GHULAM ALI vs RASAB AND Other

ORDER

1. MUHAMMAD HALEEM, J.-Respondents 1 to 17 were put on trial for the murders of Habib, Abdullah and Bahawal Haq, allegedly over a dispute in regard to land bearing Khasra No. 245, in the area of Kot Admana, District Jhelum, which belonged to Muhammad Iqbal and Anar who bad sold some other Khasra numbers, measuring 1.4 Kanals and 6 Marlas, to deceased Habib and Saif A.I a day earlier to the incident which occurred on 14th of September, 1976, after sunrise. This Khasra number was not mentioned in the sale-deed but subsequently it was included is the sale by a supplementary sale-deed dated 18th of December, 1976. On the fateful day, respondent's 1, 3 and 9 started ploughing the disputed Khasra number. This information was conveyed by Mst. Irshad Begum to Bahawal Haq and Habib who proceeded towards the land to stop them from ploughing it. The petitioners also followed them. On reaching the eastern Banns of the land they told these respondents that this Khasra number had been purchased by them (Habib and Saif A.I) and, therefore, they should desist from ploughing it. Saif A.I and Abdullah also arrived there. Ghulam Rasul, thereupon. Threatened Bahawal Haq that they would teach them a lesson for having purchased this land and, after saying so, all the three respondents left their ploughs and attacked Bahawal Haq and Habib with Barchhis. Rasab gave a blow on the belly of Habib who fell down.

2. Shera caused a blow on the right shoulder of Bahawal Haq deceased. Thereafter, the other respondents who were hiding in the nearby Dera came out armed with sticks, hatchets and Barchhis to attack them. Bahawal Haq ran towards the south to save his life but he was followed by Muhammad Khan who gave a Barchhi blow on his back as a result of which he fell down. He was given further blows by Muhammad Afzal. Muhammad Aslam, Muhammad Khan, Muhammad Inayat. Muhammad Bashir and Ghulam Rasul Gonda), Rasab Shera, Ghulam Rasul, Nazir and Painda Khan gave a further blows with their weapons to Habib, Muhammad Zaman gave a stick blow to Abdullah which struck him on his left shoulder and he, thereupon, ran towards the south but Allah Rakha chased and overtook him and caused a blow with a Barchhi on his belly and he fell down. He was oven further blows by Muhammad Akram, Sultan, Allah Bakhsh, Muhammad Zaman, Manzur and Mirza. As a result of the injuries caused to the three deceased, they expired at the spot; Rasab and Muhammad Afzal also received simple injuries with blunt weapons at the hands of Bahawal Haq and Habib. The accused party, thereafter, decamped from there.

3. The incident was witnessed by Ghulam A.I, Saif A.I and Mst. Irshad Begum who was not examined at the trial. The report of the incident was lodged by Ghulam A.I, the brother of the deceased, Abdullah at Police Station Jalalpur at 8 a.m. Blood-stained earth was secured from the three Places where the deceased had fallen.

4. On deceased Bahawal Haq 19' incised injuries of different dimensions were noticed. Deceased Habib suffered 17 injuries out of which three were caused by a blunt weapon and the remaining by a sharp-edged weapon. Abdullah also suffered 14 injuries out of which 5 were caused with a blunt weapon while the remaining with a sharp-edged weapon.

5. The trial Court convicted respondents 1 to 9 under sections 148 and 302, P. P. C. On the first count they were sentenced to suffer from two years' R. I. And on the second, respondent No. 9 was sentenced to life imprisonment on three counts of murders while respondents 1 to 8 were sentenced to death on these counts. They were also ordered to pay a fine of Rs. 1,000 each or in default to suffer two years' R.

1. On each count of murder. Respondents 10 to 17 were acquitted.

6. The petitioner challenged the acquittal of respondents 10 to 17 in the High Court while those convicted preferred an appeal against their con--victions and sentence. The High Court, upon its own appraisal of the evidence held that Khasra number 245 was 'neither owned nor possessed by either party and both of them had asserted their right to plough the land. It further held that there was no yardstick to judge the individual culpability of the others except Muhammad Afzal and Rasab who had admitted their presence and claimed to have inflicted the injuries in self--- defence. Accordingly, the High Court, in the background of its finding as to possession, held that Muhammad Afzal and Rasab had exceeded the right of self-defence and altered their convictions to section 304, Part 1, P. P. C. And substituted the sentence of life imprisonment on three counts and acquitted the others.

7. The trial Court bad acquitted Ghulam Rasul, Bashir and Nazir on the ground that they belonged to a different village and were .Not related to the other co-accused. Further, that they had no motive to involve them--selves. As for Inayat, Manzur and Nazir, whose case had already been distinguished, it was held that they did not cause hatchet injuries though armed with hatchets and they were, therefore, given the benefit of doubt on this basis and acquitted. Lastly, Painda Khan, Mirza and Muhammad Zaman were acquitted on the ground that they were far too advanced in age to participate in the crime.

8. It was contended by the learned counsel for the petitioner that having regard to the nature and dimensions of the injuries they could not ha been caused only with Barchhis but also with the sharp side and the back side of the hatchets. Equally, the use of Sotis could not be excluded. Therefore, the participation of the acquitted respondent could not distinguished on the criterion that the deceased only suffered injuries wit Barchhis. Further, it was contended that the deceased were chased an killed and if that was so, a question arises for consideration as to whether the right of self-defence was rightly conceded to the respondents. Muhammad Afzal and Rasab, when there was no apprehension of grievous injury or death to them and in this eventuality whether it was proper for the High Court to acquit the other respondents if they were vicariously liable for these murders. In our view it is a case which requires re-examination.

9. Accordingly, we would grant leave to appeal to the petitioner. Non---bailable warrants, returnable to the District Magistrate, Jhelum, to issue for the arrest of the respondents except Painda Khan, Mirza and Muhammad Zaman against whom bailable warrants to issue in the sum of Rs. 10,000 with one surety in the like amount to the satisfaction of the District Magistrate, Jhelum.