' HAMID ALI MIRZA, J.--- This criminal petition for leave to appeal is directed judgment dated 16-2- 2005 in Criminal Appeal No,S-42 of 2004, filed by Manzoor and other against the judgment dated 27-5-2004 passed by the Additional First Additional Sessions Judge, Larkana in Sessions Case No,24 of 1994, whereby the respondents/ accused were convicted for different offences and sentenced to different period of imprisonment and fine which judgment was set aside by the learned Single Judge of the High Court of Sindh, Circuit Court, Larkana vide impugned judgment hence this petition for leave to appeal.
2. Brief facts of the case are that the petitioner/complainant filed F.I.R. No,6 of 1994 at Police Station Dhamrah stating therein that on 8-1-1994 the respondents crossed formers' land on tractor to which complainant objected as it caused damage to land but the respondents/ accused did not listen to him and crossed the land on tractor. Thereafter, the petitioner went to the house of respondent/accused at 8-00 a.m. Which was adjacent to the land of the petitioner complainant requesting him not to damage his land when the respondent Manzoor was present with four other namely, Moula Bux, Huzoor Bux, Hakim and Abdul Karim and further the petitioner/complainant requested all of them not to damage the crops in his land but the respondents/accused became annoyed and inflicted hatchet blow from its blunt side on his left side of his shoulder. The respondents/accused also attacked the petitioner from the sharp side of hatchet on his head to which the petitioner raised cries on which his sons namely, Ghulam Murtaza, Ali Dost, Ghulam Muhammad and his grandson Ghulam Rasool arrived but respondents/ accused gave them also hatchet blows. The injured Ghulam Muhammad and Ghulam Rasool were got admitted in the hospital at Larkana for treatment while P. Ws. Ali Dost and Ghulam Murtaza accompanied the petitioner to lodge report at Police Station Dhamrah at about 12-00 p.m. On the same date, however, Ghulam Rasool died in the evening time due to injuries. The police after usual investigation challaned the respondents/accused in the Court.
3. The respondents/accused also lodged F.I.R. No,7 of 1994 stating therein that the petitioner party attacked the respondents/accused causing injuries to respondents Rasool Bux, and Abdul Karim.
Case was investigated by the police in which the petitioner and his relatives mentioned in the F.I.R.
Were also challaned before the Court of the law.
4. After framing of charge against the respondents/accused in the case registered vide F.I.R. No,6 of 1994 to which pleaded not guilty, therefore, the prosecution after recording the evidence of prosecution the evidence of prosecution P. Ws. Examined the respondents/ accused under section 342, Cr.P.C. And after hearing the learned counsel for the petitioners convicted and sentenced the respondents/ accused by 1st Additional Sessions Judge, Larkana, vide judgment, dated 27-5-2004.
The respondents/accused preferred Criminal Jail Appeal No,S-42 of 2004 which was heard by learned Single Judge of the High Court of Sindh Circuit Court at Larkana which was allowed thereby conviction and sentence were set aside vide impugned judgment hence this petition.
5. We have heard learned counsel for the petitioner at length and perused the record so also heard learned counsel for the caveators/ respondents.
6. Contention of learned counsel for the petitioner is that learned Single Judge of the High Court has misread the evidence and has misappreciated the law as such has arrived at wrong conclusion by reversing the judgment of conviction of the trial Court.
7. We do not find merit and substance in the said contention.
8. Learned Single. Judge has minutely apprised the evidence in accordance with settled principle of law laid down by this Court and has also properly considered the evidence of the prosecution as well as defence the respondents. Learned Single Judge in paras.11 to 13 of the impugned judgment has observed:- "(11) The case of the appellant is of private defence. A suggestion to right of P.W. Ali Dost that the appellant caused injuries in their self-defence to which he denied the same.
(12) From the facts of the case, it is clear that the incident took place in the land of the appellant. It has been also established without any reasonable doubt that the complainant party went there.
Their stand of pacifying over the tractor affair has not been proved beyond reasonable doubt, as such there are reasonable ground for believing that the complainant party was the aggressor in the incident. The point defence was considered by the Honourable Supreme Court of Pakistan in the case of Zarid v. Gulsher 1972 SCM R 567. On the question of burden of proof of private defence the Honourable Supreme Court observed that burden of proof heavily is on defence or accused but if circumstances showed likelihood of existence of right of private defence then the accused are entitled to the benefit of such right despite the provisions of section 105 of Evidence Act (now Art.121 of Qanun-e-Shahadat Order).
(13) In the present circumstances of the case there was no any likelihood of existence of private defence but it has been proved that the appellant had the right of private defence and the injuries caused to the witnesses were in exercise of such right therefore, the case of the appellants would fall within the four corners of the case of Zarid (supra). However, the point for consideration is whether or not the appellants have exceeded the right of private defence. It is the case of the prosecution that all the witnesses and the deceased had received injuries caused by hard and blunt substance. The deceased had only one injury on his head which was also caused by hard and blunt substance. Though the allegation were that the appellants were armed with hatchets.
From the injuries caused to the witnesses and deceased it is manifest that the appellants did not use the hatchets. Though they could have used the same. Non-using of hatchets clearly indicates that the intention of the appellants was not to cause injuries of nature which caused by use of sharp side of hatchet. This further clearly indicates the appellants did not exceed the right of private defence. Thus, the appellants are entitled to the benefit of doubt."
9. We have also gone through the evidence of P.Ws. Muhammad Safar, Ghulam Murtaza, Ali Dost, Ghulam Muhammad, Jinsar Ali Tapedar, Dr. Amjad Ali, medical certificates and post-mortem reports minutely. The above-said witnesses have admitted that their statements under section 161, Cr.P.C. Were recorded after 2/3 days of the incident and have also sustained injuries in the same incident and further that incident has occurred in front of house of the respondents/ accused and those hatchets were used from the blunt side. We find that the learned Single Judge of the High Court has also gone through the entire prosecution evidence and defence of the respondents/ accused and has perused the same in accordance with the settled principle of law laid down by this Court. No exception could be taken to the finding with regard to appraisal of evidence arrived at by the learned Single Judge.
10. We do not find any legal infirmity with the findings arrived at by the learned Single Judge in the impugned judgment. No misreading or non-reading of evidence or misconstruction of law has been pointed out consequently no case for grant of leave is made out which is declined and the petition is dismissed.