1970 P Cr (PLP)

Death was due to shock and haemorrhage caused by multiple fractures of the skull and injury to the brain. The injuries were sufficient to cause death in the ordinary course of nature.' Probable time between injuries and the death was 24 hours and between death and post-mortem between 18 hours. Exh. P. F. post-mortem report. ??????

8. The same doctor, examined Bagh Ali (P. W. 8) on 25th July 1966, at 9-20 a.m. and found four - simple injuries on his person, caused by a blunt weapon within 12 to 24- hours. Exh. P. H. is the medico-legal report. Ocular evidence at the trial was given by Bagh-Ali (P. W. 8) brother of the deceased, Chiragh (P. W. 9), Fateh Muhammad (P. W. 10) and Mst. Saidan (P. W: 11). Although; they have fully supported the prosecution case, the learned- Additional Sessions Judge seems to have relied only on the testimony of Bagh Ali (P. W. 8), who undoubtedly, was present at the spot, as he bore injuries and declined to believe the rest. He observed: - "Chiragh P. W. appears to be an interested witness. He belongs to another village and had admitted that he had shifted to Chak No. 36/2-L one year before the present occurrence and had left the village soon after the murder. It has been argued that this witness had been imported into the case just to make him an eye-witness. He is originally from the same district where from Fateh Muhammad P. W. came and had stated that he was taking along fodder to the village at the time of the occurrence. In my Court he had stated that he had brought fodder from the field of Siddique and Rafique. He had not mentioned these names before the C. M. where he had mentioned that he had brought fodder from the field of Bashir. He denied having mentioned Bashir before the C. M. All these circumstances go to strengthen the argument that this witness is entirely a chance witness and cannot be relied upon, as he appears to have some connection with Fateh Muhammad P. W." With regard to the remaining eye-witnesses, his observation is, that they .are closely related to the deceased and their statements cannot be accepted as gospel truth, particularly, when the first information in this case was considerably delayed : and was lodged only when the Havaldar went to hospital. It may be pointed out, that the occurrence took place at about 3-00 p.m. on 24th July 1966, and the statement of Bagh Ali (P. W. 8) was recorded in the hospital by H. C. Aulad Hussain (P. W. 6) on 25th July 1966, at 11.30 a. m. ?????

9. When examined at the conclusion of the prosecution evidence, Wazir and -Bashir appellants denied their presence at the spot at the time of the occurrence. Majid and Mamma appellants admitted their presence and their case as given by Majid appellant is :- "The fact is that on the day of occurrence, I and Mamma were present in the field, when Bagh P. W. and Khushi deceased passed from that place along with their animals. One of the buffaloes trespassed into our Gawara crop field, which is in Killa No. 1 of square No. 40 and damaged it. I and Mamma rounded up the buffaloes whereupon Bagh and Khushi Muhammad forcibly took away the said buffaloes, because we wanted to take it to the cattle pound. They grappled with us and attacked us. We had sotas as well and we injured them in self-defence. This incident took place in Kills No. 1 of square No. 40." No evidence was produced by the appellants in defence. They however, placed reliance on a copy of Khasra Girdawari produced in "State v. Aurangzeb."

10. While admitting the presence of Bagh Ali (P. W. 8) at the spot, as he was an injured person, the learned trial Judge partly disbelieved the prosecution version. At the same time, he declined to rely on the defence version. He did not believe that the appellants made a premeditated attack on the deceased and Bagh Ali P. W. With regard to the previous day's incident, he observed: - "The story about the attempt to dig a water" channel does not sound convincing. It is an after-thought in view of the delay in the F. I. R. The accused would have come armed with more lethal weapons than the mere dangs, if it had been a preconcerted attack with a view to kill." With these observations, he practically declined to rely on the so-called motive for the fatal assault upon the deceased. Although as has been pointed out above, the learned trial Judge did not place implicit reliance on the defence version, he still observed:

"The possibility of the attack having originated due to the buffalo having trespassed, cannot be ruled out, although I do not believe the version of self-defence." This finding to my mind in self-contradictory. The learned trial Judge has neither believed the prosecution version nor the defence version, in entirety.

11. For the aforesaid reasons, I am of the view, that the version of the defence should not have been brushed aside, especially when the learned trial Judge was of the view that the possibility of the attack having originated due to the trespass of the buffaloes could not be ruled out. Section 10 of the Cattle Trespass Act provides: - "The cultivator or occupier of any land, or any person who has advanced cash for the cultivation of the crop or produce on any land, or the vendee or mortgagee of such crop or produce or any part thereof, may seize or cause to be seized any cattle trespassing on such land, and doing damage thereto or to any crop or produce thereon, and sent them or cause them to be sent within twenty four hours, to the pound established for the village in which the land is situated. All officers of Police shall, when required, aid in preventing,- (a) resistance to such seizures, and (b) rescues from persons making such seizures." Section 24 of the said Act provides:- "Whoever forcibly oppose the seizure of cattle liable to be seized under this Act, and whoever rescues the same after seizure, either from a pound, or from any person taking or about to take them to a pound, such person being near at hand and acting under the powers conferred by this Act, shall, on conviction before r Magistrate, be punished with imprisonment for a period not exceeding six months or with fine not exceeding five hundred rupees, or with both." As is clear from the aforesaid provisions of law, section 24 of the Act forbids resistance or opposition to the seizure of cattle, liable to be seized under the Act when the intention of the deceased and his brother was to prevent the appellants fro taking the buffaloes to the cattle pound, they were in fact guilt of commission of theft, although they themselves were the owner 4 of the buffalo, as held in Nawab v. State (P L D 1960 Lah. 149) and in Wit Singh and others v. Emperor (86 1 C 988) decided by the Patna High Court, the facts were that cattle belonging the complainant trespassed into the land of the accused. The latter seized the cattle and were driving them to the pound, when the complainant party arrived and attempted to rescue the cattle from the accused. In doing so, the complainant's party used violence and succeeded in rescuing some of tote cattle. The accused resisted the acting of the complainant's party and in attempting to the defend themselves against the violence used by the complainant's party, caused injuries to several members of that party, some, of which amounted to grievous hurt, held that the accused were legally entitled to take the cattle to the pound and that the action of the complainant's party in attempting to rescue cattle was unlawful and that the accused had, therefore, the right of private defence against the acts of the complainant's party and it could not be said under the circumstances, that the accused had exceeded that right and that they were not, therefore, guilty of any offence. It is abundantly clear from the aforesaid authorities, that when the buffalo of the deceased and his brother trespassed into the land of the appellants and damaged their crop, they had a right to take it to the cattle pound and any interference in the exercise of such right, gave them the right of self-defence.

12. The only question that shall thus arise in the circum?stances of the case is, as to whether the appellants have been guilty of exceeding the right of private defence. I find that according to the prosecution version, Wazir and Mamma caused simple injuries ii to Bagh Ali P. W. Therefore, in their case, there could not be the least doubt that they were within their right to cause such injuries in order to prevent Chiragh from taking away the buffalo from them. So far as Bashir and Majid are concerned, undoubtedly they gave fatal blows to the deceased. However, it is to be conceded, that their attack upon the deceased was not premeditated and they did not inflict more than one injury each ` upon his person. Thus while holding, that they had the right of i private defence, I am of the view, that they exceeded it. I, therefore, uphold their conviction under section 304 read with section 34 of the Pakistan Penal Code and reduce their sentence to the period already undergone. The appeal of Wazir and Mamma is accepted and their convictions and sentences are set aside, while the appeal of Bashir and Majid appellants is partially allowed as indicated above. They shall be set at liberty at once provided they are not required to be detained in any other case. Order accordingly.