1993 P Cr (PLP)

Mian Muhammad Bashir for the State. Date of hearing: 1st December, 1992. This appeal has been directed against the judgment dated 31-12-1966 passed by Sardar Manzoor Ahmad Khan Leghari, Sub-Divisional Magistrate, Wazirabad, whereby the appellants, namely Ali Muhammad aged 35 years, Fateh Muhammad aged 24 years, Muhammad Hanif aged 20 years, Chohar Khan aged 65 years, Rahim Bakhsh aged 55 years and Muhammad Ramzan aged 18 years were convicted and sentenced to undergo R.I. for one year under section 148, P.P.C. each and were sentenced to suffer 7 years' R.I. under section 304(ii)/149, P.P.C. each. Both the sentences were ordered to run consecutively. The connected Criminal Revision No.134 of 1968 shall also be disposed of by this judgment.

2. The prosecution case is that P.W.1 Teg Ali was allotted 9 Killas of land in village Abdal, which was confirmed in his name and the land in dispute was less than 2 Kanals, which was under the cultivation of appellants Ali Muhammad, Fateh Muhammad and Muhammad Hanif as tenants. About five months prior to the present occurrence i.e. on 14-3-1964, the possession of this land was delivered to Teg Ali complainant (P.W.1) by the Patwari and the said Patwari had stated to the appellants Ali Muhammad, Fateh Muhammad and Muhammad Hanif that the land in dispute had been allotted and confirmed in the name of P.W.1 Teg Ali complainant, and in future they shall give share of the produce to him. The complainant told the above three appellants that he wanted the, land for the purpose of his own cultivation as he was owner of very small holding. The above-cited three appellants promised to deliver possession of the land after cutting the sugarcane crop and thereafter P.W.1 approached the three appellants to vacate the land, who promised to do so. P.W.1 contacted Muhammad Sadiq (P.W.3), in whose presence too they again promised to vacate the land. About 16/17 days prior to the present occurrence, the sugarcane crop was cut by the appellants, the land was vacant, and the appellants asked P.W.1 Teg Ali to cultivate the land. On the day of occurrence, P.W.1 Teg Ali alongwith his son Khushi Muhammad deceased, Fazal (P.W.5) and Muhammad Rashid (P.W.2), P.W. Mst. Naziran wife of the deceased and Mst. Allah Rakhi (P.W.4) wife of Teg Ali (P.W.1) were present on the southern side of the land in dispute and were removing the covers of the sugarcane, meanwhile Ali Muhammad, Fateh Muhammad and Muhammad Hanif appellants reached with their yokes. They were armed with Sotas, and when they were about to plough the land in dispute, Khushi Muhammad deceased got up and prevented the appellants from ploughing the land as they had already handed over the possession, on which the deceased and the appellants exchanged abuses. Chohar Khan appellant who was present nearby in the wheat crop gave Lalkara to Ali Muhammad, Fateh Muhammad and Muhammad Hanif by saying "now you should send us by delivering the possession of the fields". Besides the appellant Chohar, his son Ramzan and his brother Rahim Bakhsh were also present in the wheat crop, who were also armed with Dangs and reached the spot. Ali Muhammad appellant gave a Dang blow to the deceased on his head. Then Fateh Muhammad and Muhammad Hanif appellants gave Dang blows on the head of Khushi Muhammad deceased. Fateh Muhammad appellant fractured the right arm of P.W.1 Teg Ali complainant. Ramzan appellant gave blow on the head of P.W.1. Fazal. Rashid and Allah Rakhi P.Ws. were also injured by the appellants. P.WJ gave beating to the accused with the sugarcane and Rashid P.W.2 snatched a Sota from Rahim Bakhsh, co-accused and also gave some beating to the accused. P.W.1 Teg Ali, P.W.5 Fazal, P.W.2 Muhammad Rashid, Khushi Muhammad deceased and P.W.4 Allah Rakhi were taken to the Civil Hospital, Gujranwala. P.W.13 Dr. Shukar Elahi medically examined the deceased Khushi Muhammad, P.W.1 Teg Ali, P.W.2 Muhammad Rashid and P.W.5 Fazal vide M.L.Rs. Exhs.P.E., P:F, P.G. and P.J. On 16-3-1964 Khushi Muhammad succumbed to his injuries in the Hospital and P.W.13 Dr. Shukar Elahi performed autopsy on the dead body of the deceased vide post mortem report Exh.P.J. On the statement of P.W.1 a case was registered at the police station against the appellants. The appellants were charged under sections 148/149 and 304, Part 11, P.P.C., to which they denied and claimed trial.

3. The prosecution examined 16 P.Ws. in all to substantiate its case. P.W.1 Teg Ali, P.W.2 Muhammad Rashid, P.W.4 Mst. Allah Rakhi, P.W.5 Fazal were the eye-witnesses who supported the prosecution version. P.W.7 Ahmad alias Baggu, P.W.9 Ali Muhammad and P.W.10 Muhammad Alam had stated that the appellants Ali Muhammad, Fateh Muhammad and Muhammad Hanif were ploughing the fields when P.W.1 alongwith P.W.2 and P.W.5 and the deceased reached armed with Dangs at the spot and had asked the appellants to stop ploughing the land, on which both parties abused each other. Hence the present occurrence. On hearing the alarm Rahim, Chohar Khan and Ramzan were attracted, who intervened and also stated that Khushi Muhammad deceased, P.W.1 Teg Ali, P.W.2 Muhammad Rashid and P.W.5 Fazal attacked anal injured them. They stated that three/four months prior to the occurrence Teg Ali (P.W.1) contacted and told them that the land in dispute had been allotted in his name, but they replied him that he should get them vacated through legal notice and P.W.1 did not serve them any notice.

4. The injured P.Ws. were examined by P.W.13 Dr. Shukar Elahi who had declared injury No.3 on the right forearm of P.W.1 as grievous. The injuries on the persons of P.Ws. Rashid and Fazal were declared grievous. During post-mortem examination Dr. Shukar Elahi found that injuries Nos.l, 2 and 4 were fatal and sufficient to cause death in the ordinary course of nature individually. The doctor had also stated that Muhammad Hanif, Rahim Bakhsh, Fateh Muhammad, Chohar Khan, Muhammad Ramzan and Ali Muhammad appellants were also injured and had found 11 injuries on the person of Muhammad Hanif appellant simple in nature, two injuries on the person of Rahim Bakhsh appellant and injury No.2 on his person was grievous. Fateh Muhammad appellant had sustained 10 injuries simple in nature. P.W.13 found 8 injuries on the person of Chohar Khan appellant and injury on his left forearm was found to be grievous Muhammad Ramzan and Ali Muhammad appellants had three and two injuries respectively on them. The appellants when examined under section 342, Cr.P.C. had stated that the land in dispute was under the cultivation at the time of occurrence.

5. It has been vehemently urged before me that even from the statements of P.Ws. it is evidently clear that the land where the occurrence took place was in possession of the appellant party and there was a free fight, in which every person present there participated and inflicted Dang blows on each 1 other. The appellant party had received 36 injuries, whereas the complainant party sustainted 21 injuries, all caused by blunt weapons. They defence successfully brought the fact on the record that the land, where the occurrence took place was in possession of the appellants and the complainant party came armed and was adamant to dispossess them and in consequence thereof the present occurrence took place. The appellants had the right to defend their person as well as their property.

6. Pursuant to the above discussion, the appeal is allowed, the appellants are acquitted of the charge. The appellants are on bail, their bail bonds are discharged. The connected Criminal Revision No.134 of 1968 has no force and is dismissed. N.H.Q./A-317/L Appeal allowed.