' ALI HUSSAIN QAZILBASH, J.--This appeal by leave arises from the judgment of a learned Single Judge of the Lahore High Court, dated 5-10-1981.
2. The facts briefly are that on 25-11-1966, the appellants, namely, Manzoor Elahi aged 17/18 years and Mazhar Iqbal aged 13/14 years, were grazing their cattle in the fields close to their house when respondents 2 and 3 arrived there. Lal Hussain (respondent No,2) was armed with a .12 bore gun. He abused the appellants as to why they were grazing their cattle in his field. Manzoor Elahi retorted that they were tending their cattle in their own land and returned the abuses. Jumma Khan (respondent No,3) shouted at his son Lal Hussain respondent to teach lesson to them, whereupon Lal Hussain at once fired at Manzoor Elahi appellant hitting him on the left arm which had later to be amputated. Manzoor Elahi fell down and some pellets also struck Liaquat Ali complainant who was standing close to Manzoor Elahi. Mazhar lqbal appellant stepped forward so as to prevent Lal Hussain respondent from firing another shot but Lal Hussain gave him a blow on his right forearm with the butt end of his gun. On hearing the alarm, Muhammad Sharif (PW.4), the father of Liaquat Ali complainant, who was working in his nearby field, and Saida PW (not produced) also reached the spot. The two respondents were chased and apprehended. They were taken to the village by Khuda Bakhsh and others while Liaquat Ali complainant proceeded to the Police Station Kahuta where the report was lodged at 6.30 p.m. The same evening.
3. Muhammad Hayat, S.I.(PW 9) then went to the spot and recovered one empty cartridge (P.4) and a live cartridge (P.5) from the spot. The injured, namely, Liaquat Ali complainant and Manzoor Elahi and Mazhar Iqbal appellants, were sent to the hospital for medical examination. After the arrest of the respondents and on the completion of the investigation, the respondents were put to trial. The prosecution examined nine witnesses in support of the case including Dr.Niaz Ahmad (PW 6) and Dr.Muhammad Latif (PW 8).
4. Dr. Muhammad Latif (P.W.8) deposed at the trial that Liaquat All and Manzoor Elahi P.Ws had a number of gunshot injuries of various dimensions while Mazhar Iqbal appellant had an abrasion on the right forearm. The said witness who had medically examined Jumma Khan respondent on 26- 111966 found six contusions of various dimensions on various parts of his body. He also appeared as D.W. And deposed that on 26-11-1966 he examined Lal Hussain and found as many as five lacerated wounds of various dimensions and twenty contusions of various dimensions on various parts of his body. He opined that injury No,7 on the person of Jumma Khan was grievous and that his left clavical near the outer end was also fractured.
5. The respondents in their statements under section 342, Cr.P.C. Denied the occurrence as alleged by the prosecution. Lal Hussain further stated that the P.Ws used to cut grass and tree from their land and also used to graze cattle there. His father had told them many a time not to do so and on the day of occurrence when he caught them red-handed, the P.Ws attacked his father and when he came to his rescue, the P.Ws injured him. To the same effect was the statement of Jumma Khan respondent.
6. The learned trial Court relying on the prosecution evidence, vide its judgment, dated 9-7-1967, convicted both the respondents under sections 307/34 and 323/34, P.P.C. It sentenced Lal Hussain to three years' R.I. And a fine of Rs,500 or in default to six months' further R.I. It further sentenced him to two months' R.I. Under section 323/34, P.P.C. Jumma Khan respondent was sentenced to one year's R.I. And a fine of Rs,100 or in default to two months' R.I. Under section 307/34, P.P.C. And one month's R.I. Under section 323/34, P.P.C. A sum of Rs,400 out of the fine if recovered was ordered to be paid as compensation to Manzoor Elahi P.W.
7. The two respondents then filed a criminal appeal against their conviction and sentence whereas Liaquat Ali filed a revision petition for the enhancement of the sentence of the respondents. Both the matters were disposed of by the learned Sessions Judge, Rawalpindi, vide judgment, dated 22- 11-1967, whereby he dismissed the appeal of the respondents against their conviction and sentence and while accepting the revision petition filed by the complainant recommended for enhancement of the sentence of both the respondents under section 307/34, P.P.C. The respondents filed a revision in the High Court against their conviction and sentence which was taken up for consideration by Gulbaz Khan, J. Alongwith the reference sent by the Sessions Judge. Ultimately the revision petition filed by the respondents was accepted and they were acquitted of the charges and the reference submitted by the Sessions Judge was rejected.
8. Leave in this case was granted to consider whether the High Court had correctly applied the well-established principles of appraisal of evidence in criminal cases in acquitting the respondents.
9. The learned counsel for the parties heard and the record perused. The learned Judge in his Chambers has passed the order of acquittal in this case on two considerations, the first being the failure of the prosecution in establishing the place of occurrence and the second a deliberate attempt by the prosecution to suppress the injuries on the person of the respondents. These findings have, however, been disputed by the learned counsel for the appellants.
10. After the re-appraisal of the whole evidence we have come to the conclusion that the findings arrived at by the learned Judge were absolutely correct. The learned trial as well as the appellate Court have obviously misread the evidence produced by the prosecution as to the place of occurrence in this case. There is no evidence except the bare statement of the injured P.Ws that the occurrence had taken place in the fields of the complainant. On the other hand, the case of the respondents was that the P.Ws used to graze their cattle in their fields and in spite of repeated demands the P.Ws did not refrain from doing so and on the top of it launched an attack on them.
The fact that on the day of occurrence the injured P.Ws had taken their cattle for grazing in the fields owned by the respondents has fully been established by the statement of Muhammad Khan (P.W.5) who appeared as investigating officer in this case. At the trial he deposed that the occurrence had taken place in Khasra No,596 and the name of the complainant party was not entered in the said Khasra number as owners as per the relevant Jamabandi. This statement is supported by Muhammad Afzal, Patwari Halqa Kahuta (D.W.1) who deposed at the trial that the accused party is one of the owners in Khasra No,596; that the complainant party is an owner in Khasra No,523 and the same is situate at a distance of 40 Karams away from Khasra No,596. The Patwari further stated that the invervening fields between Khasra Nos. 523 and 5% did not belong to the complainant party. From the above it has become abundantly clear that the occurrence had taken place in the fields owned by the respondents and the P.Ws had trespassed into their lands and were grazing cattle without their permission, therefore, they had every right to protect their property and stop the complainant party from interfering with the same.
11. As for the second consideration, the learned trial and the appellate Courts again erred in holding the respondents guilty of the offence. There is no doubt that Liaquat Ali and Manzoor Elahi P.Ws have received serious and grievous gunshot injuries on their persons but this fact alone was not sufficient at all to conclude that the prosecution had proved its case. It is a matter of record that the two respondents too have a large number of injuries on their persons and two of them on the person of Jumma Khan were also grievous. The injuries on the person of the two respondents have neither been explained in the F.I.R. Nor have the same been explained by the P.Ws. At the trial. It is true that the witnesses who had the stamp of injuries on their persons were present at the spot but it was also to be assessed whether they were telling nothing but the truth, which obviously they were not. The injured witnesses had suppressed a very important piece of evidence which, of course, was going against them, the learned Judge was, therefore, fully justified in discarding their evidence. The place of occurrence in this case, the injuries on the two respondents and the stand taken by them in their defence has reacted on whole of the prosecution case and thus the case built up against them has become doubtful.
12. As a result the appeal fails and is hereby dismissed.
' NASIM HASAN SHAH, J.--I have added a separate note and ultimately agreed to the conclusion that the appeal be dismissed. SHAFIUR RAHMAN, J.-- Lal Hussain, who was armed with a licensed gun and had a live cartridge to spare after he had fired one shot had 21 contused wounds and 4 lacerated wounds on his person. His father had six contused wounds some resulting in fracture of the rib. In the F.I.R. No mention was made of their injuries. At the trial the three injured stated about it as follows:- ' Liaquat P.W.1 "Jumma and Lal accused received no blows on the spot to my knowledge."
' Manzur P.W.2 "I do not know if somebody had beaten the accused as well."
' Mazhar IQhal P.W.3. "I do not know who gave beating, if any, to the accused party."
' It is only Muhammad Sharif P.W.4, who stated:- "The gathering in the village belaboured the accused after they had been apprehended."
The close range from which the gun was fired coupled with the fact that the accused were apprehended at that very spot and not after a pursuit, that the only live spare cartridge available had fallen at the spot and was recovered from there alongwith the empty makes it abundantly clear that the injuries were received by the accused either before or during and not after the occurrence, when the shot was fired. The venue of the crime being their own land and not that of the complainant and they having received such and so numerous injuries, were justified in firing one shot and one only and in doing so they did not exceed the right of private defence of their person and property. Their acquittal by the High Court was quite proper and amply justified.
' With these observations I concur that the appeal be dismissed.
' NASIM HASAN SHAH, J.--I was of the view that Lal Hussain, respondent, exceeded the right of defence of his person and property in firing with his gun at Manzoor Elahi and further that the injuries suffered by the respondents were not at the spot but at village Dolian, as stated by Liaquat Ali, P.W.1 and that the said injuries were inflicted not by the P.Ws. But by Hukamdad etc. Against whom the respondents lodged a report under section 325/34, P.P.C. And, therefore, the order of acquittal deserved to be set aside. However, as two of my brothers think otherwise I would agree, though somewhat reluctantly, that the appeal be dismissed.