1969 P Cr (PLP)

MUHAMMAD MUNIR, C. J.‑

This appeal by Nazim Biswas has been presented by our leave in the following circumstances :‑ Seventeen persons were tried by an Assistant Sessions Judge and a common Jury of five on charges of rioting and murder. The jury unanimously found them not guilty but the learned trial Judge being of the view that the verdict of the jury was perverse and against the weight of evidence referred the case to the High Court under section 307 of the Criminal Procedure Code. The learned Judges who heard the reference saw no reason to interfere with the acquittal except in the case of the appellant whom they found guilty of an offence under section 304, Part II of the Pakistan Penal Code and sentenced to rigorous imprisonment for five years. There were two versions before the trial Judge and the Jury. The prosecution party alleged that they were in possession of a plot of land when on the day of the occurrence the party of the accused came armed to the land and drove them away and while so doing killed one person and injured several others. According to the defence version, however, the party of the accused was in possession when the prosecution party came armed in order to attack them and dispossess them from the land and caused several injuries with sharp‑edged and other weapons to some of their men. On the evidence that was before them the Jury rejected the prosecution version and returned a unanimous verdict of not guilty. In determining the reference, however, the learned Judges of the High Court observed :‑ "What we have to see in dealing with the reference under section 307, of the Criminal Procedure Code is whether the verdict is one which no body of men honestly considering the evidence and circumstances of the case before them could reasonably have reached. In the present case after being taken through the whole of the evidence, we must hold that it was quite open to the jury, if they thought fit, to find that the occurrence really took place in front of the but of Torab Ali (as alleged by the defence) although the evidence of the Investigating Police Officer is that blood was found in Akher Ali's compound and at no other place. Even if the jurors were prepared to accept the defence version of the occurrence that they were in peaceful occupation of Plot No. 555 and were chased therefrom by the complainant's party which on the aggressive arrived on the scene at 10 a.m., still they should certainly have found that Nazim exceeded the right of private defence in regard to the injury be inflicted on Hatem." We regret we are unable to agree with this view of the learned Judges. If a party in possession of land is attacked and chased by a party of aggressors who intend to take possession of the land forcibly and one of the persons who is being chased believing that his pursuers who are armed with dangerous weapons might attack him and cause him grievous hurt turns round to face and fight with the aggressors and eventually kills one of them, he cannot be considered to have exceeded the right of self‑defence. On the view of the facts taken by the Jury there was no question of any one of the persons exceeding the right of self‑defence. The weapons alleged to have been carried by the prosecution party and the injuries actually caused to the party of the accused together with the object with which the prosecution party were alleged by the defence to have come on the land must all have been considered by the jury when they unanimously returned a verdict of not guilty, and if their verdict in the case of the other accused was justified, the appellant could not be singled out for conviction merely on the ground that he was the person who attacked one of the aggressors who were pursuing him. We therefore, accept this appeal, set aside the conviction and sentence of the appellant, and acquit him. Appeal accepted.