1988 PLP 532 (SCMR)

ALI HUSSAIN QAZILBASH, J.--This is a petition for leave to appeal against the judgment of the Lahore High Court, Multan Bench, dated 2-5-1984, whereby the appeal of the petitioners and their co-convicts was dismissed.

2. The facts as given in the F.I.R. are that on 8-6-1980 at about 2 p.m., a servant of Ghulam Yasin co-convict, went to the fields of sugarcane belonging to Atta Muhammad deceased, situate in Mauza Dauranwala, Tehsil Lodhran, District Multan, and started digging watercourse towards the land of Ghulam Yasin. Atta Muhammad restrained him and asked him to convey his message to Ghulam Yasin that he (Atta Muhammad) .would not permit the diversion of water and if Ghulam Yasin insisted on it he should himself come there. The servant of Ghulam Yasin went away and it was at about 4 p. m. the same day that Ghulam Yasin, Shams-ud-Din and Din Muhammad armed with hatchets, Khadim Hussain, Ghulam Mustafa and Muhammad Shauqin armed with Sotis went to the house of Atta Muhammad and raised a lalkara, upon which Abdul Majid and his father Atta Muhammad came out of their house when Ghulam Yasin said that he had come to irrigate his land. The deceased beseached them to spare their lives but in the meantime Din Muhammad gave a hatchet blow on the head of Atta Muhammad who fell down. Shams Din gave a hatchet blow on the left hand of Atta Muhammad. In the meanwhile, Allah Yar, his son Manzoor Ahmad, Abdul Samee , son of Abdul Majid, Ibrahim, Muhammad Yousaf, Abdul Aziz, Mst. Rehmat Mai (mother of Abdul Majid) came out of their house. The petitioners and their co-convicts attacked them one after the other and in the process Ghulam Mustafa petitioner and Khadim Hussain -co-convict delivered hatchet blows on the right and left side of the head of Allah Yar. Ghulam Yasin gave a hatchet blow on the right hand of Allah Yar who also fell down. Din Muhammad petitioner then gave two hatchet blows on the head of Abdul Aziz P.W. When Mst. Rehmat Mai P.W. advanced to rescue her husband Atta Muhammad, Ghulam Yasin gave a hatchet blow on her head while Khadim Hussain and Muhammad Shauqin co-convicts gave her Sota blows. The petitioners and their co-convicts also inflicted injuries on Abdus Samee and Ibrahim. A large number of persons came to the spot, as a result of which the assailants made their escape good from the place of occurrence. Atta Muhammad was found dead at the spot who alongwith Allah Yar and other injured P.Ws, was taken to the hospital where Allah Yar also breathed his last. After about an hour of the arrival of the complainant party in the hospital, the police reached there and recorded the statement of Abdul Majid P.W. on the basis of which F.I.R. Ex.P.A. was drawn.

3. The investigation in this case was taken in hand by Abdul Aziz A.S.I. who recorded the statements of P.Ws. and delivered the dead bodies for autopsy and entrusted the rest of the investigation to Tassadaq Hayat S.H.O. On 23-6-1980, Tassadaq Hayat arrested Din Muhammad, Ghulam Yasin, Muhammad Shauqin, Ghulam Mustafa, Khadim Hussain and Shams Din who led the police to the recovery of hatchets EXS.P.3. P.6, Sotas P.1, P.5, P.4 and P.2, respectively, which were taken into possession in the presence of the witnesses and then he sent the petitioners and their co-convicts to judicial lock-up on 24-6-1980. After the completion of the investigation, the petitioners alongwith others were put to trial, where the prosecution produced as many 16 witnesses. The petitioners in their statements under section 342, Cr.P.C. pleaded not guilty to the charge and denied the recoveries from them. Ghulam Yasin produced copy of Khaka (Ex.DG) indicating outlet No.13,300, Jalalpur Distributory, showing the canal watercourses, its Nakkas with reference to the lands of Mauza Dauranwala and he made a detailed statement admitting the occurrence but pleaded right of self-defence of his person and property. He attributed the injuries on his person to the complainant party and further deposed that in the clash which ensued between (he parties, the complainant party also received injuries.

4. The trial Court accepted the plea of private defence of the person and property available to the petitioners but held, vide its judgment dated 9-6-1981, that they have exceeded their right and thus convicted the petitioners under section 304, Part I, P.P.C. and sentenced each of them to imprisonment for life and a fine of Rs.500 or in default to four months' R.I. It imposed further fine of Rs.10,000 on each of the petitioners and ordered that the same on recovery be paid to the heirs of Atta Muhammad and Allah Yar deceased. It was further ordered that in the event of non-payment of the above amount, each of the petitioner has to undergo another four months' R.I. Din Muhammad was further convicted under section 324, P.P.C. on two counts and sentenced to two years' R.I. on each count and was ordered to pay compensation of Rs.1,000 to Abdul Majid and Abdul Aziz P.Ws. each, or in default to six months' R.I. Ghulam Mustafa petitioner has further been convicted under section 325, P.P.C. and sentenced to three years' R.I. with a fine of Rs.500 or in default to four months' R.I. He has also been ordered to pay a sum of Rs.1,000 as compensation to Abdul Majid P.W. or in default to six months' R.I. An appeal was taken by the petitioners in the High Court but the same was dismissed vide order dated 2-5-1984.

5. We have heard the learned counsel for the petitioner and have gone through the judgments of both the Courts. The main ground taken up by the learned counsel for the petitioners is that the petitioners are entitled to acquittal on the ground of right of private defence of the person and property. In this regard he invited our attention to the statement of Dr. Zia-ud-Din (PW.5) who had examined Ghulam Yasin co-convict on 8-6-1980 and found the following injuries on his person: "(1) An incised wound on the palm of right hand and mid-finger 10 c.m. x ?? c.m. x 3/4 c.m. vertically. (2) An incised wound on the back of the root of the neck extending upwards obliquely 8 x ?? x ?? c.m. (3) Contusion mark on the forehead near the root of the nose 2 ?? c. m." Injuries 1 and 2 were caused by sharp-edged weapon while injury No.3 was caused by blunt means. Dr. Zia-ud-Din (PW.5) had deposed that there was bleeding from injury No.2 and that the bleeding would have caused death had he not been brought to the hospital immediately. The learned counsel for the petitioners thus submitted that the prosecution has not explained the injuries on the person of Ghulam Yasin in the F.I.R. or at the trial and has deliberately suppressed the injuries and thus has twisted the whole story. He further submitted that the injuries on the person of this accused belie the prosecution witnesses that they were not armed and that they had not attacked the accused. He also submitted that there is ample evidence from the side of the prosecution that Ghulam Yasin accused was irrigating his land from legitimate sources of irrigation while Atta Muhammad deceased and the P.Ws. took upon themselves to interfere with that. The learned counsel invited our attention to the following observation made by the learned trial Court while dealing with the question of right of private defence raised by Ghulam Yasin: "The circumstances of the case mentioned above support the defence that Yaseen accused was irrigating his land through the sanctioned water-course on his own turn of water when Atta Muhammad Abdul Majid and others interfered and tried to stop the flow of water. Yaseen who resisted this attempt was assaulted by the complainant party and he received injuries mentioned above. His cries attracted the rest of the accused who came to the spot and caused injuries to the deceased and the P.Ws. in order to save Yaseen who was maintaining his right to irrigate his land from the sanctioned water-course. * * * * * * The material on record shows that the accused had a right of defence of the property as well as that of person available to them." Having come to this finding, the learned counsel for the petitioners submitted that the learned trial Court has erred in holding that the petitioners had exceeded the right of their private defence. He further took us through the judgment of the High Court and vehemently submitted that the learned Judge in Chambers has dealt with the plea of private defence of person and property in a most slipshod and perfunctory manner which has resulted in the miscarriage of justice. After considering the arguments of the learned counsel for the petitioners we are of the view that the points raised need examination. Leave to appeal is thus granted.

6. The prayer of the petitioners for their release on bail is rejected but we direct that the appeal be heard at Rawalpindi in April 1987 on the present record with liberty to the appellants to file additional documents, if any. S.Q./D-16/S??????????????????????????????????????????????????????????????????????????? Leave granted.