Muhammad Munir Farukee, J.--Muhammad Buta son of Nawab, Allah Ditta, Ghulain Rasul sons of Nawab and Ghulam Haider son of Rehmat Khan were tried along with Sardar Ali, Ghulam Rasul sons of Hayat and Abdul Ghani son of Muhammad Husain by the learned Additional Sessions Judge, Gujrat, on charges under sections 148-302/149, 326/149 and 325/ 149 of the Pakistan Penal Code for having committed the murder of Ata Muhammad and caused grievous and simple injuries with sharp and blunt weapons (as detailed below) to Khurshid Ahmad (P. W. 6), Mubashir Ahmad (P. W. 7) and Allah Ditta (given up P. W.) in prosecution of the common object of an unlawful assembly formed by them while armed with deadly weapons like swords and sticks on the 21st of November 1966, at about 3 p.m., in the field of aforesaid Ata Muhammad in village Dhirke Kalan, Police Station Gujrat. The learned trial Judge giving benefit of doubt to Sardar Ali, Ghulam Rasul and Abdul Ghani, acquitted them and finding the four appellants guilty convicted and sentenced them as under :-- Allah Ditta son of Nawab : Death under section 302/34, P. P. C. Rigorous imprison ment for two years under sec tion 326/34, P. P. C. Rigorous imprisonment for one year under section 325/34, P. P. C. with a direction that if the sen tence of death is commuted to any term of imprisonment then all the sentences of imprison ment shall run concurrently with each other.
Ghulam Rasul, ") Transportation for life under Muhammad Buta y section 302/34, P. P. C. each.
Ghulam Haider j Rigorous imprisonment for two years under section 326/34, P.P. C. each. Rigorous imprisonment for one year under section 325/ 34, P. P. C. each with a direc tion that all these sentences shall run concurrently.
They have questioned the correctness of their conviction by an appeal while the record is also before us on a reference under section 374 of the Criminal Procedure Code and both these matters are being disposed of by this judgment.
(2) The occurrence culminating in the death of Ata Muhammad deceased and injuries to Khurshid Ahmad and Mubashir Ahmad P. Ws. has its origin in a dispute about the occupation of the land in Khasra No. 2786/1934 situate in the revenue estate of village Dhirke Kalan, Tehsiland District Gujrat, hereinafter referred to as the field in dispute.
3. The prosecution case in brief is that the field in dispute measuring one and a quarter kanal owned by Hayat son of Khan Muhammad was adjacent to the land of Ata Muhammad deceased but it was being cultivated on batai by Muhammad Buta appel lant, a nephew of said Hayat. Muhammad Buta did not honour his commitment and on being so deprived of the share of produce his uncle Hayat made it over to Ata Muhammad deceased five or six days before the present occurrence. Ata Muhammad deceased started tethering his cattle there, which annoyed Muhammad Buta appellant. He along with Ghulam Rasul, Allah Ditta sons of Nawab, Sardar Ali, Ghulam Rasul sons of Hayat went over to that land and untcthered the cattle of Ata Muhammad deceased proclaiming that he would not petmit anyone else to cultivate this field. Mubashir Ahmad (P. W. 7) was alone present at that time, so he could offer no resistence. On coming to know of it Ata Muhammad deceased in retaliation told Muhammad Buta appellant not to pass through his land while going to his fields, but he did not take any serious notice of this warning. On the eventful day Ata Muhammad deceased his sons Khurshid Ahmad and Mubashir Ahmad P. Ws. along with Allah Ditta son of Muhammad Khan (given up P. W.) were present in their field marked 'D' in site plan (Exh. P. J.) at about 3 p.m. when Muhammad Buta appellant was found passing through that field, so Ata Muhammad deceased reprimanded him telling him to refrain from trespassing on his land in that manner. Muhammad Buta appellant went back to the village and after about half an hour he reappeared on the scene along with Allah Ditta, Ghulam Rasul sons of Nawab, Ghulam Haider son of Rehmat Khan, appellants and Sardar Ali, Ghulam Rasul sons q.f Hayat and Abdul Ghani son of Muhammad Husain (the acquitted accused). Allah Ditta appellant and Ghulam Rasul son of Hayat (acquitted accused) were carrying sticks while the others were armed with swords. All of them raising lalkaras that they would a teach them a lesson attacked Ata Muhammad deceased and his companions.
Muhammad Buta, Ghulam Haider and Ghulam Rasul appellants fell upon Khurshid Ahmad P. W.
They were armed with swords and inflicted a blow each on him. Khurshid Ahmad P. W. warded of the blows on his hands. Ghulam Rasul son of Hayat (acquitted accused) gave a stick blow on his head. Sardar Ali and Abdul Ghani (acquitted accused) dealt with Mubashir Ahmad P. W. causing injuries to him with swords. They were joined by Allah Ditta (given up P. W.) Ghulam Rasul son of Hayat (appellant) gave him stick blows. Allah Ditta son pf Nawab appellant then attacked Ata Muhammad deceased and planted two lathi blows on his head which fell him on the ground and as a result became unconscious. Khurshid Ahmad and Mubashir Ahmad P. Ws. picked up a stick each from their field and caused injuries to Ghulam Rasul and Ghulam Haider appel lants in self- defence. Allah Ditta son of Muhammad Khan, Allah Ditta son of Muhammad Qasim, Muhammad Akhtar son of Gul Muhammad, Hassan Muhammad son of Muhammad Bakhsh were present and separated the parties. The last mentioned was added by Mubashir Ahmad P. W. Thereafter appellants and their companions went away from the spot. Khurshid Ahmad, Mubashir Ahmad P.
Ws. Allah Ditta son of Muhammad Khan and others carried Ata Muhammad deceased in a tonga to Civil Hospital, Gujrat, where Dr. Taraq Rashid Toosi (P, W. 1) examined their injuries.
He examined Ata Muhammad and found the following injuries (while he was still alive) on his person :--
(1) Lacerated wound over the head situated 5" above the top of right ear, i.e., x " x bone deep,
(2) Contusion over the* scalp on right side 3" in front of injury No. 1 that is 1 J" x J" around this is an area of swelling, i.e., 3"x2".
He examined Khurshid Ahmad P--W. oil 21st November 1966, at 7-15 p.m., and found the following injuries on his person :--
(1) Incised wound over the back of left thumb, i.e., 1" x l/3"x 1/3".
(2) Incised wound over the back of right index linger, i.e.,
(3) Incised wound over the back of right middle finger, i.e. r x r x
(4) Lacerated wound over the interior part of middle of scalp, i.e., 1Y x J" x 1/6".
(5) Incised wound over the palmar surface of distal middle .phalynx.
Injuries Nos. 1, 2, 3 and 5 were caused with sharp-edged weapon while No. 4 was with blunt weapon.
On the same day at 8-45 p.m., he examined Mubashir Ahmad P. W. and found the following injuries on his person :--
(1) Incised wound over scalp situated 4" above the top of right ear, i.e., 2|"xi"x bone deep.
(2) Abrasion over the back and root of right thumb 1/3''x 1/3''.
(3) Abrasion over the back of root of right index linger, i.e., i" x i/3".
(4) Abrasion over the upper half of the front of right forearm. Le,,\"xY.
(5) Contusion over the back of lower one-third of right arm, i. e., 3'xl'.
(6) Contusion over the back of left scapula 2|" x
(7) Contusion on the back of upper half of left arm, i.e. 2" x i".
(8) Incised wound over the back of elbow-joint. The joint was open and tipper end of left ulna had been cut posteriorly as well as lower end of left humerous was also cut lasterly.
(9) Incised wound over the upper part of front of nose. The bridge of the nose on the adjoining left side had been broken, i.e.,\Yx3l^x3l4f Injuries Nos. 8 and 9 were grievous while the rest were simple. Injuries Nos. 1, 8 and 9 were caused with sharp-edged weapon while the rest with blunt weapon.
On the same day at 7 p.m., the doctor examined Allah Ditta son of Muhammad Khan and found the following injuries on his person :--
(1) Contusion over the front of left shoulder 2"x
(2) Lacerated wound, i.e. * x Y x situated over the upper lip more towards the right side of middle.
(3) Right upper incisor tooth was not in socket, the socket was full of blood while the other incisor tooth was shaky and painful on moving.
Injuries Nos. 1 and 2 were simple, while No. 3 was grievous and had been caused with blunt weapon.
Khurshid Ahmad P. W. taking the medico-legal reports then went to Police Station Sadar, Gujrat and lodged report Exh. P. A. about this occurrence at 10-30 p.m. on the same night.
3. Ch. Nabi Bakhsh, Station House Officer (P. W. 9) after registering the present case against the appellants and their com panions on the basis of the above report got removed blood stained chadar (P. 1) from the person of Khurshid Ahmed P. W. and took it into possession vide Exh. P. E. He then went to the hospital for the investigation of the case where he recorded the statement of Mubashir Ahmed P. W. and also took into possession his blood-stained shirt (P. 4) and blood- stained jarsi (P. 5) vide Exh. P. F. As Ata Muhammad was unconscious and unfit to make a statement according to the report Exh. P. K/l of the doctor on his query Exh. P. K., his statement could not be recorded at that time. The Sub-Inspector then proceeded to village Dhirke Kalan reaching there in the early hours of the next morning. On inspection of the spot he took into possession blood-stained earth vide memo. Exh. P. O. and sealed it into a parcel and investigated the case for the whole day. On the next day, i.e. 23rd November 1966, he received an intimation from the doctor vide Exh. P. L. that Ata Muhammad had succumbed to his injuries at 10-30 a.m. on that day. He went back to the hospital and prepared injury statement Exh. P. M. and inquest report Exh. P. N. relating to the dead body and despatched it to the mortuary under the escort of Foot Constable Qadir (P. W.
3), where Dr. Taraq Rashid Toosi P. W. on the same day held autopsy over it and vide Exh. P. R. found the following injuries :--
(1) Lacerated wound over the head situated 5" above the top of right ear, i.e., 1 x 1 /3" x bone deep.
(2) Contusion over the scalp on right side 3" in front of injury No. 1, i.e. l|"x V. Around this was an area of swelling, Le. 51" x 3".
Scalp was injured, dark coloured coagulated blood collected under the scalp. There was depressed fracture of right temporal bone and depressed fracture of right parietal bone and disarticulation between frontal bones.
Membranes were torn and congested, brain was congested and lacerated in the temporal bone.
All the rest of the organs were healthy. Stomach contained 3 ozs. of partly digested food in liquid condition.
Cause of death was fracture of skull and laceration of brain with haemorrhage. These injuries were sufficient to cause death of the deceased and were inflicted with blunt weapon. These were ante- mortem. Time between injury and death was 36-48 hours and between death and post-mortem 4 to 5 hours.
4. Ghulam Qadir Foot Constable P. W. brought back the last wearing apparels of Ata Muhammad deceased (Chadar (P. 6),jarsi (P. 7), Banyan (P. 8) and shirt (P. 9) and produced them before the Sub-Inspector, who took them into possession vide Exh. P. G.
5. On 24th November 1966, Muhammad Buta, Allah Ditta, Ghulam Rasul sons of Nawab, Ghulam Rasul son of Hayat and Ghulam Haider appeared before the Sub-Inspector at the spot, who arrested them. Ghulam Rasul and Ghulam Haider appellants were found to have some injuries on their person. They were accordingly sent to the hospital for their examination, where Dr. Muhammad Akhtar Hayat (P. W. 2) examined Ghulam Haider on the same day at 1-10 p. m. and found the following injuries on his person :--
(1) A contused would, l'x|' on the top of the shoulder- joint.
(2) An abrasion / x on the lateral aspect of the left humerous near the lateral condyle. Both the injuries were simple and had been caused with blunt weapon.
On the same day at 1-30 p.m. the doctor examined Ghulam Rasul son of Nawab and found an abrasion li"xC'on the forearm in the middle and pastero-medical aspect. It was simple and had been caused with a blunt weapon.
6. Muhammad Buta appellant produced sword (P. 2), which was taken into possession vide memo.
Exh. P. D. As it was not stained with blood, so it was not sealed into a parcel. Shirt (P. 3) of Muhammad Buta was found to be stained with blood, so he got it removed from his person and sealed it into a parcel vide Exh. P. E. The sealed parcels were deposited with Fazal Karim, Moharrir Head Constable, Incharge of the Malkhana, on the same day for safe custody. The Sub-Inspector got prepared site plan Exh. P. J. and its duplicate Exh. PJ./l from the Patwari and putting his notes in red ink on the same signed it in token of its correctness. He arrested Abdul Ghani (acquitted accused) on 20th December 1966. On completion of the investigation and the magisterial inquiry that followed they were put on trial resulting as above.
7. The evidence of the aforesaid two doctors recorded by the committing Magistrate was transferred to this record under section 509 of the Criminal Procedure Code. Dr. Taraq Rashid Toosi, was, however, sent for his cross-examination and he stated as follows :-- "Allah Ditta son of Muhammad Khan, Mubashir Ahmed, Khurshid Ahmad and Ata Muhammad arrived at the Civil Hospital, Gujrat, at 6 p.m. on 21-11-1966. First of all I started examining Allah Ditta son of Muhammad Khan at 7 p.m. Rehmat Khan, father-in-law of Allah Ditta was accom panied with Allah Ditta as his friend. Khurshid Ahmad was examined by me at 7-15 p.m. He was brought by above- mentioned Rehmat Khan. Ata Muhammad was examined by me at 7-35 p.m. I examined Mubashir Ahmad at 8-45 p.m. All these examinations were private examinations because the above-mentioned persons were not produced by the police for examination. The medico-legal certificates were issued by me to Rehmat Khan mentioned above on completion of all the examinations mentioned above. Injuries Nos. 1 to 3 on the person of Allah Ditta stated in my M. L.
Certificate Exh. P. Y. can be caused by a fall on the ground. Injury No. 1 can be caused by a fall on a soft surface while injuries Nos. 2 and 3 can be caused by a fall on a hard surface. Injuries Nos. 2 and 3 may be taken as a single injury. Injuries Nos. 2 and 3 can be caused by a hit by a brick-bat. Injury No. 1 cannot be caused by a hit of brick-bat.
Injuries Nos. 2 and 3 given in my M. L. report P. V. can be self-inflicted with a shaving razor (blade) while injury No. 1 cannot be self-inflicted with a shaving razor. Most probably injury No. 1 cannot be self-inflicted but this injury can be caused by a knife. Injury No. 1 may be caused by a friendly hand.
Injuries Nos. 1 to 3 can be caused by a heavy weapon as well as by a light weapon. I have seen sword (P. 2) in this Court today. If a blow is given with full force with the sword (P. 2) or with any other sword of this size injury No. 1 given in my M. L. report Exh. P. V. cannot be produced. Similar is the case with injuries Nos. 2 and 3. If the force of the blow of the sword is impeded by the time it is struck injury No. 1 can be caused with sword (P. 2) or the like. Injuries Nos. 2 and 3 cannot be caused with sword (P. 2) or the like even if the force is impeded by the time the blow is hit. Injuries Nos. 2 and 3 given in M. L. report Exh. P. V. is definitely the result of one stroke. Injury No. 5 in my M. L. report Exh. P. V. is so insignificant that I did not give its dimension. This injury can be self-inflicted by a shaving blade. Injury No. 5 can only be caused by a fall if one falls on the ground with his head down and legs up. Injury No. 4 can be caused by a strike against a hard surface like wall. Injury No. 4 can be caused by a hit with a brick-bat. Injuries Nos. 1 and 2 on the person of Ata Muhammad deceased given in my M. L. report Exh. P. S. can be caused if one is pushed with force and consequently he falls with force or strikes against a hard surface with momentum. The injuries Nos.
1 and 2 can be caused by a brick-bat also. The seats of injuries Nos. 1, 8 and 9 on the person of Mubashir Ahmad given in my M. L. report Exh. P. A. are such where the skin is thin and the bone is nearer. In case of a living person injuries caused on such seats with blunt weapon and with sharp- edged weapon are not similar. They can only be similar if caused on a dead body.
Q.--Can you refer to any book on medical jurisprudence which makes such a distinction of living and the dead body ?
A.--My above observation is based on the teaching of my professor. I am, however, positive from the examination of injuries Nos. 1, 8 and 9 that these injuries were caused by a sharp-edged weapon. I cannot refer to any book on medical jurisprudence in this respect.
Injuries Nos. 2, 3 and 4 in Exh. P, X. can be the result of a fall, but injuries Nos. 5,' 6 and 7 cannot be caused by a fall. Injuries Nos. 5, 6 and 7 cannot also be caused by a blow with a brick-bat. These injuries cannot also be caused by list blows.
Court Question :-- "(2---Can the injuries Nos. 1 and 3 on the person of Ata Muhammad deceased given in the M. L. report Exh. P. S. be caused by stick blows ?
A.--Yes."
8. The ocular account of the occurrence was supplied by Khurshid Ahmad (P. W. 6), Mubashir Ahmad (P. W. 7) and Muhammad Akhtar (P. W. 8), who fully supported the above narration, while Ch. Nabi Bakhsh, Sub-Inspector deposed about the investigation held by him in this case.
9. The appellants when examined at the close of the prose cution evidence denying the allegations pleaded not guilty and averred that they had been falsely implicated in this case on account of their enmity with the prosecution witnesses. Muhammad Buta appellant made the following statement about the occurrence :-- "My paternal uncle Hayat made over his land measuring 1J kanals to Ata Muhammad deceased which was under my culti vation on the day of occurrence. Ata Muhammad deceased placed wooden mangers in that land and also tied pegs there for tethering cattle. He also tethered his cattle there. Ata Muhammad deceased and Khurshid Ahmad P. W. were smok ing Huqqa in that land at Peshiwla. First of all I went to that land and I uprooted the pegs from that land and I also pushed away the wooden mangers from that land. Mubashir and Allah Ditta P. Ws. also came there armed with sticks. Ghulam Haider Khan and Ghulam Rasul son of Nawab accused also came there.
First of all Mubashir Ahmad P. W. gave a stick blow on my head. Ghulam Haider and Ghulam Rasul son of Nawab came forward to rescue me and Mubashir P. W. gave one stick blow each to them. I did not give any blow to Ata Muhammad deceased or to Mubashir and Khurshid Ahmed P. Ws. I do not know whether any of my co-accused gave them beating. The P. Ws. are inimical towards me and they have falsely implicated me in this case."
Ghularn Rasul appellant admitting his presence at the spot and supporting Muhammad Buta appellant made the following state ment :-- "I was present at the place of occurrence. My co-accused Muhammad Buta had a dispute with Ata Muhammad deceased on account of land. When Mubashir Ahmad P. W. gave a stick blow on the head of my co-accused Muhammad Buta, I came forward to rescue my co-accused Muhammad Buta. Mubashir P. W. also gave me a stick blow. I did not give any blow to Ata Mumtmmad deceased or to Khurshid Ahmad and Mubashir Ahmad P. Ws. as I was empty-handed. I do not know whether any of my co-accused caused any injury to Ata Muhammad deceased or to any of the P. Ws. I have been falsely implicated in this case due to enmity with the P. Ws."
Ghularn Haider appellant also admitted his presence at the spot and made the following statement in support of the above defence version :-- "I was present at the place of occurrence. My co-accused Muhammad Buta had a dispute with Ata Muhammad deceased on account of land. When Mubashir Ahmad P. W. gave a stick blow on the head of my co-accused Muhammad Buta, 1 came forward to rescue my co-accused Muhammad Buta. Mubashir P. W. gave me a stick blow. I did not give any blow to Ata Muhammad deceased or to Khurshid Ahmad and Muba shir Ahmad P. Ws. I do not know whether any of my co-accus- ed caused any injury to Ata Muhammad deceased or to any of the P. Ws. I have been falsely implicated in this case due to enmity with the P. Ws."
Allah Ditta appellant had ..denied at the trial even his presence at the spot at the time of this occurrence although he had admitted it in unequivocal terms in his statement during the inquiry as under :-- "Neither I committed rioting, nor took part in the fight. Merely on account of enmity I have also been made an accused. As my brother Ghularn Rasul received injuries during this occurrence while I tried to rescue him, so 1 have also been made an accused, because I am a brother of Ghularn Rasul accused. 1 have no concern with the land which was mortgaged with Sardar Ali, nor I have any connection with the land which was cultivated by Muhammad Buta as a tenant of Hayat Muhammad and from which while forcibly ejecting the deceased, his sons and Allah Ditta P. W. received injuries."
In short the four appellants had admitted their presence and participation in this occurrence in one form or the other, but they had attributed aggression to the complainant party and impliedly set up the plea of self-defence, both of person and property. They, however, led no evidence in defence.
10. Learned trial Judge discarded the prosecution version in toto and dubbing the appellants as aggressors on the basis of their own admissions convicted them as above vide his order dated 12th June 1969, which has been assailed before us on the following grounds :--
(1) That the inordinate delay in lodging the report was the result of prolonged deliberations in fabricating a false case;
(2) that the oral testimony was in conflict with the medical evidence;
(3) that no. disinterested witnesses had been produced in support of the case except Muhammad Akhtar (P. )/. 8), who was admittedly a chance witness;
(4) that their evidence had been disbelieved'in respect of three of the seven accused, the recovery of the blood-stained shirt (P. 3) from Muhammad Buta appellant and existence of any motive for the others in joining hands with him for this murder etc.;
(5) that the independent evidence had been shut out with the set purpose of suppressing true facts; and
(6) that even if this meagre evidence had been appraised properly the right of self-defence could certainly be spelt out from it.
11- On going through the record we find that the above contentions are not devoid of force. In fact the learned trial Judge had conceded most of these assertions in holding as under :-- *
(1) That seven and a half hours delay in lodging the first information report was clearly borne out from the record which strengthened the doubt about the implication of the three (acquitted) accused;
(2) that the medical evidence did not support the prosecution case that Muhammad Buta, Ghulam Rasul and Ghulam Haider appellants gave sword blows to Khurshid Ahmad P. W.;
(3) that the prosecution had failed to bring home their accusation against Sardar Ali, Ghulam Rasul (sons of Hayat) and Abdul Ghani, who had been attributed sword blows to Mubashir Ahmad P. W.;
(4) that except Muhammad Buta appellant none of the other accused including the three appellants had any motive to join hands with him in this affair;
(5) that the evidence of recovery of blood-stained shirt (P. 3) from the person of Muhammad Buta appellant did not inspire confidence; and
(6) that the evidence of production of sword (P. 2) was of no help to the prosecution.
As a result of these findings the learned Additional Sessions Judge had altogether discarded the version of the prosecution and had acted on the admissions made by the appellants about the occur rence, which had changed the alleged scene of the occurrence from the field of Ata Muhammad deceased marked *D' in the site plan to that of Hayat, the held in dispute, as also the origin and the motive of the alleged light.
Learned State Counsel has not challenged any of these conclusions of the learned trial Judge (including the acquittal of the three co-accused) and quite rightly as there was no material on the record to hold otherwise.
12. As regards the delay there was no explanation either in the first information report or in the examination-in-chief of the informant (Khurshid Ahmad (P. W. o)). The occurrence had taken place at about 3 p. m. according to the first informa tion report although Muhammad Akhtar (P. W. 8) had fixed it at Peshiwela, which should be at 2 p. m. in the month of November. Khurshid Ahmad P. W. and his injured companions left their village within half an hour of the occurrence and covered a distance of three miles to the hospital at Gujrat in a tonga which should not have taken them more than an hour in any case. The Police Station Sadar Gujrat is quite at a short distance from the hospital although the City Police Station was quite closeby, but no attempt was made to lodge any report about this occurrence at either of the two police stations till 10-30 p.m. as mentioned in the relevant column of the first information report, although Khurshid Ahmad P. W. had stated at the trial that he reached the Police Station City at 11 p.m. in the night. According to the disclosures made by Dr. Tariq Rashid Toosi (P. W. 1), who examined the injured persons, that one Rehmat Khan, the father-in-law of Allah Ditta (given up P. W.) had accompanied them to the hospital, but he even did not bother to lodge any report at the police station while it could be said about the injured persons that they might be feeling concerned about their injuries and could have felt the necessity of at least first aid in the hospital. Although it was not essential to obtain the medico-legal reports before informing the police about the occurrence yet a recital in the first medico-legal report issued by the doctor (Lxh. P. X. in respect of Allah Ditta, given up injured P. W.) showed that an intimation had been sent to the police about the arrival of the injured persons in the hospital at 7- 15 p. m. on the same evening but no reason was forthcoming as to why the police did not arrive at the hospital to record the statement of any one of the injured persons for the registration of this case. The benefit arising out of this delay could not be denied to the appellants in view of the above conclusions of the learned trial Judge.
13. Dr. Tariq Rashid Toosi (P. W. 1) in cross-examination had excluded the use of sword for any of the injuries of Khurshid Ahmad P. W., while each of the three eye-witnesses had attributed a sword blow each to Muhammad Buta, Giiulam Rasul son of Nawab and Ghulam Haider appellants. The doctor had stated that incised injuries found on the person of Khurshid Ahmad P. W. were quite minor and injury No. 1 could be self-suffered with a knife, while injuries Nos. 2, 3 and 5 could be self- inflicted with a shaving blade adding that injury No. 5 was so insignificant that he could not measure it. Mubashir Ahmad P. W. had stated that the three appellants had struck the swords with force while Khurshid Ahmad P. W. had stated that all the swords used by the appellants and their co accused were of same size as sword (P. 2) but the doctor on seeing sword (P. 1) conceded that if a blow is given with full force . by sword (P. 1) or by any other sword of this size injuries like 1, 2 and 3 oP Khurshid Ahmad P. W. could hot have resulted. He also admitted that his injuries Nos. 2 and 3 were definitely the result of one blow. The trial Judge was, there fore, correct in holding that the medical evidence was in con flict with the ocular evidence in case of the injuries of Khurshid Ahmad P, W. The doctor was, however, not questioned about the incised wounds suffered by Mubashir Ahmad P. W., but keeping in view the type and weight of sword (P. 2) it can be safely concluded that neither of his injuries could have been suffered by use of swords. A blow with a heavy weapon like sword (P. 2) inflicted with force as stated by Mubashir Ahmad P. W. would have caused much extensive damage than found in case of Mubashir Ahmad P. W. Anyhow Sardar Ali son of Hayat and Abdul Ghani, who were ascribed the sword blows of Mubashir Ahmad P. W. had been given the benefit of doubt and acquitted on that score. In view of the apparent inconsis tency between the medical and the ocular evidence no reliance could be placed on the evidence of the three eye-witnesses in this case. The evidence of Khurshid Ahmad (P. W. 6) and Mubashir Ahmad (P. W. 7) was doubtless tinged with animus on account of the fact that they were yet licking their wound while Muhammad Buta and the other appellants had only a few days earlier foiled their attempt to occupy the land in dispute.
14. Muhammad Akhtar (P. W. 8) one of the witnesses, was admittedly a chance witness as both his residence and cultiva tion were admittedly on the other side of the village and he had given no ostensible reason for his presence on this side of the abadi, where the occurrence had taken place.
The excuse put forth by him was that he was proceeding at that time to call Rehmat Machhi from his house situate in south east corner of the village abadi after going over the entire abadi, of the village through the circular road was not acceptable as there was a lane proceeding straight to the house of Rehmat Machhi through the village from near his own house in the north west corner of the village and he had given no reason for avoiding the much shorter route to take him to the house of Rehmat Machhi. Anyhow it is not believable that a Zamindar living in one side of the abadi would personally go oil such an errand to the other end of the abadi as he may have many other mueens (living in his house) to assist him in such a mission. His evidence in view of the above discussed conflict with the medical evidence and some other material discrepancies had rightly been excluded from consideration.
15. The recovery of sword (P. 2) and blood-stained shirt (P. 3) had taken place at the same time.
The recovery memo, in respect of sword (P. 2) (Exh. P. D) showed that the sword had already been cleaned of the blood when produced by Muhammad Buta appellant. It was strange that he was dangling his blood-stained shirt (P. 3) for three days, i. e., till 24th November 1966, the alleged date of its recovery, and he could not think of washing the blood stains from over it, if he had taken that precaution about the sword. There is also a discrepancy about the date of this recovery as Khurshid Ahmad P. W., the only witness produced in Court about this recovery, had stated before the committing Magistrate that Muhammad Buta appel lant was arrested on 22nd November but at the trial he had disowned his statement to bring it in accord with the recovery memo. Allah Ditta P. W. was the other witness of this recovery, who had not been produced at the trial. The learned trial Judge had, therefore, rightly ignored the evidence of these recoveries. It is apparent that in view of these inherent infirmi ties in the prosecution case the learned trial Judge had con sidered proper to discard the prosecution evidence and the learned State Counsel had found no substance to pick holes in the conclusions arrived at by the learned trial Judge.
16. There was yet another aspect of the prosecution case which had further impaired its credibility as none of the culti vators of the lands and deras around the place of occurrence had appeared to support the prosecution case. It was a day time occurrence, which had taken place amidst the fields situate quite Close to the village abadi and quite a frequented circular road on one side and the village path on the other as would appear from the site plan Exh. P. J. and no one was forthcoming from the vicinity of this crime to corroborate the prosecution case. Even one of the injured persons Allah Ditta, another Allah Ditta (son of Qasim) mentioned as eye-witnesses in the first information report itself and one Hassan Muhammad admit ted by Mubashir Ahmad and Muhammad Akhtar P. Ws. to have been present nearby at the time of this occurrence, had refused to enter the witness-box giving rise to the legal presumption that they were not prepared to support the prosecution case. All this would support the contention that independent evidence had been shut out in this case.
17. After having arrived at these conclusions about the factual aspect of the case and discarding the prosecution evidence as not worthy of credence the trial Judge had no option but to accept the defence version in to/o without any attempt to dissect the statements made by the appellants at the trial as held by their Lordships of the Supreme Court in Mehrban v. The State (1) wherein it was observed as under "It was not open to the learned Judge after having rejected the prosecution evidence as unreliable to dissect the accused's statement and accept it in part and reject the rest of it."
In this view of the matter it cannot be disputed that the prose cution had miserably failed to discharge the burden of establishing its own case, while the inherent circumstances, the natural course of human conduct and the psychological reaction of [8] an ordinary villager in the sequence of the above detailed events favoured only one conclusion that the defence version was true and correct.
We could have disposed of this appeal on the basis of these findings of fact but the trial Judge had based the conviction of the appellants on taking an erroneous view about the plea of self-defence set up by them, it therefore, requires considera tion. it seems that the assertions made by Muhammad Buta appellant have not been properly appraised and the question of de facto possession over the field in dispute at the time of this occurrence did not receive the attention it deserved. The stand taken by Muhammad Buta appellant from the very outset was that after the expiry of the first year of his tenancy he was holding over the land in dispute and was not prepared to vacate it except in execution of the procedure prescribed in the Tenancy Act and for the matter of that a reference to his earlier statement during the commitment proceedings would be necessary, the relevant portion of which is being reproduced below :-- "Some land belonging to my uncle Hayat Muhammad was with me as a tenant. As he was annoyed with me due to above- mentioned mortgage, so he wanted to eject me from hjs land under my cultivation. I refused to vacate the land without any notice, therefore, Hayat Muhammad connived at with Ata Muhammad deceased, his sons and Allah Ditta P. W. and tried to eject me from the land. So on the day of occur rence with a view to eject me forcibly from the said land Ata Muhammad deceased and his sons and Allah Ditta P. W. etc., tried to trespass criminally into the land, for which they were stopped and they received injuries."
He had reiterated in slightly different words the same position at the trial in his statement under section 342 of the Criminal Procedure Code reproduced in the earlier part of this judgment. His assertion that he was not prepared to vacate the field in dispute after the expiry of the first year of his tenancy and was holding over found full support from the first informa tion report itself (Exh. P.
A.), wherein Khurshid Ahmad P. W. had admitted that only four days earlier while untethering their cattle from the field in dispute Muhammad Buta appellant had proclaimed that he would not permit anyone else to cultivate it which had demonstrated in quite clear terms the firmness of his mind that he would not acquiesce in any such attempt to evict him from that field. It was further stated in this basic document that they had no wish to give a fight over it so they did not pursue the matter by taking any action against them which had established the fact that they had accepted their ouster on that occasion as fait accompli.
The evidence of Barkat Ali (P. W. 5) (the then Patwari of that circle) was very material in this respect, who confirmed that Muhammad Buta appellant was in continuous possession of the land in dispute since Kharif 1965 and had placed on record certified copies of mutation Exh. D. A. and khosra girdawari Exh. D. B. in support thereof. This had clearly established his undisturbed possession over the iield in dispute and he had a legal right to defend it if any one including its owner interfered with it except in due course of law, as held in Emperor v. Haji Ghulam Muhammad Azam (1). In this case the accused (Haji Ghulam Muhammad Azam) had prevented his tenant who was holding over from entering the demised premises and was convicted for wrongful restraint under section 341 of the Indian Penal Code and in a revision petition filed against this order it was held that the accused was rightly convicted insamuch as the tenant holding over had, in India, a position recognized by the law and had a right to retain possession of the premises he occupied even against the landlord himself until dispossessed in due course of law.
18. Keeping in view the above admissions in the first information report there could thus be no doubt about it that the complainant party had made a second attempt to occupy the field in dispute on the eventful day, so the observation of the learned trial Judge that even if it can be presumed that the tenancy in respect of this land in favour of Muhammad Buta accused (appellant) had not been lawfully terminated it would be clear that the possession of this land had been taken over by its owner Hayat and had been delivered to Ata Muhammad deceased was incorrect. The fact of the matter is that the complainant party could not rid themselves of the rancour of their random retreat from that field a few days earlier as would be evident from the admission of Khurshid Ahmad P. W. at the trial that it was only as a measure of retaliation that his father had asked Muhammad Buta (appellant not to pass through their land while going to his dera on his daily visits to his cultivation there. The latter part of this assertion has not been accepted as correct by the learned trial Judge himself, but the admission about this retaliatory measures had no doubt disclosed working of their minds. This warning betrayed a strong feeling of revenge being reared by them since .their deprivation of the benefits of the occupation of an adjacent field. It would be more consistent with the probabilities of the case to say that the next move had o come from the complainant party sooner or later as they vere bent upon another show-down with Muhammad Buta ippellant and his companions, so after making due preparations o meet any resistence they repeated their tactics and re-tethered heir cattle by affixing pegs and placing mangers over that land gain on the eventful day. Muhammad Buta appellant again prooted their pegs and untethered the cattle and pushed away te mangers from over the field. Ata Muhammad deceased was Jmittedly accompanied by his two sons, Khurshid Ahmad and tubashir Ahmad P. Ws. as well as his nephew Allah Ditta iven up injured P. W.), and had kept sticks available nearby arm themselves in case of any such eventuality which they Imittedly used at least against Ghulam Rasul and Ghulam aider appellants, who had suffered injuries at their hands, while [9] intervening on behalf of Muhammad Buta appellant, but they successfully defended his possession. The measures of retaliation and the revenge of the complainant party disclosed by the above referred two statements of Khurshid Ahmad P. W. and passift- cation of their temptation to occupy the adjacent land had thus been defeated by Muhammad Buta appellant and his companions in the exercise of his legal rights. The contention of the learned trial Judge that once the complainant party had entered upon the field in dispute by placing their mangers and tethering their cattle over it with the permission of Hayat, its owner, the eviction of Muhammad Buta appellant had been completed, even if he felt that the tenancy in his favour had not yet been terminated was extremely misconceived as held by Sir B. K. Mullick, A C. J. of the Patna High Court in Emperor v. Bandhu Singh and others (1) wherein such entry was held as criminal trespass, his Lordship observed as under :-- "A mere trespasser cannot, by a very act of trespass, immediately and without acquiescence, give himself possession, in the legal sense of the term, against the person whom he ejects, and the latter may, if he does not acquiesce, re-enter and re-instate himself provided he does not use more force than is necessary. Such a re-entry will be viewed only as a resistance to an intrusion upon a possession which had never been lost."
It would thus follow that the re-occupation of the field in dispute by the complainant party was no more than a casual intrusion over it and Muhammad Buta appellant could certainly resist and even seek reinforcement from his neighbours to throw them out by use of such violence as was necessary to protect themselves against the aggression on the part of the complainant pSrty as was held by a Division Bench of the Calcutta High Court in Panchkauri and another v. Empress (2) observing as under :-- "If the party of the accused was rightfully in possession of the land sought to be dispossessed by the complainant, and if they took such precautions and used such violence as they found necessary to protect themselves, against the aggression on the part of the complainant's party, they could not rightly be held to be members of an unlawful assembly."
In this view of the matter their Lordships had relied on Queen- Empress v. Narsang Patha l/hal and others (3) which is reproduced as under :-- "Where the accused, entitled to joint possession of certain land along with the deceased and his brothers, obtains unlawful possession of a part of such land and remains in possession thereof only for a couple of hours and the persons already in possession try to eject the accused, the possession of the accused is no better than that of a mere trespasser and cannot give him the right of private defence. On the other hand, the
(2) I L R 24 Cal. 686
(3) I L R 14 Lah. 60 , persons already in possession (like Muhammad Buta in this case) have a right to inflict any necessary injury, short of death, in the exercise of right of private defence of property under section 104 and have a right to maintain the possession and eject the accused."
The examination of these authorities would indicate that the casual act of possession by any person over the land in de facto possession of the other would not confer any legal rights on any such person as was observed by Muhammad Munir, A. C. J, as he then was, in Muhammad Khan and others v. The Crown (1) that the possession which a trespasser is entitled to defend against a rightful owner must be settled possession, extending over a sufficiently long period and acquiesced in by the true owner. In another case Arif v. State (2) fifteen days occupation by such att intruder was not found enough to constitute settled possession. The facts of this case being more akin to the facts of the case in hand, it would be advantageous to reproduce them here. In the course of the consolidation proceedings a portion of land belonging to 'L' etc. was allotted to 'B'. etc, but its possession in terms of section 11 of the said Act had not been delivered to them. They, however, managed to plough it and sowed maize therein and fifteen days after B's party went to hoe the crop. L's party resisted it and the clash between the two parties resulted in the death of one and injuries to two persons from L's party. The party of B were considered trespassers and L's party (the original occupiers of the land) had the right of private defence of both person and property as the possession of B's party over the land was not found to be a settled one in spite of its occupation by them for fifteen days.
Abdul Aziz Khan, J. in another Division Bench case of this Court Mobanik Ali and others v. The State
(3) observed that juridical possession must be distinguished from a mere act or acts of trespass. If a trespasser is allowed to remain in possession and the owner or party in possession makes no effort to remove him, the trespasser obtains juridical possession on account of acquiescence on the part of the owner. In view of this observation Muhammad Buta appellant was justified in an attempt to evict the complainant party from the field over which he was found to be in de facto possession at the time of the occurrence and lie was not required to wait and have recourse to authorities for that purpose.
All the above cited cases with some others were recently considered by their Lordships of the Supreme Court in Sardarai and another v. The State (4) and observed that the principles emerging from these decisions arc as under :-- "(i) The possession of a party in possession of a property should not. be disturbed unless he is evicted by due process of law.
(2) PLD W59 Lah. 606
(4) PLD 1970 SC 212
(fi) The right of private defence can be exercised against an aggressor even if he be the rightful owner of the property. Owner of the' property is not entitled to take law into his own hands merely because he has got a right to have possession restored by a civil Court. If he does so he will become liable for criminal trespass.
(in) If a trespasser is in settled possession of the land which means that he has been in possession of the property for a pretty long time without resistence he is entitled to defend his possession even against the rightful owner and he can be evicted only in due course of law.
(tV) The landlord has no right to evict a tenant by fotce. Where possession is taken over by force from a tenant, he has a right to defend the act of trespass by using force under sec tion 97 (secondly of the Penal Code) and when he is attacked he has a right under this section of the Penal Code to defend his person."
19. In the light of the above reproduced cardinal principles of law we find that Muhammad Buta appellant was holding over the land in dispute and the complainant party were the trespas sers, so Muhammad Buta appellant had a legal right to evict them and re-instate himself by using necessary force and in case of resistence from the other side the other appellants could come to his rescue to defend his possession over the land. They could never be dubbed as aggressors by any stretch of imagination in this background. The complainant party had admittedly used sticks and caused injuries to two of the appellants, so they had a further right to defend their person. The medical evidence had disclosed that Ghulatn Haider appellant had suffered a contused wound 1" x 1/8" on the top of the shoulder and an abrasion x on the lateral aspect of the left humorous near the lateral condyle. Ghulam Rasul appellant received an injury U" x J" on the forearm. Under these circumstances the appellants were certainly faced with the grave situation involving air impending peril to their life or at least grievous hurt at the hands of the complainant party which extended their right even to the causing of the death adversely. The evidence of the doctor as stated above had eliminated the use of any sword by the appellants and the incised injuries sulTered by Khurshid and Mubashir Ahmad P, Ws. had thus to be excluded from considera tion and the appellants could only be held responsible for a few simple blunt weapon injuries sulTered by them.
Ata Muhammad (deceased) received only two blunt weapon injuries, which were found on his head and according to Muhammad Akhtar (P. W. 8) Ghulam Rasul (son of Hayat, acquitted accused) had inflicted one of these injuries, so only one of these head injuries could be attributed to Allah Ditta appellant. It would be difficult to say which of the two injuries were mainly responsible for the fracture of Ata Muhammad deceased, which caused his death as each of the two blows had contributed to this result. This analysis of the injuries alleged to have caused by the appellants would demonstrate without any shadow of doubt that the appellants had not even extended the right of private defence. The upshot of this discussion is that the prosecution had failed to bring home any of the charges against the appellants. We, therefore, accept their appeal and setting aside their convictions and sentences direct that they shall be released from custody forthwith, if they are not required in any other case. The reference accordingly fails. .