1987 PLP 803 (MLD)

(1) A vertical incised wound 4 " x 1" x brain matter coming out on the left side of head 1" interior to the left ear. (2) One incised wound 1/2" x 1/4" on the left forearm at its upper part. Injury No.l was found dangerous to life as brain matter was coming out of it and injury No. 2 was simple in nature.

6. On the same day, the same doctor examined Riaz Ahmad and Muhammad Shafi PWs. He noted one incised wound 4 " x 1 " on the right side of head of Riaz, brain matter was coming out of the wound which was declared as dangerous to life, caused with sharp-edged weapon. One incised wound 2 " x 3/4" x 1" deep on right fore-arm and one abrasion 2" x 1/6" on upper arm of Muhammad Shafi PW, were noted. Both the injuries caused with sharp-edged weapon were simple in nature, within the duration of 6 hours. On 9-5-1981 the doctor found one lacerated wound 1" x 1/4" on the head of Ahmad Bakhsh PW which was declared simple in nature caused with blunt weapon within the duration of 3 days.

7. Shahru died in the hospital on 14-5-1981. Post-mortem examination on the dead body was performed by Dr. Imtiaz Elahi Paracha (PW 14) who opined that the death occurred due to injury to the brain and intracranial haemorrhage which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was 6/7 days and between death and post-mortem was about 12 to 24 hours.

8. The prosecution examined 14 witnesses at the trial. Of them, Faiz Bakhsh complainant (PW 1), Muhammad Shafi (PW 2), Riaz Ahmad (PW 3), the injured witnesses, and Manzoor (PW 4) narrated about the occurrence.

9. Ghulam Farid accused when examined under section 342 Cr.P.C., put up counter version and raised plea of self-defence. In reply to question No.6 he stated as under:- "Actually the complainant party was aggressor. They were armed with various weapons and attacked upon us in order to take forcible possession of land in question from us and injured all of us in our house. Ashiq Hussain and myself gave injuries to the complainant party in the exercise of our right of self- defence. At the time of occurrence land in question was in my possession." Ashiq Hussain (appellant) and other co-accused adopted the same statement. They examined 4 witnesses in defence, namely, Dr. Muhammad Zubair Chaudhry (DW 1), Dr. Bakhtiar Ahmad (DW 2), Lady Dr. Firdous Ara Mirza (DW 3) and Naib Tehsildar Muhammad Yaqoob (DW 4). Dr. Muhammad Zubair Chaudhry (DW 1) examined Noor alias Sultan, Ashiq Hussain and Abdul Shakoor and Ghulam Farid on 7-5-1981 and found on their persons 3 injuries, 10 injuries, 9 injuries and 6 injuries respectively, all caused with blunt weapon within the duration of 12 hours and had admitted them in surgical ward for treatment.

10. Dr. Bakhtiar Ahmad (DW 2) X-Rayed injuries of Ghulam Farid, Ashiq Hussain and Noor alias Sultan. He found comminuted fracture of radius and ulnar bones and lower ends of left 5th metacarpal bone and proximal phalanx of left ring finger of Ghulam Farid and fracture of left ulnar bone of Noor alias Sultan. Ashiq Hussain's X-Ray showed comminuted fracture of left ulnar bone and left 4th and 5th metacarpal bones and ends of proximal phalanx of left ring and little fingers.

11. Lady Dr. Firdous Ara Mirza (DW 3) observed 12 injuries on the person of Mst. Jannat (acquitted accused), 4 injuries on the person of Mst. Amiran (acquitted accused) and 5 injuries on the person of Mst. Allah Wasai including one grievous hurt on her left fore-arm, all caused with blunt weapons within the duration of 12 hours.

12. Muhammad Yaqoob, Naib Tehsildar (DW 4) stated that application Ex-DL moved by Ghulam Farid (appellant) for correcting entries in Khasra Girdawari for Kharif 80 was entrusted to him by E. A. C.0. , Leiah, on 26-1-1981 for making inquiry on the spot and that he found that Ghulam Farid had cultivated Kharif 80 in Killas No.l, 2, 4/1, 4/2, 5 to 10 in square No.173 as unauthorised cultivator, so he recommended for correction of Khasra Girdawari accordingly vide his report Ex-DM. This file was consigned to record on 18-7-1981 because of the absence of Ghulam Farid (due to his arrest in this case).

13. Learned trial Court on detailed examination of material on record observed that Ghulam Farid (appellant) was in physical possession of the land in dispute at the time of occurrence; that injuries on 7 persons of the accused party suggested that complainant party went to the spot armed with sticks; that the accused party was not aggressor as their womenfolk were also injured; and that Faiz Bakhsh (PW 1) and Manzoor Hussain (PW 4) were not present at the relevant time because they did not receive any injury though they claimed to have remained in thick of the fight. Consequently, learned trial Court acquitted Mst. Jannat and Mst. Amiran who did not injure anybody. Abdul Shakoor and Noor alias Sultan were acquitted because Ahmad Bakhsh PW who allegedly was injured by them did not appear and it was not possible to pick out his actual assailant. As .for Ghulam Farid and Ashiq Hussain (appellants), learned trial Court came to the conclusion that although they "were entitled to exercise their right of self-defence but they have exceeded their right by giving fatal blow to the deceased on his head which was sufficient in ordinary course of nature to cause his death, hence their case falls under section 304 Part-1, PPC" and that since it was a sudden happening, therefore, "each individual (accused) is responsible for his own act and the principle of vicarious liability of all the accused is not applicable". In this view of the matter learned trial Court convicted Ghulam Farid under section 304 PPC and Ashiq Hussain under section 307/324 PPC.

14. It may be stated at the outset that as 'the trial Court took the view that Ghulam Farid was guilty for an offence under section 304 PPC then on the same analogy Ashiq Hussain should have been convicted .under section 308 PPC instead of 307 PPC. However, the question for determination before me is whether the appellants as held by trial Court had exceeded the right of private defence or not?

15. I would agree with the finding of the trial Court that the appellants were in physical possession of the land in dispute and that it was the complainant party which duly armed with 'Sotas' went to the place of occurrence for asserting their right on the disputed land and attacked the appellants, therefore, they were within their right to defend their possession in the exercise of right of private defence of their person and property. But the learned Court in its finding that they exceeded their right of self-defence, appears to ' have overlooked the fact that in this occurrence 7 persons (including three women) were injured on the aside of accused party who suffered 49 injuries including 6 grievous hurt as against 4 persons (including the deceased) were injured on complainant side who suffered 7 injuries in all including one grievous hurt to Riaz Ahmad and one fatal injury to the deceased. In the circumstances, I find that the appellants by no standard could be termed to have exceeded the right, rather they were fully justified in causing death of Shahru (deceased) and grievous hurt to Riaz .Ahmad PW in exercise of their right of private defence of person and property and in doing so they committed no offence. Consequently, I accept the appeal, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith,, if not wanted in any other case. M.Y.H./G-58/L Appeal accepted.