Four appellants, namely, haqirullah (41), Haq Nawaz (36), Wali Dad (26) and Allah Bakhsh (27), were tried under section 302/325/323/447 read with section 34, P. P. C. For the murder of Amir Bakhsh and having caused injuries to Allah Bakhsh and Sultan P. Ws. They were convicted under section 304, Part 1 read with section 34, P. P. C. With an award of four years' R. I., one year's R. I. Under section 325/34, P. P. C. And six months' R.I. Under section 323/34, P. P. C. Each vide the judgment elated the 18th of July 1964, passed by Additional Sessions Judge, ill, Multan. However, all the accused were acquitted of the barge under section 447, P. P. C. It was directed that the sentences shall run concurrently. The appellants have filed this appeal against their convictions and sentences.
2. Faqirullah and Wali Dad are brothers, while Haq Nawaz is married to their sister. Allah Bakhsh is a tenant of Faqirullah and Wali Dad.
3. Briefly the prosecution case is that Hakim Allah Ditta father of Faqirullah and Wali Dad appellants took 42 acres of land in Chak No. 11/T.R., Tehsil Multan in auction along with one Muhammad Ismail in March 1957, for Rs. 58,868. Out of this land Hakim Allah Ditta by an agreement (Exh. P. H. H.) dated 1st March 1961, sold 11 bighas of land to Allah Ditta Hajam, father of Amir Bakhsh deceased, and Allah Bakhsh P. W. Hakim Allah Ditta promised to execute a registered sale deed after he had paid all the instalments to the Government. The possession of the land was never delivered to Allah Ditta Hajam. Allah Ditta Hajam complained to Malik Muhammad Akram Bosin and Hakim Allah Ditta executed an agreement (Exh. P. T.) by which he undertook to give five Killas of land bearing Nos. 21 to 25, in Lot No. 23, Square No. 14, as security for the debt of Rs. 7,000 which he had already received and that within one year either he would repay the amount or get the said land transferred in the name of Allah Ditta Hajam or pay him Rs. 14,000 by way of penalty.
4. On the 5th of July 1963, at about 8 a. m Amir Bakhsh deceased was ploughing the disputed land when Allah Bakhsh P. W. And his partners Sultan and Fazil came from village Tatepur, which is at a distance of five miles from the spot, for purchasing buffaloes and met Amir Bakhsh deceased.
Shortly afterwards the appellants turned up there and they asked the deceased not to plough the land which led to the exchange of hot words. Haq Nawaz was armed with a hatchet and the remaining appellants had a dang each. They caused injuries to the deceased as well as to Allah Bakhsh and Sultan P. Ws. The deceased died at the spot. Faqirullah and Wali Dad appellants also received injuries. Nawaz (P. W. 8), who also witnessed the occurrence proceeded to Police Station Makhdum Rashid, which is at a distance of 15 miles from the place of occurrence and met Sh.
Muhammad Iqbal (P. W. 23), at a fair at Makhdoom Rashid and made the statement (Exh. P. B), which the A. S. I. Sent to Police Station for formal registration of the case. The formal F. I. R. (Exh. P.
B/1) was drawn by H. C. Fateh Muhammad.
The A.S.I. Sh. Muhammad Iqbal after scribing the statement reached the spot at about 4 p. m. And prepared the injury statement (Exh. P. O/3) and inquest report (Exh. P. F), in respect of Amir Bakhsh deceased and sent the dead body to the mortuary for post-mortem examination under the escort of F. C. Sultan P. W. He also prepared the injury statements (Exh. P. S/1, and P. R/1), in respect of Allah Bakhsh and Sultan P. Ws. He also prepared the injury statement of Faqirullah appellant. He secured the blood-stained earth from the spot vide memo. Exh. P. C. Blood-stained sota (P. 4) vide memo.
Exh. P. E. And three pieces of blood-stained stick (P. 1/1-3) were secured vide memo. Exh. P. B.
S. H. O. Muhammad Iqbal Shah (P. W. 15) reached the spot at 7 p. m. And took over the investigation from the A. S. I. On 6th July 1963, he arrested Wali Dad and Allah Bakhsh accused and secured blood-stained clothes (P. 10 to 12) of Wali Dad vide memo. Exh. P. L. Allah Bakhsh accused produced blood-stained danda (P. 5), which was secured vide memo. Exh. P. G. Wall Dad accused produced blood-stained danda (P. 6) which was secured vide memo. Exh. P. H. On the same day he arrested Faqirullah and secured blood-stained clothes (P-. 7 to 9) vide memo. Exh. P. K. He also prepared the injury statement (Exh. P. Q.) of Wali Dad accused.
5. Dr. Abdul Qayyum, Medical Officer, Civil Hospital, Multan, performed the autopsy on the dead body of Amir Bakhsh on 6-7-1963 at. 5 p. m. And found eleven injuries, of which injuries 1 to 4 were lacerated wounds, No. 5 was an incised wound and Nos. 6 to 11 were abrasions.
On internal examination he found that the scalp was oedamatous and swollen all over. It was infilterated with blood on the left side, back and less on the right side. The skull showed a comminuted fracture of the left parietal bone and fracture of left temporal bone, left occipital bone, fracture of right occipital bone, fracture of posterior cranial fossa right side and fracture of middle cranial fossa left side and fracture of the orbital plate of the left frontal bone.
The cause of death, in the opinion of the doctor, was due to shock and haemorrhage due to injuries 1, 3, 4 and 11, resulting in multiple fractures of the skull, compression to the brain proving fatal in the ordinary course of nature being ante-mortem and were caused by a blunt weapon, which were sufficient individually and collectively. Injury No. 5 was caused by a sharp-edged weapon and the remaining by a blunt weapon. The probable time between injuries and death was immediate and between death and post-mortem was 24 to 36 hours.
Sultan P.W .Was found to have sustained one lacerated wound, three contusions and an abrasion.
Three injuries were kept under observation while two were declared simple.
Allah Bakhsh P. W. Was found to have sustained two lacerated wounds and one contusion. The injuries were kept under observation.
6. Faqirullah accused was found to have sustained three lacerated wounds, five abrasions, one contused wound and an abraded wound. Injuries 1 to 3 and 8 were kept under observa--tion while the remaining were simple.
Wali Dad accused was found to have sustained one abraded wound, one tender swelling and pain in the left thumb. All the injuries were simple in nature.
7. The appellants pleaded not guilty to the charges and denied the prosecution allegations against them. Allah Bakhsb and Haq Nawaz denied their presence at the spot. Faqirullah and Wali. Dad denied the sale of land by their father to Allah Ditta Hajam. Explaining the injuries on their persons, they stated that the deceased, his brother Allah Bakhsh and Sultan P. Ws. Came to his land and wanted to plough it which was resisted by him and his brother Wali Dad, which led to abuses and they attacked them and they were injured. They (the accused) took out bailons from the panjalies of their plough and used the same in their self-defence. There was a free fight. They produced no evidence in defence.
8. The learned trial Judge came to the conclusion that the possession over the disputed land was not of the complainant party and that the complainant party wanted to take possession of the disputed land on the day of occurrence in the morning. He also reached the conclusion that the appellants had no right of private defence. He convicted and sentenced the accused as mentioned above.
9. I have gone through the evidence on the record very carefully and also the reasons given by the trial Judge. I am afraid I cannot contribute to the findings of the trial Judge. The fight is admitted between the parties. The complainant party received 19 injuries while the accused party received 13 injuries. The law relating to self-defence makes the accused the judge of his own danger and permits him to repel the attack even to the taking of life and we are to judge him by placing ourselves in the same position in which he was placed. The learned trial Judge was wrong in holding that the accused had no right of private defence to exercise (n this case to protect their property and this finding is contrary to the observation already made by him that the possession over the disputed land was that of the appellant and in my opinion they were quite justified to protect their property and also claim the right of private defence. I also find that the learned trial Judge has disbelieved the eye-witnesses, namely, Allah Bakhsh (P. W. 4), Sultan (P. W. 5), Fazal Muhammad (P. W. 7), Nawaz (P. W. 8) and Allah Ditta (P.W. 10) with regard to the details of occurrence, because the prosecution evidence is wholly unsatisfactory in many respects as they are not consistent, with regard to who caused injuries to whom and no reliance could be placed on the testimony of the eye-witnesses who are interested and on inimical terms with the accused. No reliance can be placed on the testimony of the eye-witnesses without corroboration of their testimony. However; this corroboration would exist against the injured accused or those who admitted their presence at the spot but in their case as I have held that the right of self-defence protects them and they have not committed any offence.
10. For the reasons above, I accept this appeal, set aside the conviction and sentences of the appellants and acquit them of all the charges. Faqirullah, Wali Dad and Allah Bakhsh appellants were on bail and they shall be discharged from their bail bond. So far as Haq Nawaz is concerned, he was not allowed bail by this Court but as stated for the learned counsel he had already been released after serving his sentence. Therefore, no release warrants are to be prepared in his respect.