P L D 1961 (W (PLP)

Azizullah K. Sheikh for Appellants. Junejo for Respondent Date of hearing : 17th December 1959. The 3rd Additional Sessions Judge of Nawabshah has convicted appellant Ibrahim of the offence punishable under section 304, P. P. C., and sentenced him to R. I. for 5 years and the remaining 3 appellants Bashir Ahmad, Shafi Muhammad and Yakub of the offence punishable under section 325, P. P. C. and sentenced each of them to suffer R. I. for 3 years. He has also convicted appellant Bashir of the offence punishable under section 324, P. P. C., and sentenced him to suffer R. I., for 12 months with the direction that his sentence should run concurrently. On 14‑12‑58 witness Mir Muhammad and his brother deceased Allahbux were grazing their goats and sheep in the `Bhelara' (land in which the crop has been harvested) of one Al1ahbuchayo Jakhro when at 1 or 2 p.m., the four appellants appeared on the scene, Bashir armed with a hatchet and the rest with lathis. They asked the two brothers to take away their cattle from the `Bhelara' which they refused to do contending that the `Bhelara' being of Allabbachayo it was none of their business to ask them to take away their cattle. On this the appellants assaulted the two brothers with the weapons they had with them. According to the prosecution, Ibrahim dealt a lathi blow to the deceased on his head and Bashir a hatchet blow to witness Mir Muhammad on his head. The remaining two also joined in the assault. On the cries of the two brothers cam Achar and Momin (since dead) whom the appellants threatened with violence if they approached near. After they left Achar and Momin went up to the injured where they found Allahbux unconscious and Mir Muhammad seriously injured. Then came Kamdar Harun who sent Achar and Momin to inform Haroon the father of the injured persons. Harun cane too the scene, saw the condition of his sons and then went and lodged a report with the police. The police recovered a hatchet from Bashir and two lathis from Shafi and Ibrahim. The police also took possession of the bloodstained shirt and a loin‑cloth which appellant Ibrahim was wearing when he was arrested. Allahbux succumbed to his injuries on the following day. Appellants Ibrahim and Bashir who are cousins, have stated that the cattle of the two brothers Mir Muhammad and deceased Allahbux' had trespassed into their `Bhelara' and in lucerine cultivation and caused damage and hence they were taking the cattle to the pound when the two brothers intervened as a result of which there was a fight in which the brothers received the injuries which they say they caused in self‑defence and that Bashir had lodged a report at Shahdadpur police station but the police took no action, it .being a non‑cognizable offence. They have further stated that Kamdar Harun had a motive to implicate them because they had refused to oblige him by leaving Jagir lands in which they had settled. Shafi and Yakub appellants entered a plea of alibi alleging that they have been involved because they are cousins of Ibrahim and Bashir. There is no doubt that Allahbux died of the injuries he had received and that hurt with lathi and hatchet was caused to Mir Muhammad. There is sufficient medical evidence to establish this point. The appellants also do not dispute that injuries were caused to Allahbux and Mir Muhammad of which the former died. After hearing the arguments on either side and going through the record, we find that the case of Yakub and Shafi is distinguishable from that of Ibrahim and Bashir. Ibrahim and Bashir admit their presence at the scene and their participation in the encounter. The prosecution case is that the encounter took place in the `Bhelara' of Allahbacha‑yo Jakhro where the appellants came armed with weapons and asked them to take away the cattle and when they refused to do so, they were assaulted. The evidence in support of this version consists of the testimony of Mir Muhammad Achar and Haroon. Mir Muhammad is brother of the deceased Allahbux and was grazing the cattle when the assault took place. He himself had received one incised wound on the head and three contusions on other parts of the body. This witness has been cross‑examined at length but nothing is brought out on record to suggest that he is telling lies in respect of Ibrahim and Bashir. He has denied the allegation that their cattle had trespassed into the field of any of the appellants and had caused damage. He has denied the all anon that their cattle were being taken to the pound by Ibrahim and Bashir and that on account of the resistance offered by them there was a fight in which both the parties received injuries. It is brought in cross‑examination, that the lucerine crop which had been raised by the appellants was raised on the other side of the canal that separated their land from the Bhelara in which the cattle of the two brothers were grazing. It is on record that at .the time of the incident water was flowing in that canal. Mir Muhammad stands corroborated by the evidence of Achar and Haroon. Achar has stated that he was going from his village to the village of Dahari and when he was passing by the `Bhelara' of Hajan Khan he heard cries and' on running up in that direction, he witnessed a fight going on between the appellants on one side and the two brothers Mir Muhammad and Allahbux on the otherside. He has stated that Ibrahim inflicted a lathi blow on the head of Allahbux deceased and that Bashir inflicted a hatchet blow on the head of Mir Muhammad and that after thus dealing the blows to them, the culprits went away to their village and that thereafter came witness Kamdar Haroon Jhakro to whom he narrated the above story. He then went to Haroon the father of the deceased and informed him of what had happened. He is no doubt a caste fellow of the complainant but that by itself is no reason why his evidence should not be believed. He stands corroborated by the evidence of Harun Jakhro and Rarun the father of the deceased. Momin who like Achar had witnessed the incident was murdered before he could be examined in this case. As said above the encounter has been admitted by Ibrahim and Bashir. The only question which requires to be determined is whether the injuries to Mir Muhammad and Allahbux were caused in the exercise of the right of private defence. As said above, the case of the prosecution is that the incident took place in the `Bholaro' of Allahbachayo Jakhro. The police actually saw blood stains at this, place. The defence have made no attempt whatsoever to substantiate their allegation that the cattle of the deceased and Mir Muhatgmad had trespassed into their `Bhelaro' and lucerlne cultivation. It is true that Bashir had lodged a report with the police making the above allegation. But to me it appears to be an afterthought and was intended to serve as a counter blast to the report lodged against them. It is in evidence that the lucerine crop said to have been damaged, is on the other side of the canal. Between the scene of offence and the lucerine crop there is watercourse in which water was flowing at the time of the incident. No attempt was made by the defence to point out to the police the alleged damage to lucerine crop nor was any attempt made to point out the hoof marks of the cattle. I amt therefore satisfied that the appellants Ibrahim and Bashir had no right of private defence. Against Ibrahim besides the above ocular evidence is the evidence of the recovery of blood‑stained clothes which lie was wearing at the time of his arrest. The evidence in Court shows that Ibrahim inflicted the fatal blow on Allahbux and Bashir a lathi blow on Mir Muhammad on his head. The medical evidence shows that Ibrahim had a contused wound on his head and contusion on his nose bridge. He has ascribed the blood stains on his clothes to these injuries. I am satisfied that Ibrahim has been nightly convicted and sentenced. As for the injuries to Mir Muhammad, there is evidence to show that the incised injury was caused by appellant Bashir. As for the lathi injuries they are not ascribed to any particular individual and since tire fight, was sadden, section 34 in my opinion will not apply. That being so, Bashir cannot be held guilty of the offence punishable under section 325, P. P. C. In this case therefore I set aside his conviction under section 325, P. P. C., and maintain the same under section 304, P. P. C., and also the sentence imposed upon him under that section. I also maintain the conviction of Ibrahim under section 324, P. P. C., and also the sentence imposed upon him under that section. With this modification in the judgment I dismiss this appeal. The case of Shafi and Yakub is however on different footing. They do not admit their presence. Their names do not appear in' the first information report which does not definitely show that four men actually participated in the assault. The number of the is culprits shown to be 3 to

4. If three, then one of these two could not be there. No part is ascribed to them. I therefore consider that their case deserved benefit of doubt. I therefore set aside their conviction and sentence imposed upon them. S. B. Order accordingly.