P L D 1976 Lahore 506 (PLP)

Mutalli son of Shahu, Muhammad Ali son of Shahabal, Ahmed, Shera and Mathela, sons of Muhammad Ali, Karmalli and Wali sons of Shahu and Mirza son of Saru, were tried by the learned Additional Sessions Judge, Gujranwala, under sections 148, 302 and 323 read with section 149 of the Pakistan Penal Code for having formed themselves into an unlawful assembly with the common object of committing the murder of Bati deceased and causing hurt to Muhammad Sadiq and Muhammad Hussain P. Ws. ani in the prosecution of that common object of the said unlawful assembly to have actually, on 3rd December 1972 at chhahwela, in the area of Kot Nizam, committed the murder of Bati deceased and caused simple injuries to Muhammad Sadiq and Muhammad Hussain P. Ws. By judgment, dated 19th December 1974, Karamalli. Wali and Mirza were acquitted while Mutalli, Muhammad Ali, Ahmad, Shera and Mathela were convicted under sections 148 and 304 (Part 1) read with section 149 of the Pakistan Penal Code. Under section 148, P. P. C. they were sentenced to three years' R. 1. and fine of Rs. 500 each or in default in the payment thereof to R. 1. for six months each and under section 304 (Part 1)/149 of the Pakistan Penal Code to R. 1. for ten years and a fine of Rs. 1,000 each or in default in the payment thereof to R. 1. for one year each with the direction that both the sentences shall run concurrently. The fine, if realised, was ordered to be paid to the heirs of the deceased as compensation. The convicts have appealed.

2. The brief facts of the prosecution case are that about 1 J years before the occurrence Muhammad Sharif complainant and Isa (not produced) purchased eight acres of land from Muhammad Ali appellant for a sum of Rs. 15,000 and a mutation was sanctioned in their name. At the time of sale this land was in the cultivating possession of Amir P. W. who had obtained it on lease from Muhammad Ali appellant. Out of this land, Muhammad Husain P. W. brother of Sharif complainant, obtained Khasra No. 190 measuring 6 kanals 9 marlas from Amir P. W. as a sub‑tenant and prepared it for cultivation. The prosecution story goes that on 3rd December 1972 at about chhahwela all the appellants came to that field and started ploughing it. Muhammad Hussain P. W. asked them not to plough the field but they did not pay any heed and a quarrel ensued between the parties. Mathela appellant was armed with a hatchet and the other accused persons had dangs with which they started beating Muhammad Husain P. W. Bati deceased who was the servant of Muhammad Husain P. W., tried to help him but the accused persons caused him injuries as a result of which be died at the spot. During the occurrence Sadiq P. W. was also injured. The occurrence was also witnessed by Isa, Amir Khan and Mst. Dualan P. Ws. After the occurrence, the appellants and the acquitted accused went away with their weapons. On the same day at 5‑15 p.m. Muhammad Sharif complainant went: to Police Station Pindi Bhattian and reported the occurrence to Muhammad Akhtar S. H. O. vide F.

1. R. Exh. P. F.

3. After recording the F. I. R. the S. H. O. reached the spot. He prepared the inquest report (Exh P G.) and the injury‑statement. (Exh. P. G./1) of the dead body of Bati deceased and sent it to the mortuary for post‑mortem examination. He took some blood‑stained earth into his, possession from the spot and made it into a sealed parcel vide memo. Exh. P. J, He secured blood‑stained kurta (Exh. P. 4) of Muhammad Husain P. W. and blood‑stained shirt (Exb. P. 5) of Muhammad Sadiq P. W. vide memos. Exh. P. K. and Exh. P. L., respectively. Mutalli, Muhammad Ali Mathela and Shera accused were arrested on 4th December 1972 and Karamalli, Wali and Mirza on 7th December 1972. The S. H. O. prepared the injury statements Exhs. P. S., P. T. and P. U. of Mutalli, Mathela and Shera, respectively, and got them medically examined. He also prepared the injury statements of Muhammad Husain and Muhammad Sadiq P. Ws. and sent. them for medical examination. Mutalli, Muhammad Ali, Ahmad and Shera accused produced dangs, Exhs. P. 7, P. 8, P. 6 and P. 9, before the S. H. O. who took them into his possession vide memos. Exhs. P. N., P. O., P. M. and P: Q., respectively. Mathela appellant produced hatchet (Exh. P. 10) which was taken , into possession We Memo. Exh. P. R. After the investigation, the appellants and the acquitted accused were challaned.

4. On 4‑12‑1972 at 12‑30 p.m. Dr. Muhammad Sadiq, Incharge, Civil. Hospital, Hafizabad, conducted the autopsy on the dead body of Bati deceased and found the following injuries on it .‑ (1) Contusion 8"x 1 " on right side of chest at the level of right nipple transeversely placed reaching to the mid of sternum at the right nipple level. (2) Contused wound on right side of head 1 "x 1/3 x bone deep from the midline of head and 42" above right ear (3) Contused wound 1 " x 1/3 " x bone deep on left side of head, " on left side of midline of head and 4 " above left ear. In the opinion of the doctor, death was due to injuries to the head and the chest which caused extensive haemorrhage and shock. All the injuries. were ante‑mortem caused by blunt weapons. The injuries were grievous and sufficient to cause death in the ordinary course of nature. On the same day at 11‑00 a.m. Dr. Ghulam Haidar Shah, Medical Officer,. Civil Hospital, Pindi Bbattian, examined Muhammad Sadiq P. W. and found the following injuries on his person :‑ (1) Lacerated wound 1" x 1/4" x 1/5"on the left side of frontal region of head 1 from hairy line of the forehead. (2) A swelling 2' x 1/2" on the outer aspect of the right elbow joint. Both the injuries were simple in nature, caused by a blunt weapon. On the same day the same doctor examined Muhammad Husain P. W and found two lacerated wounds, six contusions and two abrasions on his. person. All the injuries were simple in nature. On the same day the same doctor examined Shera appellant and found an incised wound " x 1/4" on the middle of left side of back. There was no, corresponding cut on the shirt. The injury was simple caused by a sharp‑ edged vi eapoi. On the same day the same doctor examined Mathela appellant and found a contused wound 1 " x 1/2'' x 1/4" scalp deep on the right parietal region of the, head and a contusion on the top of his right shoulder. The injuries were simple in nature. On the same day the same doctor examined Mutalli appellant and found a swelling 2 " x 2" on the back of his left hand. The injury was simple, caused by a blunt weapon.

5. In support of its case the prosecution examined three eye‑witnesses, namely, Muhammad Husain. Muhammad Sadiq and Mst. Dualan. The prosecution also relied on the motive and the recovery of weapons at the instance of the accused persons.

6. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Mutalli appellant when asked to explain his injuries, stated that he was never injured. Shera and Mathela appellants when asked to explain their injuries, stated that on the day of occurrence they were ploughing their land which was in their possession. Bati deceased, Muhammad Husain and Muhammad Sadiq P. Ws. came there in order to take forcible possession and caused them injuries. Karmalli son of Salehi appeared as a D. W. and stated that the land in which the occurrence took place was with him for about five or six years and a month before the occurrence he had delivered its possession to Muhammad Ali appellant from whom he had taken it on lease.

7. After considering the prosecution evidence the learned trial Judge acquitted Karmalli, Wali and Mirza accused on the benefit of doubt. He came to the conclusion that the complainant party had gone to the field which was being ploughed by the accused party in order to take its possession but the appellants while defending their possession caused them more harm than it was necessary to inflict and exceeded the right of private defence. He, therefore, found them guilty under sections 148 and 304 (Part 1)/149 of the Pakistan Penal Code.

8. The learned counsel for the appellants contended that field No. 190 in which the occurrence took place, was in the exclusive possession of the appellants and the complainant party were the aggressors as they launched attack on Shera and Mathela appellants who were ploughing that field, in order to take its forcible possession. He further argued that Bati deceased, Muhammad Husain and Muhammad Sadiq P. Ws. were armed with formid able weapons like bailchas and dangs, therefore, Shera and Mathela appellants bad a reasonable apprehension that death or at least grievous hurt would be caused to them and for that reason they had a complete right of self‑defence and were entitled to acquittal.

9. There is no dispute about the time and place of occurrence. There are two versions, one given by the prosecution and the other by the defence about the same occurrence. The case of the prosecution is that eight acres of land, including Kasra No. 190 measuring 6 kanals and 9 rnarlas in which this occurrence took place was purchased by the complainant and Isa P. W. (not produced) from Muhammad Ali appellant for a sum of Rs. 15,000 about lJ years prior to the occurrence, and this land was in the cultivating possession of Amir P. W. who had obtained it from Muhammad Ali appellant on lease. Out of this land, Muhammad Husain P. W. obtained Khasra No. 190 from Amir as a sub‑lessee and he had prepared it for cultivation but on the day of occurrence the accused party started ploughing it forcibly. On the other, the accused claim that they were in actual physical possession of Khasra No. 190 and the complainant party had attacked them in order to take its possession forcibly. In view of the above background, the main question which crops up for decision is as to who was in actual physical possession of that field. Since both the parties received injuries during the same incident the next question would be as to who was the aggressor. In cross‑examina tion Amir (P. W. 7) stated : "I had been regularly paying the lease money to Muhammad Ali accused. It is correct that I had given this land bearing Kbasra No. 190 to Karamalli son of Saleh Muhammad on lease." Arroor Masih Patwari (P. W. 6) stated : "It is correct that Khasra ,No. 190 is in the ownership of Muhammad Ali accused. This Khasra Number is in the cultiva tion of Karamalli son of Saleh Muhammad. The area of this Khasra Number is 6 kanals 9 marlos". The mutation of sale in favour of Isa and Sharif com plainant has not been produced. However, in the copies of the Khasra Uirdawari (Exh. P. C.) and Register Haqdaran (Exh. P. D.) there is a reference to this mutation in red ink showing that the land was sold by Muhammad Ali to Isa son of Umar and Sharif (complainant) son of Hayat in equal shares through Mutation No. 244 sanctioned on 9th September 1971. The entries of the Khasra Girdawari show Amir P. W. son of Muhammad Khan as a tenant under Muhammad Ali appellant and Karamalli. son of Salehi as a sub‑tenant. There is no evidence on the record to show that the complainant party was in the physical possession of Khasra No. 190 measuring 6 kanals and 9 marlas. On the other hand, there is abundance of evidence oil the file to show that at the relevant time the land was in posses sion of the accused party. Sharif (P. W. 9) admitted that it was for the first time on the day of occurrence that he, Bati deceased, Muhammad Sadiq and Muhammad Husain P. W. had gone to, take possession of this field from Amir P. W. He further admitted it as crrect that when they arrived at the spot the accused were already ploughing the field with three ploughs. It is also in his statement that Karamalli (fB. W. 1) had cultivated that field. Muhammad Husain P. W. also admitted that the accused were already ploughing the field when they reached there. In his statement before the Committing Magistrate with which he was duly confronted he had stated that the accused had already ploughed 2 kanals of land when they reached there. He furtber admitted that when they saw the accused ploughing the field they immediately stopped them from doing so. The position that emerges from the above evidence is that the complainant party was not in possession of the field in question and before the occurrence Karamalli (D. W. 1) was in physical possession of this field. This fact is also borne out by the Khasra Girdawari. Karamalli D: W. stated that about a month before the occurrence he had delivered lbe possession of this field to Muhammad Ali accused. He further stated that he had taken this field on lease from Muhammad Ali but this does not appear to be the correct position because Amir P. W. stated that he had given this field to Karamalii D. W. and the documents (Exhs. P. C. and P. D.) also show that he was a sub‑tenant. The statement of D. W. 1 that he had delivered possession of this field to Muhammad Ali about one month before the occurrence goes unchallenged on the record. It is, therefore, amply established that Muhammad Ali appellant had taken possession of the field from Karamalli D. W. about a month before the occurrence and was in its continuous possession till the day of occurrence. This being the position, the argument of the learned counsel for the appellants, that the complainant party bad the motive to attack, carries much force.

10. After going through the evidence of the eye‑witnesses I feel that they have twisted the facts and tried to suppress their own part in the occurrence with a view to show that the accused party were the aggressors. Sbera, Matbela and Mutalli appellants had injuries on their persons. Shera and Mathela appellants stated that they had received the injuries during the occurrence at the hands of Bati deceased, Muhammad Husain and Muhammad Sadiq P. Ws. Muhammad Sharif complainant stated that' none of the accused was injured throughout the occurrence. Muhammad Husain (P. W. 10) stated that he did not know whether any of the accused was injured during the occurrence as he had fallen down after receiving We injuries. Muhammad Sadiq P. W. stated that Bati deceased might have injured any of the accused in self‑defence while Mst. Daulan (P. W. 12) who was not named as an eye‑witness in the F. I. R., stated that Bati deceased did not injure any of the accused with his bailcha. There is abundance of evidence to show that Bati deceased was armed with a bailcha. Muhammad Hussain (P. W. 10), Muhammad Sadiq (P W. 11) and Mst. Uaulan (P. W. 12) admitted that Bati deceased had a bailcha in his hand. Muhammad Husain P. W. in his statement before the Committing Magistrate with which he was duly confronted, had stated that Bati deceased had injured Mathe , Shera and Mutalli accused with his bailcha. The above evidence clearly . supports the plea of the appellants that they were ploughing their field when the deceased and the injured P. Ws. came there variously armed and attacked them in order to take forcible possession of the field. In view of this evidence, the learned State Counsel frankly conceded that the appellants had the rigbt of self‑defence but he stoutly argued that they received only simple injuries and had no apprehension"' of grievous hurt or death at the hands of the complainant party, therefore, by causing the death of Bati deceased they bad exceeded the right of private defence. I do not find any substance in this argument because section 100 of the Pakistan Penal Code, does not lay down that grievous hurt must be actually caused by the; assailant before the right of private defence is exercised. All that ti~el section requires is that the person claiming the right of private defence must, be under a bona fide apprehension or fear that death or grievous hurt would otherwise be the consequence of the assault on him if he does not defend himself. Therefore, when the appellants, on being attacked by Bati and his companions armed with bailcha and lathis, killed Bati, they did not exceed the right of private defence because they had a reasonable apprehension that at least grievous hurt with deadly weapons would be casued to them.

11. For all the ~ foregoing reasons, I accept this appeal, set aside the conviction and sentence of the appellants and acquit them of the charges against them. They shall be set at liberty forthwith if not required to be detained in any other case. S. Q. Appeal accepted.