By his judgment of the 20th May, 1981, the learned Additional Sessions Judge, Sialkot, convicted Asghar Ali (28 years) and Akbar All (26 years), sons of Khushi Muhammad, Jats by caste, residents of Mangola, Police Station Qila Sobha Singh, Tasil Narowal, District Sialkot, under section 304, Part I read with section 34 of the Pakistan Penal Code for committing in furtherance of their common intention culpable homicide not amounting to murder of their co-villager, Nasir Ahmad, aged 30 years, in the field lying in the area of village Mangola, which place is fifteen miles away from Police Station Qila Sobha Singh, on the 29th June, 1980, at about 11.00 a. m. And sentenced each of them to suffer imprison--ment for life and pay a fine of Rs. 5,000 or in default of payment thereof to undergo rigorous imprisonment for six months. The amount of fine, if realized, was directed to be paid to the legal heirs o1 the deceased. Abid Hussain (19 years) and Arif Hussain (16 years), who had been tried along--with their brothers, Asghar Ali and Akbar Ali, on the same charge, were acquitted. The convicts have approached this Court in appeal. Mahmood Ahmad, complainant, has filed revision petition (No. 136 of 1982) for payment of compensation to him. This judgment will dispose of the present appeal as well as the revision petition.
2. The dispute touching possession of the land considered by the deceased to have fallen to his share in consequence of consolidation of holdings proceedings provided cause for the alleged launching of assault by the appellants and their acquitted co-accused resulting in the death of Nasir Ahmad and injuries to his mother's brother, Mahmood Ahmad, com--plainant, P. W. 5,
3. According to the prosecution version of the case the deceased was in possession of the land which the appellants' father, Khushi Muhammad, claimed to have been given to him in consolidation of holding proceedings. The appellants armed with a hatchet each and their younger brothers, Abid Hussain and Arif Hussain, carrying a stick each, are stated to have started tilling the land with a tractor which they had brought over there for the purpose of taking possession thereof. When the deceased told them not to cultivate the land the appellants attacked him. Asghar Ali gave him a hatchet blow which landed on the right side of his head. He fell down on the ground. Akbar Ali administered him two successive hatchet blows on the back of his head.
Asghar Ali gave another hatchet blow on his back of Mahmood Ahmad, P. W. 5, who was grazing his cattle in the nearby field, rushed to the place of occurrence to rescue the deceased. He was dealt with a stick blow by Abid Hussain. He fell down on the ground and thereafter received another stick blow on his back at the hands of Arif Hussain. Hearing the noise raised. Khalid Ahmad, P. W. 6, brother of the deceased, Muhammad Nawaz, P. W. 7, and Muhammad Sharif, brother of Mahmood Ahmad, P. W. 5, reached the spot, saw the occur--rence and rescued the complainant and the deceased.
4. The complainant and the deceased were carried to the Civil Hospital, Narowal, where they were examined and attended upon by Doctor Ijaz Ahmad Malik, P. W. 1, After securing the medico-legal exa--mination reports Mahmood Ahmad complainant went to police station Qila Sobba Singh where he lodged at 5.00 p. m., that very day the First Information Report, exh P. F. Which was recorded by Fazal Hussain, the then Moharrir Head Constable, P. W.
2. Nasir Ahmad expired on the 2nd July, 1980, at 9.57 p. m. In the Civil Hospital, Narowal.
5. The appellants and their acquitted brothers were arrested by Pervez Ahmad, Sub-Inspector of Police and Station House Officer, Police Station Qila Sobha Singh, P. W. 10, on the 11th July, 1980. Three days later Asghar Ali, Akbar Ali, Abid Hussain and Arif Hussain, while in custody, led to the recovery of hatchet, Exh. P. 3, hatchet Exh. P. 4, stick, Exh. P.. 5, and stick, Exh. P. 6, respectively, from their house and these weapons of offence were taken possession of by Pervez Ahmad, P. W. 10, vide memoranda Exhs. P. L., P. M. P. N. And P. O. Respectively. These memoranda were attested by Khalid Ahmad, P. W. 6 and Tariq Ahmad (not produced).
6. The hatchets, Exhs. P. 3 and P. 4, were found to be stained with human blood vide the report of the Serologist, Exh. P. T.
7. Doctor Ijaz Ahmad Malik, Medical Officer, Civil Hospital, P. W. 1, examined Mahmood Ahmad, P. W.
5, on the 29th June, 1980, at 2.30 p. m., and noticed the following injuries on his person,-
(i) A skin deep longitudinal lacerated wound 4 cm x -- cm on the fronto-parietal region above forehead.
(ii) A skin deep lacerated wound with edges ragged obliquely parallel to the first wound.
(iii) Abraded contused swelling 5 cm x 3 cm on the dorsum of the left scapular region.
All the injuries were simple and had been caused with blunt weapon within a few hours Exh. P. B. Is the copy of the medico-legal examination report and Exh: P. B./ 1 is the pictorial diagram giving the locale of injuries.
8. He examined Nasir Ahmad deceased the same day at 3-15 p. m, and found the following injuries on his person,-
(i) A tender to touch bleeding transverse incised wound on tile right parietal region.
(ii) A tender to touch incised wound with clean cut edges, 4 cm X 1 cm. On the right occipital region.
(iii) An incised wound, with clean cut edges, 3 cm x 1 cm over the occiput.
(iv) A club mark tender to touch on the right lumbar region obliquely placed on the back.
The depth of the first three injuries was not probed. X-ray vas advised. X-ray examination revealed three fracture lines and, therefore, the first three injuries were declared to be grievous. They had been caused with sharp-edged weapon. The fourth injury was result of application of blunt weapon. Duration of injuries was assessed within a few hours. Exh. P. A. Is the copy of the medico- legal examination report and Exh. P. A./ 1 is the diagrammatic sketch indicating the site of the injuries.
9. He conducted autopsy on the dead body of the deceased on the 3rd July, 1980 at 11.00 a. m., and found thereon the same injuries which be had noticed when he had examined him on the 29th June, 1980. On opening the skull he found that piameter had been torn at three places just below the injuries and blood had collected above the durameter and orchnoid.
In the opinion of the Medical Officer death had occurred due to shock sad haemorrhage resulting from the bead injuries which were sufficient to cause death in the ordinary course of nature. Exh. P.
C. Is the copy of the post-mortem examination report and Exh. P.D./1 is the diagram giving the location of the injuries.
10. While Abid Hussain and Arif Hussain denied their participation in the commission of alleged crime and contended that they had been falsely implicated the appellants gave their own version of the occurrence. According to them the land bearing Khasra No. 779 had fallen to their share while land of Khasra No. 780 had been given to Nasir Ahmad deceased as a result of consolidation of holdings proceedings though they had been in cultivating possession of the last mentioned land. They stated that at about 7 O'clock m the morning of the day of occurrence they had taken their tractor to plough the land of Khasra No. 779 but had been prevented by Nasir Ahmad deceased and Mahmood Ahmad, P. W. 5, who had been armed with a hatchet and sofa, respectively, to do so. They added that after exchange of hot words they had been chased and injured by the deceased and the complainant and in exercise of right of defence of their persons and property they had picked up a hatchet and a stick and inflicted injuries upon the deceased and the complainant. They maintained that the police had arrested them the day following the day of occurrence but had shown their arrest to have taken place on the 11th July, 1980, so that their injuries should heal up. A clear picture of the stance taken by them is visible from the following statement of one of them, namely, Asghar Ali (the statement of Akbar Ali being identical) made during "The true facts are that Khasra No. 779 was allotted to us in consoli--dation proceedings in 1979 and Khasra No. 780 was allotted to Nasir Ahmad but we were in cultivating possession of the same, Nasir Ahmad deceased wanted to take forcible possession of Khasra No. 779 from us. On the day of occurrence at about 7 a. m. I and my brother Akbar Ali took our tractor in Khasra No. 779 in order to plough it for paddy crop. Nasir Ahmad deceased who was armed with a hatchet and Mahmood Ahmad was armed with a sofa came there and forcibly tried to stop us from ploughing the land which we were already ploughing. Hot words exchanged. Nasir Ahmad deceased abused us and also attacked me. I and my brother Akbar Ali sustained injuries. We ran towards our tube- well in the adjoin--ing killa. I picked up a small hatchet whereas Akbar Ali my brother picked up a small danda and we in exercise of the right of self-defence of our persons and property I and my brother Akbar Ali caused injuries to Nasir Ahmad deceased and Mahmood Ahmad P. W. The police took us in custody next day of the occurrence from our village and showed our arrest on 11th July, 1980 so that our injuries be healed up by then. My two brothers namely Abid Hussain and Arif were not even present at the spot. We are only four brothers and we all have falsely been involved in the case. My father had gone out of the village in those days and as such he could not be named as one of the accused."
The appellants and their acquitted co-accused disowned recovery of the weapons of offence at their instance and did not choose to produce any evidence in defence.
11. The learned trial Judge found .That the land measuring four Marlas entered in Khasra No. 779 formerly owned and possessed by Nasir Ahmad deceased had been given during the consolidation of holdings proceedings in 1979 to Khushi Muhammad, father of the appellants, and that he came to be in possession thereof and, therefore, the appellants had a right to cultivate it.
As it was not proved before him that the appellants had sustained injuries he was of the view that the right of defence of their persons was not available to them. However, he concluded that the appel--lants and their co-accused were within their right to cultivate the land given in Khasra No. 779 and could resist any interference on the part of the deceased and the complainant.
Nevertheless, he decided that under the circumstances their right of private defence of property did not extend to the causing of death of the deceased. Therefore, he held that the appellants had exceeded their right of defence 'of property and accordingly convicted them under section 304, Part I of the Pakistan Penal Code for killing the deceased. He viewed action of Abid Hussain and Arif Hussain in so far as it was limited to causing simple hurt to Mahmood Abroad not to be in excess of the exercise of right of defence of property. They had not done anything contributing towards the death of Nasir Ahmad. Therefore, he acquitted them.
12. The learned counsel for the appellants argued that all that the appellants had to show was that they had reasonable apprehension of death or grievous hurt so as to justify infliction of injuries upon the deceased. He contended that what had to he seen was whether the appellants' version of the case was possible. He maintained that the appellants had been actually arrested by the police earlier than the date of their arrest shown in the record, namely the 11th July, 1980, but their arrest had not been disclosed till the last mentioned date when the wounds received by theist at the hands of the deceased and the complainant had completely healed. He drew attention to the admission of Muhammad Nawaz, P. W. 7, in his cross-examination that the appellants had been arrested three days after the occurrence. However, it is difficult to believe the story of the appellants receiving injuries at the hands of the deceased and the complainant because they did not get themselves medically examined after the occurrence in order to establish the presence of injuries on their persons. It was quite possible for them to get themselves so examined because their arrest did not take place even if their assertion were to be accepted at face value, for at least a few days after the occurrence. No application was moved either for their examination when they were in police custody. The investi--gating officer Pervez Ahmad. P. W. 10, was not asked any question whether he had detained them for a number of days before showing their arrest in the record for the reason that their wounds should heal up in the meantime. Therefore, the view formulated by the learned trial Judge that the appellants had not sustained any injury cannot but he endorsed.
13. In the absence of proof of any injury having been caused by the deceased and the complainant to the appellants it is difficult to place reliance upon their story that they had been chased and that they had to act in the exercise of right of private defence of persons and property. 1t is in the prosecution evidence of the eye-witnesses that the appellants had caught hold of the weapons of offence which were lying in the tractor and used them for causing injuries to the deceased. There was nothing abnor--mal or unnatural in placing the weapons on the tractor. None of the requirements of section 100 or 103 of the Pakistan Penal Code was fulfilled in order to confer upon the appellants the right to cause death of the deceased in exercise of their right of private defence of body and property. The learned trial Judge was right in holding that the appellants exceeded the right of defence of property. Their conviction under sec--tion 304, Part I of the Pakistan Penal Code is in order and is maintained. No objection to the quantum of sentence was raised. The sentence awarded to them is kept intact. The appeal is dismissed.
14. As regards beating of the complainant Mahmood Ahmad, P. W. 5, Abid Hussain and Arif Hussain have not been held to have committed any offence because they did not exceed their right of defence of property. Therefore, the complainant is not entitled to receive any compensation. His revision petition is not maintainable and is dismissed. 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.