1977 P Cr (PLP)

Appellants Gul Bahar, Qaisar, Lal Bux, Suleman, Younus, Mohbat, Hakim Ali Shah and Ranjho were tried for the murder of Mst. Fatima while committing dacoity; rioting, attempted murder of Allahrakhio, Rahmatullah, Din Muhammad, Qalandar Bux, Ata Muhammad, Muhammad Azim, Allahditto, Bakhtullah, Mst. Semi, Mst. Umedan and Mst. Jadul, and for causing simple and grievous injuries to Qalandar Bux, Ata 10uhammad, Allahditto, Rahmatullah, Mst. Jadul, Din Muhammad, Mst. Semi, 41st. Umedan, Bakhtullah, Muhammad Azim and Allahrakhio, convicted under sections 325/149, 323/149, 148 and 1 47, P. P. C., sentenced on the first count to four years' rigorous imprisonment and to pay a fine of Rs. 100 or in default to suffer rigorous imprisonment for one month, on the second and third to rigorous imprisonment for one year each and on the fourth, to rigorous imprisonment for six months, by the learned Additional Sessions Judge, Sukkur, vide judgment dated 16th January 1970. Appellants Gul Bahar and Qaisar were further charged under section 13(d) of the Arms Ordinance for being armed with unlicensed guns but no conviction and sentence is recorded on this charge. Eleven other persons, namely Azim, Safdar, Din Muhammad, Fateh Muhammad, Khudabux, Khan Muhammad, Ghulam Qadir, Imambux, Wahid Bux, Allahrakhio and Ismail were also tried along with the appellants but they were acquitted. The appellants have appealed to impugn their conviction on various counts and the sentences imposed therefore.

2. According to the prosecution case, there was a dispute over land between Allahrakhio and Gul Bahar since a long time. While Allahrakhio was at his well on the land where he resided in a house at about sunrise time on 20th November 1967, cries were heard from there, upon which Kamal, Razi, Ghazi, Muhammad Bux and Karim ran towards it and on reaching there they saw Gul Bahar, Suleman, Younus, Qaisar, Ranjho and about 100 or 150 unknown persons armed with guns, hatchets and lathis assaulting Ata Muhammad, Azim, Din Muhammad# Allahrakhio, Mst. Umedan, Mst. Fatima and Mst. Jadul and firing guns at them and causing blows with hatchets and lathis, as a result of which they had fallen injured on the ground. Kamal without waiting further ran to inform Sikandar Shah, a Zamindar, who advised him to lodge a report, which he did at Police Station Dubar, 12 miles away, the same day at I p m. In the meantime Allahrakhio, Rahmatullah, Din Muhammad and Mst. Semi proceeded to Rohri where they met Salimullah S. H. O., who re-corded their statements and sent them for treatment to the Medical Officer, Rohri. From there the S. H. O. proceeded to the wardat which was near the well of Khudabux, where Kist. Fatima and Allahditto lay injured and unconscious. He sent them to the Medical Officer, Rohri for examination and treatment. He also saw Qalandar Bux, Ata Muhammad. Azim, Bakhtullah, Mst. Jadul and Mst. Umedan lying injured under a 'beri' tree near the wardat. He also sent them for examination and treatment to the same Medical Officer. He secured blood from the wardat and noticed broken earthen pots lying near the well, "straws and raptures". He arrested Qaisar, Suleman, Younus, Din Muhammad, Fateh Muhammad, Safdar, Qadir Bux, Khan Muhammad,, Khudabux, Azim and imambux, the same day. On the next day he searched the house of Gul 13abar and his sons, Younus and Suleman and recovered a hatchet from there. He next searched the house of Mohbat, Khudabux and Azam and from there secured three lathis. On 25th November 1967 he arrested Gul Bahar and Mohbat. C1ul Babar produced a gun from the heap of 'jawar' crop in the presence of Mashir Ghulam Qadir. On 15th December 1967 he arrest era Hakim Ali Shah, Ranjho and Wahid Bux. Ranjho produced two rilhis ; two cots and one quilt in the presence of Mashir Arabelo. These articles were put to an identification test on 30th December 1967 and Allahrakhio and Mst. Umedan picked out the 'rilhis' and the quilt, but not the cot. Ismail was arrested on 4th January 1968. Gul Bahar also lodged a counter report after the incident the same day at 13-30 hours.

3. The counter version is that appellant Gul Bahar in auction, which he and Qaisar were jointly cultivating, purchased Survey No.

172. Mewo, Allahrakhio and Allahditto resented the purchase of this land and threatened them to dire consequences, whereupon he had lodged a complaint at Police Station Dubar, as a result of which proceedings under section 107 were initiated against there in the Court of First Class Magistrate, Rohri, which case was pending. At about sunrise time on the day of the incident while he, his son Suleman, and Qaisar were working on the land, Allahrakhio, Rahmatullah, Allahditto, Ata Muhammad, Suleman son of Allahrakhio, Mewo, Karim Bux, Aghan, Muhammad Bux, Rahimdino, Bakhtullah, Azim, Dino, Hadibux and some 50 or 60 unknown persons arrived there, of whom Allahrakhio was armed with single-barrel gun while the rest with hatchets and lathis. Allahrakhio challenged them to vacate the land and in case of refusal they would kill them, upon which they replied that they had purchased the land and had cultivated it and were paying land assessment for it and there was no reason for vacating it. Soon after getting this reply those armed with lathis and hatchets caused blows to them while Allahrakhio continued firing the gun. As a result of the commotion, cries and gun reports, Mohbat, Allahrakhio son of Sumat, Ismail and Lal Bux were attracted to the wardat and they also witnessed the incident, and rescued them, whereafter Allahrakhio and others went away raising slogans. However, the gun of Allahrakhio was snatched from him and was lying at the wardat. In the fight persons from both the sides had received injuries. As many as five persons from the side of the appellants received injuries, of whom two are the present appellants, namely Qaisar and Suleman while the three others, namely Patch Muhammad, Safar and Din Muhammad have been acquitted. All the injuries were simple. in nature and caused by blunt weapons. Azim had no injuries but bled from an old abscess. In all three injuries were noticed each on Qaisar and Fateh Muhammad, two on Suleman and one each on Safar and Din Muhammad.

4. Mat. Fatima died on the next day of the incident. The autopsy on the dead holy disclosed that she suffered the following two injuries (1) Lacerated wound 3" x 1" ascalp deep on right parietal region of head. (2) Contusion on right eye 3" x 2" on both the lids with the ecchymosis on right temporal region." In the opinion of Dr. Ali Jan, injury I was sufficient to cause death in the ordinary course of nature and that both of them were caused by blunt weapons.

5. Dr. Muhib Shah examined Allahrakhio, Rahmatullah, Din Muhammad, Mst. Semi, Qalandar Bux, Ata Muhammad, Muhammad Azim, Mst. Jadul, Mst. Umedan, Allahditto and Baktullah, Allahrakhio suffered four lacerated and two contused wounds were stated to be simple in nature, Except taro which were opined to have been caused by contact with a rough substance, the rest were caused by some blunt weapon. Rahmatullah suffered eight injuries, out of which one was grievous in nature while the others were simple. Two such injuries were, caused by some pointed substance, such as Thudo while the rest with a blunt weapon. Din Muhammad suffered as many as eight injuries, out of which four were abrasions and the rest lacerated and contused wounds. All of them were simple in nature and caused by a blunt weapon such as a lathi. Mst. Semi suffered one injury and that too was simple and caused by a blunt weapon such as lathi. Qalandar Bug suffered two Injuries, out of which one was grievous and the other was simple. A weapon, such as laths, caused both of them. Ata Muhammad suffered seven injuries out of which one was grievous in nature and all of them were caused by a blunt weapon such as lathis. Muhammad Azim suffered three injuries. All of them were simple in nature and caused by a weapon such as laths. Mst. Jadul suffered ore grievous injury and that also by a blunt weapon. Mst. Umedan received three injuries, out of which one was said to be caused by the discharge of a fire-arm, such as gun while the other two by a lathi. All of them were opined to be simple in nature. Allahditto suffered seven injuries, out of which one was grievous and the rest were simple in nature and that all of them were stated to have been caused by a blunt weapon. Lastly Baktullah suffered two injuries, which were simple in nature and caused by a blunt weapon.

6. Appellants Gul Bahar, Suleman and Qaisar have a common defence, namely that they had caused the injuries while defending their possession of the land. Gul Bahar elucidated his stand as under: - "In self defence as the other party wanted to take forcible; possession I enjoyed 13 acres previously. Government took back 9 acres and auctioned it. I purchased it. The other party wanted 5 acres cut of it and they got it somewhere else, therefore the attack." He also stated that the appellants and the acquitted accused were related to him except Hakim Ali Shah who was falsely Implicated at rite instance of Muhammad Ayub Mangi, with whom he had dispute over a quarry and that the appellant Gul Bahar had lodged a complaint against Allahrakhio and, and others but they were not Challaned, hence he had filed a direct complaint. Qaisar added that he suffered Injuries while rescuing Gut Bahar. Appellant Azim stated that he reached the wardat on hearing the cries and that while rescuing Gul Bahar be received injuries though none were observed on him. So far and Din Mohammad also took the satire stand. Mohammad Younus, Ranjho, Mohbat and Lal Bux also added that they were witnesses in the counter case. Hakim Ali Shah pleaded that he was implicated by Allahrakhio at the instance of Mohammad Ayub Mangi, whose Kamdar he was and with, born he had bad relations on account of cases filed between the parties.

7. The trial Court acquitted the appellants on the charge under section 396, P. P. C. While repelling tire plea of self-defence it reached the conclusion that the complainant party was in possession of the disputed land and that the appellants were the aggressors as they wanted to dislodge them from their possession. There can be no doubt that there was fight but whether the appellants were the aggressors is a question which to be determined in this appeal. The trial Court whsle accepting thet and of the complainant party as to the possession held that 'it is an admitted fact that Survey No. 172 was formerly fn possession of Allahrakhio. Later on Gul Bahar obtained it. This fact has been admitted even by the prosecution witnesses and the record also shows that In justification of this stand of the complainant party, the trial Court gave the reasons as under: - "As usually happens that once a person .is put in possession of the plot though the plot may later be allotted to someone else still than Person sticks to the possession till he is ousted in due course from that plot." Further, pursuant to the above reasoning it also accepted as true that Khudabux had a well and a kutcha house on the disputed land in spite of having acknowledged the fact-that the land had been sold to appellant Gal Bahar. Nevertheless, it was still of the impression that though they had been deprived of the land meaning thereby its legal right, yet "they lingered on with the possession and were living thereon". 8. 1 regret to say that the trial Court apart from giving effect to the bare words of the prosecution witnesses as to the possession of Allahrakhio did not consider the documentary evidence led in defence. At page 181 of the paper book there is Exh. 125, which are Robkari, dated 16-5-1967 and by which Allahrakhio land No. E/5-0 was stated as not to be included in the auction schedule. It may be recalled that Allahrakhio had given an application when the disputed land was to be auctioned that his land i.e., E/-0 should not, by any accident, be included in it. At this stage, he did not protest that the disputed land bearing No. B /5-0 of unassessed Survey No. 172 should not be auctioned a9 he was in possession of it or entitled to its transfer for that reason. It was when the disputed land was sold that he appealed to the Project Director but rot being successful he filed a civil suit (No. 90/67) in the Court of the Civil Judge and also asked for interim Injunction. The Injuction was refused whereupon he appealed to the District Court but that Court also did not grant that relief. The suit was ultimately dismissed and no appeal was filed to impugn the dismissal. Not only the plea of his possession was rejected but also the fact that he was not able to establish that he had dug a well on the disputed land. When examined in Court he stated that the disputed land was owned by the Government yet it was granted to Khudabux, his father which stood adjacent to Survey No. 336, which grant is not supported by any evidence on record. He also stated that his father dug a well in Survey No. 172 a year before the incident but the evidence shows that on the well there was no Persian wheel for drawing water and, therefore, no land could be fed by it. It was thus in a disused state. Allahrakhio admitted that the tube well of appellant Gul Bahar was installed some two years before the incident but did not say in which survey number it was situate, obviously to conceal that it was near about the disputed land. He also went to the extent to say that he had applied to the Commissioner for being granted five acres of lard and that a Robkari was issued. This is a false statement, for the only document that could refer it to it is Exh. 125, which does not relate to the grant but only shows that his land is not included in the auction Schedule. There is also a discrepancy in the prosecution evidence as to when his father, Khuda Bux had actually dug up tire well. Allahrakhio has relied on Exh. 25 to Exh. 29 to show his prior possession of the land, which are again misleading. Exh. 25 is dated 7-7-1969 and relates try a land near D/336 of unassessed Survey No.

172. It is issued much after the incident and cannot relate with certainty, to the land in dispute. Exh. 26 relate to different survey numbers and is dated 17th May 1965. Exh. 27 mentions unassessed Survey No. 172 and is dated 11th October 1961. There can also be no certainty as to whether it could relate to the land in dispute as this survey number was unassisted and it cannot be said whether he was in possession of the whole or a part of it. Exh. 28 are a bill for tae year 1968-69 and mentions only Survey No.

172. It also shows that he was to an unlawful possession of it as the word "Remokal" is used. Whether it related to the disputed land of unassessed Survey No. 172 is not apparent from it. In any case, the bill appears to have been issued after the date of incident and can, therefore, have no relevancy, Exh. 29 is an old bill for the year 1956-57 which can lave no relevancy, for even according to Allahrakhio. He came into possession of the disputed land a year before the occurrence. In this state of documentary evidence as to possession it is not understandable as to how the trial Court expressed that Survey No. 172 was in possession of Allahrakhio. The appellants have led documentary evidence to establish their possession. Exh. 126 give the number of the land as B/5-0, which was subsequently purchased in auction by appellant Gul Bahar. It is in the name of his father and is dated 30th June 1965. This document shows that Mohammad Laiq was permitted to occupy the disputed land. The next document is Exh. 127, which is again in the name of Laiq and relates to the same disputed land and permits him to occupy it. A sketch of the disputed land also appears at tie foot of it, which shows it to be adjacent to Surveys Nos. 300, 301, 304 and 306, which are admittedly in possession of Gul Bahar and others. A portion of it touches Survey No. 336 that belongs to Allahrakhio. Exh. 119 is another document which shows the possession of Laiq, his father. It is a land revenue receipt and is dated 5th May 1966. There is another revenue receipt at page 192 of the paper book. It is for the year 1960-61 and is in the name of Laiq and relates to the said land. At page 194 of the paper book there is another document granting permission to Laiq to occupy the disputed land of unassessed Survey No.

172. It is dated 17th April 1961 There are too notices at page 193 of the paper book calling upon his father Laiq to deposit the lease money and to execute 'Kabuliat' so that an `Ijazatnama' for occupying the disputed land auctioned to him may be issued. There is, therefore documentary evidence to establish the possession of appellant Gul Bahar of the disputed land of unassessed Survey hip.

172. It is also in the evidence that there was crop of oil-seed, which could not have been watered, but from the tube-well of Gul Bahar. Allahrakhio had a pacca house in village Miyo khando. There was no reason why he would have stayed with his wife in the so-called kutcha house, of which only some traces were found at the vadat when lie bad his own house closely. The existence of the house at that time is doubtful, if I were to discount the words of the complainant pary and I see no good reason to accept them. This entire stand is taken to support possession of the disputed land, which Allahrakhio could not establish in the civil suit. The trial Court did not appraise the evidence in this light and erroneously reached the conclusion by giving the benefit of a possibility, namely that even though a person may not have a legal right to possession yet if he had remained earlier in possession he may sugar on with it for some time, to the prosecution. 8-A. Having reached the conclusion that the appellant party were In possession it is not, possible to accept that they were the aggressors even though eleven P. Ws. Belonging to the complainant party had sustained Injuries and one of the ladies had dived. It is the case of both the aisles chat there were a large number of persons, about 100 or 150 on one side and 50 or 60 on the other who had fought. The account of the fight and the parts assigned to those belonging to the appellant party cannot also be wholly relied on. A gun is said to have been fired at Gist. Umedan and Allahrakhio while they were inside the house, yet only one injury is said to have been caused by a pellet and that too on the back of the left elbow of Mst. Umedan. It was also superficial. There is no sharp-sided hatchet injury on any of the persons belonging to the complainant party though the allegation is that some of them were armed with hatchets. Two of the appellants and three acquitted accused had also suffered injuries with blunt weapons. In the context of the injuries suffered by the complainant party there can no doubt that the appellants and those acquitted gave a sustained beating to them, but this by itself cannot establish that they were in possession of the disputed land and had a right to exclude those who wanted to have forcible possession of it. It is true that the ladies were injured but the evidence is that they had come on cries and intervened to save those who were involved in the fight. In that situation they must have received the injuries. However, it cannot be said that the complainant party were not the aggressors on the premise that ladies would not have joined them to take forcible possession of the land, which is not a correct way of assessing what had happened in the context of the evidence led before the Court.

9. The learned counsel for the appellants also contended that Hakim Ali Shah was falsely implicated because Allahrakhio had joined him as an accused at the instance of Muhammad Ayub Mangi, whose Kamdar he was, but I do not propose to go into this question as on other grounds I am inclined to allow the appeal. The prosecution has accordingly failed to establish the case against the appellants. Giving to them the benefit of doubt I would acquit them. Appellants Qaisar and Suleman have already served out their sentences while the rest of them are on bail. Their bail bonds are discharged. The appeal thus stands allowed. Appeal allowed.