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Petition for Special Leave to Appeal No. 221 of 1972, decided on 11th July 1973.
(On appeal from the judgment and order of the Lahore High Court, made on the 22nd of August 1972, in Criminal Appeal No. 857 of 1969).
--‑‑S. 100‑Private defence, right of‑Complainant party after being dispossessed of land trying to take back possession by force Complainant party being aggressors, accused, held, were within their right to resist by force‑Accused having received injuries on vital parts of body acquired right of private defence of person as well and injuries inflicted by them if resulting in death of any person on complainant's side cannot be said to have been inflicted in excess of right‑Accused, in circumstances, held, not liable‑Penal Code (XLV of 1860), Ss. 302, 324 & 325/149.
Khawaja Ghulam Qadir, Advocate instructed by Kh. Wall Muhammad, Advocate‑ on‑Record for Petitioner.
Nemo for Respondent No.1.
Sh. Nasim Hassan, Advocate instructed by Sh. Abdul Karim, Advocate -on‑Record for Respondents Nos. 2 to 5.
Abdus Samad Hashmi, Advocate instructed by Sh. Ijaz Ali, Advocate‑on -Record for the State.
Date of hearing : 11th July 1973.
.‑The first five respondents herein were convicted by the Additional Sessions Judge, Sahiwal, under sections 302, 324 and 325 of the Pakistan Penal Code read with section 149 thereof, and on the first count they were all sentenced to transportation for life. The respondent No. 5 was further sentenced to a fine of Rs.5,000 under section 544‑A of the Code of Criminal Procedure.
The incident resulting in the death of Ramzan and injuries to his brothers Ali Mohammad and Saeed (P. Ws. 3 and 4) arose over a dispute relating to the possession of Killa No. 15 of S9. No. 90, situated in village Khan Bahadnr within the jurisdiction of Hujra Police Station, District Sahiwal. This Killa originally belonged to the respondent, Shelkh Ahmad, but in consolidation proceedings it had come to the share of the complainant party. Since Sheikh Ahmad was not willing to part with his possession even after the finalization of the consolidation scheme, the deceased moved an application before the Additional Deputy Commissioner for an order for delivery of possession. This order was received by Girdawar Qanungo on the 1st of August 1967 and he delivered Malakana possession to the deceased on the 1st of December 1967 in the presence of witnesses.
Sheikh Ahmad, however, continued to agitate against the order and on the 3rd of July 1968 succeeded in obtaining an order from the Additional Deputy Commissioner for the maintenance of status quo during the pendency of his revision petition.
A few days thereafter on the 10th of July 1968, the deceased made an application to the District Inspector of Police at Dipalpur alleging that the respondents had forcibly dispossessed him from the land on gun‑point. This complaint was investigated into but, subsequently, filed.
The present incident took place on the 27th of October 1968 at 10 a.m. when, according to the prosecution, the deceased and his brothers were working in the disputed Kills. Sheikh Ahmad and his four sons, it is said, came there raising lalkaras and inflicted dang blows on the head of the deceased and the other witnesses.
The respondents, on the other hand, asserted that it is the complainant party who were the aggressors and who attacked them for the purpose of taking back possession of the land in spite of the status quo order and the pendency of the revision petition on the consolidation side. Their case was that they had resisted in the exercise of their right to private defence of both person and property, and, therefore, they were not liable for the injuries, if any caused to the complainant party even if they resulted in death.
The trial Court took the view that after possession had been delivered to the complainant party, under the orders of the Additional Deputy Commissioner in July 1967, the respondents had no right to retake possession and, therefore, they must be considered to be the aggressors. The High Court, on the other hand, took the view that in a criminal case it is actual physical possession that is material, hence, even a trespasser, if he is in actual possession for any length of time can resist dispossession by the use of force, if necessary.
In the present case, after the admission of the application of the 10th of July 1968 by the deceased the respondents had admittedly forcibly dispossessed the complainant from the land in dispute and there was nothing on the record to show that possession had ever been taken back by the complainant side. Indeed, the learned counsel appearing for them in the High Court had actually conceded this fact.
The complainant side had also suppressed the fact that two of the accused persons had suffered injuries at the hands of the complainant party. One of these injuries was an incised wound on the shoulder and the other was a contused wound on the head, a vital part of the body. In the circumstance;, the High Court held that the right of private defence both of property and person, accrued to the respondents and they had, in the circumstances of this case, not exceeded that right. Their convictions, therefore, were set aside and they were directed to be set at liberty forthwith.
The complainant now seeks special leave to appeal, and it is contended on his behalf that the High Court was wrong in taking the view that the right of private defence had accrued to the respondents.
We have examined the evidence and have come to the conclusion that the High Court was right in holding that after dispossession in July 1967 it was the complainant‑party who had tried on the 27th of October 1968 to take back possession by force. They were, therefore, the aggressors. The respondents had the right to resist this by the use of force. They did so and since in the course thereof they were also inflicted injuries, on vital parts of the body, they acquired the right of private defence of person as sell and if, in the course of exercise of this right, they causal an injury which ultimately led to the death of the deceased, it cannot be said that they had exceeded that right or were criminally liable.
There can be no manner of doubt that the legal position expounded by the High Court in its judgment is correct. The learned counsel appearing in support of this petition has also conceded this. In the circumstances, there is no ground for our interference.
This petition is, accordingly dismissed.
Petition dismissed.
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