P L D 1966 (W (PLP)

(3) Bruise reddish blue, 5" x 1", on the anterior surface of right shoulder, joint, oblique in direction. (4) An abrasion, " x ", on the left shoulder margin above the outer end of left collar bone. Armed with the medical reports, Khurshid Alam proceeded to the Police Post Badomalhi, where he lodged the F. I. R. Exh. P. F., which was recorded by Muhammad Shafi, A. S. I. (P. W. 10).

4. On 21‑6‑1963, at 9‑5 a.m., Faiz Alam accused (since acquitted) was also examined by Dr. Muhammad Bashir who found the following injuries on his person: ‑ (1) A contused wound, 1" x " x ", on the middle of skull on the back, obliquely placed. It was covered with reddish scab. (2) A contused wound, " x " x ", on the back of left forearm 1J" below the left wrist joint. There was swelling 1" x " around the contusion. It was covered with reddish crest. (3) A bruise, 3" x ", on the lateral border of left scapula on the back of chest wall. (4) A bruise, 2"x 1", on the left side of back of chest wall below the inferior angle of scapula. (5) A bruise parallel to the median plan, 6" x " at the level of 5th to 10th ribs on the back of left chest wall 2" away from the median plan. (6) A bruise 4" x ", transverse at inferior angle of right side of chest wall on its back. All these injuries were simple and caused by a blunt weapon and in the opinion of the doctor were caused within 24 hours.

5. Of the three accused before the trial Magistrate, only Faiz Alam (since acquitted) admitted participation in the occurrence but pleaded that Khurshid Alam, his son Hidayatullah and his party-men were the aggressors who attached him and caused him injuries when he insisted that on the 20th of June 1963, it was his turn to work the well and would not permit Summan to work the same. The petitioners, however, denied their presence at the place of occurrence and pleaded that they had been falsely implicated on account of enmity with the P. Ws.

6. The prosecution examined 10 witnesses of whom as many as eight, namely, Khurshid Alam (P. W. 2), Hidayatullah (P. W. 3), Muhammad Sadiq (P. W. 4), Lal Din (P. W. 5), Ataullah (P. W. 6), Ghulam Rasul (P. W. 7) and Samman (P. W. 8) are the alleged eye‑witnesses. Of the eight eye‑witnesses only Khurshid Alam and his sons Hidayatullah and Ataullah supported the prosecution version set out above. It is, however, remarkable that they did not explain the injuries on the person of Faiz Alam although they were specifically questioned in the cross‑examination. They were content with the mere denial that Faiz Alam received any injury in the course of the occurrence. According to the medical evidence the injuries on the persons of Faiz Alam were of the same duration as the injuries on the persons of Khurshid Alam and Hidayatullah P. Ws. There is no allegation that these injuries were self‑suffered and they must, in the absence of any material to the contrary, be held to have been caused to Faiz Alam in the course of the same transaction in which Khurshid Alam and Hidayatullah P. Ws. were also injured.

7. Of the remaining eye‑witnesses, Muhammad Sadiq (P. W. 4), Lal Din (P. W. 5) did not fully support the prosecution version. They made evasive statements that they reached the scene of occurrence after the assault was over and, therefore, they were not actual eye‑witnesses to the facts immediately preceding the injuries received by Khurshid Alain and Hidayatullah P. Ws. Muhammad Sadiq P. W. stated that Inayatullah petitioner' had a sword while Abdul Latif and Faiz Alam had dangs with them. As to the injuries on the person of Faiz Alam, he stated that they were caused to him in the melee while he was trying to separate the parties. However, he could not name the persons actually responsible for the injuries to the P. Ws., or Faiz Alam. Lal Din P. W. on the other hand, stated that the two petitioners and Faiz Alam were armed with sotas and made no mention of any sword. Ghulam Rasul (P. W. 7) (also alleged to be an eye‑witness) totally denied his presence at the time of occurrence. His evidence is, however, significant in another aspect. He stated that on 20‑6‑1963, it was the turn of Faiz Alam accused to work the well and he had asked his permission to work the well on that day. Faiz Alam permitted him to work the well on that day but when he went to work the well next morning he found at the spot Khurshid Alain (P. W. 2) who prevented him from working the well and, therefore, he went away. The prosecution was allowed to cross‑examine the witness but his cross‑examination does not help either party. Samman, the last of the eye‑Witnesses deposed that after having permitted by Khurshid Alam to work the well on 20‑6‑1963, he took his bullocks but was prevented to work the well by Faiz Alain. He denied having seen the occurrence. In his cross‑examination, he, however, made an important admission that on that day it was the turn of Faiz Alam to work the well.

8. Thus it will be seen, that apart from the two injured P. Ws. the other eye‑witnesses do not support the prosecution version in its entirety. Rather their evidence establish two very material facts to support the defence version, namely, that on 20‑6‑1963, it was the turn of Faiz Alam to work the well and that Khurshid Alam P. W. and his party-men prevented Faiz Alam to exercise his legitimate right to work the well on that day.

9. Learned counsel for the petitioners frankly conceded that it was not possible to deny the presence of the two petitioners at the spot. He, however, urged that upon the evidence on the record it is established beyond doubt that the two petitioners and Faiz Alam inflicted injuries to Khurshid Alam P. W. and Hidayatullah P. W. in exercise of private defence of the 'property and person of Faiz Alam who had as many as six injuries on his person including one on his head. In this behalf learned counsel strongly relied upon the medical evidence which as observed already left no manner of doubt that Faiz Alam and the two injured P. Ws. received injuries in the course of the same transaction and that in the absence of any explanation by the prosecution as to the injuries suffered by Faiz Alam, the defence version of the case must be accepted.

10. The two defence witnesses, Rafique (D. W. 1) and Muhammad Siddique (D. W. 2) deposed that on 20‑6‑1963, it was the turn of Faiz Alam to work the well and that he had permitted Ghulam Rasul (P. W. 7) at his request to work the well on that day but was prevented by Khurshid Alam and Hidayatullah, who insisted that it was their turn on that day. This led to an altercation in the course of which Khurshid Alam and Hidayatullah caused injuries to Faiz Alam, who in self‑defence gave dang blows to Hidayatullah P. W. According to them Hidayatullah P. W. on receipt of dang blows at the hands of Faiz Alam fell on spade which cut his three fingers of his right hand. They denied that the two petitioners were present at the time of the occurrence. It is impossible to give oredence to this version either and learned defence counsel did not particularly base his argument on their evidence.

11. It seems to me, however, that in the lower Courts, the plea of private defence of person and property of Faiz Alam (since acquitted) did not receive the attention it deserved. The learned Sessions Judge in paragraph 16 of his judgment sums up his conclusions as follows: ‑ ..It shall have, therefore, to be held that it was the turn of Faiz Alam, accused, since acquitted, and that Khurshid Alam P. W. 2 was not entitled to remove the mahal. This would not, however` entitle the appellants to fall upon the two injured P. Ws. simply because Khurshid Alam (P. W. 2) had represented against the action of Inayat appellant when the latter started cutting away at the rope with which the mahal was tied up with the tree. It would appear that the two parties, viz., the two appellants on the one side and Khurshid Alam and Hidayatullah P. Ws., on the other, wanted to have a final show‑down and there was a free and open fight between them. The fact that the appellants were aggressors, would be evident from the number and nature of the injuries received by Khurshid Alam and Hidayatullah P. Ws .. On the pivotal questions of fact, namely, that it was the turn of Faiz Alam to work the well on 20‑6‑1963, and that Khurshid Alam want only interfered with that right by tying the mahal of the well to a nearby tree, the above finding is unassailable. But there is no reliable basis to infer there from that in order to have final show down, there was "free and open fight" in which the petitioners were aggressors. In raising the inference of aggression against the petitioners, the learned Sessions Judge completely over‑looked the sequence of events leading to the transaction in which Faiz Alam on the one hand and Khurshid Alam on the other received injuries. A consideration of sequence of events is essential to fix the initial responsibility for the outbreak of violence. It would be wrong in principle to hold the two petitioners as aggressors merely on the basis of the fact that the complainant and his son Hidayatullah suffered greater number of injuries than the injuries suffered by Faiz Alam without taking into account the ambient circumstances of the case, which are clearly established from the evidence on the record. They are:‑ (i) that on 20‑6‑1963, it was Faiz Alam's turn to work the well; (ii) that Khurshid Alam tried to interfere with the above right of Faiz Alam firstly by purporting to allow Samman (P. W. 8) to work the well on the aforesaid date and secondly by wantonly tying the mahal with a tree, so as to put that well out of commission; (iii) that it was not till Khurshid Alam had tied the mahal to the tree that Inayatullah and Abdul Latif went to fetch the sword and sota from a kotha on the well; and (iv) that after Inayatullah brought the sword he used it to release the mahal and did not immediately proceed to attack anybody; the actual attack commenced thereafter. These facts are incontestable and cannot be explained upon any hypothesis other than this that it was entirely the complainant who provoked the incident and that the two petitioners (who were initially unarmed) went to fetch the sword and sota only after the mahal was tied to the tree. This clearly militates any suggestion of a "show down" or that there was "free and open fight". In that event one should have normally excepted the two petitioners to have come fully armed obviating the necessity of having to go to the kotha to bring the sword and sota. And then instead of proceeding to release the mahal by cutting the rope with the sword they should have immediately attacked the complainant whose attitude was plainly vexatious which interfered with the right of Faiz Alam to work the well on 20‑6‑1963. All these factors which have important bearing on the fixing of criminal responsibility of the occurrence have been overlooked by the Courts below and therefore, they were wrong to hold that the accused had come prepared for a final "show down" or were otherwise guilty of aggression.

12. The circumstances listed above leave no manner of doubt that violence actually broke out after the mahal had been released by Inayatullah petitioner. It would be more consistent with the probabilities of the case, to say that the next move lay with the complainant's party who as observed already were bent upon interfering with the right of Faiz Alam to work the well on 20‑6‑1963. In the normal course of things, the complainant's party seeing their design to deny Faiz Alam his right to work the well, frustrated, they must have retaliated and caused injuries to Faiz Alam. As observed already it was paramount duty of the prosecution to explain the injuries on the person of Faiz Alam accused (since acquitted). The prosecution has completely failed in this respect. This omission coupled with the genesis and the manner of occurrence makes the prosecution version highly doubtful. Rather it lends support to defence plea of right o private defence, which it is pertinent to point out, was raised an earliest stage of the proceedings. It is true, that the account given by the two defence witnesses as to how injuries on the right hand of Hidayatullah P. W. were caused is unconvincing. But it is a normal incident of an "adversary proceedings" to minimize one's own part in the incident. Both in principle and on authority it is consistent with the safe administration of criminal justice that the Court should draw its own inference that properly flow from the evidence and the circumstances and should not be deterred from the incompleteness of the tale given by each party. This principle was affirmed recently by the Supreme Court in Syed Ali v. Niharan Mohallah (P L D 1962 S C 502 p.507).

13. Having given my anxious consideration to the evidence produced in the case and the ambient circumstances discussed above, I incline to the view that it would be more consistent with the probabilities of the case to hold that after the two petitioners had succeeded in releasing the mahal, the complainant's party attacked Faiz Alam and two petitioners caused injuries to Khurshid Alam and Hidayatullah P. Ws. in exercise of private defence of person and property of Faiz Alam and, therefore, their conviction cannot be maintained.

14. The learned counsel for the State urged that even if it be held that the two petitioners acted in exercise of right of private defence, they exceeded that right and therefore they were not entitled to acquittal. The circumstances of the case do not lend any support to this contention. Abdul Latif petitioner is proved to have caused only simple injuries with a blunt weapon. Inayatullah is proved to have weilded his sword but he cannot be said to have taken undue advantage in the course of the transaction bearing in mind the injuries caused to his father Faiz Alam including one on his head. Moreover as observed in Ghulam Qadir v. The State (P L D 1959 Lah. 753) when right of private defence of person or property is available in law, the Courts have always viewed with indulgence the acts of a person who in the heat of the moment under a strong feeling of self‑preservation working on him, pursues his defence a little further than is absolutely necessary. It has often been said that right of private defence cannot be weighed on golden scales. The circumstances of this case would amply justify the application of this principle in favour of they petitioners.

15. For the foregoing reasons, the petitioners' conviction cannot be maintained and they are hereby acquitted. S. Q. Petition accepted.