' MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No, 83/1983, connected Murder Reference No, 17 of 1983 and Criminal Revision No, 293/1983 filed by Muhammad Yousaf complainant against the acquittal of co-accused arise from the judgment of the learned Additional Sessions Judge, Jhang, whereby he on 22-1-1983 while acquitting Mali, Falik Sher and Lala co-accused convicted Muhammad alias Mumman aged 30/32 years and sentenced him as under:--
(i) Under section 302, P.P.C. For causing death of Muhammad Abdullah and sentenced him to death and a fine of Rs,5,000 in default thereof six months' R.I. He also awarded compensation of Rs,5,000 in default thereof six months' R.I. To be paid to the legal heirs of the deceased;
(ii) Under section 323, P.P.C. For causing hurt to Sher Muhammad P.W. 8 and sentenced him to one year's R.I. And a fine of Rs,1,000 in default thereof three months' R.I. With the direction that when the fine is recovered be paid to Sher Muhammad P.W.
2. The occurrence took place on 17-11-1981 at Peshiwela in Killa No, 22 Square No, 55 of Kot Lala Police Station Barana. The distance between the Police Station and the place of occurrence is 131 miles. The F.I.R. Is the statement Exh.P.A. Of Muhammad Yousaf P.W. 7 recorded in Civil Hospital, Lalian by Muhammad Ibrahim S.H.O. P.W. 6 on the same day at 7-20 p.m. The formal F.I.R. Is Exh.P.A./1 drawn up by Safdar An Moharrir Head Constable P.W. 1 at Police Station Barana on the same day at 8-15 p.m.
3. The motive as alleged by the prosecution was that on the fateful day at 10-00 a.m., Lala co- accused brought 10/11 buffaloes for grazing in the land of Muhammad Yousaf complainant who told him to take away his buffaloes. Lala co-accused took ill of it. He took away buffaloes saying that the complainant should not pass his cattle through his land which was adjacent to the land of the complainant.
4. As for the main occurrence, it has been stated that at about Peshiwela on the day of occurrence, Muhammad Abdullah deceased and Muhammad Yousaf complainant was cutting paddy in his field. Sher Muhammad was bringing his cattle towards the same field when the cattle of Sher Muhammad passed through the vacant field of Lala co-accused, then Lala, Mali and Falik Sher brothers inter se alongwith Muhammad alias Mumman their nephew reached near Sher Muhammad. They were also cutting paddy crop nearby. They abused Sher Muhammad, raised Lalkara as to why he was passing his cattle through their land. Muhammad alias Mumman appellant, Mali and Sher Muhammad gave Sota blows on the head, left elbow and back of the chest of Sher Muhammad, respectively. In the meantime, Muhammad Abdullah deceased intervened to save Sher Muhammad. Lala co-accused gave Sota blow on his left shoulder.
Muhammad alias Mumman appellant gave Sota blow on his head on which he fell down and fainted. In the meantime Saleh Muhammad also reached the spot. On his entreating, the appellant and co-accused stopped from causing further injuries and went away to their houses.
5. After the occurrence, Ghulam Muhammad and Noor Muhammad came to the spot on learning about the occurrence. Abdullah and Sher Muhammad were removed to Lalian Hospital. On the statement of Muhammad Yousaf case under section 307/34, P.P.C. Was registered. Since Muhammad Abdullah died in the hospital on the same night at 8-30 p.m., therefore, section 307/34, P.P.C. Was converted to section 302/34, P.P.C.
6. On 17-11-1981 at 7-30 p.m. Dr. Muhammad Abdullah Shah Hashmi had examined Muhammad Abdullah in injured condition. He found a lacerated wound 3" x I" x bone deep on the top of the scalp and a contusion 4" x 1" on the left shoulder. The patient was unconscious having feeble pulse, pupils constricted; B.P. Was 90 x 50. The lacerated wound on the head was found dangerous to life.
The injuries were inflicted by blunt weapon within the duration of 4 to 6 hours. Abdullal succumbed to the injuries at 8-30 p.m. On the same day. The doctor therefore, conducted post-mortem on his dead body and found following injuries:--
(i) A lacerated wound 3" x 1/4" x bone deep on the top of the scalp.
(ii) A contusion 4" x 1" on the left shoulder.
(iii) Skull was found fractured on the left side of the top of the scalp, sub-dural haeamatoms (large size) was seen at the site of injury No, 1, spinal cord was not opened. Nothing abnorma was found in thorax. All the abdominal viscera were healthy stomach contained only 4 ounces of fluid. Probable time between injuries and death was 4 to 6 hours and between death any P.M. Examination was 10 to 12 hours.
' In his opinion death was due to shock and intercranial haemorrhage a a result of injury No, 1 which was sufficient to cause death in the ordinary course of nature. Injury No, 2 was found simple. On 17- 1-1981 doctor had also examined Sher Muhammad P.W.
8. He found a lacerated wound 2" x 1/4" x bone deep on the front of the scalp and two contusions m the left forearms and back of chest, respectively. The injuries were caused by blunt weapons and were simple in nature.
7 The appellant was arrested on 20-4-1981 by Muhammad Ibrahim S.H.O P.W.
6. He produced Sota P. 4 which was taken into possession vide memo. P.H. Attested by Jiwan P.W. 5 and Barkhurdar (not produced). The recovery memo. Was prepared by Muhammad Ibrahim P.W.
6.
8 To prove its case, the prosecution examined 8 witnesses. Muhammad Yousaf P.W. 7 and Sher Muhammad P.W. 8 gave the ocular iccount of the occurrence. They supported the prosecution case as letailed above. Muhammad Yousaf P.W. 7 stated that he along with Abdullah deceased were cutting paddy crop. Lala co-accused came there long with his cattle and started grazing his cattle in his (witness) )eddy field from which paddy crop had already been cut. Lala co-accused vas asked to drive away cattle. On this Lala became annoyed. He took way his cattle threatening that he would also not allow them to pass their cattle through his land. On the same day at Peshiwala he and Abdullah were cutting paddy crop, Sher Muhammad P.W. Brought cattle of the paddy field for grazing. When the cattle were passing through the way in between Killa Nos. 21 and 22 of Square No, 56, the appellant and the acquitted four accused duly armed with Sotas came there. They abused Sher Muhammad and attacked him. Mumman inflicted Sota blow on the head of Sher Muhammad, Mali inflicted Sota blow hitting its arm, Falik Sher inflicted a Sota blow hitting the back of his chest. Ie and Abdullah deceased then rushed to the spot to rescue Sher Muhammad. Lala co-accused inflicted Sota blow hitting the left shoulder of Abdullah. Muhammad alias Mamman appellant gave Sota blow on his Lead. Abdullah fell down. In the meantime Saleh came there. He entreated the accused/appellant and others not to cause further injuries. The appellant and others then left for their houses carrying Sotas with them. Sher Muhammad supported the complainant on all material particulars. Jiwan P.W. 5 and Muhammad Ibrahim P.W. 6 supported the recovery of Sota P. 4 not (blood-stained) from the appellant. It may the noted here that Sota being not stained with blood, its recovery from the appellant is of no consequence. The rest of evidence is almost formal nature.
9When examined under section 342, Cr.P.C. The appellant denied the incriminating circumstances.
While admitting to have caused the death of Abdullah and injury to Sher Muhammad P.W., he raised plea self-defence of person and property. In reply to the question "Had a anything else to say?" he stated:-- "I am innocent. The cattle of the complainant party trespassed into our standing crop and damaged the same. I rounded up the cattle for taking them to the cattle pound, but Abdullah and Sher Muhammad while armed with Sotas assaulted me and tried to snatch the cattle. They exchanged abuses with me. In the heat of passion and self-defence of person and property, I inflicted Soti blow to Abdullah and Sher Muhammad. The remaining accused were not present there." did not lead any evidence in defence.
10. The learned trial Judge has partly believed the defence version and partly disbelieved the prosecution case. He acquitted Lala, Mali and Falik Sher co-accused by giving them the benefit of doubt. He has believed the defence version to the extent that the cattle of Sher Muhammad had trespassed into the paddy crop of Mamman and damaged the same. The remaining part of the defence story was rejected by him. In paras. Nos. 17 and 18 of the judgment he has stated:- "the version of Mamman that he rounded up the cattle but Muhammad Abdullah and Sher Muhammad tried to snatch the same from him is not entitled to any credit, because generally stray cattle are taken to the cattle pound and when the cattle being driven by the owner trespass into the field, he is held responsible for the trespass committed by the cattle and is punished for his default. In the present case, Sher Muhammad was driving the cattle which trespassed into the field of Mamman, therefore, Mamman would have taken action against him instead of taking the cattle to the cattle pound."
' In para. No, 19 of its judgment, he has stated:- "I am of the opinion that the cattle being driven by Sher Muhammad trespassed into the paddy crop of Mamman and damaged the same and he abused him and he abused him in return whereupon Mamman inflicted four Lathi blows to him and when Muhammad Abdullah came to the spot to rescue, him, he inflicted two Lathi blows to him also. Therefore, the defence plea taken by Mamman accused is not reasonably possible."
' In para. No, 13, the learned trial Judge has observed that:- "That the version given by Muhammad Yousaf that they forbade Lala from grazing his cattle in their field is not acceptable."
' It is thus very much obvious that the trial Court has virtually disbelieved motive part of the prosecution case, participation of three co-accused and the manner of the occurrence, as alleged by the prosecution. It has held the appellant alone responsible for causing death of the deceased and injuries to the P.Ws.
11. The learned counsel for the appellant claiming right of self-defence of property, mainly submitted that there is a reasonable possibility that the confessional statement made by the appellant under section 342, Cr.P.C. Might be true to the extent of the exercise of the right of self- defence of property. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant contended that the prosecution has successfully brought home the guilt not only to the appellant but also to the three acquitted co-accused.
12. We have considered the arguments advanced by the learned counsel for the parties with care.
We find that it was a case of two versions and that the trial Court has not appreciated the same in accordance with the guiding principles laid down by the superior Courts for the appreciation of the evidence in such like cases. The trial Court should have examined the two rival cases placing in juxtaposition and reviewed prosecution evidence, statements of the appellant and co-accused and all surrounding circumstances at a close, to arrive at a conclusion regarding the truth or falsity of defence plea and should have estimated its total effect in relation to two questions: (i) Is the plea of the appellant satisfactorily established by the evidence and circumstances appearing in the case? (ii) If the answer be in the negative, is there yet a reasonable possibility that the plea raised by the appellant might be true so as to cast a reasonable doubt upon the prosecution case?
Having appreciated the instant case in accordance with the guiding principles laid down by the superior Courts for the appreciation of evidence in case of two versions, we find that the time of occurrence, the place of occurrence, the presence of the deceased, the presence of Sher Muhammad P.W., the presence of Muhammad alias Mamman appellant and the fact that the deceased Muhammad Abdullah and P.W. Sher Muhammad received injuries during the occurrence, are the admitted facts of the case. Sher Muhammad's presence is also proved by the fact of injuries on his person. Muhammad Yousaf cultivates land near the place of occurrence. He has given plausible cause of his presence on the spot. The occurrence having taken place at Peshiwela and the parties being neighbourers, there was no difficulty in the identification of the offenders, so their testimony cannot be discarded as a whole. Had we excluded their statements in toto out of consideration, then we would have accepted the confessional statement of the appellant in its entirety. It is also well-known that in cases of two versions, the parties do try to minimise the part played by them and try to blame E each other of aggression and sometimes the number of the accused is also exaggerated. Since there was no independent corroboration to connect the three co-accused with the crime, no exception can be taken to the acquittal of the co- accused. As far Muhammad alias Mamman, F the appellant, he of his own admission stands connected with the death of the deceased and injuries to Sher Muhammad P.W. The crucial questions for determination therefore are, as formulated earlier. Coming to the first question, we find that the appellant has failed to establish through direct evidence that when he rounded up the cattle for taking them to cattle pound, Abdullah and Sher Muhammad tried to snatch the same. So our answer to the first question is in the negative. Adverting to question No, (ii), we feel that in the circumstances of the case, there is a reasonable possibility that the exculpatory part of the statement of the appellant to the extent of his rounding up the cattle for taking them to the cattle pound and snatching of the cattle by Abdullah deceased and Sher Muhammad, might be true. In the F.I.R. it has been stated that when Sher Muhammad P.W. Was passing his cattle through vacant land, Muhammad appellant and his three co-accused duly armed with Sotas came there. They absused and opened attack on Sher Muhammad. Amir Ali Patwari P.W. 3 who had visited the spot on the 11th day of the occurrence, has stated that the occurrence took place in Killa 22 of Square 55 which was owned and occupied by the appellant. He stated:-- "I visited the place of occurrence. Paddy crop was standing in an area measuring one Kanal of Killa 22 of Square No, 55 and the remaining paddy crop had been cut and stocked in that Killa. Paddy crop belonged to the accused." The trial Court has also found that the cattle being driven by Sher Muhammad P.W. Had trespassed into the fields and damaged the same. That being an established position, we do not see any reason which may make the remaining part of the statement of the appellant that he rounded up the cattle for taking them to the cattle pound improbable or false because in the natural course of events, he would have rounded up the cattle for taking them to the cattle pound. His further statement that the deceased and Sher Muhammad P.W. Who admittedly were the owners of the cattle had tried to snatch the cattle, also does not run counter to the natural probabilities. The trial Court's observations that:-- "In the present case, Sher Muhammad was driving the cattle which trespassed into the fields of Mamman, therefore Mamman would have taken action against him instead of taking the cattle to the cattle pound." are quite flimsy and unreasonable inasmuch as the seizing of the cattle was also an action against the owners of the cattle. For all these reasons, we are convinced that there is a reasonable possibility that when the appellant rounded up the cattle to take them to the cattle pound, the deceased and Sher Muhammad had tried to snatch away the same. As far the statement of the appellant that the deceased and Sher Muhammad were, duly armed at that time and had assaulted on him we find that the possibility of their carrying weapons is two remote. Had they launched assault on the appellant duly armed then the latter would have received injuries and as such there is no reasonable possibility of the correctness of this part of his statement and this negates the existence of the right of self-defence of person.
13. This brings us to the nature of offence committed by the appellant. Since under section 10/24 of the Cattle Trespass Act, the appellant, who was the owner/cultivator of the paddy crop damaged by the cattle of the deceased party, was legally authorised to seize cattle and any attempt by the deceased and Sher Muhammad to snatch away J the cattle or remove them from the possession of the appellant, tantamounts to theft punishable under section 379, P.P.C., therefore, under section 105, P.P.C., right of the defence of property had accrued to the appellant to the extent of causing injuries other than death. The appellant while causing the death of Muhammad Abdullah which he was not legally authorised to cause, has exceeded the right of self-defence of property. His act therefore falls within the ambit of section 304, Part-I, P.P.C. So far as the injuries caused by him to Sher Muhammad P.W. Are concerned, he was well within his right to cause that harm to him and as such by giving injuries which were found on the person of Sher Muhammad, the appellant had committed no offence.
14. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant under section 302, P.P.C. For causing the death of Muhammad Abdullah and under section 323, P.P.C. For causing hurt to Sher Muhammad, we acquit him L of the charge under section 323, P.P.C. And alter his conviction under section 302, P.P.C. To 304. Part-I, P.P.C. And sentence him to ten years' R.I. And a fine of Rs,5,000 in default thereof one year's R.I. He shall also pay Rs, 5,000 as compensation to the legal heirs of the deceased, in default thereof further S.I. For six months. He shall however get the benefit of the provisions of section 382-B, Cr.P.C. The connected revision is resultantly dismissed.
' THE DEATH SENTENCE IS NOT CONFIRMED.