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Criminal Appeal No. 293 of 1964, decided on 9th January 1968.

Ss. 161 & 162 Prosecution witness‑Statement of prosecution witness recorded by Police‑Copy of statement not supplied to defence even through intervention of Court‑Evidence of such witness to be completely disregarded and excluded from consideration.

Shyama Rajaram Pardhan and another v. Emperor A I R 1949 Nag. 260; Shive Sharnagat and others v. The State A I R 1953 Bhopal 21; Faiz Ahmad v. The State P L D 1960 S C S and Hazara Singh v. Emperor A I R 1928 Lah. 257 ref.

Prosecution witness‑Eye‑witness having seen entire incident from start to finish‑Non‑production of such witness would give rise to adverse presumption against prosecution‑Evidence Act (I of 1872), S. 114, illus. (g).

Witness‑Credibility‑Assessment regarding credibility of witness made by trial Court having additional advantage .of seeing and hearing such witness‑Held, deserves utmost respect and cannot be lightly interfered with except for compelling reasons.

S. 304, Part I read with Ss. 97 & 99‑Private defence, right of‑Complainant party trying forcibly to construct watercourse in land of accused's grand father and despite protests insisting in doing so‑Accused, held, had every right to prevent trespass on his land by physical inter vention in exercise of right of private defence‑Accused apprehend ing grievous hurt to himself, giving two blows to deceased with reverse end of vaholi (hoeing implement)‑Fact that blows proved rather harder than intended would not amount to exceeding right of self‑defence, in circumstances of case.

Mohim Mondal v. The State P L D 1964 Dacca 480; Horam and others v. Rex A I R 1949 All. 564; Mobarak Ali and others v. The State P L D 1961 Lah. 415; Packkauri and another v. Queen‑Empress 1 L R 24 Cal. 686; Bhut Nath Bome and another v. The King Emperor 13 C W N 118; Bhut Nath Bome and another v. Emperor 10 Cr. L J 391 and Bhut Nath Bome and another v. Emperor 3 I C 867 ref.

Chhattar v. Emperor A I R 1929 All. 897 rel.

Burden of proof‑Onus of establishing all ingredients of a criminal offence‑Lies always on prosecution and never shifts upon accused.

Woolington v. The Director of Public Prosecutions 1935 A C 462 rel.

Ch. Rafique Ahmad for Appellant.

Waheeduddin for A.‑G. for the State.

Dated of hearing: 15^th 20^th and 22^nd November 1967.

On 20th May 1962 at about noon time, a fight took place in village Laddar Chak No. 116, Police Station Sangla Hill, District Sheikhupura, over the construction of a watercourse on the common boundary of Squares Nos. 4 and 5 as alleged by the complainant party and in Killa No. 2 of Square No. 5 of the appellant as asserted by him, resulting in the death of one Allah Ditta owner of Square No. 4. Consequently, the appellant and his two uncles Malik and Yusaf were sent up by the police to stand trial under section 302/34, P. P. C. The last mentioned two accused were acquitted while Muhammad Ashraf appellant was convicted under section 304, Part 11 of the Pakistan Penal Code by the Additional Sessions Judge, and was awarded a sentence of five years R. I. He has now preferred this Criminal Appeal No. 293 of 1964 against his conviction and sentence. Simultaneously with this Abdul Aziz son of Allah Ditta deceased has also filed Criminal Revision No. 831 of 1964 challenging the order of the Additional Sessions Judge acquitting the appellant and his two co‑accused of an offence under section 302, P. P. C. with an alterna tive prayer for the enhancement of the sentence of Muhammad Ashraf. This judgment will dispose of both the appeal as well as the revision.

2. The simple facts giving rise to the case are that Allah Ditta deceased was the owner of Square No. 4 adjoining Square No. 5 owned by the grand‑father of Muhammad Ashraf appellant. A sanctioned watercourse ran east‑west on the common boundary of the two squares and from the western corner of Killa No. 3 of Square No. 5 turned to the north and then on to the west passing through the middle of Killa No. 22 of Square No. 4 ended up there, irrigating Killa No. 21 of Square No. 4 at its tail‑end. The position can better be appreciated by reference to the site plan Exh. P. R. Since the watercourse divided Killa No. 22 into two parts, the complainant party wanted to demolish the same so as to substitute it by a new watercourse running along the common boundary of Killa No. 22 of Square No. 4 and Killa No. 2 of Square No. 5, as asserted by them at the trial. Accordingly, on the fateful day at about 12 noon, Maqsood P. W. son of Allah Ditta deceased accompanied by his servant Boota Christian started constructing the proposed watercourse for the irrigation of Kille No. 21 of Square No. 4. They started the construction from east to west and had hardly dug out three karams, when the appellant appeared at the spot and taking exception to the construction of the new watercourse exchanged abuses and fist blows with Maqsood and Boota. In the meantime Allah Ditta deceased accompanied by his elder son Abdul Aziz complainant (P. W. 2) also arrived at the spot and intervened. The appellant then left with a challenge that they would soon have a taste of the construction of the new watercourse. The deceased and his two sons sat there and after a short while Ashraf appellant re‑appeared armed with a vaholi (an hoeing implement with an iron blade and a long wooden handle) followed by his two uncles, Yusaf armed with a trangli (a pronged instrument used for winnowing) and Malik holding a dang. The appellant headed towards the deceased and opened the attack hitting him on the head with the reverse end of the vah9li which felled the deceased. He then gave him another blow which also landed on the head. Malik gave a dang blow to Abdul Aziz complainant on the head. Yusaf hit Maqsood with his trangli on the right shoulder. Maqsood gave a blow with his spade to Yusaf on the arm while trying to rescue his father. Rehmat (P. W. 4), Ghulam Muhammad (P. W. 5) and Noor Din (P. W. 6) were attracted to the spot on hearing alarm and saw the occurrence, but owing to fear did not physically intervene in order to rescue the deceased or his sons. Allah Ditta deceased became unconscious and was removed to Civil Hospital, Sangla and expired soon thereafter. Dr. Muhammad Sher, Medical Officer, sent ruqqa Exh. P. C. to the S. H. O. Police Station Sangla on receipt of which Karam Ilahi, Moharrir Head Constable, visited the hospital, but before his arrival Allah Ditta deceased had already expired. He then recorded the statement Exh. P. K. of Abdul Aziz (P. W. 2) on the basis of which a formal F. I. R. was drawn up.

3. After completing the investigation, the police sent up the appellant and his two uncles tinder section 302/34, P. P. C. On commitment all the three were tried by the Additional Session Judge, Sheikhupura, who convicted the appellant and acquitted his two uncles giving rise to the present Criminal Appeal and the Criminal Revision.

4. At the trial the prosecution case mainly rested on the testimony of Abdul Aziz (P. W. 2), Maqsood (P. W. 3) sons of the deceased and Rehmat, Ghulam Muhammad and Noor Din P. Ws. The learned Additional Sessions Judge disbelieved the prosecution version that the new watercourse was sought to be constructed on the common boundary of the lands of the parties, and on the basis of the statements of Mahmood Khan Patwari (P. W. 7) and Sultan Muhammad Head Constable who partly Investigated the case and prepared site plan Exh. P. S. gave a positive finding that the watercourse was actually being dug in the land of the accused party. Noor Din, Ghulam Muhammad and Rehmat P. Ws. claiming to be the eye‑witnesses of the occurrence were disbeliev ed. Boots Christian though mentioned in the F. I. R., was not produced nor did any of the graziers who happened to be present according to the P. Ws. enter the witness‑box. The use of agricultural implements by the accused party in the fight as also the unexplained injuries sustained by all the three of them were other factors discrediting the prosecution version.

5. The appellant and his two co‑accused admitted their participation in the fight and pleaded not guilty to the charge. He gave the following explanation at the trial:‑--

"I did object to the aforesaid digging undertaken by Boota, Allah Ditta, Maqsood and Aziz because they were making the channel in my land under cotton crop. I was hoeing my own sugar‑cane nearby the place of occurrence and next to me were my two uncles thrashing their corn and as we saw the com plainant party spoiling our crop we came over to stop them. They started abusing us and Yusaf accused was hurt with a kassi blow from Maqsood. It heated up the matters and in self defence some one killed Allah Ditta."

6. The learned counsel for the appellant has raised the following contentions before me:‑-

(i) that even from the F. I. R. itself lodged by Abdul Aziz son of Allah Ditta deceased as also from the statements of the Patwari and the Head Constable, the fact stands clearly established that the complainant party were forcibly construct ing a watercourse in the; land of the accused party who were 1s such justified to tale up cudgels in exercise of the right of defence of property.

(ii) that the testimony of Maqsood (P. W. 3) has got to be completely excluded from consideration, inasmuch as his statement was never recorded by the police and he was examined by the doctor two days after the occurrence.

(iii) that the appellant and his co‑accused had no intention to kill the deceased, as would be clear from the nature of the weapons of offence allegedly used by them, and as such they were perfectly right even to cause the death in exercise of their right of self‑defence, which was not exceeded.

7. On the contrary, the learned counsel appearing on behalf of the State has contended :‑-

(i) that the deceased was unarmed at the time of occurrence anti there was nothing to suggest that the accused had appre hension from his side and as such they were trot justified to attack a standee‑by and cause his death.

(ii) that the non‑supply of the brief statement of Maqsood would only be a curable defect not having caused any prejudice to the case of the accused.

(iii) that sections 103 and 105 of the Pakistan Penal Code were not attracted to the case.

8. The basic question to which the answer would be determinative of the fate of this case is whether the complainant party was constructing the new watercourse on the boundary line of the two fields or in the land belonging to the appellant's grand‑father. Since admittedly it was not a sanctioned water course but a private one meant for the irrigation of Killa No. 21 of Square No. 4 and earlier passing from the middle of Killa No. 22, the complainant party in all fairness bad no right even to construct the same on the common boundary line and as such it could legitimately have been constructed only in the land belonging to the complainant party, though along the common boundary line. Although except the official witnesses, namely, the Patwari and the Investigating Officer who prepared the site plan Exh. P. R. all the prosecution witnesses tried to give an impression that the watercourse was being constructed on the common boundary line, yet the position taken by Abdul Aziz complainant in the F. I. R. is rather confusing. The relevant portion rendered into English would read thus :‑‑

"Kills No. 21‑Qutar (irregular piece of land with unequal Sides) was lying vacant in which we proposed to cultivate paddy, Earlier this Qutar was irrigated, from a watercourse passing through the middle of Killa No. 22, but now instead of the watercourse passing through Killa No. 22 we wanted to substitute a new watercourse for the irrigation of Qutar No. 21 passing along and in Killa No. 2 of Square No. S."

Normally in such circumstances one would not expect a complaint ant to concede that his party insisted on constructing a watercourse through the land of the opposite‑party and left at this it could possibly have been argued, though with a little strain on the language, that the watercourse sought to be constructed was to run along Killa No. 2 of Square No. 5, but that is not all, The two independent witnesses namely, Mahmood Khan Patwari (P. W. 7) who prepared the site plan Exh. P. R. and Sultan Muhammad Head Constable (P. W. 11) who prepared rough site plan Exh. P. S. and had no motive either actual or suggested to depose falsely against the complainant party, had clearly stated that the new watercourse was being constructed in. Killa No. 2 of Square No. 5 belonging to the appellant's grand‑father. At least it was unambiguously pointed out in cross‑examination by the Patwari whereas the same position could be spelt out from the site plan Exh. P. S. and the marginal notes given therein by the Head Constable. In the circumstances, therefore, there is no escape from the irresistible conclusion that the complainant party insisted on constructing a watercourse passing from the land of the appellant who was well within his rights to take exception to it. Even Noor Din P. W. had stated in his police statement with which he was duly confronted that Muhammad Ashraf had informed his uncles that Maqsood, etc. were constructing the new watercourse in his land and insisted on doing so in spite of his objection. This is further clear from the police statement of Rehmat Khan P. W. who was also duly confronted with the came.

9. Before coming to the final determination of the question f offence committed, if any, in the circumstances of the case, it appears necessary to dispose of the contention raised by the learned counsel .for the appellant relating to the admissibility of the deposition of Maqsood (P. W. 3) on the ground that his police statement was not made available to the defence counsel. It would be advantageous to reproduce the precise observation made in this regard by the learned Judge during the statement of N4aqsood (P. W. 3):‑--

"At the request of the counsel for defence P. P. is directed to give him a copy of police statement of the witness. P. P. has stated that there is no statement of this witness with police.".

It is quite clear from this that the police statement of this witness was not supplied to the defence even at any subsequent stage. Rather the impression seems to be inevitable that no such statement was recorded by the police or otherwise there was no earthly reason to withhold the same, One really fail to understand why at all this witness whose name figured so prominently in the F. I. R. and even hit Yusaf one of the acquitted accused on the arm with his spade, hail not been examined Having failed to obtain a copy of his statement even through the intervention of the court the learned defence counsel did riot consider it necessary to put Such. a. question either to Sultan Muhammad Head Constable (P. W. 11) of to Sh. Abdul Ahad S. H. O. (P. W. 15) or Karam Ilahi M. H.C. (P. W. 16) who all dealt with the investigation of the case at ,di6crent stages. Equally surprising is the fact that this witness was got medically examined after on 22nd May 1962 i.e on‑the third day of the occurrence. The effect of the non‑supply of the police statement of a witness to the defence can be, determined in the light of available authorities. It was hold in Siayeimu Rajaram Pardhan and another v. Emperor (A I R 1949 Nag. 260) that which, statements of prosecution witnesses were not made available to defence, the evidence of such witnesses should be disregarded and the trial is not necessarily vitiated. In this case their Lordships ignored the evidence of tan witnesses on account of non‑availability of their statements to the defence but the deposi tions of other witnesses were received in evidence though with caution. In arriving this decision their Lordships reviewed a chain of authorities. This view was reiterated in Shive Sharnagar and others v. The Sate (A I R 1953 Bhopal 21). It was held that the keeping back of the statements of the witnesses that are recorded is positively repugnant to the law as well as spirit of section 162 and is wholly incompatible with the claims of justice. It was further held that exclusion of such statements is repugnant to the fundamental rules of practice necessary for due protection of prisoners and the administration of criminal justice and the Court in such a case will be entitled to altogether ignore such evidence in a proper case. The question was also examined by their Lordships of the Supreme Court in Faiz Ahmad v. The State (P L D 1960 S C 8). In this case the copy of the statement of the approver made by him during the investigation and recorded by the police under section 161, Cr. P. C. was not made available to the defence. The accused. was convicted and sentenced to death on the evidence of the approver and circumstantial evidence. In appeal before the High Court, a contention was raised that the refusal of the copy of the approver's statement under section 161, Cr. P. C. was vitiative of the trial. It was, however, made available at that stage but the learned counsel refused to take it. On this the learned Judges read out to the counsel the sub stance of the approver's statement with the police and on the analogy of Hazara Singh v. Emperor (A I R 1928 Lah. 257) observed that the contradictions between that statement of the approver and his evidence at the trial would be deemed to have remained unexplained and yet proceeded to find an explanation for them. It was held by their Lordships of the Supreme Court :‑‑-

"Where no copy was ever supplied at the trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an irresistible inference of prejudice."

In view of the aforesaid authorities, the conclusion is irresistible that the evidence of Maqsood (P. W. 3) has to be completely disregarded and excluded from consideration. 10. Similarly, the withholding of Boota Christian who was present, was in vain sought to be explained away by Abdul Aziz (P. W. 2). His presence, however, was admitted by Maqsood (P. W. 3). He was thus an eye‑witness who had seen the entire incident from start to finish and his non-production would to obviously give rise to an adverse presumption against the pro secution. It is also in evidence that there were some graziers around the place belonging to the neighbouring village Ramoana and were obviously disinterested witnesses, yet none was produced. But nothing would turn upon this particularly in view of the deplorable want of public‑spiritness amongst our people who normally would be anxious to keep away from such involvements.

11. As a result of the foregoing discussion, the position in nutshell boils down to this that the complainant party tried to forcibly construct a watercourse in the land belonging to the appellant's grand‑father and despite his protests insisted in doing so. The law obviously gave him the right of defence of property. A question would arise at this stage whether having once been to the place of occurrence and seen the mischief being committed, he should have in such an event sought the intervention of public authorities or was he still within his rights to prevent the mischief,

Section 99 of the Penal Code reads as follows :‑

. . There in no right of private defence in cases in which there is time to have recourse to the protection of the public authorities . . . . . ."

It was held by Murshed, J. in Mohim Mondal v. The State (P L D 1964 Dacca 480) as follows :‑

"In relation to a right of defending one's property, the protection of public authorities must, of necessity, refer to protection against the offences mentioned in section 97 of the said Code with a view to preventing the same; but when such an offence or offences has or have already been committed, there is no question of seeking any protection against an act which is a fait accompli. In the case before me, had the accused come to know that the complainant‑party intended to invade upon their land and if there had been a reasonable margin of time to take recourse to the protection of law, the accused would have been bound to seek it; but when the complainant‑party had already trespassed into the land possessed by them, there would be no time to seek the protection as mentioned in section 99 of the Penal Code. The protection, of necessity, must be a protection against an invasion of the kind contemplated by the aforesaid section 97 of the Penal Code at a time when there is merely an apprehen sion of such an invasion; secondly, it cannot be held, having regard to the distance of the Police Station from the place of occurrence, that while there was an aggression being committed on the land possessed by the accused, they had sufficient time to take resort to the protection of law."

I am in respectful agreement with‑ tilt aforesaid observation of his Lordship and hold that the appellant and his uncles had every g right to prevent the trespass on their land by physical intervention.

12. Next comes the last and the most important question, namely, whether the appellant had exceeded the right of defence of person and property. As stated earlier, the learned Sessions Judge had disbelieved the three witnesses, namely, Rehmat (P. W. 4), Ghulam Muhammad (P. W. 5) and Noor Din (P. W. 6). and for good reasons too. It is welt‑settled that the assessment regarding the credibility of a witness made by the learned Judge who has the additional advantage of seeing and hearing such witness, deserves utmost respect and is not to be lightly interfered with unless there may be compelling reasons to do so. Having excluded the evidence of Maqsood (P. W. 3), we are only left with Abdul Aziz (P. W. 2) who tried to shift the ground by asserting at the trial that the watercourse was being constructed in their own land. In this regard I have already upheld the finding of the learned trial Judge that the witness was not telling the truth. He would also have us believe that his deceased father Allah Ditta was empty‑handed at the time and that it was an unprovoked one‑sided attack on him. I am afraid this part of his statement either is difficult to swallow in the very nature of things. It appears difficult to believe that when admittedly the appellant had left the spot after having thrown a challenge to Maqsood and his father Allah Ditta deceased, the latter should have remained so complacent as to have come unarmed in the absence of any considerable reinforcement from members of his own Ladhar tribe which was in majority. It would also be significant to point out in this context that in his report lodged at the police station, Abdul Aziz (P. W. 2) gave no explanation whatever of the injuries received by the appellant and his two uncles except the. one given by Maqsood with his spade to Yusaf, one of the acquited accused, and as such here again he did not tell the whole truth, but suffered some material facts. Keeping in view the fact that the appellant and his two uncles were armed with agricultural implements, that the appellant admittedly stopped short at giving two blows to the deceased and that too with the reverse end of vaholi which could have been more. Effectively used from the sharp side, and that he did so in order to prevent the trespass on his land, having also himself received injuries in the course of occurrence, it is difficult to hold that he had exceeded the right of self‑defence. It was held in Horam and others v. Rex (A I R 1949 All. 564) :‑

"Where a trespasser enters upon the land. of another, the person in whom the right of possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force, and if in doing so he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offence. His action would be covered by the principle of self‑defence embodied in sections 96 to 100, Penal Code. If, on the other hand, the trespasser had already accomplished or completed his possession and the person with the right of possession has acquiesced in this accomplishment it is not open to the latter to avail himself of the doctrine of self‑defence and by inflicting injuries on the trespasser to re acquire possession of his land."

It was held in Mobarak All and others v. The State (P L D 1961 Lah. 415) on the basis of an earlier ruling in Packkouri arid another v. Queen Empress (I L R 24 Cal. 686) that where a person is otherwise justified in using force to defend his property against an unlawful aggression, he does not lose this right if he prepares and then exercises the right. In the instant case the appellant was well within his rights to fight out the issue with the complainant‑party in exercise of his right of private property during which undoubtedly apprehensions of grievous hurts were caused to him. In the circumstances, therefore, if one or two blows given by him rather harder than perhaps intended would not amount to exceeding the right of self‑defence. The view finds support from Chhattar v. Emperor (A I R 1929 All. 897). It has been held in several authorities that in such circumstances an accused cannot be expected to weigh his blows in golden scales so as to escape criminal liability. Bhutt Nath Bome and another v. The King‑Emperor (13 C W N 1180), Bhut Nath (some and another v. Emperor (10 Cr. L J 391) and Bhut Nath Bone and another v. Emperor (3 I C 867) may be cited as some of the authorities on the proposition.

13. Before parting with this case a word may also be necessary in regard to the contention that a person claiming the protection of an exception to criminal liability must prove the existence of circumstances which would entitle him to claim such exception. On the basis of the well‑known Supreme Court authority in Safdar Ali's case based in turn on Woolington v. The Director of Public Prosecutions (1935 A C 462) it may be observed that the onus of establishing all the ingredients of a criminal offence lies always on the prosecution and never shifts upon the accused, From the facts of the case as found, the existence of such circumstances is clearly inferable.

14. In consequence, I allow the appeal and set aside the conviction and sentence of the appellant. The appellant is already on bail and his bail bond stands discharged.

15. The acceptance of the appeal results in the automatic dismissal of the Criminal Revision seeking enhancement of sentence.

Appeal accepted.

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