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Criminal Appeal No.311 and Murder Reference No.155 of 1984, decided on 19th March. 1986.

‑‑‑Ss. 302/34 & 307/34‑‑Banjar Qadeem land, possession of‑‑Dispute over possession of State land‑‑Witness 'A' merely a lessee not having acquired proprietary rights allegedly entered into an agreement to sell with one of accused‑‑Bargain not maturing for non‑payment‑‑Witness 'A' subsequently executing general power of attorney in favour of deceased 'N' to obtain proprietary rights‑‑Disputed land, Banjar Qadeem in name of Provincial Government‑‑Witness 'A' shown as cultivator in revenue record‑‑Possession of Banjar Qadeem land, lying vacant, held, would be deemed to follow title, it could, therefore, not be said that it was in actual possession of accused as prospective purchaser.

‑‑‑Ss. 307/34 & 307/34‑‑Private defence of property and person, right of‑‑Dispute over possession of Banjar Qadeem State land‑‑Plea, that two of accused while busy in husbandry work, were attacked by complainant party and accused exercising right of private defence of property and person, caused injuries‑‑Accused not suffering even minor scratch‑‑Land in dispute lying vacant as Banjar Qadeem‑‑Accused found not in actual possession of land‑‑Plea of private defence of property and person, held, was absolutely without substance in circumstances.

‑‑‑Ss. 302/34 & 307/34‑‑Quantum of sentence‑‑Land in dispute a Banjar Qadeem‑‑Presence of complainant party over such land, doing husbandry work, found not believable‑‑Physical possession of any party, not proved‑‑Origin of occurrence, held, was shrouded in mystery and considering it an extenuating circumstance, death sentences were altered to life imprisonment.

Mian Aftab Farrukh for Appellants.

Kh. Muhammad Asghar for the State.

Dates of hearing: 18th and 19th March, 1986.

Muhammad Ashraf (24) son of Muhammad Hayat, Manzoor (36) son of Ghulam Muhammad, Muhammad Khan (26) son of Muhammad Ali and Muhammad lqbal (26) son of Chanan, have been convicted by the learned Sessions Judge, Kasur, on 17‑4‑1984, under sections 302/34 and 307/34, P.P.C., respectively, for the murders of Muhammad Ashraf (28) and Noor Muhammad (40) and for causing injuries to P.W. 7 Allah Jawaya, P.W.8 Muhammad Sharif and P.W.9 Manzoor while attempting their murder.

Under section 302/34, P.P.C., all the aforementioned convicts have been sentenced to death on each count while under section 307/34, P.P.C. they have been sentenced to four years' R.I. each. No sentence of fine has been passed nor any order regarding compensation has been made.

2. All the aforementioned convicts have challenged their convictions and sentences through the present criminal appeal (Criminal Appeal No.311/84), while the matter also stands referred to us under section 374, Cr.P.C. (Murder Reference No.155/84), seeking confirmation of death sentence awarded to the convicts. The appeal as also the murder reference shall be disposed of by this judgment.

3. It is noteworthy that Muhammad Iqbal, Manzoor Ahmad and Muhammad Khan appellants have also been convicted by the learned Sessions Judge, Kasur, on 17‑4‑1984, under section 13 of the Arms Ordinance, 1965, and each of them has been sentenced to one year's R.I. These three appellants have challenged their conviction and sentence under the Arms Ordinance through Criminal Appeals Nos.471 of 1984, 472 of 1984 and 473 of 1986. These appeals shall be separately dealt with and disposed of.

4. The occurrence in this case took place on 23‑7‑1982 at 7‑00 a.m. in the field within the area of Rakh Chunian a distance of 1 miles from Police Station Chunian, District Kasur. F.I.R., Exh. P.M. was recorded at 8‑45 a.m. on the same day on the report of Muhammad Siddique P.W.6, brother of Muhammad Ashraf deceased. F.I.R. was recorded by Riyasat Ali Shah A.S.I .P.W.14 .

5. Regarding motive it has been alleged that in the year 1975, land in dispute forming part of Square Nos.75 and 76 was sold by Abdul Haq P.W.10, the lessee of the land as in fact ownership of the land vested in the Provincial Government to Muhammad Asif Khan, Advocate (since dead) and Muhammad Ashraf appellant (the latter was then clerk of Muhammad Asif Khan Advocate), for Rs.28,000. Muhammad Ashraf appellant and Muhammad Asif Khan aforesaid could not pay the amount, therefore, two years prior to the occurrence, Abdul Haq sold the land in dispute to Noor Muhammad deceased and executed a general power of attorney in his favour. Noor Muhammad obtained the possession of the land. About 1 years before the present occurrence Muhammad Ashraf appellant went to Noor Muhammad deceased for getting back possession of the land on which a quarrel took place and Muhammad Ashraf filed a complaint against Noor Muhammad in the Court of A.C. Chunian which was still pending. The present occurrence is sequel to the aforementioned dispute over the land of Square Nos.75 and 76.

6. So far as the main occurrence is concerned, it has been stated that on the day of occurrence at 5‑00 a.m. Muhammad Siddique complainant (P.W.6) accompanied by his brothers Muhammad Sharif P.W.8, Muhammad Ashraf deceased, his uncle Jawaya P.W.7 and his Khalu Noor Muhammad deceased, went to the disputed land on a tractor which was driven by Sharif son of Ghulam Muhammad (given up as won over). Manzoor P.W.9 also accompanied them. Muhammad Siddique sat on the tractor with Sharif driver and started digging the earth while others levelled the land with Kassis. At about 7‑00 a.m., the four appellants each armed with single barrel gun reached the place of occurrence raising Lalkaras. They shouted that none would be spared and permitted to go alive. Muhammad Ashraf appellant fired a shot hitting Noor Muhammad deceased on the right buttock. Manzoor fired a shot at Muhammad Ashraf hitting him on his chest and abdomen. Ashraf fell down. Muhammad Khan appellant fired a shot hitting Sharif P.W.8 on the chest and abdomen. He too fell down. Iqbal fired a shot at Jawaya P.W.7 hitting in his right flank and right arm. Thereafter, Ashraf re‑loaded his gun 'and fired at Manzoor P. W.8 hitting on his left elbow joint. Noor Muhammad deceased started running out of fear. All the four chased him and overtook him at a distance of one Killa. Manzoor fired a shot hitting Noor Muhammad on his chest. Ashraf fired a shot hitting Noor Muhammad on the right side of the neck. Muhammad Khan fired a shot and pellets 'hit Noor Muhammad on various parts of the body. Noor Muhammad fell down on the ground. Then Iqbal inflicted injuries with the Butt of the gun to Noor Muhammad deceased on his head. In the process the grip of the gun of lqbal appellant got broken. The assailants then came running towards Siddique and the tractor driver who hid themselves behind a nearby Nullah. The accused fired at them but the shots hit the left tyre of the tractor of the complainant party. Ashraf and Noor Muhammad died on the spot. Leaving them there the complainant went to the police station and lodged the report.

7. P.W.5 Dr. Muhammad Rafi, Senior Medical Officer, Tehsil Headquarters Hospital, Chunian, performed the autopsy on the dead body of Noor Muhammad deceased on 23‑7‑1982 at 4.30 p.m. He noticed one lacerated wound, 3 c.m. x 2 c.m. scalp deep on the top of head, ten gunshot or pellet wounds, on the right side of the neck front of right chest, front of chest near injury No.3, on the front of left chest, again on the front of chest near injury No.5, on the front of left shoulder, on the front of left upper arm, on the left side of left forearm just above the left wrist, on the inner and back side of left forearm and on the outer side of right lower lumbar region. A contused wound on the front of head on the left side was also noticed. The doctor opined that injuries Nos. 1 and 12 were caused by blunt weapon while the rest were caused by fire‑arm. He further opined that death occurred due to haemorrhage and shock resulting from injuries Nos.2, 1 and 11. All the injuries according to him were ante‑mortem. Exh. P.G. is the carbon copy of the post‑mortem report in respect of Noor Muhammad.

On the same day at 5‑45 p.m. Dr. Muhammad Rafi performed the post‑mortem examination on the dead body of Muhammad Ashraf deceased. He noticed ten pellet wounds on the dead body of the deceased. These wounds were on the front of right shoulder, front of right chest 3 c.m. from the right nipple, front of right chest 2 c.m. from right nipple,, on the front of right chest 2.5 c. m. away from injury No.3, on the' front of left chest, 4 c.m. away from the left nipple, on the back of right fore‑arm, 8 c. m. below the right elbow and on the back of left fore‑arm lower part. He noticed that there had been fracture of 5th rib under injury No.2: Pleura right lung, paricardium right heart, left heart and left lung were perforated. Similarly under injury No.4 chest wall and left lung were perforated. He opined that death occurred due to cardiovascular collapse from direct injury to the heart resulting from injury No.2. He also opined that all the injuries were ante‑mortem and had been caused by fire‑arm.

8. On 23‑7‑1982 at 8‑30 a.m. Dr. Muhammad Rafi medically examined Allah Jawaya P.W.7 and noticed a wound of entry on the inner side of right upper arm, a wound of exit on the right upper arm at the level of injury No.1, grazing of pellet on the outer side of right chest and a pellet wound .5 c. m. x .3 c. m. oval in shape on the right hip.

These injuries which were originally kept under observation were declared simple and having been caused by fire‑arm.

On the same day Manzoor P.W.9 was also medically examined by Dr. Muhammad Rafi. On his person a pellet wound on the back of left elbow, oval in shape and grazing of pellet on the outer side of right rib were noticed. These injuries were found to be simple having been caused by fire‑arm.

On the same day Muhammad Sharif P.W.8 was also medically examined. In his case pellet wounds on the front of right side of chest, on the outer side of left chest, on the front of neck to the left of injury No.3, on the front of left, shoulder and on the top of left shoulder were noticed. Injuries Nos.l and 2 i.e. injury on the right side of the chest and on the outer side of left chest, were declared grievous while other injuries were declared simple. All the injuries were opined to have been caused by fire‑arm.

9. All the appellants were arrested on 25‑7‑1982 by Abdul Shakoor S.I./S.H.O. P.W.15.

Two broken pieces of butt of gun P.1/1‑2 were found from near the dead body of Noor Muhammad deceased. These pieces were taken into possession, vide memo. Exh.P.Q., on 23‑7‑1982. This memo. was attested by Noor Muhammad P.W,.11, Riasat Ali Shah A.S.I. P.W.14 and Muhammad Nawaz (not produced). Punctured tyre of the tractor was also secured by the police, vide memo. Exh .P.Y. on 23‑7‑1982, in the presence of the aforementioned witnesses.

On 30‑7‑1982, Muhammad Ashraf appellant, led to the recovery of licensed gun P.10 from his house alongwith one live cartridge P.11. The gun and the cartridge were secured, vide memo. Exh.P.T. which was attested by Shamir P.W.13, Abdul Shakoor S.I. PA .15 and Chiragh (given up).

On the same day Muhammad Khan appellant led to the recovery of gun P.12 with two live cartridges P.13/1‑12 from his residential Kotha. These articles were secured, vide memo. Exh.P.U. which was attested by the aforementioned witnesses.

On 4‑8‑1982, Manzoor appellant got recovered gun P.8 which was secured, vide memo. Exh.P.R. This recovery was effected from the residential Kotha. Memo. Exh.P.R. was attested by Noor Muhammad P.W.12, Abdul Shakoor S.I., P.W.15 and Nazir (not produced).

On the same day lqbal appellant got recovered gun P.2 from his residential Kotha This gun was secured, vide memo. Exh.P.S. in the presence of the aforementioned witnesses.

10. P.W.3 Abdul Ghafoor the son‑in‑law of Noor Muhammad deceased produced on 18‑8‑1982 the power of attorney Exh.P.E. executed by Abdul Haq in favour of the said deceased before Abdul Shakoor S.I., P.W.15. It was secured, vide memo. Exh.P.F, attested by Abdul Ghafoor, P.W.3, Noor Muhammad P.W.11, and Abdul Shakoor S.I. P.W.15.

11. At the trial Muhammad Siddique P.W.6, complainant and brother of Ashraf deceased, Jawaya P.W.7, the injured witness and uncle of Ashraf deceased, Muhammad Sharif P.W.8, injured brother of Ashraf deceased and Manzoor P. W.9, the injured Saala of Muhammad Sharif P.W.8, testified as eye‑witnesses to furnish the ocular account of the prosecution case. Muhammad Ashraf and Muhammad Bashir were given up as unnecessary while Muhammad Sharif, Tractor Driver has been given up as Kwon over.

12. Muhammad Ashraf and Muhammad Iqbal appellants admitted their presence at the place of occurrence at the eventful time and pleaded that they acted in exercise of right of private defence of property and while exercising such right they caused injuries to the deceased and the injured P.Ws., who had attacked them. Manzoor, and Muhammad Khan appellant totally denied their participation.

In their defence the appellants examined D.W.1 Riaz‑ul‑Hassan petition‑writer, who formally proved the contents of Exh.D.G, copy of entry of his register, dated 29‑5‑1975, D.W.2 Ghulam Rasul Moharrir Head Constable, D.W.3 Dr. Muhammad Rafi Chaudhry recalled as defence witness and U. W.4 Muhammad Yousuf Head Constable who proved F. I. R. Exh.D.J. Contents of Exh.D.G. suggest that an agreement to sell was executed by Abdul Haq on 29‑5‑1975, in favour of Muhammad Asif Khan. Muhammad Ashiq and Muhammad Ashraf appellant. D.W. 2 Ghulam Rasul M.H.C. disclosed that Muhammad Khan appellant was absent from duty from 22‑7‑1982 to 23‑7‑1982. His statement does not in any manner support the version of defence of Muhammad Khan that he was on duty at the eventful time. His defence has rather been negated. Dr. Muhammad Rafi Chaudhry while recalled as D.W.3 opined that after receipt of injury No.2 Noor Muhammad must have died immediately. D. W.4 Muhammad Yousuf Head Constable produced F.1.R. Exh.D.J. Through this F.I.R Muhammad Ashraf complained that Noor Muhammad previously attempted to take forcible possession of the land in question from him.

Besides the aforementioned D.Ws. the defence has also placed reliance on certain documents, Exh. D. M: is the copy of plaint of a suit filed by Muhammad Ashraf appellant against Abdul Haq etc. in the Court of Civil Judge, Chunian in regard to suit land on 25‑11‑1981. Exh.D.Q. is a certified copy of the complaint in case Muhammad Ashraf v. Noor Muhammad etc. filed on 3‑5‑1981 in the Court of A.C., Chunian. Exh.D.R. is a certified copy of interim injunction, dated 20‑7‑1982, granted on the application of Muhammad Ashraf appellant. Exh.D.S. is a certified copy of stay order, dated 19‑10‑1982. Exh.D.V. is also a copy of interim order, dated 23‑2‑1984 passed in the declaratory suit filed by Muhammad Ashraf. Exh.D.K. is a copy of Khasra Girdawari entries, but this document shows that in fact Abdul Haq was in possession of the land. Through oral as well as documentary defence evidence as detailed above, the appellants wanted to prove that in fact Muhammad Ashraf appellant was in actual possession of the land in dispute forming part of square Nos.75 and 76 and that in regard to that land he also filed a declaratory suit against Abdul Haq and others and had obtained a stay order for the protection of his possession.

13. We have very minutely considered the defence plea as also the oral as well as documentary evidence in support of this appeal. Admittedly suit land was a State land. Abdul Haq was merely a lessee. He had not yet acquired the proprietary rights. As per agreement to sell executed by him in favour of Muhammad Asif Khan, Advocate and Muhammad Ashraf appellant, the sale was to be completed after acquiring the proprietary rights. It has been claimed by Abdul Haq appearing as P.W.10 and it is also the case of the prosecution that in fact Muhammad Asif Khan aforesaid and Muhammad Ashraf appellant failed to pay the remaining sale price as per terms of agreement to sell and, therefore, Muhammad Asif Khan had returned the agreement to Abdul Haq who subsequently entered into bargain of sale in favour of Noor Muhammad deceased and also executed a general power of attorney in his favour to enable him to obtain proprietary rights. So far as the actual state of affairs on the spot are concerned, it transpires from the Khasra Girdawari entries Exhs. D.K. and D.L. that suit land throughout till the time the present occurrence took place has been shown as Banjar Qadeem. In the ownership column Provincial Government is recorded while the name of Abdul Haq has been recorded in the column of cultivator as lessee. Obviously in case of Banjar Qadeem land which is lying vacant on the spot, the possession is to be deemed to follow the title. In case of such land it cannot be said that this land was in actual possession of Muhammad Ashraf appellant as a prospective purchaser on the authority of agreement to sell executed I by Abdul Haq a few years prior to the occurrence in his favour and that of Muhammad Asif Khan, Advocate.

14. It has been vehemently argued on behalf of the appellants that in fact Muhammad Ashraf appellant was in actual possession of the land in question. He had obtained a stay order from the civil Court against Abdul Haq and others and that on the day of occurrence at the eventful time he and Muhammad Iqbal were busy in doing their husbandry work in the land in dispute when they were attacked upon by the complainant party and in exercise of their right of private defence of property and person they caused injuries to the deceased and the injured P.Ws. B This plea has been considered and analysed thoroughly by us. We find that it' is absolutely without substance. As already observed the land in question was lying fallow as Banjar Qadeem. The question of doing husbandry work in that land does not arise. It is also a common ground between the parties that during the occurrence the appellants have not suffered even a minor scratch. This fact also lends support to the prosecution version that the appellants in fact armed with fire‑arms attacked the complainant party.

All the appellants are alleged to have caused injuries to Noor Muhammad deceased while Ashraf deceased has been caused injuries by Manzoor. Jawaya Muhammad Sharif and Manzoor P. Ws. have been caused injuries by Muhammad Khan, Muhammad Iqbal and Muhammad Ashraf. The plea of alibi of Muhammad Khan appellant has absolutely failed. The only defence witness produced by him in support of his plea has stated that he was not on duty on the day of occurrence but was absent from duty.

15. In the light of the above discussions, we have come to the positive conclusion that plea of exercise of right of private defence of property and person raised by the appellants is without any substance and that the appellants are liable for the deaths of Noor Muhammad and Muhammad Ashraf deceased and for causing injuries to Muhammad Sharif, Jawaya and Manzoor. We, therefore, uphold the convictions of the appellants under sections 302/34 and 307/34, P.P.C.

Regarding the question of sentence, we have observed that the land in dispute at the eventful time and for many years prior to that was lying as Banjar Qadeem and, therefore, it is not believable that even the deceased and the injured P.Ws. i.e. the members of the complainant party were present at the relevant time in the land in question doing husbandry work as alleged by them. In such circumstances, we find that the origin of the occurrence is still shrouded in' mystery and it cannot be said with certainty as to which of the two parties was actually in possession of the suit land. It being Banjar Qadeem was, in fact, not susceptible to physical possession. We deem it an extenuating circumstance in the matter of sentence and accordingly we alter the sentence of death awarded to the appellants to imprisonment for life and fine of Rs.5,000 each on each count, or in default two years' R.I. We also direct that the fine, if realized, shall be paid to the legal heirs of both the deceased in equal shares. The sentence awarded under section 307/34, P.P.C. is, however, maintained. The appeal is thus partly allowed to the extent of alteration of sentence of death to imprisonment for life. The death sentence awarded to the appellants is, therefore, not confirmed.

S.A. Appeal dismissed.

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