1996 P Cr (PLP)

(2) A stitched lacerated wound 2 c.m. adjoining at lower end of injury No. 1. (3) A stitched lacerated wound 2 c.m. in front of left ear. (4) Swelling 10 c.m. x 8 c.m. on left cheek. According to the post-mortem examination temporal and parietal bones of left side were fractured due to injuries Nos. l and

2. There was a big haemotoma on left side of the brain and clotted blood on right side of heart. Injuries Nos. l and 2 were grievous and according to the witness were sufficient to cause death in the ordinary course of nature. Injuries Nos.3 and 4 were simple. The time between injuries and death was 4 to 7 hours and between death and post-mortem 15 hours and 45 minutes. The carbon copy of the post-mortem examination was Exh.P.F. and the diagram showing place of injury was Exh.P.F./1. He stated that the inquest report Exh.P.G. and injury statement Exh.P.H. were produced before him by the constable. He signed them as token of their production. He proved Ruqa Exh.P.J. through which he had informed the police about the arrival of the injured in the hospital and death of the deceased.

7. The same P.W. also examined Noor Muhammad accused at 2-00 p.m. on 31-10-1984 found following injury on his person:-- (1) A lacerated wound 3-1/2 c.m. x 1 c.m. x bone deep on right side of skull 11 c. m. above right ear. (2) A lacerated wound 3 c.m. x 1 c.m. x bone deep on left side of skull is c.m. above left ear. (3) A lacerated wound 1-1/2 c.m. x 1 c.m. x bone deep on upper part of forehead on its mid near hairy margin. (4) An abrasion 18 c. in. x 2 c. m. in front of upper 2/3 of left thigh. According to his report all the injuries were caused with blunt weapon. Injury No.4 was declared as simple whereas the rest were kept under observation. The duration between injuries and examination was 4 to 6 hours. Exh.P.K. was 111e correct carbon copy of the medico-legal report.

8. Regarding alleged recoveries from the accused prosecution produced Noor Muhammad P.W.5 who stated that while in police custody Maqbool led the police to the residential house and got recovered Dang P.3 which was made into a sealed parcel and secured vide memo. Exh.P.L. which was signed by him and Allah Yar P.W. Shahid Mumtaz led to the residential house of his father and got recovered blood-stained hatchet P.4 which was lying underneath a cot. It was taken into possession, made into a sealed parcel and secured vide memo. Exh.P.M. Zahid Mumtaz led to the recovery of Sota Exh.P.5 from the residential house of his father which was secured vide memo. Exh.P.N. Noor Muhammad led to the recovery of Sota P.6 which was taken into possession vide memo. Exh.P.O. The recovery was effected from the house of his brother Abdul Karim. All the relevant memos were signed by Noor Ahmad. Before proceeding further I would like to observe that none of the places of recovery was in exclusive possession of the accused persons who allegedly led to the recovery of the weapons of offence; the possession being joint with others who were not accused, I disbelieve the evidence of recovery so far as it relates to weapon. Regarding ocular account prosecution produced Shaukat Ali and Beerbal P.M. Shaukat Ali P.W. was injured as stated earlier and was the real son of Muhammad Akram deceased. Beerbal was neither injured nor he had his house in that vicinity. He happened to be in the house of Muhammad Akram per chance. No plausible explanation .of Beerbal and Ahmad Yar coming to the house of Muhammad Akram deceased in the morning on the day of occurrence is available on the file. I disbelieve the presence of Beerbal and Ahmad Yar at the place of occurrence on the fateful time. Needless for me to add that the prosecution had withheld Ahmad Yar P.W. who according to the prosecution story, was also important witness. I feel myself justified in assuming that Ahmad Yar was not produced as the prosecution apprehended that he would not support the prosecution case as narrated by Shaukat Ali and Beerbal P. Ws. Beerbal had identified the dead body of Muhammad Akram deceased at the time of post mortem examination and was also a witness to the recovery memo. of blood stained earth, and the memo. Exh.P.C. regarding recovery of last worn clothes of the deceased.

9. Khadim Hussain, A.S.-I. appeared as P.W.8 and he stated that after recording the statement Exh.P.C. of Shaukat Ali read out the same and after obtaining the signatures of Shaukat Ali as a token of the correctness sent the same to the police station for registration of case. He proceeded with the investigation in the case, prepared the inquest report and injury statement, inspected the spot, got the site plan prepared, secured the last worn clothes of the deceased and blood-stained earth from the place of occurrence and arrested the accused; got recovered P.3, P.4, P.5 and P.6 from the accused and prepared recovery memos. Exhs.P.L., P.M., P.N. P.O. respectively. He also prepared site plans of and places of recovery Exhs.P.Q., P.S. and P.T. respectively, deposited the sealed parcels with the M.H.C. and after completing the investigation challaned the accused.

10. After examining 8 P.Ws. and A.D.A. gave up Ahmad Yar P.W. and produced Exhs.P.R. and P.W. the reports of the Chemical Examiner and of the Serologist respectively. After the close of the case of the prosecution the accused were examined under section 342, Cr.P.C. Shahid Mumtaz in his statement stated that Zahid Mumtaz and Maqbool Ahmad were not present at the spot. He denied recoveries of hatchet from his possession. The recovery of Sota was also denied by Maqbool Ahmad accused. Shahid Mumtaz came up with the plea that Noor Muhammad was the tenant of all his co-accused and the place of occurrence was in possession of the accused who used to tether their cattle there. On the day of occurrence Noor Muhammad was arranging the bricks for the construction of Kotha when Muhammad Akram deceased and Shaukat Ali P.Ws. objected as they wanted to occupy the said land which was out of the Shamlat land. Noor Muhammad accused continued arranging the bricks which were being brought by Allah Bakhsh, donkey man. As Noor Muhammad refused to stop putting bricks at the spot, Muhammad Akram deceased and Shaukat Ali P.W. got annoyed and attacked Noor Muhammad causing injuries in order to take over possession of the piece of Shamlat land which was in possession of the accused. In order to save Noor Muhammad from Muhammad Akram and Shaukat, Allah Bakhsh, donkey man, inflicted Sota blows to Muhammad Akram deceased acid Shaukat Ali. Beerbal and Ahmad Yar we're not present at the time of occurrence. The accused had also offered to examine themselves on oath under section 340(2), Cr.P.C. and they made similar statements as made by them without oath under section 342, Cr.P.C. In defence no witness was produced but copies of register Haqdaran-e-Zamin Exhs.D.B. and D.C. and a copy of Wajib-ul-Urz Exh.D.D: were produced by Maqbool Ahmad accused.

11. I have heard the learned counsel for the appellant and the learned counsel appearing on behalf of the State. I have been taken through the record of the case and have given my anxious consideration to the facts involved.

12. The learned counsel appearing on behalf of the State has not been able to make out a case of commission of offence under 302/307/34, P.P.C. The fact remains that the prosecution case itself was clear to the effect that it was an occurrence which took place at the spur of moment and was initiated by Muhammad Akram deceased who stopped Noor Muhammad from arranging the bricks in the Shamlat land which was in possession of the accused and had mounted assault on Noor Muhammad. The P.Ws. also admitted that Noor Muhammad received injuries at the hands of Shaukat Ali P.W. at the time of occurrence but after that injuries were caused to Muhammad Akram deceased and Shaukat Ali P.W. Surprisingly, Shaukat Ali and Beerbal want this Court to believe that Shaukat Ali snatched Dang from the hands of Zahid Mumtaz accused and gave blows to Noor Muhammad accused who was still armed with Dang and that too after receipt of injuries on his right mid finger and right index finger as given in Exh.P.F. I disbelieve this part of the story of the prosecution as well.

13. There is yet another important aspect of the case which has been duly stressed upon by the learned counsel for the appellant. According to the learned counsel for the appellant, deceased Shaukat Ali P.W. and Noor Muhammad injured appellant were present at the hospital at the same time and were examined at 2-00 p.m. Noor Muhammad was placed under guard of a police constable and the Investigating Officer intentionally avoided to obtain the final opinion regarding injuries on the person of Noor Muhammad which were earlier kept under observation. This fact alone excludes any premeditation on the part of either party and it is to be seen now whether the version of the prosecution witnesses as coming out from the evidence of Shaukat Ali P.W.6 and Beerbal P.W.7 was correct in its entirety or the version of the accused had some probability regarding occurrence having taken place in the manner narrated by the accused.

14. I need not dilate on the details of the evidence which led the trial Court and rightly so that it was not a case which was the result of common intention and that of the commission of murder under section 302, P.P.C. The, fact that Shaukat Ali P.W.6 was the son of the deceased and P.W.7 Beerbal the real brother of the deceased cannot be lost sight of. Ahmad Yar another alleged eye witness of the occurrence has not been produced in evidence. None of the two witnesses of the occurrence are independent and they decidedly are interested in the conviction of the accused-appellants and I have a reason to agree with the learned counsel for the appellants that Ahmad Yar was not produced in the witness-box by the prosecution as he was not prepared to support the prosecution story. Beerbal, Ahmad Yar admittedly were not the residents of Basti Bodi Shah. They were residents of Mauza Noorpur about one mile away from the place of occurrence. As observed earlier there was no cogent reason for Beerbal and Ahmad Yar to be present at the house of Muhammad Akram deceased at the fateful time. The trial Court had also observed that the presence of Beerbal P.W.7 and Ahmad Yar P.W. at the house of Muhammad Akram at the time of occurrence was not beyond doubt. I have no reason to disagree.

15. None of the residents of Basti Bodi Shah have come forward to support the prosecution case. It is borne out from Exhs.D.B., D.C. and Exh.D.D. that the disputed property was Shamlat Deh and the version Shahid Mumtaz that .he was in possession of that piece of land from where Muhammad Akram deceased was throwing away the bricks is supported by Shaukat Ali P.W.6 when he states that since a night before the occurrence the accused party had started tethering the cattle at the place of occurrence. This sufficiently proves that the place of, occurrence was, at the time of occurrence, in possession, of the accused party. Allah Bakhsh donkey man was bringing bricks to the spot for construction of Kotha and Noor Muhammad appellant was arranging the bricks. Muhammad Akram deceased started interfering and throwing away the bricks and on objection raised by Noor Muhammad appellant he started giving a beating to Noor Muhammad whose injuries have been proved by P. W.4. Nothing has been brought on record that injuries on the person of Noor Muhammad were fabricated in order to make out a defence plea.

16. In view of what has been stated above and having come to the conclusion that the disputed place was in possession of the accused party at the time of occurrence, bricks were being brought to that place by Allah Bakhsh donkey man, and Noor Muhammad appellant was arranging the bricks and in that peaceful process Muhammad Akram deceased interfered with only one evident intention i.e. to take over forcible possession of the site which was admittedly in possession, of the accused party, may be since a night before the occurrence. Noor Muhammad one of the appellants was given blows at vital parts and a right of private defence of person and property had accrued to the accused party in view of the above said circumstances. 3 of the 4 injuries on the person of Noor Muhammad were on head and one of the injury was in the measurement of 18 c.m. x 2 c.m. in front of upper part of 2/3 of left thigh. The appellants even if call be assumed to be present at that time, had developed apprehension of causing of death or of grievous hurt to Noor Muhammad and of their dispossession from the property which was admitted by a P.W. to be in their possession.

17. Whether the appellants committed offence or not or what offence if committed is to be seen in the circumstances of the case. Once the Court comes to the conclusion that there existed an apprehension in the minds of the appellants of grievous hurt or death of Noor Muhammad and of their being illegally dispossessed from the disputed site, the right of self-defence of person and property had commenced. The accused were the Judge of their own apprehension and the same cannot be measured in golden scales. Reliance may be placed on Ghulam Murtaza v. The State 1993 PCr.LJ 1645, Muhammad Akram v. The State 1993 PCr.LJ 1333, Jamal Din's case 1971 SCMR 800, Liaqat v. The State 1994 SCMR 1161 and Shamir alias Shamla v. The State PLD 1958 SC 242 and I am of the view that the appellants had not exceeded the right of self-defence of the person and property in giving two grievous and two simple blows to Muhammad Akram deceased and three injuries, two of them lacerated wounds and third being an abrasion to the person of Shaukat Ali. It is C noteworthy that Shahid Mumtaz appellant who was alleged armed with a hatchet had not used blade side of the hatchet and was content with using of the blunt side thereof goes a longer way to prove that none had the intention to exceed the right of self-defence or to cause the death of Muhammad Akram.

18. The prosecution has failed to prove its case beyond reasonable shadow of doubt whereas the plea of exercise of right of self-defence of person and property has been supported by the evidence of the prosecution itself and in the circumstances of the case I extend the benefit of doubt to the appellants and acquit them of the charges. Conviction of the appellants is set aside. The appeal is accepted.

19. The appellants are on bail and are present in Court. They are discharged of the ball bonds. N.H.Q./S-20/L Appeal accepted.