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Criminal Appeal No. 149 of 1967, decided on 7th July 1969.

S. 97----Private defence, right of---Sudden fight-- Complainant- party servant in number unjustifiably initiating attack and giving several Lathi blows to accused---Accused stabbing his attacker with a small knife in self defence-----Accused held, justified to use reasonable force including causing of grievous hurt in self defence in circumstance

Defence neither reasonably possible nor borne out by record and appearing to be false Prosecution has to stand on its own legs‑‑Falsity of defence, held, could by no means prove prosecution case.

Mrs. Salima Nasiruddin for Appellant.

Manzoor Hussain for the State.

Date of hearing : 7th July 1969.

Appellant Din Mohammad son of Kaloo aged 35 years has been convicted by the learned additional Sessions Judge, Tharpar kar for an offence under section 307, P. P. C. in respect of an attempt on the life of P. W. Mohammad Yakoob and under section 323, P. P. C. in respect of injuries caused to P. W. Kheto and sentenced to suffer R. I. for four years and R. I. for six months, respectively. Both the sentences were ordered to run concurrently.

2. The incident is alleged to have taken place on the 8th of October 1966 at noon time in Deb 152, Taluka Digri. The First Information Report was lodged by P. W. 2 Mohammad Sharif on the same day at 5‑33 p. m. at Police Station Digri at a distance of six miles. It reads as follows :‑

"The complaint of the complainant is as under:

I am lessee. I have got in all 88 acres of land or, lease from Ramzan Junejo and Rasul Bux Junejo in Deh 152, I have 5 Haris in this lease. Out of them two Haris are without bullocks and three have their own bullocks, who cultivate on half and half basis. Out of them one Mari is by name Dire Mohammad son of Kaloo Jat. He has cultivated 4 acres of cotton crop and 3 acres of sugar‑cane out of my leased land with his own pair of the bullocks. Due to shortage of water this year, I had asked Din Muhammad that due to lack of water more area of land could not be cultivated and so advised him to cultivate the land of some one else. Upon this Din Mohammad cultivated Chet crop beside the land of Chowdhry Ashraf. The picking of cotton pods was in progress and I told him. that we would settle the accounts after the cotton picking was over. All the cotton pods picked daily are carried by me to my village daily and Din Muhammad also brings his cotton pods daily to my village. After weighing he received his share from there. Today i. e. on 8‑10‑66 I went on a round of the land, where I saw that Din Mohammad was taking away a bundle containing maund of cotton‑pods on his head towards the village Bachal Arain. I protested as to why he was carrying away cotton pods to his village instead of taking them to my village. But he refused saying that he would not part with the cotton pods and that I should do whatever I liked. Mohammad Ramzan had come there on a round of his land nearby, whom I told that Dino was taking away my cotton‑pods and that they should help me and forbid him. Upon this I and Yakoob Kamdar followed Dino. Yakoob went a little ahead and reached Dino before me and caught hold of Dino. He threw the bundle of cotton‑pods and took out the knife from the fold of lion‑cloth and dealt a blow with it on the right flank of Yakoob, as a result of which Yakoob fell down. I stood further there and raised cries. On my cries Kheto Menghwar and Hassan Ali Shah, who were grazing their cattle nearby came running. Kheto reached Dino on whom, he inflicted a lathi blow. Thereafter, Dino ran after me with intention to kill me but I ran away. Injured Yakoob and cotton‑pod bundle are lying at the place of occurrence. Thereafter, I went from there to Wadero Mohammad Ramzan Junejo in his village and narrated to him the above facts. He advised me to lodge report with the police. He went to the injured at the place of occurrence. From there I have come to lodge the report. I lodged comp laint, investigation be made. The cause of the quarrel is that I had refused to give the land to the accused and therefore he was taking away his Harap' share of cotton‑pods to his house. I forbid him and attempted to catch him upon which the accused has inflicted the blows. Note: The complaint was read over to the complainant, who heard admitted correct and affixed his L. T. I. thereon. Copy of F. I. R. was given to him."

This report was recorded by S. H. O. Ghulam Sarwar, who immediately thereafter visited the hospital and examined the injuries on the person of P. W. Yakoob, who was lying uncon scious. The next day P. W. Ghulam Sarwar went to the scene of offence and prepared a mashirnama thereof. He found the stalk of cotton cultivation broken and there were also foot‑prints in the mud. A heap of cotton‑pods tied in a sheet was lying at the vardat, which was secured. On the same day, the S. H. O. examined P. Ws. Kheto and noted down his injuries. He also interrogated the accused and arrested him from the otak of Bachal Arain and the appellant is alleged to have produced his knife from the cattle pen inside the Lorha, under a Mashirnama Exh. 14. On the same day, the statement of Mohammad Yakoob was recorded by the Head Munshi and Third Class Magistrate, Digri. After the usual investigation the appellant was challaned. The medical evidence of Dr. Ghulam Mohammad Khan showed that injured Mohammad Yakoob had the following injuries on his person:‑

(1) A penetrating wound 1" x 1/5" x 1" obliquely on the right side of waist 3" above the illiac crest, directed from above downwards and backwards.

(2) An incised wound " x 1/5" x 1/4" on the lower part of right side of back 2" behind the injury No. 1:"

Both the injuries according to the doctor were caused by sharp‑pointed weapon such as a knife. Injury No. 1 was dangerous in nature and injury No. 2 was simple.

3. The next day at 11 a.m. the same doctor examined injured Kheto P. W. 3 and found the following injuries on his person :‑

"(1) A contusion 1" x " just below the right eye.

(2) Contusion 2" x 2" on the front of left thigh.

(3) Contusion 1" x 1" just below the left knee."

The injuries appeared to have been caused by blunt weapon such as lathi and all were simple in nature.

4. On 10‑10‑1966, Dr. Ghulam Muhammad Khan also examined injured appellant in this case and found the following injuries on his person :‑

"(1) A swelling 1 " x 1 " on the back of right elbow.

(2) Multiple contusions on the whole back. The largest being 3 " x 1" and the smallest " x ".

(3) A contusion 2" x 1 " on the middle of front of left leg.

(4) A contusion " x " on the tip of left great toe.

5. A contusion 1/3" x 1/3" on the back of the middle of left middle finger."

All these injuries were caused by blunt weapon such as lathi and were simple in nature. According to the doctor they could be caused by grappling and fall on hard ground.

5. In his statement recorded under section 342, Cr. P. C. appellant Din Muhammad denied having caused injuries to P. W. Muhammad Yakoob and Kheto. He stated that he has been falsely involved in this case at the instance of Wadero Muhammad Ramzan who along with his two sons, Haris as well as Chowdhury Muhammad Sharif P. W. 2 had gone to the appellant's house to forcibly take away the latter's daughter Mst. Hameeda. The appellant further alleged that he was beaten with lathis in the process. According to him he did not know as to who stabbed Yakoob.

6. The appellant led no evidence in defence.

7. The prosecution evidence against the appellant consist ed of the ocular testimony of four witnesses, namely, P. W. I Muhammad Yakoob, P. W. 2 Muhammad Sharif, P. W. 3 Kheto and P. W. 4 Hassan Ali Shah. According to the evidence of Muhammad Yakoob, Muhammad Sharif and Kheto the quarrel started as the appellant was carrying a bundle of cotton‑pods and Sharif asked him not to do so. Muhammad Yakoob P. W. intervened and grappled with the appellant who retaliated by giving him fist blows and subsequently took out a spring knife from the fold of loin cloth and stabbed Muhammad Yakoob twice. Kheto, Muhammad Sharif and Hassan Ali Shah also came running on the cries. Kheto had a lathi. Appellant Din Muhammad snatched the said lathi from him and dealt him lath blows. None of these three witnesses have, however, explained the injuries on the person of the appellant in a satisfactory manner. In this connection, although Dr. Ghulam Muhammad Khan has said in his evidence that these injuries on the person of the appellant could be caused by grappling and fall on hard ground and he has issued such a certificate after he examined these injuries, according to the said certificate Exh. 5/C all the injuries on Din Muhammad were caused by blunt weapon. This also appears to be more probable on examination of the nature and dimensions of the injuries themselves. It is very pertinent to note that none of these three witnesses have explained the injuries sustained by the appellant in a satisfactory manner. Instead they have tried to minimize the part played by them by saying that Muhammad Yakoob only grappled with the appellant.

8. The evidence of P. W. 4 Hassan Ali Shah who is also a grazier of Wadero Lakho brother of Muhammad Ramzan is very important as far as the case of the appellant is concerned. He described the incident in the following words :‑

"About 7 months ago I and Kheto were grazing cattle about 2 acres from the vardat. I found the accused com ing with a bundle of phutties on his head. He had taken the phutties from the field cultivated by him. Sharif came after him and he was asking him to take the phutty back to the Khara. Meanwhile Kamdar Yakoob reached there ahead of us and he dealt lathi blows to the accused. The accused then took out his knife and stabbed Yakoob who fell down. When we reached there Yakoob had already fallen on the ground."

The evidence of this witness leaves no room for doubt that Muhammad Yakoob came to the scene of offence ahead of all others and without any justification whatsoever started giving lathi blows to the appellant. The evidence of this witness clearly shows that the appellant had at no time re fused to take back the cotton‑pods to the Khara as was ordered by the Zamindar Muhammad Sharif. P. W. Muhammad Yakoob had, therefore, no justification for causing so many lathi injuries to the appellant; and the latter was justified to use reasonable force in self‑defence as he may well have apprehended that the grievous hurt may be otherwise caused to him. The right of private defence, in these circumstances, extended to causing death. He had, however, used a small spring knife which was already with him and was not brought specifically for any criminal object. The fight was sudden and unpremeditated. Besides the evidence of Hassanali Shah leaves no room for doubt that it was Muhammad Yakoob, who started the trouble by unnecessary causing lathi blows to the appellant.

9. As far as P. W. Kheto is concerned it is also con sistently in evidence that he came armed with a lathi and the appellant snatched the said lathi from him and caused him two injuries. In that state of mind the appellant may well have thought that all these people who were connected with Muhammad Yakoob may beat him further in order to have their revenge and he was perfectly justified in using reasonable force to disarm Kheto.

10. It is true that the defence of the appellant is not at all reasonably possible. I would say that it is not at all borne out by the record and appears to be false. However. the falsity of defence could by no means prove the prosecution case which has to stand on its own legs. On the evidence of P. W. Hassanali Shah, it appears clear that Muhammad Yakoob was the aggressor; and the appellant is entitled to the benefit of that evidence on this point. Hassan‑[ ali Shah is not in any way connected with the appellant and the learned counsel for the State candidly stated that he could find no grounds on which he could ask the Court to discard his evidence. I, accordingly, find that the appellant has acted in exercise of the right of private defence as P. W. Muhammad Yakoob had in fact caused more than 5 injuries to him. According to the doctor injury No. 2 consisted of multiple contusions on the whole back, the largest being 3 " x 1" on the person of the appellant. In these circumstances the appellant could have reasonable apprehension that if he did not act in self‑defence he may have received at least grievous injuries.

11. I accordingly allow this appeal and set aside the conviction and sentence of the appellant. He is on bail and need not surrender. His bail bonds are cancelled.

Appeal accepted.

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