JAVID IQBAL, J.----Rasab, aged 35, Shera, aged 30, and Ghulam Rasool aged 17, all sons of Painda Khan, Muhammad Akram, aged 35/40, and Muhammad Aslam, aged 30, sons of Fateh Muhammad, Allah Bakhsh, aged 40, and Sultan, aged 35, suns of Fateh Ali, Muhammad Afzal son of Gul Nawaz, aged 35, and Muhammad Khan son of Muhammad Zaman, aged 22, have been convicted and sentenced vide judgment dated the 9th of April, 1977, of the Sessions Judge, Jhelum as follows : They were convicted under section 302,/149, P. P. C. For the murders of Habib, aged 40/45, Abdullah, aged 40/42 and Bahawal Haq, aged 26 (Abdullah and Bahawal Haq were brothers whereas Habib was their first cousin an-- brother-in-law) ,and with the exception of Ghulam Rasool convict all of them were sentenced to death on each count plus fine of Rs. 1.000 each on each count or in default to undergo two years' R. I. Ghulam Rasool convict was sentenced to imprisonment for life on each count plus fine of Rs. 1,000 on each count or in default to undergo two years' R. I on each count. If the fine was realised from all the convicts, half of it was ordered to be paid to the legal heirs of the three deceased an equal shares. They were also convicted under section 148, p. P: C. And sentenced to two years' R. I. Each. Their co-accused, namely, Muhammad Bashir, Ghulam Rasool Gondal, Muhammad Inayat, Painda Khan, Nazir, Mirza Muhammad Zaman and Manzoor were acquitted. The appeal of the convicts as well as Reference for the confirmation of death sentence awarded to all of them except Ghulam Rasool are being taken up along with Criminal Revision No. 676 of 1977 for enhancement of the sentence awarded to Ghulam Rasool convict to death as well as against acquittal of the aforementioned eight co-accused, and are being disposed of by this judgment.
The appellants and the acquitted co-accused are all inter-related ex Ghulam Rasool Gondal, Nazir and Muhammad Bashir.
2. The occurrence took place on the 14th of September, 1976, after sunrise in the fields of Mauza Kot Admana, at a distance of three miles from Police Station Jalalpur, District Jhelum. F. I. R. Exh. P. N.
Was lodged at 8.00 a. m. On the same day by Ghulam Ali P. W. 11, brother of Bahawal Haq and Abdullah deceased and cousin of Habib deceased, and it was recorded by Muhammad Ashraf S. I.
P. W. 14.
3. The motive for crime as stated in the F. I. R. Is that on the land belonging to Muhammad Iqbal and Anar, Painda Khan acquitted co --accused was a tenant. One year before the present occurrence, Anar told him to vacate the said land and he vacated the same as a tenant. Thereafter, the said land remained uncultivated and Painda Khan acquitted co-accused had announced that whosoever cultivated or purchased the disputed land would do so at his own risk and he would be dealt with by the accused party. On the 13th of September, 1976, Muhammad Iqbal and Anar sold the said land vide a registered sale deed to Habib deceased and his brother Saif Ali P. W.
13. Painda Khan came to know about the sale on that very day. Thereafter, on the following day, i. e. The day of occurrence, Rasab, Shera and Ghulam Rasool appellants who were brothers and sons of Painda Khan acquitted co-accused took possession of the said land and started ploughing the same.
When Habib and Bahawal Haq deceased learnt that they were ploughing the disputed land they came to the place of occurrence and asked them not to plough the land as it had been sold to them. They were later joined by Abdullah deceased. The prosecution version is that thereupon the accused party attacked the three deceased and murdered them.
4. The prosecution has produced two eye-witnesses of the occurrence, namely, Ghulam Ali P. W. 11 brother of Bahawal Haq and Abdullah deceased as well as cousin of Habib deceased, and Saif Ali P. W. 13, real brother of Habib deceased anal cousin of the other two deceased. Mst. Irshad Begum, sister of Ghulam Ali P. W. And wife of Habib deceased was cited as an eye-witness who was given tip as unnecessary.
5. The appellants and the acquitted co accused were arrested on different dates, namely, the 15th of September, 1975; 19th of September, 1976, 21st of September; 1976, 22nd of September, 1976, and 23rd of Septem--ber, 1976 by Muhammad Ashraf S. I. P. W.
14. No relevant recovery has been effected from any of them. Hence the case of the prosecution is based mainly on the ocular testimony supported by the motive and the medical evidence:
6. In their statements before the trial Court Rasab and Mohd. Afzal appellants stated that they were ploughing their own land near their dera when the three deceased armed with dandas arrived there and assaulted as well as injured them. Consequently, the two of them injured the three deceased with their barchhis in, self-defence. In other words, both these appellants have taken up the plea that they had caused injuries' to the three deceased with barchhis in the exercise of their right of self-defence. It may be pointed out at this stage that Rasab and Muhammad Afzal appellants are themselves injured. The rest of the appellants as well as the acquitted co-accused in their statements before the trial Court stated that they were not present and that they had been falsely implicated due to relationship with the mused party as well as due to enmity.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner : When the accused party came to know that the disputed land had been sold, on the fateful day Rasab, Shera and Ghulam Rasool appellants started ploughing the said land. At that time, Ghulam Ali P. W. 11, was present along with Bahawal Haq and Habib deceased in their house. Mst. Irshad Begum (not produced) informed them that Rasab appellant etc. Were ploughing the disputed land. On hearing this Bahawal Haq and Habib deceased, proceeded to the disputed land in order to stop them. They were followed by Ghulam Ali P. W. And Mst. Irshad Begum. When Bahawal Haq and Habib deceased reached the eastern banna of the disputed land they informed Ghulam Rasool appellant etc. That the land to question had been purchased by Habib deceased and Saif Ali P. W. 13, and that they should not plough the same. In the meantime, Saif Ali P. W. And Abdullah, who were returning from their land arrived there. Ghulam Rasool appellant told Bahawal Haq deceased that they would teach them a lesson for having purchased the said land. Thereafter, Ghulam Rasool, Shera and Rasab appellants left their ploughs and all the three of them picked up barchhis which were lying on the ground. Then the three of them attacked Bahawal Haq and Habib deceased. Rasab appellant gave a barchhi's blow which fell on the belly of Habib deceased who fell down. Shera appellant gave a barchhi blow which fell on the right shoulder of Bahawal Haq deceased. In the meantime, the rest of the appellants and the acquitted co-accused, who were hiding in the nearby dera came there raising lalkaras and armed with various types of weapons such as sticks, hatchets and barchhis. On hearing their lalkaras Bahawal Haq deceased ran towards the south in order to save his life. Rasab, Shera and Ghulam Rasool appellants and Nazir as well as Painda Khan acquitted co-accused started beating Habib deceased. Muhammad Khan appellant gave a barchhi blow which fell on the back of Bahawal Haq deceased and he fell down. Thereafter while he was in the fallen condition, he was given blows by Muhammad Afzal, Muhammad Aslam, Muhammad Khan appellants and Muhammad Inayat, Muhammad Bashir as well as Ghulam Rasool Gondal acquitted co-accused. Muhammad Zaman acquitted co-accused gave a stick blow to Abdullah deceased which fell on his left shoulder. He also ran towards the south. But Allah Bakhsh appellant chased him and gave a barchhi blow to him which fell on his belly and he also fell down. While he was in the fallen condition, he- was given blows by Muhammad Akram, Sultan and Allah Bakhsh appellant, and Muhammad Zaman, Manzoor as well as .Mirza acquitted co- accused. The occurrence was witnessed by Ghulam Ali and Saif Ali P. Ws. As well as Mst. Irshad Begum but they did not go near due to fear. In the course of the fight Rasab, and Muhammad Afzal appellants received minor injuries at the hands of Bahawal Haq and Habib deceased. Bahawal Haq, Habib and Abdullah deceased died on the spot. The accused party decamped after murdering the three deceased whose dead bodies were lying on the spot.
8. Dr. Riaz Khaliq P. W. 2 conducted post-mortem examination on the dead body of Bahawal Haq deceased at 9-00 a. m. On the 15th of September, 1976, and found on his person the following injuries :-
(1) Incised wound 2''x --'' on the central part of the scalp.
(2) Incised wound 2'' x 1/2'' on the left posterior part of the scalp, I' backwards from injury No.1
(3) Incised wound 1'' x 1/2'' on left eye-brow.
(4) Incised wound 1'' x 1/3'' on left outerside of chin.
(5) Incised wound 1/2'' x 1/3'' on right eye-brow.
(6) Incised wound 1'' x 1/2'' on the upper front of right upper arm.
(7) Incised wound 2'' x 1'' on the back of lower-third of right upper arm.
(8) Incised wound 1'' x -- '' on right outer upper part of chest, 9'' below axilla.
(9) Incised wound 1'' x -- '' on left front of abdomen, 4'' away from umbilicus.
(10) Incised wound 1/2'' x 1/3'' on left upper front of chest, 1/2'' away from left nipple.
(11) Incised wound 1'' x 1/3'' on front of left axilla, 2'' upward rind outward from the nipple.
(12) Incised wound 1'' x 1/3'' on right front of the upper part of abdomen.
(13) Incised wound 1/2'' x 1/3'' on the inner part of left upper arm.
(14) Incised wound 1" x 1/2'' on middle inner front of left forearm.
(15) Incised wound 1/2''s 1/3" just above the back of left elbow joint.
(16) Incised wound -- '' x1/6 '' on left outer side of left lumbar region.
(17) Incised wound 1'' x -- '' on right middle part of the back of chest.
(18) Incised wound --" x 1/6'' on the left side of lumbo sacral region.
(19) Incised wound --'' x 1/3'', 2'' outward to injury No. 18.
All the injuries had been caused by sharp-edged weapon. Injuries Nos. 3, 4, 5, 8, 9 and 17 were individually fatal and sufficient to-cause-- death, while the others were simple.
On the same day at 11-00 a. m. He performed the post-mortem examination on the dead body of Habib deceased and found on his person the following injuries:-
(1) Incised wound 3" x 1/2'' x bone deep, on right posterior part of the scalp, 3" above and backward from right ear.
(2) Incised wound 2'' x 1/2" x bone deep, on the centre of posterior third of the scalp, 1'' away from injury No. 1
(3) Incised wound 1'' x 1/3 " x bone deep, on left front of the scalp, 2'' above hair margin.
(4) Incised wound 1'' x 1/3'' x bone deep, on left posterior part of the scalp, 2'' backward from left ear.
(5) Incised wound. 1--" X 1/2'' x cavity deep, on middle-line of the centre of the abdomen, 3'' above the umbilicus.
(6) Abrasion 2'' x 1'' on the front of right shoulder.
(7) Incised wound 1 -- ''X -- '' on the middle outer side of left upper arm.
(8) Abrasion 1'' x 1/6 '' on left outer part of abdomen.
(9) Abrasion 3'' x 1/3 '' from above down wards on outer side of left shoulder extending on outer upper part of left upper arm.
(10) Incised wound 1'' x 1/3'' on right middle part of the back of abdomen, just to the right of vertebra lumbar spine.
(11) Incised` wound 1/2'' x 1/6'' on the back of upper third of right forearm.
Injuries Nos. 1, 2, 3, 4, 5, 7, 10, 11, were caused by sharp-edged weapon and injuries Nos. 6, 8, and 9 were caused by blunt weapon. The death resulted from injury No. 5 which was sufficient to cause death in the ordinary course of nature while the rest of the injuries were simple.
On the same day at 1-00 p. m. He performed the post-mortem examination on the dead body of Abdullah deceased and found on his person the following injuries :--
(1) Lacerated wound 3" x 1" stilate shaped, on the centre of the scalp.
(2) Incised wound 1-- ''x 1/3'' x bone deep, 1'' to the right posterior for of injury No. 1.
(3) Incised wound 1-- '' x 1/2" on the left front of forehead.
(4) Incised wound 1--''X 1/3'' bone deep on right front of forehead.
(5) Incised wound 1''x 1/3 '' on the anterior part of the back of right hand.
(6) Incised wound 11'' x cavity deep on upper front of abdomen, 3" above umbilicus.
(7) Incised wound 1/2" x 1/6'' x cavity deep, peritoneum protruding out of the wound on right front of abdomen, 2--below the umbilicus.
(8) Right tibia and fibula are fractured, from their lower third.
(9) Incised wound 1'' x 1/3'' x muscle deep, on the back of left hand between the routes of left ring and little fingers.
(10) Incised wound 1''x --'' on left lower part of abdomen laterally outside.
(11) Abrasion -- '' x 1/3'' on middle outer part of right upper arm.
(12) Abrasion 1" x --" on right front of right shoulder.
(13) Incised wound 1" x 1/6'' x muscle deep, on middle of the back of left index finger.
(14) Abrasion 1/6'' x 1/6'' on the back of right wrist.
Injuries Nos. 2, 3, 4, 5, 6, 7, 9, 10 and 13, were caused by sharp---edged weapon and injuries Nos. I, 8, 11, 12 and 14 were caused by blunt weapon. 1n his opinion, death had resulted on account of injuries Nos. 1, 7, 10 and 6 which resulted in the fracture of skull, rupture of intestines and cut on liver. Each of these injuries, was individually sufficient to cause death in the ordinary course of nature.
In the cross-examination he stated that injuries Nos. 6, 8 and 9 to Habib deceased could have been possible due to friction with some bare substance or in the scuffle and that they could not be the result of dire stick blows. He further stated that injury No. 1 on the person of Abdulla deceased was the result of direct stick blow because it led to depressed fracture of the skull. Injuries Nos. 11, 12 and 14 to Abdullah decease could not be possibly caused by a stick and these could be the result either scuffle or friction against hard substance.
Dr. Muhammad Taqi P. W. Medically examined Muhammad Afzal appellant on the 15th of September, 1976 at 10-00 p. m. And found on his person two swellings on the right side of forehead and left cheek. These injuries were declared simple and had been caused by a blunt weapon.
On the 24th of September, 1976, at 3-00 p. m. He medically examined Rasab appellant and found on his person a contused wound on the right side of scalp caused by a blunt weapon. The injury was declared simple. He further stated that the injuries on the two appellants could have been possible by stone throwing. He also stated that looking at the injuries of Muhammad Afzal appellant, it could be said that these were caused either by a heavy danda or by a big piece of stone. He has stated also that he could not find whether the injury to Rasab appellant was the result of a stick blow or by a stone piece.
9. We have heard learned counsel for both the sides and carefully perused the record. It is evident from the testimony of the two eye--witnesses, that the accused and the complainant parties were inimical to each other since 1951. This enmity between the parties is established. It has already been pointed out that the prosecution case is founded mainly .On the ocular testimony of two eye- witnesses, namely, Ghulam Ali and Saif Ali P. Ws. Who were closely related to the three deceased and belonged to their faction. They are interested witnesses, partisan as well as hostile and it would not be safe to accept their testimony without corroboration. We have already pointed out that no recoveries were effected of the weapons of offence in this case from any of the appellants or acquitted co-accused. The prosecution case is that all the appellants except Muhammad Akram were armed with barchhis whereas Muhammad Akram appellant was armed with a larhi. So far as the acquitted co-- accused are concerned, Muhammad Inayat, Nazir and Manzoor were stated to be armed with hatchets, Muhammad Zaman and Painda Khan were stated to be armed with sticks whereas Muhammad Bashir, Ghulam Rasool Gonda] and Mirza were stated to be armed with barchhis. The motive set up by the prosecution is that Habib deceased and Saif Ali P. W. His brother, had purchased the disputed land vide registered sale-deed on the 13th of September, 1976, from Muhammad . Iqbal and Anar. The Revenue Record shows that the dera of the accused party was in field No. 236 where they also were in possession of land. They were likewise in possession of field Nos. 238, 242 and 243. Field No. 245 was not owned or to possession of either of the parties. The sale-deed dated the 13th of September, 1976, is Exh. P. R. At page 118 of the paper book. The field number which is stated to be the disputed one does not figure in the sale deed dated the 13th of September, 1976. But after the occurrence the complainant side had got prepared a Tatimma of the sale deed Exh. P. R./II on the 18th of December, 1976 which is at page 123 of the paper book in which the disputed land, i. e. Field number was incorporated. The case of the prosecution is that one of the field numbers which was sold to Habib deceased and Saif Ali P. W. Was not in possession of the accused party, but they started ploughing the same after having learnt that it was sold. The Revenue record is not of much help as to which was the khasra number of the disputed land. It is not even clear from the F. I. R. As to what was the khasra number of the disputed land. The case of the defence is that some of the members of the accused party were ploughing their own field at the time of occurrence, where s the case of prosecution is that Habib and Bahawal Hag deceased came to know that the accused party had started ploughing the land which had already been sold to Habib deceased and Saif Ali P. W. And they went there in order to stop them. They were later joined by Abdullah deceased when all the three deceased were attacked by the accused party.
After a careful perusal of the record we are of the view that the possibility could not be ruled out that the accused party was under the impression that the field which they were ploughing was in their possession or belonged to them and the complainant side were under the impression that it was one of those fields which ha been sold to them by Muhammad Iqbal and Anar. However, this far is established that the three deceased had arrived on the spot while the field was being ploughed by some members of the accused party and o reaching there the deceased asserting their right asked those members o the accused party not to plough the land. It is stated in the F. I. R.
That Rasab and Muhammad Afzal appellants received minor injuries at the hands of Bahawal Haq and Habib deceased. This fact is supported b the medical evidence. The ocular testimony is to the effect that who Bahawal Haq and Habib arrived at the spot, they were unarmed and Said Ali P. W. In his cross-examination had stated that the aforementioned two appellants received injuries because of the stone throwing by Bahawal Haq, and Habib deceased. On the other hand, Muhammad Afzal appellant in his statement before the trial Court had stated that while he and Rasab appellant were ploughing their land Habib and Bahawal Haq decease reached there and asked them not to plough the same. Thereafter, the assaulted them with dangs and in retaliation Rasab and Muhammad Afzal appellants picked up barchhis and caused injuries to them in self- defence Rasab appellant in his statement before the trial Court had stated that h and Muhammad Afzal appellant were ploughing their land when the there deceased armed with dandas reached there and assaulted them. I retaliation they caused injuries to the three deceased with barchhis in self defence. It appears that the trial Court was conscious of the interested nature of the ocular testimony and, therefore, while relying on the ocular account, had applied the principle of sifting of evidence in the following manner: The trial Court gave the benefit of doubt and acquitted Painda Khan, Muhammad Zaman and Mirza on the ground that they were old people and might have not participated in the occurrence where younger people were involved. It is needless to say that according to the ocular testimony Painda Khan and Muhammad Zaman acquitted co-accused were armed with sticks whereas Mirza acquitted co-accused was armed with a barchhi. Specific roles have been assigned to them by the eye-witnesses, However, they have been disbelieved by the trial Court. The trial Judge also gave benefit of doubt and acquitted Muhammad Inayat, Manzoor and Nazir who were stated to be armed with hatchets because in his view hatchets might have not been used in the occurrence as according to this medical evidence such conclusion could not be drawn due to the dimension, of incised injuries. He also gave benefit of doubt and acquitted Ghulam Rasool Gondal as well as Muhammad Bashir who were stated to be armed with barchhis because he was of the view that Ghulam Rasool Gonda (son of Nazir acquitted co- accused) and Muhammad Bashir acquitted co-accused were not related to the other members of the accused party they belonged to a different area and had no motive. But according to him the possibility could not be ruled out that they might have bee' implicated because of abduction of Mst. Amna, a cousin of Saif Ali P. W Thus, in the course of the application of this reasoning the trial Judge acquitted eight persons out of the total 17 members of the accused part Learned counsel for the complainant agreeing that the ocular testimony was interested, argued that we should find corroboration through the medical evidence of those specific injuries caused to the three deceased in the instant case which are ascribed to specific members of the accused party. But the problem is that the medical evidence only provides the location of the injuries received by the three deceased. It cannot help us for the determination of the question as to which particular appellant or the acquitted co-accused had caused the- specific injury ascribed to him particularly when a large number of accused persons had been implicated by the interested witnesses whose testimony is not corroborated by any independent source or circumstance furthermore, when that ocular testimony has been disbelieved in respect of eight acquitted co-accused, and no appeal against their acquittal had been filed by the State. According to the prosecution version Habib deceased received in all 11 injuries out of which eight were incised wounds and three in the form of abrasions. According to the medical evidence the three abrasions on his person were not the result of direct stick blows but could have been caused during the scuffle or friction with hard substance.
The interested ocular evidence is to the effect that he had received injuries at the hands of Painda Khan armed with a stick, Nazir armed with a hatchet and Rasab, Shera as well as Ghulam Rasool appellants armed with barchhis Painda Khan and Nazir have been acquitted by the trial Court. In respect of Bahawal Haq deceased the medical evidence is to the effect that he received 19 injuries in all which were incised wounds. According to the interested ocular testimony he received these injuries at the hands of Shera, Muhammad Zaman, Muhammad Afzal and Muhammad Aslam appellants who were armed with barchhis as well as by Ghulam Rasool Gondal and Muhammad Bashir who were likewise armed with barchhis and Muhammad Inayat who was armed with hatchet. As it has been pointed out earlier, the ocular testimony has been disbelieved in respect of Muhammad Inayat, Ghulam Rasool Gondal and Muhammad Bashir who were acquitted.
'According to the medical evidence Abdullah deceased received 14 injuries n all out of which ten were incised wounds and four in the form of abrasions. The fatal injury in his case was the one caused with a 'blunt Weapon and according to the medical evidence it had definitely been caused 3y some blunt object. According to the interested ocular testimony he had received injuries at the hands of Allah Bakhsh appellant armed with a barchhi, Sultan appellant armed with a barchhi, Muhammad Akram appellant armed with a lathi, Muhammad Zaman acquitted co-accused armed with a stick Mirza acquitted co-accused armed with a barchhi and Manzoor acquitted co- accused armed with a hatchet. Out of these Muhammad Zaman Manzoor and Mirza had been acquitted as the ocular testimony was disbelieved in respect of them. We have given ur careful thought to this case in order to arrive at a conclusion as-to which members of the accused party had participated in the occurrence beyond any shadow of doubt. We are aware that the ocular testimony is highly interested and inimical with a motive to implicate innocent persons along with the guilty ones. There may be more than two members of accused party who might have been involved in the commission of me. It is evident front the statements of Rasab and Muhammad Afzal appellants made in the trial Court that they had participated in the occurrence. Both these appellants are injured and, therefore, their presence n the spot is established. They had stated that they caused injuries to three deceased with barchhis in self-defence as well as in defence of property and that the rest of the appellants or acquitted co-accused were got present. Thus, in our considered opinion, Rasab and "Muhammad Vial appellants had participated in the occurrence not only because the ocular testimony is to the effect that they had caused injuries to the deceased but also due to their own admissions in their statements before :he trial Court. As for the other appellants or the acquitted co-accused, t cannot be definitely stated as to which of them might have participated in the occurrence or which of them was guilty and how many of them were innocent but falsely implicated. We have no yardstick to apply n their case and have no criterion by which we can pick and choose the guilty ones from amongst them. In that view of the matter, in .Our opinion, apart from the acquitted co-accused, the participation of the appellants other than Rasab and Muhammad Afzal, in the occurrence not free from doubt. Consequently, the conviction as well as sentences awarded to the appellants other than Rasab and Muhammad Afzal were nut proper and they should have been given the benefit of doubt which we hereby give to them.
The result is that the conviction as well as sentences awarded to Shera Muhammad Akram, Muhammad Aslant, Allah Bukhsh, Sultan, Muhammad Khan and Ghulam Rasool appellants are hereby set aside and they, are acquitted. Their appeal is accepted. They shall be released from jail forthwith if not wanted in any other case.
The death sentence awarded to-each of them is not confirmed.
Now remains before us Rasab and Muhammad Afzal appellants. They both were armed with barchhis. The eye-witnesses account is to the same effect. According to their own statements before the trial Court they had participated in the occurrence and caused injuries to the deceased in the instant case with barchhis, although they pleaded self-defence of person as well as property.
At this stage, the main question which requires determination is, as to whether the right of self- defence of person as well as property is available to them or not. We have carefully gone through this aspect of the case. There is the background of enmity between the parties. It is established that at the time of occurrence both these appellants, namely, Rasab and Muhammad Afzal were ploughing the field which they thought rightly or wrongly as belonging to them. They might have kept barchhis with them because of their apprehension from the complainant side who might come to forcibly dispossess them. The prosecution version is that Habib and Bahawal Haq deceased did go there in order to stop them from ploughing that field. They were subsequently joined by Abdullah deceased. Furthermore, it is reasonably probable that Rasab and Muhammad Afzal appellants received injuries at the hand: of the deceased either by dandas or by stone throwing. This could have provided provocation to them and as according to them they were ploughing their own field, they were within their right to defend their persons a well as their property. It is in this' background that they picked up the barchhis and retaliated. It was vehemently argued before us by learner counsel for the complainant as well as for the State that the right of self-defence was not available to them in this case. Learned counsel for the State took us through sections 99, 100 and 105, P. P. C as well a placed reliance on Nazir Ahmad and others v. The State (PLD 1962 SC 269), Muhammad any others v. The State (PLD 1962 SC 450), Abdul Khaliq and others v. The State (1968 P Cr. L J 205), Mehdi Khan v. The State (PLD 1959 Lah. 1009) and Muhammad Ishaq v. The State (PLD 1960 Lah. 880). But the facts of the present case are distinguishable. In the instant case, Rasab and Muhammad Afzal appellants were ploughing a field rightly or wrongly believing it to be theirs. The deceased arrived there and stopped them from doing so. They received injuries .At the hands of all the deceased and in retaliation picked up barchhis and attacked them. In the peculiar circumstances of the case, we are of the view that the right of self- defence of person and property was available to them and they might have also been provoked.
At this stage, it was argued by learned counsel for the State and the complainant that there was evidence on record that some of the members of the accused party had chased the deceased when they were on the run. It was pointed out that according to the ocular testimony Bahawal Haq deceased was chased by Muhammad Khan appellant and Abdullah deceased was chased by Allah Bakhsh appellant and that blood--stained earth was picked up from different spots i. e.
Blood-stained earth pertaining to Habib deceased was picked up from the eastern banna of Khasra No. 245, of Bahawal Haq deceased from Khasra No. 256 and of Abdullah deceased from khasra No. 64 and that these three points were at some distance from the spot, where the attack was launched according to the site plan. It was also urged that there was a trail of blood in one case. Assuming that the appellants had put the three deceased on the run or had chased them, but this could only mean that they had exceeded the right of self-defence. Therefore, we are convinced in our mind that, although the right of self-defence of person and property was available to Rasab and Muhammad Afzal appellants, as they had been suddenly provoked by the trespass of the deceased, they had definitely exceeded the same.
The result is that we set aside the conviction as well as sentences of Rasab and Muhammad Afzal appellants under section 302/148/149, P: P. C. And since, in our opinion, their case is covered by Exception 2 to section 300, P. P. C. And they had exceeded the right of private defence of person and property, we instead convict each of them tinder section 304(I), P. P. C. And sentence each of them to imprisonment for life on three counts. The sentences shall run concurrently. The sentence of fine awarded to each of them on each count by the trial Court is maintained with the direction that if the fine is realized the entire amount should be paid to the legal heirs of the three deceased in equal shares. Their appear is accepted to this extent.
10. The death sentences awarded to Rasab and Muhammad Afzal appellants is not confirmed.