' This judgment will dispose of Criminal Appeals Nos. 668 of 1977 and 718 of 1977, which arise out of the same judgment dated 31-7-1977 passed by the Sessions Judge, Muzaffargarh. The appellants, namely, Ata Muhammad, Noor Muhammad, Manzoor and Azim Bakhsh (in Criminal Appeal No, 668 of 1977) and Muhammad Iqbal (in Criminal Appeal No, 718 of 1977) were tried under section 148/302/307/149, P.P.C. For forming an unlawful assembly and committing murder of Amir Bakhsh and inflicting injuries to Habib Bakhsh and Muhammad Yar P.Ws., in furtherance of their common object of committing murder of the deceased and making murderous assault on the injured P.Ws.
They were convicted by the trial Court under section 304, Part II of the P.P.C. And sentenced to 5 years' R.I. Each with a fine of Rs,1,000 each or in default of payment of fine to undergo R.I. For 6 months each. They were also ordered to pay compensation of Rs,1,000 each to the legal heirs of the deceased or in default to undergo R.I. For 3 months each.
2. The prosecution story is that on the night between 15/16-4-1975, the hand pump of Shahru P.W.
Was stolen and in the morning, a party consisting of Shahru, Habib Bakhsh, Muhammad Yar, Pir Bakhsh and Ghulam Sarwar, P.Ws. And Amir Bakhsh deceased was formed and the foot tracks of the thieves were followed upto the house of Allah Wasaya accused (since acquitted), who was called out from his house and was asked to produce the hand pump. He abused tile members of the party and on his Lalkara his sobs Noor Muhammad, Ata Muhammad, Manzoor Ahmad and his relatives Azim Bakhsh and Muhammad Iqbal, appellants, came there, armed with Dangs. Allah Wasaya raised a Lalkara for not sparing Amir Bakhsh. Thereupon, the appellants attacked Amir Bakhsh and caused as many as six blunt weapon injuries, out of which injury No,1 attributed to Ata Muhammad was found to be grievous and had proved to be fatal. When Qadir Bakhsh complainant and other P.Ws. Tried to rescue Amir Bakhsh, Noor Muhammad accused gave Dang blow on the head of Habib Bakhsh, Allah Wasaya accused gave fist blow on the mouth of Habib Bakhsh and Manzoor gave Dang blow on the left thigh of Muhammad Yar. Muhammad Yar and Habib Bakhsh P.Ws. Injured Ata Muhammad, Azim Bakhsh and Noor Muhammad in self-defence.
3. Amir Bakhsh deceased and the injured P.Ws. Were initially taken to the house of the complainant, where Amir Bakhsh became unconscious. Qadir Bakhsh complainant proceeded to Police Station Mahmood Kot and lodged F.I.R. Exh.P.A. On 16-4-1975. In the meanwhile, Amir Bakhsh died in the house of the complainant after the evening prayer's time. The motive alleged in the F.I.R. Is that the accused nourished grudge against Amir Bakhsh as Mst. Zohra daughter of Allah Wasaya accused was abducted by the deceased about 20 or 21 days prior to the occurrence but the abductee had to be returned by the deceased through the village Panchayat.
4. Noor Muhammad, Azim Bakhsh (now dead) and Ata Muhammad were arrested on 17-4-1975 and Allah Wasaya (since acquitted), Manzoor and Muhammad lqbal appellants were arrested on 19-4-1975. Ata Muhammad, Noor Muhammad, Azim Bakhsh and Manzoor accused led to the recovery of Sotas/Dangs P.8, P.9, P.10, P.14 and P.18, respectively.
5. The post-mortem on the dead body of Amir Bakhsh deceased was performed on 17-4-1975 by Dr. Amir Bakhsh P.W.8, who found the following injuries on his body:-
(1) A lacerated wound 1-1/2" x 1/2" and deep up to bone 2-1/2" inner to left ear on the left side of middle part of the head.
(2) A bruise 12" x 3" on the frontal and external aspect of right upper arm.
(3) A contused wound 2" x 1/2" on the back of middle part of right fore-arm.
(4) A bruise 10" x 3" on the fornt of left upper arm obliquely.
(5) A contused wound 1/2" x 1/2" on the back of left elbow joint.
(6) A contused wound 1-1/2" x 1/4" on the back of buttocks over the middle part.
' Injury No,1 was found to be sufficient to cause death in the ordinary course of nature. Muhammad Yar, P.W.11 had one blunt weapon injury which was found to be simple by the doctor. The medico- legal report of the said witness is Exh.P.AA. Habib Bakhsh P.W.13 also had one blunt weapon simple injury. On the other hand, three appellants, namely, Noor Muhammad, Azim Bakhsh and Ata Muhammad were injured. Noor Muhammad had the following injuries:-
(1) A contusion mark 3" x 1" on the back of right shoulder.
(2) Contusion 2-1/2" x 1" below injury No,1.
(3) Abrasion 1" x 1/2" on the back of left chest.
(4) Abrasion 1/4" x 1/4" on the back bone lumbar region.
(5) Complains of pain of right thumb.
(6) Abrasion 1/2" x 1/2" on the left clavical region.
(7) Abrasion 1-1/2" x 1/2" on the inner side of the left arm.
(8) Circular wound 1/4" x 1/4" on the inner side of right thigh upper part appears to be wound of entry of bullet as there is no wound of exit present on the whole of the thigh, therefore, it will be confirmed on X-ray. Corresponding hole is present on the Chadar. Advised X-ray right thigh.
' Azim Bakhsh had the following injuries:-
(1) Lacerated wound 1/1-2" x 1/2" bone deep on the middle and top of the head.
(2) Contusion 2-1/2" x 1" on the back of the right shoulder.
(3) Contusion 6" x 1" passing crosswi se on the lumbai region.
(4) Contusion 5" x 1", 3" below injury No,3.
(5) Contusion 4" x 1" on the right buttock.
(6) Painful swelling left forearm.
' Ata Muhammad had the following injuries:-
(1) Abrasion 1/4" x 1/4" on the left side of the face near the lower jaw.
(2) Abrasion 1/4" x 1/4" on the left side of the neck.
(3) Two abrasions 1/4" x 1/4" each on the back of right arm.
(4) Abrasion 1/4" x 1/4" on the back of right ring finger middle part.
(5) Multiple abrasions on the back of left forearm with slight swelling.
6. The prosecution tried to prove its case through the ocular evidence of Shahru P.W.10, Muhammad Yar P.W.11, Habib Bakhsh P.W.13, the medical evidence, the motive and recoveries of Dangs from Ata Muhammad, Noor Muhammad, Azim Bakhsh and Manzoor appellants.
7. When examined under section 342 of the Cr.P.C. Manzoor son of Allah Wasaya stated that at the time of the occurrence, he was collecting the bundle of reaped wheat near his house and that he came on hearing the report of gun fire and saw that the complainant party was running away from there. Allah Wasaya stated that he was not present in the house. He further stated that two of his daughters. Mst. Zohra and Mst. Sakina, were abducted by the complainant party and were returned 3/4 days prior to the occurrence. The other three appellants, namely, Ata Muhammad, Noor Muhammad and Azim Bakhsh admitted the occurrence but pleaded that they were subjected to attack and had acted in the exercise of their right of self-defence. They pleaded that Amir Bakhsh had, in fact, come to re-abduct Mst. Zohra and Mst. Sakina and had trespassed into the house with the said object. In reply to question No,8. Ata Muhammad appellant stated as under:- "The complainant party including the deceased committed criminal trespass in our house ... In order to abduct my sisters Mst. Zohra and Mst. Sakina while armed with hatchets, fire-arms and Dangs. On seeing the complainant party and the deceased coming towards our house we took shelter in our house and closed the door from inside. The complainant party and the deceased entered the house after breaking the door with the hatchet. Amir Bakhsh deceased and his brother Ghulam Nabi started dragging Mst. Zohra and Mst. Sakina. Noor Muhammad and Azim Bakhsh may co-accused intervened in order to release the said girls from the complainant party but they were attacked by the deceased and other members of the complainant party and were injured. I picked up Soti from there and intervened in order to release my sisters, brother and uncle who were being beaten. Amir Bakhsh deceased and his brother Nabi Bakhsh were given one or two blows each by me. Our women-folk and other persons who had assembled there started hurling brick-bats on the complainant party to compel them to leave the house. I did not give any fatal blow to deceased Amir Bakhsh on his head. The complainant party fired and one of the bullets hit my brother Noor Muhammad on his leg. The fatal injury might have been caused by brick-baiting to Amir Bakhsh deceased. Amir Bakhsh deceased became unconscious and, therefore, the complainant party left him inside the Kotha and ran away."
' It is contended by the learned counsel for the appellants that admittedly, a few days before the fateful incident, Amir Bakhsh deceased had abducted Mst. Zohra and was forced to return her through the village Panchayat. He was probably enamoured of the lady and had come to re- abduct her on the night between 15/16-4-1977. The entry into the house of Allah Wasaya accused (since acquitted) was forcibly effected by breaking open the door. The broken planks of the door were recovered during the investigation through the recovery memo. Exh.P.B. He further contends that three of the accused were given as many as 19 injuries collectively including one bullet injury caused to Noor Muhammad appellant but no explanation whatsoever was offered by the prosecution for the said injuries. According to the learned counsel, the appellants were subjected to aggression and had complete right of self-defence.
8. There is considerable force in the contentions raised by the learned counsel for the appellants.
To begin with the F.I.R. In it was stated that Ata Muhammad, Azim Bakhsh and Noor Muhammad were also injured at the hands of Muhammad Yar and Habib Bakhsh, who were said to be armed with Sotas. However, there is no explanation at all for the bullet injury caused to Noor Muhammad.
Even at the trial, no effort was made by the eye-witnesses to explain all the injuries suffered by the three appellants. It is significant that Amir Bakhsh deceased was earlier accused of having abducted Mst. Zohra daughter of Allah Wasaya and sister of Ata Muhammad and Noor Muhammad, appellants. Hence, Amir Bakhsh was not at all expected to join the Wahar party for going towards the house of Allah Wasaya in search of hand pump of Shahru P.W.10. Even if the story of theft of the hand pump of Shahru is believed to be correct, then at least, Amir Bakhsh was not at all expected to join the party because he was accused of abduction of Mst. Zohra in the recent past. The possibility that the deceased was enamored of the lady and tried to re-abduct her with the help of Muhammad Yar, P.W.11 and Habib Bakhsh, P.W.13, cannot be ruled out. It has also come in the evidence that wooden planks of the house of Allah Wasaya, father of Mst. Zohra, were broken.
This fact is indicative of forcible entry and criminal trespass into the house. The appellants received a large number of injuries as mentioned above. Noor Muhammad appellant had received as many as 8 injuries including one fire-arm injury, Azim Bakhsh had received 6 blunt weapon injuries, out of which injury No,6 was grievous and Ata Muhammad had 5 injuries including one multiple abrasion.
The injuries received by the appellants for which no satisfactory explanation was offered by the prosecution are fairly indicative of the fact that they were subjected to a planned attack and injured. In the circumstances, they had the right of self-defence. While acting in the exercise of the said right, they did not exceed the same because Muhammad Yar, P.W.11 was Oven only one simple injury, while Habib Bakhsh was also given only one simple injury. The deceased received 6 injuries, out of which one happened to be fatal. Although the number of injuries by itself is not sufficient to establish as to who is the aggressor, but coupled with other factors including the motive, the place of occurrence, the recovery of broken wooden planks of the house of Allah Wasaya, it fairly demonstrates that the appellants were the victims of aggression. They had justification in law to cause injuries to the complainant party in the exercise of their right of self-defence and defence of their near and dear ones. In this view of the matter, both the appeals are accepted, the convictions and sentences of the appellants are set aside and they are acquitted of the charges against them.
They are already on bail. Their bail bonds are discharged