MUHAMMAD MUNIR KHAN, J:- Shera and Noora, petitioners, were tried by Magistrate Section 30 (Judicial), Pakpattan Sharif u/s 333/325 /34 PPC for causing grievous injury to Alim Din Girdawar, with intent to prevent or deter him from discharging his duty as a public servant, on 12.12.1980 in Chak No. 14/KB of Police Station Kabula.
2. Shera petitioner, had obtained loan from Agricultural Bank. He became defaulter, so on 12.12.1980, Sarwar Noor, Naib Tehsildar (under training) alongwith Alim Din Girdawar, Noor Ali, Muhammad Munir and Muhammad Irshad PWs went to Chak No.14/KB for the recovery of the arrears of Agricultural Bank from Shera petitioner. On reaching Chak No.14/KB, Alim Din Girdawar sent Muhammad Irshad and Muhammad Munir PWs to bring Shera defaulter/Appellant for producing him before Naib Tehsildar. Shera was sitting in 'BHATHAC of one Haji Iniat Ali. On seeing the revenue officials, he ran away. When the PWs tried to haul him up. Noora Appellant intervened in order to make his escape possible. During this process Shera pushed Alim Din Girdawar who fell down and his clavicle bone was fractured. The Naib Tehsildar reported this incident to Ch. Muhammad Yasin Tehsildar PW 4, who forwarded the report to the police for the registration of the case.
3. The petitioners denied the charge and claim to be tried. To prove its case, the prosecution produced 8 witnesses. Alim Din Girdawar PW of Muhammad Irshad, Chaukidar, PW 2, Noor Ali Peon, PW 3, are the eyewitnesses of the occurrence. They supported the prosecution case. Ch. Muhammad Yasin Tehsildar, PW 4, has proved the FIR. Dr. Muhammad Mushtaq PW 5, stated that he liad examined Alim Din Girdawar PW, on 13.12.1980 and found one grievous injury caused by blunt weapon on his person. Sarwar Noor Naib Tehsildar PW 6, stated that Shera petitioner was the defaulter. So he alongwith Alim Din PW, Muhammad Irshad Chaukidar, and Noor Ali peon PWs, had gone to Chak No. 14/KB for recovery of arrears. He remained near a school and sent his companions to bring defaulter before him. On return, Alim Din Girdawar and others narrated the occurrence in which Alim Din was injured to him so he prepared the report and sent it to Tehsildar.
Arshad Iqbal PW 7, had drawn up formal FIR, Karamat Miran AS1, PW 8, had investigated the case.
4. When examined u/s 342 Cr.PC the petitioners denied all the incriminating circumstances.
5. Believing the prosecution evidence, the trial Court convicted the petitioners under section 325 333/34 PPC and sentenced them to R1 for three years under section 334/34 PPC and to one year R1 under section 325/34 PPC with the direction that the sentences shall run concurrently. On appeal the learned Additional Sessions Judge, Sahiwal maintained the conviction, but reduced the sentence of three years R1 under section 333/34 PPC two years R1. The sentence under section 325/34 was sustained. Hence this revision.
6. The learned counsel for the petitioner submitted that the prosecution has failed to prove its case beyond reasonable doubt; that there is a delay of two days in lodging the FIR's the eye-witnesses arc interested and that since no warrant or order in writing was issued/given by the Naib Tehsildar authorising Alim Din and others to arrest /bring Shera Defaulter before him, therefore, they had no authority to haul up Shera petitioner and that in the circumstances of the case petitioner was well in his legal right of private defence to resists and push back Alim Din Girdawar. Learned counsel for the state has supported the conviction and sentence of the petitioners.
7. I have considered the matter carefully. I feel persuade to agree with the learned counsel for the petitioner. Admittedly no written order/warrant for the arrest of Shera petitioner was issued by the Naib Tehsildar, who even otherwise being a trainee had no authority to issue warrant or summon the defaulter for appearance before him. So Alim Din Girdawar, Noor Ali Peon, Muhammad Arshad Chaukidar, PWs, were not justified in hauling up Shera defaulter. Since the action of Alim Din and his companions of hauling up/attempt to apprehend Shera defaulter was illegal, therefore, he was justified in resisting the endeavour to arrest him and for that purpose his right of defence did extend to causing any harm other than death. So by pushing Alim Din Girdawar, as a result whereof he tell down on the ground and his clavicle bone was fractured the petitioners have not committed any offence.
8. Pursuant to the above discussion, this revision is accepted. The conviction and sentence of the petitioners arc set-aside and they are acquitted of charges. They arc oh bail. They stand discharge of the bail bonds.