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Criminal Petitions Nos. 103/R and 379/11 of 1983, decided on 3^rd December, 1985.

(On appeal from the Judgment, dated 2‑11‑1983 of the Lahore High Court, Lahore in Criminal Appeal No. 945 of 1980 and Criminal Revision No. 809 of 1980).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss.302 & 441‑‑Conviction under S.302, P.P.C. challenged‑‑Leave to appeal granted to consider contention that petitioner while exercising right to defend his property against a trespasser (deceased) inflicted injuries resulting in his death, hence could not be held guilty under 5.302, P. P. C . and offence committed by him at best was punishable under S. 304, P.P.C.

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Appeal against acquittal‑‑Co‑accused in murder case given benefit of doubt and acquitted by High Court‑‑Petition for leave to appeal seeking conviction‑‑No error or illegality having been pointed out in impugned order, petition dismissed.

Aftab Farrukh, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Aslam Chaudhary, Advocate‑on‑Record (absent) for the Complainant.

R.A. Awan, Advocate Supreme Court and Aslam Chaudhry, Advocate‑on‑Record (absent) for Petitioner.

Mian Inamul Haq, Advocate Supreme Court and Rao Muhammad Yousuf Khan, Advocate‑on‑Record for Respondent No. 3.

Date of hearing: 3rd December, 1985.

‑This order will dispose of two criminal petitions, namely, Criminal Petition No. 103/R of 1983 and Criminal Petition No. 379/11 of 1983, as both are directed against one and the same judgment passed by a learned Single Judge of the Lahore High Court.

The facts, which form the background, are that on the day of occurrence Mohammad Tariq, petitioner (in Cr. P. No. 103‑R of 1983) was digging the earth from his field, very near from the wall of the house of the deceased Abdul Hameed), with a Kassi. Mohammad Asif co‑accused, who is also his younger brother, was with him. Abdul Hameed deceased asked them to stop digging the earth as this would cause damage to his house and it might collapse. The accused did not like this intervention and abused him. However, the deceased continued to protest and went ahead into the land of the accused with a view to restrain them from digging the earth. On his doing so Mohammad Asif co‑accused allegedly caught hold of him and gave him fist blows while the petitioner (Muhammad Tariq) gave him blows on his head with the Kassi, with which he was digging the earth. The deceased fell down, in an injured condition, whereupon the accused ran away. The deceased was then taken to the hospital, where he succumbed to his injuries.

The motive, in addition to the abovementioned immediate motive, namely, the attempt of the deceased to stop the accused from digging the earth, was that Mst. Amir Begum, the mother of the accused, who was a paternal‑cousin of the deceased, had, about six months prior to the occurrence, demanded that the shortage of the land of her share should be made up. The complainant party had told her that the land had been divided by the elders and that they had not made any change in this distribution. Mst. Amir Begum was not satisfied with the reply and had filed a suit in the Civil Court which was pending when the present occurrence occurred. The accused were aggrieved by the refusal of the complainant party to let them have their full share and this refusal had also aggravated their anger against them.

The petitioner Mohammad Tariq and his brother Mohammad Asif were tried by the Additional Sessions Judge, Lahore for the murder of Abdul Hameed deceased, He found both of them guilty under section 302/34, P.P.C. and convicted them for the said offence, sentencing each of them to imprisonment for life and a fine of Rs. 5,000 in default of payment of which each was to suffer three years' further R.I. The fine, if realized, was ordered to be paid as compensation to the heirs of the deceased.

On appeal, the High Court upheld the conviction as well as the sentence passed on Mohammad Tariq with the modification that the term of imprisonment awarded to him in default of payment of fine was reduced to one year. Mohammad Asif, co‑accused, was, however, given the benefit of the doubt and he was acquitted. The revision petition filed by the complainant (the petitioner in Cr.P. No. 379/11 of 1983) for enhancement of the sentence passed against the accused was, however, dismissed.

Criminal Petition No. 103/R of 1983 has been filed in this Court by Mohammad Tariq to challenge his conviction and sentence, while Criminal Petition No. 379/11 of 1983 has been filed by the complainant to challenge the acquittal of Mohammad Asif, co‑accused. Both these matters have, accordingly, been heard together.

Before us, Mr. Aftab Farrukh, learned counsel for Mohammad Tariq, contended that the deceased had entered the land of the petitioner with the intention to intimidate, insult and annoy him and his brother and was insisting that they should not dig their own land. He was thereby committing "criminal trespass", within the meaning of section 441 of the P.P.C. The petitioner had the right to defend his property against the said trespass and this right extended to causing any harm short of causing death. Thus, in inflicting the injuries to the deceased, which resulted in his death, the petitioner could be held to have exceeded the right of private defence of property but he could not nevertheless be held guilty under section 302, P.P.C. and the offence committed by him at best was punishable under section 304 of the P.P.C. Hence, his conviction under section 302, P.P.C. was not correct in law.

After hearing the learned counsel for both the parties and examining the available record we find, prima facie, that the contention raised has merit. Leave is, accordingly, granted in Criminal Petition No. 103/R of 1983.

As regards the petition directed against the acquittal of Mohammad Asif, co‑accused (Criminal Petition No. 379/R of 1983) Mr. R.A. Awan, who appeared in support of this petition, was not able to satisfy us that the learned Judge in the High Court had acted illegally or erroneously in acquitting Mohammad Asif by giving him the benefit of doubt. Criminal Petition No. 379/11 of 1983 is, therefore, dismissed.

M. I. Order accordingly.

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