P L D 1983 Supreme Court 251 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave is directed against judgment of the Lahore High Court dated 2-9-1976, whereby respondents' criminal appeal was allowed and they were acquitted in a case of double murder and attempt to commit murder. Abdul Rashid, Wali Muhammad, Muhammad Rafiq and Bashir Ahmad four brothers inter se and Muhammad Sadiq their nephew, respondents herein were convicted under sections 302, 307, 323 and 324 and read with section 149 P. P. C. Muhammad Rafiq and Muhammad Sadiq were awarded death sentence on the charge of murder. The remaining three were sentenced to life imprisonment on this charge. All of them were variously sentenced for the other offences. According to the prosecution in the attack launched by the respondents they were armed with three guns, a hatchet and a Sota. Rahim Bakhsh and Abbas of the complainant's side suffered death while Muhammad Nawaz, Fazal Muhammad, Manzoor, Ghulam Muhammad (P. Ws.) and one Munshi suffered various injuries. Muhammad Rafiq and Muhammad Sadiq respondents had fired at Rahim Bakhsh and Abbas respectively while Abdul Rashid fired at Muhammad Nawaz effectively. Tha remaining persons were given hatchet and Sota blows. The motive for this occurrence is stated to be a dispute over the allotment and possession of Ahata No. 8, situated in Chak No. 132/Murad, Tehsil Chishtian, where both the parties resided. The Ahata is adjacent to the shop of the respondents. They had obtained it on lease from Government and remained in possession thereof for some years prior to the occurrence which took place on 7-7-1973 at 7 a. m. (It was reported to the police at 8.30 a. m. at Police Station Dahranwala which is at a distance of six miles from the spot). Despite the allotment and possession of the accused party the complainant's side was making efforts through written applications and duly launched proceedings for the allotment of the said Ahata in connection with the building of a girl school. Their effort bad not yet borne fruit completely, but it seems from the record that they had succeeded by the first week of July, 1973, (at the end of which week the occurrence took place) in obtaining favourable reports from the field staff of the government department concerned. They had also made prayer to the authority concerned for restraining the accused party from raising any structure in the disputed Ahata but it appears no formal orders were yet passed or conveyed to the accused; though, they were not only aware of those proceedings but had also participated therein and had in fact made their statements on the question of disputed allotment on third July, of 1973. It is also in evidence that there were other previous estrangements between the two sides, on other matters not connected with the allotment of the disputed Ahata. Prosecution led ocular evidence mostly the injured eye-witnessess, some of whom were related to the deceased persons. Three guns were recovered from or at the instance of Abdul Rashid, Rafiq and Muhammad Sadiq. They matched with the empty cartridges recovered from near the place of occurrence as also roof from the shop of the accused. As against the afore stated prosecution case, the defence gave a parallel version and raised a serious question of right of private defence of property as also of person. This version is contained in the statement of Wali Muhammad, respondent and reads as follows : "The version of the occurrence as given by the P. Ws. is incorrect. The true facts are that on the day of occurrence at about 8 a. m. our ladies were plastering the kothas situated in Ihata No. 8, Myself and my co-accused Bashir were preparing the mud for plaster. At that time Fazal and Abdul Aziz P. Ws. armed with guns, Ghulam Muhammad, Munshi, Nawaz, Manzoor P. Ws. and Rahim Bakhsh and Abbas both the deceased armed with Dangs came near our Thata. They abused our ladies. Fazal and Munshi P. Ws. tried to enter into the Ihata. I picked up a Sota and gave blows therewith to Munshi P. W. Bashir co-accused also picked up a Sota, gave a blow there with to Fazal P. W. When we apprehended danger to our lives myself and Bashir took refuge in our shop which is at a distance of 4 Karams from the Ihata. The complainant party followed us. They surrender our shop. They were saying out that our ladies should be abducted and that our houses be demolished. Rahim Bakhsh deceased was also saying out that we should be killed. At this, Fazal and Abdul Aziz started firing. In these circumstances I picked up the gun which was under the licence of Rafique co-accused from the shop and opened the door. I fired 4/5 shots while I stood inside. Some of the shots hit Rahim Bakhsh and Abbas deceased and the P. Ws. Myself and Bashir accused then went to Police Station p4hfanwala alon&wit,b Ishaque a shopkeeper. We reported ;hp matter to the S. 1. at the Police Station. I acted? in self-defence and committed no offence." It would be noticed that except for the participation or otherwise presence of Abdul Rashid, Muhammad Rafique and Muhammad. Sadiq respondents who according to the prosecution fired shots and were mainly responsible for damage and deaths caused to the complainant's side and in that connection Muhammad Rafiq and Sadiq pleaded alibi and produced evidence in that behalf, there is no denial of fact that accused side is admittedly responsible for injuries caused to the complainant's side. There is also some difference on the origin of the incident. While the prosecution case is that Manzoor (P. W.) was passing near the shop of the accused when he was, on account of the previous dispute over the Ahata, manhandled by the accused. On his cries, the deceased and the injured went towards the spot when they were attacked without any provocation by the accused party who had then armed themselves. While .defence version is that the women folk of the accused were plastering the walls of the building in the disputed Ahata, the complainant side wanted to stop them and would have dishonoured them, if Wali Muhammad and Bashir Ahmad would not have acted as mentioned in Wali Muhammad's statement. While the trial Court had accepted the prosecution version, the learned Judges in the High Court without accepting the defence version that the complainant side was armed and entirely responsible for the occurrence reached the following finding in this behalf : "It is difficult to accept that any member of the complainant party was armed with a gun or any other formidable weapon. It will be noticed that none of the appellants had any injury to show on his person. Had the members of the complainant party been carrying guns they would have certainly used them, particularly after the other party started firing. Therefore. even if the complainant party was initially the aggressor the appellants or those among them who were present at the relevant time over-reacted to the threat posed to them by the complainant party. Notwithstanding this opinion about the defence version, the learned judges held, that considering the purpose for which the complainant party had gone to the scene of occurrence it is not unlikely that some of its members might have insulted the women working there but it is difficult to accept that any member of the complainant party was armed with a gun ?????????? " It was also held that the respondents were in lawful possession of the Ahata in dispute and that, unless prohibited by law they could use it in any manner they like. Therefore, if they were building a kotha or plastering it, the complainant party had thus no right to prevent them or their women folk from doing so. "In the circumstances if the appellants resisted the uncalled for intrusion on their property by the complainant party they were perfectly justified in doing so". . It seems, however, that keeping in view the harm done to the complainant side, the learned Judges in the High Court were not prepared to consider complete right of private defence to all the respondents. That being so, notwithstanding the admission of Wali Muhammad and Bashir Ahmad which as they observed, they were inclined to ignore, all the respondents were acquitted on the assumption that the prosecution had failed to establish the participation of each one of them. In this behalf reliance was not placed on the recovery of the matching guns from Abdul Rashid, Muhammad Rafiq and Muhammad Sadiq respondents, not with standing the fact that one of them was a licensee of the gun recovered. Leave was granted to consider whether despite the findings aforenoted and certain admissions with regard to role of each party in the occurrence, the High Court could have acquitted all the accused, in accordance with the accepted principle of criminal justice. We have gone through the evidence and have at length heard the learned counsel from both the sides. Keeping . in view the fact that this appeal is from acquittal, it need to be noted forthwith that the findings of B fact based on the material on record, even if through wrong appreciation thereof, will, have to be given considerable weight importance and effect. In the light of this principle we find considerable force in the argument of the learned counsel for the respondents that the story regarding the origin of the incidents put forward by the prosecution is doubtful. Learned counsel for the complainant after some argument did not lay stress on it. It has been contended from the prosecution side that both the parties being respectables of the village, the women folk of the accused party would not in any case have come out of their residential houses (which were far away from the spot) to plaster a building at a place about which there was serious dispute. Although there seems to be some force in this argument yet when following the afore-stated principle, we would prefer the finding of the High Court on this question, namely, that the women folk from tire accused side (they could be the women of their tenants or servants) were in the Ahata when the occurrence took place. We also agreed with the finding of the High Court that the accused party was in physical and effective possession of the disputed Ahata when the occurrence took place. In this situation the learned counsel for the accused/respondents vehemently tried to argue that the finding of the High Court to this effect that complainant side was unarmed, should not be accepted. He contended that they were carrying some weapons even if not those mentioned in the statement of Wali Muhammad. That is why according to him the accused party acted as they did. On this question also we feel satisfied that view taken by the High Court is correct. -It is supported by reasons including that if more than seven persons from the complainant side bad come to the Ahata with the intention of causing physical harm with any weapon, it .was not at all difficult for them nor natural that they would not have been able to injured any body from the accused side. Not only this, the High Court view on this question finds support from the fact that dead bodies, according to the material on record including the site plan, were found at considerable distance from Ahata in dispute and also from the shop of the accused. They were. in fact, found in the Chowk of the village from where the blood-stained earth was picked up. Thus, it was an attack by the accused side on seven unarmed men from the complainant side. We do agree, however, with the learned counsel for the accused, that even in these circumstances the accused party could be extended the initial right of private defence of property and/or of person. The question whether it was complete or not would be considered separately. We do not agree .with' the learned counsel for the complainant that assembly of more than seven persons who were no doubt unarmed, (but who had already obtained favourable reports for the allotment of disputed Ahata) close to the said Ahata, in the circumstances and the background of the present case, would not amount to assault or criminal force, as is punishable under section 352, P. P. C. with three months, R.? 1. or fine or both. It seems the accused party which could include the women folk of their tenants and other village labourers were present in the disputed Ahata after the plastering of the wall (as no remaining mud for further plastering was found by the Investigator though he had found freshly plastered walls), when the complainant party assembled in the Chowk for preventing through sheer show of force the accused party from creating new possessory situation in the Ahata, which could weaken their case before the authorities. They would have certainly even when standing in the Chowk for this purpose uttered words and made gestures, which would fall within the definition of criminal force and assault contained in section 350 and section 351, P. P. C. However, before they could advance towards the Ahata the accused party (which has a shop adjacent to Ahata! apprehending that those empty handed persons might, if not stopped in the Chowk, while going towards the Ahata in dispute, either criminally trespass into the Ahata or molest any women, started firing at them and having achieved some effectiveness in this behalf, also went forward and caused injuries with Sota and hatchet to the P. Ws. The next question arises whether the accused party is in the circumstances entitled to the right of private defence. Learned counsel for the complainant conceded that in the afore-visualized situation the accused had a right to defend themselves but this right could not have extended to the causing of death. Learned counsel for the respondents cited cases in this behalf in order to show that the accused had complete right of defence but the situation i each one of those cases was different from the one in the present case. There was visible apprehension of grievous hurt in the cases cited by the learned counsel which we have found in this case was not so. The conduct of the unarmed complainant party, in going towards the spot and stopping at the Chowk and not going forward even when the occurrence started and the accused reaching their in the Chawk would show, that no reasonable persons in these circumstances would have apprehended grievous hurt to the accused side. The acts/offences against which the accused could exercise complete right of private defence extending to the causing of death as enumerated in section 100 or section 103, P. P: C. undoubtedly did not exist in this case. The case fell squarely within section 101 and/or section. 104, P. P. C., therefore, the accused could exercise right of private defence, short of causing death, and, that too subject to a restriction contained in section 99, P. P. C., namely, that it (right of private defence) "in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence." For resisting stopping a simple assault with regard to which there was no apprehension that grievous hurt would be committed or that any woman could be subjected to rape, kidnapping or abduction (which could not at all be visualized in a community matter like present one), the respondents' case would fall under Exception II to section 300, P. P. C. It provides that culpable homicide is not. murder if the offender,. in the exercise, in good faith, of the right of private defence of person or property; exceeds the powers given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. The accused apparently exceeded the right of private defence therefore, those who are found to have caused culpable homicide, would be guilty under section 304, Part I, P. P. C. and those who were responsible for causing such harm to a person who if' would have died as result thereof but in fact survived, would have been guilty under section 304 Part I, would be guilty under section 308, P. P. C. Now it needs to be considered as to whether there is any doubt with regard to-the participation of all the,, respondents. The h arm suffered by the complainant side by gun-shots, blunt weapon or sharp-edged weapon injuries, is not such that one could even imagine that there is exaggeration regarding number of the culprits. No less than five persons could have participated in a case like the present one. The fact that Wali Muhammad and Bashir Ahmad admitted their participation signifies this much that they having been attributed the lesser role accepted the burden under the law that they might not have received the extreme penalty. Muhammad Rafiq and Muhammad Sadiq both tried to create false evidence in support of their plea of alibi, in regard to which no favourable finding to them, of any of the Courts below is forthcoming. Our scrutiny of the evidence with the help of the learned counsel for the respondents has also not produced any results favourable to Muhammad Rafiq and Muhammad Sadiq. Although they did make an effort to show that they were at place other than the place of occurrence at the relevant time, the defence evidence produced in that behalf is flimsy and for good reasons was rejected by the trial Court. Their conduct in this behalf also is to some extent confirmatory circumstance. Above all, we have not been satisfied that there was any exaggeration regarding the number of the accused. It could not be treated as a case of substitution of the guilty persons with the innocent ones. Further all the accused are persons who would be interested in defending their right, in the Ahata in dispute. The participation of them is not unlikely. The eye-witnesses including all the injured are not such who would have, in the background of the case, falsely implicated any one of the accused. Allotment of the Ahata bad become subject of community interest and purpose. It would be difficult to assume that the villagers supporting the application for allotment of Ahata for girls school, would have. permitted the complinant's side to falsely implicate any person in respect of a cause which was benevolent and pious. The social conditions, circumstances and situation in a case like present one, cannot be ignored. Learned judges in the High Court, with respect it is pointed out, after giving a finding favourable to the prosecution side, did not apply the correct law regarding the private defence nor did they follow the accepted principle regarding the culpability of the respondents. While doing so, they also ignored some relevant material. In the result, we allow the appeal against -Muhammad` Rafiq and Muhammad Sadiq who were responsible for culpable homicide of Rahim Bakhsh and Abbas as also against Abdul Rashid who was responsible for attempt to commit culpable homicide of Muhammad Nawaz (P. W.). Their acquittal accordingly is set aside. Wali Muhammad and Bashir Ahmad have not exceeded the right of private defence, their acquittal accordingly is maintained. In the consequence of the foregoing findings we pass the following order in respect of the acquittals, convictions, sentences and compensations: "(a) Respondents Muhammad Sadiq and Muhammad Rafiq are convicted under section 304, Part 1, P. P. C. and are sentenced to imprisonment for life each. They are imposed fine of Rs. 20,000 each and in default thereof to further undergo 5 years' R. I. each; (b) Respondent, Abdul Rashid is convicted under section 308, P. P. C. and is sentenced to 7 years' R. I. He is further imposed fine of Rs. 10,000 in default thereof, to undergo 1 J years' R. I These respondents, Muhammad Rafiq, Muhammad Sadiq and Abdul Rashid shall be taken into custody forthwith to undergo the sentences imposed above ; (c) Each of these respondents, Muhammad Rafiq, Muhammad Sadiq and Abdul Rashid, is also directed to pay Rs. 1,000 as compensation under section 544-A, Cr. P. C. and in default thereof to undergo 6 months' R. I. each. (d) The appeal regarding other respondents, namely, Wali Muhammad and Bashir Ahmad is dismissed. Their bail-bonds furnished under orders of this Court shall stand discharged; (e) Rs. 50,000 when recovered shall be paid to the heirs of the two deceased and the injured as follows :Q) Rs. 20,000 Rahim Bakhsh (deceased) (ii) Rs. 20,000 Abbas (deceased) (iii) Rs. 10,000 Muhammad Nawaz (injured) (f ) The benefit of section 382, Cr. P.'C. shall be extended to the respondents, Muhammad Rafiq, Muhammad Sadiq and Abdul Rashid, while computing their total periods of imprisonment." S. Q.??? Order accordingly.