' Appellants Gul Bahar, Qaisar, Lalbux, Suleman, Younus, Mohbat, Hakim All Shah and Ranjho were tried for the murder of Mst. Fatima while committing dacoit rioting, attempted murder of Allahrals hio, Rahmatullain Din Muhammad, Qalandar Bux, Ata Muhammad, Muhammad Azim, Allanditto, Bakhtullah, Mjt. Sami, Mst. Umedan and Mst. Jadul, and for causing simple and grievous injuries to Qalandar Bux, Ata Muhammad, Allanditto, Rahmatullah, Mat. Jadul, Din Muhammad, Mst. Sami, Mst.
Umedan, Bakhtullah, Muhammad Azim and Allahrakhio, convicted under sections 325/149, 323/149, 148 and 147, P. P. C., sentenced on the first count to four years' rigorous imprisonment and to pay a fine of Rs. 100 or in default to suffer rigorous imprisonment for one month, on the second and third to rigorous imprisonment for one year each and on the fourth, to rigorous imprisonment for six months, by the learned Additional Sessions Judge, Sukkur, vide judgment dated 16th January 1970.
Appellants Gul Pahar and Qaisar were further charged under section 13(d) of the Arms Ordinance for being armed with unlicensed guns but no conviction and sentence is recorded on this charge.
Eleven other persons, namely Azim, Safar, Din Muhammad, Fateh Muhammad, Khudabux, Khan Muhammad, rehulam Qadir, Imambux, Wahid Bux, Allahrakhio and Ismail were also tried along with the appellants but they were acquitted. The appellants have appealed to impugn their conviction on various counts and the sentences imposed therefor.
2. According to the prosecution case, there was a dispute over land between Allahrakhio and Gul Bahar since a long time. While Allahrakhio was at his well on the land where he resided in a house at about sunrise time on 20th November 1967, cries were heard from there, upon which Kamal, Razi, Ghazi, Muhammad Buz and Karim ran towards it and on reaching there they saw Gul Bahar, Suleman, Younus, Qaisar, Ranjho and about 100 or 150 unknown persons armed with guns, hatchets and lathis assaulting Ata Muhammad, Azim, Din Muhammad, Allahrakhio, Mat. Umedan, Mst.
Fatima and Mst. Jadul and firing guns at them and causing blows with hatchets and Whig, as a result of which they had fallen injured on the ground. Kamal without waiting further ran to inform Sikandar Shah, a Zamindar, who advised him to lodge a report, which he did at Police Station Dubar, 12 miles away, the same day at 1 p m. In the meantime Allahrakhio, Rahmatullah, Din Muhammad and M5t. Sami proceeded to Rohri where they met Salimullah S. H.
0.. Who recorded their statements and sent them for treatment to the Medical Officer, Rohri. From there the S H. O. Proceeded to the wardat which was near the well of Khudabux, where Mst. Fatima and Allanditto lay injured and unconscious. He sent them to the Medical Officer, Rohri for examination and treatment. He also saw Qalandar Bux, Ata Muhammad, Azim, Bakhtullah, Mst.
Jadul and Mst. Umedan lying injured under a 'bar tree near the wardat, He also sent them for examination and treatment to the same Medical Officer. He secured blood from the wardat and noticed broken earthen pots lying near the well, "straws and raptures". He arrested Qaisar, Suleman, Younus, Din Muhammad, Fateh Muhammad, Safar, Qadir Bux, Khan Muhammad, Khudabux, Azim and Imambux, the same day. On the next day he searched the house of Gul Behar and his sons, Younus and Suleman and recovered a hatchet from there. He next searched the house of Mohbat, Khudabux and Azim and from there secured three lathis. On 25th November 1967 he arrested Gul Bahar and Mohbat. Gul Bahar produced a gun from the heap of "jawar' crop in the presence of Mashir Ghulam Qadir. On 15th December 1967 he arrests ed Hakim Ali Shah, Ranjho and Wahidbux.
Ranjho produced two 'nide, two cots and one quilt in the presence of Mashir Arabelo. These articles were put to an identification test on 30th December 1967 and Allahrakhio and Mst. Umedan picked out the Wiley' and the quilt, but not the cot. Ismail was arrested on 4th January 1958. GJ1 Bahar also lodged a counter report after the incident the same day at 13-30 hours.
3. The counter version is that Survey No, 172 was purchased by appellant Gul Bahar in auction which ha and Qaisar were jointly cultivating. Mewo, Allarakhio and Allanditto resented the purchase of this land and threatened them to dire consequences, whereupon he had lodged a complaint at Police Station Dubar, as a result of which proceedings under section 107 were initiated against them in the Court of First Class Magistrate, Rohri, which case was pending. At about sunrise time on the day of the incident while he, his son Suleman, and Qaisar were working on the land, Allahrakhio, Rahmatullah, Allanditto, Ata Muhammad, Suleman son of Allahrakhio, Mewo, Karimbux, Aghan, Muhammad Bux, Rahimdino, Bakhtullah, Azim, Dino, Hadibex and some 50 or 60 unknown persons arrived there, of whom Allahrakhio was armed with single-barrel gun while the rest with hatchets and lathis. Allahrakhio challenged them to vacate the land and in case of refusal they would kill them, upon which they replied that they had purchased the land and had cultivated it and were paying land assessm ent for it and there was no reason for vacating it. Soon after getting this reply those armed with lathis and hatchets caused blows to them while Allahrakhio continued firing the gun. As a result of the commotion, cries and gun reports, Mohbat, Allahrakbio son of Sumat, Ismail and Lalbux were attracted to the wardat and they also witnessed the incident, and rescued them, whereafter Allahrakhio and others went away raising slogans. However, the gun of Allahrakhio was snatched from him and was lying at the wardat. In the fight persons from both the sides had received injuries. As many as five persons from the side of the appellants received injuries, of whom two are the present appellants, namely Qaisar and Suleman while the three others, namely Fateh Muhammad, Safar and Din Muhammad have been acquitted. All the injuries were simple in nature and caused by blunt weapons. Azitn had no injuries but bled from an old abscess. In all three injuries were noticed each on Qaisar and Fateh Muhammad, two on Sulernan and one each on Safer and Din Muhammad.
4. Mst. Fatima died on the next day of the incident. The autopsy on the dead holy disclosed that she suffered the following two injuries :- "(1) Lacerated wound 3' x 1' walla deep on right parietal region of bead.
(2) Contusion on right eye 3' x 2' on both the lids with the ecchymosis on right temporal region."
' In the opinion of Dr. All Jan, injury 1 was sufficient to cause death in the ordinary course of nature and that both of them were caused by blunt weapons.
5. Dr. Muhib Shah examined Allahrakhio, Rahmatullah, Din Muhammad, Mst. Semi, Qalandar Bux, Ata Muhammad, Muhammad Azim, Mst. Jadul, MM. Umedan, Allanditto and baktullab, Allahrakhio suffered four lacerated and two contused wounds were stated to be simple in nature. Except two which were opined to have been caused by contact with a rough substance, the rest were caused by some blunt weapon. Rahmatullah suffered eight injuries, out of which one was grievous in nature while the others ttere simple. Two such injuries were caused by some pointed substance, such as Thudo while the rest with a blunt weapon. Din Muhammad suffered as many as eight injuries, out of which four were abrasions and the rest lacerated and contused wounds. All of them were simple in nature and caused by a blunt weapon such as a Mg. Sami suffered one injury and that too was simple and caused by a blunt weapon such as lath!. Qalandar Bux suffered two injuries, out of which one was grievous and the other was simple. Both of them were caused by a weapon, such as lathe'. Ata Muhammad suffered seven injuries, out of which one was grievous in nature and all of them were caused by a blunt weapon such as lath!. Muhammad Azim suffered three injuries,. All of them were simple in nature and caused by a weapon such as lath!. MM. Jadul suffood one grievous injury and that also by a blunt weapon. Mst. Umedan received three injuries, out of which one was acid to be caused by the ditcharge of a fire-arm, such as gun while the other two by a lath!. All of them were opined to be simple in nature. Allanditto suffered severe, injuri s, out of which one was grievous and the rest were simpo in nature and that all of them were stated to have been caused by a blunt weapon. Lastly Baktullah suffered two injuries which were simple in nature and caused by a blunt weapon.
6. Appellants Gul Bahar, Suleman and Qaisar have a common defence, namely that they had caused the injuries while defending their possession of the land. Gul Bohar elucidated his stand as under :- "In self.Defence as the other party wanted to take forcible possession. I enjoyed 13 acres previously.
Government took back 9 acres and auctioned it. I purchased it. The other party wanted 5 acres out of it and they got it somewhere else, therefore the attack."
' He also stated that the appellants and the acquitted accused were related to him except Hakim Ali Shah who was falsely implicated at the instance of Muhammad Ayub Tviarsgi, with whom he had dispute over a quarry and that the appellant Gul Behar had lodged a complaint against Allahrakhio and others but they were not challenged, hence he had filed a direct complaint. Qaisar added that he suffered injuries while rescuing Gul Bahar. Appellant Azun stated that he reached the wardlt on hearing the cries and that while rescuing Gul Behar he received injuries though none were observed on him. So far and Din Mohammad also took the same stud. Mohammad Y01111114, Ranjho, Mohbat and Lal Bux pleaded that they were falsely implicated because of their relationship with Gul Bahar. Mohbat and Lal Bux also added that they were witnesses in the counter case. Hakim Ali Shah pleaded that he was implicated by Allahrakhio at the instance of Mohammad Ayub Mangi, whose Kamdar he was and with whom he had bad relations on account of cases filed bstween the parties.
7. The trial Court acquitted the appellants on the charge under section 396, P. P. C. While repelling the plea of self-defence it reached the conclusion that the complainant party was in possession of the dipped land and that the appellants were the aggressors as they wanted to display them from their possession. There can be no doubt that there was fight but whether the appellants were the aggressors is a question which to be determined in this appeal. The trial Court while accepting test and of the complainant party as to the possession held that 'it is an admitted fact that Survey No, 172 was formerly in possession c f Allahrakhic'. Later on Gul Bahar obtained it. This fact has been admitted even by the prosecution witnesses and the record also shows that". In justification of this stand of the complainant party, the trial Court gave the reasons as under :- "As usually happens that once a person is put in possession of the plot though the plot may later be allotted to someone else still that person sticks to the possession till he is ousted in due course from that plot."
' Further, pursuant to the above reasoning it also accepted as true that Khudabux had a well and a kutcha house on the disputed land in spite of having acknowledged the fact that the land had been sold to appellant Gul Bahar. Nevertheless, it was still of the impression that though they had been deprived of the land meaning thereby its legal right, yet "they lingered on with the possession and were living thereon".
8. I regret to say that the trial Court apart from giving effect to the bare words of the prosecution witnesses as to the possession of Allahrakhio did not consider the documentary evidence led in defence. At page 181 of the paper book there is Exh. 125 which is Robkari dated 16-5-1967 and by which Allahrakhio's land No, E/5-0 was stated as not to be included in the auction schedule. It may be recalled that Allahrakhio had given an applicas Lion when the disputed land was to be auctioned that his land i,e,, E/-0 should not, by any accident, be included in it. At this stage, he did not protest that the disputed land beating No, B /5-0 of unassessed Survey No, 172 should not be auctioned as he was in possession of it os entitled to its transfer for that reason. It was when the disputed land was sold that he appealed to the Project Director but not being successful he filed a civil suit (No, 90/67) in the Court of the Civil Judge and also asked for interim Injunction. The injunction was refused whereupon he appealed to the District Court but that Court also did not grant that relief. The suit was ultimately dismissed and no appeal was filed to impugn the dismissal. Not only the plea of his possession was rejected but also the fact that he was not able to establish that he had dug a well on the disputed land. When examined in Court he stated that the disputed land was owned by the government yet it was granted to Khudabux, his father which stood adjacent to Survey No, 336, which grant is not supported by any evidence on record. He also stated that his father dug a well in Survey No, 172 a year before the incident but the evidence shows that on the well there was no Persian wheel for drawing water and, therefore, no land could be fed by it. It was thus in a disused state. Allabrakhio admitted that the tube well of appellant Gul Bahar was installed some two years before the incident but did not say in which survey number it was situate, obviously to conceal that it was near about the disputed land. He also went to the extent to say that he had applied to the Commissioner for being granted five acres of land and that a Rnbkari was issued. This is a false statement, for the only document that pould refer it to It is sib. 125 which does not relate to the grant but only shows that his land is not included in the auction Schedule. There is also a discrepancy in the prosecution evidence as to when his father, Khuda Bux, had actu{lly dog up the well. Allahrakhio has relied on Exh. 25 t Eats. 29 to show his prior possession of the lead which are again misleading. Exh. 25 is dated 7-7-1969 and relates to a land near D/336 of unassisted Survey No,
172. It is issued much after the incident and cannot relate with certainty to the land in dispute. Exh. 26 relates to different survey numbers and is dated 17th May 1965. Exh. 27 mentions unassessed Survey No, 172 and is dated 11th October 1961. There can also be no certainty as to whether it could relate to the land in dispute as this survey number was unassessed and it cannot he said whether he was in possession of the whole or a part of it. Exh. 28 is a bill for the year 1968-69 and mentions only Survey No,
172. It also shows that he was in en unlawful possession of it as the word "Remokal" is used. Whether it related to the disputed land of unassessed Survey No, 172 is not apparent from it. In any case, the bill appear to have been issued after the date of incident and can, therefore, have no relevancy, Exh. 29 is an old bill for the year 1956-57 which can have no relevancy, for even according to Allahrakhio he came into possession of the disputed land a year before the occurrence. In this state of documentary evidence as to possession it is not understandable as to bow the trial Court expressed that Survey No, 172 was in possession of Allahrakhio. The appellants have led documentary evidence to establish their possession. Exh. 126 gives the number of the land as B/5.0 which was subsequently purchased in auction by appellant Gul Bahar. It is in the name of his father and is dated 30th lune 1965. This document shows that Mohammad Laiq was permitted to occupy the disputed land. The next document is Exh. 127 which is again in the name of Laiq and relates to the same disputed land and permits him to occupy it. A sketch of the disputed land also apeears at t se foot of it, which shows it to be adjacent to Surveys Nos. 300, 301, 304 and 306 which are admittedly in possession of Gui Bahar and others. A portion of it touches Survey No, 336 which telongs to Allahrakhio. Exb. 129 is another document which shows the possession of Laiq, his father. It is a laud revenue receipt and is dated 5th May 1966. There is another revenue receipt at page 192 of the paper book. It is for the year 19e0-61 and is in the name of Laiq and relates to the said land. At page 194 of the paper book there is another document granting permission to Laiq to occupy the disputed land of unassisted Survey No,
172. It Is dated 17th April 19t 1. There are too nctices at rage 193 of the paper book calling upon his father Laiq to deposit the lease money and to execute 'Kabuliat' so that an 'Ijazatnama' for occupying the disputed land auctioned to him may be issued. There is, therefore documentary evidence to establish the possession of appellant Gul Bahar of the disputed land of unassessed Survey No, 172.
It is also in the evidence that there was crop of oil-seed which could not have been watered but from the tube-well of Gni Behar. Allahrakhio had a pacca house in village Shand. There was no reason why he would have stayed with his wife in the so-called ku'cha house, of which only some traces were found at the wareat when he had his own house closely. The existence of the house at that time is doubtfel, if I were to discount the words of the complainant pary and I see no good reason to accept them. All this stand 1s taken to support possession of the disputed land, which Allahrakhio could not establish in the civil suit. The trial Court did not appraise the evidence in this light and erroneously reached the conclusion by giving the benefit of a possibility, namely that even though a person may not have a legal right to possession yet if he had remained earlier in possession he may lInaer on with it for some time, to the prosecution.
8-A. Having reached the conclusion that the appellant party were In possession it is not possible to accept that they were the aggressors even though eleven P. Ws. Belonging to the complainant party had sustained injuries and one of the ladies had died. It is the case of both the sides that there were a large number of persons, about 100 or 150 on one side and 50 or 60 on the other who had fought. The account of the fight and the parts assigned to those belonging to the appellant party cannot also be wholly relied on. A gun is said to have been fired at Mst. Umedan and Allahrakhio while they were inside the house, yet only one Injury is said to have been caused by a pellet and that too on the back of the left elbow of Mst. Umedan. It was also superficial. There is no sharp-sided hatchet injury on any of the persons belonging to the complainant party though the allegation is that some of them were armed with ha-chets. Two of the appellants and three acquitted accused had also suffered injuries with blunt weapons. In the context of the injuries suffered by the complainant party there can no doubt that the appellants and those acquitted gave a sustained beating to them, but this by itself cannot establish that they were in possession of the disputed land and had a right to exclude those who wanted to have forcible possession of it. It is true that the ladies were injured but the evidence is that they bad come on cries and intervened to save those who were involved in the fight. In that situation they must have received the injuries.
However, it cannot be said that the complainant party were not the aggressors on the premise that ladies would not have joined them to take forcible possession of the land which is not a correct way of assessing what had happened in the context of the evidence led before the Court.
9. The learned counsel for the appellants also contended that Hakim Ali Shah was falsely implicated because Allahraahio had joined him as an accused at the instance of Muhammad Ayub Mangi, whose Kamdar he was, but I do not propose to ge into this question as on other grounds I am inclined to allow the appeal. The prosecution has accordingly failed to establish the case against the appellants. Giving to them the benefit of doubt I would acquit them. Appellants Qaisar and Suleman have already served out their sentences while the rest of them are on bail.
Their bail bonds are discharged. The appeal thus stands allowed.