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Criminal Appeal No.282 of 1984, decided on 20th December, 1986.

‑‑‑Ss. 304, Part I & 308/34‑‑Right of self‑defence, whether exceeded‑ Accused not denying occurrence‑‑Three of accused receiving injuries during occurrence, two of them having received grievous injuries on head‑‑Prosecution not explaining injuries on persons of accused and suppressing truth from Court‑‑Dispute over possession of land Disputed land in possession of accused party‑‑Civil suit for permanent injunction filed by accused much before occurrence‑‑Civil Court ordering maintenance of status quo after hearing parties‑‑Complainant party legally restrained from interfering with possession of accused‑‑Occurrence in disputed land‑‑Accused admittedly ploughing said land before occurrence‑‑Complainant party going to disputed land against orders of civil Court, held, were clearly trespassers and accused under reasonable apprehension of their death by receiving injuries, acted in exercise of right to defend their person and property and did not exceed their right‑‑Accused acquitted in circumstances.‑‑[Private defence, right of].

Shaukat Ali Saqib for Appellant.

Muhammad Sharif for the State.

Muhammad Akbar Tarar for the Complainant.

Date of hearing: 20th December, 1986.

This is an appeal by Muhammad Sadiq 45, Muhammad Ashraf 22, and Murid Abbas 27 against their conviction under section 304 (I) and section 308, P. P. C . by learned Additional Sessions Judge, Gujranwala, who vide judgment dated 2‑5‑1984 sentenced them to suffer imprisonment for life and fine of Rs.10,000 or in default two years R.I. each under section 304 (1), P.P.C. and to 5 years' R.I. under section 308/34, P. P. C. It was ordered that half of the fine if recovered, will be paid as compensation to heirs of the deceased. The sentences of imprisonment were ordered to run concurrently.

Qasim Ali 50, Tufail 30, Muhammad Akbar 21, Muhammad Sharif 60, Liaqat 30 and Ghulam Rasul 25, co‑accused of the appellants, were however, acquitted by the same judgment.

Bashir Ahmad complainant filed Criminal Revision No.737 of 1984 against the appellants and the acquitted accused praying that the impugned judgment be set aside and ail the accused be punished in accordance with law. This revision was not admitted. It was ordered to be heard alongwith the connected appeal. This judgment will dispose of both these matters together.

2. The prosecution case in brief is that Nazar Muhammad, a brother of Bashir Ahmad complainant, about six months before this occurrence purchased three Acres of land from Muhammad Tufail son of Ameer etc., through their attorney Muhammad Hussain for Rs.60,000. The land was in possession of Muhammad Tufail, Qasim and Sadiq sons of Khushi Muhammad accused as tenants. Nazar Muhammad and Bashir Ahmad asked Sadiq etc., accused to vacate possession of the said land but they refused.

On 23‑11‑1981 at about 11 a. m. Sadiq and Tufail accused sons of Khushi Muhammad were ploughing a part of the said land. Muhammad Ashraf armed with Tringle, Murid, Akram and Sharif armed with sticks, Ghulam Rasul and Qasim armed with hatchets and Liaqat accused armed with pistol were present nearby in the land in dispute. Nazar Muhammad, Ghulam Qadir and Bashir Ahmad complainant went to Qasim etc. accused and asked them not to plough the land and settle the matter. At this Qasim raised Lalkara and exhorted his companions to get ready. Tufail and Sadiq stopped ploughing and picked up the hatchets lying nearby. Muhammad Tufail gave hatchet blow on the head of Bashir Ahmed. Sadiq accused gave hatchet blow on the left biscept of Bashir Ahmad P.W. who was also given injuries by Akram and Murid accused. Thereafter, Qasim, Ghulam Rasul, Tufail and Murid accused injured Nazar Muhammad P.W. with their respective weapons. Ghulam Qadir was injured by Qasim, Ghulam Rasul, Sadiq, Tufail, Ashraf, Akram and Sharif accused. The alarm attracted Aslam, Ashraf sons of Nazar Muhammad, Akram and Mst. Sughran P. Ws. Qasim accused injured Muhammad Akram P.W. with hatchet. Akram and Murid accused injured Aslam P.W. Akram accused also injured Muhammad Ashraf and Mst. Sughran P.Ws. Liaqat accused remained present exhorting his co‑accused to kill the complainant party. The occurrence was witnessed by Muhammad Hussain, Subah Sadiq and Riasat Ali P.Ws. The accused left the spot after the occurrence with their respective weapons. Ghulam Qadir and Muhammad Aslam were taken to Civil Hospital, Alipur Chatha in injured condition by Din Muhammad. The remaining injured were taken to Wazirabad Hospital in a wagon. They met Karamat Ullah S.I. P.W.12 at Chhanawan at 1‑45 p. m. who recorded the statement Exh. P. B. at the instance of Bashir Ahmad P.W.6 on the basis of which formal F.I.R. Exh.P.B./1 was recorded by H.C. Muhammad Javed P.W.3 at the Police Station on same day at 2‑30 p.m. The police after registration of the case undertook investigation.

On 23‑11‑1981 during inspection of spot S.I. Karamat Ullah P.W.12 collected blood‑stained earth vide memo. Exh.P.C. from the place where Ghulam Qadir deceased received injuries in the field of Qasim etc. sons of Khushi Muhammad. He also collected blood‑stained earth from the same field from a place where Nazar Muhammad P.W. had fallen, vide memo. Exh.P.D.

On 7‑12‑1981 Qasim, Muhammad Tufail, Ghulam Rasul and Muhammad Akram acquitted accused while in police custody respectively got recovered hatchet P.1 vide memo. Exh.P.E., hatchet P.2 vide memo. Exh.P.F. hatchet P.3 vide memo. Exh.P.G. and Dang P.4 vide memo. Exh.P.H.

On 17‑12‑1981 Muhammad Sadiq appellant while in police custody led to the recovery of blood‑stained hatchet P.5 from his house which was taken in possession by S.I. Karamat Ullah P.W.12 in presence of Din Muhammad P.W.5 and Muhammad Hussain P.W., not examined, vide memo. Exh.P.J.

On the same day Muhammad Ashraf appellant led to the recovery of blood‑stained tringle (wooden fork) Exh.P.6 vide memo. Exh.P.K in presence of same witnesses.

On the same day Murid Abbas accused led to the recovery of blood‑stained Sota P.7 vide memo. Exh.P.L. in presence of same witness.

The crime weapons were found stained with human blood vide the Chemical Examiner report Exh. P. L. L and that of Serologist Exh.P.N.N.

3. Ghulam Qadir aged about 32 years died on the day of occurrence. His dead body was sent for post‑mortem examination which was conducted by P. W.9 Dr. Imtiaz Ali Cheema on 24‑11‑1981 at 1 p. m. On external examination the medical officer found "an oblique incised wound 6 x 1 c. m. x bone deep on the right side of scalp 4 c. m. above the right ear". He also found "an incised wound 5 x 5 c.m. x bone deep on the back of scalp occipt region." There was an abrasion on the back of right fore‑arm. On dissection the scalp was found injured under injuries 1 and 2. The skull under these injuries had been cut through and through having massive clotted blood in the membrane and brain matter which were also cut. Injuries 1 and 9 were grievous and had been caused by sharp‑edged weapon. The death was due to shock and haemorrhage as a result of injuries 1 and 2 which were sufficient in the ordinary course of nature to cause death. The time between injuries and death was about 3 hours and post‑mortem was conducted after about 12 hours of the death.

P. W.9 Dr. Imtiaz Ali Cheema, on 23‑11‑1981 at 4‑30 p. m. medically examined Nazar Muhammad P.W. aged about 60 years and found 15 injuries Nos.8, 9, 10 and 12 on head had been caused by sharp‑edged weapon while remaining injuries were by blunt weapon. These were of about 6 hours duration. Injury No.7 was grievous.

On the same time the same medical officer examined Bashir Ahmad complainant aged 45 years and noticed 9 injuries on his person. Injury No.1 had been caused by sharp‑edged weapon. The remaining injuries were by blunt weapon. All injuries were of six hours duration. Injuries 2 and 5 on scalp and front of right fore‑arm respectively were of grievous nature.

On the same day at about the same time the same medical officer examined Muhammad Ashraf P.W. and found three simple blunt weapon injuries of six hours duration on his person. One injury was on top of head, one on right shoulder and one on elbow joint.

On the same day at about the same time the same medical officer examined Muhammad Akram P.W. and noted an incised wound on the back of head and swelling on right chest, upper part. These injuries were of simple nature and were of about six hours duration.

On the same day at about the same time the same medical officer examined Mst. Sugran and found 7 injures on her person of about six hours duration. Injury No.1 was by sharp‑edged weapon. All were of simple nature.

On 24‑11‑1981 the same medical officer examined Muhammad Aslam P.W. and noted two swellings on left elbow joint and right fore‑arm and an abrasion on the right chest.

The accused were challaned after completion of the investigation.

4. In support of its case the prosecution examined 12 witnesses in all. P.W.6 Bashir Ahmad, P.W.7 Nazar Muhammad and P.W.8 Muhammad Akarm were examined as eye‑witnesses. The remaining eye‑witnesses though named in F.I. R. and injured were given up as unnecessary. The incriminating recoveries from the accused were witnessed by P.W.5 Din Muhammad. The medical evidence was furnished by Dr. Imtiaz Ali Cheema P.W.9 as given in detail above. The case was investigated by S.I. Karamat Ullah P.W.12 and partly by Abdul Majeed S.I. P.W.10. The evidence of the rest of the witnesses was of formal nature.

The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. It was stated by Sadiq appellant that he and his sons Muhammad Ashraf and Murid Abbas were ploughing the land near their Dera when Bashir complainant, Ghulam Qadir deceased, Nazar Muhammad P.W. etc. armed with Dangs came there and assaulted them to get possession of the land. They all injured them. He stated that he and his two co‑‑accused injured the complainant party in self‑defence. Besides other documents he produced copy of plaint Exh. D.E. in civil suit Muhammad Qasim, Muhammad Sadiq and Muhammad Tufail v. Nazar Muhammad, Muhammad Bashir, Ghulam Qadir and others dated 20‑7‑1981. Copy of the application for temporary injunction Exh.D.F. and the stay order dated 21‑9‑1981 issued by the learned Civil Judge Exh. D.F. /1 and copy of the order dated 23‑9‑1981 confirming the stay Exh.D.F/2. He also placed on record copy of Wakalatnama Exh.D.G., dated 29‑7‑1981 given by Ghulam Qadir deceased, Nazar Muhammad, Bashir complainant and others to their counsel Muhammad Arif Chatha to defend the said civil suit and copy of the report of local commission Exh. D.J. to support his assertion that he was in possession of the disputed land alongwith his brothers and a copy of Register Haqdaran for the year 1978‑1979 as Exh. D.C. He examined Dr. Muhammad Ramzan D.W.1 in defence who stated that he had on 23‑11‑1981 at 9‑45 p. m. medically examined Muhammad Ashraf accused and found 7 blunt weapon injuries on his person. Injuries 1 to 4 were kept under observation out of which, on 2‑12‑1981, injury No.4 on left side of the head was declared grievous. All injuries were of 12 to 18 hours duration. On the same day he examined Muhammad Sadiq accused and found 7 blunt weapon injuries on his person which were of about 12 to 18 hours duration. All injuries were of simple nature. He also examined Murid Abbas accused on the same day and noted 8 blunt weapon injuries of 12 to 18 hours duration on his person. Injury No.7 on the right upper arm was found grievous in nature. Injuries 2, 3, 5, 6 and 8 were kept under observation. All other injuries were of simple nature. Out of the injuries kept under observation injury No.6 on the back of right upper arm was also found grievous. The other accused adopted the statement of Muhammad Sadiq accused. No other witness in defence was examined.

The learned trial Judge came to the conclusion that the complainant party was aggressor and trespasser and that the accused had the right of self‑defence and defence of property. In his opinion, however, the three appellants exceeded the said right by causing the death of one of the members of the complainant party. He did not accept the presence of the acquitted accused at the spot at the time of occurrence. Resultantly he convicted the appellants as stated above.

5. I have carefully gone through the evidence on record and have also heard the learned counsel for the parties at some length.

The occurrence in this case is not denied by the accused. The three appellants received injuries at the time of occurrence. The injuries on the person of the accused did not find any mention in the F.I.R. It was argued by the learned counsel for the complainant that the three accused got themselves medically examined from Dr. Muhammad Ramzan D.W.1 who at that time was posted as Medical Officer Rural Health Centre Gakhar which was not within the limits of the police station where the occurrence took place and as such no reliance can be placed on the evidence of Dr. Muhammad Ramzan. I do not find any substance in this argument. The complainant party had gone to Civil Hospital Alipur Chatha and Wazirabad and as such the accused might have thought it proper not to approach those hospitals for examination and treatment. There was nothing unusual if the three accused on the day of occurrence got themselves medically examined by Dr. Muhammad Ramzan at Gakhar. According to the medical examination of the accused Muhammad Ashraf received one grievous injury on his head while Murid Abbas received two grievous injuries on his person. Muhammad Ashraf had 7 injuries, Muhammad Sadiq had 7 injuries and Murid Abbas received 8 injuries on his person. These injuries have not been explained by the prosecution witnesses which means that they suppressed truth from the Court. A perusal of the F.I.R. itself would show that the three acres of land purchased by Nazar Muhammad P.W. about six months before this occurrence was in possession of Sadiq appellant and his brothers as tenants. They refused to vacate the land on the asking of the complainant party. On 23‑11‑1981 at about 11 a.m. Sadiq appellant and his brother Tufail accused were ploughing a part of the said land. Ghulam Qadir deceased, Nazar Muhammad P. W. and Bashir Ahmad complainant went there to ask the accused not to plough the land. They had no right to ask the accused to hand over possession of the land to them without due course of law. This occurrence took place on 23‑11‑1981. Copy of the plaint Exh.D.E. would show that the civil suit for permanent injunction was filed on 20‑7‑1981 by Muhammad Sadiq appellant and his two brothers against Ghulam Qadir deceased etc. The learned Civil Judge ordered maintenance of status quo after hearing both the parties on 23‑9‑1981 vide order copy Exh.D.F/2. The complainant party, therefore, had no right and was legally restrained to interfere in the possession of Muhammad Sadiq accused and his brothers as tenants. Ghulam Qadir deceased and his brothers executed Wakalatnama Exh.D.G. to defend the civil suit on 29‑7‑1981. They could, therefore, not express ignorance about the pendency of the civil suit or issuance of the order of status quo by the civil Court on 23‑9‑1981. They, therefore, clearly went to the land in dispute which at that time was being ploughed by Muhammad Sadiq accused and his brothers against the order of the Civil Judge and were, therefore, trespassers in the disputed land. The appellants were present in the land as tenants. They were admittedly, ploughing the said land before the occurrence. Two of the appellants received grievous injuries on their person and were, therefore, justified in inflicting injuries to Ghulam Qadir deceased and the witness not only to defend their property but also to defend their person. They had reasonable apprehension of, their own death at the hands of the complainant party. The learned trial Judge rightly came to the conclusion that the accused acted in exercise of the right of their defence of property and person but I am, not prepared to agree with the finding that the three appellants exceeded the said right. In view of the circumstances, firstly that the injuries' on the person of the appellants were not explained in the F.I.R. and that some of the injuries on the person of at least two of the appellants were of grievous nature. Secondly the occurrence took place in the field admittedly in 'possession of the appellant as tenants; thirdly, a civil Court of competent jurisdiction had ordered maintenance of status quo regarding possession of the disputed land between the parties much before the present occurrence; fourthly, the said order of status quo was passed by the civil Court after hearing of the present appellants and the complainant party of this case and that it was the complainant' party who went all the way from their village to land in dispute to, restrain the appellants from ploughing the field in dispute without due course of law, the three appellants, had full right to protect their person and property. They did not exceed the said right.

6. In view of the above circumstances this appeal is accepted. The conviction and sentence of Muhammad Sadiq, Muhammad Ashraf and Murid Abbas appellants is set aside. They are acquitted of the charges and shall be released from prison forthwith, if not required in any other case.

7. In view of the above decision in the appeal the connected criminal revision is dismissed in limine.

S.A./M‑49/L Appeal accepted.

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