P L D 1983 Peshwar 81 (PLP)

(3) Bruise 3" x " at left arm upper end oblique in direction: (4) Bruise 4" x " at the back end upper end of left shoulder. (5) Bruise 2 " x " just below the lower angle of left shoulder blade. (6) A bruise 2" x " x 1 " below injury No. 5. (7) Contused wound " x " on the left side upper lip, having laceration inside with injured gum, teeth, first premolar shaky. (8) Contused wound " x " on the lateral side of left forearm with the mark of swelling. The accused having claimed trial, the prosecution got examined in addition to the formal witnesses, Gulab; the complainant and Mst. Farooq Jan, as ocular witnesses. On conclusion of the prosecution evidence, the four accused were examined who pleaded innocence. It may be necessary to state that Mir Dad, who received simple injuries during the occurrence, was not put any question regarding his injuries. Mr. Tadamava Sato of the Tele communication Research Centre and Dr. Haji Taj Muhammad were examined in defence. Mr. Tadamava SATO deposed to the effect that the acquitted accused namely Riyasat was present in the Factory from 9 a. m. to 2‑30 p. m. His evidence in view of the fact that Riyasat has already been acquitted, will require no special mention. Dr. Haji Taj Muhammad Khan, was re‑examined as defence witness to prove the certificate Exh. D. W. 1/2 issued to Mir Dad accused. The said Mir Dad had been brought to the hospital by Saifur Rehman F. C. No. 523 on 20‑8‑1978 and was examined at 5‑25 p. m. The following injuries were found on his person. (1) A bruise 1 " x " at Rt. mexillary prominance. (2). A bruise 4 " at back of left shoulder. (3) A swelling at back and middle of Rt. forearm. (4) A bruise in the middle of hip marks swelling at left hip " x 3". Advised X/ray Rt. forearm and left shoulder.

7. On consideration of the evidence, the learned trial Court, as stated earlier convicted the petitioners under section 325/34, P. P. C. and sentenced as stated above.

8. The learned counsel for the petitioners pot only urged that the evidence produced was unreliable and discrepant but laid stress on the fact that the two Courts below had failed to take into consideration the plea of Mir Dad petitioner that he had acted in self‑defence. Mr. Abdul Khaliq Khan, Advocate appearing on behalf of the State not only expressed his satisfaction as far as the prosecution evidence is concerned but asserted that it would be a late stage to consider the plea of self‑defence when the said plea was not agitated earlier.

9. I have gone through the evidence recorded in connection with the prosecution case. It is clear that no plea of self‑defence has been expressly taken in his statement under section 342, Cr. P. C. His plea is that of false charge because of the dispute over landed property.

10. The first question for determination, therefore, would be if the plea of private defence in fact and circumstances of the case can be agitated. The learned counsel for the petitioners in support of his claim cited Noor Muhammad and another v. The State (1979 P Cr. L J 505) where it has been observed that "it is true that the two appellants have not pleaded self‑defence. It is, however; well‑settled rule that if such plea can be spelt out from the evidence and the circumstances of the case, the accused should not be denied the benefit of the same only because he has not expressly pleaded it. In the instant case one of the co‑accused namely Manzoor has claimed right of self‑defence. In the circumstances, if I find that the plea set up by Manzoor is reasonably plausible, benefit of the same will be given to the two appellants"

11. It is, thus, clear that the right of private defence of the accused can be considered by the Court on the material before it, even though it was not specifically pleaded and that the accused will be entitled to acquittal even if the evidence fails to satisfy the Court affirmatively of the existence of the, circumstances establishing the right, if upon consideration of the evidence as, a whole, a reasonable doubt is created in the mind of the Court.

12. Reverting to the evidence brought on the tile, reference can be con veniently made to Exh. D. W. 1/2. Though all the injuries found on the person of Mir Dad Khan, the petitioner are simple but it do provide an inkling, how the complainant received the injuries. It would be sufficiently established that there was a brawl between the two brothers, and in result both received injuries. It is, however, not clear from the evidence who commenced the aggression. It has been held in 1968 P Cr. L J 602 at p. 607 that "the right of private defence can be considered even though not' specifically claimed. If the Court is in dour as to whether this right has been exceeded, the benefit is to go to the accused." In the circumstances, though the injuries on the person of the complainant are more serious than that of the accused but in the absence of positive evidence who commenced the aggression, it cannot be held that the accused petitioner had started the aggression and had exceeded the right of self‑defence.

13. Moreover, we cannot ignore another aspect of the case. The accused, as the evidence goes, was found in constructing, `Band' to protect his land from wash off. The complainant would, however, not allow him to do so. The accused party in the circumstances had to act in exercise of right of self‑defence as well as that of property. It has been held in Waryam etc. v. The State (1974 P Cr. L J Note 157 at p. 97) that "where possession is with one party and the title with the other, the person in settled possession has the right to repel aggression".

14. In view of the fact that it is not clear from record who commenced the aggression, that two of the accused have been extended the benefit of doubt regarding their presence at the time of occurrence, on the same evidence. Therefore, the benefit of doubt should have been extended to the petitioners too. Moreso, when the medical evidence show, that all the injuries have been received on the left side of the body (that of victim) would create doubt, that two of the assailants had acted in concert at the same time.

15. In result the petitioners are also to be acquitted. Their bail bonds stand cancelled. S. Q. Petition accepted.