1. MUHAMMAD HALEEM, J.-This appeal by special leave arises out of the judgment of the Lahore High Court dated ?9th of September, 1975, by which the first respondent herein was acquitted.
2. According to the prosecution, Muhammad Faizil, an uncle and step--father of the first respondent purchased in 1967, 5 kanals and 19 marlas of land from Muhammad Shafi. This land was a part of the joint holding of the parties and Muhammad Fazil had been cultivating it since long.
3. Muhammad Ashraf, the brother of Muhammad Shafi, pre-empted the sale of this land and succeeded in obtaining a decree from the Court but was unable to get its possession from Muhammad Fazil. On 25th of May, 1971, a little after sunrise, Muhammad Fazil and the first respondent went to the land to plough it. And soon after Ghulam Hussain, P. W. 9, arrived there and picked up a quarrel with Muhammad Fazil over its possession as he claimed to have obtained permission from Muhammad Ashraf, P. W. 7, to till it. This led to grappling between the two and at that moment, the first respondent gave knife blow to Ghulam Hussain, P. W. 9; and as he attempted to give the third blow, Muhammad Fazil intervened and in turn suffered a grievous injury on his abdomen. On hearing the cries, Sardar Khan, P. W. 10, and Maula Bakhsh, who were ploughing their fields nearby came 'and separated them. Thereafter, Sultan Mahmood, the real paternal nephew of Ghulam Hussain, P. W. 9, came to the spot and abused the first respondent but nothing untoward happened until , the noon of the same day. The first respondent, it appears, nursed a grievance and attacked Sultan Mahmood- while he was proceeding alongwith his wife, Mo. Naseem Akhtar, P.
4. W. 12, from his Dhok to his village and gave knife blow on his back as he fled to save his life.
5. However, before he was attacked, h1st. Naseem Akhtar, P. W. 12, had intervened to save him but she was pushed aside and thrown to the ground. This incident was witnessed by Muhammad Latif, P. W.
6. 11, the appellant herein and Noor Khan who were ploughing their field 300 yards away. Later, they removed Sultan Mahmood to his house where he expired soon after. Muhammad Latif, P. W. 11, next proceeded to the Police Station to lodge the report but on the way in village Padshahan, he met the S. H. O. Of Police Station, Duman who recorded his statement (Exh. P/A) which was treated as F. I. R.
7. In the case. The S. H. O. Thereafter proceeded to the house of the deceased in village Langah and arrived there at 6 p. m. At that place Ghulam Hussain, P. W. 9, and Fazil appeared before him. Both of them had injuries on their persons. He sent the dead body for autopsy and the injured to the hospital for medical examination. And on the next day collected blood-stained earth from field No. 305 which was about half a mile from the Dhok of the parties. He next visited the land on which the first incident took place but did not find any trace of blood mark as it had been ploughed on the previous day. On 27th of May, 1971, one Sher Dil produced the first respondent before him who took him into custody and secured from his possession a knife which was not blood-stained.
8. The deceased suffered as many as 4 injuries out of which two were stab wounds and two "incised scratches". The duration of injuries was 20 to 24 hours. On Ghulam Hussain P. W.
9. Two incised wounds were noticed and on Muhammad Fazil two stab wounds, which were grievous in nature.
9. The duration of the injuries on both of them was also 20 to 24 hours which roughly tallied with those found on the deceased.
10. It is of relevance to state that Muhammad Fazil is the consanguine brother of Ghulam Hussain, P. W.
11. 9, while the appellant is his nephew. They are, accordingly, related inter se. Again Ghulam Hussain, P. W. 9, the deceased, Muhammad Latif, P. W. 11, and Noor Muhammad were jointly cultivating the land. Further, the distance between the two places where the incidents had occurred is two furlongs. Neither Muhammad Fazil nor the first respondent lodged the report in regard to the first incident although subsequently Muhammad Fazil had filed a direct complaint under section 307, P.
12. P. C. Against Ghulam Hussain, P. NV. 9, but it appears that he had not prosecuted it and ultimately the case ended in the dismissal of the complaint.
13. The first respondent raised the plea of self-defence and stated that he was jointly cultivating the land with Muhammad Fazil, his stepfather; and that field No. 305, where the first incident took place was in their Hissedari possession. On the date of the incident, Ghulam Hussain, P. W. 9, and Sultan Mahmood trespassed into the field while Muhammad Fazil was ploughing it and caused injuries to him with a knife as they wanted to take its forcible possession, Muhammad Fazil, in the exercise of his right of defence of person and property caused injures to them with a knife; and that he was falsely implicated.
14. At the trial, the prosecution examined Ghulam Hussain, P. W. 9, Sardar Khan, P. W. 10, in regard to the first incident and Muhammad Latif, P. W. 11, and Mst. Naseem Akhtar, P. W. 12, in support of the second, in which Sultan Mahmood lost his life. In the opinion of the trial Court the real question for decision was whether Ghulam Hussain, P. W. 9, Muhammad Fazil and Sultan Mahmood received the knife blows in the morning of 25th of May in field No. 305 or separately, as alleged by the prosecution. The trial Court held that Muhammad Fazil and the first respondent were in possession of the disputed land in their own rights as co-sharer of the joint holding. This fact is supported by the entry in the Jamabandi, which shows them to be in possession even prior to the sale of the land. It is also admitted that Muhammad Ashraf, P. W. 7, was not able to get its possession in spite of the decree for possession in his favour. He was also not examined to prove that he had authorised Ghulam Hussain, P. W. 9, to take possession of his land as his tenant. Therefore, the trial Court held that Ghulam Hussain, P. W. 9, was a trespasser as he had admitted to oust Muhammad Fazil and the first respondent from the disputed land. But it did not consider this question to be pivotal in determining the real issue and went further to hold that what is to be seen is as to whether the deceased accompanied Ghulam Hussain when he went to the disputed land. The trial Court resolved it on its analysis that the deceased was not related to Ghulam Hussain, P. W. 9, but had a common interest in the joint cultivation whereas Ghulam Hussain, P. W. 9, was related to Muhammad Fazil, and the first respondent; therefore, it was not likely that he would involve the first respondent in a false case. In this background the trial Court accepted the testimony of Ghulam Hussain, P. W.9, and Sardar Khan, P. W. 10, as they appeared to it to be independent witnesses in regard to the first incident. In justification of the time of this incident, the trial Court took into consideration the fact that the Police Officer would not have delayed coming to the spot as in that eventuality it would not have taken more than three hours to lodge the first information report.
15. Another circumstance taken into consideration was that if Sultan Mahmood had in the ordinary course left his house in the morning then he would have taken his breakfast and in the event of his death solid food would have been found in his stomach which was not so but only 8 CC of whitish fluid was noticed. From this the trial Court inferred that since the digested food was found in his small intestines in the shape of chyme, therefore, that solid food must have been digested by the time he was done to death. Again, the trial Court held that if he had been injured in field No. 305 then there would have been blood marks in the field but none was noticed. On the contrary they were noticed in the field of Sariwar Kashmiri, which is at a distance of half a mile from this field which established that Sultan Mahmood was given knife blows at that spot. In the result, the trial Court concluded that there were two incidents and the deceased was killed in the second incident, although it held that Sultan Mahmood did come to the spot and abused the first respondent, which provided motive to him to commit his murder.
16. The trial Court next scrutinized the testimony of Mst. Naseem Akhtar and held her to be a reliable witness. As for Muhammad Latif, P. W. 11, his evidence was also accepted. The criticism levelled against him namely, that he was in joint cultivation with the deceased and, therefore, interested in him was brushed aside on the premises that he being a paternal cousin of the first respondent would not falsely implicate him.
17. Lastly, the trial Court repelled the objection that their version was inconsistent with the medical evidence as instead of one two stab wounds were noticed. The trial Court held the two injuries to be the result of one blow in which case it could not be described as such. In this strain, it may also be mentioned here that the trial Court did not place any reliance as to how two stab wounds could have been caused to Fazil when only one blow was alleged to have accidentally struck on him.
18. Accordingly, the trial Court convicted the first respondent under section 302, P. P. C. And contended him to suffer imprisonment for life by judgment dated 13th of September, 1972.
19. On appeal, a learned Single Judge in the High Court held that the trial Court miscalculated the difference of 4 hours in the duration of injuries found on Ghulam Hussain, P. W. 9, and Fazil; and that if the error was rectified then the duration would have tallied with the injuries found on the deceased. Apparently, in the view of the learned Judge the trial Court did not take into consideration the delay of two hours in their examination which took place on the same day at 9 a. m. Therefore, the learned Single Sardar Khan, P. W. 10, the first incident was If that was so then it was spared him in the beat of passion particularly abused him and he too had returned the abuses. - - -" the episode would not have ended there would have also attacked him then and there instead of 6 hours whether to avenge his insult In regard to the prosecution Ghulam Hussain, P. W. 9, had deliberately had trespassed into the field Muhammad Fazil and the first he learned Single Judge held he was not nor was he examined by the Inquiry Magistrate highly doubtful, Muhammad Latif son-in-law towards complainant also disregarded as her conduct was found to be unreliable.
20. Lastly, the learned Single Judge held that ---the injuries on the deceased were not satisfactorily explained by either Muhammad Latif, P.W.11, or Mst. Nasim Akhtar P.W.12 accordingly the learned single judge concluded that the deceased had gave the benefit of doubt to judgment dated 29th of September Leave to appeal was granted to examine the reason given by the learned single judge for acquitting the first respondent as prima facie this appeared to be based on surmises and conjuctures and not any legal evidence.
21. At the outset the he did not wish to prosecute the appeal pursuant to the instructions given to him by the appellant and sought permission to with draw from the case which we allowed of this Court in Slkandar Hayat vAtta and others (PLD1970SC224)and farid v ASLAM and others(PLD 1977 SC 4) as the appellant did not have the right abandon the appealhis will.
22. We then called upon the Assistant Advocate-General, Punjab, to argue the appeal and he pressed it to the hilt. However, there are broad features in the case which support the conclusion of the High Court. It is the prosecution case that the deceased did come to the spot shortly after the injuries were caused to Ghulam Hussain, P. W. 9, and Muhammad Fazil, and at that moment, he and the first respondent exchanged abuses. It does not appeal to reason that having suffered the insult the first respondent would delay in taking the revenge by six hours when it was natural for him to have reacted to the abuses and to inflict on him injuries then and there. In this context the time for reflection appears to me to be out of place; and this is what the High Court has held.
23. Moreover, both Muhammad Fazil and the first respondent were in cultiva--ting possession of the field and it was Ghulam Hussain, P. W. 9, and the deceased who had trespassed into it to disturb his possession. In acting so, there cannot be any other inference but that they were the aggressors.
24. The trial Court has accepted that Ghulam Hussain, P. W. 9, had trespassed into the field which was being cultivated by Muhammad Fazil and the first respondent but erroneously did not proceed further on this line. It deviated to consider whether the deceased accompanied Ghulam Hussain, P.
25. W. 9, initially or had come later. This was begging the question and it seems to me that the trial Court has avoided to place due emphasis on the question of trespass which was pivotal in determining whether there were two incidents or one.
26. Again, the trial Court held in support of the first incident that Ghulam Hussain, P. W. 9, would not have gone to the length of implicating his relatives for the sake of the deceased who was not related to him but only jointly cultivated the land. This reasoning is also absurd as the deceased was related to Ghulam Hussain, P. W. 9, and in this regard it had misread the record.
27. The trial Court had erroneously failed to consider as to how two stab wounds could be caused to Muhammad Fazil if the knife had accidentally fallen once. Obviously, this showed that there were two deliberate knife blows given to him. Even otherwise, it is not possible to believe this tale of the knife striking Muhammad Fazil accidentally. It was, therefore, necessary to establish some other relevant facts, which could have been consistent with this accidental striking of the knife on the deceased. The trial Court merely accepted the ipse dixit of Ghulam Hussain and Sardar Khan who have concocted this tale for reasons best known to them. The High Court has rightly not placed any reliance on Sardar Khan as his presence at the spot was highly doubtful for the reasons given by it; nevertheless the trial Court accepted it particularly when his name was not even mentioned in the F. I. R. It 'also failed to give adequate reasons as to why his presence at the spot should be accepted. We are constrained to hold that being related to Mst. Naseem Akhtar, he was subsequently introduced to support the false versions. Accordingly, no reliance worth the name can be placed on him. As for Ghulam Hussain, there can be no doubt that he also perjured by giving a false version and the High Court rightly held him to have done as to cover his fault. The trial Court erroneously held him to be a truthful witness when his version was untenable in the contest of the probabilities of the case and the two stab wounds suffered by Muhammad Fazil.
28. The trial Court appears to have drawn an erroneous conclusion from the fact that chyme was found in the stomach which demonstrated that the deceased had taken his breakfast in the morning and it was after it was digested that he was murdered. This conclusion is a mere surmise in the absence of any positive evidence that he took his breakfast in the morning. Again, the presence of chyme in the intestines would justify the digestion of the food taken on the previous night. There was also no reason for the deceased not to have evacuated in the morning nor to have emptied his bladder. Both these considerations rightly impelled the High Court to hold that he must have come straight to the field from his bed having regard to the time of the first incident.
29. There can also be no doubt that the duration of the injuries suffered by Ghulam Hussain and Muhammad Fazil tallied with those caused to the deceased. Therefore, there could not have been a difference of six hours as alleged by the prosecution. This circumstance also points to the incident having taken place at one time.
30. It is not understandable as to why no blood marks were detected in the field, as, according to the prosecution, two persons had received knife blows and, therefore, some blood must have fallen on the ground. The explanation given by the Investigating Officer was that presumably the land must have been ploughed on the previous day to destroy evidence. At this juncture it may be of relevance to mention that in the memo. Prepared for securing bloodstained earth allegedly from the field of Sarwar Kashmiri no place is mentioned in it. Therefore, it cannot be ruled out that it might as well have been collected from the field where the first incident had taken place as that is consistent with the probabilities of the case.
31. The testimony of Muhammad Latif, P. W. 1; I, and Mst. Naseem Akhtar, P. W. 12, also appears to us to be dubious, for, their presence has not been established beyond doubt. Muhammad Latif, P. W. 11, stated that he and Noor .Khan were tilling Khasra No. 4559; 338 when he saw the first respondent causing knife blows to the deceased. From the revenue record it is established that this' was owned by Fateh Khan and others and they were in possession of it as would appear from the Jamabandi of 1968-69. Accordingly, there appears to be no reason why Muhammad Latif, P. W. 11, and Noor Khan should have been there to plough the land. As for Mst. Naseem Akhtar, P. W. 12, though she had a suckling child, aged 11 years, yet it is not understandable how she could have left him for as many as six to eight hours without feeding him. Again, there is no sign of either any scratches on her person or her clothes being torn if at all she was pushed and thrown to the ground. It is natural to expect some traces of manhandling which is not the case here. We are, therefore, constrained to hold that these witnesses were named to support the second incident which had not in fact occurred.
32. In this state of evidence it will be reasonable to hold that there was only one incident in which Ghulam Hussain, P.W.9, and the deceased had joined to trespass into the field with the avowed object to take its possession and in order to achieve it had caused two stab blows to Muhammad Fazil and in defence of his person and property, the first respondent had given knife blows to the aggressors causing the death of one of them and injuries to the other. There can, therefore, be no manner of doubt that the first respondent was entitled to exercise his right of self-defence in the facts and circumstances of the case.
33. Accordingly, no exception can be taken to the conclusion of the High Court giving benefit of doubt to the first respondent.
34. The appeal fails and is hereby dismissed. By a short order, we announced the above conclusion and directed that the first respondent be set at liberty forthwith. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.