The appellants were tried by the learned Sessions Judge, Multan for offences punishable under sections 143, 302, 307 read with section 149, p. p. C. Who sentenced them under section 148, P. P.C.
To 3 months' R.I. Each. In addition, Baggu, Rana, Shahu and A.I Bakhsh appellants were convicted under section 323, P. P. C. And sentenced to 3 months' R. I. Each. Similarly, Faqir Muhammad and Ghulam Haider appellants were convicted under section 304, Part II, P. P. C. And sentenced to 5 years' R. I. And a fine of Rs. 1,000 each. The sentences were directed to run concurrently.
2. The appellants are all related inter se. Baggu and Rana appellants are brothers. Shahu appellant is the son of Baggu appellant while Faqir Muhammad and A.I Bakhsh appellants are sons of Rana appellant. Ghulam Haider appellant is a nephew (brothers son) of Baggu and Rana appellants.
3. The charge against them was that armed with lathis they attacked Nur Muhammad deceased and his brothers Nazir Ahmad and Muhammad Ismail P. Ws. And injured them in the morning of the 13th of March 1973 at about 9-00 a.m. Nazeer Ahmad complainant reported the matter to the police on the 14th of March 1973 at 10-30 a.m. And Nur Muhammad deceased succumbed to his injuries at 9-30 p.m. On the 14th of March 1973.
The deceased was also very closely related to the appellants. He was the son of a sister of Baggu and Rana appellants. Thus Nazeer Ahmad and Muhammad Ismail P. Ws. Are also nephews of the said appellants.
4. According to the prosecution, the trouble arose between the deceased and his brothers on one side and the appellants on the other on account of the fact that part of the canal water which ought to have flowed into the fields of the deceased and his brothers, inadvertently broke into the land belonging to Baggu appellant. When Baggu appellant noticed this in the morning of the 13th of March 1973 he protested and abused his nephews. However, regardless of the age and status of Baggu appellant, his nephews abused him back. Thereupon, he left the scene threatening to teach them a lesson soon and returned about an hour later with the other appellants all armed with lathis, and attacked and injured the deceased and his brothers who too in their self-defence, are stated to have hit the appellants with their sticks. The result was that every one involved in the incident was hurt but the deceased having sustained injuries on his head died the next day.
The case of the appellants, however, is that the deceased and his brothers thought that their water had been stolen by Baggu appellant. So, after an exchange of abuses, they attacked him with Bangs whereupon Rana and Faqir Muhammad appellants came to his rescue and in order to save his life, attacked the deceased and his brothers in turn. Ghulam Haider appellant happened to be passing thereby. He tried to intervene and, in the course of his attempt to disengage the parties, sustained an injury himself. Shahu and A.I Bakhsh appellants were neither involved in the incident in any manner nor were they present at the scene.
5. In view of the versions of the incident given by the prosecution and defence, it will be of advantage to reproduce here the reports of the medical examination of the appellants, the deceased and the injured P. Ws. Nazir Ahmad and Muhammad Ismail.
Dr. Mushtaq Ahmad Sheikh, examined Noor Muhammad and found the following injuries on his person:
(1) A contused wound 1-- ' x --x --' on the head 1' to the right of mid-line 4' above the right ear.
(2) A contused wound 1' x --' x --" on the head adjacent to injury No. 1.
(3) A contusion mark 1-- ' x 1' on the top of the left shoulder.
(4) Complained of pain on the right knee.
(5) A contused wound 2-- ' x --' x bone deep on the head across the mid line oblique in direction.
Except injuries No. 1 and 5 which were kept under observation, the rest were found to be all simple in nature.
On the same day, the same doctor examined Nazir Ahmad P. W. And found the following injuries:-
(1) A lacerated wound 1' x --' x 2' deep on the right side of the mid line of the head, 3" above the right ear.
(2) A contused wound 2-- ' x --" x bone deep on the head 5' above the left ear oblique in direction.
(3) A contusion mark 3" x 1' on the top of right shoulder.
Injuries No. 1 and 2 were kept under observation. Injury No. 1 was found to be simple in nature.
The doctor also examined Ismail P.W. And found the following injuries on his person:--
(1) A contused swelling 2" x 1--' on the back of left side of the head 2' above the left ear.
(2) A contused swelling 3' x 2' on the back of neck, On 15-3-73, the same doctor examined Ghulam Haider appellant and found the following injury on his person :-- A lacerated wound 2-- x'1/4' x 1/4' on the mid line of the head.
On the same day the same doctor examined Baggu appellant and found the following injuries on his person:--
(1) A contusion mark --' x 1/4' on the back of right index finger.
(2) Contused swelling 2' x --' on the back of right forearm just below the elbow-joint.
(3) A contused swelling 2' x --" on the back of left forearm just above the wrist joint.
(4) A contused swelling 4' x 3' on the back of left hand. All the injuries were simple in nature.
The doctor also examined Shahu appellant that very day and found the following injuries on his person:--
(1) A contused swelling 1' x --' on the back of left index finger along with an abrasion 1/4' x 1/8' on the middle phalynx of left index finger.
(2) Complained of pain on the back of left chest.
On the same day, the same doctor examined Faqir Muhammad appellant and found the following injuries on his person :-
(1) A lacerated wound 1' x --' x --' on the head 2--' right to the mid line oblique in direction.
(2) A lacerated wound 1-- x --' x --' on the back of the right side of the head 1 above the right ear oblique in direction.
(3) An abrasion mark 1" x --' on the back of upper part of the left arm.
(4) A contusion mark 1' x --' on the left buttock.
(5) Complained of pain on the top of right shoulder.
On the same day, the doctor also examined Rana appellant and found the following injuries on his person :- A lacerated wound 2' X 1/4" x 1/4' on the left side of the mid line of the head 5' above the left ear oblique in direction.
A.I Bakhsh appellant had only complained of pain to the doctor on his left shoulder and head.
6. The prosecution examined three eye-witnesses in this case, namely, Nazir Ahmad who lodged the F.I.R. His brother Muhammad Isma il and their cousin Atta Muhammad who also happens to be their brother-in-law. It is an admitted fact in this case that at least three other persons, namely, one Master Muhammad Hussain, one Ghulam Haider and Mst. Alam Bibi, a sister of the deceased, had also witnessed the occurrence. Mst. Alam Bibi also happens to be the wife of A.I Bakhah appellant. But none of them was examined as a witness.
The explanation of the P.P. Before the trial Court was that they had been won over by the accused. It is understandable that the prosecution did not expect Mst. Alam Bibi to state the truth. The said Ghulam Haider also appears to be related to the parties and so interested in the case one way or the other. But the said Muhammad Hussain was a completely disinterested person. It was, therefore, necessary for the prosecution to put him in the witness-box regardless of whether he was going to support the prosecution or not. The parties being so closely related to each other, a man from outside the Biradari could not be expected to side with one party or the other. His statement would have been of great help to the Court. In fact, the failure of the prosecution to examine him as a witness is a circumstance which goes against them.
As for the eyewitnesses whose statements have been recorded, two out of them are the brothers of the deceased and they were also involved in the incident. Therefore, not much reliance can be placed on their testimony. The third one Atta Muhammad is not only a cousin of the deceased but also his brother-In-law. It has been stated by one of the witnesses that he is also related to the appellants-his mother being a cousin of Rana and Baggu appellants. But it is obvious that he is more closely related to the deceased than to the appellants. Therefore, even Atta Muhammad P.W.
Cannot be regarded as a disinterested witness.
Besides, there are contradictions in the prosecution evidence on material points. For example, Nazir Ahmad complainant said in the F.I.R that he alongwith others took his injured brothers to the hospital. But subsequently his case was that he too was injured and, therefore, he too had to be carried on a cot by others. Further, according to the eye--witnesses, the deceased lost consciousness right on the spot and he remained unconscious even after he was taken to the hospital. But, according to the statement of Dr. Mushtaq Ahmad who examined him, he was not unconscious. The doctor even proceeded to record his statement. Further, according to Nazir Ahmad P.W. Ismail P.W. Never lost consciousness but Ismail P.W. Stated before the committing Magistrate that he had become unconscious after receiving injuries and re-gained consciousness only on the 15th of March i.e two days later. Similarly, according to the statements of Nazeer Ahmad and Ismail P. Ws. Both before the trial Court, even Nazeer Ahmad P. W. Never became uncons-- cious as, a result of the injuries. But again, Ismail P. W. Stated before the committing Magistrate that Nazeer Ahmad had lost consciousness as a result of the injuries sustained by him and that he re- gained it on the 19th of March. When confronted with these statements made before the committing Magistrate. Ismail P. W. Had no explanation or offer.
There is also inconsistency in the statements of the aye-witnesses with regard to the details of the attack on Nur Muhammad deceased. Accord--ing to Atta Muhammad P. W. Faqir Muhammad appellant hit the deceased only on his shoulder and this witness specifically denied in his cross- examina--petition having stated before the committing Magistrate that Faqir Muhammad had inflicted any injury on the head of the deceased although he had so stated there. But according to Muhammad Ismail and Nazeer Ahmad P. Ws. Faqir Muhammad appellant did hit the deceased on his head.
7. These are only a few contradictions and inconsistencies out of several to be found on the record.
I am, therefore, of the opinion that the prosecution evidence is not very reliable.
The appellants did not produce any evidence in defence with the result that we are not in a position to verify their version. But their assertion that Shahu and A.I Bakhsh appellants were not involved in the incident is belied by the medical evidence. It is true that there was no visible mark of injury on the person of A.I Bakhsh appellant when he was examined by Dr. Mushtaq Ahmad Sheikh.
But then the statement of the doctor shows that A.I Bakhsh appellant did complain of pain in his head as well as in his left shoulder. Similarly Shahu appellant was found to have only one injury in the form of a contused swelling ors his left index finger which might not be the result of the incident in question. But the fact remains that this appellant also complained of pain in the back of his left chest while examined by the doctor. It, therefore, appears that all the six appellants were involved in the incident one way or another.
However, a close scrutiny of the entire medical evidence will show that although Faqir Muhammad, Rana and Ghulam Haider appellants sustained injuries on their heads, Baggu appellant who appears to be the main cause of trouble shad no injury on his head. All his injuries were found to be on his hands and arms. This circumstance clearly indicates that he was all the time on the defensive and trying to ward off the attack on him with his arms and hands.
Further, he is an old man of about 70 years of age. It is hardly con--ceivable that he should have the courage to attack his young and sturdy nephews. To me, it appears that Baggu appellant was in fact attacked first by the deceased and his brothers as asserted by the appellants (though the nature of injuries sustained by him also indicates that the assailants did not mean to kill him) and then apprehending danger to the life of the old man, his brother, cousin, son and nephews rushed to rescue him and launched a counter-offensive against the deceased and his brothers. In my opinion, the appellants had a right to do so. But in the melee that followed the members of either group received dang blows from those of the others. It was unfortunate that the injuries sustained by the deceased proved fatal.
8. In these circumstances it is neither possible to hold the appellants guilty of murder nor of culpable homicide not amounting to murder. If on the arrival of the five appellants (other than Baggu) the deceased and his brothers had taken to their heels and if they had nevertheless been attacked and injured by the appellants, then the latter could be said to have exceeded the right of private defence or could even be held guilty of murder having killed the deceased and injured his brothers when there no longer was an occasion to exercise the right of private defence. But the evidence on record clearly indicates that the appellants Nos. 2 to 5 came to the scene to rescue the appellant Nos, 1, be deceased and his brothers took them on and a free fight followed.
9. In these circumstances the right of private defence on the part of the appellants subsisted till the end. It was only because the appellants outnumbered the opposite-party that they managed to escape with simple hurt.
10. I am, therefore, of the view that it is not in consonance with the principles of safe administration of justice to convict the appellants of any offence. The recovery of blood-stained dangs and clothes from the possession of the appellants does not advance the prosecution case any further as I have no doubt in my mind even otherwise that all the appellants were involved in the incident.
For the reasons given above, I allow the appeal, set aside the convictions and sentences of the appellants and acquit them.