Find a Lawyer

Criminal Appeal No. 147 of 1955 decided on 28th March 1956, from the judgment of Shakirullah Jan Additional Sessions judge Peshawar, dated 18th August, 1955.

, Ss. 99, 100‑Land owned by Co‑owners‑One Co‑owner forcibly trying to stop other co‑owner from ploughing the land‑Latter has right of private defence both of body and property.

Where a plot of land jointly owned by several co‑owners was being ploughed by one set of co‑owners and the other set of co‑owners came armed with, sharp‑edged, pointed and blunt weapons to make the ploughers stop ploughing the plot while there was time to have recourse to the protection of authorities, and one of the co‑owners who came armed was killed in the fight which ensued, it being doubtful who struck the first blow.

, that the conduct of the party, which came to stop the ploughing was clearly aggressive and that when this party attempted forcibly to eject the other party from the plot with the help of their arms, the latter had the right to defend themselves and their property.

The proper course for the aggressive party was to approach the authorities for redress.

Abdul Latif Khan, for appellant.

Abdul Wahab Khan for Muhammad Ali, Additional Advocate‑General for respondent.

Date of hearing 28th March 1956.

,‑This is an appeal by Ainullah, of village Jalsai, Police Station Lahore, District Mardan, ,against the order of an Additional Sessions judge, whereby he has been convicted under section 302 P. P. C., on a charge of murder, and sentenced to transportation for life. His brother, Ghulam Rasul, has been acquitted.

Except for the denial that Lal Khan deceased and his companions have attacked and injured Ainullah appellant, and his brother, Ghulam Rasul, the main facts of the incident are not in dispute. One Muhammad Jauhar, paternal uncle of Lal Khan deceased, and maternal uncle of the appellant, died about six years prior to the occurrence. His property de volved upon his three brothers, namely, Ali Khan father of Lal Khan deceased Shah Jehan (P. W. 5), and Said Nazif (P. W. 7), and three sisters, namely, Mst. Mastani, mother of Ainullah appellant and Ghulam Rasul, the acquitted accused, Mst. Subhania and Mst. Safia. The property was joint uptil the clay of occurrence. It appears that while the sisters were demanding their separate shares in the landed property of Muhammad Jauhar deceased, the brothers were unwilling to allot them separate shares. In the revenue papers however, the brothers and the sisters were recorded as joint co‑sharers. It is also evident from the evidence on the record that the property of Muhammad Jauhar consisted of several different plots, some of which were in the possession of his brothers. The present incident resulted from a dispute between the parties over a joint plot, bearing Khasra No. 1691, which will be referred to in the judgment as the land in dispute. On the morning of occurrence, Lal Khan deceased, his uncle, Shah Jehan (P. W. 5), and the latter's son‑in‑law, Sang‑i‑Paras (P. W. 8) started ploughing in a field jointly owned by the parties. Similarly, Ainullanh appellant and his brother, Ghulam Rasul, also took their team of bullocks to the land in dispute, and started ploughing. On seeing the appellant and his brother ploughing the land, the deceased, Shah Jehan and Sang‑i‑Paras, left their field, and came over to the land, where the appellant and his brother were present, and asked them to stop ploughing.. The' appellant and his brother declined to obey the order. The deceased and Shah Jehan went in front of the bullocks, held them by their nose strings, and stopped the ploughing. This gave rise to a fight between the parties, as a result of which Lal Khan deceased, Ainullah appellant, and his brother Ghulam Rasul, were wounded. Both sides went to police station and lodged their respective reports. Lal Khan deceased first made a dying declaration at the police station, and later to a Magistrate. He succumbed to his injuries in hospital on the next day.

According to the medical evidence, the deceased had sustained one stab wound on the left and front side of his abdomen, and another on the right side back of his chest. The first injury was dangerous to life, because the stomach, liver and mesenteric blood vessels had been injured.

Ghulam Rasul had suffered a stab wound, 5/8" x 1/4", and 1‑1/8" deep, on the inner part of the back surface of the left forearm, caused with sharp edged and painted weapon. Ainullah had received three injuries, (1) An abraded area, 4' x 2/3', on the back of the left forearm. (2) A swelling on the back of the left hand, and (3) An abrasion. 1/2"x 1/3", on the inner aspect of the right forearm. His fifth palmar bone of the left hand had been fractured.

Now the question would be as to who was the aggressor and the determination of this question would decide the fate of the case. The land in dispute was not in the physical pos session of any one of the parties, because it was Banjar (barren) since years, overgrown with wild grass and "Derab" as is evident from the statements of Shah Jehan (P. W. 5) and the investigating officer. It was jointly owned by the deceased's father the latter's brothers, the mother of the appellant, and her sisters. It had not yet been partitioned through Court or privately. It is obvious that just as the deceased's party had a right to cultivate other plots jointly owned by the parties, the appellant and his brother also had an equal right to plough the land in dispute in which they had a share. The field in which the deceased and his relatives were ploughing that morning is situated at a distance of 500 yards from the land in dispute. Ainullah appellant and his brother, Ghulam Rasul, were doing no more than exercising their legal right by ploughing the land in dispute. Without any justification, the deceased, accompanied by Shah Jehan and one other, came to the land of the appellant. They were armed with sharp edged and pointed weapons as well as a blunt weapon. ' They forcibly stopped ploughing by the appellant and his brother so much so that they seized the bullocks by their nose‑strings. In the first place, it is doubtful as to who gave the first blow because Shah Jehan (P. W. 5) himself admits that he was not sure whether the deceased hit Ainullah appellant first, or the latter gave blow first to the deceased. But, even if it is conceded that the appellant delivered the first blow, he would not be guilty of any offence, because under the circumstances outlined above, he and his brother were perfectly within their legal right to prevent the deceased's party from interfering with the exercise of their right. As already pointed out above, the deceased and his companions had come fully prepared with arms and were bent upon taking forcible possession of the land in dispute which they have no legal right to do. In the light of the circumstances of the incident, the proper course for the deceased and his party was to approach the autho rities for their redress, if they had any legal right. Their conduct was clearly aggressive, and when they attempted to forcibly eject the appellant and his brother with the help of their arms, the latter had every right to defend themselves, and also their property. The deceased's party has not been able to give any satisfactory explanation for the injuries caused to the appellant and his brother, but it is obvious from the evidence on record that these were caused to them by the deceased and his companions, and none else. It may be pointed out here in passing that even this much has not been established beyond reasonable doubt that the deceased was stabbed by the appellant, because Shah Jehan (P. W. 5) had clearly said in his statement recorded under section 164 Criminal P. C. with which he has been duly confronted, that a lore was lying on the spot, which Ghulam Rasul, the acquitted accused, picked up, and with it he delivered blows to the deceased.

It is a clear case of self‑defence, and the learned counsel appearing on behalf of the Additional Advocate‑General could not convince us that the appellant and his brother had either committed murder, or even simple homicide by exceeding that right of self defence. We are firmly of the view that the appellant and his brother acted in the exercise of the right of self‑defence of their persons and pro perty, and as such, they have committed no offence. There fore, we accept the appeal, set aside the conviction and sentence of Ainullah, and acquit him of the charge. He should be set free forthwith.

A. H.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.