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Criminal Appeal No. 2‑P of 1967, decided on 25th March 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 9th June 1965, in Criminal Appeal No. 174 of 1964).

Ss. 308 & 103--‑Conviction under S. 308‑Plea that complainant had committed criminal trespass by passing with buffalo through field of accused arid so accused was entitled to protection under S.‑103‑Special leave to appeal granted by Supreme Court to consider plea.

Ss. 308 & 103‑Plea that had caused injury to on account of trespass‑Evidence showing that S stabbed B after quarrel between two had ended' and B had turned his back towards S-‑Protection under S. 103, in circumstance held not available‑--Conviction under 3:308 not interfered with.

Abdul Latif Malik, Advocate Supreme Court instructed by G. S. Gideon, Attorney for Appellant.

Raja Said Akbar Khan, Advocate‑General West Pakistan (Abdul Majid Sheikh, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State.

Date of hearing: 25th March 1968.

The appellant was convicted under section 307, P. P. C. for murderous assault with a knife on Amir Shah, complainant, and sentenced to two years' rigorous imprisonment and a fine of Rs. 500, in default to undergo further imprisonment of six months. Separate sentence was also recorded under section 19 of the Arms Act. On appeal the Additional Sessions Judge set aside both the convictions on the view that the statement made by the complainant was in material respect contradicted by the eye‑witnesses and no ex planation was given by him of the injuries found on the person of the appellant. In arriving at this conclusion the Additional Sessions Judge expressed a seemingly untenable view that even if it be held on the basis of the medical evidence that the appellant is guilty under section 326, P. P. C. one is at a loss to know what sentence should be awarded for its quantum would vary if, there was provocation on the part of the complainant. It was in the circumstances considered safe to acquit the accused. The order of acquittal was on further appeal by the State set aside by the High Court on the finding that the offence committed by the appellant fell under section 308, P. P. C.

Leave to appeal was granted to consider the plea that the com plainant had committed criminal trespass by passing through the field of the appellant with a he‑buffalo and under section 103, A P. P. C. entitled to cause him an injury short of death.

An examination of the record shows that there was an improvised path commonly found in the villages running through the field of the appellant along which the complainant bad passed carrying a load of maize on the back of he‑buffalo to the water mill across the field. The appellant verbally protested as wheat had been freshly sown in the field which resulted in as altercation and exchange of abuses between them. The com plainant maintained that the path was being used by the villagers since long and he too had the right to use it. Accordingly on his return from the water‑mill he again went along that path at which the appellant came over to the complainant and started grappling with him. In the course of grappling they both fell on the ground, but in the meantime Multan, P. W. 4, owner of the water‑mill arrived at the spot and with the assistance of Sultan, P. W. 5, who was accompanying the complainant, succeeded in separating the appellant and the complainant. At that stage the appellant took out a knife and plunged it in the back of the complainant causing him an incised wound 1" x 2" on the left side of the back which entered the chest cavity and cut the eleventh rib.

The facts which emerge from the above narration are that the path along which the complainant had passed with the he‑buffalo was being used by the villagers for many years. Multan, P. W. 4 stated: "The path passing through the fields of the accused is an old one and is being used by the villagers till today." Similarly, Faizullah, P. W. 6 stated: "The path on which t and Amir Shah were coming from the water‑mill, passing through the fields of the accused, is being used by the villagers as a path since long." Neither P. W., was cross‑examined about the existence of the path and its use by the villagers for many years before the occurrence. Further the appellant had attacked the complainant with the knife not on his entering the field but after they had grappled with each other and the P. Ws. had separated them. In the circumstances, it could not be maintained that the appellant had acted in private defence of his property. On the contrary the blow was struck in continuation of the fight which was occasioned by the passing of the complain ant through the field of the appellant in spite of his protest. The locale of the injury further indicated that the complainant had turned his back towards the appellant and was leaving the field when the latter caused him the knife injury. The right to cause an injury short of death to the complainant on account of his committing criminal trespass was thus not available to the appellant. We have also perused the evidence of the complainant and the two eye‑witnesses which does not disclose and material discrepancy such as would have been sufficient to discredit the pro secution case altogether. There is no mention in the statement of the complainant about the grappling between him and the appellant, but a mere omission in the narrative of the occurrence cannot be magnified to the extent of disbelieving the entire prosecution case. Similarly two minor contusions found on the person of the appellant was explained by the fact that he along with the complainant had fallen on the ground. The Additional Sessions Judge was therefore not justified in using this circumstance as a ground for acquittal.

We are, accordingly, of the view that the High Court has rightly convicted the appellant of the offence under section 308, P. P. C. and dismiss the appeal. The appellant shall surrender to his bail bond and serve the un-expired portion of the sentence of two years' rigorous imprisonment awarded to him by the High Court.

Appeal dismissed.

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