NAZIR AHMAD Versus STATE

1. MUHAMMAD GUL, J. ‑The appellant herein alongwith his brother Abdul Safdar was tried by an Additional Sessions Judge, Multan for offences under section 302/34, P. P. C. for having caused the murder of Abadan. The trial Court "acquitted both the accused on the finding that Abdul Sattar was falsely implicated because of previous enmity between the parties and further that the appellant acted in self‑defence in causing injuries to the deceased which ultimately resulted in his death. On appeal by the State, a Division Bench of the Lahore High Court has partially accepted the appeal and set aside the judgment of the trial Court in so far as it recorded the appellant's acquittal but convicted his under section 304, Part I and sentenced him to 7 years R. I and a fine of Rs. 2000 or to stiffer further R. I. of 2 years on the finding that he had exceeded the right of private defence. The fine if recovered was made payable to the heirs of Abadan deceased.

2. Leave was granted to consider whether on the facts of the case and on the law declared, in the relevant behalf, by this Court, the High Court was right in refusing the plea of private defence to the appellant and whether on the facts found he has exceeded that right?

3. The prosecution' case briefly is that the parties own lands adjacent to each other with a common watt (boundary line) in square No. 60, in Chak No.' 356‑W.‑B., Tebsil.. Lodhran, District Multan. The parties had been at logger‑head over the "art for some years past. On 23‑2‑1967 at about noon time the deceased sad his brother Wali Muhammad P. W. 7 were cutting fodder in Killa No.10. Abdul Sattar was ploughing land is Kills No. 13, while the appellant had also brought his cart. As Abdul Sattar brought the plough at the foot of the watt, Abadan deceased took exception. This led to an exchange of abuses. At this the appellant raised a lalkara "let the dispute about watt be settled once for all". He then pulled out muni Exh. P. 4 from under the cart. In the meantime Abdul Sattar the acquitted accused snatched the sickle EA. P. 5 from the hand of the deceased advanced towards him apparently to stop him from ploughing the watt. Having thus die‑armed the deceased, the appellant and the co‑accused both assaulted the deceased. The appellant struck repeated blows with muri hitting the deceased on the head while the acquitted co‑accused caused him injuries with the sickle. The occurrence was also seen by Ali Muhammad P. W. 8 and Roshan P. W. 9 both of whom were working in nearby field. After the deceased bad fallen down as a result of the injuries on the head, the appellant and the co accused run away, taking the sickle and the muni with them.

4. The deceased was taken in 2n injured condition on the horseback to the Chak and then on a cot to the" Dispensary at Dunyapur where he was medically examined. After obtaining the medical report F. I. R. was lodged at P. S. Dunyapur the same night at 9.30 p.m.

5. Abadan died on the following morning in the Hospital at 3 a.m. The appellant and his brother were arrested latter on the same day.

6. During the investigation the police recovered muni Exh. P. 4 and sickle Exh. P. 5 in square No. 60, kills No. 3 from the wheat field at the instance of the appellant. Of the two the sickle Exh. P. 5 was found to be stained with human blood.

7. Of the two accused in the case, Abdul Sattar pleaded alibi and stated that he had been falsely implicated owing to enmity between the parties. The appellant in his statement under section 342, Cr. P. C. also denied the presence of Abdul Sattar at the incident. According to his statement it was he, who was actually ploughing the field while the deceased and his brother Wali Muhammad were cutting fodder in Killa No. 10. Abadan tried to stop him from ploughing the filed and attacked him with sickle and in self-defence, he wielded driving stick which he was carrying at the time. He denied the recovery of muni Exh. P. 4 and sickle Exh. P. 5 during the investigation.

8. The ante‑mortem and post‑mortem examinations of the deceased showed that he had 6 injuries of which 4 were lacerated wounds on the skull as a result of which there was extensive fracture of the skull involving the frontal, occipital and parietal bones. Brain matter under the fracture was torn and injured. In the opinion of the Doctor, death was due to shock and injuries to the skull which were sufficient in the ordinary course of nature to cause death.

9. The incident is not dented by the appellant. The short question that falls for determination is whether on the evidence produced in the case, the appellant's plea of self‑defence was reasonably established?

10. The prosecution rested its case on the evidence of Wali Muhammad P. W., brother of the deceased (who on the appellant's own showing was present at the spot) and the evidence of Ali Muhammad and Roshan Din both of whom are independent and unrelated witnesses. Their evidence also received strong corroboration from the medical evidence according to which the head of the deceased was battered with a heavy weapon like the rnunl. The muni recovered during the investigation was of shisham wood it weighed 1.14 seer and 2' x 11' was in length.

11. What influenced the trial Court to give effect the ipse dixit of the appel lant was that it was admitted by the prosecution witnesses that as Abadan rushed forward to the appellant to stop him from ploughing the common wall the former was armed with a sickle. From this the trial Judge concluded that the deceased himself has assumed a threatening posture with sickle in his hand and given rise to a genuine apprehension in the mind of the appellant that the deceased was going to attack him, with sickle, The trial Judge also believed the statement of the appellant that he weilded the driving stick in self‑defence: On the basis of this material the trial Judge came to the conclusion that the pleat of self‑defence was reasons established. The learned Judges in the High Court were not satisfied with the above conclusion and set aside the trial Court's judgment, so far as the appellant was concerned, and gave benefit of doubt to the appellant' brother Abdul Sattar. Nevertheless the learned Judges took the view that on the evidence produced, the appellant could have entertained a reason able apprehension of attack upon him and therefore he had right of private defence which he had exceeded. The learned nudges failed to consider that ordinarily sickle is not a weapon of offence and it was admitted that the deceased was engaged in cutting fodder, therefore, he had .the sickle with him in the normal course of his activity at the relevant time and had no armed himself with it with a view to attacking the appellant. Another material fact in the case is that not even a scratch was caused to the appellant and this should be enough to demolish the plea of self‑defence, more the injuries on the head of the deceased according to the prosecution case followed the wresting of the sickle by the appellant from the deceased. However, that may be, this aspect of the case is not before us.

12. Nevertheless, we are constrained to say that the trial Judge's conclusion, to say the least was perverse. Indeed, it is not possible to avoid the impression that perfectly straight forward evidence was twisted to support a conclusion which was utterly lacking fn imagination. But for the fact that this officer (Mr. Rasul Bakhsh Khan Leghari) was screened out under M. L. R. 11.4 and has since died, we might have reported him for disciplinary action.

13. We accordingly, dismiss the appeal.

14. Appeal dismissed