BASHIRUDDIN AHMAD, J.-Anwar aged 44, Ismail aged 26, Ghulam Hussain aged 17, Asghar aged 32, Ashiq aged 26, Sarwar aged 51, Sadiq aged 31, Walayat aged 28, Sheeda aged 31, and Shah Muhammad aged 33 years, were placed for trial on charges under sections 148, 302/149 and 307/149, P. P. C. Before the learned Additional Sessions Judge, Lahore, who acquit--ted Ghulam Hussain, Ashiq, Sarwar, Asghar, Sadiq and Ismail of all the charges but convicted Anwar under section 302, P. P. C. For causing the death of Muhammad Hassan on the 6th of June 1962, at fajarwela in the area of village Badroo and sentenced. Him to suffer death. Walayat Shah Muhammad and Sheeda were held guilty under section 325/34, P. P. C. For causing grievous hurt to Akbar Ali P. W. And each one of them was sentenced to undergo rigorous imprisonment for a period of one year. The condemned person filed Cr. A. No. 352 of 1965; while the persons convicted under section 325/ 34, P. P. C. Appealed separately (Cr. A. No. 364 of 1965). The learned Additional Sessions Judge, also referred the case under section 374, Cr. P. C: to this Court for confirmation of the death sentence passed on Anwar. We propose to dispose of the appeals and the reference by. a single judgment.
2. The prosecution story, briefly narrated, is that Akbar Ali P. W. Was in possession of a piece of Shamilat land on which he had constructed a kotha which he used for tethering cattle. Sometime before the occurrence; which is the subject-- matter of this case, Akbar Ali and his son Muhammad Hassan began enclosing the open space adjoining the kotha to stack fodder. Ghulam Hussain, Ismail, Anwar and Asghar assaulted them. Muhammad Hussain lodged a report to the police with the result that Anwar, Asghar, Ismail and Ghulam Hussain were challaned under section 324, P. P. C.
But were acquitted.
3. On the evening preceding the day of the alleged occurrence, Ismail, Ghulam Hussain, Asghar and Anwar, tried to stack bhoosa in the kotha. Akbar Ali, along with his sons Muhammad Hussain and Muhammad Hassan, resisted. This led to an altercation between them. Ghulam Ali P. W. And several other persons intervened and the matter was settled.
4. On the fateful day i.e. 6th of June 1962, at fajarwela, the appellants along with their companions, who have been acquitted, gathered, under a chhapper. When Abbas, son of Ghulam Ali P. W.
Passed that way, Anwar appellant shouted to his companions to kill him. Abbas ran to the chhapper of Akbar Ali. Ghulam Ali, who was at his well, came up on hearing an alarm. So did Akram and Nawaz P. Ws. Ghulam Ali had helped Akbar Ali in the previous case and also sided with him in the dispute which occurred between the parties on the preceding evening. The appellants and their companions tried to assault Ghulam Ali but he ran towards his house, pursued by the appellants and their confederates, Anwar had a spear Asghar, Ashiq, and Ghulam Hussain had hatchets, Ismail was armed with a tukwa while the rest of the assailants, carried lathis. The culprits pursued Ghulam Ali and overtook him near the house of Miraj Din and caused him injuries. His sons Muhammad Akram and Abbas also came up. They were also injured. Muhammad Hassan, Muhammad Hussain, and Muhammad Tufail came to the spot, Anwar appellant speared Muhammad Hassan in the back and the latter fell down. Akbar Ali was injured by Sadiq with lathi on the head. Farzand, Miraj Din, Allah Bakhsh and several others, came to the spot. They separated the parties. Ismail, Asghar and Anwar also got injured in the transaction. Muhammad Hassan died at the spot.
5. Akbar Ali P. W. And Miraj Din started for the thana to lodge a report. Sheeda. Shah Muhammad and Walayat appellants overtook them near the bund. They assaulted Akbar Ali with lathis. The assault on Akbar was witnessed by Muhammad Sadiq Qureshi, Inspector, Excise and Taxation, Lahore, Din Muhammad Lambardar took the injured persons to the Mayo Hospital, Lahore:
6. Sub-Inspector, Ali Hussan Shah (P. W. 28) who was attached to Police Post Nawankot, as Assistant Sub-Inspector, at the material the, learnt of the occurrence from Muhammad Nazir and proceeded to the Mayo Hospital, where, he recorded the statement Exh. P. B. Of Ghulam Ali P. W.
And forwarded it to Ichhra Police Station for registration of a case. He sent ruqqa Exh. P. BB. To Assistant Sub-Inspector, Muhammad Idrees (P. W. 12) to prepare the inquest report relating to Muhammad Hassan deceased and to take steps to despatch the dead body to the mortuary. The Assistant Sub-Inspector found the dead body of Muhammad Hassan lying at a distance of 4 or 5 karams from the village abadi near the house of Ghulam Nabi, son of Ahmad Din. He drew up the inquest report and then despatched the dead body to the mortuary for post-mortem examination.
7. The case was investigated by S. I. Manzoor Ahmad Khan (P. W. 29) who took into possession blood-stained earth from the spot and sealed it into a parcel. He also took into possession some bhosa from the piece of land in dispute.
8. On the 7th of June 1962, Walayat Shah, Muhammad and Sheeda appellants were arrested.
Walayat appellant produced dang P. W. 12 from his baithak which was taken into possession by the police. Shah Muhammad appellant produced dang P. 15 which was taken into possession by the police vide memo. Exh. P. T. Sheeda appellant produced a laths P. 14 which was also taken into possession by the police:
9. The case was partly investigated by S. I. Ali Hassan Shah, who arrested Anwar appellant from Mayo Hospital, Lahore. On the 15th of June 1962, Anwar appellant took the police to his house and brought out spear P. 11 which was blood-stained. It was taken into possession and was sealed into a parcel in the presence of Bashir Ahmad (P. W. 9) vide memo. Exh: P. R. It may here be stated that the blood on the spear P. 11 had disintegrated and the Serologist was unable to determine its origin.
No blood was found on the lathis produced by Walayat, Shah Muhammad and Sheeda appellants and as such the recovery, in' no way, advanced the prosecution case.
10. The autopsy on the deceased's dead body was held by Dr. A. H. Nizami (P. W. 1) on the 6th of June 1962. The deceased had:
(1) A stab wound, 1--" x --" deep to the abdomen on the back just to the right from the vertebral column, slightly oblique 8" above the lower end of vertebral column, nearly opposite the 12th dorsal and Ist lumber vertebrae.
(2) A stab wound, 1--" x --" deep to the abdomen slightly oblique 4" below the right' nipple on the right side of the lower part of the right chest. The, injuries Nos. I and 2 were inter-communicating.
Posteriorly at the site of the stab, the body of the vertebrae was cut partly at its right side, but the column was not opened up.
(3) An abrasion 1--" x 1" front of right knee 7th' and 8th ribs cartilage were cut on the right side.
Peritoneum was cut posteriorly and anteriorly and the abdominal cavity was full of blood and blood clots, with blood in the extra peritoneal space of right side and blood was also present in the layers of mesentery.
Diaphragm was cut posteriorly in the lower part but the chest was not opened. Liver was perforated through and through in the right lobe. Both kidneyes were healthy, but there was blood on the right side of the kidney space.
Death, in the opinion of the doctor, was due to haemorrhage and shock from the injuries. All the injuries were ante--mortem and injuries Nos. 1 and 2, were caused by sharp-edged pointed weapon and No. 3 by blunt weapon or friction against hard substance. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature.
On the 6th of June 1962, the same doctor examined Asghar, Anwar (appellant) and Muhammad Ismail, accused respectively and found the following injuries on their person: Asghar had : A lacerated wound antro-posteriorly 2--" x --" x bone deep on the left side of head just to the left from the mid-line. He complained of pain in the back of head, but there was no visible mark of injury.
Injury was simple and was caused by blunt weapon.
Anwar appellant
(I) A lacerated wound 2--" x --" x scalp deep on the right side of head 4" above the right ear, antro- posteriorly with a swelling around the injury.
(2) A lacerated wound, 1" x --" x --" below right elbow.
(3) A lacerated wound 3/4" x -- " x skin deep inner aspect of right little finger.
(4) An abrasion 3/4' x --"' back of right hand.
(5) An abrasion 1" x --" back of left forearm just above the wrist.
(6) A swelling 1" x --", back of right thumb.
(7) An abrasion --"' x --" inner side of left upper arm.
(8) A contusion, 4' x 2' on the back of right shoulder.
All the injuries were simple which had been caused by blunt Muhammad Ismail accused
(1) A lacerated Y-shaped inverted position, 1" x --" 3/4" x 1/4" 2-- x 1/4" all scalp deep on the top of head just to the left; from the mid-line.
(2) An abrasion 1--" x --", back of left shoulder.
(3) A contusion, 3" x --" oblique below injury, No. 2.
(4) An abraded contusion 2" x --" on the back of right shout-
(5) A swelling 1" x --" on the back of the right forearm near the wrist joint.
(6) A contusion 4"x 1" oblique on the right chest 1" below the right nipple.
(7) An abrasion --" x --" ort the left wrist joint outer side. He complained of pain in the back of neck, but there was no visible mark of injury.
All the injuries were simple except injury No. 5 which was grievous. All the injuries were caused by blunt weapon.
Dr- Munir Akhtar (P. W. 22) on the 6th of June 1962, examined Ghulam Ali, Akbar Ali, Muhammad Akram, and Abbas P. Ws. And found the following injuries on their person:-- Ghulam Ali (P. W. 21) : ,
(1) A curved lacerated wound 5" X 7' x scalp deep on the left; parietal region.
(2) A contusion 8" x 3' on the left shoulder with swelling.
(3) A vertical contusion 6" x 1--"on the back.
(4) An oblique contusion 6" x 2" on the left buttock.
(5) An oblique contusion 6" x 2" on the right buttock.
Injury No. 2 was found to be grievous and others were simple. They, had been caused by blunt weapon.
Akbar Ali (P. W. 24,);
(1) A lacerated wound 2" x --" x scalp deep of the left parietal eminance antro-posterior in direction.
(2) A lacerated wound 3/4" x 1/4" skin deep on the left elbow.
(3) A swelling and contusions on the left shoulder
(4) A transverse contusion 5" x 1" on the back of the sacral region.
(5) An abrasion 1" x --" on the left knee with swelling.
Injury No. 1 was found to be grievous and others were simple, which had been caused by a blunt weapon.
Muhammad Akram (P. W. 25)
(1) A lacerated wound 2" x 3/4" X scalp deep on the right parietal region.
(2) A contusion, 6" x 2" oblique in direction, on the right scapular region.
Injury No. I was found to be grievous while No. 2 was simple. They had been caused by blunt weapon.
Abbas (P. W. 23)
(1) An abrasion 1" x --" on the left parietal eminance with swelling.
(2) A lacerated wound --" x --" x skin deep on the left elbow with swelling.
(3) An abrasion 1" x --" on the right hand durum with swelling.
All the injuries were simple. They had been caused by blunt weapon:
11. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Sheeda, Shah Muhammad, and Walayat appellants ascribed the case to enmity and asserted that they were innocent. Anwar appellant, however, came forward with a counter version which is reproduced below for the sake of convenience "On the day of occurrence, 6th` June 1962, At Fajar the, I came out of my house and noticed that the cattle of Abbas P. W. Were grazing in my kharbooza field situate close to my house and Abbas was standing guard. I pro--tested and wanted to round up the cattle for impounding. Ghulam Ali father of Abbas was standing at a distance of killa or so and shouted therefrom exhorting Abbas to give me a sota blow or to and rescue the cattle. How--ever, I succeeded in rounding up the cattle and set out towards the cattle pound, thereupon, Abbas, P. W. Gave me dang blow. I raised an alram.
Nawaz, Akram son of Ghulam Ali and Ghulam Ali, arrived there and began to give blows to me.
Asghar Ali accused, and Ismail accused, came to my help. As a result of the injuries received by me on head, I fell down unconscious. I regained conscious--ness in the hospital."
No evidence was produced in defence.
12. At the trial, Ghulam Ali, his sons Abbas and Muhammad Akram, Akbar Ali, brother of Ghulam Ali and Muhammad Hussain son of Akbar Ali, gave direct evidence. Ghulam Ali says that he was present at his well when he heard an uproar at morning prayer the and came to the chhapper of Akbar Ali. The ten accused including the present appellants were present' at the boundary of their field opposite the chhap--per about which there was a dispute between Akbar Ali P. W. And Anwar appellant. Asghar, Ashiq, Ghulam Hussain had. Hatchets, Ismail was armed with takiya, Anwar appellant carried a spear and the rest of their companions were armed with lathis. Anwar appellant shouted to his companions to kill Ghulam Ali who took to his heels. He was overtaken near the house of Miraj Din and was assaulted. He was given a takwa blow by Ismail and was struck by Walayat appellant with a lathi on the shoulder. Then the other accused started beating him indiscriminately. Muhammad Akram and Abbas, sons of Ghulam Ali P. W. Reached the spot. So did Muhammad Hussain and Muhammad Hasan deceased. Anwar appellant speared Muhammad Hussain in the back who fell down. Abbas and Muhammad Akram were also injured but the witness was unable to state who actually caused them injuries. Akbar Ali P. W. Also sustained injuries but Ghulam Ali was unable to state who injured him. He admitted that Anwar appellant, Asghar and Ismail were also injured in the transaction Ghulam Ali was at his well when he heard an uproar. He failed to disclose to the police or in his statement to the Committing Court, that he heard the noise from the direction of the chhapper in dispute but the omission was not material inasmuch as he was injured and his presence at the the of the occurrence cannot be doubted. It is altogether different that his account of the occurrence is not reliable because, according to this witness the assailants first encircled his son Abbas who was taking his cattle toward his field but they did not cause any injury to Abbas. Ghulam Ali did not tell the police that Ashiq was armed with a hatchet.
Similarly, he failed to state that Anwar appellant pointed out to him and shouted to his co-accused that he was the person to be killed. Ghulam Ali said in his statement to the police that he went to his house on hearing the noise and not towards the chhapper in dispute. Abbas deposed that on the morning of the fateful day he was taking the cattle to his fields and when he passed near the haveli in dispute the ten accused came out of the house of Anwar appellant and attacked him. The witness ran to the chhapper in dispute and stood there. Ghulam Ali P. W. Also arrived and Anwar appellant shouted to his companions pointing towards him that lie was the person to be killed whereupon Ghulam Ali tried to fun but he was overtaken near the house of Miraj Din and was assaulted. Abbas, Akbar Ali, Muhammad Hassan deceased, Muhammad Hussain, and Muhammad Nawaz tried to rescue Ghulam Ali. Abbas had sota Nawaz had a driving stick, while Muhammad Hassan deceased and Muhammad Hussain had dandas. They gave blows to Anwar, Ismail and Asghar to rescue Ghulam Ali P. W. Abbas says, that he did not see any one giving a blow to Muhammad Hassan deceased, but lie saw him in injured condition after the occurrence. Abbas said further that he was assaulted when he had gone to a distance of 10 or 15 karams from the abadi. He did not state to the police that all the accused emerged from the house of Anwar appellant. He denied that the accused surrounded him and said that he ran towards the chhapper when pursued by the accused. Abbas stated to the police that his father was going from the well to his house. He did not state to the police that his brothers, Muhammad Nawaz and Muhammad Akram came from the well. The witness omitted to disclose to the police that Akbar, Ali Muhammad Hassan deceased and. Muhammad Hussain caused injuries, to Asghar, Anwar appellant and Ismail. As the statement of Abbas made at the trial was materially different from what he stated to the Committing Court, to the learned trial Judge, transferred the earlier statement made before the Committing Magistrate, under section 288, Cr. P. C. And treated it as evidence. In that statement Abbas definitely said that Anwar appellant had a barchhi with which he caused an injury to the deceased and that the witness was also assaulted. Akbar Ali corroborated the version of Abbas. He says that Ghulam Ali P. W. Ran towards his house but was overtaken and assaulted by Ismail who gave him hatchet blow and then all the accused caused him injuries. Meanwhile, the sons (of Akbar Ali, P. W). And sons of Ghulam Ali also came up and both the sides begain to light in which Anwar appellant speared -Muhammad Hassan deceased in the back. Muhammad Hassan died on the spot. The witness was given a dung blow by Sadiq ran his head. Abbas and Muhammad Akram were also given injuries. Muhammad Akram Abbas, Mohd. Nawaz and Muhammad Hussain gave blows to the accused party. Akbar Ali P. W. Then left for the Thana in order to lodge a report fee says that lie was attacked and injured by Walayat, Sheeda and Shah Muhammad appellants near the bund close to Sherakot. He was rescued by Sadiq Qureshi P. W. The story of the assault on Akbar Ali by these accused persons is supported by this witness but Walayat, Sheeda and Shah Muhammad were committed for trial for the offences committed by them along with their co-accused at the main occurrence that took place in village Badroo and not with respect to the second incident in which they caused injuries to Akbar Ali near the bund which is close to Sherakot. The learned trial Judge however, by an oversight, convicted them on the charge on which they had not been committed to Court of Sessions. We understand that for the charge under section 325/34, P. P. C. In respect of the injuries caused by them to Akbar Ali P. W. Near the bund Sheeda, Walyat, and Shah Muhammad, appellants were sent up for trial separately before a Magistrate and the case' against them ended in an order of discharge. It is, therefore, evident that these three appellants were not convicted on the charge on which they were commit--ted to Court of Sessions and as such their conviction and the sentence passed an them under section 325/34, P. P. C. Cannot be sustained and is ordered to be set aside. Sheeda, Shah Muhammad and Walyat appellants are acquitted.
They are on bail and their bail bond shall stand cancelled.
13. The case against Anwar appellant, however, stands on a, different footing, The deceased came to the spot when the attack on Ghulam Ali P. W. Was in progress. Ghulam Ali stated that Anwar appellant speared Muhammad Hussain in the back. The witness stated in cross-examination that Akbar Ali, Muhammad Hussain, Muhammad Hassan and Muhammad Tufail were already present in the chhapper when he reached there. Akbar Ali P. W. Came there simultaneously with the arrival of Ghulam Ali. Muhammad Nawaz also followed his father to the spot. He was ploughing land.
Ghulam Ali was unable to say if Abbas and Muhammad Akram had received injuries before they caused injuries to the other side. He was also not in a position to state whether Anwar appellant and Ismail injured Abbas and Muhammad Akram when they inflicted injuries on them. Abbas says that he went forward to rescue his father. He had a sofa with him, his brother Muhammad Nawaz had a driving stick while Muhammad Hussain and his brother Muhammad Hassan deceased had dandas and that they gave blows to Anwar appellant, Ismail and Asghar accused. The witness did not see who actually caused the fatal injury to the deceased but saw him injured afterwards. Even in his statement before the Committing Court, he clearly stated that he along with his brother Muhammad Akram, Muhammad Hussain P. W. Muhammad Hassan deceased and Akbar Ali, ran to the spot. The accused had stated giving dang blows to Ghulam Ali P. W. And they also started giving blows to the accused party to defend Ghulam Ali. We have it in the statement of Akbar Ali that when Ismail gave a hatchet blow to Ghulam Ali P. W. His son, Akbar Ali himself and the sons of Ghulam Ali P. W. Reached there to rescue Ghulam Ali. Then both the sides began to light. Anwar appellant gave a spear blow to Muhammad Hassan who fell down and died. Muhammad Akram and Muhammad Hussain also made similar statements. Muhammad Hussain admits that they to bad sotas and gave blows to the accused in self-defence.
14. The defence version that the occurrence took place when the complainant-party tried to rescue the cattle of Abbas P. W. Seized by Anwar, appellant while causing damage to his melon field, was accepted as correct by the learned trial Judge. He did not rely on the testimony of the investigating officer who unequivocally stated that he did not notice any damage to the crop or signs of trespass by the cattle into the field. The trial Judge considered that on account of strained relations between the parties over the dispute regarding the possession of a piece of Shamilat land on which there existed a kotha, it was quite plausible that in the morning the cattle of Abbas either strayed into the field of Anwar, or were deliberately let loose to retaliate for the incident which took place on the preceding evening. Since the conduct of the police officers, who investigated this case, was not straightforward inasmuch as they tried to suppress certain material, facts favourable to the accused, we do not feel inclined to rely implicitly on the evidence of the investigating officer who deposed that he did not notice any damage to the crop of Anwar appellant by the cattle.
15. In view of the partisan nature of the evidence, we are inclined to agree with the learned trial Judge, that the feelings were running high on account of the dispute between the parties over a piece of Shamilat land oil day the cattle of Abbas trespassed into the field of Anwar appellant and it led to a clash between the parties in which both the sides. sustained Injuries.
16. We are not prepared to believe the version that Anwar appellant actually seized the animals and the other party attempted to rescue the cattle from him. In all probabi--lity, Abbas was surrounded immediately when his cattle tres--passed into the field of Anwar appellant and the fight started Abbas ran to the chhapper in dispute. Anwar appellant was armed with a spear pad some of his co-accused had hatchets and lathis, while one of the assailants was armed with a takwa. Ghulam Ali was assaulted and the deceased came there with others when the light was in progress. He and his companions carried lathis which they used against Anwar appellant and his confederates. The learned trial Judge, therefore, rightly came to the conclusion that the right of self-defence accrued to the appellant. The trial Court, however, made a grievous mistake in convicting Anwar under section 302, P. P. C. After having come to the finding that the right of self- defence was exceeded by him. The injury caused to the deceased was on the back with a spear which pierced through his body. The injuries found on the person of the appellant were com-- paratively .Of a minor nature. Since the mortal injury was, caused in the back it indicates that the deceased was not facing Anwar. In these circumstances, we are of the opinion that the appellant in causing an injury to the decease with a spear exceeded the right which accrued to him under the law. In this view of the matter, we alter the conviction of Anwar appellant from under section 302 to that under section 304, Part I, P. P. C. And substitute the sentence of death with rigorous imprisonment for a period of six years. The appeal is accepted to that extent. The death sentence is not confirmed.