1983SCMR 648 (PLP)

(1) A stab wound on the right armpit at the upper and of the inner of the right arm. Its size was 1" x 3/4' and it was directed inwards for 3'. The axillary artery cut in the course of the wound. (2) A contused wound on the back of the right arm at the lower 1/3rd size 1' x 1/3' x skin deep. (3) A contused wound on the forehead 2' above the right eye‑brow size 1" x 1 /4' x scalp deep. (4) A contused wound on the middle of the top of .the head, size 2" x 1 /2' x bone deep. The stomach contained about 6 ounce semi‑digested food matter and the bladder was empty. Injury No. 1 was caused with sharp‑edged weapon and the other injuries with blunt weapon. All the injuries were ante‑mortem, In the opinion of the Medical Officer the deceased died due to massive injury and shock on account of injury No. 1 which was sufficient in the ordinary course of nature to cause death. The time bet ween injuries and death was a few minutes and that between death and post‑mortem about 24 hours. The two injured P. Ws., namely, Abdul Qadoos (P. W. 15) and Siraj Din (P. W. 16) alongwith four injured persons of the accused‑party, namely, Fazal Din, Nazir, Abdul Rehman (Petitioners 1, 3 and 4 herein) and Ibrahim accused, were examined by Dr. Muhammad Afzal Malik the 'then A.M.O., Khudian, on 14th June, 1969. As many as 16 injuries were found on the person of Abdul Qadoos (P. W. 15). Injury No. 8 (a reddish mark of contusion 2'x 1/4' on the lateral aspect of the ,left thigh oblique) was kept under observation and was later declared as simple vide X‑Ray Report. Injury No. 2 on his person was with a sharp‑edged weapon and the rent by blunt weapons, On the examination of Siraj Din (P. W. 16) as many as 7 injuries were found on his person. Injury No. I (an incised wound (3" x I/4' x 1/4') on the left parietal region 5" above the left ear vertical and injury No. 5 (an incised wound 1 " x 1 /2" x 112") on the terminal phalanx of the right thumb on the posterior aspect, were kept under observation and were declared simple later on vide X‑Ray Report. Injury No. 1 was caused with a sharp‑edged weapon while the rest were with blunt weapons. Ibrahim (accused) was examined the same evening and five injuries were found on his person. Injury No. 1 (a clean cut mark 1" x 1/16' x superficial on the right parietal region 3 above the right ear oblique) was caused by a sharp‑edged weapon, while the rest were with blunt weapon. All the injuries were simple and self‑inflicted. On the examination of Fazal Din accused (petitioner No. I herein), tour injuries were found on his person. Injury No. 1 (a clean cut mark 1/2' x 1/16' x superficial on the right parietal region at the back of the head oblique 3 above the right ear) and injury No. 2 (a clear cut mark 1/4' x 1 / 16" x superficial on the right partiatal region in front oblique 3' from the right ear) were caused by sharp‑edged weapon, while injuries Nos. 3 and 4 by blunt weapon (self‑inflicted). All the injuries were‑ simple in nature. Three injuries were found on .the person of Abdul Rehman accused (petitioner No. 4 herein). All the injuries were caused by sharp‑edged weapon (self‑inflicted) within 2 to 3 hours. Nazir accused (petitioner No. 3. herein) was also examined the same evening. He had 3 injuries on his 'person. ' All the injuries were simple in nature and caused with sharp‑edged weapon (self‑inflicted) within 2 to 3 hours. The accused persons when examined under section 342, Cr. P. C. denied the allegations and ascribed the case to enmity. Ibrahim, Fazal Din, Nazir and Abdur Rehman (accused) stated that Bagh Ali (deceased). Abdul Qadoos (P. W. 15) and Siraj Din (P. W. 16), armed with lethal weapons had committed trespass in Khasra No. 1072 in order to take its possession and the P. Ws. and the deceased first attacked them and they had only acted in exercise of the right of private defence of their person and property, which was in their possession. The rest of the accused also denied the allegations and recovery of weapons from them. The accused Ismail, Muhammad Anwar, Muhammad Latif, Muhammad. Ramzan and Ch. Khurshid Ahmad denied their presence Ch. Khurshid. Ahmad (accused) explained that the prosecution witnesses had deposed against them because he had been appointed spurted of the land in dispute. Muhammad Hanif accused (petitioner No. 2 herein) alone denied his participation and stated that he had gone to Sind before the occurrence and on learning about the allegation against him voluntarily surrendered himself before the committing Magistrate. He also stated that‑ he owned 1 /4th of the disputed Khata and 1/4th of the Khata at Chah Kabranwala which he had mortgaged with Hakim Abdul Majid complainant who after the expiry of the period of mortgage was not willing to allow redemption on payment of the mortgage money on account of which he had been obliged to get the land redeemed through Revenue Court, Kasur He further stated that after redemption he re‑mortgaged the land with Ibrahim (accused) and the complainant having felt annoyed by the above two acts had falsely involved him. He . further stated that Hakim Abdul Majid (complainant) was still in possession of his (Hanif accused's) share of the land and was usurping the usufruct thereof. He, however, led no evidence in defence. The learned Additional Sessions Judge, Kasur, in his judgment dated I8th December, 1973, arrived at the conclusion that so far as the injured accused, namely, Ibrahim, Fazal, Nazir, Abdul Rehman are concerned, their had participated in the occurrence. They wanted to divert canal water to land bearing Khasra No. 1072 at a time when it was the turn of the complainant and that the injuries found on their person were self-inflicted. He, however, acquitted Latif, Ismail, Anwar, Ramzan and Khurshid. Fazal Din (petitioner No. 1 herein) was convicted under Section 304, Part I, P. P. C. .for inflicting the fatal blow to Bagh Ali and causing his death and sentenced to imprisonment for life He also con victed remaining three petitioners, namely Hanif; Nazir and Abdul Rehman (petitioners Nos. 2, 3 and 4 herein) alongwith Ibrahim (co-accused) under section 324, P. P. C. for voluntarily causing hurt to the injured P. Ws. and sentenced them to 2 years R: I. each. He also found all the five convicted accused guilty under section 148, P. P. C. and sen tenced‑ them to undergo further R. I. for one year each. All the sentences wire ordered to run concurrenly. On appeal, a learned Single Judge of the Lahore High Court, by his judgment dated Ist July, 1975, maintained the conviction and sentence of Fazal Din (Petitioner No. 1 herein) under section 304, Part I, P. P. C. The convictions and sentences of the other four convicted co‑accused under section 324, P. P. C. were also maintained with the modification that Ibrahim's sentence was reduced to that already undergone, on account of old‑ age. The convictions and sentences of all the five convicts accused under section 148, P. P. C. were, however, set aside. Dissatisfied with the above judgment of the High Court petitioners have moved this petition for special Leave to Appeal. In support thereof it has submitted that the crucial issue for assign ing the responsibility for this tragic incident on one party or the other was as to which of them was in possession of Khasra No. 1072. The Investigating Officer categorically stated before the trial Court that according to his investigation on the day of occurrence, the physical possession of Khasra No. 1072 was with Ibrahim accused, the father of Fazal Din (petitioner No. 1 herein), Exh. D. B. and Exh. D. B./ 1 established possession of Ibrahim over the Khasra in dispute on the day of occur rence. This piece of evidence was ignored by the learned Single Judge of the high Court. As the possession of the plot of land in dispute was that of the accused‑party the conviction of petitioners was not warranted and they had merely acted in exercise of right of private defence of person and property. The above plea was also raised in the Courts below and has been considered by the trial Court and by the learned Judge in the High Court. It was found that the evidence on record established that the trouble started when a member of the petitioner‑party tried to divert the water to land in Khasra No. 1072 and the deceased restrain ed him from doing so. Thereupon, a free fight ensued between the parties wherein the petitioners inflicted injuries to the deceased and the P. Ws. The case was, in fact, one of free fight. Consequently no right of self‑defence was available to any member. Even otherwise the defence plea was improbable insofar as members of the complainant‑ party were mercilessly beaten and one of them done to death whereas the members of the petitioner party had only suffered slight injuries which too had been found by medical evidence to be self‑inflicted. The question of the petitioners having acted in the right of self‑defence, in these circumstances, did not, therefore, arise. We agree with the above appreciation of the situation. The learned counsel for, the petitioners was unable to point out any misreading o evidence or any other illegality or impropriety in the order of the High. Court. No case for interference by this Court in these proceedings, has been made out. The petition fails and is hereby dismissed. Leave refused.