 10) is in conflict with the medical evidence inasmuch as the F. I. R. and the evidence clearly state that Maui Din deceased received two fire shots, whereas according to the post mortem examination report, the injuries are certainly the result of three separate shots; therefore, the ocular testimony has to be rejected and the plea of self-defence and defence of property specifically raised by Niamat appellant has to be accepted in toto and the appellant is entitled to an acquittal. The second submission is that even if Niamat appellant be found guilty, the occurrence being a sudden affairs, as far as this appellant is concerned, the conviction under section 302, P. P. C. is not maintainable and on the ultimate analysis the conviction at its best could be recorded under section 304, P. P. C. In support of the above proposition the learned counsel for Niamat appellant has referred to Shihab Din v. The State (PLD 1964SC177).

8. On the contrary, it has been argued on behalf of the State as well as the complainant that Niamat appellant along with his co-accused in a well planned and thought out manner by preconcert, formed an unlawful assembly with the common object of forcibly taking possession of the land in dispute and in prosecution of that object they proceeded to the spot with ploughs and when Maui Din deceased was apprised of the situation, he came to the spot and objected whereupon Niamat appellant was called from the house who promptly came armed with a gun and shot Mauj Din dead. It has also been pointed out that Allah Din, Riaz and Qasu accused who were convicted under section 447/34, P. P. C. and sentenced to payment of fine only, have not appealed against their conviction and thereby they have accepted the veracity of the prosecution case and are, therefore, equally liable for the murder of Mauj Din.

9. In the light of the submissions made by the learned counsel for the appellant Niamat we have analysed the medical evidence and we are not persuaded to prefer the mere opinion of the doctor over the ocular testimony of Shadi Khan, Rehm Ali and Abdul Aziz P. Ws. The number and nature of injuries and the spread of the pellets would depend upon the distance, point of impact as well as the posture of Mauj Din deceased at the time of receipt of injuries. It appears that Mauj Din had received the fire shots while his chest was exposed some what slantly towards the assailant and consequently the impact at the point of injury No. 2 was direct, causing extensive damage underneath and the wads etc. also went in, while a large number of pellets of the same shot left their marks of entrance on the anterior lateral left side of chest and face, anterior parts of both shoulders and anterior part of the right chest noted in Injury No. 1 and the second shot resulted in injury No. 3 which is on the back of the right side of the chest. It is the case of the defence itself that Mauj Din deceased came to the spot with a "crowd of people armed with sotas, dangs and a gun". The crowd' would certainly know as to how many shots were in fact fired and the complainant party would know the number of shots actually fired and we see no reason on the part of the complainant party to reduce the number of shots from three to two and if they were to falsely implicate the people or make a departure from truth for the three shots or two shots, they could have conveniently roped in more than one person attributing a shot each with a firearm weapon. The fact that more than one shot has been fired and only Niamat appellant is attributed the same, on the prosecution evidence and the attending circumstances, irrespective of the plea of the appellant owning the shots, we have no doubt whatsoever in our mind that Niamat alone is the assailant who has caused the death of Miauj Din by firing shots.

It has also been argued by the learned defence counsel that since only two empties have been found from the spot, the appellant had fired three shots, as if in fact two shots had been fired, only one empty would have been found at the spot and the other would have been carried by -the assailant in the barrel of the gun. We are afraid we cannot agree to the logic of the argument. May be on firing the second shot he reloaded the weapon, but did not fire the third shot.

In the above circumstances, we do not find any conflict between the medical evidence and the ocular evidence.

10. The learned counsel for Niamat appellant wishes us to reject the testimony of Shadi Khan, Abdul Aziz and Rehm Ali on the ground that Shadi Khan is a tractor driver of Usman Khan (P. W. 5) who was first cousins of Mauj Din deceased, while Abdul Aziz lives in the house of Mauj Din deceased and Rehm Ali is a tenant of Niaz Ahmad Khan, a close nelation of Mauj Din deceased. We do not accept that Rehm Ali has self suffered the injuries. These injuries are of insignificant nature i. e. abrasions and a bruise etc. which could well have been suffered if stray pellets abraded him. If Rehm Ali P. W. was to selfsuffer injuries, it would not be abrasions or a bruise, but in the normal course of events it would be something serious to indicate the same being the result of a definite blow with a weapon. This could be in normal course of events that when Mauj Din was informed that the accused are ploughing the land under his cultivation, he would proceed to the spot for a check with the people around him and naturally the people, who would be around him, would be the ,persons who were somehow connected with him and it is the case of the defence itself that Mauj Din deceased came to the spot with a "crowd armed with sotas, dangs and a gun". We see no reason why the complainant should substitute the P. Ws. for the actual crowd which accompanied him armed with deadly weapons. We :re satisfied that Shadi Khan (P. W. 8), Rehm Ali (P. W. 9) and Abdul Aziz (P. W. 10) were present at the spot. We do not agree with the finding of the learned trial Court rejecting the testimony of Rehm Ali P. W. and we find the prosecution version credible.

11. The material question for determination is as to who was in possession of the land in dispute on the day of occurrence.

At the time of purchase of the disputed land the accused would have verified regarding the ownership and possession of the same and from the revenue record as well as otherwise they would have come to know at once that Mauj Din deceased was in possession of the land in dispute cultivating the same through Jeeva (P. W. 7) and, therefore, they would have also known the fact that the actual physical possession to them could not be transferred without the consent of Mauj Din deceased and any attempt to by pass Maui Din deceased was a mala fide conduct on the part of the appellant side. According to Exh. P. V. Mst. Amna and Ghulam Farid had agreed to sell the disputed land to Mauj Din deceased and after receiving some money as advance, on 18-8-1970 they delivered possession of the land to Maui Din deceased. A copy of Register Haqdaran for the year 1971-72 (Exh. P. F.) shows Mauj Din deceased in possession of the land in dispute through Jeeva (P. W. 7). A copy of Khasra Girdawari for the year 1972-73 (Exh. P. E.) also shows Maui Din deceased in possession of the same land through Jeeva P. W. in Rabi 1973. Niamat appellant got executed a deed of agreement from Ghulam Farid which is Exh. D. B. The scribe of both these documents (Exhs. P. V. and D. B.) is Muhammad Rafiq (P. W. 11) who had told Niamat appellant and his father Allah Din accused at the time of executing the agreement deed (Exh. D. B.) that a deed of agreement (Exh. P. V.) .had already been scribed by him in respect of the same land, both the accused replied that they would deal with the first transferee themselves. On the next day of this agreement, as is clear from the copy of the plaint dated 24-5-1973 (Exh. P. M.) Mauj Din deceased filed a suit for specific perfournance of the contract in the Court of the Civil Judge, Pakpattan, and, therefore, on 29-5-1973 (the day of occurrence) Mauj Din deceased was in, possession of the land in dispute.

The issue is clinched by the testimony of Jeeva (P. W. 7) when he states that:

"I was in possession of the said land on behalf of Mauj Din lease. holder."

Jeeva P. W. has explained the thumb mark on document (Exh. D. A.) as having been obtained fraudulently by stating:

"It is, however, correct that my thumb mark was obtained on a paper for the supply of sugar. Allah Din was allotted a depot."

Irrespective of the claim of Mauj Din deceased that be had purchased the land in dispute under an agreement to sell, the fact remains that initially he held the land on three years lease and the argument of the accused that on the expiry of the said lease they could take possession does not carry any weight. The accused side had no locus standi to obtain the possession from Mauj Din unless he willingly surrendered the same, which he did not. The possession of Mauj Din deceased in the eventuality of his lease having expired with the preceding crop would be that of a holding over tenant. If Jeeva (P. W. 7) or Mauj Din deceased had surrendered the possession of the disputed land, the accused side would have certainly got the same entered in the Roznamcha Waqiati of the revenue officials which they did not do. We are in agreement with the reasoning of the learned trial Judge recorded in paragraphs 5 and 6 of the judgment for finding Mauj Din in possession and for rejecting the defence version and thereby we accept the prosecution version irrespective of the plea of defence and hold Niamat appellant responsible for the firing and consequential death of Mauj Din.

12. The nature of the offence does not pose any problem. We are satisfied that the deceased or his partisans were unarmed. None on the side of the accused has suffered ever a bruise, therefore, we cannot accept the defence suggestion that the crowd carried sotas, dangs and a gun. If the companions of Mauj Din deceased were carrying the weapons as suggested, the assailants could not have escaped from the spot with complete immunity. We find the version of Shadi Khan (P. W. 81, Rehm Ali (P. W. 9) and that of Abdul Aziz (P. W. 10) as credible. The question of right of self-defence, therefore, does not arise. The appellant had fired two shots-one in the front and the other on the back. Either of the two shots had been fired when the deceased lay prostrate before the assailant or while the deceased was running away from the assailant and, therefore Niamat appellant has taken undue advantage and acted in a cruel manner. We, therefore, uphold his conviction under section 302, P. P. C.