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Criminal Appeal No. 2 of 1986, heard on 1st December, 1986.

‑‑‑Ss. 307, 96 & 97‑‑Evidence, appreciation of‑‑Defence plea that when complainant party was lifting away their tree, appellants objected to it, whereupon complainant party attacked them and in retaliation appellants exercising their right of private defence injured complainant party, appearing reasonably to be probable‑‑Appellants having suffered 12 injuries including one grievous hurt as against similar number of injuries suffered by complainant party‑‑Prosecution witnesses dishonestly suppressing this fact in their evidence‑‑Defence version not only appearing reasonably probable but also drawing great deal of support from prosecution evidence itself‑‑Held, in view of equal number of injuries suffered by both parties, appellants did not exceed their right of private defence and as such committed no offence‑‑Conviction and sentence set aside, in circumstances.

Ch. Muhammad Saleem Akhter and Nisar A. Saeed for Appellants.

Khan Ataullah Khan for the State.

Date of hearing: 1st December, 1986.

Three brothers, namely, Sher Muhammad, Muhammad Zaman and Saeed were tried for having committed the murder of Muhammad Hanif and making murderous assault on Noor Ahmad, Amir and Nasir Ali P.Ws. in furtherance of their common intention. Learned trial Court acquitted them of the charge of murder but convicted them under section 307/34, P.P.C. and sentenced them to 7 years' rigorous imprisonment and a fine of Rs.5,000 each or in default to undergo 1 year's rigorous imprisonment each. It was further directed that half of the fine, if realized, shall be paid as compensation to the legal heirs of Hanif (since dead) and the remaining half to the injured P.Ws. in equal shares, vide judgment, dated 30‑11‑1985. Feeling aggrieved thereby, the convicts have filed the instant appeal challenging their conviction and sentence.

2. The occurrence took place on 27‑10‑1983 at 10‑30 a.m. in the vicinity of Chak Faridpur Dogran, District Sahiwal and report was made by Manzoor Ahmad (P.W.6) to A.S.I. Qasim Ali Shah (P.W.11) at Nagina Chowk, Pakpattan, about 6 kilometres away from the spot, the same day, at 3‑30 p.m., vide complaint Exh.P.A. on the basis of which formal F.I.R. Exh.P.A./1 was drawn up at Police Station Pakpattan by H.C. Muhammad Mansha (P.W.1). Initially, a case under section 324/325 read with 34, P.P.C. was registered and after Muhammad Hanif died on 5‑11‑1983, the offence was changed to section 302/307, P.P.C.

3. On the day of occurrence (27‑10‑1983) at 10‑30 a.m., Manzoor Ahmad, complainant (P.W. 6) and his brothers Nasir Ali (P.W.9) and Noor Ahmad P.W. (not produced) were constructing a but for their cattle in Killa No. 2/2, Square No. 24, village Faridpur Dogran, when Sher Muhammad armed with Chhavi, Muhammad Saeed and Muhammad Zaman armed with Dangs came there and raising Lalkara to the effect that they would teach them a lesson for having removed their 'papular tree', attacked them. Muhammad Zaman and Sher Muhammad caused injuries with their respective weapons to Noor Ahmad while Muhammad Saeed, appellant, injured Nasir Ali P.W. Hearing the commotion Muhammad Hanif (deceased) their tenant and his brother Muhammad Amir (P.W.9) reached the spot and intervened. In the process Muhammad Hanif (deceased) also got injured. The motive for the attack, as stated earlier, was that a 'papular tree' claimed by the appellants to be theirs had been removed by the complainant party.

4. Dr. Ghulam Ahmad (P.W.4) noted four injuries on the person of Noor Ahmad P.W. (not produced) of which one was caused with sharp edged weapon and the rest with blunt weapon. His head injury caused with blunt weapon was found to be grievous and the rest as simple in nature. Three injuries caused with blunt weapon were found on the person of Muhammad Amir P.W. including a grievous hurt seated on his left shoulder. Nasir Ali P.W. had three injuries caused with blunt weapon of which two were simple in nature, one found on terminal right middle finger was declared as grievous. Muhammad Hanif (deceased) suffered two injuries, namely, an incised wound 5 c.m. x 1 c.m. on the palmer surface of the root of thumb of left hand and the other on the terminal phalynx of middle finger on the same hand and its nail from the root alongwith portion of finger was missing, therefore, it was also declared as grievous.

5. On the same day, the same doctor examined accused party as well. On the person of Sher Muhammad accused there were four contused wounds and one incised wound. Of them four injuries were simple and one involving fracture of metacorpo‑phalengeal joint of left hand was declared grievous. Muhammad Zaman accused suffered five injuries caused with blunt weapon, all simple in nature. Muhammad Saeed accused had two contused wounds found as simple in nature caused with blunt weapon. They were admitted in the hospital for treatment.

6. Muhammad Hanif (deceased) was admitted in the hospital on 3‑ 11‑ 1983 in a serious condition under severe attack of tetanus, his jaw was locked and he had tetanic convulsions. He died at 4‑ 40 a.m., on 5‑11- 1983 of tetanus.

7. A.S.I. Qasim Ali Shah (P.W.11) investigated the case. On 27‑10‑1983, he collected blood‑stained earth from four different places from the 'Ihata' of the complainant. Appellants were arrested on 4‑11‑1983 from the hospital where they were admitted for treatment.

8. Sher Muhammad, Muhammad Zaman and Muhammad Saeed, appellants, on 10‑11‑1983, while under arrest, got recovered blood stained Chhavi P.12, Sota P.16 and Sota P.17, respectively, from their residential Kothas which were seized under memos. Exhs. P.Q., P.R. and P.S. attested by Muhammad Sharif (P.W.10).

9. At the trial, prosecution examined all‑told 11 witnesses in support of its case. Manzur Ahmad (P.W.6), first informant, Nasir Ali (P.W.7) and Muhammad Amir (P.W.9) narrated about the occurrence. Muhammad Sharif (P.W.10) deposed about recovery of the weapons of offence. Dr. Ghulam Ahmad (P.W.4) proved the injuries found on the person of P.Ws., the accused persons and also Muhammad Hanif (since dead).

10. In their statements under section 342, Cr.P.C. the appellants pleaded self‑defence. Their version as given by Sher Muhammad, appellant, in reply to question No. 3, reads as follows:‑---

"All the P.Ws. are interested witnesses. They were inimical towards me and my co‑accused due to previous litigation and enmity. The occurrence did not take place in the Ihata of tube‑well of the complainant. In fact Nasir Ali, Noor Ahmad and Muhammad Amir P.Ws. were lifting our cut papular tree from the Katcha path, which was our property and was situated in our Killa No. 3 of Square No. 24. I forbade them from lifting and carrying our papular trees by uh, committing the theft but they attacked me and caused injuries to me and on my alarm, Saeed and Zaman co‑accused were attracted to the place and when they intervened to rescue me, Nasir Ali, Noor Ahmad and Amir P.Ws. attacked them with hatchet and Dangs and also caused injuries to them. They inflicted injuries to Nasir Ali, Noor Ahmad and Amir P.Ws. in exercise of the right of self defence of our person and property. The occurrence had in fact taken place on the Katcha path, which was in our Killa No. 3 of Square No.24. The complainant shifted the venue of occurrence to suit their fabricated version. Muhammad Hanif deceased was not present at the spot and he had not received any injury during this occurrence which took place in our land Rather his injuries were fabricated later on, which became septic and he developed tetanus due to his negligence because he was admitted to the hospital and he died due to tetanus nine days thereafter:'

The remaining appellants also adopted the same statement and declined to produce defence evidence. They however, appeared in compliance with subsection (2) of section 340, Cr.P.C., and gave evidence on oath in disproof of allegations made against them.

11. Learned trial Court on consideration of material on record found that since the death of Muhammad Hanif was not direct result of injuries (suffered by him) and attributed to the appellants, therefore, he acquitted them from the charge under section 302, P.P.C. but held them guilty for having launched murderous attack on the complainant party with the intention and knowledge and in such circumstances that if any one of the injured witnesses, namely, Noor Ahmad, Amir, Nazir Ali and Hanif had died they would have been guilty of committing the offence of murder and thus convicted and sentenced them under section 307/34, P.P.C. as indicated above, hence this appeal.

12. As would be seen from the above narration, the appellants have not disputed the occurrence but raised plea of self‑defence. The parties are at variance only about the place of occurrence and the time of cutting and removing the papular tree. According to prosecution the accused persons came to the Ihata of the complainant party and attacked them saying that they would teach them lesson for having (already) removed their papular tree whereas the appellants' version is that they felled papular tree standing on the Kactha path in Killa No. 3 of Square No. 24 belonging to them but Nasir Ali P.W., his brother Noor Ahmad and their tenant Amir P.Ws. tried to lift it away at the time of occurrence to which Sher Muhammad, appellant, objected, whereupon the complainant party attacked him and on his alarm Muhammad Saeed and Muhammad Zaman. appellants reached the spot to rescue him but they too were attacked and injured with Dangs and hatchet by them and then they (appellants) exercising their right of private defence of their person and property inflicted injuries to Nasir Ali, Noor Ahmad and Amir P.Ws. They. however, denied presence of Muhammad Hanif on the spot and asserted that his injuries were fabricated by the complainant party which became septic and resulted in his death. It is, therefore, to be determined as to which of the two stories is true In this connection evidence of Muhammad Hafiz Patwari (P.W.5) and Nasir Ali (P.W.7) would be most relevant. The Patwari (P.W.5) has stated that tube‑well of the complainant party is situated in Killa No. 2/2 of Square No. 24 and Killa No. 3 adjoins it on its East. Killa No. 3 belongs to the father of appellants and in this Killa a Kactha path runs north‑south. He further stated that on 23‑11‑1982 he had demarcated Squares Nos. 24 and 17 in the presence of Kanungo on the application of Farid Khan (father of the complainant) and noted a Kikar trea, four Shahtoot trees, six papular trees, four Shisham trees and two Beri trees standing on the Katcha path, vide his Roznamcha Report No. 183 of that date. It is thus, clear that Katcha path passes through the land of the appellants and the 'papular trees' standing thereon also belong to them. To resolve the question whether the disputed tree had been removed by the complainant party before the occurrence or that it was being removed from the Katcha path at the time of occurrence it is worthwhile to refer to the testimony of Nasir Ali (P.W.7) who is an injured witness and is brother of the complainant. He stated that prior to the occurrence, Patwlri and Kanungo had carried out demarcation in Square No. 24 in the presence of the parties. He admitted that they had cut 2/3 papular trees from the Katcha path and that the appellants had objected to the cutting of those trees saying that they belonged to them and forbade them from removing the same. He further stated that the cut trees had not yet been removed by them rather they were still lying there when occurrence took place. If trees were still lying on the Katcha path (belonging to the appellants) then there was absolutely no occasion for the appellants to go to the Ihata of the complainant party and attack them. The prosecution story that the appellants came to the complainant's Ihata for teaching them a lesson for having removed their 'papular tree', thus, becomes doubtful and the defence plea that when the complainant party was lifting their tree lying on the Katcha path, the appellants objected to it, whereupon the complainant party attacked them and at this juncture they (appellants) retaliated and exercising their right of private defence injured the complainant party appears to be reasonably probable. The appellants had suffered 12 injuries including one grievous hurt as against similar number of injuries suffered by the complainant party. The complainant party has denied to have caused any injury to the appellants, but medical evidence shows that injuries on the appellants correspond with duration of the injuries suffered by the complainant party. The prosecution witnesses, therefore, having dishonestly suppressed this fact rendered their testimony further unworthy of credit. The defence version, in the circumstances not only appears to be reasonably probable but it also draws great deal of support from prosecution evidence as discussed above and I have, therefore, no hesitation to accept it. In view of equal number of injuries suffered by both the parties, the appellants do not appear to have exceeded their right of private defence.

13. The defence version that Muhammad Hanif (deceased) was not present on the spot and that his injuries were fabricated subsequently also seems probable. According to Dr. Ghulam Ahmad (P.W.4) Muhammad Hanif (since dead) had two injuries on his person, i.e. one on the palmer side of thumb and the other on the tip of middle finger of the left hand with its upper portion missing. The index finger which stands in between the thumb and the middle finger, however, remained unhurt. When thumb and middle finger of the same hand are injured by enemy's hand may be with one blow or two blows then in all probability the index finger shall receive injury. Therefore, absence of any injury on index finger in this case suggests that Hanif's injuries were self‑ suffered. As for the circumstance of collection of blood from the Ihata of the complainant party, I may say that, it is explainable, firstly, because the Ihata is only a few Karams away from the Katcha path (where occurrence took place according to the defence) and secondly, the injured witnesses might have either gone or taken to their Ihata after the occurrence while they were still bleeding from their wounds, therefore, presence of blood in the Ihata would not necessarily mean that the occurrence had taken place in that Ihata.

14. For what has gone above, it appears to me that the complainant party, when forbidden by Sher Muhammad etc. (appellants) from taking away their papular tree had attacked them who in exercise of their right of private defence of person and property had injured them without exceeding their right and thus they committed no offence. In the result, this appeal is accepted, the conviction and sentence of the appellants is set aside and they are acquitted. They shall be released forthwith if not wanted in any other case.

S.G.D./S‑23/L Appeal allowed.

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