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Criminal Appeal No. 869 and Murder Reference No. 38 of 1972, decided on 19th February 1975.
---‑‑S. 302 read with Ss. 100 & 103 ‑ Murder‑Private‑defence, right of‑Complainant party coming in body variously armed with deadly weapons and ploughing field in possession of accused party forcibly‑Fight ensuing and complainant party attacking feroci ously, resulting in death of three persons on accused's side and one on complainants'‑‑Accused, held, acted in exercise of their right of private defence of person and property, in circumstances‑‑Convic tions and sentences set aside.‑[Private defence, right of].
Abdul Waheed Butt for Appellant.
Riaz Anwar for A.‑G. for the State.
Pate of hearing : 14th January 1974.
Feroze (40) Inayat son of mehr Din Inayat son of a Wali Mohammad (24) Wali Mohammad (70), Wali Mohammad (70), Ata Mohammad Bahawal (85) Qasim (60), Khadim Hussain (15), Saee Mohammad (38), Mohammad Hussain Bhatti Jats of Basi Khurd have been convicted by the Additional Sessions Judge, Gujrat under section 149, P. P. C. as well as under sections 302, 324 and 323 read with section 149, P. P. C. Inayat son of Mehr Din as been sentenced to death and the remaining nine accused (appellants) have been sentenced to transportation life under section 302/149, P. P. C. All the ten accused have also been sentenced to two years' R. I. each under section 148, P. P. C., two years' R. I each under section 324/149, P. P. C. six months' R. I. each under section 323/149, P. P. C. The sentences of 1prisonment of accused have been directed to run concurrently. This weal and the connected murder reference are before us.
2. Elahi Bakhsh alias Ellahu. an issueless collateral of the parties tuned 4,s Bighas of land flu Basi Khurd including field No. 59 over which the present occurrence took place. He was shown as an owner in possession of this field in the Jamabandi of 1965‑66 as well as succeeding Khasra-e‑Girawari for Kharif 196. In the Rabi of 1963, his continued possession was shown by means of diagonal lines but these lines were cut and Ata Mohammad and his brother Nazar Mohammad deceased were named A tenants at will of Ellahu. The field was also shown to be in possession of Ata Mohammad in Rabi 1969. No member of the complainant party as shown to be connected with this field at any time from 1965 to March, 1969 when the present occurrence took place.
3. Ellahu died on 4‑1‑1968. On 5th of January 1968, Inayat son of Mehr Din and his cousin Nazar Mohammad deceased filed a suit to restrain Ellahu from interfering with the possession of his land because he ad donated it to them. A person appeared in the civil Court on the same day and confessed judgment as Ellahu defendant. The suit of the plaintiff's was therefore decreed. On the 13th of January, Ali Mohammad, P. W. brought a suit against the decree‑holders for cancellation of the decree as fraudulent. The suit was not resisted and the decree in question was cancelled. After the death of Ellahu, half of his land was mutated in favour of the complainant party. The accused party brought a civil suit to challenge the order of mutation in favour of the complainant party, claiming tire whole of Ellahu's land. They also applied for the grant of a temporary injunction to restrain the defendants (complainant party in this case) from interfering with their possession. On 13‑1‑1968, the counsel for the defendants conceded that the plaintiffs were in possession of Ellahu's land and agreed to respect their possession pending decision of the suit. Thereupon, the civil Judge passed order (Exh. P. H) which is reproduced below :‑--
"Parties' counsel present. Plaintiffs' counsel has produced Khasra Girdawari. The defendants' counsel states that they will not interfere with the plaintiffs' possession till disposal of suit. No further action can be taken oil this application. 13‑11‑68."
4. The prosecution case is that at Chhahwela on the 7th March 1969, Salehon P. W. 5 and one Mohammad Hussain were ploughing field No. 59 when all the accused as well as their deceased relations Fateh Ali, Ali Muhammad and Nazar Mohammad turned up. Fateh Ali, Ali Mohammad, Bahawal, Mali Muhammad. Feroze, Qasmi and Ata Mohammad were armed ,with sticks, Inayat son of Mehr Din, Inayat son of Wali Mohammad. Nazar Mohammad and Saee Mohammad had spears and Mohammad Hussain carried a hatchet. Their lalkaras attracted Mirza, Nawab, Ali Mohammad, Mohd. Khan and Mutalli P. Ws. and Moonda deceased who were sitting near the field. The accused asked Mohammad Hussain and Salehon to take out their ploughs and when they refused, they began to attack these men. Moonda tried to save them but he was killed by Fateh Ali deceased, Nazar Mohammad deceased and Inayat son of Mehr Din. The accused also injured Nawab, Mirza and Mohammad Khan P. Ws. Fateh Ali and Nazar Mohammad deceased as well as Ata Mohammad accused were injured from the other side in the course of the tight.
5. Salehon went to Paharianwali Police Station and made the F. I. R. (Exh. P. A) there to Asghar Ali A. S. I. (P. W. 6) at 9‑00 a. m. As the informant was injured the A. S. I. prepared his injury statement and then went to the spot where Moonda was found laying dead. He prepared the necessary documents and sent the dead body for post‑mortem examination. The A.S.I also collected some blood‑stained earth and two crime empties from the scene of the occurrence. Khan Isab Khan, S.H.O., Paharianwali (P. W. 12) recovered spear P. 4 from Inayat son of Mehr Din, spear P. 6. from Inayat son of Wali Mohammad and hatchet P. 5 from Mohammad Hussain accused when they appeared before him on the 9th of March.
6. The injured and the deceased from both the sides were examined by Dr. Rashid Ahmad, Medical Officer, Phalia Hospital (P. W. 1). He also appeared in defence as D. F. 1. A summary of his evidence is givers below:--------
I. (P. Ws. Injured):
(1) Nawab P. W. 8.
(i) Incised wound 1 ' x ' wound deep antroposterior in direction with a flap right temple region.
(ii) A contused wound skin deep ' x 1/8' in front of head left side.
(iii) Abrasion ' x ' oblique in direction back and wound of the thumb were under observation for X‑rays.
(iv) Left thumb of hand is swollen as a whole and wounds of the thumb were under observation for X‑rays.
(v) Small punctured wound x ' in‑between index and middle fingers it was skin deep on right hand.
(vi) Abrasion covered 1 x 1/8' in front of chest left side near nipple.
(vii) Two small abrasions in front of abdomen left aide.
(2) Muhammad Khan P. W. 9.
(i) Contused wound irregular ' x ' area around was swollen. It was on the back of left, parietal.
(ii) Abrasion x middle and outer part of left arm. Both the injuries were simple caused by blunt weapon within about 36 hours.
(3) Mirza P. W. 10.
(i) A punctured wound with empty wound 1 ' x on the left thumb. It crossed through the thumb, there was exit wound 1 ' x ' on the veneral surface of thumb and palm of hand was swollen. X‑rays of the left hand was advised to see any fracture.
(ii) Punctured wound ' x just above injury No. 1 on hand and left thumb.
(4) Sakhon P. W. S
(i) Contused wound 1 x ' akin deep back of head. It was oblique in direction, X‑rays advised to see the condition of skull bone.
II. Accused (Injurect)‑
(1) Qasim (Accused):
(i) Contused wound skin deep 1' x 1" back of right parietal region bone underneath was under observation for X‑rays of skull.
(ii) A punctured wound 3" x " on the outer side of right palm of hand and had crossed through soft tissue by side of root of thumb making an exit wound 1' x " in‑between right index finger and thumb.
(iii) Swelling 5" x 5' on right scapular area of chest wound under these were under observations for X‑rays.
(iv) Abrasion 1" x oblique on back of left ankle.
(v) Contused wound skin deep oblique x 1/3 back of parietal region.
(2) Muhammad Inayat (Accused):
(i) Punctured wound 1 x " skin deep right loin to middle line. There was a cut in the shirt opposite to the wound. The shirt was blood stained.
(ii) Swelling x back of right parietal region of head.
(3) Ata Muhammad (Accused):
(i) Punctured wound 1 x framed out side just below middle of left coastal margin in front of abdomen. he wound went deep in the abdomen. Creater omentum was protruding outside through the wound. There was cut in the shirt opposite to the wound. There was profuse haemorrhage from the wound.
(ii) A punctured wound 1 x 1/6" bone deep on the left palm of hand outer side.
(iii) A punctured wound 1' x bone deep in front of head and forehead right side.
(iv) Contused wound curved 2 x back of right parietal region. It was bone deep transverse in direction wound underneath was doubtful for fracture.
(v) Oblique contused wound 1" x back of part of head and in middle line.
(vi) Punctured wound 1' x 1/4 in front and middle of abdomen skin deep. Patient was under effect of shock. Injury No. 1 was grievous and dangetous to life. No. 4 was under observation. Rest were simple injuries. Nos. 2 and 3 were caused by sharp pointed weapon and rest by blunt weapon within about twelve hours. ,
(4) Khadim Hussain (Accused):
(i) Incised wound oblique in direction 2 " x 1" skin deep on the outer part and lower side of right forearm.
(5) Ghulam Haider (Accused):
(i) A healing wound incised 1" x back of left hand and it was verticle direction on the outer side.
(ii) A healing contused bone 1 x " transverse in direction back of head left side.
(iii) A healing contused bone 3" x oblique in direction back of right parietal region.
III. Deceased From complainant party‑
(1) Injuries observed during port‑mortem examination of Moonda (deceased):
(i) A punctured wound 1 x went deep into the skull and injured brain matter which was protruding out of the wound. The wound was on the back of the left head side.
(ii) Punctured wound ' x 1/5" from, outside and went deep into the skull causing fracture of skull and the brain matter. It was on the left parietal region, just at a distance of half inch from injury No. 1.
(iii) Verticle contusion 4" x 1' back of chest left side near middle line.
(iv) The lower, and upper sides of the left eye were swollen and echymosed.
(v) Incised wound oblique back of left little finger it was skin deep.
(vi) Abrasion x back of right ribs. Death was due to injuries Nos. 1 and 2.
IV. (Deceased from the accused side)---
(1) Injuries observed during the post‑mortem examination of Fateh Ali deceased:
(i) Contused wound 3' x atroposterior in direction in the middle of left parietal region. On opening this skull fracture was seen in the left parietal bone. There was in structural haemorrhage mengence and brain were congested.
(ii) Oblique abrasion 4 x 1/8" on the outer and middle part of right arm.
(iii) Abrasion x " in front of the abdomen left side near umblicus.
(iv) There were 32 wounds in front of abdomen right side lower pare and in front and upper part of right side. There were round shape varying size 1/5" to 1/6' some wounds were superficial in nature and others were deep in tissues and depths were different.
(v) 118 firearm wounds in front of abdomen left side lower part in front of left eye knee. These were round in shape varying size 1/5" to 1/6" some wounds were superficial in nature and other were different. 21 pellets were recovered from these wounds. One pellet was recovered from the urinary bladder. Urine leaked in the abdominal cavity.
Death was due to injury No. 1 and shock ' resulting from injury No. 2 to bladder:
(2) Injuries observed during post‑mortem examination of Nazar Muhammad deceased:
(i) A stab wound 1' x from outside in front of abdomen right side lower part 3' from umblicus on my first examination vide medico legal report No. 21/69 on the greater omentum was protruding out there was profuse haemorrhage. At that time he was under effect of shock. Fluids were rushed intravenously, when the general condition improved the same wound was slightly enlarged. The abdominal cavity was full of blood portion of greater omentus was sutured and excised blood was mopped out of the abdominal cavity. Mysentary was injured. There was one bleeding point that was also stitched.
Death was due to shock and haemorrhage associated with peretonious as a result of abdominal injury.
(3) Injuries observed during post‑mortem examination of Ali Muhammad deceased:
(i) Punctured wound 1" x ' from out side in middle front and outer part of abdominal wall right side, loops of intestines were protruding out of the wound. These were profuse bleeding from the wound. There was a cut opposite to the wound, wound went deep into the abdominal cavity.
(ii) There was another injury a punctured wound ' x 1/7' wound deep in middle of sacoral region. There was a cut in the shirt opposite to the wound. The patient was under effect of shock pulse rate 120 per minute after improving his general condition. Injury No. 1 was enlarged by four injuries by 1" now was the present position of the body. Other loops of intestines were taken out of the wound a punctured was present in between the mysentary and wall of large intestine. Face blood present in abdomen and that was cleaned, after cleaning all the intestines were recleaned, wound was stitched.
Death was due to shock and haemorrhage associated with peretonious due to injury No.1 while injury No. 2 hastened death.
6. All the accused denied guilt and stated that they were in possession of the land of Ellahu and a fight took place because the opposite‑party tried to take forcible possession of field No. 59. Inayat son of Mehr Din, Inayat son of Wali Mohammad and Mohammad Hussain denied the recovery of any weapon from them. Feroze produced copy of the order of the High Court (Exh. D. F.) granting bail to them in this case, while Ata Mohammad produced a copy of the order of the Civil Judge (Exh. P. H.) mentioned above.
7. It is common ground that a fight took place between the parties at the alleged time and place in connection with the possession of field No. 9 of Ellahu which was lying vacant. As stated above the field was in possession of the accused party long before the day of occurrence. This fact was not only conceded by the counsel who represented the complainant party in the case as defendants but was also conceded by Salehon and Ali' Mohammad themselves. Salehon stated in the F. I. R. (which was made by him before the other side appeared before the police) that the whole of Ellahu's land was in possession of the accused party. Subsequently, he explained to the C. M. that the accused were in possession of Ellahu's land in his life time, that when his party went to plough the field in dispute, it was lying vacant and before that it was cultivated by the accused party. Ali Mohammad P. W. also admitted before the C. M. that the accused were in possession of Ellahu's land before he and his companions went to plough it. He stated that one Killa of Ellahu's land was in his possession 3/4 years before the occurrence, but Ellahu took it back and the accused cultivated it for one year and after this, they went to plough it. He also admitted before the police that the whole of Ellahu s land was in possession of Inayat etc". For technical reason, entry of Khasra‑e‑Girdawari for Rabi 1968 was shown as disputed but there was no actual dispute. Even if there was a dispute, it would have been between Ellahu and his tenants and the complainant party would have had no concern with it, because they were not in possession of field No. 59 at any tare, from the Jambandi, of 1965‑66 to the time of the present occurrence. As they went armed with deadly weapons to take forcible possession, killed arid injured many members of the accused party, the accused acquired a right to defend their persons and property.
8. The complainant party tried to exploit the omission of the civil Court to grant a temporary injunction to the accused but no formal injunction was recorded because the complainant y had agreed to maintain the status quo. The complainant party had no right to occupy the field which was admittedly in possession of the accused especially when they had agreed to respect it till the decision of the civil suit between the parties. As the complainant party went in a body to take forcible possession of the field and refused to take out their plough on the demand of the accused, the latter acquired a right to defend their persons when attacked with deadly weapon. The attack of the complainant party was so ferocious that three members of the accused party lost their lives. There is nothing to show that the accused exceeded the right of self- defence. They are, therefore, entitled to acquittal on all charges.
9. In view of what is stated above, we accept the appeal and acquit the appellants of all the charges. The sentence of death passed on Inayat son of Mehr Din is not confirmed.
Appeal allowed.
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