MAZHAR-UL-HAQ, J.--Murad Shah (20), Salamat Shah (30), Gaman Shah (18), Manzoor Shah (22), Saddan Shah alias Sadar Din Shah (25), Nur Shah (24) and Ahmad Shah (3U) of village Tibbi Saidan Shah in Multan District, were tried under sections 148, 302, 307 read with sec--petition 149 of the Pakistan Penal Code for rioting, armed with deadly weapons, for the murder of Ramzan Shah and attempted murder of Karim Hyder Shah, Amir Shah, Fida Hussain Shah, Mst. Jai Bibi and Mst.
Faiz Bibi. P. Ws. Murad Shah was sentenced to death under section 302 of the Pakistan Penal Code for the murder of Ramzan Shah and his companions were sentenced to three months' rigorous imprisonment each under section 323 of the Pakistan Penal Code. Their appeal and the, connected murder reference are before us.
2. The parties in this case are Syeds of Tibbi Saidan Shah in Multan District. Murad Shah, Nur Shah and Gaman Shah accused are brothers. Salamat Shah and Saddan Shah accused are maternal cousins. Manzoor Shah accused is also related to the other accused through Ahmad Shah accused. On the other side, Fida Hussain Shah (P. W. 13) is a brother of Ramzan Shah deceased and a son of Amir Shah (P. W. 12). Karim Hyder Shah (P. W. 11) (who died after giving evidence before the committing Magistrate) was a son of a sister of Ramzan Shah deceased. Mst. Faiz Bibi (P. W. 15) is the widow of Ramzan Shah deceased, while Mst. Jai Bibi (P. W. 14) is the widow of Abdullah Shah, who was the husband of a sister of the mother of Karim Hyder Shah mentioned above.
3. According to the prosecution case, some four years before the occurrence, Manzoor Shah accused granted a lease of 7 -- acres of land to Karim Hyder Shah (P. W. 11) for six years on payment of Rs. 1,2000. He wanted to cancel the lease before time, but the lessee did not agree.
About five days before the present occurrence, he and Salamat Shah accused threatened him that they would not let- him pick cotton from the leased land and if he insisted upon retaining the land, he will be taught a lesson.
4. On the morning of 9th October, 1969, Karim Hyder Shah (P. W. 11), Amir Shah (P. W. 12), Fida Hussain Shah (P. W. 13), Mst. Jai Bibi (P. W. 14) and Mst. Faiz Bibi (P. W. 15) were going to pick cotton from the leased land, when they were ambushed by the accused at a distance of about an acre from there. Murad Shah was armed with a hatchet and his companions had dangs. Salamat Shah accused shouted that Karim Hyder Shah should be killed. Murad Shah gave a hatchet blow on the head of Ramzan Shah who fell down. Other accused gave dang blows to the prosecution witnesses. Then all the accused went away.
5. Karim Hyder Shah P. W. Went to Jalalpur Pirwala Police Station, where he made F. I. R. Exh. P. A. To Muhammad Iqbal Nasim (P. W. 10) at 12-30 (noon). As Ramzan was seriously wounded, he was conveyed to the dispensary, which is also situated in Jalalpur Pirwala. On receiving information about his precarious condition, the Sub-Inspector went there to record his statement, but he expired before his arrival. After arranging to send his dead body to the mortuary, the Sub-Inspector went to the spot where Karim Hyder Shah P. W. Produced hatchet P. 2, which Murad Shah accused was said to have left at the scene of the occurrence. Karim Hyder Shah P. W. Also produced Pothi Exh. P. B. Before him which contained lease entry Exh. P. B/1. The same day, he arrested Saddan Shah, Ahmad Shah and Salamat Shah accused from the dispensary. He recovered hang P. 8 from the possession of Salamat Shah accused and dang P. 12 from the possession of Ahmad Shah accused. As all the three accused were injured, he got them medically examined. The injured P. Ws, were also medically examined. He arrested Manzoor Shah and Nur Shah accused on 10th October, 1969, and recovered dangs P. 11 and P. 13 from them respectively. The time and place of the arrest of Murad Shah accused are not traceable.
6. All the injured persons from both sides were examined by Dr. A. K. A. A. Chaudhry, Medical Officer, Jalalpur Pirwala (P. W. 1) on 9th October, 1969, except Fida Hussain Shah P. W. Who was examined on 10th October, 1969. The report of their medical examination is given below: Ramzan Shah
(1) One big incised wound 8 -- ' x 1 -- ' x 3--- (brain deep) on the left aide of head. The left parietal bone was cut totally. The cut was through and through. Some of the brain substance came out and the patient was unconscious.
Mst. Faiz Bibi P. W.
One swollen reddish contusion mark 2" x 2' on the back of the right wrist joint.
The injury was simple and was caused with blunt weapon.
Mst. Jai Bibi P. W.
One reddish contusion mark 1" x 1' on the right side of the head.
The injury was simple and was caused with blunt weapon.
Karim Hyder Shah P. W.
(i) One contused wound -----x -- " on the distal part of the palm of the right little .
(ii) One contused wound 2 -- ' x -- " on the root of the left thumb.
(iii) One contused would 1 -- ' x -- " scalp deep on the left side of the head.
(iv) One contused would -- ' x -- ' on the left side of the root of the neck.
The injuries were simple and had been caused with blunt weapon.
Amir Shah P. W.
(i) One contusion mark -- ' x --on the right side of the back of the head.
(ii) One reddish contusion mark 5 x 1" obliquely placed on the upper part of the back.
(iii) One swollen contusion mark 1' x 1' on the back of the left hand.
All the injuries were declared simple and had been caused with blunt weapon.
Fida Hussain Shah P. W.
One contusion mark 1 -- ' x 1/8 ' on the top of the head.
The injury was simple and was caused with blunt weapon.
Ahmad Shah Accused
(i) One contused wound 1 -- ' x -- ' scalp deep on the right side of the back of the head.
(ii) One contused wound 1' x 1' on the right side of the head, just 1' above injury No. 1.
(iii) One swollen contusion mark 2" x 2' in front of the left wrist.
(iv) One contusion mark 1' x 1' on the outer side of the left arm.
(v) One contused wound -- ' x -- ' on the back of the right shoulder.
The injuries were simple and had been caused with blunt weapon. Injury No. 3 was referred for X- ray.
Salamat Shah Accused
(i) One contused wound 1 -- ' x -- " x scalp deep on the right side of the head
(ii) One abrasion mark 1 -- ' x 1 -- " on the back of left forearm, just 2 -- ' below the left elbow-joint.
(iii) One swollen contusion mark 3' x 2' on the middle of the back of the right forearm.
(iv) One contusion mark 5' x -- ' obliquely placed on the back of the right shoulder.
(v) One reddish contusion mark 8' x 1" just below injury No. 4.
(vi) One oblique contusion mark 6' x -- ' on the middle of the left side of the back.
(vii) One reddish contusion mark 7' x -- ' traversely placed on the middle of the back.
(viii) One contusion mark 6' x -- ' on the lower part of the right side of the back.
(ix) One swollen contusion mark 2' x 2' on the back of the lower part of the right leg.
Injury No. 1 was kept under observation and was referred to Nishter Hospital, Multan, for X-ray. Rest of the Injuries were simple and were caused with blunt weapon.
No attempt was made by Doctor A. K. A. A. Chaudhry or the sub-Inspector to ascertain the result of the X-ray examination of injury No. 1 of Salamat Shah accused and injury No. 3 of Ahmad Shah accused.
Saddan Shah Accused
(i) One oblique incised wound 2 -- ' x 1/3' x bone deep on the right side of the back of the head. The right occipital bone was cut (Fracture of the occipital bone).
(it) One incised wound 2 -- x 1 -- ' x 1' on the back of the left scapula (left shoulder).
(iii) One incised wound -- ' x -- ' x 1/8' on the back of the root of the right thumb.
(iv) One incised wound 1/8' x 1/8' on the tip of the palm of the left middle finger.
(v) One incised wound 1/8'x 1/8' on the tip of the palm of the left ring finger.
(vi) One abrasion mark transversely 9' x 1/8' on the upper part of the back.
Injury No. 2 was kept under observation and advised for X-ray of the left scapula for final opinion, Injury No. I was grievous and injuries Nos. 3 to 6 were simple. Injuries Nos. 1 to 5 were caused by sharp-edged weapon, while the rest were due to pressing by an uneven hard substance due to struggle.
8. The autopsy on the dead body of Ramzan Shah deceased was held by Dr. M. A. Rah, Medical Officer, Civil Hospital, Shujabad (P. W. 2). He found the following injuries on the dead body:-- An incised wound 8 -- ' x 1 -- " x brain deep on the left side of head transverse in direction from the, left ear to right frontal region. The left parietal bone and right frontal bone were cut through. The brain was injured 1' deep on frontal lobe. The wound was flappy forward. The wound was stitched and bandaged.
The death was due to the brain injury.
9. All the accused denied guilt. Murad Shah, Gaman Shah and Nur Shah denied participation in the fight and ascribed the case to enmity. Salamat Shah, Saddan Shah and Ahmad Shah accused gave a counter-version of the occurrence. They alleged that on the day of the occurrence, Karim Hyder Shah and Fida Hussain Shah P. Ws, Ramzan Shah deceased, Qasim Shah, Khadim Hussain Shah and Saddan Shah came to pick cotton from a field which was in the cultivation of Ahmad Shah accused, as a tenant of Manzoor Shah accused. Ahmad Shah prevented them from doing so, whereupon, he was beaten by the members of the complainant party. Salamat Shah and Saddan Shah accused came up and tried to intervene, but they were also injured. No accused produced defence.
10. It is common ground that there was a fight between the parties over, the picking of a cotton from the land of Manzoor Shah. The statement of Muhammad Ramzan Patwari (P. W. 7) shows that this land was in cultivating possession of Ahmad Shah accused in the revenue papers. Karim Hyder Shah P. W. Claimed to have taken land on a lease from Manzoor Shah accused and he relied upon the entry Exh. P. B/1 in his POW (Babi) Exh. P. B. To this effect. The entry which was made by Allah Wasaya (P. W. 8) was alleged to have been thumb-marked by Manzoor Shah as a lessor, but Manzoor Shah denied its execution. If the allegation of Karim Hyder Shah P. W. Was correct, it should not have been difficult for him or for the police to clinch the matter by proving the 'thumb-mark of the executant. A premium of Rs. 1,200 was said to have been paid for the lease, but the lease was neither registered nor entered into revenue papers. According to the revenue record, the land was in cultivating posses--sion of Ahmad Shah. Even Karim Hyder Shah P. W., the lessor, admitted that the land was cultivated by Ahmad Shah though he alleged that he did so as his tenant. This allegation is against the revenue record in which Ahmad Shah is entered as a tenant under the owners of the land.
11. We do not know the circumstances which led Karim Hyder Shah P. W. So claim possession of the field in dispute. But we do know that the agreement on which he built his claim was neither proved nor implemented. His allegation that he had already picked cotton from the field a few days earlier without any objection is improbable. He and the other eye--witnesses are closely related among themselves and with Ramzan Shah deceased. Their version of the attack is exaggerated and distorted. Although Saddan Shah, Ahmad Shah and Salamat Shah accused had received a large number of injuries from the complainant party and although Karim Hyder Shah P. W. Stated in the first information report that the accused were also injured of the accused at the trial. Karim Hyder Shah P. W. Deposed that Salamat Shah accused had also given four hatchet blows to Ramzan deceased, but he did not mention in the first information report that Salamat Shah had a hatchet.
On the other hand, medical evidence showed that the deceased had only one incised wound.
Murad Shah accused was said to have left his hatchet at the spot, but this was an afterthought because it was not mentioned in the first information report. The eye-witnesses are related to one another and to Ramzan Shah deceased and their testimony cannot be trusted without corroboration. Two disinter--ested persons namely, Abdul Hakim and Ghulam Hassan were mentioned as eye-witnesses in the first information report, but they were not produced in Court.
The trial Judge also felt the necessity for corroboration of the testimony of interested prosecution witnesses, but he wrongly found it in the recovery of hatchet P.
2. Murad Shah accused denied the possession or use of this hatchet which was handed over to the police by Karim Haider Shah, P. W.
This recovery, therefore, does not even affect the case of Murad Shah, what to say of the other accused.
12. The trial Judge was of the view that. Karim Hyder Shah P. W. And his relatives had no right to go to the disputed field for picking cotton from there. In his view, they were the aggressors. In spite of this finding, he convicted the accused because they did not wait for the complainant party to reach the field in dispute and start picking cotton from there. According to him, the right of self- defence would have arisen only if they had entered the land and picked cotton. As the complainant party had come in a body, for the set purpose of taking possession of the land from Ahmad Shah accused and they were bent upon carrying out their illegal purpose, the accused were within, their right to check their aggression by going out to some, distance to stop them. In the circumstances of the case, the accused were well within their right to repel an organized and determined attack of Karim Hyder Shah and his companions. We, therefore, hold that the accused had exercised the right of private defence of property. A three of them were also attacked and badly injured, by the members of the complainant party, they had also exercised the fight of private defence of person.
13. For the foregoing 'reasons, we hold that the prosecution has failed to bring home the guilt to the accused. We accept their appeal, set aside their conviction and sentences and acquit them. They shall be set at liberty forthwith if not required to be detained in any other case. The sentence of death passed on Murad Shah accused is not confirmed.