1973 P Cr (PLP)

The disputed land was in our possession." Of the appellant's party the appellant himself was injured and had the following injuries on his person as found by Dr. Abdul Ghaffar when he examined him at 10-30 a. m. the same day: - (1) A contused wound 2' x ' bone deep on the vertex head. (2) A contused wound 1' x ' bone deep near injury No. 1. (3) A contused wound 1/4' x 1/4' on the aback of the left forearm in its middle. (4) A bruise mark 1' x 1' in the middle of the right forearm. He was complaining of severe pain. (5) A contused wound 1/4' x 1/4' and swelling 3' x 3' on the back of the right elbow joint. (6) A bruise mark 3' x 3' on the back of the right chest. (7) A bruise mark 3' x 3' on the back of the left chest. (8) A bruise mark 3' x 3' on the outer aspect of the left leg. (9) A contused mark 1' x ' in the middle of right middle and ring finger. Injuries Nos. 1, 2 and 4 were kept under observation but no X-ray could be obtained as the X-ray machine was out of order. Another companion of the appellant Hussain Bakhsh had three contused wounds, one swelling and three bruise marks while Sohna, the third companion had one contused mark and a bruise mark. The appellant and his companions had also reached the hospital while the police officer who had come to record the first information report on the information of tire doctor was still there. On the statement of the appellant's party and on account of their injuries a cross-case against the com plainant party was also registered.

5. The trial Judge on a consideration of the evidence came to the conclusion that the possession over the disputed land was proved to be of the appellant. It was also held by the trial Judge that the deceased had not only objected to the construction of the wall but had also demolished portions of it which fact was borne out from the inspection of the spot by the Investigating Officer. It was also held that section 103, P. P. C., was not attracted to the aid of the appellant for mere demolition of the wall gave no right to the appellant to cause the death of Bola. From the nature of the injuries on the person of the appellant and his associates and of the complainant it was concluded that the complainant party could not have been the aggressor because if they were the aggressors and had the weapons attributed to them more damage would have been caused to the appellant and his associates. It was also held that the object of the deceased and his party-men was only to demolish the wall and no motive to initiate attack. The trial Judge, however, canto to the conclusion that there was open fight and that the appellant and his party men were given stick blows. The intention to cause death of Bola or Mahi was found lacking.

6. There are certain features of the case which have not received proper consideration. Firstly, there was no attempt or effort by the complainant party to get a report of the occurrence lodged in spite of the fact that one of them had been seriously injured and was on the verge of death and the blood-stained weapon of offence used by other party had been picked up and carried all along to, the hospital. There is no explanation for this omission. As a matter of fact Mahi (P. W. 9) stated at the trial that Hussan (P. W. 10) had been sent to the Police Station Choti for lodging the report. Hassan does not own it. He did not reach the Police Station. He was not handed over by Mahi the hatchet which necessarily was to be produced before the police at the time of the lodging of the report. This reluctance to lodge the first information report about such an occurrence and to produce the blood-stained hatchet taken from the appellant would, in the circumstances of the case, show that either the dispute was sudden or the complainant party were the aggressors. Considered with the other evidence the latter seems to be the more probable conclusion.

7. As regards the hatchet all that the witnesses say is that it was lying where the appellant was erecting the wall. It was not required in the process. It had been picked up at the time of the occurrence. Mahi (P. W.9) says that he disarmed the appellant of this hatchet and took with him to the hospital. Ordinarily a weapon belonging to the opposite-party would not be kept in possession by the other party for any length of time than is absolutely necessary, more so, when such weapon also bears the stamp of the commission of the crime in the form of human blood stains. The lack of concern and urgency exhibited by Mahi (P. W. 9) in handling such a weapon and in carrying it with him would show that it was probably not of the appellant's party. This conclusion is reinforced by the fact that Mahi and his father whether they had been going to their own field in the morning or coming to the spot to protest against the erection or to demolish the wall could not have been unarmed. Even if their purpose was to demolish the wall they must have brought something with them to accomplish their task. The mud wall freshly constructed does not need an unusual implement to demolish it. Hassan the other brother of Mahi (P. W. 9) had admitted that the intention of the appellant to construct the wall was known beforehand because he had prepared the mud a day earlier and that the deceased had forewarned him not to construct the wall, Therefore, on the morning of occurrence the construc tion of the wall was no more a surprise for the complainant party and they could not have approached empty-handed to protest to the appellant against the construction. There being evidence to show that in fact force was used in demolishing the wall the act of the appellant would fall within the definition of mischief as provided in the, penal law. There has been a notice able suppression on the part of the prosecution witnesses" in trot stating anything about such demolition and the manner it was, accomplished. There was also reluctance to state about the injuries inflicted on the appellant and his associates. Taking stock of all these factors it is definite that the complainant party must have approached armed.

8. Once a conclusion is reached that the complainant party had the knowledge of the construction of the wall, and had taken exception to it earlier and were out to demolish it when they were armed, it cannot be said that the appellant could not reasonably apprehend that they were out to commit mischie under circumstances which could reasonably cause apprehension of grievous hurt. It is the weapon handled by the complainant party and their object which could give rise to such an apprehension. There were a number of them for according to Mahi (P. W. 9) himself at least four of them had gone there, o joined there.

9. The authors of the Penal Code in providing the rationale of Exception II to section 300 observed that: "We are, therefore, clearly of opinion that the offence which we have designated as voluntary culpable homicide in defence ought to be distinguished from murder in such a manner that the Courts may have it in their power to inflict a slight or merely nominal punishments on acts which though not within the letter of the law which authorises killing in self-defence, are yet within the reason of that Law." Again it is well-known principle of criminal trial that a person under the stress of self-preservation of property or person is no expected to measure in a golden scale the degree of there exhibited to his person or property before he can avail of the benefit provided under the law. The complainant party having earlier objected and to have appeared on the scene not without weapons and to have started demolishing the wall could reason ably raise the apprehension in the mind of party subjected to such aggression that grievous hurt was likely to be caused. 9A. The extent of injury on one party as against the other is not in every case a good guide for fixing the quantum of responsibility for the occurrence. In the present case, it would not be a guide at all for the object of the two parties was quite different. The complainant party had come to demolish the 1 wall. Therefore, they could not be expected to open an assault. They had to be resisted in committing that mischief and in the process they used their weapons but the appellant's party who was subjected to such aggression used the weapons more effectively

10. From the facts and circumstances of the case the appellant succeeded in establishing that he acted in the exercise of the right of private defence of property and person and did not exceed the same. He is, therefore entitled to acquittal. I accept the appeal, set aside his convictions and sentences and acquit him of the charge. . He shall be released forthwith if his detention is not required in any other case: Appeal accepted.