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Criminal Appeal No. 269 of 1962, decided on 3rd April 1963.

Accused killing deceased in right of private defence --Question, whether right was exceeded, doubtful‑Benefit of doubt given to accused‑Conviction under S. 304, Part I set aside.

M. H. Junejo for Appellant.

Murtaza Hussain for A. A.‑G. for Respondent.

Dates of hearing : 8th and 12th March 1963.

Three persons were killed, one on the side of the appellant and two on the side of the opposite, in a fight which took place on the 2nd October 1961, at 2 p.m. in survey No. 104, deh Jakhro, taluka Kakar, within the police station Khairpur Nathan Shah in District Dadu. The fight took place in the disputed portion of this survey number. Appellant Piyaro along with his two brothers Pario and Suleman and his cousin Waris were tried by the Court of Sessions Judge, Dadu for trespass and murder. The other three persons were acquitted but the appellant was convicted under section 304, Part I, P. P. C. and sentenced to "imprisonment for life", correctly speaking trans portation for life, and to a fine of Rs. 500. He was convicted under section 447, P. P. C. and sentenced to three months rigorous imprisonment. He has appealed.

2. The two persons killed on the side of the opposite party were Ghulam Qadir and Khan Muhammad and on the side of the accused it was Akbar. Ghulam Qadir and Khan Muhammad died as a result of two shots fired by the appellant, whereas Akbar had been killed as a result of hatchet blows. All three of them died on the spot. Three persons of the opposite party, namely, Sono P. W. 4, Uris P. W. 8 and Habibullah P. W. 10 were challaned in the counter‑case and tried by the same Judge. All these were acquitted.

3. The first information report in this case was lodged by P. W. 4 Sono at 4 p.m. at the police station Khairpur Nathan Shah which is at a distance of 3 miles from the place of the incident. It was there stated by Sono that he was sitting in his house at about 2 p.m. when he was informed that Khosos (the appellant party) were reaping paddy in the field of Raees Ghulam Qadir. On the receipt of this information Raees Ghulam Qadir, Sono's brother Khan Muhammad, Uris and he himself went to the cultivation. There they ,found the appellant, his two brothers Pario and Suleman and his cousin Waris and one Akbar. Piyaro had a gun while the rest were armed with hatchets. Ghulam Qadir asked Akbar as to why he was reaping paddy, whereupon the four persons named above began to abuse and Ghulam Qadir abused in return. Then on the instigation of Suleman, Piyaro fired his gun at Raees Ghulam Qadir and this hit him as he was attempting to run away. Thereupon his brother Khan Muhammad went and. gave hatchet blows to Akbar who fell down. Khan Muhammad then challenged the other Khosos and advanced towards them but Piyaro fired again and the shot hit on his face and he fell down. Then he and Uris challenged the Khosos and they all ran away. They found that Ghulam Qadir, and Khan Muhammad and Akbar had all died. On the commotion people from the village came and amongst them Laiq and Jummo and they were told of the incident. Sono went on to add that leaving the dead bodies he went to Khairpur Nathan Shah and informed Raees Habibullah, the brother of Ghulam Qadir, and he directed him to go and lodge the report. It was also stated there was a prolonged dispute between Races Ghulam Qadir and the above‑mentioned Khosos over the said land, who were claiming their share in it and wanted its possession.

4. Piyaro, the present appellant also went to make a report, and it seems ha must have reached the police station very soon after Sono, because his report is shown to have been recorded at 4‑30 p.m. This must have been done immediately after the Sub‑Inspector had finished the recording of the report of Sono. In that report Piyaro stated that he and his two brothers had got 3 jareebs of land (in the disputed survey number) and the remaining 9 jareebs were in possession of Raees Ghulam Qadir. These 3 jareebs had come to these brothers on a partition with their uncle Murad Khan Khoso ; that these brothers had been in possession of this land for about 10 to 12 years and had cultivated these three jareebs in the current year as well ; that on that day he and his nephew Akbar had gone to scatter peas in their land, he was armed with a licensed gun which he had picked up for a shikar as he had a shooting licence. Meanwhile Sono, Khan Muhammad, Laiq, Saleh son of Laiq, Habibullah, Ghulam Qadir, all Chandios, residents of village Ahmad Khan Chandio, entered his (appellant's) land. Ghulam Qadir was armed with his licensed gun and Habibullah and Saleh were armed with hatchets and the rest were armed with lathis ; that Sono and Khan Muhammad started reaping paddy and that he and his nephew Akbar prevented them from doing this and this was followed by exchange of abuses whereupon Habibullah gave hatchet blows to Akbar who fell down and died. He raised cries whereupon Ghulam Qadir fired his gun but missed. Then he returned the fire and struck him in his back and he (Ghulam Qadir) fell down. Thereafter the other accused advanced towards him whereupon out of fear he fired another shot at Khanan (Khan Muhammad) who too fell down. The police after investigation put up two separate challans against the rival parties which resulted in the way stated above.

5. At the trial, on the side of the prosecution, the evidence as to the manner in which the incident happened is contained in the testimony of Sono, P. W. 4, and Uris, P. W. 8, the presence of whom cannot be disputed. Actually they figured as accused in the counter case which had resulted from the first information report made by the present appellant. According to Sono, the whole of survey No. 104, in deh Jakhro belonged to Ghulam Qadir and at the material time he and Uris were his haris in respect of that land and had cultivated paddy on Batai basis. He then stated more or less the same story which he had given in his F. I. R. except for this improvement that it was Akbar Khoso who had first assaulted Khan Muhammad and it was in retaliation that Khan Muhammad gave hatchet blows to Akbar. He was asked in cross‑examination as to how Ghulam Qadir had got the whole of this survey number, but he said that he did not know about it. It was put to him that Muhammad Murad Khoso, the uncle of the appellant, had purchased 1.18 acres of the disputed survey number from Fateh Muhammad and Allahdino Chandio and that this portion was demarcated by a ridge so that these three jareebs were separated in the disputed survey number but he denied this. He admitted that when he had reached the field about one bundle of the paddy had been harvested. He denied that Ghulam Qadir had brought his licensed gun on the other eye‑witness Uris. In his evidence also there was this improvement upon the F. I. R. that it was Akbar who had first assaulted Khan Muhammad whereupon the latter had given him hatchet blows. Laiq was cited to corroborate these witnesses on the ground that when he reached the scene having heard the gunshot he was told by Sono and others as to what had happened. The other witness Habibullah, who was mentioned in the F. I. R. of the appellant and was the co -accused in the counter‑case, said that he had been informed of this incident by Sono at Khairpur and had directed him to make a report. He was closely cross‑examined upon the question of the possession and he made several statements which were directly contradictory with what he had stated in the committal Court. He admitted that about 5 or 8 months before this incident Suleman Khoso had instituted proceedings under section 107, Cr. P. C. against him, Khan Muhammad, Ghulam Qadir and Sono. He further stated that the only dispute between them and the Khosos was about land in question, that is the 3 jareebs. All these three witnesses were found by the learned Sessions Judge to be interested witnesses and their evidence was not relied upon by him in respect of the three other accused who were acquitted by him.

6. The appellant in his statement under section 342 more or less gave the same story which he had given in the first information report in which he had raised the plea of the right of private defence. Four witnesses were examined in defence. The first was Muhammad Bux, son of Muhammad Murad and he stated that Fateh Muhammad and Allahdino Chandio had owned four annas share in the disputed survey number and they had sold it to his father Murad for a consideration of Rs. 400. He produced a registered sale deed, Exh. 56, dated 23rd March 1917. The remaining 12 annas, he stated, belonged to Topandas and his brother Choithram. He further stated that this land which Murad had purchased was about 1.18 acres and this had been partitioned from the rest of the land and was surrounded by a ridge and that this had been in their possession and later on by a private partition between Murad and sons of Rasool Bux, this land had gone to the latter. Piyaro is the son of Rasool Bux. In cross‑examination he stated that mutation had not taken place in respect of this transfer. He also stated that he had given the names of the haris of this portion to the Tapedar for the purpose of entering it in the field book and that the Tapedar had erased this entry under the influence of one Haji Ashraf who was a friend of Habibullah P. W. 10. Topandas, D. W. 2, stated that four annas share in the disputed survey number had belonged to Fateh Muhammad and Allahdino who had sold it to Muhammad Murad Khoso and the remaining 12 annas belonged to him and his brother Choithram ; that there had been a private partition between them and Muhammad Murad. This evidently was in respect of the four annas purchased by the latter. He further stated that they had sold another four annas share to Ghulam Qadir and that by subsequent partition between him and his brother Choithram this survey number had gone to the latter. Third defence witness Abdullah, who was the supervising Tapedar of that area stated that in the field book there was an erasure with regard to the entry Exh. 6 (which related to the survey number in dispute); that in respect of this erasure there was an inquiry pending against the Tapedar Leelaram. He also stated that he had seen the survey number in dispute and in it about 1 acres stand separated from the rest. This was the portion in which the fight took place and about which there was dispute between the parties. The fourth witness Ghulam Muhammad was the Mukhtiarkar and he also stated that there was an erasure in the field book in respect of the entry Exh. 6 and that Leelaram Tapedar had been charge‑sheeted on that account. This inquiry had been started on a complaint by one Muhammad Bux Khoso after the incident.

7. P. W. 1 was Tapedar Ghulam Husain Shah who had drawn the sketch of the scene of occurrence and it was through him that the field book was maintained by Leelaram was produced. He stated that according to that field book there was paddy cultivation in survey No. 104 during the last crop and the harts shown therein were Uris and Sono. He also said that there was some erasure below the entry in question. This Tapedar had succeeded Leelaram after the incident. In cross‑examination he stated that according to the village Form No. 7, four annas in survey No. 104 belonged to Murad Khan and four annas to Ghulam Qadir and the rest to Hindus, namely, Topandas and Choithram. He admitted that there was a bund dividing the 3 jareebs from the rest of the survey numbers. The total area of the survey number was 5.38 acres.

8. The question of possession was of considerable im portance in this case. The learned Sessions Judge took into consideration the fact that though the sale deed in respect of the four annas had been executed in favour of Murad, the mutation entry had not been made. He, however, believed, the evidence of Sono that he and Uris were the haris of the entire survey number at the time of the dispute. He also noted that names of the haris of the previous years as well as of Sono and Uris were noted in the field book and the erasure was of something which was written immediately below these entries. He, however, pointed out that the entries of the previous years were counter‑signed by the supervising Tapedar. From these facts the learned Sessions Judge reached the finding that the possession of the field was that of Sono and Uris who were the haris of Ghulam Qadir.

9. The evidence of possession in this case was by no means satisfactory. The entry in the field book cannot, in any case, be conclusive of the fact of possession. But in this case the Tapedar, namely Leelaram, who had made the entry, was not even examined in the case. This may be because he was being accused of having erased certain entries and of which Muhammad Khoso had made a complaint to the Revenue Authorities. In the absence of the evidence of Leelaram the mere production of these entries cannot be of any assistance, particularly when it is taken into consideration that the survey number of the whole field is one and admittedly in th of it, Ghulam Qadir was in possession. There was, however, one very important fact which was not taken into consideration by the learned Sessions Judge and that is the fact of the th which had been sold by the registered sale deed to Murad, and it was within this land that the fight took place. The prosecution witnesses have given no explanation of this. In fact when they were asked about it they denied the existence of the ridge. This denial was obviously untrue because the existence of ridge around this disputed portion was admitted by the Tapedar P. W. 1 who had made the sketch of the scene of occurrence and also the supervising Tapedar. If the whole of the survey number was in possession of Ghulam Qadir there seems to be no justification for the existence of this dividing bund. If this bund was set up by Ghulam Qadir himself the prosecution witnesses should have said so. Instead they denied its very existence. The defence story that the disputed portion was in their possession and that it was separated from the rest of the land of that survey number gets considerable support from the existence of the physical fact of the dividing wall. From the village Form No. 7 which was produced by the Tapedar P. W. 1 it appeared that Ghulam Qadir had merely purchased four annas of this field from the Hindu owners and that the remaining eight annas was still recorded in the name of the Hindus while four annas was recorded in the name of Murad. Ghulam Qadir having got hold of 12 annas of this survey number of which he had purchased merely four annas might well have been anxious to get hold of the remaining four annas which belonged to the appellant and his brothers. There is on record a copy of the complaint under section 107, Cr. P. C. Exh. 48, filed by Suleman, the brother of the appellant, in the Court of the Sub‑Judge and First Class Magistrate Mehar, several months before the incident. It is stated in the complaint that Ghulam Qadir wanted to take forcible possession of this land on which the complainant had spent considerable amount of the development and improvement as a result of which it was more than the land of the opponent. These 107 proceedings were pending at the time of the incident.

10. Upon the material on record, therefore, it cannot be said that when the appellant and Akbar went to the portion of the land where the fight took place they were committing trespass. It is the prosecution case that Akbar was already cutting the paddy when the complainant party of this case arrived on the scene. This is supported by the fact that two bundles of harvested paddy was found on the scene. Strangely enough the position taken by the accused in this respect was vacillating but we are satisfied that Akbar and Piyaro were already in the field and Akbar was cutting the paddy when Ghulam Qadir, Khan Muhammad, Sono and Uris arrived on the scene. This was the version given by Sono in his first information report and this was also his evidence in Court as well as that of Uris. With regard to the actual assault we are of the opinion that it was Akbar who was cutting paddy was the first to be attacked by the complainant party. This also appears to be the finding of the Sessions Judge who has applied section 304, Part 1, P. P. C. upon the ground that Piyaro had exceeded his right of private defence. Akbar would be attacked first because it was he who was cutting the paddy and if Piyaro had started shooting before the assault on Akbar it would below be he who would attacked by the complain ant party and not Akbar. Therefore, if Akbar was fatally attacked by hatchets or hatchets by the complainant party and Piyaro was there, he would have the right of private defence. When he fired the first shot it hit Khan Muhammad on his face. That would show that the latter was facing him and may even being advancing towards Piyaro as is stated by the latter. The next question is whether Pryaro exceeded his right of private defence when he fired the second shot which hit Ghulam Qadir. It is difficult, in a situation like this when one person of the side Piyaro was already killed by hatchet, to weigh the extent of his danger in a very fine scale. The learned Sessions Judge has said that the second shot which bit Ghulam Qadir must have been fired from some distance. This is not so, because the post‑mortem report shows that injuries were charred as a result of the impact of the gun powder. That would show that Ghulam Qadir was also very close, say within 6 to 8 feet. The location of the injury on Ghulam Qadir would show that he was shot just as he was turning. This is also the version in the F. I. R. lodged by Sono. We are, therefore, of the opinion that it cannot be said that Piyaro exceeded his right of private defence. The position, no doubt, is a little confused but if a doubt arises the benefit of it must go to the accused person. From this it must follow that's the appellant had fired the shots in the exercise of his right of private defence and this right extended to the causing of death.

11. For the reasons given above we allow the appeal and set aside the conviction and sentence passed on the appellant both E under section 304, Part I and under section 447, P. P. C. He shall be set at liberty unless required in connection with any other case.

K. B. A./A. H.

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