Sadiq aged 42, his son Riaz aged 21, Niaz Ahmad aged 24, a nephew of Sadiq, and Faryad aged 18, son of the brother-in-law of Sadiq were tried by the learned Additional Sessions Judge, Sahiwal under section 3112 read with section 34, Pakistan Penal Code, on the allegation that in furtherance of their common intention on 23rd May 1969 in the area of Chak No. 30/G.D. At Digarwela they intentionally caused the death of Muhammad and gave simple injuries to Yaqoob P.W. Sadiq, Riaz and Niaz appellants were found guilty under section 302/34, Pakistan Penal Code, and sentenced to transportation for life each and a fine of Rs..500.00 each or in default to further undergo six months' rigorous imprisonment each. They were also convicted under section 323/34, Pakistan Penal Code, and sentenced to suffer rigorous imprisonment for six months each. Their co-accused Faryad was acquitted. The convicts have come up in appeal.
2. The occurrence is reported to have taken place on 23rd May 1969 at Digarwela within the area of Chak No. 30/G-B-in the field of Sadiq appellant at a distance of five miles from the Police Station Gogera, Tehsil Okara, District Sahiwal. The F. I. R. (Ex. P. D.) was lodged by Chawa (P. W. 7) a cousin of the deceased at 10-30 p.m. On the same day at Police Station Gogera and was recorded by A.S.I.
Abdul Karim P.W.
3. The occurrence is stated to have taken place in the following manner. Chawa (P. W. 7) and his brother Wasawa were tenants of Syed Mushtaq Hussain for the last ten years and they used to cultivate half square of land situated in Chak No. 30/G-D Syed Mushtaq Hussain gave this land to Sadiq appellant on tenancy from the wheat crop of 1969 who had sown cotton in that land. Chawa P. W. And others had yet to thrash the wheat from the same land. On the day of occurrence Chawa P. W. Alongwith Muhammad (deceased), Yaqoob and Lal P. Ws. Was going toy his thrashing floor when Riaz and Niaz appellants interfered on the way and asked them not to pass that way in future. Chawa P. W. And others went to their thrashing floor. In the evening Muhammad (deceased) was returning from the thrashing, floor with his bullocks and was at a distance of one acre from the cotton crop, when all the four accused armed with dangs appeared. Muhammad (deceased) was attacked by them. The deceased turned back and started running towards his thrashing floor raising alarm. The accused chased him. Sadiq appellant gave a dang blow on the head of Muhammad (deceased) who fell down and Sadiq appellant gave another blow on his head.
Chawa, Lal and Yaqoob P. Ws. Took out the wooden rod from the yokes and rushed towards the place of occurrence, where in the meanwhile Ghulam (P. W. 11) also reached in order to rescue the deceased. Yaqoob P. W. Threw himself on the deceased in order to save him and Niaz Ahmad appellant inflicted dang blows on the person of Yaqoob P. W. Chawa and Lal P. Ws. Inflicted blows on the persons of Sadiq, Riaz and Niaz appellants. The accused then ran away with their dangs. The deceased succumbed to his injuries shortly afterwards. Leaving Lal and Yaqoob P. Ws. With the dead body Chawa proceeded to the Police Station and lodged the report (Exh. P.D.).
4. A.S.I. Abdul Karim (P: W. 4) sent the copy of the F. I. R. To S.I. Nur Hussain (P. W. 12). The Sub- Inspector received the copy of the F. I. R. At about 112-30 a.m. And proceeded to the spot, where he reached at 1 a.m. On the 24th of May 1969. He found the dead body to the mortuary for post- mortem examination. Yaqoob P. W. Was injured. The Sub-Inspector prepared his injury statement and got him medically examined. On 26th May 1969 one Rehm A.I Shah produced Riaz, Niaz (appellants) and Faryad (since acquitted). At that time Niaz appellant produced dangs (P. 1 and 2) before him. Riaz appellant was injured. He prepared his injury statement and got him medically examined. Niaz appellant was also injured and he was also got medically examined. On 26th May 1969 the Sub-Inspector came to know that Sadiq appellant was admitted in Civil Hospital, Okara.
He went there, recorded his statement and arrested him.
5. Dr. Muhammad Asghar (P. W. 1) on 24th May 1969 at 1-10 p.m. Performed the post-mortem examination on the dead body of Muhammad and found the following injuries:-
(1) A lacerated wound 2----- x ----- x bone deep on the right side of head 4----- above the right ear and there was bleeding from the right ear.
(2) An abrasion 1----- x 1" on the right shoulder.
(3) A lacerated wound 1----- x ----- x bone deep behind the right ear near its root.
All the injuries were caused by blunt weapon. He found that the skull had been fractured. Right temporal and parietal bone had been fractured. There was clotted blood 4' x 5' in size corresponding to injury No. 1 under the membrane on the brain. In the opinion of the doctor the death was caused clue to shock caused by haemorrhage in the skull, causing compression of the brain. Injury No. 1 was sufficient to cause death in the ordinary course of nature. The time between injury and death was within 15 to 20 minutes and death and post-mortem within. 12 to 24 hours.
On the same day at 1-45 p.m. The same doctor examined Yaqoob P. W. And found the following four injuries:
(1) A lacerated wound 1" x ----- x superficial on the right side of head 3' above the right eye-brew.
(2) An abrasion 1" x ----- on the middle of forehead.
(3) Swelling 3" x 2" on the back of left elbow.
(4) A bruise 3----- x 1" on the left side of back of chest upper part.
All the injuries were simple caused by blunt weapon.
On 25th May 1969 at 8 a.m. The same doctor examined Muhammad Sadiq appellant and found the following injuries on his person:-
(1) A lacerated wound 1----- x ----- x bone deep on the left side of head 3' above the left ear.
(2) A lacerated wound 1" x ----- x skin deep on the back of head to the right side,
(3) An abrasion 4" x 2----- on the back of left shoulder.
(4) Swelling 5" x 2" on the back of left chest lower part.
Injuries No. 3 and 4 were simple. It was reported that the left parietal and temporal bones had been fractured under injuries Nos. 1 and 2.
6: Lady doctor Mrs. Azra Nawaz (P. W. 9) on 26th May 1969 at 10-15 a.m. Examined Niaz Ahmed appellant and found the following four injuries:--
(1) A swelling ----- x ----- on the hick of the head 5" above the right car.
(2) A lacerated wound ----- x 1/8--- x skin deep on the left ear just above the lobule:
(3) An abrasion ----- x ----- on the left cheek 1----- in front, of the left ear.
(4) A blue bruise 2----- x ----- on the upper and outer part of the left arm.
All the injuries were simple caused by blunt weapon.
She also medically examined Riaz Ahmad appellant on the same day at 10-30 a.m. And found the following injuries:--
(1) A lacerated wound ----- x 1/8--- x skin deep on the left side of the head 3' above left ear.
(2) A lacerated wound ----- x ----- on the right side of the head 4' above the right ear.
(3) An abrasion 2----- x ----- on the right shoulder.
All the injuries were simple caused by blunt weapon.
7. All the three appellants pleaded not guilty to the charges ands contended that Faryad (since acquitted) was not present at the spot. The three appellants stated that they were weeding their cotton field in Killa No. 19 of Square No. 18, when seven or eight heads of cattle entered their field and started damaging the crop. Sadiq appellant rounded up the cattle and wanted to take them to the cattle pond at which Muhammad (deceased) and Yaqoob P. W. Appeared there and claimed to be the owners of said cattle and they restrained the appellants from taking the said cattle to the cattle pond. Muhammad (deceased) tried to overawe the other appellants saying that he would not allow them to take the cattle to the cattle pond. Sadiq appellant abused him whereupon Muhammad (deceased) gave a dang blow on the head of Sadiq appellant. Sadiq appellant tried to run away and when he turned back the deceased gave a second blow on the back side of his head. The deceased raised a lalkara to Yaqoob that Sadiq should not escape.
Sadiq appellant had a Waholee for weeding cotton crop in his hand. He apprehended that Yaqoob P. W. And the deceased would kill him. Sadiq appellant acted in self-defence and caused injuries to the deceased from the wooden side of the Waholee. Riaz and Niaz appellants were injured by Yaqoob P. W. Riaz appellant in self-defence also injured Yaqoob P. W.
8. I have heard the learned counsel for the appellants and also the learned State counsel. I have also gone through the evidence on the record with their help.
9. At the trial the ocular evidence has been provided by Chawa (P. W. 7), Yaqoob (P. W. 8). Lal (P W.
10) and Ghulam (P. W. 11). Chawa (P. W. 7) is a cousin of the deceased, Lal (P. W. 10) is the son-in- law of the deceased, Yaqoob (P. W. 8) whose mother is a first cousin of the deceased, while Ghulam (P. W. 11) is independent but belongs to Mauza Fatwana which is at a distance of one mile from Chak No. 30/G.D. Where the occurrence took place and he appears to be a chance witness.
Chawa P. W. Has admitted in his cross-examination that it is correct that on his way back to the Chak the bullocks of Muhammad (deceased) had entered the cotton field of Sadiq appellant.
Yaqoob (P. W. 8) has also admitted in his cross-examination that it is correct that when Muhammad (deceased) was going back to the Chak with the bullocks, a pair of bullocks had entered the cotton field of the accused. Lal (P. W. 10) has stated in cross-examina--petition that the bullocks of Muhammad (deceased) had not entered the cotton field of the accused when he was taking them to the village. All these eye-witnesses have further admitted that it is correct that when they reached the place of occurrence the deceased had already suffered injuries and had fallen down on the ground. All these witnesses have further admitted that they could not witness the occurrence if they were present in the thrashing floor because three were wheat stocks around the thrashing floor. As far as Ghulam (P. W. 11) is concerned he has admitted in his cross- examination that it is correct that there is another way from his village, which leads to village Sheikhu Sharif and that way is shorter than the way from which he was coming on the day of occurrence. He has further stated that he had chosen the longer one because he had to recover some money from Chawa P. W. And Wasawa P. W., which was due from them on account of the purchases made by them from his shop. He has also stated that Chawa P. W. Did not proceed to the Police Station in his presence and he remained at the place of occurrence for about twenty minutes and then went to his house. The presence of Yaqoob P. W. Is admitted by the appellants.
Moreover I find that he is injured and is closely related to the deceased. There are eleven injuries on the persons of the appellants as against seven injuries suffered by the deceased and Yaqoob P W.
The result, therefore, is that I am constrained to hold that the prosecution version does not disclose as to in what manner did the occurrence take place. I cannot place implicit reliance on it. I have, therefore, no alternative but to revert to the statements of the appellant .End hold that after Sadiq appellant had rounded up the cattle of the deceased and his relation and was taking them to the cattle pond the party 4 the deceased burst upon him and inflicted injuries upon him as a result thereof he also injured them in self-defence. The appellants, therefore, sad a right to the extent of causing the death of their assailants Sadiq appellant had also the defence of property, which was in his possession and was being taken to the cattle pond. I also find that in the instant case Sadiq appellant was taking cattle seized by him to the cattle pond and the Assault was made on him in order to rescue the cattle from him and their assailants were armed with wooden like sticks, they would be within their right to cause harm to them even to the extent of causing death and it was on the alarm of Sadiq appellant that his son Riaz and his nephew Niaz appellants also turned up there and they caused injuries to Yaqoob P. W. In their defence and also got injuries on their persons.,
10. The upshot of the discussion is that I accept this appeal, set aside the conviction and sentences of the appellants and acquit them of all the charges. They shall be released forthwith if not required in any other case.