P L D 1961 (W (PLP)

2. The prosecution case was that on 19th November 1959 the deceased Sharif and his brother Majid were working in a field bearing purvey No. 98/2 situated in den Utar Swari, taluka Moro, District Nawabshah ; that this land had either been allotted to one Taj Vluhammad or his nephew Rafiq and these two brothers were the Haris of the said allottee. About mid‑day the appellant brought his 6 buffaloes to this field who started grazing there, whereupon the 2 brothers Sharif and Majid told him to remove the buffaloes, which the appellant declined to do. And thereupon Sharif removed the buffaloes from the land and was taking them to cattle pound when the appellant came up and gave the hatchet blow on the head of Sharif, who fell down while the accused ran away. Cries were raised but no body turned up as none was near. The only other person was Iqbal, cousin of these two brothers, who was cutting grass in the adjacent field and went to the village and informed Noor Muhammad who was related both to them and to Taj Muhammad. Noor Muhammad came on the scene and according to him, Sharif, who was lying injured, was still in his senses and he and Majid both told him that the appellant had l6ft his buffaloes in their field and when asked to remove them he had given the hatchet blow to Sharif. Noor Muhammad then went and lodged the first information report at the Daulat Pur police station at 6‑30 p. m. the same day. This police station is a distance of 10 miles from the place of occurrence. Sharif died the same night as a result of the hatchet injury which was inflicted on his head by the appellant.

3. The appellant, was arrested the following day, i.e., 20th November at his house, and it is clear that he took the stand from the very beginning that he had given this blow so Sharif in self‑defence, because Sharif himself had given him a blow. He also produced the hatchet with which he admitted he had given the fatal blow. He was produced the following day before the Mukhtiarkar and First Class Magistrate, Moro to whom he made the following statement: "Day before yesterday at manjhand time I was grazing buffaloes on the grass purchased by me in the land, when Sharif Muhajir also came and left his buffaloes there. I told him that the grass had been purchased by me and that he should remove his buffaloes from there. He refused. He abused me and came and gave a blow. I had a hatchet in my hand. In self‑defence and on account of anger, I gave him a hatchet blow. He then fell down there. It was an accidental blow." The appellant had 3 injuries on his person, 2, contusions on his balance and a superficial cut caused by a sharp weapon on his parietal region. When asked by the Magistrate who recorded his confession, he said that these injuries were caused to him by the deceased Sharif.

4. The‑prosecution version of the case, as stated above, was given by the two‑ eye‑witnesses Majid P. W. 3, the brother of the deceased and Iqbal P. W. 4 a cousin of the deceased. There was also the evidence of Noor Muhammad who made the 17.

1. R. and who had come on the scene having been informed by Iqbal and to whom Sharif is alleged to have made the state ment referred to above.

5. The learned Sessions Judge accepted the version given by Majid and Iqbal because, according to him; though it was interested, it found support from the circumstances that there were heaps of grass on the scene of offence and Gwar had also been found cut as brought out in the prosecution evidence. With regard to the injuries upon the person of the appellant he observed that he was inclined to accept the medical evidence which suggested that these injuries were self‑suffered. He also pointed out that it was. not the base of the appellant that he had out the Gwar or the grass.

6. The appellant struck to his story of having caused the blow in his right of self‑defence both in the Committal and the Sessions Courts. The giving of the fatal blow is thus admitted. The only question which has to be determined is as to in what 'circumstances this blow was given. It also needs to be considered whether the prosecution has proved that the field, where this incident took place, had been allotted to Taj Muhammad or his nephew Rafiq and whether the deceased Sharif and Majid were working as the Haris of Taj Muhammad. The appellant's case is that he had purchased the Gwar of that field from Baloo and Yousaf who had cultivated the land and that it were Sharif and Majid who had trespassed into that land with their buffaloes.

7. The story given by their prosecution witnesses Majid and the Iqbal at the trial was that the appellant had brought his 6 buffaloes into the field and when told to remove them he had declined to do so and when Sharif removed the buffaloes and was taking them to the cattle pound, the appellant struck the hatchet blow on his head and ran away. This is not exactly the story which was given in the F. I. R. by Noor Muhammad. There it was stated that while Sharif and Majid were harvesting Gwar a buffalo of Ramzan came and trespassed into the Gwar field, whereupon Sharif asked Ramzan to remove the buffalo which Ramzan refused to do and thereupon they exchanged hot words between them and Ramzan, who had a hatchet in his hand, gave a blow on Sharif's head. It will be noticed that only one buffalo was mentioned and the story that this blow was given while Sharif was taking the buffalo or buffaloes to cattle pound, does not find support from the F.

1. R. In the committal Court both these eye‑witnesses namely, Majid and Iqbal had stated that the appellant and Sharif had abused each other and that the appellant gave the hatchet blow to Sharif from behind. Both of them were confronted with these statements and they denied to have made them. It must be fairly obvious that in the committal Court the story that the appellant had come from behind and given the hatchet blow to Sharif, was put forward to support the version that as Sharif was taking the cattle to the pound the appellant followed him and gave the blow, but when the doctor came and gave evidence he stated that the blow on the head of Sharif appeared to have been caused from the front. These two witnesses in the Sessions Court then found it necessary to resile from their statements made in the Committal Court that the blow had been given from behind. There is then the question of the injuries on the person of the appellant which were found on him when he was arrested the following day. Neither of these two witnesses gave any explanation of these injuries. The question then is were these injuries self‑suffered as is opined by the medical officer, P. W.

6. In his evidence the doctor said that the two contusions on the back left scapular region of the appellant had been caused by some hard and blunt substance like a cane. These two contusions are described as horizontal and their dimension is given as 7"x " In cross‑examination the certificate, Exh. 12, given by the doctor was shown to him and the original showed that the weapon in the first instance had been described to be a Lathi and it was later on changed into a cane. The explanation that the doctor gave of this was that the certificate had been written by the compounder and had been corrected by him. We do not find this explanation very satisfactory, because even if the compounder wrote this certificate, it must have been according to the dictation or instructions of the doctor. In fact, he himself has later on tried to explain this by saying that this was a clerical mistake. We are, therefore, inclined to think that in the first instance the opinion of the doctor was that the weapon used was a Lathi. We then come to his opinion that these injuries could be self -suffered.. Exh. 13 is the reference by the police to the doctor inquiring about these injuries, and on the back of it is the reply of the doctor which reads as follows:‑ "The injuries on the person of the accused can be self- suffered." But it is significant to note that in the first instance it was written that the injuries on the head of the accused could be self‑suffered. Evidently the reference was to the superficial injuries on the head of the accused caused by a sharp weapon. But the doctor scored out the word "head", and wrote the word "person". The least that we can say from this, is that the doctor had some diffidence in respect of the two contusions describing them ac self‑suffered injuries. When he was cross‑examined about these injuries he made a somewhat startling statement that there was no possibility that the injuries on the person of the accused could be caused in a fight. With respect to the learned doctor, we cannot agree with him. The description of the two contusions, which have been given above, shows that these were caused by fairly severe blows, on the back and the suggestion that the appellant got it inflicted on himself, is not worthy of acceptance. If the appellant was preparing a defence, he would have almost certainly also gone to the police station to make a report, which he did not do. If these injuries upon the accused had been caused to him in the same incident in which he gave the fatal blow to Sharif, which is the view that we take, then it is plain that the two eye‑witnesses have suppressed most material facts and have not given a true version of the incident. This conclusion also finds support from the fact that in their earlier statements they had both stated that ‑the blow to Sharif was given from behind, a version upon which these witnesses them selves found it necessary to go back in view of the medical evidence. Upon a fair appraisal of how the incident took place it must be held that the Lathi blows which were inflicted upon, the back of the appellant must have been inflicted before he gave the fatal blow to Sharif. That in the circumstances the appellant would reasonably have an apprehension that grievous hurt would be caused to him, would be a reasonable inference. He would, therefore, have a right of private defence of body, which could extend to the voluntary causing of death.

8. The next question is whether the appellant can be said to have been deprived of his right of private defence for some other reason, because there is no right of private defence against any act which is not in itself an offence under the Code. If it could be held that the deceased was himself acting in the exercise of his right of private defence, then it must follow that, that would not give a right of private defence, in return to the appellant. That brings us to the question whether Sharif and Majid were in lawful possession of the field in question and whether either of them had the right to give Lathi blows to the appellant upon the ground that he was damaging their field or interfering with the seizure of his cattle which were being taken to the cattle pound. We have already indicated that we are not inclined to believe the story that Sharif was taking away the cattle to the pound when he was given the blow by the appellant. Now with regard to the question of possession of the field in question, here also we must say that the prosecution evidence is not by any means satisfactory. P. W. 1, the Tapedar, stated that the land where the incident took place, belonged to one Hindu evacuee. This statement was made at the com mencement of the trial, but' more important than this is the so‑called confession recorded by the Makhtiarkar and F. C. M. as far back as 21‑11‑1959 in which the appellant had said that he had purchased the grass of that field where he was grazing his buffaloes. In view of this statement, the prosecution had sufficient notice of the defence which the appellant was taking and even otherwise it was their duty to prove satisfactorily that this land had been allotted to Taj Muhammad or his nephew Rafiq and that Sharif and Majid were acting on behalf of the allottee. No documentary evidence had been produced of such an allotment. On the contrary, the appellant produced a certified copy of the field book to show that the. land in question, which belonged to Manghanmal, had been allotted to Haji Faizoo Muhajir. Strangely enough, Taj Muhammad himself was not produced and the manner, in which he was kept back, leads to an adverse inference against the prosecution. The reason why we say so, is this : when the case was before the Magistrate in the committal stage, an application was made by the A. P. P. on 5‑1‑1960, in which it was said that Taj Muhammad was not an eye‑witness, and that he had reached the vardat after the incident and he was reserved for Sessions. Our attention to this document was drawn by the learned A. A. G. himself. Now when the case came up in Sessions, Taj Muhammad was not examined, and no explanation had been given of it. Therefore, we have merely the oral evidence of highly interested witnesses that this land had been allotted to 'I aj Muhammad. None of these witnesses, such as Majid, Iqbal, Noor Muhammad and Gut Hassan were in a position to substantiate the assertion that the survey number in question had been allotted to Taj Muhammad. There was nothing bu't their word for it. It appears to us, therefore, to be a fair inference that if Taj Muhammad had appeared as a witness, he may not have been able to establish that he was the allottee or in lawful. possession of the survey number in question. Now, with regard to the presence of grass and the cut Gwar into the field, to which reference had been made by the learned Sessions Judge, we find from the mashirnama of the vardat, Exh. 16, that there is no mention of the presence of cut grass in that field. With regard to the Gwar, the mashirnama shows that the standing Gwar was 20 paces south and there were stumps of harvested Gwat. But it does not appear from the mashirnama that there was any harvested Gwar in the field in question. P. W. 6 Gut .Hassan, who was a mashir, was cross‑examined on this point and he admitted that the cut Gwar was lying in the adjoining survey number. It is, there fore, not established that Majid and Sharif were cutting Gwar in the survey number in question or whether there was any standing Gwar on it. We agree with the learned Sessions Judge, that it has not been established that the accused had purchased the grass of this land from the refugee allottee, but considering the nature of the evidence with regard to the right of Taj Muhammad be this land it may be a fair inference that when the appellant brought his buffalloes to the survey number in question he believed in good faith that he had at least as mush right to be there as Sharif and Majid. Now in this situation when he was given 2 Lathi blows on his back there seems .to be a little doubt that he would have the right of private defence which would extend to causing of death. The learned A. A. G., who appeared for the State, himself ‑took this stand and cited the case of Safdar Ali v. The Crown (P L D 1953 F C 93) in which it was held that . ‑ "It is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit, of doubt, not as a matter of grace, but as of right, because the prosecution. has not proved Its case beyond reasonable doubt " In this case also the right of private defence has been urged on behalf of the accused. The learned A. A.‑G. pointed out and rightly that the facts of the case before us warranted the finding of the right of the existence of private defence for more strongly than in the case referred to above.

9. For the reasons given above we are of the opinion that in the circumstances of this case the appellant did have the right of private defence and we do not find that he exceeded that right. There were three persons on the side of the deceased and even according to the prosecution evidence the appellant gave only one blow and ran away evidently to escape any further assault. We, therefore, accept this appeal, set aside the con viction and sentence passed upon the appellant and direct that he should be set at liberty. K. B. A. Appeal accepted.