1982 P Cr (PLP)

(1) Abrasion x right side of upper lip with swelling 1" x . (2) Abrasion on back of left forearm 5" x . (3) Abrasion 3" x 1 on outer aspect of right thigh. (4) Abrasion 4" x 1 on the right shoulder. (5). Abrasion 3" X 1 on the right scapula. Ghulam Hussain: (1) Lacerated wound 1 x with swelling 2" x 2" on the right parietal region. (2) Contusion reddish right eye with swelling 2" x 2" conjunctive of right eye is deeply injected. (3) Abrasion 1 x on the right shoulder. Their injuries were simple in nature caused by blunt weapon.

4. P. W. 10 Abdul Majid, S. I. arrested Tahir Hussain, Zahid Hussain and Abid Hussain on 14th July, 1979. Tabir produced before him trangli (P. 1) which was taken into possession vide Memo. Exh. P. D. Zahid produced Parani (P. 2) which was also taken into posgession vide Memo. Exh. P. E. These recoveries were attested by P. W. 2 Allah Ditta and Abdul Majid (given up as unnecessary). Mst. Rashidan was also arrested by him on 31st July, 1975. Muhammad Ashraf who was employed in the Army, was subsequently arrested. After completing the investigation the accused were sent up for trial.

5. At the trial all accused denied guilt. Muhammad Ashraf appellant took up the plea of alibi. Explaining the case against him, he made the following statement :-- "I am head of the family and have been falsely implicated to prevent me from purusing the defence of Tahir and Zahid co-accused. At the time of occurrence I was neither present in the village nor participated in the occurrence. I was in my Regiment 195 Fid. Artillery Sialkot Cantt : wherein I am Lance Naik No. 1296996." He further added that the complainant party had foisted the case against him in order to deprive him and his brothers of the land bearing Khasra No. 1595 of which their grandfather Ghulam Mustafa was the mortgagee in possession since 1973, In support of his plea he produced D. W. 1 Subedar Major Barkhurdar, 105 Field Regt., Artillery, Sialkot Cantt. He was also Assistant Security Officer of the Regiment. This witness deposed that on 28th June, 1979 the appellant was in his Unit throughout that day. He produced certificate (Exh. D. C) in support of his statement. This certificate is based on the attendance register which was also produced before the trial Court. D. W. 2 Lance Havaldar, Muhammad Amir, brought Quarter Guard Mounting Relief and Inspection Book maintained in the Unit, where the appellant was employed. This witness was a Guard Commander in his Unit on 28th June, 1979. Accor ding to him, Ashraf remained on duty with him from 6 a. m. on 28th June, 1979 to 6 a. m. on 26th June, 1979. He also produced a copy of the entry dated 28th June, 1979, Exh. D. D. from the register. D. W. 3 Subedar Muhammad Hanif supported the statement of D. W.

2. This witness had signed the remarks column of the register. D. W. 4 Lance Havaldar, Mushtaq Ahmad, a detachment Commander supported the appellant's plea of alibi. He said that Muhammad Ashraf accused was present in the unit throughout on 28th June, 1979. D. W. 5 Muhammad Rafiq, NK/CLK, 105 Field Regt., Arty, Sialkot Cantt., brought the register of annual leave, in support of the fact that Muhammad Asbraf was not on leave on 28th June, 1979, according to the entries from 3rd May, 1979 to 1st June, 1979. Exh. D. E. is a photostat copy of the record of annual leave of the accused. Exh. D. F. is the photostat copy of the relavant entry of the casual leave of the accused. Exhibit D. G. is the photostat copy .of the short leave account. D. W. 6 Zakar Hussain Shah, a clerk in the complaint office of S. P. Sialkot, produced a complaint register to prove enmity of Muhammad Ashraf son of Muhammad Nawaz, appellant. According to this witness on 22nd July, 1978 there was an entry at serial No. 424 of the complaint register of 1978 about a complaint made by Muhammad Ashraf appellant against Sardar son of unknown, Ashraf, Muhammad Anwar and others regarding a dispute in which he had been given a beating. The application was sent to Police Station Philaura for action, but was never received back from the police station.

6. The trial Court came to the conclusion that Khasra No. 1585 was in possession of Ghulam Mustafa, mortgagee, grandfather of the accused. It found that the accused had a right of private defence, therefore acquitted the three brothers of the appellant and their mother. But in the case of the appellant, after disbelieving which plea of alibi, it came to the conclusion that he had exceeded the right of self-defence.

7. Learned counsel for the appellant contended that in the first instance, the plea of. alibi had been brushed aside by the trial Court on flimsy grounds because it had come to the conclusion that the plea was not put before the Police at the first opportunity whereas, under cross -examination, the Investigating Officer admitted that one Jafar, S. I. had also investigated this case and the plea, of alibi of Ashraf was put before him. Said Jafar was given up by the prosecution as unnecessary. However, the appellant did not care to produce him in defence. Although the plea of alibi was put at the first opportunity during investigation, yet the witnesses who were examined at the trial in defence should have been produced by the appellant before the Investigating Officer at the proper time. It is noteworthy that in his cross-examination, Abdul Majid, Investigating officer, admitted that the plea of alibi was supported by the persons from the village. This obviously meant that none of the Army Personnel who worked with the appellant, were named before the Investi gating Officer. This inference is further supported by the statements of the defence witnesses who have not said that they also appeared during investigation of this case. On the contrary it is in their evidence that they appeared for the first time in defence of the accused in Court. It may be mentioned here that at a belated stage photostat copies of the documents were relied upon in support of the plea of alibi. These could have been produced during the investigation of the case. Higher officers of the appellant have not come forward to support the plea of alibi. However, in my opinion, the question of alibi, may not be very material in this case because admittedly the field from where Abid Hussain was cutting grass was in the possession of the accused. The young boy, Abid Hussain, was said to have been beaten by the complainant party because the complainant party claimed possession of the same piece of land. It is noteworthy that the prosecution has not placed any document to support the case of the prosecution witnesses of their right of possession over the land where Abid was cutting grass. On the contrary P. W. 5 Arif Hussain Patwari Halqa Charr Bajwa, under cross-examination, admitted that the entries in the revenue record about the possession of Murad were made in November, 1979, i. e. five months after the occurrence in this case. It appears that an attempt was made later to make believe the possession of the complain ant party. I have no reason to disagree with the finding of the trial Court in this regard.

8. The main question for determination in this case would be whether the appellant had exceeded the right of self-defence. Although the appellant has not admitted his presence at the spot, but it appears that he was there. It is conceded that the accused had the right of defence of property. As to the question whether the appellant exceeded the right in attacking Ghulam Rasool on the head with a Phat, in this context it may be mentioned that the nature of the weapon in the hand of each accused indicated that the incident was unpremeditated. The fact that the Investigating Officer had taken into possession some fodder, a chappal and a sickle of Abid from the spot, indicated that the boy was cutting fodder and it is the prosecution's own case that Murad Ali stopped him from doing so, upon which he started crying which attracted the appellant and others. Had his crying been as simple as that, then in all probability, the occasion for the accused to have picked up whatever came into their hands, would not have arisen. It is obvious that it was not only the defence of property, but also of the boy, who had cut fodder from his; own field which the complainant party claimed as theirs, but they had failed to prove it. It is also noteworthy that the prosecution has exaggerated its version to a great extent. In the F. I. R. There is no mention of the second injury on the head of Ghulam Rasool deceased attributed to Tahir. Since in the medical evidence there were two injuries on the head of the deceased, therefore, to bring their evidence in line with the medical evidence, the A prosecution witnesses have exaggerated and departed from what had been said in the F. I. R. P. W. Murad in his examination-in-chief also toed the line of the other witnesses by saying that the second injury on the head of the deceased was inflicted by Tahir, but when confronted with the F. I. R. which was made before the Police he denied his statement and said that Tahir had inflicted no injury on the head. Obviously, he was taking a false position. It is also noteworthy that Mst. Rashidan, mother of the accused, was said to have thrown a stone at the complainant party hitting Ghulam Hussain on his face, but there is no mention of this injury in the F. I. R. Since the doctor found an injury on the face of Ghulam Hussain, therefore, it appears, this role was attributed to Ms t. Rashidan.

9. Keeping in view the conflict in the F. I. R. and the medical evidence, which subsequently the witnesses tried to overcome at the trial, coupled with the fact that-some injuries were attributed to those who, in fact, did not take part at all in the occurrence and were even otherwise unarmed, I have come to the conclusion that it is not possible to determine whether the fatal injury was inflicted by Muhammad Ashraf appellant or any one of his companions. It is noteworthy that in the F. I. R. the first injury given to the deceased was attributed to Muhammad Ashraf. It is not the prosecution case that after receiving the first head injury he fell. However, since the right of private defence existed and there was resistance from the complainant side, who claimed possession of the land, therefore, under these circumstances, simply because there was no injury to the accused, would not mean that the accused had exceeded the right of self defence. I give the benefit of doubt to the appellant' accept the appeal, set aside the conviction and sentence and acquit him. Appeal allowed.