Muhammad Ali Sayeed, J.--Appellants Ghulain Haider, Rustam, Muhammad Bux, Habib and Muhammad son of Phog along with Palyo, Vali Muhammad, Nausher, Yacoob, and Muhammad son of Augera were tried by the learned Sessions Judge, Khairpur Mirs for offences under sections 147, 323, 324, 326 and 302 read with section 149, P. P. C. Ghulam Haider, Muhammad Bux alias Muhammad Hassan, Palyo and Rustam were further tried' for rioting while armed with deadly weapons under section 148, P. P. C. Accused Palyo, Vali Muhammad, Nausher and Muhammad son of Augera were acquitted while the present appellants were all convicted under sections 147, 302, 323 and 325 read with section 149, P. P. C. They were sentenced to transportation for life and to pay a fine of Rs. 500 each or in default to suffer R. I. for two years under section 302, P. P. C. They were further sentenced to suffer R. I. for a period of one month under section 323, P. P. C. and to undergo R. I. for one year and to a fine of Rs. 100 or in default R. I. for 3 months under section 325, P. P. C. Lastly they were sentenced to undergo R. I. for one year under section 147, P. P. C. The sentences were ordered to run concurrently.
2. The fight leading to the present case took place in survey No. 509 situated in Deh Mari, Taluka Faizganj. This land along with other survey numbers was originally evacuee property and was transferred by the settlement authorities to one Afzal Ali Shah. The land was being managed and looked after by his son and attorney Aijaz Ahmad (P. 14). The whole of this land had been given by Aijaz Ahmed to Haji Baji Bambhan (of the appellants party) on lease for sis crops, extending to Kharif 1963. It may be mentioned that a Kharif crop goes up to October of a year. However, in the year 1961 (on 30th of August 1961) Afzal Ali Shah entered into an agreement with Rustam Bumbhan (appellant son of Haji Baji whereby Rustam agreed to purchase the entire area of 125 acres for a consideration of Rs. 96,000. Afzal Ali Shah received Rs. 10,000 as earnest money. It was stipulated that the balance of consideration would be paid in six instalments. On 17th of January 1962, Afzal Ali Shah received a further consideration of Rs. 25,000 and by consent of the parties a sale deed was executed in respect of survey Nos. I6, 17, 18, 19, 23, 26 and 27, situated in Deh Jaffer Lashari in favour of Haji Baji and Palyo. It would appear that the original agreement for sale of the entire 125 acres had not been revoked and when the sale deed in respect of the above survey numbers was executed the parties did not intend to put an end to the original agreement. However, on 14th of July 1962, appellant Rustam wrote to Aijaz Ahmed asking for time to arrange for the money. On the 22nd of December 1962, the parties entered into new arrangement stipulating that the purchaser would pay the second instalment on 30-1-1963, the 3rd on 3-6-1963 and the 4th on 30-1-1964, the 5th on 30th June 1964, and the remaining amount in the 6th instalment. It was further agreed that if there was any default in the payment of instalments then the purchasers would take whatever amount they had actually paid for and in the latter case the first agreement would stand abrogated.
Notwithstanding the new arrangement the purchasers did not pay any money. In these circumstances Aijaz Ahmed warned the purchasers that the agreement in question would stand revoked unless the balance of the money was paid. On 24th of June 1963, Aijaz Ahmed was informed by the purchasers that they were not in a position to pay. In July 1963, they told Aijaz Ahmed that he might dispose of the land "on one side of the track". Accordingly on 8th of August 1963, Aijaz Ahmed sold survey No. 509 which is a disputed survey number along with others to the Lasharis (the complainant party) for a consideration of Rs. 45,000. According to him survery No. 509 was lying uncultivated at that time. Aijaz further states that he had handed over possession of the said survey numbers to the Lasharis and they ploughed it. It may be mentioned that the transaction of sale referred to by Aijaz Ahmed as having taken place on the 8th of August 1963, between himself and the Lasharis is actually an agreement of sale whereunder Aijaz Ahmed received only Rs. 45,000 as earnest money and the balance of the consideration being agreed to be paid in instalments. It is necessary to refer to this aspect because P. W. Aijaz Ahmed affirms in his deposition that he had given possession of the said land to the Lasharis and the contention before us is that possession would not ordinarily be given unless the major part of the total consideration had been received.
3. In the background of the above facts we would now come on to the events that took place on the 16th of September 1963 According to the F. I. R. lodged by Zawar Tagyal, a Lashari b caste, the disputed land had been purchased by his father Alla Dad, Gul son of Hamzo and deceased Soomar from Afzal A Shah and the sale deed thereof was to be executed and register on receipt of the full consideration. About 5 or 6 days prior to the lodging of the F. I. R. P. W. Tagyal accompanied by his father Allah Dad and his cousin Muhammad went to the lands purchased by them and were met thereby Palyo, Rustam and Baji. The complainant party informed them that they had purchased the lands from Afzal Ali Shah and demanded possession from the accused party. The accused party, however, declined to do so and Allah Dad father of Tagial went to Afzal Ali Shah to claim possession of the land. He was, however, informed by Afzal Ali Shah that he should take the possession from Baji and others and that Afzal Ali Shah would fully support them. Tagial's further version in the F. I. R. is that a day before the incident i.e. 15-9-1963 at sun-rise time deceased Soomar with his party went to Wadero Ilahibux and complained to him that Baji and others were not handing over possession of the land purchased by them. He was, however, told by Wadero Illabibux that Baji and others were powerful people. P. W. Tagial thereafter goes on to state in the F.
I. R. that on the 15th of September 1963, at sunset time he accompanied by his cousin (whose name is not disclosed), Samano Lashari, Sher Muhammad Lashari, Muhammad Lashari, Emon Lashari and his father Allah Dad gathered together and went to the disputed land. Deceased Soomar went with them carrying his licensed gun. They took building material with them and built a thatched shed and occupied the land and stayed there for the night. On the morning of 16-9-1963 after sun- rise Haji Bajhi Bambhan, Ghulain Haider Bambhan, Mohomed Hassan Bambhan and Kassim Bambhan, all of them armed with hatchets together with Palyo Bambhan and Rustam Bambhan armed with guns and also Jawan Bambhan, Habib Bambhan, Master Gulam, Master Ahmed Bambhan, Phog Bambhan, Mohd. Bambhan, Pero Bambhan, Wali Muhammad Bambhan who were armed with lathis, Haji Bambhan, Muhammad son of unknown Punjabi, Solat son of unknown Punjabi, were empty-handed, Nousher son of Khan Punjabi was armed with Bamboo "lathi", Yacoob son of Khan Punjabi who was armed with pickaxe, appeared at the shed previously built by the complainant party. Haji Baji is said to have questioned the complainant party as to why they were present at the land in question and also about the shed that they had built Allah Dad explained to them that they had purchased the land. On this Haji Baji instigated the others upon which Palyo Bambhan fired a gun shot which hit Soomar and fell him down. Appellant Ghulain Haider is said to have given a sharp-sided hatchet blow to Tagial's brother Ahmed. Muhammad Hassan gave hatchet blow to Gul and Rustam fired a gunshot which hit Muhammad Lashari. Haji Baji gave a hatchet blow to Samano which struck him on his head. In the fight that ensued complainant Tagial also admitted having received hatchet and lathi injuries on his person. The cries raised by the complainant party brought forth Tagio Khaskheli, Ali Nawaz Lashari, Rahim Lashari and Ghulam Mirjat. The accused persons thereafter withdrew to their houses with their weapons carrying away with themselves the gun of Soomar which had fallen. Soomar is said to have died due to the gunshot wounds. The complainant states that he narrated the above facts to Wadero Kaiser Khan and upon his advice he lodged his F. I. R. at Faiz Ganj Police Station. The F. I. R. was recorded by Sub- Inspector Imambux who was the S. H. O. of the Police Station. He has been examined as P. W.
17. At about the same time one Ayub from the accused party also lodged his F. I. R. which was recorded by the same officer. In the latter F. I. R. the case set up by the accused was that the land in dispute was in possession of appellant Rustam son of Haji Baji ever since the Hindus had left it about I6 years back, and was in their cultivation. It was contended that on the day of the incident the accused party had noticed that a new manah (shed) had been built to the west of their own manah and upon proceeding thence to investigate they found about 24 persons of the complainant party present in the manah. Soomar had a gun iti his hand and the others had lathis.
Appellant Rustam questioned Allah Dad as to how they happened to construct the manah on their land. Allah Dad replied that the land had been sold by Afzal Ali Shah to them. Rustam contended that the land was theirs and they (Allah Dad) could go and fetch Afzal Ali Shah so that the dispute may be settled in his presence. Allah Dad refused to do so whereupon the accused persons returned to their manah. After a while Allah Dad and 23 others armed with a gun, lathis, and hatchets came to the manah of the accused party and attacked them and pulled down the fence which surrounded their manah. In the altercation that ensued Soomar Lashari is said to have fired a gunshot at Rustam which struck him in his eyes while Tagio Lashari gave a hatchet blow to Rustam. Gul Lashari gave a hatchet blow to Haji Baji on his head and Samano gave hatchet blows to Muhammad. Others are said to have come on the cries raised by them whereafter the assailants withdrew.
4. Reverting now to the present case the prosecution examined 8 persons who claimed to be the eye-witnesses of the incident. All of them have injuries on their person. These eyewitnesses are Tagyal (P. W. 4), Samano (P. W. 5), Gul Muhammad (P. W. 7), Ahmed Khan (P. W. 8), Muhammad (P.
W. 9), Sher Muhammad (P. W. 10), Allah Dad (P. W. 11) and Zawar Pago (P.W.12). The prosecution has further sought to support the statement of the eye-witnesses by evidence of production of the weapons of offence by the accused persons. The fact of the prosecution witnesses being in possession of the land in dispute is claimed to have been proved by the evidence of Aijaz Ahmed, the son and attorney of Afzal Ali Shah (P. W. 14).
5. The learned Sessions Judge has totally rejected tin evidence of all the eye-witnesses holding that they had allowei their integrity to be compromised by departing in a material wa from their original versions. His rejection of the accounts give by the eye-witnesses is further influenced by the fact that all th eye-witnesses were Lashari by caste and inter-related as als vitally interested in the subject of the dispute.
6. As regards the production of the weapons of offence evt this evidence has been totally discarded by the learned Sessio Judge, and we think, rightly so, because the mashirnama recovery itself does not attribute the production of the individual weapon to particular accused persons. We have ourselves read the mashirnama. It sets out first the names of all the accused persons and says that they produced the hatchets, lathis and a licensed gun which stood in the name of Haji Baji, through Rais Ilahi Bux who declared that these were the weapons which were used by the above-mentioned accused at the time of committing the crime. In his deposition in Court, mashir Gul Hasan, who was examined as P. W. 3, affirmed that none of the accused produced any weapon.
7. In the above circumstances we ourselves are of the opinion that the evidence of the alleged production of weapons by the accused persons is not of a nature on which any reliance could be placed as incriminating against the accused persons.
8. After having rejected the ocular testimony of all the eyewitnesses as well as the evidence of production of the weapons of offence the learned Sessions Judge nonetheless proceeded to convict the appellants wholly upon the finding that the prosecution witnesses represented by P. W.
Allah Dad had acquired proprietary rights in respect of the land whereon the fight had taken place.
We are not at all happy with this approach of the learned Sessions Judge, particularly so, when he appears to have been conscious of the fact that the land in dispute had been on lease for the previous 6 years with the accused party, the period whereof was to expire with Kharif, October 1963.
The intriguing question is as to how the prosecution witnesses were found in possession of the 'manaK in the disputed land in the absence of any positive evidence of their having been inducted into possession. The learned counsel for the State contended that P. W. Aijaz Ahmed had admitted in his evidence to have put the complainant party into possession of the lands sold by them. We, however, find it difficult to believe this part of the evidence. Admittedly Aijaz Ahmed, the seller, had received from the complainant party hardly 10% of the total sale consideration on the date when the agreement to sell was entered into. A substantial part of the total consideration remained yet to be paid and there was no recital in the agreement of sale that possession of the disputed land was intended to be handed over immediately or at any time before the full consideration was received. On the other hand the lease of the land in favour of appellant Rustam had not yet come to an end on the day when the possession was allegedly handed-over to the complainant party.
The anxiety of Aijaz Ahmed to support the case of the complainant party is not difficult to perceive.
The accused party had kept him on promises of purchasing the disputed land and even succeeded in persuading him to agree to a revised schedule of payment by instalments. After all the trouble that Aijaz Ahmad had been through, the accused party turned a cold shoulder and had pleaded their inability to complete the sale for want of funds. It was obviously in disgust that Aijaz Ahmed decided to sell the lands to the com- lainant party and did not wish to frustrate even this transaction y deposing against the complainant party.
9. The other feature which has impressed us is that when the scene of occurrence was inspected by the police party soon after the incident, it was found to contain Jawar cultivation. The agreement to sell between Aijaz Ahmed and the complainant party was entered into only on the 8th of August 1963. It is difficult to imagine that within this short period of time the land, which according to Aijaz Ahmed was uncultivated at the time of the agreement to sell, could be found to have Jawar cultivation. All these facts lead us to believe that although the agreement to sell had been entered into between Aijaz Ahmed and the complainant party on the 8th of August 1963, yet possession of the disputed land had not been handed-over to them as on the date when the incident occurred. This analysis finds full support from the contradictions proved in the deposition of Zawar Tagial (P. W. 4), the first informant in the case. In the F. I. R. lodged by him Zawar had stated that 5 or 6 days after the purchase of the subject land, he, Allah Dad, and Gul Muhammad had gone to the land and found Palyo, Rustam and Baji (the accused party) on it. He further claimed to have informed them about the purchase of the land from Afzal Ali Shah and asked them to hand-over possession of it which they refused. He further mentioned in the F. I. R. that on being refused possession his father Allah Dad went to Afzal Ali Shah for claiming possession and was informed by the latter that he should take possession from Haji Baji and others. His case in the F. I. R. was that the prosecution witnesses were all in the manah built by them when the accused party came to attack them. This part of the case has been given a convenient go-by by not only Tagial but by the other P. Ws. when they were examined in the Court. According to their version given in the Court some of the prosecution witnesses were engaged in grazing cattle while others were engaged in cutting bushes and a few in ploughing the land immediately before the fight took place. The object of this innovation in the prosecution case is not difficult to perceive. The defence version was that the prosecution witnesses had unlawfully trespassed on the land in their possession during the preceding night and had built a kutcha Landhi there. This was discovered by them in the morning, while they were on their lease lands. When they called at the landhi they found all the prosecution witnesses inside it fully armed. The case set up by Zawar Tagial in the F. I.
R. lodged by him fully corroborates this version. It was, therefore, necessary to adopt a wholly different course with the result that each one of the prosecution witnesses was assigned an innocent role at the time when the accused party made their appearance on the disputed lands. It was precisely the same reason which appears to have impelled the prosecution witnesses to make it appear that Zawar Tagial was at the crucial time seated on a pehi far away and not involved in the fight itself. The evidence, however, shows that he was as much a busy body as the other prosecution witnesses were, as shown by the injuries on hi person.
10. A further significant feature of this case is that accord ing to the prosecution witnesses the fight was started by accuse Palio (since acquitted) by firing a gunshot in the air. If indee 1=72] the intention of the accused party was to resort to aggression, we hardly can imagine that the first shot would have been fired in the air. This feature, we feel, is more consistent with the fact that the attempt on the part of the accused persons was to scare away the prosecution witnesses.
Moreover both the gunshot injuries received by two prosecution witnesses in this case were on their legs. The hypothesis which suggests itself is that the attempt was not initially to kill but either to frighten away the prosecution witnesses or to disable them. In the context of our considered opinion that the disputed land continued to remain in the posses- sion of the accused party the foregoing features of the fight that took place strengthens us in our belief that the accused party was not the aggressor in the case and in any event there seems to be little evidence to establish in a reasonably conclusive way that they were indeed the aggressors.
11. In their statements under section 342, Cr. P. C. the appellants generally set up a plea that the land in dispute had been in their possession and that the complainant party wanted to take-over possession of the said land forcibly and assaulted the accused persons, in which process they (the P. Ws.) gave blows to them as well as to Haji Baji who actually died in the hospital. It is true that the accused party received numerous injuries and according to the learned Sessions Judge himself "the accused party has received more grievous injuries than the complainant party. But this does not change the position because the incident took place near the Landhi of the complainant party". One conclusion which we feel pursuaded to draw from the above facts is that the complainant party were fully armed and were able to use their weapons with advantage on the accused persons. Judging from all the circumstances we feel inclined to hold that the accused persons were constrained to cause the injuries in question in exercise of their right of private defence.
12. Even assuming that the parties in this case have not generally come out with a true story and that both the parties went to enforce their right or supposed right in the disputed land and for this purpose had armed themselves in full expectation of an armed conflict, we would imagine that such a case would be covered by the decision of the Supreme Court in Ghulam Haider v. The State (1). Even in that case there was one death and injuries to several persons on either side. It was held by the Supreme Court that proper weight should have been given to the tally of injuries and that approximate equality of injuries indicated a clash between two equally armed and prepared parties and in such cases the offence of each participant consequently should be punished in law on proof of individual injuries caused by him, there being no proof of constructive liability."
13. Applying the above principle to the present case, according to the prosecution witnesses the death of Soomar was caused by the gunshot fired by Palio, since acquitted. In actual fact, however, it was found that Soomar had succumbed to hatchet injuries and that the gunshot attributed to Palio was only on the [7] skin bone. Similarly in respect of Rustam there is any amount of contradiction with regard to the nature of weapon he carried. There is little cogent and consistent evidence in relation to the parts played by the other accused persons and as many as 5 out of 10 have been acquitted by the learned Sessions Judge himself. On the other hand and as observed earlier, one person from the accused party, namely, Haji Baji, was killed in the affray and according to the learned Sessions Judge the injuries on the persons of the accused party were more grievous than on the complainant party. It is impossible in the state of the evidence on record to fix with any degree of precision the part played by each of the accused persons in the case.
14. For the reasons given above, we would allow the appeal and acquit all the appellants. The appellants are stated to be on bail. Their bail bonds are discharged. .