1969 PLP 192 (SCMR)

Date of hearing : 4th December 1968. MUHAMUAD YAQUB ALI, J.‑Leave to appeal was granted in this case to consider whether in the circumstances of the case the conviction of the appellant under section 304, Part II, P. P. C. was justified in law. The appellant was tried along with seven others on charges under sections 148, 302/149, 323/149, 365/149 and 392/149, P. P. C. The prosecution case against the accused persons was that on the 11th of June 1962, at about noon they formed an unlawful assembly armed with deadly weapons with the common object of committing murder of Inayat and Ghafran, deceased, and indicting injuries on several other persons in the area of village Muridke. The accused persons belong to village Jhamke at a distance of 17/18 killas' from Muridke and a Sem‑Nala intervenes between the lands of the two villages. On the date of occurrence the accused let loose their 60/70 heads of cattle in the field of one Siddiq P. W., of village Muridke and themselves stood guard at a short distance. Ismail, P. W., who saw the cattle in the field of Siddiq informed Ch. Bashir Ahmad P, W., of Muridke who was already trying to intervene and bring peace between the parties over a similar dispute. Baju, a servant of the appellant, had let loose twelve cattle in the field of Siddiq, P. W., on the previous day. He was caught hold of by Siddiq and given beating which infuriated the accused persons who had come to take revenge. On being informed that the accused persons had let loose their cattle in the field of Siddiq and were themselves standing nearby in a threatening pose, a number of persons of village Muridke Went towards the field of Siddiq to prevent damage to his crops. Inayat and Ghafran, deceased, were the first to reach there and tried to round up the cattle when the appellant gave a spear blow to Inayat who died instantaneously. Ghafran, deceased, was given a spear blow by Ashiq, accused, which felled him also to the ground. Anwar, accused, thereupon fired two shots at Ghafran who too expired on the spot. Thereafter a free fight took place between the parties in which they caused injuries to one another. The appellant and several others of the accused persons admitted their participation in the occurrence, but set up the plea that they hid acted in self‑defence when the two deceased and some others attacked them with deadly weapons while they were taking their cattle to the Sem‑Nala for watering. The Courts below came to the conclusion that there was sudden fight between the parties in the course of which blows were exchanged. Therefore each of the person was responsible for his individual act and there was no unlawful assembly. The appellant Was convicted under section 304, Part II, P. P. C. and sentenced to ten years' rigorous imprisonment and a fine of Rs. 1,000, and in default of payment a further rigorous imprisonment of six months. The High Court intervened with the sentences of some of the other accused, but in the case of the appellant his appeal was dismissed as his case stood on a different footing. The broad features of the case are no longer open to question. 60/70 heads of cattle brought by the appellant and his co‑accused were let loose in the crop of Siddiq, P. W., when the two accused and other persons from village Muridke arrived there. An attempt was made to round up the cattle for impounding them, but the accused persons foiled the attempt and drove away the cattle towards the Sem‑Nala. The two deceased persons made another attempt to round up the cattle which by then had not been driven away to such a distance as to confer on the accused persons the right of private defence of property. It .was at this stage that the appellant caused the fatal blow with the spear to Inayat, deceased. The evidence in support of this version is ample and quite trustworthy. The Courts below have concurrently acted on it and we find no proper ground to depart from their view. There are other features which supported the prosecution case. The fight took place on the Muridke side of the Sem‑Nala which showed that the accused persons had trespassed into the land of Mohammad Siddiq, P. W., and as they were armed with spears and firearms it betokened aggressive design on their part. There was also no right of private defence of the person of the appellant, He was found to have suffered eight injuries in the region of the right arm including fractures of the right, third and fourth matacarples. Cumulatively these injuries were sufficiently serious to have disabled the appellant from wielding the spear with which Inayat deceased was injured. The plea that the appellant had caused the fatal injury to the deceased in the exercise of right of private defence was, therefore, per se untenable. In this vices the appellant was guilty of the offence of murder and should consider himself fortunate that the Courts below have convicted him under section 304, Part II P. P. C. There is no substance in the appeal and we hereby dismiss it. Appeal dismissed