1. SALAHUDDIN AHMED, J.---Respondent No. 1 Muhammad Nazir is the father of respondents Nos. 2 and 3, Farman Khan and Mst. Mukhtar Begum respectively. They were convicted under section 302/34 of the Pakistan Penal Code and while respondent No. 1 was sentenced to death, the two others were each sentenced to transportation for life, for causing the death of Amir Zaman, brother of P. W. Nur Khan. All the three were further convicted and sentenced under section 307/34 of the Code to 7 years' rigorous imprisonment each for having made murderous assaults on P. Ws. Nur Khan and Mst. Khadija, and injured them.
2. On reference under section 307 of the Code of Criminal Procedure for confirmation of the sentence of death passed on respondent No. 1, and appeal by the convicts, they were all acquitted by the High Court on the ground that the defence plea of right of private defence appeared to be likely and probable.
3. The occurrence took place on the 26th of September 1969, at peshtwela, and a first information report was lodged about it on the next day at 3 p.m. At Police Station Chauntra, District Rawalpindi, only six miles away from the place of occurrence. According to the prosecution case there were several criminal litigations between the complainant party and the accused party, and there was also a dispute between them over the possession of some land by P. W. Nur Khan. The immediate cause of the occurrence was alleged to be the destruction of a banna which existed between the fields of the two parties. On the day of occurrence Amir Zaman and P. W. Mst. Khadija were working the well, when they saw respondent Farman Khan plough through the banna. On an information sent by Mst. Khadija to her father P. W. Nur Khan, who was busy ploughing his land nearby, the latter came to the spot, and objected to the demolition of the boundary. An altercation attended with exchange of abuses took place between Nur Khan and respondent Farman Khan. Respondent Farman Khan then went to the village and came back armed with a hatchet, and accompanied by the two other respondents, Muhammad Nazir and Mst. Mukhtar Begum. The two last named were armed with a knife and a hatchet respectively. Farman Khan launched the attack with his hatchet, and injured Amir Zaman deceased on his head. Mst. Mukhtar next injured Amir Zaman with a hatchet. P. W. Nur Khan picked up a small hatchet in order to save Amir Zaman from the murderous assault on him. The assailants then turned towards P. W. Nur Khan, and respondent Farman Khan and Mst. Mukhtar Begum both struck on the head of P. W. Nur Khan with their hatchets, and respondent Nazir struck with his knife on the right side of the abdomen and back side of the left flank of the witness. P. W. Nur Khan continued wielding his hatchet with the result that all the three respondents were injured. It may be stated here that P. W. Nur Khan stated at the trial that he bad used his hatchet before he was actually hit, but later he changed his version and .Said that he wielded his hatchet after he was injured on his head.
4. The injured persons were taken to the District Headquarters Hospital, Rawalpindi, and arrived there at 10 p m. It appears that no attempt was made to lodge a report at the police station. It was the doctor who informed the police next day and a Sub-inspector of Police came to the hospital and recorded the statement of P. W. Mst Khadija at 1 p.m. Amir Zaman died in the hospital on the 28th of September 1969, at 7-30 p.m.
5. The respondents pleaded not guilty to the charges framed against them, and stated that they were themselves the victims of aggression and that they acted in self-defence as a result of which Mir Zaman deceased and P. Ws. Nur Khan and Mst, Khadija were injured. They further stated that the complainant was an influential person, and that the former were implicated in the case because of the death of Amir Zaman.
6. Both the parties are closely related to one another. It appears that the name of respondent Mst.
7. Mukhtar was never mentioned in the first information report as an accused, and instead one Fazal Illahi, a maternal uncle of respondent Farman Khan, was said to have accompanied respondents Farman Khan and Nazir. Fazal Ilahi was alleged to have been armed with a lathi and to have caused injuries to the deceased and the two injured prosecution witnesses. It transpires that in the report submitted under section 173 of the Code of Criminal Procedure the name of Fazal Ilahi was put in column No. 2 as an innocent person. It was further transpired that it was on a supplementary statement made by Mst. Khadija that the name of respondent Mst. Mukhtar was substituted for Fazal Ilahi.
8. Respondents Farman Khan and Nazir were arrested on the 4th of October 1969, but it was on the 11th of October 1969, that respondent Nazir led to the recovery of a knife and on the 21st of October 1969, reap indent Farman Khan led to the recovery of a hatchet. It is alleged that both these weapons were found to be stained with human blood.
9. The medical evidence shows that the deceased had one incised wound 3-- x 1' x brain deep on left side of tread, and there was a contusion mark 3" x --on the back of left lower arm. It may be recalled here that accord--ing to the ocular evidence it was Mst. Mukhtar, who had given a hatchet blow on the right shoulder of the deceased. The medical evidence, there--fore, falsified the part attributed to respondent Mukhtar ttegum. This inference is further strengthened by the fact that she was not mentioned in the first information report at all. P. W. Mst. Khadija had one contused wound on the right side of her head, a contusion mark on the left chest, and a linear scratch on the right chest back. P. W. Nur Khan had 11 injuries, out of which four were incised wounds and the rest were caused by a blunt weapon. The incised wound on the right side of his abdomen was found to be grievous as a portion of the omentum had protruded out of this wound.
10. Respondent Farman Khan had no less than 7 injuries, all caused by a blunt weapon. Respondent Mst. Mukhtar Begum had 7 injuries on different parts of her body including two contused wounds on her head. Respondent Nazir had one contused wound 1' x -- scalp deep on the back of the left side of the head. He was brought to the hospital in a semi-conscious con--dition. The injuries upon the respondents are clearly inconsistent with the prosecution story that P. W. Nur Khan had wielded a hatchet and inflicted injuries on the accused in self-defence.
11. It appears that there is hardly any evidence that any banns had actually been demolished by respondent Farman Khan on the day of occurrence. The Patwari, P. W. Shakir Khan, who prepared the site plan, when questioned about the banna stated that if he had been told by any witness that the banna had been demolished he would have mentioned the fact in the site plan. Even the Sub- Inspector who made the investigation did not say anything about the demolition of the banna.
12. It appears from the evidence that there was a fight between the two parties who are closely related to one another, in the land of Shahmad Khan, uncle of wife of respondent Khan. The site plan shows that the occurrence took place in Khasra No. 3225, which, according to the copy of the Register Haq Daran Exh. D. C., was in possession of respondent Farman Khan and his brother Amir Khan. P. Ws. Sher Zaman and Fazal Khan admitted that the police had collected blood from two places in the land of Shahmad and one place in the land of Amir Khan, brother of respondent Farman. These evidences evidently support the defence plea of right of private defence.
13. A suggestion was given to P. W. Mst. Khadija that a day previous to the occurrence the cattle of the complainant party had trespassed into the field of the accused and that the accused persons had beaten the cattle away, and that it was in retaliation that the accused persons were attacked on the day of occurrence. It is true that the witness denied this suggestion but having regard to the facts and circumstances mentioned above, the likelihood the complainant party being the aggressor cannot be ruled out.
14. The prosecution mainly relied upon the evidence of P. W. 25 Niazi Khan in support of its case. It is, however, apparent from his evidence that he could not say as to how the fight between the parties started. Besides, the learned Judges of the High Court noticed certain improvements in his evidence vis-a-vis his previous statement before the police. Further--more his claim that he saw all the three respondents standing on the banna although be had found them injured is inconsistent with the fact that respondent Nazir was brought to the hospital in a semi-conscious condition on account of his head injury.
15. The petition is accordingly dismissed.