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Criminal Appeal No. 168 of 1971, decided on 26th April 1974.

‑‑ Ss. 307 & 304‑Attempted murder‑Evidence, appreciation of Complainant‑party aggressors starting trouble by opening attack on accused party and inflicting extensive injuries to them Accused attributed fire‑arm injuries but empties recovered from spot not matching with crime‑gun recovered from accused nor any independent corroborative piece of evidence available to support ocular testimony‑‑Prosecution, held, failed to prove its case beyond reasonable doubt‑Convictions and sentences set aside, in circumstances.‑[Evidence].

----S. 304‑Sentence ‑ Mitigation ‑‑ Complainant‑party aggressors and starting trouble by attacking accused‑party‑Sentence of trans portation for life reduced to 7 years' R. I. in circumstances.‑‑ [Sentence].

Ihsan Qadir for Appellants.

Muhammad Anwar Khan for the State.

Dates of hearing ; 25th and 26th April 1974.

According to the prosecution version the brief facts of the case are that Ahmad Bakhsh P. W. claims to have entered into an agreement of exchange of land with his uncle Ziada P. W. He agreed to give him 10 Killas of land situated near Chak No. 2/SB. Be agreed to get 9 Killas of land from Ziada P. W. which were situated near his dera. That land included Killas Nos. 1 and 10 of square No. 133 which were under the cultivation of Mirza (acquitted co‑accused) as a tenant. Ahmad Bakhsh tried to get the possession of the land taken by him in exchange from Ziada P. W. includ ing 2 Killas in possession of Mirza (acquitted co‑accused). According to Ahmad Bakhsh P. W. a day before tie occurrence at about evening time Manak and Mirza (acquitted co‑accused) and Munir appellant went to his dera and asked him to refrain from implementing the alleged. agreement of exchange on the ground that they were in possession of two Killas of land out of the land belonging to Ziada P. W. They said that in case Ahmad Bakhah took that land in exchange, they would be deprived of the possession of that land as he himself wanted to cultivate that land. On the day of occurrence namely, on 6‑5‑1968, at about sunrise, Ahmad Bakhah P. W. saw all the seven accused persons present in Kills No, 1 of Square No. 133. Mirza (acquitted co‑accused had a pair of bullocks and was about to start ploughing that field sin which cotton crop had been sown which crop was about 1/2 foot in height. Mirza and Umari (acquitted co‑accused) were armed with lathes. Nazir appellant with a hatchet, Manak (acquitted co‑accused), Aslam, Allah Bakhah and Munir appellants were armed with guns. The witness asked the accused persons not to plough. the field and destroy the crop. On this Mirza Insisted upon doing so. He further said that since they were going to lose possession, they would not let the field remain in a position to benefit the complainant (Ziada P. W.). According to the prosecution version, Mirza co‑accused started ploughing Killa No. 1. In the meantime, Lala P. W. came there and entreated Mirza accused not to destroy the crop but the latter continued ploughing. In the meantime, Malak, Ziada, Shera P. Ws., Akram and Noor Muhammad deceased also arrived there. Ziada, Shera P. Ws. and Noor Muhammad deceased were carrying lathis, while Malak P. W. and Akram deceased were holding small sticks in their hands which are used to bear the bullocks. Malak and Ziada P. Ws. asked Mirza accused to refrain from destroying the crop, but he insisted upon doing so, as a result of which Ziada P. W. stepped forward and stood in front of the bullocks and stopped them. Upon this Mirza accused is said to have instigated his co‑accused by shouting as to what they were seeing, where-after Nazir appellant came forward and inflicted a hatchet blow on the head of Ziada P. W. Thereafter, Ziada P. W. and other members of his party retreated into Killa No. 9 which was adjacent to Killa No. 1. They were followed by the accused party. When the parties had come in Killa No. 9 Nazir appellant again inflicted a hatchet blow on Ziada P. W. which landed on his right arm. Mirza accused inflicted a laths blow on Shera P. W. Umari accused also dealt a laths blow to Malak P. W. The members of the complainant party also inflicted lathi blows to Mirza accused in self‑defence. Umari co‑accused dealt another lathi blow to Shera P. W. Manak accused fired a shot from his gun hitting Ziada P. W. as a result of which he fell down. The complainant party inflicted a lathi blow to Manak accused. Then Munir appellant tired a shot which hit Akram deceased and he fell down. Then Aslam appellant fired a shot which hit Noor Muhammad deceased and he too fell on the ground. Malak and Share P. Ws. inflicted long blows to Aslam and Allah Bakhah appellants. Allah Bakhsh appellant then fired another shot which hit Malak P. W. who staggered back and while he was in the process of staggering, Allah Bakhsh appellant fired another shot which hit Madak P. W. on the back and he fell down. Munir appellant fired another shot which hit Noor Muhammad deceased who had‑ fallen down. Allah Bakhsh appellant had also fired at Shera P. W. who also fell down. Where all of them had fallen down the accused ran away towards the dare of Mirza accused along with their weapons of offence. Akram and Noor Muhammad died on the spot, while Ziada, Malak and Sher P. Ws. were lying on the ground with serious injuries on their persons. Ahmad Bakhah left Lala P. W. near the dead bodies and the injured persons and himself started towards the police station to lodge the report. On the way, he learnt that the thansdar was present in village Salam, so he contacted him and made statement (Exh. P. H.) before A. S. I Muhammad Hussain Khan. On the basis of this statement formal F.I. R. (Exh. P. H. 1) was registered at Police Station Bhalwal.

2. According to the medical evidence the accused party received as many as 24 injuries, including 6 grievous ones, on vital parts. The compl ainant party on the other hand had 32 injuries. The accused persons through the statement of Mirza (acquitted so‑accused) claimed self‑defence of both property and person, but producer no defence evidence.

3. The present appellants, along with Mirza, Manak and Umari were tried by the Additional Sessions Judge, Sargodha, for the offences tinder sections 302/307, 148/149, P. P. C. He acquitted co‑accused Mirza. Manah and Umari, but convicted Nazir appellant under section 326, P. P. C. for causing grievous injuries to Ziada P. W. acid sentenced him to ten years'

rigorous imprisonment. Munir and Aslam appellants have been convicted under section 304 Part I P. P. C. and sentenced to transportation for life. Allah Bakhsh appellant was convicted under section 307, P. P. C. and sentenced to transportation for life. All the appellants have challenged their convictions and sentences through the present appeal.

4. There are two versions of the same occurrence one given by the prosecution and the other by the defence. According to the statement given by Mirza (acquitted co‑accused) the accused persons claimed right of self‑defence of property as well as person. Instead of going into the evidence available on the record, I propose to consider the findings given by the trial Court. While dealing with the question as to which of the two parties was aggressor arid whether the fight started in Killa No. 1 of square No. 133, the learned Additional Sessions Judge observed as under :‑

According to the prosecution version, the fight started from Killa No. 1 and when Nazir accused had dealt two hatchet blows to Ziada (P. W. 17) the members of the complainant party are alleged to have retreated back to Killa No. 9, where rest of the fight took place. I think there is no reason to disbelieve this theory, particularly in view of the fact that the dead bodies and injured prosecution witnesses were found lying in Killa No. 9----------------So my finding with regard to this particular matter is that although the fight started from Killa No. 1, the major part of the occurrence carne about in Killa 9."

As to who was in possession of Kills No. 1 and who had sown the crop in it, the trial Court held as under :‑

"The crop had admittedly been sown by Mirza accused". Thus, the possession of Mirza accused of Killa No. 1 stands proved beyond any doubt. As to in what capacity Mirza was in possession of Killa No. I and as to which of the two parties had gone to destroy the cotton crop in this killa, the trial Court came to the following conclusion :‑‑

"In that view of the matter there would absolutely be no justification whatsoever tit believe that he (Mirza) would be a fool enough to destroy his own cotton crop. This could not be possible even if the prosecution version be relied upon, which is to the effect that be was a tenant of the land on payment of 1/2 of the produce as rent. Even in that case, I am unable to see what was the justification or occasion for Mirza accused having been out to destroy the crop, considering that he was not very much affected by the transaction of exchange, in that all he had to do was affected to have paid the landlord's share of the produce to Ahmad Bakhsh (P. W. 12) instead of Ziada (P. W. 17). It would be unbelievable in either of the case that the accused party p went to destroy the cotton crop by ploughing."

5. After referring to the statement of Muhammad Anwar Patwari (P. W. 10) and the entries in the Khasra Girdawari relating to the period froze Kharif 1965 to Rabi 1968, the trial Court observed as under :‑

" They bear out that Mirza accused was in possession of these two killas as a lessee under Ziada P. W. from Kharif 1365 to Rabi 1967, the lease money being Rs. 170 per year per killa. His name went on the Crop Inspection Register as being in possession in the capacity of a tenant on payment of 1/2 of the produce as rent, for the first time in Kharif 1967 when the agreement of exchange had already been brought about. Similar entry was made in Rabi 1968.

The character of his possession seems to have been changed by the Patwari without any justification, at the instance of Ziada and Ahmad Bakhsh P. Ws. for reasons which are very obvious and pertinent on the record. . . . .

It would thus be proved from the statement of the Patwari as also the entries of the Crop Inspection Register that Mirza accused was on the land not in the capacity of tenant at will as alleged by the prosecution, but in that or a lessee. . . .

This leads me to the conclusion that the prosecution varsion with regard to Mirza and other accused having gone to Killa No. 1 to destroy their cotton crop is absolutely without foundation. Such a thing, as I have already said before, hardly makes any sense. I am of the view that the defence version on this point is certainly mote plausible. I think it were the complainant party who must have gone to Killa No. 1 to destroy the cotton crop sown by Mirza accused, in a bid to obtain forcible possession of the field, so that it may be delivered to Ahmad Bhkhsh (P. W. 12) which could not otherwise be possible. . . .

There are certain other factors too which have led me to the belief that it was in fact the complainant party who went to the field to obtain its forcible possession and that the aggression came from their side. . . . . .

In my opinion there is sufficient material on the record to show that these people had gone to the spot after having armed themselves with regular lathes and that it were in fact they who not only started the fight, but were also the first to inflict injuries on the persons of Manak. Mirza, Allah Bakhsh and Aslam accused.

After referring to the medical evidence and mentioning the 24 injuries on the person of four accused persons, the learned Additional Sessions Judge observed as under :‑

"How can it be said, in view of these injuries that the members of the complainant party had not been armed with regular laths and that they were just holding sticks in their hands The number of injuries on their persons also lands support to the idea that it were they who had gone to plough the field and that they caused injuries on four of the accused who had come to restrain them from damaging the crop. . . . . . . . . . . . . .

It is clear from the statements of some of the prosecute n witnesses that the aggression was started by the complainant party and it was after injuries had been inflicted to some of the accused that they retaliated in self defence. We might refer to the statement of Ahmad Bakhsh (P. W. 12) made by him before the C. M. where he deposed that two deceased and the injured P. Ws. had caused injuries to some of the accused. before they themselves were injured at their hand. The statement of Shera (P. W 14) made before the Investigating Officer is to the similar effect. It indicates that accused were injured by the complainant party in the same field where hatchet blows were given to Ziada P. W. and it was thereafter that they retreated into Killa No. 9. The same witnesses stated before the C. M. that after the blows given by Nazira to Ziada P. W. he received two blows at the hands of Mirza and Umari accused and that they retreated to Killa No. 9 after having injured the accused persons. It is clear even from this statement that injuries to the members of the accused party had already been inflicted in Killa No. 1 when the remaining part of the affair took place in Kills No. 9. Lala (P. W. 15) is another witness who supports this version. He too deposed before the C. M. that the accused persons had been injured before tire receipt of gun shot injuries by the prosecution witnesses and the deceased persons. These statements make out abundantly clear that the aggression was started by the complainant party and tire deceased and the prosecution witnesses were injured only after large number of injuries had beers inflicted on four of the accused in Killa No. 1"

6. While giving consolidated findings, the trial Court held as under:

'It, therefore stands proved:

Firstly that it were the complainant party who went to Kills No. 1 to plough the cotton crop, secondly that the accused party came subsequently and tried to restrain them from doing go; thirdly that the aggression was started by the complainant party and it were they who first inflicted injuries on the persons of the four members of the accused party."

7. After the above‑mentioned categorical findings, we have to see what offence has been committed by each of the present appellants. Nazir appel lant is alleged to have caused two injuries to Ziada P. W. The first injury was kept under observation, while the second was declared simple. There is nothing on the record to show that after keeping the said injury under observation, it was declared grievous. The statement of the doctor recorded by the Committing Magistrate is absolutely silent about the result of the said observation. In other words, there is no material on the record to show injury No. I as grievous. Even otherwise, applying the designation of grievous hurt as given in section 320, of the Penal Code, I find that the present injury is not covered by any of the eight clauses mentioned in that section. It is an admitted fact that there was no fracture or dislocation of any bone underneath this injury. In the absence of any material available on the record it can safely be inferred that even this injury was simple in nature. The result is that two injuries on tile person of Ziada P. W. attributed to Nazir appellant are simple. When confronted with this situation, the learned counsel for the State has frankly conceded that the conviction of this appellant under section 326, P. P. C. for causing grievous hurt is illegal. Accordingly, set aside the conviction of this appellant under section 326. P. P. C. and instead convict him under section 324, P. P. C. Since maximum sentence prescribed under section 324, P. P. C. is three years and this appellant has already undergone more than that period, I direct that he should be released forthwith if not required in connection with any other case.

8. Now I take up the ease of Aslam and Allah Bakhsh appellants. Both these appellants are alleged to be armed with guns. No gun has been covered from Aslam appellant. One gun (Exh. P. 16) was recovered from Allah Bakhsh appellant but according to the statement of Firearms expert, Forensic Science Laboratory (P. W. 13) none of the empties recovered from the place of occurrence has been found to have been fired from this gun. These appellants are attributed only gunshot injuries. The were fact that there were injuries on their person would not make them able for arty offence, because neither section 34 nor section 149 of the Pakistan Penal Code has been applied in this case, where right of self-defence has been claimed. The injuries on their person at the most can establish their presence on the spot, but mere presence cannot make them liable for causing any firearm injuries to the prosecution witnesses. Since no gun has been recovered from Aslam appellant and none of the empties recovered from the place of occurrence has been found to have been fired from the gun (Exh. P. 16) recovered from Allah Bakhsh appellant, their conviction cannot be maintained. The mere testimony of the eye‑witnesses do not sufficient to maintain tire conviction of these two appellants, especially after the above‑mentioned findings given by the trial Court against the prosecution. The learned State counsel has failed to point out any independent corroborative piece of evidence to support the ocular testimony against these two appellants. After taking into consideration the relevant material available on the record find that the prosecution has not been able to prove its case beyond reasonable doubt against these two appellants. They are, therefore, entitled to be acquitted. Accordingly. I set aside the conviction and sentence of Allah Bakhsh appellant under section 307, P. P. C. and acquit him. Similarly. I set aside the conviction and sentence of Aslam appellant under section 304, Part I, P. P. C. and acquit him. 'They shall be set at liberty forthwith if not required in connection with any other case. It may be observed here, that the trial Court had come to the conclusion that the accused persons, including the present appellants, inflicted injuries to the complainant party in the exercise of their right of private defence of person and property, but had exceeded that right. In other words, they were convicted for exceeding their right of private defence of persons and property, Allah Bakhsh appellant was convicted under section 307, P. P. C. and sentenced to transportation for life. This is the maximum sentence provided under this section. It is not understandable how the learned Additional Sessions Judge could award the maximum sentence for exceeding the right of self‑defence of person and property. The proper conviction should have been under section 308, P. P. C. and the maximum sentence could be only upto seven years.

9. As regards Munir appellant, he was armed with gun (Exh. P. 19) which is a licensed one. The empties (Exh. P. 21/1‑12) recovered from the place of occurrence have been found to have been fired from this gar: according to the statement of Ghusher Muhammad Malik, Firearms Expert, Forensic Science Laboratory (P. W. 13). So far as this appellant is concerned, tile ocular testimony stands fully corroborated by the recovery Of 12 empties from the place of occurrence. When confronted with this situation, the learned counsel for the appellants has frankly conceded that this appellant has been rightly convicted. However, he vehemently argues that in the circumstances of the case, the sentence of transportation for life awarded to this appellant under station 304, Part I, P. P. C. is too severe. Keeping in view the categorical findings given by the trial Court against the prosecution and in favour of the defence I feel that the sentence is rather severe. After taking into consideration the facts and circumstances of the case, I feel that the ends of justice would be met if the sentence of this appellant is reduced from transportation for life to seven years' rigorous imprisonment. Accordingly, while maintaining his conviction under section 304, Part I, P. P. C. I reduce his sentence of transportation for life to seven years' rigorous imprisonment.

10. The upshot of the above discussion is that Aslam and Allah Bakhsh appellants are acquitted. The conviction of Nazir appellant is altered from one under section 326, P. P. C. to one under section 324, P. P. C. and since he has already undergone snore than the maximum period of imprisonment prescribed‑under that section. he is directed to he released forthwith. The conviction of Munir appellant under section 304, Part I. P. P. C. is maintained, but his sentence of transportation for life is reduced to seven years' rigorous imprisonment. This appeal stands disposed of in the above terms.

Order accordingly.

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