MUSHTAQ HUSAIN MUNIR, J.-Nawaza (33), Abbas (31) sons of Sardar Muhammad, Khaira (35) and his cousin Qadir Bakhsh alias Qadra (33) residents of Chak No. 183/P, were tried by the learned Sessions Judge, Rahimyarkhan, under section 302 read with sections 34; 307 read with section 34 and 323 read with sec-- tion 34 of the Pakistan Penal Code on the allegations, that in furtherance of their common intention, on 7th August 1968, in the area of Chak No. 183/P, at about sunset time, they intention-- ally caused the death of Dadla; grievous hurt to Ahmad P. W. With such intention and knowledge and in such circumstance that if he thereby died, they would have been guilty of murder and simple hurt to Mitha P. W. Nawaza and Abbas were found guilty under section 302 read with section 34, P. P. C. And sentenced to transportation for life each. They were also convicted under section 323/34, P. P. C. And sentenced to suffer rigorous imprisonment for two months. Both the sentences were directed to run concurrently. They were acquitted of the charge under section 307 read with section 34, P. P. C. Their co-accused Khaira and Qadra were acquitted. The convicts have come up in appeal.
2. The prosecution story in brief is, that half a square of land belonging to Dadla deceased adjoined the land of the accused, who put pressure on him to sell the same to them. He did not agree. The accused threatened him with dire con--sequences. The accused were also in the habit of diverting his water to their fields and letting loose their cattle in his land to damage his crop. Qadra accused suspected Mitha P. W. Of having illicit connections with his wife. On account of the aforesaid grudge, the accused lay ambush in a sugarcane field of the appellants on the day of occurrence and when, at about sunset time, Dadla deceased was returning from his land in the company of his son Ahmad (P. W. 10) and his nephew Mitha (P. W. 11) and passed by the side of the aforesaid sugarcane field, the accused and their companions armed with iron-shod sticks, came out and way laid them on the path adjoining the fields. The appellants opened the attack and gave stick blows to Mitha, whereafter they inflicted injuries on the person of Dadla deceased, the latter received an injury on the head, fell down, and became unconscious. Qadra and Khaira accused gave stick blows to Ahmad P. W. On the alarm raised by them, Lal (P. W. 12) and Shamir, who has been given up, followed by Muhammad Iqbal (P. W. 9) arrived at the spot. Threatening them with dire con-- sequences if they interfered; the accused made good their escape, carrying their sticks with them:
3. Being unconscious Dadla deceased was carried on a cot to his house, where some indigenous treatment was given to him. He did not regain Iris consciousness. In the morning, he was carried on a cot to Civil Hospital, Sadiqabad, where he was admitted as an indoor patient. Ahmad and Mitha also accompanied him.
4. Doctor Sheikh Ahmad Bakhsh (P. W. 1) examined Dadla deceased, when he was still alive, on 8th August 1966, at 7 a.m. And found the following injuries on his person: -
(1) A lacerated wound (semi-circular) 1--" x --" scalp deep on the left side, parietal region, front part. Left eye was black.
(2) An abrasion, 1-- x 1" on the right side chest in front below the clavicle.
(3) An abrasion, 1-- x 1", on the outer side middle left upper a- All.
Injury No. I was kept under observation and the rest were declared simple. All the injuries were caused with blunt weapon. Exh. P. R. Is the medico-legal report.
5. On the same day, he examined, Ahmad alias Ahmad P. W. And found the following injuries on his person: -
(1) A triangular lacerated wound with one side 1--", second side 1", third t", into 3/4" bone deep on the right side of the forehead.
(2) A small abrasion, 1--" above injury No. 1.
(3) A contused wound, 1/4" x 1/8" skin deep on the left side of forehead.
(4) A lacerated wound, 21" x 1/3" bone deep on the left parietal region.
(5) A contusion, 10" x 1--" on the right shoulder.
(6) A contusion 4 --" x 1 -- on the right scapular region.
(7) A contusion, 2" x 1 --" on the left scapular region.
(8) A contusion, -- x -- on outer side of right scapular region.
(9) An abrasion, 1 --" x 1/10" in the middle of the right side of back.
(10) An abrasion, 1 --" x --", on the back of middle part of the left forearm.
Injuries Nos. 1 and 8 were kept under observation and the rest were simple. All the injuries were caused with blunt weapon. Subsequently injury No. 4 was also declared simple. Injury No. 1 which had caused depressed fracture of the bone was declared grievous. Exh. P. S. Is the carbon copy of the medico-legal report.
6. On the same day, the same doctor, examined Mitha P. W. And noticed following injuries on his person: -
(1) A contusion, 3/4" x 3/4" on the upper part of nose.
(2) An abrasion, -- round on the lower part front nose.
(3) An abrasion, 1/4" x 1/6" in front lower part of left leg.
Injury No. 1 was kept under observation. The rest were simple. All the injuries had been caused with blunt weapon. Subsequently injury No. 1 was also declared simple. Exh. P. T. Is carbon copy of medico-legal report.
7. Leaving injured persons in the hospital, Muhammad Iqbal (P. W. 9), brother of the deceased, went to Police Station Sadiq- abad, where he lodged report Exh. P. A. At 9 a.m. On 8th August 1966, which was recorded by Sub-Inspector, Sardar Nabi Bakhsh (P. W. 13). After recording the report, the Sub- Inspector proceeded to the hospital and on reaching there was informed of the arrival of Dadla, Ahmad and Mitha vide Ruqqa Exh. P. M. And of the arrival of Abbas appellant vide Ruqqa Exh. P. N.
8. Abbas appellant reached Sadiqabad Hospital on the day; of occurrence and was examined by Doctor Sheikh Ahmad Bakhsh (P. W. 1) on the same day, at 11-45 p. m. Following injuries were found on his person -
(1) A lacerated wound, --" x 1/6", scalp deep on the right parietal region.
(2) A lacerated wound, --" x --", scalp deep on the right parietal region, outside injury No: 1.
(3) A lacerated wound, -- " x 1/6", skin deep on the left occipital region.
(4) An incised wound 1--" x 1/4", bone deep on the right side forehead outer side, right eyebrow.
(5) An abrasion, --" x 1/6", on the back 1st interphalangeal joint left hand middle finger.
(6) An abrasion, --" x 1/6" on the inner side of lower part of left leg.
Injury No. 4, which had been caused by a sharp-cutting weapon, was kept under observation and the rest of the injuries, which had been caused with blunt weapon, were declared simple. Sub- sequently No. 4 was also found to be simple in nature. Exh. P. U. Is a carbon copy of the medico- legal report.
9. On arrival at the hospital S. Sardar Nabi Bakhsh (P. W. 13) found Dadla unconsvious. He, however, recorded statements of Ahmad and Mitha P. Ws. And collected the medico-legal report of all the injured persons. He then left for the spot. From the kacha path running between the fields, he collected blood-stained earth and after sealing it, took it into possession vide memo. Exh. P. D. He recorded statements of the - witnesses, who were present there. He arrested Khaira, Qadra (Ghulam Qadir acquitted accused) and Nawaza appellant, at about 6-30 p.m. On 9th August 1966, from Sadiqabad Town. At the time of hi, arrest, Nawaza accused was wearing blood-stained shirt Exh. P 1 article blood-stained chadar Exh. P.
2. These were got removed from his person, sealed in a parcel and taken into possession vide memo, Exh. P. E. The police officer then returned to the hospital and arrested Abbas appellant.
10. On 10th August 1966, Nawaza led the police officer to ha, residential house and there from got recovered, blood-stained iron-shod stick Exh. P.
3. It was sealed into a parcel and taken into possession vide memo. Exh. P. F. On the same day, Abbas accused got recovered, blood-stained iron-shod stick Exh. P. 4 from earthen-bin lying in the compound of his house. It was sealed ' a and taken into possession vide Exh. P. G. Khaira led to the recovery of iron-shod stick Exh. P. 5 from his residential hut, which was taken into possession vide memo. Exh. P. H. Qadra led to the recovery of iron-shod stick Exh. P. 6 from his hut, which was lying behind an earthen-bin It was taken -into possession vide memo. Exh. P. J.
11. Dadla deceased died at 7-32 a.m. On 10th August 1966 in Civil' Hospital, Sadiqabad. The police officer was informed of it vide Ruqqa Exh. P. O: The latter went to the Hospital and prepared inquest report Exh. P. K. And made over the dead body to Foot Constable Muhammad Aslam (P. W. 2) to take it to the mortuary for post-mortem examination.
12. Doctor Sheikh Ahmad Bakhsh (P. W. 1) performed post-mortem examination on the dead body of Dadla deceased on 10th August 1966, at I1 a.m. Externally the same injuries were noted by him on the dead body, which had been seen by him on 8th August 1966. On internal examination, he found sub--cutaneous tissues under injury No. 1 on the scalp congested. Blood clot was present over the bone around the injury. Front o--parietal suture were separated on both sides. There was a fracture measuring 4" on the left side of frontal bone going up to the right eyebrow. A fracture measuring 3" starting from the left side eyebrow, going to the temporal region. Blood clot, 8" x 2" x -- " thick on the temporal-parietal region both sides, more on the right. On the membrance. Blood clot, 6" x 3" on the right side of the brain and a thin layer on the left side. Right side of the heart was full of blood. Left side contained a little blood.
Death was due to compression of the brain, as a result of injury No. 1, which caused fracture of the skull bones. Injury was sufficient to cause death in the ordinary course of nature. Probable time between the injury and death was 2 to 3 days and the time between the death and post-mortem was 31 hours. Exh. P. L. Is the carbon copy of the post-mortem report.
13. Blood-stained earth recovered from the spot, blood--stained, clothes viz. Shirt Exh. P. 1 and chadar Exh. P. 2 removed from the person of Nawaza appellant, blood-stained stick Exh. P. 3, recovered from him, and blood-stained stick Exh. P. 4 recovered from Abbas accused were sent to the Chemical Examiner through Foot Constable Muhammad Ibrahim (P. W. 4). His report Exh. P. BB reveals that these were stained with blood. The report of the Serologist Exh. P. CC is to the effect, that all the afore--mentioned articles, were stained with human blood.
14. Nawaza appellant, while denying tire proscrtition allega--tion, stated at the trial, that he had been implicated in this case falsely on account of his brother Abbas, Abbas accused, while pleading innocence stated as follows in the Court of the commit--ting Magistrate:- "I was digging khala in my land, the cows of Ahmadoo and Mitha fell into my sugarcane field. I rounded them and started towards the cattle-pound when Mitha and Ahmadoo P. Ws. Came there and tried to snatch away the cattle. Dadha and Iqbal also reached there. Dadla was having a hatchet with him. I used my dang in my defence. The P. Ws. Injured me with sofas."
At the trial he stated "At digerwela, on the day of occurrence, I was digging watercourse in my land, lying in the area of Chak No. 183/R Bullocks and cows of Dadla, Mitha, and Iqbal trespassed into my land and started damaging my sugarcane crop. I rounded up the bullocks and cows for taking them to the cattle -- pound. When I took the bullocks and cows out of the sugarcane field, Muhammad Iqbal, Mitha, Dadla and Ahmad started snatching away the bullocks and cows from me and launched an attack upon me. Dadla was armed with a hatchet. Muhammad Iqbal, Ahmad and Mitha had sticks with them. They tried to snatch away the cattle from me. I tried to take the cattle towards cattle- pound and they wanted to take them towards their houses. Dadla deceased gave me a hatchet blow. He was about to give me another hatchet blow when I, in order defend myself, gave him a stick blow and he fell down. Mitha came and adnunistrered me a stick blow. I gave a stick blow to Mitha and he fell down. Ahmad left the cattle and inflicted a stick blow upon me. Ahmad gave me stick blows and I also gave him stick blows. In the meantime Ghulam Muhammad Lambardar came' to the spot. He separated us. Ghulam Muhammad inquired from me as to why he had fought. I told him that the cattle of Muhammad Iqbal, Dadla, Mitha and Ahmad had damaged my crop. I showed him the damaged crop and told him the facts of the occur--rence. Muhammad lqbal took the bullocks and the cows to his house. Ghulam Muhammad Lambardar asked me to get the case registered with the police. My father, my brother, Mukhtar, and I went to Police Station, Sadiqabad. The Sub-Inspector said, that it was night and that he would register the case in the morning. He added, that I should be taken to the hospital. I was taken to the hospital, Sadiqabad, to which I was admitted. The Medical Officer got removed blood-stained clothes from my person. I stayed in the hospital for two days and then the Sub-Inspector arrested me."
15. The appellants examined Ghulam Muhammad Lambar--dar and one Allah Yar in defence. They were cited as prosecu--tion witnesses in the calendar of witnesses, but were not examined by the prosecution.
16. Before proceeding to discuss the evidence, we would like to point out, that an attempt was made to falsely implicate Sardara, father of the appellants, who was not challaned by the police and no mention of the receipt of injuries by Abbas appellant was made in the first information report.
17. An attempt was, therefore, made to conceal the part played by the deceased and his companions. We would also like to point out that Khaira and Qadra accused have been acquitted by the learned Sessions Judge for very good reasons. With these remarks, we would assess the evidence, with a view to find out, as to whether the guilt of the appellants has brought home to them.
18. The motive of the assault upon the deceased and the injured P. Ws. Is stated to he two-fold.
Firstly the accused wanted that the deceased should sell his land which adjoined their land and with a view to coerce him to do so occasionally let loose their cattle in his fields and diverted his water to theirs. So far as this part of the allegation is concerned, there is hardly any evidence, from which it might be inferred, that it is correct. Muhammad Iqbal (P. W. 9), who is a brother of the deceased deposed, that four months before the occurrence, four sheep belonging to Abbas accused trespassed into his field. He rounded them up and' sent them to the cattle pound through his tenant Allah Yar. This Allah Yar, as has already been pointed out above, was cited in the calendar, as a prosecution witness, but was never examined. The accused examined him in defence and he gave a lie to the conten--tion of Muhammad Iqbal appearing, as D. W.
2. He deposed - "I was never a tenant under Muhammad lqbal P. W."
He then went on to say, that he was a tenant of his maternal grand-father Ghazi. He, however, admitted, that four sheep trespassed into his grand-father's land and he took them to a cattle pound and impounded them there. In cross-examination an attempt was made to discredit his testimony by proving, that he was related to Khaira and Qadra the acquitted accused. The attempt did not succeed, because the witness stated categorically that he was not related to them, although he belonged to their caste. We are, therefore, of the opinion, that this part of the prosecution version is not correct. At any rate, it is not established beyond doubt.
19. It was alleged that Qadra accused suspected Mitha P. W. Of having illicit connections with his wife. If there had been any truth in this allegation, we would have aspected that Mitha who, according to the evidence, was ahead of the deceased and Ahmad P. W. Would not have been assaulted by Abbas, and Nawaza appellants alone, who had no grievance against him, but he should have been beaten to put by Qadra. It wits stated both Ahmad (P. W. 10) and Mitha (P. W. 11).
Who, without any doubt, were present at the spot, that it were Abbas and Nawaza accused alone, who gave beating to Mitha It is surprising that Khaira and Qadra accused, who are inter-related did not touch Mitha P. W,. But are alleged to have administered, tick blow to Ahmad, against whom, they had no grudge whatsoever. For the aforesaid reasons, therefore, we are not satisfied that there is any truth in the contention that Qadra accused suspected his wife of having illicit connections with Mitha P. W. The alleged motives have been invented with a view to make the prosecution version plausible. We are also conscious of the fact, that the learned trial Judge was not satisfied with the evidence with regard to the motive and, therefore, observed: - "It seems, that Khaira and Qadra, accused were not participants of the party which was responsible for causing injuries to Dadla, Mitha and Ahmad." Of course he also took into consideration the fact that the sticks recovered from them, were not found to be stained with blood. We, therefore, hold, that the appellants and their companions had no apparent motive to assault Dadla, Ahmad and Mitha.
20. At the trial ocular evidence has been provided by Muhammad lqbal (P. W. 9), Ahmad (P. W. 10), Mitha (P. W. 11) and Lal (P. W.12). So far as the former is concerned, the learned trial Judge observed, that he is not a truthful witness. He, held that. His absence from the spot at the time of the occurrence, can be spelt front more than one factors. In the first information report, he had clearly stated, that he rached the spot after the accused had inflicted injuries to Dadla, Ahmad and. 'Mitha and. Were beating their retreat. He had been informed about. The facts, by Ahmad and Mitha. It was on the basis of-their informa--tion, that he implicated Sardara,` father of Nawaza and Abbas appellants, as one of the assailants. When confronted with, the contents of the first information report, especially with the specific portion of his having received information of the occurrence: rom Mitha and Ahmad, he tried to get out of it by stating, that he had not made any such statement to the Sub-Inspector. These were amongst some of the reasons, which prompted the learned trial Judge to decline to rely on him and we see no reason to differ from him. We, therefore, hold that Muhammad lqbal, who might have reached the place of occurrence; after it had taken place, has not come out with the whole truth. In fact, at the trial, he attempted to show that he wits an eye-witness, which is not correct. We, therefore, exclude his testimony from consideration.
21. The learned trial Judge has placed great reliance on the testimony of Lal (P. W. 12), who appeared to him to be an independent witness. His statement requires close scrutiny. We are doubtful, whether he reached the place of occurrence at the time, when it took, place, for the reasons given by him, for going there do not -impress us. He deposed that 15 days before the occurrence, he had purchased a sheep for Rs. 25.00 from Dadla deceased: whit had promised to pay the purchase money fifteen days thereafter 15th day, according to him, fell on the day when the occurrence took place. Therefore, he went to the house of Dadla deceased at Asar time, when he came to know, that he was not there He took Shamir P. W. With him and both of them left for the land of 1)adta. So that he could recover the price of the sheep He claims, that Shamir accompanied him and when to, had traversed a distance of about a squarer they heard alarm 1111LI hastened to the spot. Before proceeding further we may observe that this Shamir, who was cited as a witness, was not examined at the trial for the reason, that his statement would be a mere repetition of the evidence already recorded and he was, therefore, considered to be an unnecessary witness: We are not satisfied with this explanation for the withholding of Shamir.
However, so far as Lal P. W. Is concerned, we have no hesitation in-holding, that at best he is a chance witness.' His house is situated' at a distance of about two to three squares from the house of Dadla deceased and the Chak, where tie resides, is known as Shahanwala. The place of occurrence is four squares from his house. Assuming that he had, in fact, arrived at the spot and saw the occurrence, he does not explain the incised injury received by Abbas accused on the head.
He deposed, that he did not see any of the injured person, armed with-'a hatchet or giving a hatchet blow to Abbas accused on his head. He thereafter volunteered, that Mitha P. W. Picked up a stick from the place of occurrence and gave a blow with it to Abbas accused: However, he did not see that stick with Mitha, when he went home after the occurrence nor did he see it at the spot after the occurrence. The version of the injured P. Ws. Is that Mitha P. W. Was given stick blows by Abbas and Nawaz appellants only. In the Court of the committing Magistrate with which statement Lal P. W. Was duly confronted he had stated: - "That we saw Nawaza, Abbas, Khaira and Qadra, present in Court, armed with sotas giving blows to- Mitha P. W. And thereafter all the aforementioned four accused started giving beating to Dadla deceased."
This statement is factually incorrect and contradicts the testimony of Ahmad and Mitha the injured P. Ws. An attempt was made by the defence to prove his relationship with Dadla deceased, but it did not succeed. However, for the reasons stated above, we hold, that it is doubtful that Lal P. W.
Had any business to come to the place of occurrence and had, in fact, gone there. We shall, therefore, exclude his testimony from consideration.
22. We are now left with the testimony of the injured P. Ws., namely, Ahmad and Mitha, Implicit reliance cannot be placed oil them for the simple reason, that they have not been believed so far as the implication of Khaira and Qadra is concerned. They are interested, Ahmad is the son and Mitha is nephew of the deceased. Although they are injured as they are interested, it seems to us that they have not come forward to state the whole truth. In an earlier part of the judgment, we have reproduced a part of the statements made by Abbas has appellant in the Court of the committing Magistrate as well at the trial. We may also mention that when the charge was read over to him and he asked whether lie pleaded guilty of it, he made the following statement: - "I do not plead guilty to the charge. On the day of occurrence I was digging watercourse in my land when cattle of Dadla Ahmad and Mitha entered my field and started damaging my crop. I took the cattle towards the cattle-pound. Dadla, Mitha and Ahmad started taking allay the cattle from me. I did not hand over the cattle to them.. Thereupon Dadla gave the a hatchet blow on my head. He was about to give the second hatchet blow to me when I, in order to defend myself, gave a stick blow on his head. He fell down on the ground. Mitha, Ahmad and Iqbal started giving me stick.
Blows. I had been running and giving them stick blows. In the meantime Ghulam Muhammad Lamhardar came there and separated us."
The learned, trial Judge did not implicitly rely on the afore--mentioned statement of Abbas appellant for reasons inter alia that :- "(1) it was doubtful, whether such a minor injury as the incised wound, found on the right eye-brew of Abbas, could have been caused with a hatchet: and
(2) the wearing apparel of his brother Nawaza and stick Exh. P. 3 recovered from him were found to be stained with blood."
With regard to the injury received by Abbas accused, the only person, who could depose about it is the doctor, who had examined him and he stated categorically, that the injury on the forehead of Abbas was caused by a sharp-cutting weapon. When cross-examined with regard to the same injury, he corroborated his previous statement; stating Injury No. 4 of Abbas accused can be caused by any sharp-- cutting weapon."
The doubt of the learned trial Judge, therefore, with respect to this injury, in our opinion, is misplaced.
23. With regard to the second reason, which:, prompted the learned trial Judge to disbelieve the statement of Abbas appellant is the fact of the recovery of blood-stained shirt Exh. P. 1 and Chadar Exh. P. 2 from the parson of Nawaza and blood-stained stick Exh. P. 3 from him. The evidence with regard to these recoveries has been provided by Ali Murad (P. W. 7) and Chandna (P. W. 8) besides the Investigating Officer. Ali Murad P. W. Is admittedly an interested witness, Dadla deceased being his father-in-law. His statement has to be accepted with caution. We are certain, that according to the Investigating Officer Nawaza accused was apprehended from Sadiqabad .On 9th August 1966, when his blood-stained clothes were taken into possession. We also know from tile, statement of the Investigating Officer, that it was on the 19th August 1966, when Nawaza led him to the recovery of blood-stained stick Exh. P.
3. However, Ali M u tad deposed:-- "The accused were arrested on the following day of the occurrence. The clothes were got removed from the person of Nawaza and the sticks were recovered, the same day."
This part of the statement is undoubtedly incorrect. Nawaza accused was not arrested on the following day of the occurrence. He was arrested on the 9th August 1966, and not on the 8th August. The stick was recovered from him on the 10th August.
The second witness with regard to the recovery, as indicated above, is Chandna (P. W. 8). He also appears to be a person, who has no regard for truth. He deposed in examination-in-chief that he joined the investigation, and that the Sub-Inspector of Police collected blood-stained earth from the spot on the third day of the occurrence, i. e. On the 10th of August 1966. This part of the statement is utterly untrue, because the Sub-Inspector of Police had visited the spot on 8th August 1966 and recovered the earth there from on that day, as would be evident from his statement, as well as from memo. Exh. P. D., by virtue of which it was taken into possession. The matter does not end there. He deposed that Nawaza appellant was arrested along with Khaira and Qadra from Sadiqabad and Abbas was taken from the hospital and from there, they were taken to the police station. It is, therefore, evident that the wearing apparel of Nawaza was got removed from his person at the than and was taken into possession. This would be in direct conflict with the statement of tile Investigating Officer, who deposed that the blood-stained clothes of Nawaza were taken into possession, at tile time when, at the place where, he was arrested. To crown all the - witness had to admit, that the complainant belonged to his caste. Since-both tile witnesses to the recovery are interested in the deceased, implicity reliance cannot be placed upon theist arid it cannot be said with any amount of certainty that what they are stating with regard to the recoveries from Nawaza accused is true.
24. The result, therefore, is that vie are constrained to hold, that the prosecution version, which has been (partially) disbelieved by the learned Sessions Judge, does not disclose as to in what manner, did the occurrence take place. We cannot place implicit reliance on it. We have, therefore, no, alternative but to revert to the statement of Abbas and hold, that after he had rounded up the cattle of the deceased and his relatives, and was taken them to the cattle pound, the party of the deceased pounced upon him and inflicted injuries on him, as a result whereof, he also injured them in self-defence. The said accused, therefore, had a right to the extent of causing the death of his assailants, when undoubtedly one of them was armed with a lethal weapon, like hatchet. Abbas accused had also the right of defence of property, which was in his possession and was being taken to the cattle pound. In Nawab v. The State (PLD 1960 Lah. 149), it was observed: - "Illustrations of (f) and (k) to section 378 of the Pakistan Penal Code clearly show that removal of cattle from the lawful possessiona person who hits captured them under section 10 Trespass Act amounts to theft even by the real owner of the property if' the removal is with dishonest intention. In the present case, as observed above, the members of the appellant's party were lawfully in possession of the goats. They had a right to impound the goats within 24 hours of the seizure. The members of the complainant's party in trying to rescue the goats ware trying to remove them from the lawful possession of the members of the appellant's party with the dishonest motive of causing wrongful gain to themselves, at least with respect tar the fee which they would have had to pay in retrieving the goats from the cattle-pound. . . It will appear front the above discussion that the act of the members of the complainant's party are noted to theft within the meaning of wedon 378, P. P.
C. Thus the members of the appellant's party had a right to defend ' their lawful possession of the goats."
It was further observed - "if a thief comes armed with such a formidable weapon, undoubtedly the owner of the house would have a reasonable apprehension that while attempting to defend his property he may receive grievous hurt at the hands of the thief. In such circumstances, the right will extend to the causing of death."
25. When we apply the dictum of the aforesaid case with which we are in respectful agreement, we find, that in the instant case, whether Abbas was alone or was accompanied by his brother and they were taking cattle seized by them to the cattle-pound, and assault was made on them `in order to rescue the, 6 cattle from them and their assailants were armed with weapons like hatchet and sticks, they would be within their right to cause harm to them even to the extent of causing death.
26. Before concluding we may also observe that the version given by Abbas appellant has been supported by Ghulam Muhammad Lambardar, who, as has been pointed out above, was cited as a prosecution witness, but was given up in the Court of the committing Magistrate. He was examined as defence witness. Having gone through his statement, we see no reason to hold, that he is not telling the truth. We may not agree with the version given by Abbas appellant to be wholly true. However, there is no denying the fact, that it appears to us very much plausible and, therefore, we cannot reject it outright. Thus con--sidering the facts of the case and for the reasons given above, we are of the opinion, that the guilt of the appellants has not been fully brought home to them. Their appeal is allowed. Their convictions and sentences are set aside. They shall be set at liberty provided they are not required to be detained in any other case.