1985 P Cr (PLP)

S. Zafar Abbas Zaidi for Petitioner No.1 H. Saadullah Khan, Asstt. Advocate‑General for the State. Date of hearing: 21st October, 1984. In this criminal revision petition Saifullah son of Sultan and his father Sultan have challenged the order dated 24‑10‑1983 of the Sessions Judge, D.I. Khan vide which he upheld the convictions of the two petitioners and reduced the sentence of imprisonment of Saifullah petitioner from one year's to one month's R.I. Earlier the trial Magistrate had convicted both the accused/ petitioner under section 324/34, P.P.C., and while accused /petitioners Saifullah was sentenced to one year's R.I. to pay compensation worth Rs.500 and a fine of As.200 or in, default 3 months' R.I, Sultan accused /petitioner was sentenced to pay a fine of Rs.500 or in default to undergo 6 months' R.I. Vide the same judgment their co‑accused Ataullah and Habibullah were acquitted. 2. The prosecution case in brief is that on 7‑8‑1981 at 21‑30 hours Muhammad Ishaq (P.W.) lodged a report at Civil Hospital Paharpur to the effect that he alongwith his father Ahmad Hussain and his brother- in‑law Abdur Rehman who had also been brought to the Civil Hospital in injured condition, were present in their house constructing a wall of the 'Kotha' and his paternal‑uncle Usman and one Noor Muhammad son A of Siddique were also helping them in the said construction, at about 4.05 p.m. Saifullah accused /petitioner armed with a 'Wahola', Sultan accused/ petitioner armed with a 'Kahi' and Ataullah acquitted accused armed with a 'Sota' appeared at the spot. Saifullah gave a 'Wahola' blow on the head of his father who fell to the ground while Sultan gave a Khaki blow to Abdur Rehman. Thereafter all the three decamped towards their house. It was further alleged that Hashmi son of Usman was also Present on the spot and that all the aforesaid persons had witnessed the occurrence. The motive for the offence was a dispute on the house on which litigation was also on. This report was recorded by the S.H.O. Paharpur in the Emergency ward and was transmitted to the Police Station where it was incorporated in F.I.R. No.118 and a case under section 307/34, P.P.C. was registered against the accused/ petitioners alongwith Ataullah and Habibullah the acquitted accused. Ultimately the two accused/petitioners were convicted and sentenced as described above. 3. Arguments of the learned counsel for the petitioners and of the learned State counsel were heard and record of the case examined. 4. Muhammad Sultan the lodger of the F.I.R. appearing as P.W.1 admitted that according to the decision through arbitration the house in which they were constructing the wall was declared to be the ownership and in possession of the accused /petitioners while the complainant party was entitled to the superstructure thereof. Ahmad Hussain (P.W. 2) the injured P.W. also admitted this fact. Once the complainant party itself admits ownership and possession of the house in dispute to be that of the accused party, question arises as to whether the complainant party had any right to construct a wall of the 'Kotha'. Similarly even if it is presumed that there was a dispute on the house in question, the construction of the wall in the said disputed house by the complainant party did amount to invite trouble for themselves. Both the Courts below have flagrantly failed to give findings on this aspect of the matter as to whether the complainant party had any title to construct a wall in the house which according to the admission of the complainant party itself was declared to be ownership of the accused. In these circumstances question, arises as to whether the complainant party was not the aggressor/ trespasser. As the circumstances reveal it was complainant party which had trespassed into house of the accused and in that event the accused party had a right of defence of their property. It is of significance to lay down here that it is the prosecution case itself that the injured P.Ws. and others were busy constructing a wall in the house in dispute and naturally were in possession of husbandry tools which normally consist of 'Kahis and Waholas' therefore the opinion of the learned Sessions Judge that there was nothing on record to suggest that the accused/ petitioners apprehended injury to them at the hands of the complainant party finds no water because even if the prosecution case is believed that the accused party was armed with 'Kaki/Wahola/Sota the complainant party in the process of constructing the wall was equally armed with such weapons and there was apprehension the minds of the accused that they will be equally attacked and injured. The broad fact remains that complainant party had no right whatsoever to construct the wall in dispute in the presence of a decision the arbitration in favour of the accused party. Nature of the injuries received by the two injured persons having been declared as simple by Doctor also suggests that in no way the accused /petitioners have exceeded the right of the defence as both Abdur Rehman and Ahmad Hussain received one injury each which was declared as simple and which could be the result of scuffle between the parties. 5. In any case the prosecution has miserably failed to establish its case that it was a pre‑planed deliberate assault and 1 feel that the conviction of the two accused/ petitioners in the circumstances of the case was not warranted by law. Accordingly while I accept this criminal revision petition I set aside the convictions and sentences of the two accused/ petitioners and acquit them. They are on bail and are discharged of the liability of the bail bonds. M. A. K. Petition accepted.