Sardar Ali, Bagh Ali, Siraj, Muhammad Yasin and Muhammad Ashraf were tried by an Additional Sessions Judge of Kasur under section 302/307/324/148/149, P.P.C. For the murder of Muhammad Ramzan, deceased, attempt on the life of Haji Balanda P.W.5 and for rioting. The learned trial Judge, by his judgment, dated 2-6-1983, found Sardar All guilty under section 302, P.P.C., Bagh Ali and Siraj Din guilty under section 324, P.P.C. And Yasin accused, guilty under section 323, P.P.C. He accordingly sentenced Sardar Ali under section 302, P.P.C. To imprisonment for life and to pay a fine of Rs.10,000 or in default to undergo further rigorous imprisonment for two years, Bagh Ali and Siraj Din under section 324, P.P.C. To periods of detention already undergone by them in jail and Yasin under section 323, P.P.C. To one year's rigorous imprisonment. Since the last accused had already undergone his sentence, he was released. Muhammad Ashraf, accused, was acquitted.
The appeal (Criminal Appeal No. 384 of 1983) preferred by Sardar Ali, convict, against his conviction and sentence and the two private revision petitions (Criminal Revision No. 694 of 1983 and Criminal Revision No. 695 of 1983) filed by Haji Balanda, petitioner, against all the accused for their conviction under sections 302/149 and 148, P.P.C. And for the enhancement of the sentence awarded to Sardar Ali, convict, are all now before me for disposal.
2. Briefly stated the facts of the prosecution case are that on 29-11-1980 at about 5-45 p.m. Ahmad Ali A.S.I. Police Station Saddar Kasur received information that a fight had taken place in village Nizampura and the injured persons were present in Civil Hospital, Kasur, upon which he reached there. Haji Balanda, complainant P.W.5, met him and got recorded his statement Exh. P.B., stating therein that he had land in village Chah Dhahay Wala of Nizampura situated towards the eastern side of the village. Sardar Ali and others, accused, had their land adjacent to his land. The Bunna which separated his land from that of the accused, which ran from north to south was joint property. His land was situated towards the western side of the Bunna, whereas the land of the accused was towards the eastern side of the Bunna. Sardar Ali and others, accused, wanted to demolish the Bunna and few days back an altercation had taken place between Sardar Ali etc., and him on account of the said Bunna, but Sardar Ali etc., were stopped to demolish the Bunna and were insulted and at that time they had threatened that they would take revenge for their insult. On the same day, at 3-00 p.m. Said Sardar Ali etc., had again assembled to demolish the joint Bunna, upon which he (the complainant) and his son Muhammad Ramzan, deceased, went to the spot and stopped them from demolishing the Bunna. Siraj, accused, armed with a Barchhi, called out Lalkara that they should not be spared and then Sardar Ali and Bagh Ali, accused, armed with Takwas, Yasin, accused, armed with a Kundhali, and Muhammad Ashraf, accused, empty hand, came forward and attacked them. Muhammad Ashraf, accused, caught hold of Muhammad Ramzan, deceased, and Sardar Ali, accused, gave a Takwa blow on his head, upon which he fell down and the other accused attempted to deal blows on Muhammad Ramzan deceased, but he (complainant) stopped forward to rescue the deceased, upon which Siraj, accused, gave a Barchhi blow on the upper part of his left thigh. Muhammad Yasin, accused, gave him a Kundhali blow, hitting him on the back side of his right shoulder. Bagh Ali, accused, gave a Takwa blow hitting him on the upper portion of his right arm. Muhammad Ramzan, deceased, became unconscious. On his (complainant) alarm, Muhammad Ismail, Mst. Sakina Bibi and Muhammad Ashraf P.Ws. Also reached there and they rescued the injured from the accused. He and Muhammad Ramzan were removed to Civil Hospital, Kasur, in injured condition and Muhammad Ramzan, deceased, being in precarious condition, was sent to Genera Hospital, Lahore. He also produced medico-legal reports of Muhammad Ramzan, deceased, and his own before Ahmad Ali, A.S.I., who recorded his statement Exh. P.B., which was read over to him and he thumb---marked the same in token of its correctness. Ahmad Ali, A.S.I., then handed over the complaint Exh. P.B. To Muhammad Anwar Constable No.50 for its onward transmission to the Police Station Saddar Kasur. He took the complaint Exh. P.B. To Police Station Saddar Kasur and gave it to Muhammad Ashraf, Moharrir Head Constable, who recorded the formal F.I.R. Exh. P.B./1 on the basis of the same.
4. On 30-11-1980 and 1-12-1980 Siraj and Bagh Ali accused were medically examined.
5. On 1-12-1980, Siraj and Bagh Ali, accused, were arrested by Talib Hussain, S.I. On 5-1-1980, Siraj and Sardar Ali, accused, led to the recovery of a blood-stained spear P.7 and a blood-stained Takwa P.8.
6. On 23-11-1980 Bagh Ali, Muhammad Yasin and Muhammad Ashraf, accused, were arrested.
7. At the trial, all the accused took up the plea that Khasra No. 1848 was in their, possession as tenants on the date of the occurrence and the land was under cultivation, though Haji Balanda P.W.5 and his brother Boots were owners of the said Khasra. Haji Balanda P.W.5 wanted to eject them forcibly from Khasra No. 1848 and on the date of occurrence Haji Balanda P.W.5, armed with a Sota, and Muhammad Ramzan, deceased, armed with a spear, came to their lands to take forcible possession of Khasra No. 1848 and they attacked them and caused injuries to them and they, apprehending danger to their lives, injured Haji Balanda P.W.5 and Muhammad Ramzan, deceased.
The other accused, namely, Bagh Ali, Muhammad Yasin and Muhammad Ashraf, were not present at the spot at the time of occurrence. Mst. Sakina Bibi F.W.6, Muhammad Ashraf P.W.7 and Muhammad Sharif (given up P.W.) were not present at the spot. They all stated that the story of the demolition of the Bunna had been concocted to make out a false case against them.
8. The learned trial Judge, on the basis of the evidence, found that on the day of occurrence there was some dispute regarding possession of Khasra No. 1848 between the complainant and the accused parties and both wanted to assert their right of possession thereto, that Haji Balanda P.W.5 and Muhammad Ramzan, deceased, on the one side, and Sardar Ali and Siraj, accused, on the other side, were armed and had gone to the place of occurrence to assert their respective rights of possession and injured each other and that the true manner in which the occurrence really originated was not deducible from the record. He, accordingly, convicted and sentenced four of them, as stated above, and acquitted the fifth.
9. I have heard the arguments of the learned counsel for the appellant, the complainant and the State and have perused the record. The question that calls for consideration is as to which party was aggressor and what offences, if any, are made out in the case. According to the site plan Exh.
P.G. The joint Bunna is stated to be the boundary line of Khasra Nos. 1848 and 1859. However, when the spot was inspected four days after the occurrence on 3-12-1980 by Muhammad Amin Khan, Qanungo, P.W.10, at the instance of the police, he found that the Bunna between these two Khasras had no grass, its earth was soft and the Bunna appeared to be newly made. On measuring the Bunna against the revenue record, he found that this new Bunna was inside the land of Khasra No. 1848 by about 11 Karams from the northern side and about 61 Karams from the southern side and that since it was not on the correct place, where it should have been, some land of Khasra No. 1848 had been included in Khasra No. 1859. On the said date he found Haji Balanda P.W.5 in possession of both Khasra Nos. 1847 and 1848. One thing stands clear from the evidence that on 3-12-1980 there was a new Bunna separating Khasra Nos. 1848 and 1859. Since the said Qanungo did not point out whether he had found any traces of the old Bunna, nothing much turns on the presence of this new Bunna, for, the same could have been constructed by the complainant party after the incident, much within their Khasra No. 1848, to make out a case that the appellant party wanted to usurp their land. As regards the claim of Muhammad Amin Khan. Qanungo P.W.10 that Haji Balanda P.W.5 was in possession of Khasra No. 1848 on 3-12-1980, that would obviously be on the basis what he saw himself on 3-12-1980 four days after the occurrence. He does not state that on 29-11-1980 Haji Balanda P.W.5 was in possession of the said Khasra. As to who was in possession of the said Khasra on 29-11-1980, the statement of Nehmat Ali Patwari P.W.9 assumes prominence. According to his statement, the said Khasra was owned jointly by Haji Balanda P.W.5 and his brother Boota in equal shares, but according Khasra Girdawari from Rabi 1978 to Kharif 1981 the same was in possession of Muhammad Din son of Chiragh (father of Sardar Ali, appellant, and Bagh Ali and Siraj accused). He admitted that the entry of 29-10-1980 regarding Khasra No. 1848 was in his hands, which show that the said Khasra was lying fallow and had no cultivation on it. He also admitted that the entry of 14-4-1981 regarding this Khasra was also in his hand, which show that wheat had been cultivated by the said Muhammad Din son of Chiragh (father of Sardar Ali, appellant etc.). It is, therefore, obvious that on the relevant date, Khasra No. 1848 was in cultivating possession of the appellant party, but was lying fallow with no cultivation on it. The next question that arises is whether there was any Bunna on the date of incident. It is the case of the prosecution that there was a Bunna present separating Khasra Nos. 1848 and 1859 and that according to Mst. Sakina Bibi P.W.6, two-three Karams of the same had been demolished by the appellant party, but in the same breath she states that her father-in-law Haji Balanda P.W.5 had not stopped the appellant from demolishing the Bunna in her presence. The evidence of Muhammad Amin Qanungo P.W.10 is clear that he found to totally new Bunna when he inspected the site on 3-12-1980, without any signs of the old Bunna. If only two-three Karams of the Bunna had been demolished, as stated by Mst.
Sakina Bibi P.W.6, there would have been no need to reconstruct the whole Bunna. The fact that a new Bunna appeared on the scene on 3-12-1980, only shows that no Bunna existed previously and that the complainant party, in order to make out a case of aggression, constructed a new one after the occurrence, after having found that the appellant had fled from the scene, due to the case registered by them. But even if I were to assume that a new Bunna had been erected by the accused party on or before the date of occurrence, with the object of stealing some of the land of the complainant, it gave the complainant party the motive to launch the attack to destroy the Bunna. In this view of the matter, the prosecution case that the complainant party was attacked by the appellant party is without substance. The defence version of Sardar Ali, appellant, and Siraj, convicted accused, that they had been attacked by Muhammad Ramzan, deceased, and Haji Balanda P.W.5, appears to be reasonably probable in the circumstances and must be accepted. It appears that the said two persons finding Khasra No. 1848 lying vacant on 29-11-1980 tried to secure possession of the same, or finding the Bunna built by the accused party against their interest, tried to demolish the same, and in that process attacked the members of the accused party and were resisted in their attempt by Sardar All, appellant, and his brother Siraj, convicted accused.
10. The only question that remains to be decided is whether these two accused-persons exceeded their right of defence of their person and property in causing the death of Muhammad Ramzan, deceased. According to Doctor Sadiq Hussain Naqvi P.W.4, Sardar Ali, appellant, had seven blunt weapon injuries on his person. Though all were simple, four contusions on his back and one on his right leg were between 8 c.m. To 20 c.m. In length and J c.m. To 2 c.m. In width. These injuries were very likely caused with a Dang. Siraj, convicted-accused, suffered ten incised wounds, two abrasions and a linear scratch. The incised wounds appear to be on the palmer surface of the fingers. Eleven injuries were caused by sharp-edged weapon and two by blunt weapon. No sooner Sardar Ali, appellant, and Siraj, convicted accused, were arrested, they produced their medical certificates before the police. The police did not secure any clear opinion from Doctor Sadiq Hussain Naqvi P.W.4 as to whether any of the injuries on these two persons were self-suffered. The prosecution even attempted to conceal these injuries by not examining the doctor about them during his examination-in-chief. In cross-examination, particulars of these injuries had to be brought out by the learned counsel for the two accused. It is true that none of the injuries on Sardar Ali, appellant, and Siraj, convicted --accused, was grievous, but a large number of injuries on their persons clearly show that they had reasonable apprehension that death or grievous injuries would otherwise be the consequence of the assault, if the same were not resisted to the extent of effectively disabling the' assailants. Muhammad Ramzan, deceased, had only one injury on his head, which turned out to be fatal. It is on the record that this injury was inflicted by Sardar Ali, appellant, with his Takwa. Since he had received a large number of blunt weapon injuries at the hands of Haji Balanda P.W.5 with his Dang, it is clear that he gave his solitary injury to Muhammad Ramzan, deceased, in defence of his person and that of his brother. It cannot be said that Sardar Ali, appellant, exceeded his right of defence of his person. The conviction of Sardar Ali, appellant, under section 302, P.P.C. Is, therefore, not proper. The appellant, therefore, deserves to be acquitted.
11. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Sardar Ali, appellant, is set aside. He shall be released forthwith, if not required in any other case. The fine, if any recovered from him, shall be refunded to him.
12. There being no merit in the private revision petitions (Criminal Revision No. 694 of 1963 and Criminal Revision No. 695 of 1983) filed by Haji Balanda, petitioner, the same are dismissed.