' Appellants Ghulam Mohammad, his brother Ahmad Yar, sons of Habib, Muhammad Yar, Wahid Bakhsh and Faiz, sons of Ghulam Haider, all residents of mauza Bait Sohni, tehsil Kot Addu, District Muzaffargarh, were tried by the Sessions Judge, Muzaffargarh, on charges under sections 148, 307/302/149, P. P. C. ; vide judgment dated 31st January 1976, they have been convicted and sentenced to one year's R. I. Each under section 148, P. P. C.; two years' R. I. Each under section 307/ 149, P. P. C. And imprisonment for life with a fine of Rs, 1,000 each or in default further one year's R. I.
Each under section 302/149, P. P. C. The amount of fine, if realized, was ordered to be paid to the heirs of the deceased. The substantive sentences were to run concurrently:
2. They have appealed.
3. The occurrence allegedly took place on 11th July 1974 at 7-00 p.m. Matter was reported to the Police by Ilahi Bakhsh P. W. On the following day. His statement Exh. P. A. Was recorded by Muhammad Abbas Shah S. H.
0. (P. W. 13). This later, formed the basis of formal F. I. R. Exh. P. A/1 which was recorded by Muhammad Waris, Muharrir Head Constable at 5-45 p.m.
4. Prosecution case briefly stated is that the complainant and his relations had their lands at Chah Gattwala in village Bait Sohni. On 11th July 1974 in the morning, complainant's sheep entered the cotton field of the appellants and damaged the crop. Appellants Wahid Bakhsh and Ghulam Muhammad, drove the sheep into their Ihata and shut them there. The complainant alongwith Fateh Muhammad Lambardar of the village, approached them and succeeded in securing the sheep. On the same evening at about 7-00 p.m. Appellant Muhammad Yar happened to pass by the house of the complainants Ghulam Farid deceased and Ghulam Hussain P. Ws. Were also standing with the complainant at that time. He (the complainant) complained to appellant Muhammad Yar for rounding up their sheep. Both exchanged abuses. Muhammad Yar left for his house murmuring. After some time, all the fivt- appellants, armed with dangs came there. They shouted that they would not allow the complainant party go. Appellant Ghulam Muhammad gave a kick with his stick to Ghulam Farid hitting him on the left side of his head near the ear. He then gave a dang blow on his head. Wahid Bakhsh appellant then gave blows to Ghulam Farid with his dang. Complainant Ilahi Bakhsh was given blows by appellant Faiz and Ahmad Yar. Muhammad Yar appellant injured Ghulam Hussain P. W. The hue and cry raised by the victims attracted Sultan Mahmood P. W. 3, Ghulam Qadir son of Gamoon (not examined), and Din Muhammad son of Muhammad (not examined). They saw the occurrence and tried to rescue the victims from the clutches of the assailants ; but the assailants had threatened them as well and succeeded in making good their escape.
' Ghulam Farid deceased became unconscious. On the following morning Ghulam Farid deceased, complainant Ilahi Bakhsh and Ghulam Hussain P. W. 3, were taken to Civil Hospital, Muzaffargarh.
They were medically examined. On 12th July, 1974 Muhammad Abbas Shah S. I. Having received ruqqa Exh. P. G. From doctor of Civil Hospital, Muzaffargarh reached there. He recorded the statement of Ilahi Bakhsh P. W. It was sent to the Police St1ation for registration of the case and he himself entered upon the investigation.
' The condition of Ghulam Farid became precarious. The doctor, incharge of Civil Hospital, Muzaffargarh arranged for his removal to Nishtar Hospital, Multan. He (the deceased) however, succumbed to the injuries on the way. The Investigating Officer prepared injury statement Exh. P. V.
And inquest report Exh. P. W. In respect of the deceased and despatched the dead body to the mortuarifor post-mortem examination. He visited the spot on 13th July 1974 and secured blood- stained earth and made it into a sealed parcel vide memo. Exh. P. L. Appellants Ghulam Muhammad and Muhammad Yar were arrested on 14-7-1974. While in Police custody, Mohammad Yar appellant led to the recovery of sofa P.5 which was taken into possession vide memo. Exh. P. M.
Ghulam Muhammad appellant led to the recovery of blood-stained dang P. 4 from his house which was taken into possession vide memo. Exh. P. N. The remaining three appellants were arrested on 16th July 1974. At the time of the arrest appellant Wahid Bakhsh was wearing blood- stained patka P. 6 and blood-stained vest P.
7. These were got removed and taken into possession and made into a sealed parcel vide memo Exh. P.
0. Appellant Wahid-Bakhsh on the same day, led to the recovery of dang P. 8 which was taken into possession vide memo Exh. P. Q. Faiz Bukhsh appellant at the time of his arrest, was wearing blood- stained vest P. 9 which was got removed off his person and taken into possession vide memo Exh.
P. R. This appellant while in Police custody led to the recovery of dang P.
10. It was taken into possession vide memo. Exh. P. S. Ahmai Yar appellant, lag of all, led to the recovery of rota P. 11 which was taken into possession vide memo Exh. P. T. He (S. I. Muhammad Abbas) got site plan Exh. P. B. And Exh. P. B/1 prepared by the local Pat wari.
5. Dr. Muhammad Aslam P. W. 9, examined the deceased when he was alive. He also conducted post-mortem examination on his dead body. Similarly, he examined the two injured P. Ws. Viz. Ilahi Bakhsh and Ghulam Hussain.
The deceased was found to have suffered the following injuries :-
(1) A lacerated wound 21" x 1 x r deep on the front part upper side of the head.
(2) A punctured wound 1" x 1' x /** on the left temporal region. There was swelling in an area, 3" x 3".
(3) A swelling 3" x 2" on the left side and back side of neck.
(4) An abrasion 4" x r on the left scapular region.
(5) A contusion 4' x on the lower part back of the right upper arm. The patient was in deep coma and limbs were flaccid.
' On removal of the scalp there was a large subcutaneous, hematoma on the left frontal and temporal region. There was double fracture of left frontal bone extending to the left temporal bone.
Piece of fractured bone was depressed inside by 1'. On opening of the skull, he found lot of clotted blood outside the dura matter on the left frontal and temporal region. In his opinion fracture of left frontal bone due to injury No, 1 with depressed piece of bone along with intracranial extra-Dural hemorrhage was sufficient to cause death in the ordinary course of nature. Time between injuries and death was about 24 hours and between death and post-mortem about six hours.
' Ilahi Bakhsh P. W. Was found to have sustained the following injuries on his person :-
(1) A lacerated wound 14" x I" x on the upper side of the head.
(2) A lacerated wound 11' x f" x i" on the right side of the head.
(3) A swelling 3" x 2" on the lower part back of the right forearm.
(4) A contusion 4" x r on the back of the right hand.
(5) A contusion r x it" about above injury No, 4.
(6) A swelling 3" x 2" on the back of the upper arm.
' Injuries Nos. 1 and 2 were kept under observation while the remaining were declared simple. Vide report Exh. P. F/1 the injuries kept under observation were also declared simple.
' Ghulam Hussain P. W. Was found to have suffered total nine injuries, out of which three were lacerated wounds, three bruises, two swelling and one contusion. All were simple by blunt weapon except three of the injuries which were kept under observation. Ultimately even the injuries kept under observation were found as simple.
6. Dr. Iqbal Ahmad P. W. 10, examined appellants Wahid Bakhsh and Faiz Bakhsh. Wahid Bakhsh was found to have sustained the following injuries :-
(1) A lacerated wound 1" x bone deep in the middle of the back of the head.
(2) A bluish red contusion mark on the right side of the chest in the middle (1' x 1").
(3) An abrasion 1' x }' on the left knee joint.
(4) A painful swelling in the left hand little finger.
' The injuries were caused within the duration of 24 hours. Injuries Nos. 2 and 3 were declared simple. Injuries Nos. 1 and 4 were kept under observation. X-ray of skull and little finger was advised.
' Faiz Bakhsh appellant was found to have sustained three injuries, one an incised wound on the palmer aspect of right hand at the root of right hand thumb with immobility and pain in the thumb; the second an abrasion in the middle of outer side of right hand thumb; and third a lacerated wound in the middle of anterior half of the head about r above the center of forehead. Injury No, 1 was caused with a sharp-edged. Pointed weapon whereas injuries Nos. 2 and 3 were caused with blunt weapon within the duration of about 24 hours. On X-ray injury No, 2 as declared grievous.
7. The appellants when examined at the trial, refuted the allegations and pleaded not guilty.
Appellants Faiz Bakhsh and Wahid Bakhsh gave their own version of the occurrence and claimed right of self-defense. Appellants Ghulam Muhammad, Muhammad Yar and Ahmad Yar, pleaded alibi. Ghulam Muhammad appellant stated that his wife Mst. Aisha is related to the complainant party. They were demanding her divorce and had, even, got a suit for dissolution of her marriage, instituted by Mst. Aisha. Besides, the appellant got a theft case registered against his parents-in- law. For all these reasons, he had been involved falsely in the case. Appellant Muhammad Yar took up the position that he had been implicated in the case due to his relationship with appellant Wahid Bakhsh and Faiz Bakhsh. Similar position was taken by Ahmad Yar appellant. Out of the first mentioned two appellants, Wahid Bakhsh made a detailed statement. He stated :- "On the day of occurrence before sunset the sheep of Ilahi Bakhsh complainant were returning from the grazing ground. My crops were also damaged by the sheep. 1 and my co-accused Faiz rounded up the sheep and were taking them to cattle pound. Ghulam Farid deceased was coming after the sheep and he had hatchet in his hand. He tried to snatch sheep from us and on our refusal he gave hatchet blow to Faiz which was warded off by him on his hand. Ghulam Farid deceased then tried to give second hatchet blow to Faiz on which I in exercise of the right of private defence inflicted injuries on him. On the alarm of Ghulam Farid, Ilahi Bakhsh and Ghulam Hussain P.
Ws. Reached the spot armed with dangs and they attacked us and we in exercise of the right of private defence caused injuries on their person."
' Similar statement was made by Faiz Bakhsh appellant.
8. The prosecution, at the trial, relied on the ocular evidence given by Ilahi Bakhsh P. W. 1, Ghulam Hussain P. W. 2 and Sultan Mahmood P. W. 3 ; the motive ; recoveries and medical evidence.
9. Learned trial Judge accepted the prosecution case in its totality. He believed the ocular version, the motive and the recoveries. He rejected the defense plea of the two appellants, observing :- "If the complainant party was actually the aggressor and Faiz and Wahid Bakhsh had acted in exercise of their right of private defense of person then attempts should have also been made by the two accused to get the cross case registered but it does not appear to have been so done by them. It is clear from the statement of Doctor Iqbal Ahmad that the said two accused were examined in Nishtar Hospital, Multan. They were also not got medically examined through the Police."
He concluded observing "The fatal injury to the deceased is attributed to Ghulam Muhammad accused. It is in the evidence that abuses were exchanged first between Ilahi Bakhsh P. W. And Mohammad Yar accused on which the occurrence took place and, therefore, while taking this circumstance into consideration I sentence Ghulam Muhammad and all the other accused to life imprisonment each
10. Learned counsel appearing for the appellants has raised twofold arguments. It is contended that the plea of self-defense raised by Faiz Bakhsh and Wahid Bakhsh appellants is not only quite probable but, also, stands established fully. The prosecution has suppressed the injuries sustained by two of the appellants. Learned trial Judge has not given good reasons for disbelieving the defense version. Only because the two appellants had not been examined through the Police or that they did not take steps to have a cross case registered are not grounds that should have weighed with the learned trial Judge for an outright rejection of the defense version. The defense, unlike the prosecution is not to establish its case, beyond doubt. It has to show only the probability of its case. In the second place, it is argued that the participation of the remaining three appellants is highly doubtful. A tendency in our rural society to implicate as many persons of the opposite- party as possible, is growing fast. Courts, in such cases, should sift die evidence and make sure before passing an order of conviction that the participation of every individual is established beyond reasonable doubt. It is in this context that the interested nature of the witnesses and a need of looking for corroborative evidence, assumes importance. In his submission, the prosecution has failed to establish its case beyond reasonable doubt against appellants Ghulam Muhammad, Muhammad Yar and Ahmul ar,
11. Learned State counsel, on the other hand, argued that the prosecution has established its case against all the appellants beyond any doubt. Learned trial Judge, in the circumstances of the case, was fully justified in applying the rule of constructive liability. None of the appellants had any right of defence of any kind. From the nature of the injuries on the persons of appellant Wahid Bakhsh and Faiz Bakhsh, it appears that these, in all probability were self-suffered. Question of their disclosure, therefore, by the prosecution, does not arise. The circumstance that the two appellants had not examined themselves at Civil Hospital, Muzaffargarh but at Nishtar Hospital, Multan, goes a long way to show that the injuries were not sustained by them in the occurrence. He adopted the reasoning of the learned trial Judge and highlighted them to a great extent.
12. I have considered the arguments raised at the bar and have gone through the record of the case carefully with the help of the learned counsel for the parties.
13. The occurrence itself is not disputed by the defense which has however, given its own version of the same. Two of the appellants, namely Wahid Bakhsh and Faiz Bakhsh have pleaded the right of self-defense. The remaining three appellants have denied their participation in the occurrence. In a case, therefore, where two rival cases for the prosecution and the defence are canvassed, the duty of a Court is to review the entire evidence and circumstances at the close before arriving at a conclusion regarding the truth or falsity of the defense plea. All the factors favoring belief 'n the accusation must be placed in juxtaposition to the corresponding factors favoring the plea of defense and the total effect should be estimated in relation to two questions, viz :-
(1) Is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case ?
(2) If the answer to question (1) be in the negative is there yet a reasonable possibility that his explanation might be true so as to cast a reasonable doubt upon the prosecution case ?
' Reference is made to Muhammad Siddiq v. The Crown (1).
14. In the instant case, therefore, before examining the plea of self-defence set up by appellants Wahid Bakhsh and Faiz Bakhsh, point to be seen in the first instance, would be as to whether the participation of the remaining three appellants is proved beyond reasonable doubt. If it is found that all the five appellants did participate in the occurrence, question then to be examined will be as to whether the plea of self-defence is or is not available to all the appellants.
' Prosecution has examined three eye-witnesses. Ilahi Bakhsh P. W. 1 is the uncle of the deceased and was himself injured in the occurrence. His presence at the spot is hardly in dispute. Ghulam Hussain is sister's son of Ilahi Bakhsh P. W. His presence at the spot too, is admitted by Wahid Bakhsh appellant. He was also injured in the occurrence. Sultan Muhammad P. W. Is also their relation. Ghulam Qadir, a sister's son of Ilahi Bakhsh P. W. Is married to the sister of Sultan Muhammad P. W.
(1) PLD 1954 FC 12 ' Mst. Aisha was wife of appellant Ghulam Muhammad. She is a relation of the complainant party.
At the instance of appellant Ghulam Muhammad a theft case was registered against his in-laws.
He filed copy of the order dated 5-9-1974 in the suit for dissolution of marriage instituted of by Mst.
Aisha and, also, copy of the F.I.R. In the theft case. Ilahi Bakhsh P. W. Has admitted that Ghulam Hussain P.W. Is his sister's son. He however, denied if Mst. Aisha is the daughter of the first cousin of Ghulam Hussain. Ghulam Hussain P. W. Has however, .Admitted that Ghulam Rasul, father of Mst.
Aisha is his first cousin. The witnesses have denied to have any knowledge if Mst. Aisha had instituted a suit against Ghulam Muhammad appellant for dissolution of her marriage. The P. Ws.
Even denied to have any knowledge about the registration of the case by appellant Ghulam Muhammad against his in-laws. The evasive position taken up by the witnesses is quite meaningful. Appellant Ahmad Yar is the brother of appellant Ghulam Muhammad. They constitute one set of appellants. The other set of appellants is constituted by three brothers namely appellants Muhammad Yar, Faiz and Wahid Bakhsh. Ahmad Yar appellant has stated that he has been involved in the case on account of his relationship with Wahid Bakhsh and Faiz Bakhsh appellants. In the case of appellant Ghulam Muhammad and Ahmad Yar, therefore, I am inclined to hold that it will be difficult to sustain their conviction without independent corroboration to the ocular testimony. If rounding up of the sheep of llahi Bakhsh P. W. Is the only motive for this occurrence, these two appellants had no direct motive. Medical evidence though in certain cases may be used as corroboration, but in the instant case, it cannot be so used. Injuries received by the deceased except injury No, 2 which is a punctured wound, and the P. Ws. Are all caused with blunt weapons. Injury No, 2 is stated to have been caused by a side-push with a dang. The injuries are not determinative of the number of assailants. Ghulam Muhammad appellant is said to have led to the recovery of blood-stained dang while Ahmad sota P. II, Ghulam Haider and Ghulam Qadir P. Ws.
Are the witnesses of these recoveries. Ghulam Qadir has not been examined. Ghulam Haider has been examined as P. W.
12. According to him recovery of sota from appellant Ghulam Muhammad was effected at about 11/12 noon. The recovery was made from inside the kotha which was not locked. No one was present in that Kotha. The house from where the recovery was made consists of 5/6 rooms. No body was present in those rooms at the time of recovery. According to Muhammad Abbas S. I. The house of Ghulam Muhammad had fields on its three sides and a garden on its fourth side. He did not remember whether the door of the house. Was locked at the time of recovery. He refused to look into the zimini for finding out this fact. He could not give the distance between the houses of Ghulam Muhammad and Muhammad Yar appellants. He even did not remember on which side was the house of Ghulam Muhammad from the house of Muhammad Yar. Appellant Ghulam Muhammad was arrested on 14th July, 1974. The occurrence had taken place on 11th July 1974. It cannot be expected of a person accused of an offence on capital charge to keep the weapon of offence stained with blood for all these days. Recovery of dang at the instance of appellant Ahmed Yar is hardly of any avail. It was not blood-stained. For all these reasons it will not be quite safe to use these recoveries as a piece of corroborative evidence against Ghulam Muhammad and 4hmad Yar appellants. I am therefore, of the view that the prosecution has not been able to establish its case against appellants Ghulam Muhammad and Ahmad Yar beyond reasonable doubt. I, therefore, giving them benefit of doubt, acquit them.
15. This brings me to the question of plea of self-defence raised by appellants Faiz and Wahid Bakhsh and the involvement of appellant Muhammad Yar. Muhammad Yar appellant admittedly is the brother of appellants Faiz and Wahid Bakhsh. The latter two admit their presence at the place of occurrence. The sheep of Illahi Bakhsh P. W. Had damaged their crop. Besides the deceased, Illahi Bakhsh and Ghulam Hussain P. Ws. Were injured on the side of the complainant party. They had suffered quite a number of injuries. 1 am of the firm view that Muhammad Yar appellant had participated in the occurrence along with his two brothers appellants Wahid Bakhsh and Faiz.
16. According to the prosecution case Illahi Bakhsh P. W. Had brought back his sheep through the intervention of Fateh Muhammad Lambardar. They brought back the sheep. As noticed above, it was in the evening then that the occurrence took place. The defence version however, is that appellants Faiz and Wahid Bakhsh were taking the sheep to the cattle pound when the deceased Ghulam Farid who had earlier been managing the sheep with a hatchet in hand, tried to secure the sheep. On the resistance of the appellants, he gave a hatchet blow to Faiz appellant which he warded off receiving injury on his hand. As he (the deceased) was to inflict the second blow on Faiz Bakhsh, Wahid Bakhsh injured him. On the alarm raised by Ghulam Farid deceased Ilahi Bakhsh and Ghulam Hussain P. Ws. Also came there armed with dangs. I find that the defense plea is quite probable for a number of reasons. Fateh Muhammad Lambardar was the best witness in the case.
He has not been examined ; and, statedly, because he has been won over. Whatever be the reason, Courts are entitled to presume that had Fateh Muhammad been examined, he would not have supported the prosecution case. It cannot be accepted that if Ilahi Bakhsh P. W., as claimed by the prosecution, was able to secure his sheep in the morning, why he had raised the issue again in the evening. The F. I. R. Was lodged with an inordinate delay at 5 p.m. On 12th July, 1974. The injuries sustained by appellants Faiz and Wahid Bakhsh have been suppressed. I am not impressed by the argument of the learned counsel for the State that injuries on the persons of the appellants appear to be self-suffered. He had mostly adopted the reasoning of the learned trial Judge in rejecting the defence plea. The fact is lost sight of that Ghulam Hussain P. W. At the trial, tried to explain the injuries suffered by the appellants. He has stated :- "The sota of Faiz Bakhsh was snatched by me from him and then beating was given by me to him and Wahid Bakhsh."
In this regard he made improvements over his statement before the, Committing Magistrate. Only because the appellants failed to have al, cross case registered and did not have themselves examined at al particular hospital, are not grounds justifying outright in rejection of the defence plea. Above all, reference to the site-plan would show that the occurrence did not take place close to the house of the complainant party as claimed by it.
' For all these reasons I am therefore, inclined to hold that the occurrence did take place when the three brothers, namely appellant Wahid Bakhsh, Faiz Muhammad and Muhammad Yar. Were ja!:ing the sheep to the cattle pounds and the complainant party tried to effe,:t their rescue.
17. Under section 10 of the Cattle-Trespass Act (Act I of 1871), the cultivator or occupier of any land, may seize or cause to he seized any cattle trespassing on such land, and doing damage thereto or to any crop or produce thereon, and send or cause them to be sent within twenty-four hours to the pound established for the village in which the land is situate.
' All officers of Police shall, when required, aid in preventing (a) resistance to such seizures, and (b) rescues from persons making such seizures.
' Remedy to the person whose cattle are seized is provided in section 20 of the Act. He may, at any time, within ten days from the date of the seizure, make a complaint to the Magistrate of the District or any Magistrate authorized to receive and try charges without reference by the Magistrate of the District. Under section 24, whoever, forcibly opposes the seizure of cattle liable to be seized under this Act, and whoever rescues the same after seizure, either from a pound, or from any person taking or about to take them to a pound, such person being near at hand and acting under the powers conferred by this Act, shall, on conviction before a Magistrate, be punished with imprisonment for a period The appellants, therefore, having seized the cattle, were within their right to resist their rescue albeit by the owners of the cattle. The complainant party, in their attempt to effect rescue, has, moreover,' used violence. The appellants therefore, in the circumstances, could also, act in their defence of their persons. The deceased has used' hatchet in the attack. The appellants, in the exercise of these rights, in C the circumstances, were justified in causing the death a's contemplated in; section 103, P. P. C. Section 103, P.P.C. Inter alia, provides :- "The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated namely :- ' Fourthly.-Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised."
' Appellants Faiz, Wahid Bakhsii and Muhammad Yar, are therefore, also entitled to acquittal. For the view I have taken, I am supported by Udat Singh and another v. The Emperor (I) and a Division Bench judgment of this Court in Nawab v. The State (2).
(1) AIR 1925 Pat. 762 (2) PLD 1960 Lah. 149
18. For all that has neen Aateu above, this appeal succeeds. The conviction and sentences of all the appellants are set aside and they are acquitted. They shall be released forthwith if not required to be detained in connection with any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.