Shera and Noora, petitioners,, were tried by Magistrate Section 30 (Judicial), Pakpattan Sharif under section 333/325/34, P.P.C. 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) long with Alim Din Girdawar, Nooj Ali, Muhammad Munir and Muhammad Irshad P.Ws. 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 P.Ws. To bring Shera defaulter/Appellant for producing him before Naib-Tehsildar. Shera was sitting in `Baithak' of one Haji Inayat All. On seeing the revenue officials, he ran away. When the P.Ws. Tried to haul 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 P.W.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 P.W.1, Muhammad Irshad, Chaukidar, P.W.2, Noor Ali Peon.
P.W.3, arc the eye-witnesses of the '1ccurrence. They supported the prosecution case. Ch. Muhammad Yasin fehsildar, P.W.4, has proved the F.I.R. Dr. Muhammad Mushtaq P.W.5, stated that he had examined Alim Din Girdawar P.W., on 13-12-1980 and found one grievous injury caused by blunt weapon on his person. Sarwar Noor Naib-Tehsildar P.W.6, stated that Shera petitioner was the defaulter. So he alongwith Alim Din P.W., Muhammad Irshad Chaukidar, and Noor Ali Peon P.Ws. 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 there narrated the occurrence in which Alim Din was injured to him so he prepared the report and sent it to Tehsildar. Arshad lqbal P.W.7, had drawn up formal F.I.R. Karamat A.S.I., P.W.8, had investigated the case.
4. When examined under section 342, Cr.P.C. The petitioners denied all the incriminating circumstances.
5. Believing the prosecution evidence, the trial Court convicted the petitioners under section 325/333/34, P.P.C. And sentenced them to R.I. For three years under section 334/34, P.P.C. And to one year's R.I. Under section 325/34, P.P.C. 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' R.I. Under section 333/34, P.P.C. To two years' R.I. The sentence under section 325/34 was sustained. Hence,, this revision.
6. The learned counsel for the petitioners submitted that the prosecution has failed to prove its case beyond reasonable doubt, that there is a delay of two days in lodging the F.I.R.; the eye- witnesses are 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 resist 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 persuaded 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, P.Ws. 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 fell down on the ground and his clavicle bone was fractured. The petitioner Shera has not committed any offence.
8. Pursuant to the above discussion, this revision is accepted. The conviction and sentence of the petitioners are set aside and they are acquitted of charges. They are on bail. They stand discharged of the bail bonds.