1. MUHAMMAD MUNIR, C. J.-This is an appeal, by special leave, in a criminal matter.
2. The two appellants, Saleh and Khair Muhammad, together with eight other persons, were tried by the 2nd Additional Sessions Judge, Hyderabad, on charges of murder and attempted murder. The learned Judge convicted the appellants alone under sections 302 and 307 of the Pakistan Penal Code and sentenced them to death on the former and to seven years' imprisonment on the latter charge. The appellants appealed to the Chief Court of Sind where Muhammad Bachal and Muhammad Bakhsh, JJ. Disagreed as to the correctness of the convictions, the former being of the opinion that the appeal be dismissed and the latter that the appeal be allowed and the convictions and sentences set aside. The case was, therefore, heard by a 3rd Judge, Hassanally Agha, J., who agreed with the opinion of Muhammad Bachal, J. And dismissed the appeal. Special leave to appeal was granted by this Court on the question whether the evidence in the case presented a reasonable possibility of the appellants' case being true, namely, that they acted in exercise of the right of private defence of person and property.
3. The facts which led to these convictions are perfectly simple. The appellants are Pitafts of village Hiji Mehwal, Taluka Tando Allahyar. Included in the area of the adjacent village Deh Khokhar in Survey No. 70, half of which is owned by Haji Ghulam Hussain, while the other half was the property of an evacuee Tahil Ram. After the Partition, Tahil Ram's share was allotted by the Rehabilitation Authorities to a servant of Haji Ghulam Hussain, and thus on the day of the incident, the whole of this survey number was in the possession of Haji Ghulam Hussain and his servant through tenants who are Khosas and had been brought by Haji Ghulam Hussain from the District of Dadu. The appellants' party had attempted to obtain an allotment of Tahil Ram's share, but they had failed.
4. According to the prosecution evidence, on the morning of 5th June 1952 the Khosa tenants were in occupation of survey No. 70. Zangi, Khair Muhammad and Muhammad Ali were working in one field, while Yousif, Latif, Amir Bux, Hazaro and Savan were engaged in work in another field. The two appellants accom--panied by the eight accused who have been acquitted came to survey No. 70, and began to put up a hedge between the cultivated and the uncultivated portions of it in order to annex the latter to their own village. Latif objected to this and a quarrel ensued between the two parties. In the course of the quarrel Haji Mehwal asked Dato, one of the acquitted accused, and Khair and Saleh appellants to bring their guns from the village and to fire at the Khosa tenants. The appellants obeyed the order, and returning to the scene with their guns, opened fire. With the result that Latif, Yousif and Amir Bux, were killed and Savan injured. The culprits then set fire to the hedge which they themselves had attempted to set up, and then dragged the bodies of the murdered' men towards their village. Zangi rushed to Haji Ghulam Hussain and informed him of what had happened. The Haji took Zangi to Police Station Chambar where at 3 o'clock in the afternoon an F. I.
5. R. Was lodged stating the fact which have just been mentioned.
6. At the trial Zangi (P. W. 3), Savan (P. W. 4), Hazaro (P. W. 5) and Kabiro (P. W. 6). Gave direct evidence of the crime, while Kosas Khan (P. W. 10), Incharge Thanedar at the Police Station, and Ahmad Ali (P. W. 11), the Assistant Sub-Inspector of the same Police Station, gave evidence of what they saw on the spot and as to the documents made on inspection of the scene of crime. The eye- witnesses deposed that the occurrence took place in the manner stated above, while the evidence of the two police officers taken with the documents made by them shows that in survey No. 70, which is alleged by the prosecution to be the scene of the crime, there were three large pools of blood and many drops of blood on the ground and on the leaves of cotton plants. There were also remains of a burnt hedge on the scene and the three dead bodies appeared to have been dragged from the pools of blood to the village of the Pitafis across the hedge. Kouro Khan also picked up from the spot four fired cartridges and noticed marks of burning of the bodies of Latif, Amir Bux and Yousif deceased.
7. Neither of the appellants disclosed his defence before the committing Magistrate, but in their statements before the learned Sessions Judge they both alleged that the Khosas, namely, the three deceased persons, Savan, the man who was injured but survived, and the other eye-witnessed headed by their Zimindar Ghulam Hussain came and burnt the hedge surrounding their village and also set fire to their houses, and that apprehending' injury to their life and property the appellants shot dead the three persons and injured Savan while they were engaged in setting fire to the houses. This version was sought to be sup--ported by the evidence of a witness Achar (D. W. 2) who deposed that Haji Ghulam Hussain incited the Khosas to set fire to the houses of the accused, and that the two appellants then fired at the Khosas which resulted in the death of three of them.
8. It is obvious that Achar's evidence does not explain how human blood in large quantities came to be on the lands in survey No. 70, why the four fired cartridges were found there, and how the marks of dragging of the bodies to the houses of the Pitafis were caused. On the case, as disclosed by the prosecution witnesses, no case of self-defence can be built and the direct evidence of the prosecution witnesses receives the strongest possible support from the circumstances which were noticed by the police officers in survey No. 70. The only material on which reliance is placed to support the theory of self-defence is the fact that the bodies of the deceased persons had some marks of burning and a statement before the committing Magistrate by Hazaro that the houses of the accused persons were also set on fire. The doctor, who performed the post-mortem examination on the bodies of the persons murdered, does not state in his evidence that he noticed any marks of burning on those bodies, and even if it be assumed that such marks did exist they are quite consistent with the prosecution case that the bodies were dragged across a burning or a burnt hedge after the commission of the crime. As regards the statement of Hazaro before the committing Magistrate, what he is recorded to have stated there is that the accused persons set fire not only to the hedge but also to some of their own houses. These two circumstances, therefore, even if proved, cannot make out any case of self-defence for the appellants and are wholly insufficient to contradict the conclusion to be drawn from the observations of the police officers that the scene of the crime was survey No. 70. In our opinion, the convictions are not open to any such objection as might justify interference by us on special appeal. The appeal is, therefore, dismissed.
9. SHAHABUDDIN, J.-I agree that the appeal be dismissed.