P L D 1962 (W (PLP)

KHAMISANI, J.‑The appellant Samoo has been convicted under section 302, Pakistan Penal Code, and sentenced to transportation for life. He has filed this appeal.

2. The facts of the prosecution case briefly are that a piece of land measuring about one and a half acres was situated in the village of the parties near the house of the complainant. The appellant had made an offer for the purchase of this land but the Government had refused to grant him the land. Some time before this incident, the deceased Saindad bad also given an offer for the purchase of the same land. The case of the prosecu tion further is that the appellant had let in water in this survey number with a view to cultivate it on or about the 29th June 1960. Dadoo, son‑in‑law of the deceased Saindad, saw this and went and informed Saindad about it. Saindad and Dadoo then went and stopped the water flowing into the field at night time. On the morning of 30th June 1960, the appellant came to the scene and again let the water flow in the land. The deceased Saindad is then said to have gone to the field and prevented the appellant from letting the water into the land. The appellant did not listen to the deceased on which there was an exchange of abuse between them. The appellant is then said to have given a blow with a hatchet on the head of the deceased on account of which he fell down and ultimately died. Punhoon, Ali Khan, Dadoo and others, who were in their respective fields, came to the scene. The appellant on seeing them threw away his hatchet and `gethla' and ran away. He was pursued but he could not be caught. Punhoon, therefore, filed first information report, Exh. 8, at 9.15 a.m. on the same day at Naushahro Feroze Police Station which was at a distance of about six miles from the scene of offence.

3. The police came to the scene of offence and prepared its Mashirnama. They also secured the hatchet and `gethla' lying on the scene. They examined the witnesses. After the usual investiga tion was completed, the appellant was challaned.

4. The appellant, when questioned, admitted to have caused the Injury to the deceased but pleaded the right of the exercise of private defence. He has examined no witness in defence.

5. The question whether the deceased received an injury with a hatchet and died on account of it is not disputed. The evidence of Dr. Noorul Huda, Exh. 19, and the evidence of the witnesses conclusively proves that the deceased died on account of the injury that was inflicted on him. Even the appellant admits to have caused this injury.

6. The question whether the appellant caused the injury which resulted in the death of the deceased is also not disputed. The appellant in his statement under section 342, Criminal Pro cedure Code, has clearly admitted to have caused the injury to the deceased which resulted in his death. The prosecution have also examined Punhoon, P. W. 3, All Khan, P. W. 4 and Dadoo, P. W.

6. All these three witnesses state with unanimity that the Injury which caused the death of the deceased was inflicted by the appellant. These three witnesses are also supported by Allah Rakhio, P. W. 6, to whom information was given immediately after the incident.

7. The only question that needs to be resolved in the present appeal is whether the injury inflicted upon the appellant was in the exercise of the right of private defence as pleaded by him. The statement of the appellant in which he sets out the case of private defence reads as under: "I have been cultivating the land in dispute. I have also a house built there. The land is in my possession. About 6 months ago, I had let in water in my land. Saindad, Punhoon, Ayub and Dadoo came in a body to kill me. Deceased Saindad had a lathi. The other three had hatchets. Deceased on coming to me abused me and told me why I had let in water. I told him I was in possession and enjoyment of it. He abused me and gave me a laths blow. His other companions also had nearly reached me. The deceased also gave another blow. In self‑defence I gave him a hatchet blow. The other companions of the deceased tried to arrest me but I left the vardat and ran away to my uncle." In order to appreciate the truth or falsity of what has been alleged by the appellant, it is necessary to see as to what the evidence on the record is. It is admitted that the land in dispute was in possession of the appellant although he bad beep cultivating it Unauthorizedly and had been paying penalty for it to the Government. It is also admitted that the appellant had given an offer for the purchase of this land from the Government. It is also admitted that the appellant had let in water in this cultivation on 29th June 1960 with a view to irrigate it and grow cultivation. It is also admitted that the flow of the water was stopped by the deceased and his son‑in‑law Dadoo on the night between 29th and 30th June 1960. It is also admitted that the appellant let water flow in his cultivation on the morning of 30th June 1960. It is also admitted that Saindad had gone to the land and prevented the appellant from irrigating the land. It is also admitted that the deceased Saindad had abused the appellant on letting water in the land. What is disputed is whether the deceased gave injuries to the appellant with a lathi before the appellant gave a blow to the deceased with his hatchet. Out of the three witnesses, Punhoon, Ali Khan and Dadoo, who have been examined in this case, Punhoon, who is the real brother of the deceased, has admitted in his cross‑examination that the deceased had given a blow with his lathi to the appellant before the appellant gave him a blow with the hatchet. The exact words used by Punhoon in his evidence read as under :‑ "We had not given blow to the deceased. Deceased Saindad had given a lathi blow to the accused. Then the accused had given him a hatchet blow." This admission made by Punhoon is of very far reaching con sequence. This fact has not been admitted by Dadoo, P. W.

6. It has also not been admitted by Ali Khan, P. W.

4. It can well be argued in favour of Ali Khan that he had not seen the lathi blow being inflicted on the appellant before he saw the appellant giving a blow to the deceased as he was at some distance and was attracted to the scene on a commotion; The blow with a laths given by the deceased to the appellant may have preceded Ali Khan having been attracted on the commotion. In view of the statement made by the real brother of the deceased, it is difficult to escape from the conclusion that the deceased had given a blow with a lathi to the appellant before the appellant gave him the blow with a hatchet. The evidence of Punhoon stands supported strongly by the evidence of Dr. Noorul Huda, Exh. 19, who has, in his evidence, stated as under :‑‑ "I examined him and found the following injuries on his person :‑ (1) A bruise 2" x 3/4" at the radial side of right wrist joint. (2) A bruise 3/4" x " at the middle of the back side waist. (3) An abrasion 1/8" in diametre at the knuckle of left index finger. The injuries appeared to have been caused by blunt weapon like laths and were simple in nature. He was treated as an outdoor patient for that day only whereafter he did not turn up, otherwise he would have taken 5‑6 days more to cure completely." The evidence of the doctor leaves no doubt, in our mind, that there were two injuries with a lathi on the person of the appellant. The view of the learned Judge, who decided this case on this question is as under: "I will accept his defence to the extent that while he was standing in the land in dispute the deceased armed with a lathi came there and gave him lathi blow with a view to drive him out. Punhoon, brother of the deceased, admits that the deceased had first given lath! blow to the accused and the accused then inflicted a hatchet blow upon the deceased. Ali Khan and Dadoo deny that the deceased had given any lathi blow to the accused. In this respect they are false. The accused was found by Head Constable Muharram Khan to have injuries. He sent him to the doctor for examination. The doctor found three injuries on the accused. They were two bruises. They were on the right wrist joint and shoulder. The third injury was an abrasion on the left index finger. The bruises according to the opinion of the doctor could be caused by lathi or a fall. The accused says that he had received two lathi blows. Punhoon has admitted that the deceased had given only one lathi blow. Since the Injuries were very simple on the accused, it is likely that the deceased had Inflicted only one laths blow upon him. Since two injuries according to the opinion of the doctor could be caused by a lathi, I will accept the pleas of the accused that the deceased had Inflicted two lathi blows upon him. I shall then consider whether he had any right to give hatchet blow to the deceased on his head." The learned Judge has been clearly of the view that the deceased had given blows with a lathi to the appellant before the appellant gave him a blow with a hatchet. The circumstances of this case will also indicate and support the case of the appellant that the deceased may have given blows with a lathi to the appellant. The land was in possession of the appellant since a long time and he had been cultivating it. It is nowhere on the record that the deceased had at any point of time before the date of the incident objected to the appellant cultivating this land. It was for the first time that the deceased had objected to the appellant allowing water to flow in this land only because the deceased bad made an offer for the purchase of this land from the Government. The view of the learned Judge that the deceased had taken law into his own hands and bad gone on the field to dispossess the appellant without any justification is, in our opinion, a correct view. The learned Judge has, however, taken a wrong approach to the other aspect of the case when he says that the appellant was also not justified in giving an injury to the deceased. The appellant was in possession of the land and had been cultivating it. The appellant used to pay penalty to the Government every time he cultivated it. It did not lie within the rights of the deceased to go on the land and have the appellant dispossessed. The deceased did not stop short at that but went further and abused the appellant. He was not satisfied with the abuses he had hurled at the appellant but gave two blows to the appellant. It is difficult, in the circumstances, for the appellant to know that the deceased would not deal him a third blow which will cause grievous hurt. The fact remains that a lathi had been used on the appellant. It is not only one blow that had been dealt. Two blows had been given with a lathi. The appellant was, therefore, in our view, well within his rights to exercise the right of private defence and deal a blow to the deceased which resulted in his death. The learned Judge has been wrong in holding that the appellant should have left the cultivation on being abused or on being given lathi blows and gone to the police and reported the matter. If the appellant was not justified to remain in possession of the land, there was no justification for the deceased also to go on the land and use force to ask the appellant to leave the land. The land belonged to the Government. The only thing in favour of the deceased was that he had given an offer for the purchase of it. Giving an offer to purchase the land does not confer-right of ownership on him. The deceased had acted in a high handed manner and had used force which gave justification to the appellant to use force In return and save his own person from the apprehended grievous hurt or death. The learned Judge has also been wrong in discarding the plea of self‑defence of the appellant by holding that the statement of the appellant in every detail was not true or was not, at any rate, probable. The truth or falsity of the statement given by the appellant will not be a correct criterion for coming to a right conclusion in a case. It is the prosecution evidence on which the case of the prosecution will always sink or sail. If the prosecution evidence is such that from it a reasonable benefit of the right of exercise of private defence could be extended to an accused, it shall not be refused to him merely because the statement given by him is not in total consonance with the probabilities in the case.

8. We have, however, given our best consideration to the facts of this case and we are clearly of the view that the appellant had given the blow to the deceased in the exercise of his right of private defence. He is, therefore, entitled to an acquittal. The learned Assistant Advocate‑General, who is appearing in this case on behalf of the State, has also been of the view that the appellant is entitled to the benefit of the right of exercise of private defence. We, therefore, accept the appeal of the appellant and acquit him. He is in jail and shall be released forth. S. B /A. H. Appeal accepted.