The two appellants namely, Mithu and Nura who are uterine brothers Inter se, were tried along with seven others by Mr. Muhammad Arahad, Sessions Judge, Muzaffargarh, for offences under sections 148, 447, 302 and 307 read with section 149, P. P. C. The two appellants were convicted under section 302/34, P. P. C. And sentenced to transportation for life, while their co-accused were acquitted.
2. The occurrence took place on 28th of April 1970, at 8 a. m. In village Daya Chaukha, Police Station Kot Adu, District Muzaffargarh, in the land belonging to Rabnawaz P. W. a brother of Hassu Khan, the first informant in this case. In this incident Allah Dad son of Hassu Khan (P. W. 8) lost his life and Hassu Khan, Muhammad Akram sister's husband and Murad a brother of the deceased respectively received injuries.
3. The evidence of the prosecution was to the effect that Hassu Khan P. W. Was in cultivating possession of the land of his brother Rabnawaz when the two appellants and their co. Accused tried to take possession of the land in dispute. When they were asked to desist from their criminal design they gave injuries to Allah Dad deceased and other P. Ws. Mentioned above.
4. Allah Dad was taken in an injured condition in the first instance to Sanawan Hospital wherefrom he was directed to be taken to Muzaffargarh Hospital. He died on reaching the hospital in Muzaffargarh. The F. I. R. Exh. P. A/1 is based on the statement Exh. P. A. Made by Hassu Khan (P. W. 8) in Police Post Sanawan before A. S. I. Muhammad Khan (P. W. 13) at 8-30 a. m. The same day.
5. The land admittedly belongs tea Rabnawaz the brother of Hassu Khan. The case of Hassu Khan was that in the absence of his brother Rabnawaz, who had migrated to another Chak, he had got possession of the land in dispute two months before the occurrence. The case of Rabnawaz was however different. He said that he had shifted to another Chak and had sold away the crops to one Meeru an uncle of Mithu appellant. He said that he had not leased out the land to Neeru. He, however, had admitted before the com--mitting Magistrate that he had leased out the land in dispute to Mare. Hassu himself had stated in the F. I. R. That the land bad been given for a year to Meeru on mustajri. A document marked Exh. P. O. Was also produced by the prosecution before the committing Magistrate which supported the assertion of the accused party that the land had been leased out by Rabnawaz for a year to Meeru. This document was not proved at the trial but the admission of Rabnawaz made before the committing Magistrate clearly shows that the accused party were in possession of the land. The assertion of Hassu Khan that he had sown Jawar in the land one hour before the incident is not borne out by any evidence. The learned Sessions Judge on these facts came to the conclusion that the possession at the relevant time was that of the accused party.
6. Recovery of laths was made during the investigation and one of these longs was found to be stained with human blood. The learned Sessions Judge ignored these recoveries because according to Muhammad Sulaiman (P. W. 7) the witness of reco--very, the dangs had been produced not individually but collec--tively by Allah Wasaya lambardar.
7. The relationship of the eye-witnesses has been given above which would show that they are closely related inter se.
8. The fact that nine persons had been involved in this case influenced the mind of the learned Sessions Judge in such a way that he did not discuss the evidence against the other accused and proceeded to determine the criminality of the present appel--lants who bore injuries on their persons. Mithu appellant had a reddish-blue contusion on his right thumb measuring 1' x 1' while Noora appellant had a contusion on his back measuring 4' x --'. The above would show that Noora appellant had probably received this injury with a lathi
9. Hassu Khan P. W. Had stated that after sowing the Jawar crop in the disputed field, he had gone to his house which is near-- by. The accused then came with three pairs of bullocks and tried to plough the land. On this he, his sons Allah, Dad deceased and Murad P. W. And Akram his son-in- law came to the spot and tried to stop the accused from their trespass. He further went on to say that Mithu appellant gave a blow to Allah Dad deceased on his head and thereafter his co- accused Ahmad and Gama who have been acquitted, gave blows to the deceased with the result that he fell down. Noora appellant and his co-accused Muhammada and Wazira gave injuries to Akram P. W. While Shimla. Sarwar and Allah Diwaya gave blows to Murad . When he went forward to save Allah Dad, Nura gave him a blow. The learned Sessions Judge, as observed earlier, did not appreciate this evidence against each of the accused and proceeded to appreciate the evidence against the appellants who had received injuries. There was admittedly no background of enmity between the parties and in my view the learned Sessions Judge failed in his duty to analyse the evidence against each one of the accused who had been ascribed specific parts.
10. The learned Sessions Judge has said that the accused had a right of private defence of property. On this legal premises each accused would be responsible for his own individual Act because where a right of private defence exists it cannot be said that all the accused ace vicariously liable for the action of each one of them. He, however, proceeded to build his own promises for the conviction of the appellants under section 302, P. P. C. He referred to certain passages in the cross-examination of Hassu P. W. Wherein the learned defence counsel had suggested that Hassu, the deceased and other P. Ws. Had come to the spot by turns and thus had received injuries. It was also suggested in the cross-examination that both the accused had given blows to the deceased in self-defence although the case of the prosecution clearly was that Nura appellant had not given any blow to the deceased. Treating this as evidence, the learned Sessions Judge held that Allah Dad was perhaps unarmed at the time of the occurrence and that both the appellants having taken part in giving injuries to the deceased, bad exceeded the right of private defence. I must observe that it is a very unsafe and dangerous way of dispensing criminal justice.
The questions put in cross---examination are not at par in any way with admissions by the accused persons. The onus to bring home an offence to a person is always on the prosecution and it cannot be said that a careless question by a counsel can lay the foundation for the conviction of the accused although the prosecution story may be quite con--trary to the suggestion made in the cross-examination. The conviction has to be made on the basis of the prosecution evidence.
Nura appellant, according to the prosecution, is said to have joined is giving blows to Akram and Hassu P. Ws. Their injuries are found to be simple in nature. He had, therefore in my opinion, a right to cause simple injuries to the trespassers who had entered into the land which was in his lawful possession. His conviction and sentence are set aside. He shall be set at liberty, unless lawfully required to be detained in connection with some other case.
11. So far as Mithu appellant is concerned, .He has only a small contusion on his thumb. It cannot be said under the circumstances of the case that he bad tae genuine apprehension of any grievous hurt. He could not, therefore, have gone to the extent of causing injury on the head of the deceased which proved fatal. But again, he could not have been convicted under section 302, P. P. C. As Exception (2) to section 300 clearly states that culpable homicide is not murder if the offender in the exercise of the right of private defence exceeds the power given to him by law. The illustration under this Exception further elucidates the legal position. The learned Sessions Judge while convicting the two appellants under section 301, P. P. C. Lost sight of this signifi--cant provision of law.
12. Mithu appellant exceeded, the right of private defence. I, alter his conviction from one under section 302 to that under section 304, Part I, Pakistan Penal Code and sentence him to ten years rigorous imprisonment. The appeal is decided accordingly.