1. MUHAMMAD AKRAM, J.-Mithoo appellant along with 8 others were sent up for trial for offences under section 148/447/302/307, read with section 149, P. P, G. For forming an unlawful assembly armed with deadly weapons, making a criminal trespass in the land of the complainant party, committing the murder of Allah Dad deceased and for causing injuries to Murad, Hassu Khan and Mohammad Akrain P. Ws. On the 28th April, 1970 in village Daya Chaukha Sharqi, Tehsil Kot Adu, District Muzaffargarh. The Session Judge, Muzaffargarh convicted only Mithoo appellant and Noora co-accused under section 302/34, P. P. C. And sentenced them to suffer transportation for life and acquitted the remaining accused giving them the benefit of doubt. On appeal by the two convicted persons, a learned Judge of the Lahore High Court at Lahore on the 25th May, 1972 accepted the appeal of Noora on the ground that according to the prosecution's own case, he was said to have joined in giving blows to Akram and Hassu P. Ws. And was not attributed to have inflicted any injury to Allah Dad deceased. The Court, however, dis--missed the appeal of Mithoo on the ground that his right of private defence did not extend to causing of injury on the head of Allah Dad deceased which proved fatal. But his conviction was, altered from one under section 302, P. P. C. To that under section 304, Part I, P. P. C. And he was sentenced to undergo ten years' rigorous imprisonment. Mithoo then filed a petition for special leave to appeal from the judgment of the High Court. On the 18th September, 1972 this Court granted leave to him to appeal to consider whether he had exceeded his right of private defence in the circumstances of the case.
2. The prosecution case is that the land in dispute on which this incident took place belongs to Rab Nawaz, a brother of complainant Hassu Khan, and was in his cultivating possession. On the 28th April, 1970, at about 7 a.m. The complainant had just sown jawar in the field and had gone back to his home when, in his absence, all the nine accused armed with sticks came to the land with three pairs of bullocks and started ploughing tire lielu. On this the complainant, along with his sons, Allah Dad deceased and Murad and P. W. Muhammad Akram, came to the site and objected, to the accused ploughing the land. On this the accused assaulted the complainant party with the resin that they all received injuries at their hands and Allah Dad fell as a result of the injuries received by him. The accused then left the, police, taking away with them their bullocks and the weapons of offence. The in--jured were carried to Sanawan Dispensary and from there to the District Headquarters Hospital, Muzaffargarh. The complainant lodged the report with the Police Post Sanawan. His statement was recorded by A. S. I Muhammad Khan, Incharge Police Post, who forwarded it to the Police Station Kot Adu for the formal registration of the F. I. R. Against the accused persons. The police officer then proceeded to the Muzaffargarh Hospital. On arrival there, he learnt that in the meantime Allah Dad had died of the injuries. He prepared his injury statement and inquest report and sent the dead body under escort for post-mortem examination. S. H. O. Qazi Muhammad Tufail then took over the investigation and proceeded to the scene of occurrence. He took into possession blood-stained earth and got a site plan prepared. On the 30th April, 1970, he arrested all the accused who produced their sticks which were taken into possession.
3. Dr. Saeed Ahmad Chauhdhry performed the postmortem examination on the dead body of Allah Dad deceased on the 29th April, 1970. He found the following injuries on his dead body :----
(1) A lacerated wound 1 -- " x 1/2 " on right side of the back of the head with swelling around.
(2) Left eye lid swollen and bluish.
(3) Right side of the face and temple swollen and contused.
(4) Contusion with depression on the left side of top of the skull 2" x 2".
4. On opening the skull the Doctor found multiple fractures of the skull underneath injuries Nos. 1 and
4. He also found the membrane and brain ruptured underneath injury No. 4. In his opinion, death was due to injuries Nos. 1 and 4. These injuries were anti-mortem and grievous and caused by some blunt weapon.
5. Hassu complainant, on medical examination, was found to have one con--tused wound 2' x 1/3" bone deep on the front of head left side, the wound was bleeding. The injury was simple in nature and was caused by a blunt weapon.
6. Murad had following injuries on his person :---
(1) Contusion with swelling 1" x 1" in the middle of the head.
(2) Abrasion 1 /4" x 1/4" on the outer side of the left eye.
(3) Contusion 1' x 1' outer side of the right shoulder blade and back of the chest vertical.
(4) Contusion 3" x 1/2" with slight swelling left side.
(5) Contusion 4" x 1" on the lower part of the left side of the back.
7. Injuries Nos. 2, 3 and 5 were simple in nature. The other two were kept under observation but final result was not obtained. All the injuries were caused by blunt weapon.
8. On medical examination, Muhammad Akram P. W. Was found to have the following injuries on his person :---
(1) Contusion multiple in an area 9" X 6" on the left side of the back with slight swelling.
(2) Contusion 4" x 1-- "" on the back of the right scapela transverse.
(3) Contusion 10" X 1" vertical on he right side of the back.
9. Mithoo and Noora accused were also examined by the Doctor on the 1st May, 1970 and he found the following injuries on Noora :-
(1) A bluish (reddish) contusion 4"X3/4" on the back of right lumber region.
10. The injury was simple caused by blunt weapon about three days before examination.
11. The most important ocular evidence in the case consisted of Hassu (P. W. 8), Muhammad Akram (P. W. 9) and Rab Nawaz (P. W. 11). Hassu complainant deposed in support of the First Information Report lodged at his instance. He stated that Rab Nawaz was the owner of the land and that about two months before the occurrence he gave the land to him for cultiva--petition. On the day of the occurrence, he had ploughed the land and sown jawar in the field. But afterwards the nine accused came there armed with sotas to plough down the land. He came to the field and entreated the accused not to create trouble. In the meantime Allah Dad deceased, Murad, Akram and Rab Nawaz also came there. They also requested the accused not to plough the land. In the course of the ensuing altercation, Mithoo gave a blow to Allah Dad deceased on his head. Ahmad and Gama also gave blows to the deceased who fell down. Muhammad, Noora and Wazir accused gave blows to Akram while accused Shamila, Sarwar and Dewaya accused gave blows to Murad. Noora accused also gave a blow to the com--plainant. The accused then went away taking the bullocks along with them. In his cross-examination the witness admitted that Rab Nawaz gave the crop on this land to biro for harvesting only. The standing cotton crop was Kicked by Miroo and Mithoo. He admitted that this incident took place in the very field of cotton. Miroo is the uncle of Mithoo accused. The complainant was confronted in his cross-examination with his report in which he admitted that Rab Nawaz had given his entire land to Miroo and Mithoo accused on lease (mustajri). P. W. 11 Rab Nawaz, who is a brother of the complainant Hassu, was admittedly the owner of the land in which this incident took place. He deposed that originally the land was in his possession and he used to cultivate it himself. But then he migrated to Chak No. 646/ T. D. A. Before leaving the village he handed over the standing crop only to Miroo, uncle of Mithoo accused. He stated that he did not deliver the pos--session of the land to Miroo or Mithoo accused but retained its possession with him. He had, however, admitted before the committing Magistrate that he had leased out the land in dispute to Miroo. The prosecution also produc--ed a document (Marked Exh.
12. P. O.) before the committing Magistrate which supported the version of the accused party to the effect that Rab Nawaz had leased out the land for a year to Miroo.
13. The recovery of lathis was made during the investigation. One of these dangs was found to be stained with human blood. The learned Sessions Judge ignored these recoveries because, according to Muhammad Suleman (P. W.) witness of the recovery, they were no individually but collectively produced by Allah Wasaya Lambardar on behalf of the accused. The High Court also did not attach any importance to the recovery of the dangs made in this manner.
14. Except for Mithoo and Noora the remaining accused in their statements recorded under section 342, Cr. P. C. Denied their very presence at the time of the occurrence. Accused Mithoo and Noora who had injured explained that the land in question was given to them by its owner Rab Nawaz through their uncle Miroo and that they were in its cultivating possession as tenants and they had ploughed the land when on the day of occurrence P. W. Hassu came there and objected to their ploughing the land and stopped their bullocks He started abusing them and then pelted them with stones. He then called his sons, Murad and Allah Dad deceased and his son-in-law P. W. Akram who arrived there armed with sticks. They attacked the two accused, where--upon they took out sticks from the yokes with which they were ploughing the land at the time and gave those injuries in self-defence.
15. From the evidence, the learned Sessions Judge was satisfied that at the relevant time the land was in the cultivating possession of the accused as lessees thereof through Miroo, an uncle of accused Mithoo. In the circum--stances, in the opinion of the Court, the complainant had no justification to claim possession of the land in dispute and to cultivate it. It was not proved from the record that on the day of the occurrence, Hassu complainant had already ploughed the land and sown jawar there. In fact the Investigating officer in his cross-examination admitted that in the inspection note of the site he bad not mentioned that any jawar had been sown in the land where the incident took place. In the opinion of the Court, the whole story to that effect was a mere concoction. In fact on the day of the occurrence, the accused party started ploughing the land in their possession and it was the complainant, who with the help of his sons and son-in-law offered resistance and precipitated the matter. The Court, therefore, held that the accused could not be considered to have formed an unlawful assembly and committed any criminal trespass over the land in their possession. But the Court found it hard to believe that at the tune of the occurrence the accused were two in number only. If that were so, the incident could not have occurred in the manner in which it took place and the complainant party would have surely overpowered the two accused and not suffered injuries to which they were subjected according to the medical evidence. At the same time, the learned Sessions Judge was not prepared to believe, merely on the basis of the interest--ed statements of P. Ws. Hassu and Muhammad Akram, that the accused party consisted of nine members named in the F. I. R. He observed that the two accused Mithoo and Noora, both injured, admitted their presence at the time of the occurrence and that at least the v were the only two accused about whom it could be said with certainty that they were present at the time of the occurrence. Therefore acquitted the remaining accused giving them the benefit of doubt. In tile opinion of the Court, although the right of private defence was available to the accused Mithoo and Noora but they exceeded in exercising it. The Court held them to be guilty and convicted them under section 302/34, P. P. C. And sentenced them to suffer transportation for life.
16. On appeal by Mithoo and Noora accused the High Court observed that the fact that nine persons had been Involved in the case had, influenced the mind of the learned Session Judge in such a. Ray that he did not discuses the evidence against the other accused and proceeded to determine the crimi--nality of these two injured persons only. Mithoo accused had a reddish-blue contusion on right thumb, while Noora had a contusion on his back measuring 4''X 3/4" and in all probability he, must have received this injury with a lathi. The High Court evidently agreed with the finding by the Sessions Judge that the accused had a right of private defence of property. On this premises, in the opinion of the High Court, each accused would be responsible for his own individual acts. At the same time the High Court was not satisfied with the convictions based by the Sessions Judge on the replies elicited in answer to the suggestions put to Hassu P. W. In his cross --examination. In the opinion of the High Court the onus rested on the pro--secution to bring home the offence to the accused person. In the instant case Noora accused, according to the prosecution, was said to have joined in giving blows to Akrarn and Hassu P. Ws. And he had a right to cause simple injures 77: self- defence to the trespassers on the land in their possession. The Court, therefore, set aside his conviction and sentence. In the opinion of the Court Mithoo appellant exceeded the right of private defence. But the conviction against him was altered from one under section 302, to that under section 304, Part I, Pakistan Penal Code and the Court sentenced him to ten years' rigorous imprisonment: In summing up the case against him the High Court in penultimate paragraph of its judgment observed as under :- "So far as Mithu appellant is concerned, he has only a small contusion on his thumb. It cannot be said under the circumstances of the case that he had the genuine apprehension of any grievous hurt. He could not, therefore, have gone to the extent of causing injury on the head of the deceased which proved fatal. But again. He could not have been convicted under section 302, P. P. C. As exception (2) to section 300, clearly states that culpable homicide is not murder if the offender in the exercise of the right of private defence exceeds the power given to him by law. The illustration under this exception further elucidates the legal position. The learned Sessions Judge while convicting the two appellants under section 302, P. P. C. Lost sight of this significant provision of law."
17. According to Hassu (P. W. 8), Mithoo accused opened the attack and gave a blow to Allah Dad deceased on his head and thereafter Ahmad and Gama accused gave blows to the deceased with the result that he fell down., His testimony on the point is generally supported by Akram P. W.
18. On post--mortem examination the deceased was found to have four injuries on his body two of these (injuries Nos. 1 and 4) were on the head. On opening the skull the doctor found multiple fractures of the skull underneath injuries 1 and 4. He also found the membrane and brain ruptured underneath injury No. 4. In the opinion of the doctor the death was due to injuries Nos. 1 and 4 which were sufficient in the ordinary course to cause death.
19. According to the prosecution there were in all nine accused pitted against P. W. Hassu, his two sons Allah Dad deceased and Murad, Akram and Rab Nawaz. The complainant party including the deceased had in all 13 injuries on them against one simple injury each found on the person of Mithoo and Noora accused. The number and the nature of these injuries go to show that the accused party must have outnumbered the complainant, party in strength and were comparatively well-armed, otherwise it is not possible to conceive that they could have received such a beating at the hands of the accused. Evidently, in that unequal situation, the accused party had the upper hand and were in full control of the situation. Noora accused had a bluish (reddish) contusion on the back of right lumber region. The injury was simple caused by blunt weapon.
20. Mithoo appellant had a small reddish blue contusion on his right thumb. The injury was simple caused by a blunt weapon. The deceased had two head injuries on his body. Both these in--juries resulted in multiple fractures of the skull underneath them. One of these was caused by the appellant and he must have struck with considerable force resulting in fracture to a vital part of the body. According to his statement recorded by the Sessions Judge Hassu P. W. Objected to the plough--ing of land by the accused party. He then stopped their bullocks and started abusing and pelting stones on there the also called his sons whereupon his sons Allah Dad deceased and Murad anti his son-in-law came there armed with sticks and attacked them On this the accused took out sticks from the yokes and caused the injuries in self-defence. But the accused did not produce any evidence in support of their version. From the evidence the High Court observed that Mithoo appellant had only a small contusion on his thumb. In the circumstances it could not be said that he had genuine apprehension of any grievous hurt and, therefore, he could not have gone to the extent of causing injury on the head of the deceased which proves; fatal. In conclusion the High Court has held that the appellant exceeded in the exercise of right of private defence available to him under law. The High Court based its basis of the facts proved to its satisfaction from the evidence conclusion on the on the record. It cannot be held that these findings are vitiated by any error of law or misreading of evidence resulting in any miscarriage of justice.
21. This is, therefore, not a fit case for our interference. Accordingly this appeal has no force and is dismissed.