' Briefly stated the facts are that Mst. Lalan, Phuphi of Muhammad Ali complainant (P.W.5) owned land measuring 35 Kanals. In ' 1969 Mahmood Ali son of Dost Muhammad accused got that land mutated in his own favour by producing some fake lady. Wali Muhammad, father of Muhammad Ali/complainant, and Atta Muhammad, uncle of Muhammad Ali, filed a civil suit against said fake mutation. A stay order was issued in favour of his uncle Atta Muhammad. Mahmood Ali had also interpolated the Khasra Girdawari. His father Wali Muhammad also moved an application with the Additional Commissioner for its correction, which was decided in favour of his father. On account of this litigation, relations between the parties had been strained and as such both the parties had been proceeded under sections 107/150, Cr.P.C. Both the parties were on bail by the trial Court in connection with said proceedings. In September, 1987, a mutation in respect of Killas Nos.6 to 9 of Square No,561/10 was entered in the name of Wali Muhammad. On 9-6-1988 at 5-00 p.m., Wali Muhammad was digging watercourse, whereas his mother Mst. Noor Sain, Mst. Faiz Ilahi wife of Atta Muhammad and Mst. Hamad Ilahi daughter of Atta Muhammad were also present in the said land.
Suddenly Liaqat Ali son of Muhammad Amin armed with a Dang, Mahmood Ali son of Dost Muhammad armed with Gaddala, Mahram Ali son of Abdul Rahman with a hatchet and Gohar Ali son of Abdul Rahman with a Dang appeared and they started causing injuries to his father Wali Muhammad and other aforementioned ladies, which fell on different parts of their bodies. On the cries of his father as well as ladies, Zahid Ali son of Ghulam Hussain, Rustam Ali son of Atta Muhammad and Allah Ditta son of Sher Muhammad were attracted, who also witnessed the occurrence. Seeing them coming, the accused made good their escape from the place of occurrence. The complainant then put his father and ladies in the tractor trolly and brought them Doonga Boonga Hospital. However, his father succumbed to the injuries as soon as reached hospital. Leaving the dead body of his father under the supervision of Noor Muhammad son of Baqir Ali, he made for police station to lodge report.
2. Ashiq Ali, S.-I. (P.W.11) was posted on 10-6-1988 as S.-I. At Police Station Doonga Boonga. On the statement of Muhammad Ali, he recorded F.I.R. Exh.P.H. And thereafter, made for hospital. He prepared statement of injuries of deceased Wali Muhammad (Exh.P.B.) and inquest report Exh.P.B./1.
He also prepared statement of injuries of Mst. Noor Sain, Mst. Faiz Ilahi and Mst. Hamad Ilahi, Exhs.P.D./1, P.E./1 and P.C./1 respectively. He handed over the dead body to Muhammad Amin, Constable for post-mortem examination and proceeded to the place of occurrence. He secured blood-stained earth from there and made a sealed parcel of same vide memo. Exh.P.I. On the same day, Muhammad Amin, Constable produced before him the last-worn clothes P.1 to 3 of the deceased, which he secured vide memo. Exh.P.G. On 12-6-1988, he recorded the statements of injured in the hospital. On the same day, he arrested accused Liaqat Ali, Mahmood Ali, Gohar Ali and Mahram Ali. D.S.P. Visited the place of occurrence on the same day and so also Nasir Khan, A.S.P. And they verified the investigation conducted by him. On 22-6-1988, accused Mahram Ali led to the recovery of blood-stained hatchet P.4 from his house which was secured vide memo. Exh.P.J.
And Exh.P.J./1 is the site plan of the place of recovery. On the same day, Gohar Ali led to the recovery of stick P.5 from his house which was secured vide memo. Exh.P.K. And Exh.P.K.1 is the site plan of the place of recovery. As a result of his investigation, Gohar Ali and Mahram Ali were found guilty, whereas Mahmood Ali and Liaqat Ali were found innocent. The Investigating Officer also got prepared the site plans Exhs.P.F. And P.F./1 from the Patwari which also bear his notes in red ink. He handed over all the parcels to Moharrar for keeping the same in Malkhana. He then completed the investigation. After completing other formalities the case was sent for trial in Court.
3. A charge under sections 302/307/34, P.P.C. Was framed against the accused Mahram Ali, Gohar Ali, Liaqat Ali and Mahmood Ali, to which they pleaded not guilty and claimed trial.
4. To bring home guilt to the accused, prosecution examined Dr. Tahir Hassan (P.W.1), who on 10-6- 1988 conducted post-mortem examination of Wali Muhammad and found the following injuries on his person:--
(1) An incised wound 3-1/2 x 1-1/2 c.m. On the centre of the scalp 3 c.m. Posterior to the forehead oblique in direction. Margins of the wound were sharp.
(2) Swelling 2 c.m. x 1 c.m. Above the left ear on the scalp.
(3) Abrasion 2 c.m. x 1 c.m. With swelling around it on left side of the chest above the left scapula on posterior side of the chest.
(4) Ecchymosis 4 x 1 c.m. On lateral side of centre of left thigh oblique in direction.
' In his opinion, the cause of death was haemorrhage in the skull and shock which was the result of injury No,1 and which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Injury No,1 was of sharp-edged weapon, heavy in nature while injuries Nos.2 to 4 were of blunt weapon. He issued post-mortem examination Exh.P.A. And its diagrams Exhs.P.A./1 and P.A./2. He also signed statement of injuries (Exh.P.B.) and inquest report Exh.P.B./1 of the deceased on the same day, he also examined Mst. Hamad Ilahi and found the following injuries on her person:--
(1) An acchymosis 4 c.m. x 3 c.m. On the lateral side of left lower limb oblique in direction.
(2) An acchymosis 3 x 2 c.m. On the posterior side of left thigh oblique in nature.
' He issued medico-legal report Exh.P.C. And its diagrams Exhs.P.C./1 and P.C./2. On the same day, he also examined Mst. Noor Sain and found the following injuries on her person:--
(1) An abrasion 2 x 1 c.m. With swelling around it on the centre of scalp 5 c.m. Above the forehead.
(2) Acchymosis 4 c.m. x 2 c.m. On the lateral side of left knee joint with swelling around it.
(3) An acchymosis 5 c.m. x 2 c.m. On the lateral side of the left thigh.
(4) Mild swelling on the right ankle joint.
(5) An acchymosis 2 x 1 c.m. On the centre of left upper arm oblique in direction.
' He issued medico legal report Exh.P.D. And its diagram Exh.P.D./1 and statement of injuries Exh.P.D./2. He also examined Mst. Faiz Ilahi and found the following injuries on her person:--
(1) An incised wound 3 x 1/2 c.m. x skin deep on the center of scalp 4 c.m. Posterior to the forehead.
Margins were regular and oblique in direction.
(2) An acchymosis 4 c.m. x 2 c.m. On the lateral side of center of right lower limb oblique in direction. Swelling was present.
(3) An acchymosis 4 c.m. x 2 c.m. On the lateral side of center of right of lower limb oblique in direction and swelling was present.
(4) A complaint of pain on the right wrist joint. On examination, tenderness was found present.
(5) A mild swelling on the index finger of left hand.
(6) Complaint of pain on backside of chest. On examination nothing was found.
' He issued medico-legal report Exh.P.E. And diagram in respect of injuries Exh.P.E./1 and also signed her statement of injuries Exh.P.E./2. Mukhtar Ahmad, Patwari (P.W.2) visited the place of occurrence on 27-6-1988 and prepared site plans Exhs.P.F. And P.F./1 as per instructions of police and pointation of the witnesses. He handed over the same to the Investigating Officer and this bears his signatures. Riaz Hussain Constable (P.W.3) was given two parcels by Muhammad Sarwar, A.S.- I./Moharrer for onward transmission to the office of Chemical Examiner, which he delivered intact.
' Muhammad Amin (P.W.4) accompanied Ashiq Muhammad, S.-I. To hospital, Doonga Boonga on 10-6-1988, when he was handed over the dead body of Wali Muhammad for post-mortem examination. After the postmortem examination, he was given the last-worn clothes P.1 to P.3 of the deceased, which he delivered to the Investigating Officer who secured the same vide memo.
Exh.P.G., which bears his signature. Muhammad Ali (P.W.5) is the complainant and has corroborated his version appearing in F.I.R. Exh.P.H. Mst. Noor Sain, Mst. Faiz Ilahi P.Ws.6 and 7 are the injured witnesses, who have corroborated the prosecution version, which has come on record through the statement of P.W.5 Muhammad Ali complainant. Rustam Ali (P.W.8) identified the dead body of Wali Muhammad at the time of his post-mortem examination. Noor Muhammad (P.W.9) is the witness of recovery of blood-stained earth which was secured through memo. Exh.P.I. From the place where Wali Muhammad deceased was injured. He is also witness of recovery of blood- stained hatchet P.4 which was produced by Mahram Ali accused and was taken into possession vide memo. Exh.P.J. He is also witness of recovery of Dang P.1 which was produced by accused Gohar Ali from his house and was secured vide memo. Exh.P.K. Both these memos. Bear his thumb- impression. Muhammad Sarwar A.S.-I. (P.W.10) was given a sealed parcel containing blood-stained earth by Muhammad Ashiq, S.-I. On 10-6-1988 for keeping the same in Malkhana. On 22-6-1988, he was given another parcel containing blood-stained hatchet by Muhammad Ashiq, S.-I. For the same purpose. He handed over both these parcels to Riaz Hussain, Constable for onward transmission to the office of Chemical Examiner. Ashiq Muhammad, S.-I. (P.W.11) is the Investigating Officer whose evidence has already been discussed above. Asghar Ali Shah, S.-I. (P.W.12) recorded the statement of Riaz Hussain, Constable on 3-7-1988 and also prepared report under section 173, Cr.P.C. Thereafter, learned Public Prosecutor produced the report of Chemical Examiner Exh.P.L. And that of Serologist Exh.P.N. And after giving up other P.Ws. Closed the prosecution case vide his statement, dated 16-2-1989.
5. When examined under section 342, Cr.P.C., accused Mahram Ali denied the prosecution version and in reply to question No,4 as to why this case had been registered against him stated as follows:-- ' "The land in dispute was being cultivated by my co-accused Gohar Ali as a tenant. My sister Mst.
Sahib Nishan and my first cousin Mst. Darryan were living in a Jhuggi in Killa No,7. On the day of occurrence at about 4-00 p.m., I and Gohar Ali were grazing our cattle in the field, when all of a sudden, Wali Muhammad (deceased and the injured ladies attacked Mst. Darryan and Mst. Sahib Nishan arid Wali Muhammad wanted to demolish the Jhuggi in order to dispossess us from that land. On the noise I and Gohar Ali reached the spot. I picked up a hatchet lying near the Jhuggi and in order to rescue Mst. Darryan and Mst. Sahib Nishan and caused injuries to Wali Muhammad and injured ladies in order to save the person of Mst. Darryan and Mst. Sahib Nishan and to save our possession over the land. We had no premeditation for this occurrence."
' The accused Gohar Ali denied the prosecution version and relied upon the statement of Mahram Ali, his brother. He further stated that he was tenant over the disputed land and had been in possession at the time of occurrence. He further stated that he had acted in self-defence of the person and property and had no intention to commit the murder. The accused Liaqat Ali stated that he has been helping Mahmood Ali against Wali Muhammad and on that score had been implicated in this case falsely. The accused Mahmood Ali when examined under section 342, Cr.P.C.
Denied the prosecution version and in reply to question No,3 as to why he had been involved in this case replied as follows:-- ' "Killas Nos.6, 7, 8 and 9 had been gifted to me by my maternal-grandmother Mst. Lalan. I was in possession of this land through tenant. In 1987, Wali Muhammad started litigation regarding this land. I made application for correction of Khasra Girdawari and the Collector decided in my favour and the entries were corrected in my favour. Wali Muhammad filed appeal before the Additional Commissioner which was accepted and I filed revision before the Board of Revenue which is still pending and the order of status quo had been issued by the B.O.R. Gohar Ali accused was cultivating this land as my tenant. My mother Mst. Darryan and her sister Mst. Sahib Nishan were living in a Jhuggi in Killa No,7 of the disputed land. Wali Muhammad wanted to forcibly recover the possession in order to defeat the order of status quo. I was not present at the spot on the day of occurrence and in fact the occurrence took place as stated by my co-accused Mahram Ali and Gohar Ali. I have been falsely involved due to dispute with Wali Muhammad."
' He further produced copy of application Exh.D.C., reports Exhs.D.C./1, D.C./2 and D.C./3, copy of order of Board of Revenue Exh.D.D. And copies of Khasra Girdawari Exhs.D.E. And D.F. None of the accused produced any other evidence in their defence.
6. After going through the evidence produced by the parties, the trial Court, while acquitting Liaqat Ali and Mahmood Ali, convicted Mahram Ali and Gohar Ali under section 304, Part I, P.P.C. And sentenced each of them to R.I. For seven years and a fine of Rs,5,000 each or in default thereof to undergo further R.I. For one year each, vide judgment, dated 22-2-1989. Half of the fine, if recovered, was ordered to be paid to heirs of Wali Muhammad deceased. The learned trial Judge, however, acquitted all the accused under sections 307/34, P.P.C. The convicts-accused were, however, extended benefit of sectior. 382-B, Cr.P.C.
7. The accused Mahram Ali and Gohar Ali have felt aggrieved of the judgment and filed the instant appeal. Alongwith this appeal, Criminal Appeal No,131 of 1989 has also been filed by the State against the acquittal of the accused under sections 307/34, P.P.C. As both the instant appeal as well as Criminal Appeal No,131 of 1989 arise out of the same judgment, so these are being disposed of by the single judgment.
8. Arguments have been heard and record perused.
9. Since the occurrence stands admitted, as is evident from the statement of accused Mahram Ali and Mahmood Ali recorded under section 342, Cr.P.C., so the only point which requires determination is if the accused aforementioned had caused injuries to the deceased as well as injured ladies in the exercise of their right of self-defence of person and property. The stand of the learned counsel for accused/appellant is that the said injuries to the deceased as well as to the injured ladies had been caused in the exercise of their right of self-defence and property. His contention is that at the relevant time, the accused were in possession of the disputed land and they were attacked by the complainant party and in order to save their life and property they inflicted injuries on the person of Wali Muhammad deceased and injured ladies. However, the accused had no intention to cause death of Wali Muhammad, the deceased. -
10. Conversely, the stand of learned counsel for the complainant assisted by the learned State Counsel is that at the relevant time, the accused had opened attack upon the complainant party who were present at the place of occurrence and the deceased Wali Muhammad alongwith the injured ladies was digging the watercourse (Khal). He further argued that as dispute over the land had been going on between the parties, so it was in that context that the accused had tried to dispossess the complainant party and had opened attack upon them. He further argued that complainant party was unarmed at the relevant time, as such, the question of causing injuries to them in the exercise of right of self-defence does not arise. He further argued that in the light of these facts, the finding of the trial Court holding that accused had caused injuries in the right of self-defence of person as well as property is not sustainable. He further argued that all the injured ladies have received injuries on their person which fact stands corroborated from the medico- legal reports Exhs.P.C., P.D. And P.E. And similarly injuries on the person of deceased stand corroborated from the post-mortem report Exh.P.A. He, thus, submitted that as Wali Muhammad deceased was done to death as a result of injuries caused by Mahram Ali accused/appellant, so he was liable to punishment under section 302, P.P.C. And not under section 304, Part I, P.P.C. He further argued that injuries on the person of Mst. Noor Sain and Mst. Faiz Ilahi as well as Mst. Hamad Ilahi also stand corroborated from the medical evidence discussed above, so the accused are also responsible for committing offence under section 307/34, P.P.C. And their acquittal on that score is not sustainable in the eye of law. It was further argued by the learned State Counsel that injuries on the person of deceased as well as ladies clearly prove that all the accused had participated in this occurrence and they were liable for the part assigned to each of them. It was, thus, submitted that the sentence awarded to the appellant be enhanced and the acquitted accused be also convicted accordingly.
11. The only point which requires adjudication in the instant case is if all the accused were present at the relevant time and secondly if the accused/appellants had caused injuries with the intention to cause death of Wali Muhammad deceased. According to the prosecution version, besides the appellant, acquitted accused were also present on the spot and they had also participated in the commission of this offence. The accused Liaqat Ali has been assigned role of causing a stick blow on the head of Wali Muhammad deceased, whereas Mahmood Ali accused has been assigned a part of causing a Ghadala blow on the knee of Wali Muhammad as well as to Mst. Noor Sain. The injury atributed to Liaqat Ali on the head of Wali Muhammad is not borne out from the record, as no such injury has been found on the head of the deceased. The injury attributed to Mahmood Ali on the person of Mst. Noor Sain is also not borne out from record, as no specific place of said injury has been mentioned in the F.I.R. Exh.P.H. However, a mild swelling on the right ankle joint of Mst. Noor Sain has been found as per M.L.R. Exh.P.D. It is, thus, clear that prosecution has failed to establish its case, so far as accused Liaqat Ali and Mahmood Ali are concerned and they have rightly been extended benefit of doubt and acquitted.
12. So far as Mahram Ali and Gohar Ali are concerned, the part attributed to Mahram Ali is of causing hatchet blow on the head of Wali Muhammad deceased as well as on the head of Mst.
Faiz Ilahi. The part attributed to Gohar Ali accused/appellant is of causing a stick blow on the back of deceased as well as on the persons of Mst. Noor Sain and Mst. Hamad Ilahi. Both these accused have taken a specific plea of self-defence regarding causing of said injuries on the person of Wali Muhammad deceased as well as on person of Mst. Faiz Ilahi, Mst. Noor Ilahi and Mst. Hamad Ilahi.
The accused Mahram Ali and Gohar Ali admittedly caused injuries upon the aforementioned persons purporting in the exercise of right of self-defence of life and property. This stand of accused/appellant is not borne out from record, as there is nothing to show if at the relevant time, Wali Muhammad (since deceased), Mst. Faiz Ilahi, Mst. Noor Sain and Mst: Hamad Ilahi were armed with any lethal weapon which caused apprehension to Mahram Ali and Gohar Ali to cause injuries in the right of their self-defence and property. It is in the light of these facts that the trial Court has come to the conclusion that the said accused/appellant had exceeded their right, of self-defence.
The findings of the trial Court are unexceptionable, and learned counsel for accusedlappellants has failed to dislodge the said findings by referring to any evidence on the record. Since the parties had been litigating over land and the occurrence has also taken place over the suit land, so the trial Court has rightly held that accused/appellants had caused injuries by exceeding right of their self-defence. The presence of Liaqat Ali and Mahmood Ali is not proved from record and both of them have rightly been extended the benefit of doubt. The mere fact that Mst. Faiz Ilahi, Mst. Noor Sain and Mst. Hamad Ilahi are injured and out of them Mst. Noor Sain and Mst. Faiz Ilahi have been examined as P.W.6 and P.W.7 does not mean that whatever they have deposed, that is nothing but the gospel truth. The mere presence of injuries on the said P.Ws.6 and 7 prove their presence on the spot but it does not prove that whatever they have deposed, that is nothing but truth. It is in this context that trial Court had admitted their presence on the spot but has not believed their version to the extent of role attributed by them to the accused/appellants as well as Mahmood Ali (since acquitted).
13. The upshot of the above discussion is that accused Liaqat Ali and Mahmood Ali have been rightly extended benefit of doubt, whereas accused/appellants Mahram Ali and Gohar Ali have been convicted and sentenced under section 304, Part I, P.P.C. Correctly. There is no force in both these appeals and the same are hereby dismissed.
14. Since the accused/appellants Gohar Ali and Mahram Ali are on bail, so they shall be taken into custody in accordance with law to serve out the remaining sentence.