JUDGMENT CH. KHURSHID AHMAD, J.- The appellants Muhammad Ramzan and Muhammad Yousaf, s/o Mehraj Din were convicted by Additional Sessions Judge Sialkot on 28.3.1994 under section 302 PPC for causing the murder of Muhammad Bashir and were sentenced to life imprisonment with a fine of Rs. 10000/- each and in default of payment of fine, they were to undergo further R.I. For six months each.
2. The appellants and Mehraj Din (since acquitted) were reported against by Muhammad Din Who made a statement on the basis of which F.I.R. No. 150/90 was recorded for the offences of 302/34 PPC and under Section 13, Arms Ordinance, 1965 at Police Station Qila Kalarwala District Sialkot. It was alleged by the complainant that Muhammad Bashir was his nephew who had shifted his residence to village Darganwali located in the area of Police Station Sadar Sialkot some 12/13 years earlier. He had reserved 3 marlas of land towards the West of the village for construction of his house and the accused were in possession thereof and had laid foundations and had also done the earth work about two months prior to the occurrence. Muhammad Bashir visited the village to received his paddy crop share and had asked accused to give up possession but the same was refused. The Panchayat also requested the accused to vacate possession but they did not pay any heed and that on the day of occurrence at about 9:00 a.m. The appellants and their father were present in the disputed site and were to raise the walls. Muhammad Bashir and his brother Nazir Ahmad went there to stop the appellants from raising the walls. An altercation took place.
Muhammad Yousaf appellant fired at Muhammad Bashir but he was not hit. Muhammad Bashir aforesaid grappled with Muhammad Yousaf appellant and caught hold of his gun. Muhammad Ramzan was asked to fire to save Muhammad Yousaf, appellant, who fired and the shot hit Muhammad Bashir on the left side of his abdomen, who fell down. Nazir Ahmad and Lal Din also witnessed the occurrence. They tried to catch hold of the appellants but they escaped. The gun snatched from Muhammad Yousaf was with the Nazir Ahmad while Muhammad Bashir died as result of the injuries. It was further alleged that the murder was abetted by Mehraj Din acquitted co-accused.
3. After the investigation the appellant and his co-accused were sent up for trial. Charge was framed which was put to the accused who denied the same and claimed trial.
4. The prosecution produced Muhammad Sadiq PW.1 who identified the. Dead body of Muhammad Bashir at the time of post-mortem. The Medical Officer delivered shirt P.1, Tehband P.2, Salooka P. 3 all blood-stained and one sealed phial to Muhammad Mushtaq constable in his presence who produced the same to Investigating Officer and were taken into possession vide memo Ex.PA which was attested by him. Muhammad Din appeared as PW2. He was a witness of recovery of blood- stained earth from the place of occurrence which was taken into possession vide memo Ex.PB, attested by him by affixing thumb-impression. Muhammad Aslam MHC PW.3 stated that he was delivered a sealed parcel containing 12 bore gun for onward transmission to the office of Chemical Examiner. He delivered the same intact to Muhammad Sarwar constable PWA who also stated that Nazir Ahmad PW.1 produced gun P.4 in his presence which was secured through Ex.P.C. Muhammad Mushtaq PW-5 was police constable and stated that he escorted the dead body of Muhammad Bashir to mortuary. He delivered the dead body intact to the doctor who after the post-mortem, gave him post-mortem report, one sealed phial and last worn clothes of the deceased Muhammad Bashir. These articles were produced before the Investigating Officer who had secured the same vide memo Ex.PA. Nasrullah Khan ASI PW.6 had correctly recorded formal F.I.R. Ex.PD/1 on the receipt of statement of the complainant through Dilawar Hussain on 19.11.1990. Muhammad Riaz constable PW.7 stated that he was given sealed parcel containing blood, stained earth by MHC which he delivered intact in the office of the Chemical Examiner, Lahore.
5. Muhammad Din complainant appeared as PW.8. He stated the same storey which was narrated by him in the F.I.R. He stated that while the accused were raising walls over the foundations, Muhammad Bashir deceased forbade them but they continued raising the walls. There was exchange of hot words. The fire of Muhammad Yousaf did not hit Muhammad Bashir. Yousaf accused and Bashir deceased started grappling with each other. Yousaf accused asked his brother Muhammad Ramzan to fire lest he be killed. Muhammad Ramzan fired and the shot hit Muhammad Bashir on the left side of his flank. The gun of Muhammad Yousaf was snatched by Muhammad Nazir. He also stated that the occurrence was witnessed by him, Nazir Ahmad and Lal Din. The accused fled away from the spot and Muhammad Bashir died a few minutes thereafter.
Mr. Zafar Iqbal Medical Officer Tehsil Headquarter Hospital Pasrur appeared as PW.10. He had conducted the post-mortem examination on the dead body of Bashir Ahmad s/o Lal Din which was brought to the mortuary by Mushtaq Ahmad and Muhammad Riaz constables. The dead body was identified by Muhammad Sadiq s/o Nawab Din and Muhammad Sadiq s/o Muhammad Din. The following injury was observed on the dead body:- "1. Lacerated penetrating wound (circular) entry wound diameter 4 cm, cavity deep on the left side of frontal part of the abdomen 11 cm on the left lateral died of unblinds 23cm below from the left nipple 9 cm above-from the iliac bone. Margin of the wounds were inverted. Blackening and burning around the wound was present. Total area of burning and wounds was 10 x 10 cm, corresponding perforation on Qamees and Saluka were present. Omentum and intestines were coming out through the wounds. No exit wound was present on the body."
In the opinion of the witness, death was due to haemorrhage and shock due to injury No.1 and the same was sufficient to cause death in the ordinary course of nature. Injury was antemortem and caused by fire-arm weapon. He delivered the dead body papers, last worn clothes and sealed phial containing pallets and cartridges to Mushtaq Ahmad constable. Post-mortem report was prepared by him and Ex.PE was the correct carbon copy thereof. Pictorial diagram Ex.PE. 1 was also signed by him.
6. During the cross-examination the witness stated that on 19.11.1990 at 11:20 AM he medically examined Muhammad Ramazan s/o Mehraj Din of village allayalpur and observed the following injuries on his person:-
1. Lacerated wound 1 cm x 1/2 cm, depth not probed on the frontal part of head 5 cm above from the hair line. Swelling 3x3 cm around the wound was present.
2. Contused swelling 2 x 3/4 cm depth nor probed on the back of left side of head. Swelling 4 x 4 cm around the wound present.
3. A lacerated wound 4 x 1/2 cm depth not proved 7 cm behind from injury No.1, on the top of head.
Swelling 2 x 2 cm around the wound present.
4. A contused swelling 4 x 4 cm DNP with lacerated wound on the back side of head 4 cm behind from injury No.2.
5. Contused swelling 8 x 7 cm on the back side of right hand present. Complaint or sever pain in the right hand.
6. Incised wound 2 x 1/4 cm scalp deep on the head 7 cm above from the hair line and 12 cm above from the right ear.
All the injuries were kept under observation by him. Injuries No.1 to 5 were caused by blunt weapon whereas injury No.6 was caused by light sharp weapon. The patient was vomiting, his condition was serious, x-ray of skull AP and Lateral view and right hand was advised. Ex.DC was the correct carbon copy of the M.L.R.
He also stated that on the same day at 11:25 AM he medically examined Muhammad Yousaf s/o Mehraj Din of the same village and found the following five injuries on his person:-
1. Lacerated wound 4 x 1 cm DNP on the middle of forehead, wound margin was irregular.
2. Lacerated wound 1 x 1/2 cm DNP above the right-eye brew on the forehead.
3. Lacerated wound 5 cm x 1/2 cm on the frontal part of head, 2 cm above from hair line.
4. Contused swelling 5x4 cm on the while nose.
5. Complaint of pain in the front of whole chest.
Condition of the patient was serious, blood pressure was low, and pulse rapid. Injury No.1 was grievous. All the injuries were kept under observation and were caused by blunt weapon. On x-rays fracture of frontal bone of the skull was seen in both views i.e. AP and lateral. Ex.BC was the correct carbon copy of the report and Ex.DC/1 was the report of x-ray.
7. Muhammad Akbar ASI PW.9 stated that he obtained physical remand of Muhammad Ramzan on the directions of Zulfiqar DSP and during the investigation he got recovered gun Ex.PS from his residential house which was taken into possession vide memo Ex.PF. He prepared site plan Ex.PD of the place of recovery.
8. Rehmat Ali ASI PW.12 stated that on 20.11.90 he was handed over a sealed parcel, containing blood stained earth to be kept in Malkhana which was delivered by him to Muhammad Riaz constable for taking the same to the office of Chemical Examiner. Dildar Ali PW.13 was the Inspector/SHO on the date of occurrence. He recorded statement Px.P.E. Zulfiqar Ahmad Malik PW.14 had also investigated the case while posted as DSP Sadar Sialkot and on 22.1.1990, he arrested accused and challaned them. He stated that the injuries on the person of the accused at the time of arrest were minor and were self suffered, therefore, no action was taken against the complainant. Arif Hussain Draftsman PW.15 prepared the site plan Ex. PK and PK/1 in the scale of 20'=1" and handed over the same to the Investigating Officer on 26.11.1989. All the drawings in black ink were in his hand.
9. The prosecution gave up Lal Din, Muhammad Aslant, Muhammad Sadiq, Muhammad Munir, Muhammad Siddiq, and Rehmat AU as unnecessary and tendered in evidence the report of the Chemical Examiner and that of the Serologist as Ex. PL and PL.1 respectively and closed the case for prosecution.
10. The accused when examined under section 342 Cr.P.C, denied the allegation and stated that they were in possession of the site and Bashir deceased and others trial to take forcible possession of the same while armed. They caused repeated injuries to the accused and during the scuffle the gun of Muhammad Yousaf went of which hit Muhammad Bashir resulting in his death. Plea of self defence was raised.
11. I have perused the record and have also gone through the evidence on the file. The prosecution produced only two eye witnesses and none of them was an independent witness. Muhammad Din PW.8 was the Uncle and Nazir Ahmad PW.9 was the real brother of the deceased and they could not be the only witnesses of the occurrence where the place of occurrence was in the village abadi.
Possession of the disputed place where occurrence took place is admitted to be with the accused persons and they also produced Ex.DC as a proof of then- title also. Notwithstanding Ex.DC mere admission of possession by the prosecution is sufficient for the accused to avail the facility of self defence of the property if some body tried to dispossess them except in due course of law.
12. There were as many as six injuries on the person of Muhammad Ramzan accused appellant out of which five were on the head and the Sheth was on the right hand. Five injuries were found and proved by Medical Officer PW.10 on the person of Muhammad Yousaf accused appellant and three of the injuries were on the head, one of them had resulted in fracture of the bone. One injury was found on the whole nose. 9 out of 11 injuries on the persons of the present appellants were on the vital parts of the body, 8 of them being on heads. The time of injuries, as given by Medical Officer, coincided with the time of occurrence as stated by the prosecution.
13. Discharge certificates of both the accused were also on record as Ex.DE and DF respectively. The trial court failed to notice that the prosecution had suppressed injuries on the persons of the accused.
14. I am of the view that the investigation was mala fide. The accused were not shown as arrested so long as they remained admitted in the hospital. This mode was adopted to let all of the injuries on the persons of the accused persons heal up. Had Mr. Zafar Iqbal Medical Officer PW.10, who conducted the postmortem examination on the body of Muhammad Bashir been not the same Medical Officer who conducted the medical examinations of Muhammad Ramzan and Muhammad Yousaf, it would have not been possible to get their medical examination proved and brought on the file by the accused. The Investigating Officer had no reason to opine and the trial court had no reason to believe the opinion of the Investigating Officer that the injuries on the persons of the appellants were minor and that they were fabricated. The only witness who could give his opinion in the circumstances was the Medical Officer who had conducted the medical examination on the persons of these two appellants who could give such opinion but PW.10 was not even re-examined by the public prosecutor on this point.
15. In view of the above discussion I am of the view that the trial court failed to appreciate the facts of the case in proper perspective and refused to extend right of self defence to the appellants which was available to them under the law. Eight of the injuries on the persons of the present appellants were on the heads and one was on the face. The trial court had no reason to ignore these injuries and especially so when the prosecution had not explained and had rather suppressed these injuries. In the absence of explanation coming forth from the prosecution there remain only the statement of the appellants and the court had no reason to disbelieve them and especially to the extent of their statement wherein they had explained as to how they received the injuries. -The question of sentence can be examined while appreciating the availability of the right of self defence and its limitations. In the present case the accused have received as many as 11 injuries including the fracture of frontal bone whereas there was one solitary injury on the person of the deceased. The appellants were admittedly in possession of the disputed site and they had lawful right of self defence of property towards of any intruders and on the receipt of injuries and to them had accrued the right of self defence of person. The law would not refuse such right to the accused whose heads were made the target of violence. Comparing the nature of injuries, the state of injuries that the appellants received at the time of occurrence to the injuries that the deceased received, I am of view that the accused had not exceeded their right of self defence which extended to the causing of death in the circumstances of the case.
16. In view of the above the appeal is accepted. The conviction and sentence of the appellants is set aside and they be released forthwith if not required in any other case.