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Criminal Appeal No. 47 of M66, decided on 24th January,1982.

---‑‑‑Ss. 304, Part 11 & 323/34‑‑Ocular evidence‑‑Independent eye‑witness disbelieved by trial Court‑‑Other eye‑witnesses related to deceased and interested being accused in counter‑case‑‑Eye‑witness minimising their own role in occurrence and suppressing injuries caused to accused, giving different manner of occurrence as against statements under S.161, Cr.P.C.‑‑Conviction held, could not be based on uncorroborated testimony of such interested witnesses.

‑‑‑S. 304, Part II‑‑Criminal Procedure Code (V of 1898), S.342‑‑Defence version‑‑After disbelieving prosecution story, defence version has to be accepted in toto.‑‑[Evidence].

‑‑‑Ss. 304, Part II, 100 & 101‑‑Criminal Procedure Code (V of 1898), S.59‑‑Private defence, right of‑‑Deceased and witnesses catching hold of companion of accused, who had not committed any non‑bailable and cognizable offence in their view‑‑Act of deceased and witnesses not legally justified by S.59, Cr.P.C.‑‑Accused, held, had a right of private defence against act of wrongful confinement by deceased and witnesses‑ Accused, held, had right of private defence of voluntarily causing any harm other than death to get released their companion.

‑‑----Ss. 304, Part II, 100 & 101‑‑Private defence, right of‑‑Deceased party opening attack on accused and causing injuries including one grievous injury to accused‑‑Act of deceased party, held, gave right of self‑defence of person to accused extending causing of death of deceased and witnesses.‑‑[Private defence, right of].

‑‑‑Ss. 304, Part 11/323/34 & 100‑‑High Court disbelieving prosecution version and accepting defence version in toto‑‑Accused causing, dean of deceased and injuries to prosecution witnesses in exercise of right of self‑defence of person and property‑‑No offence, held, committed by accused in circumstances, accused thus acquitted.

Sh. Nisar Ahmad for Appellant.

Javed Iqbal Alam for the State.

Date of hearing: 24th January, 1982.

This criminal appeal arises from the judgment of the learned Additional Sessions Judge, Montgomery, whereby he, on 14‑12‑1965, convicted Mahma, aged 28, Rehman, aged 21, and Rahim Bakhsh, aged 31, all brothers, inter se, under section 304 (II), P.P.C. and sentenced them to five years R.I. each and a fine of Rs.5,000 in default thereof to six months R.I. for causing the death of Noor Muhammad deceased. He also convicted the appellants under section 323/34, P.P.C. for causing hurt to Bashir Ahmad and Allah Bakhsh P.Ws. and sentenced them to a fine of Rs.200 each; in default to further R.I. for two months.

2. The occurrence took place on 9‑1‑1964, at Deegerwela in the area of Chak No. 85/E.B. On the receipt of Ruqa Exh.P.A., Muhammad Bakhsh A.S.I (P.W.7), reached Civil Hospital, Arifwala, at 7‑30 p.m the same day and recorded statement of Noor Muhammad (deceased; which has been relied upon by the prosecution as F.I.R. as well as a dying declaration. Since by that time none of the injuries was found grievous Muhammad Bakhsh A.S.I. simply entered a Rupt in the Roznamcha. After X‑Ray examination, the doctor through Ruqa Exh.P.D. informed the police about the fracture of skull found under injury No.1 of the deceased. A case under section 325/308, P.P.C. was registered on 21‑1‑1964, through formal F.I.R. Exh.P.E. On 27‑1‑1964, Noor Muhammad died in the hospital and, as such section 302, P.P.C was added in the F. I. R.

3. As alleged by the prosecution, in brief, is dispute over the damage of the crops.

4. It so happened that at the preceding evening of the occurrence, Shera a Muslim Sheikh of Mauj Darya entered in the wheat crops of the deceased with she‑donkey loaded with sugarcane which had been brought from the square of Allahwal, the father of the appellants. The deceased prevented him but he did not stop. The deceased rounded up Shera and wanted to take him alongwith his donkey to his Dhari. Bashir Ahmad P.W.5 also reached there. In the meantime, the appellants and their brother, Walia, acquitted co‑accused, arrived there armed with Dangs and, after altercation, attacked the deceased. Mahma appellant gave a Dang blow on his head, Rahim Bakhsh appellant and Walia, acquitted co‑accused, gave one Dang blow each to Bashir P.W. on the alarm, Allah Bakhsh P.W. also came to the place of occurrence armed with a Dang. Walia, acquitted accused, gave him a Dang blow. This occurrence was allegedly seen by Raheema Nabhu and Muhammad, who allegedly had also rescued the deceased and the P.Ws. from the accused persons. It may be mentioned here that, in his statement, the deceased stated that they had also injured Mahma, Raheem Bakhsh and Rehman appellants.

5. It appears that both sides received injuries. Dr. Muhammad Ashraf P.W.1 examined Noor Muhammad deceased, when he was alive, and found two injuries on his person. Injury No.2 was simple whereas injury No.1 was kept under observation. Bashir Ahmad P.W.5 received as many as three injuries all simple, caused by blunt weapon Allah Bakhsh P.W.4 received one injury, simple in nature, caused by blunt weapon.

On the other hand, Rehman accused received three injuries, all simple, caused with blunt weapon. Mahma accused received four simple injuries caused with blunt weapon and Rahim Bakhsh accused received three injuries all simple, caused with blunt weapon. After X‑Ray, the doctor declared injury No.3 found on the person of Rahim Bakhsh to be grievous.

After the death of Noor Muhammad, post‑mortem examination was also conducted by Dr. Muhammad Ashraf P.W. He found the same injuries as observed by him at the time of issuance of the medico‑legal report. The death in his opinion had occurred due to contusion of brain and sub cortical haemorrhage which was result of injury No.1. In cross examination he stated that injury No.2 could also be the result of injury No.1.

6. Muhammad Bakhsh A.S.I., P.W.7 arrested the appellants on 27‑1‑1964, Mahma appellant got recovered Dang P.1 which was, however, not stained with blood. From other appellants nothing was recovered.

7. In order to prove its case the prosecution relied on the following catagories of evidence.

(i) Dying declaration i.e. statement Exh.P.B. of the deceased recorded by Muhammad Bakhsh A.S.I. in the Civil Hospital Arifwala.

(ii) Ocular, Allah Bakhsh P.W.4, Bashir Ahmad P.W.5 and Nama P.W.4; and

(iii) The recovery of Dang P.1 which however, was not blood‑stained and, as such, o no significance.

8. Walia, the acquitted co‑accused had denied his presence. The appellants admitted their presence at the spot. Mahma appellant took the plea as ‑under:‑

"I was standing near my Dhari. I saw Noor Muhammad deceased and Altaf his brother‑in‑law, who is also an accused in the cross‑case, taking the sugar‑cane of Shera by force and also restraining Shera and taking them to their Dhari. I requested them to leave the poor man. They abused me and Altaf have me a Dang blow. In the meanwhile Bashir and Allah Bakhsh had also reached there with Dangs. I raised an alram. My brothers Rahim and Rahman came out of our Dhari to rescue me, who were also given Dang blows by Bashir and Allah Bakhsh P. Ws. and Noor Muhammad deceased. Rahim Bukhsh broke his ribs and I and Rahman as well as Rahim received injuries. We acted in self‑defence of our person and property and Shera as well. They had imported Nama P.W. a false witness, who was not present at the spot, but was on duty at village Kartaru. He is related to the deceased from third degree. Sarwar, their common grandfather and two sons. Balanda and Samanda. Ahmad father of Nama P.W. is son of Samanda and Ghulam Muhammad father of the deceased is son of Balanda. We were falsely challaned by the police on 27‑1‑1964 after Noor Muhammad had died. Walia accused was with us at the time of occurrence."

Rahim and Rahma adopted the statement made by Mahma appellant. The appellants however, did not lead any evidence in defence.

9. Learned counsel for the appellants has contended that the prosecution has failed to prove its case beyond reasonable doubts, the ocular evidence is not worth reliance and there is reasonable possibility of the defence version being true.

10. As against this, learned counsel for the State has strongly defended the judgment of the trial Court.

11. I have appreciated the evidence in accordance with the principles laid down by the superior Courts for the appreciation of the cases of two versions. In the instant case, the time of occurrence, the place of occurrence, the presence of the injured appellants and the presence of the injured witnesses and the deceased are the admitted facts of the case.

12. The questions for determination are whether the prosecution case particularly its ocular evidence is reliable because if the Court disbelieves the prosecution vase then the Court shall have to believe the statements of the appellant's in their entirety.

The ocular evidence which is the main pillar of the prosecution structure comprises of two sets:

(a) Independent i.e. Nama P.W.6 and

(b) Interested witnesses, namely Allah Bakhsh P.W.4 and Bashir Ahmad P.W.5. Both are the real brothers of the deceased. It is worth mentioning that Nama P.W. 6 has been disbelieved by the trial Court for cogent reasons. As far the interested witnesses. I find that they cannot be safely relied upon. They are related witnesses. They are also accused in the counter case and as such are not expected to state the true facts in the Court and are expected to minimise the part played by them in the occurrence. They have suppressed the injuries of the appellants. They have given a different manner of the occurrence as against their statements under section 161, Cr. P.C. For all these reasons, I am of the opinion that conviction should not be based on the uncorroborated testimony of these interested witnesses. In the instant case, there is no corroboration whatsoever to support the manner of the occurrence as deposed by them at the trial stage.

13. Having disbelieved the prosecution case there is no alternative but to accept the defence version in toto. In the instant case, even the prosecution case if accepted at its face value, I am of the opinion that the appellants have committed no offence because the right of self‑defence of person and property was clearly available to them. The prosecution case is that the deceased and the witnesses had rounded up Shera when he was passing through sugar‑cane field with his donkey loaded with sugar‑cane. An important question of law, arisen in this case "which was not subjected to appraisement in the trial Court" is to be extent of the right of the deceased and the witnesses to apprehend Shera alongwith a donkey loaded with' sugar‑cane. It is remarkable that at that time Shera had not committed any non‑bailable and non‑cognizable offence in the presence of the deceased and the witnesses. It i well recognized that the right of a private person to effect arrest or capture is dealt with by section 59, Cr.P.C. wherein it is laid down that a private person may arrest anyone, who in his view commits a non‑bailable and non‑cognizable offence or any proclaimed offender. In the instant case, Shera had not committed any such offence in the presence of the deceased or the witnesses. Therefore, the act of the deceased and the witnesses of catching hold of Shera alongwith his donkey loaded with sugar‑cane was not legally justified by section 59, Cr.P.C. In my view, the deceased and the witnesses had wrongfully confined Shera and the appellants, as such would have a right of private defence against that act. Section 101, P.P.C. gave the appellants right of voluntarily causing to the deceased any harm other than death in order to get Shera released from them. In the instant case, the deceased party also opened an attack upon the appellants and caused injuries including one grievous injury. This act of the deceased party gave a further right of the self defence of person to the appellants which extended to the causing of the death of the deceased and the witnesses.

For this reason, I am of the considered opinion that the appellants were well within their rights to cause the death of the deceased and injuries to the P.Ws. and, as such, they have committed no offence. Resultantly, the appeal is accepted and the appellants are acquitted. They are on bail. Their bail bonds shall stand discharged.

S.A. Appeal accepted.

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