1974 P Cr (PLP)

22‑A. In the opinion of the doctor these injuries except No. 3 were caused by some hard blunt substance such as a lathi or back side of hatchet and No. 3 was caused by some sharp cutting weapon.

23. On the person of P.W. Mohomed Ali the doctor noticed the following 5 injuries on his examination:‑ (1) Contused wound 3' x ' x skin deep on the left side of frontal region of scalp. (2) Bruise 5' x 1' on the lower part of the back of left side chest. (3) Bruise 4' x 5' on lower part of the back of right side chest. (4) Bruise 3' x ' on right scapular region. (5). Bruise 2 ' x 2' on left upper arm on lateral side."

24. The doctor opined that the above injuries were simple in nature and were caused by some hard blunt substance such as a lathi or back side of hatchet.

25. On the person of ‑P. W. Misri the following two injuries were detected by the doctor "(1) Contusion 4' x 1' on lateral side of upper part of left upper arm. (2) Contusion 2' x 1' oh middle of right forearm. Both these injuries were simple and were caused by some hard blunt substance such as a lathi.

26. P. W. Adul had the following 10 injuries on his person which the doctor noticed on his examination:‑‑ "(1) Contused wound 2' x ' x scalp deep on right parietal region of scalp. (2) Contused wound 2 ' x ' x skin deep on left parietal region of scalp. (3) Swelling on the back of right hand. (4) Contusion 5' x 1' on lower part of right side chest on the back. (5) Bruise 5' x 1' on lower part of left side of the back of chest. (6) Bruise 1 ' x 1 on left shoulder.

7. Bruise 2' x 2' on right scapular region. (8) Contused wound 1 ' x ' skin deep on right side of scalp over frontal region. (9) Facial palsy right side. (10) Bleeding from right ear and nose, suspected fracture of base skull. All the above injuries were simple according to the doctor except Nos. 9 and 10 which were grievous and the injuries appeared to have been caused by some hard blunt substance such as a lathi or back side of hatchet.

27. The doctor also stated that the injuries on persons of P. Ws. Muso and Adul would have taken more than 3 weeks for complete recovery and the injuries on the other injured would take less than 20 days to cure.

28. This doctor Bhagchand teas also examined by the trial Court as Court witness No. 1 as he had omitted to mention the injuries of too of the appellants Khamiso and Morio.

29. At the trial he deposed that on the examination of appellant Morio he found the following 3 injuries on his person. "(1) Contused wound 1 ' x ' x scalp deep on left parietal region of scalp. (2) Contused wound 2 x ' x scalp deep on left parietal region of scalp. (3) Swelling on back of right hand. All these injuries according to the doctor, were simple and were caused by bard blunt substance.

30. On the examination of appellant Khamiso be noticed the following 3 injuries on him:‑ (1) Contused wound 2' x ' x skin deep on left parietal region of scalp. (2) Bruise 3 ' x 1' on right shoulder. (3) Abrasion 2' x 1' on back of left shoulder." All the above injuries appeared simple in nature and appeared to have been caused by some hard blurt substance. The doctor also stated that both the injured appellants had remained indoor patients in the hospital and their injuries would have healed up within a week.

31. Thus, it will be seen that the prosecution case itself is that Daim deceased was killed on the side of the complainant party and also 6 P. Ws. aforesaid were injured on their side while on the other side of appellants two of them sustained injuries as mentioned in the‑evidence of doctor Bbagchand.

32. The prosecution case rests solely upon the evidence of the 7 eye witnesses, namely, P. Ws. Gul Hassan, Misri, Mooso, Isso, Jumo, Adul and Mohomed Ali as corroborated by the complainant Niamo and there is no corroborative evidence having been found from the appellants because all their weapons, some of which they produced and the others were secured on search of their houses in their absence, were not found to be blood‑stained. The only factor that the prosecution can put forward in support of the story of the incident as advanced by the 7 eye‑witnesses is that six out of them i.e. except Gul Hassan have injuries on their person. But as will be soon discussed hereafter this fact also by itself is of no avail to the prosecu tion. It is necessary to say that on the evidence of these very same 7 eye witnesses 7 other co‑accused already named above, who were tried jointly along with the appellants, have been acquitted by the learned trial Court by giving them the benefit of doubt as it held in its judgment that their presence at the scene of occurrence and participation in the crime was doubt ful. When this is the position of evidence arising for assessment in appeal the rule of prudence clearly is that the same evidence ought not to be relied upon which has been disbelieved by the lower Court, in respect of those persons, i.e. the appellants in this case, who have been convicted by the same Court. This rule of prudence is accepted to be a principle of appreciation of evidence in the case of Mohomed and another v. The Crown (P L D 1964 F C 84) in which their Lordships observed as under:-- "where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of convicting the remaining accused in the case for that offence in the absence of any confirmatory circumstance." This‑decision of the Federal Court clearly shows that in the instant case confirmatory circumstances lending support to the ocular evidence in the case has to be looked for in order to sustain the conviction of the appellants. That this further corroboration to the ocular evidence should be looked for/ In this case is also made necessary by the fact that the parties in this case, as will be shown from the evidence, are' on inimical terms with each other.

33. P. W. Mooso in his cross‑examination has been confronted with his evidence in the committal Court where he said that Sultan appellant had purchased land from one Farooq of Karachi and that it was in possession of Niamo complainant, in this case, whom Sultan evicted two months prior to this occurrence. He has further said in his cross‑examination as under; "We are not on visiting terms with Sultan accused since a long time and we do not go to each other even on ceremonial occasions. We bad not even attended the feast given by Sultan accused to our Murshid some months before the occurrence. We had complained to our Murshid that Sultan would not give his daughter in marriage to my uncle Isso. He got his daughter married to Yousuf accused."

34. Yousuf accused refereed to just above is one of the co‑accused at the trial who has been acquitted. On this point P. W. Isso made the following admissions in his cross‑examination:‑ "It is correct that Sultan accused had made applications against my brother Niamo as the result of which he was declared history sheeter at the police station. It is also correct that we are against Sultan ac cused on account of several reasons. I had demanded in marriage the daughter of Sultan accused but he had refused and had got her married to Yousuf accused. It is correct that we have disputes with Mitho and Obhayo accused since a long time." Mitho and Obhayo referred to above are two of the acquitted co‑accused.

35. P. W. Jumo in his cross‑examination has admitted that a little while before on the day of the occurrence he and P. W. Mohomed Ali had gone to Soomar and had asked Soomar to remonstrate and admonish Muhammad Ali who was trying to cause a quarrel between them and appellant Khamiso over the rotation of water. Soomar admonished Muhammad Ali but the latter did not listen to him and insisted that Soomar should get him land on lease from Khamiso. P. W. Muhammad Ali also said that he would not allow Khamiso accused to take turn of water. Again, on this point of enmity P. W. Adul in his cross‑examination has admitted that he was a prosecution witness in the case filed by his brother P. W. Muhammad Ali against Morio, one of the acquitted co‑accused, for theft of his radio. Morio was, however, acquitted in that case. P. W. Muhammad Ali has also admitted in his cross‑examination that he had asked appellant Khamiso to give land on lease to him but he refused. The complainant, Niamo, admits in his cross‑examination .that he was the history sheeter at Shahpur Chakar Police Station but not at the time when he gave evidence. He, however, further admitted that there were criminal cases pending against him at the time he was giving evidence after trial.

36. All the above admissions from these prosecution witnesses will clearly show that the complainant party was on inimical terms with the appellants side and that the. complainant Niamo is also such a witness with bad antecedents that his evidence should not be relied upon without corrobo ration from some independent source. This enmity also, therefore, requires that the ocular evidence in this case be assessed with great caution, care and circumspection and that corroboration should be looked for in support of it.

37. Coming to the story of the prosecution regarding their version of the Incident all the seven eye‑witnesses have supported the prosecution case so also the complainant Niamo and their case substantially is that on the day of occurrence at 4‑15 p.m, it was their turn of water for irrigating their lands from watercourse No. 6‑ L, after the turn of Zamindar Muhammad Ishaque was to finish, and this Zamindar's Kamdar Nabi But (P. W. 11) was present at the scene of offence in order to give them their turn of water. It is the further case of the prosecution that initially deceased Daim accompanied by his son P. W. Gut Hassan and admittedly their hart P. W. Misri had gone to the place of occurrence for the purpose of taking their turn of water from the Kamdar of Zamindar Muhammad Ishak namely, p, W. Nabi Bux; who was also present at the spot. According Jo the prosecution the turn of water of appellant Khamiso was to follow the turn of water of the deceased Daim. According to P. W. Gul Hassan none of them was armed with any weapon when they went to take their turn of water. According to P. W. Misri, the hari, his case in his own examination‑in‑chief is that he had a spade for diverting the water while P. W. Gut Hassan and deceased Daim had nothing in their hands. It is then the case of the prosecution that when the deceased along with his son. P. W. Gul Hassan and their hari P.W. Misri started to take their turn of water for their land, initially the present 5 appellant, arrived on the spot while appellant Khamiso was armed with a hatchet arid the rest of them four carried lathis, According to P. W. Gut Hassan, the son of the deceased, the present 5 appellants came running to the spot after the deceased and he along with their hart P. W. Misri had reached at the spot and were starting to take their turn of water when the appellants came running. But in his cross‑examination he has changed the version and stated that all the five appellants were already at the watercourse where they had reached. P. W. Gul Hassan also admits in his cross‑examination that when the appellant prevented them from taking water they insisted on taking it. Thus, it is the ease of the prosecution that when they were taking their turn of water all the five appellants variously armed, as mentioned above, attacked the deceased Daim and P. Ws. Gut Hassan and Misri, Gul Hassan out of fear rain away to the village before sustaining any injury but on P. W. Misri certain injuries appeared as have been already described above in the deposition of the Medical Officer Dr. Bhagchan. The prosecution story further is that deceased Daim vas caused injuries. Both with hatchet and lathes and was laid low and P. W. Misri also sustained injuries at the hands of the appellants. By that time P. W. Gut Hassan had reached his village and informed the other five eyewitnesses, namely, P. Ws. Mooso, Isso, Jumo, Mohomed Ali and Adul that his father was being beaten by the appellants and that seven other culprit` also, who were the acquitted co-accused at the trial, had also reached the scene of offence and that the five appellants had caused injuries to his father Daim for whose help they should go. All these five P. Ws. then proceeded to the spot while P. W. Gul Hassan according to him, remained behind in the village. It is the case of these five eye‑witnesses at the scene all the 12 culprits including the appellants and the 7 acquitted accused gave them all injuries with their weapons with which they were variously armed. The culprits then are said to have gone away. Thereafter the complainant Niamo arrived at the village where the injured witnesses had been removed by them including the deceased and the complainant Niamo was informed of the occurrence after which he went and lodged a report at Shahpur Chakar Police Station.

38. As against this version of the incident put forward by the 7 eye-witnesses and the complainant we have the other opposing version from the side of the appellants who claimed that it was their turn of water for irrigat ing their land and the deceased Daim had not to, take his turn of water at that time but he forcibly tried to take the turn of water and attacked the appellants, therefore, they in self‑defence caused injuries to the deceased and the other injured P. Ws. The learned trial Court has reached the finding that the appellants did cause injuries to the injured P. Ws. and the deceased but in self‑defence on a sudden fight flaring up at the spot and that they exceeded in exercise of right of their private defence and, therefore, had committed the offences for which they were punished except the 7 co‑accused who are acquitted. The trial Court also gave a finding that the evidence showed that the rotation of water at the time of the occurrence was of appellant Khamiso but it was not of Daim deceased. It also held that it cannot be said on the evidence that unlawful assembly had been formed by the appellants, thereby implying that each of the appellant was responsible for his own individual criminal act although the finding is not expressed in so many specific words: ‑The learned counsel for the State appearing before me also conceded that the appellants` had acted in exercise of right of private defence of their person and, therefore, supported the judgment of the trial Court. 39. "The fact that the appellants acted: in the right of private defence is made clear from various circumstances on the record which I shall presently refer to P, W. Mohomed Ali has admitted in his cross‑examination that the parties in this case had to take the turn of water according to the share list prepared by Abdar Ghulam Hussain, who has been examined as a Court witness and this P. W. Mohomed Ali has produced that share list prepared by the Abdar as Exh.

18. This share list clearly shows at the entry at section No. 13 that Allahdino, who is admittedly the deceased brother of appellant Khamiso, had to take his turn of water from 4‑1,5 p.m. Friday to 11‑45 p.m. at night. After that was the turn of the water for P. W. Mohomed Ali. This share list has been produced by the Court witness Abdar Ghulam Hussain, who has stated that this share list has been prepared by him in consultation with the Khatedars according to the relevant rules. It is, therefore, quite obvious that at the time of occurrence the turn of water for irrigation was to he taken by the appellant Khamiso and his companions and the deceased Daim and his party had not to take their turn which they could not do in view of the share list Exh.

18. It is also further, therefore, obvious that the complainant party must have tried forcibly to take their turn of water. Therefore, it is quite likely regard being had to the common course of natural events and human conduct that the com plainant party must be the aggressors on the appellants. It is admitted by P. W. Misri that he had a spade and P. W. Isso has also admitted that he of them on their side had any weapons, therefore, it is denied by the prosecu tion witnesses that "they caused any injuries to the appellants which obviously inconsistent with the medical evidence of Dr. Bhagchand, Exh. 44, who examined the appellants Khamiso and Morio on whom he found injuries having been caused with a blunt and hard substance. The prosecution, witnesses have obviously suppressed the fact of having caused Injuries to the two of the appellants who have been found injured by the doctor. This is also an additional reason why independent corroboration would be necessary to seek for in order to rely upon the version of the prosecution which as Is being discussed now appears to me to be very doubtful. The Kamdar of Zamindar Mohomed Ishaque i.e. P. W. Nabi Bux, has also been examined on the side of the prosecution and he has at his testimony at the trial in examin ation‑in‑chief supported the version of the self‑defence put forward by the appellants. He deposes, inter alia, that on Friday at 4‑15 p.m. appellant Khamiso took the turn of water for his land after their turn (Nabi Bux's) turn of water was over. At the same time when appellant Khamiso came to take his turn of water Daim deceased and his son Gul Hassan as well as Misri also came there. They as well as the appellants claimed that it was their turn of water. He further' goes on to add that Daim deceased had a lathi while P. W. Misri had a spade. Daim deceased then struck appellant Khamiso with the lathi and the latter dealt hatchet blows‑to deceased Daim. According to him appellants Morio and Ibrahim also then struck Daim with lathis and he out of fear ran away. After giving this evidence in examina tion‑in‑chief this witness was declared hostile by the Public Prosecutor at the trial and he was granted permission to cross‑examine him. So the learned Public Prosecutor contradicted this witness with his lower Court statement where he had given the version of the incident which is in consonance with the prosecution story as advanced in this case; But it is all the same brought out in the evidence of P. W. Nabi Bux that he had not stated before the Committing Magistrate that Daim first struck Khamiso with the lathi and then Khamiso struck him with the hatchet as no such question was put to him. The learned trial Court in view of the contradictory statements made by this witness at the trial and in the committal Court has thought it right to discard his evidence completely, but in my opinion; the evidence given by this witness his examination‑in‑chief at the trial is more consistent with this of this case as it is quite obvious from the share list, Exh 18 that the turn of water was that of the appellant Khamiso and not that of the complainant, 'therefore, what P. W. Nabi Bux stated in his examination‑in‑chief at the trial ought to be relied upon. I, therefore, find that P, W. Nabi Bux also supports the case of the self‑defence of the appellant and his version that the deceased attacked the appellants first ought to be relied upon and preferred from his evidence given in the committal Court from which he has reverted to truth at the trial.

40. It appears in the prosecution evidence that at the initial stage P.Ws. Gul Hassan and Misri had accompanied deceased Daim to the scene of occurrence anal thereafter whet: the appellant started beating the deceased P. W. Gul Hassan had run back to his village and informed P. Ws. Mooso, Isso, Jumo, Adul and Muhammad Ali that his father was being beaten and, therefore, they should go for their help and, accordingly, they reached at the spot. It is their case that these five eye‑witnesses also reached the spot later were attacked by the appellants which might go to show that the appellants have at least attacked these witnesses for no rhyme or reason but it appears to me that having regard to the common course of natural events and human conduct it must be these 5 injured eye‑witnesses who must have attacked the appellants seeing that deceased Daim was already lying injured on the ground along with P. W. Misri as obviously they were claiming that it was their turn of water to take and. that the appellant had no right to take the turn of water for themselves. I am, therefore, of the opinion that the appellants and perhaps along with some of the other acquitted co‑accused acted in self defence and caused simple injuries to all the 6 injured eye‑witnesses. It is quite obvious from the evidence on record as discussed above that at least some of the prosecution eye‑witnesses must be armed with lathis because injuries with such a weapon appeared on the person of two of the appellants i.e Khamiso and Morio. In these circumstances the law is well laid down by now that if an accused person is attacked with a weapon like lathes which is likely to cause at least grievous hurt to him he has the right to exercise the right of private defence to cause injuries to his assailants even to the extent of causing his death. For this proposition of law there is ample authority laying down that an assault with a lathi or dunda may be productive of "reasonable apprehension of death or grievous hurt and may, therefore, justifying causing more grievous hurts. In this connection refer to the following reported cases: (i) Imam Din v. Emperor (1925) 26 Cr. L J 730, wherein it has been held that in the heat of the moment and while defending one‑self from a man armed with a stick, it is practically impossible to calculate with accuracy the exact force which one is entitled to comply in self -defence. In this case the facts were that the accused insulted the deceased and the deceased struck him with a stick. Accused thereupon retaliated by striking deceased on the head with a lathe, fractured his skull and killed him. It was held that the accused had acted in the exercise of the right of private defence and could not be held to have exceeded that right. (ii) Pahlad and another v. King‑Emperor A I R 1924 Oudh

334. In this case also four persons bad come up armed with lathis which they caused injuries to the accused person who in retaliation and in exercise of rights of private defence caused them blows resulting in the death of one of them and it was held that the accused who had been attacked 'had acted in exercise of right of private defence and that they were not guilty of any offence. (iii) Imam Din v. Emperor A I R 1925 Lah.

514. In this case it was held and observed as under:‑ "In a fight between two parties the accused insulted the deceased. The deceased then struck the accused. The accused retaliated with a heavier blow which caused his, opponent's death. It was held that the accused was protected by his right of self‑defence." It was further also laid down:‑ "In the heat of the moment, and while defending oneself from a man armed with a stick it is practically impossible to calculate with accuracy the exact force which one is entitled to employ in self- defence." (iv) Samoo v. The State P L D 1952 Kar. 495, in which case the accused killed the deceased with hatchet in answer to deceased's abuse and two lathi blows but he was given benefit of right of exercise of private defence and acquitted.

41. All the above reported cases clearly support the proposition that if an accused person is attacked by another man armed with a lathi then the accused has the right of private defence to defend his person by causing even the death of his assailant who is so armed with a lathi. In this instant case e also some of the P. Ws. as admitted by some of the prosecution witnesses an particularly Nabi Bux have stated that deceased Daim was armed with lathe and he bad attacked the appellant Khamiso first. This witness also stated that P. W. Misri had a spade which has also been admitted by P. W. Misri in his own evidence. Under these circumstances, thus, it is quite clear that the appellants were quite within their right of exercise of the right o private defence and did not exceed the same by causing the death of the deceased assailant upon them. The law is also laid down by the Supreme: Court on this point further that if the plea of right of exercise of the right of private defence is reasonably possible on the evidence on record then the benefit of it should be given to the accused person,. as held by the Supreme court in the case of Shamshad v. The State (P L D 1963 S C 740),

42. On the identical facts and circumstances as are present in the instant case there are some reported decisions in which it has been held that the accused acted in exercise of right of private defence and, therefore, were not guilty of any offence and these are the following:‑ (1) Khuda Bux v. The State 1972 P Cr. L J 51 which was a case of exercise of the right of private defence on the complainant party diverting water much earlier than their own turn according to wara bandi and altercation between parties leading to fight, one on. complainant side lost his life and two of the appellants received injuries. (ii) Ghulam Rasool v. The State P L D 1970 Lah. 832 wherein it was held that in the murder case based on unlawful assembly plea of private defence can be raised in appeal, if spelt out from prosecution evidence though not sufficiently taken at trial and the accused "in possession of the water,'' on account of their turn and while irrigating their field complainant party trying to divert it to their field before proper time and in their attempt to divert the water supply by other party it was held that the accused were entitled to maintain supply in defence of their property to deal with intruders and td cause injuries and that the accused were entitled to acquittal in the circumstances of the case as they acted in the exercise of the right of private defence.

43. It might be argued that the number of injuries on the prosecution side is much more than the number of injuries caused to the two appellants, therefore, this circumstance would indicate that the aggressor was the appel lant party and not the complainant party. But merely from the fact treat the complainant's side had many injuries on the person of the prosecution witnesses more than those appearing on the side of the appellants would not by itself go to show as to who is the aggressor as this question will depend upon the facts and circumstances of each particular case. I am supported in this view of the matter by the case of Inayatullah and another v. The State (P L D 1966 Lah. 8) wherein it has been held that the mere fact that complainant party suffering greater number of injuries than those suffered by accused was not sufficient to hold accused as aggressor. The prosecution had failed to explain injuries on the person of the accused and it was further held that such omission makes prosecution version, highly doubtful and lends support to accused's plea of self‑defence. This reported case also, it will be seen, helps the appellants' version of the incident of self‑defence and as such I find that the appellants have acted in exercise of the right of private defence even by causing the death of the deceased and that therefore, they cannot b‑ held guilty of any offence. I am also fortified in this view by the case reported as 1971 S C M R

162. The counter report of the appellant Khamiso which was lodged by him at the same police station only 15 minutes after the F. I. R. in this case and has been brought on record as Exh. 40 in which appellant Khamiso has named all the injured eye‑witnesses in this case as their assailants and therefore it also supports the version of the appellants' side putting forward exercise of the right of private defence.

44. In view of all the discussion made above of the evidence of the prosecution in this case I find that the appellants have to be given the benefit of exercise of the right of private defence and acquitted of the charges for which they are convicted and I hold that they have been improperly convict ed by the trial Court.

45. For the foregoing reasons I acquit all the five appellants of all the charges levelled against them and set aside their convictions and sentences. They are on bail and their bail bonds shall stand cancelled. Appeal accepted.