1973 P Cr (PLP)

(1) Twelve gunshot wounds wearing incised, 1/2' x 1/2' x 1/8' on the left lumber region, leading into the abdomen. (Three pellets were palpable in the left region and three on the front side of abdomen. The margins of the wound were burnt.) (2) A gunshot wound 1/2' x 1/2' on the left milar bone. The margins of the wound were burnt and bone underneath the injury was fractured. (3) A contused swelling, 2' x 2' on the back of lower part of the neck. (4) Two gunshot wounds 1/10'x 1/10' on the back of the chest, pellets were palpable. All the injuries, in the opinion of the doctor were ante-mortem, caused by a fire-arm excepting injury No. 3 which was caused by a blunt weapon. The stomach contained food matter. Eleven pellets were found in the mesentry and intestines. The large and small intestines were found punctured at several places. The abdomen contained 10 ounces of blood. Death was due to shock and intra-abdominal haemorrhage. Injury No. 1 was sufficient to cause death in the ordinary course of nature. Death was immediate. Time between death and post-mortem was 12-24 hours. Twenty pellets taken out from the body were handed over to F. C. Muhammad Nasib P. W.

11. Dr. Muhammad Ikram Qureshi (P. W. 2) on 3-7-1965 at 8 a.m., medically examined Haq Nawaz accused and found the following two injuries :

(1) A contused wound ' x ' x ' over the front of the right foot 1' below the little toe. (2) An abrasion ' long over the back of the left hand in between the ring and middle finger. Both the injuries were simple caused by a blunt weapon within two days' duration. The same day Amira accused was found to have sustained the following two injures :

(1) An incised wound 5 ' x 2 ' over the upper part of the back 4' on the left side and 1 '' on the right side 2' below the neck. (2) A contused wound 1 ' x ' x ' over the front and central Injury No. 1, caused by a sharp-edged weapon, was kept under observation while injury No. 2 caused by a blunt weapon was declared simple. The duration was one day. The same day Ashiq accused was found to have sustained the following two injuries :-- (1) A semi-circular incised wound 3 ' in circle and 3/4' with the flap of the skin low down over the back side of the head 3' above the left ear. (2) A contused wound 1' x ' skin deep over the right side of the head 3' above the right eyebrow. Both the injuries were kept under observation. Injury No. 1 was caused by a sharp-edged weapon while injury No. 2 with a blunt weapon. The duration was within one day.

12. Apart from a fairly large number of eye-witnesses at least five of whom sustained injuries establishing their presence at the time the positive report of Shah Johan Khan, Fire-arms Expert P. W. 27, lent further support to the prosecution case in so far as the use of shot-gun No. 60652 Exh. P. 16 and .12 bore clutch-action shot-gun Exh. P. 17 at the hands of Rab Nawaz and Fazil respectively was concerned.

13. At the trial, the accused pleaded not guilty to the charge, denied the recoveries and attributed their false implication to enmity. All denied their presence at the spot and participation in the fight except Haq Nawaz, Amira and Ashiq. The plea taken by Haq Nawaz was that on the day of occurrence it was his turn of water when the members of the complainant party diverted the water into their fields. He accompanied by Amira and Ashiq went to enquire about this when they were attacked by the complainant party. They also inflicted some injuries to them in self-defence. Amira accused stated that he and his son were present in the adjoining field when they heard an alarm from the field of the deceased where a fight was going on. They rushed forward to rescue Haq Nawaz and be received a hatchet blow at the hands of Yusaf P. W. and became unconscious. The same position was reiterated by his son Ashiq, who also allegedly received injuries and fell down.

14. Having considered the evidence on the record, the learned Sessions Judge acquitted the set of four accused who were Balochis by caste namely ; Ameera. Ashiq, Allah Yar and Gul Sher, as also two of the Chadhar accused namely ; Fazil and Akmal. Nazar Muhammad and Rab Nawaz were found guilty for having exceeded in the exercise of right of private defence and were awarded a sentence of seven years' R. I. each under section 304(I) read with Section 34, P. P. C.

15. The aforesaid conclusions of the learned trial Judge are based on the findings (i) that Haq Nawaz one of the acquitted accused, being admittedly in possession of water it being his turn Ed the relevant time was within his rights to mend the cut in the watercourse and protect his right of the use of water; (if) that the plea taken by Ameera and Ashiq, the two Baloch ac cused appeared to be plausible in view of the conspicuous absence of their enmity with the complainant party or their relationships or friendship with the Chadhar accused, thus having no motive to depose falsely against the former; (iii) that in the above view of the situation Ameera and Ashiq were justified in rushing forward to rescue Haq Nawaz; (iv) that similarly Gul Sher and Allah Yar were also justified in rushing to the spot in defending Haq Nawaz; and (v) that since Haq Nawaz was already being defended by the two appellants: namely, Nazar Muhammad and Rab Nawaz, bad exceeded in their right to defend Haq Nawaz by using their guns resulting in the death of Gul Muhammad and injuries to other P. Ws.

16. It was contended before us on behalf of the appellants that the presence of Ghulam Muhammad, the first informant was rather doubtful, in view of the absence of the injury on his person and as such no sanctity should be attached to the eye-witness account furnished by him, that even otherwise, the prosecution had failed to put forward a natural and consistent version of the occurrence offering no satisfactory explanation, of the injuries sustained by tlaq Nawaz, Ameera and Ashiq accused which were completely suppressed in the initial report, that the investigation did not appear to have been conducted in a straightforward manner and in particular the evidence of recoveries attributed to the appellants was far from convincing, that once it was conceded that it was the turn of water of the accused party they had every right to protect their right by use of force including the two appellants but in the circumstances of the case could not reason ably be found to have exceeded in the exercise of that right, and lastly that in any case, there could hardly be any question of the invocation of section 34, P. P. C. in a case where the right of private defence was conceded.

17. Having considered the contentions raised on behalf of the appellants we are inclined to think that they are not without substance: In the first instance it is not disputed that it was the turn of water of Haq Nawaz Chadhar. It is also conceded that at the relevant time the water was flowing into the field of the com plainant party. It is, however, alleged that it was not a case of deliberate cut but as accidental breach in the watercourse. Another admitted position is that at the relevant time Ghulam Muhammad Gul Muhammad deceased, Yousaf, Iqbal, Nazar Muhammad, Mumtaz, Allah Ditta and Muhammad P. Ws. were sitting in the land of the deceased and were talking about matri monial affairs. Although such incidents do take place in life yet having regard to the background of blood-feuds in the instant case, the fact that previously at the time when the deceased and eight other members of his family were sitting together the breach should have taken place during the tern of water of Haq Nawaz Chadhar and that too in the land of the deceased, has to be taken with grain of salt. In the circumstances, the possibility cannot be ruled out that the complainant party had not necessarily gathered at the spot with an Innocent purpose. What further casts suspicion on their bona fides is the fact that none of them cared to repair the so-called accidental breach in the water course so as to prevent the flow of water into their field. The only possible consideration which could be construed in their favour and was pressed on behalf of the petitioner in the private revision against acquittal was that in the event of a pre-planned attack they would not have faired so badly. Be that as it may however, we are of the view that the plea taken on behalf of Haq Nawaz, Ameera and Ashiq cannot be completely excluded from consideration.

18. As rightly pointed out by the learned counsel for the appellants, even otherwise the version put forth by the prosecution is neither consistent nor convincing. As stated earlier, a reference to the injuries of Haq Nawaz and Ashiq was conspicuous by its absence in the F. I. R. Of course, Ghulam Muhammad P. W. referred to the injuries of Ameera accused attributing them to his co-accused, Ameera suffered an incised wound on the back and a contused wound on the head. Having regard to the com plete suppression of the injuries of Haq Nawaz and Ashiq, we would be rather sceptical to accept this position. In his supple mentary statement Exh. D. F., Ghulam Muhammad had categorically stated that Ameera was the only person injured from the side of the accused party. At the trial, however, be specified that he was injured at the hands of Iqbal, P. W. 22 which was denied by the latter in his police statement Exh. D. H. Of course, at the trial, Iqbal P. W. 11 admitted having attacked Ameera with the Vaholi which was not recovered. He did not remember whether he had also given a blow to Haq Nawaz. Surprisingly enough earlier, before the committing Magistrate he categorically stated that he and his brother were empty-handed. Mumtaz P. W. 20 stated at the trial that he did not see Iqbal P. W. 22 injuring any of the accused persons. Likewise, Zafar Ahmad P. W. 21. stated in his police statement Exh. D. G. that the accused were injured at the hands of other co-accused. At the trial, however, stated that he could not say how the accused were injured. Of course, there was Vaholi lying at the spot. Yousaf P. W. 23 stated before the committing Magistrate that Ameera had received hatchet blow at the hands of Gul Sher accused while his son Ashiq at the hands of Haq Nawaz. On the other hand, he stated at the trial that the P. Ws. were empty-handed and he did not know who had inflicted injuries to the accused. These inconsistencies and contradictions strongly militate against the veracity of P. Ws. and the credibility of the version put forth by them.

19. Regarding the falsity of the evidence of recoveries, our attention has been drawn to a significant circumstance namely that Ismail P. W. 18 was named as one of the witnesses of the recovery of hatchet Exh. P. 9 Haq Nawaz, of hatchet Exh. P. 10 of Gul Sher of dang Exh. P. 11 of Allah Yar, of gun Exh. P. 19 of Nazar Muhammad had admittedly not signed any of the aforesaid recovery memos. which clearly goes to show that he was not present at the relevant time and having mentioned his name in anticipation, the police subsequently forgot to obtain his signatures on the recovery memos. However, they per se would not in our opinion, be good enough to reject the entire evidence of recoveries which for the purpose of the present appeal is primarily confined to gun P. 16 of Rab Nawaz and gun P. 19 of Nazar Muhammad. Similarly Exh. P. V. recovery memo. of blood-stained clothes of the accused produced by Muhammad ' Naseeb F. C. was not got signed by him. Notwithstanding these lapses we are of the view that evidence aliunde is available in regard to the recoveries of the guns from the two appellants.

20. It was not controverted on behalf of the State that once the right of private defence were conceded to Rab Nawaz and Nazar Muhammad there would be no question of the applica tion of section 34, P. P. C. particularly when there is no convincing evidence of their presence as the site and it is not established beyond doubt that both of them had come together from the same place reaching simultaneously.

21. It was further argued on behalf of the appellants that having regard to the nature of injuries suffered by Ameera of which one was incised wound 5 ' x 2 '' on the upper part of the back left side 2' below the neck and the contused wound 1 '' x ' x ' over the central part of the head which kept him in the hospital for about two months, as also having regard to the admitted presence of eight persons from the complainant side it cannot be reasonably inferred that the two appellants had exceeded in the exercise of the right of private defence, that in view of the acquittal of Ameera who gave vaholi blow to the deceased felling him on the ground and of Fazil who besides injuring Zafar Ahmad, Muhammad and Allah Ditta P. Ws. had also fired at the deceased with his gun P. 17 which was found to be out of order by Shahjehan P. W. 27 the fire-arm expert, and the author of the fatal injury could not be determined and as such both the appellants were entitled to acquittal on benefit of doubt. Reliance was placed in this regard on Ram Parsad and others v. The State (A I R 1959 All. 790) and Ahmad and others v. Emperor (A I R 1919 Lah. 458).

22. Having considered the contentions we see much force in it. Obviously the invocation of the principle of constructive liability against persons fighting in self-defence would be simply absurd and a contradiction in terms. Having regard to the admitted fact by the complainant side that it was the turn of water of Haq Nawaz, that water had flowed into the field of a deceased who was sitting closeby along with seven others near relations, as also the plausibility of the plea raised by Haq Nawaz Ameera and Ashiq further considered in the light of suppression of material evidence by the P. Ws. Who were near relations of the deceased and had a background of blood-feuds, with the appellants also their collaterals, we are inclined to think that originally the quarrel started between Haq Nawaz and some members of the complainant party who had already gathered there and that the two appellants were subsequently attracted to the spot and had tired in exercise of the right of private defence. Thus in the circumstances of the case when six out of the eight accused persons were acquitted by the learned trial Judge, the case would attract the invocation of the principle of indivisibility of credibility. Again the incised wound sustained by Ameera would clearly justify the inference that he along with Haq Nawaz and Ashiq who were also injured had a reasonable apprehension or danger to life and as such it cannot be justifiably held that the appellants had exceeded in the exercise of their right of private defence to get possession of water or rescue their companions by firing several shots with their guns resulting in the unfortunate death of Gul Muhammad. Accordingly, we allow this appeal, set aside the convictions and sentences of the appellants and acquit them. They shall be released from the jail if they have not already secured their release after having undergone the sentences subject to their detention in any other case.

23. In view of the above finding, it is hardly necessary for us to examine the contentions raised on behalf of the petitioner seeking enhancement of Sentences, The Revision petitions fail and are dismissed. Appeal accepted.