' RAJA MUHAMMAD KHURSHID, J.--- The respondents namely Muhammad Riaz and Muhammad Nawaz were acquitted on a charge under section 302/34, P.P.C. By Mr. Manzoor Ahmad Kamboh, the then learned Additional Sessions Judge, Jhang vide his judgment dated 19-11-1984. The brief facts are that the respondents alongwith one Maula Bakhsh were sent up for trial for the murder of Ghulam Muhammad on 24-12-1983 at about Peshiwela' in the area of village Kohrianwala Chak No,7, Police Station 18-Hazari, District Jhang. The formal F.I.R. (Exh.PB/1) was recorded by Mukhtar Hussain Moharrar/Head constable (P.W.2) on the basis of the complaint (Exh.PB) got recorded by Allah Ditta son of Ahmad Bakhsh (P.W.7). It was stated in the complaint that the complainant Allah Ditta was a cultivator in village Kohrianwala Chak No,7. The deceased Ghulam Muhammad was his sister's husband. He was constructing a 'Kotha' in the village for which Mistari Allah Ditta (P.W.8) and Khan Muhammad (P.W.9) were engaged as mason and laborer respectively. At about 'Peshiwela' a trough (Pernala) was being affixed in the 'Kotha' but Maula Bakhsh; an uncle of the respondents came there and objected to its affixing towards their house. It led to an exchange of hot words resulting into a quarrel. On hearing noise, the deceased Ghulam Muhammad came at the spot. In the meanwhile, Muhammad Riaz and Muhammad Nawaz respondents, carpenters by profession, came to the spot while raising lalkaras and holding Pawas' (cot's legs) in their hands. Muhammad Riaz gave a 'Pawa' blow on the left side of head of the deceased, whereupon, Muhammad Nawaz gave another Pawa' blow near the left eye of the deceased. The latter fell down unconscious. The commotion attracted Faiz Muhammad son of Allah Ditta and Muhammad Yar son of Salehoon to the place of occurrence who also witnessed the same and separated the parties. The accused thereafter ran towards their house. The deceased was being shifted to hospital for treatment but on way, he died. The bone of contention was affixing of trough (Pernala) by Ghulam Muhammad deceased in his Kotha' which was objected to by the respondents/acquitted accused.
2. On the conclusion of trial, the learned trial Judge acquitted all the three accused. The State has conic up in appeal against acquittal of Muhammad Riaz and Muhammad Nawaz who are also real brothers. However, no grievance was felt against the acquittal of third accused namely Maula Bakhsh nor the same was challenged in this appeal.
3. It is contended by the learned A.A.-G. That the judgment of the learned trial Judge was against the facts and law; that the prosecution case stood proved beyond any reasonable doubt in view of evidence given by the eye-witnesses; that the learned trial Judge erred in law by disbelieving ocular account of occurrence given by the eye-witnesses who were not only natural but were also independent ones; that the medical evidence showed fracture of skull which linked both the assailants with the murder of the deceased; that the respondents absconded after the commission of offence on 24-12-1983 and were arrested on 31-12-1983; that they were medically examined and their medico legal reports Exh.P.J. And Exh.P.K. Showed that they had suffered injuries during the occurrence which established their presence and participation at the spot that the part assigned to the respondents by the eye-witnesses showed that they were aggressors although they had taken plea that they acted in the exercise of their right of self-defense in order to save themselves from harm when the deceased allegedly gave them some simple injuries with rough (Pernala). If their plea of right of self-defense is taken into consideration, it would show that they had exceeded their right of private defense and as such, were not entitled to clean acquittal.
4. We have heard the learned counsel for the parties and have also carefully gone through the evidence examined at the trial which has been read out to us during the arguments. We have also taken into consideration the documentary evidence such as post-mortem report, recoveries memos. And the medico legal reports showing injuries on the person of the respondents/accused.
5. First of all, we have to see whether or not the prosecution, has been successful to prove its case.
The statements of the eye-witnesses in this regard are very essential. Allah Ditta (P.W.7) i,e, complainant is brother-in-law of the deceased. At the relevant time, he was present at the spot when Maula Bakhsh and uncle of the respondents came to the spot and objected to the affixation of trough. This led to some sort of quarrel, whereupon, the deceased also came to the spot and from the other side, the respondents/accused who were working on a nearby lathe machine came there as they were manufacturing cot's leg. This resulted into the unfortunate occurrence in which the deceased was done to death. The version is supported by the eye-witnesses though they had differed in some material details with each other. There is no doubt that Mistari Allah Ditta (P.W.8) and Khan Muhammad (P.W.9) are independent persons and their presence was also natural as they were engaged for construction of 'Kotha'. However, they materially differed with each other in respect of crucial facts. According to Allah Ditta complainant (P.W.7) and the Investigating Officer Talib Ali (P.W.10), no blood had fallen on the ground nor any blood-stained earth was collected from there. However, according to Mistari Allah Ditta (P.W.8) and Khar Muhammad (P.W.9), some blood had fallen on the ground where the deceased was injured. Secondly, all the witnesses improved their statements at the trial to say that the right side of the head of the deceased was injured although the first version given by them in their statements under section 161, Cr.P.C. Was that the deceased had received injuries on his left side of head. This was deliberately done in order to meet the medical evidence as according to the post-mortem report (Exh.P.A.), the deceased had suffered abrasion on the right side of forehead (Injury No,1), just above the right eye-brow and another abrasion on the right side of fore-head (Injury No,2). It is, thus, clear that according to medical evidence, both the injuries on head of the deceased were on the right side of fore-head whereas, according to the eye-witnesses those were on the left side of the head. A suggestion was put to the complainant i,e, P.W.7 that the deceased had opened attack and as such was aggressor.
However, it was denied that after the exchange of abuses, the deceased gave injuries with trough (Pernala) on the head of Muhammad Nawaz and Riaz accused who re-acted in the right of private defense and out of them Muhammad Nawaz gave a solitary blow near the eye of the deceased by picking up a piece of wood lying near the place of occurrence in order to save himself and to save his brother from further attack. It is also noteworthy that those injuries were suppressed by the prosecution although the Investigating Officer had prepared the injury statements of both the accused at the time of their arrest and had got them medically examined from the Medical Officer, who was never produced at the trial which shows slackness on the part of the Prosecuting Agency to place all cards at the table.
6. From the evidence of the eye-witnesses, it becomes crystal clear that there was no previous enmity between the two sides who were living in each other's neighborhood. The only cause for the trouble was affixing of trough (Pernala) in the 'Kotha' of the deceased towards the side of house of the respondents. The witnesses also differed with each other regarding the construction of the 'Kotha' of which the trough was to be affixed. According to Allah Ditta complainant (P.W.7), the mason Allah Ditta (P.W.8) and laborer Khan Muhammad (P.W.9) were raising construction of the 'Kotha' of the deceased on the day of occurrence. However, according to Khan Muhammad (P.W.9), the 'Kotha' had already been constructed at some previous occasion and on the day of occurrence, they had gone only to erect the roof and to affix trough (Pernala) there. Nobody from the accused side objected almost whole of the day till 'Peshiwela' while roof was being erected or plastered. The dispute broke out on affixing of trough (Pernala) at the place. It is, thus, obvious that the construction of the Kotha' was completed sometime back but the roof was being erected and plastered when the dispute arose on affixing of trough. The statement of Khan Muhammad (P.W.9) therefore, contradicts the statements of the other two eye-witnesses that on the day of occurrence, the Kotha' was being constructed. It appears that the walls had already been raised and only roof was to be made and plastered on the day of occurrence when the occurrence took place over affixing of trough. According to the witnesses, the door of shop of Muhammad Nawaz accused is on the back-side of house of Ghulam Muhammad deceased. The residential house of both he respondents/accused was on back of their shop and there was no lane in between the house of Ghulam Muhammad deceased and house of the accused. It becomes clear from the statements of the witnesses that there was no between the parties prior to the occurrence except dispute over affixing of trough. This plea was also raised by the accused from the very beginning before the Investigating Officer when they were arrested.
7. From the above, it follows that though the parties were living in the past peacefully as neighbored but all of a sudden, first some hot words were exchanged followed by a quarrel and then by the killing. It seems to be an abrupt, provoked and unpremeditated occurrence taking place in the heat of passion from both the sides. The suppression of injuries on the person of the accused/respondents by the eye-witnesses, the contradiction between the ocular account of occurrence and the medical evidence regarding the locale of injuries on the head of the deceased, the recoveries of weapons of offence i,e, 'Pawas' without being blood stained and non-recovery of blood from the place of occurrence although according to Allah Ditta (P.W.8) and Khan Muhammad (P.W.9), the blood had fallen on the place of occurrence but the same had not been taken into possession, will clearly show that the prosecution case was not tree from genuine doubt in respect of the manner in which the occurrence had taken place. On the contrary, the suggestion to the P. Ws. From the very beginning and also the first version of the accused after their arrest and later on recorded in their statements under section 342, Cr.P.C. Would clearly indicate that the plea of right of self-defense carried reasonable and logical force in the given situation. In this respect, it may be pointed out that two things are very essential to prove the right of private defense Firstly, it was other party who initiated fight and secondly the party taking plea of self-defense also suffered injuries at the hands of the other party first and then resorted to take measures to defend himself against the aggressors. The burden to prove the plea of self- defense is not very heavy on the accused and they have simply to show from the evidence or the circumstances that there is a reasonable possibility of the existence of right of self-defense. When a right of private defense was set up, the essence of case should be to ascertain as to who the aggressor was and whether the accused used more force than was necessary. The nature of defense plea is to be ascertained not only from the statements of the accused but from the trend of cross-examination and from arguments of the defense counsel at the conclusion of trial. The Court must place the version of prosecution and the defense in juxta-position and see which one is more plausible of the evidence before it. Accused's plea of self-defense corroborated by medical evidence and motive should be given proper credibility while C deciding the fate of the case.
8. After discussing the plea of right of private defense in the preceding paragraph, we have to see whether the same is available to the accused/ respondents in the present case. We have already pointed out above that it was the persistent plea of the accused before the trial Court as well as before the police that they were victims of aggressions and acted in self-defense. This is also clear from the suggestions put to the complainant (P.W.7) during the cross-examination which though denied but have to be analyzed in the light of other attending circumstances of the case. This is in evidence that the deceased and the complainant were 'Zamindar' in the village, whereas, both the respondents accused were the carpenters who are considered as menials (moeen) of the village.
In this regard, the statements of both the respondents/accused under section 342, Cr.P.C. Appear to be very relevant. Muhammad Riaz stated in answer to Question No,11 in the following terms:--- "I am innocent. Our house is on the back-side of Ghulam Muhammad deceased. Ghulam Muhammad deceased wanted to fix a Parnala on the back-side of his house into our court-yard.
We were sitting near the place of occurrence. We requested the deceased not to fix Parnala there as the rain water would damage our wood lying nearby and cause inconvenient to us. Ghulam Muhammad deceased abused us that being a Kamee, how did we dare to ask him not to fix Parnala there. There was exchange of hot words and abuses between us. Ghulam Muhammad deceased attacked and injured me with the said Parnala. I got aside and he attacked my brother Muhammad Nawaz and injured him on his head. Again he wanted to give him second blow, but in order to save his life, he gave a solitary blow which landed on his left eye. I have been falsely involved in this case."
' The same plea is taken by Muhammad Nawaz respondent/accused. Keeping in view the social set up in our rural areas, the Zamindars' are considered as masters, whereas, menials like carpenters, shoe-makers, etc. Are considered as 'Kammis'. It is customary that a 'Kammi' is not supposed to offer any affront to his master in any manner. In the instant case, the master i,e, the deceased 'Zamindar' wanted to affix trough towards his back on his 'Kotha' which was the courtyard of house of the respondents. It is not only likely but appears to be very logical that the respondents/accused being menials would have gone to the Zamindar' to lodge a request that the trough may not be affixed towards the court-yard of their shop and house as it would spoil their wood, etc.. It is also equally probable that the 'Zamidar' deceased must have got offended as to why they had come to him to restrain him to affix the trough. There is a strong possibility that this incident must have led to some sort of quarrel proceeded by exchange of hot words or abuses as has come in evidence. It is also highly reasonable and probable that in the said background, the deceased ' Zamindar' had opened attack and in his defense got injured himself at the hands of the respondents/accused.
There is a strong and reasonable probability that the respondents/accused while acting in self- defense would have acted to save themselves but unfortunately the deceased lost his life although the injuries were given to him with ordinary Pawa' without any preparation or premeditation in a sudden heat of passion by the respondents/accused. The reactionary blow during self-defense cannot be measured in golden scales. An unintended blow may cause extensive damage even though it might have not been premeditated or intended. In the instant case, the Medical Officer had not mentioned in the post-mortem report (Exh.P.A.) that injuries Nos.2 and 3 were sufficient to cause death in the ordinary course of nature individually as well as collectively. It, therefore, follows that even according to the assessm ent of the Medical Officer, those injuries were not sufficient to cause death in the ordinary course of nature and, therefore, cannot be evaluated in the golden scales so as to hold that the respondents/accused had acted in excess of their right of private defense.
9. The respondents/accused were rightly acquitted and, as such, the appeal being meritless is dismissed.