P L D 1971 Supreme Court 720 (PLP)

Iftikharul Haq Khan, Advocate Supreme Court instructed by Maqbool Ahmad, Advocate-on-Record for Ijaz Ali, Advocate-on Record for the State. Dates of hearing : 10th and 11th June 1971. SAJJAD AHMAD, J.-Ahmad, Rahman, Sardar and Yara, the four appellants herein, were tried along with three others, namely, Amir, Dadu and Majhi, for offences under sections 148, 302 and 307 read with section 149, P. P. C. for having formed an unlawful assembly and committed armed rioting, and for having In prosecution of the common object of the unlawful assembly, caused the death of Sohna, and for attempting to kill his brother, Mahla, P. W. The trial Judge (Additional Sessions Judge, Lyallpur), acquitted Dadu and Majhi, but convicted the rest of the accused under sections 148, 304, Part 1, read with section 149 as well as under section 308/ 149, P. P. C. They were sentenced to various terms of imprisonment separately on each of the charges, the highest being the sentence of transportation for life for the offence under section 304, Part 1/149, P. P. C. in respect of the murder of Solhna, deceased. The convicts preferred an appeal to the High Court, which resulted is the acquittal of Amir on all the charges, and in the acquittal of the other appellants of the charge under section 148, P. P. C. Their convictions under section 308/149, P. r. C. were altered to under section 308/34, P. P. C. without any interference in the sentences, as awarded to them by the trial Judge. The defence made at the trial was that the complainant party had attacked the accused in their houses, which were constructed on a part of the land comprised in Khasra Nos. 369 and 370, of which the complainants wanted to have forcible possession. It was claimed that the accused had acted in the exercise of their right of private defence in defending their lawful possession of these lauds. The trial Judge discounted the defence version on the view, as supported by the revenue entries, that Khasra No. 369 where the occurrence had taken place, was in the cultivating possession of the complainant party. According to the learned trial Judge, what app:ars to have happened was that the deceased and Mahla, P. W., came for plougarug in the fields comprised in khasra Nos. 369 and 370, when the accused party, whose houses were close to the spot saw them, and in order to prevent them from ploughing the fields, they carne there armed, and asked the complainant party not to plough the fields. On the refusal of the complainant party, hot words were exchanged between them. The accused then attacked the complainants and belaboured them with their respective weapons. The deceased suffered as many as 8 injuries on different parts of his body caused by blunt weapons. The injury which proved fatal was a contusion 4" x 3/4" on the left side of chest above and outer to the nipple, which fractured fourth, fifth and sixth ribs of the deceased, and led to the cintusion of the lung and heart underneath. The doctor opined that this injury alone was dangerous while the rest were simple. Mahla, P. W., was also beaten mercilessly and received as many as 23 injuries, including 2 incised wounds, one on the right side of the scalp, which was a gaping wound, and the second bone-deep on the right fore. finger. In determining the offence of the accused, the learned trial Judge observed as follows :- "In my opinion, the accused party had no intention to commit the murder. They wanted simply to stop the com plainant party from ploughing the fields which they thought to be their property.. Had it been a fact that the accused had any intention to murder the complainant party, they could have easily done away with the life of Mahla, p. W., who was at their mercy at that time. The act of the accused is an aggravated one, because they had given numerous blows to the deceased and to Mahla, P. W., and from this act of theirs I am of the opinion that they must have known the result of their acts." On this analysis of the case by the trial Judge, an argument was addressed in the High Court by the learned counsel for the convicts that their offence fell under Part 11 of section 304, P P.C. and not under Part I, as found by the trial Judge. There was considerable force in this argument, because if, as held by the trial Judge, the accused did not intend to murder the deceased, nor did they intend to cause such bodily injury to him which was likely or sufficient in the ordinary course to cause death, but they caused the injury with the knowledge that it was likely to cause death, they could have been appropriately convicted under Part II of section 304, P. P. C. The learned Single Judge in the High Court has taken the view that "the trial Judge had rightlv recorded the conviction of the appellants under Part I of section 304, P. P. C. as the appellants must be clearly burdened with the intention of causing such bodily injury as was likely to cause death, although they did not have the intention of causing the death. The appellants were armed with deadly weapons like hatchets and dangs, which they had used effectively and extensively against their victims. There was thus hardly any room for doubt that the appellants had acted deliberately and mercilessly and had the intention of causing such bodily injury to him as was likely to cause his death". If the intention of the accused was to cause such bodily injury to the deceased as was likely to cause his death, or which was sufficient in the ordinary course of nature to cause death, the case obviously was one of murder falling under section 302, P. P. C. being covered by the definition of murder as contained A fn section 300 Secondly and Thirdly of P.P.C., and the conviction could only have been made under section 302, P. P. C, and not under secti6n 304, which is attracted if the offence is one of culpable homicide not amounting to murder. A case is covered by Part I of section 304, P. P. C. if the offence which is otherwise murder is reduced to culpable homicide not amounting to murder by reason of being covered by any of the exceptions to section 300, P. P. C. Part II of section 304, P. P. C. applies if the fatal injury inflicted on the deceased is caused to him without any Intention on the part of the accused to cause death, or such bodily injury as is likely to cause death, but about which the accused can be burdened with the knowledge that it is likely to cause his death. According to the learned Single Judge of the High Court, the accused party was in settled possession of the land over which the fight has occurred, and while defending their possession of the same, the accused had, by causing the death of the deceased, exceeded their right of self-defence. On that consideration, their offence, which was one of murder for causing the death of Sohna, stands reduced to culpable homicide not amounting to murder by reason of Exception 2 to section 300, P. P. C., and falls under section 304, Part I, P. P. C. Leave was granted by this Court to consider whether on the view adopted in the High Court that the right of private defence was exceeded in this case by the accused persons, the principle of joint liability was attracted to make all of them liable for the single fatal injury caused to the deceased, or whether the person who actually caused that fatal injury could alone be held responsible for the excess in the exercise of his right of self defence. The exercise of the right of self-defence of body or property is subject primarily to the restrictions contained in section 99 of the Penal Code. One basic restriction in this behalf is that no B harm is to be caused other than what is absolutely necessary for the exercise of the right of self-defence. 1f the harm caused to the offending party is out of all proportion to the harm which may be received or which is threatened by the other party, and which gives occasion for the exercise of that right, the right of self defence will stand completely negatived. This right is available only if it is rooted in good faith and no intention is manifested by the circumstances of doing more harm than is necessary for the purpose of self-defence. According to the facts found in this case, even if it were conceded that the complainant party had intruded in the land, which was in possession of the appellants, the latter were only justified in evicting them from that land without causing them any harm other than that which was strictly necessary to fulfill this purpose. The story that Mahla was carrying a pistol was rightly disbelieved. The two minor injuries on the person of Ahmad accused appear to be the result of a scuffle rather than direct blows given to him by any one of the complainant party. If the accused then, instead of driving the complainants out of the land, and causing them minimum possible harm, as was necessary, started to beat them mercilessly, the only possible and reasonable inference is that they had assaulted him more out of spite and revenge than for the sake of defending the possession of their lands in the exercise of their right of defence of property. According to the evidence, all the appellants, who were armed with hatchets and lathis, gave blows to the deceased as well as to Mahla, P. W. However, the fact that the deceased ha sustained only one blunt weapon injury on his chest, which proved fatal, bears out the contention of the appellants that they had no intention to kill the deceased. they did not use the sharp side of their hatchets on him. But their intention to cause grievous injuries to him cannot be doubted, as all of them joined in showering blows on him. Each of the appellants, who had joined in this attack on the deceased, must share the intention of his co-accused who actually caused the fatal injury, as they were all acting in concert with each other at that time with the inten tion, as clearly manifested by the result, which they have produced, of causing grievous injuries to the deceased. Similarly, in regard to the grief caused to Mahla by the numerous injuries given to him, there can be no mistake about their intention of taking away his life and if he had died, they would have been guilty of murder. In this view of the matter, we are of the opinion that in regard to the death of Sohna, the convictions of all the appellants should lave been recorded under section 325/34, P. P. C. We would alter their convictions accordingly from section 304, Part I to section 325/34, P. P. C., and sentence each one of them to 7 years' R.

1. We maintain the convictions and sentences of the appellants under section 308/34, P. P. C., as recorded by the trial Judge, and armed by the High Court in respect of the injuries to Mahla. The sentences shall run concurrently. The sentences of fine imposed on the appellants are also upheld. The direction of the trial Judge for payment of compensation to the heirs of Sohna out of the fine, if realized, is also maintained. K.B. A. Appeal partly accepted.