1. Muhammad Afzal Zullah, J.--Abdul Sattar, aged 35 years and his brother Nazir, aged 32 years, were tried by the learned Additional Sessions Judge, Multan, for the murder of their co- villager Abadan; who, by his judgment dated 12-8-1967, acquitted them. The State has filed this appeal under section 417, Cr. P. C. against their acquittal.
2. The prosecution case, as disclosed in the statement of Wali Muhammad (P. W. 7) who is the real brother of the deceased, is an eye-witness and also the first informant, is as follows :-- The parties own lands which are adjacent to each other in Square No. 60, Killa No. l2 belonging to the father of the witness and Killa No. 13 belonging to the respondents have common boundary (ij).
3. There have been some altercations between the parties on account of the breaking/disturbance of this wat. On the day of the occurrence, which took place on 23rd February 1967, at about dupehrwela, Wali Muhammad and his deceased brother Abadan were cutting fodder in Killa No. 10.
4. (One killa away towards north-west from the wat in question). Both the respondents were present in Killa No. 13. Abdul Sattar who was ploughing that field brought his plough on the boundary and "wanted to plough the same" which was objected to by Abadan deceased. At that time, Nazir respondent was also present with a cart nearby. On the aforementioned objection, Abadan deceased and Sattar started abusing each other. Nazir uttered a lalkara saying "let the matter be finished for ever". He then took out munni (P. 4) (a wooden constituent part of a cart which is used as a removable support for securing the load) from his cart. Sattar snatched the sickle (P. 5) from the deceased. Both of the respondents then assaulted him. Nazir caused him blows with munni while Sattar injured him with sickle. The witness rushed towards the spot. Roshan and Ali Muhammad P. Ws. who were working in the nearoy fields also saw the occurrence and rushed to the spot. The deceased fell down and the respondents ran away with the sickle (P. 5) and munni (P. 4) leaving the cart in the field. Abadan became unconscious. He was then put in a cart and brought to the village from where he was taken to the hospital at Dunyapur on a cart, where he was medically examined. After obtaining the medico-legal report (P. K.) Wali Muhammad proceeded to Police Station (Dunyapur) which is at a distance of five miles from the spot, and lodged the F.
1. R. (Exh. P. F.) at 9-30 a.m. Abadan remained unconscious and expired at about 3 a.m. next morning without making any statement.
5. Dr. Abdul Sattar (P. W. 2) medically examined Abadan on 23-2-1967 at 9 p.m. and found the following injuries on his person :-- "(1) Lacerated wound l'x on the lateral side of the head left side front to backward 3" away from the left ear.
(2) Lacerated wound l'x J'x 1/5' on the middle of head side 5" away from the left ear.
(3) Lacerated wound 1|" x J'x ' on the middle of head front to backward 6' away from the left ear.
(4) Incised wound x x on the back of left upper arm below the elbow-joint.
(5) Lacerated wound l'x "x on the joining of fore-finger and middle finger of right hand half of the wound is on the elbow side and half of the back of hand.
(6) Incised wound 1/3* x 1/3" x * on the palmer side of left hand below the joining of fore-finger and middle-finger in the moon shape.
6. There was severe bleeding from injury No. 2. The patient was in serious condition. Injuries Nos. 1 to 3 and 5 were with blunt weapon while Nos. 4 and 6 were by sharp-edged weapon. They were caused within 24 hours. This doctor informed the police regarding the death vide memo. (Exh. P. H.) on the morning of 24th February but the police had already registered the case as noted earlier, on the night of 23rd February 1967.
7. On autopsy performed at l2 noon on 24th February 1967, by Ch. Niaz Muhammad, Medical Officer, Lodhran (P. W. 3), the injuries mentioned above were noted. There was compound fracture of skull which was depressed. Fracture was extensive. It involved frontal, occipital and parietal bones and the brain under this fracture was torn and injured. The death was due to shock and damage to brain caused by injuries Nos. 1 to 3. They were sufficient in the ordinary course of nature to cause death. The time between injuries and death was I6 to 18 hours and between death and post- mortem about 12 hours. Injuries Nos. 1 to 3 could be caused with munni (P. 4) shown to the doctor in Court. The doctor admitted in cross-examination that even one blow on the head could cause the compound fracture. He recollected that most probably the food found in the stomach of the deceased was semi-digested and in semi-liquid form.
8. Duiing the investigation, after arrest Nazir respondent led to the recovery of munni (P. 4) and daranti (P. 5) which were taken into possession vide memo. Exh. P. E. The munni is 2 ft. 11 inches and weighed 1 seer 14 chatanks. The sickle was found to have been stained with human blood while no blood was found on the munni even at the time of the recovery.
9. At the trial, the prosecution relied on the ocular account given by Wali Muhammad, Ali Muhammad and Roshan (P. Ws. 7 to 9); the incriminating recoveries at the instance of Nazir supported by Abdul Ghafoor (P. W. 6) and Muhammad Iqbal, S. I. (P. W. 11). When examined under section 342, Cr. P. C., the plea of Abdul Sattar was of denial and false implication due to enmity with the P. Ws. Nazir respondent pleaded exercise of right of private defence. Before the committing Magistrate he stated that he was attacked by Abadan deceased and his brother Wali Muhammad and he defended himself. At the trial, he denied that his brother was ploughing the land in Killa No. 13 and that he himself had a cart. On the contrary, he asserted that he was ploughing the field while Abadan deceased and his brother Wali Muhammad P. W. were cutting fodder in Killa No. 10. He stated that Roshan and Ali Muhammad were nowhere near Square No. 60. When he was ploughing the land, Abadan deceased came up to him and attacked him with a sickle. He defended himself "with the driving stick which I was carrying in my hand and gave him blows with it". He denied having led to the recovery of munni (P. 4) and sickle (P. 5). When asked to explain why the P. Ws. had deposed against him, he stated that his father got warrants of arrest against Roshan and Ali Muhammad, therefore, they were inimical to them. No evidence was produced in defence. The learned trial Judge, it appears, by misreading the evidence came to the conclusion that the respondents had not committed any offence, and, therefore, acquitted them.
10. We have gone through the evidence and have heard the learned counsel for the State as well as for the accused-respondents. All the eye-witnesses and the recovery witnesses have fully supported the prosecution case against the respondents. There is no evidence that the father of Nazir had got issued warrants of arrest of Roshan and Ali Muhammad P. Ws. The allegation of interestedness against these witnesses in the statement of Nazir respondent, is an afterthought.
11. Both these witnesses have explained the reason why they were present near the place of occurrence. Roshan P. W. owned land in Square No. 60, Killas Nos. 19, 20, 21 and 22. He had been ploughing his field since morning. Though Ali Muhammad P. W. did not own any land in the vicinity he, according to both these witnesses, was in the field of Roshan and was collecting some fodder by cutting/ pulling sinji plants from the wheat crop. In view of their chance witnesses. It appears from, the statement of Muhammad Sharif Patwari (P. W. 4) that the respondents are the sons of a Lambardar. There is no reason why Roshan and Ali Muhammad should unnecessarily, by becoming false witnesses, annoy the Lambardar of the ^village. The Patwari has tried to help the respondents. He has stated that Killa No. 19 is divided into three Khasra numbers. Khasra No. 19/1 measuring 18 marlas belonged to one Rukan Din and was uncultivated.
12. Khasra No. 19/2 measuring 2J kanals belonged to Maryam. There was fodder in one and three- quarters kanals while one kanal was vacant. The remaining part of the killa measuring l kanals belonged to one Ghani and had fodder in it. By this, an attempt was made to show that Killa No. 19, which amongst other killa numbers belonged to Roshan P. W., according to him, belonged to other persons. It is curious that the Patwari made this statement without reference to any record.
13. Moreover, he has not denied that Roshan owned Killas Nos. 20, 21 and 22 nor he has denied the fact that all these Killas numbers, i.e., 19 to 22 are under cultivation of Roshan. The names of persons mentioned by him, namely, Rukan Din, Maryam and Ghani as owning Killa No. 19 were not put to Roshan in his cross-examination. Had it been done he might have explained his connection with those persons. According to the prosecution case, there was fodder crop in some portion of Killa No. 10 which belonged to the father of the complainant. The Patwari, in the every first sentence of cross-examination which might have been in answer to a leading question, stated that he saw "barsin growing only in the northeast corner of Killa No. 3 of Square No. 60 and in none of the other area shown by him in plan Exh. P. C. and its copy". We have checked both English and Urdu records.
14. Killa No. 3 is specifically mentioned in his statement. The site plan Exh. P. C., which had earlier been proved by this witness in his examination- in-chief, clearly shows that there was barsin fodder in about 9 karams in the north-eastern corner of Killa No. 10. This is the place where the complainant claimed to have been cutting fodder with his deceased brother. In the above-quoted statement, the Patwari obviously tried to show that there was no fodder in Killa No. 10 and thus the complainant told a lie. But he forgot about this concession to the defence near about the end of the cross-examination and had to revert back to the position adopted by him in the site plan and had to admit that there was (,lusern growing in Killa No. 10 of Square No. 60 in an area of about one kanal". No reliance can be placed on the concessional statement made by the Patwari with regard to the ownership of Killa No. 19 in Square No. 60. We are, therefore, of the view that there is nothing in the evidence to show that the presence of Roshan and Ali Muhammad was improbable. The presence of Wali Muhammad P. W. at the spot has been clearly admitted by Nazir respondent in his statement. Otherwise too, his presence before the occurrence while cutting fodder in Killa No. 10 is neither unnatural nor improbable. The discrepancies pointed out by the learned counsel in the statements of these witnesses are insignificant. We, therefore, hold that all the three eyewitnesses did see the occurrence.
15. The next question is as to whether the story given by Wali Muhammad, the complainant, whose presence at the spot has been admitted by Nazir respondent, should be accepted in its entirety or the right of private defence should be acceded to Nazir. The learned Sessions Judge held that Abadan deceased "interfered with the ploughing of the common boundary line". He further observed that the eye-witnesses admitted "that Abadan had assaulted the accused with a sickle".
16. Both these observations are against the record. None of the witnesses has stated that the deceased assaulted the accused with a sickle. It appears that the learned Judge was, to a large extent, influenced by this impression. The learned Judge also thought that the incised injuries on the deceased were inflicted with "a little force" and because the accused would not have used less than necessary force, therefore, he did not believe the version of the eye-witnesses that Abdul Sattar snatched the sickle from the deceased and gave him the injuries with that. The learned Judge did not visualize a very reasonable possibility that when Abdul Sattar tried to snatch the sickle, the deceased might have in this process suffered those small incised injuries. He was also of the opinion that the injuries attributed to Nazir respondent could not be caused with munni (P. 4) as it had at least 2' diameter, and expressed the opinion that they must have been caused with a driving stick. We have seen the munni (P. 4). We not only differ with the opinion of the learned Judge but are also of the view that he did not devote even cursory attention to this very vital aspect of the matter. One end of the munni is much smaller in diameter than the other. If one were to pull out the munni from the cart, it would be normal for him to catch hold of the munni from the upper and which is much thicker than the other smaller end with which the injuries found on the deceased could very easily have been iaflicted. On the other hand, we do not know of any such ordinary driving stick with a Zamindar with which injuries Nos. 1, 2, 3 and 5 would have-been caused. The weapon must have been as heavy as munni (P. 4) so as to produce the results found in the post-mortem. There was a compound fracture of the skull and, according to the doctor, it was "extensive involving the frontal, occipital and parietal bones. The brain under this fracture was torn and injured". The deceased was a young man of 35 years. Such a heavy damage to his skull could not have been caused with an ordinary driving stick. The prosecution version that a munni of the cart was used by Nazir is natural and is in line with the medical evidence. The learned Judge made mention of the fact that the occurrence took place at noon time but the F. I. R. was lodged at 9 p.m. He, however, failed to notice in this behalf that the complainant had taken the deceased lirst to his village and then to the hospital which is at a distance of five miles. All this distance was covered on a cart. The injured was unconscious. Some arrangements must have been made to make him comfortable for this arduous journey in a cart and it must have taken some time.
17. Moreover, it was after the complete examination and preparation of the medico-legal report that with that report the complainant went to the police station to lodge the report. This, in our view, was sufficient explanation for the so-called delay in the F. I. R. and it has completely been ignored by the learned trial Judge.
18. He also made some reference to the statement made by the Patwari and gave benefit thereof to the respondent on the question of the cutting of fodder from Killa No. 10 by Wali Muhammad complainant and his brother Abadan deceased. The Patwari, we have already noted, definitely made a concessional statement. In this behalf, it is necessary to point out that even Nazir respondent has admitted in his statement before the learned trial Judge, in answer to question No. 3, that "Abadan deceased and his brother Wali Muhammad were cutting fodder in Killa No. 10". This important admission has entirely been ignored by the learned Judge. Thus the fact of there being fodder in Killa No. 10 and it having been cut has not only been established by the statement of Wali Muhammad P. W. but has also been admitted by Nazir respondent. The Patwari has been contradicted in this behalf. Similarly, the Patwari's effort to exclude the presence of Roslian and Ali Muhammad P. Ws. was a clumsy one to support the defence.
19. The question that arises is whether the accused-respondents had any right of private defence and if they had that right whether they (or any of them) have exceeded the same. The statement made by Wali Muhammad has impressed us as frank and straightforward. He has admitted that 15 or I6 years before the occurrence his father and uncle Rukan Din were beaten by the accused and from then ownward there was enmity between the parties. He also admitted that there used to be dispute between them on account of turn of water and whenever there was ploughing of Killa No. 13 a quarrel always developed on account of the ploughing "close to the boundary line". In the F. I.
20. R., the allegation was that the plough went over the boundary This is in line with the above- mentioned admission in cross- examination by Wali Muhammad. On this occasion as well, the plough having gone on the wat the same might have been broken at some place and as the parties used to quarrel on such an incident, it appears correct that Abadan deceased who was present in Killa No. 10 came to the disputed boundary line while he was still carrying a sickle in his hand. On his objection as usual, there was some altercation which led to mutual exchange of abuses. In these circumstances with the background of enmity the accused could have a genuine apprehension that the deceased might use the sickle against any of them. If with that apprehension in mind Abdul Sattar started snatching the sickle and Nazir started giving blows to the deceased with a munnl, initially they did not commit any offence because they were within their right to disarm the deceased. In this connection it may be pointed out +hat al! the three eye- witnesses started running towards the spot and it is quite possible that start of the main occurrence either might not have been observed by them or as they were in the running process they might not have correctly perceived it. The fact that the deceased was not able to cause even a single blow to the accused and the further fact that his sickle was subsequently not available, show that the two accused were successful in snatching the sickle from the deceased in the very initial stage because when the witnesses reached the spot the deceased had already been disarmed and was still being beaten by Nazir. He continued giving the blows to Abadan deceased even after the snatching of the sickle. It was not a case of two groups fighting with each other where, even after disarming one person from an adversary group, the accused may continue to have right of defence against the entire adversary group including the disarmed person. The brother of the deceased having not reached the spot and having not intervened in the fight. Nazir had no right to continue giving blows to the deceased after the sickle had been snatched from him. We, therefore, hold that even though Nazir initially had, to start with, the right of private defence but his having continued giving the blows to the deceased after the snatching of the sickle amounted to exceeding of that defence. His case, therefore, falls within Exception II to section 300, P. P. C. He has committed the offence under section 304, Part I and we accordingly convict him of that offence. He is sentenced to seven years' R. I. and a fine of Rs. 2,000 in default of payment of which he shall further suffer R. I. for two years. The fine, when realized, shall be paid as compensation to the heirs of Abadan deceased. We have already held that a reasonable possibility cannot be excluded that while Abdul Sattar was snatching the sickle from the hand of the deceased he suffered the incised wounds in that process. Abdul Sattar, therefore, does not appear to have committed any offence. His acquittal is maintained and the appeal against him is dismissed. .